IN 1868, Iowa Supreme Court Judge John F. Dillon articulated America’s legal doctrine on local government — Dillon’s rule that “Municipal corporations owe their origin to, and derive their power and rights wholly from the state [provincial] legislature…. As it creates, so may it destroy. If it may destroy, it may abridge and control.” By contrast in 1871, the Michigan Supreme Court Judge Thomas M. Cooley articulated the Cooley Doctrine that “[L]ocal government is a matter of absolute right and the state cannot take it away.”

The matter in Lahore’s signal-free corridor case is whether provincial development authorities can be assigned functions of Metropolitan Corporations by the provincial legislature. The case is pivotal not because it will decide the fate of a seven-kilometre road but because it will establish our constitutional doctrine on local government, an issue that is as unsettled today in Pakistan as it was in late 19th-century America.

This case is not about whether the court has oversight over the building of a road. Nor is it to adjudicate a dispute between so-called bulwarks of development and environmental naysayers. It is about whether Pakistan’s democratic local governments should be assigned a core set of functions that enable them to act as meaningful institutions of self-government. The Supreme Court’s view in appeal will determine the future of Pakistan’s federalism.

Historically provincial governments have taken Justice Dillon’s words to heart that local governments are “mere tenants-at-will of their respective state legislatures… [whose functions could be] … eliminated at the stroke of a pen,” and they have repeatedly ensured their elimination. The honourable LHC full bench in the signal-free case (2015) has, in contrast, ruled that local governments are constitutionally protected institutions of self government.

There has never been a greater need for building vibrant democratic municipal institutions as there is today.

These questions are important because it is well established that political institutions and not the magnitude of infrastructural spending per se is a fundamental determinant of development. Equating development narrowly with the building of roads is to indulge in Machiavellian obfuscation. We must realise that urbanisation and rising population densities have eroded the edifice of the post-colonial local state. Hence, there has never been a greater need for building vibrant democratic municipal institutions as there is today when clean drinking water, sanitation, land use, zoning regulations and public transport are the most important services demanded by the citizenry. This is as true of rural areas as it is of the cities.

Local democratic institutions are essential for strengthening national democracy. In many contexts, national political parties have used local democracy to provide strong foundations for national democracy by strengthening their grass-roots ties and deepening the pool of political leadership. Prominent examples include the Workers Party in Brazil and the Justice Party in Turkey. Mr Erdogan’s strong grass-roots ties, a consequence of local governments, provided the most effective shield against military adventurism.

It is vital that the leadership of political parties realises the political dividends of building strong grass-roots ties through local democracy. Their own experience reveals that the political costs of weak grass-roots ties are exorbitant. One would imagine that this lesson has been learnt. If not, Prof Przeworski’s research on new democracies flashes a warning that half fail within 10 years and revert to a non-democratic form.

The reference point for the debate is Article 140-A of the Constitution. The article was originally enacted in Gen Musharraf’s regime. Its express purpose was to provide constitutional protection to the LGOs (2001). The fact that the framers of the 18th Amendment retained this article when they purged many others from the same period tells us that our parliamentarians chose to establish the principle of ‘constitutional protection’ for local governments.

They also committed to the ‘devolution’ of “political, administrative and financial responsibility to the elected representatives of local government” (Article 140-A). Item 10 of the Charter of Democracy, the magna carta underlying the 18th Amendment, clarifies the notion of devolution that the framers of the Amendment had in mind “…constitutional protection will be given to the local bodies to make them autonomous and answerable to their respective assemblies as well as to the people”. This interpretation has been upheld by the honourable Supreme Court in Raja Rabnawaz versus GOP. Therefore, our parliamentarians and courts have recognised these governments as institutions of self-government.

PML-N’s 2013 manifesto concurs: “the imperative of democratic governance can be fulfilled only through further decentralisation by devolving administrative and financial powers to elected representatives at district and lower levels”. However, to act as institutions of self-government they have to be assigned a meaningful set of core functions that the province must not abridge. In comparable international jurisdictions these are municipal functions. Any endeavour to strip these institutions of core municipal functions is to truncate them; to truncate them is to take away their breath of life, which will diminish the political rights of the citizenry.

In short, our parliamentarians have spoken and enacted the principle of constitutionally protected democratic local self-government. Ironically, the provincial government’s submission that Article 140-A doesn’t place any limitation on provincial control over local functions is akin to Dillon’s Rule that “our local governments are their tenants-at-will”! They would be wise to take heed from Dillon’s own words to US state legislators that truncating local governments would be “so great a folly and so great a wrong.”

The writer is senior research fellow, Institute of Development and Economic Alternatives and associate professor of economics, Lahore University of Management Sciences. This article draws on the written submission made by the author as amicus curiae in the case. The LHC 2015 judgment case can be found at: http://sys.lhc.gov.pk/appjudgments/2015LHC2551.pdf

The writer’s note as amicus can be found at: http://ideaspak.org/dr-ali-cheema-amicus-curiae-to-the-full-bench-of-the-lahore-high-court/

Published in Dawn, May 24th, 2015

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