VOL 20 NO 157 REGD NO DA 1589 | Dhaka, Monday, December 24 2012

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Rule of law: Hurdles to long arduous journey

Published : Monday, 24 December 2012

M S Siddiqui discussing the state of rule of law

In the primitive age self-help was practised in case of any crime, like murder was returned by murder. With the advancement of civilisation, it changed. The state took the responsibility of prevention of crime and punishment. When the existing rules and values were not enough to settle a dispute, the necessity of a mechanism like law was felt. In application of a law and interpretation of it, the court considers the moral aspect. Many cases can be decided under an existing law, but some cases are un-decidable at any given time. For, that society is complex and changing always. Moral or socio-political environment helps sustain a legal system of a state or community. Not the codified laws but the legal environment of a state tells about the overall standard of morality in a society. From the legal point of view no citizen has any right to rebel against constitutional rule, but moral argument can provide serious justification to defy some constitutional rules. Ethics does work like marrow in bone to make it strong and less fragile, and, on the other hand, like flesh and skin over bone to make it perfect and cute. Here law is the bone, the fundamental structure, without which ethics cannot keep itself up. Morality is the only source through which a man can develop in himself the heavenly qualities like love, affection, feelings, respect and appreciation of others in the society ..without morality, no democratic, judicial and administrative values and institutions in any society or nation can be developed and nurtured. It might seem primitive societies had no structure of political rule, because they had no government in the formal sense, but they were living in a social system. The social system is the primary form of state.

The human beings emerged from the subhuman state a million or more years ago. Primitive natives believed in super nature. What kept the community together was the fear of the unknown, of strange spirits that might punish men. But when law started its independent journey, it granted religion and had relied on religion heavily. A sovereign country is founded on the principles of liberty, democracy, respect for human rights, fundamental freedoms and the rule of law. It has three organs -Parliament, Government and Judiciary. The most important asset of a government is the public trust. The good element of rule of law are clarity, publicity, and stability that are required for the public to know what the law is and what conduct is permitted and prohibited. The law must be comprehensible and its meaning sufficiently clear, publicised and explained to the public in plain language, for them to be able to abide by it. This is one of the most basic preconditions for achieving and maintaining rule of law in a society. The supreme law of a nation is the constitution. Usually the preamble to a constitution is the philosophy of the nation. Because, it contains those ideals and principals, on the basis of which the whole structure of the constitution is erected. The objectives and ideas of the State and the government of Bangladesh have been expressed in the preamble of the constitution. The declared objectives are secure justice, liberty, equality and fraternity. Bangladesh has managed to maintain the parliamentary form of democracy with a more or less fair election mechanism. A long list of elements favourable for democracy can be found in Bangladesh-ethnic homogeneity, high levels of political participation, democratic aspirations, a plethora of political parties, a growing middle class, moderate rates of economic growth, a vibrant civil society, a well-written constitution, periodic elections, an elected parliament, and relatively free media. But it needs to establish as separate organs the executive, the legislature and the judiciary. This is necessary for ensuring transparency and accountability and enabling different branches to carry out their respective duties. The Bangladesh constitution originally was intended for this separation, but as a result of widespread corruption, elected leaders sought to control this wing of government as well. Widespread poverty and illiteracy limits the ability for the Constitution to guarantee equal protection of all Bangladeshi citizens by law. The provisions of the original constitution of 1972 were more or less conducive enough to ensure rule of law in Bangladesh. The Article 33 confers three constitutional rights or safeguards upon a person arrested. Sub articles (1) and (2) stipulate: He or she cannot be detained in custody without being informed, as soon as possible, of the ground of his arrest. An arrested person has the right to be produced before the nearest magistrate within 24 hours and cannot be detained in custody beyond the period of 24 hours without authority of the magistrate. He or she have the rights to consult and be defended by a legal practitioner of

his choice and entitled to fair trial. But black provisions were inserted into the constitution through the second amendment plugging all the possible way to ensure rule of law. Preventive detention means detention of a person without trial and without conviction by a court, but merely on suspicion in the minds of the executive authority. Speedy Trial Court have been established under the Speedy Trial Tribunal Act, 2002, which has been extended several times and is now set to expire in June 2014. Under this Act, special tribunals get assigned certain cases such as murders, vandalism, and extortion, and must dispose of them within 90 days with a possible extension of 30 days in special circumstances. The Bangladesh Telecommunication (Amendment) Act of 2006 was passed by Parliament in February 2006, which added Section 97A to the Telecommunication Act 2001, allowing the government to engage in telecommunication surveillance and intelligence gathering, such as tapping mobile or land phone lines, without judicial oversight. Section 97B of the Act allows information collected under Section 97A to be admissible evidence in trial under the Evidence Act of 1872. Bangladesh Parliament has passed many indemnity acts to prevent trial for certain crimes and defence forces, law enforcers and government officials are immune to many offences. Bangladesh does not have any Tort Act and tortious offences, particularly of the government and bureaucrats are out of jurisdiction of the court of law. The constitutional provision to establish the office of Ombudsman has not yet been followed and there is none to listen to grievances of common people. The Human Rights Report 2011 by the human rights organisation Odhikar mentions that there has been a decrease in the number of extra-judicial killings from 127 in 2010 to 84 in 2011, it seems that a shift is taking place, as citizens are placed outside legal protection and legal trials by terminating them. The state might have adopted this tactic because of the national and international outcry against extra-judicial killings. The recent decline in the number of extrajudicial killings can only be a temporary pause. The forced disappearances also increased in 2011. A total of 30 people disappeared. As the parliamentary bodies do not review law enforcement, there are some laws which are not being executed at all. The Ombudsman Act, 1980, and the Bangladesh Institute of Parliamentary Studies Act, 2000, among others, are two such laws which have never been enforced. Rule of law still remains a far cry. Because, all the black provisions of the constitution like emergency, preventive detention , ordinance-making power of the President, involvement of the executive in the judiciary, Article 70 to prevent the law-makers from speaking and voting against any decision of their own party still exist. A proposed 'audit act' has been remaining pending with the bureaucrats in the Ministry of Finance for last few years, an insurmountable stumbling block against the rule of law. The judiciary has been separated by the verdict of the Supreme Court but the administration, posting and transfer are under control of bureaucrats in the Ministry of Law. Appointment of higher court judges is

vested with the President with a provision to consult the Chief Justice. Again the President shall act only at the advice of Prime Minister except to appoint the Prime Minister. This means the real authority to appoint judges of the higher court remains vested with the Prime Minster and Bangladesh is under the autocratic rule of elected Prime Minister. Bangladesh is, in fact, ruled by Prime Minister in a broad sense and more specifically by bureaucrats in reality. Bangladesh is over-regulated having many law and rules but ill-regulated. All the government departments issue rules and regulations and these departments have no proper records on these rules. Sometimes, the rules and regulations even overlap jurisdiction of the original law. There is a project of World Bank to support compilation and publishing all the laws and rules on websites. The government is in the process to amend the Anti-corruption Commission Act to incorporate a provision necessitating prior approval of the government before proceeding with investigation against government officials. There was an attempt to reduce the scope of the Contempt of Court Act and reduction of punishment for contempt by bureaucrats. Bangladesh passed the Legal Aid Act, 2000 to address the limitation of citizens. Since the inception, the Legal Aid Directorate got allocation of Tk 38,589,600 and utilised Tk 20,044,602. it means the fund utilisation rate was up by 52 per cent to June 2010 since introduction of the Act in 2000. It could utilise about Tk 20 lakh or 2.0 million per annum only. This is very insignificant, as we see about 31 per cent or 50 million (5 crore) of the population live under poverty line. This is the scenario of expenditure. The Right to Information Act 2009 has been enforced and there is an Information Commission. There is no significant change in the situation so far and no designated official was posted there to reply to quarries of citizens. The assessment of rule of law is not a difficult one. Irrespective of countries with differing social, cultural, economic and political systems, the following indicators are considered to judge the status of rule of law. The fundamental principle of rule of law is Limited Government authority, Absence of corruption, Clear, publicised and stable laws, security and fundamental rights. The government authority is a far cry in our country as those are not effectively limited by fundamental laws and legislature. Moreover, the government is increasing its authority and power. There was a long pending constitutional obligation to separate the administration from judiciary, while it has been partially enforced through a verdict and close watch and supervision of the Supreme Court. The highest court had to intervene in each and every step of administrative action. Unfortunately, the bureaucracy revolted against separation of judiciary and the then government had to amend the Mobile Act to cover almost every aspect of citizens' life and entrust more power with administrative magistrates. This was a 'bribe' to bureaucracy for accepting the constitutional obligation and the verdict of the Supreme Court. The full independence of the judiciary requires amendment to many rules and regulations and financial independence of the Supreme Court as regulator of the justice delivery system. The government's power is to be effectively limited by independent auditing and review. But there is no

independent audit in Bangladesh and the government audit is not timely and effective and lacks transparency. This is like any other government department full of corruption and negligence. Bangladesh does not have any audit act to define the authority and responsibility of auditors. The audit objection or observation is not enforceable since there is no enforcing authority. A law of audit may address these shortcomings. Government officials have unlimited immunity and indemnity. They don't have fear of misconduct. This has made the officials more inefficient and less attentive to their job obligation. Everybody knows that economic system is in the process of globalisation. On the other hand, the legal system is also having global integration but Bangladesh is far behind the schedule and enjoying no benefit of globalisation of the legal system. Bangladesh has a more or less acceptable election system through the Election Commission having limited authority and unique 'independent and impartial' caretaker government. Apparently there is freedom of expression with the rapid expansion of print and electronic media, although the quality of media is questionable. Corruption is another barrier to the rule of law. The rich people can buy service of the judicial system. Corruption in government offices is more or less open. Misappropriation of public money is also widespread and rampant. Government offices are not willing to disclose the authority and obligation of any department, rather they tell the citizens of their obligation to the government. There is a practice of verbal interpretation of rules by the concerned bureaucrats. The rule changes with the change of officials. People having blessings of bureaucrats and ruling party enjoy the favour of interpretation of rules. The administrative proceedings are not open to public participation. There is no access to information and government makes laws keeping the citizens in the dark. The criminal investigation system is totally ineffective and reportedly in favour of criminals. There is hearsay that criminals are safe in police custody. Rather, the complainant citizens and witnesses are not safe and the state is unable to provide them safely. On the other hand, the Alternate Dispute Resolution (ADR) for civil litigations has not yet been made mandatory. The government has incorporated ADR into the Artho Rin Adalat Act but that is not effective because it is biased towards bankers. There is no ombudsman in Bangladesh to listen to aggrieved citizens against government officials but we have an act. The Human Rights Commission is working hard but hardly any positive outcome is there. The Information Commission has no fund and manpower to run it effectively, while consumers are not aware of the Consumers' Commission. Citizens are victims of custodial torture and death and crossfire without any redress. There are many injured Limons, Kaders and others. We somehow could know the fate of Limon and Kader (a university student), but what about the fish trader arrested and indicated for robbery along with Kader. Is he still in

jail? The National Human Rights Commission is trying their best but not equipped with legal, administrative support to function effectively. Every nation faces the perpetual challenge of building and renewing the structures, institutions and norms that can support and sustain a culture centred on rule of law. Bangladesh has a long way to go before establishing rule of law and such other practices. Before that, we need the government to change the mindset and let the citizens enjoy all their rights. Everybody should work together to introduce rule of law in Bangladesh. The writer is a part-time teacher at the Leading University and pursuing PhD in Open University, Malaysia. shah@banglachemical.com