Md. Nazmul Ahad
Every country has its own constitution which should contain the provision of the rule of law. Now-a-days, the term rule of law is one of the most discussed subjects in all developing countries. Developed countries and donor agencies always instruct the developing countries for sustainable development which mostly depends on the proper application of the rule of law. Usually Laws are made for the welfare of the people, to bring a balance in society, a harmony between the haves and have not. One of the basic objects of making laws is to maintain law and order in the society among conflicting interest of the privileged and deprived. Like that of other country Bangladesh Constitution provides some provisions relating to rule of law. But in practice, today the rule of law is in a very dangerous position. Law in Bangladesh follows a course of selective and discretionary application. Institutional and procedural requirements for ensuring rule of law are not effective in our country.
Key Words: La Principe de Legality, Rule of Law, Absence of Arbitrary power, Equality before Law, Welfare State.
1. Introduction
The word “Rule of Law’’ has various aspects of meaning and it is the most enlightened subject in the present world. Rule of law is used as the standard of the civilization. The simplest meaning of rule of law is that everything must be done according to law. In Black’s Law Dictionary rule of law is defined as ‘a substantive legal principle’[1]. 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 it is also accepted in the Constitution of the USA and of Bangladesh. One of the main objects of making laws is to maintain law and order in the society. Every power and discretion granted in favor of the governmental authorities make a corresponding incursion on the freedom of individuals. Existence of unfettered and uncontrolled power of the government must have disastrous effect on the rights and liberty of the people. So the concept of constitutionalism has been developed. A State may have constitution, but not have constitutionalism. Constitutionalism recognizes the need for limited government with checks and balances on the exercise of power by the governmental authorities. And at the heart of constitutionalism is the concept of rule of law. This article aims to critically analysis and evaluates insufficient application of the rule of law and provides some suggestions to establish the rule of law in Bangladesh.
2. Development of Concept of the Rule of Law
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’ is opposed to arbitrary powers. All citizens are equal before law and are entitled to equal treatment of law is one of the basic principles of Rule of Law. [2] Once the maxim ‘king can do no wrong’ was practiced in England and they were above the law. The crown of England enjoyed the immunity. But doctrine of rule of law established the equality and supremacy of law. In this sense the king should be under law.[3] Rule of law implies equal treatment for similar wrongs and under rule of law government and public officials are subjected to ordinary law. Sir Edward Coke, who was the chief justice in James 1st reign, is the originator of this concept. He successfully maintained that the king should be under God and the law and thus vindicated the supremacy of law over the pretensions of the executives. A.V. Dicey later developed this concept in his classic book ‘The Law and the Constitution’ published in the year 1885. Moreover, this concept has been developed through many thinkers and initiatives of the world communities. A brief discussion about the development of the concept of rule of law is given below:
2.1. A. V. Dicey’s Concept of Rule of Law
A.V. Dicey discussed and classified the doctrine of rule of law in his famous work, ‘The Law and the Constitution. Dicey found following three elements of rule of law:
- Supremacy of Law and Absence of Arbitrary Power
This the first principle of rule of law explained by Dicey. According to him the Englishmen were ruled by law and law alone.[4] This principle requires that everything should be done according to law and there is no scope for exercising arbitrary power from the part of the government. A man may be punished for a breach of law, but he can be punished for nothing else. Under this theory government should be subject to law rather than the law subject to the government.
- Equality before Law
This principle implies that all persons are under law and they are entitled to equal protection of ordinary law of the land administered by the ordinary law courts.[5] In this sense rule of law expresses that no one is above the law and everybody should be treated equally in the same matter. Under this principle like private citizens government officials are under a duty to obey the same law, and there can be no Special court or administrative tribunal for the state officials.
- Predominance of Legal Spirit
The last principle of the rule of law propounded by Dicey is predominance of legal spirit. It means that rules of constitutional law are the result of the ordinary law of the land. Rights of the individuals should be determined through ordinary law not through constitutional declaration. Constitution is not the source but the consequence of the rights of the individuals.[6]
2.2 Modern Concept of Rule of Law
In the modern time, Dicey’s concept about rule of law cannot be accepted completely. But as the first written directives it is very much significant in respect of understanding and developing the concept of rule of law. At present the welfare states have to perform many functions and to take many policies for the welfare of the people. Besides the executive power, in some extent judicial and legislative powers should be delegated to the administrative authority. However, this concept of rule of law has been developed by several jurists and some national and international initiatives have been taken for making rule of law reality. Some of these are discussed below:
The famous jurist K.C. Davis gives the following seven principles of rule of law which should be observed by the modern states:
(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.
Professor Wade and Bradley found the following three elements of rule of law:
(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.
(iii) It refers to a body of political opinion about what the declared rules should provide in matters both of substance and of procedure.[7]
Delhi Declaration on Rule of Law
The modern concept of the rule of law is fairly wide and therefore sets up an ideal for any government to achieve. This concept was developed by the International Commission of Jurists known as Delhi Declaration, 1959 which was later on confirmed at Logos in 1961. The Declaration enumerates rule of law as follows:[8]
- The function of legislature in a free society under rule of law is to establish and maintain the condition which will uphold the dignity of man as individual. This dignity requires not only the recognition of certain civil or political rights but also creation of certain political, social, economical, educational and cultural conditions which are essential to the full development of his personality.
- The rule of law depends not only the provision of adequate safeguard against abuse of power by the Executive, but also on the existence of effective government capable of maintaining law and order and of ensuring sufficient economic and social conditions of life for free society. These conditions include national health scheme, social security and access to law courts and right to living wage.
- Independent judiciary and free legal profession are indispensable requisites of a free society under the rule of law.
Chicago Conference on Rule of Law
In 1957, a conference on Rule of Law was held in the University of Chicago as understood in the west. Eleven countries namely UK, West Germany, Italy, Canada, Sweden, Turkey, Brazil, Mexico, Israel, USSR and Poland attended the conference. In this conference the participating countries have made an agreement on the concept of rule of law. They recognize rule of law as a positive content and that should be secured principally by the ordinary courts.
They consider rule of as liberty and justice and there should be appropriate standard by which the balance between private interest and the common good can be maintained. Different techniques can be adopted to achieve the concept of rule of law as the supremacy of law over the government and if there is no technique, the government itself becomes the means whereby the law is achieved. The rule of law should consist of values meaning a climate of legality and legal order in which the nations of the west live and in which they wish to continue to live.
Donors Agencies on Rule of Law
In the modern age, donor agencies have given instructions to ensure rule of law. They described rule of law as substantive dimension meaning fair legal system. According to the World Bank, a ‘fair’ legal system is, in a general sense, conducive to balanced development; on that facilitates growth and responds to the needs of the poor people.[9] ADB defines rule of law as:
‘‘…….the rule of law encompasses well defined rights and duties, as well as mechanism for enforcing them, and settling disputes in an impartial manner. It requires the state and its subsidiary agencies to be as much bound by, and answerable to, the legal system as are private individuals and enterprises.’’[10]
According to the World Bank, five elements are critical for ensuring the stability and predictability of rule of law in the markets. viz., a set of rules known in advance, rules that are actually in force, ensuring application of the rules by specific legal authority, conflict resolution through credible and independent judicial system, stable and predictable amendment procedure.
Now it is clear that rule of law should be prevailed for overall development of a country. For ensuring modern concept of rule of law, separation of state powers must be taken place specially separation of the judiciary. Independent judiciary is the safeguard of rule of law and for freedom and liberty, there must be rule of law in the society.
3. Rule of Law under the Constitution of Bangladesh
The rule of law is a basic feature of the Constitution of Bangladesh. The preamble of the constitution enunciates the ideals of rule of law, fundamental human rights, justice, equity, political, economic and social rights. It has also 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.
Article 27 guarantees that all citizens are equal before law and are entitled to equal protection of law. Article 22 prescribes that the State shall ensure the separation of the judiciary from executive organs of the State. Article 31 stipulates 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 within 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. As many as eighteen fundamental rights have been guaranteed in the constitutional arrangement for their effective enforcement has been ensured in Articles 44 and 102. Article 7 provides that all powers in the Republic belong to the people, and their exercise on behalf of the people shall be effected only under, and by the authority of, this Constitution. This constitution is, as the solemn expression of the will of the people, the supreme law of the Republic and if any other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency be void. Article 26 also provides that all existing law inconsistent with provisions of this Part (part-III of Constitution) shall, to the extent of such inconsistency, become void on the commencement of this Constitution. The State shall not make any law inconsistent with any law of this Part, and any law so made shall, to the extent of such inconsistency, be void. So it is clear that 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 exercises the power of judicial review whereby it can examine the extent and legality of the actions of both executive and legislative and can declare any of their actions void if they do anything beyond their constitutional limits. Article 11 indicates that the Republic shall be a democracy in which fundamental human rights and freedoms and respect for the dignity and worth of the human person shall be guaranteed, and in which effective participation by the people through their elected representatives in administration at all levels shall be ensured. Article 55 mentions that there shall be a Cabinet for Bangladesh having the Prime Minister at its head and comprising also such other Ministers as the Prime Minister may from time to time designated. The Cabinet shall be collectively responsible to Parliament. Article 65(2) provides that Parliament shall consist of three hundred members to be elected in accordance with law from single territorial constituencies by direct election and, for so long as clause (3) is effective, the members provided for in that clause; member shall be designated as Members of Parliament. Right to be governed by a representative body answerable to the people has been ensured under Articles 7(1), 11, 55 and 65(2) of the constitution.[11] All these provisions of Constitution of Bangladesh are very much relevant with the modern concept of rule of law.
4. Rule of Law in Bangladesh in Practice
In spite of all the above mentioned constitutional safeguards, there are some legal and practical problems which directly or indirectly impede the establishment of rule of law. Some of these problems are given below:
(a) Civil and political rights have been guaranteed the part III of the Constitution of Bangladesh as fundamental rights. But in this part, the economic, social and cultural rights have not been guaranteed. If the economic, social and cultural rights are fully established in the society then the rule of law will be meaningless. Most of the fundamental rights which are incorporated in the Bangladesh Constitution are civil and political rights and some economic, social and cultural rights are formulated in the Fundamental Principles of State Policy chapter which should not be judicially enforceable.[12]
(b) Equality before law is one of the basic principles of rule of law. Bangladesh Constitution provides that all citizens are equal before law and entitled to equal protection of law. But this doctrine is not applicable for the members of the disciplined force. It is reasonable, but when any army member of a disciplined force fails to get relief from his own department, he cannot go to the High Court Division. Judicial review is not applicable here. So tremendous violation of rule of law is found in the field of defense department. In 1981 the Court Martial judgment had become news head of the dailies. It is worth mentioning, 13 Army officers were hung by the quick judgment of the Court Martial on 23rd September 1981 for the murder of former President Gen. Zia Ur Rahman and abortive coup. The army officers are not given any right to enforce their fundamental rights and they are not equally protected. Rule of law was stifled in their case.[13] In the government job, 56% post is reserved for the minor people who are come from reserve quota but only 44% is reserved for the talented major people. Is it equality before law? According to Article 29(3), State can make special provision in favor of any backward section of citizens for the purpose of securing their adequate representation in the service of the Republic; giving effect to any law which makes provision for reserving appointments relating to any religious or denominational institution to persons of that religion or denomination; reserving for members of one sex any class of employment or office on the ground that it is considered by its nature to be unsuited to members of the opposite sex. But the present quota system is not similar to this provision. So this system is violating the doctrine of rule of law.
(c) Separation of judiciary is a precondition to ensure rule of law. Though there is direction in Bangladesh Constitution for separation of judiciary from executive, some provisions in the Constitution and some other factors directly or indirectly intervene in the independent of judiciary. Some of the conditions are given below:
i) President exercises the power of prerogative to dispense with the humanity of justice. It is not a correction of judicial errors rather a mitigation of severity by humanity in exceptionally warranted situation. President being the father of state exercises this prerogative in reply to the urge of his conscience. This holy duty is expected to be exercised only for the greater interest in justice not for political manipulation. Unfortunately in this country the pardon provision, even death sentence is being granted only on the basis of the political consideration. Article 49 of the Constitution of Bangladesh says, “The president shall have power to grant pardons, reprieves and respites and to remit, suspend or commute any sentence passed by any court, tribunal or other authority.” But it has been found this power being exercised by the government for arbitrary or extraneous reasons. This clearly creates a discriminatory situation in the administration of criminal justice. “According to media report, one person got presidential amnesty in 2009 but the numbers shot up to 18 in 2010. Two more death-row convicts got the presidential clemency in 2011. This means that the present AL government pardoned 21 condemned convicts during the last three years. The military-backed caretaker government in 2008 pardoned one person. The BNP government in 2005 gave clemency to two persons. HM Ershad granted amnesty to his party’s armed cadre Azam Khan in 1987, who was given capital punishment for killing AL leader Moyez Uddin Ahmed. President Zillur Rahman pardoned Biplob, son of Abu Taher, an AL leader and mayor of Luxmipur municipality in July 2011, who was given death sentence in advocate Nurul Islam murder case. Biplob was convicted in absentia in three cases. After being on the run for more than 10 years, he surrendered before a court on April 6 last year. His father then filed mercy petitions to the president, following which the president granted clemency to Biplob in Nurul Islam murder case last year. [14]All of the above mentioned facts are opposed to the rule of law.
ii) Independence of judiciary is a pre-requisite to ensure rule of law. In Bangladesh, judiciary has been separated from executive on 1st November 2007. But independence of judiciary is now called in question. Though under the present law, the judges including magistrate exercising judicial functions of the lower judiciary are being appointed by the independent Judicial Service Commission, due to existence of some constitutional provisions, the executive has tremendous control over the judiciary in various ways.[15]
iii) Free and fair process of appointment of the judges is a vital component to ensure rule of law.Rule of law not only requires independence of judiciary from the executive, it is also required that the judicial branch of the government should be manned by competent persons. The process of recruitment of the members of subordinate judiciary leaves much to be improved in ensuring the quality of the judicial officers and the quality of the judges has become a debatable issue. Even the appointment process of the judges of the Supreme Court in recent times has been called in question. Most of them have been appointed on the basis of political background. Independent judiciary can play vital role to access to justice. The term access to justice has two illustrations – one of them is the courts of the country are easily approachable by the ordinary people and the other is that the people should be able to have their disputes settled quickly. None of the conditions is fulfilled.
(d) Provision of preventive detention is violating human rights as well as rule of law. Rule of law requires that no man should be arrested and detained without any charge of criminal offence. But article 33 of the Constitution of Bangladesh permits such arrest and detention when security of the State or maintenance of law and order requires such detention. Later on the Special Powers Act, 1974 was passed. Section 3 of this Act provides that the government may, if satisfied that it is necessary to detain any person to prevent him from doing prejudicial acts[16], pass order for detention of such person. Sub-section (2) of section 3 confers similar power on the Deputy Commissioners or the Additional Deputy Commissioner of a district to pass such an order for arrest and detention in respect of some of the prejudicial acts. Prior to enactment of the Special Powers Act in 1974, such power of preventive detention could be exercised only by the government and this power was exercised only in limited number of cases. It is true to say that this power has been very extensively used by the Government. Arrest without having trial is opposed to the rule of law.
(e) Suspicious arrest under section 54 of the Code of Criminal Procedure, 1898 is against fundamental human rights. In general sense, a police officer can arrest an accused person by the warrant of arrest of the court but under section 54 of the Code of Criminal Procedure, the police officer can arrest a person without warrant if a reasonable suspicion exists of having been concerned in any cognizable offence. There is no specific definition of reasonable suspicion, as a result the police abuse the power of arrest in the name of reasonable suspicion. Again after arrest they pray for the remand to the authorized Magistrate, while in remand, the arrested person is subjected to torture to extort confession and in quite a number of cases it resulted an extra judicial killing. Actually police apply this section with a view to earning money in illegal way.[17] This is stark violation of rule of law. It is worth mentioned that the High Court Division has given some directions regarding arrest without warrant in BLAST v. Bangladesh [18] such as
i) A police officer shall disclose his identity and, if demanded, shall show his identity card to the person arrested and to the persons present at the time of arrest.
ii) Immediately after bringing the person arrested to the police station, the police officer shall record the reasons for the arrest, etc. in diary kept in the police station for that purpose.
iii) If at the time of arrest, the police officer finds any marks of injury on the persons arrested, he shall record the reasons for such injury and shall take the person to the nearest hospital or Government doctor for treatment and shall obtain a certificate from the attending doctor about the injuries.
iv) He shall furnish the reasons for arrest to the person arrested within three hours of bringing him to the police station.
v) If the person is not arrested from his residence or place of business, he shall inform the nearest relation of the person over phone, if any or through a messenger within one hour of bringing him to the police station.
vi) He shall allow the person arrested to consult the lawyer of his choice if he so desires or to meet any of his nearest relations.
vii) When such person is produced before the nearest Magistrate, the police officer shall state in his forwarding letter as to why the investigation could not be completed within 24 hours, why he considers that the accusation or the information against that person is well founded. He shall also transmit copy of the relevant entries in the case diary to the same Magistrate.
But unfortunately the law enforces agency were being violated the above mentioned directions in various shapes and forms which is contradictory to establish the rule of law.
(f) The Enemy Property Act later on Vested Property Act is one of the deceptive documents. From its inception about 10 (ten) lakh Hindu families have suffered loss and at that time they have lost 21 lakh acres land (53 percent of total Hindu land).[19] The existence of this kind of law in a democratic country like ours is anti-human and violation of rule of law.[20] From 2001 to 2013 the Vested Property Act have been passed several times but complexity regarding this land is not been ended.
(g) Procrastination of judicial system is one of the bars to establish the rule of law. It is a matter of great sorrow that the quick disposal of dispute is almost impossible in the present court system in Bangladesh. Now a day’s delay in process of the disposal of cases is common phenomena. It takes years to settle a dispute tiring the litigants both physically and financially. This delay affects the poor much more than the rich and in many cases the poor litigant is compelled to give up their claim in the process. The reasons for the delay are many in which the lawyers, the judges and the system have their contribution. Shortage of the number of judges, incompetence of the judges and the lawyers, prolongation of the disposal of the cases by taking resort to revisional are partly responsible for the delay. Many cases without any merit whatsoever are filed by the lawyers that are ultimately dismissed, but in the process the number of such meritless cases creates burden in the court. The writ petitions filed before the High Court Division offer an example. Every year thousands of writ petitions are filed, many of them have no merit. Even summary dismissal of those meritless writ petitions waste considerable time of the court. The number of writ petitions in which rule is made absolute is very small compared to the number of writ petitions that are filed. Getting justice is one of the basic principles of rule of law and it depends upon the quick disposal of suits, cases and petitions. But unfortunately dilatory practice in trial system in Bangladesh dispenses with injustice rather than justice and the rule of law is violated in various forms.
(h) Improvement of law and order situation is vested to the ruling government. But it is a matter of sorrow that in the present context, nobody is free from danger. Journalists, businessmen, teachers, service holders, and other sections of citizens are passing their days under continuous threat of terror. In 2012, assassination of Saudi diplomat is the latest mark of poor law and order situation. Though freedom of press has been recognized in our Constitution, journalists are under tremendous pressure. Attack and killing of journalists is our everyday feature. On February 11, 2012, two journalists of the electronic media, Sagor Sarwar, News Editor of Maasranga TV and his wife Meherun Runi, reporter of ATN Bangla TV, were brutally killed at their rented flat at West Rajabazar in Dhaka. Their death angered the whole media and journalist community who demanded the arrest of the perpetrators. But Detective Branch of police failed to find a way out about the murder. Moreover, A new crimes has been listed in our crime world, viz., forced disappearance. At present many people have been disappeared and/or bodies are recovered after people are picked up by men claiming to be members of law enforcement agencies. The members of the opposition party are being victimized more. The law enforcing agencies are failing to find out the culprits and unfortunately the government is not showing seriousness to find out the mystery behind the disappearance.
(i) Extra judicial killing by the member of the law enforces agencies is being now common phenomena. Extra judicial killing means accused is killed by law enforces agency without trial. The government has formed Rapid Action Battalion (in short ‘RAB’) in 2004. While in custody of RAB a large number of persons arrested died and in all such cases, RAB came out with the story of the arrested person dying in so called ‘cross-fire’. Fact can be accepted in one or two cases, but when it is being advanced regularly to explain the cases of death in custody, it is totally unacceptable. Such death is considered as extra judicial killing. ‘No man should be condemned unheard’ is one of the important principles of the natural justice. In the name of cross fire law enforces agencies are violating the principle of natural justice. This killing is fully opposed to the rule of law. When a person is taken in custody, it is an obligation of the detaining authority to ensure his safety and security. For the failing to make safety of the accused, the law enforces agency can’t refuge their responsibility. Even a notorious criminal can claim the security of his life and liberty.
(j) Election process should be free and fair for establishment of rule of law. Constitution of Bangladesh has provided a representative government in all spheres of the administration. The importance of representative government is that the affairs of the State will be under the management and control of the representatives of the people. It is essential to have free and fair election so that the people have free choice of their representatives. But there has been consistent allegations of rigging and manipulation of the election process. Day by day it is increasing. The very purpose of representative government for the establishment of rule of law is being frustrated. The Constitution makes provision for independent Election Commission which is vested with power to ensure free and fair election. So far the Election Commission has not been able to ensure completely free and fair election. The failure of the Election Commission consists mainly of its inability to enforce the electoral rules.
(k) Power to withdrawal of cases is recognized by the various existing laws in Bangladesh. But in the present time most of the criminal cases have been withdrawn on the political basis. Section 494 of the Code of Criminal Procedure, 1898 gives a general executive direction to the public prosecutor to withdraw from prosecution subject to the court’s consent which may be determined on many possible grounds. The withdrawal is an executive and not a judicial act like the tender of pardon under section 337. The public prosecutor can withdraw in his own right and not on behalf of government that he has acted under the direction of government is no concern of the court. The reasons for withdrawal must satisfy the judicial conscience of the court. The complainant has no locus standi in the matter of withdrawal of a prosecution[21]. It has been found 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. In such a case the Appellate Division set aside the order of the trial court allowing withdrawal of prosecution.[22]
(l) Access to justice to all people is fundamental human rights. All people may have not financial ability to get justice but they have right to get justice. Pro-bono lawyering[23] is still absent in Bangladesh. Everybody knows that many of the accused persons are too poor to afford assistance of a competent lawyer. As a criminal prosecution may result in deprivation of life or personal liberty, the Indian Supreme Court held that an accused, who due to poverty, indigence or incommunicado situation, cannot afford legal service is entitled to free legal aid at the cost of the State as part of the fair and reasonable procedure under Article 21 of the Indian constitution.[24] Such type of legal aid especially in the criminal cases is not found in the constitution of Bangladesh as well as Code of Criminal Procedure of Bangladesh. So it is opposed to the basic element of rule of law of the equality before law.
5. Conclusion
The above motioned analysis make it clear that though there are some positive provisions for ensuring rule of law in the Constitution of Bangladesh, they are being outweighed by the negative provisions. Though our constitution provides for eighteen (18) fundamental rights for citizens, these remain meaningless version to the masses because due to poverty and in the absence of proper legal aid to the poor people cannot enjoy 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 are not totally absent from the polity. For ensuring rule of law some measures should be taken as judiciary is to be free and fair, political appointment of judges in the High Court Division should be stopped. Dilatory practice or procrastination of litigation should be removed. Corruption should be root out in all spheres in the polity. Accountability and transparency in all sectors of the country must be established. Law enforces agencies and police force are to be reformed and well equipped to get rid of corruption and free them from political influence so that proper application of law should be maintained. Upon consideration of the political identity, mercy power on the President is to be restricted and President’s uncontrolled Constitutional power to pass ordinance need to be delimited. The President may be allowed to make ordinance after the abolition of parliament but no power should be given to make ordinance in the gap of two sessions of the parliament. When parliament is not in session then President can summon the session to legislate. The Constitution of Bangladesh has made provision for establishment of rule of law. But real scenario is consequently different as mentioned in the above discussion. It is clear that every Constitutional government is elected by a free and fair election. Although Constitutional government is a precondition for the establishment of rule of law and though Bangladesh has existing Constitutional government, but the role of the current government towards the opposition is not satisfactory. This unusual political situation is creating obstacles to the establishment of rule of law. It is high time to establish the rule of law in Bangladesh. It is however known that Bangladesh is advancing in its economic development day by day. During the last few years some donors agencies and foreign investors have expressed their views that Bangladesh is going very soon to be a middle earned country. It will however go back, if rule of law is not urgently established in Bangladesh. It is optimistically believed by everybody that the rule of law will soon be established in Bangladesh and the goal will be achieved.
[1] Black law dictionary, Garner Bryan A, west group, (June 2009), ISBN, 0314199497
[2] Professor Dr. M. Johurul Islam, Law on Good Governance: Bangladesh Perspective, (Dhaka: New Warsi Book Corporation, 1st ed., 2013), pp.172-73
[3] Ibid., p.173.
[4] Ibid.
[5] Ibid, p.174.
[6] Ibid, pp.174-175
[7] Wade and Bradley, Constitutional and Administrative Law, 10th Edition, p.97
[8] Mohammad Johurul Islam, “Rule of Law: Impact and Implications in Bangladesh”, The Islamic University Studies, Faculty of Law and Shariah, Kushtia, Bangladesh, vol. 2, No. 1, December 2000, pp. 221-222
[9] Professor Dr. M. Johurul Islam, Law on Good Governance, op. cit., p.182
[10] Governance: Sound Development Management, Asian Development Bank, Manila, 1995, p.10
[11] Abdul Halim, Constitution, Constitutional Law and Politics: Bangladesh Perspective, (Dhaka: CCB Foundation, 4th ed., 2008), pp.416-417
[12] Article 8(2) of The Constitution of the people’s Republic of Bangladesh, 1972
[13] Mohammad Johurul Islam, “Rule of Law: Impact and Implications in Bangladesh”, op. cit., pp.219-230, at p.225
[14] http://www.daily-sun.com/index.php?view=details&archiev=yes&arch_date=21-11-2012&type=daily_sun_ news &pub_no=326&cat_id=2&menu_id=5&news_type_id=1&index=0, (Accessed on 23-6-13)
[15] Professor Dr. M. Johurul Islam, op.cit. p.198
[16] Section 2(f) of the Special Power Act,1974
[17] A report “Adhikar” (Adhikar is a leading human rights organization in Bangladesh), the Prothom Aol, a national
daily, 08 September, 2000
[18] Bangladesh Legal Aid Services Trust v. Bangladesh, 55 DLR 363
[19] Report of the Prothom Alo, Dhaka, 22 September 2000
[20] Professor Dr. M. Johurul Islam, op.cit.p.199
[21] Zahirul Huq; Law and Practice of Criminal Procedure, (Dhaka: Law Book Company, 11th Ed., 2010), p.855
[22] Prativa Rani v. Dr. Md. Yousuf, 52 DLR (AD) 9
[23] In law, the term pro bono refers to legal work that is performed voluntarily and free of charge. A lawyer may take on a legal case for free for a good cause.
[24] Hossainara v. Bihar, AIR 1979 SC 1369; Sheela Barse v. Maharashtra, AIR 1983 SC 378
The writer is *Principal Officer, Legal Affairs & Recovery Division, ONE Bank Limited, Corporate Head Quarters, HRC Bhaban, 46- Kawran Bazar C/A, Dhaka 1215. Ex-Senior Lecturer, Department of Law, Sylhet,International University, Sylhet. Email: ahad.nazmul@gmail.com.
