Challenging the Idea of the Rule of Law

According to the topic,it can be seen that to run the society peacefully, it needs some rules and regulations by law. Nobody is ‘above the law’ and it is clearly stated in constitution that ‘all citizens are equal before law and are entitled to equal protection of law.’

No freemen shall be taken or imprisoned or disseised or exiled or in any Way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land. [1]

The rule of law does not have a precise definition, and its meaning can vary between different nations and legal traditions. Peter joyce explained that the rule of law is a fundamental constitutional principle in liberal democracies. It asserts the supremacy of the law as an instrument that governs both the actions of individual citizens in their relations with each other and also controls the conduct of the state towards them. [2]

The rule of law suggests that citizens can only be punished by the state using formalized procedures when they have transgressed the law and that all citizens will be treated in the same way when they commit wrongdoings. The rule of law, therefore, provides a powerful safeguard to the citizens against arbitrary actions committed by the state and its officials, and is best guaranteed by a judiciary which is independent of the other branches of government.

I would examine this essay in four parts; firstly, what is the status of the rule of the law in the operation. Secondly, the function of the rule of law, and in what ways that should not be subject to the biases and prejudices of those who enforce it. Thirdly I will criticize the rule of law and finally will try to give some effective solutions based on my thesis.

Sources of law

3

Law of Bangladesh is primarily in accordance with the [English legal system] although since [1947], the legal scenario and the laws of Bangladesh have drifted far from the West owing to difference in socio-cultural values and religious guidelines. In November [2007], Bangladesh has successfully separated the Judiciary from the Executive but several black laws still influence the rulers in creating Special Tribunals in using several black laws including the Special Powers Act. Bangladesh People(s) has 23 Fundamental Rights. It Approve by The Constitution of Bangladesh and from article 26 to 47A depicts the fundamental rights in Bangladesh which secured the right of the citizen.

# Laws inconsistent with fundamental rights to be void (Article-26)

# Equality before law (Article-27)

# Discrimination on grounds of religion, etc. (Article-28)

# Equality of opportunity in public employment (Article-29)

# Prohibition of foreign titles, etc. (Article-30)

# Right to protection of law (Article-31)

# Protection of right to life and personal liberty (Article-32)

# Safeguards as to arrest and detention (Article-33)

# Prohibition of forced labor (Article-34)

# Protection in respect of trial and punishment (Article-35)

# Freedom of movement (Article-36)

# Freedom of assembly (Article-37)

# Freedom of association (Article-38)

# Freedom of thought and conscience, and of speech (Article-39)

# Freedom of profession or occupation (Article-40)

# Freedom of religion (Article-41)

# Rights of property (Article-42)

# Protection of home and correspondence (Article-43)

# Enforcement of fundamental rights (Article-44)<

# Modification of rights in respect of disciplinary law (Article-45)<

# Power to provide indemnity (Article-46)

# saving for certain laws (Article-47)

# Inapplicability of certain articles (Article-47A)

The concept of the rule of law [4]

Identify what components of the quotes and comments you think are essential to a definition of the rule of law, and which you think are optional or aspirational. Be prepared to explain your reasoning.

Consider any important aspects of the rule of law that you do not see reflected in the quotes and comments.

Form groups of four to five participants. Members of each group should use their individual understanding of the rule of law to create a shared group definition of the rule of law that all members of the group can agree upon.

Share the group’s definitions with other participants in the Dialogue.

Compare and discuss similarities and differences among the group definitions.

Identify components of the rule of law that were shared by all the groups.

The rule of law and separation of power [5]

All the elements of the rule of law canvassed so far are compatible with a ‘formal’ or ‘thin’ conception of the rule of law, meaning by this a conception of the rule of law which places no constraints on the content of law and is therefore compatible with great iniquity in the law.There are many who defend such a minimalist conception – Dicey, Hayek and Raz are examples. By contrast, those who hold to a substantive conception of the rule of law believe that a commitment to the rule of law entails, in addition to the formal checks on power already mentioned, certain substantive moral constraints on the exercise of state power. Cameron Stewart explores this view in his article. On the substantive conception of the rule of law, the supremacy of law over will necessarily involves also the supremacy of law over parliamentary will: democratically elected majorities should also be subjected to the law. In effect, the rule of law is seen as a ‘higher’ law, capable of trumping parliamentary sovereignty – a notion with obvious roots in the natural law tradition. Trevor Allan, for instance, argues that legislation which seeks to override fundamental human rights, such as the rights to due process, equality and freedom of speech, is incompatible with the rule of law. He takes this view because he believes the rule of law is based on the ideal of consent to just laws. Since laws which violate fundamental human rights would not command the free assent of citizens, they are, on his view, incompatible with the rule of law.

Challenge the idea of rule of law

In 1959, an international gathering of over 185 judges, lawyers, and law professors from 53 countries, meeting in New Delhi and speaking as the International Commission of Jurists, made a declaration as to the fundamental principle of the rule of law. This was the Declaration of Delhi. They declared that the rule of law implies certain rights and freedoms, that it implies an independent judiciary, and that it implies social, economic and cultural conditions conducive to human dignity. The Declaration of Delhi did not, however, suggest that the rule of law requires legislative power to be subject to judicial review. [6]

The influential political theorist Joseph Raz identified several principles that may be associated with the rule of law in some (but not all) societies. [7] Raz’s principles encompass the requirements of guiding the individual’s behaviour and minimizing the danger that results from the exercise of discretionary power in an arbitrary fashion, and in this last respect he shares common ground with the constitutional theorists A. V. Dicey, Friedrich Hayek and E. P. Thompson. Some of Raz’s principles are as follows:

Those laws should be prospective rather than retroactive.

Laws should be stable and not changed too frequently, as lack of awareness of the law prevents one from being guided by it.

There should be clear rules and procedures for making laws.

The independence of the judiciary has to be guaranteed.

The principles of natural justice should be observed, particularly those concerning the right to a fair hearing.

The courts should have the power of judicial review over the way in which the other principles are implemented.

The courts should be accessible; no man may be denied justice.

The discretion of law enforcement and crime prevention agencies should not be allowed to pervert the law.

According to Raz, the validity of these principles depends upon the particular circumstances of different societies, whereas the rule of law generally “is not to be confused with democracy, justice, equality (before the law or otherwise), human rights of any kind or respect for persons or for the dignity of man”. [8] Dicey emphasized three aspects of the rule of law: no one can be punished or made to suffer except for a breach of law proved in an ordinary court; no one is above the law and everyone is equal before the law regardless of social, economic, or political status; and the rule of law includes the results of judicial decisions determining the rights of private persons.

Criticism of the rule of law:

The very term “rule of law” suggests that the law itself is the sovereign, or the ruler, in a society.  As an ideal, the rule of law stands for the proposition that no person or particular branch of government may rise above rules made by elected political officials. These laws reflect the morals of a society, and in a Western democracy they are supposed to be pre-established, formalized, neutral, and objective. Everyone is subject to their dictates in the same way. The rule of law, therefore, is supposed to promote equality under the law. Critics of the rule of law, however, have noted that this system creates a ruling elite that has the power to manipulate through the law. As Harvard law professor and leader of the critical legal studies movement, Morton J. Horwitz, suggested, [9] “By promoting procedural justice [the rule of law] enables the shrewd, the calculating, and the wealthy to manipulate its forms to their own advantage.” Scholars who agree with this statement see the law as “indeterminate,” meaning that the law has no clear or objective meaning. Consequently, the law cannot possibly serve as an effective barrier to the government’s abuse of power because power structures in society, not the law itself, determine the outcome of legal issues and problems.  Because judicial interpretation and enforcement of the law is influenced by the ruling elite, the rule of law does nothing more than legitimize already existing legal relationships and power structures. The rule of law theory has therefore gained an undeserved legitimacy in the modern world. Partly responding to the criticism outlined above, some scholars have commented that part of the problem with the rule of law is its narrow conception. Instead of viewing the rule of law solely as a judicially focused book of rules, scholars should focus more on the informal and institutional constraints that restrict governments. For example, the moral and tradition-based restraints that societies impose on the government should be given greater consideration in reforms and the overall conception of the rule of law. These aspects of the rule of law are not subject to the same type of manipulation. This broader conception may help avoid situations in which the legal elite manipulate laws because by its definition the rule of law is not solely dependant on the judiciary, which often reflects the power of the elite, for its power.

Proposed Solution:

After reading several articles on various journals, books and searching on internet it come to my mind that Bangladesh has not taken steps towards democracy or improvement of the rule of law. It has been noticed that in the lower courts, it is the civil servants that exercise judicial power. This allows the police to get whatever they wish from these courts where no proper scrutiny of the papers filed by the police takes place.

The corruption of the Bangladeshi police is frequently experienced by ordinary people in the country as it is often not the law but money that is behind arrests and illegal detentions. The guilty can escape through payments to the police with the innocent substituted in their place. Moreover, the use of torture is endemic within the policing system of Bangladesh. The police are also utilized to threat the opponents of the government and to use violence to control political or trade union demonstrations. The most dismal aspect of human rights in Bangladesh is that there is no means by which victims can make complaints and have them investigated. The internal process of discipline within the police force itself does not exist. Even in cases where an inquiry begins due to public agitation, investigations are commonly characterized by corrupt interventions. Fundamental reform of the police is not only a necessary condition for democracy and the rule of law but also for the maintenance of any form of rational order within the country.

During the last BNP led government initiated the rapid action battalion (RAB) force to deal with increased crime, is itself engaged in serious crimes, such as extrajudicial killings, torture and abductions. The concept of the control of crime is not to improve criminal investigations and to institute prosecutions but to deal with alleged criminals by extralegal means. This policy is an acknowledgement that the law enforcement system has collapsed under the weight of corruption. Since the law cannot be imposed through legal means due to institutionalized corruption, a more naked use of force is now used. The RAB, in effect, simultaneously acts as informers, judges and executioners. In recent times, the chief justice and the attorney general have also come under severe criticism for being politicized and biased. All these factors cause tremendous confusion to the people and disrupt the development of more rational forms of administrating society and ensuring security.

Conclusion:

Most of the people of Bangladesh live under a certain poverty level and few people are aware of law and law enforcement. It’s one of the main reason that many people seeking justice is deprived from justice. There are several reasons for that, the procedure to get justice is a lengthy process, and many crime/violation of rule is overlooked for socio-political reason. Sometimes it can be seen that we cannot get justice only because of involvement of influential person and also lack of confidence on law enforcement authorities. Sometimes witness of crime denies assisting for keeping him/her away from a hassle. Last but not least, most of the time injustice has taken place due to weak information report by Police. Laws are often incapable of providing definitive standards of behavior because of their complex structures and unavoidable ambiguities in language. As mentioned previously, this often leads to the unpredictable application of the law. Critics of the rule of law claim that due to the indeterminacy in the rules, at no time is a person fully protected within a sphere of individual freedoms. Consequently, one can never be sure that their actions are legitimate or their freedom justified. Furthermore, the rule of law may not be tied to general notions of justice or fairness. The rule of law is therefore sometimes criticized for tolerating extraordinarily unjust rules, rules that undercut the theoretical justification of the rule of law—the promotion of liberty and restrained government.