In today’s neoliberal world, the key slogans of an ideal state or a just governance system are ‘rule of law’, ‘human rights’, and ‘democracy’. The rule of law is one of the core conditions set by the World Bank and the IMF for granting aid and investment.
Even countries with authoritarian regimes like Russia and China also speak in favour of the rule of law. Indeed, the rule of law is one of the most important benchmarks for determining a government’s legitimacy.
But what is the rule of law, really? Simply put, it means that governance will operate under a set of specific, universally applicable rules and laws. Government actions will be conducted according to law, the law will apply equally to all, no one’s rights can be violated without legal sanction, and everyone will enjoy equal protection under the law.
Here, the rule of law primarily refers to a set of procedures. It does not address how laws should be made (through democratic or authoritarian processes) or what their content should be (whether they include fundamental rights, fairness, equality, or justice).
In this sense even an extremely authoritarian government can claim to have upheld the rule of law, and by following certain procedures they can legalise despotic decisions also.
The most valued interpretation of the rule of law insists that, along with formal legal frameworks, there must also be public consent or a democratic process in lawmaking. In addition to legality, the idea of legitimacy gets emphasised here.
Without a formal legal framework, democracy is defenceless, as the executive division can expand or shrink the scope of the law at will. Likewise, a legal framework without democracy suffers from a legitimacy crisis.
In this concept, citizens’ fundamental rights would not only be components of the law itself but also be considered as broader background for the whole system. An independent judiciary and its power of judicial review would become the centre of balance. The judiciary is granted the authority to act as an arbiter in actuality here.
In essence, this concept of the rule of law means, all state powers must operate within limits determined by the law, guided by democratic values and fundamental rights, as well as remain under the supervision of an independent and impartial judiciary.
Laws must be enacted through transparent, accountable, democratic, and pluralistic processes, and no law shall be enacted contradicting the fundamental rights.
There shall be the protection of judicial review against arbitrary acts by law enforcement, separation of powers, protection of basic rights, equality in the eyes of law, as well as easy, speedy, and harassment-free access to impartial courts. Above all, the state itself must be bound by law in its dealings with citizens.
Bangladesh too has formally adopted these principles of the rule of law, and every government in the past five decades has superficially claimed to have established it. But what has this rule of law actually brought us and where is it taking us?
2.
In Bangladesh, laws are formally enacted in the national parliament through elected “representatives of the people.” But that is merely the formal procedure. In reality, our laws are made in the secretariat, through bureaucratic procedures, entirely under the control of the executive branch.
Drafts of the law are prepared by bureaucrats, and despite clear provisions in the Penal Code, every law includes immunity clauses for officials acting in “good faith”. Loyal teachers, advisers, and intellectuals of the ruling party assist in drafting.
After a bill is approved by the cabinet, it goes to the law ministry. Cabinet approval effectively means approval by the prime minister. Basically after technical review, the bill is sent to parliament for approval as law.
Once the prime minister approves it, there is no reason for it not to be ratified in the parliament. Parliament spends at most 10 to 12 per cent of its total time on lawmaking. A bill gets passed in just 20 to 30 minutes. In the lawmaking process there, it is always a chorus of ‘ayes’ that prevails.
When the parliament is not in session or has been dissolved, the president issues ordinances. But since the president has no real power, this authority is exercised in his name by the prime minister or the chief adviser of an interim government. Later, the parliament simply ratifies these ordinances in the next session.
Rules and regulations are created for implementation guidelines of the laws approved in the parliament. These are entirely bureaucratic products. Although stakeholders’ opinions are sought and various arguments are raised in public debates, those inputs never appear in the final draft.
3.
According to the rule of law, every citizen is entitled to equal protection under the law and the state must not act discriminatorily in the application of law, and it won’t violate citizens’ rights or dignity.
But in Bangladesh, harassment is rampant even in basic services like birth and death registration, land deeds, business licensing, pension collection, and so on. There is no public safety, no guarantee of fundamental rights either.
If you go to protest, the state will beat you, shoot you, arrest you, imprison you or worse, abduct and kill you. Then it can also smear your and your family’s reputation, claiming you “fled” or “joined extremist groups”, file false cases, deny you bail, or grant you bail and then file new cases as soon as you are released. And if you turn to the courts, you will still not find justice there, because the very system is discriminatory.
According to a 2025 Judicial Reform Commission survey, 80.10 per cent of citizens believe lawyers unnecessarily waste time, 90 per cent think court staff harasses litigants, and 84 per cent believe staff demands bribes. Lawyers frequently boycott courts, adjourn hearings, and engage in politics. When denied bail or a favourable order, they threaten judges.
Bangladesh has the lowest ratio of judges in South Asia. Judges will arrive late to court, clerks and bench assistants would have to be bribed, and then begins the endless labyrinth of at least 15 to 18 procedural steps. Summonses will be delayed, and the opposition will repeatedly seek extensions and interim orders.
Years will pass, and then decades. The next generation will take over the case, the court will lose your files, and your descendants will keep circling the courts and lawyers’ chambers for five, twenty, fifty years.
4.
The gateway to the criminal justice system is the police station. Complaints or general diaries must be lodged there. Earlier, even filing a GD required bribes. Now, “online GDs” are promoted, but server issues along with police’s reluctance and non-cooperation make it a nightmare.
In cognisable cases, a complaint has to be filed. Based on the complaint police investigate and decide whether to accept the case. But since complaints are not recorded, police have the scope for arbitrariness. They delay in registering cases. When they do, you must bribe the investigating officer. Even then, the investigation will be careless and prolonged.
If the police refuse to file a case, you must file a complaint case in the court, which then forwards it to the police for investigation. Then there is the public prosecutor’s irresponsibility, their tendency to take bribes, and them opposing bail despite knowing that the case is false or politically motivated, simply to please the government.
The police or prosecution fails to produce witnesses, and for various reasons the case remains pending indefinitely. Securing bail also comes at a huge cost and if you cannot afford it, you rot in jail without trial. And, to challenge a decision of the government or other authority, you must go to the High Court, an expensive process far beyond the reach of ordinary people.
5.
Meanwhile, various initiatives will appear to address these problems. There will be initiative for formal, procedural reforms, increasing the number of judges, and establishing a separate judicial secretariat. Some measures will be implemented, some not.
There will be no independent investigation or prosecution agency. The Special Powers Act used for cases intended to harass may fall into disuse for a while, but “anti-terrorism laws” will take its place.
Police will sometimes be instructed to register all cases. They will file record cases indiscriminately, resulting in case-trading. Then they will be told to stop “harassment cases”. Ordinary citizens will face harassment trying to file complaints. At times, accused persons will be denied bail while, at other times thousands will get bail within hours.
Amid all this, we will hear declarations like, “About 80 per cent of the announced judicial reform agenda has already been implemented”, meaning, three fourth of the “rule of law” has been established!
But this is inevitable because, we see the law and justice division from the procedural point of view, as if fixing procedures alone will solve all the problems. Because of this mindset, we fail to view the rule of law from a political and philosophical perspective, or to study it as part of the historical evolution of the modern state.
The very creation of the ‘modern state’ took place through the process of colonisation, where the sovereignty of the state was placed above the sovereignty of the people. What is most essential now is to critically examine the structure and expansion of state power in our own context.
*Rashed Rahom is a researcher or History of Law.