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Provisions for and against the rule of law in the Constitution of Bangladesh
SATURDAY, AUGUST 10, 2013 08:03 PM
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Barrister Nazir Ahmed,UK

Introduction

Rule of law is an internationally recognised concept. Accordingly, Bangladesh recognises rule of law as a basic feature of its Constitution. In Anwar
Hussain Chowdhury v Bangladesh 1989 BLD, the Supreme Court of Bangladesh recognised the rule of law as one of the basic features of the
Constitution. In spite of this, there have been many contradictory provisions in the Constitution that go against rule of law. We aim to identify the
relevant provisions of the Constitution ensuring rule of law and then we will attempt to analyse the contradictory provisions of the Constitution that go
against the concept of rule of law.

The place of rule of law in the Constitution of Bangladesh

In fact, the term ‘rule of law is well placed in the Constitution of Bangladesh. Its Preamble states the ‘rule of law’ as one of the objectives to
be attained. The Preamble, inter alia, says ....it shall be a fundamental aim of the State to realise through the democratic process a socialist society,
free from exploitation â€" a society in which the rule of law, fundamental human rights and freedom, equality and justice, political, economic and
social, will be secured for all citizens.​

In accordance with the above pledge, the following positive provisions for rule of law have been incorporated in the Constitution:

Firstly: Article 27 guarantees that all citizens are equal before law and are entitled to equal protection of law. Article 27, therefore, forbids
discrimination in law or in State actions.

Secondly: Article 31 guarantees that to enjoy the protection of the law, and to be treated in accordance with law, and only in accordance with law, is
the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Bangladesh, and in particular no action
detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law. Article 31 imports the concept
of due process, both substantive and procedural, and thus prohibits arbitrary or unreasonable law and State action.

Thirdly: around 18 fundamental rights have been guaranteed in Part III of the Constitution and constitutional arrangement for their effective
enforcement has been ensured in Article 44 (right to move to the High Court) and 102 (power of the High Court to take appropriate action upon
application).

Fourthly: Article 7 and 26 impose limitation on Parliament that no law which is inconsistent with any provision of the Constitution can be passed.
Article 7(2) confirms that if any other law is inconsistent with the Constitution that other law shall, to the extent of the consistency, be void.

Fifthly: In accordance with Article 7, 26 and 102(2) of the Constitution, the Supreme Court exercises the power of judicial review whereby it can
examine the extent and legality of the actions of both the executive and legislature and can declare any of their actions void if they go beyond their
limit.

Sixthly: the people’s right to be governed by a representative body answerable to them has, directly and indirectly, been ensured under Article
7(1) [all power belong to the people, Article 11 (The Republic shall be a democracy where, among others, fundamental human rights shall be
guaranteed), Article 55 (Cabinet), Article 56 (Ministers), 57 (tenure of the office of the Prime Minister), and Article 65(2) [composition of Parliament] of
the Constitution.

Contradictory provisions to the rule of law

The following are the contradictory provisions in the Constitution which go against the concept of rule of law:

Emergency provisions:

Article 141A empowers the President to declare emergency whenever he wishes. Except in war time situation, declaration of emergency cannot be
supported. By declaring emergency in peace time the government can suspend fundamental rights of the citizens, limit the Supreme Court’s
jurisdiction and suppress the opposition movement. This arbitrary exercise of power by the government is contradictory to the concept of rule of law.
Sheikh Mujibur Rahman’s government used this emergency power to suppress the opposition in the early 1970s, and General Moin U Ahmed and
Dr Fakruddin Ahmed used the loophole of this emergency provision to suppress the political parties and prolong their term in 2007.

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Provision for ordinance making power

Ordinance making power can be given in emergency situations like national crisis, national calamity, and serious economic turmoil etc. In those
circumstances, there may be needs for immediate legislative actions. However, Article 93 of the Constitution allows the President to promulgate
ordinances anytime during the recess of Parliamentary session. In practice, a huge number of ordinances are promulgated during this time by-
passing Parliament. Parliament is the recognised democratic law making body. But ordinance made laws are fully undemocratic, for they are made
by the executive at their will. This type of law making process is contradictory to the rule of law.

Administrative tribunal

The presence of administrative tribunal is not unknown in the developed democratic countries of the world. There are various reasons for the
existence of these types of tribunals, such as quick relief and speedy proceedings for service matters requiring special treatment and experience.
However, there should be a transparent procedure, and judicial control and supervision in those proceedings. Administrative tribunals should not be
a substitute for fairness and justice provided by the independent court of laws. Article 117 of the Constitution provides for the establishment of
administrative tribunal. There is, however, no clear provision as to who would chair the tribunal, what would be their qualification and what would be
their security of tenure. The executive plays key role in the administration and judicial process of the tribunal. This tribunal has been kept outside the
writ jurisdiction of the High Court under Article 102(5). It has also been kept out of the supervisory jurisdiction of the High Court. These provisions
are, therefore, contradictory to the concept of integrated judicial system and independence of judiciary - an important ingredient of rule of law.

The provision for preventive detention

Preventive detention can only be supported in the time of emergency. But Article 33 of the Constitution allows the government to use this measure in
peace time. In reality, every government has used the Special Power Act 1974 as a permanent law to detain people, mainly of opposition party
background, without charge or trial. Since a huge number of persons are detained every year without trial purely for political purpose, the right to
protection of law, protection of right to life, and personal liberty and safeguards as to arrest and detention as guaranteed in Article 31, 32, and 33
cannot be ensured. Therefore, the provision allowing preventive detention in peace time under Article 33 is against the concept of rule of law.

The provision of Article 70.

Article 70 blocks all positive measures in the Constitution for ensuring rule of law in many ways. Firstly: the government, avoiding debates and
criticism, tends to make laws by ordinance and later get those ordinances approved under sweeping power of Article 70. Secondly: rule of law, as
opposed to rule of individual or party, means rule of that law which is passed in a democratically elected Parliament after adequate debate,
deliberation and discussion. But because of Article 70 neither an MP can put forward his strong dissenting opinion nor can he/she vote against the
party line. As a result, each and every Bill of the government, no matter how undemocratic and unfair it may be, gets quickly passed. Thirdly: the
democratic right of the citizens to be governed by a representative body answerable to them cannot be ensured due to Article 70. Though Article 55
says “The cabinet shall be collectively responsible to Parliament,â€​ this provision of collective responsibility has been meaningless because of
Article 70 as the cabinet always knows that it is not going to be defeated by motion of no-confidence, for no member (MP) of the majority party has the
right to vote against the party line.

The independence of judiciary

The most important precondition for ensuring rule of law in a country is to have an independent and impartial judiciary. Although the apex judiciary is
said to be independent, the reality and practicality do not suggest so. Despite Article 95(2)(c) says...such other qualifications as may be prescribed
by law for appointment as a Judge of the Supreme Court,â€​ there has been no set and clearly defined appointment procedure introduced yet for
appointing judges in the Supreme Court. Judges are frequently appointed on political consideration as opposed to merit. Superseding judges have
become norms. There has been no separate secretariat for the Supreme Court established yet. Thus, the Supreme Court is dependent on the
executive for its secretarial tasks. The subordinate judiciary is still executive dependent. But in order to establish rule of law the subordinate judiciary
must also be independent and impartial. It was held, in Chandra Mohan V U.P AIR 1966 SC 1987 1993, that “It is the Subordinate Judiciary who
are brought most closely into contact with the people, and it is no less important, perhaps indeed even more important, that their independence
should be placed beyond question.​

The provision of Article 47

Although Article 7 and 26 impose limitation on Parliament that no law which is inconsistent with any provision of the Constitution can be passed, Article
47 saved certain laws and gave protection to some laws which, on its face, are inconsistent to the various provisions of the Constitution. Of those
saved and protected laws, the most dangerous are the laws passed in relation to the war crimes and crimes against humanity introduced by the First
Amendment of the Constitution. Initially these laws were made with a view to try identified Pakistani army officers arrested on the suspicion of war
crimes. These laws were amended in 2009 to include ordinary citizens and group of citizens of Bangladesh. Now any citizen of Bangladesh can be
arrested under this law. The black side of this law is that once someone is arrested on suspicion of war crime and crime against humanity, he will be
denied of his fundamental constitutional rights (i.e. fundamental rights and the right to apply to the High Court for judicial review). As any citizen can
potentially be targeted by this law, there is a strong possibility that it can be used politically in future. As a result, innocent people may be victims –
despite being ciitizens of the country by birth they will be denied of their inherent fundamental rights of the countrys constitution All these are contrary
to the principle of rule of law.

Quota system

The recruitment in the civil service of the Republic based on existing 55% quota system as opposed to merit is directly contradictory to Article 27 and
29 which respectively guarantee equality before law and equality of opportunity in public employment. Although Article 28(4) allows some special

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 provision for women, children and backward section of citizens, the 55% quota is totally unfair, unjust and unreasonable. To some extent, it amounts
to a mockery to merit and the principle of equality and non-discrimination. Therefore, the existing unfair and unreasonable quota system is against the
concept of rule of law.

Conclusion

There are, no doubt, some positive provisions in the Constitution of Bangladesh for ensuring rule of law. However, those positive provisions have
been outweighed by the above negative provisions. Therefore, the whole Constitution should be reviewed by an independent penal of experts to
assess the impact of the contradictory and negative provisions on the common people of the country, and then recommend for appropriate
amendments.

Barrister Nazir Ahmed FRSA is an UK based legal expert, analyst, writer and author. He can be reached via e-mail:
ahmedlaw2002@yahoo.co.uk

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