The constitution of U. S. A.

Every country is based on some kind of law. Some of those are arbitrary powers, however over the years the only rule that seems to dictate the terms is the rule of law. One of the basic principles of the any constitution is the rule of law. This doctrine is accepted in the constitution of U. S. A. and in the constitution of Bangladesh. Now a day’s 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.

[1]Actually sustainable development and good governance mostly depends on the proper application of rule of law. Laws are made for the welfare of the people, to bring a balance in society, a harmony between the 2 conflicting forces in society. One of the prime objects of making laws is to maintain law and order in society, a peaceful environment for the progress of the people. In true and real sense, there is no rule of law in Bangladesh today. Law in Bangladesh follows a course of selective and discretionary application.

Institution and procedures required for ensuring rule of law also are no effective in the country. There are seven principal meanings of the term Rule of law according to various philosophers and constitution specialist. Those are: (1) Law and order; (2) Fixed rules; (3) Elimination of discretion; (4) Due process of law or fairness; (5) Natural law or observance of the principles of natural justice; (6) Preference for judges and ordinary courts of law to executive authorities and administrative tribunals; and (7) Judicial review of administrative actions.

So finally it may correctly be said that rule of law does not mean and cannot mean any government under any law. It means the rule by a democratic law, which is passed in a democratically elected parliament after adequate debate and discussion. RULE OF LAW AND THE CONSTITUTION OF BANGLADESH The rule of law is a basic feature of the constitution of Bangladesh. 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. However, facts on the ground tell a different story altogether. 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. [2]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. Some aspects of the rule of law in our society and polity should be mentioned as under: First, access to law as well as equality before it, are reserved for only those who are privileged. For the rest of the population, more or less the Hobbsian law of nature prevails. They are the helpless victims of as unjust society that sets great story by privileges. Second, all government in this country since the falls of Ershad have 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. The judges look up to the Ministry for everything infect they are obliged to. The principle of separation of judiciary from executive is being violated in two ways – 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. Third, 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. Fourth, The very principle that law should take its own course requires that in investigation, 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. In recent years, a large number of political killings have taken places. The national dailies have carried the stories of all the gruesome murders and the whole nation has been out raged. [3] Fifth, 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. 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. One 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.

Sixth, 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. Seventh, 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.

Eighth, 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. [4] Ninth, 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.

Tenth, In order to provide quick relief and avoid lengthy proceedings of litigation providing for the creation of Administrative Tribunal particularly for service matters which needs special treatment and experience is not undemocratic something. But this tribunal has been kept outside the writ jurisdiction of the High Court Division under article 102(5). Also it has been kept out of the supervisory jurisdiction of the High Court Division. This provision has therefore, been contradictory to the concept of integrated judicial system and also contrary to the concept of independence judiciary.

[5] OBSERVATION 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. Though our constitution provides for 18 fundamentals rights for citizens, these remain meaningless provisions 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.

[6] 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. However, what is needed for the very cause of the principle of democratic rule of law is: • To separate the judiciary immediately from the executive which has been done to some extent under the previous caretaker govt. • 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 other’s human rights, tolerance, communal harmony etc. CONCLUSION

People are the base source of power and constitution should always reflect the voice of the nation. As such, rule of law in Bangladesh should always reflect voice of Bangladeshi people voice. However, as seen from the above, 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 necessary 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. REFERENCE 1. Massey, I. P. Conceptual objections against the Growth of Administrative Law.

Administrative Law, 5th Ed; Eastern Book Company: 34, Lalbagh, 2. Halim, M. A. Rule of Law. Constitution, Constitutional Law and Politics: Bangladesh Perspective, Khan, M. Yousuf Ali, Eds; Rico Printers: 9 Nilkhet, Babupara, Dhaka-1205, 1998; 345. 3. Dicey, A. V. The Rule of Law: Its Nature and General Applications. Introduction To The Study Of The Law Of The Constitution, 8th Ed; Macmellan and Co. Limited: St. Martin’s Street, London, 1915; 202. 4. Dicey, A. V. Ibid, 198.