On the first read, the title of this article may portray ‘Rule of Law’ as the Saint’s tool of blessings; whereas ‘Rule by Law’ may come across as the Satan’s weapon of mischief. However, looks can be deceiving, since the veiled nature of these two ideas cannot be defined per se. The effect of Rule of Law or Rule by Law is more dependent on the nature of the Master who is in fact governing it. Thus both of them individually are capable of being utilized as tool of blessings or can be used as weapon of mischief.
The phrase ‘Rule of Law’ is said to be derived from the French phrase ‘La Principe de Legality’ (i.e. the principle of legality) that refers to a government based on principles of law and not of men. In lay man’s term, Rule of Law is a constitutional principle that affirms that the power of a State should not be exercised against individuals except in accordance with rules explicitly set out in books available to all. As indicated by this principle, the lex (i.e. law) is placed above the rex (i.e. sovereign government of a State). On the other hand, ‘Rule by Law’ is deceptively similar to Rule of Law, yet it tends in entirely different directions. One rules by law not because the rex is higher than the lex but because it is convenient to do so and inconvenient not to do so. To summarize, in Rule of Law, lex rules the State with the assistance from rex; and in Rule by Law, rex itself rules the State by using lex.
A State can be governed with either Rule of Law or Rule by Law, as there are valid rationales behind the adoption of both of these principles. Embracing Rule of Law creates a moral basis which, in turn, establishes the authority for the lex to rule the people with the help of the rex, by guaranteeing the absence of any arbitrary power, ensuring equality before law and safeguarding individual liberties. It saves the State from the seminal despotism of Rule by Law. In contrast, the implementation of Rule by Law will result in a less flexible approach, which facilitates in removing the disagreement and uncertainty in moral judgments. It set asides the seminal anarchy of Rule of Law from the State.
Theoretically, the judgment of Anwar Hossain Chowdhury v. Bangladesh (1989) affirms that Rule of Law is a basic feature of the Constitution of the People’s Republic of Bangladesh. Our Constitution contains plethora of laws while institutions like courts, ministries and departments have been set up to dispense justice and decisions in accordance with the present state of the rule of law revels the riddle of having a body of law and at the same time not having it. Additionally, the preamble of our Constitution also states that-
“… it shall be a fundamental aim of the State to realise through the democratic process, a socialist society free from exploitation, a society in which the rule of law, fundamental human rights and freedoms, equality and justice, political, economic and social, will be secured for all citizens.”
According to the provisions of this Constitution lex does not mean anything that Parliament may pass. Article 27 and Article 31 have taken care of the quantitative aspects of law. Article 27 forbids discrimination in law or in action taken by rex, while Article 31 imports the concept of due process, both substantive and procedural, and thus prohibits unreasonable lex or arbitrary action by rex. The Constitution further guarantees in Part III certain rights to ensure respect for the supreme value of human dignity.
In Bangladesh, much of what we call Rule of Law today; is not Rule of Law at all, nor even Rule by Law in positive sense. Rather, the fundamental principles of State policy of Bangladesh, now a day, are administrated by the ‘negative practice’ of Rule by Law. In our country,rex has always failed to put their position under the existing lex, relatively they were found enthusiastic in exploiting lex for their own gains by posing themselves way above it. Ongoing instances of this negative practice of Rule by Law can be noticed by a careful observation of our existing faulty democracy.
In the last five years (January 2009 to January 2014), the rex of Bangladesh (currently Awami League) has created a record in filing groundless cases to put off the opposite parties. There were almost twenty thousand political cases with over hundred thousand defendants! Amongst this huge number of defendants, almost twenty five thousand are the leaders of Jamayete Islam and the rest from the leading opposite party BNP. Moreover, there is a political case which has almost four thousand defendants in itself! The astounding part is, in almost all of these cases, the rex has used the police force as the plaintiff. The newly appointed Inspector General of Police of our country, Hasan Mahmud Khandoker, is playing his part very well by letting his force becoming the weapon of mischief of the rex. Moreover, the rex has continued to use the Special Power Act of 1974 and Section 54 of the Criminal Procedure Code of 1898, which allow for arbitrary arrest and preventive detention, to harass political opponents and other citizens by putting them behind the bars without formal charges. Certainly, the legendary English constitutionalist, A.V.Dicey’s first notion of Rule of Law i.e. absence of arbitrary power, cannot be found in the present context of Bangladesh. Likewise, the exploitation of lex for political gain proves that it is not the positive use of Rule by Law too. Nevertheless, the aforementioned actions of the rex can only be categorized under the negative practice of Rule by law.
A.V.Dicey’s second notion of Rule of Law i.e. equality before law, in our country, is reserved for only those who are privileged. For the rest of the population, more or less the Hobbsian law of nature prevails. The poor and powerless people prefer injustice than fatigue, only because they could not reach before the judges due to lack of mobility in meeting the charge required for going through the complicated process of litigation. Besides, our judiciary itself is charged with corruption which is quite evident from the endless puppet show conducted by our puppeteer rex, with the puppet post of Chief Justice. During the entire period of 2009-2011, members of the student wing and various fronts of the ruling party were actively involved in extortion, land grabbing, murders and series of confrontations. Nevertheless they have always been found not guilty by our so called independent judiciary! Another obtrusive example of inequality is Dr. Dipu Moni herself, who is the current Minister for Ministry of Foreign Affairs. Where in one hand, more than one million Bangladeshi people has become unemployed and has been sent back from various nations in the Middle East as well as Malaysia; there in other hand, our foreign minister has spent a few hundred million Taka already from the national exchequer to cover a series of her high-profile foreign (or family!) tours to those Middle East countries resulting to zilch. Again, the negative practice of Rule by Law is apparent.
Safeguard to individual liberties, which is the third notion of Rule of Law explicated by A.V.Dicey, has also become an expensive commodity in the present market of Bangladesh. In recent years a large number of political killings have taken place, and the national dailies have carried the stories of all the gruesome murders making the whole nation out raged. What is however deplorable is that in most of these highly publicized cases the culprits have not been brought to justice. The reason is not far to seek due to the interference by high ups in the political ladder. Moreover, with a view to avoiding debates, the rex makes laws by ordinances and later gets them appointed under the sweeping power of Article 70 of the Constitution. Besides, Article 93 allows the president to promulgate ordinances anytime during the recesses of parliament session. Another similar issue is regarding Administrative Tribunal, which is created in order to provide quick relief and avoid lengthy proceedings of litigation particularly for service matters which needs special treatment and experience. Unexpectedly, this tribunal has been kept outside the writ jurisdiction of the High Court Division under Article 102(5) of the Constitution. Also it has been kept out of the supervisory jurisdiction of the High Court Division. This provision has therefore, been contradictory to the concept of integrated judicial system and safeguard to individual liberty. Yet again, the rex shows its negative practice of Rule by Law.
To recapitulate, either in Rule of Law or Rule by Law, the prime emphasize is supposed to be given on the lex, whatever the positioning is. But in our country, the rex has always been the winner in the battle between lex and rex. This cannot result in either Rule of Law or Rule by Law. Neither of these two principles, in itself, is capable of providing peace to our country. Thus in my opinion, for a stable State, we need to practice the Rule by Law principled with the Rule by Law. If used in balance, the fusion of the two theories will appear to be competent to maintain generality, impersonality, and effectiveness of government. It will allow for what Lon L. Fuller (prominent English academic) has called “the internal morality of law” to the extent that this is prudentially justifiable as conducive to the ends of government in Bangladesh.