14 Amendment of the Constitution
Why
successive governments have neglected local government?
Anisur
Rahman
The government has piloted a package amendment bill to the Constitution
in the Parliament which is now waiting for approval of the house of
the nation. The proposed bill advocates inter alia to insert Article
65 (3) in order to reserve 45 seats in the Parliament for the women
and to add sub article 59 (1) (A) and 59 (1) (B) in the Constitution.
The sub-article 59 (1) (A) proposes that no elected body in the local
government institution at any level will continue after the expiry of
its tenure prescribed by law. And from the expiry of this tenure a government
official/ an administrator will be appointed to run the administrative
works of the said local tire until the new elected body enters into
the office. On the other hand the sub-article 59 (1) (B) proposes for
the election of the local government within 90 days after the body is
dissolved whether by law or otherwise. Among these two proposals the
later deserves some special attention since it relates to the local
tire of the government in the grassroots level. The another reason is
that the political position of the BNP relating to the local government
seems unclear as it dissolved the Upazila Parishad and could not come
to a decision whether the election of the Parishad will be held.
Meanwhile
the Chairman of the Union Parishads under the banner of National Union
Parishad Forum (NUPF) and Chairman of the Municipalities under the banner
of Municipal Association of Bangladesh (MAB) have opposed the bill.
They termed it undemocratic as well as unconstitutional and expressed
their anxiety that it will increase the power of the bureaucrats over
the local elected bodies. They were also dubious of the government's
move and said that it desires to establish its ascendancy over local
government institution. On the other hand the government argues that
the amendment was proposed to hold the election in due time after the
expiry of the tenure of the elected bodies. It also argues that since
the election of the local bodies were protracted due to injunction of
the court relating to legal difficulties in some cases, there will be
no difficulties after the amendment. Both the arguments have some reasons
in its favour and deserve to spell them out properly. Therefore, let
us have a look at the proposals.
Proposed
amendment
The proposed amendment includes two things in regard to local government,
a) election of local bodies within 90 days and b) appointment of government
official. It is praiseworthy to make the mandatory provision for holding
election of local tires within 90 days. It is the local government institution
where the election takes place regularly, though not timely mainly due
to court cases. Mandatory provision in the Constitution will ensure
the election of these local tire in due time. There is a same provision
in the Constitution for the election of the Parliament. The election
of the Parliament must be held within 90 days from its dissolution.
The only exception is the 'act of God'. But in the case of local government
there is no exception mentioned in the proposed amendment. That is by
no means election will not be delayed more than 90 days. Then the basic
question raises here is that what will be happened where there is a
court case and the injunction of the court to not to hold election?
Will the election take place defying the order of the court? If that
will happen it may violate the right to get justice, one of the fundamental
rights guaranteed by the Constitution. And it may go also against the
concept of natural justice.
The
second part of the amendment is to hand over the administration of the
local body to the government official/administrator during the election
period. There is no doubt that it will go against the basic concept
of the local government as well as against the Article 59 of the Constitution.
Article 59 Provides inter alia that local government shall be entrusted
to bodies composed of person elected in accordance with law. "For
an institution to be a local government under the Constitution two requirements
are to be fulfilled. One is that a Local Government is constituted in
an 'administrative unit' and the other is that the Local Government
is entrusted to a body composed of elected person (Kudrat E-Elahi Panir
Vs Bangladesh, 44 DLR, AD, 1991). Therefore by no means the powers of
the local government will be entrusted to non-elected person, i.e. the
government official whether for short time/interim period. Local government
institution (except Divisional Council and Union Pancayet) was run by
the Administrator till 1972 when the Constitution did not come into
force. But the Constitution does not leave any room for the government
to appoint its officials in the local tires at all. Any such attempt
on the part of the government will undoubtedly go against the decision
of the Appellate Division of the Supreme Court (Qudrat-E-Elahi Panir
VS Bangladesh) and obviously the Constitution.
Concept
of basic structure
Democracy is one of the pillars which build the edifice of our Constitution
(Anwar Hossain Case 1989). The Constitution speaks for the representative
democracy that requires people's participation in the administration
of all levels through their representative (Art. 11). From this article
we unequivocally can say that local government is the basic structure
of our Constitution. Therefore any attempt to amendment which may destroy
the norms of democracy, i.e. local government will be unconstitutional.
It is established in the 'Anwar Hossain Case' popularly known as the
8th amendment case that parliament has no authority to amend the basic
structure of the Constitution. And thereby the 8th amendment of the
Constitution was declared unconstitutional on the plea that it went
against the basic structure of the Constitution. The Parliament is the
creation of the Constitution and it can not amend the basic feature
of the Constitution. " The amending power is but a power given
by the Constitution to Parliament, it is a higher power than any other
given by the Constitution to Parliament, but nevertheless it is a power
within and not outside the Constitution (Anwar Hossain Case, Justice
BH Chowdhury, para- 195)."
Legacy
of Qudrat-E-Elahi case (44 DLR, AD, 1992)
In this case the question arose whether the Upazila Parishad is a 'local
government'. The Upazila Parishad was established in 1982 by the Ordinance
No 59 of 1982 and later it was abolished by Ordinance No 37 of 1991.
The law which enacted to abolish the Upazila Parishad was challenged
on the ground that it is unconstitutional. It was argued by the aggrieved
party that since the Upazila Parishad is a Local Government abolition
of it will go against Article 59 of the Constitution and the law should
be declared void. But the Appellate Division of the Supreme Court in
its judgement said that Upazila Parishad does not fall within the purview
of local government as it is not mentioned as 'administrative unit'
in the Constitution or any other laws. Consequently the Upazila Parishad
was abolished and till today the government is under a dilemma to reconstitute
it.
Now,
what is the status of the Upazila Parishad? The Parishad is runs by
the government official instead of elected representative. All the powers
and all administrative set ups remain in the Parishad. So how can we
say that the Parishad is abolished? The abolition must be total abolition
(Justice Latifur Rahman in Qudrat-E-Elahi Case). The power, function
which the central government handed over to the Upazila Parishad to
perform its activities as 'local government' should go back to the central
government. But in practice all these are remain in the Parishad and
being enjoyed by the government officials. Therefore how can we say
that it is not an administrative unit?
It
is worth noting here that when the Union Parishad was created it was
not mentioned as 'administrative unit' in the law. Later on the Act
was amended to declare the Union Parishad as an 'administrative unit'.
Our hon'able court could have took the chance to advice the government
to amend the Act instead of declare Upazila Parishad as 'non-administrative
unit'. Some one may say that it is the duty of the court to decide right
and wrong or to interpret the Constitution instead of giving any advice
to the government. Against this view it can be said that though the
Act did not mention Upazila Parishad as an administrative unit it had
its de facto existence (the highest court did not declare military
rule unconstitutional as it had de facto existence). Supreme
Court is also the sole institution to interoperate the Constitution
to give it the real shape. No body can deny that the constitutional
duty of the government is to encourage the local government institution.
The highest court could have advice the government keeping in mind the
de facto existence of the Upazila Parishad.
Concluding
remarks
We can not rule the apprehension of the local leaders out. The local
leaders in a press conference gave an alternative proposal for holding
election before 90 days of the end of their tenure. Some body argue
that if the election of the local government held with the chairman
remains there, there will be some opportunity for him to manipulate
the election process. They add that the provision of Administrator will
be same as the caretaker government. But they forget that the government
official appointed as administrator may be the returning officer during
the election.
So
is not there a chance for the government to manipulate the election
to choose their loyal candidate? Above all, is not the election commission
strong enough to conduct the election of the local body freely? However,
the record of the election of local government does not demand the caretaker
government there. The government should respect the voice of the local
leaders before passing the amendment bill.
Anisur
Rahman is a legal researcher and an advocate of the Judge Court, Dhaka.
