Bangladesh is one of the World’s most densely populated countries, with its people crammed into a delta of rivers that empties into the Bay of Bengal. Formerly East Pakistan, Bangladesh came into being only in 1971, when the two parts of Pakistan split after a bitter war which took almost 3 million lives. It is the 7th most populous country among the most densely populated countries in the world.
Government system of Bangladesh:
Bangladesh is a parliamentary democracy, with an elected parliament called the Jatiyo Sangshad. The Government is elected by anonymous votes by citizens who are 18 or more of age. The Government is headed by the Prime Minister. The Prime Minister leads the Members of the Parliament as well as all the Ministers of the Government. The Constitution is the highest law of Bangladesh.
The Parliament of Bangladesh is a unicameral legislature consisting of 300 members. They are directly elected from an equal number of territorial constituencies, which is one from each constituency, on the basis of adult franchise. Earlier there used to be 30 seats reserved for women who were elected by the directly elected Members. This provision in the Constitution for the reservation of seats for women was a transitory one. The 7th Parliament was the last Parliament to have this reservation. With the exception of the first Parliament, which had 15 reserved seats for women, and the fourth Parliament, which had no such reservation, all previous Parliaments (before 8th Parliament) of Bangladesh had included the 30 reserved seats. In the 8th Parliament the Constitution Act, 2004 was passed by the Parliament on May 2004 by which the following provision was inserted in the constitution of Bangladesh.
Art. 65(3) “Until the dissolution of Parliament occurring next after the expiration of the period of ten years beginning from the date of the first meeting of the Parliament next after the Parliament in existence at the time of the commencement of the Constitution (Fourteenth Amendment) Act. 2004, there shall be reserved forty five seats exclusively for women members and they will be elected by the aforesaid members in accordance with law on the basis of procedure of proportional representation in the Parliament through single transferable vote:”.
The Constitution of Bangladesh in its two texts, Bengali and English, gives the unicameral legislature the name of ‘Jatiyo Shangshad’ in Bengali and ‘House of the Nation’ in English. However, the term ‘House of the Nation’ is rarely used. Rather the one-word nomenclature, ‘Parliament’, has gained currency, probably because the term ‘House of the Nation’ is used only once in the Constitution. Many do not know that the Constitution contemplates Parliament to be known in English as ‘House of the Nation’.
The Constitution of Bangladesh has formed the basis for the nation’s political organization since it was adopted on November 4, 1972. Many abrupt political changes have caused suspension of the Constitution and have led to amendments in almost every section, including the total revision of some major provisions. It is notable, however, that every regime that came to power since 1972 has couched major administrative changes in terms of the Constitution and has attempted to legitimize changes by legally amending this basic document.
According to the Constitution, the state has a positive role to play in reorganizing society in order to create a free and equal citizenry and provide for the welfare of all. The government is required to ensure food, shelter, clothing, medical care, education, work, and social security for the people. The government must also build socialism by implementing programs to “remove social and economic inequality” and “ensure the equitable distribution of wealth among citizens.” These far-reaching goals represented the viewpoints of many members of the 1972 Constituent Assembly and the early Awami League (People’s League) government, who were deeply influenced by socialist ideology. Another sector of public opinion, however, has always viewed private property and private enterprise as the heart of social and economic development. This viewpoint is also part of the constitutional principles of state policy, which equally recognize state, cooperative, and private forms of ownership. The Constitution thus mandates a high degree of state involvement in the establishment of socialism, although it explicitly preserves a private property system. In practice, the Constitution has supported a wide range of government policies, ranging from those of the nationalized, interventionist state of Mujib’s time to the increasing deregulation and reliance on market forces under presidents Ziaur Rahman (Zia) and Ershad.
The framers of the Constitution, after emerging from a period of intense repression under Pakistan, took great pains to outline the fundamental rights of citizens even before describing the government’s structure. According to the section on fundamental rights, all men and women are equal before the law, without discrimination based on religion, race, caste, sex, or place of birth. The Constitution also guarantees the right to assemble, hold public meetings, and form unions, Freedom of speech and of the press are ensured. Persons who have been arrested must be informed of the charges made against them, and they must be brought before a magistrate within twenty-four hours. The Constitution, however, adds that these guarantees are subject to “any reasonable restrictions imposed by law,” leaving open the possibility of an administrative decision to revoke fundamental rights. Furthermore, there is a provision for “preventive detention” of up to six months. Those being held under preventive detention do not have the right to know the charges made against them, nor to appear before a magistrate, and a legal advisory board may extend this form of detention after seeing the detainee. The Constitution does not define the circumstances or the level of authority necessary for the revocation of constitutional guarantees or for the enforcement of preventive detention. During the many occasions of civil disorder or public protest that have marked Bangladeshi political life, the incumbent administration has often found it useful to suspend rights or jail opponents without trial in accordance with the Constitution.
The Constitution is patterned closely on the British and United States models inasmuch as it includes provisions for independent legislative, executive, and judicial branches of government. When it first came into effect, the Constitution established a British style executive, with a prime minister appointed from a parliamentary majority as the effective authority under a titular president. In 1975, implementation of “Mujibism” (named for Mujib), mandating a single national party and giving the president effective authority, subject to the advice of a prime minister. The later governments of Zia and Ershad preserved the powers of the presidency and strengthened the office of the chief executive through amendments and their personal control of the highest office in the land. Because of this concentration of power in individual leaders, the Bangladeshi Constitution gives much greater authority to the executive branch than does the United States Constitution. In fact, the legislature and the courts have few constitutional avenues for checking presidential power, while the executive has many tools for dominating the other branches of the government.
Bangladesh followed in turn the Presidential and the parliamentary models of executive. The legal basis of the Bangladesh provisional government, established on 10 April 1972, was provided by the proclamation of independence which was to take effect from 26 March 1971.
The constitution, established under this proclamation, created an all-powerful Presidential executive. Both executive and legislative powers, including the power to grant pardon, were vested in the President. He had the power to appoint a prime minister and other ministers, if he considered it necessary to do so. The power to summon and dissolve the assembly, as well as that of levying taxes and making expenditures, was exclusively vested in him. Furthermore, the President was entitled to do whatever was felt necessary for the sake of the people of Bangladesh. The proclamation created an all powerful Presidential executive in the context of the extraordinary circumstances prevailing during and after the war of liberation.
The parliamentary system of government in Bangladesh started soon after the return of Sheikh Mujibur Rahman from Pakistan on 10 January 1972. Using his legislative power under the Proclamation of Independence, he changed the basic structure of the provisional government and adopted a parliamentary form of government by a Presidential order called the Provisional Constitution of Bangladesh Order, 1972. The Provisional Constitution created by the decree had all the features of the British Westminster type of government with a council of ministers headed by a Prime Minister to aid and advice, and a ceremonial head of the state, namely the President.
Drastic transformation in the nature and type of the executive took place in Bangladesh through the Fourth Amendment of the Constitution. It relegated the parliamentary democracy to a constitutional one-party dictatorship in which all powers were concentrated in the presidency, thus virtually abolishing the two parts of the executive. A one-party presidential form of government was introduced in which direct election was provided for the election of a President. The President, with tenure of five years, was made independent of the legislature.
The executive under President Ziaur rahman, who came to power after the assassination of Sheikh Mujibur Rahman on 15 August 1975, once again was modified through the Fifth Amendment of the Constitution. As the Chief Martial Law Administrator of the country from the last half of 1976 until the parliamentary election of 1979 Ziaur Rahman, through a number of Presidential orders, brought a number of changes in the political order like the revival of the multi-party system etc. The most important step, however, was the Second Proclamation Order No. 4 issued, on 18 December 1978 and known as the Fifteenth Amendment Order, which introduced constitutional reforms putting a formal end to the political order of Sheikh Mujibur Rahman. The executive authority was still vested in the President who was directly elected by the people for a period of five years, albeit without a limit to the number of terms in office. He was the commander-in-chief of the armed forces, chief executive and chief legislative initiator through his power to address the Jatiya Sangsad and to dissolve it.
The executive that emerged in Bangladesh as a result of the acceptance of the Twelfth Amendment is, once again, a parliamentary executive. It has retained all the features of a parliamentary system, which had been there under the 1972 Constitution. However, constitutional provisions have been to Article 70 in order to further restrict the independence of the members of the Jatiya Sangsad. This and the lack of democratisation within the major political parties make the Prime Minister’s position virtually unchallengable. Further, the mode of election of the President has been made in such a way that unless a person is nominated and approved by the Prime Minister he or she cannot be elected, thus making the relationship between the President and the Prime Minister not one of equals. It seems that the President is almost subordinate to the Prime Minister. As such the executive in Bangladesh, at present, is overriding Prime Ministerial.
The judicial system, modelled after the British system, is similar to that of neighbouring countries. Besides the 1972 constitution, the fundamental law of the land, there are codes of civil and criminal laws. The civil law incorporates certain Islamic and Hindu religious principles relating to marriage, inheritance, and other social matters.
The judicial system consists of a Low Court and a Supreme Court, both of which hear civil and criminal cases. The Low Court consists of administrative courts (magistrate courts) and session judges. The Supreme Court also has two divisions, a High Court which hears original cases and reviews decisions of the Low Court, and an Appellate Court which hears appeals from the High Court. The upper level courts have exercised independent judgment, recently ruling against the government on a number of occasions in criminal, civil and even political trials. The trials are public. There is a right to counsel and right to appeal. There is also a system of bail. An overwhelming backlog of cases remains the major problem of the court system.
Legislative branch & Law making procedure:
The legislative branch of the government is a unicameral Parliament, or Jatiyo Sangsad (House of the People), which makes the laws for the nation. Members of Parliament, who must be at least twenty-five years old, are directly elected from territorial constituencies. The Bangladeshi and British parliaments have accommodated political parties in a similar manner. After elections, a single political party or a coalition of parties must form a government– that is; they must form a block of votes within Parliament that guarantees the passage of bills they may introduce. Once a parliamentary majority is formed, the president chooses the majority leader as prime minister and appoints other members of the majority as cabinet ministers.
Parliament debates and votes on legislative bills. Decisions are decided by a majority vote of the 300 members, with the presiding officer abstaining from voting except to break a tie. A quorum is sixty members. If Parliament passes a non- money bill, it goes to the president; if he disapproves of the bill, he may return it to Parliament within fifteen days for renewed debate. If Parliament again passes the bill, it becomes law. If the president does not return a bill to Parliament within fifteen days, it automatically becomes law. All money bills require a presidential recommendation before they can be introduced for debate in Parliament. Parliament has the ability to reject the national budget or to delay implementation. It is therefore in the best interests of the executive as well as the entire nation that budgets submitted to Parliament should be designed to please the majority of its members. The legislature is thus a potentially powerful force for enacting laws over the objections of the president or for blocking presidential financial initiatives. In practice, however, because most members of Parliament have been affiliated with the prime minister’s party, the legislature has typically served the interests of the prime minister.
Although it is always critics about all the government of Bangladesh that governments pass most of the bill to law which going to serve their purpose. But the member of the parliaments is elected by the votes of all general members who are eligible for the votes. So government always get rid of the blame that they just try to make sure general peoples wish on the name of their own win.
Constitution of Bangladesh
http://asianhistory.about.com/od/bangladesh/p/bangladeshprof.htm [Accessed: 4/11/11]
http://www.banglapedia.org/httpdocs/HT/A_0047.HTM [Accessed: 2/11/11]
http://www.mongabay.com/history/bangladesh/bangladesh-legislature.html [Accessed: 1/11/11]
http://www.mongabay.com/reference/country_studies/bangladesh/GOVERNMENT.html [accessed: 3/11/11]
http://www.usaid.gov/bd/programs/pop.html [Accessed: 5/11/11]
Lat. “you have the body” Prisoners often seeks release by filing a petition for a writ of habeas corpus. A writ of habeas corpus is a judicial mandate to a prison official ordering that an inmate be brought to the court so it can be determined whether or not that person is imprisoned lawfully and whether or not he should be released from custody. A habeas corpus petition is a petition filed with a court by a person who objects to his own or another’s detention or imprisonment. The petition must show that the court ordering the detention or imprisonment made a legal or factual error. Habeas corpus petitions are usually filed by persons serving prison sentences. In family law, a parent who has been denied custody of his child by a trial court may file a habeas corpus petition. Also, a party may file a habeas corpus petition if a judge declares her in contempt of court and jails or threatens to jail her.
In Brown v. Vasquez, 952 F.2d 1164, 1166 (9th Cir. 1991), cert. denied, 112 S.Ct. 1778 (1992), the court observed that the Supreme Court has “recognized the fact that`[t]he writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action.’ Harris v. Nelson, 394 U.S. 286, 290-91 (1969). ” Therefore, the writ must be “administered with the initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected.” Harris, 394 U.S. at 291.
The writ of habeas corpus serves as an important check on the manner in which state courts pay respect to federal constitutional rights. The writ is “the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action.” Harris v. Nelson, 394 U.S. 286, 290-91 (1969). Because the habeas process delays the finality of a criminal case, however, the Supreme Court in recent years has attempted to police the writ to ensure that the costs of the process do not exceed its manifest benefits. In McCleskey the Court raised barriers against successive and abusive petitions. The Court raised these barriers based on significant concerns about delay, cost, prejudice to the prosecution, frustration of the sovereign power of the States, and the “heavy burden” federal collateral litigation places on “scarce federal judicial resources,” a burden that “threatens the capacity of the system to resolve primary disputes.” McCleskey, 499 U.S. at 467.
The Court observed that”[t]he writ of habeas corpus is one of the centerpieces of our liberties. `But the writ has potentialities for evil as well as for good. Abuse of the writ may undermine the orderly administration of justice and therefore weaken the forces of authority that are essential for civilization.’ ” McCleskey, 499 U.S. at 496 (quoting Brown v. Allen, 344 U.S. 443, 512 (1952) (opinion of Frankfurter, J.))
The predominant inquiry on habeas is a legal one: whether the “petitioner’s custody simpliciter” is valid as measured by the Constitution. Coleman v. Thompson, 501 U.S. 722, 730 (1991). The purpose of the great writ is not to relitigate state trials.
Dismissal of habeas petition under the “total exhaustion” rule of Rose v. Lundy, 455 U.S. 509, 520 (1982) (each claim raised by petitioner must be exhausted before district court may reach the merits of any claim in habeas petition). Jury exposure to facts not in evidence deprives a defendant of the rights to confrontation, cross-examination and assistance of counsel embodied in the Sixth Amendment. Dickson v. Sullivan, 849 F.2d 403, 406 (9th Cir. 1988); see also Jeffries v. Blodgett, 5 F.3d 1180, 1191 (9th Cir. 1993) (introduction of extraneous prior bad acts evidence during deliberations constitutes error of constitutional proportions), cert. denied, 114 S.Ct. 1294 (1994). However, a petitioner is entitled to habeas relief only if it can be established that the constitutional error had “substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 113 S. Ct. 1710, 1722 & n.9 (1993). Whether the constitutional error was harmless is not a factual determination entitled to the statutory presumption of correctness under 28 U.S.C. S 2254(d). Dickson, 849 F.2d at 405; Marino v. Vasquez, 812 F.2d 499, 504 (9th Cir. 1987).
In a habeas corpus proceeding, a federal court generally “will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment.” Coleman v. Thompson, 501 U.S. 722, 111 S. Ct. 2546, 2553-54 (1991). This doctrine applies to bar federal habeas review when the state court has declined to address the petitioner’s federal claims because he failed to meet state procedural requirements. Id. at 2254; see also Sochor v. Florida, 504 U.S. 527, 119 L. Ed. 2d 326, 337 (1992). Thus, the independent state grounds doctrine bars the federal courts from reconsidering the issue in the context of habeas corpus review as long as the state court explicitly invokes a state procedural bar rule as a separate basis for its decision. Harris v. Reed, 489 U.S. 255, 264 n.10 (1988).
Habeas petitioners are not entitled to habeas relief based on trial error unless they can establish that it resulted in actual prejudice. O’Neal v. McAninch, 115 S. Ct. 992, 994-95 (1995). It is the responsibility of the court, once it concludes there was error, to determine whether the error affected the judgment. If the court is left in grave doubt, the conviction cannot stand. Id. On a petition for a writ of habeas corpus, the standard of review for a claim of prosecutorial misconduct, like the standard of review for a claim of judicial misconduct, is ” ‘the narrow one of due process, and not the broad exercise of supervisory power.’ ” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974)). “The relevant question is whether the prosecutor[‘s] comments ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’ ” Id. (quoting Donnelly, 416 U.S. at 643).
A federal court has no supervisory authority over criminal proceedings in state courts. The only standards we can impose on the states are those dictated by the Constitution. Daye, 712 F.2d at 1571. Objectionable as some actions might be, when considered in the context of the trial as a whole they are not “of sufficient gravity to warrant the conclusion that fundamental fairness has been denied.” Id. at 1572. See Gayle v. Scully, 779 F.2d at 807 (trial judge’s caustic, sarcastic comments and offensive conduct, although perhaps inconsistent with institutional standards of federal courts, did not violate due process); Daye, 712 F.2d at 1572 (trial judge’s skeptical attitude toward defendant’s testimony, and his reinforcement of identification evidence by government witnesses, “approached but did not cross the line that permits [a ruling] that the Constitution has been violated”).
The fact that a jury instruction is inadequate by Federal Court direct appeal standards does not mean a petitioner who relies on such an inadequacy will be entitled to habeas relief from a state court conviction. Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). In habeas proceedings challenging state court convictions, relief is available only for constitutional violations. Whether a constitutional violation has occurred will depend upon the evidence in the case and the overall instructions given to the jury. See Cupp v. Naughten, 414 U.S. at 147 (constitutionality determined not by focusing on ailing instruction “in artificial isolation” but by considering effect of instruction “in the context of the overall charge.”). See also Henderson v. Kibbe, 431 U.S. 145, 155 (1977) (recognizing that “[a]n omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law” and, therefore, a habeas petitioner whose claim of error involves the failure to give a particular instruction bears an “especially heavy” burden).
Shackling, except in extreme forms, is susceptible to harmless error analysis. Castillo v. Stainer, 997 F.2d at 669. In a habeas case dealing with a state court sentence, the question is whether the shackling “had substantial and injurious effect or influence in determining the jury’s verdict.” Id. (quoting Brecht v. Abrahamson, 113 S. Ct. 1710, 1714 (1993)). If we are in “grave doubt” whether the error affected the verdict, the error is not harmless. O’Neal v. McAninch, 115 S. Ct. 992, 994 (1995).
The risk of doubt, however, is on the state. Id. at 996 (rejecting language in Brecht v. Abrahamson which places on defendant burden of showing prejudice). See Castillo v. Stainer, 983 F.2d at 149 (finding shackling at trial harmless error because defendant only wore waist chain that could not be seen by jury)
 Bangladesh: Fact and history available at http://asianhistory.about.com/od/bangladesh/p/bangladeshprof.htm
 Fourteenth Amendment: The Constitutional (fourteenth Amendment) Act 1994 was passed providing, among others, the following provisions: reservation of 45 seats for women on a proportional representation basis for the next 10 years; increase in the retirement age of Supreme Court Judges from 65 to 67 years; and displaying of portraits of the President and the Prime Minister in all government, semi-government and autonomous offices and diplomatic missions abroad
 Constitution of the people’s republic of Bangladesh (attached)
 Bangladesh- History available at http://www.nationsencyclopedia.com/Asia-and-Oceania/Bangladesh-HISTORY.html
 Bangladesh- Constitution, Structure of government http://www.mongabay.com/history/bangladesh/bangladesh-constitution_structure_of_government.html
 Constitution of the people’s republic of Bangladesh (attached)
 Writ of Habeas corpus (Appendix-1).
 Fourth Amendment: The Constitution (Fourth Amendment) Act 1975 made major changes into the Constitution. The presidential form of government was introduced in place of the parliamentary system; a one-party system in place of a multi-party system was introduced; the powers of the Parliament were curtailed; the Judiciary lost much of its independence; the Supreme Court was deprived of its jurisdiction over the protection and enforcement of fundamental rights. This Act (i) amended Articles 11, 66, 67, 72, 74, 76, 80, 88, 95, 98, 109, 116, 117, 119, 122, 123, 141A, 147 and 148 of the Constitution; (ii) substituted Articles 44, 70, 102, 115 and 124 of the Constitution; (iii) amended Part III of the Constitution out of existence; (iv) altered the Third and Fourth Schedule; (v) extended the term of the first Jatiya Sangsad; (vi) made special provisions relating to the office of the President and its incumbent; (vii) inserted a new part, i.e. part VIA in the Constitution and (viii) inserted Articles 73A and 116A in the Constitution. .
 Bangladesh: Government and politics available at http://www.mongabay.com/reference/country_studies/bangladesh/GOVERNMENT.html
 Constitution of the people’s republic of Bangladesh (attached)
 Bangladesh: government and politics available at http://www.mongabay.com/reference/country_studies/bangladesh/GOVERNMENT.html
 Constitution of Bangladesh.
 Fifth Amendment: The Constitution (Fifth Amendment) Act was passed by the Jatiya Sangsad on 6 April 1979. This Act amended the Fourth Schedule to the Constitution by adding a new Paragraph 18 thereto, which provided that all amendments, additions, modifications, substitutions and omissions made in the Constitution during the period between 15 August 1975 and 9 April 1979 (both days inclusive) by any Proclamation or Proclamation Order of the Martial Law Authorities had been validly made and would not be called in question in or before any court or tribunal or authority on any ground whatsoever. The expression ‘Bismillah ar-Rahman ar-Rahim’ was added before the Preamble of the Constitution. The expression ‘historic struggle for national liberation’ in the Preamble was replaced by ‘a historic war for national independence.’ One party system was replaced by multiparty parliamentary system. Fundamental principles of state policy were made as ‘absolute trust and faith in the Almighty Allah, nationalism, democracy and socialism meaning economic and social justice.’.
 National web portal of Bangladesh, Judiciary available at http://www.bangladesh.gov.bd/index.php?Itemid=137&id=58&option=com_content&task=view
 Bangladesh: Legislator available at http://www.mongabay.com/history/bangladesh/bangladesh-legislature.html