ASSIGNMENT

ON
“Rule of Law in Bangladesh”

Course Title: Administrative Law and Ethics

Course Code: PA-314

Submitted To
Nusrat Jahan Nipu
Lecturer,
Department of Public Administration
University of Barisal

Submitted By
Tayaba Rahman Ritu
Roll No: 18 PAD 063
Semester: 3rd year, 1st
Session: 2017-18
Department of Public Administration
University of Barisal

Date of Submission: 05.04.2021

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 Table of content
SL.No. Topic Name Page
No.

1 Introduction 02

2 Concept of the Rule of Law 02

3 Origin & Historical Development of Rule of Law 03

4 The Rule of Law- Ancient View 03-04

5 Ancient Rule of Law in Modern World 04

6 Principles of Rule of Law 05

7 Rule of Law in the Constitution of Bangladesh 05-06

8 Aspects of Rule of Law in Bangladesh 06-09

9 Some examples of real scenario of Rule of Law in Bangladesh 09

10 Observation 10

11 How to ensure rule of law 10

12 Conclusion 11

13 Reference 11

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Introduction:
The “Rule of law” is the uppermost law of manhood. This is the most elementary of all laws
verifying- the maximum rational accomplishment of mankind. The “rule of law” is an unselfish
reality which agrees the most treacherous marauder on the world to live organized in amity and
agreement, collaborating for shared egotism and evolution. Like every independent civilized
modern country rule of law is one of the basic principles of the constitution of Bangladesh.
Today it is one of the most debated topics in Bangladesh. Although laws are made for the
welfare of the citizens, bring peace and harmony unfortunately in the context of Bangladesh it
seems the implication of rule of law isn’t for the common citizens. Law in Bangladesh follows
a course of selective and discretionary application. Institution and procedures required for
ensuring rule of law also are not effective in the country.

Concept of the Rule of Law:

No political establishment can’t justify its existence unless in ensure rule of law. In plain words
rule of law is a structure which protect the rights of citizens from arbitrary and abusive use of
government power. The concept of ‘Rule of Law’ is the building block on which the modern
democratic society is founded. 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' was
opposed to arbitrary powers.

The rule of law is a viable and dynamic concept and like many other such concepts, is not
capable of any exact definition. In general, the rule of law implies that the creation of laws,
their enforcement, and the relationships among legal rules are themselves legally regulated, so
that no one-including the most highly placed official-is above the law. Rule of law is the
mechanism, process, institution, practice, or norm that supports the equality of all citizens
before the law, and more generally prevents the arbitrary use of power. It is a situation in which
the laws of a country are obeyed by everyone.

One simple formation of the idea of “rule of law; is the idea that society should be ruled by law
not by men, the basis formation emphasize three concepts:

a) The legal detriment should only be imposed by law not on basis of personal will or
arbitrary decision of government official,
b) The government action should be subject to regulation by rules and not to be above the
law,
c) The people should be protected from private violence and coercion.

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Origin & Historical Development of Rule of Law:
The history of Rule of Law is the history of emergence of political liberalism from bondage of
political despotism. The concept of “Rule of Law” is very ancient, it is explained in Aristotle’s
politics book chapter III in England – The Idea that the King is also subject to Laws of the
Land has its origin in the Magna Carta of 1215 by King John.

In the 13th century Bracton, a judge in the reign of Henry III in a way introduced the concept
of Rule of Law without naming. It as Rule of Law He wrote – “the King himself ought to be
subject to God and the Law, because Law makes him King” This universal law was attributable
to God.

In the 17th century, Edward Coke is said to be the initiator of concept of Rule of Law – when
He said that the king must be under God and Law and thus vindicated the supremacy of Law
over the pretensions of the executives, Afterward during the long struggle for power between
the King and Parliament in the 17th century, the Parliamentary force lastly won through the
Glorious Revolution in 1688 and the supremacy of the Parliament over the King and all other
bodies was assured by the bill of rights 1689.

It was now made convinced that the King might be under the law and parliament. But the credit
for developing the concept of rule of law goes to Professor A.V Dicey He was a British Jurist
and Constitutional Theorist, who in his classic book “Introduction to the study of the Law of
the Constitution” published in the year 1885 tried developing the concept of Rule of Law.

The Rule of Law- Ancient View:

An ancient idea of rule of law has been interpreted by different people, either by philosophical
or political theories. Gradually the concept has developed differently through different
philosophers of modern time such as- Aristotle, Cicero, Karl Marx, Joseph Raz, and A.V.
Dicey. Among them, Victorian era Professor A. V. Dicey, is credited for popularizing the rule
of law, so we are considering his proposition as the base.

According to Dicey, the rule of law is one of the fundamental principles of the English
constitution he gave three meanings of the concept of rule of law:

a) Absence of Arbitrary Power or Supremacy of Law

b) Equality Before Law
c) Judge made constitution

(a)Absence of Arbitrary Power or Supremacy of Law:

In the first principle; Dicey states that rule of law means the absolute supremacy or
predominance of regular law as opposed to the influence of arbitrary power or wide
discretionary power. According to him, a person should be ruled by the law alone; a man with

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us may be punished for breach of law, but can be punished for nothing else. Where no one has
the right to abuse or misuse of power similarly no one can be punished or made to suffer except
for a breach of law proved by an ordinary court.

For Example: Article 10 & 11 of our constitution describes human rights and freedom from
exploitation, no one can misuse power.

(b) Equality before Law:

In the second principle, rule of law means the equality of law or equal subjection of all classes
to the ordinary law of the land administered by the ordinary law courts. According to him,
where no one is above the law and everyone is equal before the law regardless of social,
economic, or political status. In this sense rule of law conveys that no man is above the law;
that officials like private citizens are under a duty to obey the same law, and there can be no
Special court or tribunal for the state officials.

For Example: Article 27 of our constitution guarantees that all citizens are equal before law
and are entitled to equal protection of law.

(c) Judge made constitution:

To explain the third principle, Dicey states that the right such as right to personal liberty,
freedom from arrest, freedom to hold public meeting are guaranteed by a written constitution;
Those rights are the result of judicial decisions in concrete cases which have actually arisen
between the parties.

For Example: According to article 32, no person shall be deprived of life or personal liberty.
Safeguards as to arrest and detention have been ensured in the constitution by the article 33.

Ancient Rule of Law in Modern World:

Linking Dicean theory with contemporary world does not go together. There is no uncertainty
that, Dicey’s view makes a worth decision about what the gratified of law should be but with
the route of time it is no longer pertinent in today’s standpoint for number of explanations.

Though it has become a fashion to criticize Dicey's theory of rule of law- the three important
things absence of arbitrary power, guarantee of citizens right and the equality before law over
which he made emphasis are universally recognized as the core of traditional theory of rule of
law.

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Principles of Rule of Law:
Lon L. Fuller, in his book “The morality of Law”, which was published in 19 64, mentioned
the eight principles of law which popularly known “Eight way to make a law”:

(1) Law must exist those laws must be obeyed by all including govt

(2) Law must be published

(3) Law must be prospective in effect

(4) Law should be written with reasonable clarity

(5) Law must avoid the contradiction

(6) Law must not commence impossible

(7) Law must stay contain throughout the time

(8) Official action must be consistent with the Law.

Rule of Law in the Constitution of Bangladesh:

The rule of law is a basic feature of the constitution of Bangladesh. The Constitution of
Bangladesh clearly and categorically contains the preamble to ensure Rule of Law in the
country. In this respect it has 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."

In accordance with this pledge the following positive provisions for 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.

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 • 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 has been
ensured under Articles 7(1), 11, 55, 56, 57 and 65(2) of the constitution.

Aspects of Rule of Law in Bangladesh:

Our constitution has ensured 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:

1. 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 from the
injustice suppression of the powerful.

2. It is said in Article 96 that a Judge cannot be removed only by the President without
recommendation of the Supreme Judicial Council. But, by means of interpretation of
Article 97, the President has the power to remove the Chief Justice without any
recommendation of the Supreme Judicial Council.

3. Article 93 of the Constitution allows the President to promulgate ordinances anytime

during the recesses of parliament sessions. And in reality, a huge number of ordinances
are promulgated by passing the parliament. Ordinance-made laws are fully
undemocratic since they are made by the executive almost in an unrestricted way,
without having adequate debate in the Parliament. These laws are, theref ore, contrary
to the concept of rule of law.

4. 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:

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 • Magistrates are performing dual function of both executive and judiciary which
is not desirable in the interest of justice.
• The service of district and session judges, their transfer, promotion etc. are
controlled not by the Supreme Court but by the law ministry.

5. 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.

6. The President's obligation to abide by the PM’s advice may be reduced by amending
Article 48(3) in the following line. ‘In the exercise of all his functions, save only that
of appointing the Prime Minister pursuant to clause 3 of Article 56, the Chief Justice
pursuant to clause 1 of Article 95, and Chairmen and Members of all constitutional
bodies2, the President shall act in accordance with the advice of the Prime Minister’
(Chowdhury, 2010).

7. 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.

8. 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.

9. Delays and Backlogs in disposing the criminal and civil cases contribute public
frustration about our judiciary services. Where a civil suit takes 1 to 2 years for disposal
but it continues for 10 to 15 years. For Example: Unsettled cases in the country
increased by 75 per cent between 2008 and 2015, according to court records. The
number of pending cases in all courts stood at 3,156,878 as of 31 December 2016. This
huge backlog has been created as the new cases outnumber the ones settled by the court
system. A recent UNDP forecast said the case logjam may reach 5 million by 2020, the

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 year before Bangladesh's golden jubilee when the country is projected to become a
middle-mid-income country.

10. 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.

11. Article 141A of the Constitution says: If the President is satisfied that a grave
emergency exists in which the security or economic life of Bangladesh, or any part
thereof, is threatened by war or external aggression or internal disturbance, he may
issue a Proclamation of Emergency. Thus, the president can declare emergency on three
grounds- war, external aggression or internal disturbance. Due to the vagueness of the
term ‘internal aggression’, the executive can easily misuse this emergency power. The
declaration of emergency, therefore, depends on the subjective satisfaction of the
executive (only the President) and the court cannot question the justifiability of such a
situation.

12. 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.

13. According to Article 70, a Parliament member shall vacate his seat, if he- resigns or
votes against the party that nominated him as a candidate in the election whereby he
became Parliament member; or abstains from voting being present in the parliament; or
absents himself from any sitting of parliament ignoring the direction of his party. The
painful necessity to prevent political instability made the way of Article 70 to the
Constitution. This article is criticized to be violating the freedom of expression and
opinion ensured by Article 39(2)(a) of the Constitution and it helps the leaders not feel
the pulse of their backbenchers. As the provision goes in Article 70, no member of the
ruling party can exercise his democratic right to dissent even when the government
passes an undemocratic law.

14. Another repulsive aspect of our judicial system is the charge of corruption against our
judiciary. Moreover, the poor people cannot reach before the judges only because of

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 mobility to meet the charge required for going through the complicated process of
litigation.

Some examples of real scenario of Rule of Law in Bangladesh:

Rule of law is one of the most burning issues at the present time in Bangladesh. Here it will be
discussed some examples of the real scenario of rule of law in the country:

Corruption:

Corruption is not a new-fangled incident in Bangladesh. Political and administrative elites have
often preordained the high incidence of corruption. It was believed that with the return of
democracy during the 1990s, the government has been able to take effective action to tackle
corruption to flourish. The World Bank estimates that 2 to 3% of GDP growth is lost to
corruption each year. Per capita income could double if the government restrained corruption
(Transparency International, 2009). The government formed a number of oversight regulatory
bodies to check corruption like the Anti-Corruption Commission, but most of the bodies could
not function effectively.

Human Rights and Extra Judicial killing:

At least 204 people become victims of extrajudicial killings at the hand of law enforcement
agencies across Bangladesh, during 1st six months of 2019, human rights watchdog Ain o
Salish Kendra (ASK) has said in their latest report. According to the press release issued by
ASK on Monday afternoon, among the victims of extrajudicial killings, 59 were killed in
crossfire with RAB, 92 were killed in crossfire with police while 12 others killed at the hands
of DB, one with joint forces, one with coast guard and 28 with BGB (Dhaka Tribune,
01/07/2019).

Fair Conduct of Election:

It refers to transparent and credible elections where all candidates and political parties can
participate without any pressure. Citizens can cast their vote easily without any hesitation.

The Transparency International Bangladesh (TIB) has labelled the 11th parliamentary election
as ‘controversial’, saying the participating political parties did not have equal opportunities and
the vote was dogged by irregularities (Bdnews24, 15 January, 2019).

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Observation:

The discussion above gives a quite clear picture of the judiciary system of Bangladesh and the
real scenario of the rule of law. Though there are some positive provisions for ensuring rule of
law in Bangladesh Constitution, they are being overshadowed by the ill practices of the law
makers as well as the law enforcement agencies. Although the constitution provides for 18
fundamentals rights for citizens, these remain meaningless vision to the masses because due to
poverty and absence of proper legal aid the poor people cannot realize them. It is also clear that
the application of the principle of the rule of law is merely a farce in our country.

How to ensure rule of law:

So, what is needed for the very cause of the principle of democratic rule of law is-

• 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;
• Accountability and Transparency should be ensured at all levels of the country by
applying institutional mechanism
• 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.
• Legal procedures should be simplified to make them accessible for illiterate women.
• To separate the judiciary immediately from the executive.
• Corruption at all levels should be minimized. ACC must be effective and free.
• Training and sensitization are needed at all levels of the judicial system.
• To establish rule of law, the Human Rights Commission has to come forward
• Civil society can create public awareness through seminars, writing etc.
• Constitutional reform is needed.
• To establish rule of law, Political parties should be democratic.
• The state should ensure to provide free legal aid for poor women.
• To establish rule of law, the Election Commission will have to work freely, strictly &
fairly.

Above discussions clearly shows that the present condition of rule of law in Bangladesh is not
satisfactory. However, the proposed measures for overcoming the shortcomings of rule of law

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also are not final but these are fundamental. Independent and particular policy for rule of law
is a must 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.

Conclusion:

As evidenced by the failure to arrive at a precise definition, the rule of law is a complicated
theory. As much as it embodies politics and the ideals of democracy, an in-depth understanding
of the theory must include the law’s interaction with language, history, social structure, culture,
political view. Importantly, the rule of law is more than just a set of rules and their judicial
application. As a much-advocated theory in development studies, the rule of law is also a matter
of policymaking, institutional development, and international politics. However, rule of law
cannot be established in the society unless the people in general and the people actively
involved in politics have faith in the utility and effectiveness of rule law and have commitment
for it.

Reference:
• The Constitution of the People’s Republic of Bangladesh
• MOLLAH, A. H. (n.d.). Rule of Law in Bangladesh: An Overview
• Criminology and penology with victimology written by Prof. Dr. N. V., 6th ed. 2015
• Takwani, C. K. Rule of Law. Lectures on Administrative Law, Eastern Book
Company
• Md. Altaf Hossain, Constitutional Law with Commentary and Case Law, 1st ed. p. 13.
• Shahdeen Malik, “Arrest and Remand: Judicial Interpretation and Police Practice” Special Issue
Bangladesh Journal of Law, (Dhaka: Bangladesh Institution of Law and International Affairs,
November 2007), pp. 262-3.

Websites:
• www.wikipedia.com
• www.thedailystar.com
• www.dhakatribune.com

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