The expression “Rule of Law’’ has various shades of meaning and of allconstitutional concepts, the rule of law is the most subjective and value laden. The term ‘rule of law’ is used as opposite to ‘rule of man’. The rule of law is one of the basic principles of the English constitution and also accepted in the constitution of the USA and Bangladesh. In Blacks Law Dictionary rule of law is defined as ‘a substantive legal principle’.
Laws are made for the welfare of the people to bring a balance in society, a harmony between the conflicting groups and at last to bring a peaceful environment for the progress of the people. The Magna Carta is the first foundation of the rule of law. Later on, in the seventeenth century in England after a struggle between the King and Parliament , the supremacy of Parliament over the King and all other bodies was ensured by the Bill of Rights, 1689. Thus the rule of law (law made by Parliament) in place of rule by man (King) came to be established.
Meaning of the Rule of Law Rule of law is derived from the French phrase ‘La Principe de legality i. e the principle of legality, which refers to a government based on principle of law and not of men. In the 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’. Edward Coke said that the king must be under God and law and thus vindicated the supremacy of law over the pretensions of the executives. According to A. V.
Dicey, rule of law includes three things – (i) absence of arbitrary power, that is no man is above the law and the persons in authority do not enjoy wide, arbitrary or discretionary powers, (ii) equality before law, that is, every man, whatever his rank or position, is subject to ordinary laws and the jurisdiction of ordinary courts, and (iii) constitution is the result of the ordinary law of the land. Dicey’s concept of the rule of law contemplated the absence of wide powers in the hands of the government officials.
According to him, wherever there is discretion there is room for arbitrariness. Professor Wade gave three ideas- i) it expresses a preference for law and order within a community rather than anarchy, warfare and constant strife, ii ) it expresses a legal doctrine of fundamental importance, namely, that government must be conducted according to law and that in disputed cases what the law requires is declared by judicial decisions and iii) it refers to a body of political opinion about what the declared rules of law should provide in matters both of substance and of procedure.
Nowadays the rule of law means the rule by a democratic law which is passed by a democratically elected parliament after adequate debate and discussion . The ‘rule of law’ according to Declaration of Delhi, 1959 relates to representative and responsible government; and there are certain minimum standards or principles for the law, including those contained in the Universal Declaration and the European Convention, in particular, freedom of religious belief, assembly and association, and the absence of retroactive penal law; An independent and impartial judiciary is a precondition to rule of law.
Rule of law is meaningless unless there is access to justice for the common people . The courts must be accessible to all if rights are to 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. The rich and powerful can always have their way, it is the poor and the weak who need the support of the law. The cost of litigation in Bangladesh is so high that most people cannot afford to seek remedies in courts.
It is absolutely necessary to undertake a meaningful legal aid scheme to ensure access to justice without which it is idle to talk about rule of law. Rule of Law in the Constitution of Bangladesh The rule of law is a basic feature of the constitution of Bangladesh. It can be seen from the preamble that fundamental human rights and freedom, equality and justice, political, economic and social have been mentioned after rule of law.
Part II of the Constitution states about the fundamental principles of state policy and in Art. 8(2) it is stated that “The principles set out in this part shall be fundamental to the governance of Bangladesh, shall be applied by the State in the making of laws,’ Art. 19 states that the State shall endeavour to ensure equality of opportunity to all citizens. Art. 22 states that “The State shall ensure the separation of judiciary from the executive organs of the State. ”
As there is difference of opinion as to the actual meaning of ‘rule of law’, the framers of the Constitution, after mentioning ‘rule of law’ in the preamble, took care to mention the other concepts touching on the qualitative aspects of law, thereby showing their adherence to the concept of rule of law as propounded by the latter viewers. To attain this fundamental aim of the State, the Constitution has made substantive provisions for the establishment of a policy where every functionary of the State must justify his action with reference to law. ‘Law’ does not mean anything that Parliament may pass.
Article 27 and 31 of the Constitution of Bangladesh have taken care of the qualitative aspects of law. Art. 27 forbids discrimination in law or in State action. Article 7 and 26 impose limitation of the legislative that no law which is inconsistent with any provision of the Constitution can be passed. Article 26 declares that all existing law inconsistent with the provisions of fundamental rights of the citizens, to the extent of such inconsistency, shall become void. Fundamental rights have been guaranteed in the Constitution. Which rights are the fundamental rights have been defined in Part III of the Constitution. Art.
27 guarantees equality before law, 28 guarantees that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth, Art. 29 guarantees equality of opportunity in respect of employment or office in the service of theRepublic. Art. 31 guarantees right to protection of law, Art. 32 guarantees protection of life and personal liberty, Art. 33 guarantees safeguards as to arrest and detention of the citizens, Art. 34 prohibits forced labour and Art. 35 guarantees protection in respect of trial and punishment. Subject to any reasonable restrictions imposed by law in the public interest,
public health, public order or security of the State etc. right to freedom of movement, assembly, association, thought and conscience and of speech, freedom of profession or occupation, religion; rights to property; protection of home and correspondence have been guaranteed in Arts. 36 to 43 of the Constitution. Under the Constitution, the High Court Division has power under Art. 102(1) to pass necessary orders to enforce fundamental rights and under Art. 44(1) the right to move the High Court Division under Art. 102(1) is itself a fundamental right. Thus it is not discretionary power of the High Court Division to grant relief under Art.
102(1). Once it finds that a fundamental right has been violated, it is under Constitutional obligation to grant the necessary relief. The guardianship of the constitution has given to the Supreme Court. The Supreme Court has given the power of judicial review. In accordance with Articles 7, 26 and 102(2) of the Constitution the Supreme Court exercises the power of the judicial review whereby it can examine the extent and legality of the actions of both the Executive and Legislative and can declare any of their actions void if they do anything beyond their constitutional limit.
In the recent past the hon’ble High Court Division declared the fifth and seventh amendment of the Constitution illegal and unconstitutional as those amendments were made against the basic structure of the Constitution. The independence of judiciary is affirmed and declared by Art. 94(4) and 116A of the Constitution. Art. 94(4) declares that subject to the provisions of the Constitution the Chief Justice and other Judges of the Supreme Court shall be independent in the exercise of their judicialfunctions and on the other hand Art.
116A declares that all magistrates shall be independent in the exercise of their judicial functions. The Appellate Division in the Masder Hossains case observed: “The independence of judiciary as affirmed and declared by Art. 94(4) and 116A, is one of the basic pillars of the Constitution. In the present context democracy is the precondition of rule of law. Right to be governed by a representative body answerable to the people have been ensured under Arts. 7(1), 11, 55, 56,57 and 65(2) of the Constitution. The provisions of the Constitution as discussed above are effective for ensuring the rule of law in Bangladesh.
But some provisions of the Constitution are contrary to the rule of law and those provisions are briefly discussed below: Provisions contrary to the concept Art. 70 states “A person elected as a member of Parliament at an election at which he was nominated as a candidate by a political party shall vacate his seat if he resigns from that party or votes in Parliament against that party. ” The Article has drastically curtailed the right of the elected representatives of the people to speak their minds, let alone vote in the House at the debates expressing the voice of their conscience.
Art. 93 of the Constitution allows the President to make and promulgate ordinance at the satisfaction of the President at any time when Parliament stands dissolved and the ordinance so made shall have the like force of law as an Act of Parliament. These laws are contrary to the concept of rule of law. Arts. 141A, 141B and 141C are the Emergency provisions inserted in the Constitution which made arrangements for proclamation of emergency, suspension of provisions of certain articles and suspension of enforcement of fundamental rights during emergencies.
Art 141A empower the President to declare the emergency whenever he wishes, which is against the concept of rule of law. Preventive detention is an abnormal measure whereby the Executive is authorized to impose restrains upon the liberty of a man who may not have committed a crime but who, it is apprehended, is about to commit acts that are prejudicial to public safety etc. Article 33 of the Constitution allows the government to use this measure in peace time.
The Chief Justice and the Judges of the High Court Division and Appellate Division; the Chief Election Commissioner and the Election Commissioners; the Comptroller and Auditor General; and the Chairman and Members of the Public Service Commission shall be appointed by the President as per provisions of Arts. 95(1), 118(1), 127(1) and 138(1) of the Constitution. During the tenure of last government we have seen strong controversies and debates over appointment of the Judges of the Supreme Court and Election Commissioners and Public Service Commission.
Sometimes these Constitutional posts are filled up by the persons who are loyal to or active supporter of the party in power. Sometimes unqualified and unskilled persons are appointed as the Judges of the High Court Division which becomes a bar to establishing rule of law. Non-Party Care-taker Government is a government which is not elected by the people by voting. This type of government is against the concept of democracy and as such is against the concept of rule of law. Conclusion
The above discussion makes it clear that though there are some positive provisions in the Constitution for ensuring the rule of law, there are also some provisions which are against the concept of rule of law. If the provisions of our Constitution which are against the concept of rule of law, are not amended, and in the present economic situation of the common people, who are very poor, if a meaningful legal aid scheme is not undertake to ensure access to justice to all people, the rule of law in Bangladesh will be meaningless.
The writer is an Advocate, Bangladesh Supreme Court. The six recommendations, outlined below, are designed to help develop a bold and clear vision, formulate detailed policy, and ensure a bright future for Bangladesh: 1. Ensure human rights, establish democratic values and practices, improve governance, and establish rule of law; 2. Generate employment; 3. Achieve adequate and long-term food security; 4. Increase investment in infrastructure and energy; 5. Invest in education and develop human resources, and 6. Manage the nation’s health and population.