The Constitution of Bangladesh and rule of law : an overview

Introductory Remark:

In the arena of the constitutional law, the term ‘Rule of Law’ is very familiar. Despite wide use by politicians, judges and academics, the rule of law has been described as an exceedingly elusive notion, giving rise to a rampant divergence of understanding, everyone is for it but have contrasting convictions about what it is. One of the basic principles of the British constitution is the rule of law. This doctrine is accepted in the U.S.A. and also in the constitution of Bangladesh. Now-a-days, rule of law is one of the most discussed subjects of developing countries. Developed countries and donor agencies always instruct the developing countries for sustainable development and good governance. Actually, sustainable development and good governance mostly depends on the proper application rule of law. The preamble of our constitution stated that, one of the main purposes of the republic is to establish an exploitation free society in which rule of law, fundamental rights of the people can be ensured. Moreover, there are a number of provisions in our constitution which are directly or indirectly related to the concept of rule of law.

  • What is Rule of Law:

The rule of law (also known as nomocracy) primarily refers to the influence and authority of law within society, especially as a constraint upon behavior, including of government officials. The phrase can be traced back to the 16th century, and it was popularized in the 19th century by British jurist A. V. Dicey[1]. The concept was familiar to ancient philosophers such as Aristotle, who wrote “Law should govern”. 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. The Diceyan concept of the rule of law involves the following three elements:

  1. The rights of individuals are determined by legal rules and not by arbitrary behavior of the authorities and this is what is described as the absence of arbitrariness;
  2. No punishment is legal unless a court decides that there is a breach of law by the condemned or offender;
  3. Everyone, regardless of one’s position in society, is subject to the same ordinary (as opposed to special) laws of the country concerned.

In the modern sense, the expression rule of law means supremacy of ‘the law’ and not ‘rule by law’. This legal supremacy can be attained through ensuring a complete responsibility of those in charge of powers on behalf of those governed. By the term ‘rule of law’, we often some principles such as liberal democracy, guarantee of fundamental rights, existence of an independent judiciary, insurance of human equality and dignity etc. These elements finally got recognized in the “Declaration of Delhi, 1959” adopted by leading jurist from around the globe, where following points were emphasized:

  1. The people’s right to responsible government and the legislatures obligation to conform to minimum standards of law;
  2. Judicial control over executive actions and delegated legislations;
  3. A fair and public trial, meaning criminal justice for the accused and the victims;
  4. Independence of the judiciary and the legal profession.
  • Rule of law under the Constitution:

The constitution of Bangladesh in the preamble proclaims ‘rule of law’ as the prime objective of the constitution. Syed Ishhtiaq Ahmed submitted in the Anwar Hussain Chowdhury vs Bangladesh (Eighth Amendment case) 41 DLR, “These are so real that these have found a new habitat in the body of the constitution itself as substantive provisions (Art. 7 and 8)”.[2] In fact, the Appellate Division identified the rule of law as a basic structure of the constitution.[3] If we analyze the provisions of the Constitutions, we find that the entire constitutional regime is aimed at achieving the rule of law as it is understood in the present day.

  • Representative Government:

Article 7 of the constitution speaks of representative government. This representative character is not confined to the central government. Article 9 speaks about extension of representative character to the sphere of local government and Article 11 provides for elected representatives at all levels of administration. Moreover, Article 59 requires that the local government in every administrative union of the republic shall be entrusted to the bodies composed of persons elected in accordance with law. The Appellate Division held in the case of Kudrut-e-Elahi Panir v. Bangladesh[4] held that, the abolition of a tier of local government must not be a subterfuge to vest the powers and functions of the abolished tier with non-representative person or body. The representative government is of no value unless free and fair election to reflect the wishes of the people can be ensured. Therefore, the constitution has entrusted the function of holding election to the Election Commission.[5]

  • Government to run in accordance with law:

Article 7 of the constitution also provides that the all government actions to be taken in accordance with the provisions of the constitution and the laws of the land. Thus, every government actions must have a legality, which will be determined by the constitution and other laws of the country.

  • Equality before the law:

Article 27 proclaims that all citizens are equal before law irrespective of their status and position. All public functionaries are liable to be questioned in the court of law when they infringe the rights and liberty of the individual citizens. This Article also prohibits discriminatory laws and actions by the government and public functionaries. It also requires that no person or class of persons shall be denied the same protection of laws which is enjoyed by other person or class of person in like circumstances.[6] But a law which makes distinction between persons or things for the application of law on the basis of a reasonable classification to achieve a legitimate governmental purpose will not be discriminatory.[7] The conferment of discretionary power by any statute without providing any guideline for the exercise of such power was held to be discriminatory in the case of Dr. Nurul Islam V. Bangladesh[8].

  • Treatment in accordance with law:

Rule of law requires that individuals should be dealt with in accordance with law. Article 31 of the constitution prescribes protection of law as one of the fundamental rights. Dealing with the provisions of article 31 in the case of Abdul Latif Mirza v. Bangladesh[9], the Appellate Division approved the concept of ‘due process’ given by Justice Hamdoor Rahman. The ‘due process’ concept in the American jurisdiction requires that the governmental actions as well as the laws made by the legislature must not be arbitrary and must be reasonable and no man should be adversely dealt with without giving him opportunity of being heard. Furthermore, article narrated that, “No person shall be deprived of life or personal liberty save in accordance with law.” That means, the reasonableness of law under article 32 will be strictly scrutinized when it relates to or deals with life or personal liberty. The rootless people cannot be evicted from slums without any scheme of their rehabilitation as it is found violative of articles 31 and 31[10]. The principle of ‘due process is further expanded by the rule of ‘fairness’ and ‘legitimate expectation’ in British jurisdiction. The Supreme Court of Bangladesh has also accepted the notion of legitimate expectation[11].

  • Rule against bias as an ingredient of ‘due process’:

The concept of ‘due process’ requires that any authority, whether executive or judicial, when conferred with power to decide certain things or matters, must be impartial and not biased towards any party. This concept is recognized by the Supreme Court of Bangladesh that, no one having any interest or bias in respect of any matter is competent to take part in the decision-making process relating to that matter. [12]

  • Protection in respect of abuse of discretionary powers:

Parliament often passes law conferring discretion on the public functionaries in the widest possible terms and the public functionaries often claim unfettered discretion which is an anti-thesis of the rule of law. As conferment of discretionary powers cannot be avoided, there must be protection against abuse of such discretionary powers. When the government claimed unfettered and absolute discretion in compulsorily retiring a public servant in Dr. Nurul Islam v. Bangladesh,[13] the Appellate Division rejected the claim stating that under our constitutional dispensation, an exercise of discretion cannot be sustained if it is found to be arbitrary or capricious o without any application of mind. A public functionary must use his discretion in good faith and reasonably.[14]

  • Protection of basic human rights:

In the real sense, framers of our constitution were impressed with the formulation of the basic rights in the Universal Declaration of Human Rights. A comparison of these two (i.e. our constitution & UDHR) shows that most of the rights enumerated in the UDHR (Universal Declaration of Human Rights) have found place in Part 3(Fundamental Rights) of our Constitution and some have been recognized as Fundamental Principle of State Policy in Part 2 of the Constitution. In the above, we have already mentioned Equality clause and due process in our constitution. Article33 provides for safeguards as to the arrest and detention, article 34 prohibits forced labour and article 35 provides protection in respect of trial and punishment. It also acts as safeguard regarding Freedom of Assembly (Art. 37), Association (Art. 38), and Freedom of Thought, Consience Speech (Art. 39). Articles 40, 41, and 42 are related to Freedom of Profession or Occupation, Freedom of Religion, And Right to Property respectively. Article 43 guarantees protection of Home and Correspondence.

  • Protection in respect of detention without trial:

Detention without any trial is against the rule of law. But, sometimes in case of emergency, it is necessary to detain individuals to prevent them from doing acts prejudicial to the state and the law and order. Therefore, law provides for detention without trial if the executive forms an opinion that such detention is necessary. On the other hand, the people must have safeguards against the abuse of such discretion when it involves their life and liberty. For this reason, while sanctioning a law providing for preventive detention, article 33 of the constitution provides for Advisory Board to examine the exercise of the discretion by the executive and prescribes that no person shall authorize the detention of a person for a period exceeding 6 months unless the Advisory Board after considering the representation of the detenu and giving him opportunity of hearing reports that there is sufficient cause for such detention. Moreover, Article 102 (2) (b) (1) gives a right to the detenu to move the High Court Division with a writ of Habeas Corpus. The leading cases in this regard are: Abdul Latif Mirza v. Bangladesh, [15] Sajeda Parvin v. Bangladesh,[16] and Aruna Sen v. Bangladesh[17], which deal with the preventive detention.

  • Protection in respect of criminal process:

Article 33 of the Constitution provides safeguards as to arrest and detention. It mandates that no person who is arrested shall be detained in the custody without being informed, as soon as may be, of the grounds for such arrest, nor shall be denied the right to consult and be defended by a legal practitioner of his choice and every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of 24 hours of such arrest, excluding the time necessary for the journey from the place of arrest to the court of magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate. Protection in respect of trial and punishment is provided by the article 35 of the constitution. This article provides protection against retroactive penal laws, guarantee against double jeopardy, grants privileges against self-incrimination, prohibits torture and cruel, inhuman or degrading punishment and ensures speedy and fair trial.

  • Power of judicial review:

One of the basic features of rule of law is the provision of ‘Judicial Review’. Constitutional guarantees and declaration of rule of law are meaningless unless there is provision for making good those guarantees and ensuring rule of law. There should be a body to supervise that the constitutional mandates are complied with. Therefore, the Constitution makes provision for judicial review of laws and governmental action and invested the Supreme Court of Bangladesh with the power of judicial power under article 102 and further providing for appeal before the Appellate Division under article 103. The Appellate Division found in the famous case of Anwar Hossain Chowdhury v. Bangladesh[18],this power of judicial review to be a basic structure of the Constitution. This can be done on the application of “Aggrieved Person.” The term ‘aggrieved person’ was primarily narrower in meaning. But later on, by the landmark judgment in the case of Dr. Mohiuddin Farooque v. Bangladesh,[19] the meaning of this term has been expanded to a large extent and permitted public interest litigation. This decision involving apprehended environmental ill-effect of a flood control plan has a far-reaching effect in establishing rule of law in our country. There are a several cases, where the public interest litigation is found to be applied. Such as: Ain O Salish Kendra v.Bangladesh[20], B.S.E.H.R. v. Bangladesh[21], Prof. Nurul Islam v. Bangladesh,[22] and Ekushey Television Ltd v. Chowdhury Mahmood Hasan[23] etc.  

  • Independence of Judiciary:

The independence of judiciary is inextricably linked up with the rule of law. An independent and impartial judiciary is a precondition of rule of law. Constitutional provisions will be mere moral precepts yielding no result unless there is a machinery for enforcement of those provisions and faithful enforcement of those provisions is not possible in the absence of an independent and impartial judiciary. Article 94(4), 96 and 147 of the constitution ensure the independence and impartiality of the judges of the Supreme Court. Article 96(5) provides that a judge of the Supreme Court can be removed from service only if he has ceased to be capable of properly performing the functions of his office by reason of physical or mental incapacity or he is guilty of gross misconduct. For the establishment of rule of law the subordinate judiciary must also be independent and impartial. In the case of Secretary, Ministry of finance, Government of Bangladesh Vs Mr. Md. Masdar Hossain & Others[24], the organ of judiciary has been separated from the executive organ to give effect to article 22 of the Constitution. This is a landmark decision to the way of rule of law. Article 116A further mandates that subject to the provisions of the constitution, the judicial officers and magistrates shall be independent in the exercise of their judicial function.

  • Access to Justice:

One of the important requirements of the rule of law is that people of all ranks and status must have access to courts for remedy against illegal and arbitrary act impinging on their rights and liberty. The courts must be accessible to all so that rights, in case of infringement, can 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. Although, the Constitution and the laws of the country have provided the access to justice to all people without any distinction, the cost of litigation is somewhat high and poor people cannot afford to seek remedies in court. It is absolutely necessary to undertake a meaningful legal aid scheme to ensure access to justice without which it is meaningless to talk about rule of law.

  • Conclusion:

The prime and foremost expectation of the people of a country is to establish ‘Rule of Law’. Our supreme law i.e. the Constitution has made provisions for enforcement of rule of law in the country. If the constitution is followed in letter and spirit, there is no reason why rule of law cannot be achieved. Rule of law cannot be established in the society unless the people in general and people actively involved with the function of government as well as with politics have faith in the utility and effectiveness of rule of law and have commitment for it. It is a matter of regret that there is deficiency of respect for and commitment towards rule of law. In addition, corruption and pursuit of politician have seriously undermined rule of law in our country. In the line of the mandates of preamble of our constitution, it is high time to establish a socialist society where fundamental rights of the people, equality and justice, and most importantly rule of law is ensured.

Footnotes :

[1] An introduction the study of law of the constitution

[2] Anwar Hossain Chowdhury v. Bangladesh, 1989 bldu2515_ (Special) 1, (28)

[3] Anwar Hossain Chowdhury v. Bangladesh, 1989 bldu2515_ (Special Edition), 1 para 443

[4] 44 DLR (AD) 319

[5] Art. 118(4)

[6] S. A. Sabur v. Returning Officer, 41 DLR (AD) 30

[7] Secretary, Ministry of Establishment v. Md. Jahangir Hossain, 51 DLR (AD) 148

[8] 33 DLR (AD) 201

[9] 31 DLR (AD) 1 (21)

[10] Ain O Salish Kendra v. Bangladesh, 1999 bldu2515_ 488

[11] Managing Director WASA v. Superior Builders & Engineers, 51 DLR (AD) 565

[12] Khandker Mustaq Ahmed v. Bangladesh, 34 DLR (AD) 222

[13] 33 DLR (AD) 201

[14] Presiding Officer v. Sadaruddin, 19 DLR (SC) 516

[15] 31 DLR (AD) 1

[16] 40 DLR (AD) 178

[17] 27 DLR 122

[18] 1989 bldu2515_ (Spl) 1

[19] 49 DLR (AD) 1

[20] 1999 bldu2515_ 488

[21] 53 DLR 1

[22] 52 DLR 413

[23] 54 DLR (AD) 130

[24] (2002) 7 BLC (AD) 92

Ahmad Zubair

Ahmad Zubair

Student at Department of Law, University of Dhaka
Ahmad Zubairis currently studying LLM at University of Dhaka. He serves as a Managing Editor of the Bangladesh Law Digest (BDLD).
Ahmad Zubair