ISLAMABAD: The Supreme Court held that Article 140A of the Constitution casts a mandatory obligation on the provinces to establish Local Government possessing meaningful authority and responsibility in the political arena, administrative and financial matters.
A three-judge bench, headed by Chief Justice Gulzar Ahmed, on Tuesday, announced its reserved verdict on a Muttahida Qaumi Movement-Pakistan’s petition seeking empowerment and autonomy for Local Government institutions in Sindh.
The bench on October 26, 2020 had reserved its judgment. The MQM-P, had challenged the Sindh Local Government Act (SLGA), 2013 in the Supreme Court. Declare section 3 of the KDA (Revival and Amending) Act, 2016 and similar dispensations in other statues to be completely without jurisdiction, illegal, unconstitutional, void ab initio and of no legal effect, while striking down the same: b. Declare sections 74 and 75 of the Sindh Local Government Act, 2013 and section 18 of the Sindh Buildings Control Ordinance, 1979 to be completely without jurisdiction, illegal, unconstitutional, void ab initio and of no legal effect
The judgment noted that the elected Local Government are presently not in existence in the Sindh province and the provincial government through its agencies is performing their duties and functions.
It said in the vacuum resulting from the absence of an elected Local Government in Sindh, the initiation, approval and execution of any of the duties and functions of the elected local governments are allowed to be carried out by the provincial government and no new project following within the domain of the elected local government shall be undertaken by the provincial government or its agency without prior consultation and consent unless withheld without justified reasons, as the case may be of the elected local government in respect of such project.
The apex court held that it is the duty of a province through the Provincial Government and the Provincial Assembly to purposefully empower Local Governments in the province, so as to comply with their mandatory obligation under Article 140A of the Constitution.
The powers in relation to master plan and spatial planning, which historically belongs to the elected local government have been superimposed with similar functions vesting in the provincial laws.
“To the extent of conflict in the exercise of their respective powers and functions by the elected local government and the statutory authorities or on account of legal provisions having overriding effect, Article 140A of the Constitution confers primacy upon the authority vesting in an elected local government over the powers conferred by law on the provincial government or agency thereof.”
The provincial government in any case is “under a duty to establish harmonious working relationship with an elected local government” wherein, respect is accorded to the views and decisions of the latter.
The laws made by the provincial government i.e. the Sindh Building Control Ordinance, 1979, KDA Order No5 of 1957, Malir Development Authority Act, 1993, Liyari Development Authority Act, 1993, Karachi Water and Sewerage Board Act, 1996, Hyderabad Development Authority Act, 1976, Sehwan Development Authority Act, 1993, Larkana Development Authority Act, 1994, any dispensation pertaining to the Board of Revenue or the Master Plan Department or any other Development Authority in the province of Sindh and the Sindh Mass Transit Authority Act, 2014, the Sindh Food Authority Act, 2016, the Sindh Environmental Protection Agency Act, 2014, purporting to override and conflicting action taken by an elected local government are held to be against the scheme of the Constitution and the provincial government is directed to bring all those laws in accord with the mandate of Article 140A of the Constitution.
The judgment said that the Sindh government shall ensure that all local governments in the province of Sindh do get their share in the divisible pool of funds by implementing the Provincial Financial Commission Award and also to ensure that no arrears in this regard are accumulated and if, there are arrears, the same are released.
It declared Sections 74 and 75(1) of the Act of 2013 are against the principle enshrined in the Objectives Resolution and the fundamental rights enacted in Articles 9, 14, and 25 of the Constitution, and are also contrary to and in direct conflict with Article 140A of the Constitution and thus, ultra vires and struck down.
Copyright Business Recorder, 2022
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