A Journey From Individual Rights To Collective Rights
The judgement of the Lahore High Court (LHC) in Ms Imrana Tiwana, etc Versus the Province of Punjab makes an interesting read. The gist of the facts of the case is that the Government of the Punjab planned a project called ‘Signal-free Corridor’ on Lahore’s famous Jail Road (one of the artery roads) through the Lahore Development Authority (LDA) at a cost of Rs 1.5 billion, and started its execution thereupon. The matter was taken to LHC, inter alia, on the ground that the mandatory Environmental Impact Assessment (EIA) was not carried out before the commencement of the project. The matter was taken up by the Green Bench of the Lahore High Court. Mr Justice Mansoor Ali Shah along with Mrs Justice Ayesha A. Malik and Mr Justice Muhammad Yawar Ali heard the case in a larger bench and detailed judgement was delivered. Mr Justice Mansoor Ali Shah authored the main judgement whereby he touched upon a host of issues and discussed some very important questions, which warrant mention in this piece.
Professor Roger Myerson, Glen A. Lloyd, Distinguished Service Professor of Economics at the University of Chicago and recipient of the Sveriges Riksbank Prize in Economic Sciences in Memory of Alfred Nobel 2007, Dr Ali Cheema, Associate Professor of Economics, Lahore University of Management Sciences (LUMS), and Professor Osama Siddique, former Professor of Law at LUMS were appointed amici curiae in the case. Chief issues discussed, in the judegement, by way of obiter dicta or ratio, deserve consideration, therefore, these are stated here:
a. The Concept of Regulatory Capture
The court examined the composition of the provincial Environment Protection Department (EPD) and its relationship vis-à-vis the rules of business of the Government of the Punjab and held that the EPD is under regulatory capture of the provincial government. Para 33 of the judgement elaborated the concept of regulatory capture:
“Regulatory Capture is a theory associated with George Stigler, a Nobel laureate economist. It is the process by which regulatory agencies eventually come to be dominated by the very industries they were charged with regulating. The term regulatory capture refers to the subversion of regulatory agencies by the firms they regulate. Capture implies conflict, and regulatory capture implies that the regulated firms have, as it were, made war on the regulatory agency and won the war, turning the agency into their vassal.”
The short order that preceded the detailed judgement and suspended the work at the site of the project did not refer to this aspect of the case. The honourable judge of the High Court has traced the evolution of the EPD and its relationship with the Environmental Protection Agency (EPA). He has also elaborated how a statutory body has been kept subservient to secondary legislation in form of the rules of business. Though it may be out of place to mention here, but maybe the concept is useful in explaining the viewpoint of many a generation of police officers who opine that in the name of superintendence of the Police Department by the provincial government under Article 9 of the Police Order 2002.
b. Constitutional Journey of the Local Government in Pakistan
The judgement has elucidated the constitutional status of the local government under the Constitution of Pakistan. It referred to the ‘constitutional journey’ of Pakistan towards local government. Starting as a Principle of Policy (under Article 32) to the existing Article 140A (introduced through 18th Amendment to the Constitution), the author judge charted the history of local governments in Pakistan. He stated that prior to 2002, the local governments used to derive their legality and legitimacy from the Principle of Policy about establishing a local government: Local Government Act 1975 and Local Government Ordinance 1979 were based on the Principle of Policy as far as their constitutional foundations were concerned, implying thereby that the constitutional basis of the earlier local government systems rested on directive principle not on a mandatory provision of the Constitution. In 2002, Article 140-A was inserted in the Constitution through item no. 16 of the Schedule to the Legal Framework Order 2002 (Chief Executive Order No. 24 of 2002). Later, it was validated through Section 10 of the Seventeenth Constitutional Amendment in 2003. Finally, it got its place in the Eighteenth Constitutional Amendment in 2010. While tracing the legal evolution of the local governments in Pakistan, the author judge highlighted the importance of local government. While highlighting the significance of the LGs and their impact on citizens, a reference was made to a study of the World Bank, in which, it was noted:
“The absence of local democracy has also retarded the development of the municipal relationship between the citizen and the state.”
The judgement then compared the constitutional status of local governments in the Constitutions of India, South Africa, Australia, US and Canada. The Hon’ble Judge divided these countries into two groups: India and South Africa, the two developing countries, in one group, having detailed constitutional provisions on the subject; on the other hand, the US, Australia and Canada, the developed countries, assuming local governments to be an integral part of democracy, have not provided constitutional protection to their local governments. Constitution of India provided a detailed constitutional legal framework (in its Articles 243 to 243 Z and Parts IX and IXA) through its 73rd and 74th Amendments in 1993. The detailed constitutional framework has defined the core areas of competence for local governments. Likewise, Section 151(1) of the Constitution of South Africa provides the mandate for municipalities, and the national and provincial governments have been prohibited to impede or compromise the area of competence of municipal governments. This part of the judgement is very informative and has supplied reasons for the Court in holding the inconsistent provisions of Lahore Development Authority Act 1975 and the Punjab Local Government Act 2013 to the mandate of local government (as provided under Article 140-A of the Constitution) ultra vires the Constitution.
c. The De-concentration, Delegation and Devolution Differentiated
The extent of the core functions and relationship of a local government vis-à-vis other tiers of government in a federation has been examined in detail. The judgement has deliberated on three terms, which are usually confounded without clarity and which define the architecture and design of a local government: these three terms are: (a) de-centralization, (b) delegation and (c) devolution. Para 70 of the judgement explain the three concepts in the following words:
“De-concentration is the shallowest form of decentralization and the least ambitious level of decentralization, where responsibilities are transferred to an administrative unit of the central government that is spatially closer to the population where service is to be provided, usually a field or regional office.
Delegation is an intermediate level of decentralization, where some authority and responsibilities are transferred to a lower level of government, but there is a principal-agent relationship between the central and sub-national government in question, with the agent remaining accountable to the principal.
Devolution is the deepest and most ambitious form of decentralization, where the central government devolves responsibility, authority, and accountability to sub-national governments with some degree of political autonomy.”
The above stated concept of devolution, according to the judgement, was given by Rondinelli in a working paper of World Bank and is by far the most influential definition of devolution and is applicable to Pakistan, where the Constitution has now protected local governments.
The judgement has suspended the work on the site. A leave to appeal in the case has been filed by the Government of the Punjab. On academic side, the judgement is very well articulated and has wealth of information in it. On the policy side, it has raised more questions than answers. Even though it has issues of structure, jurisprudence and import of legal academic material of foreign jurisdictions, it is refreshingly impregnated with fine ideas. One idea that attracts attention is the transition of case of individual (environmental rights) to collective (local government rights), which got ample treatment in the judgement, but the transition itself remained unexplained.