By Kashmala Shuja
Article 37 of the Constitution of the Islamic Republic of Pakistan, as a principle of policy, requires devolution of government management to help expeditious discarding of its business to meet the expediency and requirements of the public. Constitutional aspect of the local government and referred to the Articles 7, 32 and 37 clearly state that holding local government elections and establishing and effective local government at the grass-roots level is the constitutional obligation but it remains to be a tradition in Pakistan that elected government shirked this constitutional responsibility.Article 140A of the Constitution of the Islamic Republic of Pakistan, provides for establishment of a local government system and devolution of political, administrative, and economic responsibility and authority to the elected government of the local governments.
Salient Features of Local Government In KP
- The Legal Framework for Local Government Elections in KP:
Under the Constitution of the Islamic Republic of Pakistan, it is the State’s duty to encourage local government institutions composed of elected local representatives and to provide special depiction for peasants, workers and women. The 18th Amendment to the Constitution, adopted in 2010, requires provinces to pass legislation establishing local government systems and to transfer political, administrative and financial responsibility and authority to the elected local representatives. The Election Commission of Pakistan (ECP) has constitutional mandate to hold local government elections in the provinces. However, most of the previous provincial governments did not make serious attempts to develop local government systems. While hearing a case of law and order in Balochistan in April 2012, the Supreme Court directed the provinces to establish local government systems as mandated by the Constitution in order to solve socio political problems of the common people. Under immense pressure from the Supreme Court, Balochistan, Punjab, Sindh and Khyber Pakhtunkhwa (KPK) provinces have adopted local government legal frameworks. In KPK, the Khyber Pakhtunkhwa Local Government Act, 2013 (KPLGA) was notified by the provincial government on 7 November 2013 and the Khyber Pakhtunkhwa Local Councils (Conduct of Elections) Rules, 2014 were published on 10 March 2014.‘The Khyber Pakhtunkhwa Local Government Law, 2013’, and aimed at constructing and regulating local government institutions in the province and to consolidate laws relating to these institutions and to provide for matters connected therewith and ancillary thereto.
- Powers of Local Councils
The institution of local government is essentially established to carry out development activities at local levels and provide basic civic amenities to citizens, and local councils in KP are mandated with these functions. To achieve the desired results, it is essential that local government institutions have sufficient autonomy in political, administrative and financial matters. Although the local councils may not be ideally vested with these powers under the local government framework, there are no major restrictions on their functions as local bodies. Some of the powers enjoyed by local councils are:
- Approving by-laws for performance of functions devolved to district governments.
- Approving and levying local taxes
- Developing and approving long and short term development schemes for the local area.
- Enforce municipal laws.
- Prepare budgets and collect taxes, fines and penalties provided under the law.
Local councils are also responsible for providing and maintaining infrastructure and civic amenities, implementing development plans in the social sector and for performing regulatory functions.
- Reserved Seats for Special Interest Groups
The electoral systems at all levels of local government in KPK have seats reserved for women, peasants/workers, non-Muslims, and youth, in addition to the general seats. The number of reserved seats in the City Districts/District Councils and Tehsils/Town Councils vary depending on the size of the body and the composition of the local population, but all have at least one reserved seat in each category.
- Budget Allocation
The main objective is to enable citizens to engage proactively with the new local government system. Such indigenous instruments will be a first step in development of local government system.The provincial government had to provide 30 per cent of the annual development programme to the district governments and the village councils.
The Khyber Pakhtunkhwa Local Government Act 2013
It was passed on 31st October 2013and stood out amongst the other provinces for being a much bolder than the same law passed in other provinces. With its fiscal autonomy and considerable transfer of developmental funds (30 %), the KP LG Act 2013 was the most progressive act for being devolving ample share of provincial expenditure to be spent on the local governments.
Replacement of Union Councils (UC) with Village Council (VC) and Neighborhood Council (NC) is another step forward in empowering the local populace in their decision making and promotion of democratic norms in KP. Also, sufficient number of VCs NCs were established by the LG Act, 2019. This paved the way for the participative decision making process in the villages and urban counterparts in that their problems were well addressed and supported by the locally elected officials who were mostly young .
Critical Analysis of the Local Government (Amendment) Act, 2019:
This act was passed by the Provincial Assembly on 29th April, 2019 after amending certain features of the old law. Main features of the act include doing away with the district tier, direct election of Tehsil Chairman and Mayor of the City administration and linkage of Tehsil council with the VC NC councils in a way that Tehsil council will include chairmen of the VCs/NCs. Moreover, alternate dispute resolution mechanism of civil nature has been introduced at the VC NC level which indicated that the priority of the government now shifts towards the resolution of problems of the common people.
A detailed analysis of the amendments in the new act is discussed below one by one;
- Withdrawing the devolved departments
In the Local Govt. Act, 2013, 24 departments were devolved to the local governments from provincial government. Later, six departments were withdrawn. In the amended act, ten more departments were withdrawn, further reducing the number. It was because the lack of timely distribution of funds to the districts as well as absence of rules. Where rules were present, procedures took time for local councilors to get acclimated with them making it unworkable on different fronts.
- Abolishment of district level
District level has been done away with which makes the Tehsil/town local governments come under the new arrangement posing risk to the coordination between the bureaucracy which will still report to the district administration, and local government representatives. Funds flow would be another issue in the new setup because there is still a lot of dependence on the district administration and other officials in the district.
- Tehsil/City Local Government
In the new system, Tehsil Chairman is the head of the Tehsil Local Government and assisted by the Tehsil Administration including TMO. He/she will be elected directly on party basis on adult franchise with the population of that Tehsil as voters. Powers of the Tehsil Chairman are not that satisfactory as he can only recommend, support and coordinate even regarding matters fall in their authority. For example they can recommend disciplinary action but cannot take direct action which makes the highest office of local government toothless.
Tehsil council members will be the chairmen of VC/NC. There are reserved seats for women, peasants, workers & religious minorities elected indirectly amongst the members of the VC NC getting highest number of votes. This arrangement is better because of the representation of village level representatives in the Tehsil making their voice heard in the highest office of local government. Whereas election of Tehsil chairman/city mayor will be on party basis and directly elected by the concerned adult franchise of the Tehsil but not from amongst the members of the Tehsil council, which will strengthen the democratic norms in the society
- Village &Neighborhood Council
VC/NC were formed after the promulgation of the LG Act, 2013 whereas UC system was abolished by splitting one UC into three. Representation of the council was made on basis of population meaning thereby that some councils had more members than others having less population. With LG Act, 2019, the number of members of VC NC has now been kept at seven (3 General councilors including chairman) and one each for peasant, worker, labor all elected directly on nonparty basis with highest votes obtained makes him/her chairman. They will be performing duties relating to monitoring coordinating and administration.
- District Administration
District administration is represented by the Deputy Commissioner in the Local Govt. Act, 2019 and has coordinating and conflict resolution role with respect to local government. Major flaw here is that the list of functions defined in law for DC pertaining to local government which he is not part of. This places him above all other entities such as elected heads of the local government. Under the functions of the district administration, it is stated that “The Chief Minister may issue directions to a chairman for implementation in public interest and if he fails to comply, the Chief Minister may require the commissioner to take action as situation may necessitate”.
- Local Government economics
Section 35 & 36 of LG Act, 2013 were amended and changes such as presentation of budget within 30 days of the commencement of the financial year whereas earlier it was required that the budget be presented prior to the financial year, so that effective planning and necessary changes could be made to make the budget more representative and disciplined.
- Distribution of funds and financial accounting system
The allocation of funds to the local governments to the tune of 30 percent of the share from the provincial developmental expenditure is indeed a welcoming step by the provincial government but the withholding power of provincial government over the fund in the name of public fund doesn’t augur well for the good governance. Also, two percent of the same fund to be spent on the third party audit by the Local Government Department will have implications on the rural development where remote areas are already facing lack of investment by the provincial government. Moreover, the financial accounting of the funds system will also be replaced by the new one which will hamper the financial accountability of the local government bodies.
- Provincial Finance charge
It regulates procedure and business of the local government budget. However, the powers of the commission have been retained but with slight change in members composition. Earlier, two each of the district Nazims and Tehsils Nazims used to be the members which are now comprising of five chairmen of Tehsil councils from amongst the five geographical zones of the province making it more representative.
- Alternate Dispute Resolution (ADR)
It is a well measured step by the provincial government in that it will help reduce burden on judiciary and will help solve disputes in the VCs & NCs amicably. In merged areas, these councils will be established on subdivision level. It will also ensure speed justice to the aggrieved parties.
- Planning and Development
Planning and development is an important aspect of the LG. in this regard, the planning and development guidelines prepared under the LG Act, 2013 makes it mandatory on the local government to spend certain amount of funds in health and education and other devolved sectors so as to fulfill the basic necessities and ensure basic purpose of service delivery. Other civic amenities such as clean drinking water and sanitation be focused upon both rural and urban areas with regular funds transfer.
- The legal remit of each law is limited in scope.
- Excessively deferential to provincial governments,
- For truly empowered and effective Local Governments in KPs, it is recommended that the existing provincial laws be revised to provide for a fair level of autonomy to Local Governments.
- Provisions giving arbitrary powers to Provincial Governments, such as those which allow discretionary removal of elected representatives of the LG systems, arbitrary powers of inspection, leaving the affairs of the Tehsil Councils to the DC, and the ability of Provincial Governments to exclude areas from the purview of the Acts among others, should be removed.
- For truly representative and effective local governments that are able to manage local affairs and address public issues at the grass roots, far more expanded fiscal powers will need to be al located for elected local governments.
- In addition to strengthening the Constitutional provisions for giving elected local governments the required sanctity as third tier of democratic governance in Pakistan, local government laws must also be amended to redefine and limit the role of Provincial Governments in control of elected local governments. Much like developed democracies with active and effective local governments, LG laws in Pakistan should devolve all key municipal functions, such as water supply, Sanitation, education, health, revenue & estate, etc., to the lowest tier of local governments while providing required powers, control and authority as needed to effectively carry out functions of local governance.
- Local governments cannot be effective without being fiscally empowered. A substantial percentage of funds allocated to the Local Governments via the Provincial Finance Commission Award should be clearly stipulated in law.
- Extending municipal services to Lahor.
- Lahor being predominantly rural needs local government’s intervention to improve farming practices and increase yield.
- Awareness should be created amongst the subjects as well as well as the implementers of this act, about this act. This would augur well for the future of the legislation in-point.