Constitutional amendment on local government

The move is undemocratic
The proposed changes in local government evoked sharp reaction at a roundtable discussion meeting attended by the members of the National Union Parishad Forum (NUPF) and the Municipal Association of Bangladesh (MAB). Besides, a number of constitutional experts, others from abroad and NGO activists also participated in the discussion. They had asserted the move as undemocratic on more grounds than one.

First, non-consultation with the concerned stakeholders and political parties in and outside the parliament. Second, constitutional amendment was a matter of public interest that demanded debates, discussions and consensus. Third, not publishing or publicising any working paper or brief on the proposed amendments.

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The most interesting part of the debate was the point made by the representatives of different local bodies. They had affirmed that they 'did not intend to continue in their offices for a single day after the expiry of their term and the government could undertake any legislative measures to ensure it'.

What does the law say
Aside from the local councils in the hill districts, there are two specific laws that govern the point at issue. One relates to the Union Parishad (UP) and the other to the Zila Parishad (ZP). The local councils in the hill districts are governed by a separate law.

The governing law, other than those UPs of hill districts, is the Local Government (Union Parishad) Ordinance, 1983 as amended. Until 1987, the tenure of office of elected chairman and members of a UP was five years. By an amendment made in 1987, it was reduced to three years. A further amendment made in December 1991, the tenure was fixed at five years. In 1990, an amendment was made that enabled a UP to continue to function until the first meeting of UP constituted to succeed it or until the expiry of ninety days from the date of expiration of its term, whichever was earlier. A further amendment made during the same year enabled the government to appoint an administrator until the first meeting of a duly constituted UP.

In 1993, this amendment was nullified so that a UP, notwithstanding the expiration of its term, could continue to function until the first meeting of the succeeding UP. This was probably the reason why the proposed move had been termed undemocratic by the involved stakeholders.

ZP
ZP is not an elected body. In fact, despite a series of legislations, no elections have so far been held. The latest law on the subject is the Zila Parishad Act, 2000. Under this law, the tenure of ZP is five years. The law does not contemplate a public servant taken over the functions until a succeeding ZP is in place. The provision in this regard is similar to the law applicable to a UP (Section 5). An elected ZP can continue to function until the succeeding ZP holds its first meeting.

The concept of supercession
Both of the above laws, however, contemplate appointment of a person or authority by the government in the event of supercession of a local body. A local body can be superceded on specific grounds mentioned in the relevant law. However, before superceding a local body, the government is required to provide an opportunity of showing cause why such action should not be taken. It is only in such cases that enables the government to appoint any person or authority to take over the functions of a local body. The law relating to the municipalities and the city corporations also does not contemplate appointment of any outsider to take over the functions until the succeeding body takes over.

The rationale of government initiative
The rationale of government initiative remains unclear. This is because, as the debate has pointed out, there has not been any prior discussion with other political parties in and outside the Parliament. Besides, there was also no consultation with NUPF or MAB who are legitimate stakeholders. The sheer might of number inside the Parliament may have induced the government to make such a move. Informed sources believe that there can be some hidden political agenda involved in this initiative.

Leaving aside the question of hidden agenda, if the legal experts within the government applied their mind, the perspectives could be different. For instance, since no election was held in case of ZP by any government since 1972, the affairs are being managed by the administrative machinery. No question has been raised until now for such an arrangement. This only confirms the oft-repeated view that the political culture of Bangladesh does not conduce to decentralisation of authority, of sharing powers. This is so despite the fact that there is a Supreme Court verdict to have elected bodies at all administrative units of which the district is the single largest unit. Worse still, the election manifesto of the ruling party did assert that to achieve administrative decentralization, both Upazila and Zila Parishad would be reconstituted to make them the centres of all development activities. The priority in this regard has been given to the constitution of Gram Sarker which has become a controversial issue.

The policy planners within the ruling party appear to have forgotten that way back in July 1993, the government decided to annul the amendment made in 1987 by the so-called autocratic ruler that empowered the government to appoint an administrator. Why then unsettle what the very same government had settled more than a decade ago? And that too through constitutional amendments!

Hidden vs open government
In this context, it is necessary to point out the need for open government to which attention of the British government was drawn by the Fulton Committee in its report on civil service reform way back in 1968. It said that 'the purpose of public interest would be better served if there were a greater amount of openness'. In one of its most eloquent passages it further affirmed:

"Since government decisions affect all of us in so many aspects of our lives, consultation should be as wide as possible and should form part of the normal process of decision-making. It is an abuse of consultation when it is turned into a belated attempt to prepare ground for decisions that have already been taken".

In Britain, more openness in the process of governmental decision-making is achieved by preparing 'Green Paper' and 'White Paper'. The traditional 'White Paper' is a statement by the government of the policy it intends to follow. A 'Green Paper' is a discussion document in which the government outlines a problem, makes proposals for dealing with it, and invites public comments on the proposals (Stacey, 1975).

The democratic tradition in Bangladesh is just the opposite. White Papers are produced on alleged corruption cases about ministers of an outgoing government. The substance of democracy is vastly different from that in Britain whose democratic form we have adopted and vowed to practise. The processing of constitutional amendment relating to local government should be seen in this light.

During the nineties and onward, a large number of civil society organisations (CSOs) have sprang up in Bangladesh. These organizations are providing alternate policy options covering various aspects of governance. The classical typology of the State encapsuled into three organs responsible for governance is now out of tune with reality. There is now a fourth organ consisting of the CSOs and also the news media. The voices of dissent articulated by these institutions need to be heard for the sake of ushering in a process of consensual tradition of decision-making. The public face of government needs to recognise this rather than either ignoring or silencing such voices of dissent.

A M M Shawkat Ali is a former Agriculture Secretary