Present condition of rule of law in Bangladesh Essay

Introduction One of the basic beliefs of the incline constitution is the design of faithfulness. This doctrine is includeed in the constitution of U. S. A. and too in the constitution of Bangladesh. Now a daytimes master of justness is peerless of the most discussed ca calls of developing countries. Developed countries and donor agencies always instruct the developing countries for sustainable development and good governance. comportually sustainable development and good governance mostly depends on the proper occupation of die hard of simpleity. Laws atomic number 18 made for the conflicting forces in society.One of the extremum objects of making fair playfulnesss is to maintain fairness and order in society, a peaceful environment for the progress of the people. In true and real sense there is no regulation of justness in Bangladesh today. Law in Bangladesh follows a course of selective and discretionary application. Institution and procedures required f or ensuring chemical formula of righteousness also ar no impelling in the country. Main ideal of dominate of Law The destination Rule of Law is derived from the French sound come forth La Principe de honor (the principle of court-orderedity) which referse to a presidential term based on principles of integrity and not of men.In this sense the innovation of La Principe de Legality was opposed to arbitrary world powers. The happen of constabulary is old origin. In ordinal century Bracton, a judge in the Reign of Henry trio wrote- The king himself ought to be subject to God and the law, because law makes him king. Edward Coke is tell to be the originator of this concept, when he said that the king must be under God and law and olibanum vindicated the supremacy of law over the pretensions of the administrators. Professor A. V. Dicey later developed on this concept in his classic book The Law of the Constitution. published in the course 1885. Diceys concept of the recipe of law contemplated the absence of large-minded powers in the hands of giving medication officials. According to him wherever there is profanation there is room for arbitrariness. The curb of law is a viable and impulsive concept and worry m any(prenominal) other such concepts, is not sure-footed of any exact comment. Its simplest importation is that e rattlingthing must be done agree to law, provided in that sense it gives little comfort unless it also way that the law must not give the regime too often power.The regularise of law is opposed to the rule of arbitrary power. The primary meaning of rule of law is that the ruler and the ruled must be subject to law and no one is in a higher place 3. the law and hence responsible under the law. It implies the supremacy of law and the recognition that the law to be law squeeze out not be capricious. What is the Rule of Law? The rule of law is a governing body in which the following four universal principles ar gon upheld 1. The government and its officials and agents as headspring as individuals and private entities atomic number 18 accountable under the law. 2.The laws atomic number 18 polish off, publicized, and stable and just, are applied evenly, and protect key rights, including the security of persons and property. 3. The process by which the laws are enacted, administered and enforced is accessible, fair and efficient. 4. jurist is delivered timely by competent, ethical, and independent representatives and neutrals that are of sufficient number, fork over comely resources, and reflect the makeup of the communities they serve. Establish the Rule of Law and Constitution of Bangladesh The rule of law is a basic feature of the constitution of Bangladesh.It has been pledged in the preamble to the constitution of Bangladesh that It shall be fundamental aim of the state to envision through the republican process a Socialist society, set leave office from ontogeny a society i n which the rule of law, fundamental human rights and freedom, comparison and arbiter, policy-making economic and social, will be secured for all citizens. In conformity with this pledge the following positivistic render for rule of law collapse been incorporated in the constitution obligate 27 guarantees that all citizens are equal before law and are entitled to equal bulwark 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 spiritedness, liberty, body, reputation or property of any person shall be taken except in accordance with Law. 18 fundamental rights take hold been guranteed in the perfect constitution for their effective enforcement has been ensured in Articles 44 and 102. Article 7 and 26 bring d declare limitation on the l egislature 4.that no law which is inconsistent with any homework of the constitution can be passed. In accordance with Article 7, 26 and 102(2) of the constitution the supreme court operate the power of discriminatory re linear perspective whereby it can examine the extent and well-groundedity of the actions of both decision maker and legislative and Constitutions declare any of their actions void if they do anything beyond their constitutional limits. Right to be governed by a representative body soluble to the people take a leak been ensured under Articles 7(1), 11, 55, 56, 57 and 65(2) of the constitution. 18 allthese provisions of constitution are effective for ensuring rule of law in Bangladesh. scarce facts on the ground tell a different tommyrot altogether. Rule of Law Ensure in Bangladesh Laws, rules and procedures framed under them exist to ascertain every walk of our national life, though there may be parities in number and shortcomings in scope. Our constitution contain plethora of laws maculation institutions like courts, ministries and departments have been set up to dispense justice and decisions in accordance with the present state of the rule of law revels the riddle of having a body of law and at the same time not having it.It is like a person who is brain dead. Some aspects of the rule of law in our society and polity should be mentioned as under First, accesses to law as well as equality before it are reserved for besides those who are privileged. For the rest of the population, much or less the Hobbsian law of personality prevails. They are the helpless victims of as unjust society that sets great story by privileges. Second, all government in this country since the falls of Ershad have claimed that there is independency of judiciary.The claim is lone(prenominal) partially true, while the gamey courts enjoy a certain measure of independence the lower courts are under the direct control of the law ministry. The judges look u p to the Ministry for everything infect they are obliged to. The principle of separation of judiciary from executive is being violated in two ways 1. Magistrates are do dual function of both executive and judiciary which is not lovable in the interest of justice. 2. The service of district and session judges, their transfer, promotion and so onare controlled not by the Supreme Court hardly by the law ministry. 5. Third, The government of Bangladesh continued to use the Special Power bit of 1974 and section 54 of the criminal code which allow for arbitrary check mark and preventive detention, to harass policy-making opponents and other citizens by detaining them without dinner dress trips. Fourth, The very principle that law should take its own course requires that in probe and preparation and submission of the charge sheet, the investigating agency should be free from, encumbrances influences and threats of all kinds.Unfortunately, that situation does not obtain in todays Bangladesh. In recent years a large number of political killings have taken place. The national dailies have carried the stories of all the gruesome murders and the full-page nation has been out raged. What is however deplorable is that in most of these extremely publicized matters the culprits have not been brought to justice. The rationality is not far to seek. It is the halt by high ups in the political ladder. Fifth, Another aspect of rule of law relates to the limits of law making power of the parliament itself.Our constitution instead rightly declares the people as the repository of all power and they use it through their elected representatives. However, the question arises whether the parliament can make laws moderate the democratic rights the people, which are generally considered as unreasonable. The supererogatory power Act of 1974 the public safety Act passed former Awami Liege Government and so forth which are used to put political opponents behind the bars, d eserve special mention, so, the question arises can such pieces of legislation promote rule of law? Obviously, not.One the other hand the government always with a view to baring argues make laws by ordinances and later gets them assigned under the sweeping power of article 70 of the constitution. Sixth, Rule of law postulates intelligence without passion and reason free from desire in any decision regarding matters concerned with governance. In our society, the principle is being ignored on many grounds as quotas for political activists by the name of honor to freedom fighters, special provision for individual security etc. Seventh, Police is no doubt a very powerful institution for the endorsement of the rule of law. except in Bangladesh, the police have never been friendly with the public. The police serve the government and enjoy, in exchanges, 6. the freedom to act arbitrarily and in the material interests of its own members. Eighth, Ordinance making power can be supported on ly in emergency situation like national crisis, national misfortune severe economic deflection etc. demanding for immediate legislative actions. nevertheless 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. By declaring emergency in peace time the government can suspend fundamental rights and suppress the opposition movement. This mounts to avowed arbitrary exercise of power on the part of the government which is contradictory to the concept of rule of law. Ninth, Another disgusting aspect of our judicial system is that there is the charge of corruption against our judiciary. Moreover, justices oftener than not, a costly commodity in our country.The abject people could not reach before the judges only because of mobility to stick out the charge required for going through the complicated process of litigatio n. Thus, they favor injustice than fatigue. Tenth, In order to provide quick relief and turn away lengthy proceedings of litigation providing for the creation of Administrative Tribunal curiously for service matters which needs special treatment and experience is not monarchal something. But this tribunal has been kept outside the writ jurisdiction of the game Court Division under article 102(5).Also it has been kept out of the supervisory jurisdiction of the High Court Division. This provision has therefore, been contradictory to the concept of integrated judicial system and also contrary to the concept of independence judiciary. A prominent concern in the development community is the rule of law and the related concepts from other legal, Economic growth, political modernization, the protection of human rights, and other worthy objectives are all believed to hinge, at least in part, on the rule of law. Policymakers in developing and transition nations are thus seeking ways to establish or strengthen the rule of law in their countries. Investment rating services, non- governmental organizations, and other students of development are producing indices that try to measure the degree to which a nation enjoys the rule of law. 7. But overlooked in much of the dialogue about the rule of law is that the term has no fixed meaning. It originated in normative writings on law and government, principally by Western authors, and each tailored the term to fit his or her vision of the ideal or just state.As a consequence, one survey of how the term has been used in Germany, France, the linked Kingdom, and the United States concludes that it belongs to the category of open- ended concepts which are subject to permanent debate Despite this multiplicity of definitions, most can be classified harmonise to whether they emphasize chunk characteristics, substantive outcomes, or running(a) considerations. The differences between these trio conceptions and the implications of each for efforts to establish, measure, or foster the rule of law are draw below.Formal Development Rule of Law Formal definitions of the rule of law look to the presence or absence of specific, observable criteria of the law or the legal system. Common criteria include a formally independent and impartial judiciary laws that are public the absence of laws that apply only to particular individuals or classes the absence of retroactive laws and provisions for judicial review of government action. There is no unambiguous list of formal criteria, and different formal definitions may use different standards.What formal definitions have in familiar is that the rule of law is measured by the conformity of the legal system to these univocal standards. The main receipts of a formal definition of the rule of law is that it is very clear and relatively objective once the formal criteria are chosen. Choosing which standards to include may be controversial, but after the standards are m ade explicit, it is unremarkably not difficult to observe the degree to which countries jar against or dont meet the standards. Formal definitions thus avoid more subjective judgments, for example about whether laws are fair or just. Substantive Development rule of Law An alternative to the formal get on to the rule of law is one that looks to substantive outcomes such as justice or fairness. This approach is not concerned with the formal rules, except inasmuch as they contribute to the achievement of a particular substantive goal of the legal system. Unlike the 8. formal approach, which eschews value judgments, the substantive approach is driven by a moral vision of the good legal system, and measures the rule of law in terms of how well the system being assessed approximates this ideal.The main advantage of the substantive version of the rule of law is the explicit equation of the rule of law with something normatively good and desirable. The rule of law is good in this case b ecause it is defined as such. This is appealing, first because the subjective judgement is made explicit rather than hidden in formal criteria, and, second, because the phrase rule of law has acquired such a strong positive connotation. Many people cannot accept any definition that would allow.Functional Development rule of law A third approach to the rule of law is similar to the substantive definition, but tries to avoid the thorny normative issues by focusing on how well the law and legal system perform some function usually the constraint of government discretion, the making legal decisions predictable, or some conspiracy of both. One version of this view, for example, would hold that a society in which government officials have little or no discretion has a high level of rule of law, whereas a society in which they wield a great deal of discretion has minimal rule of law.The functional definition of the rule of law is broadly consistent with the traditional meaning of the i ncline phrase, which has usually been contrasted with rule of man. It has the advantage, too, of defining the rule of law according to outcome-related criteria, but not requiring a moral verdict on the desirability of that outcome. The functional definition is narrow enough that it does not overlap with other more general concepts, and it makes questions as to the relationship of formal characteristics to the rule of law, and of the rule of law to substantive goals, researchable rather than tautological.Nonetheless, the functional definition suffers from a number of difficulties. First, as with the substantive definition, the relationship between the legal system per se and the functional goal can pose puzzles. It is possible to constrain government officials or realize predictability through means other than the legal system. Suppose one society has less official discretion than its neighbor even though the latter has apparently more restrictive laws. 9. Which enjoys a greater ru le of law under a functional definition?Another problem is the fact that looking at predictability or official constraint or any other function makes it hard to make any definitive statement about the level of rule of law in a whole society. Government officials may make literally thousands of decisions each day in a given system. Some of them may be passing constrained, while others are not. It is not at all clear how to heart the levels of discretion for individual types of decisions into an overall measure of the rule of law.Observation The above discussion makes it clear that though there are some positive provisions for ensuring rule of law in Bangladesh Constitution, they are being outweighed by the negative provisions. Though our constitution provides for 18 fundamentals rights for citizens, these remain meaningless version to the masses because due to poverty and absence of proper legal aid the poor people cannot realize them . 22 It also clear that the application of the principle of the rule of law is merely a pig out 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. We have a constitutional government elected through a free and fair election. But what is needed for the very cause of the principle of democratic rule of law is- 1. To separate the judiciary immediately from the executive 2. To appoint an ombudsman for the save of transparency and democratic accountability 3. To make the parliament effective and to let the law making body to do its due barter incooperation with each other government and opposition 4. 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 5. To formulate national unity and politics of consensus built around the basic set of the constitution, namely democracy, respect for each others hum an rights, tolerance, communal harmony etc. 10. Conclusion 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 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.