Comparative constitutional Law

Topic- Need for constitutional Federalism in Bangladesh

Federalism refers to the mixed or compound mode of government, combining a general government
(the central or 'federal' government) with regional governments (provincial, state, Land, territorial or
other sub-unit governments) in a single political system. The most common Features of Federalism
are-
 Division of powers
In a federation, the division of power between federal and regional governments is usually outlined
in the constitution. Almost every country allows some degree of regional self-government; in
federations the right to self-government of the component states is constitutionally entrenched.
Component states often also possess their own constitutions which they may amend as they see fit,
although in the event of conflict the federal constitution usually takes precedence. In almost all
federations the central government enjoys the powers of foreign policy and national defense as
exclusive federal powers. Beyond this the precise division of power varies from one nation to
another. The constitutions of Germany and the United States provide that all powers not specifically
granted to the federal government are retained by the states. The Constitution of some countries like
Canada and India, on the other hand, state that powers not explicitly granted to the provincial
governments are retained by the federal government.
 Bicameralism
The structures of most federal governments incorporate mechanisms to protect the rights of
component states. One method, known as 'intrastate federalism', is to directly represent the
governments of component states in federal political institutions. Where a federation has a bicameral
legislature the upper house is often used to represent the component states while the lower house
represents the people of the nation as a whole. A federal upper house may be based on a special
scheme of apportionment, as is the case in the senate’s of the United States and Australia, where
each state is represented by an equal number of senators irrespective of the size of its population.
 Constitutional change
Federations often have special procedures for amendment of the federal constitution. As well as
reflecting the federal structure of the state this may guarantee that the self-governing status of the
component states cannot be abolished without their consent. An amendment to the constitution of
the United States must be ratified by three-quarters of either the state legislatures, or of
constitutional conventions specially elected in each of the states.
Need for constitutional Federalism in Bangladesh: What do we want from federalism?” asked the
late Martin Diamond in a famous essay written thirty years ago. His answer was that federalism— a
political system permitting a large measure of regional self-rule presumably gives the rulers and the
ruled a “school of their citizenship,” “a preserver of their liberties,” and “a vehicle for flexible
response to their problems.” These features, broadly construed, are said to reduce conflict between
diverse communities. In the socio- economic context of Bangladesh politics has always prevailed
over constitution in the practical spare of life. If we look into the history of political development in
Bangladesh we can see that since the independence various political parties in Bangladesh have used
the unfettered and unchecked power vested by constitution to government when they climbed the
seat of power. It is ironic that our constitution itself has failed to promote just governance. In the
history of world, politics has always been played dirty but the constituent states provided check and
balance to its government through its supreme law. Human nature is to misuse power which is
recorded since ancient times and in case of Bangladesh the proverb power corrupts and absolute
power corrupts absolutely is deemed to be a perfect match. My reasoning for this, is that the
constitution has conferred legislative and executive functions over a single unitary government and
when they misuse this power there is no way of stopping them otherwise resorting to state level
violence and strikes. The power conferred in the government of Bangladesh is similar to dictatorial
in nature but for a term of 5 years. A government elected for five years adopts policies as it wishes
in making of law to imposing taxes like they wish and no mechanisms for guidance or checking is
mentioned in the constitution. So in light of these circumstances unitary system of government
needs to be abolished and federal mechanism should be imposed through amendment of
constitution. Federal states has a division of power which leaves certain tasks to central government
and divides task of local tax imposing and policy making to local government. The benefit of this
division in context of Bangladesh can be realized in two ways firstly the central government and
local government provides check and balance in terms of power thus it also provides scope of a
region being governed by opposition of government although the central government is composed of
another party. Secondly local government will be concerned with the development of their particular
division providing a scope of very critical and root level development on division basis. Another
need of federalism can be better understood by bicameral parliament which is again needed in
Bangladesh to keep the balance of parliament in central governance. Almost all the democratic
countries have this feature except Bangladesh. A bicameral parliament provides a chance to create a
fair parliament where one house may consist of large majority of one party another house may
composed of another party thus providing scope of fair debates. So in light of this balanced feature
federalism is dire need for Bangladesh.
 What do you mean by Doctrine of basic structure? What are the difference between Legislative power and
constituent power? In the amendment context of Bangladesh the doctrine has been misapplied, do you agree with the
statement give account of reasons.

Legislative power is the authority under the constitution to make laws and to alter or repeal them. Which
means the power is derived from the constitution by parliament to make laws, Alter and repealing them.
On the other hand constituent power means having power to frame or alter a political constitution or
Fundamental law, as distinguished from lawmaking power such as a constituent assembly. Constituent
power- is much wider than the legislative power because the constituent power of the parliament is not
subject to the limitations as their legislative powers are. So here lies a clear distinction between
constituent power and legislative power in two aspects Firstly legislative power is derived from the
constitution itself or when there is no constitution from constitutional practices and is applicable to
domestic laws or ordinary nature. Secondly, the constituent power is derived from constitution to amend
constitution and a particular prescribed way is provided in such case. The nature of constitution although
is legislative but it works with the supreme law of the state and sometimes diverted to extraordinary ways
like referendums.

Amendment: The word 'amend' is derived from the French word signifying 'to make better', 'to change for
the better. Constitutional Amendment is the means by which an alteration to a Constitution, whether a
modification, deletion, or addition, is accomplished. Justice B.H. Chowdhury said that -The term
'amendment' implies such an addition or change within the lines of the original instrument as will effect an
improvement or better carry out the purpose for which it was framed Article 142 of the Bangladesh
constitution gives power to Parliament to amend any provision of the Constitution by way of addition,
alteration, substitution or repeal. Amendment to the constitution may be made through a Bill passed in the
parliament by the votes of not less than two thirds of the total members of the Parliament.

Doctrine of basic structure of the constitution: Basic structures of the constitution mean structural
pillars on which the constitution rests and that if these structural pillars are demolished the entire
constitutional edifice will crumble. The basic structure doctrine applies only to the constitutionality of
amendments and not to ordinary Acts of Parliament, which must conform to the entirety of the
constitution and not just to its basic structure. The basic structure doctrine is an Indian judicial
principle. The "basic features" principle was first expounded in 1964, in the case of Sajjan Singh v.
State of Rajasthan. Later In 1967, the Supreme Court reversed its earlier decisions in Golaknath v.
State of Punjab. It held that Fundamental Rights included in Part III of the Constitution are given a
"transcendental position" and are beyond the reach of Parliament. It also declared any amendment that
"takes away or abridges" a Fundamental Right conferred by Part III as unconstitutional. By 1973, the
basic structure doctrine triumphed in Justice Hans Raj Khanna's judgment in the landmark decision of
Kesavananda Bharati v. State of Kerala. Previously, the Supreme Court had held that the power of
Parliament to amend the Constitution was unfettered. However, in this landmark ruling, the Court
adjudicated that while Parliament has "wide" powers, it did not have the power to destroy or
emasculate the basic elements or fundamental features of the constitution.
Although Kesavananda was decided by a narrow margin of 7-6, the basic structure doctrine has since
gained widespread acceptance and legitimacy due to subsequent cases and judgments. In Indira Nehru
Gandhi v. Raj Narain and Minerva Mills v. Union of India, Constitutional Benches of the Supreme
Court used the basic structure doctrine to strike down the 39th Amendment and parts of the 42nd
Amendment respectively, and paved the way for restoration of Indian democracy.

Misuse of Doctrine in Bangladesh- Judicial principle which evolved into one country and gets
adopted by another is a common scene in world history. But the matter of sorrow is that adoption of a
doctrine just to use as a political tool and satisfying personal goals has become ultimate reality for
Bangladesh. It should be noted that we Bangladeshi have a long history of treachery since the very
beginning and so to that matter treachery still follows us in this day of age too. The judiciary which
should be the guardian of constitution has misused the doctrine of basic structure for personal and
political purpose. The misuse of judicial doctrine of basic structure is featured in The case of
Anwar Hussain .Vs. Bangladesh popularly known as 8th Amendment case and 13th Amendment case
respectively.
In 8th amendment Case The principle argument of the judgment is that, the constitution stands on
certain fundamental principles which are its structural pillars which the parliament cannot amend by
its amending power. The question was answered regarding opening divisional branch of High court
division throughout Bangladesh. Court held that one high court division as a part of Supreme court is
basic feature of constitution and therefore division of that by Military dictator was unconstitutional.
But the real gain of such decision was easy life for justices and political satisfaction of government.
Amendments are done with a view to improving the constitution for people there was no violation if
other branches of HCD to be opened rather it would have eased the court proceedings and speed up
trails.
In 13th amendment Case the judgment declared illegal the 15-year-old constitutional provision that
mandated an elected government to transfer power to an unelected non-partisan caretaker
administration to oversee a new parliamentary election on completion of its term. Reasoning of
Justice Khairul was a 3 months non elective government to hold elections was unconstitutional and
goes beyond the basic structure. Justice Khairul provided a scheme of Dictatorship to appease the
government. The caretaker government although non elected upheld democracy for 4 years and 9
months but now with no fair elections Democracy is lost for almost 5 years per term. Today the
citizens of Bangladesh who are lucky to have candidacy gets to vote. This is perhaps the most tragic
history of judicial misconduct in the history of world. So in view of this cases we can say the doctrine
of basic structure has undoubted been misapplied in case of Bangladesh.
 Compare constitution between UK and USA in terms of its

i. Legislative an executive organs

ii. Parliamentary democracy vs. presidential democracy

Comparative analysis of Legislative and Executive organs of UK and USA

THE EXECUTIVE

 The most obvious - and certainly the most visible - of the differences between the American
and British political systems is that the USA is a presidential system, with the apex of power
in a directly-elected President, whereas the UK is a parliamentary system, with the Prime
Minister holding office and power only so long as he or she commands a majority of votes in
the House of Commons.

 In theory then, the American President has much more power than the British Prime Minister
- he is the commander-in-chief and has the power to issue executive orders which have the
full force of law. However, the constitutional system of 'checks and balances' seriously
circumscribes the power of the US President who often finds it really difficult to push
legislation through Congress. By contrast, a British Prime Minister usually heads a
government with a majority of seats in the House of Commons and the ability to pass almost
any legislation that he wishes.

 In the United States, the transition period between the election of a new president and that
person's inauguration is two and half months. In Britain, the changeover of Prime Ministers is
virtually immediate - within hours of the election result.

 In the US, government is highly partisan with the President appointing to the executive
colleagues who are almost exclusively from within his own party. In the UK, government is
normally equally partisan with all Ministers coming from the governing party but, in 2010,
exceptionally the Conservatives were required to go into a coalition with the Liberal
Democrats and grant them 17 ministerial positions.

 The American Cabinet is appointed by the President but he does not chair it or even attend it.
The British Cabinet is appointed by the Prime Minister who normally attends and chairs every
meeting.

 The size of the American Cabinet is fixed: it is the Vice-President plus all the heads of the
executive departments making a total of 16. The size of the British Cabinet varies: it is
whatever size the Prime Minister wants it to be which is normally around 18, sometimes with
a small number of additional Ministers who are not actual members but who are invited to
attend on a regular basis.

 The American Cabinet meets at irregular intervals and acts as adviser to the President. The
British Cabinet meets once a week and formally takes decisions, usually by consensus under
the guidance of the Prime Minister.

 In the United States, the incoming President and his aides make a total of around 7,000
political appointments. In Britain, the Prime Minister appoints around 100 members of the
Government and members of the Cabinet each appoint a couple of Special Advisers, so the
total number of political appointments is around 150.
  In the USA, after the Vice-President the Secretary of State is the most senior member of the
Cabinet and in many countries would be known as the Foreign Secretary. In Britain, the
political head of each Government Department is called Secretary of State and so almost
every member of the Cabinet is a Secretary of State.

THE LEGISLATURE

 In the USA, both houses of the legislature - the Senate and the House of Representatives - are
directly elected. In the UK, the House of Commons is directly elected, but the House of Lords
is largely appointed (making it unique in the democratic world).

 In the States, as a consequence of the separation of the powers, all legislation is introduced by
a member of Congress. In total contrast, almost all legislation in Britain is introduced by the
Government with only a very small number of Bills - usually on social issues with minimal
implications for the public purse - introduced by individual Members of Parliament (they are
called Private Members' Bills).

 Senate rules permit what is called a filibuster when a senator, or a series of senators, can
speak for as long as they wish and on any topic they choose, unless a supermajority of three-
fifths of the Senate (60 Senators, if all 100 seats are filled) brings debate to a close by
invoking what is called cloture (taken from the French term for closure). There is no
equivalent provision for preventing filibustering in either House of the British Parliament but
filibustering is rare.

 In both the House of Representatives and the Senate, the majority party chairs all committees
which have considerable power. In the two chambers of the British legislature, committee
chairperships are allocated between the different parties, roughly in proportion to the size of
the party in the House, and the committees are much less powerful than in the US Congress.

 In the House of Representatives, the Speaker - chosen by the members of the largest party -
has considerable power and acts in a highly partisan fashion. In the House of Commons, the
Speaker - chosen by the whole House - only has procedural responsibilities and acts in a non-
partisan manner (usually he is not opposed in a General Election).

Parliamentary democracy vs. presidential democracy

 In a Parliamentary System, every election can change who has executive power (Prime
Minister), whereas in a Presidential System, only presidential elections can do that (short of
impeachment)

 In a Parliamentary System, the entire country doesn't usually get to vote for the executive by
name (except Israel), but in a Presidential System, the entire country does get to vote for a
specific leader by name.

 In a Parliamentary System, it is the elected legislators that serve in the executive roles in the
government, from the top spot to the cabinet posts. Therefore all were directly elected in some
way, just not to the specific post (but they were only elected from the region they originally
represented). In a Presidential System, the executive is elected to their position in a national
election, but the leaders of the key cabinet posts need not have ever been elected.
  In a Parliamentary System, elections can be called and held at previously unscheduled times
(not necessarily true in all systems), in a Presidential System, elections are held on strict
schedule that doesn't generally change.

 In a Parliamentary System, the head of state is usually a different person than the head of
government (not in every country). The Head of government is often vested with more
official power, but holds that position for a relatively short time. In a Presidential System, the
head of state and head of government tends to be the same person.

 In a Parliamentary System, minority groups can form third, fourth, and fifth parties and have
much more influence in government than in a Presidential System where third parties are
marginalized (many complexities here). A vote for a third party in a Presidential System is
arguably a wasted vote, but not so in a Parliamentary System where third parties often join
and influence governing coalitions. This has large implications for minority groups and
positions.

Judicial review and separation of power

Judicial review: Bangladesh is unitary independent sovereign, Republic to be known as the People’s
Republic of Bangladesh and by nature, man is rational as well as animal being and they live together
in the society depending upon each other to fulfill their needs for survival. As Social beings, men
express their nature by creating and recreating an organization which guides and control their
behavior in many ways. Judicial review of administrative action is perhaps the most important
development in the field of public law. Generally Judicial Review means the power of the courts to
review the legislative and executive action and determine their validity. Courts exercise such power
on the basis that powers can be validly exercised only within their true limits and a public functionary
is not to be allowed to transgress the limits of his authority conferred by the constitution or the law.
Bonham's Case was decided in 1610 by the Court of Common Pleas in England under Sir Edward
Coke, the court's Chief Justice. Coke said that "in many cases, the common law will control Acts of
Parliament", and explained why he thought so. It is held as basis for judicial review but due to
constitution being not present in UK common law or judge interpret laws imposes restriction over
parliament who are the real exercisers of constituent powers of the state.

According to Chief Justice John Marshall:

“Judicial Review is the power given to Supreme Court justices in which a judge has the power to
reason whether a law is unconstitutional or not’’. Chief Justice John Marshall initiated the Supreme
Court’s right to translate the Constitution in 1803 following the case of Marbury vs. Madison, in
which he declared the Supreme Court as the sole interpreters of Constitutional law. This is one of the
sole purposes of the Supreme Court of the United States.
While reviewing the validity of the authority the flowing question are to be inquired and determined
a. has exceeded its power? b. Committed an error of law? c. abused its power? d. failed to consider all
relevant factors or taken into consideration irrelevant factors? e. reached a decision which no
reasonable authority would have reached? f. failed to observe the statutory procedural requirements
and the common law principles of natural justice or procedural fairness?
The question then arose why judiciary would exercise this power as in democratic countries they are
not elected parties in government. And the constitution is salient on this feature. Well the legality of
judicial review was recognized worldwide on debates of parliament of India and its supreme court in
Minerva Mills case, Golak Nath case and Kesavananda Barti case.

Judicial review in English Law:

Judicial review is a procedure in English Administrative Law by which English courts supervise
public authorities in the exercise of their powers.
A person who feels that a decision of a public authority, such as a government minister, the local
council or a statutory tribunal has violated his or her rights, may apply to the High Court for judicial
review of the decision and have it set aside (quashed) and possibly obtain damages. A court may also
make mandatory orders or injunctions to compel the authority to do its duty or to stop it from acting
illegally.

Separation of power: Separation of powers refers to the division of responsibilities into distinct
branches to limit any one branch from exercising the core functions of another. The intent is to
prevent the concentration of power and provide for checks and balances. Every modern government
has generally three organs, namely, the Legislature, the Executive and the Judiciary. Each organ while
performing its activities tends to interfere of working of another functionary because a strict
demarcation of functions is not possible in their dealings with the general public. Thus, even when
acting in ambit of their own power, overlapping functions tend to appear amongst these organs. The
question which assumes significance over here is that what should be the relation among these three
organs of the state. Whether there should be complete separation of powers or there should be co-
ordination among them.

The doctrine of separation of power has been incorporated in the Constitution of United States of
America (USA). In the US constitution of 1787 the separation of powers was clearly expressed.
Article 1 of the US constitution vests legislative powers in Congress, consisting of a Senate and a
House of Representative, Article 2 provides the executive power in the President, and Article 3
provides the Judicial power in the Supreme Court and such other federal courts as might be
established by Congress. In the American constitution, there is a system of “Checks and Balances”
and the powers vested in one organ of the government can trench upon or encroach upon the power of
the other. Even in the US Constitution, there is not a complete separation of powers between the
executive, legislative and the judicial functions, if by this is meant that each power can be exercised in
complete isolation from the others. Separation of power is not absolute; it is instead qualified by the
doctrine of checks and balances. The system of checks and balances is designated to allow each
branch to restrain abuse by each other branch.

The theory of integration of powers has been adopted in England. Though the three powers are vested
in three organs and each has its own peculiar features, it cannot be said that there is no ‘sharing out’ of
the powers of the government. Members of the Cabinet are also members of the Legislature and are
responsible to it and they play a very important part in legislative activities. Powers are conferred on
them to make subordinate legislations and they also exercise judicial powers in different forms of
administrative tribunals. In England, there is nearly complete confuse of the executive and legislative
powers. The British system has both the judiciary and the legislature creating the law; it is equally
difficult to see the separation of power.

The Constitution of Bangladesh vests the executive power of the Republic in the executive and the
legislative power of the Republic in Parliament. Though there is no specific vesting of the judicial
power of the Republic, it is vested in the judiciary.
It is to be noted that the doctrine of separation of powers should not be taken to mean that the
executive and the legislature cannot be directed by the judiciary to discharge their functions if they are
found inactive in discharging of the function assigned to them by the Constitution. The Supreme
Court has been made the guardian and protector of the Constitution and therefore it can direct the
legislature and executive to discharge their functions properly. It is the function of the legislature to
enact law and of the executive to implement the law and if they do not perform their functions
properly, it is not the power but the duty of the Supreme Court to compel them to discharge their
functions properly. If such a direction is issued by the Supreme Court against the executive or
legislature, it cannot be said that it is against the doctrine of separation of power.
Thus, the three organs of the government are not separate. Actually the complete demarcation of the
functions of these three organs of the government is not possible. Even Montesquieu did not mean
that the legislature and executive ought to have no influence or control over the acts of each other, but
only that the neither should exercise whole power of the other.

Republican Democracy and its feature:

A republic is a sovereign state or country which is organized with a form of government in which
power resides in elected individuals representing the citizen body and government leaders exercise
power according to the rule of law.

Democracy is a system of government by the whole population or all the eligible members of a state,
typically through elected representatives.

A democratic republic is, strictly speaking, a country that is both a republic and a democracy. It is one
where ultimate authority and power is derived from the citizens, and the government itself is run
through elected officials.

Points Democracy Republic

Definition Rule by the omnipotent majority. In a A republic is similar to a
democracy, an individual, and any representative democracy except it
group of individuals composing any has a written constitution of basic
minority, have no protection against rights that protect the minority from
the unlimited power of the majority. being completely unrepresented or
It is a case of Majority-over-Man overridden by the majority.
Constraints on the No; the majority can impose its will Yes; the majority cannot take away
government on the minority. certain inalienable rights.
Philosophy All eligible citizens get equal say in All eligible citizens get equal say in
decisions. decisions with protection of
unalienable rights to individuals.
Sovereignty is held the whole population (as a group) the people (individuals)
by
Common confusion People commonly confuse direct The US is actually a Republic. It is
in the USA democracy with representative governed by rule of law. The elected
democracy. The US officially has a are bound by oath to the written
representative style governing limits (ie constitution) yet
vote "together" and create laws to
address concerns of the represented
in a democratic way
Free Choice Individuals may make decisions for Individuals may make decisions for
themselves except insofar as a themselves, especially insofar as
majority faction has limited there is a constitutional prohibition
individuals on interfering with freedom of
choice.
Political System Democratic Republican
Social Structure Class distinctions can become Class distinctions can become
pronounced due to capitalist society. pronounced due to capitalist society.
Varies from state to state. Varies from state to state.
Famous Examples Classical Greece, Rome United States Of America