LAW
opinion
Constitutional
mandates and court directives must be complied with
Dr.
Badiul Alam Majumdar
According
to newspaper reports, the Government of Bangladesh once
again applied for and obtained yet another extension perhaps
for the 22nd or 23rd time of the time limit for the implementation
of the Directives unanimously given by the Supreme Court
12 years ago in Kudrat-E-Elahi Panir Vs. Bangladesh.
This is unfortunate because it manifests persistent failures
of successive governments to flagrantly and wilfully ignore
these directives for a dozen years, impeding the process
of justice. As the old adage goes, justice delayed is
justice denied.
The
directives
In 1992, the Full Court Bench of the Appellate Division
of the Bangladesh Supreme Court, while upholding the government
decision to cancel the upazila system, issued two very
important directives. They were :
".....With
the re-appearance of Articles 59 and 60 with effect from
18 September 1991, on which date the Twelfth Amendment
of the Constitution was made, these local bodies shall
have to be updated in conformity with Articles 59 and
60, read with Article 152(1) for the lawful functioning
of the said local bodies... as soon as possible in any
case within a period not exceeding four months from date."
"...The
existing local bodies are...required to be brought in
line with Article 59 by replacing the non-elected persons
by election keeping in view the provision for special
representation under Article 9. Necessary action in this
respect should be taken as soon as possible in any case
within a period not exceeding six months from date."
(Kudrat-E-Elahi Panir Vs. Bangladesh)
These
two directives relate to very vital constitutional and
governance issues.
Constitutional
and governance issues
Our Constitution has four Articles Articles 9, 11, 59
and 60 on local governance. The last two articles are
more important in that the Parliament cannot ignore them
in enacting laws and the Court can also legally enforce
them. Article 59(1) states: "Local government in
every administrative unit of the Republic shall be entrusted
to bodies, composed of persons elected in accordance with
law."
That
is, there must be elected local government bodies at each
designated administrative unit. The purpose of such bodies
is "the management of local affairs by locally elected
persons" (Kudrat-E-Elahi Panir Vs. Bangladesh).
It
is clear that having elected local bodies at the District,
Upazila and Union levels, which are already designated
as administrative units, is a mandatory requirement of
the Constitution. The government is bound to abide by
this requirement, if there is rule of law in the country
the Constitution being the highest law of the land rather
than the rule of expediency, convenience or personal whims.
The Court, through its directive to hold elections of
local bodies within six months, rightly reminded the government
of its constitutional obligations.
This
constitutional mandate also specifies a dual structure
of governance in our unitary system. It provides for a
national government with clear and distinct executive
authorities. At the same time, it requires a local government
system with an elected body at each administrative unit.
These local bodies not national authorities are to be
entrusted with the task of governance at the local level.
In that they are to be responsible for administration
and the work of the government officers, maintenance of
law and order, delivery of all public services, and also
planning and implementation of all local economic development
activities (Article 59 (2)). Thus, the local bodies are
to form a system of self-government, responsible for the
decision making as well as the implementation of various
schemes and programs. In other words, like the national
government, local government is also a distinct government.
The
constitutional mandate clearly requires that the local
bodies not be subservient to national authorities. As
the Appellate Division of the Supreme Court stated, "If
government's officers or their henchmen are to be brought
in to run these local government bodies, there is no sense
in retaining them as local government bodies" (Kudrat-E-Elahi
Panir Vs. Bangladesh). This unanimous pronouncement of
the apex Court thus leaves no doubt that the Constitution
requires the local bodies to form an autonomous system
of government at the doorsteps of the people, rather than
being extensions of the national government. That is,
according to our Constitution, the task of governance
at local levels at all designated administrative units
are to be carried out by elected local representatives
elected for that purpose rather than by non-elected government
officials or anyone else, for that matter. Unfortunately
the opposite has become the case in our country, in total
defiance of the Constitution. The Supreme Court directive
for holding local body elections at all administrative
units was intended essentially to remedy this void.
It
should be noted that the constitutional provision for
a system of self-governing local bodies serves two very
important purposes. First, it explicitly provides for
a structure of grassroots democracy by ensuring "effective
participation by the people through their elected representatives
in administration at all levels" (Article 11). In
fact, it is intended to widen and deepen our democratic
system by giving power to the people, which is the very
essence of democracy. By requiring a system of autonomous
local governance, the framers of our Constitution also
implicitly provided for an additional form of checks and
balances addition to the three interdependent branches,
namely the executive, legislature and the judiciary in
our constitutional scheme.
Nevertheless,
for the last 12 years the successive governments continued
to deliberately and blatantly ignore the Supreme Court
directives to enforce the constitutional mandate.
By
not holding both the Upazila Parishad and Zila Parishad
elections, the leaders of government have not only been
brazenly violating the Constitution and openly flouting
the Supreme Court, they have also been defying their own
oath of office to "preserve, protect and defend the
Constitution." They have even been ignoring their
own election pledges. In its election manifesto published
prior to the Parliament elections of 2001, the ruling
BNP announced that :
It
must be pointed out that the violation of the Constitution
and the defiance of the Court directives have discouraged
the development of local government institutions (which
itself is a violation of Article 9). They have also prevented
the emergence of a new cadre of leadership from the grassroots.
More seriously, the persistent violations and defiance
have altered the structure of our governance. This allowed
government functionaries to undesirably exercise powers
and authorities that rightfully belong to elected local
representatives. Governance at the Upazila and Zila levels
are now carried out by non-elected officials with no opportunities
for the people to participate (a violation of Article
11) rather than by elected representatives, as envisaged
by the Constitution. The government's defiance thus led
to the disempowerment of people instead of empowering
them, which is the essential prerequisite of a democratic
polity. It must be remembered that true democratic governance,
of which local governance is a core element, is designed
to bring government within the reach of the people in
order to prevent the tyrannical behaviour of a few people.
In
this context, it should be noted that upazila system represented
an important step toward democratic decentralisation.
The Supreme Court's affirmation of the cancellation of
the system on a purely technical ground that the upazila
was not designated as an administrative unit has had severe
adverse impacts. Many now feel that if the upazila system
remained in place, the quality of our governance would
gradually improve rather than progressively deteriorate,
as has been the case in the past decade with opportunities
for greater public participation and scrutiny. The elected
Members of the Parliament would also have to behave more
responsibly and concentrate on exercising their constitutionally
mandated "legislative powers" (Article 65) rather
than indulge in extra-constitutional task of directing
local development.
It
may be noted that our traditional field-level administration
is now in the brink of total collapse and our already
feeble local government system is about to become totally
irrelevant because of the institution of an informal mechanism
of "MP government," consisting of local MPs
and their party colleagues. This phenomenon, created during
the past decade of our democratic rule, is now causing
havoc in the administration across the country.
Correcting
technical flaws
The Supreme Court's second directive to update the local
government bodies is also important in that it would help
correct some serious technical flaws in the existing statutes
on local government. The technical flaws arose due to
the passage of the Twelfth Amendment of the Constitution
in 1991. It may be recalled that Articles 59, 60 and the
last part of 11 were deleted in 1975 by the Fourth Amendment
of the Constitution, creating a total constitutional vacuum
with respect to local government. The Paurashava Ordinance,
1977 and The Union Parishad Ordinance, 1983 were enacted
in the backdrop of such a vacuum. In the absence of constitutional
mandates, these two laws made Paurashavas and Union Parishads
as bodies totally subservient to national authorities.
For example, the Paurashava and Union Parishad laws allowed
the government officials to directly supervise, direct
and control the local bodies. They were even given the
authorities to cancel these bodies and suspend the elected
representatives. More seriously, the laws designated elected
representatives as "public servants," allowing
the higher level public servants, i.e., government officials
to impose unnecessary, unreasonable and unjust control
over the latter's activities. The Twelfth Amendment of
the Constitution which restored Articles 59 and 60, requiring
an autonomous system of local government clearly made
the above laws unconstitutional. This obviously required
the laws to be amended and updated, and the Supreme Court
rightly directed the government to do so.
It
must be pointed out that The Upazila Parishad Act, 1998
and The Zila Parishad Act 2000 followed the other two
statutes in making the elected bodies subservient to government
officials, and similarly violated the Constitution. The
Upazila Parishad Act, however, has an additional serious
flaw. Section 25 of the said Act requires the Upazila
Parishad to accept the advice of the local MP. This turns
legislators into executives, which is a violation of the
principles of separation powers and a clear assault on
the Constitution.
Can
the government justifiably ignore the Supreme Court directives?
An Indian Supreme Court judgement may be pertinent in
this regard. In PUCL and another Vs Union of India, the
Court directed the Election Commission to collect from
candidates in national and state elections sensitive information
about their criminal antecedents, assets and liabilities
and their educational qualifications, and help disseminate
them among the public. The NDA government, with support
from all other political parties, rejected the Supreme
Court decision and decided to undo it through legislation.
In response, the Court unequivocally stated that the "Legislature
in this country has no power to ask the instrumentality
of the State to disobey or disregard the decisions given
by the Courts." It thus appears that the government
has no alternative but to hold the Upazila and Zila Parishad
elections without any further delays and also amend the
laws, as directed by the Court.
It
may be pointed that even though the government has been
showing its total disregard for the Constitution and flagrantly
and wilfully ignoring the Supreme Court directives, no
one seemed to be bothered about it although, as already
noted, very serious constitutional and governance issues
are involved.
By
contrast, one can help but notice the keen interest and
activism of both the legal community and even the donors
for the implementation of the Supreme Court's landmark
judgement in the Secretary, Ministry of Finance Vs Md
Masdar Hossain, requiring the separation of judiciary
from the administration. Such activism should obviously
be appreciated and must be extended to other important
judicial decisions.
The
next hearing date for the government's prayer for yet
another extension is exported to be set. We sincerely
hope that the Supreme Court, as the guardian of our Constitution,
will ensure that the government meets it constitutional
obligations by the speediest implementation of the Court's
directives. With regard to holding elections, the Court
may even consider directing the Election Commission to
set dates within a specific time limit. We strongly feel
that there is no more room for allowing the government
to continue playing the same old game of routinely asking
for extensions and in the process ignoring the Constitution
and flouting the Court directives. Clearly, what is now
at stake is the rule of law that is, maintaining the supremacy
of the Constitution. The absence of the rule of law, we
must not forget, is the prescription for anarchy.
The
author is the Country Director, The Hunger Project-Bangladesh.
