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Introduction:

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:

making the state abide by the law

ensuring equality before the law

supplying law and order

providing efficient and impartial justice

Upholding human rights.

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

Individuals are secure in their persons and property

The state monopolizes the use of force in the resolution of disputes

The state is itself bound by law and does not act arbitrarily

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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.

Rule of Law in Bangladesh:

In accordance with the above pledge, the following positive provisions for rule of law have been

incorporated in the Constitution:

Firstly, Article 27 guarantees that all citizens are equal before law and are entitled to equal

protection of law. Article 27, therefore, forbids discrimination in law or in State actions.

Secondly, Article 31 guarantees that to enjoy the protection of the law, and to be treated in

accordance with law, and only in accordance with law, is the inalienable right of every citizen,

wherever he may be, and of every other person for the time being within Bangladesh, and in

particular no action detrimental to the life, liberty, body, reputation or property of any person shall

be taken except in accordance with law. Article 31 imports the concept of due process, both

substantive and procedural, and thus prohibits arbitrary or unreasonable law and State action.

Thirdly, 18 fundamental rights have been guaranteed in Part III of the Constitution and

constitutional arrangement for their effective enforcement has been ensured in Article 44 (right to

move to the High Court) and 102 (power of the High Court to take appropriate action upon

application). Fourthly, Article 7 and 26 impose limitation on Parliament that no law which is

inconsistent with any provision of the Constitution can be passed. Article 7(2) confirms that if any

other law is inconsistent with the Constitution that other law shall, to the extent of the consistency,

be void. Fifthly, 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 the executive and legislature and can declare any of their actions void if they go

beyond their limit. Sixthly, the peoples right to be governed by a representative body answerable to them has, directly and indirectly, been ensured under Article 7(1), Article 11, Article 55

(Cabinet), Article 56 (Ministers), 57 (tenure of the office of the Prime Minister), and Article 65(2)

[composition of Parliament] of the Constitution.

Contradictory provisions to the rule of law

The following are the contradictory provisions in the Constitution which go against the concept of

rule of law:

Emergency provisions:

Article 141A empowers the President to declare emergency whenever he wishes. This arbitrary

exercise of power by the government is contradictory to the concept of rule of law. Sheikh Mujibur

Rahmans government used this emergency power to suppress the opposition in the early 1970s, and General Moin U Ahmed and Dr. Fakruddin Ahmed used the loophole of this emergency

provision to suppress the political parties and prolong their term in 2007.

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Provision for ordinance making power

Article 93 of the Constitution allows the President to promulgate ordinances anytime during the

recess of Parliamentary session. In practice, a huge number of ordinances are promulgated during

this time by-passing Parliament. This ordinance made laws are fully undemocratic, for they are

made by the executive at their will. This type of law making process is contradictory to the rule

of law.

Administrative tribunal

Article 117 of the Constitution provides for the establishment of administrative tribunal. There is,

however, no clear provision as to who would chair the tribunal, what would be their qualification

and what would be their security of tenure. The executive plays key role in the administration and

judicial process of the tribunal. This tribunal has been kept outside the writ jurisdiction of the

High Court under Article 102(5). It has also been kept out of the supervisory jurisdiction of the

High Court. These provisions are, therefore, contradictory to the concept of integrated judicial

system and independence of judiciary - an important ingredient of rule of law.

The provision for preventive detention

Preventive detention can only be supported in the time of emergency. But Article 33 of the

Constitution allows the government to use this measure in peace time. In reality, every government

has used the Special Power Act 1974 as a permanent law to detain people, mainly of opposition

party background, without charge or trial. Since a huge number of persons are detained every year

without trial purely for political purpose, the right to protection of law, protection of right to life,

and personal liberty and safeguards as to arrest and detention as guaranteed in Article 31, 32, and

33 cannot be ensured. Therefore, the provision allowing preventive detention in peace time under

Article 33 is against the concept of rule of law.

The provision of Article 70.

Article 70 blocks all positive measures in the Constitution for ensuring rule of law in many ways.

According to Article 55 says Parliament can enquiry the cabinet for their work .But this provision

of collective responsibility has been meaningless because of Article 70 where no member (MP) of

the majority party has the right to vote against the party line.

The independence of judiciary

The most important precondition for ensuring rule of law in a country is to have an independent

and impartial judiciary. Article 95(2)(c) says such other qualifications as may be prescribed by law for appointment as a Judge of the Supreme Court, there has been no set and clearly defined appointment procedure introduced yet for appointing judges in the Supreme Court. Judges are

frequently appointed on political consideration as opposed to merit. Superseding judges have

become norms. There has been no separate secretariat for the Supreme Court established yet.

Thus, the Supreme Court is dependent on the executive for its secretarial tasks. The subordinate

judiciary is still executive dependent. But in order to establish rule of law the subordinate judiciary

must also be independent and impartial.

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

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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.

Rule of Law in England:

Features of the England constitution

A historic feature of the England constitution is the Royal Prerogative. These powers are formally

exercised by the monarch acting alone, but in reality are exercised by government ministers. It

gives the Crown many powers including the power to declare war, make treaties, deploy armed

forces, appoint and dismiss ministers and dissolve parliament. In reality, the existence of the Royal

Prerogative within the England constitution means that the Government can exercise its powers

without recourse to Parliament. The most important principles of the England constitution are

those of parliamentary sovereignty and the rule of law. The former means that Parliament can

make or unmake any law without being bound by, or binding, its predecessors or successors

respectively. Parliamentary sovereignty therefore means that Parliament is the supreme law-

making body, although this is now challenged by the Englands European Union membership, which gives European laws superiority over any conflicting domestic law. Also, over the years,

the application of parliamentary sovereignty has been limited by the passing of certain laws by

Parliament, such as the Human Rights Act 1998. The rule of law incorporates fundamental

principles to which the Government and the law have to conform. For example, this includes the

principle that no person is punishable in body or goods without a breach of the law, meaning that individuals will not be punished unless they have committed a clear breach of the law.

Parliamentary Supremacy

Dicey defines that Parliament has under the English constitution, the right to make or unmake any law whatever; and further no person or body is recognized by the law of England as having a right to override or set aside an Act of Parliament. Thus, even the courts have no authority to

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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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Judiciary and the Rule of Law

Contrary to the democratic legislature and executive, judges in the England are appointed by the

Queen under the advice of the Prime Minister. The courts have two legislative functions, which

are interpretation of Acts of Parliament in private and public disputes and legislation under

common law, and a responsibility to preserve the rule of law. The doctrine of the rule of law has

been widely interpreted in different aspects. Generally the rule of law is construed as the principles

that the same set of rules or laws should be applied on both the citizens and the government, the

government should act within the conferred power, and the notion of respect for fundamental rights

should be demonstrated in the courts. These principles are realized in judicial review, which has

been considered as the most essential process for the application of the rule of law. In order to

ensure that a judge would not be bias or prejudiced towards or against a government in his

judgment, judicial independence is the most vital element to adopt the rule of law effectively.

Rule of Law in U.S.A:

Liberty and natural rights explain why the rule of law has acquired a central position in U.S. law

to the point where the rule of law has become a veritable civil religion. Indeed, the liberty of citizens and their individual natural rights could not be secured unless the act of self-determination

embodied in the most fundamental law of the land, i.e. the Constitution, limited the power of the

government. Thus, the U.S. Constitution purports above all to institute a government which can

be kept within a very narrow remit: to protect, and not regulate or destroy, the natural rights of the

people bestowed by God. On the one hand, the constitutional doctrine of legislative, executive,

and judicial separation of powers, the checks and balances of each branch against the others, and

the explicit guarantees of individual liberty, were all designed to strike a balance between authority

and liberty, which is the main objective of the U.S. Constitution. On the other hand, the laws of

the United States, and international treaties ratified by the United States, became the supreme law of the land pursuant to Article VI of the Constitution and ordinary laws, even those made by the legislature, were to be subject to the fundamental law of the Constitution and could, therefore, be

held invalid if they violated it. If laws which conflict with the Constitution may be held invalid,

the question then of course, becomes who can declare the laws invalid. The U.S. Constitution does

not provide an answer. That answer was provided by the U.S. Supreme Court. While replying on

the principle of separation of powers, the U.S. Supreme Court held that it had power to review the

compatibility of ordinary legislation with the Constitution, i.e. judicial review. The constitutional

judicial review was established by the U.S. Supreme Court, specifically by Chief Justice Marshall,

in the famous case of Marbury v. Madison in 1803. In that case, the Supreme Court found a conflict

between a statute enacted by the U.S. Congress and the Constitution. The Court noted that Article

III of the U.S. Constitution provides, that the judicial power is exercised by the courts, that the

Constitution is interpreted by the courts, and that the Supreme Court of the United States is the

final court of appeal from the state and federal courts. The Supreme Court then held that it had the

authority to render null and void any federal or state law that was contrary to the fundamental law

of the U.S. Constitution. The Supreme Court considered that the essence of judicial duty was to ensure that the law conforms to the Constitution and this principle constitutes the essence of the

American understanding of the rule of law. Although the expression rule of law does not appear

in the Constitution, a close constitutional analogy has been found in the due process clauses of the Fifth Amendment (No person shall be deprived of life, liberty or property without due

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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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