The Supreme Court's second directive to update the local government bodies is also important in that it would help correct some serious technical flaws in the existing statutes on local government. The technical flaws arose due to the passage of the Twelfth Amendment of the Constitution in 1991. It may be recalled that Articles 59, 60 and the last part of 11 were deleted in 1975 by the Fourth Amendment of the Constitution, creating a total constitutional vacuum with respect to local government. The Paurashava Ordinance, 1977 and The Union Parishad Ordinance, 1983 were enacted in the backdrop of such a vacuum. In the absence of constitutional mandates, these two laws made Paurashavas and Union Parishads as bodies totally subservient to national authorities. For example, the Paurashava and Union Parishad laws allowed the government officials to directly supervise, direct and control the local bodies. They were even given the authorities to cancel these bodies and suspend the elected representatives. More seriously, the laws designated elected representatives as "public servants," allowing the higher level public servants, i.e., government officials to impose unnecessary, unreasonable and unjust control over the latter's activities. The Twelfth Amendment of the Constitution which restored Articles 59 and 60, requiring an autonomous system of local government clearly made the above laws unconstitutional. This obviously required the laws to be amended and updated, and the Supreme Court rightly directed the government to do so.
It must be pointed out that The Upazila Parishad Act, 1998 and The Zila Parishad Act 2000 followed the other two statutes in making the elected bodies subservient to government officials, and similarly violated the Constitution. The Upazila Parishad Act, however, has an additional serious flaw. Section 25 of the said Act requires the Upazila Parishad to accept the advice of the local MP. This turns legislators into executives, which is a violation of the principles of separation powers and a clear assault on the Constitution.
Can the government justifiably ignore the Supreme Court directives? An Indian Supreme Court judgement may be pertinent in this regard. In PUCL and another Vs Union of India, the Court directed the Election Commission to collect from candidates in national and state elections sensitive information about their criminal antecedents, assets and liabilities and their educational qualifications, and help disseminate them among the public. The NDA government, with support from all other political parties, rejected the Supreme Court decision and decided to undo it through legislation. In response, the Court unequivocally stated that the "Legislature in this country has no power to ask the instrumentality of the State to disobey or disregard the decisions given by the Courts." It thus appears that the government has no alternative but to hold the Upazila and Zila Parishad elections without any further delays and also amend the laws, as directed by the Court.
Read more: http://archive.thedailystar.net/law/2005/01/02/index.htm