Rule Of Law: In The Context of Bangladesh
Introduction:
Rule of Law is one of the essential parts of a civilized society. In fact no civilized modern nation can’t run without the implication of rule of law. Like every independent civilized modern country rule of law One of the basic principles of the constitution of Bangladesh . Today it is one of the most debated topics in Bangladesh. Although laws are made for the welfare of the citizens, bring peace and harmony unfortunately in the context of Bangladesh it seems the implication of rule of law isn’t for the common citizens. Law in Bangladesh follows a course of selective and discretionary application. Institution and procedures required for ensuring rule of law also are not effective in the country.
Definition :
No political establishment can’t justify it’s existence unless in ensure rule of law . In plain
words rule of law is a structure which protect the rights of citizens from arbitrary and abusive use of government power.
The term ‘Rule of Law’ is derived from the French phrase La Principe de Legality (the principle of legality) which refers 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.[1] Edward Coke is said to be the originator of the rule of law 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.[2] But the concept rule of law has gradually developed in a significant manner through different philosophers like – Aristotle, Cicero, Karl Marx, Joseph Raz and A.V. Dicey. Among all of them Professor A.V. Dicey’s concept of rule of law is the clearest, precise and most practiced through out the world. He developed this concept in his classic book ‘The Law of the Constitution’ published in the year 1885.3 According to him 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.4 He also gave three meanings of the concept of rule of law- (1) Absence of Arbitrary Power or Supremacy of Law,
(2) Equality Before Law and (3) Constitution is the result of the ordinary law of the land. In spite of some criticism A.V. Dicey’s thoughts are most acceptable amongst lawyers.
Rule of law : The Constitution of Bangladesh
In the constitution of Bangladesh Rule of Law has its own place. According to the constitution of Bangladesh –
“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.” In accordance with this pledge the following positive provisions for rule of law have been incorporated in the constitution:
Article 27 guarantees that all citizens are equal before law and are entitled to equal protection of law. Article 31 guarantees that to enjoy the protection of the law, and to be treated in accordance with law, is the inalienable right of every citizen, wherever he may be and of every other person for the time being with in 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. 18 fundamental rights have been guaranteed in the constitutional arrangement for their effective enforcement has been ensured in Articles 44 and 102. Article 7 and 26 impose limitation on the legislature that no law which is inconsistent with any provision of the constitution can be passed. In accordance with Article 7, 26 and 102(2) of the constitution the supreme court exercise the power of judicial review whereby it can examine the extent and legality of the actions of both executive and legislative and can declare any of their actions void if they do anything beyond their constitutional limits. Right to be governed by a representative body answerable to the people has been ensured under Articles 7(1), 11, 55, 56, 57 and 65(2) of the constitution.5 All these provisions of constitution are effective for ensuring rule of law in Bangladesh. But facts on the ground tell a different story altogether.
Aspects of the Rule of law in Bangladesh:
Our constitution has ensures laws while the judiciary have been set up to ensure justice and fairness to the citizens . Unfortunately the legal system isn’t the true reflection of the constitution . Some aspects of the rule of law in our society should be mentioned as under:
In reality Access to law as well as equality before it is reserved for only those who are privileged. The rest of the population is the helpless victim who suffers form the injustice suppression of the powerful.
The separation of higher judiciary from the lower judiciary which was a big issue for a long time at last has occurred by the end of 2007 But there are some aspects which contradicts the separation of judiciary
1. Magistrates are performing dual function of both executive and judiciary which is not desirable in the interest of justice.
2. The service of district and session judges, their transfer, promotion etc. are controlled not by the Supreme Court but by the law ministry.
The government of Bangladesh continues to use The Special Power Act of 1974 and section 54 of the criminal code which allow for arbitrary arrest and preventive detention. Which in reality use as a weapon of suppression towards political opponents and other citizens by detaining them without formal charges.
The very principle that law should take its own course requires that in investigation and preparation and submission of the charge sheet, the investigating agency should be free from outside influences and threats of all kinds. Unfortunately in most cases especially of highly publicized ones the culprits have not been brought to justice. Most of time it occurs due to the interference by the political leaders.
Another aspect of rule of law relates to the limits of law making power of the parliament itself. However, the question arises whether the parliament can make laws curbing the democratic rights the people, which are generally considered as unreasonable. For example- The special power Act of 1974 passed by the then Government is used to put political opponents behind the bars.
To enforce Rule of law enforcement agencies are really important . But unfortunately in Bangladesh law enforcement agencies don’t have a good record over human right cases. In fact they serve the government as enforcers and enjoy the freedom to act arbitrarily and in the material interests of its own members.
Ordinance making power can be supported only in emergency situation like national crisis, national calamity severe economic deflection etc. demanding for immediate legislative actions. But Article 93 of the constitution allows the president to promulgate ordinances anytime during the recesses of parliament session. On the other hand Article 141(A) empowers the president to declare emergency whenever he wishes.
Another repulsive aspect of our judicial system is the charge of corruption against our judiciary. Moreover, the poor people can not reach before the judges only because of mobility to meet the charge required for going through the complicated process of litigation.
Observations:
The discussion above gives a quite clear picture of the judiciary system of Bangladesh and the real scenario of the rule of law. Though there are some positive provisions for ensuring rule of law in Bangladesh Constitution, they are being overshadowed by the ill practices of the law makers as well as the law enforcement agencies. Although the constitution provides for 18 fundamentals rights for citizens, these remain meaningless vision to the masses because due to poverty and absence of proper legal aid the poor people cannot realize them .6 So what is needed for the very cause of the principle of democratic rule of law is-
??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 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.
Conclusion:
Above discussions clearly shows that the present condition of rule of law in Bangladesh is not acceptable at all. 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.
Bibliography:
- Books-
Ø The constitution of the people’s Republic of Bangladesh
Ø Legal history & legal system of Bangladesh
By Ahamuduzzaman
Ø Studies in Jurisprudence & Legal theory
By Dr. N.V. Paranjape
Ø Bangladesh constitution ; Trends & Issues
By Justice Mustafa Kamal (2001)
Ø Constitutional & political development of Bangladesh
By Hafiz Habibur Rahman (1974)
Ø Bangladesh; constitutional quest for autonomy
By Moudud Ahmed (1976)
Ø Restoration of 1972 constitution
By K.M.M. Abdul Kader (June, 1998)
- Sites-
Ø http://en.wikipedia.org/wiki/Rule_of_law
Ø http://bdlaws.gov.bd/pdf_part.php?id=367
Ø http://www.upiasia.com/Human_Rights/2008/09/02/random_rule_of_law_in_bangladesh/8404/
Ø http://rumiahmed.wordpress.com/2008/04/22/the-rule-of-law-in-bangladesh/
Ø http://www.article2.org/mainfile.php/0604/291/
Ø http://www.thedailystar.net/newDesign/news-details.php?nid=94948
Ø http://www.ahrchk.net/statements/mainfile.php/2008statements/1588/
Ø http://www.abanet.org/rol/asia/bangladesh.html
Ø http://usip.forumone.com/events/bangladesh-human-rights-and-rule-law-crisis
Ø http://en.wikipedia.org/wiki/Law_of_Bangladesh
Ø http://www.thedailystar.net/law/2007/05/02/vision.htm
Ø http://www.newagebd.com/store/anni07/06.html
Ø http://www.asiaticsociety.org.bd/journals/Golden_jubilee_vol/articles/Rule%20of%20Law_Advocate.htm
Ø http://www.thefinancialexpress-bd.com/2007/08/11/7417.html
Ø http://www.ti-bangladesh.org/research/ES_ElectionCommission.pdf
Ø http://www.law.emory.edu/ifl/legal/bangladesh.htm
Ø http://www.helplinelaw.com/law/bangladesh/constitution/constitution06.php
Ø http://www.hrcbm.org/news/writ_HRCBM_Bangladesh_2006.html
Ø http://unjobs.org/authors/a.-v.-dicey
Ø http://www.constitution.org/cmt/avd/law_con.htm
Ø http://ask.reference.com/web?q=Dicey%27s+Rule+of+Law&qsrc=2892&l=dir&o=10601
Ø http://unpan1.un.org/intradoc/groups/public/documents/UNPAN/UNPAN012077.pdf
[1]Massey, I.P. Conceptual objections against the Growth of Administrative Law. Administrative Law, 5th Ed; Eastern Book Company: 34, Lalbagh, Lucknow-226001, India, 2001; 21.
[2] Halim, M. A. Rule of Law. Constitution, Constitutional Law and Politics: Bangladesh Perspective, Khan, M. Yousuf Ali, Eds; Rico Printers: 9 Nilkhet, Babupara, Dhaka-1205, 1998; 345.
3 Dicey, A.V. The Rule of Law: Its Nature and General Applications. Introduction To The Study Of The Law Of The Constitution, 8th Ed; Macmellan and Co. Limited: St. Martin’s Street, London, 1915; 202.
4 Dicey, A.V. Ibid, 198.
5 Ibid, 355
6 Ibid, 357
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