Rule of Law: The debate over progression
well, notes Asif Nazrul Islam | Wednesday, 21 December 2011
well, notes Asif Nazrul Islam
Rule of law essentially means dominance of law for ensuring equal legal treatment, unfettered access to legal redress and end of any arbitrary power and authority. In addition to this classical meaning, rule of law has increasingly been understood as a system that requires establishing a society in which every person would have the awareness, will and ability to avail himself or herself of the benefits and opportunities offered by rule of law. By taking account of this wider connotation, it is relevant to consider constitutional provisions, laws, policies and institutional regime in Bangladesh to provide an account of the development in the concept and contents of rule of law in this country and also to assess the extent to which these developments have enhanced or weakened rule of law in last 40 years of Bangladesh. The constitution, being the supreme law of the land, is the most influential instrument to embody, influence and enforce rule of law in a country, although its actual implementation hinges on many other issues, Including the legal and judicial structure, standards and availability of non-formal justice, socio-economic realties and the prevalent political culture. This partially indicates why an exceptionally democratic and pro-people constitutional beginning of Bangladesh in 1972 fails to sustain itself and the rule of law in the country has gradually eroded, despite promulgation of new laws, formulation of public policies and establishment of fresh bunches of institutions of accountability and many reform initiatives. The 1972 Constitution was premised on rule of law which was later confirmed as one of its basic structure by a decision of the Supreme Court of Bangladesh. It has elaborated, strengthened and deepened rule of law by incorporating its various contents either as fundamental rights, fundamental policies or institutional requirements. The high Constitutional ideologies and norms have later been diluted and reduced by successive martial law regime, amendments to Constitution, black laws promulgated under the shadow of those amendments, disregard to remaining ideals of Constitution, lack of predictability, impartiality and simplicity in the legal system and failure to implement the good laws. The later developments have taken place in the new democratic era beginning from 1991. The positive trends discernable from those developments includes i) a more pro-people interpretation of Constitution and other laws in particular by the Supreme Court for protecting the rights of people and promoting rule of law; ii) increasing emphasis on participatory justice in the form of legal aid scheme for access to formal justice and alternative dispute resolution for enhancing the relevance non-formal justice; iii) establishment of new institution of accountability like the Human Rights Commission and Independent Information Commission and reforms in existing institutions like Parliament, Judiciary and Anti-Corruption Commission. But such developments would not have much impact on efforts for deepening and widening rule of law unless and until democracy, non-discrimination und public awareness of their legal rights are firmly established in Bangladesh. Strengthening rule of law must aim at securing transparency, accountability, participation and effectiveness in governance system and public functionaries as well. This is an abridged version of a write-up by Dr. Asif Nazrul Islam, Professor of Law, University of Dhaka, to be published in a forthcoming book, 'Bangladesh at 40: Changes and challenges', to be edited by Prof Abdul Bayes, Dean of Faculty of Business Studies, Jahangirnagar University, Savar, Dhaka
Rule of law essentially means dominance of law for ensuring equal legal treatment, unfettered access to legal redress and end of any arbitrary power and authority. In addition to this classical meaning, rule of law has increasingly been understood as a system that requires establishing a society in which every person would have the awareness, will and ability to avail himself or herself of the benefits and opportunities offered by rule of law. By taking account of this wider connotation, it is relevant to consider constitutional provisions, laws, policies and institutional regime in Bangladesh to provide an account of the development in the concept and contents of rule of law in this country and also to assess the extent to which these developments have enhanced or weakened rule of law in last 40 years of Bangladesh. The constitution, being the supreme law of the land, is the most influential instrument to embody, influence and enforce rule of law in a country, although its actual implementation hinges on many other issues, Including the legal and judicial structure, standards and availability of non-formal justice, socio-economic realties and the prevalent political culture. This partially indicates why an exceptionally democratic and pro-people constitutional beginning of Bangladesh in 1972 fails to sustain itself and the rule of law in the country has gradually eroded, despite promulgation of new laws, formulation of public policies and establishment of fresh bunches of institutions of accountability and many reform initiatives. The 1972 Constitution was premised on rule of law which was later confirmed as one of its basic structure by a decision of the Supreme Court of Bangladesh. It has elaborated, strengthened and deepened rule of law by incorporating its various contents either as fundamental rights, fundamental policies or institutional requirements. The high Constitutional ideologies and norms have later been diluted and reduced by successive martial law regime, amendments to Constitution, black laws promulgated under the shadow of those amendments, disregard to remaining ideals of Constitution, lack of predictability, impartiality and simplicity in the legal system and failure to implement the good laws. The later developments have taken place in the new democratic era beginning from 1991. The positive trends discernable from those developments includes i) a more pro-people interpretation of Constitution and other laws in particular by the Supreme Court for protecting the rights of people and promoting rule of law; ii) increasing emphasis on participatory justice in the form of legal aid scheme for access to formal justice and alternative dispute resolution for enhancing the relevance non-formal justice; iii) establishment of new institution of accountability like the Human Rights Commission and Independent Information Commission and reforms in existing institutions like Parliament, Judiciary and Anti-Corruption Commission. But such developments would not have much impact on efforts for deepening and widening rule of law unless and until democracy, non-discrimination und public awareness of their legal rights are firmly established in Bangladesh. Strengthening rule of law must aim at securing transparency, accountability, participation and effectiveness in governance system and public functionaries as well. This is an abridged version of a write-up by Dr. Asif Nazrul Islam, Professor of Law, University of Dhaka, to be published in a forthcoming book, 'Bangladesh at 40: Changes and challenges', to be edited by Prof Abdul Bayes, Dean of Faculty of Business Studies, Jahangirnagar University, Savar, Dhaka