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Written By: Shahjahan
12/02/2015 15:27 08/02/2015 10:45
Law and Order


Ours is a democratic country. That’s precisely why democracy has been embodied as one of the lofty state principles in the Constitution of Bangladesh. Of course, there have always been controversies and debates as to how much democratic we really are. Anyway, our democratic aspirations played a major role in our liberation war leading to the independence of the country.

The original Constitution of the People’s Republic of Bangladesh truly reflected these aspirations of the citizens of the country. This is manifest in many provisions of the Constitution. One of these provisions is Article 59.Ironically enough, some of the finest provisions of the original Constitution have been amended and re-amended while Article 59 has managed to stay intact surviving the test of time, luckily though. For the purposes of driving home the contention of the instant column, let’s now have a look at this particular Article of our Constitution.

Article 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) Everybody such as 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.

Even a cursory and plain reading of this Article suggests that the concept of Local Government has been duly recognized in our Constitution. That leads one to the establishment and functioning of the Union Councils, Upazila Councils and the District Councils. It is common knowledge that though the Union Councils and the Upazila Councils are in place doing a seemingly good job, the District Councils are quite the other way round. Besides, the Upazila Councils are plagued by lack of power vis-à-vis jurisdiction coupled with conflicts between the Chairmen and the Upazila Nirbahi Officers.

Secondly, the Constitution contemplates elected representatives of the people manning the offices of all the tiers of the Local Government. The Constitution by no means contemplates selected or nominated or hand-picked persons to run the show. It is, in fact, a mandatory provision of the Constitution as evidenced by the word Shall in the construction of the Article implying that no exceptions can be resorted to here. Mention may in this connection be made to the celebrated judgment pronounced by the Supreme Court of Bangladesh in the case of Kudrat Elahi Panir Vs. Bangladesh. But, as we all are aware, this is not the case with the District Councils as these are now being run by nominated, hand-picked  and unelected persons loyal not to the people but to the government of the day. The scenario is just the same with the City Corporations.

Take, for instance, the case of the Dhaka City Corporation. While the AL-led government split Dhaka up into two styling them as Dhaka South and Dhaka North allegedly violating Article 5 of the Constitution, elections to the same are long overdue. Hence, bureaucrats instead of elected representatives are managing the day to day affairs of the corporation (s).On top of it all, elections to the Hill District Councils in the Chittagong Hill Tracts have not been held for over two decades. The tenure of the first Local Government Councils turned Hill District Councils elected in 1989 having expired, nominated councils have been in charge since then. There have been intermittent outcries for elections to be held, but in vain. A section of the tribal leaders have continued insisting on drawing up a separate voters list in tune with the Peace Accord signed in 1997.

The problem is that the relevant provision of the Peace Accord will prevent Bengalis with no recorded land property in the CHT from being registered as voters. One simply has to disagree with the essence and import of the provision as it is in clear violation of Article 122 of the Constitution wherein the qualifications for registration as voters have been described. Article 122 doesn’t set having recorded land property as a pre-condition for registration as voters while the Peace Accord does. Moreover, a provision contained in any law, rules, regulation, treaty or accord can’t be construed superior to the Constitution enjoying the status of the supreme law of the land. 

As a matter of fact, this provision has already been declared ultra vires to the Constitution by the Hon’ble High Court Division of the Supreme Court of Bangladesh in the case of Mohammad Badiuzzaman and Another Vs. Bangladesh and Another. The government of Bangladesh was supposed to adopt all the persuasive and legal measures to pave the way for the preparation of the voter list meant for the elections to the Hill District Councils long ago. Contrarily, what the successive governments have gone for is nomination of Councils one after the other.

Added to that, of late another administrative blunder has been committed. The government has amended the Hill District Council Acts of 1989, thereby giving permanency to the undemocratic and disastrous process of nominating councils and also increasing the number of nominated members of the Councils from 4 to 15.    

Nominated plus unelected persons put in charge of running the District Councils have understandably failed to live up to the  expectations of the  citizenry at large. For one thing, they are not accountable to the voters or citizens or the people at all. On the other hand, they have the tendency to indulge in rampant corruption much to the deprivation of the citizenry. They now don’t have to give a damn to the preparation and implementation of plans for ensuring public services and economic development in the respective areas as envisaged per Article 59 of the Constitution.

All these present a chaotic scenario in terms of the repeated and prolonged violations of the sacred Constitution resulting in the murder of democracy occasioning failure of our democratic aspirations and ideals.

Finally, is there anybody round the corner to sort it all out?

Mohammed Shahjahan, An advocate practising at the District and Sessions Judge’s Court, Cox’sBazar.

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