ISLAMABAD: The Punjab government suffered a setback on Thursday when the Supreme Court ordered restoration of local government institutions in the province after declaring their dissolution as unconstitutional.

“For reasons to be recorded later, Section 3 of the Punjab Local Government Act 2019 (PLGA) whereby the local bodies were dissolved is declared ultra vires of the Constitution and the local governments as were existing in Punjab prior to the promulgation of the Section 3 stand restored and it shall complete its term in accordance with the law,” ruled Chief Justice Gulzar Ahmed.

A three-judge SC bench headed by chief justice had taken up a petition moved by Asad Ali Khan through his counsel Mohammad Nawazish Ali Pirzada challenging the dissolution of the local government (LG) institutions with a plea that the elected members were entitled to complete their constitutional term, will expire on Dec 31, 2021.

Majority of the members of LG institutions in Punjab belonged to the Pakistan Muslim League-Nawaz, a senior counsel conceded, adding that political activities would pick up pace at least for now at the local level.

Apex court says absence of local bodies amounts to violation of Article 140-A of Constitution

The same bench adjourned the hearing on a separate petition moved by the Muttahida Qaumi Movement-Pakistan seeking empowerment and autonomy of the LG institutions in Sindh.

The SC decision on the Punjab local government came when Attorney General Khalid Jawed Khan and Additional Attorney General Sohail Mehmood opposed the dissolution of elected governments through a statutory dispensation and equated Section 3 with erstwhile Article 58(2)(b) of the Constitution under which the elected governments were sent packing by former presidents. They, however, requested the court to give time to the provincial government to conduct LG elections afresh.

However, the Supreme Court was visibly disturbed over the fact that Punjab had been without local bodies for the last 21 months which amounted to violation of Article 140-A of the Constitution.

The case came up for hearing when on March 15 Justice Qazi Faez Isa, while hearing a case of local government in Khyber Pakhtunkhwa, had ordered the SC registrar to immediately solicit the order of the chief justice to have it fixed for hearing either before the bench headed by Justice Mushir Alam, which heard the matter earlier, or as directed by the chief justice.

Justice Isa had then also noted that Section 3(2) of the PLGA 2019 stipulated fresh local government elections within one year — the period which was later extended to 21 months by PLGA 2020. Thus one year expired on May 3, 2020 and the extended 21 months on Feb 3, 2021, which suggested that the Act, whereby elected representatives of the people were sent home, was itself violated by not holding fresh elections, thus amounting to mala fide on the part of the government of Punjab, Justice Isa had held.

Justice Qazi Isa had also held that the present petition was very critical because it had disenfranchised the people as a result of which 56,000 elected representatives were sent home and were substituted by bureaucrats.

On Thursday, the chief justice asked Additional Advocate General for Punjab Qasim Ali Nawaz Chowhan about the justification for keeping the people of the province away from their elected representatives.

The court was informed that the Covid-19 pandemic was one of the reasons for the delay in holding the LG elections.

The chief justice observed that the provincial government could make new laws or the powers of these institutions could be restructured or their fundamental structure changed, but the local government institutions could not be dissolved just like that.

The apex court wondered whether it was not an anomaly that the government wanted to take the power to grassroots level but itself dissolved the LG institutions without any rhyme or reason.

In his petition, Asad Ali Khan had pleaded that the PLGA 2019 had been passed with the express intention to undermine the constitutional provisions of Articles 32 and 140-A of the Constitution and the very passing of the Act had brought these articles in abeyance and in letter and spirit suspended.

The petition regretted that the changes introduced through the PLGA 2019 could have been introduced through an amendment to the Punjab Local Government Act 2013 and if the aim of the government was to ensure public welfare at grassroots level, the same could be done through chosen representatives already present. It said the aim intending through Section 3 of the PLGA seemed to be enacted with a specific purpose.

The petition wondered whether the legislature could devise a law which undermined, collided or put in abeyance the mandatory provision of the Constitution and whether a law could pass the test of constitutionality if it brought undue advantage to the governing party in the legislature.

Published in Dawn, March 26th, 2021