AHSANULLAH VS BANGLADESH 44 DLR 1992

 

 Analysis of the Fact:

The petitioners were elected for five years and they had been performing their functions as elected chairman of their respective upazilla. The election was held in March, 1989 under the Local Government ( Upazilla Parishad and Upazilla Administration Reorganization) Ordinance, 1982. But the Government took all assets and liabilities of the upazilla parishads and its functions and powers by the impugned Ordinance repealing the previous Local Government Ordinance,1982.

Issues:

1.      Whether the impugned Ordinance is violative of the Articles 11, 59, 60 of our Constitution ?

2.      Whether the Repeal Act is violative with the provisions that means inconsistence with the Constitution ?

  

Argument from the petitioner:

It was argued that

Ø  The upazillas were constituted by a notification in the official gazette under the Local Government Ordinance, 1982. The petitioners were elected for five years and they had the right to complete the five years from the date on which they entered upon their respective offices and they can not be removed from the office other than in the manner prescribed in the Ordinance. 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 Ordinance. By the impugned Ordinance the power of the elected representatives to conduct the functions of upazillas were taken away which were violative of Articles 11, 59 and 60 of the Constitution.

Ø  The impugned Ordinance purported to undermine the democratic polity in the country which is one of the fundamental structures of the Constitution.

Ø  The impugned ordinance was promulgated without any satisfactory cause which renders no such type of immediate necessary to promulgate the ordinance. So, the impugned ordinance is inconsistent with the constitution.

Argument from the Respondent:

It was argued that

Ø  The constitution of upazilla parishads under the Local Government Ordinance, 1982 had undergone changes from time to time. That was made in exercise of law making power either by act or ordinance or President’s order.

Ø  The impugned ordinance was not inconsistent with any provision of the Constitution. Articles 9 and 11 of the Constitution are not judicially enforceable because they are in part II of our Constitution.

Ø  The upazilla parishads were never designated as administrative units for the purpose of Article 59 and 60 of our Constitution. Articles 11, 59 and 60 of our Constitution do not provide for any particular type of Local Governmental Body. So, the impugned ordinance was not inconsistence with those Articles.

Ø  Upazilla system itself was a source of drainage of Governmental money in unproductive activities which negated the welfare of the people. As a result, they very objectives of the establishment of the upazilla parishads were frustrated. So, the President was satisfied that the circumstances existed which rendered immediate action necessary to make and promulgate the impugned ordinance.

Decision:

The impugned Ordinance could not be said to be void by operation of Article 7(2) of our Constitution.

Reasoning behind the decision:

The above decision was taken on the ground that Upazilla parishads were not Local Governments. So the impugned ordinance did not contravene the provisions of Articles 9, 11, 59 and 60 of our Constitution.

Principle:

The following principles came out from the judgment:

Ø  Promotion of Local Government institutions as per the Article 9 of our Constitution is not a statutory obligation rather a direction on the state to encourage Local Government institutions and Government can establish a Local Government and abolish any Local Government if it becomes necessary.

Ø  Upazilla parishad is not considered as an administrative unit as per the provision of Article 152(1) and accordingly it can not be called Local Government as per the provision of the Articles 59 and 60 of our Constitution.

Importance of this case:

Through this case the definition and extension of Administrative Unit and Local Government under our constitution came out. Although Justice Naimuddin Ahmed did not declare the Repealing Ordinance void, He raised a hypothetical issue that had the upazilla parishad been found to be Local Government institutions within the meaning of Article 9 the impugned repealing ordinance would be in contravention of the said Article. In this way in this case he tried to enforce Fundamental Principles of State Policy by indicating Articles 9 and 11 under the plea of Article 7(2).