Kudrat-E-Elahi Panir Vs. Bangladesh, through the Secretary, Ministry of Local Government, Rural Development & Co-operative, (Local Government Division), Government of Bangladesh, Dhaka and anr.

1. These two appeals have been brought by a certificate granted by the High Court Division under Article 103(2) of the Constitution of Bangladesh while dismissing four writ petitions by a common judgment dated 19 December, 1991. These Petitions are Nos. 2937, 2944, 2945 and 3002 of 1991. Appellants before us were petitioners of two of those writ petitions, Nos. 2937 and 3002. In those petitions they had challenged the constitutional validity of the Bangladesh Local Government (Upazila Parishad and Upazila Administration Re-organization) (Repeal) Ordinance, 1991-Ordinance No. 37 of 1991, on the ground that this Ordinance is inconsistent with Articles 9, 11, 59 and 60 of the Constitution and as such it is void in terms of Article 7(2) of the Constitution. Among other things, they alleged that Article 9 requires the State to encourage local government institutions, but the Ordinance abolished a local government namely the Upazila Parishad. The learned Judges of the High Court Division, for different reasons, some of which are common, dismissed all the petitions, but issued the Certificate since the matter is of public importance involving a substantial question of law as to the interpretation of the Constitution. Upazila Parishads, formerly named Thana Parishads, were constituted under the Local Government (Upazila Parishad and Upazila Administration (Re-organisation) Ordinance, 1982- Ordinance No. 59 of 1982, as amended by Ordinance No. 33 of 1983. The original Ordinance (No. 59) which was named “The Local Government Thana Parishad and Thana Administration (Re-organisation) Ordinance, was published in the Gazette on 21 December, 1982 and since then it was amended on 18 occasions. The second Amendment was effected by Ordinance No. 33 of 1983 and it is this Ordinance No. 33 of 1983, which changed the names-Thana and Thana Parishad as “Upazila and Upazila Parishad”. Among other things, the Ordinance (No. 59 of 1982) provided for constitution of a local body, Upazila Parishad, for each Upazila to consist of an elected Chairman, some representative members namely, Chairmen of Union Parishads, some nominated members, such as woman and some official members. The Ordinance (59 of 1982) also provided for re-organisation of the general administration of the country at Upazila level by transferring some powers and functions of the Government to the Upazila Parishads. These functions were called “transferred subjects” and the functions retained by the Government were called “retained subjects”. The Parishad was made a body-corporate with perpetual succession, a common seal and right to acquire, hold and dispose of property, etc. It was to have a Fund of its own, the major contribution, nay, the entire contribution to it was made by the Government; the Parishad was to have its own officers and staff to be paid by it, but at the beginning these personnel were provided and paid by the Government treating them as “on deputation” for the present. The Government, however, exercised powers of “supervision, direction and control” over the working of the Parishads and decided all matters of policy.

2. The first election under this set-up was held in 1985 and the second election in 1990. The appellants were elected Chairman of Sonargaon and Gazipur Upazila Parishads respectively in the election of 1990 their terms of office were five years, but hardly a year passed when the impugned Repeal Ordinance was made repealing the Parent Ordinance (No. 59 of 1982) and abolishing the Parishads constituted thereunder. The Repeal Ordinance was later on made an Act of Parliament-Act No. 2 of 1992. Among other allegations made by the appellants, the displaced elected Chairmen, one is that the Repeal Ordinance is itself invalid since there was no existence of any circumstance which, according to the President’s satisfaction, rendered it necessary to make the Ordinance just 20 days before the session of Parliament was called.

3. Articles of the Constitution, which, according to the appellants, have been violated by the impugned (Repeal) Ordinance are Articles 9, 11, 59 and 60. Article 7(2) of the Constitution proclaims the supremacy of the Constitution” as the solemn expression of the people’s will” and provides that if any other law is inconsistent with any provision of this Constitution, then that other law shall, to the extent of the inconsistency be void. Articles 9 and 11 are placed in Part II of the Constitution which contains the Fundamental Principles of State Policy. (Arts 8 to 25.). Articles 9 and 11 as they now stand, are quoted below:

9. The State shall encourage local Government institutions composed of representatives of the areas concerned and in such institutions special representation shall be given, as far as possible, to peasants, workers and women.

11. The Republic shall be a democracy in which fundamental human rights and freedoms and respect for the dignity and worth of the human person shall be guaranteed, and in which effective participation by the people through their elected representatives in administration at all levels shall be ensured.

4. Articles 59 and 60 fall in Part IV of the Constitution under the tide “The Executive”. It consists of three Chapters: Chapter 1 (Article 48-55) provides for the powers and functions of the President, Chapter II (Article 55-58) for the Prime Minister and the Cabinet; and Chapter in (Article 59-60) for Local Government. This chapter consists Of two articles namely, 59 and 60 which are quoted below:

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) Every body such as is 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

“60. For the purpose of giving full effect to the provisions of Article 59 Parliament shall, by law, confer powers on the local government bodies referred to in that article, including power to impose taxes for local purpose, to prepare their budgets and to maintain funds.

5. Before the High Court Division, Respondents-State defended the vires of the impugned Ordinance saying that Fundamental Principles of State policy are not “judicially enforceable”, that these Principles are not laws but are simply guide-lines for the State including Parliament and that even if any law is inconsistent with the Fundamental principles that cannot be challenged in court; they contended that the impugned (Repeal) Ordinance is not inconsistent with Articles 9 and 11. As to Articles 59 and 60, which are undisputedly enforceable judicially, Respondent’s contention was that provisions of these two Articles would not apply in the case of the Upazila Parishads since these Parishads are not Local Government within the meaning of Article 59 as the Upazilas were not designated as administrative units by law for the purpose of Article 59. In support of this contention they relied upon Article 152(1) of the Constitution which is quoted below: 152(1)- “administrative unit” means a district or other area designated by law for the purposes of article 59. Further contention of the Respondent was that the State is not duty bound to establish local government in all tiers or levels of administration, that Article 59, along with its corollary, Article 60, would come into play only when there is a Local Government established and is in existence under the Constitution, and that it would not apply when there is no Local Government at all.

6. After hearing the parties at great lengths the learned Judges of the High Court Division took an unanimous view that the Upazila Parishad was not a Local Government as the Upazila was not designated as an administrative unit; but as to the inconsistence of the impugned Ordinance with the Constitution as alleged, the learned Judges differed One of them held the view that there was not any inconsistency and, even if any, the Repeal Ordinance could not be declared void in view of Article 8(2) of the Constitution, which says that Fundamental principles are not enforceable by court. The other Judge took the view that though Fundamental principles are not enforceable in court but a law which is directly contrary to any Fundamental principle or which negates such a principle men the law may be declared void in spite of the provision in Article 8(2). This Article is quoted below:

8(2). The principles set out in this Part shall be fundamental to the governance of Bangladesh, shall be applied by the State in the making of laws, shall be a guide to the interpretation of the Constitution and of the other laws of Bangladesh, and shall form the basis of the work of the State and of its citizens, but shall not be judicially enforceable.

7. For the appellants learned Counsels-Dr. Kamal Hossain, Mr. Syed Ishtiaq Ahmed and Mr. Amirul Islam have appeared; Mr. Aminul Huq, learned Attorney-General has represented the State-Respondent The questions raised by both sides before the High Court Division have been reiterated in these appeals. Mr. Ishtiaq Ahmed has taken a new ground in the sense that this ground was not urged with any seriousness in the High Court Division. The ground is that the Repeal Ordinance is a colourable legislation in that in form it is a Repealing law, but in substance it continues the Upazila Parishads and vests the “rights, powers, authorities and privileges” of the Parishads in the Government after cleverly removing the elected Chairmen and members only. In other words, the learned Counsels have invoked the doctrine known in judicial pronouncements as “what cannot be done directly, cannot be done indirectly”.

8. Learned Counsels for the appellants have laid great emphasis on the necessity for functioning of local government bodies with people’s representatives for the establishment of a really democratic government in the country. They have referred to the Constitution of Bangladesh containing the subject of “Local government” which is a unique feature of the Constitution. It has been pointed out that in the Constitutions of no other countries of the Sub-continent provisions of local government have been included except a passing reference in Article 40 of the Indian Constitution. This Article provides for encouragement to the growth of village panchayats only. A viable system of local democracy, it has been urged, makes the concept of government by the people a reality. It is established, nurtured and developed as an essential part of the fabric of democratic government To strengthen this view extensive reference have been made to the historical development of local government institutions in our country as well as in some other highly developed democracies of the world, particularly England, USA and France.

9. Local government institutions, particularly in urban areas in our countries, have been modeled on those functioning in the United Kingdom. There the system has reached the stage of almost perfection through several centuries of uninterrupted growth and experience. Development of local institutions in England and Wales may be traced back continuously to the shires, hundreds, boroughs, cities or townships of the two centuries prior to the Norman Conquest. Since then the system underwent changes and re-organisation on many occasions, each time with enhanced authority and augmentation of revenues. The last re-organisation of the structure of Local Government Institutions was effected by the Local Government Act, 1972. At the passing of this Act the following local bodies were functioning; County Council, Non-county Borough, Urban District Council, Rural District Council, Parish Council, 32 London Borough Councils, Common Council of the City of London, Councils of Isle of Selli. All these bodies, big or small, are fully autonomous, and independent of the Central Government as well as of each other. All are run by elected persons, and excepting the House of Commons, these local bodies are the only elements of Government which are the subject of universal suffrage. These bodies are, however, subject to ‘direction, control and supervision’ of the Central Government at Whitehall. Powers of the Local governments bodies, are regulated by Acts of Parliament. These bodies have their own resources, but in some cases a substantial portion of fund is provided by the Government which is also the sole authority to frame policy regarding their functions. In England there is nothing like ‘district administration’ as units of the Central Government and, outside the capital city hardly any existence of the Central Government is felt except the Regional Offices here and there from which officers of the Central Government exercise the general power of direction, control and supervision over the local bodies. In addition to Regional Offices the Ministries sitting at the Whitehall issue guidelines to them. Some of these local bodies are so developed and managed by men of so much political maturity, administrative ability and sense of responsibility that practically all powers of the Central Government are exercised by those bodies. Even the subject of Police administration has been transferred to many of these bodies. As for example, the Police force of a local body work in co-operation with and under the supervision of the Chief Constable of Police of the Home Ministry. It is in matters which affect the country as a whole that the Central Government come forward to exercise power. One important feature of these local bodies is that they have been continuously functioning all through. There is no question of dissolution or supersession of any local body or of temporary taking-over of their functions by the Central Government Democratic tradition has developed in this field of local Governments in the case of Parliamentary democracy which also evolved through the experience of centuries. It is here where our local government institutions differ. Since Independence from the British, the local government bodies, particularly the District Boards and Municipal Committees were superseded by the Government very often, not so much on the ground of inefficiency, mis-management or lack of finance, as on political grounds or personal rivalries. If the Chairman of a local body was not functioning as ‘yes’ man of the Government of the day his committee was superseded which resulted in litigation that continued for years. During the period of supersession Government took over functions of a local body and managed them through their officers, such as Sub-divisional Officers, District Magistrates or Commissioners. Hardly any chance was given for these bodies to grow on a democratic line by “trial and error’; at least this is the popular belief in our country.

10. The idea of local government is not a new one in the sub-continental countries, particularly in Bangladesh. It is said that “village self government here is as old as the village themselves”. From time immemorial council of elders in different names and forms, such as panchayat, majlish, sabha, samity, were in existence in almost every village. The village head-man was widely respected and he sometimes sat with other men of experience and wisdom and solved problems faced by the villagers. The decisions of the panchayat, Sabha, Majlish, though there was no legal sanction behind them, were accepted and obeyed. But it is during the British rule when these village councils or sabhas were given institutional shape.

11. The British rule began from Urban areas-the three Presidency towns in the coastal belts at the time when the Badshai Firmans reigned supreme over the vast area from Central Asia to the borders of Arakan. But the narrow strips of land on the coast line of the country, with foreign trading Centres, but gradually transforming into ruling class were overlooked or ignored with contempt. The East India Company with experience of local bodies institutions at home first set up a Municipal Corporation at Madras in 1687, exactly at the time Aurangzeb was reducing to ashes the Kingdoms of Bijapur and Golkunda. Municipal Corporation at Bombay and Calcutta were set up in 1726. Needless to say these Corporations consisted of nominated members and official control was unlimited. The experience of these Municipal Corporations was extended to municipal areas in district head-quarters under the Municipal Committees Act No. X of 1840 and within a period of about 30 years 24 Municipal Committees were formed in the areas now comprising Bangladesh and Indian State of West Bengal. In the rural areas, three important enactments provided for the foundation of village self governments. These enactments are the Bengal Choukidari Act 1856 (Act XX of 1856), The Village Choukidari Act, 1870 (Act VI of 1870) and The Bengal Village Choukidari Act 1871 (Act I of 1871). In exercise of powers under these Acts the District Magistrate constituted a village panchayat for each village. The panchayat consisted of 3 to 5 inhabitants of the village, nominated by the District Magistrate. The Village panchayat was given power to appoint village choukidars who were entrusted with two functions; one for maintaining law and order acting under directions of the village panchayat, and the other for rendering assistance to the Police of the Thana by giving information about the crime condition of the village. For paying choukidars’ salaries the Village panchayat was given power to levy tax on “holdings’ in the village and for construction of roads and bridges, maintenance of communication and other works of public utility, another Act was passed. It is the Cess Act 1880-Bengal Act No. IX of 1880. To levy cess and road tax “Local Committees” were constituted by or under the authority of the Board of Revenue. These Local Committees functioned till their powers were made over to the District Boards when established in 1885.

12. But the pace of development of these local government institutions having effective power and authority was rather very slow. Reason was that their growth and development depended upon the policy of the British Government at London. The two political parties, Conservatives and Liberals, had different conceptions of Indian policy. When Gladstone returned to power in 1880, he was determined to extend the benefits of free democratic institutions like those in England to Indian people. Having been dissatisfied with the progress and development of Local government institutions in India, he considered it to be “our weakness and our calamity that we have been able to give to India the benefits and blessings of free institutions”. With a view to extend these benefits to Indian people he chose his friend Lord Ripon, and sent him out to India as Governor-General. Ripon set out with this intention and got a Resolution passed by his Government which was known as Ripon’s “Resolution of 1882” for development of local government institutions in real sense.

13. Municipal Committees were re-organised under a new enactment-Municipal Act, 1884. But the more important enactment made on the basis of the Resolution was the Bengal Local Self-Government Act-Act No. III of 1885. This Act provided for three tiers of local Governments, District Board for a district excluding the municipal areas, Local Board for a Sub-division or two, and Union Committee for a Union. The Local Boards functioned for a few years and were abolished by Bengal Act No. XIV of 1936 when these were found to be superfluous, duplicating the functions of the District Board. The District Board consisted mainly of nominated members with provision for some elected members. But till 1920 it was chaired by the District Magistrate. The District Board was a body-corporate with independent fund and a body of officers and staff, maintaining its autonomous entity, but due to lack of necessary fund and the over bearing attitude of the Government officers of the District administration, the scope of its functions and activities could not widen according to expectation. Union Committees consisted of five to nine elected members who in their turn elected one of them as Chairman, but provisions were also there in the Act for inclusion of members appointed by the Commissioner. Union Committees under this Act functioned uninterruptedly till 1919 when the Bengal Village Self Government Act (Act V of 1919) was made to re-organize these Committees. Under the new Act, the name of Union Committee was changed to Union Board but its basic structure remained practically unaltered except the provision that the one-third members would be nominated by the Government and two third would be elected by direct votes of the Union rate payees; these nine members elected any one of them as Chairman. The District Boards under Act III of 1885 and the Union Boards under Act V. of 1919 functioned without any break till 1959 when the Basic Democracies Order-PO 18 of 1959-was made and promulgated under the Martial Law Proclamation of 7 October 1958. As to the Municipal Committees, Act of 1884 was repealed by the Bengal Municipal Act, 1932 (Act XV of 1932) and the Municipal Committees, popularly known as municipalities, constituted under this Act continued till 1960 when the Municipal Administration Ordinance No. 10 of 1960 was made and promulgated under the same Martial Law Proclamation to govern this field.

14. Basic Democracies Order was intended to constitute “basic democratic institutions suitable to the genius of the people”. This Order re-organized the existing local bodies changing names of some of them, such as, District Boards were named District Councils, Union Boards were named Union Councils. Two new bodies were created-Thana Council for each Thana and Divisional Council for each Division. Excepting the Union Councils all other local bodies were constituted with official members, representative members and nominated members and the Chairman of these bodies were government officers or persons nominated by the Government who acted “during pleasure of the government”. As regards structure, function, fund, staff, there was hardly any difference between the new and the old ones. But increased powers and functions were given to the Union Councils-since these were considered to be the “base of democracy in the country”. In addition to functions as grass-root local bodies, members thereof were made the “constituency” for election of members of the National Parliament as well as of the President of the country. All these bodies functioned till Bangladesh achieved Independence from Pakistan in 1971-72.

15. Immediately after Independence the President made and promulgated the Bangladesh Local Councils and Municipal Committees (Dissolution and Administration) Order, 1972 (PO No. 7 1972) for dissolution of all the existing local government bodies. Dissolution of these bodies was found necessary because “they do not represent the people and there has been persistent demand from the people for their dissolution.” On the dissolution of these local bodies “Committees” were appointed for performing the functions of the defunct bodies. The Union Council was re-named as Union panchayat, the District Council was re-named as Zilla Board, Municipal Committee was re-named as Pourashava. No such “Committee” was however appointed in the case of the defunct Thana Councils and Divisional Councils. Assets and liabilities of Thana Council vested in the Zilla Board and those of the Divisional Council vested in the Government.

16. After six weeks, this legislation-PO No. 7 of 1972-was amended by PO No. 17 of 1972. By this Order the defunct Thana Council was brought back in the name and form of Thana Development Committee with considerably reduced powers and functions and it was further provided that “powers and functions of the Thana Development Committee” should be exercised and performed by the Circle Officer (Development). After about six months, PO No. 7 of 1972 was again amended, this time by PO No. 110 of 1972. It provided for appointment of an Administrator in place of a Committee for running the affairs of all the local bodies excepting the Divisional Council and the Union panchayat. In the case of a Thana Development Committee the Circle Officer (Development) became its Administrator. After about seven months, another President’s Order was made. It is Bangladesh Local Government (Union Parishad and Paurashava) Order 1973-PO No. 22 of 1973, dated 22 March 1973. It provided for election to and working of, Union Parishads and Paurashavas. By this time the Constitution of Bangladesh had been passed by Parliament with effect from 16 December 1972; but Parliament with new elected members did not yet come into session. Nevertheless, Preamble of PO No. 22 of 1973 referred to Article 59 of the Constitution stating that in view of this Article, which provides for local governments with elected persons, it was expedient to make this Order for “constitution of Union Parishads and Paurashavas and for matters connected therewith”. The Dhaka Paurashava was up-graded and made a Corporation, Dhaka Municipal Corporation, under Act No. 56 of 1974 with effect from 29 July, 1974. It provided for 72 Ward Commissioners, all elected, one Mayor and one Deputy Mayor, to be elected by these Ward Commissioners from among themselves.

17. The Constitution of Bangladesh was radically changed by Act No. 2 of 1975, known as the Fourth Amendment, with effect from 25 January 1975. In the amended Constitution Articles 59 and 60 were deleted and Article 11 was modified dropping the last sentence reading “and in which effective participation by the people through their elected representatives in administration at all levels shall be ensured”. But within about seven months from this Amendment, Martial Law was declared from 15 August 1975 and the position of the Constitution was made subordinate to the Martial Law Proclamations of 20 August 1975 and 7 November 1975. During this Martial Law regime two Local Government Ordinances were made. One is Thana Parishad Ordinance No. 32 of 1976 and the other is Local Government Ordinance No. 90 of 1976. By Ordinance No. 32 of 1976 Thana Development Committee was up-graded and renamed as Thana Parishad which was to consist of both representative members and official members under the Chairmanship of the Sub-divisional Officer. By the Ordinance No. 90 of 1976 all local bodies including the Thana Parishad were re-organised, re-constituted and re-named; the basic form and composition of the bodies practically remaining the same. The Thana Parishad, for the first time, was made a body-corporate with perpetual succession, common seal, right to hold and dispose of property, with its own fund and personnel. This structure of all local bodies including the Thana Parishad continued even after the lifting of Martial Law on and from 19 April 1979 from which date also the Constitution was revived by the Fifth Amendment. In the revived Constitution Articles 59 and 60 were not revived.

18. The Constitution was again suspended by Martial Law Proclamation of 24 March 1982 which remained in force till 11 November 1986. The Chief Martial Law Administrator, in pursuance of power and authority under the Proclamation of 24 March 1982, proceeded to decentralise the Government’s functions, re-organise the administration at Thana level and to create Local Government in the name of “Thana Parishad”. For that purpose the Martial Law Government adopted a Resolution on 1 October 1982. Under this Resolution a scheme of administrative re-organisation and creation of a Local Government at Thana level was drawn up. It provided for transfer of some powers and functions of the Government Departments at Thana level to the Thana Parishad and retention of the remaining powers and functions with Government. Government would retain the direct responsibility for “regulatory functions” including police, magistracy, civil and criminal justice, while the Thana Parishad would administer the “transferred subjects” including development, family planning, agriculture, fishery, livestock, etc. Until a Chairman was elected an Executive Officer of the Government, Thana Nirbahi Officer, higher in rank and position than other officers at the thana level, would perform the functions of the Chairman. Local Government (Thana Parishad and Thana Administration Re-organisation) Ordinance (No. 59 of 1983) came into effect from November 1982. This Ordinance was amended by Ordinance No. 33 of 1983, which simply replaced the words “Thana and Thana Parishad” by the words “Upazila and Upazila Parishad”. During the period from 1982 to 1991 some more developments in the field of local government institutions took place. Municipal Corporations were set up at three more cities- Chittagong, Rajshahi and Khulna; and for the three Hill Tract Districts, Rangamati, Khagrachari and Bandarban, Local Governments were established by separate Acts of Parliament in 1989.

19. Before we enter into the question as to repeal of the Ordinance No. 59 of 1982 we like to see what has been learnt from the two hundred years history of origin, growth and development of local government bodies in various forums and shades. The old Institutions like Municipal Committees, re-named as Paurashavas in urban areas, and District Boards/Zilla Parishads and Union Boards/Parishads in rural areas, have got their roots far deep into our society and people have been well acquainted with these institutions. These bodies made great contribution to the country’s democracy, which is now a basic structure of the Constitution. With the revival of the Constitutional backing for “Local Government” these old institutions cannot be abolished without damaging the democratic fabric of the country. Parliament, of course, has got power to keep watch over the working of these bodies and to make laws for making them more viable, strong and efficient and not to do away with them. During the British rule progress of these local government institutions was slow but nevertheless they were allowed to function uninterrupted, no matter with scanty resources and limited powers. But since Independence from the British rule, these institutions fell victim to party politics or evil designs of autocratic regimes, passed through the ordeal of supersession, dissolution or management of their affairs by official bureaucrats or henchmen nominated by Government of the day. “Local government” has no where been defined; it is meant for management of local affairs by locally elected persons. If government’s officers or their henchmen are brought to run these local bodies, there is no sense in retaining them as local government bodies. Autocratic regimes in the past, after abrogating or suspending the Constitution, which is the solemn expression of the people’s will, and destroying democracy in the sphere of national government, posed as ultra democratic in the sphere of local governments starting from grass-root level, replacing the old bodies with new ones terming them more democratic. But these measures hardly inspired confidence in people, who therefore got reasonable ground to say that such “democratic measures” are mere device to bluff the people of the country and leaders of the world. For, at the present state of civilization, autocrats and dictators, whether they are political leaders or military figures, are objects of ridicule and universal condemnation. An autocratic regime, though apparently strong, is very weak in spirit and stands alienated from people. But this alienation is fraught with mortal danger. So the autocrats and dictators seek some sort of political base, and for that purpose, rush to the village, union and thana to establish real democracy there.

20. In the long history of local government institutions as shown above, Thana Parishad/Thana Council is of recent development, from the days of basic democracies in 1959. Thana Parishad built up in haste in 1982 was given so much power, function and position that the totally inexperienced electied Chairman, even if he had all the honesty and sincerity, could not cope with the tremendous responsibility thrust upon him overnight. Again, as the local government at Thana was inextricably mixed up with the central government affairs, run entirely by the Government’s officers with governments money, it is in fact a hybrid of the two government entities. Anyway had this system of local government been worked out over a considerable period on the principle of “gradual development of self-governing institutions with a view to progressive realisation of responsible government”, then probably it would have been successful. But conceived in suspicion, born in stiff opposition and working through chaos and confusion, it was bound to end in disaster as many people had apprehended. We have been informed by the learned Attorney-General that the Government has set up a Ministerial Commission to examine and report on the local government bodies; now that Articles 59, 60, as well as Article 11, are in full force, any change in the local government scheme shall have to conform to the Constitutional provisions.

21. The Repeal Ordinance has been challenged mainly on the ground of its being inconsistent with Articles 9, 11 and 59 of the Constitution. Article 7(2) of the Constitution says that any law inconsistent with the Constitution shall be void. Learned Counsels for the appellants are seeking a declaration of nullity of the Repeal Ordinance on this ground. A law is inconsistent with another law if they cannot stand together at the same time while operating on the same field. Article 9 requires the State to encourage the local Government institutions but the Ordinance has abolished a local Government, namely the Upazila Parishad. Similarly, Article 11, they have pointed out, provides that the Republic shall be a democracy in which, among other things, “effective participation by the people in administration” at all levels shall be ensured; but the Ordinance has done away with such participation in the administration at the Upazila level. These two Articles as already quoted are Fundamental Principles of State Policy, but are not judicially enforceable. That is to say, if the State does not or cannot implement these principles the Court cannot compel the State to do so. The other such Fundamental Principles also stand on the same footing. Article 14 says that it shall be a fundamental responsibility of the State to emancipate the toiling masses-the peasants and workers-and backward sections of the people from all forms of exploitation. Article 15(a) says that it shall be a fundamental responsibility of the State to make provision of basic necessities of life including food, clothing, shelter, education and medical care for the people. Article 17 says that the State shall adopt effective measures for the purpose of establishing a uniform mass-oriented, and universal system of education extending free and compulsory education to all children, for removing illiteracy and so on. All these Principles of State Policy are, as Article 8(2) says, fundamental to the governance of the country, shall be applied by the State in the making of laws, shall be a guide to the interpretation of the Constitution and of other laws and shall form the basis of the work of the State and of its citizen, but “shall not be judicially enforceable”. The reason for not making these principles judicially enforceable is obvious. They are in the nature of People’s programme for socio-economic development of the country in peaceful manner, not overnight, but gradually. Implementation of these Programmes require resources, technical know-how and many other things including mass-education. Whether all these pre-requisites for a peaceful socio-economic revolution exist is for the State to decide.

22. Similar Principles of State Policy are there in the Indian Constitution also, wherein they are called Directive Principles of State Policy. Under Article 37 of the Indian Constitution the Directive Principles are also “fundamental in the governance of the country and it shall be the duty of the State to apply these Principles in making laws” but these principles shall not be enforceable by any court. The Indian Supreme Court in a number of cases including the case of Keshavanda Bharati ( : AIR 1973 SC 1461) and Deepchand Vs. State of Uttar Pradesh (AIR 1959 SC 664) have held that these principles are mere guide-lines for the State in the nature of moral precepts but are not laws to be binding upon the State. Some eminent Jurists like BN Raw and Alladi Krishnaswami and distinguished authors of books on Constitutional law, such as Seervai and Basu, have expressed almost the same view about the Directive Principles of State Policy.

23. Mr. Amirul Islam contends that Article 13 of the Indian Constitution, corresponding to Article 26 of our Constitution, makes any law inconsistent with any fundamental rights void; but in the Indian Constitution there is no provision like Article 7(2) of our Constitution. Article 7(2) makes void any law inconsistent with any provision of the Constitution besides the fundamental rights. It is true that Article 8(2) of our Constitution has been couched in stranger language than Article 37 of the Indian Constitution and that Article 7(2) has no corresponding Article in the Indian Constitution. But the basic position is the same in both the Constitutions-namely Principles of State Policy are not judicially enforceable. In view of this position the learned Attorney-General argues that the Court cannot declare any fundamental principle void on the ground of inconsistency with a fundamental principle for, in that case declaration of nullity of a law will result in implementation of the fundamental principle by the Court. Mr. Amirul Islam has tried to make a distinction between the concept of enforceability of a provision of the Constitution and the concept of inconsistency between a provision of the Constitution and another law and has contended that while the Court cannot enforce a fundamental principle, it can declare a law void on the ground of manifest inconsistence with any provision of the Constitution including a fundamental principle.

24. Supporting this view Dr. Kamal Hossain has argued that if a law is directly opposed to and negates any fundamental principle the Court has got power to declare the law void. He has referred to some of the fundamental principles and tried to show that flouting of these principles may be prevented by the Court by issuing appropriate directions. Learned Counsel has cited Article 18(2) which provides that the State shall adopt effective measures to “prevent prostitution and gambling” and contends that though the Court cannot direct the State to implement this principle, it can certainly declare a law void if the law provides for encouragement of prostitution and gambling. In support of this argument he has referred to certain decisions of the Indian Supreme Court, which despite the bar to judicial enforceability of directive principle, has issued appropriate directions to the Government to take positive action so as to remove the grievances of people caused by non-implementation of some Directive Principles.

25. In Comptroller and Auditor General Vs. Jagannath, AIR 1987 (SC) 537, Article46 was involved. It requires the State to” promote with special care economic and educational interest of weaker sections of the people”-particularly the Scheduled Caste and Schedule Tribes. Government issued instructions to provide adequate opportunity, special consideration and relaxation of qualification in the cases of candidates from weaker sections of the people for appointment as well as promotion in government services. The Office-Memo containing these Instructions was challenged under Article 226 on the ground of violation of Fundamental right as to equal opportunity for public service. The High Court, in spite of Article 37, which makes directive principles unenforceable, upheld the Office-Memo and dismissed the Writ Petition. In Mukesh Vs. State of Madhyapradesh, AIR 1985 (SC) 1363, Bonded Labour System (Abolition) Act, 1976 came up for consideration. It was a public interest litigation on the allegation that this law was not being implemented to stop exploitation of labour in stone quarries. The Supreme Court issued a direction for taking steps against exploitation of the workmen in the quarries. In Sheela Vs. State of Maharastra, : AIR 1983 SC 378, a petition of complaint of custodial violence to women prisoners in police custody came up before the Supreme Court, which then laid down certain guide-lines for ensuring protection against torture and mal-treatment to prisoners in police custody. Direction for legal aid, as provided in the directive principle under Article 39-A of the Constitution, was also issued by the Supreme Court. In Laxmi Kant Vs. Union of India,: AIR 1987 SC 232, the Supreme Court issued certain directions as to adoption of destitute and abandoned children keeping in view Articles 15 and 39(f) of the Constitution. In all these cases the State and other authorities concerned were themselves proceeding to make necessary legislation for implementing the directive principles, and in some cases they issued directions to appropriate persons to take necessary action. In some of these cases as cited above the authorities, instead of opposing the writ petitions, sought necessary instructions and directions from the Court. In those cases no law was made in contravention of any directive principles and as such there was no occasion for the Court to declare any such law void.

26. Articles 59 and 60 of our Constitution are judicially enforceable, and it has been argued from the bar that the Repeal Ordinance has contravened the provisions of these Articles by abolishing the Upazila Parishad, a local government. Article 59, as already quoted, provides that “local government” in every administrative unit shall be entrusted to bodies composed of elected representatives of the people and such bodies shall perform such functions as are prescribed by Act of Parliament Article 60 provides that Parliament shall by law confer necessary powers upon local bodies including power of imposing taxes to give effect to the provisions of Article 59. It is, therefore, clear that Article 60 is a corollary to Article 59. Learned Attorney-General however contends that Article 59 will come into play only when the State has established a local government in pursuance of Article 9 containing a fundamental principle the implementation of which is not mandatory as already shown. Secondly, he says, there is no constitutional mandate upon the State to establish local government in every tier of the administration. Local government, it is pointed out, is to be established in every administrative unit; the Upazila, he contends, is not an administrative unit for the purpose of Article 59. Learned Attorney General has referred to Article 152(1) which defines “an administrative unit” and has contended that it is for the Parliament to designate what “area” is an administrative unit. In the case of an Upazila Parishad, he has pointed out, the Upazila has not been designated as an administrative unit and as such the provisions of Article 59 are not attracted to an Upazila Parishad.

27. Article 152(1), already quoted, has given a particular meaning of “administrative unit”. It means “a district or other area designated by law for the purposes of Article 59”. Local government in every administrative unit, therefore, means a local government either in a district or in any other area specifically designated by law. Learned Attorney-General’s contention is that for the purpose of establishing a Local Government in a district, the district should also be designated as an administrative unit. Mr. Ishtiaq Ahmed differs from this view and argues that as a ‘district’ has been specifically included in the definition of “administrative unit”, no separate designation is necessary for setting up a local government there. He further contends that as upazilas, unions and municipalities are within the territorial ‘limit’ of a district, no separate designation of these areas also is necessary for establishing local governments there. He has tried to argue that if any local government is to be established in an area involving more than one district, then only a designation of that area as an administrative unit will be necessary.

28. For true construction of Article 152(1) defining an ‘administrative unit’ the primary rule of construction will be sufficient in this case. It is the words used in this Article which will give its meaning. The words in this Article are simple, clear and unambiguous, and on reading these words together a definite meaning emerges. For the purpose of finding out the legislative intention behind this provision no further effort need be made. In this Article the words “district or any other area” are to be read conjunctively, and if it is done, a “district” is found to be an administrative unit, and for the purpose of Article 59, that is to say, for establishing a Local Government mere, no designation by law is necessary. But as regards “any other area” it will be an “administrative unit” only if it is specifically designated as such by law.

29. Immediately after the coming into force of the Constitution in 1972, Local Government (Union Parishads and Paurashavas) Order-PO No. 22 of 1973 was made; and though its Preamble made a passing reference to Article 59, this Order did not designate the unions and municipalities as administrative units. But within two months, PO No. 22 of 1973 was amended by the Local Government (Union Parishads and Parashavas) (Amendment) Act 1973-Act No. IX of 1973- which inserted Article 2C in the parent Order. Article 2C reads thus:

2C. Unions and Municipalities shall be administrative units within their respective areas for the purposes of Article 59 of the Constitution of the People’s Republic of Bangladesh.

30. Thus the amended Local Government (Union Parishad and Paurashava) Order 1973 puts at rest the controversy as to whether designation by law of an area other than a district is necessary for the purpose of Article 59. It is unfortunate that this important legislation-Act IX of 1973-escaped the notice of learned counsels for both the parties to these appeals. This amendment by Act IX of 1973 fulfilled one of the requirements for a local body to be a local government. Another constitutional requirement was fulfilled at the time of making of PO No. 22 of 1973. It was that a local body “shall be composed or elected representatives of people of the area concerned. Within a year of Act IX of 1973 being passed, the Constitutional provision for Local Government including Article 59 was deleted by the Fourth Amendment and this omission continued till September 1991 when the previous provision was revived by the Twelfth Amendment. During this long gap of time local governments in various forms and names were constituted, re-constituted, abolished or revived by or under the authority of Martial Laws. The question of bringing these bodies in conformity with Articles 59, 60 or 152(1) did not arise during this period. Now that these provisions of the Constitution are back all local bodies shall have to fulfil these constitutional requirements.

31. Learned Attorney-General has contended that the Legislature may, without fulfilling the requirements of the Constitution, such as in Articles 152(1) and 59, establish local governments in exercise of its plenary power of law-making under Article 65. If so, there will be two classes of local governments in the country; one under the ordinary law and the other under the Constitution. This will lead to a situation not contemplated by the Constitution. When the Constitution has made specific provisions as to Local Government, only those provisions shall have to be followed and complied with. Secondly, administration of local governments which are not sanctioned by or are outside the ambit of the Constitution will come within the mischief of Article 7(1) of the Constitution. This Article says “All powers in the Republic belong to the people, and their exercise on behalf of the people shall be effected only under, and by the authority of this Constitution”.

32. Another ground of attack on the impugned Ordinance is that it is ultra vires the President’s power under Article 93 of the Constitution. Dr. Kamal Hossain has contended that a vital aspect of the structure of governance cannot be made by an Ordinance circumventing the Parliament. He has further argued that the Constitution envisages law-making to be done by Parliament following consultations, deliberations, debate and discussions in such matters of national importance. Learned Counsel has pointed out mat the Ordinance was made in an unusual hurry just twentyone days before the Parliament was called into session. Referring to Article 93 he has said that the Government failed to present any credible facts to show that circumstances existed which rendered immediate action necessary for making this Ordinance. It has been also contended that when the Upazila system had been working for a considerable time, and when Parliament was also about to go into session, promulgation of the Ordinance in a hurry betrayed the political motive of the Party-Government, on whose advice the President made the Ordinance. It has been contended that most of the Upazila Parishads after the latest election, were dominated by Chairmen who belonged to or supported the view of the Opposition-Political parties and that to get rid of those elected persons the impugned Ordinance was made. In other words, mala fide intention is sought to be attributed to the Government. But question of intention of the law making authority, whether the President in the case of an Ordinance, or the Parliament in the case of enacting a legislation, is irrelevant if they got power to make Ordinance or Act on a given subject This position of law is also not disputed by the learned Counsels for the appellants.

33. Learned Attorney-General has tried to refute all these contentions saying that the President was satisfied that circumstances had existed which rendered immediate action necessary to make and promulgate the Ordinance when it was found that the system of Upazila Parishads was not working properly but it became a heavy drain on the National Exchequer. He has argued further that these reasons for abolition of the Parishads could not be disputed by the appellants. As to President’s “satisfaction” whether circumstances exist for taking immediate action under Article 93, learned Attorney-General does not dispute that such satisfaction of the President is not totally excluded from judicial scrutiny. In an Indian case also (AK Roy Vs. Union of India- : AIR 1982 SC 710) it has been held that President’s satisfaction about the existence of circumstances requiring immediate action to make an Ordinance under Article 123 of their Constitution may be reviewed by the Court. Secondly, learned Attorney-General has added, as required by Article 93(2) of the Constitution, the Ordinance was laid before Parliament at its first meeting following the Promulgation of the Ordinance and was approved of and made an Act of Parliament within the prescribed time. In these circumstances, we find that this ground for assailing the Ordinance is no longer available to the appellants.

34. Lastly, the Repeal Ordinance, now the Repeal Act, has been attacked on a ground which was not urged before the High Court Division. Mr. Ishtiaq Ahmed who has taken this ground contends that the Repeal Act is a colourable legislation in mat “in form it is a Repeal Act, but in substance it continued the Upazila Parishads and vests the rights, powers, authorities and privileges of the Parishads in the Government”. He has referred to Article 59 which requires that the Upazila Parishad shall be composed of elected persons, and to Article 60, which requires the Parliament to confer necessary powers including the power to impose taxes for local purposes upon the local bodies, but the Repeal Act, in the guise of abolition of the Parishads, has in fact retained them so that their functions can be performed by government through their officers. If this contention is correct and the Upazila Parishads are still functioning through Government Officers, then the Act will not only be a colourable legislation, but it will be a fraud on the Constitution, in which case we shall have no hesitation to declare it void. Learned Attorney-General has stoutly denied that the Parishads have been retained in a covert manner.

35. The question of colourable legislation arises when a thing which cannot be done directly is sought to be done indirectly. A thing is colourable which exists in appearance and not in reality. It is “what it purports to be”. Colourability is linked up with incompetency, that is, an authority doing a thing which he got no power to do. “Colourable” is not tainted with bad faith; it is just lack of jurisdiction. In other words, in the case of ‘law-making, the doctrine of colourable legislation does not involve any question of bonafide on the part of the legislature. If the legislature is competent to pass a particular law, the motives which impelled it to act are really irrelevant. As stated in Cooleys’ Constitutional Limitations, “whether a statute is constitutional or not is always a question of power”. Learned Attorney-General has in this connection referred to a few Indian cases including KG Narayan Deo Vs. State of Orissa, AIR (1953), SC 379.

36. In modern Constitutions State powers are distributed among the three Organs or Departments of Government. Legislature is one of the three organs. It is assigned the legislative powers which are clearly demarcated and it has to act within its own field and cannot transgress the limits set by the Constitutional provisions. If the Legislature transgresses the limits, it may be stopped and the transgression may be declared a nullity by the Judiciary-another State Organ. The transgression may be “patent, manifest or direct”; it may also be “disguised, covert and indirect”. This latter class of transgressions is expressed as colourable legislation in judicial pronouncements. Elaborating this doctrine Duff-J made the following observation in Attorney General for Ontario Vs. Reciprocal Insurers, 1924 AC 328:

Where the law making authority is of a limited or qualified character it may be necessary to examine with some strictness the substance of the legislation for the purpose of determining what is that the legislature is really doing.

It is, therefore, the substance of a law and not its form that matters. If the subject-matter of a law in substance is something which is beyond the Legislature’s power to legislate upon, its outward form cannot save it from the mischief of judicial review. In such cases investigation may be held to find out whether what has been made is in fact within the power of the Legislature. For the purpose of this investigation. Court can examine the effect of the legislation and take into consideration its object, purpose and design. (Attorney General for Alberta Vs. Attorney General for Canada, 1939 AC 117).

37. Reading the Repeal Act as a whole we find that it has repealed the Upazila Parishad Ordinance (No. 59 of 1982) and abolished the Upazila Parishads created thereunder. Consequent on the abolition of the Parishads certain provisions were also made in the Repeal Act, such as, assets of the Parishads shall vest in the Government who shall also accept the liabilities of the Parishads; litigations filed by and against the parishads and pending at the time of the Repeal Act shall be regarded as litigations filed by and against the government; officers and employees of the Parishads shall stand transferred to the Government, etc, We do not find any wrong in these provisions made consequent to the repeal of the parent law. The observation made by one of the two learned Judges of the High Court Division that the assets of one abolished local body can be vested only in another local body and not in the Government is not correct. Mr. Ishtiaq Ahmed, however, contends that “if only the rights, powers authorities and privileges accrued or acquired before the abolition of the Parishads were intended to be vested in the government, men a language similar to section 6(c) of the General Clauses Act ought to have been used; but the language of sec. 2(2)(kha) of the Repeal Act cannot be construed to limit the vesting to accrued or acquired “rights, powers, authorities and privileges”. In fact the legislative intent behind the repeal, he concludes, is to provide for continued functioning of the abolished Parishads under the administrative direction of the government. Learned Counsel has in this connection referred to two executive Instructions of the government to the Upazila Nirbahi Officers which tend to show that the Government officers are continuing the functions of the abolished Parishads.

38. Learned Attorney-General, refuting this contention, has referred to about a dozen Executive Instructions of the Government issued to the Upazila Nirbahi Officers and other officers posted in the Upazila head-quarters to show that the Upazila Parishads as “body corporate” have been totally abolished, that all officers and employees of the Parishads, who were in fact officers and employees of the Government but were “deemed to be on deputation to the Parishads” have been reverted to their respective Ministries, Departments and Directorates and are now working directly under their immediate superiors posted at the District Head-quarters, drawing their salaries from the budgetary allocations of the respective Ministries. He has explained that in the transition period, the Upazila Nirbahi Officer, who is the senior most among officers of the government posted to the Upazila administration has been directed by the government to coordinate and supervise the various functions and affairs of the government consequent on the abolition of the Parishad. The Nirbahi Officer, along with officers of other Government Departments, has been running the affairs of Government and not of any corporate body like the defunct Parishad.

39. It appears to us that the legislative drafting of section 2(2)(kha), particularly the words in Bengali “rights, powers, authorities and privileges of the abolished Parishads” has apparently created an impression that those attributes of the Parishads have remained to be enjoyed by the Government. If these words are deleted then no confusion will be left. Upon consideration of the entire Repeal Act we do not find any substance in the contention that it is a colourable legislation. While dealing with the question as to whether the Upazila is an administrative unit we have found that it is not, and as such, an essential constitutional requirement for the Upazila Parishad to be a local government is not fulfilled. We have also found that the Upazila Parishad is not also wholly an elected body. This Parishad is therefore not a local government under the Constitution. Abolition of such a body violates no provision of the Constitution so as to attract the relief under Article 102 of the Constitution.

40. In view of the discussions above it is decided as follows:

i) On construction of Articles 59 and 60, read with Articles 9 and 11 of the Constitution and considering the origin, growth and development of Local Government Institutions at different levels of the Administration over one and a half centuries, it is found that Local Government is an integral part of the democratic polity of the country. The system of Local Government Institutions may be altered, re-organised or re-structured, and their powers and functions may be enlarged or curtailed by Act of Parliament, but the system as a whole cannot be abolished.

ii) For an Institution to be a Local Government under the Constitution, two requirements are to be fulfilled. One is that a Local Government is constituted in an “administrative unit”, and the other is that the Local Government is entrusted to a body composed of elected persons.

iii) An “administrative unit”, as defined in Article 152(1), is a “district or other area designated by law for the purposes of Article 59”. In the case of a district, no designation is necessary, but it is necessary in all other cases as was done in the case of unions and municipalities by Act IX of 1973-The Bangladesh Local Government (Union Parishad and Paurashava) (Amendment) Act, 1973 before deletion of Articles 59 and 60 by Act II of 1975.

iv) An Upazila Parishad established by Ordinance No. 59 of 1982, as it stood amended by Ordinance No. 33 of 1983, is not a Local Government within the meaning of Article 59. This Parishad has been lawfully abolished by the impugned Ordinance No. 37 of 1991, which has been later on made an Act, Act No. 2 of 1992. These are valid laws and not ultra vires the Constitution except the words “অধিকার, ক্ষমতা, কর্তৃত্ব, সুবিধাদি” in sub-section (2) Kha) of section 2 of the said Ordinance/Act.

v) But there are other local bodies constituted by, and functioning, under different statutes. 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, these local bodies shall have to be updated in conformity with Articles 59 and 60, read with Article 152(1) for the lawful functioning of the said local bodies. The areas in which these bodies other than the Zilla Parishads have been constituted shall have to be designated as administrative units by amending these statutes. Designation afresh of the unions and municipalities is also necessary in view of the fact that Act No. IX of 1973, along with the President’s Order No. 22 of 1973, was itself repealed by Ordinance No. XC of 1976-Local Government Ordinance 1976 in the case of Unions and by Paurashava Ordinance, 1977-Ordinance No. XXVI of 1977-in the case of municipalities. Required designations by amending the relevant statutes with effect from the date on which the Twelfth Amendment of the Constitution was made should be provided as soon as possible-in any case within a period not exceeding four months from date.

vi) The other constitutional requirement for these local bodies is that they shall be entrusted to bodies “composed of persons elected in accordance with law”. The existing local bodies are, therefore, 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-in any case within a period not exceeding six months from date. In the suggested amending statutes, all actions taken by the local bodies concerned since 18 September 1991 should be ratified.

In the result, both the appeals are dismissed without any cost. The leave petition is also dismissed.

41. Upazila Parishad, a tier of local Government at the upazila/thana level has been abolished by the impugned legislation, namely, the Local Government (Upazila Parishad and Upazila Administration Re-organisation) (Repeal) Ordinance, 1991 (Ordinance No. 37 of 1991), subsequently made into an Act, Act No. 2 of 1992. This repealing Ordinance/Act indeed repealed the Local Government (Upazila Parishad and Upazila Administration Re-organisation) Ordinance, 1982 (LIX of 1982) under which the administration at the thana/later on called, Upazila level was re-organised and Upazila Parishad constituted.

42. The repealed Ordinance is a relic of the erstwhile Martial Law regime and so is the abolished local Government i.e., Upazila Parishad. It may be of some interest to reflect that the precursor of the Upazila Parishad was Thana Council which again was conceived during a Martial Law period and constituted under the Basic Democracies Order, 1959 promulgated by Field Marshal Mohammad Ayub Khan. It is of historical importance which should be mentioned that in the history of the evolution of local Government in this country over a period of more than a century and half which has been minutely delineated in the judgment of the learned Chief Justice there had never been a local Government at the thana level until it was introduced during the first Martial Law period in the then Pakistan as mentioned above. This local Government tier is thus a by-product of the Martial Law era.

43. Now, a democratically elected Government has done away with this tier upon finding that “the Upazila system itself was liable for drainage of Government money in unproductive activities which negated the welfare of the people and the Upazila Parishads were not economically viable as they were more dependant on Government allocation rather than earning revenue from their own sources” (vide affidavit-in-opposition of the respondents). In a further affidavit before this court it has been stated that after the enactment of the repealing Ordinance on 23.11.1991, a high level Local Government Review Commission was constituted by the Government to review and study the local government of Bangladesh and recommend a suitable, effective, responsible and accountable Local Government structure for Bangladesh.

44. It has been rightly asserted by the respondents, and no learned Counsel has disputed it, that the constitution of Local Government bodies and the tiers thereof have undergone changes from time to time since the Bengal Local Self Government Act, 1885 (Bengal Act III of 1885) was enacted, that such changes were made in exercise of Law-making power either by Act or by Ordinance or by President’s Order and that thus the constitution and the tiers of local Government bodies were always dependent on the policy of the respective Governments of the day.

45. The question of vires of the impugned Ordinance/Act was raised on the ground of inconsistency mainly with Articles 9, 11, 59 and 60 of the Constitution. Article 9 which provides that the State shall encourage local Government institutions composed of representatives of the areas concerned etc, it is interesting to note, was not there in the original constitution but was again a contribution of a Martial Law regime, the same having been incorporated by Proclamations Order No. 1 of 1977. Articles 59 and 60 and later part of Article 11 which speak of Local Government and peoples’ participation in administration, although there in the original Constitution, were deleted with effect from 25 January 1975 by Act no II of 1975 (Fourth Amendment) and they remained in exile until brought back by Act No. XXVIII of 1991 (Twelfth Amendment) with affect from 18.9.91.

46. In this background, we were called upon to consider the challenge as to the vires of the impugned Ordinance/Act made by Mr. Amirul Islam and Dr. Kamal Hossain. Syed Ishtiaq Ahmed, learned counsel for one of the appellants, however, did not impugn the Ordinance/Act wholesale. He frankly submitted that the repealing Ordinance/Act would have been unexceptionable if only the অধিকার, ক্ষমতা,

কর্তৃত্ব, ও সুবিধাদি of the বিলুপ্ত উপজেলা পরিষদ were not vested in the Government as provided in section 2 (2)(Kha) thereof. He conceded that the Government’s power to reorganise, re-structure and re-model the local Government institutions in the light of current experience and needs of the society cannot be disputed and to that end the abolition of a tier of local Government (here Upazila Parishad) cannot be said to offend any provision of the Constitution. If it were a repeal simpliciter of the (repealed) Upazila Ordinance (LIX of 1982) without the aforesaid offending provision, there would have been no valid cause of action for the appellants, Mr. Ahmed submitted.

47. I would like to record my appreciation for the fair and bold stand taken by Mr. Ahmed. Indeed he has summed up the position in law correctly.

48. As to his submission that by the aforesaid provision in section 2(2)(Kha), there was a covert attempt to continue the Upazila Parishad through the Government servants in violation of the mandate in Article 59 that local Government should be entrusted to elected bodies, even though the repealing Ordinance/Act professed merely to abolish the Upazila Parishad and thus the same was a colourable legislation. I think there is not much to add after what has been stated in the judgments of the learned Chief Justice and Mustafa Kamal J. Mr. Ahmed is right in his contention that the provisions of Articles 59 and 60 are limitations on the plenary legislative power of the Parliament in the field of Local Government.

49. The contention of the learned Attorney-General that the Legislature may without designating an area as an administrative unit for the purpose of Article 59 in exercise of its plenary legislative power (Article 65) establish local Government is mischievous as it would amount to defying the mandate of Articles 59 and 60 which cannot be permitted. The argument, therefore, must be rejected.

50. The vesting of অধিকার, ক্ষমতা etc. of the বিলুপ্ত উপজেলা পরিষদ in the Government as provided in section 2(2)(Kha) of the repealing Ordinance/Act was apparently made as the draftsman blindly followed and copied the usual sections in case of a repeal without understanding that in the present case mere was no successor local Government to be vested with the powers, etc. of the abolished local Government. A reference to section 66 of the repealed Upazila Ordinance (LIX of 1982) will show that after abolition of the Thana Parishad, provision was made in sub-section 2(b) that “all assets, rights, powers, authorities and privileges, and all property………………………of the abolished Parishad………………shall stand transferred to and vest in the (Upazila) Parishad”. In contrast it will be seen that when the Thana Council was dissolved under PO No. 7 of 1972 and no provision was made for any kind of local Government at that level it was only provided in Article 5(b) thereof that “the assets and liabilities of a dissolved Thana Council shall vest in the Zilla Board concerned and the employees of such Thana Council shall be deemed to be the employees of such Zilla Board”.

51. There was no necessity of vesting in the Government the rights, powers, authorities and privileges of the abolished Upazila Parishad and it clearly shows a lack of understanding of the powers of the Central Government vis-a-vis a Local Government William Valenta in his book, “Local Government Law (American case book series) page 2 points out that “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” Indeed the purpose of the repealed Ordinance was to transfer some powers and functions of the Government to the Upazila Parishads. These were called “transferred subjects”. When the Upazila Parishad was abolished by the repealing Ordinance/ Act, a fortiori, those subjects reverted back to the Government and the whole field came to be occupied by it.

52. As to the larger question raised by the other learned Counsels, Mr. Islam and Dr. Hossain, that the repealing Ordinance/Act is ultra vires the Constitution being inconsistent with Articles 9, 11, 59 and 60, it has been concurrently found by the learned Chief Justice and Mustafa Kamal J., with which I agree, that the Upazila Parishad not being a local Government within the meaning of Article 59, the abolition of such a body violates no provision of the Constitution. I would add that even if it were a local Government in terms of Article 59 even then the abolition thereof in the circumstances and as averred by the Government cannot be said to be violative of any provision of the Constitution. Upazila Parishad may not have been local Government strictly in terms of Article 59 but then it cannot be denied that it has all the attributes of a local Government. Mr. Amirul Islam laid great emphasis on the long historical background of the evolution and existence of local Government in the body polity of this country to impress upon us that the Constitution in its various provisions not only recognised this historical fact but also recommended for establishment of local Government as a part of the democratic fabric of the State.

53. Accepting that the Upazila Parishad was a local Government and the Constitution provides for promotion of such local Government, can it be said that the abolition thereof has offended any provision of the Constitution. In the beginning of this judgment it has been noticed that the tiers of local Government had never been static and the Constitution and tiers of local Government depended on the legislative policy of the Government in office. It has also been noticed that the Government found the Upazila system not a viable one and set up a high level review commission to recommend a suitable, effective, responsible and accountable local Government structure for Bangladesh. Therefore, it may be said that by enacting the repealing Ordinance /Act, the Government has taken one step backward only to take more worthy steps (as professed) forward in the matter of local Government As far as the policy behind such move is concerned, it cannot be disputed that the same cannot be a matter for the Court to enter into. The system of local Government as such has not been done away with for good but a review has been undertaken to evolve a better system dismantling a tier at the thana level. I do not see therefore how it is inconsistent with Article 9. As for inconsistency with Article 11 that the repealing Ordinance/Act has denied participation by the people through their elected representatives in the Upazila Administration, the question does not arise because the Upazila (as an administrative unit) itself has been abolished and thus there cannot be any participation by the people in the administration qua the Upazila.

54. There is no mandate in Article 59 that the legislature must designate any particular area as an administrative unit for the purpose of Article 59 or that the legislature must maintain a tier of local Government at the Thana level or in any particular area. There is no constitutional limitation in Article 59 that the legislature cannot abolish a local government of a particular tier if it is considered necessary. It cannot be disputed that the legislature has plenary power to repeal any law including one dealing with local Government. Thus viewed I do not find any inconsistency with any provision of the Constitution.

55. Naimuddin J. in his judgment found that the Upazila Parishad was not a local Government institution within the meaning of Articles 59 and 9 of the Constitution and as such Article 9 cannot be invoked for declaring the repealing Ordinance/Act void under Article 7(2) on the ground of inconsistency with Article 9. He has not also found that the impugned Ordinance/Act is in conflict with any other provision of Part II of the Constitution containing Fundamental Principles of State Policy. That being so, it was wholly unnecessary to decide whether in view of the Provision in sub-article (2) of Article 8 that the principles set out in Part II shall not be judicially enforceable, any legislative act which is in direct conflict with and passed in flagrant violation of the provisions of Part II can be declared void under Article 7(2). Having answered this hypothetical question in the affirmative after taking hypothetical facts into consideration in a lengthy discussion, the learned Judge addressed himself to the real question thus;

Consequently, if it is found that the impugned repealing Ordinance is violative of Article 9 of the Constitution it is liable to be struck down as void in view of Article 7(2) of the Constitution.

56. Then the finding was made that the repealing Ordinance was not violative of Article 9 with which we have agreed. Therefore the broad decision that a law can be declared void in case of a conflict with any provision of Part II of the Constitution was uncalled for and made on hypothetical facts. This, as a rule, the Courts always abhor. The Court does not answer merely academic question but confines itself only to the point/points which are strictly necessary to be decided for the disposal of the matter before it. This should be more so when Constitutional questions are involved and the Court should be ever discreet in such matters. Unlike a civil suit, the practice in Constitutional cases has always been that if the matter can be decided by deciding one issue only no other point need be decided.

Finally, I wish to express my full agreement with the main judgment prepared by the learned Chief Justice.

57. The debate centered round a repealing legislation-Ordinance No. XXXVII of 1991-shortly the Repealing Ordinance, later on made an Act-Act No. II of 1992, shortly the Repealing Act. The repealed legislation is Ordinance No. LIX of 1982, shortly the Repealed Ordinance.

Three broad questions, the first

(i) Is the Repealing Ordinance/Act wholly or in part inconsistent with Articles 59 and 60 of the Constitution and is thus void either wholly or to the extent of the inconsistency under Article 7(2) of the Constitution?

58. Mr. Amirul Islam argued that the Repealing Ordinance/Act in its totality is inconsistent with Articles 59 and 60 of the Constitution. It destroys the elected part of the body. The Upazila exists as a territorial unit, a unit of administration. But the powers, authority, functions and privileges of dissolved Upazila Parishad are vested in the Government. In the garb of a repeal, it is a re-enactment and recreation of a local government to be run by an unrepresentative body. Mr. Syed Ishtiaq Ahmed submitted that only the words “অধিকার, ক্ষমতা, কর্তৃত্ব ও সুবিধাদি” occurring in sub-section (2) (খ) of section 2 of the Repealing Ordinance/Act is inconsistent with Articles 59 and 60. He submits that if only the rights, powers, authorities and privileges accrued or acquired before the abolition of Upazila Parishad were intended to be vested in the Government, then a language similar to section 8(c) of the General Clauses Act ought to have been used. But the vesting in section 2(2) (খ) goes much beyond accrued or acquired rights. The Repealing Ordinance continues the functioning of the abolished Parishads under the administrative directions of the Government. It is thus a colourable piece of legislation. The learned Attorney-General replied that the Repealed Ordinance/Act was not a Local Government within the meaning of Article 59 as Upazila was not designated as an administrative unit for the purposes of Article 59 and so its abolition by the Repealing Ordinance/Act is not inconsistent with the provisions of Articles 59 and 60. He further submits that both the intention and working of the Repealed Ordinance are the abolition of Upazila system altogether and so the question of colourable legislation does not arise.

The second question

(ii) Is the Repealing Ordinance/Act inconsistent with Articles 9 and 11 of the Constitution and if so, can it be declared void on that ground under Article 7(2) of the Constitution?

59. Mr. Amirul Islam submitted that the Repealing Ordinance/Act is liable to be declared void wholly, first, for being violative of the Preamble of the Constitution and secondly, for being inconsistent with Articles 9 and 11. He submits that the Fundamental Principles of State Policy may not be “judicially enforceable” but inconsistency therewith renders a law liable to be declared void under Article 7(2), there being a distinction between “enforceability” and “inconsistency”. Dr. Kamal Hossain submits that a law which negates a clear directive of the Fundamental Principles of State Policy is liable to be declared void as being inconsistent with the Constitution. The learned Attorney-General submits that a law is not liable to be declared void on the ground of inconsistency with the Fundamental Principles of State Policy, that Article 8(2) of the Constitution is an exception to Article 7(2) and that to declare a law as void is another way of enforcing a different state of things so that there is no real distinction between “enforceability” and “inconsistency”.

The third question

(iii) Was the Repealing Ordinance/Act validly passed under the Ordinance-making power of the President under Article 93 of the Constitution?

60. Dr. Kamal Hossain submits that the Repealing Ordinance/Act is ultra vires the President and unconstitutional since Article 93 did not empower the making of the impugned Ordinance for the following reasons:

(a) An organic law providing for a vital aspect of the structure of Government cannot be made by an Ordinance, circumventing the Parliament;

(b) No facts have been presented by the Government to show that circumstances existed which rendered immediate legislation necessary;

(c) The Repealing Ordinance has circumvented the law-making procedure of the Parliament.

61. The learned Attorney-General replied that the appellants have not been able to lay any acceptable foundation to hold that no satisfaction existed for promulgating the Ordinance. Since the Repealing Ordinance has been enacted into a Repealing Act, this submission has lost its validity, he further submits.

62. On the first question:

Articles 9, 11, 59 and 60 of the Constitution are unique and several conclusions can be drawn from them:

First, the constitutional provisions on local government, namely, Articles 9, 11, 59 and 60 mark out the Constitution of Bangladesh as clearly distinctive from other Constitutions of the world. No Constitution contains any definitive provision on local government. In England the local government units, unlike the central government, are not products of constitutional design, but of historical development. Same is the case in the USA and India. In this sub-continent too local government developed along historical lines without following any constitutional pattern. It is the Constitution of Bangladesh which for the first time devised an integrated scheme of local government within a constitutional pattern. This is a most distinctive and unique feature of the Constitution of Bangladesh.

63. Secondly, the words “Local Government have not been defined in the Constitution, nor does the Constitution require any organ of the State to create a new a local government, as it does in respect of a President-“There shall be a President of Bangladesh………..” (Article 48), or a Parliament – “There shall be a Parliament for Bangladesh……..” (Article 65) or a Supreme Court-“There shall be a Supreme Court of Bangladesh……………………….” (Article 94) etc. In the absence of any definition and in the absence of any directive to create a local government afresh, the Constitution will be presumed to have referred to the already-known concept and institution of and the existing legislations on local government. Local government, as a concept and as an institution, was already known to have possessed certain common characteristics, namely, local elections, procedure for public accountability, independent and substantial sources of income, clear areas for independent action and certainty of powers and duties and the conditions under which they would be exercised. On the date of coming into force of the Constitution, there were 3 statutes on local government viz, PO No. 7 of 1972, as amended up-to-date and so much of the Basic Democracies Order, 1959 and the Municipal Administration Ordinance, 1960 which were not inconsistent with PO No. 7 of 1972. So far as those prevalent legislations are concerned, Article 149 of the Constitution provided as follows:

149. Subject to the provisions of this Constitution all existing laws shall continue to have effect but may be amended or repealed by law made under this Constitution.

Article 152(1) defined “existing law” as follows:

existing law” means any law in force in, or in any part of, the territory of Bangladesh immediately before the commencement of this Constitution, whether or not it has been brought into operation;

64. If Articles 59 and 60 are read with Article 149 and Article 152(1) as above, it clearly means that all existing laws on local government, if they are meant to be continued, have to be brought in conformity with Articles 11, 59 and 60 of the Constitution so that the laws may operate “subject to the Constitution”, or else those parts of the existing laws on local government which are specifically inconsistent with Articles 59 and 60 stand the risk of being declared void under Article 7(2).

65. Thirdly, to the extent that Articles 59 and 60 prescribe manner and method of establishing local government, its composition, powers and functions including power of local taxation, the plenary legislative power of Parliament to enact laws on local government is restricted pro tanto. The learned Attorney-General submits that the plenary power still remains unaffected. I cannot conceive of a local government existing in terms of Articles 59 and 60 and another outside of it That will make a mockery of Articles 59 and 60 and will be in direct conflict with Article 7(1) of the Constitution, namely, “All powers in the Republic belong to the people, and their exercise on behalf of the people shall be effected only under, and by the authority of, this Constitution”. If Parliament has to pass a local government legislation, it has to conform to Articles 59 and 60, read with Article 152(1). With Articles 59 and 60 in the Constitution local government legislation became very much a subject-matter of legislation within the terms of the Constitution. Parliament is not free to legislate on local government ignoring Articles 59 and 60.

66. After the Constitution (Fourth Amendment) Act, 1975, passed on 25.1.75, deleted Chapter III of Part IV, and omitted the words “and in which effective participation by the people through their elected representatives in administration at all levels shall be ensured” from Article 11, local government legislation was relegated to the realm of ordinary legislation unrelated to constitutional provisions and its fate was left to historical development as in other countries. From its high pedestal of being a legislation within a constitutional mandate, local government legislation became a subject-matter of wanton experimentation. With the restoration of Articles 59 and 60 and the omitted portion of Article 11 by the Constitution (Twelfth Amendment) Act, 1991 on 18.9.91, the constitutional position is now the same as when the Constitution of Bangladesh came into force on 16.12.72. All existing local government legislations must conform to Articles 59 and 60 with effect from 18.9.91, or else those parts of them which are inconsistent with Articles 59 and 60 stand the risk of being declared void under Article 7(2).

67. Fourthly, the first step that has to be taken to bring a local government law in conformity with Article 59 is that Parliament will have to designate by law administrative units of the Republic where it will either continue the existing local government institutions or create new ones. The term “administrative unit” is a term of the Constitution having a definite meaning in Article 152(1). A designation by law for the purposes of Article 59 is necessary in order to create an “administrative unit”. But after designating an area as an “administrative unit”, Parliament is not obliged to set up a local government therein. The Constitution does not mandatorily require Parliament to do so. It does not say “There shall be a Local Government in every administrative unit of the Republic”. Article 59 only says, “Local Government in very administrative unit of the Republic” i.e., if and when a local government is set up in an administrative unit Article 59 does not mean conversely that local government in areas which are not designated as administrative units may be entrusted to bodies composed of persons to be decided by Parliament, elected or nominated. That will be colourable legislation.

68. Fifthly, from a combined reading of the Preamble, Articles 7, 9, 11, 59 and 60 of the Constitution it is clear that the makers of the Constitution devised a scheme of total democracy, both at the centre and at the level of local government. The Preamble declares democracy to be a fundamental principle of the Constitution. Article 7(1) says that all powers in the Republic belong to the people and Article 11 proclaims that “the Republic shall be a democracy”. Various autocratic regimes at various times vigorously persisted with the idea of an unrepresentative national government at the Centre but waxed eloquent on grassroot-level democracy solely for the purpose of building up a power base. The makers of the Constitution wanted no such half-way house between autocracy and democracy. The choice was clearly for a fully democratic constitutional pattern, both at the national level and at the local level. And there lies the second step. Local Government “shall be entrusted to bodies, composed of persons elected in accordance with law”. Special representation may be given to “peasants, workers and women”, as enjoined by Article 9, but not at the cost of robbing the local government institutions of their elected, hence representative character.

69. Lastly, the structure of local government was left fully and completely in the hands of Parliament No one can claim a vested right in any particular form or in any particular number of tiers of local government Within the framework of Articles 59 and 60 Parliament retains the power of continually re-organising, re-structuring and re-modelling the local government institutions in the light of experiences gained to meet the changing needs of changing times. It is to be remembered however that local government is a part of the constitutional system and therefore Chapter III of Part IV of the Constitution containing Articles 59 and 60 cannot ever be kept as a dead letter. Local Government cannot be abolished altogether. It must exist in some form, in some tier or tiers at any given point of time to give a meaning to Chapter III of Part IV and to justify its rationale, validity and existence. It is not a mere adornment in the Constitution.

70. Designation by law:

Article 152(1) defines “administrative unit” as follows:

administrative unit” means a district or other area designated by law for the purposes of article 59.

The Bengali version is as follows:

“প্রশাসনিক একাংশ” অর্থ জেলা কিংবা এই সংবিধানের ৫৯ অনুচ্ছেদের উদ্দেশ্যসাধনকল্পে আইনের দ্বারা অভিহিত অন্য কোন এলাকা।”

Mr. Amirul Islam vehemently argued that no specific and express designation by law is necessary to create an “administrative unit”. If a legislation answers the characteristics of a local government with reference to a clear territory or area, powers and functions, then designation will be implied. The Repealed Ordinance, he submits, conferring local government powers and functions on a clearly demarcated area, namely, an Upazila, sufficiently answers the requirement of designation under Article 59 read with Article 152(1).

71. This interpretation of the words “designation by law” is supported by some other provisions of the Constitution, containing the word ‘designation’. Article 52(2) of the Constitution says mat “the conduct of the President may be referred by Parliament to any court, tribunal or body appointed or designated by parliament for the investigation of a charge under tins article”. The designation by Parliament can never be by implication. It must be specific, volitional and definite. Sometimes the Constitution itself makes the designation, see Article 65(2), the members (of Parliament) “shall be designated as Members of Parliament”. Similarly when the Constitution requires designation by law for the purposes of Article 59, the law must so designate expressly, unequivocally and directly, mentioning the purpose for which the designation is being made. There cannot be any designation by implication. As the Repealed Ordinance never designated Upazila as an administrative unit, it was not a local government within the meaning of Article 59.

72. Mr. Syed Ishtiaq Ahmed submits that Article 152(1) does not require a district to be designated by law, for a district stands designated by Article 152(1) itself, as a combined reading of both the English and Bengali texts of Article 152(1) will reveal. Also, no designation is necessary in the case of areas within a district like union, municipalities, corporations, etc., as those areas are covered by a district which is already designated. It is only when two or more districts or an area bigger than a district are contemplated to be administrative units that designation is necessary, he submits. It his submission is correct then Upazila need not be designated by any law at all.

73. The learned Attorney-General submits that designation is necessary not only in the case of a district but also in the case of “other area”, i.e., area other than a district, whether it is within the district or outside of it or whether it is bigger than a district or smaller.

74. It appears to me that unlike the Bengali text, the English text leaves room for some controversy as to whether “designated by law for the purposes of article 59” qualify both “a district” and “other area” or only the words “other area”. The Bengali text suffers from no ambivalence. Proviso to Article 153(3) of the Constitution provides that “in the event of conflict between the Bengali and the English text, the Bengali text shall prevail”. The Bengali text clearly designates district as an administrative unit, only the “other areas” are required to be designated by law for the purposes of Article 59. This interpretation is not only in consonance with the plain meaning of the Bengali text, but also stands to reason. If both a district and other area are required to be designated by law for the purposes of Article 59, then the word “a district” is superfluous, ‘any area’ would have sufficed. We shall not give an interpretation to the text of the Constitution which renders any word of it a surplusage. Furthermore, the word ‘district’ was not unknown to the makers of the Constitution, as the District Act, 1838, already familiarised the term. It enables creation of a new district in any part of Bangladesh and alteration of the limits of the existing districts. Article 152(1) even uses the words “District Judge” while defining “judicial service”. A district, therefore, stands already designated by the Constitution and the words “designated by law for the purposes of Article 59” refer only to the words “other area”.

75. But “other area” needs to be designated by law, be it within a district or a combination of districts, the reason being that a district is designated by the Constitution as a whole and the word ‘bodies’ in Article 59 refers to more than one body at the particular unit level. When a separate local government is set up in part of a district, say a Union or Paurashava or Corporation, a part of the territory of a district is carved out to give the local government institution a separate, distinct and independent legal entity. It will be a union-level or Pourashava-level or Corporation-level body, limited to the area earmarked for it and it will not be a district-level body at all. It needs designation to make it an administrative unit.

76. In any view of the matter Ordinance No. LIX of 1982 which was repealed by the Repealing Ordinance, having not designated Upazila as an administrative unit for the purposes of Article 59 was not a local government in terms of Article 59. Parliament has the power to abolish altogether a local government which is not a local government within the meaning of Article 59. If Parliament has to continue that type of local government, it has to bring that local government in conformity with Articles 59 and 60.

Legislative Practice:

On the date of coming into force of the Constitution bureaucratisation of local government institutions was complete. There was no semblance of any representative local government institution any where in any of the rural and urban areas and it was quickly realised that such state of affairs would attract the mischief of Article 7(2) of the Constitution, namely, “……if any other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency, be void.” By the Bangladesh Local Government (Union Parishad and Paurashava) Order, 1973, PO No. 22 of 1973, promulgated on 22.3.73, a two-tier elected local government, namely, a Union Parishad at the rural level and a Paurashava at the urban level was sought to be established. The first paragraph of the Preamble of PO No. 22 of 1973 was as follows

Whereas Article 59 of the Constitution of the People’s Republic of Bangladesh provides, inter alia, that Local Government shall be entrusted to bodies, composed of persons elected in accordance with law;

There was, however, no designation of unions and municipalities as administrative unit, as required by Article 152(1) of the Constitution.

77. It was the impression of all the learned Counsels for the appellants as well as of the learned Attorney-General that there PO No. 22 of 1973 rested and that there was no designation of unions and municipalities as administrative units in the said legislation.

78. Much to our surprise we find that by way of amendment of PO No. 22 of 1973 the Parliament enacted the Bangladesh Local Government (Union Parishad and Paurashava) (Amendment) Act 1973, Act No. IX of 1973, giving it a retrospective effect from 22.3.73 wherein it introduced Article 2C in PO No. 22 of 1973 as follows:

2C. The unions and municipalities shall be administrative units within their respective areas for the purposes of Article 59 of the Constitution of the People’s Republic of Bangladesh.

It is indeed surprising, no less regrettable, that this important piece of legislation which throws light on legislative practice escaped the notice of the learned Counsels of both sides. Much of their arguments were based upon the provisions of PO No. 22 of 1973 but Article 2C introduced by Act IX of 1973 robs them of their validity and relevance. In Article 2C Unions and Municipalities were clearly and specifically designated as “administrative units” for the purposes of Article 59, but the Zillas or Districts and the Thanas were not so designated. The learned Attorney-General argued that a Thana continued to be administered as a local government by Administrators from 9.9.72 to 18.5.76 (when Thana Parishads were established by Thana Parishads Ordinance, 1976, Ordinance No. XXXII of 1976) without a designation and as an unrepresentative body. This was to him yet another example of a permissible local government institution outside of the framework of Articles 59 and 60. The answer is that a Thana existed no doubt as an undesignated and unrepresentative local government upto 18.5.76, but the permissibility of its existence was not tested in a court of law, as long as Articles 11, 59 and 60 of the Constitution were in full force. Prevalence is not synonymous with constitutionality.

79. During the period from 16.12.72 to 25.1.75, when Articles 11, 59 and 60 of the Constitution were in full force, Parliament also passed the Dacca Municipal Corporation Act, 1974 (Act No. LVI of 1974) on 29.7.74, providing for constitution of a Municipal Corporation for municipal administration of the City of Dacca (as Dhaka was then spelt) with 72 elected Commissioners and elected Mayor and Deputy Mayors. The city area was not designated afresh as an “administrative unit”, presumably because “municipalities” “within their respective areas” were already designated as “administrative units” for the purposes of Article 59 of the. Constitution by Article 2C of PO No. 22 1973. However, Act No. LVI of 1974 was to come into force on a date to be appointed by the Government and the day never came. The city of Dhaka continued to be a Paurashava

Not quite a total repeal:

The Repealing Ordinance in its totality abolishes the Upazila Parishad altogether and without dilating on the actual working of the Repealing Ordinance, I would say that its short contents are unexceptionable, except for the words” অধিকার, ক্ষমতা, কর্তৃত্ব ও সুবিধাদি “in section 2(2)(Kha) thereof which are in violation of Articles 59 and 60 of the Constitution. It is not a colourable piece of legislation as Mr. Syed Ishtiaq Ahmed submits, but the faulty draftsmanship certainly suggests that the Government has been vested with the continuing authority, powers, functions and privileges of a dissolved Upazila Parishad, Although Upazila Parishad is not a local government within the meaning of Article 59, but its powers, functions, privileges, etc. are certainly those of a local government as described in Articles 59(2) and 60. With the re-appearance of Articles 59 and 60 in the Constitution, the Government or for that matter, any person or body, not elected in the area according to law, cannot upon abolition of a local government tier, take over the authority, powers, functions and privileges of a local government institution of that tier even for a temporary period or as a stop-gap arrangement. The abolition must mean a total abolition. Those powers, functions, etc. which the Central Government ceded to Upazila Parishad for purposes of forming a local government will eventually go back to the Government upon its abolition, but the Government will exercise those powers, functions, etc. as governmental powers, not as powers, functions, etc. belonging to the erstwhile Parishad or a local government. This was a draftsman’s error for which Parliament cannot be accused of making a colourable legislation.

80. My answer to the first question is therefore affirmative partly.

On the second question

Article 7(2) provides that this Constitution is, as the solemn expression of the will of the people, the supreme law of the Republic, and if any other law is inconsistent with this Constitution that other law, to the extent of the inconsistency, be void. (Underlines are mine).” Therefore, this Constitution taken as a whole is a law, albeit the supreme law and by “any other law” and “that other law” the Constitution refers to the definition of “law” in Article 152(1), including a constitutional amendment. It is the Law of the Constitution itself that the fundamental principles of state policy are not laws themselves but “principles”. To equate “principles” with “laws” is to go against the Law of the Constitution itself. These principles shall be applied by the State in the making of laws, i.e., principles of policy will serve as a beacon of light in the making of laws, shall be a guide to the interpretation of the Constitution and of the other laws of Bangladesh, and shall form the basis of the work of the State and of its citizens. Not being laws, these principles shall not be judicially enforceable.

81. There the Constitution rests. It does not say, as it says in Article 26 in respect of fundamental rights:

26(1). All existing law inconsistent with the provisions of this Part shall, to the extent of such inconsistency, become void on the commencement of this Constitution.

(2) The State shall not make any law inconsistent with any provisions of this Part, and any law so made shall, to the extent of such inconsistency, be void.

(3)………………………………………..

There being no specific provisions in the Constitution providing laws inconsistent with fundamental principles of state policy to be void, the learned Counsels for the appellants have fallen back upon Article 7(2) and have urged for acceptance of an interpretation which will bring Fundamental Principles of State Policy at par with Fundamental Rights in so far as voidability is concerned. The submission is unacceptable, because, first, the makers of the Constitution did not lack in expression if they so meant it Provisions analogous to Article 26 could have been inserted in Part II as well. The omission is deliberate and calculated. Secondly, Article 8(2) proclaims the fundamental principles of State Policy as “principles”, not “laws” and that is the mandate of this Constitution. Article 7(2) cannot be interpreted to mean that if any other law is inconsistent with the “principles” mentioned in Part II then that other law to the extent of the inconsistency, will be void. The Constitution is the supreme law and if the supreme law prescribes “principles” not “laws”, and directs the use of these principles in certain specific manner, then the other law cannot be made void on the ground of inconsistency with these principles. It is argued that Articles 9 and 11 are provisions of the Constitution and if any other law is inconsistent with these provisions, then it will be void. Article 7(2) says “this Constitution”, not “provisions of the Constitution”, which expression the Constitution uses in some other places. The use of the words “this Constitution” and not “provisions of the Constitution” is also deliberate.

82. A hypothetical question has been posed. Parliament passes a law which glaringly violates and flouts a fundamental principle of State policy, and if its vires is challenged solely on the ground of inconsistency with that principle and on no other ground whatsoever, will the High Court Division declare or not declare the law void ? It is a madness scenario. The learned Counsels could not show any such legislation in this sub-continent, but suppose, Parliament is struck with such madness, is the High Court Division in its writ jurisdiction the only light at the end of the tunnel ? What does public opinion, political party and election do if Parliament goes berserk?

83. In answering the second question I have not examined whether the Repealing Ordinance/Act is inconsistent with Articles 9 and 11 or not, in view of my negative answer to the last part of the question and in view of the fact that I have already found a part of the Repealing Ordinance/Act inconsistent with Articles 59 and 60.

On the third question

The Repealing Ordinance having been made into an Act of Parliament the question raised is now academic and may be considered in an appropriate case.

84. In these appeals, the appellants who were elected as Chairmen of Upazila Parishads in the last Election held on March, 1989 have challenged the vires of the Local Government (Upazila Parishad and Upazila Administration Re-Organization) (Repeal) Ordinance, 1991 (Ordinance No. XXXVII of 1991), (now Act II of 1992), hereinafter called the Repealing Ordinance, whereby the Local Government (Upazila Parishad and Upazila Re-Organization) Ordinance, 1982 being Ordinance LIX of 1982, hereinafter called the Upazila Ordinance was repealed.

85. The factual contentions of these appellants are that, they were elected on the basis of adult franchise as Chairmen of Upazila Parishads for a term of 5 years and before completion of their terms the present Government repealed the said Upazila Ordinance by the Repealing Ordinance, thereby removing the appellants from their elected office as Chairmen of Upazila Parishads.

86. The legal contentions of the appellants are that, the Government by virtue of the Reapealing Ordinance has violated the provisions of Articles 9, 11, 59 and 60 of the Constitution and as such the same is liable to be declared as void by virtue of Article 7(2) of the Constitution of the People’s Republic of Bangladesh.

87. Mr. Amirul Islam, learned Advocate appearing for the appellant in Civil Appeal No. 4 of 1992, has argued two points for our consideration.

88. Firstly, he submits that Article 9 of the Constitution postulates promotion of Local Government Institutions and Article 11 contemplates democracy and effective participation by the people through their elected representatives in administration at all levels and the appellants being elected representatives of the people in the Local Government Institution, the promulgation of the impugned Repealing Ordinance violates Articles 9 and 11 of the Constitution and as such the Repealing Ordinance is liable to be struck down as void in view of Article 7(2) of the Constitution.

89. Secondly, he argues that the Reapealing Ordinance is expressly and clearly violative of Articles 59 and 60 of the Constitution inasmuch as by abolishing the local Government Institutions at Upazila levels, the impugned Ordinance has clearly violated the mandate of Article 59 providing Local Government in every Administrative Unit of the Republic and hence the Ordinance is liable to be declared as void under Article 7(2) of the Constitution.

90. Before adverting to the arguments of Mr. Amirul Islam who mainly argued in this case on behalf of the appellants, I like to trace out in brief, the historical background of Local government Institutions with special reference to the Upazila Ordinance as promulgated by the Chief Martial Law Administrator in 1982.

91. Concept of Local Government-In the concept of political philosophy “Local Government” means self-administration (in local affairs) in cities, towns, villages and the like, as opposed to national or central Government. It is undeniable that for effective working of democracy such local Government institutions were elected in grass-root levels and at various tiers in various countries of the world as Governmental units. To-day, political activity is present everywhere, amongst the citizens of a country as in capital, towns and villages. Political activities are mixed up with countless daily activities, economic, social, religious, educational and others and these are all inter-dependent When we speak of political activity we are bringing in the concept of a unit of the Government in the nation itself, and also in each separate city, town, village and other distinct local Government entity. In these areas a unit of Government may be established by a distinct residential population occupying a definite land area by elected representatives of the people and defined for the purpose as a separate local Government.

92. History of Local Self Government in British-India

If we trace back the historical background of the local Government Institutions in the Sub-continent during the British regime, then we find that such political activity units were set up on smaller scale in villages and towns. The Bengal Local Government Act of 1885 (Bengal Act III of 1885) empowered the Provincial Government to establish District Board for every District and a local Board in any Sub-Division or part of the Sub-Division or in any two or more Sub-Divisions combined. Thus under that Act District Boards and Local Boards were introduced in our country in the Sub-continent. Thereafter came The Bengal Village Self-Government Act, 1919 (Bengal Act of 1919) which gave power to the Provincial Government to declare local area to be Union Board where every male person of the full age of 21 years living within the Union were entitled to vote at an election of the members of the Union Board and those members could elect the President of the Union Board who presided over the Board. Thus, it is found that in British time the local Government institutions such as Union Boards and District Boards were in existence in our country as a measure of self-government.

93. History of Local Government in Pakistan time-After partition of the Sub-continent and creation of Pakistan these two local government institutions at Union and District levels were in practice till promulgation of Basic Democracies Order, 1959, whereby it provided for four tiers of local councils, namely, Union Council, Thana Council, District Council and Divisional Council in the then East Pakistan (now Bangladesh). According to this Order, a Thana Council consisted of representative members, official and appointed members as might be fixed by the Commissioner. The new development that we find in this Order is the emergence of Thana Council and Divisional Council as new local Governments in the Thana and in the Division along with the local self-governments that were in existence in the Union and in the District.

94. Local Government after emergence of Bangladesh and its main features in pre Constitution and post Constitution period.

Bangladesh Local Councils and Municipal Committees (Dissolution and Administration) Order 1972 (PO 7/72) dissolved all local Councils and Municipal Committees and a Union Council was called Union panchayat, a town committee was called as Sahar Committee, and a Municipal Committee was called Paurashava. The Bangladesh Local Government (Union Parishad and Paurashava) Order, 1973 (PO 22 of 1973) was promulgated on 22.3.1973 wherein Union panchayat was called Union Parishad and Union Parishads and Paurashavas were created throughout Bangladesh in accordance with the various provisions of that Order. In 1976 Local Government Ordinance, 1976 (Ordinance No. XC of 1976), was promulgated providing for the constitution of local government bodies in rural areas and to consolidate and amend certain laws relating to local government in such areas. A salient feature of this Ordinance was that there would be a Union Parishad for a Union, Thana Parishad for a Police Station and a Zilla Parishad for a District. It may be mentioned that Thana Council was first constituted by the Basic Democracies Order, 1959 and then Thana Parishad was constituted by Ordinance No. XC of 1976. The Sub-Divisional Officer was the ex-officio chairman of the Thana Council as well as the Thana Parishad. So the office of the Chairman of the Thana Council and the Thana Parishad was not an elective office. Before coming into force of the Ordinance XC of 1976 Thana Parishads were constituted by Ordinance No. XXXII of 1976. In 1982 the Local Government (Thana Parishad and Thana Administration Re-Organization) Ordinance, 1982 (Ordinance LIX of 1982) was promulgated. By section 2A of Ordinance LIX of 1982, the Government declared by notification in the official gazette any areas specified therein to be a Upazila for the purpose of this Ordinance. This Ordinance provided for the first time that the Chairman of the Upazila Parishad would be elected by direct election. Thus, it is found that the posts of office of Chairman of Upazila Parishad was never before an elective office. The Upazila Parishad even under Ordinance LIX of 1982, as amended from time to time existed of elected members, officials members and nominated members. It was also provided in the Ordinance that till such time a Chairman was elected, the Upazila Nirbahi Officer or any other person nominated by the Government would act as Chairman. This Upazila Ordinance was ultimately repealed by the Repealing Ordinance and the Upazila Parishad was abolished.

95. It will be worthwhile to refer herein-below, the legislative purpose of enacting Ordinance LIX of 1982 which was promulgated by the Chief Martial Law Administrator in pursuance of the proclamation of the 24th March, 1982 after usurpation of power by the Chief Martial Law Administrator. The resolution dated 23rd October, 1982 which was published in the Bangladesh Gazette Extraordinary gives a background as to the decision of the Government to organize the Administration at the Thana level which was termed Upazila in the Ordinance at that time. From the resolution it is abundantly clear that under the Re-Organization set up Thana was called Upazila and it would be the focal point of all administrative activities. The Basic purpose was to reorganise the Administration at Thana and thereafter to transfer responsibility for all development activities at the Upazila which was a Thana previously. The Government retained the direct responsibility for regulatory function and major development activities of national and regional level and education, health, family planning and all other allied subjects relating to the development of the Upazilas were entrusted to the Upazila Parishad. It is to be clearly borne in mind that soon after taking over power, the Chief Martial Law Administrator thought of decentralising the Administration and with that end in view, the Supreme Court, High Court Division at Dhaka was decentralised at District levels and the Courts functioned till the decision of the case famously known as Constitution 8th Amendment Case. The concept of Upazila Parishad of the Chief Martial Law Administrator could not be implemented through election at Upazila levels due to stiff opposition from the major political parties as the parties demanded Parliamentary Election to be held after withdrawal of Martial Law. The Upazila Polls was, however, held on 9th May, 1985 and the second polls to the Upazila was held in May, 1989 in which these appellants were elected as Chairmen. In this Scheme, 464 Upazilas were created, and to my mind it appears that the scheme of creation of Upazilas was more a matter of strengthening and mobilising the strength of the Martial Law Administrator. The scheme of decentralisation of the Administration at Upazila levels was ushered in transferring development activities to Upazilas, thereby creating local Government in Upazila levels.

96. With regard to Mr. Amirul Islam’s first point it may be pointed out that Part II of our Constitution (Articles 8-25) provides the fundamental principles of State Policy. In this case, we are concerned with two relevant fundamental principles of State Policy namely, Articles 9 and 11, Article 9 reads as follows:

The State shall encourage local Government institutions composed of representatives of the areas concerned and in such institutions special representation shall be given, as far as possible, to peasants, workers and women.

Article 11 reads as follows:

The Republic shall be a democracy in which human rights and freedoms and respect for the dignity and worth of the human person shall be guaranteed, and in which effective participation by the people through their elected representatives in administration at all levels shall be ensured.

These above fundamental principles of State policy are in the nature of instrument of instructions to the Government to implement these principles by legislation so that the nation as a whole can achieve certain ultimate ends by the actions of the Government. It is to be borne in mind here that so long the State does not legislate on these fundamental principles of State Policy as laid down in Part II of the Constitution these principles cannot be termed as law. Presently, I will refer to Article 8(2) of the Constitution which reads as follows:

The principles set out in this Part shall be fundamental to the governance of Bangladesh, shall be applied by the State in the making of laws, shall be a guide to the interpretation of the Constitution and of the other laws of Bangladesh, and shall form the basis of the work of the State and of its citizens, but shall not be judicially enforceable.

From this Article it is clear that all these principles as contained in this Part:

(i) shall be fundamental to the governance of Bangladesh; (ii) shall be applied by the State in the making of laws;

(iii) be a guide to the interpretation of the Constitution and of the other laws of Bangladesh;

(iv) shall form the basis of the work of the State and of its citizens;

(v) but all these principles set out in this part shall not be judicially enforceable.

Thus, this Sub-Article (2) of Article 8 of the Constitution clearly says the purpose and intent of these fundamental principles of State policy and at the same time it speaks that those principles shall not be judicially enforceable. Keeping this in mind, we are to consider Article 7(2) of our Constitution. Article 7 of our Constitution speaks of supremacy of the Constitution. As a matter of fact, it is needless to say, that even without this Article the Constitution is the supreme law of the land and all other laws are subordinate to the Constitution. In Article 152 of the Constitution law has been defined as “law means any Act, ordinance, order, rule, regulation, bye-law, notification or other legal instrument, and any custom or usage, having the force of law in Bangladesh.” Sub-Article (2) of Article 7 speaks that, “If any other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency, be void.” From this Article 7 of the Constitution it is evident that this Constitution is the supreme organic law of Bangladesh and all the three organs of the State namely, the legislature which makes laws, executive which executes the same and judiciary which interprets the Constitution and the laws made by the legislature, derive their authority from this Constitution. Hence, all these organs of the State must act in accordance with the Constitutional mandate and no organ is to transgress on the domain of the other organ and in case of such interference it is the judiciary no doubt which will ultimately declare the law which is inconsistent with the Constitution as void to the extent of its inconsistency.

97. Now let us see how Articles 9, 11 and 7(2) of the Constitution can be interpreted keeping in view the principle of Constitutional interpretation of all these constitutional provisions. It is to be kept in mind that every part of our Constitution from the preamble to the last schedule is the Constitution of the People’s Republic of Bangladesh. Every provision of the Constitution is essential and all these provisions must exist in harmony and there cannot be any conflict between any provision of the Constitution and no provision will be subordinate to the other. In interpreting these various provisions of the Constitution, the construction of one part will throw light on the other part and the construction must hold a balance between all the parts of the Constitution and one part of the Constitution must be complementary and supplementary to the other part As a matter of fact, it is to be presumed that all the provisions are harmonious and by no stretch of imagination one provision of the Constitution can be in conflict with the other as the framers of a written Constitution can never intend for such conflict and anomaly. What Mr. Amirul Islam argued is, to my mind, really a matter of implied limitation. He wants to argue that in view of Article 7(2) of the Constitution the Repealing Ordinance can be declared as void as impliedly, it violates Articles 9 and 11. In interpreting a written Constitution no implication can be made. Such a method of construction would defeat the intention of the Constitution. Implied limitation cannot be applied in our Constitution which is a written Constitution, as expressly Article 8(2) speaks of non-enforceability of the Articles contained in Part II of the Constitution. Further, Article 7(2) speaks of law being inconsistent with the Constitution, but these principles as set out in Part II, particularly, Articles 9 and 11 with which we are concerned are not laws and as such no individual can come to a court of law on the plea that his legal right has been violated. Further, the word ‘void’ as used in Article 7(2) is also very significant, as because an existing law can only be declared void if this is inconsistent with the Constitution. Mr. Amirul Islam while arguing wanted to make a distinction between these two terms “void” and “enforceable” as contained in our Constitution. But it appears to me that in the context of the present case, the distinction between the terms ‘void’ and ‘enforceable’ are not of much importance as Article 8(2) of the Constitution clearly contemplates that the fundamental principles of State Policy are not enforceable in a court of law and the appellants have no justiciable rights in their favour. The distinction as drawn by the learned Advocate is only superficial and indirectly he is seeking for enforceability which is precluded by this Article. Further, there being no violation of law, such a declaration that the Repealing law is void under Article 7(2) of the Constitution cannot be sought for.

98. It true that in the Indian Constitution there is no corresponding Article like Article 7 of our Constitution, but for that we can only say, that this is an unique feature in our Constitution contained in Part I of the Constitution which recognized people as the source of all powers in the Republic as it is evident that the people of Bangladesh proclaimed independence on the 26th day of March, 1971 through a historic war for national independence. An argument on Article 7(2) of the Constitution as argued by all the learned Advocates of the appellants touching on the spirit of the Constitution is very attractive for it has a powerful appeal to sentiment and emotion. But a constitutional law has to gather the spirit of the Constitution from the language of the Constitution. What one may believe or think to be the spirit of the Constitution cannot prevail if the language of the Constitution does not support that view.

99. Thus I hold that Articles 7(2) and 8(2) co-exist harmoniously and the learned Advocate in an indirect manner is only trying to get a declaration of voidability which is not contemplated under the Constitution.

100. From Article 8(2) of the Constitution it is clearly found that fundamental principles of state policy are not justiciable, in other words, the courts cannot compel the Government to carry out any fundamental principles unless that is implemented by appropriate legislation. The Indian decisions that has been referred before us relating to enforcement of fundamental rights are mixed up with directive principles of state policy, wherein the fundamental rights are enforceable by Articles 32, 226(1) of the Indian Constitution and the courts are bound to declare as void any law which is inconsistent with any of the fundamental rights. But the court cannot declare as void any law on the ground that it contravenes any of the directives. Thus, in the Indian jurisdiction in case of conflict between fundamental rights and the directive principles of state policy the former shall prevail. The decisions of Indian Jurisdiction are not of much help to us in this case.

101. A little analysis of Article 26 in Part III of the Constitution dealing with fundamental rights will also help us in understanding Article 7(2). Article 26 of the Constitution reads as follows:

26. (1) All existing law inconsistent with the provisions of this Part shall, to the extent of such inconsistency, become void on the commencement of this Constitution.

(2) The State shall not make any law inconsistent with any provisions of this Part, and any law so made shall, to the extent of such inconsistency, be void.

Thus, we find that laws inconsistent with fundamental rights shall be void and the State shall not make any law inconsistent with any provision of Part III which contains fundamental rights. So the term ‘void’ is referable to law and making of the law and it cannot have any meaning with respect to enforcement of law. Article 102(1) of the Constitution speaks of enforcement of any of the fundamental rights conferred by Part III of the Constitution on an application by an aggrieved person. Article 102(2) gives the power of the High Court Division to issue certain orders and directions in the nature of mandamus, prohibition, habeas corpus and quo warranto, Hence, it is difficult to accept the submission of the learned Advocate that under Article 7(2), the fundamental principles of State Policy which are not laws can be declared void.

102. Now taking up the second point of the learned Advocate for the appellant, it may be mentioned that in our Constitution, Part IV (The Executive) contains Chapter in-Local Government We have already referred earlier that local Government is meant for successful working of the democracy and with that objectives in view the framers of the Constitution embodied Articles 9 and 11 which encourage local Government institutions and participation of people through their elected representatives.

Article 59(1) reads as follows:

59(1) Local Government in every administrative unit of the Republic shall be entrusted to bodies, composed of persons elected in accordance with law.

The above Article shows that the local Government bodies will be composed of elected representative in every administrative unit of the Republic. From the history of the local Government as detailed herein above, we have found that in British India Local Government existed in Union and District. In Pakistan and after liberation, local Government also existed in Thana (Police Station) along with the union and the District Thus Thana as an unit of the administration for the purpose of local Government was in practice both in pre-constitution and post-constitution period. The language of Article 59 clearly says that local Government need not be created under the Constitutional mandate as this Article does not create local Government This Article speaks Of composition of local Government in every administrative unit of the Republic. It may be mentioned that the Government in its plenary legislative power can create local Government and can also abolish local Government in various tiers. This power of the Parliament cannot be questioned. Now the relevant question for our consideration is, whether the Parliament can abolish the Upazila Parishad Ordinance by the Repealing Ordinance. The Parliament is vested with the legislative power of the Republic subject to the provision of this Constitution. This power is also not denied by the learned Advocates for the appellants. Thus, the Upazila Parishad Ordinance could be validly repealed by the Repealing Ordinance.

103. The pertinent question now remains to be decided is, whether in the touchstone of Article 7(2), the Repealing Ordinance can be declared void as because it violates Articles 59 and 60 of the Constitution. Reading Articles 59 and 152(1) of the Constitution together, I find that Upazila Parishad established under Ordinance No. 59 of 1982 cannot be termed a local Government within the meaning of Article 59 of the Constitution as the Upazila which is admittedly not a district has not been designated as ‘an administrative unit’ by law for the purpose of Article 59. Upazila being not an administrative unit within the meaning of Article 152(1) of the Constitution it is not a local Government under Article 59 of the Constitution. The designation as an administrative unit is a constitutional requirement and without such designation the Upazila cannot assume the character, nature and function of a local Government under the Constitution. The Upazila Parishad which was in existence at the time of promulgation of the Repealing Ordinance was also not composed of elected persons. Article 60 speaks that the parliament by law may confer powers on the local Government composed under Article 59. Since there is no violation of Article 59, the question of violation of Article 60 does not at all arise in the present case.

104. Dr. Kamal Hossain, the learned Advocate appearing for the appellant in Civil Appeal No. 3 of 1992, submits that though Article 93 of the Constitution empowers the President to promulgate an Ordinance when the Parliament stands dissolved or is not in session, but Article 93 was applied in the present case wrongly without any valid purpose and satisfaction of the President by disregarding the parliamentary procedures by which legislation was made by the President in his ordinance making power on an organic law. The learned advocate has also cited some decisions of Indian jurisdiction for our consideration in this case.

105. With regard to Dr. Kamal Hossain’s argument on Article 93 of the Constitution relating to the Ordinance making power of the President, suffice to say that the impugned Ordinance having been replaced by Act II of 1992, much of the efficacy with regard to the argument of the learned Advocate touching on the satisfaction of the President and that the Ordinance was unnecessary and wrongly promulgated has become irrelevant for our consideration. Since the Ordinance has already been made an Act of Parliament, the question of its validity has become academic and we need not express any opinion in this case.

106. We can only say that President under our Constitution is only a Constitutional head and normally he acts in all matters including the promulgation of an Ordinance on the advice of the Prime Minister as contemplated under Article 48(3) of the Constitution. Further, what advice was tendered by the Prime Minister cannot be enquired into in any Court.

Dr. Kamal Hossain’s main argument was on the Parliamentary safe-guard against Ordinance making power of the President It appears that in the present case the Government legislated by an Ordinance instead of by an Act of Parliament, and it makes no difference at all because it is to be presumed that the ordinance was promulgated by the advice of the Prime Minister who is the leader of the majority party in the Parliament. It is true that the present Government has a clear majority in Parliament, and without making an Ordinance if a bill would have been introduced in the House that would have no doubt given to all the members of the Parliament a detailed opportunity of considering the ‘pros and cons’ of the proposed Ordinance through consultations and deliberations by its members. Be that as it may, in the present case the Ordinance has already been passed by the legislature into an Act. Thus the argument with regard to the parliamentary safe-guard and the possibility of abusing the power cannot hold good in the facts of the present case.

107. Dr. Kamal Hossain, cited the case of Laxmikanta Vs. Union of India, reported in AIR 1987 (SC) 232. That is a case where some new directions were given by the Supreme Court for the difficulties faced in implementing the directions given earlier in the same case, reported in AIR 1984 (SC) 469. That case considered Fundamental rights under Articles 15 and 24 and Directive principles of state policy under Article 39. Thus, this reported decision relating to adoption of Indian children by Foreigners has no application in the fact of the present case. The next case cited by the learned advocate is the case of Sheela Barse Vs. State of Moharastra, AIR 1983 (SC) 378. That was also a case relating to Fundamental rights and Directive principles of State policy. The case of Mukesh Advani Vs. State of Madhya Pradesh, AIR 1985 (SC) 1365 arose on the basis of a letter written by an Advocate to one on the Judges of the Supreme Court depicting the horrid plight of the bonded labour working in stone quarries at Raisen in Madhya Pradesh. That case was disposed of by the Supreme Court holding that no labourer can be paid less than the minimum wages as contemplated under the Minimum Wages Act. The ratio of the above decisions are of no relevance for our purpose in the present case.

108. With regard to Syed Ishtiaq Ahmed’s argument that the impugned legislation is a colourable legislation, suffice it to say that in determining the Constitutionality of the Repealing Ordinance this Court cannot be called upon to embark on an enquiry into public policy or investigate into question of political wisdom or even upon motives of the legislature in enacting the Ordinance, if it is found that the legislature is competent to legislate on the subject without infringing any provisions of the Constitution. The learned Advocate cited the case of KC Gajpati Narayan Vs. State of Orissa reported in AIR 1953(SC) 375, where the doctrine of colourable legislation is based on the maxim that one cannot do indirectly what he cannot do directly. In Paragraph 18 of that decision, their Lordships of the Supreme Court of India have clearly spelt out the doctrine of colourable legislation by giving emphasis on the competency of the legislature to pass a particular law. In our case it is admitted by Syed Ishtiaq Ahmed that the Parliament has the competency to pass the impugned Repealing Ordinance. This being the legal position, the argument of the learned Advocate as to the challenge of this Repealing Ordinance as colourable is untenable in law.

Before parting with the case, I need to say a word as to the interpretation of Articles 7(2), 8(2) and 9 of the Constitution by Naimuddin Ahmed J. The learned Judge in his judgment observed as follows:

Consequently, if it is found that impugned repealing ordinance is violative of Article 9 of the Constitution, it is liable to be struck down as void in view of Article 7(2) of the Constitution.

This observation cannot hold good in interpreting the Constitutional provisions as indicated herein above. I must say that in dealing with Constitutional Provisions the court is not allowed to take hypothetical questions as has been posed by the learned Judge and has answered them like an academician. The learned Judge has made some quotations from Text Books on various Constitutional law of some renowned scholars. Abstract theoretical questions are not to be decided by any court as those are of only academic importance. It is no doubt true that these fundamental principles of State Policy as contained in our Constitution have been declared “to be fundamental to the governance of Bangladesh, shall be applied by the State in making of the laws”, but we will normally hold that the State will not make a law contrary to the fundamental principles of State Policy. But even then if a law is made by ignoring these fundamental principles of State policy, the Government will have to answer and face the people who elect them. So, by taking a hypothetical question and on an interpretation of Article 9, the learned Judge ought not to have ventured to strike down the Repealing Ordinance as void under Article 7(2) of the Constitution in the face of clear constitutional mandate of Article 8(2).