Rule of Law in Bangladesh and UK

Rule of Law:

"No free man shall be taken or imprison or desseised or exiled or in any way destroyed nor will we go or send forhim, except under a lawful judgement of his peers and by the law of the land". ….MAGNA CARTA

“Often we mistake stability, in terms of security and economic activity, to mean a country is doing well. We forget the third and important pillar: rule of law and respect for human rights.” …Kofi Annan Former General Secretary of UNO

Rule of Law is one of the basic principles of the English constitution. This doctrine is accepted in the constitution of U.S.A. and Bangladesh. Now a day, rule of law is one of the most discussed subjects of developing countries. Developed countries and donor agencies always instruct the developing countries for sustainable development and good governance. Actually sustainable development and good governance mostly depends on the proper application of rule of law. Rule of law is the mechanism, process, practice, or norm in which all citizens before the law is required to maintain, and more generally it prevents the arbitrary use of power. It is a situation where the laws of a country are to be obeyed by everyone. In fact, everybody is bound to obey law.

Origin of the Concept:

“The term “rule of law” is used as opposed to the rule of man or king. The term 'Rule of Law' is derived from the French phrase 'La Principe de Legality' (the principle of legality) which refers to a government based on principles of law and not of men. In this sense the concept of 'La Principe de Legality' was opposed to arbitrary powers” - (Mollah, Rule of Law in Bangladesh: An Overview)

This concept of “Rule of Law” is very ancient, as it is explained in Aristotle‟s politics book chapter iii in England. The Idea that ‘the King is also subject to Laws of the Land’ has its origin in the Magna Carta of 1215 by King John.

In the 13th century Bracton, a judge at the time of Henry III in a way introduced in a way because the concept of rule of law is reflected in his following words:

“The King himself ought to be subject to God and the Law, because Law makes him King”

In the 17th century, Edward Coke is said to be the initiator of concept of Rule of Law 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.”

Professor A.V Dicey He was a British Jurist and Constitutional Theorist is said to be the initiator of the modern concept of Rule of Law because he developed the concept remarkably by his numbers of write-ups in this regard.

Dicey’s Concepts of Rule of Law:

Dicey in his classic book, “The law and the constitution” published in the year 1885, developed this theory. According to him there are three meanings to the said doctrine;

1. Absence of Arbitrary Power or Supremacy of law

2. Equality before law

3. Protection of citizens rights

Absence of Arbitrary Power or Supremacy of Law:

Dicey shapes that rule of law means the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power or wide discretionary power. Where no one has the right to abuse or misuse of power. Similarly, no one can be punished or made to suffer except for a breach of law proved by an ordinary court. For Example: article 33 of our constitution describes the right of citizens in arrest and detention.

Equality before Law:

Dicey says that there must be equality before the law or the equal treatment of all classes to the ordinary law of the land administered by the ordinary courts of law. In addition to that he says, in a state where rule of law is prevalent, no one is above the law and everyone is equal before the law regardless of social, economic, or political status. For Example: Article 27 of our constitution guarantees that all citizens are equal before law and are entitled to equal protection of law.

Protection of citizen’s rights:

The third concept of rule of law is that the constitution or law of the state should ensure the protection of right of the citizens of a particular state. For example, article 44 of the Constitution of Bangladesh provides that in case of violation of any of the fundamental rights enlisted in part III may go to the HCD and file a writ petition under article 102 to enforce the right.

Constitutional Provisions Regarding Rule of Law in Bangladesh:

·       The preamble to the constitution of Bangladesh that:

"It shall be fundamental aim of the state to realize through the democratic process a socialist society, free from exploitation - 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”

·       As regards „equality before law‟, Article 27 of the Constitution declares that:

“All citizens are equal before the law irrespective of their status and position and any person however high and mighty is amenable to the provisions of law.”

Modern Concept of Rule of Law:

This concept was developed by the International Commission of Jurists. Known as Delhi Declaration, 1959. According to this formulation-

“The rule of law implies that the functions of the government in a free society should be so exercised as to create conditions in which the dignity of man as an individual is upheld. This dignity requires not only the recognition of certain civil or political rights but also creation of certain political, social, economic, educational and cultural conditions which are essential to the full development of his personality”.

Sir Ivor Jennings says –

“In proper sense rule of law implies a democratic system, a constitutional government where criticism of the government is not only permissible but also a positive merit and where parties based on competing politics or interests are not only allowed but encouraged. Where this exists the other consequences of rule of law must follow”.

Unlike Dicey, Lord Bingham defined 8 sub-rules of Rule of Law:

• Law should be accessible, clear and predictable;

• Questions of legal right and liability should be decided by application of the law;

• The law of the land should apply equally to all, except when objective difference

   requires differentiation;

• Public officials should exercise their powers in good faith, and not exceed their powers;

• The law must protect fundamental rights;

• A method should be provided, at reasonable cost, to resolve civil disputes;

• Adjudicative procedures must be provided by the state should be fair;

• The rule of law requires the state to comply with its obligations in international law.

Rule of Law in the UK:

Absence of Arbitrary power/ Due Process of Law:

A notable case, Entick v Carrington (1765) 19 St Tr 1030, purported to establish the rule of law in the UK. This case held that a police officer, before entering into the house or private property of any person, must show the lawful authority to do so.  Although, in Riversidge vs. Anderson (1942) the use of some arbitrary administrative power was granted to the police during wartime reflects some, the Police and Criminal Evidence Act 1984 redefined the powers of police.

Equality before Law:

 Now in the UK, equality before law is required in every sphere of public life.  Although the Crown Proceedings Act 1947 has reduced the legal immunities and privileges of the Crown in its public capacity, there are still many situations where the Crown, to some extent other public bodies enjoy a privileged position in litigation but law regulates all these exceptions. Even now, the immunities of the monarch subsist at common law only if the courts permit them.

Protection of Citizens’ Right:

In Malone vs Metropolitan Police Commissioner (1979) the court refused to recognize any right to privacy at common law that would render telephone- tapping unlawful because no law contained the same as a citizens’ right then. However, the Human Rights Act 1998 ensures number of fundamental rights in the UK.