By Asif Nazrul

We who seek to build democracy must not be guided by the assertion that democracy and rule of law always go together. Flawed system of democracy can rather jeopardize rule of law and rule of bad law can impede democracy. Many faulty democracies all around the world have demonstrated how rule of law can be exploited to deny human rights, breed inequality and foster discrimination and thus defeat the true spirit of democracy. In legal history of even some very advanced countries we have seen that the revolution of law in the 1800s and early 1900s had predominantly facilitated and protected the interest of a tiny section of people comprising the industrialists, landlords and corporate powers.
   The relation between democracy and rule of law may rather be described as complimentary to each other. An efficient democratic system can ensure that rule of law results in administration of social, economic and political justice. Equally, laws framed and implemented in order to respond to the interests of common people may strengthen and safeguard democracy. Various dimensions of the relation between democracy and rule of law can be elaborate upon by discussing the constitutional and legal provisions of Bangladesh.
   
   Democracy creating laws to suffocate itself
   Democracy is weak, incomplete and limited in particular in many countries which have a colonial legacy. This may result in promulgation of inefficient, bad or black laws which suffocate or weaken democratic norms and freedom of citizens. Apart from various Acts and Ordinances, examples are available in the supreme law of Bangladesh.
   Preventive detention (article 33 of Bangladesh’s constitution): This Article allows unlimited period of detention as the formation of Advisory Board (comprising two persons qualified to be appointed as judge and a senior government officer) can be politically manipulated. Disclosure of the reasons for detention can be denied on grounds of ‘public interest.’
   Limiting freedom of opinion of Members of Parliament (Article 70): Voting against black or bad laws by ruling party members would result in losing membership of parliament. Identical consequence would follow even in case of abstention from voting or absenting from the Parliament on the day of voting.
   Allowing absence in the parliament (Article 67): Absence of MPs from Parliament without leave for 89 consecutive sitting days is allowed. Aspirations and interests of the constituents and communities thus remain poorly or inadequately represented.
   
   Non-compliance weakening democracy
   An excellent set of laws may even be largely worthless unless its compliance is ensured through efficient legal, judicial and administrative system. Also, constitutional provisions aimed at democracy and good governance could contribute nothing unless those are respected by the major stakeholders. Examples of disregarded or poorly observed laws include the following:
   No proceeding could be instituted in any court for publication by or under the authority of Parliament of any report, paper, vote or proceeding. (Art 78, Bangladesh Constitution)
   Standing committees are authorized to examine draft bills, review enforcement of law, and inquire into the activities or administration of a Ministry. They may require any agency or person to furnish relevant information, enforce attendance of witnesses and examine them on oath and compel production of documents (Art 76, Bangladesh Constitution)
   Ombudsman has the authority to investigate any action taken by a Ministry, a public officer or a statutory public authority. (Article 77). In theory, strength of the office of Ombudsman lies in its power to focus public, legislative and government attention to grievances of citizens.
   Reporting obligations to the Parliament include Article 77 which states that the Ombudsman shall prepare an annual report concerning the discharge of his functions, Article 132 that requires reports of the Auditor General relating to the public account to be laid before the parliament and Article 141 which obliges the Public Service Commission to submit by 1st March of each year a report of the performance of its function of the previous year. The report of the PSC has to be accompanied with a memorandum setting out the cases in which its advice was not accepted, reasons thereof, and the cases where it was not consulted unduly. In addition, according to Article 145A, all treaties with foreign country have to be laid before the Parliament.
   Rules of Parliamentary Procedure: Speaker could permit anyone to see any evidence laid before a Committee, even before its submission to the Parliament, Publication of the Report or any part of the report of the Committees with direction from the Speaker and submission to the parliament are authorized. (Rules 207-212).
   
   Building blocks
   Strengthening democracy and rule of law must aim at securing transparency, accountability, participation and effectiveness in governance system and public functionaries. The legal and institutional building blocks for such strengthening may include the followings.
   Giving due regard to the Constitution: Giving adequate effect to Constitutional provisions on local government, ombudsman, and qualifications of judges and members of election commissions.
   Strengthening watchdog bodies: In order to enable Parliament to take the lead role in overseeing the Executive, Article 70 may be modified to restrict its application only to no-confidence and Budget related bills, Article 67 may be modified to require mandatory presence, as far as possible, of the MPs in the Parliament, Article 76 may be amended to require formation of the Parliamentary Committees at the first session of the Parliament etc. There should also be efficient utilization of other watchdog institutions like the Anti-Corruption Commission, the National Board of Revenue and the Bangladesh Bank and establishment of Office of Ombudsman and a Human Rights Commission.
   Legal reform: Legal reforms may include strengthening election laws regarding disclosure of information by election candidates, elaborating on disqualifications of candidates, mandatory registration of political parties and quick disposal of election disputes etc and promulgating and implementing new laws like Right to Information Act and Witness and Victim Protection Act.
   Building capacity to manage information flows: Building and strengthening such capacity would include full automation of the important governmental agencies, capacity building of such institutions and adequate training of concerned staff.
   Legal education: Government as well as media and NGOs could play significant role in engaging and empowering disadvantaged sections in policy making.
   
   End note
   It can not be overstressed that democracy functions properly when its exercise is not limited to conducting periodical elections. Democracy functions properly when the public representatives conform to democratic values in their approach, mindset and activities, when they enact and ensure enforcement of laws which reflect the interests of the majority as well as protect the rights of the minorities, and when the judiciary and the oversight bodies perform independently and efficiently. Democracy is alive when the citizens have adequate access to information and rights to express.

   Dr Asif Nazrul is professor of law, Dhaka University