A Critical Analysis on Judicial Review: Bangladesh Perspective
Keywords:
Judicial review, Analysis, BangladeshAbstract
Bangladesh is a unitary independent sovereign, republic to be known as the People’s Republic of Bangladesh and by nature man is rational being and they live in the society depending upon other in need of survival. The laws are basically created on social demands and human needs. Laws have been made to guide and control human behaviors. It is one of the fundamental tasks of the justice system of a country that it will work as safeguard for the people to uphold the significance of their rights. Judicial review is a principle by which the legislative and the executive actions are subject to review by the judiciary. Judicial review checks and balances the separation of power among the government branches. Judicial review is one of the important techniques by which the courts examine the actions of the legislature, the executive and the other governmental agencies and decide whether or not these actions are valid. The main attempt of the study is to focus the challenges in using this power in Bangladesh analyzing some cases. The authors have also analyzed the philosophy of this power vested on the judiciary. At last some recommendations have been put to overcome the complications in application of this power.
References
1. Article IV of the American Constitution, 1787
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3. Article 7(2) of Bangladesh Constitution, 1972 stated that 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 t o the extent of the inconsistency be void.
4. Article 26 of Bangladesh Constitution, 1972 stated that all existing law inconsistent with the provisions of this Part shall, to the extent of such inconsistency, become void on the commencement of this Constituti on. (2) The State shall not make any law inconsistent with any provisions of this Part, and any law so made shall, to the extent of such inconsistency, be void.
5. Article 44 (1) of Bangladesh Constitution stated that the right to move the High Court Division in accordance with clause (1) of article 102, for the enforcement of the rights conferred by this Part is guaranteed.
6. Article 102 (1) of the Bangladesh Constitution stated that the High Court Division on the application of any person aggrieved, may give s uch directions or orders to any person or authority, including any person performing any function in connection with the affairs of the Republic, as may be appropriate for the enforcement of any of the fundamental rights conferred by Part III of this Constitution.
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8. The Judiciary Act of 1789, officially titled "An Act to Establish the Judicial Courts of the United States," was signed into law by President George Washington on September 24, 1789. Article III of the Constitution established a Supreme Court but left to Congress the authority to create lower federal courts as needed.
9. Section 13 of t he Judiciary Act of 1789 stated that the Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature where a state is a party except between a state and its citizens; and except also between a state and citizens of other states or aliens in which latter case it shall have original but not exclusive jurisdiction. And shall have exclusively all such jurisdiction of suits or proceedings against ambassadors or other public ministers or their domestics or domestic servants as a court o f law can have or exercise consistently with the law of nations; and original but not exclusive jurisdiction of all suits brought by ambassadors or other public ministers or in which a consul or vice consul shall be a party. And the trial of issues in fact in the Supreme Court in all actions at law against citizens of the United States shall be by jury. The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states in the cases herein after specially provid ed for; and shall have power to issue writs of prohibition to the district courts when proceeding as courts of admiralty and maritime jurisdiction and writs of mandamus in cases warranted by the principles and usages of law to any courts appointed or perso ns holding office under the authority of the United States.
10. Supra note 3
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19. Article 7 of Bangladesh Constitution, 1972 stated that (1) all powers in the Republic belong to the people and their exercise on behalf of the people shall be affected only under and by the authority of this Constitution. (2) Th is 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.
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24. Article 7 of Bangladesh Constitution, 1972 stated that (1) all powers in the Republic belong to the people, and their exercise on behalf of the people shall be affected only under, and by the authority of, this Constitution. (2) 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.
25. Article 26 of the Bangladesh Constitution, 1972 st ated that (1) all existing law inconsistent with the provisions of this Part shall, to the extent of such inconsistency, become void on the commencement of this Constitution. (2) The State shall not make any law inconsistent with any provisions of this Part, and any law so made shall, to the extent of such inconsistency, be void.
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27. Article 1 of Bangladesh Constitution, 1972 stated that Bangladesh is a unitary, independent, sovereign Republic to be known as the People's Republic of Bangladesh.
28. Article 65 (1) of Bangladesh Constitution, 1972 stated that there shall be a Parliament for Bangladesh (to be known as the House of the Nation) in which, subject to the provisions of this Constitution, shall be vested the legislative powers of the Republic:
29. Article 94(4), the Bangladesh Constitution, 1972. The Article stated that Subject to the provisions of this Constitution the Chief Ju stice and the other Judges shall be independent in the exercise of their judicial functions.
30. 63 DLR 565. 2011
31. 2006 (Special Issue) BLT (HCD) 1
32. http:///www.supremecourt.gov.bd/scweb/
33. Article 142 of Bangladesh Constitution stated that notwithstanding anythin g contained in this Constitution (a) any provision thereof may be amended by way of addition, alteration, substitution or repeal by Act of Parliament: Provided that (i) no Bill for such amendment shall be allowed to proceed unless the long title thereof expressly states that it will amend a provision of the Constitution; (ii) no such Bill shall be presented to the President for assent unless it is passed by the votes of not less than two thirds of the total number of members of Parliament; (b) when a Bill p assed as aforesaid is presented to the President for his assent he shall, within the period of seven days after the Bill is presented to him assent to the Bill, and if he fails so to do he shall be JCLJ (2019) 43–54 © Law Journals 2019. All Rights Reserved Page 54 deemed to have assented to it on the expiration of that period.
34. Bangladesh Italian Marble Works Limited vs. Government of Bangladesh and others is called the Fifth amendment case
35. Shamsul Huda A. K. M. (1997), the Constitution of Bangladesh, Volume 1
36. 63 DLR (2011), p 565.
37. 41 DLR (AD) 165. 1989 BLD (SPL) 1 Cite this Article Md. Abdur Rahim, Md. Rezaul Islam . A Critical Analysis on Judicial Review: Bangladesh Perspective. Journal of Constitutional Law and Jurisprudence . 2019; 2(2): 43–54p.
