Introduction: One of the basic rules of the English fundamental law is the regulation of jurisprudence. This philosophy is accepted in the fundamental law of U. S. A. and besides in the fundamental law of Bangladesh. Now a day’s regulation of jurisprudence is one of the most discussed topics of developing states. Developed states and giver bureaus ever instruct the development states for sustainable development and good administration. Actually sustainable development and good administration largely depends on the proper application of regulation of jurisprudence. Laws are made for the conflicting forces in society.
One of the premier objects of doing Torahs is to keep jurisprudence and order in society. a peaceable environment for the advancement of the people. In true and existent sense there is no regulation of jurisprudence in Bangladesh today. Law in Bangladesh follows a class of selective and discretional application. Institution and processs required for guaranting regulation of jurisprudence besides are no effectual in the state. Main Concept of Rule of Law: The term ‘Rule of Law’ is derived from the Gallic phrase ‘La Principe de Legality’ ( the rule of legality ) which referse to a authorities based on rules of jurisprudence and non of work forces.
In this sense the construct of ‘La Principe de Legality’ was opposed to arbitrary powers. The regulation of jurisprudence is old beginning. In 13th century Bracton. a justice in the Reign of Henry III wrote- “The male monarch himself ought to be capable to God and the jurisprudence. because jurisprudence makes him king. ” Edward Coke is said to be the conceiver of this construct. when he said that the male monarch must be under God and jurisprudence and therefore vindicated the domination of jurisprudence over the pretenses of the executives. Professor A. V. Dicey subsequently developed on this construct in his authoritative book ‘The Law of the Constitution.
‘ published in the twelvemonth 1885. Dicey’s construct of the regulation of jurisprudence contemplated the absence of broad powers in the custodies of authorities functionaries. Harmonizing to him wherever there is profanation there is room for flightiness. The regulation of jurisprudence is a feasible and dynamic construct and like many other such constructs. is non capable of any exact definition. Its simplest significance is that everything must be done harmonizing to jurisprudence. but in that sense it gives small comfort unless it besides means that the jurisprudence must non give the authorities excessively much power.
The regulation of jurisprudence is opposed to the regulation of arbitrary power. The primary significance of regulation of jurisprudence is that the swayer and the ruled must be capable to jurisprudence and no 1 is above 3. the jurisprudence and therefore accountable under the jurisprudence. It implies the domination of jurisprudence and the acknowledgment that the jurisprudence to be jurisprudence can non be freakish. What is the Rule of Law? The regulation of jurisprudence is a system in which the following four cosmopolitan rules are upheld: 1. The authorities and its functionaries and agents every bit good as persons and private entities are accountable under the jurisprudence. 2.
The Torahs are clear. publicized. and stable and merely. are applied equally. and protect cardinal rights. including the security of individuals and belongings. 3. The procedure by which the Torahs are enacted. administered and enforced is accessible. just and efficient. 4. Justice is delivered seasonably by competent. ethical. and independent representatives and neutrals that are of sufficient figure. hold equal resources. and reflect the make-up of the communities they serve. Establish the Rule of Law and Constitution of Bangladesh: The regulation of jurisprudence is a basic characteristic of the fundamental law of Bangladesh.
It has been pledged in the preamble to the fundamental law of Bangladesh that – “It shall be cardinal purpose of the province to recognize through the democratic procedure a Socialistic society. free from development – a society in which the regulation of jurisprudence. cardinal human rights and freedom. equality and justness. political economic and societal. will be secured for all citizens. ” In conformity with this pledge the undermentioned positive commissariats for regulation of jurisprudence have been incorporated in the fundamental law: Article 27 warrants that all citizens are equal before jurisprudence and are entitled to equal protection of jurisprudence.
Article 31 warrants that to bask the protection of the jurisprudence. and to be treated in conformity with jurisprudence. is the unalienable right of every citizen. wherever he may be and of every other individual for the clip being with in Bangladesh. and in peculiar no action detrimental to the life. autonomy. organic structure. repute or belongings of any individual shall be taken except in conformity with Law. 18 cardinal rights have been guranteed in the constitutional agreement for their effectual enforcement has been ensured in Articles 44 and 102. Article 7 and 26 impose restriction on the legislative assembly 4.
that no jurisprudence which is inconsistent with any proviso of the fundamental law can be passed. In conformity with Article 7. 26 and 102 ( 2 ) of the fundamental law the supreme tribunal exercise the power of judicial reappraisal whereby it can analyze the extent and legality of the actions of both executive and legislative and Constitutions declare any of their actions void if they do anything beyond their constitutional bounds. Right to be governed by a representative organic structure answerable to the people have been ensured under Articles 7 ( 1 ) . 11. 55. 56. 57 and 65 ( 2 ) of the fundamental law. 18 all
these commissariats of fundamental law are effectual for guaranting regulation of jurisprudence in Bangladesh. But facts on the land tell a different narrative wholly. Rule of Law Ensure in Bangladesh: Laws. regulations and processs framed under them exist to cover every walk of our national life. though there may be paras in figure and defects in range. Our fundamental law contain overplus of Torahs while establishments like tribunals. ministries and sections have been set up to distribute justness and determinations in conformity with the present province of the regulation of jurisprudence revels the conundrum of holding a organic structure of jurisprudence and at the same clip non holding it.
It is like a individual who is encephalon dead. Some facets of the regulation of jurisprudence in our society and civil order should be mentioned as under: First. accesses to jurisprudence every bit good as equality before it are reserved for merely those who are privileged. For the remainder of the population. more or less the Hobbsian jurisprudence of nature prevails. They are the incapacitated victims of as unfair society that sets great narrative by privileges. Second. all authorities in this state since the falls of Ershad have claimed that there is independency of bench.
The claim is merely partly true. while the higher tribunals enjoy a certain step of independency ; the lower tribunals are under the direct control of the jurisprudence ministry. The Judgess look up to the Ministry for everything infect they are obliged to. The rule of separation of bench from executive is being violated in two ways – 1. Magistrates are executing double map of both executive and bench which is non desirable in the involvement of justness. 2. The service of territory and session Judgess. their transportation. publicity etc.
are controlled non by the Supreme Court but by the jurisprudence ministry. 5. Third. The authorities of Bangladesh continued to utilize the Particular Power Act of 1974 and subdivision 54 of the condemnable codification which allow for arbitrary apprehension and preventative detainment. to hassle political oppositions and other citizens by confining them without formal charges. Fourth. The really rule that jurisprudence should take its ain class requires that in probe and readying and entry of the charge sheet. the investigation bureau should be free from. encumbrance’s influences and menaces of all sorts.
Unfortunately. that state of affairs does non obtain in todays Bangladesh. In recent old ages a big figure of political violent deaths have taken topographic point. The national dailies have carried the narratives of all the ghastly slayings and the whole state has been out raged. What is nevertheless distressing is that in most of these extremely publicized instances the perpetrators have non been brought to justness. The ground is non far to seek. It is the intervention by high ups in the political ladder. Fifth. Another facet of regulation of jurisprudence relates to the bounds of jurisprudence doing power of the parliament itself.
Our fundamental law rather justly declares the people as the depository of all power and they use it through their elected representatives. However. the inquiry arises whether the parliament can do Torahs controling the democratic rights the people. which are by and large considered as unreasonable. The particular power Act of 1974 the public safety Act passed former Awami Liege Government etc. which are used to set political oppositions behind the bars. merit particular reference. so. the inquiry arises can such pieces of statute law promote regulation of jurisprudence? Obviously. non.
One the other manus the authorities ever with a position to avoiding arguments make Torahs by regulations and subsequently gets them appointed under the sweeping power of article 70 of the fundamental law. Sixth. Rule of jurisprudence posits intelligence without passion and ground free from desire in any determination sing affairs concerned with administration. In our society. the rule is being ignored on many evidences as quotas for political militants by the name of award to freedom combatants. particular proviso for single security etc. Seventh. Police is no uncertainty a really powerful establishment for the indorsement of the regulation of jurisprudence.
But in Bangladesh. the constabulary have ne’er been friendly with the populace. The constabulary serve the authorities and enjoy. in exchanges. 6. the freedom to move randomly and in the stuff involvements of its ain members. Eighth. Regulation doing power can be supported merely in exigency state of affairs like national crisis. national catastrophe terrible economic warp etc. demanding for immediate legislative actions. But article 93 of the fundamental law allows the president to proclaim regulations anytime during the deferrals of parliament session.
On the other manus Article 141 ( A ) empowers the president to declare exigency whenever he wishes. By declaring exigency in peace clip the authorities can suspend cardinal rights and stamp down the resistance motion. This saddle horses to affirm arbitrary exercising of power on the portion of the authorities which is contradictory to the construct of regulation of jurisprudence. Ninth. Another gross outing facet of our judicial system is that there is the charge of corruptness against our bench. Furthermore. justnesss oftener than non. a dearly-won trade good in our state.
The hapless people could non make before the Judgess merely because of mobility to run into the charge required for traveling through the complicated procedure of judicial proceeding. Therefore. they prefer unfairness than weariness. Tenth. In order to supply speedy alleviation and avoid drawn-out proceedings of judicial proceeding supplying for the creative activity of Administrative Tribunal peculiarly for service affairs which needs particular intervention and experience is non undemocratic something. But this court has been kept outside the writ legal power of the High Court Division under article 102 ( 5 ) .
Besides it has been kept out of the supervisory legal power of the High Court Division. This proviso has hence. been contradictory to the construct of integrated judicial system and besides contrary to the construct of independency bench. A outstanding concern in the development community is the “rule of law” and the related constructs from other legal. Economic growing. political modernisation. the protection of human rights. and other worthy aims are all believed to hinge. at least in portion. on “the regulation of jurisprudence.
” Policymakers in developing and passage states are therefore seeking ways to set up or beef up the regulation of jurisprudence in their states. Investing evaluation services. non- governmental organisations. and other pupils of development are bring forthing indices that try to mensurate the grade to which a state enjoys the regulation of jurisprudence. 7. But overlooked in much of the duologue about the regulation of jurisprudence is that the term has no fixed significance. It originated in normative Hagiographas on jurisprudence and authorities. chiefly by Western writers. and each tailored the term to suit his or her vision of the “ideal” or “just” province.
As a effect. one study of how the term has been used in Germany. France. the United Kingdom. and the United States concludes that it “belongs to the class of open- ended constructs which are capable to permanent debate” Despite this multiplicity of definitions. most can be classified harmonizing to whether they emphasize formal features. substantial results. or functional considerations. The differences between these three constructs and the deductions of each for attempts to set up. step. or further the regulation of jurisprudence are described below.
Formal Development Rule of Law: Formal definitions of the regulation of jurisprudence expression to the presence or absence of specific. discernible standards of the jurisprudence or the legal system. Common standards include: a officially independent and impartial bench ; Torahs that are public ; the absence of Torahs that apply merely to peculiar persons or categories ; the absence of retroactive Torahs ; and commissariats for judicial reappraisal of authorities action. There is no unequivocal list of formal standards. and different formal definitions may utilize different criterions.
What formal definitions have in common is that the “rule of law” is measured by the conformance of the legal system to these expressed criterions. The chief advantage of a formal definition of the regulation of jurisprudence is that it is really clear and comparatively nonsubjective one time the formal standards are chosen. Choosing which criterions to include may be controversial. but after the criterions are made explicit. it is normally non hard to detect the grade to which states meet or don’t run into the criterions. Formal definitions therefore avoid more subjective judgements. for illustration about whether Torahs are “fair” or “just.
” Substantive Development regulation of Law: An option to the formal attack to the regulation of jurisprudence is one that looks to substantive results such as “justice” or “fairness. ” This attack is non concerned with the formal regulations. demur inasmuch as they contribute to the accomplishment of a peculiar substantial end of the legal system. Unlike the 8. formal attack. which eschews value judgements. the substantial attack is driven by a moral vision of the good legal system. and measures the regulation of jurisprudence in footings of how good the system being assessed approximates this ideal.
The chief advantage of the substantial version of the regulation of jurisprudence is the expressed equation of the regulation of jurisprudence with something normatively good and desirable. The regulation of jurisprudence is good in this instance because it is defined as such. This is appealing. foremost because the subjective opinion is made explicit instead than hidden in formal standards. and. second. because the phrase “rule of law” has acquired such a strong positive intension. Many people can non accept any definition that would let.
Functional Development regulation of jurisprudence: A 3rd attack to the regulation of jurisprudence is similar to the substantial definition. but tries to avoid the thorny normative issues by concentrating on how good the jurisprudence and legal system execute some map – normally the restraint of authorities discretion. the doing legal determinations predictable. or some combination of both. One version of this position. for illustration. would keep that a society in which authorities functionaries have small or no discretion has a high degree of regulation of jurisprudence. whereas a society in which they wield a great trade of discretion has minimum regulation of jurisprudence.
The functional definition of the regulation of jurisprudence is loosely consistent with the traditional significance of the English phrase. which has normally been contrasted with “rule of adult male. ” It has the advantage. excessively. of specifying the regulation of jurisprudence harmonizing to outcome-related standards. but non necessitating a moral finding of fact on the desirableness of that result. The functional definition is narrow plenty that it does non overlap with other more general constructs. and it makes inquiries as to the relationship of formal features to the regulation of jurisprudence. and of the regulation of jurisprudence to substantial ends. researchable instead than pleonastic.
However. the functional definition suffers from a figure of troubles. First. as with the substantial definition. the relationship between the legal system per Se and the functional end can present jobs. It is possible to restrain authorities functionaries or recognize predictability through means other than the legal system. Suppose one society has less official discretion than its neighbour even though the latter has seemingly more restrictive Torahs. 9. Which enjoys a greater regulation of jurisprudence under a functional definition?
Another job is the fact that looking at “predictability” or “official constraint” or any other map makes it difficult to do any unequivocal statement about the degree of regulation of jurisprudence in a whole society. Government functionaries may do literally 1000s of determinations each twenty-four hours in a given system. Some of them may be extremely constrained. while others are non. It is non at all clear how to aggregate the degrees of discretion for single types of determinations into an overall step of the regulation of jurisprudence.
Observation: The above treatment makes it clear that though there are some positive commissariats for guaranting regulation of jurisprudence in Bangladesh Constitution. they are being outweighed by the negative commissariats. Though our fundamental law provides for 18 basicss rights for citizens. these remain nonmeaningful version to the multitudes because due to poverty and absence of proper legal assistance the hapless people can non recognize them. 22 It besides clear that the application of the rule of the regulation of jurisprudence is simply a travesty in our state.
However. chances for set uping society strictly based on the democratic rule of the regulation of jurisprudence are non wholly absent from the civil order. We have a constitutional authorities elected through a free and just election. But what is needed for the really cause of the rule of democratic regulation of jurisprudence is- 1. To divide the bench instantly from the executive ; 2. To name an ombudsman for the save of transparence and democratic answerability ; 3. To do the parliament effectual and to allow the jurisprudence doing organic structure to make its due concern in
cooperation with each other authorities and resistance ; 4. To reform the jurisprudence implementing bureaus and constabularies force to free them out of corruptness and to liberate them from political influence so that they could genuinely keep the regulation of jurisprudence ; 5. To hammer national integrity and political relations of consensus built around the basic values of the fundamental law. viz. democracy. regard for each others human rights. tolerance. communal harmoniousness etc. 10. Decision: Above treatments clearly shows that the present status of regulation of jurisprudence in Bangladesh is non satisfactory.
However. the proposed steps for get the better ofing the defects of regulation of jurisprudence besides are non concluding but these are cardinal. Independent and peculiar policy for regulation of jurisprudence is a must for get the better ofing the ambiguity and anomalousnesss in regulation of jurisprudence. After all. authorities must be committed to guarantee the security of life and belongings of the people. protection of single rights and the dissention of justness on the footing of the equality and equity. On the other extreme. the resistance. civil society and societal groups and organisations besides have the moral duties to assist and collaborate with the authorities in this occasion.
