Business law assignment CSE 411

Students name: Surid Anirban Student ID: 0805019 Department: CSE

Q1. (a) What do you understand by Rule of Law? Briefly describe basic principles of Rules of Law. (b) Critically evaluate the relationship between law and society. Do you think that Rule of Law prevails in Bangladesh? Explain your view point with suitable example.

Answer to ques no a: Rule of Law:

In earlier times (and in a few centuries now) certain classes and individuals possessed special privileges and were judged by special law. The modern view is to apply the same law over all persons equal rights and privileges for the protection of their human liberties. Democracy can remain only in a society of equals. The concept of equality of all persons before law is the basis of what is called the Rule of Law. The Rule was summarized by Dicey as follows:

Three basic principles of Rule of Law:

1. The Rule of Law states that, no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts.(Dicey). In other words, There must be supremacy of law, No one shall be punished except for definite breach of law and The breach of law must be proved in a duly constituted court of law. No citizen can be arrested or imprisoned, unless he violates specifically any law of the country in force and is accused of a charge by the court. Thus the Rule of Law implies equal protection of law. 2. In the second place, Rule of Law means that, no man is above law. Every man whatever his rank or condition, is subject to the ordinary law of the State and amenable to the jurisdiction of ordinary tribunals.What is law legal right and legal obligation for me-must hold equally as such for all citizens.(Dicey). In other words, Rule of Law means Equality before the law, Every citizen is subject to the ordinary law of the land and The citizen has to face trial in the same law courts, irrespective of his status or position in the society.

3. In the third place, the Rule of Law is the result of statutes and judicial decisions determining the rights of private persons. Thus the constitutional law of the country follows from the ordinary law of the land.

Comments:
The Rule of Law is therefore, no respecter of persons. It is applicable to everybody (from Prime Minister to the convict, and from the millionaire to a beggar). The judiciary must be independent and impartial if the Rule of Law can mean anything real. Unlike the Indian Constitution, the British Constitution has developed through historical evolution on the basis of common law. The rights of citizens of England are not written in a special document (like Fundamental Rights or a Bill of Rights). They are specified in common law. If an ordinary citizen or the sovereign power interferes with the legal right of a citizen, the remedy is to be sought with the help of common law. Therefore, Dicey observes that the rights of the citizens have been protected by the ordinary law of the country and the Rule of Law.

Criticism:
The three principles, which Dicey described in relation to the Rule of Law, have been criticized by many jurists, including I. Jennings, H. Laski and W.A. Robson. The main criticisms are summarized below:

1. The emergence of Administrative Law:

With the increase of constitutional complexities, the government departments have made many rules framed under various acts. This is known as Administrative Law. There also special tribunals for the settlement of professional disputes. At the time of Dicey (19th century Great Britain) there existed separate military courts and courts for churchmen. The executive department often uses the arbitrary and prerogative powers in day-to-days work and for the purpose of performing the administrative work applies the discretionary power in most cases. Therefore, it is apparent that the Rule of Law is breached and the power of government is far reaching.

2. Economic inequalities:
In order to ensure legal equality Prof. Laski emphasizes the need of economic equality. Punishment for the same offence varies because police enforcement is frequently partial. Therefore, from the standpoint of law, the word equality is meaningless, unless there is economic equality followed by social and constitutional equality.

3. The supremacy of the Legislature:

The third principle of the Rule of Law is the supremacy of common law. But in fact the principal basis of the constitution of England is the supremacy of Parliament. The sovereignty of Parliament in Britain has not been established by the Court. Although the fundamental rights of a citizen are established upon the basis of conventional rules and the court is the protector of those rights, yet Parliament of Britain is the sole authority to bring any change over or to nullify the existing rules. Therefore, it is understood that Parliament is the fundamental basis of the Constitution of England and judging from the standpoint of modern age, the concept of the Rule of Law is only a theoretical idea. This however does not apply to India because the constitution of India is written and there is a provision of fundamental rights in the constitution.

Benefits:
Securing the Rule of Law despotism, authoritarianism and corruption can be mitigated swept away from the State. Democracy can be attained only under the Rule of Law. Conversely Rule of Law can be attained only in Democracy. The Rule of Law protects liberty and rights of citizens. It creates an atmosphere of peaceful living. So, the basic principles with true education enhances the caliber of citizens, legislators and voters, thus enabling them to maintain Rule of Law free from its defects and designs of self-keeping persons.

Answer to ques no b: The relationship between law and society:

Society:
The term society is used to mean a community or a group of persons, living in any region, who are united together by some common bond. A common bond is formed when some uniformity of factors like nearness, nature of the people, habit, custom, inhibition, beliefs, culture tradition etc. appears. The common bond leads to forming social rules or rules of social behavior. The rules are made by members of the society. Disobedience of the rules is followed by punishment in the form of social disapproval. There is no positive penalty associated with the violation of social rules except excommunication or ostracism.

Law:
Law unlike social rules is enforced by the State. Law, according to Holland is a rule of external human action enforced by the sovereign political authority. The objective of law is to bring order in the society with a view to enable its members to progress and develop with some sort of security regarding the future. Law or definitive rules are made to ensure the peace and progress of a society. The State makes law. Whatever is not enforceable is not law. Laws of the State are applicable to all without exception in identical circumstances.

Relationship between society and law:

Many jurists and social scientists in the 19th century interpret the relationship of Law and society. Ancient Law by Henry Maine, is the pioneering work in this respect. According to him, with social advance, law must be framed and changed on the basis social needs. Social scientists like Emile Durkheim, L.T. Hobhouse, Max Weber, etc., observed that moral values rather than the settlement of disputes of interests should be the objective of law. According to Rosco Pound, Law is profoundly related to the following three elements: The legal structure of the society Constitutional ideals and principles and

 Legal procedure.

The nature and the principle of Law of a democratic society must be different from that of an autocratic system. It has been accepted on all hands that Law is today one of the imperative tools for performing social purposes. The legal system of a country reflects the rules of society. If there is a change of social rules usually there occurs a change of law. For example, in the middle ages in Europe, the landlord and the feudal system prevailed. At that time the rights of the peasant was very restricted. In modern times when the feudal system was abolished the rights of the peasant and citizens were enlarged. Therefore change of social rules leads to change of law. The change of law also leads to change of rules of society. Legislation has enlarged the rights of Hindu women regarding inheritance, property rights and marital rights. In these cases the change of law has been accepted by the society.

My opinion on the Rule of Law prevailing in Bangladesh:

Of course I believe that Rule of Law prevails in our country Bangladesh. But sometimes we experience some vicious activities incidents for which we cant boldly say that our country firmly cultures Rule of Law. Rule of Law in our country has some good and bad impacts. Here I am giving a brief outline of them:

Good impacts of Rule of Law:

For prevailing justice and Rule of Law our Bangladesh government has been capable of giving punishment to the accused of the murder of our Father of nation, Bongobondhu Sheikh Mujibor Rahman. Not only this but also, the government has been succeeded in materializing the execution of the murderers of our renowned national four leaders. Recently with the help of Rule of Law our government has started judicial steps by giving trial of crimes against humanity during the liberation war in 1971. Education is the backbone of a nation. Quality of the education is the basement of building a nation. Foreign countries such as USA, UK, Canada, Australia etc. maintain quality of education for turning their huge population into prosperous manpower. Adoption of Education policy is the first condition of quality education. Rule of Law in our country has adopted an Education policy for the well being of education of our future generation.

 Women empowerment is one of the most spectacular events in our country. Women are playing important roles in political field such as, our Prime Minister, Foreign Minister, Agriculture Minister, Speaker etc. which was made possible for the sake of Rule of Law. Preventing terrorism is the most significant outcome of the Rule of Law for the last decade. The law enforcing authorities did and also doing their best for ensuring terrorism free Bangladesh. Establishing peace and sustaining it at greater cost is the main responsibility of a country. So, the Rule of Law takes many steps for peace making. Recently our government has had a peace agreement with Shanty-bahini to restore peace, law and ordered situation in the Chittagong Hill tracts. Not only this but also, for securing our countrys sovereignty recently the governments big step was the settlement of maritime boundary with Myanmar. This is also a great achievement of the Rule of Law.

Bad impacts of Rule of Law:

Murder has been one of the most common phenomenons of violation of Rule of Law. Popular journalist couple Sagor and Runi was murdered in their apartment, former Mayor of Norshingdy, Lokman was murdered cruelly few months ago and it is a matter of great regret that our law enforcing forces still are in the darkness of finding the real culprits. So, it is taking too many times to give proper punishment to the murderers where the victims family, whole nation is eagerly waiting for it depending on the blessing of Rule of Law. Another example of violation of Rule of Law is kidnapping. For hostility or political issues it has been increased. Famous BNP leader of Sylhet M Ilias Ali,51 along with his car driver has been missing since the early hours of April 18. Law enforcement agencies have apparently halted their drives to rescue missing BNP leader M Ilias Ali, restricting their activities only to interrogating suspects. Contacted, Additional Deputy Commissioner (ADC) of Dhaka Metropolitan Police Masudur Rahman said they have not yet made any breakthrough in probing the incident. Yet no trace of him is discovered. Not only this but also, missing of Jamaluddin, a businessman in Chittagong was also a pathetic incident. Serious violation of human rights is one of the worst impacts of instability of Rule of Law in a country. A hapless victim of the use of arbitrary power by the law-enforcers, the teenage boy Limon has now landed in jail. The police have deprived the boy of a complete course of treatment of his amputated leg in order to produce him in a Jhalakathi court for hearing in an arms case. He was undergoing treatment at the orthopaedic Pangu Hospital in Dhaka after being shot in the leg by members of the Rapid Action Battalion (RAB) near his home in Jhalakathi. It was a double jeopardy for Limon and his family members. The Pangu Hospital authority released him though he was still recovering. Even the request from the

chairman of the National Human Right Commission to keep the victim under treatment for some more days could not prevail upon the hospital authority. This is how a victim of mistake by law-enforcers has now been subjected to further torture, apparently because the boy's father had sued the members of RAB for crippling his son. This is not only an inexcusable wrong done to an innocent boy from a poor household, but also an instance of gross human rights violation. Extra judicial killing or killing by crossfire by law enforcing agencies has been increased for the sake of violating the Rule of Law. It would be worthwhile to note here that the RAB is already under scrutiny by the local as well international human rights watch bodies, the civil society and the media for their records in extra-judicial killings. Corruption has become the most common phenomenon of violating Rule of Law. Corruptions of Padma Bridge and Hallmark,Destiny are the evidences of it. Gigantic amounts of money have been consumed by a group of criminals which were supposed to be used for the welfare of people of Bangladesh. Use of law enforcing agencies and civil administrations and judiciary for political purposes is also a nasty effect of unsecured Rule of Law. Unrest situation in educational institutions making the students session delay is increased for unstable condition of Rule of Law in Bangladesh.

So, it is actually confusing to directly answer whether Rule of Law prevails in our country or not. We can give examples of both sides though bad sides are heavy in quantity. But, still we are hopeful that under a good government, the current unstable condition of Rule of Law will be put into order and we will have a peaceful prosperous anarchy free Bangladesh in the near future.