Democracy Cannot Work without Rule of Law
The judicial system as of today is a combination of the Judges and lawyers. It is common knowledge that the Bench and the Bar are complementary to each other. The bar must co-operate with the bench; it is not only likely but also desirable that they should differ on interpretations of law, evidences and precedents, but cordiality and courtesy must be forthcoming from both sides. To-day, more than ever before, we need an independent, bold and impartial judiciary which can uphold the values of the rule of law, and inspire public confidence in the judicial system.
Aristole has noted that, "The State comes into existence for the sake of life and it exists for the sake of good life". I truly believe that for the existence of good life there should be a strong, incorruptable, independent and efficient judiciary in a state. If, a state is governed strictly in accordance with the regulated laws and the rules, society would have stability and the people should be able to prosper and flourish. The three branches of the State, namely, the legislature which makes laws, the executive which puts laws into effect and the judiciary which decides disputes about the law, affecting the citizens and the State and between citizens and citizens, must act unitedly and harmoniously for the prosperity of the country. These organs of the State should try to see to it that the laws do not conflict with one another. In other words, these organs must treat the laws as parts of an organic whole as public welfare is the highest law.
The original constitution of the People's Republic of Bangladesh envisages a complete independent judiciary. The constitutional Court of Bangladesh has got full authority of judicial review of the administrative actions to safeguard life, liberty and property of citizens. Judicial Review limits the freedom of government. It is customary under a written constitution that Judges should be called upon to perform a higher and solemn responsibility to interpret the constitution. This duty reposed on us by the constitution cannot be avoided as has been aptly put by Chief Justice Marshall of the United States of the Supreme Court -
"The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties a case may be attended, we must decide it, if it be brought before us; we have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be a treason to the constitution."
A V Dicey, the great political philosopher, in his book The Law of the Constitution observed -
"From the prime minister down to a constable or a collector of taxes, is under the same responsibility for every act done without any legal justification as any other citizen".
The Constitution of Bangladesh has given the Judges of the Supreme Court the enormous power to restrict the legislative power of the Parliament. Samuel Johnson made no mistake when he said, "There must in every society be some power from which there is no appeal".
I need to say a word about the profession of law. The legal profession all over the world has been considered to be made up of persons who are learned, enlightened and respectable people of society. The profession of law has been universally acknowledged as a noble and learned profession. A lawyer should not only be well versed in law, he should also be diligent in the pursuit of his professional conduct, and above all he must be honest and maintain a high standard of ethical values. The Bar is a profession or it is nothing. But it is more than a profession, for it is connected with the administration of justice. Therefore duty to the court and service to the client come before any question of personal benefit.
Lawyers have played (and are playing) a leading role in all countries of the World in making their societies truly democratic. They are working tirelessly for achieving better living conditions for the commonman, protecting his fundamental human rights, for securing better administration of justice and for the supremacy of rule of law. For the progressive change in our society the contribution of lawyers will be a mile-stone towards peace, prosperity and well being of Bangladesh. Whereas in the past it was from the best lawyers that parliamentarians and law-givers in our country were drawn, it is unfortunate that today most of the good lawyers have abdicated their role in active politics. Industrials and businessmen have taken over that place. It is in the interest of the betterment of society that lawyers should regain their due place in the political life of Bangladesh.
In many countries, lawyers have been active leaders of public opinion and have materially contributed to the general welfare of the people. Being trained in the subject of law, they are the best technicians for working democratic institutions. On many occasions, their advice have resulted in the promulgation of better laws, and their co-operation has made it possible to maintain a higher standard of justice.
The legal profession is no doubt expanding in Bangladesh and a substantial number of young lawyers are joining the Bar from the middle class with a rural background. It is, therefore, essential that well-established lawyers help the young lawyers who come from economically weaker background in their struggle for existence and sustenance in the profession. The Bar will not grow unless senior members of the profession help the younger ones. It is said that the profession of law is a jealous mistress. It is imperative that a junior member get support of a senior member of the Bar. If senior members fail to train up young lawyers, gradually the Bar will become poor. I can assure the young lawyers that there is ample opportunity in the legal profession, provided you can get over the difficult time in the beginning of your career and acquire legal knowledge and technique of high professionalism with ethical values.
More than 140 years ago Abraham Lincoln, articulated his idea in the following advice to the members of the Bar -
"Discourage litigation, persuade your neighbours to compromise whenever you can. Point out to them how the nominal winner is often a real loser - in fees, expenses and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man".
Unfortunately, the moral tone of which Abraham Lincoln spoke has grown weaker with the passing years and the rapid expansion of the legal profession.
Let me remind of the saying of Daniel Webster who said, "Tell me a man is dishonest, and I will answer he is no lawyer". This is the moral obligations of the profession.
I find it necessary to say a word about delay in disposal of cases in our legal system. One of the most critical problems for our legal system is that of delay in disposal of cases. The problem is indeed a serious one.
Bangladesh is a developing and poor country, and it is not always possible and feasible to expand the existing court system by the executive organ of the government. But the picture of disposal of cases in highly developed countries, like as, the United States of America, the United Kingdom and Japan, is not at all very satisfactory. The problem of delay in disposal of cases is equally acute all over the world. Chief Justice Warren of the United States said -
"Interminable and unjustifiable delay in our system is today compromising the basic legal rights of countless thousands of Americans and imperceptibly corroding the very foundation of constitutional government in the United States."
Therefore, I urge up my colleagues and the Judges of Bangladesh as a whole, to manage their own courts efficiently and try to dispose of cases as far as possible within the existing court system. I sincerely hope that the lawyers as members of the legal profession will cooperate with the court in adjudging cases as quickly as possible. That justice delayed is justice denied may sound like a platitude, but is indeed a basic truth in relation to the dispensation of Justice. Delay has also a demoralising effect on the confidence in the judiciary as well. I am hopeful that unreasonable delay would be avoided by the cooperation of all who are connected with the administration of justice system in Bangladesh.
The new mechanism of alternative dispute resolutions, known as ADR, must be started from pre-court as well as pre-trial conciliations and arbitrations to mobile courts like look Adalat in India and Grameen Courts to reduce the arrears and render justice inexpensive and speedy in Bangladesh. I would urge upon the Government and the legal community to adopt the experience of India and Sri Lanka for the improvement of our legal system through ADR.
One of the primary questions is that we need to apply ourselves to the necessity of establishing Rule of Law in Bangladesh. The lawyers in every civilised country think that Government should subject itself to 'rule of law'. But what is rule of law? As Lord Atkin aptly said, 'Rule of law is like oxygen in the air. People do not realise its existence unless it is withdrawn'.
Democracy cannot work successfully without the establishment of Rule of Law. And there can be no Rule of Law without an independent judiciary. Without Rule of Law, democracy is meaningless. Our Constitution envisages a parliamentary system of Government.
The legal community can make a great contribution towards the successful working of Rule of Law as it possesses specialised knowledge of the laws of a country. For the successful working of Rule of Law, the role of a lawyer is very important. A society without rule of law turns into a jungle and that is why it has been said that where law ends, tyranny begins.
My colleagues and myself are fully conscious of the great responsibilities that lie on our shoulders. Judges are also accountable, not only to their personal conscience, but also to the constitution and ultimately to the people who are the makers of the constitution. I would like to point out in unequivocal terms that the wind outside is not very congenial to the growth and flourishing of democracy. Let us build judiciary on a stable foundation so that we can withstand the winds of time and build a strong, viable and effective institution in the country. Judges must shun politics, but it is their duty as well to see to it that the fundamental human rights of the citizens are not violated.
The author is the Chief Justice of Bangladesh. The article is based on his speech to the Supreme Court Bar Association on 2 Jan, 2000.
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