10th December, 2013.

Professor Dr. Ahmed Fakhrul Alam, Lecturer, Legal Environment in Business, Daffodil International University, Uttara, Dhaka.

Subject: Submission of The Rule of Law-with special reference to Bangladesh.

Dear Sir, I am submitting herewith my assignment entitled The Rule of Law-with special reference to Bangladesh. The main purpose of this assignment is to set of concepts on law reference to Bangladesh. This assignment is helpful to us for such knowledge about the rule of law and its aspects in Bangladesh. I hope that this assignment will merit your approval.

Respectfully yours, On behalf of the group members, Ashik Ali Chowdhury

ACKNOWLEDGEMENT

Apart from the efforts of us, the success of any assignment depends largely on the encouragement and guidelines of many others. We take this opportunity to express our gratitude to the people who have been instrumental in the successful completion of this assignment.

We would like to show our greatest appreciation to Lecturer, Professor Dr. Ahmed Fakhrul Alam. We cant say thank you enough for his tremendous support and help. We feel motiv ated and encouraged every time we attend his meeting. Without his encouragement and guidance this Assignment would not have materialized.

The guidance and support received from all the members who contributed and who are contributing to this assignment, was vital for the success of the assignment. We are grateful for their constant support and help.

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TABLE OF CONTENTS

Acknowledgement ........................................................................................ Table of Contents ......................................................................................... Executive Summary ...................................................................................... Introduction .................................................................................................. Rule of Law ................................................................................................... Principles ...................................................................................................... Rule of Law under the Constitution of Bangladesh ...................................... Rule of Law as Found In Practice In Bangladesh ........................................... Conclusion .................................................................................................... Sources of Law ..............................................................................................

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EXECUTIVE SUMMARY

The Latin expression for Rule of Law is La Legalite. The primary meaning of rule of law is that the ruler and the ruled must be bound by the same law. According to diceys concept of the rule of law contemplated the absence of wide power in the hand of government officials, according to him wherever there desecration there is room for arbitrariness, the rule of law is a viable and dynamic concept and like many other such concepts, is not capable of any exact definition. Its simplest meaning is that everything must be done according to law, but in that sense it gives little comfort unless it also means that the law must not give the government too much power. The rule of law as opposed to the rule of arbitrary power. In fact, the term of rule of law is well placed in the Constitution of Bangladesh. Its Preamble states the rule of law as one of the objectives to be attained. The Preamble, inter alia says, it shall be a 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.

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INTRODUCTION

The rule of law means literally what it says: the rule of the law. Taken in its broadest sense this means that people should obey the law and be ruled by it.

But in political and legal theory it has come to be read in a narrower sense, that the government shall be ruled by the law and subject to it. The ideal of the rule of law in this sense is often expressed by the phrase government by law and not by men.

In former times (even in a few countries now) individuals and classes obsessed special constitutional rights and were judged by special law. The modern scrutiny is to apply the same law to all members to the society or in the state and to give all persons equal civil liberties and privileges for the fortification of their human rights because democracy can stay only in a society of equals.

F.A. Hayek has provided one of the clearest and most powerful formulations of the rule of law: Stripped of all technicalities this means that government in all its actions is bound by rules fixed and announced before hand rules which make it possible to foresee with fair certainly how the authority will use its coercive powers in given circumstances, and to plan ones individual affairs on the basis of this knowledge.

RULE OF LAW
Constitutionalism and rule of law In the modern world State is an indispensable institution for ordered society and the necessity of the government cannot be gainsaid. At the beginning of the last century, people felt the presence of government only in post office and police. But with the passage of time, tremendous advancement of technology and the emerging concept of welfare State, there has been vast expansion of the role of the government. Today the functions of the government are, to say the least, all pervasive. From cradle to grave a man comes face to face with one or more statutes covering every aspect of life and all these statutes confer enormous discretionary power on the public functionaries. Every power and every discretion granted in favour of the governmental authorities makes 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 constitutionalism. The Nazi regime in Germany provides the most obvious example. 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. A.V. Dicey on rule of law Any discussion on rule of law must turn to A.V. Dicey who in his famous work, An Introduction to the Study of the Law of the Constitution, enunciated the concept as including three things (i) absence of arbitrary power, that is, no man is above law and the persons in authority do not enjoy wide, arbitrary or discretionary powers, (ii) equality before law, that is, every man irrespective of his status and position is subject to the ordinary laws of the land and the jurisdiction of ordinary courts, and (iii) individual liberties.

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Diceys view of rule of law has been criticized from various angles, particularly because of his unshakable faith on common law as protecting the rights of the individuals. The modern view has, however, expanded the concept of rule of law putting much greater emphasis on the quality of law. Modern view of rule of law The rule of law underlies the entire constitution and, in one sense, all constitutional law is concerned with the rule of law. But the concept is capable of different interpretations by different people and has, therefore, various shades of meaning. It may be interpreted either as a political philosophy or political theory laying down the fundamental requirement of law or as a procedural device to make persons in authority amenable to law. According to Professor E.C.S. Wade, rule of law connotes three ideas (i) it expresses a preference for law and order within a community rather than anarchy, warfare and constant strife, (2) 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, and (3) it refers to a body of political opinion about what the declared rules should provide in matters both of substance and of procedure.

PRINCIPLES
Some Principles: Many of the principles which can be derived from the basic idea of the rule of Law depend for their validity or importance on the particular circumstances of different societies. There is little point in trying to enumerate them all, but some of the more important ones might be mentioned:

1. All laws should be prospective, open, and clear. 2. Laws should be relatively stable.
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3. The marketing of particular laws or legal orders should be guided by open, stable, clear, and general rules. 4. The independence of the judiciary must be guaranteed. 5. The principles of natural justice must be observed. 6. The courts should have review powers over the implementation of the other principles. 7. The courts should be easily accessible. 8. The discretion of the crime-preventing agencies should not be allowed to pervert the law.

The eight principles listed above fall into two groups. Principles 1 to 3 require that the law should conform to standard designed to enable it effectively to guide action. Principles 4 to 8 are designed to ensure that the machinery of enforcing the law should not deprive it of its ability to guide through distorted enforcement and that it shall be capable of supervising conformity to the rule of law and provide effective remedies in cases of deviation from it. All the principles directly concern the system and method of government in matters directly relevant to the rule of law.

RULE OF LAW UNDER THE CONSTITUTION OF BANGLADESH

The Constitution of Bangladesh in the preamble proclaims rule of law as the prime objective of the Constitution. Referring to the preamble, Syed Ishtiaq Ahmed submitted in the Eighth Amendment case, 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). In fact, the Appellate Division identified the rule of law as a basic structure of the Constitution.1 At the beginning of the substantive provisions, notice is given in article 7 of the Constitution that rule of law is central to the governance of the Republic. If we analyze the provisions of the Constitution, we find that

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the entire constitutional regime is aimed at achieving the rule of law as it is understood in the present d ay.

RULE OF LAW AS FOUND IN PRACTICE IN BANGLADESH

Representative government: We have seen that the Constitution provides for a representative government all levels of the administration. The essence 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. The allegation of massive rigging in the Magura by-election led to the amendment of the Constitution providing for general election to Parliament under Non-party Caretaker Government. Yet the allegation of rigging continues. On the other hand, this has prompted the party in power to resort to calculation and manipulation in the appointment of the Chief Justice and other judges of the Supreme Court. 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. Money and muscle play great part in the election process and we have seen that election to Parliament from a constituency in most cases involve huge amount of money. In such an environment, it is becoming difficult for honest people to sit in Parliament. Rule of law cannot be truly established unless the actors in the political scene have faith and conviction in the utility and effectiveness of the rule of law and constitutionalism. For the time being we find that the people involved in politics in this country are giving lip-service to the rule of law without any genuine and sustained effort to establish it. Government to run in accordance with law: Though the Constitution and the laws of the land require the public functionaries to comply with the provisions of law, we find the propensity of
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the public functionaries to evade the law and this becomes evident if we examine the writ petitions that are filed in huge numbers complaining about infraction of law. There is a limit up to which the High Court Division can deal with and the limit has been far exceeded and as a result in many cases a quick remedy is a far cry. In this regard the ordinary people suffer more than the influential ones. Even if an order is obtained from the High Court Division or from the Appellate Division, the public functionaries have demonstrated their reluctance to comply with the verdict of the highest tribunal of the land, though article 112 of the Constitution specifically require the public functionaries to act in aid of the Supreme Court. Number of contempt petitions in the Supreme Court have increased manifold because of the reluctance of the public functionaries in complying with the order of the Supreme Court. Compliance with the principle of hearing: We have also noticed that occasionally governmental authorities pass order affecting individual rights without giving a hearing to the affected persons. Many of the writ petitions have been filed complaining the breach of the principles of natural justice. Even we have found cases where the High Court Division passed summary order affecting the rights of persons who had no notice of the institution of such cases, not to speak of having opportunity of being heard. Access to justice: Independent judiciary is of no use in establishing rule of law unless the people have easy access to justice. The question relating to access to justice has two dimensions one that the courts of the country are easily approachable by the ordinary people of the country and the other is that the people should be able to have their disputes settled quickly. None of the conditions is fulfilled. Overwhelming number of the population are too poor to seek justice in the courts of the country. To them rights and liberty carry no meaning and they suffer silently when their life and liberty are in danger. It is indeed a fact that in many cases, people with substantial means play with the liberty and property of the poor. A legal aid law was passed by Parliament, but it remains in the statute book without any meaningful progress in executing the scheme envisaged by the Act.

So far in respect of the requirement of quick disposal of disputes, it is a sorry state of affairs. Inordinate delay in disposal of cases is now a reality. 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 which are ultimately dismissed, but in the process the number of such meritless cases create congestion in court delaying disposal of cases which have got merit. The writ petitions filed before the High Court Division offer an example. Every year thousands of writ petitions are filed, many of which do not have any merit. Even summary dismissal of those meritless writ petitions consume 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. Against the decisions of the High Court Division, leave petitions are filed before the Appellate Division almost as a matter of course and though most of the leave petitions are summarily dismissed considerable time is spent in hearing and disposal of the meritless leave petitions. It does not end here, review applications having become a regular feature. Review petition is also filed against a summary dismissal of leave petition on ground of bar of limitation. Previously, revisional applications were entertainable under s.115 of the Code of Civil Procedure on ground of jurisdictional error. With the amendment of this section revisional application can be filed on the ground of error of law, whether apparent on the face of record or not. We have misused this remedy by filing revisional application even against an order of a subordinate court allowing or refusing adjournment of a case. Recently, the Civil Procedure Code has been amended and provisions made to shorten the litigation. But it does not appear that such amendment will have any considerable effect in shortening the process of litigation unless the mind-set of the lawyers and the judges is changed. The courts must have discretionary power in disposal of cases and no provision of law can adequately control or prevent abuse of the discretion. The control must

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come from within and it is the judges who must be efficient and conscientious in the exercise of discretion conferred on them to administer justice properly. Freedom of assembly, of thought and expression and of religion: In spite of the authoritative pronouncement of the High Court Division, we have seen newspaper reports of police action against assembly and procession by political opponents even when the assembly and procession were peaceful and non-violent. This is simply a denial of the rights guaranteed under articles 37 and 39. We have also seen newspaper reports of infringement of the rights of the religious minorities and inaction of the police in preventing or taking action against the culprits resulting in infringement of various rights guaranteed by the Constitution including freedom of religion. Protection of law and security of life and personal liberty: We have seen newspaper reports of some people taking law into their own hands killing and torturing people in North Bengal branding the victims as outlaws. Outlaws or not, these victims could not be punished by individual citizens. Order of the Prime Minister in this matter was of no avail and the police have failed to take action against their leader. This, to say the least, seriously undermined the rule of law in this country. Existence of responsible bar: There is a well organized bar governed by the provisions of the Bangladesh Legal Practitioners and Bar Council Order, 1972. Under the provisions of that Order, Canons of Professional Conduct & Etiquette have been framed. A member of the Bar may be reprimanded, suspended or removed from the roll of advocates if he is found guilty of professional or other misconduct by a Tribunal constituted under the provisions of this Order. Though the proper legal frame work for maintaining a responsible bar is in place, in practice, we find a different situation prevailing today. Because of the Bar Councils policy of being liberal in enrolment of advocates, many persons who are otherwise not legally competent to carry on the profession have been enrolled resulting in serious deterioration in quality. Lacking in competence, many of the inefficient advocates resort to sharp practices and unwary litigants suffer in the hands of these inefficient advocates. We have come across misconduct of lawyers,

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but very few of them could be properly dealt with by the Bar Council because of various reasons. One of the reasons is that ordinary people feel hesitant to complain against a lawyer and added to this is the difficulty in finding witnesses to prove misconduct of a lawyer. The law has been considerably amended recently and we shall have to see whether the amendment helps raise the standard of the advocates.

CONCLUSION
The Constitution has made provision for establishment of rule of law in the country and 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 the people actively involved in politics have faith in the utility and effectiveness of rule law and have commitment for it. It is sad that respect for and commitment towards rule of law is wanting. Expediency has taken the centre stage. Added to this, pervasive corruption and pursuit of politicisation of the services and institutions have seriously undermined rule of law in this country. We have enumerated the instances where the rule of law has been undermined. But this enumeration is in no way exhaustive. If the rule of law is continued to be undermined, the ordered society, which a State stands for, will one day disintegrate. It is high time that we realize that this will not ultimately help any body, not even those who are reaping benefit by undermining the rule of law.

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SOURCES OF LAW
1. The constitution and the parliament of Bangladesh. 2. Presidential Orders, Promulgation, etc. 3. Judicial decision (Decrees)-e.g Amiraju vs Seshamma, Madras. 4. Religion-e.g Muslim law inher. 5. Introduction to Legal Language.

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