H.L.A. Hart’s contribution to the world of jurisprudence has been exemplary. The Concept of Law (by Hart) has been a pillar for legal positivists. Hart believed the legal system is a union of primary and secondary rules. Primary rules are duty-imposing rules, which are backed by sanctions or threats. On the contrary, secondary rules are rules about rules. They govern the primary rules and give validity to them. The rule of Recognition is the ultimate rule of validity in secondary rules. Unlike statutes or court judgments, the Rule of Recognition is not written anywhere but exists in the practice and acceptance of legal officials (internal point of view). The rule of recognition provides an authoritative criterion for identifying all valid legal rules. Thus, the primary rule derives its validity from the Rule of Recognition. According to Article 7(2) of the Constitution of Bangladesh, “This Constitution is, as the solemn expression of the will of the people, the supreme law of the Republic, and if any other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency, be void.” Moreover, it is pivotal to understand and comprehend the rule of recognition. This article will investigate whether Bangladesh has a Rule of Recognition.

Is the Constitution of Bangladesh a Rule of Recognition?

As previously mentioned, the Constitution is regarded as the supreme law of the land, and any law that conflicts with it will be void. As a result, we might presume the Constitution is the Rule of Recognition. However, in the case of Anwar Hossain Chowdhury Vs Bangladesh, the Supreme Court introduced the Basic Structure doctrine, which prevents the legislature from amending the basic structure of the Constitution. As a result, the Supreme Court now has the authority to determine which amendment is valid and which violates the basic structure of the Constitution. Previously, the parliament could amend any law in the Constitution, as per Article 142. As a result, the validity of the Constitution becomes subject to judicial interpretation. The Anwar Hossain case also reduced the powers of the Parliament. As of now, parliament amendments can be struck down by the Court if they breach the basic structure of the Constitution. As a result, it is tough to say that the Constitution is the Rule of Recognition, as the judiciary plays a decisive role in interpreting the Constitution. According to Hart, a rule of recognition depends on what legal officials accept as authoritative. If the Courts followed a formalist approach, the Constitution would be the rule of recognition. To further establish my point, the judiciary invalidated the Sixteenth Amendment in the case of Government of Bangladesh and Others v. Advocate Asaduzzaman Siddiqui and Others. Thus, the Supreme Court asserted its authority to interpret and protect the core principles of the Constitution. Hence, we can establish the importance of judicial interpretation and how judicial decisions give validity and play an instrumental role in shaping the rule of recognition. 

Is judicial Interpretation the new Rule of Recognition?

As we have previously discussed, the judiciary plays a monumental role in giving shape to the Constitution and providing validity to the laws. However, it will be vague and ambiguous to state judicial interpretation as the rule of recognition. Ronald Dworkin’s criticism of Hart’s rule of recognition is pivotal. Dworkin argues that Hart’s rule of recognition only focuses on the pedigree-based rules (laws valid due to their source). However, legal systems do not necessarily run on source-based rules. Legal systems run on principles such as fairness, equality, and justice. Dworkin further emphasized how judges do not apply laws in cases, but rather apply their judicial mind and discretionary power to attain fairness, equality, and justice. 

In the case of Secretary, Ministry of Finance v. Masdar Hossain, the Supreme Court of Bangladesh made independence of the judiciary a fundamental feature of the Constitution. There was no explicit provision for the separation of powers. Instead, the Supreme Court applied its judicial mind and discretionary power. Dworkin would say that the court relied on constitutional principles instead of formal rules. This can be established further in State v. Bangladesh Legal Aid and Services Trust (BLAST) and Others. In this case, the Supreme Court of Bangladesh ruled that custodial deaths and torture violate Constitutional rights. Before, no rule explicitly prohibited torture and death by custody. As a result, Dworkin further emphasized how judges do not apply laws in cases, but rather apply their judicial mind and discretionary power to attain fairness, equality, and justice. In another case, Bangladesh National Women Lawyers Association (BNWLA) v. Government of Bangladesh, the Supreme Court recognized sexual harassment as a violation of fundamental rights. At that time, Bangladesh had no law against sexual harassment. Thus, the Supreme Court judged not from the laws but from the principles of equality and justice. In another case, Aruna Sen v. Government of Bangladesh, the court ruled that detention without trial violates a person’s fundamental rights, reinforcing the judiciary’s role in upholding constitutional principles. In another case, Abdul Mannan Khan v. Government of Bangladesh, the judge ruled that corrupt politicians can be disqualified, even though election laws do not require moral integrity. As a result, it is established how courts apply their discretionary powers and morality to help attain justice. However, it would be wrong to categorize judicial interpretation as a rule of recognition. This is because judges have the power to adjudicate under the Constitution. If judges are given too much power, they will act arbitrarily. As they are not elected, their arbitrary rulings can very much undermine democracy. In addition, judicial interpretations lack consistency, as they are subjective.   

Statutory Laws as the Rule of Recognition

The Parliament cannot pass any law inconsistent with the Constitution. So, it was evident that the parliament does not have the ultimate rule of validity. At the same time, the Acts give validity to many other rules. For instance, the Labor Act 2006 validates the Labor Rules. However, sometimes parliamentary acts are duty-imposing rules, and the Rule of Recognition is a secondary rule that validates other primary rules. For example, the Penal Code is a duty-imposing law (primary law) that Parliament enacts. As per Section 302 of the Penal Code, whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to a fine. This is a prime example of a duty-imposing law. As a result, it would not be right to say that statutory laws have a rule of recognition. To further establish my point, in the case of Bangladesh Italian Marble Works Ltd. v. Government of Bangladesh, the Supreme Court declared the Fifth Amendment unconstitutional. The Supreme Court ruled that martial law is illegal and cannot be legitimized by the Parliament. This case further clarified that the Parliament cannot make any laws violating the Constitution’s Basic Structure.

Customary Laws as the Rule of Recognition

Customary laws are unwritten legal norms that are followed by a community. According to Hart, in a society without courts, legislature, or officials, the society is guided through customary laws. Hart stated them as primary rules. However, Hart further elaborated on why secondary rules are needed. A regime of primary rules will not have any way of identifying which rules are valid in a society. As the laws are not codified, it will be challenging to determine which is a valid rule in a society. Moreover, it will be difficult to change or reform the law. In addition, it will be tough to settle disputes. Primary rules lack the authoritative method of settling disputes, as no law validates the primary rules. Thus, a society cannot function based only on primary rules (customary laws). The customary laws may not always be made in good faith.  

Conclusion

The paper set out to find whether Bangladesh has a rule of recognition. However, the answer to this question is not very straightforward. We may see the Constitution as the supreme law of the land as per Article 7(2). However, the meaning is often determined by judicial interpretation. The judiciary does not follow a formalist approach but uses discretionary power to provide justice. Thus, it can be asserted that Bangladesh does not follow a single, fixed rule of recognition. I believe Bangladesh follows a hybrid model where the Constitution provides validity, and judicial interpretation gives it application. However, this raises other vital questions about the limitations and legitimacy of judicial power in Bangladesh’s legal system.