ISLAMABAD: The Supreme Court on Monday censured Punjab Governor Chaudhry Mohammad Sarwar for promulgating the Punjab Local Government Ordinance (Amendment) 2021 on Feb 3, just a day after the prorogation of the provincial assembly.

“Is the legislature of Punjab incompetent or the Punjab governor is wiser than 374 members of the provincial assembly?” asked Justice Qazi Faez Isa, who was heading a two-judge bench which took up a set of petitions, mainly by the administrator of the Municipal Corporation of Peshawar, on the local government (LG) system. Justice Sardar Tariq Masood is the other member of the bench.

The court was visibly disturbed over the issuance of the ordinance in which a number of changes have been made in the earlier law. The promulgation of the 70-page ordinance has interrupted an earlier plan of the Election Commission of Pakistan (ECP) to hold the local government elections in Punjab in three stages — June 20, July 17 and Aug 8 — and that of cantonment boards from April 8 to May 29.

Advocate Afnan Kundi, representing the ECP, had told the court that the ordinance was issued without taking the commission into confidence.

Expresses resentment over adjournment of Feb 17 CCI meeting on census results

However, Additional Advocate General for Punjab Qasim Chohan claimed that the ECP had been taken into confidence during a meeting held before the issuance of the ordinance.

Interestingly, the ordinance was promulgated a day before the Supreme Court had to take up the matter on Feb 4.

“Is the governor a viceroy or a chosen representative or whether he had been appointed by the Church of England?” Justice Isa asked, wondering what extraordinary circumstances necessitated the issuance of the ordinance and why the entire Punjab Assembly was bypassed only to please an individual.

In its order, the Supreme Court asked if the ordinance was approved by the provincial cabinet and regretted that the ordinance was issued in clear contravention of the Constitution two days after prorogation of the provincial assembly, which reflected that the ordinance was “ready in the pocket of the provincial government”.

“This is a clear case of mala fide,” Justice Isa said, adding that no reason had been cited to explain the necessity to take such immediate steps. He read out the preamble to the Constitution which states that sovereignty belongs to Allah, which should be exercised through the chosen representative of the people, and observed that the promulgation of the ordinance in fact was a no-confidence as the legislation was done always through chosen representatives.

“Today bureaucracy is running the affairs of the local government,” Justice Isa regretted, adding the entire 120 million people of the province had been disenfranchised merely because the opposition cannot be tolerated. Had the opposition been involved, a better legislation could have emerged through the collective wisdom, he added.

“You want repeat of the same tragedy in Punjab which happened in 1971 when the East wing of the country was dismembered only because the people were disenfranchised for the lust of power,” Justice Isa regretted, adding that disenfranchising was an attack on the people of Pakistan and against the parliamentary democracy.

“What service the governor did for the good of the people to deserve the high office of the governorship?” Justice Isa wondered, regretting that it had become crystal clear that the government did not want to hold local government elections in Punjab.

“We in fact are playing with the Constitution,” Justice Isa said, adding that someone should tell the governor that he could not issue political statements and partake in political activities. The ECP also enjoyed the same power like the Supreme Court, he said.

The Supreme Court was also not happy over the adjournment of the Feb 17 meeting of the Council for the Common Interests (CCI) which had to take up and either approve or disapprove the census results after which delimitation of constituencies of the LG system had to follow.

The court expressed surprise that the 2017 census results had not been approved but expressed the hope that the CCI being a constitutional body was aware of its duties towards people and would do the needful without any further adjournment.

The court was informed that the next meeting was scheduled for March 24.

The court also expressed surprise that the Punjab government had attached along with its reply the manifesto of a political party which asks for devolving the rights to people at the lowest tier.

Justice Isa observed that governments never represented manifesto of any political party rather worked within the domain of the law and the Constitution.

Advocate Nawazish Pirzada, the counsel for petitioner Asad Ali Khan, reminded that the dissolution of LG institutions under the Punjab Local Government Act 2013 was already sub judice before the Supreme Court and a detailed report containing reasons for the dissolution under Section 3 of the PLGA-2019 had already been filed and was on record.

On Oct 26 last year, a three-judge SC bench headed by Chief Justice Gulzar Ahmed had reserved its ruling on a plea moved by the Muttahida Qaumi Movement-Pakistan seeking empowerment and autonomy of the LG institutions in Sindh.

The bench had also decided to hear a similar petition moved by the Pakistan Tehreek-i-Insaf seeking directives for the Sindh government to devolve powers to the LG institutions under Articles 140-A, 3, 4, 9, 14, 16, 17, 19, 19A and 25 of the Constitution, as well as the petition of Asad Ali Khan requesting the apex court to declare as illegal the premature dissolution of the LG institutions in Punjab by promulgating PLGA-2019 before they could complete their constitutional tenure on Dec 31, 2021.

The bench expressed displeasure at the court registrar and observed that he should fix important cases as early as possible since the delay in deciding cases undermined the credibility of the Supreme Court. The court requested the chief justice to order early constitution of benches to decide pending petitions on the local government system.

Published in Dawn, March 16th, 2021