Rule of Law and Constitution of Bangladesh : An Overview

Introductory Remark

In constitutional law, the term ‘Rule of Law’ is highly utilized. Despite its frequent application by politicians, judges, and academics, it remains an elusive notion subject to divergent interpretations. It forms a basic principle of the British constitution, is accepted in the United States, and is entrenched in the Constitution of Bangladesh. Sustainable development and good governance depend on its proper application. The preamble to the Constitution of Bangladesh states that a primary purpose of the Republic is to establish an exploitation-free society where the rule of law and fundamental human rights are guaranteed. Several constitutional provisions directly enforce this concept.

What is Rule of Law

The rule of law primarily dictates the authority of law within society as a constraint upon behavior, specifically regarding government officials. The concept traces back to ancient philosophers, including Aristotle, who stated that “law should govern.” It implies that every citizen is subject to the law, contrasting with the notion that a ruler possesses divine right above it. British jurist A.V. Dicey popularized the term in the 19th century.^[1]

In modern jurisprudence, the rule of law means the supremacy of ‘the law’, not ‘rule by law’. This requires complete accountability of those exercising power. Elements such as liberal democracy, fundamental rights guarantees, an independent judiciary, and human equality define the modern framework. These were formalized in the Declaration of Delhi (1959), emphasizing:

1. The right to a responsible government and the legislature’s obligation to conform to minimum legal standards.
2. Judicial control over executive actions and delegated legislation.
3. A fair and public trial.
4. Independence of the judiciary and the legal profession.

Rule of Law under the Constitution

The Constitution of Bangladesh proclaims the rule of law as a prime objective in its preamble. In Anwar Hossain Chowdhury v Bangladesh, Syed Ishtiaq Ahmed submitted that these principles form substantive provisions (Arts 7 and 8).^[2] The Appellate Division subsequently identified the rule of law as a basic structure of the Constitution.^[3] The entire constitutional regime aims to achieve this standard.

Representative Government

Article 7 speaks of representative government. Article 9 extends this to local government, and Article 11 provides for elected representatives at all administrative levels. Article 59 requires local government bodies to comprise elected persons. In Kudrat-E-Elahi Panir v Bangladesh,^[4] the Appellate Division held that abolishing a tier of local government cannot serve as a subterfuge to vest powers in non-representative bodies. The Constitution entrusts the Election Commission with holding free and fair elections to realize these mandates.^[5]

Government in Accordance with Law

Article 7 mandates that all government actions comply with the Constitution and the laws of the land. Every executive action must possess strict legality.

Equality Before the Law

Article 27 proclaims all citizens equal before the law, prohibiting discriminatory actions by public functionaries. It guarantees equal protection of laws.^[6] A law making distinctions based on reasonable classification for a legitimate governmental purpose is not discriminatory.^[7] However, conferring discretionary power without guidelines is discriminatory, as established in Dr Nurul Islam v Bangladesh.^[8]

Treatment in Accordance with Law

Article 31 prescribes the protection of law as a fundamental right. In Abdul Latif Mirza v Bangladesh,^[9] the Appellate Division approved the ‘due process’ concept. Governmental actions and legislation must not be arbitrary, and no person shall be adversely dealt with without a hearing. Article 32 dictates that no person shall be deprived of life or personal liberty save in accordance with law. The eviction of rootless people without rehabilitation schemes violates Articles 31 and 32.^[10] The Supreme Court has also integrated the British doctrine of legitimate expectation.^[11]

Rule Against Bias

Due process requires impartiality. The Supreme Court established that no individual with an interest or bias regarding a matter is competent to participate in its decision-making process.^[12]

Protection Against Abuse of Discretionary Powers

Statutes frequently confer wide discretion upon public functionaries. In Dr Nurul Islam v Bangladesh,^[13] the Appellate Division rejected the government’s claim to unfettered discretion in retiring a public servant, stating that arbitrary or capricious exercise of discretion is constitutionally invalid. Discretion must be exercised reasonably and in good faith.^[14]

Protection of Basic Human Rights

Part III of the Constitution operationalizes many rights found in the Universal Declaration of Human Rights (UDHR). Article 33 safeguards against arbitrary arrest and detention; Article 34 prohibits forced labor; and Article 35 protects against retroactive penal laws, double jeopardy, and torture. The Constitution guarantees freedom of assembly (Art 37), association (Art 38), speech (Art 39), occupation (Art 40), and religion (Art 41), alongside the right to property (Art 42) and privacy of the home (Art 43).

Protection in Respect of Detention Without Trial

Preventive detention requires strict safeguards. Article 33 requires an Advisory Board to review executive discretion for detentions exceeding six months. Article 102(2)(b)(i) grants the right to move the High Court Division for a writ of habeas corpus. Leading cases defining these parameters include Abdul Latif Mirza v Bangladesh,^[15] Sajeda Parvin v Bangladesh,^[16] and Aruna Sen v Bangladesh.^[17]

Power of Judicial Review

Constitutional guarantees demand enforcement. The Constitution vests the Supreme Court with the power of judicial review under Article 102, with appellate jurisdiction under Article 103. The Appellate Division recognized this as a basic structure in Anwar Hossain Chowdhury v Bangladesh.^[18] The concept of an ‘aggrieved person’ was expanded to permit public interest litigation (PIL) in Dr Mohiuddin Farooque v Bangladesh,^[19] enforcing the rule of law in environmental and public policy matters.^{[20], [21], [22], [23]}

Independence of Judiciary

An independent judiciary is the operational mechanism of the rule of law. Articles 94(4), 96, and 147 ensure the impartiality of Supreme Court judges. In Secretary, Ministry of Finance v Md Masdar Hossain,^[24] the judiciary was separated from the executive to effectuate Article 22. Article 116A mandates the independence of subordinate judicial officers and magistrates.

Conclusion

The Constitution establishes the structural framework for the rule of law in Bangladesh. Operationalizing this framework requires strict adherence to constitutional mandates by all state organs. Systemic failure to execute these provisions negates the fundamental rights of the citizenry. The legal and political infrastructure must prioritize factual compliance and accountability to realize the constitutional objective of a just and equitable society.