Zila Parishad Act needs amendment

LOCAL governance as a discourse of political philosophy is not a new one. The theory of liberal democracy suggests keeping up democratic institutions, norms, values and practices both at national and sub-national level. Research also reveals that popular development and good governance could not be possible without effectual democracy at national level and democratic decentralization at the local level.  It requires keeping the both together.  
In practice, taking the political determinants into account, politics on local governance during democratic and autocratic regimes shows difference. The basic objective of Basic Democracy, for instance, was to institute a loyal electorate group, by which General Ayub Khan survived in power. Same is true for General Ershad who tried to establish democratic local governance with the upazila system, but at the same time his intention was to sabotage the democratic spirit at the national level. On the other hand, the elected democratic governments paid less attention to the development of local governance system and practices.  
Moreover, a retrospective analysis on philosophies and practices of the democratic political parties in the post liberation era in Bangladesh shows that magnitude of preferences and consistency of approaches towards good local governance vary to a great extent among the political regimes. The immediately previous regime dealt with a number of policy issues relating to local governance, for example, it passed several Acts/laws related to local governance, reintroduced upazila system, conducted elections of upazilas, unions, municipalities and city corporations, and constituted zila parishads with the appointment of administrators. And the incumbent government - in fact the same one as the previous - has conducted upazila election for another term with indirect participation of all major political parties despite there being questions of fairness of the election.
Importantly, strengthening local government institutions, motivating democratic values and enhancing aptitude of those institutions for sustainable development and good local governance are still missing in general, while challenges to make the zila parishads democratic and effective are central to the contemporary discussions on the local governance. According to  Article 11 of the Constitution : The Republic shall be a democracy in which fundamental human rights and freedoms and respect for the dignity and worth of the human person shall be guaranteed, and in which effective participation by the people through their elected representatives in administration at all levels shall be ensured. Article 59(1) says: Local government in every administrative unit of the Republic shall be entrusted to bodies, composed of persons elected in accordance with law, while  Article 152(1) points out : Administrative unit means a district or other area designated by law.  
In addition,  Section 3(1) of the Zila Parishad Act, 2000  states that in every zila there shall be constituted a Zila Parishad, while Section 82(1) of the same gives emphasis on the provision of appointment of an administrator for an interim period to make the Zila  Parishad functional until the parishad gets constituted according to the law, and Section 4 of the Act prescribes that the Chairman, 15 General Members and 5 Reserved Seated Women Members of a Zila Parishad would be elected by an Electoral College consisting of the concerned Upazila Chairmen, Municipal Mayors and Councilors and Union Parishad Chairmen and Members. Unlike the election procedures of the other local government institutions and of the national parliament, the Zila Parishad election by the Electoral College system prevents the adult populace of the community to directly elect their representatives to the Zila Parishad.
Immediately after enactment of the Act, a writ petition was filed at the High Court by a legislator challenging the legitimacy of its two important clauses: Concerning the electorate system and the provision for appointment of administrators. Following the petition, a bench of the High Court division issued a rule asking the government why these two clauses would not be declared unconstitutional and illegal. So far as is known, the Government is yet to reply to the ruling.
The main concern here is whether the parliament can legislate law provisioning appointment of administrator for leading a local government institution by ignoring the spirit of Articles 11 and 59 of the Constitution. Response here is Article 7 of the Constitution that  ensures the supremacy of the same: 7. (1) All powers in the Republic belong to the people, and their exercise on behalf of the people shall be effected only under, and by the authority of, this Constitution; (2) This Constitution is, as the solemn expression of the will of the people, the supreme law of the Republic, and if any other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency, be void. Furthermore, the verdict of the Appellate Division of the Supreme Court on the case of Kudrat-E-Elahi versus Bangladesh, substantiates that the parliament cannot ignore the spirit of the related Articles of the Constitution.
Consequently, the provision of transitory appointment of administrators in the Zila Parishad Act, 2000, and such appointment itself - made in December 2011 - are unconstitutional and thus illegal. Furthermore, it goes against the constitutional mandate for ensuring democratic decentralization and good local governance. Moreover, the Electoral College System for conducting local government elections does not guaranty the high sense of accountability leverage to the people, and thus people's participation and engagement in local governance and development process are more likely to go astray. Thus, it would be an infringement of Article 11 of the Constitution. Considering these facts, the Zila Parishad Act, 2000, must be revised, and then election to zila parishads needs to be immediately scheduled.

The writer is the Senior Programme Manager at BRAC Institute of Governance and Development (BIGD), BRAC University, and Chairman at Center for Decentralization and Governance Society (CDG). Email:rafiqul.talukdar@gmail.com