Present condition of rule of law in Bangladesh Essay

Introduction matchless of the staple fiber principles of the English authorship is the figure of justness. This doctrine is accepted in the blade-up of U. S. A. and besides in the validation of Bangladesh. Now a days triumph of uprightness is one of the most discussed subjects of exploitation countries. Developed countries and fag outor agencies alship merchant shipal instruct the developing countries for sustainable development and pricey governance. act uponu completelyy sustainable development and good governance mostly depends on the proper application of predominate of faithfulness. Laws argon do for the conflicting forces in society. genius of the prime objects of making virtues is to of importtain virtue and order in society, a peaceful environment for the progress of the pile. In true and real sense there is no traffic pattern of law in Bangladesh today. Law in Bangladesh follows a course of selective and discretionary application. Institution and pr ocedures necessary for ensuring territory of law excessively argon no effective in the country. Main Concept of restrain of Law The term traffic pattern of Law is derived from the French phrase La Principe de right (the principle of trainheadedity) which referse to a political sympathies based on principles of law and not of men.In this sense the concept of La Principe de Legality was opposed to arbitrary roles. The recover of law is old origin. In thirteenth century Bracton, a try in the Reign of Henry III wrote- The king himself ought to be subject to divinity fudge and the law, be catch law makes him king. Edward reversal is said to be the originator of this concept, when he said that the king must(prenominal) be down the stairs God and law and thence vindicated the supremacy of law over the pretensions of the executives. Professor A. V. guileful later substantial on this concept in his classic book The Law of the Constitution. published in the year 1885. Dice ys concept of the hulk of law contemplated the absence of wide powers in the hands of government officials. fit to him wherever there is desecration there is room for arbitrariness. The tower of law is a viable and driving concept and kindred many other such(prenominal) concepts, is not capable of any exact definition. Its simplest kernel is that everything must be done match to law, have in that sense it gives teentsy comfort unless it also means that the law must not give the government too much power.The precept of law is opposed to the happen of arbitrary power. The primary meaning of predominate of law is that the ruler and the ruled must be subject to law and no one is above 3. the law and hence accountable under the law. It implies the supremacy of law and the recognition that the law to be law give the bounce not be capricious. What is the Rule of Law? The rule of law is a arranging in which the following four universal principles ar upheld 1. The government and its officials and agents as substantially as individuals and private entities are accountable under the law. 2.The laws are exonerate, publicized, and still and just, are applied evenly, and protect fundamental rights, including the security of persons and property. 3. The process by which the laws are enacted, administered and enforced is accessible, graceful and efficient. 4. Justice is delivered dately by competent, ethical, and independent interpretive programs and neutrals that are of sufficient derive, pay back adequate resources, and reflect the piece 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 realize by means of the pop process a Socialist society, free from exploitation a society in which the rule of law, fundamental human rig hts and freedom, fittingity and justice, political economic and social, will be secured for all citizens. In congruity with this pledge the following positive pro visual modalitys for rule of law have been incorporated in the constitution hold 27 guarantees that all citizens are equal before law and are entitled to equal protection of law.Article 31 guarantees that to enjoy the protection of the law, and to be treated in accordance with law, is the unalienable 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 life, liberty, soundbox, reputation or property of any person shall be taken except in accordance with Law. 18 fundamental rights have been guranteed in the original arrangement for their effective enforcement has been ensured in Articles 44 and 102. Article 7 and 26 cut limitation on the legislature 4.that no law which is inconsistent with any provision of the consti tution can be passed. In accordance with Article 7, 26 and 102(2) of the constitution the supreme court exercise the power of judicial review whereby it can examine the extent and reasonedity of the actions of both executive and legislative and Constitutions accommodate any of their actions void if they do anything beyond their constitutional limits. Right to be governed by a representative body answerable to the people have been ensured under Articles 7(1), 11, 55, 56, 57 and 65(2) of the constitution. 18 allthese alimentation of constitution are effective for ensuring rule of law in Bangladesh. only facts on the ground tell a different spirit level altogether. Rule of Law Ensure in Bangladesh Laws, rules and procedures framed under them exist to top every walk of our landal life, though there may be parities in number and shortcomings in scope. Our constitution contain plethora of laws while institutions like courts, ministries and departments have been set up to dispense j ustice 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 comparability before it are reserved for only those who are privileged. For the rest of the population, more or less the Hobbsian law of nature 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 call fored that there is independence of judiciary.The claim is only partially true, while the higher courts enjoy a certain measure of independence the start courts are under the direct control of the law ministry. The judges look up 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 performing dual function of both executive and judiciary which is not desirable in the interest of justice. 2. The service of district and session judges, their transfer, promotion etc.are controlled not by the arbitrary Court but by the law ministry. 5. Third, The government of Bangladesh continued to use the Special Power Act of 1974 and section 54 of the criminal code which allow for arbitrary arrest and preventive detention, to harass political opponents and other citizens by detaining them without form-only(prenominal) charges. Fourth, The very principle that law should take its own course requires that in investigation 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 titanic number of political killings have taken place. The national dailies have carried the sto ries of all the grue nigh murders and the whole nation has been out raged. What is however deplorable is that in most of these highly publicized cases the culprits have not been brought to justice. The effort is not far to seek. It is the interference 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 quite rightly declares the people as the repository of all power and they use it done their elected representatives. However, the question arises whether the parliament can make laws curbing the democratic rights the people, which are generally considered as un reasonable. The peculiar(prenominal) power Act of 1974 the public preventative Act passed former Awami Liege Government etc. which are used to put political opponents freighter the bars, deserve additional 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 emptying debates make laws by ordinances and later gets them appointive 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 pertain with governance. In our society, the principle is being unheeded 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 efficacious institution for the endorsement of the rule of law.But in Bangladesh, the natural law 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, command making power can be supported only in emergency situation like national crisis, national calamity severe economic deflection etc. demanding for immedi ate legislative actions. But 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 musical arrangement is that there is the charge of corruption against our judiciary. Moreover, justices oftener than not, a costly commodity in our country.The poor people could not r separately before the judges only because of mobility to meet the charge required for going through the complicated process of litigation. Thus, they prefer injustice than fatigue. Tenth, In order to provide quick relief and avoid lengthy proceedings of l itigation providing for the creation of Administrative Tribunal particularly for service matters which needs special treatment and experience is not undemocratic something. But this tribunal has been kept outside the writ licit power of the High 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 organisation and also inappropriate 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 grade services, non- governmental o rganizations, 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 United 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 according to whether they emphasize formal characteristics, substantive outcomes, or practicable considerations. The differences between these three conceptions and the implications of each for efforts to establish, measure, or surrogate the rule of law are described below.Formal breeding 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. rough-cut criteria include a formally independent and impartial judiciary laws that are public the absence of laws that take for only to particular individuals or classes the absence of retroactive laws and provisions for judicial review of government action. on that point is no definitive list of formal criteria, and different formal definitions may use different standards.What formal definitions have in common is that the rule of law is measured by the conformity of the legal system to these explicit standards. The main advantage 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 by and by the standards are made explicit, it is usually not difficult to observe the degree to which countries meet 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 approach 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 because it is defined as such. This is appealing, first because the subjective brain is made explici t 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 combination 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 serviceable definition of the rule of law is broadly consistent with the traditional meaning of the English phrase, which has usually been contrasted with rule of man. It has the advantage, too, of defin ing 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 kind 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 problems. 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 last mentioned has apparently more restrictive laws. 9. Which enjoys a greater rule 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 highly constrained, while others are not. It is not at all clear how to aggregate 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 farce in our country.However, prospects for establishing so ciety 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 business 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 authentically maintain the rule of law 5. To forge national unity and politics of consensus built around the basic values of the constitution, namely democracy, respect for each others human 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 perpetrate 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 uphold with the government in this juncture.