The Rule of Law in Developing Countries

The Case of Bangladesh

Chowdhury Ishrak Ahmed Siddiky

• Publisher: Routledge
• Year: 2018
• eBook ISBN: 9781351273541
• Edition: 1
• Topic: Social Sciences
• Subtopic: Ethnic Studies
• Index: Social Sciences

Bangladesh, one of the most densely populated countries in the world and second in South Asia, is known for its natural disasters, floods and political violence. However, the country plans to become a middle-income country by 2020 due to rapid economic growth led by strong and vibrant garments and pharmaceutical sectors. A developing country, Bangladesh cannot reach its true potential if there is a weak legal system and the executive have no regard for the rule of law.

This book discusses and analyses the legal system of Bangladesh. It studies the various weaknesses and whether the judiciary of the country is really independent. International experts, scholars and lawyers with significant experience of working in Bangladesh and at international agencies and universities examine the role of the judiciary in maintaining the rule of law in the country and the critical role it can play in strengthening democracy. The chapters show the various roles played by the judiciary in promoting its independence and thereby strengthening democracy in the country.

The first book to analyse the role of the judiciary and the various weaknesses in the legal system of Bangladesh, it is a relevant case study in the context of developing countries. The problems found in the legal system of Bangladesh prevail in most of the developing countries in Asia, Africa and Latin America. The book will be of interest to academics in the field of development studies, South Asian Studies and Asian Law.

1 Rule of law in Bangladesh

The good, the bad and the ugly?

Ridwanul Hoque¹

Introduction

‘The rule of law’ has become something of a buzz-phrase, often readily invoked by politicians either to claim credit for their own rule or to disclaim or oppose the governance by their counterpart. In retrospect, in the wake of a third wave or surge of democracies in the 1960s to 1970s,² the concept attained a heavy usage in the context of developmental needs of the newly emerged sovereign states. That the new sovereign nations lacked the rule of law was taken almost for granted by the global South, making the ‘rule of law’ an inevitable part of the law and development discourse and foreign aid agenda.³ Globalisation, conspicuous rise of global civil society, post-nine-eleven world order and other political factors contributed enormously to what Baxi calls a “new explosion of the rule of law discourse” in the advent of the twenty-first century.⁴ Within the discursive framework of rule of law, this ideal remained dominantly “assumed to be a ‘good thing’ all round”⁵ and a “panacea for the problems faced by the developing world”.⁶ This limited use of the doctrine of rule of law, on the one hand, largely disguises its normative character and refuses, on the other, to recognise the normative and instrumental diversity or internal plurality of the concept.⁷

The rule of law means, and used to mean “different things to different peoples, in ways that render any general theory about it inchoate” or impossible.⁸ Moreover, “[i]ts histories differ not just across legal and social cultures but also within same-law regions”.⁹ In a powerful exploration of the political significance of the moral justification of the rule of law in British society, Joseph Raz considered “the rule of law not as a universal moral imperative, but rather as a doctrine which is valid or good to certain types of society provided they meet the cultural and institutional presuppositions for the rule of law”.¹⁰ In speaking about the value of the rule of law in a “pluralistic” society, Raz emphasised two virtues – the protection of the individual objectively, which he called “bureaucratic justice”,¹¹ and democratic continuity. Raz then argued that “these virtues can only be achieved in a country with democratic culture, and a culture of legality with a tradition of independence for the courts, the legal profession, the police, and the civil service”.¹² I shall analyse this statement of Joseph Raz further below, but deem it necessary now to reiterate his insistence on the view that the rule of law has more to do with the tradition or culture of any political society.

The importance of a tradition-oriented approach to the rule of law has been emphatically endorsed by many other scholars. Abdullahi An-Naim, for example, came to a conclusion in agreement with his students that the model of the rule of law for each particular country “will have to be negotiated by the permanent population with reference to cultural norms and political realities prevailing in that country”, although any such model has to conform to certain minimum universal standards.¹³

In this opening chapter of the volume on the rule of law in Bangladesh, I analyse the status of rule of law in the politico-social context of the country.¹⁴ While I emphasise the dependence of the realisation of rule of law on the country’s political culture, social tradition and democratic practices, I also focus on the institutions and the quality of legal rules that are needed to establish, consolidate and maintain the rule of law.

Below I first provide a brief introduction to the concept of the rule of law first generally and then in the context of Bangladesh. This is followed by a narrative of the nature of Bangladeshi constitutionalism and political developments, with the assumption that an idea of them is indispensable to locate ‘the rule of law’ within the culture of constitutional and extra-constitutional politics in Bangladesh. The chapter then analyses three aspects of the Bangladeshi rule of law – human rights performance, judicial independence and reform, and executive accountability. The chapter finishes with a few concluding remarks.

The concept of the rule of law and the Bangladeshi context

The many meanings of the rule of law¹⁵

The philosophical history of the rule of law has its root in ancient European political thought, prominently in Greek history. The great Greek philosophers Plato and Aristotle stressed in a variety of ways the utility of invoking and practising the rule of law in state governance.¹⁶ The prominence of the ‘rule of law’ concept in modern constitutionalism, however, began with the English legal traditions, notably in the thirteenth century.¹⁷

The principle of rule of law is often credited as a fundamental aspect of the British Constitution, and, indeed, also of other democratic constitutions. Constitutionalist A. V. Dicey is reportedly the first legal scholar to have significantly elaborated the concept. For Dicey, who spoke against the backdrop of the British tradition of human dignity and individual liberty, the rule of law is meant to embrace three major attributes. First, it means the absence of arbitrariness in patterns and structures of governance, meaning that the rights of individuals are determined by legal rules and not by the arbitrary behaviour of authorities. Second, it requires the prohibition of punishment except in accordance with the law, which means that punishment is unlawful unless a court decides that there is a breach of law by the condemned. This requirement seems to establish a prerogative of state control of punishment, taking powers away from societies and communities that are part of the state. Dicey’s third attribute of the rule of law is the increasing equality of all before the law, requiring that everyone, regardless of their position in society, is subject to the same ordinary, as opposed to special, laws of the land, which is more of a human rights argument, in today’s parlance.¹⁸

The concept of rule of law is an ever-growing concept, and it has indeed gone a long way since the Diceyan notion was expounded.¹⁹ In its classical exposition, the critical feature of the rule of law remains that individual liberties depend on it, and that all should receive equal legal treatment. In the modern sense of the term, which is not too distinct from its classical expression, it means the supremacy or the rule of (good) ‘law’, not simply ‘rule by law’²⁰ or ‘rule of men’. In this sense of the rule of law, law refers to the qualitative/good and inclusive ‘law’ that is informed of higher norms, ethics and morality,²¹ and not just any law.²² With reference to the quality or goodness of law as a prerequisite of the rule of law, Lon Fuller identified eight basic attributes of ‘the law’. As Fuller explained, laws must be general (specifying rules prohibiting or permitting behaviours), widely promulgated, prospective, clear, non-contradictory, implementable (laws must not ask the impossible), certain (laws should not change frequently) and congruent in aligning laws’ intent and the modes of their enforcement.²³ Based on this conception of laws and the internal moral contents of any legal system, Fuller argued that a government breaching the basic requirements of a ‘good’ system of law would not be “a government according to law”. There are, however, reservations against Fuller’s argument,²⁴ and societies may indeed widely differ in perspectives of what is ‘good’.

The legal supremacy can be attained through ensuring a formally complete responsibility of those in charge of powers on behalf of those governed. In the modern sense, the rule of law is considered the foundation of democracy,²⁵ and is interchangeably used with good and humane governance. To quote Baxi, “the rule of law is always and everywhere a terrain of people’s struggle to make power accountable, governance just, and state ethical”.²⁶ It is in this sense that many scholars emphasise the procedural or institutional approach, which calls for the establishment of fair procedures and efficient institutions to deal with the people according to the law.

In addition to the functional approach to the rule of law that emphasises the creation and maintenance of institutions, we often relate the concept to some substantial principles such as liberal democracy, protection of fundamental rights, judicial independence, openness in the affairs of the governance, removal of past discriminations, guaranty of human equality and dignity, and so on. These elements of the rule of law were emphatically reaffirmed in the International Commission of Jurists’ 1959 Delhi Congress that underscored the value of human dignity as an inseparable aspect of rule of law,²⁷ specially urging for the creation of adequate political, social, economic and cultural conditions for the realisation of human dignity and development.²⁸ This early awareness of the interplay of the rule of law, good governance and social justice was probably an indication of the subsequent growing impact of human rights and social justice imperative on the state of rule of law in South Asia and elsewhere.

Delhi Congress’s articulation of the rule of law, thus, seemingly spoke of the notional goal of the concept, which is the establishment of a just society or a ‘just government’ where everyone will get their due, and state-decisions will be justified and taken for and with the consent of the people. The 1959 call of the International Commission of Jurists later found an expression in a statement of the Secretary-General of the United Nations who in 2004 defined the rule of law as

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.²⁹

This broader aspect of the rule of law, which even binds the private entities, now appears to be fully formulated in twenty-first-century discourse.

In the above, modern sense of the term, the rule of law refers in effect to the ideal of constitutionalism that signifies an ideal of total accountability of those men and women in charge of governance, including, of course, the idea of effective institutions an...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright page
• Table of Contents
• Notes on contributors
• Introduction
• 1 Rule of law in Bangladesh: the good, the bad and the ugly?
• 2 The judicial appointments process in Bangladesh: in search of transparency
• 3 Scandalising the court and the law of contempt
• 4 The International Crimes Tribunal in Bangladesh: an analysis
• Conclusion
• Index