Lawmakers must not be lawbreakers

daily star

daily star

RECENTLY, a headline of The Daily Star (June 20, 2009) read “MPs to make local development plans.” According to the report, the government has decided to give MPs the power to prepare the development plans for their constituencies, which will be implemented by the ministry of LGRD. This decision, we are afraid, will once again be a blatant assault on our Constitution.

The first assault on the Constitution was made when the 9th Parliament in its maiden session reintroduced the 1998 Upazila Act with some amendments. The amended Act designated the MPs advisers to the Upazila Parishad and made it mandatory for the Parishad to heed their advice. Giving the MPs controlling authority over the Upazila Parishad is a clear violation of Article 59 of our Constitution.

Article 59(1) of our Constitution mandates that “Local Government in every administrative unit of the Republic shall be entrusted to bodies composed of persons elected in accordance with law.” The upazila chairmen and two vice-chairmen, not the MPs, were elected to run the Upazila Parishads.

Members of Parliament, elected under Article 65 of our Constituion, are vested with “the legislative powers of the Republic.” Legislative powers generally include enacting laws, debating policy issues, ensuring transparency and accountability of the executive branch through Parliamentary Standing Committees, and approving budgets and the government’s financial decisions.

Running local bodies, it must be noted, is not among the constitutional responsibilities of the MPs. In fact, Article 9 requires “local government institutions composed of representatives of the areas concerned.” Article 11 requires “effective participation by the people through their representatives in administration at all levels.” That is, the constitutional requirement is for the locally elected persons to represent the people in local bodies.

Futhermore, according to Article 7(1) of our Constitution, “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.” That is, whoever is given whatever authority to exercise on behalf of the people must stick to it. Thus, when the MPs, elected for the House of Nation, are brought in to run the local bodies it is a violation of the basic structure of our Constitution. This transgression, we are afraid, makes our lawmakers the lawbreakers.

The amended Upazila Act violates the basic structure of our Constitution in yet another way. Modern states like ours consist of three essential branches — the executive, the legislature and the judiciary. They are co-equal and independent of each other, although mutually interdependent. Thus, one branch cannot become involved in the activities of another. Local government is included in Part IV of our Constitution, and is a part of the executive branch.

Consequently, if MPs take over the controlling authority of local bodies, it will nakedly violate the basic structure of our Constitution. The same argument is applicable in the case of MPs becoming the chairs of the governing bodies of educational institutions.

Our MPs, we are afraid, have become lawbreakers in yet another way. If something that cannot be done directly is done indirectly by enacting a law, it is called a “colourable legislation.” Since, according to our Constitution, MPs are not elected to run local bodies, the amended Upazila Act is bound to be a colourable legislation.

The amended Upazila Act is also discriminatory in that it makes only the MPS from single territorial constitutencies advisers to the Upazila Parishads, leaving out the women MPs elected from reserved seats. This is in clear violation of the fundamental right of nondiscrimination based on sex, as enshrined in Article 28 of our Constitution.

Some of our MPs contend that the soverign Parliament is supreme and it can do and undo anything, including amending the Constitution. Unfortunately, this is an erroneous view. Parliament may be soverign in Britain, where there is no written Constitution, and the Parliament there is the Court of Records, but it is not applicable to Bangladesh, which has a written Constitution. In our country, none of the branches is subservient to another.

A judgment of the Constitutional Bench of the Indian Supreme Court is most relevant in this regard: ” It is necessary to remember that though our Legislatures have plenary powers, they function within the limits prescribed by the material and relevant provisions of the Constitution. In a democratic country governed by a written Constitution, it is the Constitution which is supreme and sovereign. Therefore, there can be no doubt that the sovereignty which can be claimed by the Parliament in England, cannot be claimed by any Legislature in India in the literal absolute sense.”

That is, our legislature is not supreme and our MPs cannot do anything they want by ignoring the Consitution. All powers do not belong to them. They are merely the custodians of the powers given to them, on behalf of the people, by the Constitution. In addition, even in amending the Constitution, they must follow Article 142 of our Constitution. In enacting legislation on local government also, they cannot go beyond the Constitution. As the Appellate Divsion of the Bangladesh Supreme Court, in Kudrate-E-Elahi Panir vs Bangladesh [44DLR(AD)1992], clearly stated: “Parliament is not free to legislate on local government ignoring Articles 59 and 60.”

In the same vein, the decision of the government to give MPs the authority to fomulate development plans and the LGRD ministry to implement them is also a violation of our Constitution. According to Article 59(2)(c) of the Constitution, functions of local bodies include “the preparation and implementation of plans relating to public services and economic development.” Thus, the MPs, by using their plenary legislative powers, cannot take away the authority of formulating development plans given to the local bodies without violating the Constitution. Similarly, it will be a clear violation of the Constitution for the LGRD to directly implement the development plans.

The amended Upazila Act not only violates the Constitution, it is also inconsistent with prevailing court judgments. When the “District Minister” system was introduced during the last government, Mr. Anwar Hossain Manju filed a writ against it before the High Court.

In declaring it unconstitutional, Justice A.B.M. Khairul Haque and Justice A.T.M. Fazle Kabir stated: “None of the ministers, whips and other functionaries mentioned in the above notifications can be appointed in respect of any of the districts mentioned therein. They do not have any function as such in respect of the districts, save and except their functions as ministers for the particular departments in the context of the entire country. Similarly, the members of Parliament have got no direct role or function, in respect of either development or maintenance of law and order, in the district or in other local administrative units. As such, the petitioner, a member of Parliament, has got no function in respect of Pirojpur district.”

To conclude, it is clear that the amended Upazila Act is in clear violation of our Constitution. It is also not consistent with the prevailing court decisions. Thus, our lawmakers, we are afraid, have become lawbreakers, which is not consistent with the idea of the rule of law. This is also inconsistent with Awami League’s commitment in its election manifesto to strangthen the ocal government system.

In addition, the amended Upazila Act has given rise to a situtation of serious conflicts at the local level, which is bouund to hamper development activities at the grassroots. We hope that our Honourable prime minister will take note of the gravity of the situation and initiate effective steps to redress it. We further hope that the MPs, in the meantime, will stay away from the city corporations, pauroshavas and the union parishads.

Dr. Badiul Alam Majumdar is Global Vice President and Country Director, The Hunger Project-Bangladesh, and Secretary, SHUJAN (Citizens for Good Governance).

Reference by: The Daily Star, 8 July 2009

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