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Dhaka ,Sunday 8 April, 2018

How far is Rule of Law upheld in Bangladesh

Aiman R Khan: 

Bangladesh holds one of the lowest position regarding rule of law, according to the 2017-18 Index of the World Justice Project (WJP). It ranks 102 among 113 countries on the list which is topped by Singapore. Such statistics leads to a question, ‘How far is rule of law upheld in Bangladesh?’

The Supreme Court of Bangladesh issued a Rule Nisi following the PIL filed on 1st March 2017, by Human Rights and Peace for Bangladesh. The court asked to show cause as to why going on strikes or blockades notwithstanding court orders shall not be deemed illegal.

Respondents, among the others, the Chair of BTRC, the Bangladesh Transport Workers Federation and Bangladesh Transport Owners Association are liable to answer to the rule within three weeks. The PIL was brought in as a response to the two day strike called on by the Road transport workers federation following the death penalty of a truck driver.

This rule by the Supreme Court of Bangladesh once again reaffirmed the application of Rule of Law, one of the fundamental principles of law and democracy. The judgment demonstrated the existence of the principle in the country which is also emphasized in the Constitution of Bangladesh.

Rule of Law is a dynamic concept. It is Rule of Law which empowers citizens of a country with the equal rights they deserve. Rule of Law creates supremacy of the law so that no one can act arbitrary. With a fixed set of laws, no one can impose draconian laws over innocent citizens. As Martin Luther King, Jr. Said “It may be true that the law cannot make a man love me, but it can keep him from lynching me, and I think that’s pretty important.” It also limits the power of the authorities and makes them accountable. Article 27 of the Constitution of Bangladesh guarantees that all citizens are equal before law and are entitled to equal protection of law.

Sir Edward Coke is thought to be the first to introduce this principle when he said that “the king must be under God and law and thus vindicated the supremacy of law over the pretensions of the executives”. It was given a complete form by renowned political thinker A.V. Dicey through his book ‘The law of the Constitution’ (1885).

Furthermore, the rule of law is the principle that the law should rule in the sense that it applies to all conduct and behaviour and covers both private and public officials. The most important sub principles of the rule of law are that no one is above the law , that there is equality for all before the law, that the law is always applied and that legal redress is available through the courts.[1]

There have been numerous cases in Bangladesh including the latest one we discussed, which upheld rule of law principle. The Supreme Court in many occasions stepped forward to show that Constitution is the supreme law of Bangladesh. Few of the notable cases for the purpose of this article are given below:

♦ Earlier this year, there was a verdict sentencing 26 people including 16 former Rapid Action Battalion members to death in the Narayanganj seven-murder case. Seven people, including Narayanganj City Corporation panel mayor Nazrul Islam and senior lawyer Chandan Sarker, were abducted from the Dhaka-Narayanganj link road on April 27, 2014. Later, their bodies were found floating in the Sitalakhya.[2]

♦ Last year, the Parliament of Bangladesh announced the 16th amendment to its Constitution. It was supposed to empower itself to remove Supreme Court judges on the grounds of incapacity or misconduct. But to make rule of law prevail, this amendment was struck as unconstitutional and inappropriate. In its short verdict, the HC said, “The Commonwealth Latimer House Principles, 2003 about removal mechanism of judges, according to us, are best exemplified by the chief justice-led Supreme Judicial Council as incorporated in Article 96 by the Fifth Amendment to the constitution.”[3]

♦ In 2005, a High Court bench led by Justice Khairul Huq declared the Fifth Amendment to the Constitution of Bangladesh illegal. Justice Khairul Huq said. His arguments can be boiled down to three essential points. He says the Fifth Amendment is invalid because: a) It gives legality a series of declarations and promulgations that are themselves invalid. b) It deviates from the “original spirit” of the Constitution, as expressed in the preamble of the original version. c) It is like the Eighth Amendment, which was also declared unconstituional, two decades ago, by the Supreme Court.[4]

♦ In 2013, The Shahbagh movement called for the death penalty for those found guilty of war crimes committed in the Bangladesh war of independence from Pakistan in 1971, and also calls for resistance to the politics of the Jamaat-e-Islami party, deemed as “fundamentalist Islamist” by protesters .[5] Supporters of the trials were immensely disappointed by the different outcomes of the cases against Azad and Mollah despite being convicted of similar gruesome crimes.[6]The protesters rejected every rules of the court which was clearly against the rule of law. It was not until an amendment to the law which satisfied the protesters going against the court.

The application of Rule of Law in the United States is praiseworthy. The most case where judges upheld Rule of Law is the one where President Trump’s Muslim Ban was stopped. In early February this year, federal judge named James Robert issued a temporary restraining order that forces the federal government to stop enforcing a ban on entries to the US from seven majority-Muslim countries, as well as nearly all refugees. The ruling was issued in a lawsuit against the federal government by the attorneys general of Washington and Minnesota — one of 40 that have been filed against the ban so far. [7]

Rule of Law may have been emphasized in Article  27 but it falls flat in front of Article 93 and 141(A) of its Constitution. 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. However, such situations are rare.

One of the key features of the principle of Rule of Law is that it makes every citizen of a country bound by the law. As citizens, the requirement of abiding by the laws aware us about the risks of our action, what’s right or wrong? It makes us realize the consequences of our actions. A.V Dicey’s definition of Rule of law applies even today all around the world, ‘No one is above the law’, ‘Equality before the law’ etc. The courts being the guardian of law are responsible for safeguarding the interests of the citizens of a country. Governments come and go, but the supremacy of the law stays. The rule given by the court to show cause why it is not illegal to go against a court’s order is one of the few decisions that confirm the existence of Rule of Law in Bangladesh. Such decisions have set an example and if this trend continues, the application of the rule of law will be consistent.

References

[1] LawTeacher (2013), ‘The Rule of Law in UK’ [https://www.lawteacher.net/free-law-essays/english-legal-system/the-rule-of-law-in-uk.php?cref=1]

[2] New Age Bangladesh (2017), ‘Rule of Law upheld, says ministers’ [http://www.newagebd.net/article/7098/rule-of-law-upheld-say-ministers]

[3] S. Ashutosh, L. Shakhawat (2016) ‘ Bangladesh High Court scraps 16th amendment to Constitution’ [http://www.thedailystar.net/frontpage/hc-scraps-16th-amendment-1219480]

[4] Tacitaetarno (2010), ‘Supreme Court decides the fate of the fifth Amendment’ [https://rumiahmed.wordpress.com/2010/02/04/supreme-court-decides-the-fate-of-the-fifth-amendment/]

[5] The Hindu (2013) ‘Boycotting of businesses, banks, media outlets, social and cultural entities connected to Jamaat’

[6] Husain Z (2013), ‘What led a nation to Shahbag and where it leads to’ [https://cafedissensusblog.com/2013/03/10/what-led-a-nation-to-shahbag-and-where-it-leads-to/]

[7] Lind D (2017), ‘A federal judge just stopped the government from enforcing key parts of Trump’s visa ban’ [http://www.vox.com/2017/2/3/14505510/trump-muslim-ban-lawsuit]

Writer is an apprentice advocate of Dhaka Judge Court

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