IN THE SUPREME COURT OF Bangladesh
(APPELLATE DIVISION)
Civil Appeals No. 3 of 1992
Decided On: 30.07.1992
Appellants: Kudrat-E-Elahi Panir
Vs.
Respondent: Bangladesh, through the Secretary, Ministry of Local Government,
Rural Development & Co-operative, (Local Government Division), Government
of Bangladesh, Dhaka and anr.
[Alongwith Civil Appeals Nos. 4 and 118 of 1992]
Hon'ble Judges:
Shahabuddin Ahmed, C.J., M.H. Rahman, A.T.M. Afzal, Mustafa Kamal and Latifur
Rahman, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Dr. Kamal Hossain, Senior Advocate, Supreme Court
and Syed Ishtiaq Ahmed, Senior Advocate, Supreme Court, Zakir Ahmed, Advocate,
Supreme Court, with them instructed by Md. Aftab Hossain, Advocate-on-Record in CA
3/1992, M Amir-ul-Islam, Senior Advocate, Supreme Court, instructed by A Basel
Majumder, Advocate on-Record in CA 4/1992, in CP 118/1992
For Respondents/Defendant: Aminul Huq, Attorney-General and AW Bhuiyan,
Additional Attorney-General, Obaidur Rahman Mustafa, Assistant Attorney-General,
with them, instructed by B Hossain, Advocate-on-Record
Subject: Civil Procedure
Catch Words
Mentioned IN
Acts/Rules/Orders:
Constitution Of India - Article 13, Constitution Of India - Article 226, Constitution Of
India - Article 226(1), Constitution Of India - Article 32, Constitution Of India - Article
37, Constitution Of India - Article 40; Constitution Of The People's Republic
Of Bangladesh - Article 102, Constitution Of The People's Republic Of Bangladesh Article 102(1), Constitution Of The People's Republic Of Bangladesh - Article 102(2),
Constitution Of The People's Republic Of Bangladesh - Article 103(2), Constitution Of
The People's Republic Of Bangladesh - Article 11, Constitution Of The People's
Republic Of Bangladesh - Article 149, Constitution Of The People's Republic
Of Bangladesh - Article 152, Constitution Of The People's Republic Of Bangladesh Article 152(1), Constitution Of The People's Republic Of Bangladesh - Article 153(3),
Constitution Of The People's Republic Of Bangladesh - Article 18(2), Constitution Of
The People's Republic Of Bangladesh - Article 26, Constitution Of The People's
Republic Of Bangladesh - Article 39, Constitution Of The People's Republic
Of Bangladesh - Article 48(3), Constitution Of The People's Republic Of Bangladesh Article 49, Constitution Of The People's Republic Of Bangladesh - Article 50,
Constitution Of The People's Republic Of Bangladesh - Article 51, Constitution Of The
People's Republic Of Bangladesh - Article 52, Constitution Of The People's Republic
Of Bangladesh - Article 53, Constitution Of The People's Republic Of Bangladesh Article 54, Constitution Of The People's Republic Of Bangladesh - Article 55,
Constitution Of The People's Republic Of Bangladesh - Article 52(2), Constitution Of
The People's Republic Of Bangladesh - Article 56, Constitution Of The People's
Republic Of Bangladesh - Article 57, Constitution Of The People's Republic
Of Bangladesh - Article 58, Constitution Of The People's Republic Of Bangladesh Article 59, Constitution Of The People's Republic Of Bangladesh - Article 59(1),
Constitution Of The People's Republic Of Bangladesh - Article 59(2), Constitution Of
The People's Republic Of Bangladesh - Article 60, Constitution Of The People's
Republic Of Bangladesh - Article 7, Constitution Of The People's Republic
Of Bangladesh - Article 7(1), Constitution Of The People's Republic Of Bangladesh Article 7(2), Constitution Of The People's Republic Of Bangladesh - Article 8,
Constitution Of The People's Republic Of Bangladesh - Article 9, Constitution Of The
People's Republic Of Bangladesh - Article 12, Constitution Of The People's Republic
Of Bangladesh - Article 13, Constitution Of The People's Republic Of Bangladesh Article 16, Constitution Of The People's Republic Of Bangladesh - Article 17,
Constitution Of The People's Republic Of Bangladesh - Article 19, Constitution Of The
People's Republic Of Bangladesh - Article 20, Constitution Of The People's Republic
Of Bangladesh - Article 21, Constitution Of The People's Republic Of Bangladesh Article 22, Constitution Of The People's Republic Of Bangladesh - Article 23,
Constitution Of The People's Republic Of Bangladesh - Article 24, Constitution Of The
People's Republic Of Bangladesh - Article 25, Constitution Of The People's Republic
Of Bangladesh - Article 8(2), Constitution Of The People's Republic Of Bangladesh Article 93, Constitution Of The People's Republic Of Bangladesh - Article 93(2);
General Clauses Act, 1897 - Section 6(c), General Clauses Act, 1897 - Section 8(c)
Citing Reference:
Discussed
7
Dissented
3
Mentioned
2
Case Note:
Constitution - Ordinance - Legality of - Present appeal filed to challenge judgement
and appeal of High Court Division which dismissed writ petition filed to challenge
the constitution vires Bangladesh Local Government (Upazila Parishad and Upazila
Administration Re-organization) (Repeal) Ordinance, 1991 - Whether High Court
erred in constructing constitution provision - Held, court below made some
quotations from Text Books on various Constitutional law - Abstract theoretical
questions not to be decided by any court, those are of academic importance - State
will not make law contrary to fundamental principles of State Policy - If law made
by ignoring fundamental principles of State policy, Government will answer and
face people who elect them - Court below ought not to have ventured to strike down
Repealing Ordinance as void - Disposed of. [108]
JUDGMENT
Shahabuddin Ahmed, C.J.
1. These two appeals have been brought by a certificate granted by the High Court
Division under Article 103(2) of the Constitution of Bangladesh while dismissing four
writ petitions by a common judgment dated 19 December, 1991. These Petitions are Nos.
2937, 2944, 2945 and 3002 of 1991. Appellants before us were petitioners of two of those
writ petitions, Nos. 2937 and 3002. In those petitions they had challenged the
constitutional validity of the Bangladesh Local Government (Upazila Parishad and
Upazila Administration Re-organization) (Repeal) Ordinance, 1991-Ordinance No. 37 of
1991, on the ground that this Ordinance is inconsistent with Articles 9, 11, 59 and 60 of
the Constitution and as such it is void in terms of Article 7(2) of the Constitution. Among
other things, they alleged that Article 9 requires the State to encourage local government
institutions, but the Ordinance abolished a local government namely the Upazila
Parishad. The learned Judges of the High Court Division, for different reasons, some of
which are common, dismissed all the petitions, but issued the Certificate since the matter
is of public importance involving a substantial question of law as to the interpretation of
the Constitution. Upazila Parishads, formerly named Thana Parishads, were constituted
under the Local Government (Upazila Parishad and Upazila Administration (Re-
organisation) Ordinance, 1982- Ordinance No. 59 of 1982, as amended by Ordinance No.
33 of 1983. The original Ordinance (No. 59) which was named "The Local Government
Thana Parishad and Thana Administration (Re-organisation) Ordinance, was published in
the Gazette on 21 December, 1982 and since then it was amended on 18 occasions. The
second Amendment was effected by Ordinance No. 33 of 1983 and it is this Ordinance
No. 33 of 1983, which changed the names-Thana and Thana Parishad as "Upazila and
Upazila Parishad". Among other things, the Ordinance (No. 59 of 1982) provided for
constitution of a local body, Upazila Parishad, for each Upazila to consist of an elected
Chairman, some representative members namely, Chairmen of Union Parishads, some
nominated members, such as woman and some official members. The Ordinance (59 of
1982) also provided for re-organisation of the general administration of the country at
Upazila level by transferring some powers and functions of the Government to the
Upazila Parishads. These functions were called "transferred subjects" and the functions
retained by the Government were called "retained subjects". The Parishad was made a
body-corporate with perpetual succession, a common seal and right to acquire, hold and
dispose of property, etc. It was to have a Fund of its own, the major contribution, nay, the
entire contribution to it was made by the Government; the Parishad was to have its own
officers and staff to be paid by it, but at the beginning these personnel were provided and
paid by the Government treating them as "on deputation" for the present. The
Government, however, exercised powers of "supervision, direction and control" over the
working of the Parishads and decided all matters of policy.
2. The first election under this set-up was held in 1985 and the second election in 1990.
The appellants were elected Chairman of Sonargaon and Gazipur Upazila Parishads
respectively in the election of 1990 their terms of office were five years, but hardly a year
passed when the impugned Repeal Ordinance was made repealing the Parent Ordinance
(No. 59 of 1982) and abolishing the Parishads constituted thereunder. The Repeal
Ordinance was later on made an Act of Parliament-Act No. 2 of 1992. Among other
allegations made by the appellants, the displaced elected Chairmen, one is that the Repeal
Ordinance is itself invalid since there was no existence of any circumstance which,
according to the President's satisfaction, rendered it necessary to make the Ordinance just
20 days before the session of Parliament was called.
3. Articles of the Constitution, which, according to the appellants, have been violated by
the impugned (Repeal) Ordinance are Articles 9, 11, 59 and 60. Article 7(2) of the
Constitution proclaims the supremacy of the Constitution" as the solemn expression of
the people's will" and provides that if any other law is inconsistent with any provision of
this Constitution, then that other law shall, to the extent of the inconsistency be void.
Articles 9 and 11 are placed in Part II of the Constitution which contains the Fundamental
Principles of State Policy. (Arts 8 to 25.). Articles 9 and 11 as they now stand, are quoted
below:
9. The State shall encourage local Government institutions composed of representatives
of the areas concerned and in such institutions special representation shall be given, as far
as possible, to peasants, workers and women.
11. 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.
4. Articles 59 and 60 fall in Part IV of the Constitution under the tide "The Executive". It
consists of three Chapters: Chapter 1 (Article 48-55) provides for the powers and
functions of the President, Chapter II (Article 55-58) for the Prime Minister and the
Cabinet; and Chapter in (Article 59-60) for Local Government. This chapter consists Of
two articles namely, 59 and 60 which are quoted below:
59. (1) Local Government in every administrative unit of the Republic shall be entrusted
to bodies, composed of persons elected in accordance with law.
(2) Every body such as is referred to in clause (1) shall, subject to this Constitution and
any other law, perform within the appropriate administrative unit such functions as shall
be prescribed by Act of Parliament, which may include functions relating to(a) administration and the work of public officers;
(b) the maintenance of public order;
(c) the preparation and implementation of plans relating to public services and economic
development
"60. For the purpose of giving full effect to the provisions of Article 59 Parliament shall,
by law, confer powers on the local government bodies referred to in that article, including
power to impose taxes for local purpose, to prepare their budgets and to maintain funds.
5. Before the High Court Division, Respondents-State defended the vires of the impugned
Ordinance saying that Fundamental Principles of State policy are not "judicially
enforceable", that these Principles are not laws but are simply guide-lines for the State
including Parliament and that even if any law is inconsistent with the Fundamental
principles that cannot be challenged in court; they contended that the impugned (Repeal)
Ordinance is not inconsistent with Articles 9 and 11. As to Articles 59 and 60, which are
undisputedly enforceable judicially, Respondent's contention was that provisions of these
two Articles would not apply in the case of the Upazila Parishads since these Parishads
are not Local Government within the meaning of Article 59 as the Upazilas were not
designated as administrative units by law for the purpose of Article 59. In support of this
contention they relied upon Article 152(1) of the Constitution which is quoted below:
152(1)- "administrative unit" means a district or other area designated by law for the
purposes of article 59. Further contention of the Respondent was that the State is not duty
bound to establish local government in all tiers or levels of administration, that Article
59, along with its corollary, Article 60, would come into play only when there is a Local
Government established and is in existence under the Constitution, and that it would not
apply when there is no Local Government at all.
6. After hearing the parties at great lengths the learned Judges of the High Court Division
took an unanimous view that the Upazila Parishad was not a Local Government as the
Upazila was not designated as an administrative unit; but as to the inconsistence of the
impugned Ordinance with the Constitution as alleged, the learned Judges differed One of
them held the view that there was not any inconsistency and, even if any, the Repeal
Ordinance could not be declared void in view of Article 8(2) of the Constitution, which
says that Fundamental principles are not enforceable by court. The other Judge took the
view that though Fundamental principles are not enforceable in court but a law which is
directly contrary to any Fundamental principle or which negates such a principle men the
law may be declared void in spite of the provision in Article 8(2). This Article is quoted
below:
8(2). The principles set out in this Part shall be fundamental to the governance
of Bangladesh, shall be applied by the State in the making of laws, shall be a guide to the
interpretation of the Constitution and of the other laws of Bangladesh, and shall form the
basis of the work of the State and of its citizens, but shall not be judicially enforceable.
7. For the appellants learned Counsels-Dr. Kamal Hossain, Mr. Syed Ishtiaq Ahmed and
Mr. Amirul Islam have appeared; Mr. Aminul Huq, learned Attorney-General has
represented the State-Respondent The questions raised by both sides before the High
Court Division have been reiterated in these appeals. Mr. Ishtiaq Ahmed has taken a new
ground in the sense that this ground was not urged with any seriousness in the High Court
Division. The ground is that the Repeal Ordinance is a colourable legislation in that in
form it is a Repealing law, but in substance it continues the Upazila Parishads and vests
the "rights, powers, authorities and privileges" of the Parishads in the Government after
cleverly removing the elected Chairmen and members only. In other words, the learned
Counsels have invoked the doctrine known in judicial pronouncements as "what cannot
be done directly, cannot be done indirectly".
8. Learned Counsels for the appellants have laid great emphasis on the necessity for
functioning of local government bodies with people's representatives for the
establishment of a really democratic government in the country. They have referred to the
Constitution of Bangladesh containing the subject of "Local government" which is a
unique feature of the Constitution. It has been pointed out that in the Constitutions of no
other countries of the Sub-continent provisions of local government have been included
except a passing reference in Article 40 of the Indian Constitution. This Article provides
for encouragement to the growth of village panchayats only. A viable system of local
democracy, it has been urged, makes the concept of government by the people a reality. It
is established, nurtured and developed as an essential part of the fabric of democratic
government To strengthen this view extensive reference have been made to the historical
development of local government institutions in our country as well as in some other
highly developed democracies of the world, particularly England, USA and France.
9. Local government institutions, particularly in urban areas in our countries, have been
modeled on those functioning in the United Kingdom. There the system has reached the
stage of almost perfection through several centuries of uninterrupted growth and
experience. Development of local institutions in England and Wales may be traced back
continuously to the shires, hundreds, boroughs, cities or townships of the two centuries
prior to the Norman Conquest. Since then the system underwent changes and reorganisation on many occasions, each time with enhanced authority and augmentation of
revenues. The last re-organisation of the structure of Local Government Institutions was
effected by the Local Government Act, 1972. At the passing of this Act the following
local bodies were functioning; County Council, Non-county Borough, Urban District
Council, Rural District Council, Parish Council, 32 London Borough Councils, Common
Council of the City of London, Councils of Isle of Selli. All these bodies, big or small,
are fully autonomous, and independent of the Central Government as well as of each
other. All are run by elected persons, and excepting the House of Commons, these local
bodies are the only elements of Government which are the subject of universal suffrage.
These bodies are, however, subject to 'direction, control and supervision' of the Central
Government at Whitehall. Powers of the Local governments bodies, are regulated by Acts
of Parliament. These bodies have their own resources, but in some cases a substantial
portion of fund is provided by the Government which is also the sole authority to frame
policy regarding their functions. In England there is nothing like 'district administration'
as units of the Central Government and, outside the capital city hardly any existence of
the Central Government is felt except the Regional Offices here and there from which
officers of the Central Government exercise the general power of direction, control and
supervision over the local bodies. In addition to Regional Offices the Ministries sitting at
the Whitehall issue guidelines to them. Some of these local bodies are so developed and
managed by men of so much political maturity, administrative ability and sense of
responsibility that practically all powers of the Central Government are exercised by
those bodies. Even the subject of Police administration has been transferred to many of
these bodies. As for example, the Police force of a local body work in co-operation with
and under the supervision of the Chief Constable of Police of the Home Ministry. It is in
matters which affect the country as a whole that the Central Government come forward to
exercise power. One important feature of these local bodies is that they have been
continuously functioning all through. There is no question of dissolution or supersession
of any local body or of temporary taking-over of their functions by the Central
Government Democratic tradition has developed in this field of local Governments in the
case of Parliamentary democracy which also evolved through the experience of centuries.
It is here where our local government institutions differ. Since Independence from the
British, the local government bodies, particularly the District Boards and Municipal
Committees were superseded by the Government very often, not so much on the ground
of inefficiency, mis-management or lack of finance, as on political grounds or personal
rivalries. If the Chairman of a local body was not functioning as 'yes' man of the
Government of the day his committee was superseded which resulted in litigation that
continued for years. During the period of supersession Government took over functions
of a local body and managed them through their officers, such as Sub-divisional Officers,
District Magistrates or Commissioners. Hardly any chance was given for these bodies to
grow on a democratic line by "trial and error'; at least this is the popular belief in our
country.
10. The idea of local government is not a new one in the sub-continental countries,
particularly in Bangladesh. It is said that "village self government here is as old as the
village themselves". From time immemorial council of elders in different names and
forms, such as panchayat, majlish, sabha, samity, were in existence in almost every
village. The village head-man was widely respected and he sometimes sat with other men
of experience and wisdom and solved problems faced by the villagers. The decisions of
the panchayat, Sabha, Majlish, though there was no legal sanction behind them, were
accepted and obeyed. But it is during the British rule when these village councils or
sabhas were given institutional shape.
11. The British rule began from Urban areas-the three Presidency towns in the coastal
belts at the time when the Badshai Firmans reigned supreme over the vast area from
Central Asia to the borders of Arakan. But the narrow strips of land on the coast line of
the country, with foreign trading Centres, but gradually transforming into ruling class
were overlooked or ignored with contempt. The East India Company with experience of
local bodies institutions at home first set up a Municipal Corporation at Madras in 1687,
exactly at the time Aurangzeb was reducing to ashes the Kingdoms of Bijapur and
Golkunda. Municipal Corporation at Bombay and Calcutta were set up in 1726. Needless
to say these Corporations consisted of nominated members and official control was
unlimited. The experience of these Municipal Corporations was extended to municipal
areas in district head-quarters under the Municipal Committees Act No. X of 1840 and
within a period of about 30 years 24 Municipal Committees were formed in the areas
now comprising Bangladesh and Indian State of West Bengal. In the rural areas, three
important enactments provided for the foundation of village self governments. These
enactments are the Bengal Choukidari Act 1856 (Act XX of 1856), The Village
Choukidari Act, 1870 (Act VI of 1870) and The Bengal Village Choukidari Act 1871
(Act I of 1871). In exercise of powers under these Acts the District Magistrate constituted
a village panchayat for each village. The panchayat consisted of 3 to 5 inhabitants of the
village, nominated by the District Magistrate. The Village panchayat was given power to
appoint village choukidars who were entrusted with two functions; one for maintaining
law and order acting under directions of the village panchayat, and the other for rendering
assistance to the Police of the Thana by giving information about the crime condition of
the village. For paying choukidars' salaries the Village panchayat was given power to
levy tax on "holdings' in the village and for construction of roads and bridges,
maintenance of communication and other works of public utility, another Act was passed.
It is the Cess Act 1880-Bengal Act No. IX of 1880. To levy cess and road tax "Local
Committees" were constituted by or under the authority of the Board of Revenue. These
Local Committees functioned till their powers were made over to the District Boards
when established in 1885.
12. But the pace of development of these local government institutions having effective
power and authority was rather very slow. Reason was that their growth and development
depended upon the policy of the British Government at London. The two political parties,
Conservatives and Liberals, had different conceptions of Indian policy. When Gladstone
returned to power in 1880, he was determined to extend the benefits of free democratic
institutions like those in England to Indian people. Having been dissatisfied with the
progress and development of Local government institutions in India, he considered it to
be "our weakness and our calamity that we have been able to give to India the benefits
and blessings of free institutions". With a view to extend these benefits to Indian people
he chose his friend Lord Ripon, and sent him out to India as Governor-General. Ripon set
out with this intention and got a Resolution passed by his Government which was known
as Ripon's "Resolution of 1882" for development of local government institutions in real
sense.
13. Municipal Committees were re-organised under a new enactment-Municipal Act,
1884. But the more important enactment made on the basis of the Resolution was the
Bengal Local Self-Government Act-Act No. III of 1885. This Act provided for three tiers
of local Governments, District Board for a district excluding the municipal areas, Local
Board for a Sub-division or two, and Union Committee for a Union. The Local Boards
functioned for a few years and were abolished by Bengal Act No. XIV of 1936 when
these were found to be superfluous, duplicating the functions of the District Board. The
District Board consisted mainly of nominated members with provision for some elected
members. But till 1920 it was chaired by the District Magistrate. The District Board was
a body-corporate with independent fund and a body of officers and staff, maintaining its
autonomous entity, but due to lack of necessary fund and the over bearing attitude of the
Government officers of the District administration, the scope of its functions and
activities could not widen according to expectation. Union Committees consisted of five
to nine elected members who in their turn elected one of them as Chairman, but
provisions were also there in the Act for inclusion of members appointed by the
Commissioner. Union Committees under this Act functioned uninterruptedly till 1919
when the Bengal Village Self Government Act (Act V of 1919) was made to re-organize
these Committees. Under the new Act, the name of Union Committee was changed to
Union Board but its basic structure remained practically unaltered except the provision
that the one-third members would be nominated by the Government and two third would
be elected by direct votes of the Union rate payees; these nine members elected any one
of them as Chairman. The District Boards under Act III of 1885 and the Union Boards
under Act V. of 1919 functioned without any break till 1959 when the Basic Democracies
Order-PO 18 of 1959-was made and promulgated under the Martial Law Proclamation of
7 October 1958. As to the Municipal Committees, Act of 1884 was repealed by the
Bengal Municipal Act, 1932 (Act XV of 1932) and the Municipal Committees, popularly
known as municipalities, constituted under this Act continued till 1960 when the
Municipal Administration Ordinance No. 10 of 1960 was made and promulgated under
the same Martial Law Proclamation to govern this field.
14. Basic Democracies Order was intended to constitute "basic democratic institutions
suitable to the genius of the people". This Order re-organized the existing local bodies
changing names of some of them, such as, District Boards were named District Councils,
Union Boards were named Union Councils. Two new bodies were created-Thana Council
for each Thana and Divisional Council for each Division. Excepting the Union Councils
all other local bodies were constituted with official members, representative members and
nominated members and the Chairman of these bodies were government officers or
persons nominated by the Government who acted "during pleasure of the government".
As regards structure, function, fund, staff, there was hardly any difference between the
new and the old ones. But increased powers and functions were given to the Union
Councils-since these were considered to be the "base of democracy in the country". In
addition to functions as grass-root local bodies, members thereof were made the
"constituency" for election of members of the National Parliament as well as of the
President of the country. All these bodies functioned till Bangladesh achieved
Independence from Pakistan in 1971-72.
15. Immediately after Independence the President made and promulgated
the Bangladesh Local Councils and Municipal Committees (Dissolution and
Administration) Order, 1972 (PO No. 7 1972) for dissolution of all the existing local
government bodies. Dissolution of these bodies was found necessary because "they do
not represent the people and there has been persistent demand from the people for their
dissolution." On the dissolution of these local bodies "Committees" were appointed for
performing the functions of the defunct bodies. The Union Council was re-named as
Union panchayat, the District Council was re-named as Zilla Board, Municipal
Committee was re-named as Pourashava. No such "Committee" was however appointed
in the case of the defunct Thana Councils and Divisional Councils. Assets and liabilities
of Thana Council vested in the Zilla Board and those of the Divisional Council vested in
the Government.
16. After six weeks, this legislation-PO No. 7 of 1972-was amended by PO No. 17 of
1972. By this Order the defunct Thana Council was brought back in the name and form
of Thana Development Committee with considerably reduced powers and functions and
it was further provided that "powers and functions of the Thana Development
Committee" should be exercised and performed by the Circle Officer (Development).
After about six months, PO No. 7 of 1972 was again amended, this time by PO No. 110
of 1972. It provided for appointment of an Administrator in place of a Committee for
running the affairs of all the local bodies excepting the Divisional Council and the Union
panchayat. In the case of a Thana Development Committee the Circle Officer
(Development) became its Administrator. After about seven months, another President's
Order was made. It is Bangladesh Local Government (Union Parishad and Paurashava)
Order 1973-PO No. 22 of 1973, dated 22 March 1973. It provided for election to and
working of, Union Parishads and Paurashavas. By this time the Constitution
of Bangladesh had been passed by Parliament with effect from 16 December 1972; but
Parliament with new elected members did not yet come into session. Nevertheless,
Preamble of PO No. 22 of 1973 referred to Article 59 of the Constitution stating that in
view of this Article, which provides for local governments with elected persons, it was
expedient to make this Order for "constitution of Union Parishads and Paurashavas and
for matters connected therewith". The Dhaka Paurashava was up-graded and made a
Corporation, Dhaka Municipal Corporation, under Act No. 56 of 1974 with effect from
29 July, 1974. It provided for 72 Ward Commissioners, all elected, one Mayor and one
Deputy Mayor, to be elected by these Ward Commissioners from among themselves.
17. The Constitution of Bangladesh was radically changed by Act No. 2 of 1975, known
as the Fourth Amendment, with effect from 25 January 1975. In the amended
Constitution Articles 59 and 60 were deleted and Article 11 was modified dropping the
last sentence reading "and in which effective participation by the people through their
elected representatives in administration at all levels shall be ensured". But within about
seven months from this Amendment, Martial Law was declared from 15 August 1975 and
the position of the Constitution was made subordinate to the Martial Law Proclamations
of 20 August 1975 and 7 November 1975. During this Martial Law regime two Local
Government Ordinances were made. One is Thana Parishad Ordinance No. 32 of 1976
and the other is Local Government Ordinance No. 90 of 1976. By Ordinance No. 32 of
1976 Thana Development Committee was up-graded and renamed as Thana Parishad
which was to consist of both representative members and official members under the
Chairmanship of the Sub-divisional Officer. By the Ordinance No. 90 of 1976 all local
bodies including the Thana Parishad were re-organised, re-constituted and re-named; the
basic form and composition of the bodies practically remaining the same. The Thana
Parishad, for the first time, was made a body-corporate with perpetual succession,
common seal, right to hold and dispose of property, with its own fund and personnel.
This structure of all local bodies including the Thana Parishad continued even after the
lifting of Martial Law on and from 19 April 1979 from which date also the Constitution
was revived by the Fifth Amendment. In the revived Constitution Articles 59 and 60 were
not revived.
18. The Constitution was again suspended by Martial Law Proclamation of 24 March
1982 which remained in force till 11 November 1986. The Chief Martial Law
Administrator, in pursuance of power and authority under the Proclamation of 24 March
1982, proceeded to decentralise the Government's functions, re-organise the
administration at Thana level and to create Local Government in the name of "Thana
Parishad". For that purpose the Martial Law Government adopted a Resolution on 1
October 1982. Under this Resolution a scheme of administrative re-organisation and
creation of a Local Government at Thana level was drawn up. It provided for transfer of
some powers and functions of the Government Departments at Thana level to the Thana
Parishad and retention of the remaining powers and functions with Government.
Government would retain the direct responsibility for "regulatory functions" including
police, magistracy, civil and criminal justice, while the Thana Parishad would administer
the "transferred subjects" including development, family planning, agriculture, fishery,
livestock, etc. Until a Chairman was elected an Executive Officer of the Government,
Thana Nirbahi Officer, higher in rank and position than other officers at the thana level,
would perform the functions of the Chairman. Local Government (Thana Parishad and
Thana Administration Re-organisation) Ordinance (No. 59 of 1983) came into effect
from November 1982. This Ordinance was amended by Ordinance No. 33 of 1983, which
simply replaced the words "Thana and Thana Parishad" by the words "Upazila and
Upazila Parishad". During the period from 1982 to 1991 some more developments in the
field of local government institutions took place. Municipal Corporations were set up at
three more cities- Chittagong, Rajshahi and Khulna; and for the three Hill Tract Districts,
Rangamati, Khagrachari and Bandarban, Local Governments were established by
separate Acts of Parliament in 1989.
19. Before we enter into the question as to repeal of the Ordinance No. 59 of 1982 we
like to see what has been learnt from the two hundred years history of origin, growth and
development of local government bodies in various forums and shades. The old
Institutions like Municipal Committees, re-named as Paurashavas in urban areas, and
District Boards/Zilla Parishads and Union Boards/Parishads in rural areas, have got their
roots far deep into our society and people have been well acquainted with these
institutions. These bodies made great contribution to the country's democracy, which is
now a basic structure of the Constitution. With the revival of the Constitutional backing
for "Local Government" these old institutions cannot be abolished without damaging the
democratic fabric of the country. Parliament, of course, has got power to keep watch over
the working of these bodies and to make laws for making them more viable, strong and
efficient and not to do away with them. During the British rule progress of these local
government institutions was slow but nevertheless they were allowed to function
uninterrupted, no matter with scanty resources and limited powers. But since
Independence from the British rule, these institutions fell victim to party politics or evil
designs of autocratic regimes, passed through the ordeal of supersession, dissolution or
management of their affairs by official bureaucrats or henchmen nominated by
Government of the day. "Local government" has no where been defined; it is meant for
management of local affairs by locally elected persons. If government's officers or their
henchmen are brought to run these local bodies, there is no sense in retaining them as
local government bodies. Autocratic regimes in the past, after abrogating or suspending
the Constitution, which is the solemn expression of the people's will, and destroying
democracy in the sphere of national government, posed as ultra democratic in the sphere
of local governments starting from grass-root level, replacing the old bodies with new
ones terming them more democratic. But these measures hardly inspired confidence in
people, who therefore got reasonable ground to say that such "democratic measures" are
mere device to bluff the people of the country and leaders of the world. For, at the present
state of civilization, autocrats and dictators, whether they are political leaders or military
figures, are objects of ridicule and universal condemnation. An autocratic regime, though
apparently strong, is very weak in spirit and stands alienated from people. But this
alienation is fraught with mortal danger. So the autocrats and dictators seek some sort of
political base, and for that purpose, rush to the village, union and thana to establish real
democracy there.
20. In the long history of local government institutions as shown above, Thana
Parishad/Thana Council is of recent development, from the days of basic democracies in
1959. Thana Parishad built up in haste in 1982 was given so much power, function and
position that the totally inexperienced electied Chairman, even if he had all the honesty
and sincerity, could not cope with the tremendous responsibility thrust upon him
overnight. Again, as the local government at Thana was inextricably mixed up with the
central government affairs, run entirely by the Government's officers with governments
money, it is in fact a hybrid of the two government entities. Anyway had this system of
local government been worked out over a considerable period on the principle of "gradual
development of self-governing institutions with a view to progressive realisation of
responsible government", then probably it would have been successful. But conceived in
suspicion, born in stiff opposition and working through chaos and confusion, it was
bound to end in disaster as many people had apprehended. We have been informed by the
learned Attorney-General that the Government has set up a Ministerial Commission to
examine and report on the local government bodies; now that Articles 59, 60, as well as
Article 11, are in full force, any change in the local government scheme shall have to
conform to the Constitutional provisions.
21. The Repeal Ordinance has been challenged mainly on the ground of its being
inconsistent with Articles 9, 11 and 59 of the Constitution. Article 7(2) of the
Constitution says that any law inconsistent with the Constitution shall be void. Learned
Counsels for the appellants are seeking a declaration of nullity of the Repeal Ordinance
on this ground. A law is inconsistent with another law if they cannot stand together at the
same time while operating on the same field. Article 9 requires the State to encourage the
local Government institutions but the Ordinance has abolished a local Government,
namely the Upazila Parishad. Similarly, Article 11, they have pointed out, provides that
the Republic shall be a democracy in which, among other things, "effective participation
by the people in administration" at all levels shall be ensured; but the Ordinance has done
away with such participation in the administration at the Upazila level. These two
Articles as already quoted are Fundamental Principles of State Policy, but are not
judicially enforceable. That is to say, if the State does not or cannot implement these
principles the Court cannot compel the State to do so. The other such Fundamental
Principles also stand on the same footing. Article 14 says that it shall be a fundamental
responsibility of the State to emancipate the toiling masses-the peasants and workers-and
backward sections of the people from all forms of exploitation. Article 15(a) says that it
shall be a fundamental responsibility of the State to make provision of basic necessities of
life including food, clothing, shelter, education and medical care for the people.
Article 17 says that the State shall adopt effective measures for the purpose of
establishing a uniform mass-oriented, and universal system of education extending free
and compulsory education to all children, for removing illiteracy and so on. All these
Principles of State Policy are, as Article 8(2) says, fundamental to the governance of the
country, shall be applied by the State in the making of laws, shall be a guide to the
interpretation of the Constitution and of other laws and shall form the basis of the work of
the State and of its citizen, but "shall not be judicially enforceable". The reason for not
making these principles judicially enforceable is obvious. They are in the nature of
People's programme for socio-economic development of the country in peaceful manner,
not overnight, but gradually. Implementation of these Programmes require resources,
technical know-how and many other things including mass-education. Whether all these
pre-requisites for a peaceful socio-economic revolution exist is for the State to decide.
22. Similar Principles of State Policy are there in the Indian Constitution also, wherein
they are called Directive Principles of State Policy. Under Article 37 of the Indian
Constitution the Directive Principles are also "fundamental in the governance of the
country and it shall be the duty of the State to apply these Principles in making laws" but
these principles shall not be enforceable by any court. The Indian Supreme Court in a
number of cases including the case of Keshavanda Bharati ( : MANU/SC/0445/1973 :
AIR 1973 SC 1461) and Deepchand Vs. State of Uttar Pradesh (AIR 1959 SC 664) have
held that these principles are mere guide-lines for the State in the nature of moral
precepts but are not laws to be binding upon the State. Some eminent Jurists like BN Raw
and Alladi Krishnaswami and distinguished authors of books on Constitutional law, such
as Seervai and Basu, have expressed almost the same view about the Directive Principles
of State Policy.
23. Mr. Amirul Islam contends that Article 13 of the Indian Constitution, corresponding
to Article 26 of our Constitution, makes any law inconsistent with any fundamental rights
void; but in the Indian Constitution there is no provision like Article 7(2) of our
Constitution. Article 7(2) makes void any law inconsistent with any provision of the
Constitution besides the fundamental rights. It is true that Article 8(2) of our Constitution
has been couched in stranger language than Article 37 of the Indian Constitution and that
Article 7(2) has no corresponding Article in the Indian Constitution. But the basic
position is the same in both the Constitutions-namely Principles of State Policy are not
judicially enforceable. In view of this position the learned Attorney-General argues that
the Court cannot declare any fundamental principle void on the ground of inconsistency
with a fundamental principle for, in that case declaration of nullity of a law will result in
implementation of the fundamental principle by the Court. Mr. Amirul Islam has tried to
make a distinction between the concept of enforceability of a provision of the
Constitution and the concept of inconsistency between a provision of the Constitution and
another law and has contended that while the Court cannot enforce a fundamental
principle, it can declare a law void on the ground of manifest inconsistence with any
provision of the Constitution including a fundamental principle.
24. Supporting this view Dr. Kamal Hossain has argued that if a law is directly opposed
to and negates any fundamental principle the Court has got power to declare the law void.
He has referred to some of the fundamental principles and tried to show that flouting of
these principles may be prevented by the Court by issuing appropriate directions. Learned
Counsel has cited Article 18(2) which provides that the State shall adopt effective
measures to "prevent prostitution and gambling" and contends that though the Court
cannot direct the State to implement this principle, it can certainly declare a law void if
the law provides for encouragement of prostitution and gambling. In support of this
argument he has referred to certain decisions of the Indian Supreme Court, which despite
the bar to judicial enforceability of directive principle, has issued appropriate directions
to the Government to take positive action so as to remove the grievances of people
caused by non-implementation of some Directive Principles.
25. In Comptroller and Auditor General Vs. Jagannath, AIR 1987 (SC) 537,
Article 46 was involved. It requires the State to" promote with special care economic and
educational interest of weaker sections of the people"-particularly the Scheduled Caste
and Schedule Tribes. Government issued instructions to provide adequate opportunity,
special consideration and relaxation of qualification in the cases of candidates from
weaker sections of the people for appointment as well as promotion in government
services. The Office-Memo containing these Instructions was challenged under Article
226 on the ground of violation of Fundamental right as to equal opportunity for public
service. The High Court, in spite of Article 37, which makes directive principles
unenforceable, upheld the Office-Memo and dismissed the Writ Petition. In Mukesh Vs.
State of Madhyapradesh, AIR 1985 (SC) 1363, Bonded Labour System (Abolition) Act,
1976 came up for consideration. It was a public interest litigation on the allegation that
this law was not being implemented to stop exploitation of labour in stone quarries. The
Supreme Court issued a direction for taking steps against exploitation of the workmen in
the quarries. In Sheela Vs. State of Maharastra, : MANU/SC/0382/1983 : AIR 1983 SC
378, a petition of complaint of custodial violence to women prisoners in police custody
came up before the Supreme Court, which then laid down certain guide-lines for ensuring
protection against torture and mal-treatment to prisoners in police custody. Direction for
legal aid, as provided in the directive principle under Article 39-A of the Constitution,
was also issued by the Supreme Court. In Laxmi Kant Vs. Union of India, :
MANU/SC/0089/1986 : AIR 1987 SC 232, the Supreme Court issued certain directions
as to adoption of destitute and abandoned children keeping in view
Articles 15 and 39(f) of the Constitution. In all these cases the State and other authorities
concerned were themselves proceeding to make necessary legislation for implementing
the directive principles, and in some cases they issued directions to appropriate persons to
take necessary action. In some of these cases as cited above the authorities, instead of
opposing the writ petitions, sought necessary instructions and directions from the Court.
In those cases no law was made in contravention of any directive principles and as such
there was no occasion for the Court to declare any such law void.
26. Articles 59 and 60 of our Constitution are judicially enforceable, and it has been
argued from the bar that the Repeal Ordinance has contravened the provisions of these
Articles by abolishing the Upazila Parishad, a local government. Article 59, as already
quoted, provides that "local government" in every administrative unit shall be entrusted
to bodies composed of elected representatives of the people and such bodies shall
perform such functions as are prescribed by Act of Parliament Article 60 provides that
Parliament shall by law confer necessary powers upon local bodies including power of
imposing taxes to give effect to the provisions of Article 59. It is, therefore, clear that
Article 60 is a corollary to Article 59. Learned Attorney-General however contends that
Article 59 will come into play only when the State has established a local government in
pursuance of Article 9 containing a fundamental principle the implementation of which is
not mandatory as already shown. Secondly, he says, there is no constitutional mandate
upon the State to establish local government in every tier of the administration. Local
government, it is pointed out, is to be established in every administrative unit; the
Upazila, he contends, is not an administrative unit for the purpose of Article 59. Learned
Attorney General has referred to Article 152(1) which defines "an administrative unit"
and has contended that it is for the Parliament to designate what "area" is an
administrative unit. In the case of an Upazila Parishad, he has pointed out, the Upazila
has not been designated as an administrative unit and as such the provisions of Article 59
are not attracted to an Upazila Parishad.
27. Article 152(1), already quoted, has given a particular meaning of "administrative
unit". It means "a district or other area designated by law for the purposes of Article 59".
Local government in every administrative unit, therefore, means a local government
either in a district or in any other area specifically designated by law. Learned AttorneyGeneral's contention is that for the purpose of establishing a Local Government in a
district, the district should also be designated as an administrative unit. Mr. Ishtiaq
Ahmed differs from this view and argues that as a 'district' has been specifically included
in the definition of "administrative unit", no separate designation is necessary for setting
up a local government there. He further contends that as upazilas, unions and
municipalities are within the territorial 'limit' of a district, no separate designation of
these areas also is necessary for establishing local governments there. He has tried to
argue that if any local government is to be established in an area involving more than one
district, then only a designation of that area as an administrative unit will be necessary.
28. For true construction of Article 152(1) defining an 'administrative unit' the primary
rule of construction will be sufficient in this case. It is the words used in this Article
which will give its meaning. The words in this Article are simple, clear and
unambiguous, and on reading these words together a definite meaning emerges. For the
purpose of finding out the legislative intention behind this provision no further effort
need be made. In this Article the words "district or any other area" are to be read
conjunctively, and if it is done, a "district" is found to be an administrative unit, and for
the purpose of Article 59, that is to say, for establishing a Local Government mere, no
designation by law is necessary. But as regards "any other area" it will be an
"administrative unit" only if it is specifically designated as such by law.
29. Immediately after the coming into force of the Constitution in 1972, Local
Government (Union Parishads and Paurashavas) Order-PO No. 22 of 1973 was made;
and though its Preamble made a passing reference to Article 59, this Order did not
designate the unions and municipalities as administrative units. But within two months,
PO No. 22 of 1973 was amended by the Local Government (Union Parishads and
Parashavas) (Amendment) Act 1973-Act No. IX of 1973- which inserted Article 2C in
the parent Order. Article 2C reads thus:
2C. Unions and Municipalities shall be administrative units within their respective areas
for the purposes of Article 59 of the Constitution of the People's Republic
of Bangladesh.
30. Thus the amended Local Government (Union Parishad and Paurashava) Order 1973
puts at rest the controversy as to whether designation by law of an area other than a
district is necessary for the purpose of Article 59. It is unfortunate that this important
legislation-Act IX of 1973-escaped the notice of learned counsels for both the parties to
these appeals. This amendment by Act IX of 1973 fulfilled one of the requirements for a
local body to be a local government. Another constitutional requirement was fulfilled at
the time of making of PO No. 22 of 1973. It was that a local body "shall be composed or
elected representatives of people of the area concerned. Within a year of Act IX of 1973
being passed, the Constitutional provision for Local Government including Article 59
was deleted by the Fourth Amendment and this omission continued till September 1991
when the previous provision was revived by the Twelfth Amendment. During this long
gap of time local governments in various forms and names were constituted, reconstituted, abolished or revived by or under the authority of Martial Laws. The question
of bringing these bodies in conformity with Articles 59, 60 or 152(1) did not arise during
this period. Now that these provisions of the Constitution are back all local bodies shall
have to fulfil these constitutional requirements.
31. Learned Attorney-General has contended that the Legislature may, without fulfilling
the requirements of the Constitution, such as in Articles 152(1) and 59, establish local
governments in exercise of its plenary power of law-making under Article 65. If so, there
will be two classes of local governments in the country; one under the ordinary law and
the other under the Constitution. This will lead to a situation not contemplated by the
Constitution. When the Constitution has made specific provisions as to Local
Government, only those provisions shall have to be followed and complied with.
Secondly, administration of local governments which are not sanctioned by or are outside
the ambit of the Constitution will come within the mischief of Article 7(1) of the
Constitution. This Article says "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".
32. Another ground of attack on the impugned Ordinance is that it is ultra vires the
President's power under Article 93 of the Constitution. Dr. Kamal Hossain has contended
that a vital aspect of the structure of governance cannot be made by an Ordinance
circumventing the Parliament. He has further argued that the Constitution envisages lawmaking to be done by Parliament following consultations, deliberations, debate and
discussions in such matters of national importance. Learned Counsel has pointed out mat
the Ordinance was made in an unusual hurry just twentyone days before the Parliament
was called into session. Referring to Article 93 he has said that the Government failed to
present any credible facts to show that circumstances existed which rendered immediate
action necessary for making this Ordinance. It has been also contended that when the
Upazila system had been working for a considerable time, and when Parliament was also
about to go into session, promulgation of the Ordinance in a hurry betrayed the political
motive of the Party-Government, on whose advice the President made the Ordinance. It
has been contended that most of the Upazila Parishads after the latest election, were
dominated by Chairmen who belonged to or supported the view of the OppositionPolitical parties and that to get rid of those elected persons the impugned Ordinance was
made. In other words, mala fide intention is sought to be attributed to the Government.
But question of intention of the law making authority, whether the President in the case
of an Ordinance, or the Parliament in the case of enacting a legislation, is irrelevant if
they got power to make Ordinance or Act on a given subject This position of law is also
not disputed by the learned Counsels for the appellants.
33. Learned Attorney-General has tried to refute all these contentions saying that the
President was satisfied that circumstances had existed which rendered immediate action
necessary to make and promulgate the Ordinance when it was found that the system of
Upazila Parishads was not working properly but it became a heavy drain on the National
Exchequer. He has argued further that these reasons for abolition of the Parishads could
not be disputed by the appellants. As to President's "satisfaction" whether circumstances
exist for taking immediate action under Article 93, learned Attorney-General does not
dispute that such satisfaction of the President is not totally excluded from judicial
scrutiny. In an Indian case also (AK Roy Vs. Union of India- : MANU/SC/0051/1981 :
AIR 1982 SC 710) it has been held that President's satisfaction about the existence of
circumstances requiring immediate action to make an Ordinance under Article 123 of
their Constitution may be reviewed by the Court. Secondly, learned Attorney-General has
added, as required by Article 93(2) of the Constitution, the Ordinance was laid before
Parliament at its first meeting following the Promulgation of the Ordinance and was
approved of and made an Act of Parliament within the prescribed time. In these
circumstances, we find that this ground for assailing the Ordinance is no longer available
to the appellants.
34. Lastly, the Repeal Ordinance, now the Repeal Act, has been attacked on a ground
which was not urged before the High Court Division. Mr. Ishtiaq Ahmed who has taken
this ground contends that the Repeal Act is a colourable legislation in mat "in form it is a
Repeal Act, but in substance it continued the Upazila Parishads and vests the rights,
powers, authorities and privileges of the Parishads in the Government". He has referred to
Article 59 which requires that the Upazila Parishad shall be composed of elected persons,
and to Article 60, which requires the Parliament to confer necessary powers including the
power to impose taxes for local purposes upon the local bodies, but the Repeal Act, in the
guise of abolition of the Parishads, has in fact retained them so that their functions can be
performed by government through their officers. If this contention is correct and the
Upazila Parishads are still functioning through Government Officers, then the Act will
not only be a colourable legislation, but it will be a fraud on the Constitution, in which
case we shall have no hesitation to declare it void. Learned Attorney-General has stoutly
denied that the Parishads have been retained in a covert manner.
35. The question of colourable legislation arises when a thing which cannot be done
directly is sought to be done indirectly. A thing is colourable which exists in appearance
and not in reality. It is "what it purports to be". Colourability is linked up with
incompetency, that is, an authority doing a thing which he got no power to do.
"Colourable" is not tainted with bad faith; it is just lack of jurisdiction. In other words, in
the case of 'law-making, the doctrine of colourable legislation does not involve any
question of bonafide on the part of the legislature. If the legislature is competent to pass a
particular law, the motives which impelled it to act are really irrelevant. As stated in
Cooleys' Constitutional Limitations, "whether a statute is constitutional or not is always a
question of power". Learned Attorney-General has in this connection referred to a few
Indian cases including KG Narayan Deo Vs. State of Orissa, AIR (1953), SC 379.
36. In modern Constitutions State powers are distributed among the three Organs or
Departments of Government. Legislature is one of the three organs. It is assigned the
legislative powers which are clearly demarcated and it has to act within its own field and
cannot transgress the limits set by the Constitutional provisions. If the Legislature
transgresses the limits, it may be stopped and the transgression may be declared a nullity
by the Judiciary-another State Organ. The transgression may be "patent, manifest or
direct"; it may also be "disguised, covert and indirect". This latter class of transgressions
is expressed as colourable legislation in judicial pronouncements. Elaborating this
doctrine Duff-J made the following observation in Attorney General for Ontario Vs.
Reciprocal Insurers, 1924 AC 328:
Where the law making authority is of a limited or qualified character it may be necessary
to examine with some strictness the substance of the legislation for the purpose of
determining what is that the legislature is really doing.
It is, therefore, the substance of a law and not its form that matters. If the subject-matter
of a law in substance is something which is beyond the Legislature's power to legislate
upon, its outward form cannot save it from the mischief of judicial review. In such cases
investigation may be held to find out whether what has been made is in fact within the
power of the Legislature. For the purpose of this investigation. Court can examine the
effect of the legislation and take into consideration its object, purpose and design.
(Attorney General for Alberta Vs. Attorney General for Canada, 1939 AC 117).
37. Reading the Repeal Act as a whole we find that it has repealed the Upazila Parishad
Ordinance (No. 59 of 1982) and abolished the Upazila Parishads created thereunder.
Consequent on the abolition of the Parishads certain provisions were also made in the
Repeal Act, such as, assets of the Parishads shall vest in the Government who shall also
accept the liabilities of the Parishads; litigations filed by and against the parishads and
pending at the time of the Repeal Act shall be regarded as litigations filed by and against
the government; officers and employees of the Parishads shall stand transferred to the
Government, etc, We do not find any wrong in these provisions made consequent to the
repeal of the parent law. The observation made by one of the two learned Judges of the
High Court Division that the assets of one abolished local body can be vested only in
another local body and not in the Government is not correct. Mr. Ishtiaq Ahmed,
however, contends that "if only the rights, powers authorities and privileges accrued or
acquired before the abolition of the Parishads were intended to be vested in the
government, men a language similar to section 6(c) of the General Clauses Act ought to
have been used; but the language of sec. 2(2)(kha) of the Repeal Act cannot be construed
to limit the vesting to accrued or acquired "rights, powers, authorities and privileges". In
fact the legislative intent behind the repeal, he concludes, is to provide for continued
functioning of the abolished Parishads under the administrative direction of the
government. Learned Counsel has in this connection referred to two executive
Instructions of the government to the Upazila Nirbahi Officers which tend to show that
the Government officers are continuing the functions of the abolished Parishads.
38. Learned Attorney-General, refuting this contention, has referred to about a dozen
Executive Instructions of the Government issued to the Upazila Nirbahi Officers and
other officers posted in the Upazila head-quarters to show that the Upazila Parishads as
"body corporate" have been totally abolished, that all officers and employees of the
Parishads, who were in fact officers and employees of the Government but were "deemed
to be on deputation to the Parishads" have been reverted to their respective Ministries,
Departments and Directorates and are now working directly under their immediate
superiors posted at the District Head-quarters, drawing their salaries from the budgetary
allocations of the respective Ministries. He has explained that in the transition period, the
Upazila Nirbahi Officer, who is the senior most among officers of the government posted
to the Upazila administration has been directed by the government to coordinate and
supervise the various functions and affairs of the government consequent on the abolition
of the Parishad. The Nirbahi Officer, along with officers of other Government
Departments, has been running the affairs of Government and not of any corporate body
like the defunct Parishad.
39. It appears to us that the legislative drafting of section 2(2)(kha), particularly the
words in Bengali "rights, powers, authorities and privileges of the abolished Parishads"
has apparently created an impression that those attributes of the Parishads have remained
to be enjoyed by the Government. If these words are deleted then no confusion will be
left. Upon consideration of the entire Repeal Act we do not find any substance in the
contention that it is a colourable legislation. While dealing with the question as to
whether the Upazila is an administrative unit we have found that it is not, and as such, an
essential constitutional requirement for the Upazila Parishad to be a local government is
not fulfilled. We have also found that the Upazila Parishad is not also wholly an elected
body. This Parishad is therefore not a local government under the Constitution. Abolition
of such a body violates no provision of the Constitution so as to attract the relief under
Article 102 of the Constitution.
40. In view of the discussions above it is decided as follows:
i) On construction of Articles 59 and 60, read with Articles 9 and 11 of the Constitution
and considering the origin, growth and development of Local Government Institutions at
different levels of the Administration over one and a half centuries, it is found that Local
Government is an integral part of the democratic polity of the country. The system of
Local Government Institutions may be altered, re-organised or re-structured, and their
powers and functions may be enlarged or curtailed by Act of Parliament, but the system
as a whole cannot be abolished.
ii) 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 persons.
iii) An "administrative unit", as defined in Article 152(1), is a "district or other area
designated by law for the purposes of Article 59". In the case of a district, no designation
is necessary, but it is necessary in all other cases as was done in the case of unions and
municipalities by Act IX of 1973-The Bangladesh Local Government (Union Parishad
and Paurashava) (Amendment) Act, 1973 before deletion of Articles 59 and 60 by Act II
of 1975.
iv) An Upazila Parishad established by Ordinance No. 59 of 1982, as it stood amended by
Ordinance No. 33 of 1983, is not a Local Government within the meaning of Article 59.
This Parishad has been lawfully abolished by the impugned Ordinance No. 37 of 1991,
which has been later on made an Act, Act No. 2 of 1992. These are valid laws and not
ultra vires the Constitution except the words
in sub-section (2) Kha)
of section 2 of the said Ordinance/Act.
v) But there are other local bodies constituted by, and functioning, under different
statutes. 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. The areas in which these bodies
other than the Zilla Parishads have been constituted shall have to be designated as
administrative units by amending these statutes. Designation afresh of the unions and
municipalities is also necessary in view of the fact that Act No. IX of 1973, along with
the President's Order No. 22 of 1973, was itself repealed by Ordinance No. XC of 1976Local Government Ordinance 1976 in the case of Unions and by Paurashava Ordinance,
1977-Ordinance No. XXVI of 1977-in the case of municipalities. Required designations
by amending the relevant statutes with effect from the date on which the Twelfth
Amendment of the Constitution was made should be provided as soon as possible-in any
case within a period not exceeding four months from date.
vi) The other constitutional requirement for these local bodies is that they shall be
entrusted to bodies "composed of persons elected in accordance with law". The existing
local bodies are, therefore, 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. In the suggested amending
statutes, all actions taken by the local bodies concerned since 18 September 1991 should
be ratified.
In the result, both the appeals are dismissed without any cost. The leave petition is also
dismissed.
MH Rahman J: I agree. I have got nothing to add.
ATM Afzal J: To think of writing anything further, after having perused the main
judgment of my Lord the Chief Justice and those of my brothers Mustafa Kamal and
Latifur Rahman JJ, is very likely to incur the ordinary human folly of repetition. But then
it is human failing again which prompts me to make some observation on one or two
topical matters.
41. Upazila Parishad, a tier of local Government at the upazila/thana level has been
abolished by the impugned legislation, namely, the Local Government (Upazila Parishad
and Upazila Administration Re-organisation) (Repeal) Ordinance, 1991 (Ordinance No.
37 of 1991), subsequently made into an Act, Act No. 2 of 1992. This repealing
Ordinance/Act indeed repealed the Local Government (Upazila Parishad and Upazila
Administration Re-organisation) Ordinance, 1982 (LIX of 1982) under which the
administration at the thana/later on called, Upazila level was re-organised and Upazila
Parishad constituted.
42. The repealed Ordinance is a relic of the erstwhile Martial Law regime and so is the
abolished local Government i.e., Upazila Parishad. It may be of some interest to reflect
that the precursor of the Upazila Parishad was Thana Council which again was conceived
during a Martial Law period and constituted under the Basic Democracies Order, 1959
promulgated by Field Marshal Mohammad Ayub Khan. It is of historical importance
which should be mentioned that in the history of the evolution of local Government in
this country over a period of more than a century and half which has been minutely
delineated in the judgment of the learned Chief Justice there had never been a local
Government at the thana level until it was introduced during the first Martial Law period
in the then Pakistan as mentioned above. This local Government tier is thus a by-product
of the Martial Law era.
43. Now, a democratically elected Government has done away with this tier upon finding
that "the Upazila system itself was liable for drainage of Government money in
unproductive activities which negated the welfare of the people and the Upazila Parishads
were not economically viable as they were more dependant on Government allocation
rather than earning revenue from their own sources" (vide affidavit-in-opposition of the
respondents). In a further affidavit before this court it has been stated that after the
enactment of the repealing Ordinance on 23.11.1991, a high level Local Government
Review Commission was constituted by the Government to review and study the local
government of Bangladesh and recommend a suitable, effective, responsible and
accountable Local Government structure for Bangladesh.
44. It has been rightly asserted by the respondents, and no learned Counsel has disputed
it, that the constitution of Local Government bodies and the tiers thereof have undergone
changes from time to time since the Bengal Local Self Government Act, 1885 (Bengal
Act III of 1885) was enacted, that such changes were made in exercise of Law-making
power either by Act or by Ordinance or by President's Order and that thus the constitution
and the tiers of local Government bodies were always dependent on the policy of the
respective Governments of the day.
45. The question of vires of the impugned Ordinance/Act was raised on the ground of
inconsistency mainly with Articles 9, 11, 59 and 60 of the Constitution. Article 9 which
provides that the State shall encourage local Government institutions composed of
representatives of the areas concerned etc, it is interesting to note, was not there in the
original constitution but was again a contribution of a Martial Law regime, the same
having been incorporated by Proclamations Order No. 1 of 1977. Articles 59 and 60 and
later part of Article 11 which speak of Local Government and peoples' participation in
administration, although there in the original Constitution, were deleted with effect from
25 January 1975 by Act no II of 1975 (Fourth Amendment) and they remained in exile
until brought back by Act No. XXVIII of 1991 (Twelfth Amendment) with affect from
18.9.91.
46. In this background, we were called upon to consider the challenge as to the vires of
the impugned Ordinance/Act made by Mr. Amirul Islam and Dr. Kamal Hossain. Syed
Ishtiaq Ahmed, learned counsel for one of the appellants, however, did not impugn the
Ordinance/Act wholesale. He frankly submitted that the repealing Ordinance/Act would
have been unexceptionable if only the
were not
vested in the Government as provided in section 2 (2)(Kha) thereof. He conceded that the
Government's power to reorganise, re-structure and re-model the local Government
institutions in the light of current experience and needs of the society cannot be disputed
and to that end the abolition of a tier of local Government (here Upazila Parishad) cannot
be said to offend any provision of the Constitution. If it were a repeal simpliciter of the
(repealed) Upazila Ordinance (LIX of 1982) without the aforesaid offending provision,
there would have been no valid cause of action for the appellants, Mr. Ahmed submitted.
47. I would like to record my appreciation for the fair and bold stand taken by Mr.
Ahmed. Indeed he has summed up the position in law correctly.
48. As to his submission that by the aforesaid provision in section 2(2)(Kha), there was a
covert attempt to continue the Upazila Parishad through the Government servants in
violation of the mandate in Article 59 that local Government should be entrusted to
elected bodies, even though the repealing Ordinance/Act professed merely to abolish the
Upazila Parishad and thus the same was a colourable legislation. I think there is not much
to add after what has been stated in the judgments of the learned Chief Justice and
Mustafa Kamal J. Mr. Ahmed is right in his contention that the provisions of Articles 59
and 60 are limitations on the plenary legislative power of the Parliament in the field of
Local Government.
49. The contention of the learned Attorney-General that the Legislature may without
designating an area as an administrative unit for the purpose of Article 59 in exercise of
its plenary legislative power (Article 65) establish local Government is mischievous as it
would amount to defying the mandate of Articles 59 and 60 which cannot be permitted.
The argument, therefore, must be rejected.
50. The vesting of etc. of the in the Government as provided in section 2(2)(Kha) of the
repealing Ordinance/Act was apparently made as the draftsman blindly followed and
copied the usual sections in case of a repeal without understanding that in the present
case mere was no successor local Government to be vested with the powers, etc. of the
abolished local Government. A reference to section 66 of the repealed Upazila Ordinance
(LIX of 1982) will show that after abolition of the Thana Parishad, provision was made in
sub-section 2(b) that "all assets, rights, powers, authorities and privileges, and all
property...........................of the abolished Parishad..................shall stand transferred to
and vest in the (Upazila) Parishad''. In contrast it will be seen that when the Thana
Council was dissolved under PO No. 7 of 1972 and no provision was made for any kind
of local Government at that level it was only provided in Article 5(b) thereof that "the
assets and liabilities of a dissolved Thana Council shall vest in the Zilla Board concerned
and the employees of such Thana Council shall be deemed to be the employees of such
Zilla Board''.
51. There was no necessity of vesting in the Government the rights, powers, authorities
and privileges of the abolished Upazila Parishad and it clearly shows a lack of
understanding of the powers of the Central Government vis-a-vis a Local Government
William Valenta in his book, "Local Government Law (American case book series) page
2 points out that "local Governments are not true sovereign governments, but political
creatures and subdivisions of sovereign state governments. As such they possess no
independent sovereign powers or authority, save those delegated to them by state
constitutions and laws. In brief, they remain subject to the sovereign authority of the
national and state governments" Indeed the purpose of the repealed Ordinance was to
transfer some powers and functions of the Government to the Upazila Parishads. These
were called "transferred subjects". When the Upazila Parishad was abolished by the
repealing Ordinance/ Act, a fortiori, those subjects reverted back to the Government and
the whole field came to be occupied by it.
52. As to the larger question raised by the other learned Counsels, Mr. Islam and Dr.
Hossain, that the repealing Ordinance/Act is ultra vires the Constitution being
inconsistent with Articles 9, 11, 59 and 60, it has been concurrently found by the learned
Chief Justice and Mustafa Kamal J., with which I agree, that the Upazila Parishad not
being a local Government within the meaning of Article 59, the abolition of such a body
violates no provision of the Constitution. I would add that even if it were a local
Government in terms of Article 59 even then the abolition thereof in the circumstances
and as averred by the Government cannot be said to be violative of any provision of the
Constitution. Upazila Parishad may not have been local Government strictly in terms of
Article 59 but then it cannot be denied that it has all the attributes of a local Government.
Mr. Amirul Islam laid great emphasis on the long historical background of the evolution
and existence of local Government in the body polity of this country to impress upon us
that the Constitution in its various provisions not only recognised this historical fact but
also recommended for establishment of local Government as a part of the democratic
fabric of the State.
53. Accepting that the Upazila Parishad was a local Government and the Constitution
provides for promotion of such local Government, can it be said that the abolition thereof
has offended any provision of the Constitution. In the beginning of this judgment it has
been noticed that the tiers of local Government had never been static and the Constitution
and tiers of local Government depended on the legislative policy of the Government in
office. It has also been noticed that the Government found the Upazila system not a
viable one and set up a high level review commission to recommend a suitable, effective,
responsible and accountable local Government structure for Bangladesh. Therefore, it
may be said that by enacting the repealing Ordinance /Act, the Government has taken one
step backward only to take more worthy steps (as professed) forward in the matter of
local Government As far as the policy behind such move is concerned, it cannot be
disputed that the same cannot be a matter for the Court to enter into. The system of local
Government as such has not been done away with for good but a review has been
undertaken to evolve a better system dismantling a tier at the thana level. I do not see
therefore how it is inconsistent with Article 9. As for inconsistency with Article 11 that
the repealing Ordinance/Act has denied participation by the people through their elected
representatives in the Upazila Administration, the question does not arise because the
Upazila (as an administrative unit) itself has been abolished and thus there cannot be any
participation by the people in the administration qua the Upazila.
54. There is no mandate in Article 59 that the legislature must designate any particular
area as an administrative unit for the purpose of Article 59 or that the legislature must
maintain a tier of local Government at the Thana level or in any particular area. There is
no constitutional limitation in Article 59 that the legislature cannot abolish a local
government of a particular tier if it is considered necessary. It cannot be disputed that the
legislature has plenary power to repeal any law including one dealing with local
Government. Thus viewed I do not find any inconsistency with any provision of the
Constitution.
55. Naimuddin J. in his judgment found that the Upazila Parishad was not a local
Government institution within the meaning of Articles 59 and 9 of the Constitution and as
such Article 9 cannot be invoked for declaring the repealing Ordinance/Act void under
Article 7(2) on the ground of inconsistency with Article 9. He has not also found that the
impugned Ordinance/Act is in conflict with any other provision of Part II of the
Constitution containing Fundamental Principles of State Policy. That being so, it was
wholly unnecessary to decide whether in view of the Provision in sub-article (2) of
Article 8 that the principles set out in Part II shall not be judicially enforceable, any
legislative act which is in direct conflict with and passed in flagrant violation of the
provisions of Part II can be declared void under Article 7(2). Having answered this
hypothetical question in the affirmative after taking hypothetical facts into consideration
in a lengthy discussion, the learned Judge addressed himself to the real question thus;
Consequently, if it is found that the impugned repealing Ordinance is violative of Article
9 of the Constitution it is liable to be struck down as void in view of Article 7(2) of the
Constitution.
56. Then the finding was made that the repealing Ordinance was not violative of Article 9
with which we have agreed. Therefore the broad decision that a law can be declared void
in case of a conflict with any provision of Part II of the Constitution was uncalled for and
made on hypothetical facts. This, as a rule, the Courts always abhor. The Court does not
answer merely academic question but confines itself only to the point/points which are
strictly necessary to be decided for the disposal of the matter before it. This should be
more so when Constitutional questions are involved and the Court should be ever discreet
in such matters. Unlike a civil suit, the practice in Constitutional cases has always been
that if the matter can be decided by deciding one issue only no other point need be
decided.
Finally, I wish to express my full agreement with the main judgment prepared by the
learned Chief Justice.
Mustafa Kamal J: In concurring with the judgment delivered by the learned Chief Justice,
I would like to express my opinion on the issues involved, without duplicating the facts
and without re-stating the history of local government which have been well-covered in
his Lordship's judgment.
57. The debate centered round a repealing legislation-Ordinance No. XXXVII of 1991shortly the Repealing Ordinance, later on made an Act-Act No. II of 1992, shortly the
Repealing Act. The repealed legislation is Ordinance No. LIX of 1982, shortly the
Repealed Ordinance.
Three broad questions, the first
(i) Is the Repealing Ordinance/Act wholly or in part inconsistent with Articles 59 and 60
of the Constitution and is thus void either wholly or to the extent of the inconsistency
under Article 7(2) of the Constitution?
58. Mr. Amirul Islam argued that the Repealing Ordinance/Act in its totality is
inconsistent with Articles 59 and 60 of the Constitution. It destroys the elected part of the
body. The Upazila exists as a territorial unit, a unit of administration. But the powers,
authority, functions and privileges of dissolved Upazila Parishad are vested in the
Government. In the garb of a repeal, it is a re-enactment and recreation of a local
government to be run by an unrepresentative body. Mr. Syed Ishtiaq Ahmed submitted
that only the words occurring in sub-section (2) of section 2 of the Repealing
Ordinance/Act is inconsistent with Articles 59 and 60. He submits that if only the rights,
powers, authorities and privileges accrued or acquired before the abolition of Upazila
Parishad were intended to be vested in the Government, then a language similar to
section 8(c) of the General Clauses Act ought to have been used. But the vesting in
section 2(2) goes much beyond accrued or acquired rights. The Repealing Ordinance
continues the functioning of the abolished Parishads under the administrative directions
of the Government. It is thus a colourable piece of legislation. The learned AttorneyGeneral replied that the Repealed Ordinance/Act was not a Local Government within the
meaning of Article 59 as Upazila was not designated as an administrative unit for the
purposes of Article 59 and so its abolition by the Repealing Ordinance/Act is not
inconsistent with the provisions of Articles 59 and 60. He further submits that both the
intention and working of the Repealed Ordinance are the abolition of Upazila system
altogether and so the question of colourable legislation does not arise.
The second question
(ii) Is the Repealing Ordinance/Act inconsistent with Articles 9 and 11 of the
Constitution and if so, can it be declared void on that ground under Article 7(2) of the
Constitution?
59. Mr. Amirul Islam submitted that the Repealing Ordinance/Act is liable to be declared
void wholly, first, for being violative of the Preamble of the Constitution and secondly,
for being inconsistent with Articles 9 and 11. He submits that the Fundamental Principles
of State Policy may not be "judicially enforceable" but inconsistency therewith renders a
law liable to be declared void under Article 7(2), there being a distinction between
"enforceability" and "inconsistency". Dr. Kamal Hossain submits that a law which
negates a clear directive of the Fundamental Principles of State Policy is liable to be
declared void as being inconsistent with the Constitution. The learned Attorney-General
submits that a law is not liable to be declared void on the ground of inconsistency with
the Fundamental Principles of State Policy, that Article 8(2) of the Constitution is an
exception to Article 7(2) and that to declare a law as void is another way of enforcing a
different state of things so that there is no real distinction between "enforceability" and
"inconsistency".
The third question
(iii) Was the Repealing Ordinance/Act validly passed under the Ordinance-making power
of the President under Article 93 of the Constitution?
60. Dr. Kamal Hossain submits that the Repealing Ordinance/Act is ultra vires the
President and unconstitutional since Article 93 did not empower the making of the
impugned Ordinance for the following reasons:
(a) An organic law providing for a vital aspect of the structure of Government cannot be
made by an Ordinance, circumventing the Parliament;
(b) No facts have been presented by the Government to show that circumstances existed
which rendered immediate legislation necessary;
(c) The Repealing Ordinance has circumvented the law-making procedure of the
Parliament.
61. The learned Attorney-General replied that the appellants have not been able to lay
any acceptable foundation to hold that no satisfaction existed for promulgating the
Ordinance. Since the Repealing Ordinance has been enacted into a Repealing Act, this
submission has lost its validity, he further submits.
62. On the first question:
Articles 9, 11, 59 and 60 of the Constitution are unique and several conclusions can be
drawn from them:
First, the constitutional provisions on local government, namely, Articles 9, 11, 59 and 60
mark out the Constitution of Bangladesh as clearly distinctive from other Constitutions
of the world. No Constitution contains any definitive provision on local government. In
England the local government units, unlike the central government, are not products of
constitutional design, but of historical development. Same is the case in the USA and
India. In this sub-continent too local government developed along historical lines without
following any constitutional pattern. It is the Constitution of Bangladesh which for the
first time devised an integrated scheme of local government within a constitutional
pattern. This is a most distinctive and unique feature of the Constitution of Bangladesh.
63. Secondly, the words "Local Government have not been defined in the Constitution,
nor does the Constitution require any organ of the State to create a new a local
government, as it does in respect of a President-"There shall be a President
of Bangladesh..........." (Article 48), or a Parliament - "There shall be a Parliament
for Bangladesh........" (Article 65) or a Supreme Court-"There shall be a Supreme Court
of Bangladesh............................" (Article 94) etc. In the absence of any definition and in
the absence of any directive to create a local government afresh, the Constitution will be
presumed to have referred to the already-known concept and institution of and the
existing legislations on local government. Local government, as a concept and as an
institution, was already known to have possessed certain common characteristics,
namely, local elections, procedure for public accountability, independent and substantial
sources of income, clear areas for independent action and certainty of powers and duties
and the conditions under which they would be exercised. On the date of coming into
force of the Constitution, there were 3 statutes on local government viz, PO No. 7 of
1972, as amended up-to-date and so much of the Basic Democracies Order, 1959 and the
Municipal Administration Ordinance, 1960 which were not inconsistent with PO No. 7 of
1972. So far as those prevalent legislations are concerned, Article 149 of the Constitution
provided as follows:
149. Subject to the provisions of this Constitution all existing laws shall continue to have
effect but may be amended or repealed by law made under this Constitution.
Article 152(1) defined "existing law" as follows:
existing law" means any law in force in, or in any part of, the territory
of Bangladesh immediately before the commencement of this Constitution, whether or
not it has been brought into operation;
64. If Articles 59 and 60 are read with Article 149 and Article 152(1) as above, it clearly
means that all existing laws on local government, if they are meant to be continued, have
to be brought in conformity with Articles 11, 59 and 60 of the Constitution so that the
laws may operate "subject to the Constitution", or else those parts of the existing laws on
local government which are specifically inconsistent with Articles 59 and 60 stand the
risk of being declared void under Article 7(2).
65. Thirdly, to the extent that Articles 59 and 60 prescribe manner and method of
establishing local government, its composition, powers and functions including power of
local taxation, the plenary legislative power of Parliament to enact laws on local
government is restricted pro tanto. The learned Attorney-General submits that the plenary
power still remains unaffected. I cannot conceive of a local government existing in terms
of Articles 59 and 60 and another outside of it That will make a mockery of Articles 59
and 60 and will be in direct conflict with Article 7(1) of the Constitution, namely, "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". If Parliament has
to pass a local government legislation, it has to conform to Articles 59 and 60, read with
Article 152(1). With Articles 59 and 60 in the Constitution local government legislation
became very much a subject-matter of legislation within the terms of the Constitution.
Parliament is not free to legislate on local government ignoring Articles 59 and 60.
66. After the Constitution (Fourth Amendment) Act, 1975, passed on 25.1.75, deleted
Chapter III of Part IV, and omitted the words "and in which effective participation by the
people through their elected representatives in administration at all levels shall be
ensured" from Article 11, local government legislIN THE SUPREME COURT
OF Bangladesh
(APPELLATE DIVISION)
Civil Appeals No. 3 of 1992
Decided On: 30.07.1992
Appellants: Kudrat-E-Elahi Panir
Vs.
Respondent: Bangladesh, through the Secretary, Ministry of Local Government,
Rural Development & Co-operative, (Local Government Division), Government
of Bangladesh, Dhaka and anr.
[Alongwith Civil Appeals Nos. 4 and 118 of 1992]
Hon'ble Judges:
Shahabuddin Ahmed, C.J., M.H. Rahman, A.T.M. Afzal, Mustafa Kamal and Latifur
Rahman, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Dr. Kamal Hossain, Senior Advocate, Supreme Court
and Syed Ishtiaq Ahmed, Senior Advocate, Supreme Court, Zakir Ahmed, Advocate,
Supreme Court, with them instructed by Md. Aftab Hossain, Advocate-on-Record in CA
3/1992, M Amir-ul-Islam, Senior Advocate, Supreme Court, instructed by A Basel
Majumder, Advocate on-Record in CA 4/1992, in CP 118/1992
For Respondents/Defendant: Aminul Huq, Attorney-General and AW Bhuiyan,
Additional Attorney-General, Obaidur Rahman Mustafa, Assistant Attorney-General,
with them, instructed by B Hossain, Advocate-on-Record
Subject: Civil Procedure
Catch Words
Mentioned IN
Acts/Rules/Orders:
Constitution Of India - Article 13, Constitution Of India - Article 226, Constitution Of
India - Article 226(1), Constitution Of India - Article 32, Constitution Of India - Article
37, Constitution Of India - Article 40; Constitution Of The People's Republic
Of Bangladesh - Article 102, Constitution Of The People's Republic Of Bangladesh Article 102(1), Constitution Of The People's Republic Of Bangladesh - Article 102(2),
Constitution Of The People's Republic Of Bangladesh - Article 103(2), Constitution Of
The People's Republic Of Bangladesh - Article 11, Constitution Of The People's
Republic Of Bangladesh - Article 149, Constitution Of The People's Republic
Of Bangladesh - Article 152, Constitution Of The People's Republic Of Bangladesh Article 152(1), Constitution Of The People's Republic Of Bangladesh - Article 153(3),
Constitution Of The People's Republic Of Bangladesh - Article 18(2), Constitution Of
The People's Republic Of Bangladesh - Article 26, Constitution Of The People's
Republic Of Bangladesh - Article 39, Constitution Of The People's Republic
Of Bangladesh - Article 48(3), Constitution Of The People's Republic Of Bangladesh Article 49, Constitution Of The People's Republic Of Bangladesh - Article 50,
Constitution Of The People's Republic Of Bangladesh - Article 51, Constitution Of The
People's Republic Of Bangladesh - Article 52, Constitution Of The People's Republic
Of Bangladesh - Article 53, Constitution Of The People's Republic Of Bangladesh Article 54, Constitution Of The People's Republic Of Bangladesh - Article 55,
Constitution Of The People's Republic Of Bangladesh - Article 52(2), Constitution Of
The People's Republic Of Bangladesh - Article 56, Constitution Of The People's
Republic Of Bangladesh - Article 57, Constitution Of The People's Republic
Of Bangladesh - Article 58, Constitution Of The People's Republic Of Bangladesh Article 59, Constitution Of The People's Republic Of Bangladesh - Article 59(1),
Constitution Of The People's Republic Of Bangladesh - Article 59(2), Constitution Of
The People's Republic Of Bangladesh - Article 60, Constitution Of The People's
Republic Of Bangladesh - Article 7, Constitution Of The People's Republic
Of Bangladesh - Article 7(1), Constitution Of The People's Republic Of Bangladesh Article 7(2), Constitution Of The People's Republic Of Bangladesh - Article 8,
Constitution Of The People's Republic Of Bangladesh - Article 9, Constitution Of The
People's Republic Of Bangladesh - Article 12, Constitution Of The People's Republic
Of Bangladesh - Article 13, Constitution Of The People's Republic Of Bangladesh Article 16, Constitution Of The People's Republic Of Bangladesh - Article 17,
Constitution Of The People's Republic Of Bangladesh - Article 19, Constitution Of The
People's Republic Of Bangladesh - Article 20, Constitution Of The People's Republic
Of Bangladesh - Article 21, Constitution Of The People's Republic Of Bangladesh Article 22, Constitution Of The People's Republic Of Bangladesh - Article 23,
Constitution Of The People's Republic Of Bangladesh - Article 24, Constitution Of The
People's Republic Of Bangladesh - Article 25, Constitution Of The People's Republic
Of Bangladesh - Article 8(2), Constitution Of The People's Republic Of Bangladesh Article 93, Constitution Of The People's Republic Of Bangladesh - Article 93(2);
General Clauses Act, 1897 - Section 6(c), General Clauses Act, 1897 - Section 8(c)
Citing Reference:
Discussed
7
Dissented
3
Mentioned
2
Case Note:
Constitution - Ordinance - Legality of - Present appeal filed to challenge judgement
and appeal of High Court Division which dismissed writ petition filed to challenge
the constitution vires Bangladesh Local Government (Upazila Parishad and Upazila
Administration Re-organization) (Repeal) Ordinance, 1991 - Whether High Court
erred in constructing constitution provision - Held, court below made some
quotations from Text Books on various Constitutional law - Abstract theoretical
questions not to be decided by any court, those are of academic importance - State
will not make law contrary to fundamental principles of State Policy - If law made
by ignoring fundamental principles of State policy, Government will answer and
face people who elect them - Court below ought not to have ventured to strike down
Repealing Ordinance as void - Disposed of. [108]
JUDGMENT
Shahabuddin Ahmed, C.J.
1. These two appeals have been brought by a certificate granted by the High Court
Division under Article 103(2) of the Constitution of Bangladesh while dismissing four
writ petitions by a common judgment dated 19 December, 1991. These Petitions are Nos.
2937, 2944, 2945 and 3002 of 1991. Appellants before us were petitioners of two of those
writ petitions, Nos. 2937 and 3002. In those petitions they had challenged the
constitutional validity of the Bangladesh Local Government (Upazila Parishad and
Upazila Administration Re-organization) (Repeal) Ordinance, 1991-Ordinance No. 37 of
1991, on the ground that this Ordinance is inconsistent with Articles 9, 11, 59 and 60 of
the Constitution and as such it is void in terms of Article 7(2) of the Constitution. Among
other things, they alleged that Article 9 requires the State to encourage local government
institutions, but the Ordinance abolished a local government namely the Upazila
Parishad. The learned Judges of the High Court Division, for different reasons, some of
which are common, dismissed all the petitions, but issued the Certificate since the matter
is of public importance involving a substantial question of law as to the interpretation of
the Constitution. Upazila Parishads, formerly named Thana Parishads, were constituted
under the Local Government (Upazila Parishad and Upazila Administration (Reorganisation) Ordinance, 1982- Ordinance No. 59 of 1982, as amended by Ordinance No.
33 of 1983. The original Ordinance (No. 59) which was named "The Local Government
Thana Parishad and Thana Administration (Re-organisation) Ordinance, was published in
the Gazette on 21 December, 1982 and since then it was amended on 18 occasions. The
second Amendment was effected by Ordinance No. 33 of 1983 and it is this Ordinance
No. 33 of 1983, which changed the names-Thana and Thana Parishad as "Upazila and
Upazila Parishad". Among other things, the Ordinance (No. 59 of 1982) provided for
constitution of a local body, Upazila Parishad, for each Upazila to consist of an elected
Chairman, some representative members namely, Chairmen of Union Parishads, some
nominated members, such as woman and some official members. The Ordinance (59 of
1982) also provided for re-organisation of the general administration of the country at
Upazila level by transferring some powers and functions of the Government to the
Upazila Parishads. These functions were called "transferred subjects" and the functions
retained by the Government were called "retained subjects". The Parishad was made a
body-corporate with perpetual succession, a common seal and right to acquire, hold and
dispose of property, etc. It was to have a Fund of its own, the major contribution, nay, the
entire contribution to it was made by the Government; the Parishad was to have its own
officers and staff to be paid by it, but at the beginning these personnel were provided and
paid by the Government treating them as "on deputation" for the present. The
Government, however, exercised powers of "supervision, direction and control" over the
working of the Parishads and decided all matters of policy.
2. The first election under this set-up was held in 1985 and the second election in 1990.
The appellants were elected Chairman of Sonargaon and Gazipur Upazila Parishads
respectively in the election of 1990 their terms of office were five years, but hardly a year
passed when the impugned Repeal Ordinance was made repealing the Parent Ordinance
(No. 59 of 1982) and abolishing the Parishads constituted thereunder. The Repeal
Ordinance was later on made an Act of Parliament-Act No. 2 of 1992. Among other
allegations made by the appellants, the displaced elected Chairmen, one is that the Repeal
Ordinance is itself invalid since there was no existence of any circumstance which,
according to the President's satisfaction, rendered it necessary to make the Ordinance just
20 days before the session of Parliament was called.
3. Articles of the Constitution, which, according to the appellants, have been violated by
the impugned (Repeal) Ordinance are Articles 9, 11, 59 and 60. Article 7(2) of the
Constitution proclaims the supremacy of the Constitution" as the solemn expression of
the people's will" and provides that if any other law is inconsistent with any provision of
this Constitution, then that other law shall, to the extent of the inconsistency be void.
Articles 9 and 11 are placed in Part II of the Constitution which contains the Fundamental
Principles of State Policy. (Arts 8 to 25.). Articles 9 and 11 as they now stand, are quoted
below:
9. The State shall encourage local Government institutions composed of representatives
of the areas concerned and in such institutions special representation shall be given, as far
as possible, to peasants, workers and women.
11. 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.
4. Articles 59 and 60 fall in Part IV of the Constitution under the tide "The Executive". It
consists of three Chapters: Chapter 1 (Article 48-55) provides for the powers and
functions of the President, Chapter II (Article 55-58) for the Prime Minister and the
Cabinet; and Chapter in (Article 59-60) for Local Government. This chapter consists Of
two articles namely, 59 and 60 which are quoted below:
59. (1) Local Government in every administrative unit of the Republic shall be entrusted
to bodies, composed of persons elected in accordance with law.
(2) Every body such as is referred to in clause (1) shall, subject to this Constitution and
any other law, perform within the appropriate administrative unit such functions as shall
be prescribed by Act of Parliament, which may include functions relating to(a) administration and the work of public officers;
(b) the maintenance of public order;
(c) the preparation and implementation of plans relating to public services and economic
development
"60. For the purpose of giving full effect to the provisions of Article 59 Parliament shall,
by law, confer powers on the local government bodies referred to in that article, including
power to impose taxes for local purpose, to prepare their budgets and to maintain funds.
5. Before the High Court Division, Respondents-State defended the vires of the impugned
Ordinance saying that Fundamental Principles of State policy are not "judicially
enforceable", that these Principles are not laws but are simply guide-lines for the State
including Parliament and that even if any law is inconsistent with the Fundamental
principles that cannot be challenged in court; they contended that the impugned (Repeal)
Ordinance is not inconsistent with Articles 9 and 11. As to Articles 59 and 60, which are
undisputedly enforceable judicially, Respondent's contention was that provisions of these
two Articles would not apply in the case of the Upazila Parishads since these Parishads
are not Local Government within the meaning of Article 59 as the Upazilas were not
designated as administrative units by law for the purpose of Article 59. In support of this
contention they relied upon Article 152(1) of the Constitution which is quoted below:
152(1)- "administrative unit" means a district or other area designated by law for the
purposes of article 59. Further contention of the Respondent was that the State is not duty
bound to establish local government in all tiers or levels of administration, that Article
59, along with its corollary, Article 60, would come into play only when there is a Local
Government established and is in existence under the Constitution, and that it would not
apply when there is no Local Government at all.
6. After hearing the parties at great lengths the learned Judges of the High Court Division
took an unanimous view that the Upazila Parishad was not a Local Government as the
Upazila was not designated as an administrative unit; but as to the inconsistence of the
impugned Ordinance with the Constitution as alleged, the learned Judges differed One of
them held the view that there was not any inconsistency and, even if any, the Repeal
Ordinance could not be declared void in view of Article 8(2) of the Constitution, which
says that Fundamental principles are not enforceable by court. The other Judge took the
view that though Fundamental principles are not enforceable in court but a law which is
directly contrary to any Fundamental principle or which negates such a principle men the
law may be declared void in spite of the provision in Article 8(2). This Article is quoted
below:
8(2). The principles set out in this Part shall be fundamental to the governance
of Bangladesh, shall be applied by the State in the making of laws, shall be a guide to the
interpretation of the Constitution and of the other laws of Bangladesh, and shall form the
basis of the work of the State and of its citizens, but shall not be judicially enforceable.
7. For the appellants learned Counsels-Dr. Kamal Hossain, Mr. Syed Ishtiaq Ahmed and
Mr. Amirul Islam have appeared; Mr. Aminul Huq, learned Attorney-General has
represented the State-Respondent The questions raised by both sides before the High
Court Division have been reiterated in these appeals. Mr. Ishtiaq Ahmed has taken a new
ground in the sense that this ground was not urged with any seriousness in the High Court
Division. The ground is that the Repeal Ordinance is a colourable legislation in that in
form it is a Repealing law, but in substance it continues the Upazila Parishads and vests
the "rights, powers, authorities and privileges" of the Parishads in the Government after
cleverly removing the elected Chairmen and members only. In other words, the learned
Counsels have invoked the doctrine known in judicial pronouncements as "what cannot
be done directly, cannot be done indirectly".
8. Learned Counsels for the appellants have laid great emphasis on the necessity for
functioning of local government bodies with people's representatives for the
establishment of a really democratic government in the country. They have referred to the
Constitution of Bangladesh containing the subject of "Local government" which is a
unique feature of the Constitution. It has been pointed out that in the Constitutions of no
other countries of the Sub-continent provisions of local government have been included
except a passing reference in Article 40 of the Indian Constitution. This Article provides
for encouragement to the growth of village panchayats only. A viable system of local
democracy, it has been urged, makes the concept of government by the people a reality. It
is established, nurtured and developed as an essential part of the fabric of democratic
government To strengthen this view extensive reference have been made to the historical
development of local government institutions in our country as well as in some other
highly developed democracies of the world, particularly England, USA and France.
9. Local government institutions, particularly in urban areas in our countries, have been
modeled on those functioning in the United Kingdom. There the system has reached the
stage of almost perfection through several centuries of uninterrupted growth and
experience. Development of local institutions in England and Wales may be traced back
continuously to the shires, hundreds, boroughs, cities or townships of the two centuries
prior to the Norman Conquest. Since then the system underwent changes and reorganisation on many occasions, each time with enhanced authority and augmentation of
revenues. The last re-organisation of the structure of Local Government Institutions was
effected by the Local Government Act, 1972. At the passing of this Act the following
local bodies were functioning; County Council, Non-county Borough, Urban District
Council, Rural District Council, Parish Council, 32 London Borough Councils, Common
Council of the City of London, Councils of Isle of Selli. All these bodies, big or small,
are fully autonomous, and independent of the Central Government as well as of each
other. All are run by elected persons, and excepting the House of Commons, these local
bodies are the only elements of Government which are the subject of universal suffrage.
These bodies are, however, subject to 'direction, control and supervision' of the Central
Government at Whitehall. Powers of the Local governments bodies, are regulated by Acts
of Parliament. These bodies have their own resources, but in some cases a substantial
portion of fund is provided by the Government which is also the sole authority to frame
policy regarding their functions. In England there is nothing like 'district administration'
as units of the Central Government and, outside the capital city hardly any existence of
the Central Government is felt except the Regional Offices here and there from which
officers of the Central Government exercise the general power of direction, control and
supervision over the local bodies. In addition to Regional Offices the Ministries sitting at
the Whitehall issue guidelines to them. Some of these local bodies are so developed and
managed by men of so much political maturity, administrative ability and sense of
responsibility that practically all powers of the Central Government are exercised by
those bodies. Even the subject of Police administration has been transferred to many of
these bodies. As for example, the Police force of a local body work in co-operation with
and under the supervision of the Chief Constable of Police of the Home Ministry. It is in
matters which affect the country as a whole that the Central Government come forward to
exercise power. One important feature of these local bodies is that they have been
continuously functioning all through. There is no question of dissolution or supersession
of any local body or of temporary taking-over of their functions by the Central
Government Democratic tradition has developed in this field of local Governments in the
case of Parliamentary democracy which also evolved through the experience of centuries.
It is here where our local government institutions differ. Since Independence from the
British, the local government bodies, particularly the District Boards and Municipal
Committees were superseded by the Government very often, not so much on the ground
of inefficiency, mis-management or lack of finance, as on political grounds or personal
rivalries. If the Chairman of a local body was not functioning as 'yes' man of the
Government of the day his committee was superseded which resulted in litigation that
continued for years. During the period of supersession Government took over functions
of a local body and managed them through their officers, such as Sub-divisional Officers,
District Magistrates or Commissioners. Hardly any chance was given for these bodies to
grow on a democratic line by "trial and error'; at least this is the popular belief in our
country.
10. The idea of local government is not a new one in the sub-continental countries,
particularly in Bangladesh. It is said that "village self government here is as old as the
village themselves". From time immemorial council of elders in different names and
forms, such as panchayat, majlish, sabha, samity, were in existence in almost every
village. The village head-man was widely respected and he sometimes sat with other men
of experience and wisdom and solved problems faced by the villagers. The decisions of
the panchayat, Sabha, Majlish, though there was no legal sanction behind them, were
accepted and obeyed. But it is during the British rule when these village councils or
sabhas were given institutional shape.
11. The British rule began from Urban areas-the three Presidency towns in the coastal
belts at the time when the Badshai Firmans reigned supreme over the vast area from
Central Asia to the borders of Arakan. But the narrow strips of land on the coast line of
the country, with foreign trading Centres, but gradually transforming into ruling class
were overlooked or ignored with contempt. The East India Company with experience of
local bodies institutions at home first set up a Municipal Corporation at Madras in 1687,
exactly at the time Aurangzeb was reducing to ashes the Kingdoms of Bijapur and
Golkunda. Municipal Corporation at Bombay and Calcutta were set up in 1726. Needless
to say these Corporations consisted of nominated members and official control was
unlimited. The experience of these Municipal Corporations was extended to municipal
areas in district head-quarters under the Municipal Committees Act No. X of 1840 and
within a period of about 30 years 24 Municipal Committees were formed in the areas
now comprising Bangladesh and Indian State of West Bengal. In the rural areas, three
important enactments provided for the foundation of village self governments. These
enactments are the Bengal Choukidari Act 1856 (Act XX of 1856), The Village
Choukidari Act, 1870 (Act VI of 1870) and The Bengal Village Choukidari Act 1871
(Act I of 1871). In exercise of powers under these Acts the District Magistrate constituted
a village panchayat for each village. The panchayat consisted of 3 to 5 inhabitants of the
village, nominated by the District Magistrate. The Village panchayat was given power to
appoint village choukidars who were entrusted with two functions; one for maintaining
law and order acting under directions of the village panchayat, and the other for rendering
assistance to the Police of the Thana by giving information about the crime condition of
the village. For paying choukidars' salaries the Village panchayat was given power to
levy tax on "holdings' in the village and for construction of roads and bridges,
maintenance of communication and other works of public utility, another Act was passed.
It is the Cess Act 1880-Bengal Act No. IX of 1880. To levy cess and road tax "Local
Committees" were constituted by or under the authority of the Board of Revenue. These
Local Committees functioned till their powers were made over to the District Boards
when established in 1885.
12. But the pace of development of these local government institutions having effective
power and authority was rather very slow. Reason was that their growth and development
depended upon the policy of the British Government at London. The two political parties,
Conservatives and Liberals, had different conceptions of Indian policy. When Gladstone
returned to power in 1880, he was determined to extend the benefits of free democratic
institutions like those in England to Indian people. Having been dissatisfied with the
progress and development of Local government institutions in India, he considered it to
be "our weakness and our calamity that we have been able to give to India the benefits
and blessings of free institutions". With a view to extend these benefits to Indian people
he chose his friend Lord Ripon, and sent him out to India as Governor-General. Ripon set
out with this intention and got a Resolution passed by his Government which was known
as Ripon's "Resolution of 1882" for development of local government institutions in real
sense.
13. Municipal Committees were re-organised under a new enactment-Municipal Act,
1884. But the more important enactment made on the basis of the Resolution was the
Bengal Local Self-Government Act-Act No. III of 1885. This Act provided for three tiers
of local Governments, District Board for a district excluding the municipal areas, Local
Board for a Sub-division or two, and Union Committee for a Union. The Local Boards
functioned for a few years and were abolished by Bengal Act No. XIV of 1936 when
these were found to be superfluous, duplicating the functions of the District Board. The
District Board consisted mainly of nominated members with provision for some elected
members. But till 1920 it was chaired by the District Magistrate. The District Board was
a body-corporate with independent fund and a body of officers and staff, maintaining its
autonomous entity, but due to lack of necessary fund and the over bearing attitude of the
Government officers of the District administration, the scope of its functions and
activities could not widen according to expectation. Union Committees consisted of five
to nine elected members who in their turn elected one of them as Chairman, but
provisions were also there in the Act for inclusion of members appointed by the
Commissioner. Union Committees under this Act functioned uninterruptedly till 1919
when the Bengal Village Self Government Act (Act V of 1919) was made to re-organize
these Committees. Under the new Act, the name of Union Committee was changed to
Union Board but its basic structure remained practically unaltered except the provision
that the one-third members would be nominated by the Government and two third would
be elected by direct votes of the Union rate payees; these nine members elected any one
of them as Chairman. The District Boards under Act III of 1885 and the Union Boards
under Act V. of 1919 functioned without any break till 1959 when the Basic Democracies
Order-PO 18 of 1959-was made and promulgated under the Martial Law Proclamation of
7 October 1958. As to the Municipal Committees, Act of 1884 was repealed by the
Bengal Municipal Act, 1932 (Act XV of 1932) and the Municipal Committees, popularly
known as municipalities, constituted under this Act continued till 1960 when the
Municipal Administration Ordinance No. 10 of 1960 was made and promulgated under
the same Martial Law Proclamation to govern this field.
14. Basic Democracies Order was intended to constitute "basic democratic institutions
suitable to the genius of the people". This Order re-organized the existing local bodies
changing names of some of them, such as, District Boards were named District Councils,
Union Boards were named Union Councils. Two new bodies were created-Thana Council
for each Thana and Divisional Council for each Division. Excepting the Union Councils
all other local bodies were constituted with official members, representative members and
nominated members and the Chairman of these bodies were government officers or
persons nominated by the Government who acted "during pleasure of the government".
As regards structure, function, fund, staff, there was hardly any difference between the
new and the old ones. But increased powers and functions were given to the Union
Councils-since these were considered to be the "base of democracy in the country". In
addition to functions as grass-root local bodies, members thereof were made the
"constituency" for election of members of the National Parliament as well as of the
President of the country. All these bodies functioned till Bangladesh achieved
Independence from Pakistan in 1971-72.
15. Immediately after Independence the President made and promulgated
the Bangladesh Local Councils and Municipal Committees (Dissolution and
Administration) Order, 1972 (PO No. 7 1972) for dissolution of all the existing local
government bodies. Dissolution of these bodies was found necessary because "they do
not represent the people and there has been persistent demand from the people for their
dissolution." On the dissolution of these local bodies "Committees" were appointed for
performing the functions of the defunct bodies. The Union Council was re-named as
Union panchayat, the District Council was re-named as Zilla Board, Municipal
Committee was re-named as Pourashava. No such "Committee" was however appointed
in the case of the defunct Thana Councils and Divisional Councils. Assets and liabilities
of Thana Council vested in the Zilla Board and those of the Divisional Council vested in
the Government.
16. After six weeks, this legislation-PO No. 7 of 1972-was amended by PO No. 17 of
1972. By this Order the defunct Thana Council was brought back in the name and form
of Thana Development Committee with considerably reduced powers and functions and
it was further provided that "powers and functions of the Thana Development
Committee" should be exercised and performed by the Circle Officer (Development).
After about six months, PO No. 7 of 1972 was again amended, this time by PO No. 110
of 1972. It provided for appointment of an Administrator in place of a Committee for
running the affairs of all the local bodies excepting the Divisional Council and the Union
panchayat. In the case of a Thana Development Committee the Circle Officer
(Development) became its Administrator. After about seven months, another President's
Order was made. It is Bangladesh Local Government (Union Parishad and Paurashava)
Order 1973-PO No. 22 of 1973, dated 22 March 1973. It provided for election to and
working of, Union Parishads and Paurashavas. By this time the Constitution
of Bangladesh had been passed by Parliament with effect from 16 December 1972; but
Parliament with new elected members did not yet come into session. Nevertheless,
Preamble of PO No. 22 of 1973 referred to Article 59 of the Constitution stating that in
view of this Article, which provides for local governments with elected persons, it was
expedient to make this Order for "constitution of Union Parishads and Paurashavas and
for matters connected therewith". The Dhaka Paurashava was up-graded and made a
Corporation, Dhaka Municipal Corporation, under Act No. 56 of 1974 with effect from
29 July, 1974. It provided for 72 Ward Commissioners, all elected, one Mayor and one
Deputy Mayor, to be elected by these Ward Commissioners from among themselves.
17. The Constitution of Bangladesh was radically changed by Act No. 2 of 1975, known
as the Fourth Amendment, with effect from 25 January 1975. In the amended
Constitution Articles 59 and 60 were deleted and Article 11 was modified dropping the
last sentence reading "and in which effective participation by the people through their
elected representatives in administration at all levels shall be ensured". But within about
seven months from this Amendment, Martial Law was declared from 15 August 1975 and
the position of the Constitution was made subordinate to the Martial Law Proclamations
of 20 August 1975 and 7 November 1975. During this Martial Law regime two Local
Government Ordinances were made. One is Thana Parishad Ordinance No. 32 of 1976
and the other is Local Government Ordinance No. 90 of 1976. By Ordinance No. 32 of
1976 Thana Development Committee was up-graded and renamed as Thana Parishad
which was to consist of both representative members and official members under the
Chairmanship of the Sub-divisional Officer. By the Ordinance No. 90 of 1976 all local
bodies including the Thana Parishad were re-organised, re-constituted and re-named; the
basic form and composition of the bodies practically remaining the same. The Thana
Parishad, for the first time, was made a body-corporate with perpetual succession,
common seal, right to hold and dispose of property, with its own fund and personnel.
This structure of all local bodies including the Thana Parishad continued even after the
lifting of Martial Law on and from 19 April 1979 from which date also the Constitution
was revived by the Fifth Amendment. In the revived Constitution Articles 59 and 60 were
not revived.
18. The Constitution was again suspended by Martial Law Proclamation of 24 March
1982 which remained in force till 11 November 1986. The Chief Martial Law
Administrator, in pursuance of power and authority under the Proclamation of 24 March
1982, proceeded to decentralise the Government's functions, re-organise the
administration at Thana level and to create Local Government in the name of "Thana
Parishad". For that purpose the Martial Law Government adopted a Resolution on 1
October 1982. Under this Resolution a scheme of administrative re-organisation and
creation of a Local Government at Thana level was drawn up. It provided for transfer of
some powers and functions of the Government Departments at Thana level to the Thana
Parishad and retention of the remaining powers and functions with Government.
Government would retain the direct responsibility for "regulatory functions" including
police, magistracy, civil and criminal justice, while the Thana Parishad would administer
the "transferred subjects" including development, family planning, agriculture, fishery,
livestock, etc. Until a Chairman was elected an Executive Officer of the Government,
Thana Nirbahi Officer, higher in rank and position than other officers at the thana level,
would perform the functions of the Chairman. Local Government (Thana Parishad and
Thana Administration Re-organisation) Ordinance (No. 59 of 1983) came into effect
from November 1982. This Ordinance was amended by Ordinance No. 33 of 1983, which
simply replaced the words "Thana and Thana Parishad" by the words "Upazila and
Upazila Parishad". During the period from 1982 to 1991 some more developments in the
field of local government institutions took place. Municipal Corporations were set up at
three more cities- Chittagong, Rajshahi and Khulna; and for the three Hill Tract Districts,
Rangamati, Khagrachari and Bandarban, Local Governments were established by
separate Acts of Parliament in 1989.
19. Before we enter into the question as to repeal of the Ordinance No. 59 of 1982 we
like to see what has been learnt from the two hundred years history of origin, growth and
development of local government bodies in various forums and shades. The old
Institutions like Municipal Committees, re-named as Paurashavas in urban areas, and
District Boards/Zilla Parishads and Union Boards/Parishads in rural areas, have got their
roots far deep into our society and people have been well acquainted with these
institutions. These bodies made great contribution to the country's democracy, which is
now a basic structure of the Constitution. With the revival of the Constitutional backing
for "Local Government" these old institutions cannot be abolished without damaging the
democratic fabric of the country. Parliament, of course, has got power to keep watch over
the working of these bodies and to make laws for making them more viable, strong and
efficient and not to do away with them. During the British rule progress of these local
government institutions was slow but nevertheless they were allowed to function
uninterrupted, no matter with scanty resources and limited powers. But since
Independence from the British rule, these institutions fell victim to party politics or evil
designs of autocratic regimes, passed through the ordeal of supersession, dissolution or
management of their affairs by official bureaucrats or henchmen nominated by
Government of the day. "Local government" has no where been defined; it is meant for
management of local affairs by locally elected persons. If government's officers or their
henchmen are brought to run these local bodies, there is no sense in retaining them as
local government bodies. Autocratic regimes in the past, after abrogating or suspending
the Constitution, which is the solemn expression of the people's will, and destroying
democracy in the sphere of national government, posed as ultra democratic in the sphere
of local governments starting from grass-root level, replacing the old bodies with new
ones terming them more democratic. But these measures hardly inspired confidence in
people, who therefore got reasonable ground to say that such "democratic measures" are
mere device to bluff the people of the country and leaders of the world. For, at the present
state of civilization, autocrats and dictators, whether they are political leaders or military
figures, are objects of ridicule and universal condemnation. An autocratic regime, though
apparently strong, is very weak in spirit and stands alienated from people. But this
alienation is fraught with mortal danger. So the autocrats and dictators seek some sort of
political base, and for that purpose, rush to the village, union and thana to establish real
democracy there.
20. In the long history of local government institutions as shown above, Thana
Parishad/Thana Council is of recent development, from the days of basic democracies in
1959. Thana Parishad built up in haste in 1982 was given so much power, function and
position that the totally inexperienced electied Chairman, even if he had all the honesty
and sincerity, could not cope with the tremendous responsibility thrust upon him
overnight. Again, as the local government at Thana was inextricably mixed up with the
central government affairs, run entirely by the Government's officers with governments
money, it is in fact a hybrid of the two government entities. Anyway had this system of
local government been worked out over a considerable period on the principle of "gradual
development of self-governing institutions with a view to progressive realisation of
responsible government", then probably it would have been successful. But conceived in
suspicion, born in stiff opposition and working through chaos and confusion, it was
bound to end in disaster as many people had apprehended. We have been informed by the
learned Attorney-General that the Government has set up a Ministerial Commission to
examine and report on the local government bodies; now that Articles 59, 60, as well as
Article 11, are in full force, any change in the local government scheme shall have to
conform to the Constitutional provisions.
21. The Repeal Ordinance has been challenged mainly on the ground of its being
inconsistent with Articles 9, 11 and 59 of the Constitution. Article 7(2) of the
Constitution says that any law inconsistent with the Constitution shall be void. Learned
Counsels for the appellants are seeking a declaration of nullity of the Repeal Ordinance
on this ground. A law is inconsistent with another law if they cannot stand together at the
same time while operating on the same field. Article 9 requires the State to encourage the
local Government institutions but the Ordinance has abolished a local Government,
namely the Upazila Parishad. Similarly, Article 11, they have pointed out, provides that
the Republic shall be a democracy in which, among other things, "effective participation
by the people in administration" at all levels shall be ensured; but the Ordinance has done
away with such participation in the administration at the Upazila level. These two
Articles as already quoted are Fundamental Principles of State Policy, but are not
judicially enforceable. That is to say, if the State does not or cannot implement these
principles the Court cannot compel the State to do so. The other such Fundamental
Principles also stand on the same footing. Article 14 says that it shall be a fundamental
responsibility of the State to emancipate the toiling masses-the peasants and workers-and
backward sections of the people from all forms of exploitation. Article 15(a) says that it
shall be a fundamental responsibility of the State to make provision of basic necessities of
life including food, clothing, shelter, education and medical care for the people.
Article 17 says that the State shall adopt effective measures for the purpose of
establishing a uniform mass-oriented, and universal system of education extending free
and compulsory education to all children, for removing illiteracy and so on. All these
Principles of State Policy are, as Article 8(2) says, fundamental to the governance of the
country, shall be applied by the State in the making of laws, shall be a guide to the
interpretation of the Constitution and of other laws and shall form the basis of the work of
the State and of its citizen, but "shall not be judicially enforceable". The reason for not
making these principles judicially enforceable is obvious. They are in the nature of
People's programme for socio-economic development of the country in peaceful manner,
not overnight, but gradually. Implementation of these Programmes require resources,
technical know-how and many other things including mass-education. Whether all these
pre-requisites for a peaceful socio-economic revolution exist is for the State to decide.
22. Similar Principles of State Policy are there in the Indian Constitution also, wherein
they are called Directive Principles of State Policy. Under Article 37 of the Indian
Constitution the Directive Principles are also "fundamental in the governance of the
country and it shall be the duty of the State to apply these Principles in making laws" but
these principles shall not be enforceable by any court. The Indian Supreme Court in a
number of cases including the case of Keshavanda Bharati ( : MANU/SC/0445/1973 :
AIR 1973 SC 1461) and Deepchand Vs. State of Uttar Pradesh (AIR 1959 SC 664) have
held that these principles are mere guide-lines for the State in the nature of moral
precepts but are not laws to be binding upon the State. Some eminent Jurists like BN Raw
and Alladi Krishnaswami and distinguished authors of books on Constitutional law, such
as Seervai and Basu, have expressed almost the same view about the Directive Principles
of State Policy.
23. Mr. Amirul Islam contends that Article 13 of the Indian Constitution, corresponding
to Article 26 of our Constitution, makes any law inconsistent with any fundamental rights
void; but in the Indian Constitution there is no provision like Article 7(2) of our
Constitution. Article 7(2) makes void any law inconsistent with any provision of the
Constitution besides the fundamental rights. It is true that Article 8(2) of our Constitution
has been couched in stranger language than Article 37 of the Indian Constitution and that
Article 7(2) has no corresponding Article in the Indian Constitution. But the basic
position is the same in both the Constitutions-namely Principles of State Policy are not
judicially enforceable. In view of this position the learned Attorney-General argues that
the Court cannot declare any fundamental principle void on the ground of inconsistency
with a fundamental principle for, in that case declaration of nullity of a law will result in
implementation of the fundamental principle by the Court. Mr. Amirul Islam has tried to
make a distinction between the concept of enforceability of a provision of the
Constitution and the concept of inconsistency between a provision of the Constitution and
another law and has contended that while the Court cannot enforce a fundamental
principle, it can declare a law void on the ground of manifest inconsistence with any
provision of the Constitution including a fundamental principle.
24. Supporting this view Dr. Kamal Hossain has argued that if a law is directly opposed
to and negates any fundamental principle the Court has got power to declare the law void.
He has referred to some of the fundamental principles and tried to show that flouting of
these principles may be prevented by the Court by issuing appropriate directions. Learned
Counsel has cited Article 18(2) which provides that the State shall adopt effective
measures to "prevent prostitution and gambling" and contends that though the Court
cannot direct the State to implement this principle, it can certainly declare a law void if
the law provides for encouragement of prostitution and gambling. In support of this
argument he has referred to certain decisions of the Indian Supreme Court, which despite
the bar to judicial enforceability of directive principle, has issued appropriate directions
to the Government to take positive action so as to remove the grievances of people
caused by non-implementation of some Directive Principles.
25. In Comptroller and Auditor General Vs. Jagannath, AIR 1987 (SC) 537,
Article 46 was involved. It requires the State to" promote with special care economic and
educational interest of weaker sections of the people"-particularly the Scheduled Caste
and Schedule Tribes. Government issued instructions to provide adequate opportunity,
special consideration and relaxation of qualification in the cases of candidates from
weaker sections of the people for appointment as well as promotion in government
services. The Office-Memo containing these Instructions was challenged under Article
226 on the ground of violation of Fundamental right as to equal opportunity for public
service. The High Court, in spite of Article 37, which makes directive principles
unenforceable, upheld the Office-Memo and dismissed the Writ Petition. In Mukesh Vs.
State of Madhyapradesh, AIR 1985 (SC) 1363, Bonded Labour System (Abolition) Act,
1976 came up for consideration. It was a public interest litigation on the allegation that
this law was not being implemented to stop exploitation of labour in stone quarries. The
Supreme Court issued a direction for taking steps against exploitation of the workmen in
the quarries. In Sheela Vs. State of Maharastra, : MANU/SC/0382/1983 : AIR 1983 SC
378, a petition of complaint of custodial violence to women prisoners in police custody
came up before the Supreme Court, which then laid down certain guide-lines for ensuring
protection against torture and mal-treatment to prisoners in police custody. Direction for
legal aid, as provided in the directive principle under Article 39-A of the Constitution,
was also issued by the Supreme Court. In Laxmi Kant Vs. Union of India, :
MANU/SC/0089/1986 : AIR 1987 SC 232, the Supreme Court issued certain directions
as to adoption of destitute and abandoned children keeping in view
Articles 15 and 39(f) of the Constitution. In all these cases the State and other authorities
concerned were themselves proceeding to make necessary legislation for implementing
the directive principles, and in some cases they issued directions to appropriate persons to
take necessary action. In some of these cases as cited above the authorities, instead of
opposing the writ petitions, sought necessary instructions and directions from the Court.
In those cases no law was made in contravention of any directive principles and as such
there was no occasion for the Court to declare any such law void.
26. Articles 59 and 60 of our Constitution are judicially enforceable, and it has been
argued from the bar that the Repeal Ordinance has contravened the provisions of these
Articles by abolishing the Upazila Parishad, a local government. Article 59, as already
quoted, provides that "local government" in every administrative unit shall be entrusted
to bodies composed of elected representatives of the people and such bodies shall
perform such functions as are prescribed by Act of Parliament Article 60 provides that
Parliament shall by law confer necessary powers upon local bodies including power of
imposing taxes to give effect to the provisions of Article 59. It is, therefore, clear that
Article 60 is a corollary to Article 59. Learned Attorney-General however contends that
Article 59 will come into play only when the State has established a local government in
pursuance of Article 9 containing a fundamental principle the implementation of which is
not mandatory as already shown. Secondly, he says, there is no constitutional mandate
upon the State to establish local government in every tier of the administration. Local
government, it is pointed out, is to be established in every administrative unit; the
Upazila, he contends, is not an administrative unit for the purpose of Article 59. Learned
Attorney General has referred to Article 152(1) which defines "an administrative unit"
and has contended that it is for the Parliament to designate what "area" is an
administrative unit. In the case of an Upazila Parishad, he has pointed out, the Upazila
has not been designated as an administrative unit and as such the provisions of Article 59
are not attracted to an Upazila Parishad.
27. Article 152(1), already quoted, has given a particular meaning of "administrative
unit". It means "a district or other area designated by law for the purposes of Article 59".
Local government in every administrative unit, therefore, means a local government
either in a district or in any other area specifically designated by law. Learned AttorneyGeneral's contention is that for the purpose of establishing a Local Government in a
district, the district should also be designated as an administrative unit. Mr. Ishtiaq
Ahmed differs from this view and argues that as a 'district' has been specifically included
in the definition of "administrative unit", no separate designation is necessary for setting
up a local government there. He further contends that as upazilas, unions and
municipalities are within the territorial 'limit' of a district, no separate designation of
these areas also is necessary for establishing local governments there. He has tried to
argue that if any local government is to be established in an area involving more than one
district, then only a designation of that area as an administrative unit will be necessary.
28. For true construction of Article 152(1) defining an 'administrative unit' the primary
rule of construction will be sufficient in this case. It is the words used in this Article
which will give its meaning. The words in this Article are simple, clear and
unambiguous, and on reading these words together a definite meaning emerges. For the
purpose of finding out the legislative intention behind this provision no further effort
need be made. In this Article the words "district or any other area" are to be read
conjunctively, and if it is done, a "district" is found to be an administrative unit, and for
the purpose of Article 59, that is to say, for establishing a Local Government mere, no
designation by law is necessary. But as regards "any other area" it will be an
"administrative unit" only if it is specifically designated as such by law.
29. Immediately after the coming into force of the Constitution in 1972, Local
Government (Union Parishads and Paurashavas) Order-PO No. 22 of 1973 was made;
and though its Preamble made a passing reference to Article 59, this Order did not
designate the unions and municipalities as administrative units. But within two months,
PO No. 22 of 1973 was amended by the Local Government (Union Parishads and
Parashavas) (Amendment) Act 1973-Act No. IX of 1973- which inserted Article 2C in
the parent Order. Article 2C reads thus:
2C. Unions and Municipalities shall be administrative units within their respective areas
for the purposes of Article 59 of the Constitution of the People's Republic
of Bangladesh.
30. Thus the amended Local Government (Union Parishad and Paurashava) Order 1973
puts at rest the controversy as to whether designation by law of an area other than a
district is necessary for the purpose of Article 59. It is unfortunate that this important
legislation-Act IX of 1973-escaped the notice of learned counsels for both the parties to
these appeals. This amendment by Act IX of 1973 fulfilled one of the requirements for a
local body to be a local government. Another constitutional requirement was fulfilled at
the time of making of PO No. 22 of 1973. It was that a local body "shall be composed or
elected representatives of people of the area concerned. Within a year of Act IX of 1973
being passed, the Constitutional provision for Local Government including Article 59
was deleted by the Fourth Amendment and this omission continued till September 1991
when the previous provision was revived by the Twelfth Amendment. During this long
gap of time local governments in various forms and names were constituted, re-
constituted, abolished or revived by or under the authority of Martial Laws. The question
of bringing these bodies in conformity with Articles 59, 60 or 152(1) did not arise during
this period. Now that these provisions of the Constitution are back all local bodies shall
have to fulfil these constitutional requirements.
31. Learned Attorney-General has contended that the Legislature may, without fulfilling
the requirements of the Constitution, such as in Articles 152(1) and 59, establish local
governments in exercise of its plenary power of law-making under Article 65. If so, there
will be two classes of local governments in the country; one under the ordinary law and
the other under the Constitution. This will lead to a situation not contemplated by the
Constitution. When the Constitution has made specific provisions as to Local
Government, only those provisions shall have to be followed and complied with.
Secondly, administration of local governments which are not sanctioned by or are outside
the ambit of the Constitution will come within the mischief of Article 7(1) of the
Constitution. This Article says "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".
32. Another ground of attack on the impugned Ordinance is that it is ultra vires the
President's power under Article 93 of the Constitution. Dr. Kamal Hossain has contended
that a vital aspect of the structure of governance cannot be made by an Ordinance
circumventing the Parliament. He has further argued that the Constitution envisages lawmaking to be done by Parliament following consultations, deliberations, debate and
discussions in such matters of national importance. Learned Counsel has pointed out mat
the Ordinance was made in an unusual hurry just twentyone days before the Parliament
was called into session. Referring to Article 93 he has said that the Government failed to
present any credible facts to show that circumstances existed which rendered immediate
action necessary for making this Ordinance. It has been also contended that when the
Upazila system had been working for a considerable time, and when Parliament was also
about to go into session, promulgation of the Ordinance in a hurry betrayed the political
motive of the Party-Government, on whose advice the President made the Ordinance. It
has been contended that most of the Upazila Parishads after the latest election, were
dominated by Chairmen who belonged to or supported the view of the OppositionPolitical parties and that to get rid of those elected persons the impugned Ordinance was
made. In other words, mala fide intention is sought to be attributed to the Government.
But question of intention of the law making authority, whether the President in the case
of an Ordinance, or the Parliament in the case of enacting a legislation, is irrelevant if
they got power to make Ordinance or Act on a given subject This position of law is also
not disputed by the learned Counsels for the appellants.
33. Learned Attorney-General has tried to refute all these contentions saying that the
President was satisfied that circumstances had existed which rendered immediate action
necessary to make and promulgate the Ordinance when it was found that the system of
Upazila Parishads was not working properly but it became a heavy drain on the National
Exchequer. He has argued further that these reasons for abolition of the Parishads could
not be disputed by the appellants. As to President's "satisfaction" whether circumstances
exist for taking immediate action under Article 93, learned Attorney-General does not
dispute that such satisfaction of the President is not totally excluded from judicial
scrutiny. In an Indian case also (AK Roy Vs. Union of India- : MANU/SC/0051/1981 :
AIR 1982 SC 710) it has been held that President's satisfaction about the existence of
circumstances requiring immediate action to make an Ordinance under Article 123 of
their Constitution may be reviewed by the Court. Secondly, learned Attorney-General has
added, as required by Article 93(2) of the Constitution, the Ordinance was laid before
Parliament at its first meeting following the Promulgation of the Ordinance and was
approved of and made an Act of Parliament within the prescribed time. In these
circumstances, we find that this ground for assailing the Ordinance is no longer available
to the appellants.
34. Lastly, the Repeal Ordinance, now the Repeal Act, has been attacked on a ground
which was not urged before the High Court Division. Mr. Ishtiaq Ahmed who has taken
this ground contends that the Repeal Act is a colourable legislation in mat "in form it is a
Repeal Act, but in substance it continued the Upazila Parishads and vests the rights,
powers, authorities and privileges of the Parishads in the Government". He has referred to
Article 59 which requires that the Upazila Parishad shall be composed of elected persons,
and to Article 60, which requires the Parliament to confer necessary powers including the
power to impose taxes for local purposes upon the local bodies, but the Repeal Act, in the
guise of abolition of the Parishads, has in fact retained them so that their functions can be
performed by government through their officers. If this contention is correct and the
Upazila Parishads are still functioning through Government Officers, then the Act will
not only be a colourable legislation, but it will be a fraud on the Constitution, in which
case we shall have no hesitation to declare it void. Learned Attorney-General has stoutly
denied that the Parishads have been retained in a covert manner.
35. The question of colourable legislation arises when a thing which cannot be done
directly is sought to be done indirectly. A thing is colourable which exists in appearance
and not in reality. It is "what it purports to be". Colourability is linked up with
incompetency, that is, an authority doing a thing which he got no power to do.
"Colourable" is not tainted with bad faith; it is just lack of jurisdiction. In other words, in
the case of 'law-making, the doctrine of colourable legislation does not involve any
question of bonafide on the part of the legislature. If the legislature is competent to pass a
particular law, the motives which impelled it to act are really irrelevant. As stated in
Cooleys' Constitutional Limitations, "whether a statute is constitutional or not is always a
question of power". Learned Attorney-General has in this connection referred to a few
Indian cases including KG Narayan Deo Vs. State of Orissa, AIR (1953), SC 379.
36. In modern Constitutions State powers are distributed among the three Organs or
Departments of Government. Legislature is one of the three organs. It is assigned the
legislative powers which are clearly demarcated and it has to act within its own field and
cannot transgress the limits set by the Constitutional provisions. If the Legislature
transgresses the limits, it may be stopped and the transgression may be declared a nullity
by the Judiciary-another State Organ. The transgression may be "patent, manifest or
direct"; it may also be "disguised, covert and indirect". This latter class of transgressions
is expressed as colourable legislation in judicial pronouncements. Elaborating this
doctrine Duff-J made the following observation in Attorney General for Ontario Vs.
Reciprocal Insurers, 1924 AC 328:
Where the law making authority is of a limited or qualified character it may be necessary
to examine with some strictness the substance of the legislation for the purpose of
determining what is that the legislature is really doing.
It is, therefore, the substance of a law and not its form that matters. If the subject-matter
of a law in substance is something which is beyond the Legislature's power to legislate
upon, its outward form cannot save it from the mischief of judicial review. In such cases
investigation may be held to find out whether what has been made is in fact within the
power of the Legislature. For the purpose of this investigation. Court can examine the
effect of the legislation and take into consideration its object, purpose and design.
(Attorney General for Alberta Vs. Attorney General for Canada, 1939 AC 117).
37. Reading the Repeal Act as a whole we find that it has repealed the Upazila Parishad
Ordinance (No. 59 of 1982) and abolished the Upazila Parishads created thereunder.
Consequent on the abolition of the Parishads certain provisions were also made in the
Repeal Act, such as, assets of the Parishads shall vest in the Government who shall also
accept the liabilities of the Parishads; litigations filed by and against the parishads and
pending at the time of the Repeal Act shall be regarded as litigations filed by and against
the government; officers and employees of the Parishads shall stand transferred to the
Government, etc, We do not find any wrong in these provisions made consequent to the
repeal of the parent law. The observation made by one of the two learned Judges of the
High Court Division that the assets of one abolished local body can be vested only in
another local body and not in the Government is not correct. Mr. Ishtiaq Ahmed,
however, contends that "if only the rights, powers authorities and privileges accrued or
acquired before the abolition of the Parishads were intended to be vested in the
government, men a language similar to section 6(c) of the General Clauses Act ought to
have been used; but the language of sec. 2(2)(kha) of the Repeal Act cannot be construed
to limit the vesting to accrued or acquired "rights, powers, authorities and privileges". In
fact the legislative intent behind the repeal, he concludes, is to provide for continued
functioning of the abolished Parishads under the administrative direction of the
government. Learned Counsel has in this connection referred to two executive
Instructions of the government to the Upazila Nirbahi Officers which tend to show that
the Government officers are continuing the functions of the abolished Parishads.
38. Learned Attorney-General, refuting this contention, has referred to about a dozen
Executive Instructions of the Government issued to the Upazila Nirbahi Officers and
other officers posted in the Upazila head-quarters to show that the Upazila Parishads as
"body corporate" have been totally abolished, that all officers and employees of the
Parishads, who were in fact officers and employees of the Government but were "deemed
to be on deputation to the Parishads" have been reverted to their respective Ministries,
Departments and Directorates and are now working directly under their immediate
superiors posted at the District Head-quarters, drawing their salaries from the budgetary
allocations of the respective Ministries. He has explained that in the transition period, the
Upazila Nirbahi Officer, who is the senior most among officers of the government posted
to the Upazila administration has been directed by the government to coordinate and
supervise the various functions and affairs of the government consequent on the abolition
of the Parishad. The Nirbahi Officer, along with officers of other Government
Departments, has been running the affairs of Government and not of any corporate body
like the defunct Parishad.
39. It appears to us that the legislative drafting of section 2(2)(kha), particularly the
words in Bengali "rights, powers, authorities and privileges of the abolished Parishads"
has apparently created an impression that those attributes of the Parishads have remained
to be enjoyed by the Government. If these words are deleted then no confusion will be
left. Upon consideration of the entire Repeal Act we do not find any substance in the
contention that it is a colourable legislation. While dealing with the question as to
whether the Upazila is an administrative unit we have found that it is not, and as such, an
essential constitutional requirement for the Upazila Parishad to be a local government is
not fulfilled. We have also found that the Upazila Parishad is not also wholly an elected
body. This Parishad is therefore not a local government under the Constitution. Abolition
of such a body violates no provision of the Constitution so as to attract the relief under
Article 102 of the Constitution.
40. In view of the discussions above it is decided as follows:
i) On construction of Articles 59 and 60, read with Articles 9 and 11 of the Constitution
and considering the origin, growth and development of Local Government Institutions at
different levels of the Administration over one and a half centuries, it is found that Local
Government is an integral part of the democratic polity of the country. The system of
Local Government Institutions may be altered, re-organised or re-structured, and their
powers and functions may be enlarged or curtailed by Act of Parliament, but the system
as a whole cannot be abolished.
ii) 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 persons.
iii) An "administrative unit", as defined in Article 152(1), is a "district or other area
designated by law for the purposes of Article 59". In the case of a district, no designation
is necessary, but it is necessary in all other cases as was done in the case of unions and
municipalities by Act IX of 1973-The Bangladesh Local Government (Union Parishad
and Paurashava) (Amendment) Act, 1973 before deletion of Articles 59 and 60 by Act II
of 1975.
iv) An Upazila Parishad established by Ordinance No. 59 of 1982, as it stood amended by
Ordinance No. 33 of 1983, is not a Local Government within the meaning of Article 59.
This Parishad has been lawfully abolished by the impugned Ordinance No. 37 of 1991,
which has been later on made an Act, Act No. 2 of 1992. These are valid laws and not
ultra vires the Constitution except the words
in sub-section (2) Kha)
of section 2 of the said Ordinance/Act.
v) But there are other local bodies constituted by, and functioning, under different
statutes. 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. The areas in which these bodies
other than the Zilla Parishads have been constituted shall have to be designated as
administrative units by amending these statutes. Designation afresh of the unions and
municipalities is also necessary in view of the fact that Act No. IX of 1973, along with
the President's Order No. 22 of 1973, was itself repealed by Ordinance No. XC of 1976Local Government Ordinance 1976 in the case of Unions and by Paurashava Ordinance,
1977-Ordinance No. XXVI of 1977-in the case of municipalities. Required designations
by amending the relevant statutes with effect from the date on which the Twelfth
Amendment of the Constitution was made should be provided as soon as possible-in any
case within a period not exceeding four months from date.
vi) The other constitutional requirement for these local bodies is that they shall be
entrusted to bodies "composed of persons elected in accordance with law". The existing
local bodies are, therefore, 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. In the suggested amending
statutes, all actions taken by the local bodies concerned since 18 September 1991 should
be ratified.
In the result, both the appeals are dismissed without any cost. The leave petition is also
dismissed.
MH Rahman J: I agree. I have got nothing to add.
ATM Afzal J: To think of writing anything further, after having perused the main
judgment of my Lord the Chief Justice and those of my brothers Mustafa Kamal and
Latifur Rahman JJ, is very likely to incur the ordinary human folly of repetition. But then
it is human failing again which prompts me to make some observation on one or two
topical matters.
41. Upazila Parishad, a tier of local Government at the upazila/thana level has been
abolished by the impugned legislation, namely, the Local Government (Upazila Parishad
and Upazila Administration Re-organisation) (Repeal) Ordinance, 1991 (Ordinance No.
37 of 1991), subsequently made into an Act, Act No. 2 of 1992. This repealing
Ordinance/Act indeed repealed the Local Government (Upazila Parishad and Upazila
Administration Re-organisation) Ordinance, 1982 (LIX of 1982) under which the
administration at the thana/later on called, Upazila level was re-organised and Upazila
Parishad constituted.
42. The repealed Ordinance is a relic of the erstwhile Martial Law regime and so is the
abolished local Government i.e., Upazila Parishad. It may be of some interest to reflect
that the precursor of the Upazila Parishad was Thana Council which again was conceived
during a Martial Law period and constituted under the Basic Democracies Order, 1959
promulgated by Field Marshal Mohammad Ayub Khan. It is of historical importance
which should be mentioned that in the history of the evolution of local Government in
this country over a period of more than a century and half which has been minutely
delineated in the judgment of the learned Chief Justice there had never been a local
Government at the thana level until it was introduced during the first Martial Law period
in the then Pakistan as mentioned above. This local Government tier is thus a by-product
of the Martial Law era.
43. Now, a democratically elected Government has done away with this tier upon finding
that "the Upazila system itself was liable for drainage of Government money in
unproductive activities which negated the welfare of the people and the Upazila Parishads
were not economically viable as they were more dependant on Government allocation
rather than earning revenue from their own sources" (vide affidavit-in-opposition of the
respondents). In a further affidavit before this court it has been stated that after the
enactment of the repealing Ordinance on 23.11.1991, a high level Local Government
Review Commission was constituted by the Government to review and study the local
government of Bangladesh and recommend a suitable, effective, responsible and
accountable Local Government structure for Bangladesh.
44. It has been rightly asserted by the respondents, and no learned Counsel has disputed
it, that the constitution of Local Government bodies and the tiers thereof have undergone
changes from time to time since the Bengal Local Self Government Act, 1885 (Bengal
Act III of 1885) was enacted, that such changes were made in exercise of Law-making
power either by Act or by Ordinance or by President's Order and that thus the constitution
and the tiers of local Government bodies were always dependent on the policy of the
respective Governments of the day.
45. The question of vires of the impugned Ordinance/Act was raised on the ground of
inconsistency mainly with Articles 9, 11, 59 and 60 of the Constitution. Article 9 which
provides that the State shall encourage local Government institutions composed of
representatives of the areas concerned etc, it is interesting to note, was not there in the
original constitution but was again a contribution of a Martial Law regime, the same
having been incorporated by Proclamations Order No. 1 of 1977. Articles 59 and 60 and
later part of Article 11 which speak of Local Government and peoples' participation in
administration, although there in the original Constitution, were deleted with effect from
25 January 1975 by Act no II of 1975 (Fourth Amendment) and they remained in exile
until brought back by Act No. XXVIII of 1991 (Twelfth Amendment) with affect from
18.9.91.
46. In this background, we were called upon to consider the challenge as to the vires of
the impugned Ordinance/Act made by Mr. Amirul Islam and Dr. Kamal Hossain. Syed
Ishtiaq Ahmed, learned counsel for one of the appellants, however, did not impugn the
Ordinance/Act wholesale. He frankly submitted that the repealing Ordinance/Act would
have been unexceptionable if only the
were not
vested in the Government as provided in section 2 (2)(Kha) thereof. He conceded that the
Government's power to reorganise, re-structure and re-model the local Government
institutions in the light of current experience and needs of the society cannot be disputed
and to that end the abolition of a tier of local Government (here Upazila Parishad) cannot
be said to offend any provision of the Constitution. If it were a repeal simpliciter of the
(repealed) Upazila Ordinance (LIX of 1982) without the aforesaid offending provision,
there would have been no valid cause of action for the appellants, Mr. Ahmed submitted.
47. I would like to record my appreciation for the fair and bold stand taken by Mr.
Ahmed. Indeed he has summed up the position in law correctly.
48. As to his submission that by the aforesaid provision in section 2(2)(Kha), there was a
covert attempt to continue the Upazila Parishad through the Government servants in
violation of the mandate in Article 59 that local Government should be entrusted to
elected bodies, even though the repealing Ordinance/Act professed merely to abolish the
Upazila Parishad and thus the same was a colourable legislation. I think there is not much
to add after what has been stated in the judgments of the learned Chief Justice and
Mustafa Kamal J. Mr. Ahmed is right in his contention that the provisions of Articles 59
and 60 are limitations on the plenary legislative power of the Parliament in the field of
Local Government.
49. The contention of the learned Attorney-General that the Legislature may without
designating an area as an administrative unit for the purpose of Article 59 in exercise of
its plenary legislative power (Article 65) establish local Government is mischievous as it
would amount to defying the mandate of Articles 59 and 60 which cannot be permitted.
The argument, therefore, must be rejected.
50. The vesting of etc. of the in the Government as provided in section 2(2)(Kha) of the
repealing Ordinance/Act was apparently made as the draftsman blindly followed and
copied the usual sections in case of a repeal without understanding that in the present
case mere was no successor local Government to be vested with the powers, etc. of the
abolished local Government. A reference to section 66 of the repealed Upazila Ordinance
(LIX of 1982) will show that after abolition of the Thana Parishad, provision was made in
sub-section 2(b) that "all assets, rights, powers, authorities and privileges, and all
property...........................of the abolished Parishad..................shall stand transferred to
and vest in the (Upazila) Parishad''. In contrast it will be seen that when the Thana
Council was dissolved under PO No. 7 of 1972 and no provision was made for any kind
of local Government at that level it was only provided in Article 5(b) thereof that "the
assets and liabilities of a dissolved Thana Council shall vest in the Zilla Board concerned
and the employees of such Thana Council shall be deemed to be the employees of such
Zilla Board''.
51. There was no necessity of vesting in the Government the rights, powers, authorities
and privileges of the abolished Upazila Parishad and it clearly shows a lack of
understanding of the powers of the Central Government vis-a-vis a Local Government
William Valenta in his book, "Local Government Law (American case book series) page
2 points out that "local Governments are not true sovereign governments, but political
creatures and subdivisions of sovereign state governments. As such they possess no
independent sovereign powers or authority, save those delegated to them by state
constitutions and laws. In brief, they remain subject to the sovereign authority of the
national and state governments" Indeed the purpose of the repealed Ordinance was to
transfer some powers and functions of the Government to the Upazila Parishads. These
were called "transferred subjects". When the Upazila Parishad was abolished by the
repealing Ordinance/ Act, a fortiori, those subjects reverted back to the Government and
the whole field came to be occupied by it.
52. As to the larger question raised by the other learned Counsels, Mr. Islam and Dr.
Hossain, that the repealing Ordinance/Act is ultra vires the Constitution being
inconsistent with Articles 9, 11, 59 and 60, it has been concurrently found by the learned
Chief Justice and Mustafa Kamal J., with which I agree, that the Upazila Parishad not
being a local Government within the meaning of Article 59, the abolition of such a body
violates no provision of the Constitution. I would add that even if it were a local
Government in terms of Article 59 even then the abolition thereof in the circumstances
and as averred by the Government cannot be said to be violative of any provision of the
Constitution. Upazila Parishad may not have been local Government strictly in terms of
Article 59 but then it cannot be denied that it has all the attributes of a local Government.
Mr. Amirul Islam laid great emphasis on the long historical background of the evolution
and existence of local Government in the body polity of this country to impress upon us
that the Constitution in its various provisions not only recognised this historical fact but
also recommended for establishment of local Government as a part of the democratic
fabric of the State.
53. Accepting that the Upazila Parishad was a local Government and the Constitution
provides for promotion of such local Government, can it be said that the abolition thereof
has offended any provision of the Constitution. In the beginning of this judgment it has
been noticed that the tiers of local Government had never been static and the Constitution
and tiers of local Government depended on the legislative policy of the Government in
office. It has also been noticed that the Government found the Upazila system not a
viable one and set up a high level review commission to recommend a suitable, effective,
responsible and accountable local Government structure for Bangladesh. Therefore, it
may be said that by enacting the repealing Ordinance /Act, the Government has taken one
step backward only to take more worthy steps (as professed) forward in the matter of
local Government As far as the policy behind such move is concerned, it cannot be
disputed that the same cannot be a matter for the Court to enter into. The system of local
Government as such has not been done away with for good but a review has been
undertaken to evolve a better system dismantling a tier at the thana level. I do not see
therefore how it is inconsistent with Article 9. As for inconsistency with Article 11 that
the repealing Ordinance/Act has denied participation by the people through their elected
representatives in the Upazila Administration, the question does not arise because the
Upazila (as an administrative unit) itself has been abolished and thus there cannot be any
participation by the people in the administration qua the Upazila.
54. There is no mandate in Article 59 that the legislature must designate any particular
area as an administrative unit for the purpose of Article 59 or that the legislature must
maintain a tier of local Government at the Thana level or in any particular area. There is
no constitutional limitation in Article 59 that the legislature cannot abolish a local
government of a particular tier if it is considered necessary. It cannot be disputed that the
legislature has plenary power to repeal any law including one dealing with local
Government. Thus viewed I do not find any inconsistency with any provision of the
Constitution.
55. Naimuddin J. in his judgment found that the Upazila Parishad was not a local
Government institution within the meaning of Articles 59 and 9 of the Constitution and as
such Article 9 cannot be invoked for declaring the repealing Ordinance/Act void under
Article 7(2) on the ground of inconsistency with Article 9. He has not also found that the
impugned Ordinance/Act is in conflict with any other provision of Part II of the
Constitution containing Fundamental Principles of State Policy. That being so, it was
wholly unnecessary to decide whether in view of the Provision in sub-article (2) of
Article 8 that the principles set out in Part II shall not be judicially enforceable, any
legislative act which is in direct conflict with and passed in flagrant violation of the
provisions of Part II can be declared void under Article 7(2). Having answered this
hypothetical question in the affirmative after taking hypothetical facts into consideration
in a lengthy discussion, the learned Judge addressed himself to the real question thus;
Consequently, if it is found that the impugned repealing Ordinance is violative of Article
9 of the Constitution it is liable to be struck down as void in view of Article 7(2) of the
Constitution.
56. Then the finding was made that the repealing Ordinance was not violative of Article 9
with which we have agreed. Therefore the broad decision that a law can be declared void
in case of a conflict with any provision of Part II of the Constitution was uncalled for and
made on hypothetical facts. This, as a rule, the Courts always abhor. The Court does not
answer merely academic question but confines itself only to the point/points which are
strictly necessary to be decided for the disposal of the matter before it. This should be
more so when Constitutional questions are involved and the Court should be ever discreet
in such matters. Unlike a civil suit, the practice in Constitutional cases has always been
that if the matter can be decided by deciding one issue only no other point need be
decided.
Finally, I wish to express my full agreement with the main judgment prepared by the
learned Chief Justice.
Mustafa Kamal J: In concurring with the judgment delivered by the learned Chief Justice,
I would like to express my opinion on the issues involved, without duplicating the facts
and without re-stating the history of local government which have been well-covered in
his Lordship's judgment.
57. The debate centered round a repealing legislation-Ordinance No. XXXVII of 1991shortly the Repealing Ordinance, later on made an Act-Act No. II of 1992, shortly the
Repealing Act. The repealed legislation is Ordinance No. LIX of 1982, shortly the
Repealed Ordinance.
Three broad questions, the first
(i) Is the Repealing Ordinance/Act wholly or in part inconsistent with Articles 59 and 60
of the Constitution and is thus void either wholly or to the extent of the inconsistency
under Article 7(2) of the Constitution?
58. Mr. Amirul Islam argued that the Repealing Ordinance/Act in its totality is
inconsistent with Articles 59 and 60 of the Constitution. It destroys the elected part of the
body. The Upazila exists as a territorial unit, a unit of administration. But the powers,
authority, functions and privileges of dissolved Upazila Parishad are vested in the
Government. In the garb of a repeal, it is a re-enactment and recreation of a local
government to be run by an unrepresentative body. Mr. Syed Ishtiaq Ahmed submitted
that only the words occurring in sub-section (2) of section 2 of the Repealing
Ordinance/Act is inconsistent with Articles 59 and 60. He submits that if only the rights,
powers, authorities and privileges accrued or acquired before the abolition of Upazila
Parishad were intended to be vested in the Government, then a language similar to
section 8(c) of the General Clauses Act ought to have been used. But the vesting in
section 2(2) goes much beyond accrued or acquired rights. The Repealing Ordinance
continues the functioning of the abolished Parishads under the administrative directions
of the Government. It is thus a colourable piece of legislation. The learned AttorneyGeneral replied that the Repealed Ordinance/Act was not a Local Government within the
meaning of Article 59 as Upazila was not designated as an administrative unit for the
purposes of Article 59 and so its abolition by the Repealing Ordinance/Act is not
inconsistent with the provisions of Articles 59 and 60. He further submits that both the
intention and working of the Repealed Ordinance are the abolition of Upazila system
altogether and so the question of colourable legislation does not arise.
The second question
(ii) Is the Repealing Ordinance/Act inconsistent with Articles 9 and 11 of the
Constitution and if so, can it be declared void on that ground under Article 7(2) of the
Constitution?
59. Mr. Amirul Islam submitted that the Repealing Ordinance/Act is liable to be declared
void wholly, first, for being violative of the Preamble of the Constitution and secondly,
for being inconsistent with Articles 9 and 11. He submits that the Fundamental Principles
of State Policy may not be "judicially enforceable" but inconsistency therewith renders a
law liable to be declared void under Article 7(2), there being a distinction between
"enforceability" and "inconsistency". Dr. Kamal Hossain submits that a law which
negates a clear directive of the Fundamental Principles of State Policy is liable to be
declared void as being inconsistent with the Constitution. The learned Attorney-General
submits that a law is not liable to be declared void on the ground of inconsistency with
the Fundamental Principles of State Policy, that Article 8(2) of the Constitution is an
exception to Article 7(2) and that to declare a law as void is another way of enforcing a
different state of things so that there is no real distinction between "enforceability" and
"inconsistency".
The third question
(iii) Was the Repealing Ordinance/Act validly passed under the Ordinance-making power
of the President under Article 93 of the Constitution?
60. Dr. Kamal Hossain submits that the Repealing Ordinance/Act is ultra vires the
President and unconstitutional since Article 93 did not empower the making of the
impugned Ordinance for the following reasons:
(a) An organic law providing for a vital aspect of the structure of Government cannot be
made by an Ordinance, circumventing the Parliament;
(b) No facts have been presented by the Government to show that circumstances existed
which rendered immediate legislation necessary;
(c) The Repealing Ordinance has circumvented the law-making procedure of the
Parliament.
61. The learned Attorney-General replied that the appellants have not been able to lay
any acceptable foundation to hold that no satisfaction existed for promulgating the
Ordinance. Since the Repealing Ordinance has been enacted into a Repealing Act, this
submission has lost its validity, he further submits.
62. On the first question:
Articles 9, 11, 59 and 60 of the Constitution are unique and several conclusions can be
drawn from them:
First, the constitutional provisions on local government, namely, Articles 9, 11, 59 and 60
mark out the Constitution of Bangladesh as clearly distinctive from other Constitutions
of the world. No Constitution contains any definitive provision on local government. In
England the local government units, unlike the central government, are not products of
constitutional design, but of historical development. Same is the case in the USA and
India. In this sub-continent too local government developed along historical lines without
following any constitutional pattern. It is the Constitution of Bangladesh which for the
first time devised an integrated scheme of local government within a constitutional
pattern. This is a most distinctive and unique feature of the Constitution of Bangladesh.
63. Secondly, the words "Local Government have not been defined in the Constitution,
nor does the Constitution require any organ of the State to create a new a local
government, as it does in respect of a President-"There shall be a President
of Bangladesh..........." (Article 48), or a Parliament - "There shall be a Parliament
for Bangladesh........" (Article 65) or a Supreme Court-"There shall be a Supreme Court
of Bangladesh............................" (Article 94) etc. In the absence of any definition and in
the absence of any directive to create a local government afresh, the Constitution will be
presumed to have referred to the already-known concept and institution of and the
existing legislations on local government. Local government, as a concept and as an
institution, was already known to have possessed certain common characteristics,
namely, local elections, procedure for public accountability, independent and substantial
sources of income, clear areas for independent action and certainty of powers and duties
and the conditions under which they would be exercised. On the date of coming into
force of the Constitution, there were 3 statutes on local government viz, PO No. 7 of
1972, as amended up-to-date and so much of the Basic Democracies Order, 1959 and the
Municipal Administration Ordinance, 1960 which were not inconsistent with PO No. 7 of
1972. So far as those prevalent legislations are concerned, Article 149 of the Constitution
provided as follows:
149. Subject to the provisions of this Constitution all existing laws shall continue to have
effect but may be amended or repealed by law made under this Constitution.
Article 152(1) defined "existing law" as follows:
existing law" means any law in force in, or in any part of, the territory
of Bangladesh immediately before the commencement of this Constitution, whether or
not it has been brought into operation;
64. If Articles 59 and 60 are read with Article 149 and Article 152(1) as above, it clearly
means that all existing laws on local government, if they are meant to be continued, have
to be brought in conformity with Articles 11, 59 and 60 of the Constitution so that the
laws may operate "subject to the Constitution", or else those parts of the existing laws on
local government which are specifically inconsistent with Articles 59 and 60 stand the
risk of being declared void under Article 7(2).
65. Thirdly, to the extent that Articles 59 and 60 prescribe manner and method of
establishing local government, its composition, powers and functions including power of
local taxation, the plenary legislative power of Parliament to enact laws on local
government is restricted pro tanto. The learned Attorney-General submits that the plenary
power still remains unaffected. I cannot conceive of a local government existing in terms
of Articles 59 and 60 and another outside of it That will make a mockery of Articles 59
and 60 and will be in direct conflict with Article 7(1) of the Constitution, namely, "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". If Parliament has
to pass a local government legislation, it has to conform to Articles 59 and 60, read with
Article 152(1). With Articles 59 and 60 in the Constitution local government legislation
became very much a subject-matter of legislation within the terms of the Constitution.
Parliament is not free to legislate on local government ignoring Articles 59 and 60.
66. After the Constitution (Fourth Amendment) Act, 1975, passed on 25.1.75, deleted
Chapter III of Part IV, and omitted the words "and in which effective participation by the
people through their elected representatives in administration at all levels shall be
ensured" from Article 11, local government legislation was relegateed to the realm.