I believe its necessary and in the interest of Sindh to make public the proposals sent to Sindh Government regarding Amendments to Sindh Local Government Ordinance, 1979. Dr. Sikandar Mandhro, Sindh Minister for Law and Parliamentary Affairs, SUBJECT: AMENDMENTS TO SINDH LOCAL GOVERNMENT ORDINANCE, 1979 Reference: Your letter dated 25th July, 2013. Dear Mandhro Sahib, I would like to appreciate the spirit of accommodation of Sindh government for soliciting suggestions/proposals regarding amendments in Sindh Local Government Ordinance, 1979. It will not be out of place to mention that this change of heart in Sindh government has come about after historic and heroic political and legal struggle waged by the people of Sindh to secure the sovereignty and integrity of Sindh against the onslaught of the centre as well as local elements. It would be quite hard to work on all 148 sections and eight schedules of law within two days. However, a sincere effort has been made to assist you in the larger interest of the people of Sindh. I would like to explain the background of this legislation before offering my views on amendments to Sindh Local Government Ordinance, 1979. BACKGROUND It is undeniable fact that on the one hand, centre has usurped the administrative, legislative authority of Sindh by imposing its own administration and police hierarchy and legislating on provincial subjects and on the other, every effort has been made by some local elements to usurp the powers of provincial government in the name of local government. It is the constitutional duty of Sindh government to protect sovereign status of Sindh within the Federation from the onslaught of the centre and those who want to usurp the authority of provincial government in the name of local government. No doubt, the Local government system is sine qua non for strengthening the very democratic polity of any nation but it has never been in contradiction with its creator, the provincial government and Assembly. The Federal and provincial governments have been created under the constitution and they have been entrusted with powers and responsibilities. They can’t abdicate the responsibility of governing the province through provincial government and give such authority and responsibility to the local governments which is commensurate with municipal functions. In fact, the provincial government, under the constitution is government of all powers whereas Federal government exercises only those powers which are enumerated in Federal Legislative List Part I. Federal government is a government of enumerated powers listed in the Federal Legislative list part I whereas provincial government is a government of all powers and possesses all original and residual powers under article 142 of the constitution. It is further mentioned that Sindh Peoples Local Government Act, 2012 was challenged by me in the Honorable Supreme Court of Pakistan on 2-11-2012 on this very premise that the constitutional authority of the provincial government was snatched in the garb of local government and the said Act was ultra vires of the constitution. The Honorable Supreme Court had stayed the transfer of provincial government departments to local councils on November, 8, 2012. It heard the case regularly for three and half months and when it was about to give its decision, Sindh Peoples Local Government Act, 2012 was repealed by the Sindh government in order to abort the decision of the apex court. During the proceedings in Supreme Court, it was amply proved that at least 35 sections of the repealed law were ultra vires of articles 137, 138, 142, 118, 121, 140A and articles 8, 9, 32, 37 of the constitution. ARTICLE 140A No doubt, article 140A of the constitution enjoins the provinces to establish a local government system and devolve political, administrative and fiscal responsibility and authority to the elected representatives of local Councils but its very meaning was distorted. The correct interpretation of this article in the light of our historical, legal and constitutional mechanism and Indian constitution is very simple. It has two parts: First, it enjoins that the provincial government shall establish a local government system, secondly, devolve political, administrative and fiscal authority and responsibility to the elected representatives of the councils. This article has never meant that provincial government will devolve its own departments/ subjects to the local government but devolve upon local governments administrative, fiscal and political authority in their own sphere to govern themselves The 1979 law usurps the authority and responsibility of the local governments by subduing them to the controlling authority of provincial government, Commissioners and Deputy Commissions under section 3(14) and 53 of the Ordinance. The conscious use of word authority and responsibility instead of power in article 140A shows that authority and responsibility of local governments was usurped by Dictator General Zia in Local government Ordinance, 1979. This article was added to the constitution in order to restore/devolve their own authority and responsibility to the local governments instead of devolving the provincial subjects/departments to local councils which is prohibited under article 129, 130, 137, 138 142, 240, and 242 of the constitution. Article 138 says: Conferring of Functions on sub-ordinate authorities: on the recommendation of the provincial government, the provincial Assembly may by law confer functions upon officers or authorities sub-ordinate to the provincial government. This clearly shows that Sindh government could only confer functions upon officers and sub-ordinate authorities and not its powers or departments/subjects. Furthermore, article 140A of the constitution was added in the constitution by Dictator Mushraff and it has to be construed very strictly as Honorable Supreme Court of Pakistan has already declared in Al-Jehad Trust case that article 203C of the constitution shall be construed strictly as it was added in the constitution by a military dictator. Local government scheme has also been included in Indian Constitution in part IX and IXA and the powers of local councils have been given in schedules eleventh and twelfth respectively. It would be surprising to note that Indian constitution has also divided local councils into rural and urban councils and rural councils have been given more functions. No provincial government of India has devolved its provincial departments to local government rather certain functions of provincial government departments have been entrusted to them. In Pakistan, local governments have their own independent Sindh Local Councils unified service (SCUG) whereas in India Additional Deputy Commissioner handles administrative issues of local government. In order to bring meaningful amendments to the 1979 local government Ordinance, it could be divided in three parts: (1) Composition of the Councils (2) Financial arrangement for the Councils (3) the authority and responsibility to be given to the councils COMPOSITION OF THE COUNCILS Composition of the councils under the 1979 Ordinance has been given in chapters-2 and 3 of the Local Government Ordinance, 1979. It could be read with Schedule I. The composition of the Councils is perfectly ideal as separate local government councils are envisaged for urban and rural areas. Rural areas are governed by District Councils and Union Councils and urban areas through Town Committees, Municipal Committees, Municipal Corporations and Metropolitan Corporation. This is the arrangement envisaged from late 19th century to this day both in India and Pakistan with different nomenclatures. It’s important to note that both the urban and rural local councils were regulated by separate laws in the past. In Sindh, District Municipal Act, 1901 regulated urban councils whereas Sindh Local Boards Act, 1923 governed rural areas. In 1933, Karachi Municipal Act was enacted in order to govern Karachi effectively. Municipal Administration Act, 1960 replaced Sindh Municipal Act, 1901, Sindh Municipal Boroughs Act, 1925 and Karachi Municipal Act, 1933. It was in 1972 that President of Pakistan, Zulfikar Ali Bhutto combined both urban and rural councils under one law and envisaged six Peoples Municipalities and Metropolitan Corporation for Karachi. Similarly, her great daughter followed in the footsteps of her father and created five District Municipal Corporations in 1996 by amending 1979 Ordinance. This was a very healthy development and it must be continued for the homogenous law for the province. Under General Mushraff’s regime, Sind Local government Ordinance, 2001 was enacted which did away with the separate system for urban and rural councils in the name of district governments, declared that local government was separate and independent entity and transferred powers of provincial government to them. PPP government which came to power in 2008 general elections continued with the same but repealed it in 2011. Subsequently, it enacted infamous Sindh Peoples Local Government Act, 2012 and abolished five District Municipal Corporations of Karachi and centralized municipal administration of Karachi entrusting widespread powers to Metropolitan Corporation, Karachi. In 1972 law, it had empowered six Peoples municipalities in Karachi and gave nominal powers of central planning to Metropolitan Corporation, Karachi. In order to streamline the local government system, the very basis for the PPP government should be the law enacted by PPP founder Zulfikar Ali Bhutto and subsequently amended in the same manner by his daughter Benazir Bhutto, also head of the PPP. On this touchstone, the composition of Councils for both urban and rural areas may be kept intact as provided in chapters 2 and 3 of the Sindh Local government Ordinance, 1979 except Karachi Metropolitan Corporation. . However, representation of women, workers and minorities may be increased by amending section 14 of the Ordinance. KARACHI CO-ORDINATION COUNCIL As there are five District Municipal Corporations in Karachi, the Karachi Metropolitan Corporation is simply duplication. It must be replaced with a body called Karachi Co-Ordination Council elected from five District Municipal Corporations with the responsibility of central planning and co-ordination. In the presence of five district Municipal Corporations, retaining Karachi Metropolitan Corporation is not only odd but it relegates the role of district Municipal Corporations. LOCAL GOVERNMENT COMMISSION It has been noted that for effective dispute resolution as well as co-ordination, Local government Commission may be retained and for this purpose omitted sections 89 and 90 may be utilized. Local Government Commission may be entrusted with same powers as provided formerly. ELECTIONS TO THE COUNCILS: It is to be noted that under article 140A of the constitution, Election Commission of Pakistan has been authorized to conduct elections of the local governments and chapter V of the 1979 Ordinance provides that elections shall be conducted by Provincial Election Authority. This chapter has to be omitted from the Ordinance. 2. FINANCIAL ARRANGMENT Provincial Local Councils Fund As local councils must be financially viable to engage in local development and deliver municipal services to people, it is, therefore, necessary that government of Sindh should specially create a separate Sindh Local Councils Fund which should be distributed by the Local government department among various councils under a just and fair formula. For this purpose, section 68 of the Local Government Ordinance may be amended and creation of Sindh Local Council Fund may be provided. It may be mentioned that under Sindh Peoples Local Government, Act, 2012 as well as Sindh Local Government Ordinance, 2001 Provincial Consolidated Fund was broken unconstitutionally and Provincial Finance Commission was created which was violation of articles 118 and 121 of the constitution. Nowhere in whole of sub-continent including India and Pakistan Provincial Consolidated Fund has been distributed between provincial and local governments. Although Indian Constitution creates Provincial Finance Commissions but Provincial Consolidated fund has not been broken and it’s solely the responsibility of the provincial government to provide funds for the local councils. Punjab, Khyber Pakhtunkhawa and Balochistan have followed the same pattern and Provincial consolidated fund has been kept intact. This should be followed in letter and spirit. TAXATION Chapter IX of the Ordinance, 79 and schedule V provide taxation powers of the local councils. Under section 61 of the Ordinance, government is empowered to frame model tax schedules. Local councils, instead of being directed on tax issues, may be allowed to realize tax and sections 60, 61 and 62 may be amended to make the councils autonomous in realizing tax. The powers of the District Municipal corporations have been curtailed in tax matters under section 60 which is discriminatory and they may be given same powers. It’s necessary that taxation powers of the councils should be enhanced in order to make them financially independent and financial authority may be devolved upon them to utilize the funds kept under their disposal. However, stringent conditions of pre as well as post audit should be carried out as mandated under article 169 of the constitution. Since, octri tax was abolished by the provincial governments in 1997 on the undertaking of the Federal government that it would pay provincial governments 2.5 percent of the General Sales Tax, yet Federal government backed out of this promise under NFC award of 2010 and transferred this burden to provincial governments. This time Sindh government will be burdened with funding of the local governments without any support of the Federal government, therefore it would be prudent for the Sindh government to allow councils to levy octri. PROPERTY TAX As most of the taxation powers are available with Federal government, provincial government has nominal tax base. For funding the local Councils, the provincial government should make effective recovery of property tax and the amount may be transferred to Sindh Local Councils Fund for distribution among the councils. For this purpose section 68A may be added in chapter X of the Sindh Local Government Ordinance, 1979. 3. FUNCTIONS OF THE COUNCILS Functions of Metropolitan Corporations, District Municipal Corporations have been given in Part 1 and part 1A of Schedule II of the Sindh Local Government Ordinance 1979 respectively. Both the compulsory and optional functions of Municipal Corporations, Municipal Committees and Town Committees have been given in part II of Schedule II. The functions of the District Council and Union Councils have been given in Schedule III and IV of the Ordinance. However, these functions cannot be performed independently if the sword of Damocles of provincial government, Commissioners and Deputy Commissioners in the shape of Controlling authority hangs over councils. In order to make them autonomous the provision of controlling authority under section 3(14) 53, 55 and 56 may be done away with. These sections may be omitted. The bare perusal of the functions of the rural and urban councils under the 1979 law shows that both the councils have vast powers. They have their own service under chapter XI. In fact, apart from the powers of municipal services, they have been given powers to establish hospitals and libraries, dispensaries, public roads, bridges, culverts, gardens, playgrounds, removal of encroachments, games and sports, relief, maintenance of schools etc. But the councils have to perform these tasks within their own sphere of responsibility. They need not be transferred various departments of Sindh government for undertaking these huge tasks. ROLE OF URBAN AND RURAL COUNCILS The basic job of the rural and urban councils under various laws from late 19th century has been to provide municipal services and engage in ancillary development activities. In fact, municipal function is a huge function which could only be performed by these institutions. Unfortunately, the councils have never performed effectively their basic responsibility of providing municipal services rather they have miserably failed to provide even clean drinking water, drainage system and sanitation in the cities. Residents of Karachi, Sukkur, Hyderabad, Larkana, Nawabshah, Mirpurkhas and other cities and towns in Sindh have been the worst victim in the hands of urban and rural councils as they miserably failed to perform their duty. More than sixty percent of Karachi residents have no drinking water facility; drainage system of the city is in doldrums, planning of the city is no more regulated. Similarly, in other cities and towns the conditions are worst. Had these councils performed their basic job of providing municipal Services, they could have qualified for additional responsibilities. But instead of performing their own job, they are shamelessly demanding additional responsibilities. They want to encroach on the constitutional powers of Sindh government. Under schedule II to IV the Local councils have more than enough powers to perform their job but in 2001 and 2012, insane rulers made mockery of the whole system. They superimposed local governments on district administration and replaced provincial administration with Local government. This has never been witnessed in whole subcontinent. This was aimed at controlling the provincial administration and government in the garb of so-called devolution. The Constitution never allows devolution of provincial government subjects to local councils. Under 2012 law, Metropolitan corporations were entrusted with the administration of provincial government departments which has been unheard anywhere. In view of the above, you are requested to kindly amend the Sindh Local Government Ordinance 1979 in the above manner and any further consultation in this regard will be welcomed in the larger interest of Sindh and its people. Sincerely, Zamir Ghumro Barrister-at-law
Posted on: Thu, 01 Aug 2013 14:10:14 +0000
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