Introduction: Laws are made for the welfare of the people, to bring a balance in society, and to create harmony between the conflicting forces in society. One of the prime objectives of making laws is to maintain law and order in society, a peaceful environment for the progress of the people. Thus, the basic concept of the rule of law and its acceptance is considered to be a standard sign of civilization in the modern context. In the sense that rule of law implies equality before the law, there is no rule of law in Bangladesh today. Law in Bangladesh follows a course of selective and discretionary application. Institutions and procedures required for ensuring rule of law also are no effective in the country.
Concept of the rule of law: In simple terms, rule of law implies that every citizen is 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, can not be capricious. The concept of the supremacy of law has been perceived by AV Dicey as a cluster of three distinct conceptions:
1. Absence of arbitrary power which is to oppose the influence of arbitrary power. It excludes the existence of arbitrariness and exercise of wide
discretionary authority on the part of the government.
2. Equality before law or the equal subjection of all classes of people to the ordinary law of the land administered by the ordinary law courts.
3. Legal protection for individual rights. All the authority must be derived from law and as such be limited by law.
Besides, the spirit of rule of law requires the law to be reasonable and not arbitrary in both substantive and procedural aspects.
Rule of law and the Constitution of Bangladesh: The rule of law is a basic feature of the constitution of Bangladesh. Articles 27 and 31 aim to ensure that the state actions are justified with reference to law. Article 31 contains two parts:
1. The citizen and the residents of Bangladesh have the inalienable right to be treated in accordance with law and
2. No action detrimental to the life, liberty, body, reputation, or property of any citizen or anyone for the time being in Bangladesh shall be taken except in accordance with the law. The essential feature of Article 31 is embedded in the fact that this Article does not merely afford protection to the individuals against arbitrary executive actions but the rule of law and due process have been recognized as a fundamental right. It also imposes a limitation on the power of parliament in the enactment of law.
Besides, the fundamental rights of the people are contained in articles 26 to article 44. ‘No person shall be deprived of life or personal liberty save in accordance with law’ has been solemnly declared by our constitution. But facts on the ground tell a different story altogether.
Rule of Law in our Country: 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. Our constitution contains a plethora of laws while institutions like courts, ministries, and departments have been set up to dispense justice and decisions in accordance with the same. However, the present state of the rule of law reveals 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 is 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 an unjust society that sets the great stories by privileges.
Second, all governments in this country since the fall of Ershad have claimed that there is the independence of the 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, in fact, they are obliged to. The principle of separation of judiciary from the executive is being violated in two ways
1. Magistrates are performing the dual functions 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. is controlled not by the supreme court but by the law ministry.
Third, the government of Bangladesh continued to use the Special Power Act (SPA) and section 54 of the criminal code which allows 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 and preparation and submission of the charge sheet, the investigating agency should be free from encumbrances, 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 place. The national dailies have carried the stories of all the gruesome murders and the whole nation has been outraged. What is however deplorable is that in most of these highly publicised cases, the culprits have not been brought to justice. The reason is not far to seek. It is the interference by high-ups in the political ladder.
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 of the people which are generally considered as unreasonable. The special power Act of 1974, the public safety act passed by the former AL 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.
Sixth, rule of law postulates intelligence without passion and reason free from the 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, the police is no doubt a very powerful institution for the endorsement of the rule of law. But in Bangladesh, the police have never been friendly with the public. The police serve the government and enjoy, in exchange, the freedom to act arbitrarily and in the material interests of its own members.
Eighth, another disgusting aspect of our judicial system is that there is a charge of corruption against our judiciary. Moreover, justice is oftener than not, a costly commodity in our country. The poor people could not reach before the judges only because of their inability to meet the charges required for going through the complicated process of litigation. Thus, they prefer injustice to fatigue.
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 immediately from the executive;
– To appoint an ombudsman immediately for the sake of transparency and
– To make the parliament effective and to let the law-making body 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.
After all, the government must be committed to ensuring the security of life and property of the people, protection of individual rights, and the dissension of justice on the basis of 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 at this juncture.