Kudrat-E-Elahi Panir vs Bangladesh
Citation: 44 DLR (AD) 319
Jurisdiction : Bangladesh
Appellants: Kudrat-E-Elahi Panir and Ahsanullah
Respondents: Bangladesh [through the Secretary, Ministry of Local Government, Rural Development & Co-operative, (Local Government Division), Government of Bangladesh, Dhaka and another]
Facts :
During General Hussein Muhammad Ershad’s martial law regime, the Upazila Parishads were created under the Local Government (Upazila Parishad and Upazila Administration Reorganisation) Ordinance, 1982. These local government bodies included elected chairmen, representative members, and other official members. They were assigned specific responsibilities for local administration and development and received funding from the government to carry out their functions.
The first election under this system was held in 1985, and the second in 1990. The appellants were elected Chairmen of Sonargaon and Gazipur Upazila Parishads respectively in the 1990 elections. Their tenure was supposed to last five years. However, within less than a year, the government enacted the Bangladesh Local Government (Upazila Parishad and Upazila Administration Reorganization) (Repeal) Ordinance, 1991, abolishing the existing Upazila Parishads. This Ordinance was later enacted into law by an Act of Parliament in 1992. The appellants filed a writ petition, challenging the constitutional validity of this repeal. They contended that the Repeal Ordinance violated several provisions of the Constitution, especially Articles 9, 11, 59, and 60.
Issues :
1. Whether the Repeal Ordinance of 1991 was unconstitutional, violating Articles 9, 11, 59, and 60 of the Constitution.
2. Whether or not Upazila Parishads qualify as local government institutions under Article 59 of the Constitution.
3. Whether the President’s ordinance-making power under Article 93 circumvented the legislative authority.
4. Whether the Repeal Ordinance (later an Act of Parliament) was a colourable legislation.
Arguments :
Appellants’ Arguments:
Amirul Islam, on behalf of the appellants, argued that while the Court cannot enforce a fundamental principle, it can declare a law void on the ground of inconsistency with any provision of the Constitution, including any fundamental principle. He also laid great emphasis on the long historical background of the evolution and existence of local government in the history of Bangladesh. He argued that the Constitution recognizes this historical fact and recommends the establishment of local government under Article 9.
Dr. Kamal Hossain, also representing the appellants, stated that although the court cannot directly enforce a fundamental principle, Indian courts have issued appropriate directions to their government to take positive actions to remove grievances caused by the non-implementation of some directive principles in the Indian Constitution. He also argued that the Ordinance was unconstitutional because it was promulgated only 20 days before a session of Parliament, even though no exceptional circumstance existed to justify bypassing legislative procedures through an ordinance.
Syed Ishtiaq Ahmed contended that the legislation was a colourable one, as “in form it is a Repeal Act, but in substance it continued the Upazila Parishads and vested the rights, powers, authorities, and privileges of the Parishads in the Government, thereby undermining Articles 59 and 60 of the Constitution.” He also argued that the motives behind legislation are irrelevant, stating that the question of colourable legislation arises when something which cannot be done directly is done indirectly. Articles 59 and 60 provide limitations to the legislature, which were infringed upon when the repeal ordinance was passed.
Respondents’ Arguments:
The respondents argued that Upazila Parishads were abolished by an elected government because they were not economically viable and were absorbing government funds in unproductive activities. After the 1991 ordinance, a “Local Government Review Commission” was formed to study and make recommendations. The respondents also argued that the constitution of local governments has always depended on the policies of their respective governments in power. This has been the trend since the Bengal Local Self-Government Act of 1885 was passed. Although the Repealing Ordinance (later made into an Act) abolished the local government, it did so to create a better system through the review committee, which was not inconsistent with Article 9. The government defended its right to change or restructure administrative institutions as it saw necessary. According to their argument, the state had the power to abolish or reorganize administrative bodies, and this was simply an administrative change.
Attorney-General Aminul Huq argued that the system abolished by the Repeal Ordinance/Act did not constitute a local government within the meaning of Article 59. Upazila was not designated as an administrative unit. Without designating an area as an administrative unit, the legislature cannot establish a local government. He argued that for a body to be considered a local government, the area it governs must be designated as an administrative unit under Article 152(1) of the Constitution. Upazilas were never formally designated as administrative units, so Upazila Parishads were not real local government bodies. As per colourability, he cited KG Narayan Deo v. State of Orissa, [AIR (1953), SC 379]. The doctrine of colourable legislation is not linked to the “bona fide” or “mala fide” decision of the lawmakers, but rather the capacity of the legislature to enact any particular law. The question of colourability should not have arisen in this case due to the legislature having proper jurisdiction and authority at the time of passing the act.
Decisions :
Shahabuddin Ahmed CJ opined that it is up to the legislature to decide how local government should be organized, stating that changes to the local government system were historically a part of Bengal’s legislation. The repeal of the Upazila Parishad was done to improve the local government system, thus, the Repealing Ordinance was not inconsistent with Article 9. He further stated that nothing in Article 59 designates any area as an administrative unit, nor does it state that legislation cannot abolish local government at any level.
On the issue of whether the Repealing Ordinance was validly passed under the Ordinance-making power of the President, the Court held that the Ordinance-making power under Article 93 did not empower the creation of such an Ordinance, as it involved a vital aspect of the structure of government. However, since the Repealing Ordinance had been enacted into a Repealing Act, the submission of the appellants was considered invalid. This is because after it was passed in the Parliament, the question of the Ordinance-making power of the President became an academic one and not a legal one. The Court does not entertain academic questions.
In the end, the Appellate Division dismissed the case and ruled in favour of the Government. The Court agreed with the Government’s argument that Upazila Parishads were not local governments under Article 59 because Upazilas were not officially recognized as administrative units under Article 152(1) of the Constitution.
Justice ATM Afzal quoted William Valenta in his judgment: “Local governments are not true sovereign governments, but political creatures and subdivisions of sovereign state governments. As such they possess no independent sovereign powers or authority, save those delegated to them by state constitutions and laws. In brief, they remain subject to the sovereign authority of the national and state governments” (Local Government Law by William Valenta)
However, the judges were divided on the constitutional validity of the Repeal Ordinance. Author Judge Shahabuddin Ahmed CJ held that if the law went against the Fundamental Principles of State Policy, it could not be declared void because Article 8(2) of the Constitution states that Fundamental Principles are not enforceable by courts.
Mustafa Kamal J clarified that the fundamental principle of state policy in Bangladesh is not laws but principles, and thus are not judicially enforceable. However, Naimuddin Ahmed J dissented. He held that any legislative act passed in direct conflict with the provisions of Part II of the Constitution could be declared void under Article 7(2). However, he was addressing hypothetical scenarios here. He further emphasized the significance of the Fundamental Principles of State Policy; he stated that if a law directly contradicted these principles, the Court had the authority to declare it void. In his words, “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 provisions laid down in Part II of the Constitution.”
Ultimately, the Appellate Division overruled this contention. Again, Shahabuddin Ahmed CJ clarified why the fundamental principles of state policy were not judicially enforceable. He said, “The reasons for not making these principles judicially enforceable are obvious. They are in the nature of people’s programmes for the socio-economic development of the country in a peaceful manner, not overnight, but gradually. Implementing these programmes requires resources, technical know-how, and many other things, including mass education. Whether all these prerequisites for a peaceful socio-economic revolution exist is for the state to decide.”
When it came to the question of colourable legislation, the Court sustained the respondent’s argument. As there was no covert attempt to continue the Upazilla Parishad under bureaucrats. Therefore, the Repeal Ordinance/Act was not a colourable legislation. The court ultimately ruled in favor of the respondents. It held that the Repealing Ordinance/Act was not inconsistent with Articles 9, 11, 59, or 60 of the Constitution. Since Upazila Parishads were not considered local governments under Article 59.
Relevant Laws :
- The Constitution of the People’s Republic of Bangladesh
- Article : 7(2), 8(2), 9, 11, 59, 60, 93, 152(1)
- The Local Government (Upazila Parishad and Upazila Administration Reorganisation) Ordinance, 1982
- The Local Government (Upazila Parishad and Upazila Administration Reorganisation) (Repeal) Ordinance, 1992 [Later made Act No. 2 of 1992]
- Section: 2(2)(b)
Author :
1. Raiyan Talukder
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