IN its recent judgement, ‘MQM and others vs Pakistan’, the Supreme Court has declared provincial encroachment on “local government functions” contrary to the Constitution.

The matter before the court were provisions of the Sindh Local Government Act, 2013 (SLGA 2013) which give discretionary powers to the Sindh government that enable it to assume control of any institution or function of local government (Section 74) and to assign any local government (LG) function to an agency of the province (Section 75).

This judgement has overturned the political view of the PPP-led Sindh government that is best articulated by Dillon’s Rule, a doctrine in American municipal law. According to Dillon’s doctrine, LGs derive their powers and rights wholly from the provincial legislature. As the assembly breathes life into LGs, it may also abridge them at the stroke of a pen. It presumes that all sub-national functions lie with the province and sees their devolution as an act of provincial largesse, thus viewing LGs as being inherently limited.

The application of Dillon’s doctrine has led to the usurpation of LG functions in Sindh through a host of laws pertaining to provincial agencies and through discretionary provisions in SLGA 2013. It led the last PML-N government in Punjab to reassign core municipal functions to provincial authorities and companies. It resulted in the current ruling alliance’s premature dissolution of elected LGs in Punjab in 2019. Discretionary powers have been repeatedly used by provinces to incessantly delay local elections and run these institutions through unelected administrators.

Local governments need to be protected against encroachments designed to weaken them as effective institutions of representation.

These examples are manifestations of political capture through the exercise of discretionary provincial powers. Discretion is buttressed by the ability of provinces to radically alter the entire structure of local governance through a simple majority. While Article 140-A of the Constitution has constrained provinces from outrightly abolishing LGs, the current political equilibrium is enabling provincial executives to kill local government with a thousand cuts. The result is limited LGs that are nothing but empty shells, even though more than a decade has passed since they were constitutionally recognised as a third tier of government.

In ‘Imrana Tiwana vs Government of Punjab’, justices Mansoor Ali Shah, Ayesha Malik and Yawar Ali of the Lahore High Court had recognised LGs as having a core set of functions and broad powers of self-government. This is akin to the Home Rule doctrine in American municipal law. Consequently, this 2015 judgement placed limitations on the exercise of provincial discretionary powers. As amicus to the Lahore High Court, I had argued at the time that local government will lack meaning unless it is recognised as having a core set of functions that the province cannot alter at will. In appeal, the Supreme Court had disagreed with the high court and chose to leave the assignment of local functions to the discretion of the provincial legislature, thereby reinforcing the presumption in favour of Dillon’s doctrine.

In ‘MQM and others vs Pakistan’, the Supreme Court has overturned the presumption in favour of Dillon’s doctrine by implicitly invoking the Home Rule doctrine. It has done this by explicitly recognising LGs as a third tier of government and by recognising a core set of functions as belonging to it (paragraphs 34-35 of the judgement). It has also declared that any encroachment by the province on these functions is derogatory to the rights of citizens.

The Supreme Court is responding to the growing political demand for empowered LGs from political parties and civil society. This demand is manifesting itself in legal actions that are helping to define a jurisprudence that is increasingly committed to empowering LGs. In Sindh, successful legal action was brought by MQM, PTI, Jamaat-i-Islami and the Pak Sarzameen Party who declared the recent amendments to be a ‘black law’. The recent dissolution of LGs in Punjab was successfully contested in court by local politicians belonging to the PML-N who declared the dissolution to be a ‘black act’. The legal action against the Punjab government in 2015 was brought by civil society groups. This growing political demand and the evolving jurisprudence holds promise for empowering LGs in Pakistan.

However, the rights of LGs need to be protected in the following domains for empowered institutions envisaged by Home Rule to take root. Along with granting these institutions functional autonomy, LGs need to have powers to appoint and change their senior administrators. Currently, no LG law in the country recognises these powers. Senior LG administrators are posted and transferred by the province, which makes them answerable to the provincial executive and not to local governments. This is an important lever of provincial interference that hollows out LGs as institutions of self-government.

LGs continue to be denied the certainty of rule-based fiscal transfers through provincial finance commissions. Except for Punjab, no LG law requires the province to transfer a minimum share of funds to finance the functions devolved to local governments. This makes LGs entirely dependent on the largesse of the province. The right of LGs to adequate and predictable finances needs to be protected if they are to function as effective institutions.

Finally, LGs need to be protected against encroachments designed to weaken them as effective institutions of representation. Relying on ‘Raja Rabnawaz vs Pakistan’, the Supreme Court, in its recent judgement, has held that a directly elected representative assembly or council with budgetary and rule-making powers is the main trait of local self-government. Reforms designed to weaken these powers of councils or to make them an executive’s rubber stamp or deny citizens effective representation in councils violates this main trait and are, as such, derogatory to the rights of citizens.

Is it not time for provinces to embrace the Supreme Court’s use of the Home Rule doctrine and amend their laws to create empowered local self-government?

The writer is associated professor of economics at Lums.

Published in Dawn, February 24th, 2022