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Messages - Md.Avi Alam

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Relationship between executive & legislative in a parliamentary form of government differ from that in a presidential form of government:

Montesquieu and Blackstone maintained that the three organs of govern¬ment should be kept separate and distinct and one should have no relation with the other.
But strict separation of powers is neither desirable nor practicable. The government is an organic unity and the legislature and the executive must work in co-operation and collaboration.
Executive & legislative relation in Parliamentary form of Government:
1. The executive is not separated from the legislature. The members of council of ministers are the members of legislature.
2. The executive is accountable to the legislature. The executive loses power when it loses the confidence of the legislature. There is less of separation of powers in the Parliamentary government.
3. One person is head of state while another person Prime Minister is head of government & executives.
4. The Prime Minister can appoint only the members of parliament/legislators as minister.
5. The tenure of the executive is not fixed. The Council of Ministers is dismissed if it loses the confidence of the legislature before its tenure is over.
6. The executive head may address the legislature at any time, especially under the cabinet form of government. The sessions of the legislature open with the speech of the chief executive head.
7. The legislature controls the executive through a vote of no-confidence.
8. The chief executive head in all parliamentary governments has the power to summon and prorogue both the Houses of the legislature. He may also dissolve the Lower House and order for fresh elections.
9.  Executives have more or less complete control over the legislative work of the legislature.
10. Executives exercise powers of 'delegated legislation. The parliament makes laws in general broad terms and delegates the powers to the executive to fill in the details.
11. Executives control the finance, prepare the budget and present it to the Parliament.
12. The Bills passed by the legislature are submitted to the chief executive head for final approval. A Bill cannot become an Act unless it has been consented by him.
Executive & legislative relation in Presidential form of Government:
1. The executive is completely separated from the legislature. The members of executive are not the members of the legislature.
2. The executive is not accountable to the legislature. The legislature cannot remove the executive from power through no-confidence motion.
3. One-person is head of the state as well as the head of government/executives.
4. The President appoints persons from outside the legislature as minister.
5. Executive has a fixed tenure normally, the executive head (President) stays in power for the whole term. It is not easy to remove him from power through impeachment.
6. As there is no accountability of the executives to the legislatures, the Presidential government is too democratic. The executive has very little direct control over legislation.
7. Certain legislatures perform some direct executive functions as for example; the Senate of the United States shares with the President his power of making appointments and treaties.
In fact, the executive provides leadership to the legislature whether it is cabinet system or presidential one. The U.S. President is not only chief executive but also has become the 'chief legislator' too. The executive initiates, formulates and explains the legislative and financial policy and urges the parliament to accept it.
In fact, in democracies, the general principle has come to be accepted that legislature performs one function, that is, to elect the executive and then entrust it with powers. It exercises only supervision lest the executive betrays the trust.
These arc thus two wheels of the c art of the state and must move in harmony and co-operation. The executive has, in practice, become more powerful.
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Md.Avi Alam
Department of Law
Daffodil International University

Substantive laws / An overview on judicial review.
« on: July 19, 2018, 03:57:42 PM »
Meaning of Judicial review:

1. in the sense of constitutional supremacy:
The concept of judicial review are first comes from U.S.A. and the case was Marbury VS. Madison. The US Constitution does not say that it the supreme law of land and not does this constitution confers on the Supreme Court power to declare a law ultra vires.
(1)   Primary and strict view:
 Judicial review of law made by the legislature, the judiciary has to power to   examine the constitutionally of laws made by the legislative.
(2)   Broader and liberal view:
(1)   Judicial review of made by the legislature,
(2)   Judicial enforcement of fundamental right.
(3)   The judicial reviews of administrative action are goes under the provisions of constitution.
(4)   Judicial review of administrative action under the provision of statutory law.
(5)   Judicial review also delegated legislation.
2. Judicial Review in the sense of parliamentary supremacy:
(1) Judicial review of administrative actions under provision of statutory laws.
(2) Judicial review of delegated legislation.
Definition of Judicial review:
 Judicial Review is a type of court proceeding in which a judge reviews the lawfulness of a decision or an action made by a public body based on consistency with the Constitution. It includes that jurisdiction of the court by which it can declare a law made by the legislative inconsistent with the Constitution or with the provisions of fundamental rights and therefore unconstitutional & void. The procedure and scope of Judicial Review differs from country to country and State to State, still its aim remains the same that is to protect the sanctity of the Constitution of the land.

The inherent power of the court to exercise judicial review:
The legal instrument of a written constitution is judicial review of laws. The expression judicial review has different meaning in different branches of law & is used also in the ordinary law in countries having no written constitution.

1. Doctrine of Judicial review to declare a law unconstitutional:
  In constitutional law it has got a definite significance in countries having a written constitution which is treated as a legal instrument, the review by a competent court, of the validity of a law passed by the legislature on the ground imposed by the written constitution and the power of such court to declare the law to be unconstitutional & invalid. 
2. Guardianship of the Constitution belongs to the Courts:
It is clear that a written constitution is intended to operate as a limitation upon the powers of various organs of a state. The Machinery to enforce the limitations of power, under those constitutions where judicial review exists, this guardianship of the constitution belongs to the court.
3. Major propositions in the Marbury v. Madison case decision:

The case resulted that the American constitution was a legal instrument to declare some laws to be unconstitutional. Also set forth major propositions, such as;
a.   That it was enforceable in the Courts, like any other law.
b.   That it was capable of being interpreted by the courts like any other legal instrument.
c.   That the constitution constitutes the higher law, i.e. a law superior to the law made by the legislature.
d.   That the constitution was the source of all governmental power and limited the powers of all the organs of the state.
e.   That in case of conflict between the higher law and the ordinary law, the former shall prevail and a law repugnant to the constitution must be void.
f.   That it is for the courts to determine whether an ordinary law has contravened the higher law, and in case of such contravention it would be the duty of the courts to invalidate it as constitutional.
g.   Being the fundamental law, it cannot be changed by the legislature by its legislative process.
The decision increased the Court’s power by encouraging the judicial department to say what the law actually is. So from this, a court may now declare an Act of the Congress/Parliament void if it found prove that the Act was inconsistent with the Constitution.
4. the term, “Judicial Review” included impliedly within the Constitution:
The typical example of such Constitution is the Constitution of the People’s Republic of Bangladesh. Article 7(2), 26, 44(1) & 102 of the Bangladesh Constitution indirectly support the Judicial Review system. A recent example of the exercise of this review power would be the High Court’s decision to scrap the 16th amendment of the Constitution that empowered the Parliament [by articles 96(2) & 96(3)] to impeach Supreme Court judges for incapacity or misconduct. The Court declared the amendment illegal & unconstitutional and against the principle of separation of powers & the independence of the judiciary.
5. An introduction to judicial review in Bangladesh:
Article 26 and 44 denotes that laws inconsistent with fundamental rights will be void. However, this does not apply to any amendment of the Constitution made under article 142. While judicial review power is vested in the High Court Division under article 102(1) which is one of the basic structures of the constitution and it cannot be taken away. Whereas judicial review power under article 102(2) is not fundamental or guaranteed, it is only available if no other equally efficacious remedy is available.
6. Bar to Judicial review in Bangladesh:
Again, there exists article 47 according to which no law shall be deemed to be void on the ground of inconsistency with the Constitution if Parliament expressly declares that such provisions have been made to give effect to any of the fundamental principles of state policy. This article is a clear contradiction to the above articles.
7/ Constitution is built around six basic principles:
The Constitution is built around six basic principles: popular sovereignty, limited government, separation of powers, checks and balances, judicial review and federalism. In popular sovereignty, all political power resides in the people. They are the only source for any and all governmental power.
8. Popular case study Case study in Bangladesh;

A.  Farzand Ali vs. West Pakistan; 22 DLR (1970) 203.
The power of judicial review of superior courts is a matter of constitutional conformant in our country and it cannot be taken away or abridged by ordinary legislation.

B. Anwar Hossain Chowdhury vs. the State; 1989 BLD
Judicial Review is a basic feature of the Constitution and as such cannot be taken away of control over by government of the constitution.”[8th amendment case]

Judicial review is not the only means of constraining the ruling authorities in a democratic government, and it is almost certainly not the most effective means. Elections, the defining feature of modern democracy, probably deserve that title, and mixed government, with its associated checks and balances, probably ranks next.

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Md.Avi Alam
Department of Law
Daffodil International University

Law / Comparative discussion between Territorial Sea & EEZ:
« on: July 15, 2018, 03:44:23 PM »
Comparative discussion between Territorial Sea & EEZ:

1/ The distance of Territorial Sea is 12 nautical miles and Exclusive Economic Zone 200 nautical mile.

2/ Foreign ships cannot enter into the territorial sea without permission, let alone the exploration and exploitation. On the other hand, no need to ask permission for foreign ships to enter the EEZ, but they are not allowed to explore and exploit the natural resources.

3/ Territorial Sea - 12NM (24,000 yds.) from the baseline, this is where the state has full authority, although in most cases they cannot prohibit passage.
On the  other hand EEZ has the Sovereign rights for the purpose of exploring, exploiting, conserving and managing natural resources, whether living and nonliving, of the seabed and subsoil and the waters and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds; Jurisdiction as provided for in international and domestic laws with regard to the establishment and use of artificial islands, installations, and structures, marine scientific research, and the protection and preservation of the marine environment; and Other rights and duties provided for under international and domestic laws.

4/ Exclusive Economic Zones give countries the exclusive right to develop resources within them and can be used for anything, including offshore wind farms, natural gas and oil extraction and/or access to finishing grounds.

On the other hand, previously, territorial waters, which are defined as extending up to 12 nautical miles (22km) off a country’s coast, had been used as the basis for economic activity.

5/ Subject to this Convention, ships of all States, whether coastal or land-locked, enjoy the right of innocent passage through the territorial sea. But in EEZ there is no provision of Innocent Passage.

6/ Subject to certain conditions territorial sea can be stopped, Passage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of the coastal State if in the territorial sea it engages any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State, any fishing activities etc. But there is no provision to make stop of EEZ.

7/ In the territorial sea, submarines and other underwater vehicles are required to navigate on the surface and to show their flag. But not in EEZ.

8/ The coastal State may adopt laws and regulations, in conformity with the provisions of this Convention and other rules of international law, relating to innocent passage through the territorial sea, in respect of all. But not in EEZ, relating to innocent passage, only for other reason.

9/ The coastal State may, where necessary having regard to the safety of navigation, require foreign ships exercising the right of innocent passage through its territorial sea to use such sea lanes and traffic separation schemes as it may designate or prescribe for the regulation of the passage of ships. Buy not in EEZ. They only did the establishment and use of artificial islands, installations and structures; marine scientific research; the protection and preservation of the marine environment.

10/ Land-locked States shall have the right to participate, on an equitable basis, in the exploitation of an appropriate part of the surplus of the living resources of the exclusive economic zones of coastal States of the same sub region or region, taking into account the relevant economic and geographical circumstances of all the States concerned and in conformity with the provisions of this article and of articles 61 and 62 but not in territorial sea.

11/ Geographically disadvantaged States shall have the right to participate, on an equitable basis, in the exploitation of an appropriate part of the surplus of the living resources of the exclusive economic zones of coastal States of the same subregion or region, taking into account the relevant economic and geographical circumstances of all the States concerned and in conformity with the provisions of this article and of articles 61 and 62. But not in territorial sea.

12/ The coastal State may, in the exercise of its sovereign rights to explore, exploit, conserve and manage the living resources in the exclusive economic zone, take such measures, including boarding, inspection, arrest and judicial proceedings, as may be necessary to as like the territorial sea.

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Md.Avi Alam
Department of Law
Daffodil International University

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