The rule of law

How distant is the dream!
M Abdul Hafiz
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While passing on to us the 'white man's burden' the law givers of our colonial vintage bestowed on us a great inheritance -- an elaborate legal framework and a long history of legal tradition. But then, like in most other developing countries where a civil society and democracy are still in embryonic stage the governance is essentially the exercise of state power through its integral organs to achieve the state's overall objective. And so are its application of legal system. So, universal arrangements did not quite work satisfactorily in our country due primarily to inadequacy of political morality expected of our leaders who in turn seized power to run the affair of our country. They took for granted the state-endowed crude power bereft of its moral content for ensuing public obeisance to their rule.

This could have worked for a while but often backfired bringing to question the government's authority to rule with stained hand and tainted image. The public did not appear prepared to accept in silence the government's double standard of law and its application, myriad dichotomies in the political conducts of the leaders, government's failures in dispensing justice and its inability to redress genuine grievances of the people. Inevitably there was a loss of public faith in the government's sincerity, if not ability to deliver. This is notwithstanding our great legal inheritance!

As a result there is an apparent failure in our law and order. There is a syndrome of public defiance to authority and an apathy to its writs. The manifest expression of this defiance to authority abounds all around us and are all two familiar: the public taking law in their own hand and the mob dispensing summary justice to suspected offender, a blanket flouting of government orders and so on. And no one knows how many innocents are perished in the process!

The public concern over the chaos and anarchy is obvious. But at the same time the government is also not unconcerned and its responses are also apt. The government has promptly taken step to arrest the trend. It has beefed up the law enforcing agencies, introduced improved crime control gadgets, devices and, of course also enacted special legislation to deal with certain categories of offenders. It's leaders have gone about exhorting docile people to be law-abiding. They have poured down plentiful of pet sermons about their obligations and the virtues of disciplined societies. But there seem to have been few takers. The people, by and large, remain unimpressed and unconvinced.

In the meantime public defiance stiffens and social disorder takes much more diabolical shape. If the government is perplexed at the development the people are in no pleasant situation when choosing between compliance with grudge and defiance with its accompanying risks. Those who are ruled find neither an example to emulate nor an incentive to comply with the dictates of those whom they consider out and out hypocrite. Also the commands of those who rule ring hollow unless substantiated by a moral authority.

The ingredient of good governance which is essentially the evenhanded implementation of law and government policy. Such implementation is possible only if it is done fairly with the same force over the privileged as over the poor. And the onus of this onerous task lies with the ruler who are customarily the privileged ones. The standard application of law for all would involve some sacrifices on their part by subordinating themselves to the "due process of law" even if they are in a position to evade it. In a country like Bangladesh this sacrifice is perhaps the price of a good governance and rule of law.

The last but not the least are the factors of urgency and earnestness -- if we are to ensure a rule of law in this country. A time has already arrived when even decent people have begun to question: why should they pay taxes as the proceeds are likely to be embezzled by their corrupt leaders! why they should hand over a criminal to the police who can be easily bribed and the rogue would be free to resume his crime with vengeance! why they should pay back borrowed money to the Bank -- where another, a bigwig can manipulate its evasion! It is precisely the question of restoring confidence that they do not and can not happen henceforth.

At the core of our problems either of governance or of the application of law is today precisely the absence of this moral authority an authority only with which the Bangabandhu, the nation's founding father wielded during the historic non-coperation, power that had few parallel. Because he spoke from a moral high ground. In contemporary political history it is a unique example of moral authority at work.

Bangladesh has a fine legal framework and its legal inheritances are rich indeed. Although existing laws are sufficient to ensure good governance - only if they are enforced without fear and favour. But our rulers have a proclivity to overlegislate, ostensibly to concentrate more and more power in their hands. Our failures are not so much in the making of laws or in their absence but in implementing them.

Over the years the government institutions and the administrative machinery have gradually lost their capacity to act upon the laws in a fair, impartial and effective manner.

The disrespect for "due process of law" is what lies at the heart of the most of the problems relating to governance. Good governance is nothing but the obeying of the laws by every one from the highest to the lowest in the same standard manner. When the laws are broken whether for the good reasons or bad the results are always adverse. Unfortunately, breaking of law always begins at the top because then few can check the law breaker at that level. One who breaks law at the top however instantly loses his moral authority to make others obey the law. Once the ruler at the top breaks or circumvent law, rule or tradition is left with no authority to stop those under him from doing so. This is the crux of the whole problem.

In our country there are often deviations and exceptions with regard to the application of law while making political favour or dispensing nepotism. That sets in motion a series of actions deflecting one from the "due process of law". In despicable practice of allotments, permits and quotas in our political culture one has to show utter disregard for this "due process of law." When the ruler begins to deviate from the established procedures the permanent bureaucracy also gets mutilated in the form of a desperate search on the part of the rulers for the pliant subordinates thus compromising the competence of entire administrative machinery.

It is indeed futile to institute a commission or consultancy or hold seminar or symposiums to discover where lies the rot which as in any case fester inexorably.