This Article was written some time back in 2004. Some amendments have been adopted in the Local Governmental Laws. With the new elections in sight for 2007, the article is being posted without any changes. The issue for the common man in Pakistan, is how do we react to democracy, and the rule of law; and more important, what is our attitude in the face of rule of law? This article does not seek to answer either question, but limits itself to conflicts in the composition of Paksitan’s legal order and the evolving institution of self governance. In this backdrop it does provide another perspective from which the issue of democracy may looked at.
“Article 140-A: – Local Government. – Each province shall, by law, establish a local government system and devolve political, administrative, and financial responsibility and authority to the elected representatives of the local government.”
Constitution of Pakistan
Democracy and the societies of the sub-continent, or South Asia, experience a unique relationship, evasive, sometimes, at odds, more often, alienated. To me the association is that of strange bedfellows. The scholars, academicians, politicians, judges, lawyers, each in his domain have attempted to find the definition of democracy in isolation, rather than, acceding to, and adopting the universal concepts, and thereby applying the substance and content of the institution. India, to a large extent, is an exception, but the teething problems remain, at times revealing the gaps, which have yet to be filled up.
From a common man’s perspective, South Asia is witnessing a collapse of law and order, micro economic disorder, corruption, and nepotism; insensitive, at times, even numb, bureaucratic approach continues to compound the tribulations of the common man. Denial of Access to Justice has resulted in isolation, and a visible polarity has come to stay, between the elite and people, in a region which boasts of ‘democracy’ as the means to independence.
In 1947, Pakistan as other South Asian countries had all the promise to develop into an egalitarian, liberal, progressive nation. During the transitory period of the Partition, it had inherited, a sound administrative system, good physical infrastructure, and added to that, a people brought up in democratic traditions; however we may choose to attribute flaws to it. Fifty seven years later we are still struggling with an electoral system, which produces anything but participatory democratic institutions. The successive governments failed to focus their attention on institutional development; as a consequence the few existing institutions which were to be the anchor of a democratic society were politicized, corrupted, and weakened, thus becoming dysfunctional.
On 7th October, 1958 with the advent of Martial Law, the first ever constitution framed and adopted in 1956 was abrogated, and Pakistan came to be ruled under Proclamation of 7th October, 1958. Thereafter, the State continues to be governed through authoritarianism, irrespective, of the claims of the political parties, opposition, or pressure groups within the society, on the issue of democracy, which is discussed later in this article.
The emergence of the Positive Law as the role player in the materializing norms of Pakistan’s society, and its manifestations, fascinates me. Prof. H.L.A. Hart’s Analytical Positivism, and his inclusion of ‘the minimum content of natural law[i]’, continues to pervade my mind, in the arrangement of the “Is” and “Ought” proposition. The Gunman example posited by Hart, and the intricate distinction drawn by him, between ‘obliged’ and ‘obligation’ requires an in-depth study of a society and its legal order, wherefrom, flows the basic norm of that society.
When we undertake the study of Pakistan, in legal perspective, we must bear in mind, its unique geographical situation, the social fabric, and the ensuing legal system, observable within the society, rather than embarking on an empirical study of successive governments, and their co-relativity with ‘law’, ‘democracy’ or ‘constitutionalism’.
It is this attempt which has been made in this article, whether Pakistan as a society can sustain democratization? With the enactment of the XVII Amendment, Article 140-A, has been added to Constitution of Pakistan. Article 32 of the Constitution, in ‘The Principles of Policy’, already provides for promotion of local government Institutions.
In the hierarchy of norms, as the pyramid is built upon the primary and secondary norms, conjoining in the ‘basic norm’, the bi-directional flow of the rules, define the basic norm, which also forms the repository of customary rules flowing to the pinnacle of the pyramid. To understand this paradigm, we may turn to the statutory laws, and analyze them, in their formulation, and application. At this juncture, we come to a point where this analysis of the rules, takes precedence for a critical survey of any Legal Order. No legal system can be dissected on the basis of individual realms of power.
Constitutionalism, democracy, and governance, all three concepts have been exquisitely woven in the canvas of law. It is the ‘Concept of Law’, founded in our environs, which draws my attention, for study on the malaise, which surrounds us, rather than dwell on trivialities of politics.
Pakistani society’s dilemma in arriving at any consensus for a democratic setup can be observed in the emergence of feudalism, and a conservative tradition oriented clergy. The relationship remains symbiotic, by reasons of necessity, which draws each to the other.
The Objective Resolution drafted and adopted by the Constituent Assembly, on 12th March, 1949, and later embodied in the Constitution of Pakistan, 1973, by the VIII Amendment, in 1985 bears witness to it. Article 2-A is an ingenious compromise of opposite forces, ‘a democratic squaring of the Islamic circle… it affirmed the principles of democracy, freedom, equality, tolerance, and social justice’ but adds: ‘as enunciated by Islam’[ii].
For students of Pakistan, the debate over Islamization of laws reflects deeper philosophical conflicts which have characterized the nation’s turbulent history, since its birth. Conflicts and tensions in Pakistan’s jurisprudence largely explain the perpetual constitution making. At the same time the constitutional crises have largely masked the inherent conflicts in the legal system[iii].
At the micro level we find non-legal foray such as ‘Jirgahs’ validating the customary laws, as ‘karo-kari’, ‘vaani’, ‘vatta-satta’, etc.
Law as generally understood, may not be, what it suggests to be, without moral sanctifications, and here we find the academic debates between Prof. H.L.A. Hart and Prof. Lon Fuller, not remaining a matter left better to the academia, but providing a study of the legal systems, delving in the rationale of the basic law, for a fruitful discernment of a legal order, its central theme, the validity, and the justness or otherwise of that legal system.
Critics of morality in law may disagree, but without the graft of ‘natural law’ to Positivism, law remains illusive. Pakistan offers a model case study, on the doctrine of ‘morality of law’. It was not without reason that Prof. Hart ceded to ‘minimum content of natural law’. The general form of argument is simply that without such a content law and morals could not forward the purpose of survival which men have in associating with each other. In the absence of, men as they are would have no reason for obeying voluntarily any rules; and without a minimum of cooperation given voluntarily by those who find that it is in their interest to submit to and maintain the rules, coercion of others who do not voluntarily conform would be impossible.[iv]
Mindful of this premise when we observe Pakistan’s legal system, we find the state, being governed through pre-independence colonial law, The 1935 Act, as amended by the Indian Independence Act, 1947, for a period of 8 years. In these 8 years the society was intact, however, deprived it was. However, with the introduction of Martial Law in 1958. Absolute rule was imposed on the people. In State vs. Dosso[v], Their Lordship enunciated the doctrine of necessity; unconsciously, the Supreme Court was simply validating John Austin’s Positive Theory of Command[vi], some 150 years later. The misconceptions prevailing in Pakistan’s legal jurisprudence, comes out with clarity, on the reading not only of Dosso’s case, but a plethora of constitutional decisions, following it.
In 1959, just within one year of the abrogation of the Constitution of Pakistan, 1956, THE BASIC DEMOCRACIES ORDER[vii], was promulgated, which laid the foundation of ‘basic democracy’. It is interesting to note here, that till then Pakistan was governed under Martial Law. More interesting is the fact, that at the relevant time. The State remaining under what was termed as ‘One Unit’. The majority province East Pakistan was treated at par with the minority province West Pakistan. Therefore, under the Scheme, the Electoral Collage under Basic Democracies Order provided for 40,000 Basic Democrats, in each province. It does not require any comments, but as is obvious, the very structure of the Order, stood in conflict with the ostensible purpose, “to provide for the constitution of basic democratic institutions through out Pakistan…”[viii]. To what extent did the framers of the law, realized this dichotomy, is evident from one of the speeches made by the President, “While democracy is essential, for the progress of the nation, Pakistanis must realize that the kind of democracy suitable for other nations is not necessarily suitable for them. Just as tea which grows in Darjeeling, cannot grow in Parbatipur, each region and each climate has its own peculiarities, and Pakistan can only adopt what is suitable to its climate and genius…”[ix]
The words do not represent the views of one man, but the mindset of the ruling elite, which in 12 odd years, had by now matured in controlling and managing an infant society, which was fast losing its grip on that concept of the rule of law, which it had experienced and benefited, in the colonial era. The fact, that the society had gained independence, through lawful means, and by a statutory enactment, was lost.
The Basic Democracy Order, 1959, had been promulgated with a specific purpose, for a society, which was now required to redefine ‘democracy’ within given parameters, in a legal order, bereft of a constitution, run through a ‘proclamation’[x]. Much publicized Basic Democracy, in fact, proved little more than a cover for further centralised control not only over the lower levels of government, but the Social Order itself. Despite the rhetoric, in its favour, of empowerment, local governments had only nominal powers. From the centre directly to the local levels, moreover, negated the normal concept of decentralisation since Pakistan’s principal federal units, its four provinces, had been fused in ‘One Unit’, and simply did not exist in the enactments. The misuse of local government officials during the presidential referendum and the general elections of 1965, left no doubt that these governments were primarily instituted to create a pliant political elite that could help root the actual power structure in local politics and displace its traditional adversaries, found in conventional political systems. The canvass, of the administrative functions devolving on the Basic Democrats, 80, 000 in a population of 100 million suffices to understand the actualities involved.
Self evident fallacies, in a Order running into 100 articles, is evidence enough of the purpose, of founding the institution, where the primary tiers of democracy were non-existent, for example Article 17 of the Order read ”For the purpose of election to a Union Council or to a Town or Union Committee, the Union or Town shall be divided into as many ’territorial’ units to be called ‘Wards’ as the number of members required to be elected to such Council or Committee, so that each such ward shall have , as far as practicable, equal population.”
Basic Democracies was a pyramidal plan enabling the people to directly elect to Local Council men they knew, who would in turn elect the upper tier of the administration. Altogether there were 80,000 Basic Democrats elected. To lend legitimacy to his rule, Ayub Khan used the Basic Democrats as an electoral college, holding a referendum to seek a mandate to continue in office as President and to have the authority to frame the future Constitution of Pakistan.
The referendum held on February 14, 1960, asked the voters “if they had confidence in President Field Marshal Muhammad Ayub Khan, Hilal-i-Jurat?” With the results of the referendum, Ayub Khan was elected not only as President of Pakistan for five years, but also got the mandate to give Pakistan a Constitution of his choice.
The Basic Democracies system set up five tiers of institutions. The lowest but most important tier was composed of union councils, one each for groups of villages having an approximate total population of 10,000. Each union council comprised ten directly elected members and five appointed members, all called Basic Democrats. Union councils were responsible for local agricultural and community development and for rural law and order maintenance; they were empowered to impose local taxes for local projects. These powers, however, were more than balanced at the local level by the fact that the controlling authority for the union councils was the deputy commissioner, whose high status and traditionally paternalistic attitudes often elicited obedient cooperation rather than demands.
The next tier consisted of the tehsil (sub-district) councils, which performed coordination functions. Above them, the district (zilla) councils, chaired by the deputy commissioners, were composed of nominated official and nonofficial members, including the chairmen of union councils. The district councils were assigned both compulsory and optional functions pertaining to education, sanitation, local culture, and social welfare. Above them, the divisional advisory councils coordinated the activities with representatives of government departments. The highest tier consisted of one development advisory council for each province, chaired by the governor and appointed by the president. The urban areas had a similar arrangement, under which the smaller union councils were grouped together into municipal committees to perform similar duties. In 1960 the elected members of the union councils voted to confirm Ayub Khan’s presidency, and under the 1962 constitution they formed an electoral college to elect the president, the National Assembly, and the Provincial Assemblies.
The system of Basic Democracies did not have time to take root before the system fell in 1969. Whether or not a new class of political leaders equipped with some administrative experience could have emerged to replace those trained in British constitutional law was never discovered. And the system did not provide for the mobilization of the rural population around institutions of national integration. Its emphasis was on economic development and social welfare alone. The authority of the civil service was augmented in the Basic Democracies, and the power of the landlords and the big industrialists in the West Wing went unchallenged[xi].
There were a number of formal and informal mechanisms that allowed the represented population to be involved in the affairs of the local councils. Formal mechanisms for mass participation were included in the Local Government Ordinances. For example, in case of taxation every taxation proposal was published along with a notice in newspapers, so that the public could make its objections and suggestions. However, it was the informal channels of public participation which were perhaps more representative. There came to be, a great deal of awareness of and involvement in the lives of the public with regards to services undertaken by local councils. Expectations about the performance of local government remained high, precisely because the tasks which this level of government was expected to perform influences the lives of a large number of people at the local level. There was frequent contact between elected councillors and their constituents and opinions about performance were regularly aired. This was perhaps the most sensitive tier of government and one in which the public to ‘some extent’ directly involved.
Despite playing such a potentially prominent role in the lives of the people in Pakistan, elected local government in Pakistan has been non-existent for most of the time. Throughout its history, Pakistan has had elected federal and provincial governments. Elected local governments were only recently restored in Punjab and elections are planned in NWFP and Baluchistan. In Sindh the federal government under an Emergency declaration has dismissed even the provincial government. The reasons why local government elections have not been held on a regularly basis are revealing. Local government elections were only been held by Pakistan’s two regimes of Ayub Khan and Zia ul Haq. All other avenues for public participation were closed under these dictatorships and elections to the National and Provincial Assemblies were not allowed.
Under both military regimes, elected local bodies played a useful and productive role in many areas of the lives of people. With the return to ‘democracy’ in 1972 on the basis of General Elections of 1970, elected local bodies lost most of their importance and their role and potential was severely undermined by elected representatives of the higher tiers of government. This happened despite the fact that a large number of members of National and Provincial Assemblies had previously been elected to local councils when other forms of representation did not exist. Moreover, patronage and grants to members of Provincial and National Assemblies bypassing local governments, helped to further weaken the position of local government. Possibly, by realizing the potentials of effective local government, representatives of higher tiers of government felt threatened this level of government would undermine their new roles and privileges. Hence, their reluctance to fully revive this institution.
Under the Local Government Ordinances of 1979, elections of all local bodies took place on an adult franchise basis. After the elections of the members of a unit, the Chairmen, Vice Chairmen and Mayors are elected from amongst the members of the local council. The membership of each council was determined on the basis of the population distribution in that region. A separate representation was provided for non-muslims, peasants, workers and women, who were all elected by the members of the councils. The degree of electoral representation – number of seats according to population – was the highest at the lowest level of local government, i.e. the Union Council level in rural areas. There were a maximum number of seats prescribed for District Councils and municipal corporations in some provinces, which implies that the number of seats rose less than proportionately, with respect to population. Close to 80,000 seats are contested in the local government elections. 89 per cent of the elected representatives were seated in rural local councils of which 84 per cent in Union Councils. Since Punjab had the greatest share of Pakistan’s total population, it also had the highest proportion of overall local government seats (68 per cent).
With the fall of another ‘politicized’ ‘democratic’ government in October, 1999, Pakistan came under military rule. This time, however, with some distinct changes. The issues did not remain domestic, but the government in power had to face, more challenges, than any of its predecessors, excepting the debacle of 1971. Apart from many departures, which it took, possibly, the most comprehensive and enlightening for the society was the commencement of decentralization, which was lost, in the debates touching as ever the non-issues, as far the common citizenry is concerned, far and mostly, challenges thrown to it within the establishment i.e. the power structure comprising the fundamentalist section, and that elite which did not receive its due share in governance.
The local government was revived, this time not for personal aggrandisements, but with the support and guidance provided by foreign agencies. In 2001, four ordinances were promulgated, for reconstructing and regulating the local governments in all the four provinces.
Critics may again attempt to find similarities in Local Bodies, founded in the genius of the military regime of 1958, and the present government; but the distinct difference, may be found not only in the XVII Amendment, which for the first time in the constitutional history, has given the local governance not only protection, but has in fact, again, given priority to Article 32 of the Constitution, which unfortunately, even the framers of the original constitution, had abstained from. The XVII Amendment to the extent of local governance substantially parallels 73rd and 74th Amendments in the Constitution of India.
The highlights of the present local government may be seen in its structure, functions, and the powers delegated to it.
The foundation of the electoral structure for the three tiers of local government is the union council. The union is a multimember ward for the election of members of the union council (that is, each constituency is on average 25,000), and each union council is composed of 21 directly elected members.[xii] The nazim and naib nazim (mayor and deputy mayor) are elected on a joint ticket. The remaining 19 seats on the union council are allocated as follows[xiii]:
· 12 Muslim seats, 4 of which are reserved for women
· 6 seats for peasants and workers of which 2 are reserved for women
· 1 seat for minority communities.[xiv]
The nazim of the union council then becomes ex officio a member of the district council, and the naib nazim of the union council becomes ex officio a member of the tehsil council.
The union councilors constitute the Electoral College for the district or tehsil councilors-at-large and for the district and tehsil nazim and naib nazim, none of whom can be union councilors. Elected union councilors are not permitted to stand for election as nazim or naib nazim of any tehsil or district—the nazim and naib nazim stand as a joint ticket once all the union councilors in their district have been elected. If no joint tickets secure at least 50 percent of the votes for any district or tehsil, a runoff election is held within a week between the two pairs that secured the highest number of votes. The joint candidates securing the highest number of votes are declared winners.
One-third of the seats are reserved for women—directly elected at union council level and elected by the electoral college of union councilors at tehsil and district levels. This emphasis on women’s participation in politics is a dramatic break from the past. In addition, 5 percent of district and tehsil seats have been reserved for peasants (in rural constituencies) or workers (in urban areas), and 5 percent for minorities. Thus, overall, district councils and tehsil councils are made up of about two-thirds directly elected members and one-third indirectly elected, including the nazim and naib nazim.[xv] The size of district and tehsil councils varies according to the number of unions within the district. Some district councils are of a significant size and larger than provincial assemblies.
Each tier of local government has a term of office of four years,[xvi] with a two-term limit for nazimeen and naib nazimeen at all levels of government.
Whereas the provision for direct election of union councilors provides the most potent form of citizen representation in local government, the PO and LGO (along with other ordinances, such as the Freedom of Information Act) also provide numerous new bodies through which citizens are able to access and potentially influence government at the local level. These may be distinguished in three broad categories.
First, there is a group of external oversight bodies that provide some external check on performance and probity. In some of these bodies, such as the Monitoring Committees at the district, TMA, and union level, citizens are able to influence the performance of service providers through their elected representatives, who comprise the committees. Guidelines exist for the establishment of monitoring committees to identify problems at the service facility level and bring them to the attention of the respective council and the concerned EDOs (National Reconstruction Bureau 2001b). Such committees are to consist of at least three council members elected for a period of three years, with a third of the members of each committee from among the reserved seats for women, peasants, workers, and minorities. The union committees are responsible for monitoring the functions of all offices of the local government (district, tehsil, and union) that are responsible for the delivery of services within the union, while the tehsil and district committees oversee offices in their respective governments.[xvii]
The Guidelines specify that members of the monitoring committees are to involve the community in assessing the quality of service delivery through regular field visits and that they must present quarterly reports of their activities to their respective councils. On the basis of these reports the councils are to pass the necessary resolutions (or refer the matter upward to tehsil or district councils if needed), and the nazim are to report back within 30 days to the council on the actions taken. Functioning like monitoring committees, but concerned with the judiciary, insaaf committees have been established as subcommittees of the union councils to assist in redressing litigants’ grievances relating to the functioning of the district courts by facilitating access to the Member Inspection Team (MIT) of the High Court.
This category of oversight bodies also includes new agencies, such as the District Public Safety Commissions (DPSCs) made up of both elected councilors and community representatives appointed through procedures that involve local and province government and the Chief Justice of the High Court. PSCs are a mechanism for local external accountability over the police, part of a hierarchy involving PSCs at province and federal levels. The DPSCs are to look into cases of police excess, ensure the registration of FIRs, approve the annual policing plan of the district covering proposed expenditures and performance targets and check against misuse of the police by the district political leadership.
Accounts Committees are being formed as subcommittees of district, TMA or union councils to monitor activities of the corresponding local government or any organization using public funds, to identify any corruption or leakage or waste of public money at any time and to conduct annual reviews of external and internal audit reports.
Although not yet formed, but with potentially the broadest base of representation, Village and Neighborhood Councils are to be elected under provisions of the LGO. These institutions are meant to be vehicles for community participation in local government planning. Designed to mobilize community resources and gather information, they can also be delegated to deliver services for their respective areas.
The architects of devolution also recognized the importance of mechanisms for citizen dispute resolution to establish direct accountability relationships between citizens and service providers. To assist in resolution of citizen disputes with government, Departmental Grievances Redressal and Complaint Cells are to be established in local governments. To back up the new offices, there is to be a zila mohtasib (district ombudsman) to provide a formal avenue for redress for citizens who have been the victims of maladministration. Citizen Police Liaison Committees have also been established as self-financing voluntary organizations, which citizens can set up to assist the Public Safety Commission and the Police complaint authority in the discharge of their functions. They are also expected to assist in settling disputes between citizens and the police. Of a similar nature, the LGO provides for Musalihat Anjuman, which is to function as committees to promote the amicable settlement of disputes of a civil or criminal nature
Finally, a group of bodies is responsible for community development and management of facilities. Citizen Community Boards (CCBs) are the most prominent of these. Although formed voluntarily by citizens, who comprise the entire membership, CCBs are formally registered in accordance with local government guidelines and have a legal claim on the local government planning and budgeting process. Consisting of at least 25 members, CCBs can, in principle, be established for a variety of purposes, including initiation and improvement of development projects, establishment of cooperatives, formation of monitoring bodies over police and other service providers and to reinforce the capacity of monitoring committees at the behest of the concerned council. At least 25 percent of the total development budget of each tier of local government (district, tehsil, and union) must be earmarked for projects identified by CCBs, and each CCB has to make cash contribution of 20 percent in order to be able to tap into these funds for a specific project.[xviii] CCB development funds cannot be re-appropriated for other activities if unused by the end of the fiscal year and must be carried forward to subsequent financial years.
Although School Management Committees predate devolution, they are associated with it. Names vary with the provinces—SMCs in Sindh, School Councils in Punjab, Parent Teacher Associations (PTAs) in NWFP, and Parent Teacher School Management Committees (PTSMCs) in Balochistan.
The executive branch of each district government is divided into 10 to 13 departments, depending upon the province, to carry out its functions.
The District Coordination department is headed by the District Coordination Officer (DCO), the highest-ranking civil servant in the district. An Executive District Officer (EDO) heads each of the remaining departments. In tehsils, the TMA Municipal Officer (TMO) performs coordination functions similar to those of the DCO at the district level. There are four tehsil, taluka, or town officers (TOs) reporting to the TMO: TO (Regulation), TO (Infrastructure and services), TO (Finance), and TO (Planning).
Three groups of employees were assigned to the new district governments. These included staff from:
- Federal employment groups, primarily District Management Group (DMG) and the Audits and Accounts Group;
- Former rural district council employees; and
- Provincial employment groups, particularly Public Health Engineering, Rural Development, Local Government, Health and Education.
The overwhelming majority of district staff formerly belonged to the provincial employment groups, particularly education. Most are in grades 1–15 (90 percent of district staff in NWFP and 83 percent in Sindh). TMAs inherited staff from the former urban councils and from rural district councils and also some provincial PHED staff where these have been devolved.
Despite multiple reform efforts, occupational groups in Pakistan remain vertically separated, distinct career streams. Posts sometimes have been created to satisfy the needs of the various employee groups for promotion opportunities, rather than on the basis of policy priorities or operational needs. Now, these systemic civil service problems are replicated at the district level as the parallel, vertically oriented, occupational groups have generated significant problems in merging different groups of staff. In certain Sindh districts, for instance, devolution has resulted in Communications and Works Department staff working alongside the Education Works Department staff at the district level. In city districts, the Development Authorities once responsible for structural planning have been wound up and their staff transferred to various tehsils. Local Government and Local Council Service cadre employees have joined the staff from provincial departments posted to TMAs. Thus, tehsils have had to absorb staff from a variety of different sources in the first months of devolution. These mergers have led to complex and, in some cases, seemingly insoluble problems of seniority. No acceptable formulae for merging seniority lists can be found in such situations. The danger for local governments is that—as with the provincial and federal cases—the structures of district offices will be distorted by the need to find placements or promotions needed to appease staff cadres.
(1) In Balochistan the Finance and Planning office forms part of the DCO Group of Offices
(2) In Killa Saifullah the offices of Education and Literacy have not been separated
(3) Information Technology will be the 10th Group in Killa Saifullah after a district structure is put into place
(4) In Karachi 3 EDOs (College, Elementary, and Literacy) have been posted due to the size of the department
(5) In NWFP the DO (Revenue) heads the office. There is no post of EDO (R)
(6) Public Health Engineering Department (PHED), Communication and Works (C&W) and Physical Planning and Housing (PP&H) departments were merged to form the Works and Services (W&S) office in NWFP. In May 2003 the provincial government divided the NWFP into six circles each headed by Superintending Engineer (SE) of W&S department.
(7) Education and Literacy have not been separated in NWFP
(8) Recently Literacy has been merged with the Education department. The EDO post was vacant prior to merger.
(9) Public Health Engineering has, in principle, been devolved to the TMA level. In practice this has not been enforced—but Balochistan is the only province that has formally created a district structure.
(10) EIP (Enterprise and Investment Promotion) and Public Transport groups of offices were established only in Karachi district.
(11) Karachi Water and Sewerage Board has been notified as the 15th Group of Offices in City Government Karachi, though functions and infrastructure are yet to be devolved.
The key structural variations between provinces concern Public Health Engineering and Education and Literacy. In education, Punjab has created separate departments for education and literacy at the district level, while NWFP and Balochistan have opted for one department for both services. In Sindh, Karachi has separate departments while Khairpur has a joint department. At the provincial level, the structure of the Departments of Education in the Punjab, Sindh and NWFP are more complex with three directorates; Balochistan initially merged these into one but subsequently created a separate directorate for colleges.
In Water and Sanitation, there has, in practice, been very little devolution to the TMA level. Balochistan has not formally devolved PHED and has simply restructured it. The PHED department remains at the provincial level, with the Secretary and Chief Engineer operating from Quetta. Sindh has abolished the provincial PHED office, and merged the staff into the LG&RDD. NWFP has devolved the functions to urban tehsils but not to rural ones.
The success of the 2000 Local Government Plan and of the LGOs in establishing a consistent set of political, administrative and fiscal structures across four provinces is remarkable. The diversity in implementation was inevitable for several reasons, including most importantly the reality that the patterns of province—local government political relations, conflicts and alliances vary considerably from one province to another. Similarly, some groups of staff themselves have a vested interest in blurring the jurisdictional responsibilities between provinces and local governments so as to cause delay and confused implementation arrangements. Also important were differing expectations among both elected and administrative officials about the outcome of the prolonged hiatus in the National Assembly’s approval of the Legal Framework Order. This inevitably created some uncertainty and, arguably, some hesitation in implementation of the LGOs on the part of provincial governments.
Since local governments across the country face diverse situations, some variance in implementation was not only inevitable but also welcome. Turning a constructive blind eye to some of the more marginal differences has prevented needless federal-provincial conflict, and has started devolution along a path that will be of value in the future—where basic principles are recognized and enforced, but where, in the detail, local institutions are tailored to local circumstances.
Under a system of complete administrative devolution, all authority for personnel management would be found at the same level of government where staff are located. In practice, there are very sensible reasons to deviate from this simplistic model. Above all, history and tradition determine many of the present arrangements, making it difficult to abandon them completely and start again. Moreover, there are quite defensible reasons for higher levels of government to retain some control over staffing at lower levels. Specifically, such an arrangement provides:
- an opportunity to exercise some top-down influence over policy (as a national integrating device) even where political and fiscal authority have been largely devolved;
- a broader set of career options for civil servants, so they are competing for positions both within and outside their immediate administrative location; and
- Some fiscal safeguards in settings where political pressures might otherwise overwhelm constraints on hiring or remuneration.
There are also sector-specific reasons—particularly in education and health—for maintaining certain personnel management responsibilities outside the administrative unit where staff are located. For example, there is a need to follow a common set of professional standards in curriculum design and public health. Arguably, this goal can be achieved most readily by creating overarching staff groupings that share common interests and provide a single career path.
Notwithstanding these caveats, the ongoing challenge of decentralization is to shift the employer function gradually to coincide with the new levels of functional responsibility—to create, in effect, the equivalent of a District Service whether a body is formally established under that name or not. A District Service would constitute a group of personnel clearly employed by the districts.[xix] Being fully the employer in such a situation makes a government responsible for:
- Budget Control
- Establishment Control
- Career Management
- Performance Management
- Pay Policy.
Progress to date in shifting the employer functions to district governments has been decidedly mixed. The federal government clearly remains the employer of the DMG and Audit and Accounts Group staff posted to the districts. Meanwhile, senior staff of the districts —Executive District Officers (EDOs) and others at or above BPS-16, or BPS-18 in Punjab—remain subject to the province or the federal government for appointment, promotion and transfer (APT) decisions.
The result is confused and competing lines of control. For instance, while the DCO reports to the district nazim, he or she remains part of a federal employee cadre for which promotions and transfers are determined by authorities outside of the district, undermining the reporting relationship to the district nazim. DCOs have been transferred frequently, and while nazimeen may request the transfer of a DCO they disapprove of, they cannot prevent an adverse transfer.
While the districts clearly became the employers of the former rural district council employees, the vast majority of district staff are from former provincial cadres. This group includes teachers and health-service providers over whom lines of control clash. Particularly in relation to APT authorities, these staff find themselves effectively managed by the province.
The six features of the employer function are described below provides a summary of the extent of devolution of the employer function in each province. Overall, as can be seen, local governments have little de facto employment authority over staff located in their areas.
Recruitment authority includes the ability to select and appoint staff and oversight over merit. Selection and appointment responsibilities have been devolved to districts but with significant limits—most notably, a prohibition on recruitment presently imposed by each province. Thus, even if local governments have vacant posts and local revenues to cover the salaries, the recruitment ban undercuts their ability to develop their own human resources complement. These bans have recently been relaxed, but the districts may only hire certain groups of employees and only on a contract basis.
Normally, the federal and provincial governments carry out hiring at specified intervals through their respective Public Service Commissions. The hiring of administrative staff and officers on contracts by the district government is a significant departure from this tradition. Contract hiring has been commonly practiced in the Health and Education sectors for teachers, medical staff and paramedics. Though it is becoming more common among the provinces, no clear rules or policy support this practice. One notable exception is NWFP, where a contract policy was introduced in October 2002. Under it, BS 1–10 contract appointments would be made on the recommendations of Departmental Selection Committee (DSC) while BS 11–15 contract appointments would be made on the recommendations of Provincial Public Service Commission (PPSC). Contract appointments in BS 16 and above are to be made through the PPSC. Thus oversight of merit rests in part with the districts and in part with the PPSC. In Sindh the oversight of merit remained, with the PPSC for staff above grade 11 until the Cabinet very recently removed BS 11–16 from the purview of the commission.[xx] Similarly, in Balochistan a recent notification of the provincial government, dated March 26, 2003, removed appointments in BS 11–16 from the purview of the Balochistan Public Service Commission.
In the absence of a clear policy, confusion exists as to the powers of district governments to hire essential staff on contract. For example, in Khairpur, the provincial finance department has reportedly given authority (not yet been carried out) to hire a DO Finance and EDO F&P on contract, but it is not clear who has this authority and how it will be exercised. However, in the same district, the Health department was able to hire a large number of doctors, in excess of the number of advertised vacancies.
Contract policies are also being gradually introduced in the other provinces, such as Punjab. The Government of Punjab’s policy lays down certain parameters and guidelines to ensure uniform criteria for such appointments. The selection committees constituted at the district level for processing recruitment on a regular basis have been entrusted with the task of making these contract appointments. In Faisalabad, the hiring of doctors and teachers was proudly considered to be a strong display of district autonomy and authority. In accordance with the provincial government’s policy, a district recruitment committee has filled many previously vacant positions in the BHUs through the appointment of more than 100 doctors on contract basis in various health facilities. Similarly, surgeons and child specialists have also been recruited on contract. These facility-specific contracts appear to carry slightly better salary and emolument packages than those of regular employees. However, they can be usually terminated on three months’ notice.
The government selecting and appointing staff is likely to be recognized legally before the courts as the employer, but that status is not certain.[xxi] For government employees who may wish to contest an employment action in the courts, the legal definition of the employer is critical. It is not clear whether employees formally transferred to the districts will bring legal action against the province or district government to contest a perceived injustice concerning their employment.
Career management includes the authority to offer promotions and make transfers among local government posts. The formal rules governing transfer authorities vary somewhat by province and by sector. APT authority in Punjab rests with the DOs and DCO up to grade 18, and with the district nazim for grade 19 (except for the transfer of EDOs and DOs). In Sindh APT authority rests with the DCO in consultation with the nazim up to grade 17. In NWFP district officers control APT authority up to grade 15 staff, while the provincial governments are authorized to make APT decisions for all higher grades. Balochistan has so far not produced APT rules for the districts. However, in practice, provincial officials in all four provinces frequently exercise APT authority
The disjuncture between the geographic location of senior staff and the location of their superiors making APT decisions creates competing lines of control. The 10–12 EDOs responsible for sectors such as education, health and literacy—report formally to the DCO and not to provincial line ministries in the former divisional-provincial hierarchy. However, as their promotion and transfers are determined at the provincial level, they too are unlikely to regard the district management structures as paramount. The threat of an unpleasant transfer or the promise of an attractive one can pressure the senior staff member to arrange the transfer of a junior employee, below grade 16. Enforced inter-district transfers for provincial cadres posted to the tehsils are also a significant problem.
Thus, despite various bans on transfers and postings issued by the provinces, transfers often are initiated by the provincial government exerting influence upon senior district officials.[xxii] External pressure is coming from at least two directions: provincial headquarters and elected representatives (MNA, MPA). The transfers of district staff tend to be most frequent in areas where there is some political conflict between the district and provincial governments. So long as provincial and federal cadres retain positions in local governments, some minimum time should be placed on their tenure. Without this, the temptation to use transfers as a covert policy instrument is overwhelming.
The role of the nazim acting as employer for the DCO is particularly complex. The relationship between the two officeholders is key to the smooth functioning of the local government and is meant to be balanced and two-sided. On the one hand, the DCO should, as per the LGO, be accountable to the nazim. On the other, and appropriately for a senior public servant, the DCO must be able to express independent views in order to provide professional, impartial advice to the nazim and council (“speaking truth unto power”). In many cases, as the previous section noted, the DCO is not performing this key role and has become de facto a political player, either acting at the behest of the province against the district nazim or as an agent in furthering the nazim’s political control over the district. These difficulties are of course not peculiar to devolution but reflect prevailing norms regulating politician-civil servant dealings at all levels of government in Pakistan.
It was generally observed that the authority of the nazim to write the ACRs of DCOs was an insufficient mechanism for enforcing accountability since it was an ineffective tool for measuring the performance of an officer and tended to be viewed as a routine matter to be placed on an officer’s file at the time of promotion in fulfilling a legal or administrative requirement. Officers tended to be given postings regardless of their performance in previous tenures.
District nazimeen must have a working relationship with the DCO that enables the nazim to drive policy, while being appropriately challenged on due process. In practice, there are few DCOs providing robust, technically informed and professional advice to nazimeen during the planning and budgeting process. Although DCOs can be supportive to nazimeen who are in a secure political relation with the province, where nazimeen are not well aligned politically with province interests DCOs can also be hostile, supporting conflicting provincial interests. The relationship between nazim and DCO is therefore key. Strong differences between these two players can lead to administrative paralysis and divided loyalties for staff.
There are two principal reasons why DCOs might and do seek to bypass the nazim. First, they can themselves face some challenges in imposing authority over other senior district staff. Pre-devolution, the office of Deputy Commissioner (DC) held the pivotal position at the district level, but other line departments were not answerable to the DC with respect to their annual development plans, budgets, or personnel issues. With the advent of devolution, the office of DCO has assumed a much larger and more formal role vis-à-vis the other groups of offices in a district. However, provincial departments can and do choose to disregard the new arrangements, and many instances were reported where the provincial government had sent instructions directly to EDOs, particularly education, instead of following the proper procedure. To counter this, DCOs use their informal contacts in the province to enforce authority.
Second, as members of federal or provincial cadres, DCOs consider, correctly, that the province rather than by the nazim will determine their career advancement. DCOs can feel that their position as a federal or provincial employee in a district is now a less powerful office. Senior officers at grade 19 serving in the districts note that their juniors are now serving the provincial government as Secretaries while they are serving as DCOs in places where they might have held more powerful positions more than a decade ago.
The ACR system is unlikely to provide a particularly strong mechanism for ensuring that the DCO retains some incentive to serve the interests of the nazim as these officers remain part of the federal employee cadre and so the ability of the nazim to make a credible threat to transfer the DCO is completely a function of the informal relationship between him or her and the province.
Nazimeen also have very little authority over the District Police Officer. Formally, only in Punjab has the district nazim been given the initiating authority for the ACR of the DPO, although in practice in none of the districts studied were these performance evaluation reports completed.[xxiii] Some nazimeen, in fact, considered that removing the authority of the former district magistrate in completing the ACR of a former district Superintendent of Police has contributed to deterioration in law and order in general.
Although local governments suffer from innumerable problems, many of which are serious, perhaps the biggest problem at present is that, except for Punjab, they lack public representation. Elections to local bodies will not solve all of the problems faced by this institution; nevertheless the process of participation and representation at this tier of government is probably a minimum condition to improve performance and capability. Although democracy in Pakistan at the provincial and national level has been wrought with glaring inconsistencies and shortcomings, an uninterrupted process of participation at all levels of government may, given time, initiate a process which improves the quality of participation and representation and hence, of governance it self.
Hence, the minimum condition for the improvement of government and governance is that elections be held at regular intervals at all levels of government. While provincial government can continue to work with the lowest tier of government, unless a substantial degree of importance is granted to local government, it will remain subservient to the provinces and constrained, if not downright ineffective. Therefore further amendments are needed, in the light of Article 140-A of the Constitution for a definitive independence of the local governments from provincial governments, granting the former greater autonomy from the latter.
Also, greater provincial autonomy will be a positive constitutional step at this stage and can act as a precursor to greater local government autonomy. Once the two main measures are undertaken – elections and greater autonomy – other changes can and will be instituted at the local level as and when needed by the appropriate authorities. Taxation proposals, administrative reform, employment issues, etc., can all be considered afresh by each respective council once it has the power and authority to do so. This will especially be true for the larger metropolitan and municipal councils with a larger resource base.
The role of the provincial government, while diminished, will continue to be of importance, especially in terms of provincial level coordination and in assisting a large number of smaller rural and urban councils, which despite the necessary changes, would require considerable assistance from higher tiers of government. Pakistan is amongst those countries where local government has become ineffective and largely inoperative. Its main purpose has been reduced to providing employment to a handful of individuals and looking after a few basic services, like street lighting, cleaning and perhaps water provision. Local government has neither the funds nor the technical expertise or possibly even the motivation to do anything worthwhile. Development projects and the running of schools and health institutions are out of the reach of even the more well to do and large metropolitan councils. To a large extent, local governments are not responsible for their predicament. Other institutions and individuals at higher levels of government are probably most responsible for the dire states in which local government finds itself. Reform of local government must begin with reform of the highest tiers of the state government. The Constitution, The powers of the Federal Government and the Provincial Governments require review and reforms in order to improve their functioning. This is the pre-requisite for any significant improvement at the local level[xxiv].
What gives weight to the Local Governance adopted by the present government, is the incorporation of Article 140-A to the Constitution, is the umbrella of protection provided to local governance, a welcome departure, from the past, an effort to cut the chain of conventional understanding of local bodies system. For the first time the Constitution of Pakistan may be moving in right direction basing its roots in an important and pivotal role player in the institutes of democracy. The decentralization which came about less than three years ago needs tender nourishment, and in due course the most ignored section of the society i.e. the middle class may now be seen actively involved in this participatory democratic institute. Notwithstanding, the flaws, which have appeared in the smooth running of this nascent institution; and which in fact, are constructive, for they show a live system, and the conflicts arising between the tiers should not be pre-judged on individual level, or castigation of political machinery. If the system was aptly applied, this is the natural sequence to that, for in it we see the conventional forces threatened. And at the very minimum, power structure of feudalism and fundamentalist clergy, would be in disarray, the middle class specially the mass of liberal sections of the society are now under moral obligations to counter those forces which did not allow democratization to take roots for the development of a civil society in Pakistan.
The three tiers of modern democracy, appear to have been completed, how so ever, we at this moment have to understand that more important than any other issue is the development of Democratic Institutions.
Local Governance is that measure of good governance, which forms the yardstick to determine the decentralization of powers from the Centre. It is a worthy effort, maybe a step toward acceptance of the “rights”, the pre-requisite of a stable and harmonious society, voluntarily submitting to the “rule of law”, in the absence of which, there neither can be there be good governance, nor the establishment of democracy simply because democracy and good governance are the core of a civil society and the elements and structure of these three pillars, essentially and inherently survives only in the medium of the rule of law. The change would of course take long moments; notwithsatnding, we cannot afford a skeptical or cynical approach on the issue. Local Governance may just be the harbinger of democracy. For a balanced and healthy democracy, the relative tension between the institutes any particapatory democracy is necessary, and Local Governance may just may prove to be the catalyst for that.
[i] H. L.A. Hart: The Concept of Law, Second Edition; CLARENDON LAW SERIES
[ii] PAKISTAN IN THE EIGHTIES Law & Constitution, Edited by Wolfgang peter Zingel and Stephanie Zingel Ave Lallemant; pp213
[iii] Id. pp 210
[iv] H.L.A. Hart: Concept of Law; 2nd Ed. CLARENDON LAW SERIES; p. 193.
[v] PLD 1958 SC (Pak.) 353
[vi] John Austin: Essays on the Province of Jurisprudence
[vii] Basic Democracies Order, 1959
[ix] Law and Principles of Basic Democracies, pp 90-91: Masood ul Hasan; Pakistan Social Services Foundation, Second Edition, 1963.
[x] PROCLAMATION, 7th October, 1958.
[xii] Councilors must be at least age 25, be a Pakistani citizen residing in the relevant ward, of good Muslim character (except for non-Muslims), and must not have been convicted of various crimes, nor be an employee of federal, provincial or local governments. Nazimeen and naib nazimeen must have at least a matriculation or secondary school certificate.
[xiv] In a district where the population of the minorities is in excess of 10 percent of the total population, some seats are reserved for minority communities. There are direct elections for these seats for which only the minorities will be eligible to vote, and the whole of the district will be the constituency.
[xv] The majority of nazimeen are experienced politicians from established political families. According to one media survey, 30 percent of district nazimeen in Punjab were former MNAs or MPAs, and approximately 90 percent belonged to established political families (The Herald, August 2001). Some of these nazimeen later resigned from local government in order to contest provincial or federal assembly seats.
[xvi] The term of office was changed from three years through an amendment in 2002.
[xvii] The NRB Guidelines specify that at the Union level monitoring committees will be established in at least the following areas: Municipal Services, Finance, Public Safety, Health, Education, Literacy, and Works and Services. Tehsil monitoring committees will be established for Municipal Regulation, Infrastructure and Services, Planning, and Finance; and District monitoring committees will be established for each “group of offices or for each individual office within the group of offices.”
[xviii] The guidelines specify that “in kind” contributions by CCBs will be considered as an addition to the 20 percent cash requirement and not a replacement and will be taken into consideration in the ranking and evaluation of the project proposal.
[xix] The NRB continues to discuss the possibility of creating a formal District Service, but no decision has been taken yet.
[xx] The Sindh Local Government Ordinance does not specifically mention the PPSC, raising the possibility that the districts will be able to mount a legal challenge to PPSC oversight of recruitment for their staff.
[xxi] The district generally is recognized as the employer for health and education staff. In NWFP district cadres were formally created for these staff on January 15, 2002, and March 15, 2002, respectively. Gazetted Notifications SOR.I(E&AD)1-218/2001 and SOR.II(E&AD)1(20)98.V.III.
[xxii] It is reported that in the 14 April 2004 decision, powers of postings and transfers of DPOs have been vested in the provincial Chief Minister who will appoint on the basis of a list prepared by the Province Police Officer. This potentially will further exacerbate these tensions.
[xxiii] The 14 April 2004 meeting reportedly reaffirmed the nazim’s responsibility to initiate the DPO’s ACR in respect of law and order in all the four provinces. Police rules have not yet been prepared.