Rule of law in the Constitution of Bangladesh: An analysis→ Md. Badruzzaman Badal
The expression “Rule of Law’’ has various shades of meaning and of allconstitutional concepts, the rule of law is the most subjective and value laden. The term ‘rule of law’ is used as opposite to ‘rule of man’. The rule of law is one of the basic principles of the English constitution and also accepted in the constitution of the USA and Bangladesh. In Blacks Law Dictionary rule of law is defined as ‘a substantive legal principle’. Laws are made for the welfare of the people to bring a balance in society, a harmony between the conflicting groups and at last to bring a peaceful environment for the progress of the people. The Magna Carta is the first foundation of the rule of law. Later on, in the seventeenth century in England after a struggle between the King and Parliament , the supremacy of Parliament over the King and all other bodies was ensured by the Bill of Rights, 1689. Thus the rule of law (law made by Parliament) in place of rule by man (King) came to be established.
Meaning of the Rule of Law
Rule of law is derived from the French phrase ‘La Principe de legality i.e the principle of legality, which refers to a government based on principle of law and not of men. In the thirteenth century Bracton, a judge in the reign of Henry III wrote –‘The king himself ought to be subject to God and the law, because law makes him king’. Edward Coke said that the king must be under God and law and thus vindicated the supremacy of law over the pretensions of the executives. According to A.V. Dicey, rule of law includes three things – (i) absence of arbitrary power, that is no man is above the law and the persons in authority do not enjoy wide, arbitrary or discretionary powers, (ii) equality before law, that is, every man, whatever his rank or position, is subject to ordinary laws and the jurisdiction of ordinary courts, and (iii) constitution is the result of the ordinary law of the land. Dicey’s concept of the rule of law contemplated the absence of wide powers in the hands of the government officials. According to him, wherever there is discretion there is room for arbitrariness.
Professor Wade gave three ideas- i) it expresses a preference for law and order within a community rather than anarchy, warfare and constant strife, ii ) it expresses a legal doctrine of fundamental importance, namely, that government must be conducted according to law and that in disputed cases what the law requires is declared by judicial decisions and iii) it refers to a body of political opinion about what the declared rules of law should provide in matters both of substance and of procedure. Nowadays the rule of law means the rule by a democratic law which is passed by a democratically elected parliament after adequate debate and discussion . The ‘rule of law’ according to Declaration of Delhi, 1959 relates to representative and responsible government; and there are certain minimum standards or principles for the law, including those contained in the Universal Declaration and the European Convention, in particular, freedom of religious belief, assembly and association, and the absence of retroactive penal law; An independent and impartial judiciary is a precondition to rule of law. Rule of law is meaningless unless there is access to justice for the common people . The courts must be accessible to all if rights are to be enforced. It is not sufficient that there exists a system of independent court, the cost of having recourse to the courts must be such that there is real access to the courts. The rich and powerful can always have their way, it is the poor and the weak who need the support of the law. The cost of litigation in Bangladesh is so high that most people cannot afford to seek remedies in courts. It is absolutely necessary to undertake a meaningful legal aid scheme to ensure access to justice without which it is idle to talk...
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