Critique of the functional assignment architecture of Punjab ’ s local governance legislation of 2013 & 2019 Commonwealth Journal of Local Governance

In 2013 and 2019, the local government legislation of the province of Punjab in Pakistan saw two rounds of major changes – each of which led to a new local government Act being passed. In 2013 the changes were driven by constitutional and judicial requirements and in 2019 by the political will of Pakistan’s new coalition government. This article analyses and compares the functional assignment (FA) architecture of the two Acts against a set of parameters. The study finds that marginal improvements to the FA architecture introduced by the 2019 Act are offset by continuing inconsistencies and lack of clarity over ‘who does what’ in the functions assigned to local governments. The authors suggest that improving the functionality of local governments requires full implementation of the design features of the new system, including institutional strengthening of provincial-level entities which regulate and oversee the local government system. Introduction Functional assignment (FA) is a diagnostic approach which seeks to specify the exact roles and functions of each level in a system (i.e. ‘who does what’). In recent years it has become a key concept in the academic discourse on decentralisation and local governance, following a growing realisation that judicious FA choices are an important component in the division of power and functions in a multilevel governance system, and a key element of strategies to strengthen the functionality of subnational governments (Ferrazzi 2005; GTZ 2009; Ferrazzi and Rohdewohld 2017). As a technique, FA has gained considerable traction in Asian-Pacific countries, and can be seen in Indonesia (Ferrazzi and Rohdewohld 2017), India (Aiyar 2015; Davis 2016), Cambodia (Ferrazzi and Rohdewohld 2017; Moazzam Ali Janjua Independent Development Consultant Islamabad Pakistan Email: majanjua58@outlook.com


Introduction
Functional assignment (FA) is a diagnostic approach which seeks to specify the exact roles and functions of each level in a system (i.e. 'who does what'). In recent years it has become a key concept in the academic discourse on decentralisation and local governance, following a growing realisation that judicious FA choices are an important component in the division of power and functions in a multilevel governance system, and a key element of strategies to strengthen the functionality of subnational governments (Ferrazzi 2005;GTZ 2009;Ferrazzi and Rohdewohld 2017). As a technique, FA has gained considerable traction in Asian-Pacific countries, and can be seen in Indonesia (Ferrazzi and Rohdewohld 2017), India (Aiyar 2015;Davis 2016), Cambodia (Ferrazzi and Rohdewohld 2017;

Independent Development Consultant Islamabad Pakistan
Email: majanjua58@outlook.com
During the last decade, Pakistan has experienced two rounds of extensive local government reforms.
The first (2010)(2011)(2012)(2013)  To carry out this analysis, the authors have applied the conceptual framework developed by Ferrazzi and Rohdewohld (2017), which distinguishes two major archetypes of FA architecture (i.e. the 'general mandate' and the 'list model'), differentiates different types of functions (such as 'obligatory' and 'discretionary'), and examines the process for making assignment decisions regarding the application of criteria and the involvement of sector institutions (see Table 2). The paper then seeks to link this FA analysis to an overall assessment of the functionality and performance of the province's local government system. However, the authors are aware that this effort is constrained by two main factors: the lack of empirical evidence as to the efficacy or otherwise of the Punjab local government system operating since 2013, and the fact that the changes introduced in 2019 have been mostly informed by the political priorities of the new PTI-led provincial governments rather than by observable, empirical shortcomings (or successes) of the legislative framework established in 2013.

Methodology and structure
The paper is based on a desk review of the two local government acts of the province and related legal instruments, and a review of existing literature. The analysis of the acts follows the analytical framework used by Ferrazzi/Rohdewohld (2017) for other Asian countries (see Table 2).
The paper first contextualises the 2013 and 2019 reforms and outlines the main design features of both laws. The second part analyses their functional assignment architecture. The third part discusses the potential impact of the chosen functional assignment architecture on the overall performance and 1 The 2019 legislation was split into two Acts: in addition to PLGA-19, the Punjab Panchayats and Neighbourhood Councils Act 2019 deals with the newly-created level of panchayats and neighbourhood councils. This paper, however, focuses only on PLGA-19.

CJLG 2019
3 functionality of the local government system and summarises some policy recommendations for making the local government system more workable.

Context and main features of PLGA-13 and PLGA-19
Pakistan has had a chequered history when it comes to local government systems. Its "countercyclical pattern of local democracy" (Cheema et al. 2015, p. 68) saw military governments introduce systems of local representation and political participation (such as in 1959by General Ayub, in 1979by General Zia, and in 2001, only for these to be scrapped once a civilian government returned to power. 2 As a result one can argue that in Pakistan, decentralisation "suffered from democratization" (Ferrazzi and Rohdewohld 2017, p. 188). It was not until the 18 th Constitutional Amendment in 2010 that local governments gained legal protection and provinceswhich were given sole jurisdiction over local government affairswere compelled, under Article 140A, to devolve political, financial and administrative responsibilities to elected representatives of local governments (PILDAT 2013;Ali 2018). In Punjab, these changes resulted in the formulation of PLGA-13. However, as the completion of local elections under this Act was severely delayed, it was not until January 2017 that elected local representatives assumed office (CLGF 2018).
PLGA-13 and subsequently PLGA-19 stipulated several types of local governments for urban and rural areas (see Table 1). Union councils were established as a lowest tier of local government everywhere except under municipal committees (see Table 1). PLGA-13 further established district health authorities and district education authorities as separate types of local governments. However, Afzal (2018) described them as "a local government project in name only" and as "mere outposts of the Punjab provincial government" because their institutional set-up reinforced the dominance of provincial-level institutions. 3 Tellingly, also, the law did not establish a hierarchical or functional relationship between the levels or types of local government. The only direct link established was that between rural union councils and CJLG 2019 4 their local district council: on the one hand the chairpersons of these union councils were made exofficio members of the district council, and on the other the district council was given authority to "…exercise general supervision and control on the performance of functions by the Union Council" in those cases where rural union councils "having urban characteristics" were given a wider set of (municipal) functions with the approval of the district council (see PLGA-13, Section 72(2) & (3).
Similarly, chairpersons of urban union councils located within municipal and metropolitan corporation areas were made ex-officio members of their respective corporations. However, PLGA-13 created no established relationship or coordination arrangement within the district between any of municipal committee, municipal corporation, metropolitan corporation and district council. The law was also silent on cross-border cooperation between local governmentsdespite this being an important issue for services such as waste management, the environment, water and sewage, and for the integrated development of the district. Here, the PLGA-13 deviated from its predecessor the PLGO 2001, which had envisaged a District Mushavirat Committee for such purposes.
While PLGA-13 was based on the concept of devolution, in practice the devolution of administrative authority was severely restricted, and the overall administrative set-up of the province was never aligned with the political set-up of the local government system, therefore perpetuating a disconnect between the political, fiscal and administrative dimensions of decentralisation (Ferrazzi and Rohdewohld 2017). With the exception of a small, local cadre of public employees, local governments were given no autonomy to appoint or dismiss staffthis remained a prerogative of the provincial government. PLGA-13 also applied the concept of delegation between provincial-level and local governments (Section 65(1)), and also within the local government system to the extent that, in principle, district councils, municipal corporations and metropolitan corporations could delegate functions to the union councils (Section 66(1)). These options, however, have (as far as the authors are aware) never been attempted or utilised.
PLGA-13 was short-lived. Conceived in the context of the 18 th Constitutional Amendment, and The province's local governance legislation also provides for a 21-month transition period; as a result, local elections at any tier will not take place before the end of 2020. Until then, local government units are run by administrators appointed from the civil service.

The functional assignment architecture in PLGA-13 and PLGA-19
The FA analytical model proposed by Ferrazzi and Rohdewohld (2017)  Applying this analysis to PLGA-13, it can be seen that its FA was of the 'positive list' type: that is, the law stipulated lists of functions for the different categories of rural and urban local governments.
However, there was some ambiguity as to whether these lists were 'open' or 'closed' as defined in the Ferrazzi/Rohdewohld model. This paper argues that they were essentially closed lists, albeit with two broad exceptions. Firstly, union councils were allowed under Section 72(1)(g) to "take other measures likely to promote the welfare, health, safety, comfort or convenience of the inhabitants of the Union Council"; and secondly, district councils were allowed under Section 77(r) to "undertake other developmental activities". Both these types of local government were therefore empowered to tackle issues not mentioned explicitly in their list of functions. However, the authors consider that these powers were too weakly worded in the overall context of PLGA-13 to be regarded as some kind of 'general mandate' for local government. This view is supported by the fact thatas pointed out by a number of observers -PLGA-13 did not cover all public authorities operating in the local governance sphere.
Some agencies remained outside the control of local governments: notably, the Lahore Development Authority (and similar development authorities in other cities), the Parks and Horticulture Authority, and the Punjab Agricultural and Meat Company (PILDAT 2013).
Another weakness of PLGA-13 was that it did not distinguish between 'obligatory functions' and 'optional functions'; all listed functions appeared to be of equal significance. A long list was stipulated (see below), but without specifying the criteria and considerations used to assign functions to the different types of local governments. Only one consideration was mentioned in the Act, namely "improved and efficient service delivery to the citizens" (see Preamble and Section 65). Other criteria used in FA processes elsewhere (e.g. economies of scale, capacity, the ubiquitous 'subsidiarity') are not alluded to. There is also no evidence that any wider consultation on this issue took place in the preparation of the Act, or that any structured process was used to decide how functions should be assigned to levels of government.

Janjua & Rohdewohld
Punjab All local governments were also tasked with land use and spatial planning (including those union councils 'having urban characteristics'). Significant functions for economic development were mentioned mainly for the municipal and metropolitan corporations, which were empowered to "promote technological parks, cottage, and small and medium size enterprises" (Section 87(1)(cc)). Likewise, under Section 87(2) both metropolitan and municipal corporations could "…entrust any of [their] functions to a person, an authority, agency or company through a contractual arrangement, on such terms and conditions as may be prescribed". This was in addition to the option to delegate functions to other local governments as described above. This stipulation in PLGA-13 was in marked contrast to the KP Local Government Act 2013, whose Section 115A clearly stipulated the contractingout of services as an exclusive responsibility of the provincial government.

Functional assignment under PLGA-19
The PLGA-19 does not deviate substantially from its predecessor as far as the basic features of its FA architecture are concerned: it follows the list model and also avoids explicitly defining functions as either 'obligatory' or 'discretionary'. As in 2013, there has been no structured process to discuss the assignment of functions with the provincial sector departments. Still, some modifications are noteworthy. For example, Section 5 (1) outlines in a very general manner the purpose and functions of local government by stating that, subject to and to the extent given under PLGA-19, "every local government shall have the authority to run the affairs of [its] respective local area without improper interference". This mandate will include to: exercise its authority and to incur expenditure in the best interests of the residents without any favour or prejudice in a democratic and accountable manner, to involve all residents in running its affairs and from time to time consult them on the level, quality, range and impact of services, to provide services in a financially and environmentally sustainable manner, to give equitable access to services; and to promote and undertake development in the respective local area (Section 5(2).
This formulation, weak as it is, gives at least some direction for the purpose and the activities of a local government. Like its predecessor, PLGA-19 stipulates that local governments must work 'within the provincial framework'; it also includes a considerable number of stipulations allowing the provincial government to direct local governments to undertake initiatives, to prevent local governments from other initiatives, to suspend and dissolve a local government, and to interfere in the scope of local Depending on their size and type, local governments have functions related to economic affairs (e.g.
economic value chain development); social services (e.g. primary and secondary education facilities; CJLG 2019 13 pre-schools; primary healthcare facilities; children's services; community safety); infrastructure and municipal services (e.g. city roads and traffic management; water supply, sewerage and sanitation; solid waste management; building regulations; land use planning; burials and cremations; public conveniences; slaughtering of animals; licensing markets and fairs; parking; transport, parks and landscape development; signboards and advertisements; regulatory enforcement in assigned areas); citizen registration (e.g. registration of births, deaths, marriages and divorces); cultural affairs (e.g. arts and recreation, museums, galleries, libraries, sports); emergency planning and relief; and environmental health and awareness services.
However, the formulation of the functions is often vague (the term 'value chain development' is a good example), and for numerous functions a more detailed unbundling and discussion with the sector institutions concerned will be required to give clarity to local governments on what is expected and/or permitted. A positive innovation of the law relates to municipal services within the territorial jurisdiction of metropolitan corporations: Section 21(2) of the PLGA-19 eliminates the duality of politically elected local governments and technical-administrative service providers (such as local development authorities, water and sanitation agencies, solid waste companies, parking companies, park and horticulture authorities etc.) which have been accountable only to the provincial government.
The metropolitan corporations' full control over these service providers signifies a significant increase of their operational and political space and will hopefully remove the existing overlap of mandates between the provincial and local level

Discussion and recommendations
The FA architecture of PLGA-19 shows marginal positive changes compared to its predecessor legislation. It provides the option to strengthen the functional responsibility of metropolitan corporations, by bringing previously semi-autonomous public authorities (which deal with local government functions but are run by the provincial government) under the control of elected metropolitan mayors. 7 It also widens the scope of local government functions, as education and some health functions are assigned once again to the local governments (rather than residing in structures which are devolved in name only). Overall, PLGA-19 focuses strongly on the obligation of local governments to deliver services (Janjua and Rohdewohld 2019).
However, a note of caution is in order. The wording of the functions (in the various Schedules) is open to widely differing interpretations, as well as confusion between the local and the provincial levels.
Insufficient involvement of sector departments in the drafting of the Act accounts in part for this lack of claritybut redressing this shortcoming will require substantial inter-departmental engagement between key provincial regulatory departments such as Planning, Finance, and Local Government & Yet such discussions will be essential. The fiscal decentralisation concept embedded in PLGA-19 includes an element of performance measurement, as well as fiscal rewards for strong performance in service delivery; however, applying such a concept in a meaningful manner requires the clear delineation of local government functions and a subsequent determination of performance standards.
Such clarification would also facilitate better targeted and holistic capacity development interventions both for local government officials and elected representativessomething that was widely missing under PLGA-13.
Another problem with PLGA-19 is the Act's undeclared use of different modalities of decentralisation (delegation, as seen in the functions listed in Part 1 of Schedules III to V; and devolution, as seen in the functions listed in Part 2 of the same Schedules). These different modalities risk leading to opaque relationships between the provincial and local levels since, by definition, technical and legal oversight should be much stronger for delegated functions than for devolved functions; for the latter, oversight should be limited to legal aspects. The authors recommend a more precise conceptual distinction between the two modalities in PLGA-19 to facilitate the establishment of adequate reporting and oversight mechanisms.
As of late 2019, litigation against the PLGA-19 was ongoing at the Lahore High Court (and with the potential to be referred to the Supreme Court of Pakistan). Nevertheless, the provincial government was publicly maintaining its intention to conduct first local elections of village panchayats and neighbourhood councils by the end of 2020, and in the second phase will go for elections under PLGA-19. The provincial government needs to act swiftly to clarify the functional responsibilities of the local governments vis-à-vis the provincial sector departments well before the inductions of elected representatives. Without such clarification, it will be impossible to create clear accountability mechanisms between local communities, their elected representatives and the local administration.
In light of the above concerns, the authors conclude that the marginal improvement of FA architecture in PLGA-19 compared to PLGA-13, as reported above, will not automatically result in better local government performance (or better service delivery). In the past, reforms of the local government CJLG 2019 15 system have too often suffered due to lack of proper implementation, 8 inconsistent policies, 9 and fragmentation of the institutional structures and processes which enable local governments to function.
Punjab's 2019 legislation is more challenging and complex than that of 2013, and therefore demands more capacity from key provincial institutions to steer, monitor and guide its implementation. At a practical level, this means the availability of relevant data and information, the ability to analyse existing information against declared policy intentions, and the institutional capability to formulate and enforce policy changes. Therefore the proper establishment, resourcing and performance of institutions like the Punjab Local Government Finance Commission, the Punjab Local Government Commission, the Punjab Local Government Board and the Inspectorate of Local Government, as well as the interaction between district administrations and local governments, will be crucial; as will the ability of the Punjab Local Government & Community Development Department to oversee the local government system, identify and analyse policy implementation issues, and create consensus between sector departments.