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Rule Of Law In Context Of Bangladesh

Rule of Law is one of the essential parts of a civilized society. In fact no civilized modern nation cant 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 isnt 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 cant justify its 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.
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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. Diceys 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. Diceys
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 isnt the true reflection of the constitution . Some aspects of the rule of law
in our society should be mentioned as under:

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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 exampleThe 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 dont 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 isTo 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.
Provisions for and against the rule of law in the Constitution of Bangladesh :- Rule of law is an
internationally recognised concept. Accordingly, Bangladesh recognises
rule of law as a basic feature of its Constitution. In Anwar Hussain
Chowdhury v Bangladesh 1989 BLD, the Supreme Court of Bangladesh

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recognised the rule of law as one of the basic features of the
Constitution. In spite of this, there have been many contradictory
provisions in the Constitution that go against rule of law. We aim to
identify the relevant provisions of the Constitution ensuring rule of law
and then we will attempt to analyse the contradictory provisions of the
Constitution that go against the concept of rule of law.
The place of rule of law in the Constitution of Bangladesh:- In fact, the term rule of law is well placed in the Constitution of
Bangladesh. Its Preamble states the rule of law as one of the objectives to be attained. The Preamble, inter alia, says ....it shall
be a fundamental aim of the State to realise 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 the above pledge, the following positive provisions for rule of law have been incorporated in the Constitution:
Firstly: Article 27 guarantees that all citizens are equal before law and are entitled to equal protection of law. Article 27, therefore,
forbids discrimination in law or in State actions.
Secondly: Article 31 guarantees that 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. Article 31 imports the concept of due process, both substantive and procedural, and thus prohibits arbitrary or
unreasonable law and State action.
Thirdly: around 18 fundamental rights have been guaranteed in Part III of the Constitution and constitutional arrangement for their
effective enforcement has been ensured in Article 44 (right to move to the High Court) and 102 (power of the High Court to take
appropriate action upon application).
Fourthly: Article 7 and 26 impose limitation on Parliament that no law which is inconsistent with any provision of the Constitution can
be passed. Article 7(2) confirms that if any other law is inconsistent with the Constitution that other law shall, to the extent of the
consistency, be void.
Fifthly: In accordance with Article 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 legislature and can declare any of their actions
void if they go beyond their limit.
Sixthly: the peoples right to be governed by a representative body answerable to them has, directly and indirectly, been ensured
under Article 7(1) [all power belong to the people, Article 11 (The Republic shall be a democracy where, among others, fundamental
human rights shall be guaranteed), Article 55 (Cabinet), Article 56 (Ministers), 57 (tenure of the office of the Prime Minister), and
Article 65(2) [composition of Parliament] of the Constitution.
Contradictory provisions to the rule of law
The following are the contradictory provisions in the Constitution which go against the concept of rule of law:
Emergency provisions: Article 141A empowers the President to declare emergency whenever he wishes. Except in war time
situation, declaration of emergency cannot be supported. By declaring emergency in peace time the government can suspend
fundamental rights of the citizens, limit the Supreme Courts jurisdiction and suppress the opposition movement. This arbitrary
exercise of power by the government is contradictory to the concept of rule of law. Sheikh Mujibur Rahmans government used
this emergency power to suppress the opposition in the early 1970s, and General Moin U Ahmed and Dr Fakruddin Ahmed used the
loophole of this emergency provision to suppress the political parties and prolong their term in 2007.
Provision for ordinance making power:- Ordinance making power can be given in emergency situations like national crisis, national
calamity, and serious economic turmoil etc. In those circumstances, there may be needs for immediate legislative actions. However,
Article 93 of the Constitution allows the President to promulgate ordinances anytime during the recess of Parliamentary session. In

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practice, a huge number of ordinances are promulgated during this time by-passing Parliament. Parliament is the recognised
democratic law making body. But ordinance made laws are fully undemocratic, for they are made by the executive at their will. This
type of law making process is contradictory to the rule of law.
Administrative tribunal:- The presence of administrative tribunal is not unknown in the developed democratic countries of the
world. There are various reasons for the existence of these types of tribunals, such as quick relief and speedy proceedings for service
matters requiring special treatment and experience. However, there should be a transparent procedure, and judicial control and
supervision in those proceedings. Administrative tribunals should not be a substitute for fairness and justice provided by the
independent court of laws. Article 117 of the Constitution provides for the establishment of administrative tribunal. There is, however,
no clear provision as to who would chair the tribunal, what would be their qualification and what would be their security of tenure.
The executive plays key role in the administration and judicial process of the tribunal. This tribunal has been kept outside the writ
jurisdiction of the High Court under Article 102(5). It has also been kept out of the supervisory jurisdiction of the High Court. These
provisions are, therefore, contradictory to the concept of integrated judicial system and independence of judiciary - an important
ingredient of rule of law.
The provision for preventive detention:- Preventive detention can only be supported in the time of emergency. But Article 33 of the
Constitution allows the government to use this measure in peace time. In reality, every government has used the Special Power Act
1974 as a permanent law to detain people, mainly of opposition party background, without charge or trial. Since a 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 Article 31, 32, and 33 cannot be ensured. Therefore, the
provision allowing preventive detention in peace time under Article 33 is against the concept of rule of law.
The provision of Article 70.:- Article 70 blocks all positive measures in the Constitution for ensuring rule of law in many ways.
Firstly: the government, avoiding debates and criticism, tends to make laws by ordinance and later get those ordinances approved
under sweeping power of Article 70. Secondly: rule of law, as opposed to rule of individual or party, means rule of that law which is
passed in a democratically elected Parliament after adequate debate, deliberation and discussion. But because of Article 70 neither an
MP can put forward his strong dissenting opinion nor can he/she vote against the party line. As a result, each and every Bill of the
government, no matter how undemocratic and unfair it may be, gets quickly passed. Thirdly: the democratic right of the citizens to be
governed by a representative body answerable to them cannot be ensured due to Article 70. Though Article 55 says The cabinet
shall be collectively responsible to Parliament, this provision of collective responsibility has been meaningless because of Article
70 as the cabinet always knows that it is not going to be defeated by motion of no-confidence, for no member (MP) of the majority
party has the right to vote against the party line.
The independence of judiciary:- The most important precondition for ensuring rule of law in a country is to have an independent and
impartial judiciary. Although the apex judiciary is said to be independent, the reality and practicality do not suggest so. Despite
Article 95(2)(c) says...such other qualifications as may be prescribed by law for appointment as a Judge of the Supreme Court,
there has been no set and clearly defined appointment procedure introduced yet for appointing judges in the Supreme Court. Judges
are frequently appointed on political consideration as opposed to merit. Superseding judges have become norms. There has been no
separate secretariat for the Supreme Court established yet. Thus, the Supreme Court is dependent on the executive for its secretarial
tasks. The subordinate judiciary is still executive dependent. But in order to establish rule of law the subordinate judiciary must also
be independent and impartial. It was held, in Chandra Mohan V U.P AIR 1966 SC 1987 1993, that It is the Subordinate Judiciary
who are brought most closely into contact with the people, and it is no less important, perhaps indeed even more important, that their
independence should be placed beyond question.
The provision of Article 47:- Although Article 7 and 26 impose limitation on Parliament that no law which is inconsistent with any
provision of the Constitution can be passed, Article 47 saved certain laws and gave protection to some laws which, on its face, are
inconsistent to the various provisions of the Constitution. Of those saved and protected laws, the most dangerous are the laws passed
in relation to the war crimes and crimes against humanity introduced by the First Amendment of the Constitution. Initially these laws
were made with a view to try identified Pakistani army officers arrested on the suspicion of war crimes. These laws were amended in
2009 to include ordinary citizens and group of citizens of Bangladesh. Now any citizen of Bangladesh can be arrested under this law.
The black side of this law is that once someone is arrested on suspicion of war crime and crime against humanity, he will be denied of
his fundamental constitutional rights (i.e. fundamental rights and the right to apply to the High Court for judicial review). As any
citizen can potentially be targeted by this law, there is a strong possibility that it can be used politically in future. As a result, innocent
people may be victims despite being ciitizens of the country by birth they will be denied of their inherent fundamental rights of the
countrys constitution All these are contrary to the principle of rule of law.

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Quota system:- The recruitment in the civil service of the Republic based on existing 55% quota system as opposed to merit is directly
contradictory to Article 27 and 29 which respectively guarantee equality before law and equality of opportunity in public
employment. Although Article 28(4) allows some special provision for women, children and backward section of citizens, the 55%
quota is totally unfair, unjust and unreasonable. To some extent, it amounts to a mockery to merit and the principle of equality and nondiscrimination. Therefore, the existing unfair and unreasonable quota system is against the concept of rule of law.
Conclusion:- There are, no doubt, some positive provisions in the Constitution of Bangladesh for ensuring rule of law. However, those
positive provisions have been outweighed by the above negative provisions. Therefore, the whole Constitution should be reviewed by
an independent penal of experts to assess the impact of the contradictory and negative provisions on the common people of the
country, and then recommend for appropriate amendments.
Separation of Power in Bangladesh
The Masder Hossain case in 1990, there was directed to draft four rules and one
amendment and then separation of judiciary came out. Separation of judiciary is the big
achievement of the recent Code of Criminal Procedure (Amendment) Ordinance 2007 and
Judicial Separation is activated from 1st November, 2007 in Bangladesh. After the
promulgation of the recent Code of Criminal Procedure (amendment) Ordinance,2007, there
shall be two classes of Magistrate namely; the Judicial Magistrate and the Executive
Magistrate.
Secretary, Ministry of finance VS Md.Masder Hossain and Others, 52 DLR (AD) 82.
To run a country properly it is really important to ensure the separation of power. If the
maximum portion of overall power is on the hand of a particular group of institution, then
that become a burden for the state or republic. So through the separation of power the total
power are divided in the hand of different group or institution. By this way the misuse of
power can be eliminated. For an effective and modern democratic system all the major
institution of the country need to work independently. If we think about the major three
organ of the country legislative, executive, and judiciary, the three organs work should not
be overlapped each other. Because there are of work are separated by the constitution of any
country. Legislative branch, which has the ability to exact laws; the executive branch has
the ability to see those law enforced; and the judicial branch has the ability to decide
punishment
of
braking
laws.
If a single group or people hold the three of these powers, then it is sure that the person or
group would have unlimited power and they could specify any law, arresting criminal, and
decide that they are guilty. Because of the separation of power government violate the laws.
The aim of separation of power is to prevent unwanted concentration of power in between
one group or person through check and balance, and accountability which ensure the
freedom and rights of masses. Unchecked power offers corruption or absolution which arise
because lack off accountability. But if the power is divided that should prevent corruption
and
absolution
because
accountability
exist.
The separation of power policy can be broadened to enable the institutions to act as cheeks
and balances on each others. Here in this system each branch is autonomous, so that, this
autonomy helps to keep the others from exceeding their power, which ensuring rule of law
and defend the individual right.