INTRODUCTION
Around 38 years ago, the people of Bangladesh gave to themselves, a Constitution. “In our Constituent Assembly, this eighteenth day of Kartick 1379 BS, corresponding to the fourth day of November 1972 AD, do hereby adopt, enact and give to ourselves this Constitution”, the preamble of the Constitution of the People’s Republic of Bangladesh solemnly testifies. The quest of the Bengalis for political emancipation through constitutional rule and democracy culminated into a liberation war in 1971 out of which Bangladesh was born.[1] The struggle was closely linked with the aspirations of the people for establishing a civil society with an orderly and just government elected through free and fair choice in a democracy where fundamental human rights are guaranteed and where an independent judiciary acts as the custodian of the constitution. This is the genesis of the Constitution of the People’s Republic of Bangladesh as the people of Bangladesh made pledge to themselves after a heroic struggle for national liberation. The Constitution came into force on 16 December 1972, a voyage to the past.[2]
The preamble of the Constitution of Bangladesh proclaims that the high ideals of ‘absolute trust and faith in the almighty Allah’, ‘nationalism’, ‘democracy’ and ‘socialism meaning economic and social justice’ shall be the fundamental principles of the Constitution. It also states that it shall be a fundamental aim of the State to realize a socialist society in which the rule of law, fundamental human rights and freedom, equality and justice will be ensured. The preamble recognizes the fundamental aim of the state as to realize the ‘democratic process’ for establishing a socialist society, free from exploitation. The framers conceived of a democratically run welfare state to eliminate inequality of income and status and standards of life.
The fundamental principles of state policy part II (Articles 8-25) of the Constitution gives an account of the fundamental principles of State policy. The four ‘high ideals’ mentioned in the preamble along with other specific economic, social and political goals shall be fundamental the governance of Bangladesh, shall be applied by the State in the making of laws and interpreting the Constitution. They will be the basis of work of the State and of its citizens. They will not be enforceable in the court of law. The principles, among others, include: I) promotion of local government institutions composed of representatives of the area concerned and with special representations of peasants, workers and woman to build democratic structures at the grass-root level, (b) participation of women in all spheres of national life, (c) guarantee of fundamental human rights and freedoms and respect for the dignity and worth of human persons and effective participation by the people through their elected representatives in administration at all levels.[3]
The judicial system consists of a Low Court and a Supreme Court, both of which hear civil and criminal cases. The Low Court consists of administrative courts (magistrate courts) and session judges. The Supreme Court also has two divisions, a High Court which hears original cases and reviews decisions of the Low Court, and an Appellate Court which hears appeals from the High Court. The upper level courts have exercised independent judgment, recently ruling against the government on a number of occasions in criminal, civil and even political trials. The trials are public. There is a right to counsel and right to appeal. There is also a system of bail. An overwhelming backlog of cases remains the major problem of the court system.[4]
THE JUDICIARY OF BANGLADESH
The Judiciary of Bangladesh consists of a Supreme Court, subordinate courts and tribunals.
The Supreme Court
The Supreme Court of Bangladesh comprises the Appellate Division and the High Court Division. It is the apex Court of the country and other Courts and Tribunals are subordinate to it.
a) The Appellate Division
The Appellate Division shall have Jurisdiction to hear and determine appeals from judgments, decrees, orders or sentences of the High Court Division. It has rule making power for regulating the practice and procedure of each division and of any Court subordinate to it. Chancery Research and Consultants Trust (CRC-Trust) maintains a website [Chancery Law Chronicles-First Bangladesh Online Case Law Database]where it has included the judgments of the Appellate Division of the Supreme Court of Bangladesh from 1972 to till date.
b) The High Court Division
The High Court Division, though a Division of the Supreme Court, is for all practical purposes, an independent court with its powers, functions and jurisdictions well defined and determined under the Constitution and different laws. It has both appellate as well as original jurisdiction. It hears appeals from orders, decrees and judgments of subordinate courts and tribunals. It has original jurisdiction to hear Writ Applications under article 102 of the Constitution, which is known as extra ordinary constitutional jurisdiction. It has further original jurisdiction, inter alia, in respect of company and admiralty matters under statutes. The High Court Division, in special circumstances, has also powers and jurisdiction to hear and dispose of cases as the court of first instance under article 101 of the Constitution. The High Court Division shall have Superintendence and control over all Courts and tribunals subordinate to it.
The Subordinate Courts and Tribunals
There are a wide variety of subordinate courts and tribunals. Such courts and tribunals are created by some relevant statutes. All their powers, functions and jurisdictions are well determined by the respective statutes. These are the basic courts in the system of the judiciary of Bangladesh. The major bulk of the cases, both civil and criminal, are tried and heard in such courts and tribunals. Certain tribunals are termed as administrative tribunals, Nari-o-Shishu Nirjato Daman Tribunals, Special Tribunals etc. Such courts and tribunals spread all over the country at district levels. The subordinate courts in Bangladesh can be divided in two broad classes, namely, civil courts and criminal courts.
i) Civil Courts
The civil courts are created under the Civil Courts Act of 1887. The Act provides for five tiers of civil courts in a district, which bottom-up are i) Court of Assistant Judge, ii) Court of Senior Assistant Judge, iii) Court of Joint District Judge, iv) Court of Additional District Judge and v) Court of District Judge. The first three are courts of first instances with powers, functions and jurisdictions in respect of subject matter, territory and pecuniary value determined by or under statutes. The rest two are generally courts of appeal in civil matters. Now the civil suits are rapidly disclose in the court.
ii) Criminal Courts
- Courts of Sessions
- Courts of Metropolitan Sessions
- Special courts/tribunals (Criminal)
- Courts of Metropolitan Magistrate
- Courts of Magistrate[5]
FUNDAMENTAL HUMAN RIGHTS IN BANGLADESH[6]
According to section 26, Laws inconsistent with fundamental rights to be void. (1) All existing law inconsistent with the provisions of this Part shall, to the extent of such inconsistency, become void on the commencement of this Constitution. (2) The State shall not make any law inconsistent with any provisions of this Part, and any law so made shall, to the extent of such inconsistency, be void. (3) Nothing in this article shall apply to any amendment of this Constitution made under article 142.
According to section 27, Equality before law. All citizens are equal before law and are entitled to equal protection of law.
According to section 28, Discrimination on grounds of religion, etc. (1) The State shall not discriminate against any citizen on grounds only of religion, race caste, sex or place of birth. (2) Women shall have equal rights with men in all spheres of the State and of public life. (3) No citizen shall, on grounds only of religion, race, caste, sex or place of birth be subjected to any disability, liability, restriction or condition with regard to access to any place of public entertainment or resort, or admission to any educational institution. (4) Nothing in this article shall prevent the State from making special provision in favor of women or children or for the advancement of any backward section of citizens.
According to section 29, Equality of opportunity in public employment. (1) There shall be equality of opportunity for all citizens in respect of employment or office in the service of the Republic. (2) No citizen shall, on grounds only of religion, race, caste, sex or place of birth, be ineligible for, or discriminated against in respect of, any employment or office in the service of the Republic. (3) Nothing in this article shall prevent the State from – (a) making special provision in favor of any backward section of citizens for the purpose of securing their adequate representation in the service of the Republic; (b) giving effect to any law which makes provision for reserving appointments relating to any religious or denominational institution to persons of that religion or denomination; reserving for members of one sex any class of employment or office on the ground that it is considered by its nature to be unsuited to members of the opposite sex.
According to section 30, Prohibition of foreign titles, etc. No citizen shall, without the prior approval of the President, accept any title, honor, award or decoration from any foreign state.
According to section 31, Right to protection of law. 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.
According to section 32, Protection of right to life and personal liberty. No person shall be deprived of life or personal liberty save in accordance with law.
According to section 33, Safeguards as to arrest and detention. (1) 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. (2) 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. (3) Nothing in clauses (1) and (2) shall apply to any person- (a) who for the time being is an enemy alien; or (b) who is arrested or detained under any law providing for preventive detention. (4) No law providing for preventive detention shall authorize the detention of a person for a period exceeding six months unless an Advisory Board consisting of three persons, of whom two shall be persons who are, or have been, or are qualified to be appointed as, Judges of the Supreme Court and the other shall be a person who is a senior officer in the service of the Republic, has, after affording him an opportunity of being heard in person, reported before the expiration of the said period of six months that there is, in its opinion, sufficient cause for such detention. (5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order. (6) Parliament may be law prescribe the procedure to be followed by an Advisory Board in an inquiry under clause.
According to section 34, Prohibition of forced labor. (1) All forms of forced labor are prohibited and any contravention of this provision shall be an offence punishable in accordance with law. (2) Nothing in this article shall apply to compulsory labor. (a) by persons undergoing lawful punishment for a criminal offence; or required by any law for public purpose.
According to section 35, Protection in respect of trial and punishment. (1) No person shall be convicted to any offence except for violation of al law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than, or different from that which might have been inflicted under the law in force at the time of the commission of the offence. (2) No person shall be prosecuted and punished for the same offence more than once. (3) Every person accused of a criminal offence shall have the right to a speedy and public trial by an independent and impartial court or tribunal established by law. (4) No person accused of any offence shall be compelled to be a witness against himself. (5) No person shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. (6) Nothing in clause (3) or clause (5) shall affect the operation of any existing law which prescribes any punishment or procedure for trial.
According to section 36, Freedom of movement. Subject to any reasonable restrictions imposed by law in the public interest, every citizen shall have the right to move freely throughout Bangladesh, to reside and settle in any place therein and to leave and re-enter Bangladesh.
According to section 37, Freedom of assembly. Every citizen shall have the right to assemble and to participate in public meetings and processions peacefully and without arms, subject to any reasonable restrictions imposed by law in the interests of public order health.
According to section 38, Freedom of association. Every citizen shall have the right to form associations or unions, subject to any reasonable restrictions imposed by law in the interests of morality or public order;
According to section 39, Freedom of thought and conscience, and of speech. (1) Freedom or thought and conscience is guaranteed. (2) Subject to any reasonable restrictions imposed by law in the interests of the security of the State, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence- (a) the right of every citizen of freedom of speech and expression; and freedom of the press, are guaranteed.
According to section 40, Freedom of profession or occupation. Subject to any restrictions imposed by law, every citizen possessing such qualifications, if any, as may be prescribed by law in relation to his profession, occupation, trade or business shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business.
According to section 41, Freedom of religion. (1) Subject to law, public order and morality- (a) every citizen has the right to profess, practice or propagate any religion; (b) every religious community or denomination has the right to establish, maintain and manage its religious institutions. (2) No person attending any educational institution shall be required to receive religious instruction, or to take part in or to attend any religious ceremony or worship, if that instruction, ceremony or worship relates to a religion other than his own.
According to section 42, Rights to property. (1) Subject to any restrictions imposed by law, every citizen shall have the right to acquire, hold, transfer or otherwise dispose of property, and no property shall be compulsorily acquired, nationalized or requisitioned save by authority of law. (2) A law made under clause (1) shall provide for the acquisition, nationalization or requisition with compensation and shall either fix the amount of compensation or specify the principles on which, and the manner in which, the compensation is to be assessed and paid; but no such law shall be called in question in any court on the ground that any provision in respect of such compensation is not adequate. (3) Nothing in this article shall affect the operation of any law made before the commencement of the Proclamations (Amendment) Order, 1977 (Proclamations Order No. I of 1977), in so far as it relates to the acquisition, nationalization or acquisition of any property without compensation.
According to section 43, Protection of home and correspondence. Every citizen shall have the right, subject to any reasonable restrictions imposed by law in the interests of the security of the State, public order, public morality or public health- (a) to be secured in his home against entry, search and seizure; and to the privacy of his correspondence and other means of communication.
According to section 44, Enforcement of fundamental rights. (1) The right to move the High Court Division in accordance with clause (I) of article 102 for the enforcement of the rights conferred by this Part of guaranteed. (2) Without prejudice to the powers of the High Court Division under article 102, Parliament may be law empower any other court, within the local limits of its jurisdiction, to exercise all or any of those powers.
According to section 45, Modification of rights in respect of disciplinary. Nothing in this Part shall apply to any provision of a disciplinary law relating to members of a disciplined force, being a provision limited to the purpose of ensuring the proper discharge of their duties or the maintenance of discipline in that force.
According to section 46, Power to provide indemnity. Notwithstanding anything in the foregoing provisions of this Part, Parliament may be law make provision for indemnifying any person in the service of the Republic or any other person in respect of any act done by him in connection with the national liberation struggle or the maintenance or restoration of other in any area in Bangladesh or validate any sentence passed, punishment inflicted, forfeiture ordered, or other act done in any such area.
According to section 47, Saving for certain laws. (1) No law providing for any of the following matters shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridge, any of the rights guaranteed by this Part- (a) the compulsory acquisition, nationalization or requisition of any property, or the control or management thereof whether temporarily or permanently; (b) the compulsory amalgamation of bodies carrying on commercial or other undertakings; (c) the extinction, modification, restriction or regulation of rights of directors, managers, agents and officers of any such bodies, or of the voting rights of persons owning shares or stock (in whatever form) therein; (d) the extinction, modification, restriction or regulation of rights of search for or win minerals or mineral oil; (e) the carrying on by the Government or by a corporation owned, controlled or managed by the Government, of any trade, business, industry or service to the exclusion, complete or partial, or other persons; or (f) the extinction, modification, restriction or regulation of any right to property, any right in respect of a profession, occupation, trade or business or the rights of employers or employees in any statutory public authority or in any commercial or industrial undertaking; if Parliament in such law (including, in the case of existing law, by amendment) expressly declares that such provision is made to give effect to any of the fundamental principles of state policy set out in Part II of this Constitution. (2) Notwithstanding anything contained in this Constitution the laws specified in the First Schedule (including any amendment of any such law) shall continue to have full force and effect, and no provision of any such law, nor anything done or omitted to be done under the authority of such law, shall be deemed void or unlawful on the ground of inconsistency with, or repugnance to, any provision of this Constitution; 24 Provided that nothing in this article shall prevent amendment, modification or repeal of any such law. (3) Notwithstanding anything contained in this Constitution, no law nor any provision thereof providing for detention, prosecution or punishment of any person, who is a member of any armed or defense or auxiliary forces or who is a prisoner of war, for genocide, crimes against humanity or war crimes and other crimes under international law shall be deemed void or unlawful, or ever to have become void or unlawful, on the ground that such law or provision of any such law is inconsistent with, or repugnant to any of the provisions of this Constitution.
According to section 47A, in applicability of certain articles. (1) The rights guaranteed under article 31. Clauses (1) and (3) of article 35 and article 44 shall not apply to any person to whom a law specified in clause (3) of article 47 applies. (2) Notwithstanding anything contained in this Constitution, no person to whom a law specified in clause (3) of article 47 applies shall have the right to move the Supreme Court for any of the remedies under this Constitution. [7]
RULE OF LAW IN BANGLADESH
Laws, rules and procedures framed under them exist to cover every walk of our national life, though there may be parities in number and shortcomings in scope. Our constitution contain plethora of laws while institutions like courts, ministries and departments have been set up to dispense justice and decisions in accordance with the present state of the rule of law revels the riddle of having a body of law and at the same time not having it. It is like a person who is brain dead. Professor A.V. Dicey wrote in his classic book ‘The Law of the Constitution.’ published in the year 1885, that, 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 arbitrariness.[8]
Some aspects of the rule of law in our society and polity should be mentioned as under:
Access to law as well as equality before it, are reserved for only those who are privileged. All government in this country since the fall of Ershad has claimed that there is independence of judiciary. The claim is only partially true, while the higher courts enjoy a certain measure of independence; the lower courts are under the direct control of the law ministry. In recent years a large number of political killings have taken place. The national dailies have carried the stories of all the gruesome murders and the whole nation has been out raged. What is however deplorable is that in most of these highly publicized cases the culprits have not been brought to justice. The reason is not far to seek. It is the interference by high ups in the political ladder. Another aspect of rule of law relates to the limits of law making power of the parliament itself. Our constitution quite rightly declares the people as the repository of all power and they use it through their elected representatives.
The government of Bangladesh continued to use the Special Power Act of 1974 and section 54 of the criminal code which allow for arbitrary arrest and preventive detention, to harass 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, encumbrance’s influences and threats of all kinds. Unfortunately, that situation does not obtain in today’s Bangladesh.
However, the question arises whether the parliament can make laws curbing the democratic rights the people, which are generally considered as unreasonable. The special power Act of 1974 the public safety Act passed former Awami Liege Government etc. which are used to put political opponents behind the bars, deserve special mention, so, the question arises can such pieces of legislation promote rule of law? Obviously not. On the other hand the government always with a view to avoiding debates make laws by ordinances and later gets them appointed under the sweeping power of article 70 of the constitution.
Rule of law postulates intelligence without passion and reason free from desire in any decision regarding matters concerned with governance. In our society, the principle is being ignored on many grounds as quotas for political activists by the name of honor to freedom fighters, special provision for individual security etc.
Police is no doubt a very powerful institution for the endorsement of the rule of law. But in Bangladesh, the police has never been friendly with the public. The police serve the government and enjoys, in exchanges, 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. By declaring emergency in peace time the government can suspend fundamental rights and suppress the opposition movement. This mounts to avowed arbitrary exercise of power on the part of the government which is contradictory to the concept of rule of law.
Another disgusting aspect of our judicial system is that there is the charge of corruption against our judiciary. Moreover, justices oftener than not, a costly commodity in our country. The poor people could not reach before the judges only because of mobility to meet the charge required for going through the complicated process of litigation. Thus, they prefer injustice than fatigue.
SUGGESTION
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.”[9]
In the Bangladesh perspective it is quite similar to what Henry thought. The judicial system has definitely in focus of ensuring the fundamental rights and 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 vision to the masses because due to poverty and absence of proper legal aid the poor people cannot realize them .22 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 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 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.
REFERENCES
- 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.
2. “Constitution of Bangladesh: Part II: Fundamental Principles of State Policy”. Chief Adviser’s Office. Prime Minister’s Office. Government of the People’s Republic of Bangladesh. http://www.pmo.gov.bd/pmolib/constitution/part2.htm#P2.
- 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. & Dicey, A.V. Ibid, 198.
5. From Wikipedia, the free encyclopedia. http://en.wikipedia.org/wiki/Law_of_Bangladesh
6. “Constitution of Bangladesh: Part II: Fundamental Principles of State Policy”. Chief Adviser’s Office. Prime Minister’s Office. Government of the People’s Republic of Bangladesh. http://www.pmo.gov.bd/pmolib/constitution/part2.htm#P2.
7. http://www.banglarights.net/HTML/HR-Situation-4.htm
- Judicial system – Bangladesh – problem, power http://www.nationsencyclopedia.com/Asia-and-Oceania/Bangladesh-JUDICIAL-SYSTEM.html#ixzz14oenw3Tq
9. G.W. Choudhury (1974) The last days of United Pakistan p128-129
10. http://www.banglarights.net/HTML/HR-Situation-4.htm
style=”text-align: justify;” size=”1″ />
[1] G.W. Choudhury (1974) The last days of United Pakistan p128-129
[2] http://www.banglarights.net/HTML/HR-Situation-4.htm
[3] http://www.banglarights.net/HTML/HR-Situation-4.htm
[4] Judicial system – Bangladesh – problem, power http://www.nationsencyclopedia.com/Asia-and-Oceania/Bangladesh-JUDICIAL-SYSTEM.html#ixzz14oenw3Tq
[5] From Wikipedia, the free encyclopedia.
http://en.wikipedia.org/wiki/Law_of_Bangladesh
[6] “Constitution of Bangladesh: Part II: Fundamental Principles of State Policy”. Chief Adviser’s Office. Prime Minister’s Office. Government of the People’s Republic of Bangladesh. http://www.pmo.gov.bd/pmolib/constitution/part2.htm#P2.
[7] “Constitution of Bangladesh: Part II: Fundamental Principles of State Policy”. Chief Adviser’s Office. Prime Minister’s Office. Government of the People’s Republic of Bangladesh. http://www.pmo.gov.bd/pmolib/constitution/part2.htm#P2.
[8] 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. & Dicey, A.V. Ibid, 198.
[9] 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.