Rule of Law and governance

Rule of law is inextricably linked with democratic governance and sustainable economic development. These are reinforcing factors for forward movement of a nation in today's inter-connected world where technology is a vital input.

Institutionalisation of rule of law makes democracy meaningful, in substance. A democratic polity, with variants of its formal structure in operations in countries across the globe, facilitates sustained economic progress -- upgradation of people's standards of living and promotion of their well-being on a steady basis.

The absence or malfunctioning of any of such three important elements or social processes, means the denial of opportunities to the people for savouring 'freedom' which is the most coveted goal of all individuals.

In this context, the state of governance in any country can be judged better in terms of conditions for ensuring rule of law, democracy and economic development than any other abstractions. That being the case, the situation in Bangladesh, as has been stated in the latest report of BRAC Institute of Governance and Development (BIGD) on 'The State of Governance Bangladesh 2013: Democracy, Party, Politics', provides some strong reasons for taking a dispassionate look at it. The findings of the report, as far as they relate to the state of the rule of law in Bangladesh, merit here a particular attention.

The report suggests that the rule of law -- that depicts a situation in which the people in a country obey the law -- has come under pressures in Bangladesh from, what it terms, 'partyarchal' influence, particularly after its return to 'democracy' in the early 1990s. By 'partyarchal' influence, it has meant the influence of the party in power that has been impacting adversely the efforts "to build a society with rule of law, fundamental human rights, freedom, equality and justice."

In its report, the BIGD has sought to "explore the nature, process and the degree of partyarchal influence", particularly in Bangladesh Supreme Court Bar Association (BSCBA). It examines how this factor has limited "the capacity and commitment" of lawyers who, as a professional group, constitute "a major stakeholder in promoting and protecting the rule of law, both individually and collectively". "One reason for this", as the report notes, "might be that the legal community is largely faction-ridden, based on its clientistic loyalty to various political parties".

'Partyarchy', it finds, operates in the country's Bar 'in a duopolistic fashion', rather than in a pluralistic way. After the return of democracy, "the partisan division among the numbers of the BSCBA began to erode its capacity, resolve and credibility to defend the rule of law", it further observes.

It discusses briefly a few of the strategies -- "manipulation of career of lawyers", "appointments in the office of the Attorney General, "patronage factors" and the like -- that have been deployed by the 'parties' in attempts "to influence and control" the pivotal civil society of the lawyers in 'multifarious' ways.

"The Supreme Court of Bangladesh (SCB) has the jurisdiction to review laws enacted by the legislature and declare any law that appears inconsistent with the Constitution as invalid. Hence, the SCB both interprets the Constitution and also ensures that the rule of law is guaranteed. It discharges this responsibility not only through the benches alone, but also with the help of the lawyers represented by BSCBA", the report points out.

It has identified some of the reasons for which the "capacity" of lawyers in Bangladesh "to create effective administration of justice has been weakened". The report thus cites 'politicisation' of the Bar that 'leads to corruption and malpractices', Bar members' disrespect for the rule of law and 'compromising the professional competence and neutrality of the highest court' as some key factors responsible for this situation.

Furthermore, it points out, the deficit, in areas of facilitating easy access of ordinary citizens (that remains elusive) to law, providing legal aid to them and undertaking initiatives on public interest litigation, has arisen because the pressure of 'partisan politics.'

Laws, however, are not immutable in nature. They evolve gradually and over time to meet the needs of a country or a society, serve the larger interests of the people, and facilitate orderly socio-economic progress on a sustainable basis under any given conditions. In the process, laws are essentially purported to strengthening democracy, ensuring equality and justice to all and promoting human rights and freedom. As the economy advances and the society moves forward, the case for a rule-based system and its proper functioning assumes a critical importance.

The recent developments in China, notwithstanding its one-party political system at work, illustrate this importance. China has achieved rapid economic growth in about last three and a half decades as a result of "its reform and opening-up policy".

China appreciates the importance of handling many difficult issues that it faces now, as the second largest global economic power in gross domestic product (GDP) size after the US. Among such issues, one relates to 'hows' about conducting political reforms to build an accountable system, while ensuring the social stability that is needed for continuing economic growth.

The rule of law -- the functioning and operation of a rule-based system -- has now riveted the attention of the key policy-makers in China. To the outsiders, this may look somewhat quizzical, considering the monolithic rule of the Communist Party of China (CPC) there.

But China considers its political system 'unique'. Its one-party political system and socialist market economy are very different from the Western multiparty political system and free market economic system. The 'Beijing Consensus' or 'China model' has been receiving an increasing global attention in recent years, as China tries to manage its challenges arising from the imbalance of fast economic growth and social distribution, a fast-ageing population, an unreliable safety net, higher dependency on outside resources.

On their part, China's leaders do not consider that democracy does necessarily reside in 'bi-party system' or 'multi-party system'. Bi-party system or multi-party system, according to officials there, does not stand for democratic politics in all space or for all time.

They admit that though democracy is very much related to universal suffrage and multi-party system, they are, by no means, identical. While acknowledging this, they note that democracy has now become a common pursuit of mankind.

"It is also the direction of China's political system building and reform. ... a future China will be a country with full realization of democratic politics, equity and justice. In the history of mankind, the conception of ideas like democracy, rule of law, freedom, equality and human rights in the strangle against feudal autocracy marked a great emancipation of the human spirit. But it has taken various roads and forms to put these ideas in different societies and countries. Such variation is nothing but a vivid reflection of the diversity of human political culture", to quote Zhou Yuyan, Research Fellow of the Council of China Centre for Contemporary World Studies (CCCWS) from his article on 'How to understand the contemporary party politics'.

In this context, the current policy-emphasis in China on ensuring the rule of law, in its specific political context, is meant to serve one message: the determination of its leaders to carry forward "a far-reaching plan to bolster the rule of law". One major theme of the CPC's Central Committee's plenary session last October, to note here, was focussed on the rule of law, for the first time in 65 years.

More than 350 members of this committee, a key policy-making body in China, adopted at the end of last October's four-day meeting, a resolution, titled "Major decisions on the comprehensive implementation of rule according to law".

President Xi Jinping of China was then reported as saying, in an interpretation of the resolution of the CPC plenum, "the relations between the CPC and the rule of law, are the core issue for the building of a country with the rule of law." He then urged party cadres  "to speak out ... with self confidence in a big way. (We need) to explain the essential features of our socialist rule of law so as to ensure a correct understanding of the facts".

Such words would indicate that China's present leaders are otherwise quite serious about not encouraging 'partyarchal influence' on the rule of law.

China is now on its course to implement a long list of measures aiming at transforming the legislative process, empowering judges and ensuring law compliance by all citizens, including, among others, those within both party and government officials. This is, what China's leaders say, the essential feature of socialism with the Chinese characteristics and the most fundamental guarantee of socialist rule of law. Here comes the concept of rule according to the Constitution, in order to put its authority "in the front and centre of Chinese governance".

In recent times, China has undertaken a "high voltage" campaign against corruption to tackle its multi-dimensional problems to improve efficiency in governance, promote "scientific development and social harmony" and "improve people's livelihoods and welfare". Its leaders are also considering allowing prosecutors to institute public interest litigation and taking steps to optimise judicial functions, improve administration lawsuits and advance administration by law.

Their determination or resolve, shown thus far, signals that China's pursuit of "rule of law" is purported to reaping its dividends through enhancement and extension of its impact on both the political and economic arenas. How China proceeds along this road, while letting all others to adjust themselves to the "new normal" -- the rule of law, will be interesting to watch in the coming times.