The rule of law does not have a precise definition. Often, the term operates as a catch-all for other conceptions of which the relevance to philosophical and political theory is hard to define. Yet at the same time, it is difficult to find out what the cash value of the concept is in helping to understand how best to fashion human relationships. It has been viewed in very diverse ways. One central clue to the meaning of the ‘rule of law’ is that it requires that there be some sort of rules. The rule of law in its most basic form is the principle that no individual is above the law and everyone must answer to it. The major legacy of the Constitutional system is that the rule of law is viewed as a doctrine that no individual stands above the law, and that all rulers are answerable to the law. The rule of law is a theory of governance relying upon a series of legal and social constraints designed to encourage order and to prevent arbitrary and unreasonable exercise of government powers.
The rule of law is one of the most challenging concepts of the constitution. It is also the most subjective and value laden of all constitutional concept. The concept of rule of law is, however the content may be, one of the basic principles of the English Constitution. This doctrine is accepted in the Constitution of U.S.A. and also in the Constitution of Bangladesh.
1.2 The Rule of Law: Differing Concepts and Interpretations
The rule of law is a viable and dynamic concept and like many other such concepts, is not capable of any exact definition. Different people have different interpretations about exactly what ‘rule of law’ means. V. D. Kulshreshtha observed that the rule of law is ‘so fluid that it is likely that everyone may understand and express it in his own way’ . There are many variations in how different countries organize legal and political institutions and apply the rule of law. These differences can often be confusing when talking about basic principles and contents.
According to Tamanaha, in the recent history of the rule of law:
Some believe that the rule of law includes protection of individual rights. Some believe that democracy is part of the rule of law, some believe that the rule of law is purely formal in nature requiring only that laws be set out in advance in general, clear terms, and be applied equally to all. Others assert that the rule of law encompasses ‘the social, economic, educational and cultural conditions under which man’s legitimate aspirations and dignity may be realized’…there are almost as many conceptions of rule of law as there are people defending it.
The term ‘rule of Law’ has a link with the French phrase ‘La Principe de Legality’ (the principle of legality) which was opposed to arbitrary powers. It is quite similar to American expression of ‘due process of law’ which connotes to a government based on principles of law and not of men; law must really rule and that justice should prevail.
There is a difference between the ‘rule by law’ and ‘rule of law’. Under the rule by law, law is an instrument of the government is above the law. In contrast, under the ‘rule of law’, no one is above the law, not even the government. The concept of law, therefore, may be used in two senses- narrower sense and wider sense. In narrower sense it means that people will abide by law and they will be governed by the law only. In wider sense it means that the government will be administered by law and under the authority only: it will not do anything beyond the authority of law.
Among modern legal theorists, most views on this subject fall into three general categories: the formal approach, the substantive approach, and the functional approach. &
The ‘formal’ interpretation is more widespread than the ‘substantive’ interpretation, and formalists hold that the law must be prospective, well-known, and have characteristics of generality, equality, and certainty. This formal approach allows laws that protect democracy and individual rights, but recognizes the existence of ‘rule of law’ in countries that do not necessarily have such laws protecting democracy or individual rights. The substantive interpretation holds that the rule of law intrinsically protects some or all individual rights.
In addition to the formal and substantive interpretations of the term ‘rule of law’, another leading interpretation is the functional definition. According to the functional view, a society in which government officers have a great deal of discretion has a low degree of ‘rule of law’, whereas a society in which government officers have little discretion has a high degree of ‘rule of law’.
The concept of rule of law changes with the change of social values. In differing societies, as Hilaire Barnett remarked:
Subscribing to very different political philosophies, the insistence on the rule of law- in the Western liberal sense- has little application. For example, from a Marxist perspective, the law serves not to restrict government and protect individual rights but rather to conceal the injustices inherent in the capitalist system. It can be argued- from the socialist perspective that liberalism pays too little regard to true equality between persons and too great attention to the protection of property interests. The liberal domain thus becomes one which, again, masks true social and economic inequality while at the same time proclaiming equality and justice under the rule of law.
In traditional Oriental society, the Western preference for law is an alien notion. Laws are seen, in relation to traditional Chinese society, as, David and Briereley write:
For the Chinese, legislation was not the normal means of guaranteeing a harmonious and smooth-working society. Laws, abstract in nature, could not take into account the infinite verity of possible situations. Their strict application was apt to affect man’s innate sense of justice. To enact laws was therefore considered a bad policy by traditional Chinese doctrine. The very exactitude which laws establish in social relations, and the way in which they fix the rights and obligations of each individual, were considered evils, according to the Chinese, not benefits. The idea of rights, an inevitable development of the laws themselves, ran counter to the natural order. Once individuals think of their rights there is, it was thought, some form of social illness, he only true matter of concern is one’s duty to society and one’s fellow men.
The concept of ‘rule of law’ may, therefore, depend upon a nation’s economic resources, social behaviors, political attitudes. If the rule of law implies more than mere regulation by law and is elevated to theory guaranteeing freedom from hunger and homelessness and entitlement to a basic decent standard of life, then economic conditions are of paramount importance to conformity with the rule of law. On the other hand, conservatives be argued that the correct role of government as being best confined to establishing clear, fixed rules of law which ensure maximum economic freedom for individuals, unimpeded either by planning controls or ideas of redistributive practice.
DEVELOPMENT OF THE CONCEPT OF THE RULE OF LAW
2.1 Concept of the rule of law
The term ‘Rule of Law’ is derived from the French phrase ‘La Principe de Legality’ (the principle of legality) which referse to a government based on principles of law and not of men. In this sense the concept of ‘La Principe de Legality’ was opposed to arbitrary powers. The rule of law is old origin. In thirteenth century Bracton, a judge in the reign of Henry III wrote-
“The king himself ought to be subject to God
and the law, because law makes him king.”
Edward Coke is said to be the originator of this concept, when he said that the king must be under God and law and thus vindicated the supremacy of law over the pretensions of the executives. Professor A.V. Dicey later developed on this concept in his classic book ‘The Law Of The Constitution.’ published in the year 1885. Dicey’s concept of the rule of law contemplated the absence of wide powers in the hands of government officials. According to him wherever there is desecration there is room for arbitrainess.
The rule of law is a viable and dynamic concept and like many other such concepts, is not capable of any exact definition. Its simplest meaning is that everything must be done according to law, but in that sense it gives little comfort unless it also means that the law must not give the government too much power. The rule of law is opposed to the rule of arbitrary power. The primary meaning of rule of law is that the ruler and the ruled must be subject to law and no one is above the law and hence accountable under the law. It implies the supremacy of law and the recognition that the law to be law can not be capricious.
2.2 Dicey’s theory of rule of law
According to Dicey, the rule of law is one of the fundamental principles of the English constitution he gave three meanings of the concept of rule of law.
- Absence of Arbitrary Power or Supremacy of Law
Explain the first principle, Dicey states that rule of law means the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power or wide discretionary power. According to him Englishmen were ruled by the law and by the law alone; a man with us may be punished for breach of law, but can be punished for nothing els. In this sense the rule of law is contrasted with every system of government based on the exercise by person in authority of wide arbitrary or discretionary powers of constraint.
- Equality Before Law
Rule of law, in the second principle, means the equality of law or equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts. In this sense rule of law conveys that no man is above the law; that officials like private citizens are under a duty to obey the same law, and there can be no Special court or administrative tribunal for the state officials.
- Constitution is the result of the ordinary law of the land
The rule of law lastly means that the general principles of the constitution are the result of judicial decision of the courts in England. In many countries right such as right to personal liberty, freedom from arrest, freedom to hold public meeting are guaranteed by a written constitution; in England, it is not so. Those rights are the result of judicial decisions in concrete cases which have actually arisen between the parties. The constitution is not the source but the consequence of the rights of the individuals. Thus, dicey emphasized the role of the courts of law as gruantors of liberty.
2.3 Criticism of dicey’s theory of rule of law
Dicey developed the contents of his thesis by peeping from a foggy England into a sunny France. several attacks have been mounted against Dicey’s theory of rule of law. As to his first principle he says that there would be no arbitrary or discretionary power. But even in Dicey’s lifetime there were both arbitrary and discretionary power in Britain. Preventive detention, emergency situation, compulsory acquisition of goods and properties, direct enforcement of administrative decision etc. are the best example of exercise of arbitrary power. Again there is a distinction between arbitrary power and discretionary power which dicey failed to trace.
The second principle of rule of law dicey says that there should be equality before law and all are amenable to ordinary courts of the land. But this principle has many exceptions because equality before law is not possible in every case. The king or the head of the state in other countries are immune from both criminal and civil action, judges are immune from personal responsibility for their official acts even if they might have acted beyond their jurisdiction but not knowingly.
Again, Dicey says that there should be no separate administrative courts as in French ‘Droit Administratif.’ In fact Dicey misunderstood the real nature of the French ‘Droit administratif.’ The French system in many respect proved to be more effective in controlling the administrative powers than the common law system.
As regards his third principle Dicey says that the fundamental right and libertis emanate from judicial decisions. But this is one-sided view. Because in England people have got many rights through the law of parliament and charters issued by the monarchs. Various public authorities, the Crown, the House of Parliament, the court, the administrative authorities have powers and duties and most of these are determined by statute not by the courts.
So it has been clear from the above discussion that the abolition of discretionary power is not possible fully and also equality before law is not possible in every case. His third principle was abandoned since most other countries in the world have a bill of rights on some description. So the concept of rule of law as propounded by Dicey needs modification.
Though it has become a fashion to criticise Dicey’s theory of rule of law- the three important things absence of arbitrary power, guarantee of citizens right and the equality before law over which he made emphasis are universally recognized as the core of traditional theory of rule of law.
2.4 Rule of law in true and modern sense
Today Dicey’s theory of rule of law cannot be accepted in its totality. The modern concept of the rule of law is fairly wide and therefore sets up an ideal for any government to achieve. This concept was developed by the International Commission of Jurists. Known as Delhi Declaration, 1959 which was latter on confirmed at logos in 1961. According to this formulation—
“the rule of law implies that the functions of the government in a free society should be so exercised as to create conditions in which the dignity of man as an individual is upheld. This dignity requires not only the recognition of certain civil or political rights but also creation of certain political, social, economical, educational and cultural conditions which are essential to the full development of his personality”.
According to Davis, there are seven principal meanings of the term ‘Rule of law:
(1) law and order;
(2) fixed rules;
(3) elimination of discretion;
(4) due process of law or fairness;
(5) natural law or observance of the principles of natural justice;
(6) preference for judges and ordinary courts of law to executive authorities and administrative tribunals; and
(7) Judicial review of administrative actions.
So finally it may correctly be said that rule of law does not mean and cannot mean any government under any law. It means the rule by a democratic law- a law which is passed in a democratically elected parliament after adequate debate and discussion. Likewise, Sir Ivor Jennings says –
“In proper sense rule of law implies a democratic system, a constitutional government
where criticism of the government is not only permissible but also a positive merit and where parties based on competing politics or interests are not only allowed but
encouraged. Where this exist the other consequences of rule of law must follow”.
RULE OF LAW IN INTERNATIONAL PERSPECTIVE
3.1 Rule of Law in UK
The Rule of law, in UK, was developed over the centuries as a brake on arbitrary power. The modern concept of rule of law owes much to the great battles between the English kings and their subjects, the struggle for supremacy between parliament and Stuart kings, and finally the war between the British Empire and its American Colonies.
The rule of law is an ambiguous expression and may mean different thing for written, The rule of law is a concept which underpins the constitution of UK and itself supported by the separation of powers. Although the Concept dates from Aristotle –“the rule of law is preferable to that of any individual.”
For Dicey the Expression rule of Law includes three distinct conceptions-
See- 2.2 & 2.3 of Chapter-2.
3.2 The Rule of Law in USA
The America of 1787 inherited from medieval England the concept of rule of law, sometimes expressed as “a government of laws, not of men.” One may trace the rise of this principle in English history all the way back to the signing of Magna Charta in the year 1215, when King John found it necessary to guarantee his obedience to English laws. For that matter, medieval English writers on law derived their understanding of the rule of law from ancient Roman jurisprudence.
This doctrine that no man is above the law applied not only to kings but also to legislative bodies and judges. Sir Edward Coke, we saw earlier, fiercely resisted not only attempts by King James I to interpret the law for himself but also Acts of Parliament that contravened the common law. Citing Bracton as an authority, he asserted that “the king must not be under any man, but under God and the law.” In Dr. Bonham’s Case (1610), Coke laid down the principle of judicial review, claiming that judges had a right, when interpreting Acts of Parliament, to declare them null and void if they conflicted with established principles of law and justice. “And it appears in our books,” said Coke, “that in many cases, the common law will control Acts of Parliament, and sometimes adjudge them to be utterly void; for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such an Act to be void.”
That the English had turned their backs on their own tradition and respect for rule of law was the principal grievance of American colonial leaders. In his famous pamphlet The Rights of the British Colonies Asserted and Proved (1764), James Otis wrote:
To say the Parliament is absolute and arbitrary, is a contradiction. The Parliament cannot make 2 and 2 [equal] 5. … Parliaments are in all cases to declare what is good for the whole; but it is not the declaration of parliament that makes it so. There must be in every instance a higher authority—God. Should an act of parliament be against any of His natural laws, which are immutably true, their declaration would be contrary to eternal truth, equity and justice, and consequently void.
Similar arguments were made by the State supreme court judges after 1776. Their attempts to nullify legislative enactments through the power of judicial review were largely unsuccessful, however, because most early State constitutions, like the English Constitution, followed the doctrine of legislative supremacy. Acts passed by the State legislatures were expected to conform to the State constitutions. But there were no provisions calling for the supremacy of the State’s constitution over laws passed by the legislature should the judges decide that a law conflicted with the State’s constitution. Thus, the absence of a supremacy clause in these State constitutions rendered the power of judicial review weak and ineffective.
The Federal Constitution of 1787 drastically changed the concept of constitutional government by introducing the principle of constitutional supremacy. Article VI declared that “This Constitution … Shall be the supreme law of the land.” Laws passed by Congress, though supreme in relation to State constitutions and State laws, were ranked below the Constitution. Indeed, Article VI explicitly stated that such laws must conform to, and be made in pursuance of, the Constitution. Noting the significance of the Supremacy Clause, Chief Justice John Marshall held in the famous case of Marbury v. Madison (1803) that an Act of Congress contrary to the Constitution was not law:
It may thus be seen that the American Constitution and the power of judicial review are an extension of rule of law. The Constitution is law, the highest law, and the President, Congress, and the Federal Judiciary are bound by its terms. A government of laws and not of men is, then, the underlying principle of the American political and legal system.
This means that no person, however powerful or talented, can be allowed to act as if he were superior to the law of the land. Public decisions must be made upon the basis of law, and the laws must be general rules that everybody obeys, including those who make and enforce the law. A law that violates the Constitution is not a law and is not, therefore, enforced. This was the principle that Marshall followed in Marbury v. Madison. Likewise, rule of law means equality before the law. A law that singles out certain people for discriminatory treatment, or is so vague and uncertain that one cannot know what it requires, will not be treated as a law.
Rule of law, then, is not rule of the law, but a doctrine concerning what the law ought to be—a set of standards, in other words, to which the laws should conform. Merely because a tyrant refers to his commands and arbitrary rulings as “laws” does not make them so. The test is not what the rule is called, but whether the rule is general, known, and certain; and also whether it is prospective (applying to future conduct) and is applied equally. These are the essential attributes of good laws—laws that restrain but do not coerce, and give each individual sufficient room to be a thinking and valuing person, and to carry out his own plans and designs. This does not mean that the individual is free to do as he pleases; for liberty is not license. As the Framers knew well, absolute freedom would be the end of freedom, making it impossible for society to be orderly, safe from crime, secure from foreign attack, and effectively responsive to the physical, material, and spiritual needs of its members. Under God, said the exponents of the rule of law, the law governs us; it is not by mere men that we ought to be governed; we can appeal from the whims and vagaries of human rulers to the unchanging law.
Though this is a grand principle of justice, often it is difficult to apply in practice. Passion, prejudice, and special interest sometimes determine the decisions of courts of law; judges, after all, are fallible human beings. As the Virginia orator John Randolph of Roanoke remarked sardonically during the 1820s, to say “laws, not men,” is rather like saying “marriage, not women”: the two cannot well be separated.
Yet the Framers at Philadelphia aspired to create a Federal government in which rule of law would prevail and men in power would be so restrained that they might not ignore or flout the law of the land. The Supreme Court of the United States was intended to be a watchdog of the Constitution which might guard the purity of the law and forcefully point out evasions or violations of the law by the other branches of government or by men in public office.
The Framers knew, too, the need for ensuring that the President of the United States, whose office they had established near the end of the Convention, would be under the law—not a law unto himself. The President’s chief responsibility, in fact, is to enforce and uphold the law, and to “take care that the laws be faithfully executed.” Whereas the members of Congress and the Federal Judiciary, and other Federal and State officials, all take an oath “to support this Constitution” (Article VI, Clause 3), the President—and the President alone—swears on the Bible (or affirms) that he will “preserve, protect and defend the Constitution” (Article II, Section 1, Clause 8).
Thus in the final analysis the nation looks to the President as the person ultimately responsible for upholding the rule of law and the supremacy of the Constitution. By making him Commander-in-Chief of the armed forces and by giving him the power to supervise the heads of the various departments of the executive branch, the Constitution also confers upon the President the means by which he may fulfill his law enforcement responsibilities.
By and large, America has enjoyed rule of law, not of men. No President of the United States has ever tried to make himself dictator or to extend his term of office unlawfully. Martial law—that is, a suspension of the law and the administration of justice by military authorities in times of war, rebellion, and disorder—has never been declared nationwide. No party or faction has ever seized control of the Federal government by force or violence. The Constitution of the United States has never been suspended or successfully defied on a large scale. Thus the rule of law has usually governed the country since 1787—a record true of very few other countries of the world
3.3 Rule of Law in India & Indian Constitution
India has been hailed as the world’s largest and most vibrant democracy. The world is full of praise for the rule of law and democratic freedoms which, in South Asia, are enjoyed only by those living in India. More than Sixty Years of Democracy have, however, failed to improve the lives of the masses in India.
India has a written constitution; a body of laws, subordinate to the constitution, dealing with various subjects; rules and regulations, executive instructions & Conventions. All these may be broadly termed as ‘law’ and their operation to subject population is the ‘Rule of Law’
On paper, India also has a fairly elaborate and developed system of justice administration. The best and the most liberal strands of Anglo-Saxon jurisprudence have been interwoven into the foundations of our legal system.
3.3.1 Human Rights Abuse
At first sight, it seems that the rule of law and the respect for human rights and human dignity prevail but there exists significant human rights abuses, despite the extensive constitutional and statutory safeguards. Many of these abuses are generated by intense social tensions, violent secessionist movements and the authorities’ attempts to repress them, and deficient police methods and training. Serious human rights abuses include extra-judicial executions and other political killings, torture, and excessive use of force by security forces and separatists militants, as well as kidnapping and extortion by militants, especially in Kashmir and north east India; torture, rape, and deaths of suspects in police custody through out India; arbitrary arrest and incommunicado detention in Kashmir and in the north-east; Continued detention through out the country of thousands arrested under special security legislation; long delays in criminal trials; widespread inter-caste and inter-communal violence, both societal and by the police and other agents of government, against women; discrimination and violence against indigenous people; and widespread exploitation of indentured, bonded, and child Labour.
In India, there are various groups of people who are socially or economically disadvantaged such as Dalits, the tribals, the abjectly poor, the abysmally helpless and ignorant, the landless, the women, and all those who are or are forced to become marginal to the mainstream. They compromise an overwhelming majority.
India’s caste system continues to cast its shadow over the country’s secular and democratic constitution. Although Art 17 of the Constitution of India abolishes the practice of untouchablity, and Art 14 & 15 calls for equality and the prohibition of any form of discrimination respectively, widespread social and economic inequalities and discriminations plague Indian society and are in fact are constantly on the rise. Social Discrimination is rife in India and it increasingly takes the form of police and state abuse towards scheduled castes, as well as other ethnic minorities. Discriminatory attributes are rife amongst law enforcement officials; the Indian police force is known for its communalism and political affiliations. Large scale violations of human rights perpetrated on Dalits involve burning of homes and fields, murder, torture and beating of women, molestation, rape, and custodial death.
Women are particularly vulnerable to the discrimination in India. Custodial rape is not unusual and the conviction rate for this type of crimes remains close to zoo. Rape committed by the armed forces is also common in areas of insurgency, such as north-east India, where this offence is usually perpetuated during combating operations carried out in search of terrorists.
Custodial torture is another example of the widespread violation of civil rights of citizens. It happens in spite of Art 22 of the Constitution of India, which provides for the protection against arbitrary arrest and detention. The Hon’ble Supreme Court of India has time and again held that the dignity of individuals should be maintained at all times, including when they are in a state custody, and that an individual never loses his fundamental rights which continue to inhere in him even when he is in judicial custody. The Hon’ble Supreme Court held that the right to life (Art 21) includes the right not to be tortured or humiliated. The apex Court had laid down guidelines to be followed in cases of detention and judicial custody; this includes an obligation on the part of the state to ensure that there is no infringement of the indefeasible rights of a citizen to life, except in accordance with law, while the citizen is in its custody. In spite of this, one gets to hear almost everyday about cases of custodial deaths. This is so because the state confers arbitrary power to the police under the pretext of maintaining law and order, and in so doing, legitimizes human rights violations. The Indian police today are also agents of social prejudice and bias.
3.3.2 Indian Judiciary & Rule of Law
The Hon’ble Supreme Court and the various High Courts through Judicial activism and public interest litigation, other bodies such as the National Human Rights Commission and State Human rights Commissions and various non-governmental organizations have made significant contributions towards protecting freedoms and preventing human rights violations and abuses, thereby ensuring that the Rule of Law and respect for citizens’ rights do not remain only on paper but are incorporated in practice too.
With the Constitution 1st Amendment Act, 1951, the status of Rule of law in India was shocked. The question which came up for consideration in Shankari Prasad v. Union of India was whether the fundamental rights can be amended under Art 368. The first Amendment Act, 1951 inserted Art 31 A and Art 31 B in the Constitution of India and it was challenges on the ground that it violated or abridges the right conferred under Part III of the Constitution. The Hon’ble Supreme Court held that Parliament has the power to amend Part III of the Constitution under Art 368 as under Art 13 law means any legislative action and not a constitutional amendment. Therefore, a constitutional amendment would be valid if abridges any of the fundamental rights. Again, the question came up for consideration in Sajjan Singh v. State of Rajasthan in which the Hon’ble Supreme Court approved the majority judgment in Shankari Prasad case and held that amendment of the Constitution means amendment of all provisions of the Constitution. Hon’ble Chief Justice Gajendragadkar held that if the framers of the constitution intended to exclude fundamental rights from the scope of the amending power they would have made a clear provision in that behalf. Both these cases were overruled by the Hon’ble Supreme Court in Golk Nath v. State of Punjab and held that Parliament have no power to amend the Part III of the Constitution so as to take away or abridges the fundamental rights and thus, at the end the Rule of law was sub served by the Judiciary from abridging away. But this was not the end. The Rule of law was trumpled down with the Constitution 24th Amendment Act, 1971. Parliament by the way of 24th Amendment inserted a new clause (4) in Art 13 which provides that ‘nothing in this Article shall apply to any amendment of this constitution made under Art 368’. It substituted the heading of Art 368 from ‘procedure for amendment of Constitution’ to ‘Power of Parliament to amend Constitution and Procedure thereof’. The 24th Amendment not only restored the amending power of the parliament but also extended its scope by adding the words “to amend by way of the addition or variation or repeal any provision of this constitution in accordance with the procedure laid down in the Article”.
The Constitution 24th Amendment Act, 1971 was challenged in the popular & most controversial case of His Holiness Keshavanand Bharti v. State of Kerala . The Hon’ble Supreme Court by majority overruled the decision given in Glok Nath’s case and held that parliament has wide powers of amending the constitution and it extends to all the Articles, but the amending power is not unlimited and does not include the power to destroy or abrogate the basic feature or framework of the constitution. There are implied limitations on the power of amendment under Art 368. Within these limits Parliament can amend every Article of the Constitution . Thus, Rule of law prevailed. Justice H R Khanna played a vital role in preserving the Rule of law although he concurred with the majority decision.
3.3.3 Habeas Corpus case: A Black Mark on Rule of Law
The widespread detentions of political leaders and prominent citizens led to a spate of Habeas Corpus Petition seeking the invalidation of detention orders, in courts all over India. Nine High Courts took the correct view that, notwithstanding the suspension of fundamental rights under Art 14, 19, 21 & 22, the petitions were maintainable. The High Courts judicially reviewed detentions orders inter alia on the grounds of ultra vires, breach of statutory provisions, mala fide or other illegalities.
The Supreme Court in A D M Jabalpur v. Shivkant Shukla by majority 4:1 over turned the verdicts of these High Courts and held that neither detainees nor anyone on their behalf had right to move the courts for habeas corpus in view of the suspension of fundamental rights. This decision even excluded challenges to detention orders on the Act or was mala fide i.e. not passed by an authorized person or issued against a wrong person. The majority consisted of Chief Justice A N Ray, Justice M H Beg, Y V Chandrachud and P N Bhagwati – the lone dissenter was Justice H R Khanna.
RULE OF LAW IN BANGLADESH
4.1 The Provisions of the Constitution which Ensures the Rule of Law
The Constitution of Bangladesh in the preamble proclaims rule of law as the prime objective of the Constitution. Referring to the preamble, Syed Ishtiaq Ahmed submitted in the Eighth Amendment case, these are so real that these have found a new habitat in the body of the Constitution itself as substantive provisions (Art.7 and 8). In fact, the Appellate Division identified the rule of law as a basic structure of the Constitution. At the beginning of the substantive provisions, notice is given in article 7 of the Constitution that rule of law is central to the governance of the Republic. However, if we examine the provisions of the Constitution, we find that the entire constitutional regime is aimed at achieving the rule of law as it is understood in the present day.
The rule of law is a basic feature of the Constitution of Bangladesh. It has been pledged in the preamble to the Constitution of Bangladesh that –
It shall be fundamental aim of the state to realize through the democratic process a socialist society, free from exploitation – a society in which the rule of law, fundamental human rights and freedom, equality and justice, political economic and social, will be secured for all citizens.
Before laying down the structure of the government, article 7 of the Constitution loudly speaks of representative government. Article 9 speaks about extension of representative character to the sphere of local government and article 11 provides for elected representatives at all levels of administration. Article 59 emphatically requires that the local government in every administrative unit of the Republic shall be entrusted to bodies composed of persons elected in accordance with law. When Parliament by law abolished the tier of Upazilla Parishad, Syed Ishtiaq Ahmed and other lawyers challenged the legislation on ground of violation of the provision of article 59. The Appellate Division, while rejecting the contention of the petitioners, made a very important observation that the abolition of a tier of local government must not be a subterfuge to vest the powers and functions of the abolished tier with non-representative person or body.
Again, a representative government becomes meaningless unless free and fair election to reflect the wishes of the people can be ensured. Therefore, the Constitution has entrusted the function of holding election to the Election Commission which has been declared to be independent in discharge of its functions. To ensure the independence of the Election Commission, it has been provided that the members of the Election Commission shall not be removed from their office except in like manner and on the grounds as a judge of the Supreme Court can be removed. In Shah Alam v. Mujibul Haq the Appellate Division held:
the Election Commission has been vested with plenary, supervisory and discretionary jurisdiction to oversee that an election is conducted honestly, justly and fairly and in accordance with the provision of law and in doing so it may pass any order, unless specifically barred, including an order for re-poll, acceptance/consolidation of result, review etc. on the basis of materials before it and the power of judicial review to challenge the order of the Election Commission cannot be invoked except on the very limited ground of total absence of jurisdiction (corum non judice) or malice in law.
Government to run in accordance with law
Besides providing for representative government, the Constitution clearly mandates that all government actions to be taken in accordance with the provisions of the Constitution and laws of the land. Thus every governmental action must have a legal basis, particularly when such action impinges on the rights or liberty of citizens. Articles 7 and 26 impose limitation on the legislature that no law which is inconsistent with any provision of the Constitution can be passed.
Equality before the law
As regards ‘equality before law’, Article 27 of the Constitution declares that:
all citizens are equal before the law irrespective of their status and position and any person howsoever high and mighty is amenable to the provisions of law.
The Constitution of Bangladesh declares that there will be no discrimination against any citizen on the ground only of race, religion, caste, sex or place of birth in respect of access to places of public entertainment or resort. All public functionaries are liable to be sued in the courts of law in the country when they infringe the rights and liberty of the individual citizens. The only exception is that of the President of the Republic who cannot be sued for actions taken by him or in his name. In such case the government can be sued by the individuals and article 146 of the Constitution clearly states the position.
However, it is to be said that equality under the provisions of the Constitution of Bangladesh does not imply mechanical equality or mathematical clarity. Discrimination or classification may be found or permitted in the constitution. However, it may be said that if a law provides any discrimination in favour of or against a class, the classification is to be made on a real difference having a clear basis on its subject matter.
Equal protection of law
Article 27 of the Constitution prohibits discriminatory laws and actions by the government and public functionaries. All laws which provide for or permit discriminatory treatment are void in view of the provision of article 26 of the Constitution. Article 27 requires that:
no person or class of persons shall be denied the same protection of laws which is enjoyed by other person or class of persons in like circumstances in their lives, liberty and pursuit of happiness.
Even when a law on its face is not discriminatory, but confers discretionary power to any public functionary without providing any guideline for the exercise of the discretionary power thus leaving the possibility of discriminatory treatment by the administration open. Public Servants Retirement Act, 1974 permitted the government to retire a public servant on completion of 25 years of service without providing any guideline for selection of persons for such retirement. The Appellate Division held the provision of compulsory retirement in that Act discriminatory for not providing any guideline for applying the law of compulsory retirement. The government then amended the Act providing the guideline of public interest for applying the provision of compulsory retirement and also providing that the orders of compulsory retirement made before the amendment of the law should be deemed to have been made in public interest.
Equal protection of law recognizes that any citizen otherwise qualified for appointment in the service of Bangladesh, shall not be discriminated on the ground only of race, religion, caste, sex or place of birth. There are some qualifications to this rule: (a) posts may be required for any backward section of the citizens, (b) posts relating to any religious or denominational institution may be reserved for appointment to persons of that religion or denomination, (c) in the interest of any service, specific post or service may be reserved for member of either sex.
It is not sufficient to make provisions in law against discriminatory treatment. Sometimes it becomes necessary to enact the provisions like articles 28 and 29 which protected women or children or for the advancement of any backward section of citizens, specially to avoid any plea of discrimination.
Treatment in accordance with law
Rule of law requires that individuals should be dealt with in accordance with law. Article 31 of the Constitution prescribes protection of law as one of the fundamental rights. As regard right to protection of law, the Constitution of Bangladesh provides:
to enjoy the protection of the law, and to be treated in accordance with law, and only in accordance with law, is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Bangladesh, and in particular no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law.
This article together with other fundamental rights incorporated in Chapter III of the Constitution recognizes the view of the rule of law that law does not mean any law passed by the legislature; such law must not be arbitrary, discriminatory or unreasonable.
Even though article 31 emphasizes the qualitative aspect of law, the framers of the Constitution provided in article 32, “No person shall be deprived of life or personal liberty save in accordance with law”. Therefore, article 32 will be strictly scrutinized when it relates to or deals with life or personal liberty. Life within the meaning of articles 31 and 32 means something more than mere animal existence. It comprehends the right to live consistently with human dignity and decency. It brings within its purview a right to live a healthy life and any serious health hazard brings into action the provisions of articles 31 and 32. The provision of article 32 amounts to a proposition that no person is to take the life of liberty of another person except under a law authorizing him to do so.
Protection of basic human rights
Part III of the Constitution have guaranteed 18 fundamental rights and Constitutional arrangement for their effective enforcement has been ensured in articles 44 and 102. We have already dealt with the equality clause and due process clause incorporated in the Constitution. Article 33 provides for safeguards as to arrest and detention, article 34 prohibits forced labour and article 35 provides protection in respect of trial and punishment. Freedom of assembly, association and freedom of thought and conscience and of speech are guaranteed by articles 37, 38 and 39 respectively. Articles 40, 41 and 42 relate to freedom of profession or occupation, freedom of religion and right to property. Article 43 guarantees protection of home and correspondence.
On the other hand, article 44 of the Bangladesh Constitution guarantees the right to move the High Court Division in accordance with article 102 for the enforcement of the fundamental rights.
Moreover, in accordance with Articles 7, 26 and 102(2) of the constitution the Supreme Court exercises the power of judicial review whereby it can examine the extent and legality of the actions of both the executive and legislative and can declare any of their actions void if they do anything beyond their constitutional limits.
Protection in respect of arrest and detention
In this context, article 33(1) mandates:
no person who is arrested shall be detained in custody without being informed, as soon as may be of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice.
Again Article 33(2) says:
every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the court of the magistrate, and no such person shall be detained in custody beyond the said period without the authority of a magistrate.
But these rights of clauses 1 and 2 have been limited by clause 3, 4, 5 and 6 of the said Article, which are related to preventive detention. It is to be said here that although rule of law does not commend detention of individuals without trial, but sometimes, especially in case of emergency, it becomes necessary to detain individuals to prevent them from doing acts prejudicial to the State and law and order. Therefore, law provides for detention without trial if the executive forms an opinion that such detention is necessary. It is true that article 32 takes care that such law is not arbitrary or unreasonable. Thus while sanctioning a law providing for preventive detention, article 33 of the Constitution provides for Advisory Board to examine the exercise of the discretion by the executive and prescribes that no person shall authorize the detention of a person for a period exceeding six months unless the Advisory Board after considering the representation of the detenu and giving him opportunity of hearing reports that there is sufficient cause for such detention. On the other hand, article 102(2) (b) (i) gives a right to the detenu to move the High Court Division with a writ of habeas corpus and it casts a duty on the High Court Division to be satisfied on the basis of materials placed before it that such a detention is justified. Every such detention prima facie violates the fundamental right of the individual guaranteed by article 32 of the Constitution and the Supreme Court has performed exceedingly well in protecting the liberty of the individuals.
Power of judicial review
Constitutional guarantees and declaration of rule of law are meaningless unless there is a body to supervise that the constitutional mandates are complied with. The Constitution makes provision for judicial review of laws and governmental action and invested the Supreme Court of Bangladesh with the power of judicial review under Articles 7 and 26 which gives the substantive law and article 102 gives the implementing law of it, for it provides for the procedure-how a law which is inconsistent with the provisions of the constitution can be declared unconstitutional by issuing prohibition, mandamus, and certiorari; and providing for appeal before the Appellate Division under article 103.
In the famous case of Anwar Hossain Chowdhury v. Bangladesh, the Appellate Division found this power of judicial review to be a basic feature of the Constitution which cannot be curtailed or modified even by amendment of the Constitution. By Martial Law Proclamation Order No.11 of 1982, the High Court Division of the Supreme Court at Dhaka was replaced by four permanent Benches at Dhaka, Rangpur, Jessore and Comilla. Subsequently three more permanent Benches were set up in Chittagong, Sylhet and Barisal. Lawyers started movement against such fragmentation of the High Court Division. Important members of the Supreme Court Bar including Syed Ishtiaq Ahmed were detained in jail for some time. When the Constitution was revived, the permanent Benches outside the capital were treated as Sessions of the High Court Division outside the capital. Lawyers contended that this was unconstitutional. On 9.6.1988 article 100 of the Constitution was amended setting up six permanent Benches at Rangpur, Jessore, Barisal, Chittagong, Comilla and Sylhet and the President was authorized to fix territorial jurisdiction of the permanent Benches by notification and thereby to curtail the jurisdiction of the High Court Division in the permanent seat of the Supreme Court. Three writ petitions were filed challenging the amendment of the Constitution on the ground, inter alia, that the High Court Division of the Supreme Court with plenary judicial power of the Republic is a basic structure of the Constitution which cannot be altered by amendment rendering the High Court Division with plenary judicial power over the Republic non-existent. The Appellate Division by a majority of 3 to 1 accepted the challenge and declared the amendment void.
Administrative actions may be reviewed under constitutional provisions. Under Article 102(2) of the Constitution the Supreme Court can examine the validity of actions performed by any public officials or bodies.
Article 102 of the Constitution empowers the Supreme Court to exercise the power of judicial review on application by a person aggrieved. The phrase person aggrieved was interpreted to mean a person who has actually suffered any detriment and not a grief suffered generally as a member of the public. Such an interpretation resulted in many wrongs committed by public functionaries go unchallenged for want of any person aggrieved, a result not consistent with the rule of law. In Dr. Mohiuddin Farooque v. Bangladesh, the Appellate Division reversed the position and permitted public interest litigation. Distinguishing its earlier decision, the court held:
In so far as it concerns public wrong or public injury or invasion of fundamental rights of an indeterminate number of people, any member of the public, being a citizen, suffering the common injury or common invasion in common with others or any citizen or an indigenous association, espousing that particular cause is a person aggrieved…
Now there is no scope of any public wrong committed by any public functionary escaping judicial scrutiny for want of locus standi of the petitioner in establishing rule of law.
Independence of judiciary
An independent judiciary is, however, an important precondition for ensuring rule of law in a country. With regard to the executive branch, Article 22 of the Constitution provides that the State shall ensure separation of the judiciary from the executive organs of the State. Article 94(4) declares the independence of the judges of the Supreme Court in discharge of their judicial functions. Article 96(5) provides that a judge of the Supreme Court can be removed from service only if he has ceased to be capable of properly performing the functions of his office by reason of physical or mental incapacity or he is guilty of gross misconduct. He can be removed by the President only after inquiry and hearing by the Supreme Judicial Council comprised of the Chief Justice and two senior most judges of the Appellate Division. Articles 96 and 147 provide the security of tenure and terms and conditions of service of the judges of the Supreme Court.
However, independence of subordinate judiciary is equally necessary for rule of law to operate. The subordinate judicial officers and the magistrates exercising judicial functions remain under the control and supervision by the executive branch of the government.
4.2 The Provisions of the Constitution which contradicts the Rule of Law
Rule of law requires that no man should be arrested and detained without any charge of criminal offence. But the Constitution permits such arrest and detention when security of the State or maintenance of law and order requires such detention. Article 33 of the Constitution as originally adopted did not permit such preventive detention. By the Constitution (Third Amendment) Act XXIV of 1973 the original article 33 was replaced by a new article 33 which permitted such preventive detention with certain conditions and limitations. Then the Special Powers Act, 1974 was passed. Section 3 of this Act provides that the government may, if satisfied that it is necessary to detain any person to prevent him from doing prejudicial acts, pass order for detention of such person. Sub-section (2) of section 3 confers similar power on the Deputy Commissioners or the Additional Deputy Commissioner of a district to pass such an order for arrest and detention in respect of some of the prejudicial acts. Prior to enactment of the Special Powers Act in 1974, such power of preventive detention could be exercised only by the government and this power was exercised only in limited number of cases. In practice every government has used Special Powers Act, 1974 as a permanent law. Habeas Corpus petitions in large numbers have been filed challenging such detention. Very few of these petitions have been rejected and overwhelming majority of the detention under this law have been held by the Supreme Court to be unlawful and this fact clearly show how the power conferred by this law has been abused by the governmental authorities. Since huge number of persons are detained every year without trial purely for political purpose, the right to protection of law, protection of right to life and personal liberty and safeguards as to arrest and detention as guaranteed in Articles 31, 32, and 33 cannot be ensured and it is against the concept of rule of law.
Independence of judicial branch of the government is a pre-requisite to establishment of rule of law. Rule of law not only requires independence of judiciary from the executive, it also requires that the judicial branch of the government should be manned by competent persons.
The provisions for appointment of judges of the Supreme Court in the present Constitution are not healthy enough to satisfy this requirement. The provision for appointment is that the Chief Justice and other judges shall be appointed by the President. Thus the appointment depends on the sole wish of the executive which may create personal favouritism and political bias in the appointments. Again, it is said in Article 96 that a Judge cannot be removed only by the President without recommendation of the Supreme Judicial Council. But, by means of interpretation of Article 97, the President has the power to remove the Chief Justice without any recommendation of the Supreme Judicial Council. According to Article 97, if the President is satisfied that the Chief Justice is, on account of absence, illness, or any other cause, unable to perform the functions of his office then the President shall appoint a new Chief Justice. In this provision, by insertion of the words “any other cause” there is a reservation of power for the President to remove the Chief Justice. So, although all offices of judges are secured but the office of Chief Justice is not secured.
Paragraph 6(6) of the Fourth Schedule of the Constitution provides that the provisions of Chapter II of Part VI (which includes article 115 relating to the subordinate judiciary) shall be implemented as soon as is possible. Article 22 provides that the State shall ensure separation of the judiciary from the executive organs of the State. Article 115 provides, “Appointment of persons to the offices in the judicial service or as magistrates exercising judicial functions shall be made by the President in accordance with the rules made by him in this behalf.” As a result, the President does not require a recommendation of the Supreme Court for appointment of a district judge, nor is he required to consult the Supreme Court and Public Service Commission in framing rules in exercise of power under article 115. In fact, it was not ensured even in the original Constitution of 1972 particularly for the term ‘Magistrates exercising judicial function in Article 115. Thus the executive is the absolute maker of the judges and judicial officers in the subordinate judiciary as well as in the magistracy. The Fourth Amendment of the Constitution amended article 116 to vest control of the subordinate judicial officer and the magistrates exercising judicial functions with the President in place of the Supreme Court and thereafter added article 116A declaring “Subject to the provisions of the Constitution, all persons employed in the judicial service and all magistrates shall be independent in the exercise of their judicial functions.” By the Second Proclamation Order IV of 1978 article 116 was again amended to provide that the President shall exercise control over the subordinate judicial officers and magistrates exercising judicial functions in consultation with the Supreme Court. When the President exercised control over subordinate judicial officer and metropolitan magistrates in making transfer and posting the action of the President was held without lawful authority. Control by the President means control by the executive government in the Ministry of Law. Thus, though the judges of the Supreme Court are independent in relation to the executive branch of the government, subordinate judicial officers and magistrates exercising judicial functions are not so independent.
In Secretary, Ministry of Finance v. Masdar Hossain, the Appellate Division meticulously examined the various provisions of the Constitution relating to the judicial branch of the government and held that though the members of the judicial service are in the services of the Republic, they cannot be equated with the members of other services of the Republic and they cannot be governed by rules framed under article 133 meant for services of the Republic other than the judicial service. The President is required to frame separate rules under article 115 keeping in view the independence of the judiciary as declared by article 116A. The Appellate Division noted that Parliament can make law relating to the terms and conditions of service of the members of the services of the Republic other than the judicial service, while Parliament has no such power with respect to the members of the judicial service. The Appellate Division gave a number of directions to achieve separation of the judiciary including magistracy from the executive.
Ordinance making power of the President
Article 93 of the Constitution allows the President to promulgate ordinances anytime during the recesses of parliament sessions. And in practice a huge number of ordinances are promulgated by passing the parliament. Ordinance-made laws are fully undemocratic since they are made by the executive almost in an unrestricted way, without having adequate debate in the Parliament. These laws are, therefore, contrary to the concept of rule of law. So this provision may also be reformed so that it cannot be used unless there occurs any emergency situation like ‘national crisis’, ‘national calamity’, ‘severe economic deflation’ etc.
Article 141A of the Constitution says:
If the President is satisfied that a grave emergency exists in which the security or economic life of Bangladesh, or any part thereof, is threatened by war or external aggression or internal disturbance, he may issue a Proclamation of Emergency.
Thus the president can declare emergency on three grounds- war, external aggression or internal disturbance . Due to the vagueness of the term ‘internal aggression’, the executive can easily misuse this emergency power. The declaration of emergency, therefore, depends on the subjective satisfaction of the executive (only the President) and the court cannot question the justifiability of such situation. By declaring emergency in peace time the government can suspend fundamental rights and suppress the opposition movement. This amounts to avow arbitrary exercise of power on the part of the government which is contradictory to the concept of rule of law. So this provision is also needed to be reformed, so that it can only be applied in war, external aggression and internal aggression (the term, is clearly to be defined by the Constitutional Provision or, may be decided with the consultation with judiciary) time situations only.
Article 70: Anti-Defection Law
One of the most important Articles of the Constitution is Article 70 which is known as the ‘Anti-Defection Law’. Democracy is one of the four fundamental principles of state policy in Bangladesh. Article 11 reiterates that the Republic shall be a democracy. Considering the past experiences of political defections in the erstwhile East Pakistan provisions for prevention of floor-crossing as inserted in Article 70 is unavoidable for the purpose of establishing stable parliamentary democracy in Bangladesh. However, the question arises whether the parliament can make laws curbing the democratic rights the people, which are generally considered as unreasonable.
According to Article 70, a Parliament member shall vacate his seat, if he- resigns or votes against the party that nominated him as a candidate in the election whereby he became Parliament member; or abstains from voting being present in the parliament; or absents himself from any sitting of parliament ignoring the direction of his party. It frustrates all positive devices in the Constitution in the name of preventing floor crossing. As the provision goes in Article 70, no member of the ruling party can exercise his democratic right to dissent even when the government passes an undemocratic law.
Article 55 (3) states, “The Cabinet shall be collectively responsible to Parliament.” This provision of collective responsibility has become empty idea because of article 70 as the Cabinet always rests assured that it is not going to be defeated by motion of no confidence. As a result, every bill, whatsoever undemocratic it may be, gets passed. Again, there is a scope for the legislatures to avoid debates in making laws by ordinances and later gets them appointed under the sweeping power of this article.
The above discussion makes it clear that though there are some positive provisions for ensuring rule of law in Bangladesh Constitution, they are being outweighed by the negative provisions. Though our constitution provides for 18 fundamentals rights for citizens, these remain meaningless virsion to the masses because due to poverty and absence of proper legal aid the poor people cannot realize them . It also clear that the application of the principle of the rule of law is merely a farce in our country. However, prospects for establishing society purely based on the democratic principle
of the rule of law is not totally absent from the polity. We have a constitutional government elected through a free and fair election. But what is needed for the very cause of the principle of democratic rule of law is-
- To establish rule of law, Human Rights Commission have to come forward.
- To appoint an ombudsman for the sake of transparency and democratic accountability
- To make the parliament effective and to let the law making body to do its due business in cooperation with each other government and opposition;
To reform the law enforcing agencies and police force to rid them out of corruption and to free them from political influence, so that they could truly maintain the rule of law;
- To establish rule of law , Election Commission will have to work freely, strictly & fairly.
- To establish rule of law, Political party should be democratic.
- To forge national unity and politics of consensus built around the basic values of the constitution, namely democracy, respect for each others human rights, tolerance, communal harmony etc.
Above discussions clearly shows that the present condition of rule of law in Bangladesh is not satisfactory. However, the proposed measures for overcoming the shortcomings of rule of law also are not final but these are fundamental. Independent and particular policy for rule of law is a must for overcoming the ambiguity and anomalies in rule of law. After all, government must be committed to ensure the security of life and property of the people, protection of individual rights and the dissention of justice on the basis of the equality and fairness. On the other extreme, the opposition, civil society and social groups and organizations also have the moral obligations to help and cooperate with the government in this juncture.
As evidenced by the failure to arrive at a precise definition, the rule of law is a complicated theory. As much as it embodies politics and the ideals of democracy, an in-depth understanding of the theory must include the law’s interaction with language, history, social structure, culture, political view. Importantly, the rule of law is more than just a set of rules and their judicial application. As a much-advocated theory in development studies, the rule of law is also a matter of policymaking, institutional development, and international politics.
Policymakers need to be clear about they mean by the rule of law because answers to many of the questions they are interested in – whether ‘rule of law’ facilitates economic development and whether democracy is a necessary precondition for rule of law, to cite just two examples – depend crucially on what definition of the rule of law is being used. Moreover, the multitude of rule of law concepts is likely to breed confusion and misunderstanding between donors and recipients, or even within different members of the same community.
Perhaps the most important point for development analysts, policymakers, and the donor community in general to keep in mind is that the rule of law has a number of different possible meanings. All of these definitions have problems, and which one is appropriate will depend on the task at hand. But the pros and cons of these various conceptions – and, more importantly, the differences between the definitions – need to be borne in mind..
The framers of the Constitution of Bangladesh has made positive provisions for establishment of rule of law in the country, though there are being outweighed by the negative provisions. The growth of administrative law particularly regarding wide discretionary powers in the hands of government officials, etc. shall not be conducive to lead public welfare; rather these may limit people’s fundamental as well as human rights in practice. Added to this, pervasive corruption and pursuit of politicization of the services and institutions have seriously undermined rule of law in this country. However, rule of law cannot be established in the society unless the people in general and the people actively involved in politics have faith in the utility and effectiveness of rule law and have commitment for it.