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Rule of law refers to an end state in which all individuals and institutions, public and private, and
the state itself are held accountable to the law, which is supreme. Laws must be consistent with
international human rights norms and standards, legally certain, legally transparent, drafted with
procedural transparency, and publicly promulgated. This end state requires equal enforcement and
equality before the law, independent adjudication of the law, fairness in the application of the law,
and avoidance of arbitrariness. Access to justicethe ability of people to seek and obtain a remedy
through informal or formal institutions of justiceis a mutually reinforcing component of rule of
law. The rule of law requires the separation of powers and participation in decision-making. Rule
of law is the ideal that states strive for; stabilization requires urgent focus toward this end.
In this paper I try to define the answer of the question. First I try to define rule of law. Then later
part I try to give brief description about how rule of law exercise in Bangladesh, England and USA.
Next I give a short conclusion about over all topic.
Rule of Law:
A principle of governance in which all persons, institutions and entities, public and private,
including the State itself, are accountable to laws that are publicly promulgated, equally enforced
and independently adjudicated, and which are consistent with international human rights norms
and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of
law, equality before the law, accountability to the law, fairness in the application of the law,
separation of powers, participation in decision making, legal certainty, avoidance of arbitrariness
and procedural and legal transparency." (Report of the Secretary General: The rule of law and
transitional justice in conflict and post conflict societies (2004))
Rachel Kleinfeld, who defines the concept in terms of five (different) goals of the ROL:
Judge Advocates need look no further than the U.S. Army doctrinal definition:
Rule of law is a principle of governance in which all persons, institutions and entities, public and
private, including the state itself, are accountable to laws that are publicly promulgated, equally
enforced, and independently adjudicated, and which are consistent with international human rights
principles.
This Army doctrinal definition is, to all intents and purposes, the same as the U.S. Government
(USG) interagency definition
The ROL principle can be broken down into seven effects
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The law can be readily determined and is stable enough to allow individuals to plan their
affairs
Individuals have meaningful access to an effective and impartial legal system
The state protects basic human rights and fundamental freedoms
Individuals rely on the existence of justice institutions and the content of law in the conduct
of their daily lives.
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1. Magistrates are performing dual function of both executive and judiciary which is not desirable
in the interest of justice.
2. The service of district and session judges, their transfer, promotion etc. are controlled not by the
Supreme Court but by the law ministry.
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. By
this provision many innocent people or citizen may arrested or become the victim and which is
contrary with 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
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.
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set aside an Act of Parliament. The duty of the courts is to apply and interpret legislation made by
Parliament. Over and above that, to uphold the rule of law, courts perform checks and balances on
the England constitution by subjecting government bodies to judicial review on the grounds of
illegality, irrationality and procedural impropriety which were laid down by Lord Diplock in the
CCSU case.
Separation of Powers
Lord Mustill has put forward that Parliament has a legally unchallengeable right to make
whatever laws it thinks right. The executive carries on the administration of the country in
accordance with the powers conferred on it by law. The courts interpret the laws, and see that they
are obeyed. Such a principle is believed to be a necessary condition for the rule of law in modern
society and therefore for democratic government itself. However, in a practical sense, the
principle does not operate in the same manner across different political structures. In English
constitutional context, the three agencies of power seem to fuse with each other. Yet, to uphold
the rule of law, the judiciary acts as a balancing power to scrutinize the other two powers on legal
accountability. It is such balance from the courts that arouses hot debates on the conflict between
democracy and the rule of law. To get a basic idea of such conflict, we shall proceed to the concept
of representative democracy in England.
Representative Democracy and Parliamentary Sovereignty
It is said that England has a representative democracy. This is because the House of Commons is
elected by citizens, and that government Ministers are required to be Members of either one of the
Houses of Parliament. Thus, it is often claimed that Parliamentary sovereignty and government
policies represent the will of the people and that Parliamentary sovereignty has a democratic
justification. This means that an Act of Parliament conferring power to the executive represents
the will of the people. However, Dawn Oliver thinks that democracy in the England is different to
that of other Western political structures. We begin to stroll into the argument that when the courts
subject government bodies to judicial review, the rule of law begins to come into conflict with
democracy. Interestingly, those who are skeptical tend to extend hostility towards the judges and
the legal profession on the basis of the composition of the judiciary.
Appointment of Judges
In England, judges are appointed by the Queen, who seeks opinions from the Prime Minister, who
in turn seeks advice from the Lord Chancellor. The problem lies on the representativeness of the
judiciary to the population at large. Judges are mainly overwhelmingly white, male and from a
narrow social and educational background There are also very few members from ethnic
minorities. Hale also holds the view that In a democratic society in which we are all equal citizens,
it is wrong in principle for the authority of the courts to be wielded by such a very unrepresentative
section of the population. As the courts hold a duty to interpret the law and uphold human rights,
skeptics doubt whether judges from such a narrow background qualify to perform such duty in an
appropriate way free of bias and prejudice. Thus, whether the composition of the judiciary is
suitable in upholding the rule of law still remains in doubt. Nevertheless, upon establishing the
Human Rights Act 1998, the role of the courts has become more significant.
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process of law) and Fourteenth Amendment (Nor shall any state deprive any person of life,
liberty or property, without due process of law).
Conclusion:
In conclusion, the constitution, in any county, has a major impact on judicial system. As a result,
the distinctive constitution has had influences on judicial system also. The fact that constitution
grants a lot power to parliament is obvious .In other words, to some extent, parliament can set
aside any provisions of the rule of law if it wishes. Although, the ambiguity, in the principles of
the rule of the law exists by virtue of parliamentary sovereignty, the rule of law has also achieved,
to some extent, its goals. So we can say that no country can ensure rule of law hundred percent.
But every country try to ensure rule law by establishing democracy, following constitution,
ensuring fundamental rights, human rights, separation of power and independence of judiciary.
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