Rule of law is about the degree—at one hand—to which there is political will and institutional capacity to ensure accountable government and to protect and deliver the rights of citizens, however these are defined—on the other—about the state’s ability to enforce the law and protect its citizens through the provision of security against different forms of threat. This relates to the extent to which those in power are constrained effectively by a pre-established and widely accepted set of rules of political engagement.
It is widely believed that well-functioning law and justice institutions and a government bound by the rule of law are important to economic, political and social development. The nexus between rule of law and development commands the rule of law not only as an end in itself but also as a means through which development goals can be attained sustainability and development outcomes can be reached to individual level effectively. This approach changes the concept of development and suggests a more comprehensive and effective way for realizing the rights of citizens and the distribution of national resources.
At the same time, the absence of the rule of law has been telling. The Post 2015 development agendas which are often called as the next generation MDGs includes Rule of Law, one of the most crucial component of development around the world. No low-income country such as Bangladesh— where the rule of law is lacking—could achieve a single MDG goal. In advanced economies too, those portions of the population denied access to justice suffer from higher levels of discrimination in education and other public services.
Concept of Rule of Law
The rule of law is the legal principle that law should govern a nation, as opposed to being governed by arbitrary decisions of individual government officials. It primarily refers to the influence and authority of law within society, particularly as a constraint upon behavior, including behavior of government officials. Rule of law suggests that every citizen is subject to the law—including law makers themselves. In this sense, it stands in contrast to an autocracy, collective leadership, dictatorship, or oligarchy where the rulers are held above the law.
Today, the concept of the rule of law is embedded in the Charter of the United Nations. In its Preamble, one of the aims of the UN is “to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained”. A primary purpose of the Organization is “to maintain international peace and security… and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.”
The Universal Declaration of Human Rights of 1948 recognizes that “… it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law…”
The concept of the rule of law consists of a number of distinct but interconnected elements, such as, the supremacy of the law, an independent judiciary, equality before the law, existence of a formal constitution, laws are subject to judicial review, access to a court of law, the principle of state liability, reliability and predictability, commensurate legal sanctions, rapid dispensation of justice, effective enforcement of law and so forth.
Concept of Development
Most of the scholars defined the development only emphasis on economic development. Though a nation’s total wealth increase can enhance the potential for reducing poverty but history offers a number of examples where economic growth can not ensure that similar progress of development. In some research it has been observed that though with a linkage of economic, social and environmental growth and development, it would not be sustainable unless and until it is constantly nourished by the fruit of human development. Human development following human rights and development is an unheeded topic of development; that needs a serious concern. It is very recent that Human Development has been attracted concentrations of development actors and agencies and that is a ‘matter of hope’.
The term sustainable development is very much popular and has been used all over the world though the notion is still new and rather a lack of uniformed interpretation. The most used and common definition of sustainable development is provided by UN World Commission of Environment and Development in 1987 and that stated that—development is sustainable if it meets the needs of present, without compromising the ability of future generation to meet their own needs. Only development—that could manage the balance among economic, social and environmental and human rights, and development—would be sustainable for long. On the other hand, disregarding one of them can threaten economic growth as well as entire development process.
Why Rule of Law is a
Prerequisite of Development?
A country’s commitment to the rule of law is an important determinant to its development trajectory resting upon its instrumental foundations and on intrinsic or deontological foundations. It is believed that where there is no rule of law there is no sustainable development. In the 2012 Declaration of the High-Level meeting of the UN General Assembly on the rule of law at the national and international levels, world leaders acknowledged the interrelation between the rule of law and development.
Rule of law has been recognized as a process through which other development outcomes are achieved, that determines which decisions are made, rules are adopted and enforced, and grievances and disputes are resolved. This approach recognizes that the rule of law is not just an end in itself, but that it also enables a broader range of development outcomes. A rule of law goal would signal the importance of the rule of law as an outcome of development on par with other outcomes such as the reduction of poverty and health, though it would require consensus on a particular function of the rule of law for development.
When rule of law is established, the most significant development can be observed in economic sector. The Index 2000 of Economic Freedom provides unambiguous confirmation of the importance of the rule of law to economic growth and prosperity. The rule-of-law indicators are highly predictive of per capita GDP, irrespective of other factors or the overall level of economic freedom. The rule of law is a critically important factor in determining which countries attract dynamic flows of global investment capital. And there is also evidence of a strong relationship between rule of law and employment. Available data from the Organization for Economic Cooperation and Development (OECD) allows a comparison between unemployment rates and Index rule-of-law scores for OECD members. The top quartile of OECD members in terms of rule of law had unemployment rates averaging about 6 percent in 2011. In addition, the series of Arab Human Development Reports, commissioned by UNDP from 2002 identified poor governance and failures to uphold the rule of law as serious constraints on human development progress.
How Rule of Law in connected to the Development?
Rule of Law includes respect, protection and realization of human rights. Constitutional security of human rights which are also recognized by international standards such as principle of equality before law, non discrimination, fair trial, liberty, economic & social justice, right to life, torture on cruel, inhumane & degrading punishment As concept of Development is intrinsically linked to human rights, enforcement of all this human rights can play an important role to development process.
Rule of law creates a perfect environment for free market and thus, ensures good business which ultimately results in economic development. Citizens will be motivated to invest if there is an assurance of successful return. Most economists would agree that governance is one of the critical factors determining the growth prospects of countries. The Principle of Rule of Law belongs to the main feature of good governance. By increasing accountability, transparency, people’s participation in decision making, ensuring independent judiciary & anti-corruption measures contributes to the effectiveness of public management which is the key elements of good governance. Many of governance conditions are also desirable for low corruption, democratic accountability, the rule of law and pro-poor service delivery. Good governance aim to promote governance capabilities that are market-enhancing.
Many facets of the rule of law form essential components of sustainable development. The rule of law provides the normative and institutional framework by which to enable the equitable realization of basic rights and fair access to benefits accruing from the resources available to the country and its society. It also helps to ensure stability, clarity, precision, predictability and transparency in public and private law processes including in contractual, commercial and foreign direct investment sectors.
When addressing the rule of law and democracy nexus, a fundamental distinction has to be drawn between “rule by law”, whereby law is an instrument of government and government is considered above the law, and “rule of law”, which implies that everyone in society is bound by the law, including the government.
Although government professes constitutional commitment to gender equality, this commitment does not reflect in the articulation of priorities women rights as still men dominate law-making, the administrative, judicial institutions & legal profession. However, rule of law promises equality & non-discrimination in the application of norms, the legal rules & judicial mechanism. Proper implementation of this design can be a tool for gender justice to redress inequality of power, wealth, resources & opportunities for securing substantive rights related to inheritance, property, maternity, work & labor.
Development is inherently political & politics refers to the process through which people can use their power over the use, production & distribution of resources. But the challenges toward proper implementation of these processes are that the legal frameworks are not politically neutral. Here rule of law can strengthen the role of law making agencies to shape the policies and pro public orientation as several principles of rule of law are particularly relevant for effective political participation of general people. For instance an independent judiciary free from being manipulated by executive power can ensure people’s freedom of expression. Personal integrity and security even for those who do not need to support the existing state power.
For a developing country, decentralization is an important aspect for public sector reform If the local authorities can be provided with the power of decision making for better quality and accessibility of local services and an independent and an impartial judiciary mechanism can be ensured at the local level to sanction corruption and abuse of power by local authorities to the national development, the development process will be speedier and more transparent.
When the law and order situation break down for the political violent environment then it destroys the capacity of professional and bureaucratic institution. Again, an inflammatory and violent political culture makes a traumatized and highly divided society. As a result, independent judiciary and accountability mechanism do not function properly. Consequently public lost their trust in the government and its institution If the state can ensure respect for the rule of law even in any kind of conflicting or violent situation then, judiciary can still be used to maintain a certain level of state accountability. Therefore, it can be said that, rule of law is an effective feature for rebuilding peace and regain confidence and trust in their government which will reinforce the development process.
The Bangladesh Scenario
Legal Basis for Rule of Law
The rule of law is a basic feature of the constitution of Bangladesh. It has been pledged in 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.”
In accordance with this pledge, the several positive provisions for rule of law have been incorporated in the constitution. Article 27 guarantees the equality before law and to equal protection of law. Article 31 guarantees the protection of the law and citizens to be treated in accordance with law. Moreover, a total of 18 fundamental rights have been guaranteed in the constitutional arrangement and their effective enforcement has been ensured in Articles 44 and 102. Article 7 and 26 impose limitation on the legislature that no law which is inconsistent with any provision of the constitution can be passed. 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 executive and legislative and can declare any of their actions void if they do anything beyond their constitutional limits. Right to be governed by a representative body answerable to the people has been ensured under Articles 7(1), 11, 55, 56, 57 and 65(2) of the constitution. All these provisions of constitution are effective for ensuring rule of law in Bangladesh.
In Idrisur Rahman vs. Bangladesh (61 DLR 523) the Apex Court held that the rule of law envisages the preeminence of law as opposed to anarchy or capricious dictates… it involves equal accountability of all before law irrespective of high or low status. The Apex court also observed in Blast vs. Bangladesh (60 DLR 176) that the law does not discriminate between an ordinary citizen and the functionaries of the state—however high they may consider themselves to be—because the law is always above them. The Supreme Court also observed in Advocate Sultana Kamal vs. Bangladesh (14 MLR 141) “Often Rule by Law is implemented in the name of Rule of Law. But there is a vital difference between Rule of Law and Rule by Law. In the case of Rule of Law the law is supreme and it is a bar to the abuses of power… on the other hand Rule by Law implies that law is a potent weapon of government to subdue the masses.”
Practice of Rule of Law in Bangladesh
In theory, our constitution ensures the normative basis for rule of law while the judiciary is set up to ensure justice and fairness to the citizens. Unfortunately the legal system isn’t the true reflection of our constitution. Access to law as well as equality before it is reserved for only those who are privileged. The government still uses the Special Powers Act of 1974 and section 54 of the Criminal Procedure Code to allow arbitrary arrest and preventive detention to harass political opponents and other citizens by detaining them without formal charges. In addition, the sweeping power of article 70 of the constitution that disables legislator to vote and exercise their freedom against the will of the party from which they are elected is a real hindrance to implement rule of law and democracy. Article 141(A) of the constitution empowers the president to declare emergency whenever he wishes. Furthermore, Administrative Tribunal has been kept outside the writ jurisdiction of the High Court Division under article 102(5).
To enforce Rule of law enforcement agencies are really important. But unfortunately in Bangladesh law enforcement agencies don’t have a good record over human right cases. In fact they serve the government as enforcers and enjoy the freedom to act arbitrarily and in the material interests of its own members. Extra judicial killing is another form of grave violation of rule of law and human rights. Rule of law does not permit any exercise of power arbitrarily or to punish any person without fair trial by court. However, persistent abuse of power and authority by the law enforcing agencies resulting extra-judicial killing of the citizens in the name of cross-fire/encounter giving rise to gross violation of fundamental rights.
The separation of higher judiciary from the lower judiciary which was a big issue for a long time at last has occurred by the end of 2007 but there are some political aspects which contradicts the separation of judiciary. Another repulsive aspect of our judicial system is the charge of corruption against our judiciary. Moreover, the poor people cannot reach before the judges only because of mobility to meet the charge required for going through the complicated process of litigation.
Juxtaposition of Rule of Law and Development in Bangladesh
Bangladesh was the original development “basket case”, the demeaning term used in Henry Kissinger’s state department for countries that would always depend on aid. Its people are crammed onto a flood plain swept by cyclones and without big mineral and other natural resources. It suffered famines in 1943 and 1974 and military coups in 1975, 1982 and 2007. When it split from Pakistan in 1971 many observers doubted that it could survive as an independent state. Among other challenges Bangladesh is now facing poor quality health and education services, with unequal access to those services among the poor, especially women; weak public sector institutions that inhibit economic advancement and prosperity; and environmental difficulties arising from global climate change and increasing population density
It is clear that the application of the principle of the rule of law is merely a farce in our country. Bangladesh is now facing the worst situation due to political unrest. The economic development of the country is greatly affected due to the political instability. In Bangladesh during the political turmoil occurred in first few months of 2015, it has been reported by BGMEA that shutdowns in readymade garments industry caused the loss of 20 billion US dollar. And a recent survey of the DCCI also showed that overall economic loss during a strike day was tk.16 billion.
Bangladesh is still poor and crowded. With the lowest labor costs in the world (textile workers make about $35 a month) it should be growing faster than China, not more slowly than India. It is badly governed, stifled by red tape and faces severe environmental problems. Bangladesh has not managed to attract high levels of foreign direct investment (FDI) and highly dependent upon foreign remittance inflows to take on the role of FDI.
And most importantly Bangladesh, at present, is a highly corrupted country. As of late, The Padma Bridge related corruption and the Hallmark Groups money laundering made a bad impression to the international community and foreign investment and credit has been enormously reduced which has a high impact on the economy of the country.
Rule of law has been mostly destroyed for want of transparency and accountability. One of the main reasons why Bangladesh diverges so significantly from good governance conditions is that its political system does not operate with formal and transparent rules for public officials that ensure their accountability to elected bodies. There is a large and growing gap between the reality of development politics and the policy prescriptions coming from good governance theory.
Present condition of rule of law in Bangladesh is not satisfactory. For overcoming the ambiguity and anomalies between rule of law and for sustainable development Bangladesh lacks independent and particular policy coherent with its development goals.
However, prospects for establishing society purely based on the democratic principle of the rule of law are not totally absent from the polity. Despite the failing to implement the principles of rule of law properly, Bangladesh has made notable success in its grass-roots development, such as, prolonged life expectancy, decreased poverty, increased literacy rate and GDP. For an effective amalgamation of rule of law into its development approach Bangladesh needs to comply with some—not limited but depends upon case to case— policies. Bangladesh should make the parliament effective and to let the law making body to do its due business in cooperation with each other government and opposition. It should reform the law enforcing agencies and police force to rid them out of corruption and to free them from political influence so that they could truly maintain the rule of law. It should create national unity and politics of consensus built around the basic values of the constitution, namely democracy, respect for each other human rights, tolerance, communal harmony and so forth.
The government must be committed to ensure the security of life and property of the people, protection of individual rights and the dissention of justice on the basis of the equality and fairness. On the other extreme, the opposition, civil society and social groups and organizations also have the moral obligations to help and cooperate with the government in this juncture so that the development, which is very dependent on rule of law, can be accelerated in full swing.