Monday 25 June 2012

Constitutional law of UK & USA

Legal system in Bangladesh After the emergence of Bangladesh in 1971, initially there was no change of laws and the judicial system. But with the coming into force of the Constitution of Bangladesh on 16 December 1972, the Supreme Court of Bangladesh with two divisions, the High Court Division and the Appellate Division, came into being. As the apex court the high court division has been vested with the power to hear appeals and revisions from subordinate courts, and also to issue orders and directives in the nature of writs to enforce fundamental rights and to grant other reliefs available under the writ jurisdiction.

The appellate division is vested with power to hear appeals from the decisions of the high court division or from any other body under any statute. The high court division has also powers of supervision and control of the subordinate courts and tribunals. The supreme court is a court of record and can punish any one for its contempt or contempt of the courts subordinate to it. The laws declared by the appellate division is binding on the high court division and law declared by either division is binding on all subordinate courts. The high court division may declare any law inconsistent with the fundamental rights as null and void. The President of the republic controls the judicial officers of the subordinate courts in consultation with the supreme court.

There are labour courts and labour appellate tribunals to decide labour disputes, administrative tribunals and administrative appellate tribunal to decide service disputes of public servants, income tax appellate tribunal to decide income tax disputes, custom, excise and VAT Appellate tribunal to decide disputes regarding custom and excise duties and VAT, court of settlement to decide disputes about abandoned properties, special judges to try corruption cases against public servants, special tribunals to try criminal cases under the Special Power Act 1974 and Nari-o-Shishu Nirjatan Daman Adalats to decide cases of crimes committed against children and women. To decide election disputes the election tribunals are constituted with judicial officers. Other tribunals follow the some procedure. Family courts have been constituted with assistant judges to decide family disputes. To decide money claims of the banks and other financial institutions Artha Rin Adalats have been set up presided over by judges, and insolvency courts have been set up presided over by district or additional district Judges to declare defaulting borrowers as insolvent. To try offences committed by children below the age of 16 years, juvenile courts have been formed with the magistrates and sessions judges, and juvenile courts follow the special procedure laid down in the children's Act.

Court martial formed under the provisions of the Army Act, Air Force Act, and Navy ordinance, tries the offences committed by the members of the armed forces, and the decision of such a court cannot be challenged in the supreme court. There are village courts in the rural areas and municipal conciliation boards in the urban areas to decide petty civil and criminal cases. The land appeal board is the highest authority to hear revenue appeals from the decisions of the subordinate land revenue authorities, and the national board of revenue decides tax, duty, excise and VAT cases at the highest level.

The legal system of Bangladesh is basically a common law system with the difference that the supreme court can not only interpret laws made by the jatiya sangsad but can also declare the same null and void and enforce fundamental rights of the citizens. Though the legal system is founded on the English common law, most of the laws of Bangladesh are statutory laws enacted by the legislature and interpreted by the higher courts. The procedural laws provide for an adversarial system of litigation in which prosecution has to prove the guilt of the accused who has no burden save in some exceptional cases, and the accused is presumed innocent till found guilty after trial, whereas in a civil case the burden is divided between the litigating parties. Moreover, there is a separation of powers amongst the legislature, executive and judiciary. The supreme court is not only independent of the other organs, but also acts as the guardian of the Constitution. Though the subordinate judiciary is independent in exercising of judicial power, the same is under eclipse due to the absence of separation of the lower judiciary from the executive. Consecutive governments committed themselves to separation, but as yet no action has been taken at the ground level. The Sangsad can enact laws, but the same cannot be inconsistent with the provisions of the Constitution, which include a number of fundamental rights. Thus the legislative power of the Bangladesh Jatiya Sangsad is not unlimited like that of the British parliament which is said to have power to make any law.

Legal System has developed gradually in Bangladesh with her growth as a nation over the centuries. Before the advent of British rule this part of the country was under Mughal rule. The Mughals seized power from the Turko-Afghan sultans who ruled the country since the beginning of the 13th century. It was under the Aryan rule since 6th or 7th century BC when they conquered the land by vanquishing the indigenous people. During the Turko-Mughal rule the country formed the eastern part of Subah Bangla and, during the British rule, eastern part of the province of Bengal.

Aryan legal system After coming to India the Aryans followed certain norms in their conduct with one another. The rules of conduct (achar) of each class included religious observances which were binding, and violation of the same was expiated by the rituals of penance (prayaschitta). The Brahmins, the priestly class, helped the wrongdoers in performing those rituals. Those rules of conduct were called dharma and included duties and obligations. In course of time it became the dharma of the king to compel the people to observe their rules of conduct and the Brahmins, as the repository of knowledge of those rules, advised the king in administering the same. Legal obligations and their violations were subject matter of litigation (vyavahara). The king and the judges appointed by the king decided the litigations. It was the obligation of the subjects to obey the command and law laid down by the king. As military chief he had the power to coerce people to obey his orders. The king maintained social order by awarding punishment (danda) to the violators of the law. Dandaniti or the rules about punishment was an essential part of the education of the king. But the king had to apply danda according to the established canons of dharma.

After Bengal came under Aryan rule, the system of law of the Aryans as modified by local customs and usages was in operation. During the rule of the Palas the chief justice was called Mahadandanayaka or Dharmadhikar and during the rule of Chandras Varmans and Senas he was known as Mahadharmadhyaksha. That system of law was also known as Hindu law. Laws compiled by Gautama, Budhyana, Apastamba, Harit, Vaisishtha, Visnu Manu, Yajnavalkya, Narada, Brihaspati, Katyanya etc were the main sources of the new legal system. In Bengal Jimutabahana's Dayabhaga, a digest of all codes of hindu law was followed in respect of inheritance and partition of joint property and in the rest of India Vijnaneshwar's Mitaksara, a commentary of the code of Yajnavalkya was followed.

Legal System under the Mughals During the Mughal rule, the legal system introduced by the Turko-Afghans was not changed, rather consolidated. In every pargana (mahal) consisting of several villages, there was a qazi to decide civil and criminal cases, a sikdar to maintain law and order, an amin to assess revenue and to decide land and revenue disputes and an amil to collect revenue. Similarly in every district there was a district qazi to hear civil and criminal cases of district town and also to hear appeals from the decisions of the pargana qazis.

The faujdar maintained law and order in the district, and malguzar was the head of revenue administration of the district and also decided land and revenue disputes. He also had power to revise decisions of the amins. Qazi-ul-quzat (chief justice) decided civil and criminal cases of the provincial capital and also heard appeals from decisions of the district qazis. The qazis administered justice according to the principles of Islamic law. But rules of the personal laws of the non-Muslims were applied by him in deciding disputes between them. The qazi was assisted by the mufti in deciding cases according to the rules of Islamic law and by the help of a person well versed in the personal law of the non-Muslims in deciding cases amongst them. The sikdar of the pargana and fauzdar of the district could punish the offenders for breach of peace only. The nazim (provincial governor) had powers to revise the decision of the chief qazi in criminal offences punishable with death or mutilation.

The provincial diwan had the power to revise the decision of the district Malguzar. The village panchayet's power was also intact during the Mughal rule. Though the zamindars, as government agents for collection of revenue, had no judicial power they usurped the same during the declining period of Mughal rule. By issuing firmans, the Mughal emperors promulgated laws in respect of secular matters and the same were binding. But they did not make any law contrary to Islamic principles. Rather, the Mughal emperor Aurangzeb appointed a commission for compiling the Islamic laws followed by the sunni school. The said compilation is known as Fatwa-i-Alamgiri.

Turko-Afghan legal system After the conquest of Bengal by bakhtiyar khilji in 1204 AD, the application of Hindu law was limited to the personal laws of the Hindus, and in the administration of justice the principles of Islamic law were applied. The country was then either ruled by independent sultans or by the representatives of the Delhi sultanate until the conquest of the province by the Mughals. None of the independent sultanat except the rulers of Hossain Shahi Dynasty could rule the country for long. Hence those rulers could not consolidate their power to administer the country peacefully.

However, their administration was modelled on the set up of the Delhi sultanate. The sultan was the head of not only civil and military administration but also of justice. The country was divided into units called iqlim or arsah. Each division was under an officer who was not only head of the civil administration of that area, but also head of the local army and maintained law and order. The sultan also appointed a judicial officer called qazi in each division for administration of justice in accordance with the Islamic law. The sultan also appointed a qazi in each and every town. Qazis administered justice with the help of the ulema, learned men in Islamic law. The qazi decided litigations between the disputing parties, whereas the sultan decided cases of rebellion and blasphemy. As head of the judiciary the sultan had power to revise the decisions of the qazis.

Legal system under British rule In 1857, Queen Victoria by a proclamation took over the administration of India from the hands of the Company. Codification of laws by the extended legislature under Government of India Acts was accelerated on the basis of recommendations of the law commissions. In 1862, the Calcutta High Court was established by amalgamating the supreme court, the Sadar Diwani Adalat and the Sadar Nizamat Adalat. At the same time, the Islamic system of law was replaced by the English common law system in 1862 with some modifications allowing both Hindus and Muslims to be regulated by the rules of their respective personal laws as enjoined by their respective religion. In 1864, the posts of qazis, muftis, moulavis and pundits were abolished.

The judicial officers of the subordinate courts were appointed from amongst the law graduates, practising lawyers and administrative officers who were members of the Indian Civil Service (ICS). High court judges were appointed from amongst the practising barristers, advocates and the district judges. The lowest level civil court was presided over by the munsif and criminal court by the magistrate in the subdivisional headquarters. However, there were three classes of magistrates having first class, second class and third class power of imposing sentences. Above these aforesaid courts were the courts of district judges, additional district judges and subordinate judges in civil matters, and the courts of the district and additional district magistrates, the sessions judges, additional session judges and assistant session judges in criminal matters in the district headquarters. The session courts were presided over by the same officer who decided civil cases also as district judge, additional and subordinate judge. Appeal lay with the high court from the decision of the district court and with the Privy Council in England from the decision of the high court. Till the partition of the country in 1947, the modified English legal system was in operation. Before the introduction of English legal system, massive codifications were undertaken starting with the enactment of the Evidence Act, 1853 and 1855, criminal procedure code 1861, Small Causes Court Act 1860, Penal Code 1860, civil procedure code 1859, Contract Act 1885, easements act 1882, Civil Courts Act 1871, and myriad other Acts, all incorporating principles of English Law. Code of Criminal Procedure, Code of Civil Procedure, Civil Act, Small Causes Court Act and Evidence Act were subsequently modified and reenacted.

The Constitution of Islamic State of Madina
Islamic law is based on revelation (QURAN and Sonnat) and reason (common sense). QURAN and Sonnat are fixed but interpretational understand of QURAN is variable, different people understanding QURAN differently. A doctor concentrates on medical benefits and medical miracles of QURAN. A lawyer is more impressed by legal aspect in QURAN. A layperson is more interested in commandments of QURAN and tries to be more obedient to Allah (SWT).

Quran was revealed 1400 years ago but it never gets old because it is a book of values and human values never change. Lying, cheating, stealing, are always bad and aill stay as a wrongdoing as long as human beings are around.

AGHL (reason) – All Islamic laws must be reasonable. Since United Nation has issued the human rights declaration and all nations of the world have accepted that, therefore, we can accept that as reasonable. Now we must interpret the QURAN the way that it will be compatible with United Nation’s human tights declaration. Most of the Islamic religious leaders who are enjoying the religious freedom in the west have reviewed the human rights declaration and find it fully compatible with Islamic understanding and have written about it in detail. To prove something is reasonable the issue must be debated freely in public, then people must be free to vote on it and their vote must be counted accurately, then, we can call it full democracy and the final outcome is considered reasonable. In the Western Democracy, congress is composed of people’s representatives who make the final decision on secular issues. If they make a gross mistake they will lose their job in the next election. A decision made this way is considered reasonable.

SONNAT is the traditional understanding of QURAN by our beloved prophet (PBUH) as narrated by his family Fatima Zahra (SA) and our twelve Imams (SA). Without the Sonnat people could say that QURAN is a holy book and that it is impossible for human being to follow it, but Sonnat will prove to you that these 14 people lived according to QURAN and it is humanly possible to live according to QURAN.

EJMA (consensus) – Only in religious matters, consensus of Ayatollah’s / senior religious leaders will make the final fetwa (order). In the 21st century all Ayatollah must be certified by the congress in their country, then they must review various Islamic Laws and approve or disapprove it for their nation. Ayatollahs must choose a leader for themselves for a 5-year period. This religious council must only debate morale and religious issues and not to get involve in military issues and foreign policy. Judicial system, military system and foreign policy must be under control of President and Congress, both elected fairly by their people like in United States.

Because Islamic Laws are based on revelation and reason it never gets old or out dated. Secular democracy in the west is failing and issues like high rate of divorce, gay marriage, gays adopting children, immorality, and drug and alcoholic abuse are threatening the fabric of secular democracy therefore, President Bush and the Republican Party are trying to bring back God and Morality to this Western Secular Democracy by Faith Based Community Initiative. 
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