A Comparative Study in Regard to the Theory Rule of Law between Uk and

Bangladesh: Reality and Practice

1

Z. H. SIKDER UNIVERSITY OF SCIENCE AND TECHNOLOGY

MADHUPUR, BHEDERGONJ, SHARIATPUR

Assignment on

A Comparative Study in Regard to the Theory Rule of Law

between Uk and Bangladesh: Reality and Practice

Department of Law

Submitted by

Students Name : Saffat Mim

Students ID : 160214002
Batch : 13th
Department : Law

Submitted to

Supervisor : M. Monir Hossen

Designation : Assistant Professor,
Department of Law

Date of Submission: 17 August 2017

 A Comparative Study in Regard to the Theory Rule of Law between Uk and
Bangladesh: Reality and Practice
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A Comparative Study in Regard to the Theory Rule of Law between Uk

and Bangladesh: Reality and Practice

Contents

SL PN
1.1 Introduction 01
1.2 Meaning of the term Rule of Law 01-02
1.3 Understanding and explaining the term Rule of law 02-04
1.4 Elements of the Rule of Law 04-05
1.5 Historical Background 05
1.6 Importance of Rule of Law 06
1.7 Traditional or old theory of rule of law 06-07
1.8 A socialist approach to the Rule of Law 07
1.9 Processor Diceys and his theory of Rule of Law 08
2.0 Criticism of Dicey's theory of Rule of Law 09
2.1 Rule of Law applied in True and Modern Sense 10
2.2 Assess to Justice 10
2.3 Independence of Judiciary in Bangladesh 10-11
2.4 Rule of Law as Reflexed in the Constitution of Bangladesh 11-12
2.5 Rule of Law and the constitution of Bangladesh 13
2.6 Necessary Recommendations of Rule of law in Bangladesh 13-14
2.7 Criticism of Rule of Law in Bangladesh 15
2.8 Reality and Practice Rule of Law in Bangladesh 15-17
2.9 Conclusion 18

1.1 Introduction
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In the arena of the constitutional law, the term Rule of Law is very familiar. Despite wide use
by politicians, judges and academics, the rule of law has been described as an exceedingly
elusive notion, giving rise to a rampant divergence of understanding, everyone is for it but have
contrasting convictions about what it is. One of the basic principles of the British constitution
is the rule of law. This doctrine is accepted in the U.S.A. and also in the constitution of
Bangladesh.1 Now-a-days, rule of law is one of the most discussed subjects of developing
countries. Developed countries and donor agencies always instruct the developing countries
for sustainable development and good governance. Actually, sustainable development and
good governance mostly depends on the proper application of rule of law. The preamble of our
constitution stated that, one of the main purposes of the republic is to establish an exploitation
free society in which rule of law, fundamental rights of the people can be ensured.

The King is not the law but the law is king

Moreover, there are a number of provisions in our constitution which are directly or indirectly
related to the concept of rule of law. The monarch or the representatives of the republic are
governed by the laws derived out of the Grundnorm and their powers are limited by the law.

1.2 Meaning of the term Rule of law

The term Rule of Law is derived from the French phrase La Principe de Legality (the
principle of legality) 2which refers to a government based on principles of law. The rule of law
does not have a precise definition and its meaning can vary between different nations and legal
traditions. Rule of law was implies that every citizen is subject to the law, including lawmakers.

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. 3

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

1
M. Jashim Ali Chowdhury, An introduction to the constitutional law of Bangladesh,2nd edition, 2014,Sun
Shine Books, Chittagong,p.406-417
2
ibid
3
MD Rezaul Karim,Constitutional law of UK and USA.,3rd Edition, 2016.p.80
 A Comparative Study in Regard to the Theory Rule of Law between Uk and
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throughout the world. He developed this concept in his classic book The Law of the
Constitution published in the year 1885.4 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. 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.5

1.3 Understanding and explaining the term Rule of law

According to Dicey, the rule of law is one of the fundamental principle of the English legal
system. He attributed the following three meanings to the said doctrine:

i. Supremacy of law;

ii. Equality before law; and

iii. Predominance of legal spirit

(i) Supremacy of law

Explaining 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. It excludes the existence of arbitrariness, of prerogative or even wide
discretionary authority on the part of the Government. According to him the English men were
ruled by the law and law alone. A man may be punished for a breach of law, but can be punished
nothing else. In this words Wherever there is discretion, there is room for arbitrariness and
that in a republic no less than under a monarchy discretionary authority on the part of the
Government must mean insecurity for legal freedom on the part of the subject. As Wade says

4
ibid
5
Supra note 1
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the rule of law requires that the Government should be subject to the law, rather than the law
subject to the Government.

In other words according to this doctrine. No man can be arrested, punished or be lawfully
made to suffer in body or goods except by the process of law and for a breach of law established
in the ordinary legal manner before the courts of the land. Dicey described this principle as the
central and most characteristic feature of common law. 6

(ii) Equality before law

Explaining the second principle of the rule of law, Dicey states that there must be equality
before the law or the equal subjection of all classes to the ordinary law of the land administered
by the ordinary law courts. According to him in England all persons were subject to one and
the same law, and there were no extraordinary tribunals or special courts for officers of the
Government and other authorities. He criticized the French legal system of droit administrative
in which there were separate administrative tribunals for deciding cases between the officials
of the state and the citizens. According to him, exemption of the civil servants from the
jurisdiction of the ordinary courts of law and providing then with the special tribunals was the
negation of equality. Of course, Dicey himself saw that administrative authorities were
exercising judicial functions though they were not courts. He, therefore, asserted; such
transferences of authority saps the foundation of the rule of law which has been for generations
a leading feature of the English constitution.

According to Dicey, any encroachment on the jurisdiction of the courts and any restrictions on
the subjects unimpeded access to them are bound to jeopardize his rights. In the words of lord
denning. Our English law does not allow a public officer ton shelter behind a droit
administrative.

(iii) Predominance of legal sprit

6
Supra note 3
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Explaining the third principle, Dicey states that in many countries rights to personal liberty,
freedom from arrest, freedom to hold public meetings are guaranteed by a written constitution:
in England, it is not so . Those rights are the result of judicial decisions in concreate 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 guarantors of liberty and suggested that the rights would be secured more declaration if
they were enforceable in the courts of law than by mere development of those rights in a
document, as in the latter case. They can be ignored, curtailed or trampled upon; the law of
the constitution, the rules which in foreign countries naturally from part of a constitutional
code, are not the source but the consequence of the rights of individuals, as defined and
enforced by the courts.

According to him, mere incorporation of certain rights in the written constitution is of little
value in the absence of effective remedies of protection and enforcement. He propounded:
Habeas Corpus Acts declare no principle and define no rights, but they are for practical
purposes worth a hundred constitutional articles guaranteeing individual liberty,7

1.4 Elements of the Rule of Law8

In his book The Morality of Law, American legal scholar Lon Fuller identified eight elements
of law which have been recognized as necessary for a society aspiring to institute the rule of
law. Fuller stated the following:

1. Laws must exist and those laws should be obeyed by all, including government officials.

2. Laws must be published.

3. Laws must be prospective in nature so that the effect of the law may only take place after
the law has been passed. For example, the court cannot convict a person of a crime committed
before a criminal statute prohibiting the conduct was passed.

4. Laws should be written with reasonable clarity to avoid unfair enforcement.

7
Supra note 3.p.151
8
Mahbubul Islam, Understanding the Constitution of Bangladesh, First published, January 2015,Dhaka .p.338
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5. Law must avoid contradictions.

6. Law must not command the impossible.

7. Law must stay constant through time to allow the formalization of rules; however, law also
must allow for timely revision when the underlying social and political circumstances have
changed.

8. Official action should be consistent with the declared rule.

Standing alone, these eight elements may seem clear and understandable. But they are actually
difficult to implement in the real world because governments are often compelled to prioritize
one goal over another to resolve conflicts in a way that reflects societys political choices. For
example, making too many laws that are too detailed and specific may make the legal system
too rigid. Inflexibility could cause the courts of a country (judiciary) to neglect the human
element of each particular case. Additionally, instead of only applying prospectively, some
laws are meant to apply retroactively, or to past conduct, because they were passed with the
specific intent of correcting the conduct in question. Fuller recognized these conflicts and
suggested that societies should prepare to balance the different objectives listed above.

1. 5 Historical Background 9

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) 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."2
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. 10

9
Md. Abdul Halim, Constitution, constitutional law and politics: Bangladesh perspective: a comparative study
of problems of constitutionalism in Bangladesh, Sixth Edition, 2014, CCB Foundation, Dhaka.p.406-417
10
Supra note 10.p.16
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"No free man shall be taken or imprison or desseised or exiled or in any way destroyed nor
will we go or send for him, except under a lawful judgement of his peers and by the law of
the land".

--MAGNA CARTA, 1215

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 arbitrariness. 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 3 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 cannot be
capricious.

1.6 Importance of Rule of Law11

Rule of law is very important in the society. It is a must in order for a society to be peaceful
and problem-free. Law is a man-made therefore it is in you if you will follow it or not. If you
do not follow the law, it doesnt mean you will die, so nature has nothing to do on the laws of
man. The law is something that the human has created to modulate the society by introducing
justice, fairness and equality that is set by courts and governments and is applied to everyone
within their jurisdiction. The law can give protection to the victims and will punish those who
have done unlawful actions. You dont have any option where you can choose from, if you
disobey, then, you have to face the consequences. If a society wont have a system of law on it
that will control how the people operates their lives, then there would not be a society to live
in. people will be able to make decisions that will solely be based on their principles, then they
would be able to do crimes if they want to, steal, murder, damage, bully, rape, trespass, and
even terrorize what and whom when they wanted want to, and nothing would be done about it
at all.

11
C.K. Takwani , Lecture on Administrative law, 3rd edition, 2005.p.21
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1.7 Traditional or old theory of rule of law

The first known use of this English phrase occurred around AD 1500[20] Another early example
of the phrase "rule of law" is found in a petition to James I of England in 1610, from the House
of Commons:

Amongst many other points of happiness and freedom which your majesty's subjects of this
kingdom have enjoyed under your royal progenitors, kings and queens of this realm, there is
none which they have accounted more dear and precious than this, to be guided and governed
by the certain rule of the law which giveth both to the head and members that which of right
belongeth to them, and not by any uncertain or arbitrary form of government..

In 1607, English Chief Justice Sir Edward Coke said in the Case of Prohibitions (according to
his own report) "that the law was the golden met-wand and measure to try the causes of the
subjects; and which protected His Majesty in safety and peace: with which the King was greatly
offended, and said, that then he should be under the law, which was treason to affirm, as he
said; to which I said, that Bracton saith, quod Rex non debed esse sub homine, sed sub Deo et
lege (That the King ought not to be under any man but under God and the law.)."

Among the first modern authors to use the term and give the principle theoretical foundations
was Samuel Rutherford in Lex, Rex (1644). The title, Latin for "the law is king", subverts the
traditional formulation rex lex ("the king is law").John Locke also discussed this issue in
his Second Treatise of Government (1690):

The natural liberty of man is to be free from any superior power on earth, and not to be under
the will or legislative authority of man, but to have only the law of nature for his rule. The
liberty of man, in society, is to be under no other legislative power, but that established, by
consent, in the commonwealth; nor under the dominion of any will, or restraint of any law, but
what that legislative shall enact, according to the trust put in it. Freedom then is not what Sir
Robert Filmer tells us, Observations, a liberty for everyone to do what he lists, to live as he
pleases, and not to be tied by any laws: but freedom of men under government is, to have a
standing rule to live by, common to every one of that society, and made by the legislative power
erected in it; a liberty to follow my own will in all things, where the rule prescribes not; and
not to be subject to the inconstant, uncertain, unknown, arbitrary will of another man: as
freedom of nature is, to be under no other restraint but the law of nature.

1.8 A socialist approach to the Rule of Law

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Rule of law is a must in order for a society to be peaceful and problem-free. Law is a man-
made therefore it is in you if you will follow it or not. If you do not follow the law, it doesnt
mean you will die, so nature has nothing to do on the laws of man. The law is something that
the human has created to modulate the society by introducing justice, fairness and equality that
is set by courts and governments and is applied to everyone within their jurisdiction. The law
can give protection to the victims and will punish those who have done unlawful actions. You
dont have any option where you can choose from, if you disobey, then, you have to face the
consequences. If a society wont have a system of law on it that will control how the people
operates their lives, then there would not be a society to live in. people will be able to make
decisions that will solely be based on their principles, then they would be able to do crimes if
they want to, steal, murder, damage, bully, rape, trespass, and even terrorize what and whom
when they wanted want to, and nothing would be done about it at all.12

1.9 Processor Dicey and his theory Rule of Law13

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.

a. 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 else. 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.14

b. 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

12
Ibid.p.111
13
C.K. Takwani , Lecture on Administrative law, 3rd edition, 2005.p.17
14
Ibid.p.18
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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.15

c. 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 grantors of liberty.16

2.0 Criticism of Dicey's theory of Rule of Law17

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.18 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 5
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

15
ibid
16
Ibid.p.19
17
Md. Abdul Halim, Constitution, constitutional law and politics: Bangladesh perspective: a comparative study
of problems of constitutionalism in Bangladesh, Sixth Edition, 2014, CCB Foundation, Dhaka
18
Md Rezaul Karim, Constitutional law of UK and USA, 3rd Edition, 2016.p.80
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says that the fundamental right and liberties 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.19 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.20 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.

2.1 Rule of Law applied in True and Modern Sense21

In the modern sense, the expression rule of law means supremacy of the law and not rule
by law. This legal supremacy can be attained through ensuring a complete responsibility of
those in charge of powers on behalf of those governed. By the term rule of law, we often
some principles such as liberal democracy, guarantee of fundamental rights, existence of an
independent judiciary, insurance of human equality and dignity etc.

These elements finally got recognized in the Declaration of Delhi, 1959 adopted by leading
jurist from around the globe, where following points were emphasized:
i. The peoples right to responsible government and the legislatures obligation to conform to
minimum standards of law;
ii. Judicial control over executive actions and delegated legislations;
iii. A fair and public trial, meaning criminal justice for the accused and the victims;
iv. Independence of the judiciary and the legal profession.

19
Supra note 10.p.19
20
ibid
21
Md. Abdul Halim, Constitution, constitutional law and politics: Bangladesh perspective: a comparative study
of problems of constitutionalism in Bangladesh, Sixth Edition, 2014, CCB Foundation, Dhaka,p.412
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2.2 Assess to Justice

One of the important requirements of the rule of law is that people of all ranks and status must
have access to courts for remedy against illegal and arbitrary act impinging on their rights and
liberty. The courts must be accessible to all so that rights, in case of infringement, can be
enforced. It is not sufficient that there exists a system of independent Court, the cost of having
recourse to the courts must be such that there is real access to the courts. Although, the
Constitution and the laws of the country have provided the access to justice to all people
without any distinction, the cost of litigation is somewhat high and poor people cannot afford
to seek remedies in court. It is absolutely necessary to undertake a meaningful legal aid scheme
to ensure access to justice without which it is meaningless to talk about rule of law.

2.4 Rule of Law as Reflexed in the Constitution of Bangladesh22

The rule of law is a basic feature of the Constitution of Bangladesh (Anwar Hossain
Chowdhury v. Bangladesh, 1989). The meaning of the rule or law- as envisaged in the
Constitution of Bangladesh can be seen from the Preamble it shall be a 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" If the relevant paragraph of the
preamble is read as a whole in its proper context, there remains no doubt (hat the framers of
the constitution intended to achieve rule of law' accordance with the pledge some positive
provisions for rule of law. fundamental rights and also their better protection have been
incorporated in the constitution Article 7 provides that the powers in the republic belong to the
people and their exercise on behalf of them is regulated arrested and arbitrarily detained mostly
in fabricated cases. Now we will see how adequately the right to life of the citizens of
Bangladesh is being protected.23The 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."

22
ibid
23
M. Jashim Ali chowdhury , An Introduction to the Constitutional law of Bangladesh,2nd Edition ,2014.p.157
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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 con 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 have been ensured under Articles
7(1), 11, 55, 56, 57 and 65(2) of the constitution.18 All these provisions of constitution are
effective for ensuring rule of law in Bangladesh. But facts on the ground tell a different story
altogether.24

The constitution of Bangladesh in the preamble proclaims rule of law as the prime objective
of the constitution. Syed Ishhtiaq Ahmed submitted in the Anwar Hussain Chowdhury
vs. Bangladesh (Eighth Amendment case) 41 DLR, 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.
If we analyze the provisions of the Constitutions, we find that the entire constitutional regime
is aimed at achieving the rule of law as it is understood in the present day25

2.5 What we need to do maintaining Rule of law in Bangladesh26

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.

24
Mahbubul Islam ,Understanding the Constitution of Bangladesh, First Edition, January 2015.p.354
25
Anwar Hussain Chowdhury vs. Bangladesh (Eighth Amendment case) 41 DLR
26
Mahbubul Islam ,Understanding the Constitution of Bangladesh, First Edition, January 2015.p.357
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Though our constitution provides for 18 fundamentals rights for citizens, these remain
meaningless version 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 separate the judiciary from the executive in practically not theoretically.

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.

2.6 The rule of law compare with Bangladesh and UK

Rule of law has great importance in judicial system of United Kingdom and one of the very
important features of the British constitution As there rule of law is ensured no one can escape
and also no one is beyond the judicial capacity so possibility of ensuring criminal justice
becomes light.

On the other hand, Rule of law has not yet established though Article-27 of the constitution of
the country (Bangladesh)states all citizens are equal before law and are entitled to equal
protection of law I short Equality before law.
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2.7 Criticism of Rule of Law in Bangladesh27

In Bangladesh the judiciary at all its levels entertain the Instruction of the executive. The
executive want to control the judiciary and Legislature want to control executive the
appointment, promotion salary, transfer and suspension of judge depend on executive indirectly
there is no separation of power and police misused their power so there is no equality before
law so the rule of law in Bangladesh is not absolute.

As to his first principle he says that there would be no arbitrary or discretionary power. But
even in Diceys lifetime there were both arbitrary and discretionary power in Britain and they
still exist in all governmental systems and also it is important to mention that without arbitrary
power in exceptional eases the governmental machinery would remain unworkable. Preventive
detention. Emergency situation, compulsory acquisition of goods and properties direct
enforcement of administrative decisions etc. measures are common and essential for
development purposes in exceptional cases and these measures are the best examples of
exercise of arbitrary power. Again. There is a distinction between arbitrary power and
discretionary power which Dicey failed to trace of course. It may be contended that 'it is still
an essential principle of constitutional government in UK that there should be no arbitrary
power to arrest or punish. But discretionary power is sometimes it must for governmental
function For example. Judges arc given wide discretionary power in gaming but, defining sonic
crimes, explaining laws etc. Ministers and other executive bodies are sometimes given wide
discretionary powers by the statute. Thus a minister may be empowered by law 'to act its he
thinks fit' or if lie is satisfied. In many countries with written constitution discretionary
powers are expressly given to the executive e.gt in promulgating ordinances. Determination of
emergencies etc.28

As regards the second postulate 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. There an: also diplomatic immunities and members of embassies are exempted

27
Md. Abdul Halim, Constitution, constitutional law and politics: Bangladesh perspective: a comparative study
of problems of constitutionalism in Bangladesh, Sixth Edition, 2014, CCB Foundation, Dhaka.p.406-417
28
ibid
 A Comparative Study in Regard to the Theory Rule of Law between Uk and
Bangladesh: Reality and Practice
17

front process in English courts though not from legal liability. Members of parliament have
certain immunities from legal proceeding in respect of some of their activities. Again. Special
courts are common features in all countries. Rights and obligations of individuals are now
largely decided in many cases not by ordinary courts but by special courts like. Administrative
tribunal, juvenile court. Court martial, military court etc. Not only that various Acts like
Factories Act, Education Act etc. have vested the executive with certain judicial powers. All
these have certainly curtailed the jurisdiction of the ordinary courts of law and refuted the
substance of Dicey that there is only one kind of law and one kind of courts that exist in
England.

As regards his third postulate Dicey says that fundamental rights and liberties emanate from
judicial decisions, but this is one-sided View. Because in England people have got many rights
through the law of parliament and the charters issued by the monarchs. The supremacy of
parliament is the constitution, it is recognized as fundamental law just as a written constitution
is regarded as a fundamental law 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 the equality before law is not possible in every case. So the concept of
rule of law as propounded by Dicey needs modification.29

2.8 Rule of Law as we see Reality and Practice30

The theoretical position explained above. However, tells little of the ground reality. In fact,
Rule of Law has suffered a grievous set back in our society due to various reasons some of
which summarized below:

i. Independence of Judiciary: The Independence of the subordinate judiciary has

suffered as set back in the constitution due to the halfhearted effort of the framers.
In Articles 114- 116. Though the Masder Hossain case has been able to mark some

29
ibid
30
i. M. Jashim Ali Chowdhury, An introduction to the constitutional law of Bangladesh,2nd edition,
2014,Sun Shine Books, Chittagong,p.161
 A Comparative Study in Regard to the Theory Rule of Law between Uk and
Bangladesh: Reality and Practice
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progress. The necessity of amending the Constitution to give independence of

judiciary as meaning is still felt.31
ii. Access to justice: The absence of well organize legal mechanism and presence a
grossly corrupted administration of justice has limited the actress in terms of money
and power.
iii. Election Commission: So far the Election commission has been able. to conduct
completely free election due to its institutional in the east there had been consistent_
allegations of rigging and manipulation of the election" process. Now a days due to
the media up it may not be possible, yet behind the scene election engineering by
politicizing the election commission not totally impossible.32
iv. Political Commitment: Rule of law cannot be truly" established unless the actors
the political scene have faith and conviction in the utility and effectiveness of rule
of law and constitutionalism. Very often our political forces giving lip-service to
rule of law without, any genuine and' sustained effort to establish it.33

v. Execution of Judicial Verdict: Even if; an order is obtained from the High Court
Division or from the Appellate Division, the public functionaries have
demonstrated their reluctance to comply with the verdict of the highest Court. Good
dene through Public interest Litigation has almost withered may by the rampant non
execution of judicial verdicts. This is so in spite of the provisions of Article 112 0f
the Constitution which specifically require the organs of the state to act in aid of the
Supreme Court.34
vi. Preventive detention; to the user distress of ordinary people the power of
preventive detention granted by Article 33 of the Constitution has been very
extensively used by the the government and the Deputy Commissioners of the

31
ibid
32
ibid
33
ibid
34
i. M. Jashim Ali Chowdhury, An introduction to the constitutional law of Bangladesh,2nd edition,
2014,Sun Shine Books, Chittagong ,p.162
 A Comparative Study in Regard to the Theory Rule of Law between Uk and
Bangladesh: Reality and Practice
19

districts without having regard to the grounds permissible in law. In BLAST v.

Bangladesh 55 DLR 363 the High Court Division took note of these facts. The
High Court Division found the entire process illegal and inconsistent with the
provisions of Article 33 and 35 of the Constitution.35
vii. Extra judicial Killings: In order to flash out the criminals for restoration of ever
deteriorating law and order situation, the government formed Rapid Action
Battalion (RAB). In custody of RAB a large number of persons arrested died and in
all such cases, RAB came out with a story of the arrested person dying in cross-
fire when his confederates tried to snatch him from the custody of RAB.36
viii. Withdrawal of Cases: Section 494 of the Code of Criminal Procedure confers
power on the public prosecutor to withdraw from prosecution with the consent of
the court. We very often see that the government gives instruction for withdrawal
of cases for extraneous reasons and the consent is often given by the court without
proper application of mind.
ix. Article 70 and inactive legislature: Article 70 has a serious impact over the
functioning of Parliament. With a view to avoiding debates the government always
makes laws by ordinances and later gets them passed under the sweeping? Power
of Article 70.37

35
ibid
36
ibid
37
ibid
 A Comparative Study in Regard to the Theory Rule of Law between Uk and
Bangladesh: Reality and Practice
20

2.8 Conclusion

The prime and foremost expectation of the people of a country is to establish Rule of Law.
Our supreme law i.e. the Constitution has made provisions for enforcement of rule of law in
the country. If the constitution is followed in letter and spirit, there is no reason why rule of
law cannot be achieved. Rule of law cannot be established in the society unless the people in
general and people actively involved with the function of government as well as with politics
have faith in the utility and effectiveness of rule of law and have commitment for it. It is a
matter of regret that there is deficiency of respect for and commitment towards rule of law. In
addition, corruption and pursuit of politician have seriously undermined rule of law in our
country. In the line of the mandates of preamble of our constitution, it is high time to establish
a socialist society where fundamental rights of the people, equality and justice, and most
importantly rule of law is ensured.
 A Comparative Study in Regard to the Theory Rule of Law between Uk and
Bangladesh: Reality and Practice
21

Bibliography

i. Md. Abdul Halim, Constitution, constitutional law and politics: Bangladesh

perspective: a comparative study of problems of constitutionalism in Bangladesh,

Sixth Edition, 2014, CCB Foundation, Dhaka

ii. M. Jashim Ali Chowdhury, An introduction to the constitutional law of

Bangladesh,2nd edition, 2014,Sun Shine Books, Chittagong

iii. C.K. Takwani , Lecture on Administrative law, 3rd edi, 2005

iv. MD Rezaul Karim, Constitutional law of UK and USA, 3rd Edition, 2016.

v. Mahbubul Islam, Understanding the Constitution of Bangladesh, 1st edition, 2015

vi. Mahbubul Islam ,Understanding the Constitution of Bangladesh, First Edition,

January 2015.