Provisions for and against the rule of law in the Constitution of Bangladesh
Rule of law means, the absolute supremacy or predominance of the regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness. The general conception of the rule of law has become crystallized with professor Dicey’s usage of that phrase in his work ‘the law of the Constitution’ first published in 1885. He first stated that the rule of law was one of the essential features of the Constitution. The rule of law is the legal principle that law should govern a nation, as opposed to being governed by arbitrary decisions of individual government officials. This principle of rule of law has three general principles, to establish rule of law in a country government should execute following principles:
1. Absence of arbitrary power, because rule of law requires supremacy of Constitution and others Ordinary laws before the influence of arbitrary power of executive authorities.
2. Equality before law to the all classes of people. No man is above the law, and the officials are like private citizens under duty to obey the same law. There can be no special court or tribunal for the state officials.
3. Constitution is the result of the Ordinary law of land.
Accordingly, Bangladesh recognises rule of law as a basic feature of its Constitution. In Anwar Hussain Chowdhury v Bangladesh 1989 BLD, the Supreme Court of Bangladesh recognised the rule of law as one of the basic features of the Constitution. In spite of this, there have been many contradictory provisions in the Constitution that go against rule of law. We aim to identify the relevant provisions of the Constitution ensuring rule of law and then we will attempt to analyse the contradictory provisions of the Constitution that go against the concept of rule of law.
The place of rule of law in the Constitution of Bangladesh
In fact, the term ‘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 realise 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.”
In accordance with the above pledge, the following positive provisions for rule of law have been incorporated in the Constitution:
Firstly: Article 27 guarantees that all citizens are equal before law and are entitled to equal protection of law. Article 27, therefore, forbids discrimination in law or in State actions.
Secondly: Article 31 guarantees that to enjoy the protection of the law, and to be treated in accordance with law, and only in accordance with law, is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Bangladesh, and in particular no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law. Article 31 imports the concept of due process, both substantive and procedural, and thus prohibits arbitrary or unreasonable law and State action.
Thirdly: around 18 fundamental rights have been guaranteed in Part III of the Constitution and constitutional arrangement for their effective enforcement has been ensured in Article 44 (right to move to the High Court) and 102 (power of the High Court to take appropriate action upon application).
Fourthly: Article 7 and 26 impose limitation on Parliament that no law which is inconsistent with any provision of the Constitution can be passed. Article 7(2) confirms that if any other law is inconsistent with the Constitution that other law shall, to the extent of the consistency, be void.
Fifthly: In accordance with Article 7, 26 and 102(2) of the Constitution, the Supreme Court exercises the power of judicial review whereby it can examine the extent and legality of the actions of both the executive and legislature and can declare any of their actions void if they go beyond their limit.
Sixthly: the people’s right to be governed by a representative body answerable to them has, directly and indirectly, been ensured under Article 7(1) [all power belong to the people, Article 11 (The Republic shall be a democracy where, among others, fundamental human rights shall be guaranteed), Article 55 (Cabinet), Article 56 (Ministers), 57 (tenure of the office of the Prime Minister), and Article 65(2) [composition of Parliament] of the Constitution.
Contradictory provisions to the rule of law
The following are the contradictory provisions in the Constitution which go against the concept of rule of law:
Article 141A empowers the President to declare emergency whenever he wishes. Except in war time situation, declaration of emergency cannot be supported. By declaring emergency in peace time the government can suspend fundamental rights of the citizens, limit the Supreme Court’s jurisdiction and suppress the opposition movement. This arbitrary exercise of power by the government is contradictory to the concept of rule of law. Sheikh Mujibur Rahman’s government used this emergency power to suppress the opposition in the early 1970s, and General Moin U Ahmed and Dr Fakruddin Ahmed used the loophole of this emergency provision to suppress the political parties and prolong their term in 2007.
Provision for ordinance making power
Ordinance making power can be given in emergency situations like national crisis, national calamity, and serious economic turmoil etc. In those circumstances, there may be needs for immediate legislative actions. However, Article 93 of the Constitution allows the President to promulgate ordinances anytime during the recess of Parliamentary session. In practice, a huge number of ordinances are promulgated during this time by-passing Parliament. Parliament is the recognised democratic law making body. But ordinance made laws are fully undemocratic, for they are made by the executive at their will. This type of law making process is contradictory to the rule of law.
The presence of administrative tribunal is not unknown in the developed democratic countries of the world. There are various reasons for the existence of these types of tribunals, such as quick relief and speedy proceedings for service matters requiring special treatment and experience. However, there should be a transparent procedure, and judicial control and supervision in those proceedings. Administrative tribunals should not be a substitute for fairness and justice provided by the independent court of laws. Article 117 of the Constitution provides for the establishment of administrative tribunal. There is, however, no clear provision as to who would chair the tribunal, what would be their qualification and what would be their security of tenure. The executive plays key role in the administration and judicial process of the tribunal. This tribunal has been kept outside the writ jurisdiction of the High Court under Article 102(5). It has also been kept out of the supervisory jurisdiction of the High Court. These provisions are, therefore, contradictory to the concept of integrated judicial system and independence of judiciary - an important ingredient of rule of law.
The provision for preventive detention
Preventive detention can only be supported in the time of emergency. But Article 33 of the Constitution allows the government to use this measure in peace time. In reality, every government has used the Special Power Act 1974 as a permanent law to detain people, mainly of opposition party background, without charge or trial. Since a 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 Article 31, 32, and 33 cannot be ensured. Therefore, the provision allowing preventive detention in peace time under Article 33 is against the concept of rule of law.
The provision of Article 70.
Article 70 blocks all positive measures in the Constitution for ensuring rule of law in many ways. Firstly: the government, avoiding debates and criticism, tends to make laws by ordinance and later get those ordinances approved under sweeping power of Article 70. Secondly: rule of law, as opposed to rule of individual or party, means rule of that law which is passed in a democratically elected Parliament after adequate debate, deliberation and discussion. But because of Article 70 neither an MP can put forward his strong dissenting opinion nor can he/she vote against the party line. As a result, each and every Bill of the government, no matter how undemocratic and unfair it may be, gets quickly passed. Thirdly: the democratic right of the citizens to be governed by a representative body answerable to them cannot be ensured due to Article 70. Though Article 55 says “The cabinet shall be collectively responsible to Parliament,” this provision of collective responsibility has been meaningless because of Article 70 as the cabinet always knows that it is not going to be defeated by motion of no-confidence, for no member (MP) of the majority party has the right to vote against the party line.
The independence of judiciary
The most important precondition for ensuring rule of law in a country is to have an independent and impartial judiciary. Although the apex judiciary is said to be independent, the reality and practicality do not suggest so. Despite Article 95(2)(c) says “...such other qualifications as may be prescribed by law for appointment as a Judge of the Supreme Court,” there has been no set and clearly defined appointment procedure introduced yet for appointing judges in the Supreme Court. Judges are frequently appointed on political consideration as opposed to merit. Superseding judges have become norms. There has been no separate secretariat for the Supreme Court established yet. Thus, the Supreme Court is dependent on the executive for its secretarial tasks. The subordinate judiciary is still executive dependent. But in order to establish rule of law the subordinate judiciary must also be independent and impartial. It was held, inChandra Mohan V U.P AIR 1966 SC 1987 1993, that “It is the Subordinate Judiciary who are brought most closely into contact with the people, and it is no less important, perhaps indeed even more important, that their independence should be placed beyond question.”
The provision of Article 47
Although Article 7 and 26 impose limitation on Parliament that no law which is inconsistent with any provision of the Constitution can be passed, Article 47 saved certain laws and gave protection to some laws which, on its face, are inconsistent to the various provisions of the Constitution. Of those saved and protected laws, the most dangerous are the laws passed in relation to the war crimes and crimes against humanity introduced by the First Amendment of the Constitution. Initially these laws were made with a view to try identified Pakistani army officers arrested on the suspicion of war crimes. These laws were amended in 2009 to include ordinary citizens and group of citizens of Bangladesh. Now any citizen of Bangladesh can be arrested under this law. The black side of this law is that once someone is arrested on suspicion of war crime and crime against humanity, he will be denied of his fundamental constitutional rights (i.e. fundamental rights and the right to apply to the High Court for judicial review). As any citizen can potentially be targeted by this law, there is a strong possibility that it can be used politically in future. As a result, innocent people may be victims – despite being citizens of the country by birth they will be denied of their inherent fundamental rights of the country’s constitution! All these are contrary to the principle of rule of law.
The recruitment in the civil service of the Republic based on existing 55% quota system as opposed to merit is directly contradictory to Article 27 and 29 which respectively guarantee equality before law and equality of opportunity in public employment. Although Article 28(4) allows some special provision for women, children and backward section of citizens, the 55% quota is totally unfair, unjust and unreasonable. To some extent, it amounts to a mockery to merit and the principle of equality and non-discrimination. Therefore, the existing unfair and unreasonable quota system is against the concept of rule of law.
There are, no doubt, some positive provisions in the Constitution of Bangladesh for ensuring rule of law. However, those positive provisions have been outweighed by the above negative provisions. Therefore, the whole Constitution should be reviewed by an independent penal of experts to assess the impact of the contradictory and negative provisions on the common people of the country, and then recommend for appropriate amendments.