There exists a constitutional obligation, as well as clear directives from the High Court, that our local government institutions must be administered through elected representatives. Nevertheless, after assuming office, the newly elected BNP (Bangladesh Nationalist Party) government has appointed partisan administrators to 11 city corporations and 42 district councils, many of whom were either denied party nominations or defeated in the 13th national election. This decision, seemingly aimed at rehabilitating party affiliates, stands in stark contravention of both the Constitution and judicial directives.
In Bangladesh, Articles 11, 59 and 60 of the Constitution address the framework of local government. Article 11 states that “effective participation by the people through their elected representatives in administration at all levels shall be ensured.” Article 59 provides that “Local government in every administrative unit of the Republic shall be entrusted to bodies, composed of persons elected in accordance with law..” Article 60 further empowers local government institutions to impose taxes, prepare budgets and maintain funds.
Article 11 is included in Part II of the Constitution, which sets out the fundamental principles of state policy. As such, it is not justiciable—meaning it cannot be enforced through the courts. However, Article 59 is binding upon the government. In other words, under the prevailing constitutional provisions, it is mandatory that governance at the district level be conducted by elected district councils, at the upazila level by elected upazila parishads, and at the union level by elected union parishads. Similarly, city corporations and municipalities must be governed by elected bodies.
It is worth recalling that following the abolition of upazila parishads in 1991, the Appellate Division of the Supreme Court of Bangladesh, led by Justice Shahabuddin Ahmed, ruled in the case of Kudrat-e-Elahi Panir vs Bangladesh [44 DLR (AD) (1992)] that local government is an essential component of our democratic system. The Court emphasised that local affairs must be managed through locally elected representatives and opposed the administration of such institutions by government officials or other unelected individuals. The Court explicitly observed that if government officials or their affiliates are appointed to run local government institutions, “it would not be reasonable to retain them as local government institutions,” since the fundamental basis of democracy is popular representation.
One of the key rationales for developing local government as an effective and independent partner of the central government is that, within Bangladesh’s unitary system, the Constitution assigns local government institutions significant responsibilities. These include oversight of local administration and public officials, maintenance of public order, and the formulation and implementation of public service and economic development plans. To fulfil such responsibilities, particularly in light of Article 59, there is no viable alternative to ensuring that trusted, locally elected representatives are empowered to operate independently.
By appointing partisan administrators to local government bodies, the ruling BNP has also disregarded its much-publicised “31-point reform outline for restructuring the state.” Clause 9 of the outline pledges to restore transparency, accountability and credibility in all state, constitutional and statutory institutions by rising above narrow partisan considerations in appointments. Beyond opposing politicisation, Clause 21 explicitly commits to refraining from appointing administrators to local government bodies, stating that such appointments would only be made in the event of death or by court order, and that local governments would be made more autonomous, powerful and free from interference. Ignoring these commitments at the very outset of governance is hardly an encouraging sign and calls for urgent rectification.
The present reality is that the tenure of all local government institutions has expired. During the tenure of the interim government, administrators were appointed in several cases, and the new government has already continued this practice by appointing partisan individuals to city corporations and district councils. However, in order to ensure that all local government institutions operate under elected leadership, as mandated by the Constitution and judicial rulings, elections at all levels must be conducted without delay.
Guidance may be drawn from the Kudrat-e-Elahi Panir case, in which the Appellate Division set a maximum timeframe of six months to replace unelected individuals through elections and bring local government institutions into conformity with Article 59. This timeframe remains both reasonable and practicable, and the current government could undertake to complete all local government elections within six months.
The existing laws governing city corporations and municipalities are largely adequate and could serve as the basis for initiating elections immediately. However, the legal framework for rural local government, namely district councils, upazila parishads and union parishads, suffers from serious deficiencies. These laws are outdated and inconsistent with one another. For instance, the District Council Act provides for indirect elections based on a very limited electoral college, reminiscent of the “Basic Democracies” model, whereas upazila and union parishad chairpersons are elected through direct voting.
These three rural governance laws could be consolidated into a single, coherent framework, as has been done in several Indian states. Such a law was in fact drafted by a special committee in 2007 under the leadership of Dr. Shawkat Ali, of which the present author was a member. Although the caretaker government at the time promulgated the draft as an ordinance, it was not subsequently ratified by an elected parliament. More recently, the Local Government Reform Commission, led by Tofail Ahmed during the interim government, has further refined these laws. It is imperative that these improved legal provisions be reviewed by experts, finalised promptly, and followed by the swift holding of elections.
Another pressing reality is that although the Constitution provides for a robust local government system operating alongside the central government, in practice the opposite has occurred. Local government institutions have become subordinate to, and controlled by, government officials or other political actors. Fortunately, the High Court has declared the position of “district minister” unconstitutional in Anwar Hossain Manju vs Bangladesh [16 BLT (HCD) (2008)]. Therefore, it must be ensured that the finalised legal framework establishes genuinely autonomous and independent local government institutions, in line with the BNP’s 31-point commitments.
In conclusion, it is hoped that the government will act swiftly to refine the relevant laws and arrange elections for all local government institutions. At the same time, these institutions must be made genuinely autonomous and free from undue control. The BNP, for its part, should demonstrate respect for its own 31-point reform commitments, as well as for its electoral manifesto, which promises to establish the people’s authority in the state and government through the direct election of representatives at every level, from local government to the national parliament.
* Badiul Alam Majumdar is Secretary of Citizens for Good Governance (SHUJAN)
* The views expressed are the author’s own.