Democratic Decentralization and the Judiciary (R-1)

Democratic Decentralization and the Judiciary (R-1)

Publication details

  • Thursday | 02 Jan, 1992
  • Tariq Banuri
  • Research Reports,Project Publications
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The main thesis of the paper is that democratic decentralization is impossible without strong and effective judicial institutions at the local level. In order to make this argumant  the  paper  reviews theoretical and empirical views on decentralization and participation.  This is followed by description of the systems of governance in four selected countries: Pakistan, India, the United States, Britain, and Japan, with a specific focus on centralization versus decentralization.  Three themes emerge: a) the variety of models of national governance; b) the tension between administrative and judicial powers; and c) historical continuity.  The third section draws upon the experience of these countries to discuss obstacles in the path of decentralization in Pakistan, especially the prior need for judicial reform.  The author delineates practical institutional solutions to overcome these obstacles.

A nation may establish a free government, but without municipal institutions it cannot have the spirit of liberty.  Town meetings are to liberty what primary schools are to science; they put it within the reach of people, they teach men how to use and how to enjoy it.
Alexis de Tocqueville, Democracy in America

The state comes into existence to ensure life; but once in existence, its objective must be to ensure the good life.
Aristotle, Nicomachean Ethics

In his story, "Servants of the Queen", Rudyard Kipling shows how everyone in British society obeys their superiors' orders: the mules in the battery obey the soldiers who ride them; the colonels the brigadiers, the brigadiers the viceroy, and the viceroy Queen Victoria.  When the queen gives an order, all move in unison and go off to conquest.  The protagonist of the story says to a native who is watching a parade, "Because you cannot do likewise, you are our subjects".

At one time it was believed that collective decision making and societal coordination were possible only through formal and centralized bureaucratic organization.  Many post-colonial countries have spent the last forty years trying to introduce these organizational forms into their societies.  Belatedly, we are learning that there are other paths leading to the square.  The most important of these paths is that of decentralization and participation.

Decentralization and participation are ideas whose time has come.  Increasingly, they are being seen as essential ingredients in the construction of the good society.  In Pakistan, the last decade has witnessed the emergence of a remarkable convergence of fashion on the issue across the political and philosophical spectrum.

The recent election manifestos of almost all major political parties included promises of institutional reform in this direction.  This is not sheer electoral rhetoric; a growing number of the nation's top policy makers, politicians as well as technocrats, repeatedly emphasize the importance of local institutions in national decision making; and some of the proposals have already been incorporated in attempts by provincial governments, particularly in NWFP and the Punjab, to strengthen systems of local decision making.

More specifically, in 1982, the Local Government Commission (the Fakhar Imam Commission, henceforward LGC) solicited the views of intellectuals, social activists, politicians, bureaucrats, local councilors, and local government functionaries; it found a remarkable consensus about the need for decentralization of authority in favour of local councils, the transfer of a number of functions to elected or participatory local bodies, the need for training and upgrading local personnel and functionaries, establishment of local police, enhancement of the powers of local conciliation courts, transfer of revenues or taxation powers, institution of systems of accountability, and improvement of prospects and autonomy of local personnel (GOP 1982: 1-15, et passim).

In the academic world as well, while decentralization and participation have always had their advocates, recent years have witnessed a surge in enthusiasm and a convergence of opinion from a number of quite different streams of literature.  This includes the literature on macroeconomic management and governance (see Banuri 1990, Amadeo and Banuri 1991, Fishlow 1985, Killick 1983); on rural development (Chambers 1983, Khan 1985); on participatory democracy, rural democracy, democratic development, and panchayati raj (Mathur 1991, Zamora 1990, Berger 1976, Poggi 1978, Macpherson 1983); on the informal sector (de Soto 1990, Nadvi 1991, Tripp 1988, Schmitz 1988, 1990); on sustainable development (Agarwal and Narain 1990, WCED 1987, NCS 1991, Banuri and Apffel Marglin 1990); on new approaches to industrial development, particularly the lessons from Italy, Germany, and Japan, as in the model of flexible specialization (Piore and Sabel 1986, Schmitz 1988, 1990, Aoki 1989); on human resource development (Haq 1998, Gran 1983, Hirschman 1984); and the growing concerns over problems created by urban congestion.

Clearly, this enthusiasm is not restricted to Pakistan, since many of the references cited above are international.  Internationally, three factors have influenced the growing respectability of decentralization, all of which reflect an awareness that the earlier trend towards centralization may have reached the limits of its possibilities.  These factors pertain to the nature of management of the national economy and polity, to humans' relationship to nature and natural resources, and to the organization and management of production:
1.    The most important factor, in our ideologically charged climate, is the collapse of the socialist pattern of national organization, the world's major experiment with centralized political and economic management (Kornai 1990).
2.    The global environmental crisis, and the threat that it poses to human survival, has vindicated a number of searching critiques of centralized ways of managing the natural environment.  Here, centralization refers to the nature of social organization as well as to its underlying system of knowledge (Banuri and Apffel Marglin 1989).
3.    The model of industrialization based on a centralized system, namely mass production, came under severe stress during the recent global economic crisis.  Regions or countries which had less centralized arrangements---such as the flexible specialization model in some regions of Europe---showed sustained dynamism and excellent economic performance during the crisis years (Piore and Sabel 1986, Schmitz 1988).

In his classic work, A Study of History, Arnold Toynbee observed that the progress of empires could be summarized in two words, "rout and rally".  In the first stage, as empires become progressively stronger, larger and larger regions fall into line, the lives of more and more people become inter-dependent, and the activities of these growing groups are coordinated by centralized authorities.  But as the centralization gets close to perfection and completion, the rout begins, first at the periphery, gradually moving inward, until the centre itself is destroyed (Toynbee 1961).  Perhaps we are witnessing the rout of the global empire.

This paper is divided into four sections.  Decentralization, section 3 takes up the experience of other countries with both centralized and decentralized arrangements.  Section 4 then uses the conceptual and theoretical conclusions which emerge from this experience to provide policy suggestions for Pakistan.