An interesting exchange has been taking place in the country for the past few weeks between the executive and the judiciary over rule of law, independence of judiciary, and equality of three branches of government.
The debate, however, ignores the fundamental fact that the rule of law is not just about independence of judiciary or interference of one branch of government over another.
The rule of law is a legal principle that law should govern a nation, as opposed to arbitrary decisions of individual government officials.
It is a combination of framing and preserving human rights, transparency of governance, and people’s access to justice. Above all, the rule of law is making government and its services available to all its citizens without discrimination.
It is ironic that the debate on the rule of law is taking place in a country where the law is more respected in breach than in its observance; at least that is the perception of our own people.
The most recent assessment of Bangladesh’s position (2016) in a global index of the rule of law published by the World Justice Project (WJP) points out this sad reality.
The WJP report
WJP is a US based non-government organisation that was set up about ten years ago to advance rule of law globally. Headquartered in Washington DC, the entity is staffed and managed by a multi-disciplinary team including eminent jurists and funded by donations from multiple national and international charitable foundations.
Of all its research and publications, and other activities that WJP undertakes, its annual rule of law index gets the most attention worldwide.
The index is the product of a year’s monitoring of eight indicators of rule of law, including constraints on government powers, absence of corruption, regulatory enforcement, civil and criminal justice, and fundamental rights.
In 2016 a total of 113 countries were surveyed globally, with Denmark topping the list and Venezuela at the bottom.
Bangladesh came in at number 103, slightly above Pakistan (106), but way below India (66) and Sri Lanka (68). Among six South Asian countries, Bangladesh figures at the bottom or nearly at the bottom on most of the factors.
The position of Bangladesh near the bottom of a list of 113 countries in the survey on rule of law sheds light on the fact that we have failed to honour our Constitution, which is anchored in democracy and human rights.
It tells us that the principles of transparency and openness of government that our leaders proclaim every now and then are rarely practiced in reality in this country.
We cannot dismiss the report as a subjective analysis by a foreign organisation either, since the country scores are computed after surveying a large sample of households, meaning the citizens themselves evaluate the law and order situation.
That said, why is there is such a gap between the pronouncements of our leaders on rule of law and actual perception of it by our own people?
The fact is, much of what the government says is inconsistent with what it actually does.
We have a judicial system that is intended to uphold the principle of equality of all before law. Yet our common people find it hard to access the system when in need
Upholding rule of law
Rule of law is not just about having a set of laws or legislating new ones; it is a combination of efficient due process, and maintaining transparency and accountability in government.
As defined by WJP, the factor “constraints on government” indicates the extent to which government powers are effectively limited by the legislature, judiciary, and independent audit, and whether officials are sanctioned for misconduct.
The factor “open government” measures whether basic laws and information on legal rights are publicised, and evaluates the quality of information published by the government.
The factor “fundamental rights” shows the extent to which the state provides equal treatment and absence of discrimination for all citizens, the right to life and security, due process of law and rights, freedom of expression, etc among other things. Apparently, we have been unable to demonstrate sufficient tangible results in these fronts.
In theory, Bangladesh has all the clauses in its Constitution and in its laws to ensure the rule of law in the country. Fundamental rights are enshrined in the Constitution, and laws provide for freedom of information and transparency of government.
But the reality says otherwise
EditorialEditorialWe have a judicial system that is intended to uphold the principle of equality of all before law. Yet our common people find it hard to access the system when in need.
We have law enforcement agencies that are legally obliged to ensure life and security, and offer due process of law to all without discrimination. Yet, people have a negative perception of these agencies.
The rule of law cannot be upheld simply with debates on independence of judiciary and separation of powers. The rule of law is not just about whether administration of justice is hampered by executive interference.
It is more than that. It is about ensuring that there is transparency in governance, accountability of government officials and agencies, and above all, it is to ensure that all citizens including lawmakers are equal before the law.
Justice must not only be deliberated in debates, but it should be seen being served in practice. The rule of law can only be achieved when there is no gap between concept and reality.
Ziauddin Choudhury has worked in the higher civil service of Bangladesh early in his career, and later for the World Bank in the US.