The government deserves praise for correcting its mistakes

For this does not usually happen in our country -- the governments have seldom corrected their mistakes.

This bureaucratic control over the activities of UPs is wrong because local government, by definition, must be local self-government. Controls allow the central bureaucracy to thwart local autonomy and, in the process, directly or indirectly intrude upon the running of local affairs. With controls, local bodies in essence become agents of the national government, and hence cease to function as self-governing entities. As the Appellate Division of the Bangladesh Supreme Court, in Kudrat-E-Elahi Panir vs. Bangladesh (44DLR (AD) (1992)), states: "'Local government' ... is meant for the management of local affairs by locally elected persons. If government officers or their henchmen are brought to run these local bodies, there is no sense in retaining them as local government bodies."

Bureaucratic control also serves no useful purpose. Rather, it is counterproductive in that it prevents elected officials from exercising leadership to solve many of the socio-economic problems that their constituents face. Most of the challenges people face are local and must also be solved locally and primarily by the initiatives of those facing the challenges. Elected local leaders can play a catalytic role in this process. Elected leaders can awaken and mobilise people to become the principal authors of their own future. Thus, the UP representatives can become the change agents for the socio-economic resurgence of their unions.

The most serious problem with the imposition of controls over local bodies is that they raise serious constitutional issues. Article 59 (1) states that "Local government in every administrative unit of the Republic shall be entrusted to bodies, composed of persons elected in accordance with law." The implication is that local government bodies would be autonomous and not extensions of the national government. In other words, they would be parallel entities to the central bureaucracy. Thus, the imposition of bureaucratic controls over local bodies are a clear violation of the constitutional mandate of a system of autonomous local government.

It must be pointed out that not only the recent circulars, but also the constitutionality of The Local Government (Union Parishad) Ordinance, 1983 itself, which governs the functioning of UPs, can be challenged. Articles 12, 64 and 65 of the ordinance allow the bureaucracy to remove the elected representatives and even suspend the Parishad. Similarly, Articles 60, 61 and 62 empower the government officials to supervise, control and direct the activities of UPs. These provisions clearly make a mockery of the constitutional requirement of autonomous local bodies.

In addition, the Article 81 of the ordinance designates elected UP representatives as public servants, although they are public representatives. The sinister idea behind such a designation is that this allows the senior government officials to directly control the activities of the UP chairmen and members, as junior public servants, thus establishing a permanent subservient relationship.

How did it happen? How could the local bodies become subservient to the bureaucracy while the Constitution mandates an autonomous system? There is a sad history behind this.

The Fourth Amendment to the Constitution passed in 1975, one may recall, abolished Articles 59, 60 and the last clause of 11, which are the most relevant of the four constitutional provisions (Articles 9, 11, 59 and 60) relating to local governance. This clearly created a constitutional vacuum with respect to local government. After Ershad's takeover in 1992, the Constitution itself was suspended. Against this backdrop, The Local Government (Union Parishad) Ordinance was promulgated and subsequently passed into law in 1983. Thus, the ordinance, when promulgated, was not in violation of the Constitution since it was in a state of suspension.

However, the situation has changed as a result of the enactment of the Twelfth Amendment in 1991, which restored Articles 11, 59 and 60 to the Constitution. This Amendment has clearly made the 1993 law inconsistent with the Constitution, which calls for an autonomous local government system. The full-court bench of the Appellate Division of the Bangladesh Supreme Court itself, in its unanimous decision in Kudrat-E-Elahi Panir vs. Bangladesh (44DLR (AD) (1992)), explicitly directed the government to remove this inconsistency. It mandates that: "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, the local bodies shall have to be updated in conformity with Articles 59 and 60..." The court gave this verdict 11 years ago in 1992, and each successive government failed to implement it, impeding the process of establishing the rule of law. One may wonder: In whose interest?

It may also be pointed out here that the Appellate Division of the Bangladesh Supreme Court in Kudrat-E-Elahi Panir vs. Bangladesh gave another important directive to the government: "The existing local bodies are required to be brought in line with Article 59 by replacing the non-elected persons by election, keeping in view the provision for special representation under Article 9. Necessary action in this respect should be taken as soon as possible Ñ in any case within a period not exceeding six months from date." This directive to hold elections in all tiers of local government in six months has far reaching implications in that it relates to the fundamental issue of people's participation in governance. As we know, the government has failed to hold elections of Zila and Upazila Parishads over the last 11 years, defying this important directive from the highest Court of the land.

With respect to the requirement that elected UP representatives obtain permission from the ministry for traveling outside the country, it is in clear violation of the fundamental rights enshrined in our Constitution. Article 36 of the Constitution states: "Subject to any reasonable restrictions imposed by law in the public interest, every citizen shall have the right to move freely throughout Bangladesh, to reside and settle in any place therein and to leave and re-enter Bangladesh." The 1993 law, or any other law for that matter, does not forbid the freedom of movement of UP chairmen and members, and there is also no serious public interest involved, which it would warrant the denial of such an important fundamental right to a very distinguished group of our citizens.

The constitutionality of the cancelled circulars could also be challenged on another ground the government's authority to issue circulars. Laws usually authorise the issuance of rules and directives, which are intended to clarify the provisions of the law and aid in their implementation. However, this privilege has been badly abused by the authorities in our country. The situation has come to a point that the local government, according to cynics, is now practically run by dozens of circulars, many of which are frivolous, vague and often contradictory. It must also be noted in this context that circulars are not approved by the Parliament and hence are not themselves laws. Rather they are the actions of bureaucrats, and thus can be at times self-serving. If circulars are issued for purposes other than to clarify and operationalise the law, they usurp the legislative authority of parliament, and hence cannot be valid constitutionally. According to the Constitution, legislative power is vested only in parliament.

To conclude, the two circulars recently cancelled were humiliating to the elected local representatives and would have further weakened the UP as a local government body. The circulars in question also would have impaired their ability to express leadership to move the country forward. The government has cancelled the circulars after realising that it made a mistake. This is undoubtedly good news, for which the government deserves acknowledgement. We now fervently request the government to remedy its failure to implement the directives of the Appellate division of the Supreme Court, and soon take the necessary corrective actions, paving the way for instituting the rule of law and participatory governance in the country.

Dr. Badiul Alam Majumdar is Global Vice President and Country Director, The Hunger Project-Bangladesh.