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SOURCES OF LAWS
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DELIGATED LEGISLATION
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Delegated legislation refers to a situation in which the
Legislature lays dawn the policy in more or less wide terms and gives to some
external authority the power to carry out, by framing rates and regulations,
the legislative policy so specified in the Act. There is always a section
technically called 'Rulemaking Power Provision' in the Act passed by the
Legislature that says generally that some Extraneous authority, charged with
the duty of administering the Act, should frame roles and regulations not
inconsistent with the provisions of the Act for the purpose of carrying out the
objects of the Act. The only requirement of law in such situations is to insist
that the authority or body charged with the duty of making rates and
regulations must strictly confine itself within the sphere of its authority for
the exercise of the delegated legislative power.
Article 65(1) of the Constitution of Bangladesh empowers the
Parliament to delegate to any person or Authority, by Act of Parliament, power
to make orders, rules, regulations, byelaws or other instruments having
legislative effect. This system of delegated legislation empowers ministers and
other authority to regulate administrative details under the authority of a
particular Act of the Parliament. The powers conferred in this way are normally
delegated to the authorities directly responsible to the Parliament, that is,
Government Ministers, Government Departments for which ministers are
responsible or to organizations whose regulations are subject to confirmation
or approval by ministers who thereby become responsible to the Parliament for
them, and in Bangladesh in each case it is the duty of the courts, in
appropriate proceedings, to be satisfied that the rules and regulations so made
are by the authority mentioned in the parent Act, and that they are within the
scope of the power delegated therein, It is for the courts to give effect to
the general intention of the Parliament by ensuring that the particular rules
and regulations conform to that intent, of course, such rates and regulations
lapse when the laws that empower their creation come to an end, either by
efflux of time or by repeal, or if their life is declared terminable upon the
happening of a contingency, upon the happening of that contingency. The
functions of the courts here before which such legislation may come, is to
examine and ensure that the authority exercised has not been broader than the
terms of delegation. The judicial power in this field is based upon the
doctrine of ultra tires5. The reviewing court is mainly concerned with the
question of whether or not the legislation was within the power conferred. In
determining the question the courts in Bangladesh, exercising constitutional
competence, can invalidate administrative rates, regulations, orders and
bye-laws not only because they are ultra-vires the enabling Act in the
strict sense, but also they are unreasonable. The reviewing court in such cases
examines the facts in order to determine the reasonableness of a challenged
role or regulation or byelaw. This may be compared with the authority of courts
in Britain over the subordinate or ancillary legislation of local authorities.
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CUSTOMARY LAW |
The Customary law of Bangladesh evolved from spontaneously
observed rules and practices by different communities in relation to particular
matters from very ancient times, to the Buddhist-Hindu period, that is, roughly
from the Eighth century to the end of Twentieth century, all disputes were
settled by the head of the family or of the tribe. In case of inter-tribal
disputes recourse was had to the Panchayets and assemblies comprising the
village elders and chiefs of the tribes. The King exercised the function of
administering justice to his subjects who generally administered justice in
person assisted by Brahmins and his counselors, and sometimes could also
delegate his authority to administer justice, to some other person. During this
period, ancient customs were observed and followed in the administration of
criminal justice. Generally, the criminals were tried through ordeals. The
accused was sometimes required to take a caustic drink or to hold in his hand a
red-hot iron wrapped in a leaf in order to establish his innocence. Similarly,
the accused was often thrown into water, as it was believed that if he were
innocent he would not drown. The punishment awarded to the accused was
sometimes very severe. The criminals were beheaded, mutilated, outcaste or
banished from the country or imprisoned for life. The principles applied in the
dispensation of criminal justice broadly reflected the customs of local communities.
In the Thirteenth century, the Muslims established their
rule in Bengal. During Thirteenth to Eighteenth century, the criminal courts
tried offences according to Muslim Law of Crimes. In civil matters like
marriage, divorce, succession etc, the dictum of religion was followed and in
other eases, equity and good conscience was applied and though the importance
of custom was not so well recognized during Muslim rule stilt in many cases,
custom was allowed to override the analogical law. Now a day, custom has been
relegated to a secondary position as a source of law, and a narrow margin has
been left in the Codes for accommodation of customary rules.
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