On the heels of the last phase of indirect elections of the local government in Punjab, the governor promulgated a Punjab Civil Administration Ordinance (PCAO) in the last week of December 2016. The ordinance claims to “institute a comprehensive system of civil administration in the Punjab for efficient administration, improved service delivery, better coordination, supervision and regulatory enforcement, and for ancillary matters.”
The Ordinance, initially, triggered a controversy on the regulatory control of ‘law and order’ and ‘public safety’ in which police high-ups resisted subordination to the restored offices of the Deputy Commissioner (DC). This led to an institutional contest of control and authority between two powerful groups of civil service — DMG and Police which is being mediated by a committee nominated by the chief minister of the province.
We are deafened with a familiar noise of arguments and counter-arguments between Pakistan Administrative Service (PAS) and Police Service (PS) as who should preside the destiny of the hapless people at the local level, and who should have the final word to sanction whipping to the ‘unruly’. As nostalgic children of Imperial Civil Service (ISC), the PAS is building its case to reclaim its power by quoting archaic Criminal Procedure Code of 1898; while PS is alluding to an elusive Police Order 2002 to protect their ‘independence’. The power-wrestling, conveniently, remains within the non-elected elites of public administration without even a passing mention to the elected lot of the local government.
Nonetheless, constitutionally, PCAO needs to be tested at the touchstone of Article 140 (A) which reads: “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 governments.”
PAS-PS debate aside, the PCAO, however, seems to have defied the constitutional command intended to deepen the culture of democratic devolution by instituting an administrative infrastructure of ‘political executives’ at the lowest tier of governance. The current legal instrument, in fact, reinforces a vertically derived concentration of power in the office of refurbished DC at the district level undermining the role of elected branch of the local government with inherent sub-ordination to the non-elected executive branch of district administration. Article 140 (A) clearly requires to devolve political, administrative and financial authority to the elected representatives of the local government.
For example, section 11 (4) of the Ordinance remains conspicuously silent on the role of the local government in relation to the oversight of public services and facilities. The section empowers DC to recommend punitive action against any official on non-compliance of his/her directions related to public services and facilities to the provincial government through the respective commissioner.
Local government is not even in the reporting loop on the oversight of local services and the whole business is going to be managed between the provincial government and the administrative representatives thereof at the district level.
Inversely, section 12 (4) dealing with calamities, binds the local governments to abide by the ‘request’ made by or on behalf of the DC to assist him, or officers subordinate to him as may be necessary in the circumstances. This section overlaps with relevant sections of the Punjab Local Government Act 2013 which give the local governments a role of support and assistance to the relevant authorities in managing relief in case of a calamity.
Apart from implicit over-riding effect of the opinion of DC viz-a-viz head of the district police in case of ‘consultation’ on measures related to law and order and public safety (sec 5-e), all offices in the district including local government come under the inspectorial gaze of the DC. He/she, however, is exempted from any horizontal accountability from the peer at the district level.
According to section 14(2) of PCAO, the DC has power to issue directions of production of record for inspectorial purposes to any office of the district including head of the local government. However, the head of the district/local government has no right to inquire about the functioning of the DC office.
Local government also has no role in the performance evaluation of district administration as the function is restricted to the commissioner and DC by reporting the performance of heads of offices and officers incharge to the provincial government. The DC has judicial powers. This defies the principles of ‘separation of power’ as a foundational element of the rule of law. They have successfully stitched the Roman robes of regent all over again and celebrate a sense of self-congratulation.
These provisions indicate that the PCAO has created a constitutional anomaly by recreating a parallel and over-centralised structure of administrative oligarchy giving inspectorial and oversight control to the DC.
This would effectively sideline the elected local governments with a marginal role as subordinate to the directions of DC on important matters regulating governance of service delivery at the grassroots levels.
The promise of devolution through this Ordinance has been reversed in Punjab and ‘miniature viceroy’ of the erstwhile empire has landed again to dictate the politics of administrative patronage in an evolving democratic republic. This might represent an interesting case of mutual exclusivity between the intent of the constitution and desires of the ruling elite in Punjab doing disservice to the objectives of transitional democracy and democratic devolution as initiated by the 18th constitutional amendment in 2010.