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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 lawmaking 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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