A UNIQUE SOURCE OF LAW (!)

As a student of law, during the early days of my undergraduate studies, I have been taught by my esteemed teachers that in modern parliamentary democracies laws are basically of two types, namely: parent laws or laws made by the parliament and secondary laws or laws made by executive or judicial bodies by dint of the lawmaking power vested in them by the parliament. We obey these laws because being enacted by our elected representatives or their delegates, at least in theory they reflect our collective conscience. However, sometimes the practice of many of our bureaucrats and even politicians tells me that the teaching of my esteemed teachers and what I teach to my undergraduate students about the sources of law is inapplicable or incomplete in the context of Bangladesh. After all, there is another visible source of law in Bangladesh that can nowhere be found in the statutes or textbooks on law but is seemingly no less effective than the known sources of laws. 

Here I am referring to the conscience or more appositely the perception of right and wrong of the bureaucrats and politicians belonging to the party in power (no matter which political party is in power or even whether a political force is in power) and the 'efficient and worldly' way it is enforced. This powerful source of 'law' is manifest in bureaucrats and politicians inflicting punishments on ordinary men and women which is not authorised by any law. This 'conscience-driven and vibrant' source of 'law' is expressed in the instant order of powerful bureaucrats or ministers (e.g. manhandling a public servant by a minister or a Member of the Parliament for neglect of duties or punishing a citizen for violating a law). We have witnessed similar righteous enforcement of 'law' during martial law regimes too. 

Unlike, the trials in formal courts based on the formally recognised sources of law, this type of instantaneous and colourful demonstration of the delivery of justice has many 'advantages' and so it should be lauded (!). In courts, the accused is not guilty unless she/he is proven SO and the guilt has to be proven beyond a reasonable doubt. And often for various reasons, an accused may remain unharmed even though she/he may have violated a law. In any case, in regular courts there are many procedural safeguards which may stand in the process of quenching the desire for prompt justice. However, the enforcer of this efficient 'law' in our case is the witness, arbiter, and also the ultimate enforcer of the 'law'. In this unique and efficient delivery of justice mechanism, the technicalities of the law are totally immaterial, lawyers are absent, as is the complete absence of the question of self-defence of the accused. What a triumph of justice this is where there is no delay whatsoever in punishing the wrongdoer! 

Clearly, astute politicians can feel the vibes of the people and what would win votes for them. They know that many of us are very keen on instant gratification of the desire for justice. As long as a 'wrong' is punished, many of us are too eager to be oblivious to the trivial nuances of the modes or forms of punishment or the identity or motive of the punisher. This is why they feel scant or no need to care for the law as contained in the formal sources. They know that while some idealistic people may despise their actions, there will be many more to laud them for their bravado. Similarly, most bureaucrats know where the power belongs. They are also acutely aware that the pronouncement of Article 21(2) of the Constitution that, "Every person in the service of the Republic has a duty to strive at all times to serve the people" means nothing in reality. Ruling the people is necessary, serving them is futile.

As a society, we have progressed from the perception of the past that the king's conscience could be the law. And let us always remember that the conscience of an individual, however powerful or conscientious the individual may seemingly be, cannot be a substitute for collective conscience as is reflected in our codified laws. Hopefully, in years to come, we would have such an ingrained culture of accountability that 'righteous and instantaneous application of law' (you may read benevolent use of power with malevolent consequences at best, or cheap and distasteful projection of powers at worst) would be unimaginable even for the most powerful in the society. Unless and until that day comes, our society would be far from an egalitarian society and would resemble an absolute monarchy more than a republic. However, as we continue to hope for that day, seemingly, the only hope that we may pin on for now is the heavy hands of the law and the proper application of that law by its enforcer, to punish those who apparently believe that their conscience is as good as law. 

The writer is an Assistant Professor of Law at BRAC University.