Rule of Law

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Rule of Law the principle that the process of government is bound up with the law, and that law is supreme. In specific operational terms, it envisages that a government in power must act according to law, and that by implication it gives every citizen remedies if his or her rights are infringed. The rule of law may, therefore, be said to prevail when the exercise of all forms of public authority is subject to review by the ordinary courts of law to which all citizens have equal access.

The pattern of the rule of law varies from country to country. The general principles ensuring the rule of law in England are mostly the results of judicial decisions determining the rights of private persons in particular cases brought before the courts as well as the natural rights of the Englishmen which have been declared in Magna Carta (1215), the Petition of Rights (1628), and the Bill of Rights (1689). English traditions, conventions, usage and the long history of the evolution of the English political institutions have moulded English awareness of individual rights which are as sacred and inviolable as the constitutionally written charters of many newly emergent nations. In most newly emergent nations they are incorporated and made part of the constitution.

Historical background During British rule in India establishment of rule of law was seriously hampered due to section 144 of the criminal procedure code and the preventive detention laws. The adapted interim constitution of Pakistan had no provisions foreshadowing the features of the Bill of Rights. Due to the unhappy experiences under the rule of law during British rule, lack of English tradition of democratic practices, and need for the protection of religious minorities there was a preponderance of views in favour of incorporating the Bill of Rights in the constitution of the country. Both the first constituent assembly and the second constituent assembly adopted oft-quoted liberties, with certain qualification, such as equality of opportunity and status, social, political, and economic justice, freedom of thought, expression, association, movement, belief, worship and faith; and civil liberties such as right to life, liberty and property were also granted. However, all these were granted with the usual qualifications and safeguards as found in most constitutions. With regard to civil liberty an important provision was incorporated to the effect that an individual could not be detained without being informed, 'as soon as may be' of the ground for such arrest and would not be denied the right of legal consultation and defense.

Moreover, such an individual was to be produced before the magistrate within 24 hours of his detention, and no further detention was allowed except on the order of the magistrate. Similar provisions were also adopted in the constitution of 1962. It seemed that democratic order of a limited government and rule of law was established in Pakistan. But in reality there were many restrictions, which had been imposed during British rule, continued later to curtail the civil liberties in Pakistan. Prohibitions of holding of public meetings or processions in a specified area, maximum punishment of transportation for life for alleged attempts to excite dissatisfaction against the government and restrictions on the press were allowed to continue under Section 144 of the Code of Criminal Procedure. But the most serious restrictions on the civil liberties in Pakistan were those imposed under the Security of Pakistan Acts, which provided for preventive detention.

Under the Preventive Detention Act the government was given the power to detain any individual with a view to preventing meetings, or acting against the government prejudicial to the defense or the security of Pakistan. The individuals, political parties, newspapers all came under the purview of the Security Act, and the government could take actions against any organisations in the name of protecting Pakistan's security or maintaining the public order. These were a serious abridgement of the fundamental rights of the people but were kept on the statute book due to potential internal and external threats to a newly independent country. So, during Pakistan period the declarations of rights in the constitutions were not only specified with certain qualifications but also had the preventive detention, whose very spirit seemed incompatible with a democratic order.

Bangladesh period Following liberation of Bangladesh in 1971 much of the features of the Bill of Rights were incorporated in the constitution with similar and usual qualifications. The fundamental rights enunciated in Part III of the constitution are borrowed from the constitutions of Pakistan (1956 and 1962) and the Indian constitution. As expected, they are restricted with familiar qualifications.

The rights granted under the 1972 constitution were the usual ones, such as equality of status, opportunity and religion, equality before the law; protection of personal liberty and life; safeguards against unreasonable arrest or detention, trial or punishment; social, economic and political justice; and freedom of expression. Bangladesh being a homogeneous country did not make any provisions for minority rights as enunciated in the constitutions of India and Pakistan. Article 27 established the English idea of legal equality or universal subjection of all classes to one law administered by the ordinary courts, as well as equal treatment under the law in all spheres of public life. The legal aspect of this doctrine is fundamental in any country, which is governed by the rule of law. It is manifested in Article 29, which guaranteed equal opportunity in public employment. Article 28 stipulated no discrimination 'against any citizen on the ground of religion, race, caste, sex or place of birth', indicating state's endeavours to grant social justice. The right to property, again with qualifications, was granted under Article 42(l).

The concept of limited government and rule of law was reinforced through Article 32 which guaranteed the inner core of fundamental rights, a person's right to life and liberty. This right indicates the absence of arbitrary powers of the executive and the promise for the individual right to liberty. It stipulates 'that no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land'. For the protection of individual liberty a citizen has the right to the protection of law and cannot be kept in custody without legal grounds for arrest, not be denied the right to consult or to be defended by legal counsel, must be produced before a court within 24 hours of arrest, and cannot be detained further without the order of a court. The higher courts were given the power to enforce these rights. They could, within their respective jurisdictions, issue certain writs such as habeas corpus, mandamus, prohibition, quo warranto and certiorari. However, article 47(2) specified in the First Schedule, which was made during the interim period and before the passing of the constitution, restricted the unfettered enjoyment of certain fundamental rights. But it is to be noted that the 1972 constitution of Bangladesh had no provisions which abridged the inner core of fundamental rights. The framers of the constitution seemed to have preferred fundamental rights without any safeguards in the form of preventive detention, or security act or provisions for emergency. So the absence of stringent safeguards and any provisions for declaring a state of emergency under which the fundamental rights would remain suspended and the courts would lose its power to enforce fundamental rights, made the concept of limited government and rule of law in the country quite effective.

It is evident from the above discussion that the constitution, without the familiar provisions of declaring a state of emergency, preventive detention or Special Powers Act, the framers of the constitution seemed to be determined to create an environment conducive to a free and democratic society. But unfortunately, their exuberance was short-lived and this situation did not last long. Within a year and a half, emergency provisions were added to the constitution. Soon the Special Powers Act and several other restrictive measures were adopted. The net result of all these changes and additions was that the original idealistic concept of a free society was diluted. By 1974, the constitution was a close copy of the Pakistan constitution of 1956, rather than an unqualified document for a free society.

The Special Powers Act, 1974 provides for preventive detention and speedy trial for effecting punishment of certain offences of a grave nature. Clauses 1 through 14 stipulated detention without trial, detention without warrant for a maximum period of 120 days, which could be extended if recommended by an Advisory Board provided by the Act. A person under detention, however, must be charge-sheeted within 15 days of his arrest. Though a person could not be detained for more than 120 days, in practice the government could easily re-arrest the individual and keep him under detention for another 120 days and so on. [Dilara Begum]