Legal Affairs of Bangladesh

By Md. Mainul Islam

Definition of Law

Law means the rules and regulations. In general the rules and regulations that are obeyed by man in the society are social laws. For regulating the behavior and conduct of man in the society the laws and regulations that are created by government are called the state laws. Laws are the sum total of definite rules accepted and approved by the state. These regulate man's conduct. Different political scientists have given different definitions of law. In the words of John Austin "Laws are the command of the sovereign". Holland says, "laws are such common rules as are human behavior." enforced by a sovereign power to control external. Woodraw Wilson has given the best definition of law. He defines law are. "those established customs and principles which have gained social and state recognition and are enforced by the authority and power of the government"

Characteristics of Law

Some characteristics of law are found. These are- laws regulate the external conduct of man. Every law is approved and recognized by the state. Laws are universal and equally applicable to all. Laws are to be obeyed. The violator of law gets punishment.

Sources of law

There are many sources of law. The political scientists have pointed out the six sources of law. These main sources of laws are- (1) customs (2) Religion (3) Adjudication (4) Scientific deliberation/discussion (5) Equity (6) Legislature.

1. Customs: The rules and regulations that are prevalent in society for a long time are called customs. With the change of time the different customs get the statutes of law. Most of the laws of Great Britain grew up on the basis of customs.

2. Religion: From religion, the religious dictates and the religious books the laws originated. The Hindu laws, the Muslim laws etc. are the best example.

3. Adjudication: In many cases judgment cannot be made with the prevalent laws. The existing laws fall short to settle the case. The judges then, with their intelligence and wisdom, give interpretation of the prevalent ambiguous law to settle the matters. Thus new laws are created and later these laws are taken as a precedent in the similar cases. These laws are called the judge-made laws.

4. Scientific deliberations:Writings and scientific deliberations of renowned jurists are also regarded as important source of laws. The commentaries of the jurist and their opinions are very often accepted by the court. In England great importance is attached to the opinions of coke. Black Stone, and Hale.

5. Equity: Many a time the judges settle the case by their own sense of justice. Thus new laws are formulated by the judge's sense of justice.

6. Legislature: In modern time legislature is the most important source of law. The legislature creates new laws according to the needs of the state.

The rule of Law

If there is the rule of law in the state everybody can equally enjoy the independence and the amenities and facilities of the state. The stronger can not deprive the right of the weak. Everybody gets the opportunity to develop his personality by enjoying of rights. The rule of law means two main ideas: (a) Supremacy of law, (b) Equality in the eye of law. As there is the supremacy of law the government cannot misuse power. Nobody can be detained and punished without trial. If the rule of law is established, nobody can encroach upon the rights of others violating law. Even the government will not be able to encroach upon the independence of others. Equality, in the eye of law means everybody will have the shelter of law irrespective of the rich, the poor, and religion and community. The influential and the poor will enjoy the same right. The same law is for all. There cannot be personal freedom without the rule of law. The main aim of the civilized society is to establish the rule of law. It is not possible to establish the rule of law without a democratic system. Without the establishment of the rule of law the independence and right of the people are not secured. The rule of secures the fundamental right of the people. If this right is violated, remedy can be made through the court. It secures the fundamental right of the people from the encroachment of the government and ensures people to enjoy it. The rule of law is the custodian of independence and equality.

The method for conducting a state as well as the life style of the whole nation is reflected in a constitution. The constitution of Bangladesh was written and finally accepted on the 4th November, 1972 for conducting the state. It took effect from the 16lh December 1972. At a later stage at different times many amendments to the constitution were made. According to this amended constitution the state administration of Bangladesh is going on.

Characteristics of constitution

The main characteristics of Bangladesh constitution are as follows:-

1. The constitution is a written document.

2. "Bismillahir Rahmanir Rahim" is written in its preamble.

3. Some fundamental principles have been included for conducting the state.

4. There is a long list of Fundamental Rights in the constitution. These rights are indispensable for the development of personality and personal freedom. For the protection of these rights there is also guarantee in the constitution.

5. Universal Adult Franchise has been introduced.

6. Bangladesh has been declared a Republic.

7. Parliamentary democratic system has been introduced.

8. There will be Unitary Form of Government in the state.

9. The legislature will be unicameral. The name of the legislature is National Assembly.

10. The constitution is rigid (which cannot be changed easily)

11. The constitution is the Supreme Law of the country.

These are the main characteristics of the constitution. From these characteristics it is understood that the constitution of Bangladesh is a clear and excellent one.

The Basic principles of state administration

The state has some basic principles on the basis of which it is run. In the constitution of 1972 the state had four basic principles or pillars. These are Nationalism, Democracy, Secularism and Socialism. In 1977, these were changed and amended as follows:

(1) Complete belief and trust in Almighty Allah.

(2) Nationalism

(3) Democracy

(4) Socialism in the sense of economic and social justice (constitution as amended in 1998).

The President

The Head of the state of Bangladesh is the president. He is formal or Titular head. He is elected for a term of five years. The court has no jurisdiction over him. The national assembly can remove him from power by impeachment. No citizen of Bangladesh is fit for presidentship if he is below 35 years of age and not fit to be a member of the Assembly. He must be such as was never removed from the post of the president earlier.

The power and functions of the president:

The powers and functions of the president can be divided in six divisions. Such as-

(1) Executive function

(3) Financial function

(5) Emergency function and

(2) Legislative function (4) judicial function

(6) Miscellaneous function

1. Executive function

As the president is the constitutional head of the government, all the activities of the republic are conducted in his name. According to the advice of the Prime Minister he appoints other Ministers, Attorney General, Chief Justice of the Supreme Court, Ambassadors, three chiefs of the Armed Forces and others.

2. Legislative function

The president can summon the National Assembly session. He can suspend it or dissolve it. He delivers speech in the Assembly. The bills accepted in the assembly are sent to the president for this consent.

3. Financial function:

The recommendation of the President is necessary for any financial bill or claim for grant to submit to the Assembly.

4. Judicial function:

The president has the power to pardon a convicted person from his sentence or he has the power to lessen the sentence.

5. Emergency function: If the security of the country is endangered for any reason or the economic life is disrupted, the president can declare emergency.

6. Miscellaneous functions: The president administers the oath of the ministers and the judges. He awards title to illustrious sons of the county for special contribution. He maintains communication with other states of the world. As a constitutional head the president is placed at the topmost position in the state.

The Prime Minister: The parliamentary democracy was re-established in Bangladesh through the twelfth amendment of the constitution. In this system all the executive powers are in the hand of the Prime Minister. He/she and his Ministers are the real administrator of the country.

Appointment and the status: The president appoints the leader of the majority party the Prime Minister. The Prime Minister is the center of administration. The formation of ministry and their functions are controlled and guided centering round him.

Prime Minister's Power and Functions: As the head of the government the powers and functions performed by the Prime Minister are as follows.

1. Executive Power: The real Executive Powers of the government of the Republic of Bangladesh are in the hands of the Prime Minister and his Council of Ministers. The appointment of the ministers, high officials of the government, all the functions of judicial and foreign affairs are guided by the advice and decision of the Prime Minister. In fact all thd executive functions are performed by him/her.

2. Legislative function: Under his/her leadership the parliament creates laws of the country. The activities of the Assembly are guided centering round the Prime Minister.

3. Financial function:At the instance and advice of the Prime Minister the finance Minister prepares and places the yearly budget of income and expenditure.

4. Leadership refated function:In the parliamentary system the leadership of the Prime Minister is recognized everywhere. The Prime Minister is the leader of the majority political party in the Assembly. He is the leader of the legislature. In the assembly his position is unparallel. The Prime Minister is the leader and chairman of the Council of Ministers. Centering round him/her the Council of Ministers are formed, guided and dissolved. The Prime Minister is the leader of the nation. He/She guides the programmes on national basis. The Post of Prime Minister in Bangladesh is very important. Centering round his/her the government, the country, and the nations are guided. Under his/her leadership the functions and development of the state are dependent.

The legislature is one of the three organs of government. This organs creates necessary laws for the state. According to the constitution of 1972, the Legislature was introduced for the functions of the legislative organ of Bangladesh. The legislature of Bangladesh is known as Jatiya Sangsad. This is a unicameral legislature. Its permanent seat is in Dhaka, the capital.

The formation of Jatiya Sangsad The Jatiya Sangsad is now formed with 330 elected members. Of them 300 are elected through direct vote and 30 reserved seats for women. At preseut due to absense of the provision for reserve seats Jatiya Sangsad consists of 300 members. One Speaker and one Deputy Speaker are appointed from amongst the Members by the vote of the members of Jatiya Sangsad. The duration of the Jatiya Sangsad is 5 years. orfi 10 tins ?

The powers and functions of the Jatiya Sangsad: The powers and functions of the parliament (Jatiya Sangsad) can be divided mainly in 3 divisions; such as- 1. Law making function 2. Financial function 3. Function of control over the executive department.

1. The Law making function:The power of making laws of the country is vested in the Jatiya Sangsad. The Jatiya Sangsad can make new laws and change or amend the prevalent laws. The laws are created through bills. The bills accepted by the Assembly are placed to the president for his consent. In the making of laws the supreme power is vested with the Jatiya Sangsad. According to the constitution the Jatiya Sangsad can amend, change and improve laws.

2. Financial Function:Without the consent of the Sangsad no tax can be imposed or collected. The important responsibility of the Sangsad is to pass the budget.

3. Control over the Executive Department:The Jatiya Sangsad controls the Executive Department in different ways. The Prime Minister and his council of Ministers singly or jointly are responsible to the Jatiya Sangsad for their activities. If the Sangsad brings a vote of no confidence, the Prime Minister and the Council of Ministers have to resign. The parliament controls the Executive Department by raising questions on various matters, holding discussions and criticism on the budget and by the vote of no-confidence. The Jatiya Sangsad controls Army, Navy and Air Force of Bangladesh. Without the consent of the Sangsad the country cannot declare war or take part in war. To declare an emergency, the President has to make it lawful by raising it in the Sangsad. The Sangsad can impeach the President in case of his violating the constitution or by the complain of serious misconduct. The Jatiya Sangsad carries out these important duties. In the parliamentary system the importance of the legislature is recognized everywhere. The Jatiya Sangsad of Bangladesh is also no exception.