Rule of Law in Bangladesh: Illusion or Reality

Rule of Law is one of the most discussed subjects at the moment all over the world as well as in Bangladesh. It means a country which is governed in accordance with law not by men or individuals. This Study focuses on the concept of rule of law, few core aspects of rule of law and explanation of Dicey’s theory. Moreover, it also highlights what are provisions of constitution of Bangladesh regarding rule of law and the actual scenario of this. At the end of this paper, some strong corrective measures for ensuring rule of law are given. The qualitative method has been used in this study where data was collected from secondary sources.

"Often we mistake stability, in terms of security and economic activity, to mean a country is doing well. We forget the third and important pillar: rule of law and respect for human rights." (Kofi Annan) The primary meaning of rule of law is that the ruler and ruled must be bound by the same law. Rule of Law is one of the crucial parts of a civilized society. In fact, no civilized nation can run without the proper application of the rule of law. 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 questioned topics in Bangladesh. Although laws are made for the welfare of the citizens, bringing peace and harmony, unfortunately in the context of Bangladesh it seems the implication of rule of law is not for the common citizens. It seems like the rule of law is myth in the country.

Objectives of Study:
The objectives of the study are: i.
To discuss the concept of rule of law ii.
To assess the theory of rule of law iii.
To evaluate practice of rule of law in Bangladesh iv.
To suggest some policies and measures to improve rule of law in Bangladesh.

What is Rule of Law?
The term "rule of law" is used as opposed to the rule of man or king. 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 (Mollah, Rule of Law in Bangladesh: An Overview).
One simple materialization of the idea of "rule of law; is the idea that society should be ruled by law not by men. 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.

Origin & Historical Development of Rule of Law:
The history of Rule of Law is the history of rise of political liberalism from bondage of political absolutism.
The term "Rule of Law" is derived from the French Phrase "La Principe de Legality" which means-(The Principle of Legality), This concept is "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 13 th 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 17 th century, Edward Coke is said to be the initiator of concept of Rule of Lawwhen 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 17 th 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. iii.
Predominance of legal spirit (Mollah, Rule of Law and Good Governance in Bangladesh: Does Judicial Control Matter, 2014) Absence of Arbitrary Power or Supremacy of Law: i. Dicey shapes 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. ii.
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. iii.
For Example: Article 10 & 11 of our constitution describes human rights and freedom from exploitation, no one can misuse power.

Equality before Law:
i. Dicey says that there must be equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts ii.
According to him, where no one is above the law and everyone is equal before the law regardless of social, economic, or political status. iii.
For Example: Article 27 of our constitution guarantees that all citizens are equal before law and are entitled to equal protection of law.

Predominance of Legal Spirit:
i. The rule of law includes the results of judicial decisions determining the rights of private persons. ii.
To explain the third principles , state that ,the right such as right to personal liberty, freedom from arrest, freedom to hold public meeting are guaranteed by a written constitution iii.
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.

Constitutional Provisions Regarding Rule of Law in Bangladesh:
The Constitution of Bangladesh in the preamble proclaims rule of law as the prime objective of the Constitution. It has been assurance 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"

Representative Government:
Before laying down the assembly of the government, article 7 of the Constitution loudly speaks of representative 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. Article 59 forcefully needs that the local government in every administrative unit of the Republic shall be entrusted to bodies composed of persons elected in accordance with law.
Representative bodies answerable to the people have been ensured under Article 11, 55, 56, 57 and 65(2) of the constitution.

Government to Run in Accordance with Law:
Apart from this providing for representative government, the Constitution clearly mandates that all government actions to be taken in accordance with the provisions of the Constitution and laws of the land. Articles 7 and 26 mandate limitation on the legislature, that no law, which is inconsistent with any provision of the Constitution, can be passed.

Equality before the Law:
As regards 'equality before law', Article 27 of the Constitution declares that: all citizens are equal before the law irrespective of their status and position and any person however high and mighty is amenable to the provisions of law.
The Constitution of Bangladesh proclaims that there will be no discrimination against any citizen on the ground only of race, religion, caste, sex or place of birth in respect of access to places of public entertainment or resort. All public functionaries are answerable to be sued in the courts of law in the country when they infringe the rights and liberty of the individual citizens. The only exception is that of the President of the Republic who cannot be sued for actions taken by him or in his name. In such case the government can be sued by the individuals and article 146 of the Constitution undoubtedly states the position

Equal Opportunity in Public Employment:
Article 29 recognizes that any citizen otherwise qualified for appointment in the service of Bangladesh, shall not be discriminated on the ground only of race, religion, caste, sex or place of birth.

Treatment in Accordance with Law:
Rule of law calls for 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.
Electronic copy available at: https://ssrn.com/abstract=3567895 The Constitution provided in article 32, "No person shall be deprived of life or personal liberty save in accordance with law". Therefore, article 32 will be strictly scrutinized when it relates to or deals with life or personal liberty.

Protection of Basic Human Rights:
Part III of the Constitution has guaranteed 18 fundamental rights and Constitutional arrangement for their effective enforcement has been ensured in articles 44 and 102. Article 33 offers for safeguards as to arrest and detention, article 34 forbids forced labor and article 35 provides protection in respect of trial and punishment. Freedom of assembly, association and freedom of thought and conscience and of speech are guaranteed by articles 37, 38 and 39 respectively. Articles 40, 41 and 42 relate to freedom of profession or occupation, freedom of religion and right to property. Article 43 guarantees protection of home and correspondence.

Independence of Judiciary:
An independent judiciary is an important precondition for ensuring rule of law in a country. Article 22 of the Constitution mandates, that the State, shall ensure separation of the judiciary from the executive organs of the State.

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

Position in Rule of Law index:
The World Justice Project (WJP) released the Rule of Law Index 2019, which is claimed as the world's leading source for original data on the rule of law. In the latest index, Bangladesh is standing at the 112th position among 126 countries. In the previous report of 2017-2018, Bangladesh stood at the 102nd position among the 113 countries. However, in 2016, Bangladesh stood at the 103rd position (among the 113 countries) and in 2015, Bangladesh was placed at the 93rd position (among 102 countries) in the Rule of Law Index.
In this years' index, Bangladesh's score places it at 4 out of 6 countries in the South Asia region and 22 out of 30 among lower middle-income countries. (Project, 2019) The WJP Rule of Law Index 2019 measures countries' rule of law performance across eight factors: Constraints on Government Powers, Absence of Corruption, Open Government, Fundamental Rights, Order and Security, Regulatory Enforcement, Civil Justice, and Criminal Justice.

The Provisions of the Constitution which contradicts the Rule of Law
Preventive detention: Rule of law requires that no man should be arrested and detained without any charge of criminal offence. But the Constitution permits such arrest and Electronic copy available at: https://ssrn.com/abstract=3567895 6 detention when security of the State or maintenance of law and order requires such detention. The Special Powers Act was passed 1974. Section 3 of this Act mandates that the government may, if satisfied that it is necessary to detain any person to prevent him from doing prejudicial acts, pass order for detention of such person. In practice every government has used the Special Powers Act, 1974 as a permanent law. Habeas Corpus petitions in large numbers have been filed challenging such detention. Very few of these petitions have been rejected and the overwhelming majority of the detention under this law have been held by the Supreme Court to be unlawful and this fact clearly shows how the power conferred by this law has been abused by the governmental authorities. Since huge number of persons are detained every year without trial purely for political purpose, the right to protection of law, protection of right to life and personal liberty and safeguards as to arrest and detention as guaranteed in Articles 31, 32, and 33 cannot be ensured and it is against the concept of rule of law.

Case Study 1-Bangladeshi journalist arrested for reporting election irregularities:
Hedayet Hossain Mollah, who works for the Dhaka Tribune newspaper, was detained after the 12th national election under a controversial digital security law that rights groups say gives authorities sweeping powers to stifle dissent. 1

Independent judiciary
Independence of the judicial branch of the government is a prerequisite to establishment of rule of law.
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. According to Article 97, if the President is satisfied that the Chief Justice is, on account of absence, illness, or any other cause, unable to perform the functions of his office then the President shall appoint a new Chief Justice.
Article 22 provides that the State shall ensure separation of the judiciary from the executive organs of the State.
Article 115 mandates, "Appointment of persons to the offices in the judicial service or as magistrates exercising judicial functions shall be made by the President in accordance with the rules made by him in this behalf." Consequently, the President does not require a recommendation of the Supreme Court for appointment of a district judge, nor is he required to consult the Supreme Court and Public Service Commission in framing rules in exercise of power under article 115. Control by the President means control by the executive government in the Ministry of Law. Thus, though the judges of the Supreme Court are independent in relation to the executive branch of the government, subordinate judicial officers and magistrates exercising judicial functions are not so independent.

Ordinance making power of the President
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, therefore, contrary to the concept of rule of law. So this provision may also be reformed so that it cannot be used unless there occurs any emergency situation like 'national crisis', 'national calamity', 'severe economic deflation' etc.

Emergency Provisions
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. By declaring emergency in peace time the government can suspend fundamental rights and suppress the opposition movement.

Floor Crossing
According to Article 70, a Parliament member shall vacate his seat, if heresigns 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

Prime Minister's advice:
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 bodies 2 , the President shall act in accordance with the advice of the Prime Minister' (Chowdhury, 2010).

Delays and Backlogs of Cases
Delays and Backlogs in disposing the criminal and civil cases contribute public frustration about our judiciary services. Where a civil suit take 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 year before Bangladesh's golden jubilee when the country is projected to become a middle-mid-income country. 3

Case Study 2:
No visible progress in Sagar-Runi murder case in 7 years. They were brutally murdered at their home in the Rajabazar area of the capital on February 11, 2012. 4 No headway in Toki murder case in 6 years. Six years have passed since the killing of Tanvir Mohammad Toki. But there is no remarkable progress has been made and the charge sheet has not yet been given. Complaints are not being given due to an influential family (Baisakhi TV, March 6, 2019).
3 Years into Tonu Murder: No progress yet in investigation. Theater activist Tonu was killed after being raped inside Cumilla Cantonment on 20 march in 2016. No one has been arrested yet. 5

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 2 (such as, the Election Commission, Anti-Corruption Commission, Public Service Commission, and Office of the Comptroller and Auditor General) 3 Source: https://en.prothomalo.com/bangladesh/news/136201/5m-pending-cases-by-2020 4 https://www.dhakatribune.com/bangladesh/dhaka/2019/02/10/no-visible-progress-in-sagar-runi-murdercase-in-7-years 5 https://www.thedailystar.net/backpage/news/3-years-tonu-murder-no-progress-yet-investigation-1717672

Case Study 3 -Ruppur Nuclear plant:
According to reports in the media as well as on social media, the purchase prices of various items to furnish the project's 966 apartments for the Russian engineers and others were abnormally higher than the market prices.
The reports claimed that each pillow was bought for Tk 5,957, and the cost of carrying it to an apartment was Tk 760. An electric stove cost Tk 7,747 and the carrying cost from the ground floor to the top one cost Tk 6,650.
The reports also said that the price of an electric iron was Tk 4,154 and the carrying cost Tk 2,945. Media reports also said that the salary of the project director was Tk 4.96 lakh. Besides, he will be the executive director of the project, so he can receive an additional Tk two lakh. In addition, the salary of each driver was around 73,000, cooks would get Tk 63,000. 6

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 1 st 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 ). 7

Case Study 4 -Rifat murder:
Prime accused Nayan Bond killed in 'gunfight' with police (Daily Star 2 July, 2019). Eight people have been killed in mob attacks in Bangladesh after false rumors about child abductions spread online, police have said.On Saturday, Ms Begum, 42, was beaten to death outside a school in Dhaka by a mob who suspected her of being a child kidnapper. Locals became suspicious of Ms Begum after she visited the school to enquire about the admission of her children, witnesses told bdnews24.com, a Bangladeshi online newspaper.
The other victims were a man in his 30s, beaten by a mob in Keraniganj last Thursday, and a woman in her 30s, assaulted by a mob in Savar on Saturday, bdnews24.com reports (BBC 24 July, 2019).
Some 463 violations of freedom of speech occurred in the country last year, according to a human rights organization (Daily Star May 3, 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. For Example: 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).

Case Study 5:
18 dead, 200 hurt, eight of those killed belong to AL, and four to BN. Election violence claimed at least 18 lives yesterday, making it one of the deadliest polls in the country. More than 200 others were injured in clashes between rival Awami League and BNP supporters in 24 districts (Daily Star, 31 December, 2019).
• 'Too scared to speak out' Yogita Limaye, BBC News, Dhaka: As we went from polling booth to polling booth, one pattern became clear. People who were supporters of Prime Minister Hasina's party were vocal, and happy to answer our questions on camera, about what issues they'd voted on. The others were mostly too scared to speak out.
One man told us that several members of his extended family found that their votes had already been cast when they went to the polling booth. He said he didn't think it was a fair election but didn't want to be identified. It wasn't hard to see why he felt intimidated. Outside every polling booth we went to, there were dozens of workers from the prime minister's party, listening intently when anyone was interviewed. No-one from the opposition parties was visible. While the election commission has said it will investigate claims of vote-rigging, the organization has itself been accused of bias by the opposition. So far, the prime minister has not responded to these latest allegations but two days ago rejected claims the election was unfair.
It is widely anticipated that her party will win the polls, but it will be a controversial victory.
Bangladesh Election: Mother of four "gang raped by AL men" for voting for opposition BNP. A mother of four was gang-raped in Noakhali's Subarnachar early yesterday allegedly by 10 to 12 Awami League activists.
The 35-year-old woman, who was being treated at Noakhali General Hospital with severe injuries, claimed that she was raped for voting for "sheaf of paddy", the electoral symbol of the BNP, during 11th national polls (Daily Star, 2019).

Gender Based Violence: Domestic Violence:
Domestic violence is when one person in a relationship purposely hurts another person physically or emotionally. In Bangladesh there are various types of domestic violence such as Beating, slapping, kicking, pushing or hitting (with fists or weapons such as sticks & machetes), strangling.
Example: Two thirds of women in Bangladesh around 66% have been victims of domestic violence and 72.7% of them have never disclosed the experience to others. 8

Trafficking and Prostitution:
Many women are forced into prostitution either by their parents, husbands or boyfriends or as a result of the difficult economic and social conditions in which they find themselves. Traffickers sent women to others countries from Bangladesh because of sex trade.
Example: Around 500000 Bangladeshi women and children aged between 12 and 13 years have been sent to India in the last decade. And also 50,000 Bangladeshi girls and women are trafficked to India every year & 3 lakh Bangladeshi children work in the brothels of India. 9

Rape:
Rape is the crime of the patriarchy committed against women. Women are most at risk for rape in their own homes from their male acquaintances. It is an act of forced sexual relation with women and girls. Examples: i.
86% children juvenile is victims of rape from the overall rape incidents in Bangladesh. 10 ii.
January to October in 2018, 40 girls, children and 1420 women have been raped in our country. 11

Workplace Harassment:
Workplace harassment is the belittling or threatening behavior directed at an individual worker or a group of workers. In Asian countries, workplace harassment on women is one of the poorly attended issues by managers in organizations. Women lose their dignity because of harassment at the workplace in our country.
Example: December 2018 study, 85% of garments worker face verbal abuse, 71% face mental abuse, 21% face physical torture and 13% face sexual abuse at workplace in Bangladesh. 12

Early Marriage:
Early marriage especially without consent of the girls is another form of Human Rights violation. It followed by multiple pregnancies can affect the health of women for life.

Case study 7:
A schoolgirl was indiscriminately hacked by a stalker for refusing his "love proposal" in Kulaura upazila of Moulvibazar on April 27, 2019. 15

Cyber Crimes:
Day by day cybercrime cases on the rise in the country. Women lose their dignity through the cyber-crimes in Bangladesh. Women are the biggest victims of rising cybercrimes. The number of cybercrime cases was only three in 2013, but it went up to 33 in 2014, 152 in 2015, 233 in 2016, and 568 in 2017. Example: In Bangladesh, more than 17000 complaints were submitted to the ICT Division's cyber help desk in two years (2016 and 2017). Among those 70% of the complaints were women. More than 60% of women had faced some form of harassment on Facebook. About 10% of the victims said very serious allegations. Their images were stolen, merged with pornographic images and then released on the Internet. 16 How to ensure rule of law: 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 fundamental rights for citizens, these remain meaningless visions 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.
What is needed for the very cause of the principle of democratic rule of law is: i.
To establish rule of law, the Human Rights Commission has to come forward (Rahman,. ii.
To appoint an ombudsman for the sake of transparency and democratic accountability iii.
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; iv.
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; v.
To establish rule of law, the Election Commission will have to work freely, strictly & fairly. vi.
To establish rule of law, Political parties should be democratic. vii.
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. viii. To separate the judiciary immediately from the executive; ix.
Accountability and Transparency should be ensured at all levels of the country by applying institutional mechanism x.
Corruption at all levels should be minimized. ACC must be effective and free. xi.
Constitutional reform is needed. xii.
Civil society can create public awareness through seminars, writing etc. xiii. Legal procedures should be simplified to make them accessible for illiterate women. xiv. Training and sensitization is needed at all levels of the judicial system. xv.
The state should ensure to provide free legal aid for poor women.

Conclusion:
"Anywhere, anytime ordinary people are given the chance to choose, the choice is the same: freedom, not tyranny; democracy, not dictatorship; the rule of law, not the rule of the secret police." Tony Blair Rule of law is the most vital prerequisite for democracy and good governance. In the final analysis it is clearly shown 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 vagueness and irregularities in rule of law. After all, the government must be committed to ensure the security of life and property of the people, protection of individual rights and the dissemination of justice on the basis of 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.