Rule of Law
CONSTITUTIONAL LAW OF BANGLADESH-I LAW 215
Where is Rule of Law?
Where is Rule of Law in Bangladesh
Is there any rule of law in Bangladesh?
There is ‘rule’ and there is also law. Then why do you say there is no rule of law?
Rule of Law in Bangladesh!
What does it mean?
Rule of law implies that every citizen is subject to the law. It stands in contrast to the idea that the ruler is above the law, for example by divine right.
Wikipedia
Meaning of Rule of Law
The Oxford English Dictionary has defined rule of law this way:
The authority and influence of law in
society, especially when viewed as a
constraint on individual and institutional
behaviour; (hence) the principle
whereby all members of a society
(including those in government) are
considered equally subject to publicly
disclosed legal codes and processes.
Rule of Law Pyramid
Contents of Rule of Law
It’s like a Burger!
Rule of Law in Jungle!
Rule of Law versus Rule of Putin!
Origin of Rule of Law
The Magna Carta played a central role in England between 1215 and 1688 in establishing the rule of law and the control of the abuse of official power.
Not only did the expression soon become common, but it acquired a role in rhetorical arguments defending the legitimacy (or lack thereof) of an exercise of power. In his Declaration of August 12, 1642,to All His Loving Subjects, a few days before raising his standard at Nottingham, the unfortunate Charles I noted:
The inconveniences and mischiefs which had grown by the long intermission of Parliaments, and by departing too much from the known Rule of Law, to an Arbitrary power
Magna Carta (1215)
Chapter 39 of the Magna Carta states:
No freeman shall be arrested, or
detained in prison, or deprived of his
freehold, or outlawed, or banished, or
in any way molested; and we [the
barons] will not set forth against him,
nor send against him, unless by the
lawful judgment of his peers [social
equals].
Dr. Bonham Case
Our second stop on the path from Magna Carta to Dicey is Sir Edward Coke (1552–1634). Coke, baptized by Hayek in The Constitution of Liberty as “the great fountain of Whig principles,” transformed Magna Carta into the cornerstone of the reassertion of the power of the English Parliament against the Stuart dynasty. Coke, with little regard for historical accuracy, considered Magna Carta an authoritative declaratory document of immemorial English liberties and reinterpreted much of its content.
For example, in 1604, Coke found in chapter 39 of the original Magna Carta a justification for habeas corpus.
Dr. Bonham Case
Coke deftly articulated his idea of the substantive commitments of the
“rule of law” in 1610. In the decision of Dr. Bonham’s case, Coke argued:
for when an Act of Parliament is against Common right and reason, or repugnant, or impossible to be performed, the Common Law will control it, and adjudge such Act to be void.
Dr. Bonham’s case is, as the concept of the “rule of law,” often interpreted from a formalist position. The main argument for Coke’s dismissal of the Act of Parliament that empowered the Royal College of Physicians to prosecute Dr. Bonham was the old maxim that nemo judex in parte sua: the College could not be both a judge and a party in deciding the fate of Dr. Bonham.
Albert Venn Dicey (1835–1922): The Jurist of Rule of Law
But despite these older uses, the expression “rule of law” only became widely popular after A.V. Dicey postulated in his classic 1885 treatise, Introduction to the Study of the Law of the Constitution (Chapter IV) that the rule or supremacy of law was one of the two fundamental principles of the political institutions of England since the Norman conquest (the other, of course, being the supremacy of Parliament).
Dicey on Rule of Law
This supremacy of the law, or the security given under the English constitution to the rights of individuals looked at from various points of view, forms the subject of this part of this treatise.
Foreign observers of English manners have been far more struck than have Englishmen themselves with the fact that England is a country governed, as is scarcely any other part of Europe, under the rule of law.
Dicey on Rule of Law
In the United Kingdom, the rule of law, at least historically, has been closely related to A.V. Dicey. Dicey’s perception of the rule of law was introduced in his book Introduction to the Study of the Law of the Constitution. According to Dicey, in line with the concept of Parliamentary Sovereignty, the rule of law is one of the twin pillars of the British Constitution. There are 3 conceptions of the rule of law which had been highlighted by Dicey.
Dicey on Rule of Law
The first aspect indicates that no man is punishable or can be lawfully made to suffer in body or deprived of their goods unless they had violated the law which has been established in an ordinary way and applied by an ordinary court. There is also an absolute supremacy or predominance of regular law over arbitrary power and the state could not act in an arbitrary manner which was unlawful.
Dicey on Rule of Law
The second aspect of Dicey’s conception of the rule of law indicates that in terms of the equality before the law, no man is above the law. Regardless of what an individual’s rank or condition is, he is subjected to the ordinary law of the realm and be bounded to the jurisdiction of the ordinary tribunals. As a result, no matter an ordinary private citizen or a state official breached the same law, they would be treated in the same way. It denoted that the state officials were not given any special privileges or protections from the law of the land.
Thomas Fuller had also quoted that “Be you ever so high, the law is above you.”
Dicey on Rule of Law
The third aspect denotes that the principles of the constitution are the result of the ordinary law of the land. Dicey stated that Britain had a court-based constitution (in effect, a common law constitution), in the sense that decisions made by the judges directly resulted the principles of the constitution which concerning the rights of private persons. This reveals Dicey’s belief that the common law affords greater protection to the citizens than a written constitution.
Tom Bingham: Modernization of Rule of Law
The lecture entitled ‘The Rule of Law’ was given by Lord Bingham in the House of Lords on 16 November 2006. Lord Bingham outlined 8 sub-rules which he believed comprised the rule of law and these 8 principles enunciated by Lord Bingham had been regarded as the modern version of the rule of law. Lord Bingham declared that “the core of the existing doctrine of the rule of law was that all public and private persons should be bound by and entitled to the benefit of laws publicly and prospectively issued and publicly administered by the courts.” The view of Lord Bingham could be said as filling in the gaps of Dicey’s conception as it is more modern and concerning the latest issue. The 8 principles are as below:
Tom Bingham: Modernization of Rule of Law
Sub-rule 1: The law must be accessible so far as possible, intelligible, clear and predictable.
Sub-rule 2: Questions of legal right and liability should generally be decided by application of the law and not the exercise of the discretion.
Sub-rule 3: The law must apply equally to everyone, unless differences can be justified.
Sub-rule 4: The law must provide appropriate protection of essential and basic human rights.
Tom Bingham: Modernization of Rule of Law
Sub-rule 5: The parties in civil disputes must be able to resolve disputes without facing a huge legal cost or excessive delays.
Sub-rule 6: The executive must use the powers given to them
reasonably, in good faith, for the proper purpose and must not exceed the limit s of these powers.
Sub-rule 7: There must be adjudicative procedural fairness.
Sub-rule 8: The state must comply with the obligations of international law which whether deriving from treaty or international custom and practice governs the conduct of nations.
Natural Law and Rule of Law
Lon Fuller recounts the ‘moral’ tale of a fictional King Rex and the eight ways in which he fails to make law. He goes wrong because
(1) he fails to achieve rules at all, so that every issue must be decided on an ad hoc basis;
(2) he does not publicize the rules that his subjects are expected to observe;
(3) he abuses his legislative powers by enacting retroactive legislation (i.e. on Tuesday making unlawful those acts that were lawful on Monday);
(4) his rules are incomprehensible;
(5) he enacts contradictory rules or
(6) rules that require conduct beyond the powers of the affected party;
(7) he introduces such frequent changes in the rules that his subjects cannot adjust their action;
and
(8) he fails to achieve congruence between the rules as announced and their actual administration.
Natural Law and Rule of Law
Ill-fated King Rex bites the dust because he disregards Fuller’s eight principles:
1. Generality
2. Promulgation
3. Non-retroactivity
4. Clarity
5. Non-contradiction
6. Possibility of compliance
7. Constancy
8. Congruence between declared rule and official action.
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”:
Rule of Law in Bangladesh Constitution
The provisions of rule of law abounds in the Constitution of the People’s Republic of Bangladesh. The followings are few among them:
1. Government to Run in Accordance with Law [Article 7]
2. Equality before Law, Equal Protection of Law & Non-discrimination [Articles 26 & 27]
3. Reasonable Classification [Articles 28(4) & 29(3)]
4. Treatment in Accordance with Law [Article 31]
5. Independence of Judiciary [Article 22]
6. Access to Justice & Judicial Review [Articles 44 & 102]
7. Representative Government [Article 11]
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 isn’t the true reflection of the constitution . Some aspects of the rule of law in our society should be mentioned as under:
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 example - The 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 don’t 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.
Rule of Law in Bangladesh
The Prothom Alo published a new in 2018 where it reported: আইননর
।
শশসন পততষশয় তবনশর ১১৩ দদনশর মনধধ বশবলশনদশ ১০২তম সশনন আনছ দতকণ এতশয়শর ছয়তট দদনশর মনধধ বশবলশনদনশর অবসশন চততরর মধধ আনয়র ৩০ দদনশর মনধধ বশবলশনদশ।
। ২২তম
আইননর শশসন তবষয়ক আটতট সসচনকর তভততনত জতরপতট করশ হনয়নছ সরকশতর কমতশর। সসমশবদতশ, দতনরসততর অনতপতসতত, উনতক সরকশর, দমমতলক অতধকশর, তনয়ম ও তনরশপতশ , তনয়নণমসলক কমতশর পনয়শগ, নশগতরক নধশয়তবচশর ও দফমজদশতর তবচশর -এই আটতট সসচনকর তভততনত তততর করশ ওই পততনবদনন বশবলশনদনশর অবসশন গত বছনরর ততলনশয় এক ধশপ
। উনতত হনয়নছ
https://www.prothomalo.com/bangladesh/article/1 422216
Rule of Law and Democracy
How are they related?
Further Reading & Watching
Banglapedia: http://en.banglapedia.org/index.php?title=Rule_of_Law
Wikipedia: https://en.wikipedia.org/wiki/Magna_Carta
Wikipedia: https://en.wikipedia.org/wiki/Rule_of_law
Youtube: https://www.youtube.com/watch?v=IZDd2v18vfw
