The rule of law requires that people should be governed by accepted rules, rather than by the arbitrary decisions of rulers. These rules should be general and abstract, known and certain, and apply equally to all individuals. t
Constitutional governments are based on a previous commitment to freedom under the rule of law. The essential attribute of constitutionalism is a legal limitation on government. Under constitutionalism, rulers are not above the law, government power is divided with laws enacted by one body and administered by another, and an independent judiciary exists to ensure laws are administered objectively. An efficient and effective constitution allows government tofunction to protect the lives and liberties of citizens without violating the rights of some to provide gains to others.
Non-statist customary and privately produced laws continue to exist today. Members of many voluntary associations prefer to operate under rules of their own choice and making rather than relying on those of a coercive government.
Every democratic state has three organs such as the legislature, the executive and the judiciary. There are three kinds of power of Bangladesh like every democratic state such as legislative, executive and judicial. The legislature makes laws for the country. The executive enforces these laws and administers the country, and the judiciary is concerned with the administration of justice, both civil and criminal. It is the business of the judiciary to decide upon the application of the existing law in individual cases. It has the power of dispute resolution between citizen and citizen and between government and the citizen. In the popular mind, the judicial branch of the government has but one duty to perform namely, to decide disputes between citizens. Certainly it is the chief function. But if the actual part played by the judiciary is analysed, it will be clear that the activities extent further. It has to perform a variety of functions, which are given below in the following circumstances:
(I) to decide the law where parliament has not been sufficiently explicit;
(II) to prevent any tendency towards arbitrary government by applying the law, impartially and independent of any outside interference, where the citizen is in conflict with authorities;
(III) to determine the exact penalty to be suffered by persons breaking the law;
(IV) to decide disputes between citizens;
(V) to restrain any persons who interfere illegally with the rights of others;
(VI) to provide the means whereby, as far as possible, an offended person can obtain redress for grievances suffered.
In that fact if democratic state is to be effective and enduring, it is needed that the laws passed by the elected representatives of the citizens shall be applied and upheld. There must be courts of law, for dispensation of justice. Without of justice the law would not be held ridicule and eventually order would degenerate into anarchy. Justice Kemaluddin Hossain, in this justice Ibrahim Memorial Lecture on Independent Judiciary in Developing Countries, says the judiciary not as a mere instrument of conflict resolution, but citadel of justice, where the values of the nation are preserved, protected and expressed.
The responsibility for effective execution of constitutional mandates and legislative mandates expressed through statutes rests clearly upon the executive. If the executive defaults in its legal and constitutional obligations, courts and judges can not take the view that violations of rights involved in such defaults are no concern of theirs. If the duly authorized constitutional officers fail to discharge their constitutional and legal obligations, a judicial activist is justified in issuing directions to them to discharge their duties expeditiously.
Part IV, V and VI of the Constitution of Bangladesh deals with the executive, the legislature and the judiciary. Therefore, the purpose of law and judiciary in democratic state are firstly to achieve justice in society and secondly to provide a framework within which people conduct their affairs.
During the rule of British period in this sub-continue the legal system took shape and failures on the basis of British Indian political culture. The present legal system of Bangladesh, to a great extent, has been taken place on the basis of British legal system left by the British. For this, to know the legal system of Bangladesh, it is indispensable to understand the legal system of British-India. The preview of British Legal System is very comprehensive and complex considering the arisen situation and circumstances this introduced their planed legal system, so that they might be able to rule this soil for long period. However, a Nation can never be dominated for ever. Since British had to windup their rule after about two hundred years. Within this long period time a special legal system was germinated and grown up. In Bangladesh, British period began with the consolidation of the British power in Bengal from1757 and continued up to 1947 But although British Period in Bangladesh began from 1757 nevertheless to understand properly the changes and growth of administrative law in Bangladesh under British Period, besides considering the administrative legal system from 1757 to 1947. It is also necessary to consider, under different charters, the early administration and its laws and development of authority of the East India Company since beginning.
Charter of 1600:
The British came to India in 1601 as a “body of trading merchants’’ in the name of East India company. The fabulous wealth of India attracted them to this company for trading purpose. On the 22nd December, 1599, a number of British merchants resolved to form a trading company. On the day of December, 1600, Queen Elizabeth I issued a Royal Charter to the said Company , which cause to be known as the British East India Company, “to trade into and from the East Indies, in the countries and parts of Asia and Africa. For a Period of fifteen years subject to a power of determination on two years’ notice if trade was found unprofitable”. Thus, the Company became a juristic person with the exclusive privilege to trade in India and other Far-East Countries. Queen Elizabeth I, by the aforesaid Charter, also granted legislative power to the company “to make bye-laws, ordinances, etc. for the good government of the Company and its servants and punish offences against them by fine or imprisonment according to laws, statutes and customs of the realm”. Subsequently, many Charters were also granted from time to time to enable the Company to develop its authority to deal with new Circumstances.
Charter of 1615:
In order to enable the Company to punish its servants for capital offences of long voyages, the Company secured the first Royal Commissions in 1601. Later on, by granting this Charter on the 14th December, 1615, the king authorized the Company to issue such Commissions to its Captains subject to one condition that in case of grosser offence, e.g. willful murder and minify, a jury of twelve servants of the Company would give the verdict. The Company was given this power in order to maintain discipline on board during the voyages.
Charter of 1623:
This Charter, granted by James I in 1623, extended the power of the East India Company by authorizing it to punish its servants for offences committed by them on land. This Charter together with the earlier grant virtually placed the Company to the advantage of governing all its servants both on land and high sea.
Charter of 1661:
The East India Company entered into a new era in 1660 when the Company regained its prosperity and changed its character from a purely trading concern to a territorial power. Thereafter, on the 3rd April, 1661, Charles II granted this Charter to the Company. Besides extending the privileges of the Company on new territorial lines, this Charter reorganized its structure. This Charter empowered the Company to appoint a Governor and council in each of its settlements at Madras, Bombay and Kolkata of India. The governor and Council were authorized to judge all persons belonging to the company or living under them in all casas, civil and criminal, according to the laws of England and to execute judgment in the respective settlements. In other words, even the Indian inhabitants were also included in the jurisdiction of the Governor and Council. Thus, the Charter expressly provided for the application of English Law and empowered the Governor and Council to exercise control over both Judiciary and Executive.
Charter of 1686:
This Charter was granted to the Company by James II on April 12, 1686. By this Charter, James II renewed and added to the various powers and privileges earlier granted to the East India Company. Further, the Charter authorized the Company to appoint admirals and other sea-officers in any of their ships, with power for these naval officers to raise naval forces and exercise martial law over them in times of were, to coin money in their Forts and establish Admiralty Courts.
Charter of 1698:
On the 13th April, 1698, William II granted this Charter to the Company whereby certain changes were in the existing rules to improve the administration of the Company. This Charter created a Court of Directors, and the authority and control over the affairs of the Company were entrusted to the Court of Proprietors. This constitution of the Company continued till the passing of the famous Regulation Act in 1773 which completely overhauled the constitution of the Company.
Charter of 1726:
King George I issued this Charter to the Company to the Company on the 24th September, 1726. This Charter became an important landmark in the history of subsequent constitutional development due to its various vital provisions having far reaching consequence. This Charter of 1726 provided for the establishment of a Corporation in each presidency town i.e. Bombay, Kolkata and Madras. The Governor-in-Council of each presidency town was entrusted with the power to make by-laws, rules, ordinances to regulate the working of the Corporation and also better administration of inhabitance of the settlements. The Governor and Council was required to obtain in writing prior approval and confirmation of such rules, by-laws, etc from the Charter of 1726 for the first time created a subordinate legislative authority in each of the three presidency towns of india. Besides, this Charter also mixed the Executive with the Judiciary by granting original criminal jurisdiction and appellate civil jurisdiction to the Governor and the Council who were already entrusted with all executive powers in each power in each presidency town. Actually the object of early British administration was to maximize profit and for this, efficiency the administration was the chief necessity. Therefore, during the Company days, the courts were tools in the Company’s hands. The executive had overriding powers in matters of administration of justice. However, the establishment of the Supreme Court at Kolkata in 1774 under the provision of the Regulating Act, 1773, inaugurated an in independent judicial administration. But with the passage of the Act of Settlement, 1781, the era comes to an end and the later developments in the judicial system of the native population.
From the battle of Plassey in 1757 until Independence, one significant advantage that the Indian administration (which also includes the administration of today’s Bangladesh) had from a centralished but undemocratic form of government was the facility to make laws. During that period the executive was invested with such wide powers to make rules as a modern democratic legislature cannot even imagine. Even prior to the famous Code of Civil and Procedures known as Cornwallis Code of 1793, Elphinstone Code of 1827, and many other regulation were in operation. These regulation laws aimed mainly at the regulation of the powers of the administration and their control. Thus, expansion of the administrative powers and provisions of some kind of control went in hand. For instance, Regulation 1822 which codified the law regarding the excise on salt, opium and general custom dealt mainly with the powers of administrative agencies (salt chowess) and also the control of these agencies. It made provisions regarding power of confiscation, procedure in the proceeding of confiscation, procedure in the proceeding of confiscation and the control tobe exercised by the courts. Section 108 of the Regulation of 1822 reminds one of the provisions of the Administrative Procedure Act, 1946, when administrative agencies were required to record facts, evidence and the decision. Judicial relief was made available only after the exhaustion of administrative remedies. The courts, though had ample powers to set aside an administrative action, yet paid great respect and attention to their decision.