Gram Sarkar: A problematic initiative

The government went ahead with the implementation of the legislation on August 1, 2003, ignoring the constitutional and other concerns expressed about it by various interest groups. Since President Ziaur Rahman was the originator of the Gram Sarkar concept, the ruling BNP emotionally went ahead with it. In its rush, it even ignored the experiences of President Zia's Swanirvar Gram Sarkar (SGS), which were not all that positive. Within a few weeks, about 40,000 GS bodies were formed and the available evidence indicates that the process was quite problematic.

The Constitutionality of Gram Sarkar
The legislation designated Gram Sarkar as a supportive organisation of the UP in order to avoid its being called a new tier of local government. This was a clever move to avoid the problem encountered with respect to a similar law enacted during the previous government. In 1997, the Gram Parishad Act was passed by the Parliament to create almost in the same way a non-elected body at the ward level. The Act was challenged before the High Court Division of the Bangladesh Supreme Court on the ground that it violated Article 59 of the Constitution, which calls for local government bodies composed of elected persons in each administrative unit.

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Calling the GS a supportive organisation of the UP, however, does not make it a constitutionally valid entity. The critical question in this regard is: is the GS a part of the UP or is it a separate entity? Either way, its constitutional validity is questionable at best.

If the GS is to be viewed as an extension or part of the UP then also it is a local government body under the Constitution. It must then conform to Article 59 of the Constitution and be represented by persons elected in accordance with law. This means that the members of GS must be elected through a free, fair and credible election process. Such a process will require that elections be via secret ballots, conducted by an impartial body, namely the Election Commission, and be outside the control and interference of the government and/or the ruling party.

On the other hand, if one argues that the GS is not a part of the UP and should not meet the requirements of Article 59, then it must be a separate entity. In that case, it must be a new local government body outside the Article 59 of the Constitution as it is not designated as an administrative unit under Article 152(1) of the Constitution. In fact, the Act designated Gram Sarkar as a statutory body with all the essential features of a local government body -- perpetual existence; a seal; office; budget; oath-taking; ability to acquire, hold and dispose of moveable and immovable properties; and ability to sue and be sued. Thus, the Gram Sarkar must be a distinct local body (a sarkar by designation) managing local affairs at the lowest level.

The difficulty which arises in this context is that there cannot be two classes of local government bodies -- one under the Constitution and the other outside it. The Supreme Court, in its Full Court judgement on Kudrat-e-Elahi Panir Vs. Bangladesh (44DLR(AD)(1992)) clearly stated: "This will lead to a situation not contemplated by the Constitution ... (and hence a) mischief of the Article 7(1) of the Constitution." Ironically, this was the very argument used by the Court that a Upazila was not a designated administrative unit and hence not a local government body under Article 59 when the government decided to abolish the Upazila system.

The Gram Sarkar Act is inconsistent with our Constitution in another way. Article 59 of our Constitution states that, "Local government in every administrative unit of the Republic shall be entrusted to bodies, composed of persons elected in accordance with law." The Constitution did not intend local bodies to be subservient or extensions of the prevailing administrative structure. In fact, the Constitutional commitment was to make these bodies autonomous and parallel to the existing bureaucratic setup.

Our Constitution clearly created a dual structure of governance in our unitary system -- it provides for a national government with clear and distinct executive authorities and at the same time a local government system at each administrative unit to "manage local affairs by locally elected persons." (Kudrat-e-Elahi Panir Vs. Bangladesh)

However, by allowing UNOs to nominate the members of GS, the legislation institutionalises the supremacy of the bureaucracy over local government. This is clearly contrary to the constitutional commitment of autonomous local government bodies. Such supremacy, it goes without saying, will allow the bureaucracy to exert political pressure and create all kinds of mischief. Stories of such mischief abound in the case of UPs where a similar subservient relationship was created by law in violation of the Constitution.

In addition, the legislation gives the Deputy Commissioner the authority to dismiss the Gram Sarkar, again making it an entity subservient to the bureaucracy. Thus, the proposed GS would perpetuate, in violation of the Article 59 of our Constitution, the unequal relationship between government officials and elected local representatives that already exists in our country.

The 1992 judgement of the Full Court Bench of the Bangladesh Supreme Court was rather explicit about the illegality of involvement of the bureaucracy in the affairs of local bodies. The judgement clearly stated: "If Government's officers or their henchmen are brought to run the local bodies, there is no sense in retaining them as Local Government Bodies." This is an unequivocal position taken by the Bangladesh Supreme Court, the guardian of our Constitution, against the role of government officers and their designated persons (termed as henchmen) in local bodies.

Earlier experiences
In 1980, President Ziaur Rahman introduced the concept of Swanirvar Gram Sarkar (SGS) in the majority of the villages of the country. A team of Comilla BARD researchers carried out a study in three villages in three districts -- Muzaffarabad, Kalihati and Zirak -- to observe the workings of the SGSs. The researchers observed that:

"... in all the villages the participation of the common people in the meetings held for the formation of Gram Sarkar was very poor. It varies from 6 to 11% ... It was further observed that the government officials, chairman, and members of Union Parishads (except those who were affiliated to the ruling political party) were dis-interested in the new organisation and they expressed their indifference towards the concept ... In most of these cases, it was observed, that the people took it as an institution of a particular party to serve vested interests and they thought that their participation would not have been properly weighted even if they would have attended such meetings for formation of Gram Sarkar.

"It was observed that in the absence of any defined functional relationship between the Cooperatives, the Union Parishad and the Gram Sarkar, a sense of confusion and misunderstanding was prevailing both among the officials and non-officials. As a result of establishment of Gram Sarkar as a 'sarkar' (government) the people started thinking whether this new organisation would enjoy the authority of complete local government within their villages including the power to levy taxes. A good number of people in these areas were also thinking whether the Union Parishad would become less important or be abolished as a local government institution as a result of the establishment of Gram Sarkar."

The researchers suggested that "instead of selection of Gram Sarkar by consensus in all the cases, there should also be alternative provision for fair election to avoid sociopolitical influence and to give the common people a chance to elect their representatives without any fear or influence particularly where such problems arise." (Md. Manjurul Alam, Md. Hazrat Ali and Bijoy Kumer Barua, " Swanirvar Gram Sarkar in Bangladesh -- A Preliminary Observation on Three Villages," BARD, November 1980.)

National Institute of Local Government (NILG) published a study in 1994 on the experiences of SGS in four villages. The study concluded: "The SGSs made efforts to carry out some assigned functions such as agriculture, pisciculture, mass literacy, cottage industry, development of communication and family planning. They also settled disputes through salish ... But in practice, the SGSs could not succeed in any of the above activities except settlement of disputes. The reasons were: first, the institution lost people's support for being constituted on consensus rather than direct election ... growing conflicts among the SGS functionaries, UP functionaries and the general public ... there were growing conflicts and non-cooperation between the Union Parishad and the SGSs due to overlapping functions..." According to the study, "the members of the general public felt that the SGS would be effective had it been (i) a directly elected body, (ii) filled with good, honest and sincere people ..." (Quazi Afsar Hossain Saqui, Swanirvar Gram Sarkar in Four Villages of Bangladesh, NILG, 1994.)

Recent experiences
The formation of the GS in 2003 caught a lot of media attention. In November 2003, journalist Ajoy Das Gupta compiled the reports published in 14 national dailies on Gram Sarkar. At about the same time, Power and Participation Research Centre (PPRC), Unnoyan Sammunay and Brotee also conducted a rapid assessment of the process, outcome and perception about the implementation of Gram Sarkars. They all more or less came to the same conclusion that the recent formation of more than 40,000 Gam Sarkars was problematic.

Based on the reports of the formation of 1,150 GSs published in newspapers, Ajoy Das Gupta found that the rules and procedures were not followed in majority (53%) of the cases and there was no quorum in 60 percent of the places. Satisfactory and enthusiastic participation was observed in only 3.39 percent of the cases. The UNOs ignored the rules and procedures in 54.96 percent cases. The administration was found to be neutral in only 10.87 percent instances. Evidence of the nomination of opposition party members was found in less than 1 percent cases.

The study by PPRC and others concluded: "The implementation of gram sarkars came amidst a great deal of controversy. One strand of criticism was that it was mainly a partisan initiative by the ruling party that would heighten tensions in the rural areas. The other strand of criticism questioned how well mission objectives had been thought out and how well the electorate had prepared for such an initiative. The survey provides useful evidence on how well-founded such apprehensions were ... Though in about a quarter of the surveyed cases, the selection process reflected a strong degree of community consensus, the dominant perception of the selection process was as rubber-stamping of lists pre-selected under direct or indirect influence of the ruling party." The survey, however, found that the fear of widespread violence was not borne out by evidence because of the pre-event informal selection of the panel, low public enthusiasm and the implicit boycott by the major opposition party.

Last year, the government allocated as block grant Tk. 20 crore for Gram Sarkars. The current year's allocation is Tk. 40 crore. Serious questions have already been raised about the honest and effective implementation of projects with these large sums of money. There are also many instances of conflicts between UP bodies and Gram Sarkars.

"Exclusion" of Women
There is another serious criticism of the Gram Sarkar system. It is discriminatory to women in violation of the equal rights guaranteed under the Constitution. The present reservation system clearly "excludes" women from mainstream UP activities. This is an inherent weakness of the system now in place. Designating women members as advisors to GS bodies would not solve this problem of "exclusion." As advisors, women would continue to be "outsiders" with little or no authority and responsibility other than to give advice, if at all sought. Thus, the creation of Gram Sarkars would perpetuate women's peripheral role in our local government system and be contrary to the goal of empowering half of our total population.

To conclude, the Gram Sarkar appears to be an idea implemented rather emotionally and in haste. It raises serious constitutional issues. The experiences of Swanirvar Gram Sarkar of the early 1980s were not very positive. The recent experiences are also not very pleasant and promising. Thus, it is clear that the Gram Sarkar system serves no useful purposes and does not have much to offer. Rather, it is a parallel institution threatening the very existence of the Union Parishad which is a time-tested 135-year old institution.

Dr. Badiul Alam Majumdar is Global Vice President and Country Director, The Hunger Project-Bangladesh.