Kudrat‑E‑Elahi Panir and others Vs. Bangladesh, 1991, 20 CLC (HCD)
TUESDAY, 10 APRIL 2012 09:04
Read the Appellate Division Judgment here.
Supreme Court
High Court Division
(Special Original Jurisdiction)
Present:
Abdul Jalil J
Naimuddin Ahmed J
1. Ahsanullah (In Writ Petition No. 2937 of 1991)
2. Pearul Islam (In Writ Petition No. 2944 of 1991)
3. Shamsul Karim (In Writ Petition No. 2945 of 1991)
4. Kudrat‑E‑Elahi Panir (In Writ Petition No. 3002 of 1991)…………………….Petitioners
Vs.
Bangladesh, through the Secretary, Ministry of Local Government, Rural Develop-ment and Co‑operative (Local
Government Division), Government of Bangladesh, Bangladesh Secretariat, Dhaka and
others……………………..Respondents
Judgment
December 19, 1991.
Result:
The Rules are discharged.
Cases Referred toAnwar Hussain Chowdhury Vs. State, 1989 BLD (Spl.) page 1; Kesavananda Vs. State of Kerala, AIR SC 1973,
1461 p‑1509.
Lawyers Involved:
Amirul Islam, Zakir Ahmed, KM Safiuddin Ahmed, AFM Mesbahuddin & Md. Nurul Huda, Advocates ‑ For the
Petitioners (In all the writ petitions).
Aminul Huq, Attorney‑General, with Abdul Wadud Bhuiyan, Additional Attorney‑General, Md. Obaidur Rahman
Mostafa, Assistant Attorney‑General & Syed Mokaddas Ali, Assistant Attorney‑General - For the Respondents.
Writ Petition Nos. 2937, 2944, 2945 and 3002 of 1991.
Judgment
Md. Abdul Jalil J.- All these Rules call in question that vires of the Local Government (Upazila Parishad and
Upazila Administration Reorganisation) (Repeal) Ordinance, 1991 (Ordinance No.37 of 1991).
2. As common question of law and facts are involved, these Rules have been heard together and are being disposed
of by this judgment.
3. The petitioner in Writ Petition No.2937 of 1991 is one Ahsanullah, Ex‑Chairman of Gazipur Sadar Upazila
Parishad. The Petitioner in Writ Petition No.2944 of 1991 is one Pearul Islam Ex‑Chairman of Fatikchari Upazila
Parishad. The petitioner in Writ Petition No. 2945 of 1991 is one Shamsul Karim, Ex‑Chairman of Bandar Upazila
Parishad, Narayangonj and the Petitioner in Writ Petition No.3002 of 1991 is one Kudrat‑E‑Elahi Panir, Ex‑
Chairman of Sonargaon Upazila Parishad.
4. All the Rules were issued calling upon the respondents, namely Government of the People's Republic of
Bangladesh represented by the Secretary, Ministry of Local Government, Rural Development and Co‑operative
(Local Government Division) and the Secretary Ministry of Law and Justice to show cause why the impugned
Ordinance should not be declared to be ultra vires of the Constitution.
5. The common case of the petitioners is that the Upazilas were constituted by a notification in the official Gazette
under the Local Government (Upazila Parishad and Upazila Administration Reorganisation) Ordinance, 1982
(Ordinance LIX of 1982) which was amended from time to time. The prime object and purpose of the said
Ordinance was to constitute Upazila Parishads consisting of Chairman, representative members, women members,
official members, Chairman of the Upazila Central Co‑operative Society and one nominated member. The
Chairman of the said Parishad was required to be elected by direct votes on the basis of adult franchise. Under
Article 11 of the Constitution: "The Republic shall be a democracy in which fundamental human rights and freedom
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". Two consecutive
elections were held under the Ordinance. The last election was held in March 1989 in which the petitioners were
elected for 5 years and they had been performing their functions as elected Chairman of their respective Upazilas
properly and they had right to complete their 5 years terms in office from the date on which they entered upon their
respective offices and they cannot be removed from office other than in the manner as prescribed under the said
Ordinance. In order to politicize as well as to have a party grip over & local administration and in order to exercise
those powers through a party oriented man and party oriented bureaucracy the impugned ordinance was passed
repealing the said Local Government (Upazila Parishad and Upazila Reorganisation) Ordinance 1982 and thereby
abolishing all Upazila Parishads and taking over by the Government all assets and liabilities of the abolished
Upazilas and its power and functions. By the impugned Ordinance the powers of elected representatives like the
petitioners to conduct the functions of Upazilas were taken away which are violative of Articles 11, 59 and 60 of the
Constitution. The impugned Ordinance purported to undermine the democratic polity in the country which is one of
the fundamental structures of the Constitution and to negate and deny the right of the petitioners to exercise their
powers as elected Chairman for the unexpired part of their tenure of office. It was the further case of the petitioners
that the impugned Ordinance was passed without any satisfaction of the President or of the Prime Minister or of the
Cabinet as to the existence of circumstances rendering immediate action necessary for promulgating the impugned
Ordinance and that the impugned Ordinance is inconsistent with the Constitution. The impugned Ordinance violated
the mandate of the Constitution by allowing the function of the Local Government to be performed by the persons
who are not elected by the people and, as such, the impugned Ordinance is void.
6. The respondent‑Government in all the writ petitions filed separate affidavits‑in‑opposition controverting the
statements made in the respective petitions and contending, inter alia, that the area of previous upgraded. Thanas
were designated as Upazila for the purpose of Ordinance LIX of 1982 and not for the purpose of any provision of
the Constitution. After emergence of Bangladesh the then President of Bangladesh made President's Order No.7 of
1972 i.e. Bangladesh Local Councils and Municipal Committees (Dissolution and Administration) Order, 1972
wherein a provision was made in Article 3 of the said Order that notwithstanding anything contained in any Local
Government Law, on the commencement of that Order, all the Local Councils and Municipal Committees in
Bangladesh would stand dissolved and that all the persons holding office as Chairman, Vice‑Chairmen, Members
and Administrators of such Local Councils and Municipal Committees should cease to hold office and it changed
the names of Union Council and Town Committee as Union Panchayat and Shahar Committee respectively and the
strict Council was named as Zila Board and the Municipal Committee was named as Paurashava. Thereafter, several
amendments were made. By Constitution (Fourth Amendment) Act, 1975, the Articles 59 and 60 of the Constitution
were omitted. Thereafter in 1976 the then President promulgated an Ordinance named The Local Government
Ordinance, 1976 (Ordinance No. XC of 1976) to provide for the constitution of local Government institutions in
rural areas and to consolidate and amend certain laws to local government in such areas and thereby Union Parishad,
Thana Parishad and Zila Parishad came into being and the office of the Chairman of Thana Parishad was not elected
office. Thereafter in 1982 the Local Government (Thana Parishad and Thana Administration Reorganisation)
Ordinance, 1982 was promulgated which was amended by Ordinance No. XXXIII of 1983 and for first time the
Thana Parishad was named as Upazila Parishad and for the first time the Chairman of the Upazila Parishad was
made an elected post. There was also provision that till such time as the Chairman elected under the Ordinance
enters upon his office, the Upazila Nirbahi Officer or any other person nominated by the Government would act as
Chairman. The Constitution of the Parishad had undergone changes from time to time which were made in exercise
of law making power either by Act, or Ordinance or by Presidents Order. The impugned Ordinance is not
inconsistent with any provision of the Constitution and it is ultra vires of the Constitution and is a valid legislation
and that Articles 9 and 11 of the Constitution are not judicially enforceable. The repeal of law or Ordinance is
always permissible under any Constitution of any democratic country and it does not offend any provision of the
Constitution far less Article 11 thereof. No Article of the Constitution was mentioned while the Upazila was
constituted. The petitioners have no right to invoke any Article contained in Part‑II of the Constitution as those are
not judicially enforceable and the impugned Ordinance was passed by lawful exercise of the power conferred by the
Constitution. At the time when the repealed Ordinance was made and promulgated and at the time when the
petitioners were elected as Upazila Chairman, Articles 59 and 60 of the Constitution were not in the Constitution
which were inserted with effect from 18.9.91 by the Constitution (Twelfth Amendment) Act, 1991. The Upazila
Parishad was never designated as an administrative unit for the purpose of Article 59 of the Constitution. Even if
such unit is there the legislature has the authority to change the same by law according to the policy of the
Government for the time being. Articles 11, 59 and 60 of the Constitution do not provide for any particular type of
local government body. However the impugned Ordinance is not inconsistent with those Articles. After a thorough
analysis it was found that the Upazila system itself was source of drainage of government money in unproductive
activities which negated the welfare of the people and the concept of Upazila was not economically viable as those
were more dependent on government allocation rather than earning revenues from their own sources. The
government allocated Tk. 1265 crores as development assistance to the Upazilas from the year 1982‑83 to 1990 to
91. There was gross financial indiscipline in the Upazilas. Huge number of officers and staff were to be maintained
and it was impossible for the Government to bear the huge establishment costs for such number officers/employees
in 464 Upazilas. There was misuse of powers, nepotism, favoritism, corruption and wilful maladministration by the
Upazila Chairman. In such state of affairs and due to undesirable performance by the Upazila Parishads the very
objectives of the establishment of the Upazila Parishads were frustrated and the desired development in the Upazila
level was not achieved and as such on genuine grounds and in public interest it was considered necessary to repeal
the Local Government (Upazila Parishad and Upazila Administration Reorganisation) Ordinance, 1982 in the
President was satisfied that the circumstances existed which rendered immediate action necessary to make and
promulgate the impugned Ordinance. The matter was considered in the Cabinet meeting which took decision for
repeal of the Ordinance. The impugned Ordinance is required to be placed before the next session of the Parliament.
The impugned Ordinance was passed in accordance with law and as such it is a valid piece of legislation and it is not
inconsistent with any provision of the Constitution. The Government has already set up a Commission and on the
basis of the report of that commission the Local bodies will be established.
7. The petitioner of Writ Petition No.2937 of 1991 filed an affidavit‑in‑reply to the affidavit‑in--opposition of the
respondents and filed a photostat copy of the order issued by the Cabinet Division and some connected papers
containing the desire of the Government that the Upazila Nirbahi Officers of the defunct Upazilas would look after
the administrative and development activities of the defunct Parishad temporarily.
8. Mr. Amirul Islam, learned Advocate appearing for the petitioners in all the writ petitions, submitted that the
impugned Ordinance is violative of Articles 8, 9, 11, 59 and 60 of the Constitution and that it was not promulgated
in compliance with the requirements of Article 93(2) of the Constitution. He had as such is void by operation of
Article 7 of the Constitution. He had taken us through die relevant Articles and submitted that the concept of
Upazila was not a new one. The local bodies were functioning althrough and the Upazila Parishads were created
making provision for ensuring participation of the people through their elected representatives as contemplated in
Articles 9, 59 and 60 of the Constitution. He further submitted that under Article 9 of the Constitution the State was
to encourage local government institutions composed of representatives of the areas concerned and that Article 11
enjoined that 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 and that under Article 59 of the
Constitution the local Government in every administrative unit of the Republic shall be entrusted to bodies
composed of persons elected in accordance with law and under Article 60 of the Constitution the Parliament is to
confer power on the local government bodies to impose taxes for local purpose, to prepare their budgets and to
maintain funds but by the impugned Ordinance all those principles were violated and as such the impugned
Ordinance is void by operation of Article 7 of the Constitution. He also submitted that no circumstance existed to
render immediate action necessary to make and promulgate the impugned Ordinance and as such the impugned
Ordinance was made without lawful authority.
9. Mr. Islam also submitted that by the impugned repealing Ordinance the mandate of the Constitution was violated
by removing the elected body and by allowing the functions of the local Government to be performed by appointed
officials which are also violative of the basic principles of the Constitution. He referred to the case of Anwar
Hussain Chowdhury Vs. State disposed of together with 2 other cases reported in 1989 BLD (Spl.) page 1, popularly
known as 8th amendment case.
10. Mr. Aminul Huq, the learned Attorney General, on the other hand, submitted that the local bodies are to share
with the it is the Parliament which is to decide the extent of power to be delegated to such bodies and as the
Parliament was not in session, the President promulgated the impugned Ordinance in exercise of his power under
Article 93 of the Constitution. Whether the circumstances existed or not cannot be questioned in Court which
depends solely on the satisfaction of the President. He further submitted that Article 9 of the Constitution does not
impose mandate which is only an enabling provision and that Article 59 and 60 have no application to the present
case as the abolished Upazila Parishads were not administrative units. He further submitted that there is no
restriction in the power of the Parliament to repeal any Ordinance if it is necessary and if the Parliament has the
power, the President may also exercise the same power by making and promulgating Ordinance.
11. In reply, Mr. Amirul Islam submitted that the power of the Parliament is also regulated by the provision of the
Constitution and it cannot pass any law which is inconsistent with the Constitution and as the impugned Ordinance
is inconsistent with various provisions of the Constitution the Parliament has no power to pass the same and so the
President also has no power to repeal an Ordinance creating a local body to be run by elected representatives of the
people.
12. The impugned Ordinance namely the Local Government (Upazila Parishad and Upazila Administration
Reorganisation) (Repeal) Ordinance, 1991 (Ordinance No.37 of 1991) was made and promulgated by the President
on 23.11.91. By that Ordinance, the Local Government (Upazila Administration Reorganisation) Ordinance, 1982
was repealed. Under the repealed Ordinance the country was divided into several Upazilas and for every Upazila an
Upazila Parishad was constituted as a body corporate. Under section 24 of the repealed Ordinance an Upazila
Parishad was to undertake some functions enumerated in the Second Schedule of the Ordinance which includes all
development activities at Upazila level, implementation of Government policies and programme within the Upazila
and other supervisory and promotional functions in connection with various departments of the Government located
in the Upazila including vision, control and coordination of functions of officials serving in the Upazila, amongst
other functions. The funds of the Parishad consists of amongst others, taxes, rates, tolls etc. levied by the Parishad,
grants made by the Government. The Parishad had power to appoint officers and employees to assist it. Under
section 26 of the repealed Ordinance the Government had power to transfer any institution or service maintained by
the Parishad to the management and control of the Government and vice versa. Under section 49 of the said
Ordinance the Government had to exercise general supervision and control over the Parishads in order to ensure that
their activities conform to the purpose of that Ordinance. The executive powers of the Parishad vested in the
chairman of the Upazila who was to be elected by direct election on the basis of adult franchise.
13. Article 7 of the Constitution runs as follows:
"7. (1) All powers in the Republic belong to the people, and their exercise on behalf of the people shall be effected
only under, and by the authority of, this Constitution.
(2) This Constitution is, as the solemn expression of the will of the people, the supreme law of the Republic, and if
any other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency, be void."
14. Part‑II of the Constitution lays down the fundamental policy of the State (Articles 8 to 25). Article 8(2) of the
Constitution provides;
"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."
15. Article 9 of the Constitution runs as follows:
"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."
16. Article 11 of the Constitution runs as follows:
“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."
17. In Part‑III of the Constitution (Articles 26‑47A) the fundamental rights were enumerated.
18. Article 26 of the Constitution runs as follows:
"26. (1) all existing law inconsistent with the provisions of this part shall, to the extent of such inconsistency,
become void on the commencement of this Constitution.
(2)The State shall not make any law inconsistent with any provisions of this Part, and any law so made shall, to the
extent of such inconsistency, be void.
(3)…………………………………………………..”
19. Article 44 of the Constitution runs as follows:
"44. (1) The right to move the High Court Division in accordance with clause (1) of Article 102 for the enforcement
6f the rights conferred by this Part is guaranteed.
(2)...……………………………………………….”
20. So, if any law is inconsistent with fundamental rights as enumerated in Part-III of the Constitution, such law
shall be void. The right to move the High Court Division for enforcement of the rights conferred by this Part‑III is
guaranteed. Under Article 102(1) of the Constitution the High Court Division on the application of any person
aggrieved, may give such directions or orders to any person or authority, including any person performing any
function in connection with the affairs of the Republic, as may be appropriate for the enforcement of any of the
fundamental rights conferred by Part‑III of this Constitution. But no such provision is there in Part‑II of the
Constitution for enforcement of the Fundamental Principle of State Policy through Court under Article 102 of the
Constitution. Rather Article 8(2) as quoted above provided that the principle set out in Part II shall not be judicially
enforceable. But Article 7 of the Constitution provides that any law inconsistent with the Constitution is void.
21. However Article 9 of the Constitution as quoted above is not a mandatory provision but is an enabling one as it
is a direction on the State to encourage local government institution composed of representatives of the area
concerned with special representation of peasant, workers and women, as far unit, as possible. There is no mandate
that no local Government institution can be abolished if necessary. Hence the impugned Ordinance cannot be said to
be inconsistent with Article 9.
22. In Article 11 as quoted above it is provided that the Republic shall be a democracy and effective participation by
the people through their elective representatives in administration at all level shall be ensured. This Article gives a
direction to ensure participation of the people through their elected representative in the administration at all levels if
there is an administrative body. If the body itself is abolished and there is no administrative body this Article is not
applicable. It does not impose any mandate not to abolish anybody corporate if necessary by the legislature which
created it. Hence the impugned Ordinance cannot be said to be inconsistent with Article 11.
23. In the 8th amendment case as referred to by Mr. Amirul Islam it was observed, in connection with Article 8 of
Part‑II of the Constitution, "Though the directive principles are not enforceable by any Court, the principles therein
laid down are nevertheless fundamental in governance of the country and it shall be the duty of the State to apply
these principles in making laws." (per BH Chowdhury J.)
24. We have already held that the impugned Ordinance is not inconsistent with Articles 8 and 11 of the Constitution
as urged by the petitioners.
25. Article 59 as quoted above refers to "every administrative unit of the Republic." Under Article 60 the Parliament
shall by law confer powers on b local government bodies referred to in Article 59 including power to impose was for
local purposes, to prepare their budgets and to maintain funds including power to impose taxes for local purposes, to
prepare their budgets and to maintain funds.
26. Administrative unit has been defined in Article 152(1) of the Constitution which runs as follows:
"152(1). In this Constitution, except where the subject or context otherwise requires‑
“administrative unit" means a district or other area designated by law for the purpose of Article 59".
The Upazila is not admittedly a District. So, unless it is designated by law to be an administrative unit, an Upazila
cannot be treated as such. There is no law declaring the Upazila as administrative unit as required under Article
152(1) of the Constitution nor in the repealed Ordinance it was designated as an administrative unit. The designation
as administrative unit is a constitutional requirement and so it cannot be assumed from the nature and function of a
body corporate. The Upazila, therefore, is not an administrative unit and so the provisions of Articles 59 and 60 have
no application to Upazila Parishads. It is to be mentioned that when the repealed Upazila Parishads were created the
Constitution was suspended and the Ordinance was promulgated by the then Chief Martial Law Administrator. Even
in the suspended Constitution these two Articles, namely, Articles 59 and 60 were not there. Those Articles were
omitted by the Constitution (Fourth Amendment) Act. Hence obviously the repealed Ordinance was not
promulgated towards implemen-tation of those Articles. Those articles have been re‑inserted by the Constitution
(Twelfth Amend-ment) Act, 1991. However, on the date when the impugned Ordinance was made and promulgated,
these articles were then there and now it cannot be said that those two Articles had no application on the above
ground, as submitted by the learned Attorney‑General, if those are otherwise applicable. We have already found that
Upazila being not declared as administrative unit, these two articles are not applicable. Hence the impugned
Ordinance is not inconsistent with Articles 59 and 60 of the Constitution. Moreover, these Articles do not impose
any mandate that an administrative unit if any shall not be abolished by the legislature if necessary.
27. The impugned Ordinance was made and promulgated under Article 93 of the Constitution which authorises the
President to make and promulgate any Ordinance if he is satisfied that the circumstances exist which rendered
immediate action necessary when the Parliament is not in session. Whether the circumstances exist rendering
immediate action necessary or not, is not a matter to be decided by the Court. It depends exclusively on the
satisfaction of the President which cannot be questioned in Court.
28. Article 48(3) Of the Constitution provides that in exercise of all his functions, save only that of appointing the
Prime Minister pursuant to clause (3) of Article 56 and the Chief Justice pursuant to clause (1) of Article 95, the
President shall act in accordance with the advice of the Prime Minister provided that the question whether any, and
if so what, advice has been tendered by the Prime Minister to the President shall not be enquired into in any Court.
So, in exercising powers under Article 93 the President is to act under the advice of the Prime Minister which cannot
be inquired into by any Court. The Ordinance has the full force and effect of an Act of the Parliament but the life of
the Ordinance is limited and it shall be laid before the Parliament at its first meeting following its promulgation and
it shall, unless it is earlier repealed, cease to have effect at the expiration of 30 days after it is so laid or, if a
resolution disapproving of the same is passed by the Parliament before such expiration. In any view of the matter,
there is no restriction on the Parliament or President to repeal an Act or Ordinance if necessary in the public interest.
If a system of local Government does not work or fails to fulfill the purpose for which it was introduced or is not
economically viable the legislature has power to abolish the same in the interest of public and we do not think, in
such case, it will be inconsistent with any articles of the Constitution or its preamble. It is not obligatory on the part
of the legislature to mention the reasons for abolition of a system or repealing the connected law nor the reasons can
be called in question in Court nor the legislature is bound under any Articles of the Constitution to wait till the
expiry of the term of the connected elected body.
29. In the facts and circumstances as discussed above, we are of the opinion that there is no reason to hold that the
impugned Ordinance is inconsistent with any Article of Constitution rendering it to be void nor it is ultra vires of
any provision of the Constitution.
In the result, all the Rules are discharged without any order as to costs.
Naimuddin Ahmed J.- I have gone through the judgment proposed to be delivered by my learned brother, Md. Abdul
Jalil, J. I regret I cannot agree with all the views expressed by my learned brother and, as such, although I have
decided to agree with the final order proposed to be passed by him, I feel it my duty to express my own views on
certain matters and also state the reasons why I feel the Rules should be discharged.
32. The facts of the cases have been narrated in detail by my learned brother in his judgment and, as such, I refrain
from stating the facts over again for the sake of brevity.
33. In these four writ petitions the petitioners have challenged the Ordinance promulgated by the President on
23.11.91 being the local Government (Upazila Parishad and Upazila Administration Reorganisation) (Repeal)
Ordinance, 1991 (Ordinance No. XXXVII of 1991 hereinafter called the Repealing Ordinance whereby the Local
Government (Upazila Parishad and Upazila Reorganisation) Ordinance, 1982 being Ordinance No. LIX of 1982
hereinafter called the Upazila Ordinance was repealed. By sub‑section (1) of section 2 of the impugned Repealing
Ordinance the Upazila Ordinance was repealed. By sub‑section (2) of section 2 of the repealing Ordinance"(a) all the Upazila Parishads constituted under the Upazila Ordinance were abolished;
(b) all the properties, rights, powers, authorities, facilities, movable and immovable properties, cash money, money
deposit in bank and all other claims and rights of the abolished Upazila Parishads were vested in the Government;
(c) all the debts and liabilities which were the debts and liabilities of the Upazila Parishads incurred in the interest of
the Upazila Parishads immediately preceding the coming into force of the repealing Ordinance would be deemed to
be debts and liabilities of the Government;
(d) all the litigations filed by and against the Upazila Parishad and pending immediately preceding would be
regarded as litigations filed by and against the Government as the case might be;
(e) And the services of all the employees of the erstwhile Upazila Parishad would stand transferred the Government
for absorption."
34. By sub‑section (3) certain provisions regarding the employees of the Upazila Parishads were made as to
continuance and termination of their employment.
35. The petitioners challenged the constitutional validity of the above impugned Repealing Ordinance on the
following grounds:
That this Ordinance is violative of Articles 7, 9, 11, 59, 60 and 93 of the Constitution and, as such, by operation of
clause (2) of Article 7 of the Constitution this Ordinance must be declared to be void being ultra vires of the
Constitution.
36. Mr. Amirul Islam, the learned Advocate, appearing for the petitioners, has extensively referred to all the above
Articles of the Constitution and as such, it will be necessary to refer to his submission as well as the submission of
the learned Attorney--General in respect of all the aforesaid Articles and their effect on the constitutionality of the
impugned Repealing Ordinance.
37. For the sake of convenience, I would fast like to discuss the submission of both parties so far as the applicability
of Articles 7, 11, 59, 60 and 93 of the Constitution is concerned and last of all, I would like to take up the
submissions of both sides so far as the applicability of Article 9 of the Constitution is concerned.
38. Mr. Amirul Islam has submitted that clause (1) of Article 7 of the Constitution provides that 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, the Constitution and no Government is empowered to exercise its power by contravening the provisions
of the Constitution.
39. There is no dispute regarding, and the learned Attorney‑General has not disputed, the proposition set forth by
Mr. Amirul Islam that all powers in the Republic shall have to be exercised, whether by the executive, the legislature
or the judiciary, only under and by the authority of the Constitution which is the supreme law of the Republic. It,
however, appears that clause (1) of Article 7 is introductory to clause (2) of the said Article and both these clauses
are to be read together and considered only if it is found that the impugned repealing ordinance has not been
promulgated in accordance with the provisions of the Constitution or is in any manner inconsistent with any
provision of the Constitution.
40. Mr. Amirul Islam has contended that the administration, powers, authority and rights of the Upazila Parishads
were vested in and being exercised by democratically elected bodies, namely, the Upazila Parishads, the office
bearers of which were elected according to law under the provisions of the Local Government (Upazila Parishad and
Upazila Administration Re‑organisation) Ordinance, 1982 and as such, by abolishing the Upazila Parishads by the
impugned Repealing Ordinance the principle of democracy embodied in Article 11 of the Constitution has been
violated. According to Mr. Islam Article 11 of the Constitution embodies one of the Fundamental Principles of State
Policy enjoining that 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 secured. As such, according to the learned Advocate
for the petitioner, the impugned Repealing Ordinance is clearly inconsistent with Article 11 and is, therefore, liable
to be struck down being void in view of clause (2) of Article 7 of the Constitution.
41. We have already seen that by the impugned Repealing Ordinance the powers, properties, rights etc. of the
Upazila Parishads have been taken over by the Government.
It is not disputed that the Upazila Parishads were democratically elected bodies. There is also no dispute that the
Government is also a democratically elected Government. "Democracy" is essentially an abstract concept and is
used in different senses in different countries. It does not appear to us that by making provision in the impugned
Repealing Ordinance for transferring the powers and functions of an elected body to an elected Government, any
inconsistency with the concept of democracy has been created and the directive contained in Article 11 has been
violated.
42. Mr. Amirul Islam has next argued that the impugned Ordinance is explicitly and clearly violative of Article 59 or
the Constitution inasmuch as by abolishing the elected Local Government institutions at Upazila level the impugned
Ordinance has clearly violated the mandate of the said Article providing that "Local Government in every
administrative unit of the Republic shall be entrusted to bodies, composed of persons elected in accordance with
law."
43. Mr. Aminul Huq, the learned Attorney -General, in reply to the contention of Mr. Islam, has argued that clause
(1) of Article 59 enjoins that Local Government in every" administrative unit" of the Republic shall be entrusted to
bodies elected in accordance with law and he has further submitted that a Upazila Parishad not being an
"administrative unit" as defined in Article 152(1) of the Constitution, the provision of Article 59 of the Constitution
cannot be attracted to the Upazila Parishads.
44. A close perusal of clause (1) of Article 59 of the Constitution shows that it has been enjoined therein that local
Government institutions in an "administrative unit" has to be entrusted to elected bodies. "Administrative unit" has
been defined in Article 152(1) of the Constitution as a "district or other area designated by law for the purposes of
Article 59." So, it is clear that for the purpose of applicability of Article 59 the words, "Local Government" means
Local Government in a district and in any area which by any law has been designated to be an "administrative unit"
for the purpose of applying Article 59. Mr. Islam has not been able to show any law whereby the Upazilas were
declared "administrative units" in pursuance of Article 152(1) of the Constitution for the applicability of Article 59
of the Constitution. As such, it is clear that Article 59 (1) of the Constitution cannot be applied for impugning the
Repealing Ordinance whereby Local Government in an "administrative unit" as defined in Article 152(1) of the
Constitution has not been abolished but the Local Government in an area which is not an "administrative unit" has
been sought to be abolished.
45. Article 60 is corollary to Article 59 of the Constitution and as such, if Article 59 is not applicable Article 60 of
the Constitution cannot also be applied.
46. Mr. Amirul Islam has further argued that the requirements of Article 93 of the Constitution were not at all
present when the President promulgated the impugned Ordinance. Article 93 of the Constitution empowers the
President to promulgate an ordinance when the Parliament stands dissolved or is not in session, if he is satisfied that
circumstances exist which render immediate action necessary.
47. Mr. Islam wanted to say that no circumstances existed on 23.11.91 when the President promulgated the
impugned Ordinance as to render immediate action necessary and as such, the impugned Ordinance promulgated by
the President was not a necessary action.
48. The satisfaction of the President required for acting under Article 93 of the Constitution is the exclusive
satisfaction of the President and a Court is not empowered to inquire whether actually the circumstances existed
rendering immediate action necessary. It is the satisfaction of the President and the President alone. The grounds of
such satisfaction cannot be questioned in any Court. The impugned Ordinance itself shows in para 2 thereof that it
appeared to the satisfaction of the President that circumstances existed which rendered immediate action necessary.
Consequently, this Court is to accept that the President was satisfied that immediate action was necessary to
promulgate the impugned Ordinance. There is, therefore, no substance in the submission of Mr. Islam that
circumstances did not exist as to necessitate promulgation of the impugned Ordinance on the date on which it was
promulgated.
49. Mr. Islam has last of all challenged the impugned Ordinance on the ground that it is in direct contravention of
Article 9 of the Constitution.
50. Mr. Aminul Huq, the learned Attorney‑General, has on the other hand contended that apart from the fact that the
impugned Ordinance has not contravened Article 9 of the Constitution, even if the said Ordinance contravened the
provisions of Article 9 of the Constitution, it cannot be called in question in this Court and it cannot be declared as
void in view of clause (2) of Article 8 of the Constitution which enjoins that the provisions of Part‑II of the
Constitution wherein Article 8 appears cannot be judicially enforceable.
51. Let us first of all see whether in view of clause (2) of Article 8 of the Constitution any legislative act which is in
direct conflict and which is in flagrant violation of the provisions of Part‑II of the Constitution can be declared to be
void. In this connection, it is necessary first all to refer to clause (2) of Article 8 of the Constitution which runs as
follows:
"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."
52. The learned Attorney‑General has laid emphasis on the words, "but shall not be judicially enforceable."
53. In order to interpret the provision of clause (2) of Article 8 of the Constitution it is also necessary to refer to
clause (2) of Article 7 of the Constitution which runs as follows:‑
"7(2). This Constitution is, as the solemn expression of the will of the people, the supreme law of the Republic, and
if any other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency, be
void."
54. The learned Attorney‑General the position that clause (2) of Article 7 of the Constitution is subject to the
restriction of clause (2) of Article 8 of the Constitution. He wanted to say that the provision of Part‑II of the
Constitution being Fundamental Principles of State Policy are not being enforceable in view of clause (2) of Article
8 must be excluded from the operation of clause (2) of Article 7. In other words, Part‑II of the Constitution forms an
exception to the operation Article 7(2). Otherwise, according to the learned Attorney General, Article 7(2) and
Article 8(2) would be conflicting provisions and could not be read harmoniously.
55. Let us, therefore, first of all see whether Article 7(2) of the Constitution is in conflict with Article 8(2) of the
Constitution. We have already observed that the Fundamental Principles of State Policy embodied in Part‑II of the
Constitution shall not be judicially enforceable. The crux of the question is in interpreting the words, "shall not be
judicially enforceable."
56. Unfortunately, hardly any decision or authority has been placed as to the interpreting of the words "shall not be
judicially enforceable."
57. Authorities on Constitution, are not, however, unanimous on the meaning of the words, "shall not be judicially
enforceable." In the Indian Constitution similar provisions called "Directive Principles of State Policy" have been
enacted in Part‑IV of the Constitution and Article 37 thereof lays down; "The provisions contained in this part shall
not be enforceable by any Court, but the principles therein laid down are nevertheless fundamental in the
governance of the country and it shall be the duty of the State to apply these principles in making laws." Various
authorities commented on the place of the Directive Principles in the Indian Constitution. Sir B.N. Rau commented
about the Directive Principles; "The principles set forth in this part are intended for the general guidance of the
appropriate legislatures and Government in India…………The application of these principles in legislation and
administration shall be the care of the State and shall not be cognizable by any Court………… It is obvious that
none of the above provisions is suitable for enforcement by the Courts. They are really in the nature of moral
precepts for the authorities of the State." (quoted from Kesavananda Vs. State of Kerala, AIR SC 1973, 1461 p‑
1509).
58. Sir Alladi Krishpaswami observed, “A distinction has necessarily to be drawn between rights which are
justifiable and rights which are merely intended as guide and directive objectives to state policy." (Ibid‑1510)
59. Sikri, CJ, observed about the Directive Principles, "This clearly shows, and it has also been laid down by this
Court, that these provisions are not justifiable and cannot be enforced by any Court. The Courts could not, for
instance, issue a mandamus directing the State to provide adequate means of livelihood to every citizen, or that the
ownership and control of the material resources of the community be so distributed as best to subserve the common
good, or that there should be equal pay for equal work for both men and women." (Ibid. P. 1508).
60. HM Seervai in his Constitutional Law of India, Third Edition, Volume 2 at page 1601 comments, "It is obvious
that Article 37 confers no legally enforceable rights on anybody, and imposes no legally enforceable duty on the has
been said that like "fundamental" rights, directive principles are "fundamental" in the country. And just as
fundamental rights impose a duty on the State not to violate them, so also directive principles impose a duty on the
State to apply them in making laws. In his Rau lecture, Justice Hedge said a mandate of the constitution, though not
enforceable by Courts is nonetheless binding on all the organs of the State. If the State ignores those and mandates,
it, in effect, ignores the Constitution.” Servai, however, opines that the word, "fundamental" is not used in the same
sense in describing "fundamental rights" in Part as in describing Directive Principles as "fundamental" in Part IV of
the Indian Constitution. In his opinion, in the former sense the word, "fundamental" implies a right enforceable by
Courts and in the latter a duty unenforceable by Courts. He also held that since the Directive Principles cannot be
enforced by the Courts these are not law at all and as such, any act or enactment in violation of the Directive
Principles cannot be void or unconstitutional and cannot be declared by the Courts as such. To use his own words,
"our Constitution is the supreme or fundamental law because all laws and executive action contravening
Constitution are void. Consequently, fundamental rights are part of the fundamental law. Directive Principles,
although included in the text of the Constitution, are not a part of the fundamental law, for they are not law at all. No
law or executive action violating Directive Principles is void."‑(Emphasis added).
61. Dr. Durga Das Basu adopts similar view in his commentary on the Constitution of India, Sixth Edition, Vol. E.
At page 85 he observes "so far as the Courts are concerned the Directives are not enforceable by any judicial
process. No Court would be entitled to declare any legislation invalid on the ground that it does not conform to the
spirit of any of the directive principles. Nor will the Court be competent to compel the Government to carry out any
directive within the limited by the Constitution…………The Directives, in short, do not create any legally
enforceable rights or obligations.
62. Nevertheless, the Courts cannot altogether ignore the existence of the Directive in the body of the Constitution,
and as will be presently seen, our Supreme Court has aided the implementation of the directive in a substantive
manner, even in cases where the relevant legislation has been challenged as an inroad upon fundamental rights. In
the working of our Constitution, thus, the Directives have gathered more weight than a mere moral nomity. "Under
our Constitution, though the Courts cannot declare any law to be void on the ground of the contravention of any of
the Directives, the Courts have already taken cognizance of the tendency of the Directives for the purpose of
upholding social legislation……………Though the Courts cannot declare a law to be invalid on the ground that it
contravenes a Directive Principle nevertheless the Constitutional validity of many laws has been maintained with
reference to the Directive."(Emphasis added).
63. In the Indian Supreme Court in several cases, the leading of which was Kesavananda, AIR SC 1973 P 1461
several legislations for implementing directive principles were challenged on the ground that they violated
fundamental rights and as such, the question arose, in case of conflict between fundamental rights and directive
Principles, which of the two should prevail and it was held that Directive principles being unenforceable and
fundamental rights being enforceable the latter must prevail over the former and legislation in contravention of
fundamental rights must be held to be void. The discussions in the above texts have been in the context of this
conflict between fundamental rights and directive principles. It should however be pointed that Constitution. This
apparently seems to be a conflicting position in our Constitution but it appears to me that there is no real conflict
between Article 7(2) and Article 8(2) of our Constitution and these two Articles can be read and applied
harmoniously if a proper and harmonious interpretation is made of the words, "shall not be judicially enforceable"
occurring in the Article 8(2) in the context of Article 7(2) of the Constitution.
64. Three situations may be envisaged in the context of the Fundamental Principles of State Policy as embodied in
Part‑II of our Constitution. First, the Government may not implement the Fundamental Principles by legislative
enactment or executive action. Secondly, a legislative act or an executive action may not conform to the
Fundamental Principles. Lastly, there may be a legislative act or an executive action in clear violation of the
Fundamental Principles. The question that now comes up for determination is, whether the Court's jurisdiction to
intervene is completely barred in all the above three contingencies in view of Article 8(2) of the Constitution. There
is no difficulty in answering this question in the first and the second contingencies. In the first contingency the Court
has no jurisdiction to direct the legislature to enact laws or the executive to act for implementing the Fundamental
Principles and in the second contingency also the Court cannot intervene and say that the legislative act or the
executive action is invalid not being in conformity with the Fundamental Principles and also cannot issue directions
to make them in conformity with those principles.
65. The real difficulty in answering the question arises in the last contingency.
66. A plain reading of the provisions of clause(2) of Article 8 of the Constitution shows that the Principles set out in
Part‑II of Constitution shall not enforced judicially meaning that if the executive or the legislature does not
implement any of the provisions of this Part, the Court cannot direct for enforcement of those Principles. Does it
mean that the executive or the legislature can act in flagrant contravention and violation of the Principles set forth in
Part-II of the Constitution? To cite only few examples,………Article 10 provides that steps shall be taken to ensure
participation of women in all spheres of national life, Article 17(a) enjoins that the State shall adopt effective
measures for extending free and compulsory education, Article 18(2) enjoins the State to adopt effective measures to
prevent prostitution and gambling and Article 24 enjoins the State to adopt measures for protection or all
monuments. In the face of the above provisions can any law be enacted prohibiting women from participating in any
sphere of national life and keeping themselves shut inside the kitchens, prohibiting introduction of primary
education except on payment, introducing prostitution and gambling throughout the country and for pulling down all
monuments all over the country? In my view, the answer is emphatically in the negative, because, the mischief of
Article 7(2) of the Constitution will be attracted notwithstanding clause (2) of Article 8 of the Constitution which
simply enjoins that the provisions of Part II are not enforceable by any Court but do not provide the raison detre for
their contravention. What clause (2) of Article 8 says is that the Fundamental Principles cannot be enforced by
issuing mandamus on the other two organs of Government and it does not give a constitutional right to an individual
to seek enforcement of the principles laid down in Part‑II of the Constitution if the legislative or the executive organ
of the tale does not act for implementation of the provision of this Part. In other words, it means that the State cannot
be legally forced to implement the provision of Part‑II of the Constitution. But it does not mean that since the Court
cannot compel their enforcement, the executive and the legislature are at liberty to flout or act in contravention of
the provision laid down in Part‑II of the Constitution. In this connection, the observation made by his Lordship
Badrul Haider Chowdhury, CJ (as he was then) in the case of Anwar Hossain Vs. Bangladesh, reported in the
Special Issue of BLD 1989 may be referred to:
"Thought the directive Principles are not enforceable by any Court, the principles therein laid down are nevertheless
fundamental in the Governance of the country and it shall be the duty of the State to apply these principles in
making laws. It is a protected Article in our Constitution and the legislature cannot amend this Article without
referendum. This alone show that the directive principles cannot be flouted by the executive. The endeavour of the
Government must be to realise these aims and not to whittle them down."
67. To these words, it may be added that if the Government fails to implement the Fundamental Principles embodied
in the Constitution, the Court cannot compel the Government to act and at the same time it means that the Court has
the power to intervene when the Government flouts and whittles down a provision embodied in this Part because
Article 7(2) is specific in declaring that any law inconsistent with any provision of the Constitution shall be void to
the extent of the inconsistency. Article 8(2), by making the provisions of Part II unenforceable by the Courts, has
simply given the legislature the liberty to defer their implementation but that does not mean that the said Article has
vested the legislature with power to flout those provisions and enact laws in clear violation of those provisions.
Article 8(2) cannot be interpreted as superseding Article 7(2) on the yardstick of which all laws enacted by the
legislature has to be tested. It also appears to me that there is no conflict between these two Articles, Article 7(2)
being the constitutional yardstick to test the validity of all laws passed by Parliament and Article 8(2) being merely a
prohibition against enforcement of the provisions of Part II of the Constitution. The constitution ‑makers were
conscious that implementation of the noble principles laid down in Part‑II may not be possible in the prevailing
socio economic condition of the country and as such, they very wisely enacted Article 8(2) making these principles
unenforceable through Courts, but, that, by no means, implies that the constitution makers intended to circumvent
the mandate of Article 7(2) and permit the legislature to enact laws in violation of those principles.
68. In view of the above, I find great force in the following observations made by Dr. MC Jain Kazi in his The
Constitution of India Volume 2, Fourth Edition, Page 938, "The declaration that the directives are not enforceable by
any Court do not provide the raison d’etre for their disregard. Axiomatically, a clear violation of the Directives
might make a law unconstitutional. What is said in Article 37 is that the Directives cannot be enforced by and
through judicial process, if not implemented. Any non‑implementation of the Directives violates no individual
constitutional right, and affords no basis for litigation and legal remedy. This only means that the State cannot be
legally forced to carry them out, if it cannot do. This is not to say that it can throw them to the winds, and can enact
laws openly in opposition to them. The first cannot be objected to, but the latter cannot be permitted. A Court can, in
a fit case, unambiguously declare a law bad as being manifestly posed to the fundamental principles of governance
of the country and therefore unconstitutional. The Directives are legal norms, although they are not enforced by the
Court action at individual initiative. Their non‑application through legislation might be a non‑act which provides no
cause of action. But any legislation in opposition to them and in derogation to them is violative of the mandate of
Article 37. The legislation can, in a fit case, be impugned on the ground of legislative contravention of the Article 37
directive. If applied, law may be rendered unenforceable even if not void abinitio".(emphasis added)
69. Fully agreeing with the views expressed above I, therefore, hold that the directives in Part‑II of the Constitution
are as important and as relevant as any other provision of the Constitution for the purpose of attracting the operation
of Article 7(2) of the Constitution. As such, an enactment made by Parliament in opposition to, and in derogation of,
the principles laid down in Part II of the Constitution is violative of the mandate provided in Article 7(2) of the
Constitution and, therefore, void. In such circumstance, to my view, a legislative act which is in direct contravention
of any provision of Part-II of the Constitution calls for intervention by the Court and is liable to be struck down as
void in spite of the provisions laid down in Article 8(2) of the Constitution that the provisions of Part‑II of
Constitution are not judicially enforceable. Clause (2) of Article 8 of the Constitution is not really in conflict with
clause (2) of Article 7 of the Constitution.
70. 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.
71. We have now to determine whether the impugned Ordinance abolishing the Upazila Parishads and vesting the
powers, functions etc. of the Upazila Parishads in the Central Government is in direct contravention of Article 9 of
the Constitution.
72. Mr. Amirul Islam, the learned Counsel for the petitioner, has argued that in the face of Article 9 of the
Constitution enjoining the State to encourage Local Government institutions, Parliament is not empowered to enact
laws abolishing Local Government institutions, because, that would be direct contravention of the directive in
Article 9. Mr. Islam has also argued that assumption of the powers and functions of a Local Government institution
by the Government after abolishing the Local Government institution is also violative of Article 9.
73. The learned Attorney‑General has, on the other hand, contended that Local Government Institutions are
established by Acts of Parliament and as such, Parliament is quite competent to abolish them. He has also argued
that Parliament is the sole authority to decide how many tiers of Local Government institutions should be set up. His
further argument has been that Parliament is quite competent to enact law to vest the powers and functions of Local
Government institutions in the Government at the Centre and there is no illegality in it.
74. In order to resolve the above controversy it is necessary to decide two things. First, whether in the face of Article
9 of the Constitution the Government at the Centre can abolish a Local Government institution and assume all
powers and functions of a Local Government institution after abolishing it. Secondly, it has to be determined
whether the Upazila Parishads created under the Upazila Ordinance were Local Government institutions within the
meaning of Article 9 of Constitution.
75. In order to decide the first question, it is necessary to refer to Article 9 of the Constitution which runs as follows:
"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."
76. Article 9, therefore, enjoins the State to encourage setting up of Local Government institutions and to run the
functions of Local Government institutions through public representatives. The learned Attorney‑General was
correct when he said that it was upto the Government to set up a Local Government institution or not, because,
Article 9 of the Constitution cannot be enforced through Courts. He was also correct when he said that the
Government is the sole authority to decide how many tiers of Local Government institutions should be set up. No
exception can also be found to his contention that since all the tiers of Local Government institutions are created by
Parliament by law, Parliament is also empowered to abolish any one of the tiers by law. But, the question still
remains whether by abolishing a Local Government institution its powers and functions can be assumed by the
Government at the Centre, and whether Parliament can, by law, authorise such assumption. From Article 9 it is clear
that the State has been enjoined to encourage Local Government institutions. Consequently, assumption of the
powers and function of a Local Government institution by the central Government is, to my view, a direct
contravention of Article 9. Parliament is at liberty either to set up or not to set up a Local Government institution. It
can abolish a Local Government institution and transfer its powers and functions to another Local Government
institution as was done by Article 5 of President's Order No.7 of 1972 in respect of the assets and liabilities of the
Union Committees and Thana Councils set up under the Basic Democracies Order, 1959. It can also replace one
Local Government institution by another Local Government institution. But, it appears to me that in the face of
Article 9 of the Constitution it cannot vest the powers and functions of a Local Government institution, once it has
been set up and started functioning, in the Government at the Centre, because, that would be against the express
directive in Article 9 and if it is done it must be said that Parliament has acted contrary to and in contravention of
Article 9 thereby attracting the mischief of Article of the Constitution which declares any law inconsistent with any
provision of the Constitution to be void.
77. In these writ petitions, the only point that now remains to be decided is whether the Upazila Parishads
constituted under the Upazila Ordinance were Local Government institutions within the meaning of Article 9 of the
Constitution so as to attract its provisions, because, we have already seen that by sub‑section (2) (kha) of section 2
of the Repealing Ordinance the rights, authority, powers and functions of the Upazila Parishads have been vested in
the Government at the Centre.
78. The concept of Local Government institution can be traced back to 1885 when the Bengal Local Self
Government Act of 1885 was enacted. Since then for setting up Local Government institutions there have been
various enactments from time to time but for our present purpose we need not go back thus far. It is enough if the
recent enactments are referred to. The concept of Local Government at the thana level which was subsequently
termed as Upazila was introduced by the Basic Democracies Order, 1959. After constitution of the Thana Parishads
under the Basic Democracies Order, 1959 the Thana Parishads continued till the promulgation of the Bangladesh
Local Councils and Municipal Committees (Dissolution and Administration) Order, 1972, being President's Order
No.7 of 1972. By President's Order No.7 of 1972 promulgated on 20.1.1972 the then existing Thana Parishads were
abolished and their assets and liabilities etc. were vested in the Zila Board constituted under the said order.
Thereafter, by President's Order No.22 of 1973, known as the Bangladesh Local Government (Union Parishad and
Paurashava) Order, 1973 the Union Parishads and Paurashavas were constituted. The preamble to President's Order
No.22 of 1973 is interesting and it is necessary to refer to the first paragraph of the preamble which runs as follows:
"Whereas Article 59 of the Constitution of the People's Republic of Bangladesh provides, inter alia, that local
government shall be entrusted to bodies, compassed of persons elected in accordance with law etc."
79. So, the framers of President's Order No.22 of 1973 were very much conscious about the existence of Article 59
of the Constitution which enjoins establishment of local government composed of persons elected in accordance
with law. The preamble and the very title of President’s Order No.22 of 1973 show that the Government regarded
the bodies (i.e. the union Parishads and Paurashavas), constituted under the said Order as local government
institutions. Article 59 and 60 of the Constitution were, however, repealed by the Constitution (Fourth Amendment)
Ordinance, 1975, being Act II of 1975. Then followed the Thana Parishad Ordinance, 1976, being Ordinance No.32
of 1976. By promulgating this Ordinance on 21.5.76 various Thana Parishads were constituted. It was followed by
another ordinance being Ordinance No. XC of 1976 whereby along with the Thana Parishads some other Local
Bodies, namely the Union Parishads and Zila Parishads were also constituted. The preamble to this Ordinance is also
interesting and as such, it is necessary to refer to the said preamble which runs as follows:
"Whereas it is expedient to provide for the Constitution of Local Government institutions in rural areas and to
consolidate and amend certain laws relating to local government in such areas……………etc."
80. This Ordinance also shows that the Government consciously referred to the local bodies constituted under the
said Ordinance as Local Government institutions. As such, according to this Ordinance, a Thana Parishad was a
Local Government institution. This Ordinance was then followed by the Local Government (Upazila Parishad and
Upazila Administration Reorganisation) Ordinance, 1982 being Ordinance No.LIX of 1982. By this Ordinance
certain structural changes were brought about in the Thana Parishads constituted under the previous ordinance being
Ordinance No.XC of 1976. In Ordinance No.LIX of 1982 the terms "Thana Parishads" were used. Subsequently, by
promulgating the Local Government (Thana Parishad and Thana Administration Reorganisation) (Second
Amendment) Ordinance, 1983 the Thanas were upgraded and were designated as Upazilas and the word "Thana" in
Ordinance No.LIX of 1982 was substituted by the word "Upazila". From the aforesaid statutes whereby the Upazilas
were created and Upazila Parishads were set up it appears that the Government treated the Upazila Parishads as
Local Government institutions.
81. We have now to consider whether, although in the above statutes the Upazila Parishads were recognised as
Local Government institutions, these Upazila Parishads can be regarded as local Government institutions for the
purpose of applicability of Article 9 of the Constitution.
82. "Local Government institutions" or "Local Government" have nowhere been specifically defined in the
Constitution itself. As such. the Court has to interpret the words "Local Government institutions" occurring in
Article 9 with reference so other provisions of the Constitution. The words ‘‘Local Government" also appear in
Chapter‑III of Part IV of the Constitution wherein Article 59 and Article 60 of the Constitution have been enacted.
As we have already seen, in clause (1) of Article 59 it has been provided that ‘‘Local Government in every
administrative unit of the Republic shall be entrusted to bodies, composed of persons elected in accordance with
law”. Consequently, the words "Local Government" occurring anywhere in Constitution, would, if the context does
not otherwise imply, mean "Local Government" as in clause (1) of Article 59 of the Constitution, became, the
provisions of the Constitution must be read harmoniously and as a whole. Unless the context otherwise implies, the
meaning of the terms occurring in one Article cannot be interpreted otherwise when it occurs in another Article. As
such, it appears to me that the words "Local Government institutions" appearing in Article 9 of the Constitution have
to be interpreted with reference to their meaning in clause (1) of Article 59 of the Constitution. In spite of the fact
that in the statutes referred to above wherein the Thana Parishads, Upazila Parishads and Union Parishads were set
up, the Government treated the Thana Parishads and the Upazila Parishads as "Local Government institutions". We
have already seen that in clause (1) of Article 59, "Local Government mean elected bodies in every "administrative
unit.’’ We have also seen that an "administrative unit" has been defined in Article 152(1) of the Constitution, as a
District or other area designated by law as an "administrative unit" for the purpose of Article 59 of the Constitution.
Unfortunately, Mr. Islam has not been able to produce before us any enactment to show that for the porpoise of
applicability of Article 59 of the Constitution a Thana has been declared to be an "administrative unit" in pursuance
of Article 152(1) of the Constitution so as to mean that the Thana Parishads, later designated as Upazila Parishads,
were Local Government institutions within the meaning of Article 59(1) of the Constitution. Admittedly, a Thana is
not a District. So, a Thana or Upazila cannot be treated as an "Administrative unit" in absence of any declaration by
any law for the time being in force to the effect that it is an "administrative unit" for the purpose of applicability of
Article 59 of the Constitution. As such, it appears to me that the Upazila Parishads at the Upazila level set up under
the Upazila Ordinance being Ordinance No.LIX of 1982 were not Local Government institutions within the meaning
of Article 59 or Article 9 of the Constitution. So, the provisions of Article 9 cannot be invoked for impugning the
Repealing Ordinance whereby the Upazila Parishads were abolished and their powers and functions were assumed
by the Government at the centre.
83. From the above discussion, it, therefore, follows that had the Upazila Parishads been found to be Local
Government institutions within the meaning of Article 9 of the Constitution the impugned repealing Ordinance
would be in contravention of the said Article and would be liable to be struck down to the extent of the
inconsistency by operation of clause (2) of Article 7 of the Constitution. But, since I have found that the Upazila
Parishads were not Local Government institutions within the meaning of Article 9 of the Constitution, the impugned
repealing Ordinance being Ordinance No XXXVII of 1991 has not contravened the provisions of Article 9 and it
cannot, therefore, be said to be void by operation of Article 7(2) of the Constitution.
84. As such, all these Rules will be discharged and I, accordingly, agree with the order proposed to be passed by my
learned brother, Md. Abdul Jalil, J who has decided to discharge the Rules.
Certificate under Article 103(2)(a) of the Constitution, as prayed for by Mr. Amirul Islam is granted as, in our
opinion, these cases involve a substantial question of law as to the interpretation of the Constitution, particularly,
Articles 7(2), 8(2), 9 and 59 read with the first item of Article 152(1) thereof.
Ed.
This Case is also Reported in: 44 DLR (HCD) (1992) 179.