Legislators and local government
Tuesday, 19 May 2009
K. M. Mukta
LAW makers cannot do whatever they like because whatever is done in the legislature is done in the name of the people. The members of parliament cannot be oblivious of what the people want.
Bangladesh's experience shows that there is a gulf of difference between what the people want and the reality. Majoritarian dictatorship is not what the people of Bangladesh want.
The people do not want legislations of black laws against their or national interest. What cannot be done directly could not be done indirectly. There should be no camouflaging legislations to confuse the nation.
No parliament in a democratic country would legislate laws violative of human rights. In this era of human rights, any move by a parliament to make laws violative of the fundamental rights is bound to face stiff opposition and uproar. In 2004, when the UK government sought to pass the Asylum and Immigration (Treatment of Claimants, etc.) Bill, which contained a comprehensive "ouster clause", and would have excluded judicial review of decisions on applications for asylum seekers, there was uproar among judges and lawyers, and the Lord Chief Justice. Lord Woolf went so far as to suggest that if the clause were to become law, the courts would simply refuse to apply it.
In the judicial review of 1884 in the Marbury V Madisonis case, the supreme court of the United States declared judiciary as the custodian of constitution and the rights of the people. In many countries, the courts declared law incompatible to check the black legislation by parliament.
The constitution of Bangladesh states, in Article 26, laws inconsistent with fundamental rights shall, to the extent of such inconsistency, become void on the commencement of this Constitution. Clause 2 of the article prohibits the state from making "any law inconsistent with any provisions of this Part, and any law so made shall, to the extent of such inconsistency, be void."
In Masdar Hossain's case, the Supreme Court of Bangladesh ruled, "what cannot be done directly cannot be done indirectly."
The pertinent question is to what extent the legislators represent the core dreams or desires of the people who elected them. One may ask whether or not the Upazila Parishad Act, 2009, legislated recently, is with consisted the letter and spirit of the Constitution of the Republic. This Act whittles down the whole spirit and philosophy of the upazilla parishad as a local government as per observation of Justice Mustafa Kamal, -- "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. I cannot conceive of a local government existing in terms of Articles 59 and 60 and another outside of it. The Act makes a mockery of Articles 59 and 60 and is in direct conflict with Article 7(1) of the Constitution. Parliament is not free to legislate on local government ignoring Articles 59 and 60" as the Supreme Court had ruled in the writ relating to Kudrat-e-Elahi panir vs Bangladesh.
The role of the MPs in the upazilas as specified by the Upazila Parishad Act, 2009, is diametrically opposite to what should be their due responsibilities. Why the legislators in Bangladesh do not remain content with due responsibilities is difficult to understand. It is not at all understandable why the MPs in Bangladesh want to interfere with the functionary of the local government tier.
In no parliamentary democracy in the west, there is any conflict between MPs and elected local public representatives. It is highly regrettable that the MPs in the country want a role in local government.
Such "illogical" legislations are sources of trouble for good governance.
The civil society and other pressure groups should sensitise the MPs so that they remain satisfied with their due responsibilities.
A lawyer, researcher and analyst on law and judiciary, the writer can be reached at: e-mail: kohinoorgazi@yahoo.com
LAW makers cannot do whatever they like because whatever is done in the legislature is done in the name of the people. The members of parliament cannot be oblivious of what the people want.
Bangladesh's experience shows that there is a gulf of difference between what the people want and the reality. Majoritarian dictatorship is not what the people of Bangladesh want.
The people do not want legislations of black laws against their or national interest. What cannot be done directly could not be done indirectly. There should be no camouflaging legislations to confuse the nation.
No parliament in a democratic country would legislate laws violative of human rights. In this era of human rights, any move by a parliament to make laws violative of the fundamental rights is bound to face stiff opposition and uproar. In 2004, when the UK government sought to pass the Asylum and Immigration (Treatment of Claimants, etc.) Bill, which contained a comprehensive "ouster clause", and would have excluded judicial review of decisions on applications for asylum seekers, there was uproar among judges and lawyers, and the Lord Chief Justice. Lord Woolf went so far as to suggest that if the clause were to become law, the courts would simply refuse to apply it.
In the judicial review of 1884 in the Marbury V Madisonis case, the supreme court of the United States declared judiciary as the custodian of constitution and the rights of the people. In many countries, the courts declared law incompatible to check the black legislation by parliament.
The constitution of Bangladesh states, in Article 26, laws inconsistent with fundamental rights shall, to the extent of such inconsistency, become void on the commencement of this Constitution. Clause 2 of the article prohibits the state from making "any law inconsistent with any provisions of this Part, and any law so made shall, to the extent of such inconsistency, be void."
In Masdar Hossain's case, the Supreme Court of Bangladesh ruled, "what cannot be done directly cannot be done indirectly."
The pertinent question is to what extent the legislators represent the core dreams or desires of the people who elected them. One may ask whether or not the Upazila Parishad Act, 2009, legislated recently, is with consisted the letter and spirit of the Constitution of the Republic. This Act whittles down the whole spirit and philosophy of the upazilla parishad as a local government as per observation of Justice Mustafa Kamal, -- "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. I cannot conceive of a local government existing in terms of Articles 59 and 60 and another outside of it. The Act makes a mockery of Articles 59 and 60 and is in direct conflict with Article 7(1) of the Constitution. Parliament is not free to legislate on local government ignoring Articles 59 and 60" as the Supreme Court had ruled in the writ relating to Kudrat-e-Elahi panir vs Bangladesh.
The role of the MPs in the upazilas as specified by the Upazila Parishad Act, 2009, is diametrically opposite to what should be their due responsibilities. Why the legislators in Bangladesh do not remain content with due responsibilities is difficult to understand. It is not at all understandable why the MPs in Bangladesh want to interfere with the functionary of the local government tier.
In no parliamentary democracy in the west, there is any conflict between MPs and elected local public representatives. It is highly regrettable that the MPs in the country want a role in local government.
Such "illogical" legislations are sources of trouble for good governance.
The civil society and other pressure groups should sensitise the MPs so that they remain satisfied with their due responsibilities.
A lawyer, researcher and analyst on law and judiciary, the writer can be reached at: e-mail: kohinoorgazi@yahoo.com