Establishing rule of law in reality
Bangladesh is served by an elaborate legal system. It has centuries old laws dating back to the British colonial period and the British are world renowned as law givers and for laying a legal tradition in their former colonies. But as any sufferer knows it, the legal system in Bangladesh is anything but effective on the whole for its users or those who seek protection under it.
Undeniably, a basic condition for a society to claim that it operates according to laws or the principle of the ‘ rule of law’ is to have a body of laws covering different areas of human existence or interactions between individuals or interactions between individuals and the government or governmental institutions. In this sense, the legal codes in Bangladesh are ample. But whether the codes generally are up-to-date to deal with current needs, capable of being applied easily and promptly for the fastest dispensation of justice, are questionable issues indeed.
Clearly, there are many laws in existence here which seem to be suitable for a different era. The upgradation of these laws have been felt for a long time. Specially in the financial realm, laws pertaining to investment are considered as outdated by investors including foreign investors. The inability to get these laws updated is seen as constraints to having a more attractive investment climate.
The central feature of a judicial system that works is the acceptable speed of adjudication. A litigant on starting a case should expect to get a decision within a reasonable period of time to at least compensate for the costs of legal services if not a decision in his or her favour as redress from a situation or personal harm. But cases can drag on for years under the prevailing court systems in Bangladesh and even the litigants may not live to see a verdict in their life time in some cases. Clearly, such tortoise like speed in the dispensation of justice is found to be not worthwhile . Thus, speeding up the adjudication processes at all levels appears to be a fundamental requirement towards the establishment of rule of law.
Another important feature of rule of law is accessibility to courts or the legal system by all . Bangladesh has roughly thirty per cent of its people with an existence below the poverty line. The capacity of the poverty liners to access the courts in the form of paying various court fees and the engaging of lawyers, is understandably limited or they simply do not have such capacity. This means that such a vast body of people are outside the ambit of legal services. A society with such a large number of people unable to use legal services adequately cannot be deemed as one sufficiently governed by law or getting the benefits of the rule of law.
Even in the developed countries, governments make sizeable allocations from the public purse for the poor and disadvantaged groups to access legal services free of costs. Bangladesh only has the rudiments of such officially provided legal aids . Some non government organisations (NGOs) are providing such legal services in a scattered manner but their activities are too small compared to the need. Therefore, the establishment of rule of law in Bangladesh also requires making the legal system accessible to the maximum number in the population.
As stated already, Bangladesh fulfills one main requirement of the principle of the rule of law, i.e. having enough laws to address various needs of society. The laws are also being obeyed generally. But the other main side to truly having rule of law is having avenues for citizens to seek the protection of the law from laws perceived as not fair or arbitrary, for them to successfully uphold their fundamental rights and civil and political rights.
In a society reasonably governed by law, individual citizens consent to abide by the laws for the smooth working of society and dispensation of justice. But in such a society, citizens also retain their freedom to protest or get relief from operation of laws considered as repressive or unfair by them, to lawfully protect themselves from rules and regulations harshly or unreasonably imposed on them by governmental authorities under delegated powers.
In the areas of these individual rights, the laws seem to be rather weak in Bangladesh which mean that individuals in many cases are repressed by the operation of some laws whereas the spirit of the principle of the rule of law is that citizens should have their individual rights and freedoms protected and enhanced by such rule of law. The Special Powers Act and sections of the penal code in Bangladesh are considered to be in breach of fundamental rights that even the Constitution of Bangladesh, as the supreme law of the land, proclaim as the inalienable rights of all Bangladeshis. But the prevalent civil and criminal laws are perceived in some areas to be in conflict with these constitutionally pledged rights of people.
Another important requirement of rule of law is the effective separation of powers between the executive, legislature and the judiciary. Furthermore, such separation to be really useful must also achieve meaningful independence of the judiciary from the executive’s influence. But the judiciary’s independence from the executive remains a long pending task in this country.
Proper establishment of the rule of law can be a cure all for all sorts of problems presently faced by Bangladeshis. In all spheres of existence in the country, the operation of an effective and impartial legal system that also protects and promotes human rights and freedoms, can work wonders to rapidly uplift conditions. There appears to be a stirring in civil society to have proper leadership in the country. While this is important, equally important is to have a system for all times to preserve and enhance the best interests of the state, society and the individual. It makes sense, therefore, for all to strive to establish such a system or the rule of law than only struggling for a change in the political leadership with a hope that this alone will take us to a better future. Individuals are not above systems. Only good systems can ensure the good or expected behaviour of individuals.