KUDRAT-E-ELAHI PANIR VS BANGLADESH 44 DLR AD 1992

  Analysis of the Fact:

Upazila Parishads were constituted under the Local Government ( Upazila Parishad and Upazila Administration Reorganization) ordinance,1982 which was amended in 1983. The first election under this set up was held in1985 and the second election in 1990. The appellants were elected chairman in the election of 1990. The terms of the office were five years but after one year the impugned Repealing Ordinance was made repealing the parent ordinance of 1982 and abolishing the parishads constituted there under. The Repealing Ordinance was later on made an act of Parliament on 1992. 

Issue:

1.      Whether Upazila Parishad is a local government or not?

2.      Whether the Bangladesh Local Government (Upazila Parishad and Upazila

Administration Re Organization, Repeal ) Ordinance is a valid legislation or not ?

3.      Whether the impugned ordinance is made within the Constitutional power of Article 93 or not?

Argument of the petitioner:

It was argued that

§  The Repealing Ordinance was liable to be declared void because 

a.       It was violative of the Preamble of the Constitution.

b.      It was violative of the Articles 9 and 11. 

§  The Fundamental Principles of State Policy might not be judicially enforceable but inconsistency there with rendered a law to be void under Article 7(2).

§  The Repealing Ordinance was ultra vires the Article 93 because Article 93 did not empower the making of the impugned ordinance because An Organic Law that representing a vital structure of the Government could not be made by ordinance circumventing the parliament and even there was no immediate necessity at that time.

§  The Repealing Ordinance had contravened the provisions of the Articles 59 and 60 of our Constitution which talks about the formation and functions of the Local Government.

§  District had been specifically included in the definition of Administrative Unit under Article 152(1). So, no separate designation was necessary for upazilas, unions and municipalities because they were within the territorial limit of the District.

§  The Repeal Act was a colorable legislation because it was a Repeal Act but in real sense all the powers, authorities and privileges of the parishads were vested in the Government.

Argument from the Respondent:

It was argued that

§  The impugned Ordinance or Act could not be declared void which fell under part II on the basis of inconsistency under Article 7(2) of our Constitution because there was no real distinction between the inconsistency and enforceability.

§  The Repealing Ordinance had been enacted into a Repealing Act so, the power of making ordinance did not circumvent the Constitutional power of the parliament.

§  Upazila parishads were not working properly and it became a heavy drain on the National Exchequer. So, it became evident that the circumstances had existed which had rendered immediate action necessary to make and promulgate the Ordinance.

§  Local Government could be established under ordinary law of parliament and under the provisions of Article 152(1) and 59 of the Constitution. So, administration of Local Governments which were outside the ambit of the Constitution will not come under the Article 7(2) of our Constitution.

§  The Repealing Ordinance or Act was not a Local Government within the meaning of Article 152(1). So, it did not violate Articles 59 and 60 of our Constitution.

Importance of the case:

This is one of the Land mark cases in the Constitutional Journey in the history of Bangladesh in which a wide and clear judicial review and interpretation was cast on various Articles of our Constitution. Mostly, the concept of local government has clearly come out from this case.

Another important side of this case is that Appellate Division finally rejected the Justice Naimuddin Ahmed’ hypothetical notion that whether the impugned ordinance would be liable to be struck down under the provision of Article 7(2) of our Constitution if it is found to be violative of Article 9 and 11 and said that Court would not deal with a hypothetical issue. Though Court did not take His hypothetical contention but it has added a new area in the Constitutional interpretation. Conception of colorable Legislation also came out. Again Justice Mustafa Kamal contended that Fundamental Principles are not laws within the meaning of the Article 152(1). An article 9 and 11 are the provisions of the Constitution and Article 7(2) says this Constitution, not provisions of this Constitution. So, principles of 9 and 11 cannot be brought within the area of Article 7(2). He also mentioned that it will be a madness scenario if Government makes a law violating the principles. In that case public opinion, political party and election will evaluate that. Court is not the only light at the end of the tunnel.

Principle:

Fundamental Principles of State Policy cannot always be enforced under the Article 7 of our Constitution because there is a clear bar under Article 8(2) of our Constitution.

Decision:

Repealing Ordinance is not void.

Reasoning behind the decision;

The above decision was taken on the following grounds:

•      The repealing ordinance does not come under Article 7(2) because Article 8(2) clearly states that fundamental principles are not judicially enforceable and the repealing ordinance comes under Article 9 which falls under fundamental principles of state policy. 

•      The main ordinance Upazila Parishads Administration does not come under Local Government within Articles 59 and 152(1).

The ordinance making power does not violate the Constitutional Law making power.