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Vandervell v. I.R.C.

2011-06-11T04:45:00.000-07:00

Vandervell v. I.R.C.

[1967] 2 A.C. 291 (HL)

Facts and issues
Mr Vandervell wished to make a gift to the Royal College of Surgeons in order to endow a Chair of Pharmacology. They needed about £150,000.
He was equitable owner of a substantial number of shares in Vandervell Products Ltd, a private limited liability company which he controlled (which made, among other things, Vanwall racing cars).
The legal interest in Vandervell's shares was held by a bank as nominee.
In order to endow the Chair, he arranged with the bank orally (presumably to avoid stamp duty) to transfer both legal and equitable interests in these shares to the Royal College of Surgeons (RCS), giving a trustee company (Vandervell Trustees Ltd., which he controlled) an option to re-purchase them for £5,000 (well under the value of the shares).
This enabled the RCS to receive dividends of some £266,000 (£157,000 net after tax), but since, as a charity, RCS was not liable to pay income tax, it hoped to claim the tax back. Because of the option to re-purchase, Vandervell did not irrevocably relinquish control of Vandervell Products.
At this stage, therefore, the legal and equitable interest in the shares had been transferred to the RCS. This raises a formalities point.
Vandervell Trustees Ltd had the legal interest in the option. But where was the equitable interest? If it remained in Vandervell himself, he would be liable to surtax, on the basis of s. 415 of the Income Tax Act 1952:

(1) Where, during the life of the settlor, income arising under a settlement ... is, under the settlement and in the events that occur, payable to or applicable for the benefit of any person other than the settlor, then, unless, under the settlement and in the said events, the income ... (d) is income from property of which the settlor has divested himself absolutely by way of settlement ... the income shall be treated for the purposes of surtax as the income of the settlor and not as the income of any other person ...
(2) The settlor shall not be deemed for the purposes of this section to have divested himself absolutely of any property if that property or any income therefrom or any property directly or indirectly representing proceeds of, or income from, that property is, or will or may become, payable to him or applicable for his benefit in any circumstances whatsoever.

Held
The House of Lords held (Lords Reid and Donovan dissenting) that the option (the legal title to which was now in the trustee company) was held on resulting trust for Vandervell, along with liability to pay surtax on the dividends.
Vandervell had failed to state where the equitable interest was to go. He had not decided whether the option should be held on trust for his children, or for the employees of his products company. His only concern was that it was not held on trust for him.
Lord Wilberforce noted that the trusts upon which the option was supposed to be held were undefined and in the air. The trustee company itself was clearly not a beneficiary, and an equitable interest cannot remain in the air, and so the only possibility was a resulting trust in favour of the settlor.

Lord Wilberforce at 329B:

The conclusion, on the facts found, is simply that the option was vested in the trustee company as a trustee on trusts, not defined at the time, possibly to be defined later. But the equitable, or beneficial interest, cannot remain in the air: the consequence in law must be that it remains in the settlor. There is no need to consider some of the more refined intellectualities of the doctrine of resulting trust, nor to speculate whether, in possible circumstances, the shares might be applicable for Mr Vandervell's benefit: he had, as the direct result of the option and of the failure to place the beneficial interest in it securely away from him, not divested himself absolutely of the shares which it controlled.

Standing

2011-06-07T22:44:00.001-07:00

S 31(3) of Supreme Court Act 1981 provides that the court must not grant leave for an application for judicial review ‘unless it considers that the applicant has a sufficient interest (otherwise expressed as “standing” or locus standi) in the matter to which the application relates’. The justification for such a requirement lies in the need to limit challenges to administrative decision making to genuine cases of grievance and to avoid unnecessary interference in the administrative process by those whose objectives are not authentic. The applicant may be an individual whose personal rights and interests have been affected by a decision, or an individual concerned with official decisions which affect the interests of society as a whole.

Alternatively, the application be brought by an interest or pressure group desiring to challenge a decision which affects the rights and interests of members of that group or society at large. The rules of standing are not unique to administrative law. They are its equivalent of privity in contract and land law, or proximity within the law of negligence. The rules of standing are as important as equivalents in defining the class of persons entitled to bring an action in any particular case.

Constitutional principles of democracy mean that every citizen has an interest in the decision‑making of governmental bodies. Its legality is a matter of great public interest. Furthermore, the control of such decision‑making through the process of law is an aspect of the rule of law of vital importance within a healthy jurisdiction. Nonetheless, it could be argued that the rules of standing should not be abolished. They too have an important role to play within the legal system, and their existence can provide a worthwhile contribution to the preservation of the rule of law. The rules of standing are usually thought of as being a unique and restrictive force within the sphere of administrative law.

Whilst it is generally agreed that the ultra vires rule is concerned with review of the legality of public decisions, rather than with an appeal on the merits of such decisions, there is a conflict of opinion over whether review should be primarily concerned with ensuring the protection of human rights through effective challenges to the decisions of public bodies (the ‘red light theory’), or whether review should be exercised upon the primary consideration that public bodies need protection from unnecessary numerous challenges in order to ensure efficient public administration (the ‘green light theory’). The red light theory contends that judges should be activists in developing liberal approach of review so as to safeguard human rights from the many varieties of misuse of public power. In this regard they also follow a liberal approach of standing.

The starting point for consideration of locus standi is now the decision of the House of Lords in R v Inland Revenue Commissioners, ex p National Federation of Self‑Employed and Small Businesses Ltd.

The Federation sought to challenge the Inland Revenue’s decision to grant a tax amnesty to casual workers in Fleet Street. In particular the Federation sought a declaration that such an agreement was ultra vires the Revenue, and an order of mandamus compelling the Revenue to collect the amount due.

In concluding that the Federation did not have locus standi to challenge the tax amnesty, Lord Wilberforce sought to outline how the matter should be addressed. He explained that the issue of sufficient interest was to be regarded as a mixed decision of fact and law for the courts to decide on legal principles, ie it was not simply a matter of judicial discretion.

Further, that it should not be assumed that because one generic phrase was used as the test for standing it would necessarily be applied in the same way regardless of the remedy sought. As regards mandamus, for example, he agreed with the views expressed by the Lord Advocate to the effect that the courts should be guided by the definition of the duty, and should inquire whether expressly, or by implication, the definition indicates that the complaining applicant is within the scope or ambit of the duty.

The question as to whether there is standing should be examined in two stages. At the first instance, standing should be considered when leave to apply is sought. At that, stage, the court is concerned, according to Lord Scarman, to ensure that ‘it prevents abuse by busybodies, cranks and other mischief makers’. If leave is granted, the court may ‑ at a second stage, when the merits of the case are known ‑ revise its original decision and decide that after all the applicants do not have sufficient interest.

It is submitted that this two‑stage test is unlikely to have any damaging effect on the requirement of the rule of law that decision‑making be subject to judicial scrutiny. The first stage should simply exclude cases where there is clearly no real merit in the application, and is appropriate as a means of preventing wasteful litigation. By the time the second stage of the test comes to be applied, the court should have looked at the factual and legal context of the case and should thus have begun its scrutiny of the decision in question.

The flexibility of this two‑stage test provides the courts with a useful additional string to their bow in scrutinising cases of public interest, judicial review proceedings in this context may be compared with the relator action in civil law proceedings. The correct approach in public interest cases is normally to use the relator action under which the Attorney‑General brings the action.

But there is a serious gap in this type of case in that the Attorney‑General’s discretion in the matter is unchallengeable (Gouriet v Union of Post Office Workers (1978). So, there is no guarantee that the matter will reach the courts. The courts have used the more modern rules of standing to allow individuals or representative groups to bring judicial review cases of wider public importance, thus to some extent by, passing the deficiencies of the relator action.

On the other hand in R v IBA, ex parte Whitehouse (1985) a television viewer was held to have standing to challenge a decision of the Independent Broadcasting Authority to broadcast a particular programme. Thus, with other two important cases viz ex p Leigh (1987) and ex p Smedley (1985), ex p Whitehouse (1985) could be justified on the common ground that constitutional issue of general importance were persuasive.

From the academic point of view, three issues have, however, attracted attention since the English procedural reforms introduced by RSC 1977.

The first relates to the stage in judicial review proceedings at which, any standing question should be resolved. On the one hand, the rules themselves require that the ‘sufficient interest’ test be applied at the application for leave stage. This is readily coupled with an instinctive view that standing is a threshold procedural question to be resolved positively as a prerequisite of further progress on the application. This is not, however, a historically sound approach, and the questions of locus standi have been viewed as aspects of the substantive case to he made in pursuit of a particular remedy.

More importantly, it is clear that the statutory rules, while enabling standing to be raised at the leave stage, do not require it to be dealt with finally at that stage; neither do they preclude the raising of standing issues at a later stage. The point has furthermore, been taken that standing issues are intertwined with - and may indeed be the same as ‑ issues of substances. Most obviously, the same circumstances of fact and law which establish a person’s ‘legitimate expectation’ to a procedural benefit may also form the basis of the same person’s argument for standing in the case.

Thus, one of the principal conclusions reached by the majority in the famous IRC case was indeed that standing will usually need to be decided in the light of the legal and factual context. The point was also taken that a person’s standing may become relevant at the time at, which the court exercises its discretion whether to award a remedy and, if so, which, a person may need to establish a different relationship to the subject matter of the case to be awarded an injunction or order of mandamus than for the award of a declaration. So, the ‘common’ approach to standing, which may be acceptable and indeed desirable at the outset of the litigation, is much more or less appropriate at its close.

A second feature of the standing literature has been a developing sophistication in the schematic categorisation of the principles to be applied in decisions on the standing of different types of applicant {to which Peter Cane has made the most substantial contribution, in particular his ‘Standing up for the Public (1995) Public Law 276 and Standing, Representation and the Environment’ in Loveland, Ian (ed)}.

Cane has distinguished those, who establish standing on the basis of their own personal interests from those who seek standing on the basis that they represent the interests of others. Regarding the former, the standing requirement is relatively easy to satisfy, since each of their members would have individual standing. Those claiming such ‘representative standing’ are then divisible into three groups.

1. ‘Associational standing’ is typified by the organisation suing on behalf of its members.

2. ‘Public interest standing’ is asserted by those who claim to represent not a group with identifiable membership but a wider ‘public interest’.

3. Cane’s third category, which is more formal in nature, is that of ‘surrogate standing’, where a nominal applicant represents the interests of the real party to the proceedings.

Such an analysis be used to explain why it is insufficient simply to claim that standing in public law proceedings should be treated differently from its private law counterpart: account should be taken of the different ways in which litigants may make legitimate use of judicial review and, therefore, of the different, tests of standing which may be appropriately laid down.

The third general issue of note is that adopting the Cane analysis, it is possible to conclude that while those applicants for review in the categories of ‘personal’ and ‘associational’ standing have benefited from the generosity of approach already referred to, there were initial difficulties with the treatment of the ‘public interest’ type which have only more recently been resolved, at least for the time being. These difficulties were demonstrated in the infamous R v Secretary of State for Environment, ex p Rose Theatre case (1990), where Schiemann J denied standing to a company formed to challenge the refusal of the minister to list an archaeological site. Incorporation could not of itself increase the sufficiency of interest of the individuals concerned. Where individuals did not have sufficient interest, they did not obtain it by incorporating themselves into an association. Thus, it had to be anticipated that, in some circumstances, there might be no one at all with an interest sufficient to challenge an unlawful decision.

However, in ex p Blackfordby (2000) it was held that the court will not readily find that the incorporation of an action group is a bar to the bringing of an action for judicial review.

It has been argued that, on its particular facts, Rose Theatre is defensible. Whether viewed as a claim to ‘associational standing’ or to ‘public interest standing’ in circumstances in which the public interest had already been adequately accommodate, the applicant’s case may have been appropriately denied. On the whole, however, it has been interpreted as a case in which a very ungenerous attitude to standing was, rather provocatively, adopted.

There have been more recent signs of an apparently liberalising shift of approach. Two cases in particular are interpreted as illustrating this trend viz ex parte World Development Movement Ltd (1995) and the EOC case.

In the first case, the World Development Movement (WDM) sought judicial review of the Foreign Secretary’s decision to grant financial aid to Malaysia for the building of the Pergau dam. The WDM argued that the Secretary of State had exceeded his powers. The court held that the WDM had sufficient interest. The WDM played a prominent role in giving advice and assistance in relation to aid and had consultative status with United Nation’s bodies.

More importantly, the House of Lords has itself added to the weight of authority recognising the legitimacy of bona fide interested organisations, albeit without citing either the Rose Theatre or Greenpeace, by way of its ruling in ex p Equal Opportunities Commission and Another (1994).

Perhaps the most compromising and pragmatic solution has been made by Otton J in ex p Greenpeace Ltd (No 2) (1994). He explained his ruling on standing in favour of the applicants on the grounds that the court would take into account the nature of the applicant body, the extent of its interest, the remedies sought, the extent to which the applicant was a responsible body, its consultative status if any, the extent of its membership and support and whether the applicant body would have any other viable means of challenging the matter in question.

So, it could be submitted that the present law of standing provide some significant barriers to persons wishing to challenge the lawfulness of government decisions as a vexed body otherwise they are not so reluctant as Rose Theatre to provide standing.

STIPULATIONS IN MARRIAGE

2011-06-02T00:14:00.001-07:00

Valid Stipulation

All the schools and sects regard as valid and enforceable any stipulation there merely seeks to reinforce the normal effects of marriage. Thus agreement to fix the amount of dower that shall be paid. Another example might be that express stipulations that hold the husband responsible for maintaining the wife and those which state that the wife will obey her husband within the permitted parameters. These are valid and enforceable stipulations but are not necessarily required to be covenanted as such because they are the objectives of the nikah itself, but if done, then it will reaffirm the already existing duties and obligations.

Invalid Stipulation

Invalid stipulations, which omit a condition in the marriage contract, for instance, one stating that the husband will not maintain his wife; one cancelling the wife’s dower; restricting a man’s sexual relations with his wife; or, one allowing a woman to partake from the share of her husband’s second wife. Imam Bukhari, reporting on the authority of ‘Abd Allah ibn-i-Mas’ud, states that a woman may not lay down in her marriage contract that her sister in Islam, i.e. the co-wife, be divorced. He also relates, on the authority of Abu Hurayrah, that the Holy Prophet (PBUH) has said that it is not legal for a woman to stipulate that the cowife be divorced in order to increase her own share because she will only get what Allah has prescribed for her.

Stipulations that invalidate the entire contract are those held to be contrary to the very essence of marriage. Into this category the four Sunni schools and the Ismaili sect of the Shia place all stipulations attempting to impose a time limit on the marriage, as the law regards marriage as being a life-long union. The Ithna‘ashari sect of the Shia regard such stipulations as valid and recognise the institution of the mut’a, or temporary marriage.

Mut’a is concluded by the same way as the Nikah (i.e. by an offer and acceptance). As in Nikah the wife receives a sum of money on the conclusion of the contract. This is not referred to as dower but is termed salary or wages. The contract may stipulate any time-limit. The wife is under no obligation to obey her husband and accordingly her husband is under no obligation to maintain her. Any children born of a mut’a marriage are legitimate but if either party dies during the subsistence of the mut’a the other party will not inherit from them. Either party may terminate the marriage at will. If the husband chooses to end the marriage before the expiry of the time-limit he may not reclaim any of the money he has paid to her. However, if the wife terminates the marriage she must repay her husband a proportionate amount of the money paid by her husband, taking into account the time she has spent with him. When the marriage ends the woman must observe an iddat of forty days or, if she is pregnant, until the delivery of the child. A man may have an unlimited number of wives by the mut’a contract. A mut’a marriage is dissolved ipso facto by the expiry of the term but if cohabitation continues after the expiry of the term, the inference is that the term was extended for the whole period of the cohabitation and that the children conceived during the extended period are legitimate.

Neither Prohibited nor allowed Stipulation

This category of stipulations is the most important and consists of conditions that benefit the wife, but are neither prohibited, nor expressly allowed in Islam. The husband will give up some of his rights by accepting them, for example, when his wife lays down the restriction that he will not marry a second time during their marriage, or that she should not be taken out of her matrimonial home/city. Not surprisingly, the validity of such stipulations is disputed amongst different schools of thought. The Hanafi, Shafi‘i and Maliki schools regard these conditions to be illegitimate while the nikah containing them will itself remain valid. Meanwhile, the Hanbali School considers them to be valid and binding on both parties.

Arguments against stipulations

There is a Prophetic saying that goes, “Any stipulation that is not in the book of Allah (the Qur’a¯n) is void.” The majority of scholars believe that the above-stated stipulations are not mentioned in the Qur’a¯n and are, therefore, not binding.

Arguments for stipulations (Hanbali view)

There are, however, many great names in the list of those who regard these stipulations as legal and valid. ,whose arguments run as follows:The Holy Qur’a¯n states: “O you who believe abide by your contracts”. (Sura 5, verse 1) This verse, being the basis of all contracts, prevails and therefore all obligations, when undertaken, should be carried out accordingly. The Hanbalis regard the above verse as the basis of the law of contract, thereby invoking the principles of freedom of contract. Another Qur’a¯nic verse that is cited to support this view is: “And fulfil every engagement, for it will be enquired into (on the day of the Reckoning)” (27:34). These arguments are further supported by the following verse, “And fulfil the covenant of Allah when you have covenanted.”

Accordingly in Hanbali law, any stipulation, not itself forbidden or not contrary to or inconsistent with the essence of the contract of marriage, is valid. A stipulation falling into this category would be a provision to the effect that the husband will not take a second wife or that the wife will be free to leave the matrimonial home whenever she wishes. If such a stipulation is inserted into the contract and the husband breaches it, the wife’s remedy is to apply to the court to grant her a dissolution of the marriage on the grounds that her husband is in breach of contract and she is therefore no longer bound by it.

Reform

Reformers in many parts of the Muslim world have adopted the Hanbali law allowing stipulations which vary the normal incidence of the marriage contract to be inserted if such stipulations are for the benefit of one or both parties to the contract. Such a stipulation in the marriage contract that restricts the husband’s right to practice polygamy is specifically recognized in many Middle Eastern Countries. Article 38 of The codified 1917 Ottoman Family Rights Code was the first piece of legislation that had adopted the Hanbalite’s rules on inserting stipulations in marriage contracts. This stipulation includes allowing the wife to seek a divorce in case the husband contracts another marriage.

Jordan

The Jordanian Law of Personal Status 1976 maintains provisions that allow the insertion of the stipulation in the marriage contract whereby the husband should not take another wife. In this stipulation the wife has the right to divorce in a situation where the husband has violated the stipulation.

Syria

The Syrian Personal Law Code of 1953 provides general provisions that allow the wife to insert a stipulation in her marriage contract. This general provision in actual fact does not state specifically that the wife has the right to divorce in case the husband violates the stipulation by contracting another marriage. However, such a stipulation was made possible under article 14 of the Syrian Personal Law Code 1953.

Morocco

The Moroccan Code of Personal Status of 1957 and 1958 has a similar provision. In Article 31:

… A woman has a right to stipulate in the marriage contract that her husband should not take any co-wives, and that if the husband does not comply with that to which he has bound himself, the wife shall have the right to demand that the marriage be terminated.

Iraq

Article 6(4) of the Iraqi Law of Personal Status (no. 188) of 1959 also gives a woman the right to apply to court for a divorce if her husband fails to honour a stipulation agreed upon in the marriage contract.

Kuwait

Kuwaiti law differentiates between three types of stipulations that may be incorporated into the marriage contract as stated in Articles 40 and 41 of Law No. 51 concerning personal status:

Firstly, a condition that violates the very purpose of marriage shall render the marriage contract absolutely void.

A stipulation that runs counter to the implications of marriage, without contravening its principles, shall be void, but the marriage contract itself will remain valid.

But a clause that contravenes neither the roots nor the implications of marriage is not prohibited by Shariah, and thus shall be binding and enforceable, but only if it is included in the marriage contract.

Tunisia

Article 11 of Tunisian Code of Personal States, 1956, permits stipulations in a marriage contract. ‘If any stipulation is violated the aggrieved party may apply for dissolution of marriage.’

Indian Sub-Continent

Similarly, such stipulations have been accepted as valid by courts in the sub-continent. However, they did not adopt the Hanbali doctrine but iterated that a Muslim marriage is a civil contract, and as long as a stipulation does not contravene the Indian Contract Act 1872, it will remain valid and binding. In Muhammad Amin v. Amina Bibi Addison J. put it this way: “marriage is a civil contract and the parties may contract in any way they wish to within certain limitations.”

Polygamy

2011-05-26T11:41:00.001-07:00

The Arabs of pre Islamic era were governed by tribal customary law that permitted unlimited polygamy. Islamic law severally restricted this by providing that a husband could not have more than four wives concurrently. Surah AL NISA (Verse 3) is that source of the law of polygamy in Islam. The verse also said that a man must treat all his rights equitably.

The surah has been interpreted to the effect that law obliges the husband to treat his wife equitably and he must spend an equal amount o9f time with each wife.

All the schools are agreed that it is not necessary for a man to obtain any short of permission before remarriage.

The legal remedies for woman whose husband decides to take a further wife are limited. Hinchcliffe has commented that a non Malik wife who reluctantly finds herself a co-wife will have no recourse at all unless her husband agreed to delegate to her the Talaq-e-tafwid. Whether the moral obligation on the Husband to treat his wife equally relates only to nafaqa (material support and maintenance) or also to equal affection has remained heavily contested.

The Quran itself appears to suggest that the later is an impossible task. Surah AL NISA (Verse 129) says that a man shall not be able to deal unfairness and justice between women however much he wished. It has therefore been possible to argue that polygamy was never really allowed in Islam and should consequently be prohibited by modern Muslim law.

The fundamentalist reacted strongly to such a suggestion, arguing that such interpretation would render the Quranic allowance for up to four wives absurd and in operative and that in order to honor it a distinction much be made justice in verse 3 which would mean equality between the wives in material and tangible matters and justice in verse 129 which would mean inner feelings over which man has no control. They quoted traditions (sunnah) of the prophet to substantial their opinion.

Reform:

The controversary over polygamy started in early 20^th century in the grounds that it was an injustice to woman. Many jurists have taken different views on the need for restricting polygamy.

An Indian Muslim author known as Siddiqi takes a balanced view. The permission given by the Quran for polygamy arises out of particular circumstances. There will always be individual cases where polygamy may become necessary in order to avoid more serious social and moral consequences. So it may not be right to prohibit polygamy by legislation since the Quran has made it conditional on a just an equal treatment of the wives. It is open to the countries to prescribe conditions under which polygamy may be allowed.

Polygamy has been subject to reforms and many countries have legislated to impose restrictions on it. The trend is in favor of restriction polygamy of not prohibiting it completely.

TUNISIA

Tunisia

has ban polygamy outright and has declared a polygamous marriage void. Under Tunisian law, polygamy is forbidden and constitutes a criminal offence, rendering a man who marriage before his previous marriage is dissolved, liable to a penalty of one year imprisonment and or a fine.

The Tunisian jurist took economic criteria as a key element arguing that since in modern socio economic conditions impartial treatment of several wives was a practical impossibility, the essential Islamic conditions of polygamy was impossible to fulfill.

LEBANON

Polygamy is also prohibited in

Lebanon

IRAQ

Iraq

marriage more than one wife is allowed only by permission of the judge, who shall not grand such permission unless he makes sure of fulfillment of two conditions.

The Husband is financially capable of supporting more than one wife.
That there is a legitimate interest.

A man who contravenes above is liable to a penalty of one year imprisonment and or fine.

SYRIA

The Syrian legislation is less categorical while following same course. The judge has the power to forbid a married man from taking another wife unless there is the legitimate justification and the financial capability to support both wives is proven.

Jordan

Although the Jordanian law imposes no obvious restrictions upon polygamy. It allows the wife to stipulate I marriage contract that the husband shall not take another wife and entitles the wife to sue for divorce if such same allowance for the wife is repentant in the Moroccan law.

Alzeria

According to the Algerian law, a man who wishes to take a second wife must establish a clear and genuine need. The court will grant him such permission if it is satisfied of such need and further if there is evidence that the man is able and willing to treats the wives and children with equality. The first wife may obtain a on the sole ground of husband second marriage.

Asian sub-continent

The modern south Asian secular view of the law considers polygamy at best as an institution to be tolerated but not encouraged [an Indian case of irwari v asgari]

India

There has been no direct legislation reform of Muslim personal law in India in the subject of polygamy. Many judges have called for government to enact legislation on this subject. Muslim marriages in Indian are therefore potentially polygamous. And the husband may subject to conditions stipulated by the wife, make arrangement for polygamy which the wife has legally, very little control, unless she has inserted relevant stipulations in her marriage contract. Such stipulation would be enforced in that the wife would be entitled to claim divorce from the husband or a judicial desolation of marriage under the DMMA 1939

Pakistan

The Pakistani law in Muslim polygamy was the subject of reform in the context of MFLO 1981.although Pakistan has academically impressive restrictions to men’s right to polygamy in practice the requirement that prior permission for a polygamous marriage be obtained from the council appears to be a formality rather then a effective deterrent. If a second marriage is completed with out the approval of council the second marriage is clearly valid.

Bangladesh

Bangladesh has inherited the provision of MFLO1961 from Pakistan. Bangladesh has made some amendments to the provision of MFLO. Polygamous marriage in contravention on MFLO remains fully valid marriage in Bangladesh. The couple is not allowed to register the marriage. But it may be doubted whether this is in fact really punishment. So, the existing law is clearly not as effective as theory could be.

Conclusion:

Bharatliya says that, there are certain factors under which polygamy historically portrayed as a consequence of wars and the presence of many widows and orphans. However, it is also true that, the existence in law of the right to take a second wife severely hinders the progress of Muslim woman.

But as Menski stated easy divorce rules without a legal right to polygamy would lead to a large pool of divorce woman, many of whom are presumable either ill, infertile or in some way unsuited to full material life. Prohibition of polygamous arrangements would perhaps required the toleration of extra marital relation of man. Hence there has always been ample room for debating whether strict legal monogamy is preferable- or whether restricted right to monogamy should be allowed. Some reforms in the Muslim world have prohibited polygamy whether as other have only imposes certain procedure burden. It is a fact that some Muslim husbands justify there choice in favor of polygamy by arguments phrased in terms of sharia.

Islamic Contract Law

2011-05-26T11:40:00.000-07:00

6.1

The classical law of contracts and obligations have adopted the principle of freedom of contract and elaborated various requirements for formation and validity of contract.

The elements of contract under Islamic law:

1. Capacity to contract

2. There must be an offer & acceptance

3. Consideration

4. Ther must be absence of Riba and Gharar

6.2

Capacity to contract:

Contractual capacity, other than for contracts of marriage, is (with the exception of Maliki females) attained for males and females alike at the onset of physical puberty. There is an irributable presumption of law that no male below the age of 12 and no female before the age of nine has achieved majority and an equally irrebuttable presumption of law that by the age of 15 both males and females are adult. In between the minimum and the maximum ages whether majority has been attained is a question of fact. Moreover, a minor’s coming of age according to symptoms or age is not sufficient for perfection of his capacity and obligation of making over his property to him, and to give him a free hand in disposing of it. But it is necessary that he must possess sound judgment along with legal majority. The proof of that is the following quranic verse

“And put the orphans to test until they reach the age of marriage; then if you perceive in them sound judgment deliver to them their property” (Sura 4, verse 6)

This verse is decisive about the fact that making over property to the orphans, that is minors, is qualified by two conditions, the first is reaching the marriageable age, and the second is that sound judgment is found in them. If a child comes of age but has no sound or right judgment, he will have no perfect capacity and this property will not be made over to him. But he will be interdicted until right judgment is found in him.

A person having sound judgment is he who disposes his property well and know the method of its investment and protection. The Shafi jurist define sound or right judgment as competence of a child for disposing of his property well and observing the injunctions of the islamic shariah. If a child comes of age while he manages the affairs of his property and disposes of it very will according to the requirement of intelligence and wisdom, but does not manage his other affairs according to the injunctions of Shariah, he will not be considered having sound judgment. Abu Hanifa holds that when a person reaches the age of twenty-five years, he becomes a man having perfect capacity and his property must be delivered to him so that he may dispose of it. That is after this age no person is expected to improve his capacity to dispose of his property, and therefore it is useless to interdict him and prohibit him from disposing of his proerty. (An Introduction to the Study of Islamic Law, Dr. H.H. Hassan, 2005, p.p 356-357)

Children below the age of majority are subject the control of the guardian of their property. The person with the prior right to deal with the property of the child is the father. If the father is absent then a person appointed by the father has the right. If the father has not named the guardian of the property of his infant child the right passes to his nearest male kinsmen in the order of succession on death. The guardian of the property has the duty to safeguard the interests of the minor and to deal with the property of the minor as if it was his own.

A child below the age of majority who has reached the age of seven, which the Muslim jurists considered the age of discernment, has a restricted contractual capacity. The child may enter into a contract which is manifestly to its advantage so that it may be the recipient of a gift. Conversely the child may not enter a contract manifestly contrary to its advantage such as making a gift. Other contracts made by a child below the age of majority are not void but are deemed to be suspended pending the guardian’s consent or otherwise to their execution. The only exception to the general rules relating to contractual capacity are insane persons, persons who are, while not certifiably insane, feeble-minded, acknowledged spendthrifts and persons who are easily deceived. In their cases, the age of entering into contract is higher than the ordinary persons. In the case of persons possessing these defects the guardianship of minority may, with the permission of the judge, be extended. Also persons who are in their death-sickness are under an interdiction restricting their contractual rights.

Maliki women also do not achieve contractual capacity at puberty. A Maliki woman achieves contractual capacity only upon consummation of a valid marriage. Even then her contractual capacity is not absolute. She may not dispose gratuitously of more than one-third of her property. The Maliki jurists argued that as a married woman is presumed to be having sexual relations with her husband there is a possibility that she could become pregnant, with the inevitable result that she would deliver a child. Death in childbirth is equated with death-sickness.

In many parts of the Muslim world today the age of majority has been fixed by the various civil codes. It is interesting to note, however, that the courts in Abu Dhabi (where Maliki law prevails), have held that a woman who was over the age of 18, the age of contractual capacity for commercial contracts in that Emirate, was unable to validly contract because she was unmarried. The courts of Pakistan have sought to safeguard the interests of women. Where a Purdasheen woman disposes gratuitously of property the burden of proof is on the person who is claiming a right under the property she executed to prove that she had proper understanding of the effect of the contract.

6.3

Offer & Acceptance:

An offer is the first stage for making a contract. The offer has to be accepted in the same session in which the offer is made. However, what is meant by the same session is a question of fact, which may take a variety of forms.

A offer can be made in a number of ways:

1) It can be made verbally. This kind offer is to be made in the same meeting.

2) This can be made in writing. This form of offer becomes effective as soon as the letter leaves the person offering and will remain valid until received by the recipient. The offer must be replied to immediately.

3) It can be made through message sent with some person, whose honesty is not doubted and if the offer is accepted it will be a good acceptance.

4) It can be made through signs and gestures particularly in those cases where the person offering is deaf or dumb or when the recipient does not understand the language of the person offering.

5) It can be made by conduct. An offer made through the delivery of goods is valid according to Maliki school. An offer can not be made by silence.

The Hanafi and Hanbali jurists says that the person offering has the option to withdraw his offer before it has been accepted since the person who is to receive has nem giving the chance to make up his mind whether to accept or reject the offer. It seems equitable that the person offering should have the right to withdraw his offer before acceptance is made. It is likely that the person offering might have made some mistake or forgotten to include something in his offer, therefore he can quickly withdraw his offer while the other party is still busy in making up his mind. But Maliki school takes a different view and said that once the offer is communicated to the recipient the person offering it has no right to withdraw the offer because he ought to have made up his mind before making an offer but will not be permitted to change it later on. (Abdur Rahman Ibn Doi, 1984, p. 357)

On the other hand, doctrine of Khiyar Al Majlish is relevent for the parties to the contract, duly completed by offer and acceptance, which gives the right to repudiate the agreement during session of bargain. A Prophet’s tradition express this doctrine which is:

“Each of the parties to a contract of sale has the option against the other party as long as they have not separated”

Imam Malik comments on this tradition in the following words: “Here in Medina, we have no such known limit and no established practice for this” and the points he then proceeds to discuss show that for Imam Malik a contract was binding as well as complete immediately mutual agreement had been reached. In this point professor Coulson remark that: “This is one of the many occasions on which the law expressed in the reported precedent of the prophet or later authority was rejected by the early Medinan scholars when it ran counter to their currently adopted doctrine”. Though Hanafi school also do not recognise this doctrine however, the Shafi and Hanbali jurist accept this doctrine.

6.4

Consideration:

In Islamic law, the consideration for the contract must be something which is ritually clean, and which has some value recognized under shariah. Thus contract for selling 100 bottle of wine shall not constitute a valid contract since wine is not recognized under shariah as goods.

6.5

Ther must be absence of Riba and Gharar:

The first principle of Islamic contract law is that ‘Muslims must abide by their stipulations’. This principle of ‘pacta sunt servanda’ does not entail complete freedom of contract but is accompanied by a recognition of the ethical dimension

of a transaction. Freedom of contract is restricted by ethical considerations. The scope of commercial activity in Islamic law is limited by two principles, namely the prohibition on interest (i.e. riba) and on gharar (i.e. an uncertainty in the object of a contract).

6.5.1

Prohibition on interest (Riba)

All schools of Islamic law agree that the taking of interest (i.e. the exchange of money for money with excess and delay), is prohibited. The prohibition placed by Islamic law on interest-based loans is derived directly from the Qur’an in several different revelations, which is the primary source of Islamic law.

Firstly in Sura 30 (Ar-Rum), Verse 39:

“That which you give in usury so that it increases in other people's wealth, will not increase with Allah; but the charity you give desiring the Face of Allah, to those, they shall be recompensed many times over.”

Secondly in Sura 4 (An Nisa), Verse 161:

“And for their taking of usury, that they were prohibited, and consuming the wealth of people in falsehood, for the unbelievers among them We have prepared a painful punishment.”

Thirdly in Sura 2, verse 275–279 provides that:

“Those who devour interest stand like one whom Satan has smitten with insanity. That is so because they keep saying: The business of buying and selling is also like lending money on interest; whereas Allah has made buying and selling lawful and has made the taking of interest unlawful”.

Though, in the Holy Koran, the term Riba has not been defined. However, islamic jurists have defined Riba as taking a monetary advantage without giving a counter value, or more specifically it refers to the “premium” that must be paid by the borrower to the leder along with the principal amount as a condition for the lone or for an extension in its maturity.

In Shariah the term riba is used in two senses:

a) Riba al nasiah

b) Riba al Fadl

6.5.1.1

Riba al Nasiah:

The term nisiah means to postpone, defer or wait and refers to the time that is allowed for the borrower to repay lone in return for the addition or the “premium”. Prohibition of Riba al naisah essentially implies that the fixing in advance of a positive return on a lone as a reward for waiting is not permitted in shariah. It makes no difference whether the return is a fixed or a variable precent of the principal or an absolute amount to be paid on maturity.

6.5.1.2

Riba al Fadl:

Riba al Fadl relates to the hand to hand purchase and sale of commodities. The discussion of riba al fadl has arisen from the hadith requring that if gold, silver, wheat, barley, dates and salt are exchanged against themselves, they should be exchanged on the spot and be equal and like.

Apparently it seems to be something very innocuous because even in a barter transaction one would be tempted to sell a given quantity of wheat for a similar quantity of wheat paid and delivered then and there. But on a deeper examination it becomes clear that this prohibition was primarily to close the slightest possiblity of increase on the principle amount which was possible if this back door is left open. For example if a person want to sell salt in exchange of wheat then there is possiblity of riba. As the price of wheat and salt are not same. For this reason there is a possiblity that one party will suffer loss and other party will get some extra economic benefit over the premium. Moreover, if this trade do not took place on the spot then also there is a possiblity of riba. This is because the price of the product might not be same in the whole period. So here also one party will suffer loss; whereas other will gain though uncosciously. For this reason it is said that this hadith is in fact a discouragement to enter into this kind of transaction.

Of the six commodity specafied in the relevant tradition of the Prophet dealing with Riba al Fadl, two unmistakably represent commodity money; whereas, the other four represent staple food items. Hence the jurist have over the centuries debated the question whether Riba al Fadl is confined only to these six items or it can be generalised to include to other commodities; and if so, what should be the reasoning used for this purpose. On the basis of the characteristics of gold and silver as commodity money, it has been almost unanimously concluded that all the commodities used as money enter the sweep of Riba al Fadl. With respect to there four items, there is a difference of opinion. One opinion argues that since all four commodities are sold by weight or measure (Hanafi, Hanbali, Imami and Zaydi) therefore, all items which are so saleable by weight or mesure would be Riba al Fadl. A second opinion is that since all four items are edible, Riba al Fadl would be involved in all commodities which have the characteristics of edibility (Shafi and Hanbali). A third opinion is that since these items are necessary for substence and are storable (without being spoiled) therefore all items that sustain life and are storable are subject to Riba al Fadl (Maliki). The Zahiri school however confines Riba al Fadl to only to six commodities specifically mentioned by the Prophet. It is however the only school and a minority to be so restrictive. A fourth but perhaps a more plausible, explanation is that all the six commodities were used as money in and around Medina, particularly among the Bedouins, and therefore Riba al Fadl would be involved in the exchange of any commodity which is used as money. It is apparent that Joseph Schact, in his Introduction to Islamic Law has adopted the opinion of Hanafi view that the prohibition of Riba al Fadl applies in case of any commodities which can be weighted and measured. The learned Author’s analysis of the prophibitioncan be summarised as follows. Riba will occure if-

a) An exchange of two commodities of the same species takes place

b) The commodities can be weight and measured

c) There is a delay in performance or excess in quantity

d) Excess in quantity may be allowed if the commodities are from different species but no circumstances delay in performance can be allowed.

If there is any element of riba in any contract, then the contract would be void to the extent of excess amount and the other pert will remain valid.

After discussing both kind of riba it appears that the prohibition on interest-bearing loans is a strict one in Islamic law. Islamic banking practice is therefore limited to financial agreements that do not involve the charging of interest. One of the means of avoiding the charging of interest is the Murabaha contract that is widely used in Islamic banking.

6.5.1.3

Murabaha contract:

A Murabaha contract can be defined as the sale of a commodity for the price at which the vendor has purchased it, with the addition of a stated profit known to both the vendor and the purchaser. It is therefore at its most basic an ordinary contract of sale.As such it must satisfy all the usual conditions of a regular contract of sale.

A Murabaha contract is not a loan given on interest but a sale of a commodity for a deferred price, which includes an agreed profit, added to the cost. In order to make a Murabaha contract distinguishable from an ordinary, interest-bearing loan the following essential conditions have to be fulfilled.

1) The Murabaha contract must fulfil all the usual requirements of an ordinary

contract under Islamic law.

2) The institution providing the finance to the client must purchase the commodity in its own name from a third party.

3) At the point of purchase the commodity must come into the possession of the institution and the commodity must remain in the risk of the institution until the commodity is sold to the client.

In addition, the Murabaha must comply with the basic rules of a contract of sale under Islamic law.

a) The object of the sale must be property (i.e. an object having a legal use).

b) The commodity must be in the ownership of the seller at the time of sale (i.e. it must be in the physical or constructive possession of the seller when it is sold to another person). Constructive possession means that the commodity has not been physically delivered but has come into the control of the seller and all rights and liabilities in the commodity, including the risk of its destruction or disappearance, are borne by the seller.

c) The delivery of the commodity must be certain and not dependent on contingency or chance.

d) The price must be certain at the time of the contract.

e) ‘In the event of an intrinsic defect existing in the object, the buyer has the

unconditional right to rescind the sale. This right (khiyar al-‘ayab) cannot be ceded by a contractual stipulation, any such stipulation would be null and void.’

The above requirements are regarded as essential for the validity of a Murabaha

contract since the contract would otherwise be indistinguishable from an ordinary

interest bearing loan which, of course, is invalid under Islamic law.

The rules formulated by the religious supervisory boards of the main Islamic banking organisations insist that the bank can only legally sell the object of the Murabaha contract to the client once the bank has received it. Nicholas D. Ray, in his book Arab Islamic Banking and the Renewal of Islamic Law (Graham & rotman, 1995) found that the rules of the International Association of Islamic Banks stipulate that ‘Selling is postponed until the bank gets actual ownership and possession of goods and becomes responsible for any defects therein’. The same applies to the Faisal Islamic Bank of Egypt, the Islamic International Bank for Investment of Development as well as the Second Conference of Islamic Banks.

In a recent decision the Supreme Court of Pakistan defined the essential characteristics of a Murabaha agreement.

[...] Murabahah is a sale and not a financing in its origin. It must, therefore, conform to all the basic standards of a sale. It may be used only where the client of the bank really wants to purchase a commodity. The bank must purchase it from the original supplier after taking into its ownership and (physical or constructive) possession sells it to the client. All these elements must be visibly present in a valid Murabahah with all their legal and logical consequences, including in particular, that the bank must assume the risk of the commodity so long as it remains in its ownership and possession. This is the basic feature

of the Murabahah which makes it distinct from a interest-based financing and once it is ignored, though for the purpose of simplicity, the whole transaction steps into the prohibited field of interest-based financing.

(M. Aslam Khaki v Muhammad Hashim PLD 2000 SC 225, at pp.748–749, per Justice Maulana Muhammad Taqi Usmani.)

The ownership of the goods by the bank for the interval between the two sales can be identified as the most important difference between an interest bearing loan and a Murabaha agreement. During that interval the bank bears the risk that the goods may be destroyed or harmed, or develop a defect. In practice, Islamic banks will procure insurance cover for the period during which they bear the risk in the object of the Murahaba contract.

Compensation for late payment is permitted in modern Islamic banking practice as long as it does not amount to the charging of interest. A contractual provision for the payment of liquidated damages which is calculated on the basis of an annual or daily interest would obviously be prohibited since it amounts to riba (i.e. interest) which is, as explained above, repugnant to Islamic law. In practice, damages for late payment by the purchaser can be contractually provided for by agreeing a pre-determined (i.e. contractually fixed) price for the object of the Murabaha contract if payment takes place after a certain settlement date. This price will be higher than the price payable for the object if payment is effected on the due date.

Other restrictions include the prohibition of an exchange of an obligation for an

obligation and the prohibition of a delay in the exchange of goods.

The essential ingredients of a contract are the offer and the acceptance which must be made in the same meeting (majlis). The offer can be withdrawn as long no acceptance of it has taken place and the majlis, or meeting, has not been terminated. The object of the contract must be specified in order to prevent speculation or interest. A classic example for the specificity requirement is the prohibition on the selling of dates which are still unripe, to be delivered when ripened. Since it is unknown when they will ripen the contract is void. For the same reason Islamic law prohibits gambling, although some of the present day civil codes of the Middle East, for instance the Jordanian Civil Code, allow gambling on racecourses.

Contractual liability arises out of the non-performance of a contractual obligation or the negligent performance of a contract. Liability and obligation are extinct as soon as the contract is properly performed or the debtor is ‘acquitted’ (i.e. the creditor waives his right to the performance of the contract unconditionally). An amicable settlement is also possible, as is the renegotiation of the contract. Another way to extinguish a contractual obligation is to transform it into a new one by way of assignment. A debt owed can, for instance, be assigned to satisfy a claim.

6.5.2

Uncertainty in the object of a contract (Gharar)

Literally Gharar means fraud, the word gharar has often been used to mean risk, uncertainty and hazard. In Islamic law of contract, gharar means uncertainty and ignorance of one or both parties over the substance, attributes of the object of sale, or of doubt over its existence at the time of contract.

For Gharar to have legal consequence it must fulfil four conditions:

a) It must be excessive and not trival: There is a consensus of opinion that gharar to have effect it must be excessive. Excessive gharar may originate as Ibn Rushd has explained, in ignorance and lack of information over the nature and attributes of an object, a doubt over the availability and existence, doubt over its quantity, or want of exact information concerning price, unit of currency in which the price is paid and the terms of payment. It may concern with the time of payment or prospect of delivery. On the other hand traffling gharar is one which is found in nearly all contract but does not feature prominently, in other words which is negligible. This is not so fundamental as to likely give rise any dispute.

b) It occures in case of cominutatuve contract ( a contract in which each of the contracting party gives and receives and equivalent): therefore gharar does not occure is case of obligations crated unilaterally e.g declaration of wakf.

c) It affects the subject matter fo the contract directly, for example in a cow it is the animal itself and not its yet to be born calf.

d) No public interest would be served by the entering into such contract if such a contract is made for the purpose of public interest, then even if there is excessive gharar the contract would be valid. This is because satisfying the people‘s need takes priority by virtue of the quranic principle of removal of hardship (raf cal haraj). For this reason salam contract (advance purchase) and istisna (manufacture contract) contract have been made valid regardless the gharar element therein simply because of the people’s need for them.

A gharar is prevented in the following circumstances:

1) When the parties have adequate knowledge of the counter value they intend to exchange

2) When the object is known to exist and is obtainable

3) When its quality, quantity and attributes are identified and it can be deleivered.

Apart form these, despite gharar, Islamic law recognizes two kindes of contract namely competition for horse ride and competition on islamic quiz.

6.6

Pre-emption:

In contracts for the sale of real property the right of pre-emption (Shuf’a) may arise. Shuf’a means that in certain cases where property is sold a third party may replace the vendee by paying to him the amount which the vendee paid for the property. The right to pre-empt arises first when property is jointly held. Where one of the co-owners sells his share the other co-owner may repurchase the property from the purchaser. Also, where a person is a joined owner of an easement attached to the property sold, he has a right to pre-emption. In Hanafi law a person whose property is immediately adjacent to the sale property has a right to pre-empt. The Hanafi law giving the neighbour a pre-emptive right is preserved in the Egyptian civil code. In many cases where Hanafi law applied, the right of a neighbour was thwarted by the vendor making a gift to his purchaser of choice of a narrow strip of land adjacent to his neighbour’s property and then of course selling the purchaser the remainder of the property. This device was effective as the right of pre-emption does not arise over gifted property. A person

wishing to exercise his right to pre-emption must act immediately upon learning

of the sale. He must exercise his right with due formality and in the presence of

witnesses.

6.7

Gift

Every sane Muslim who has attained majority (with the exception of women in Maliki law as explained above) may dispose of his entire property by gift. A transfer of property by one person to another constitutes a Hiba (i.e. a gift), if the transfer of the property is made immediately, is accepted by or on behalf of the other person and nothing is given in exchange for the property so transferred. With the exception of Maliki law a gift is completed on acceptance by the donee and transferred to him. The Malikis, however, consider that the gift is completed before the handing over is made. It is essential for the validity of a gift that the donor should divest himself completely of all ownership of and control over the property which is the subject of the gift. However, as explained in the chapter on succession, certain conditions exist in respect of death-bed gifts: a gift made by a Muslim during a death-illness cannot take effect beyond a third of the estate nor can it be made in favour of an heir, unless the other heirs give their consent to the gift after the donor’s death.

6.8

Law of torts

You have seen in the chapter on penal law that many crimes are treated in a fashion that is more similar to torts in English law than it is to criminal law. The law of civil liability for tortious actions is not well developed in Islamic law. Perhaps the basis of the law lies in the Qur’anic verse ‘There is no dhara [prejudice] in Islam’. The basic principle of the Islamic law of torts is that compensation is only available for actual damage. No damages in traditional law can be awarded for moral damage, like injury to one’s reputation or for pain and suffering. However, many codes in the countries

of the Middle East do allow damages to include compensation for pain and suffering. The courts in Saudi Arabia, however, still apply traditional law and, besides refusing compensation for future loss, also refuse moral damages. Various regulations in the Kingdom do provide for compensation to be awarded for pain and suffering but such compensation can only be ordered by a tribunal appointed to enforce the regulation itself, like the Labour Court which hears cases of work-related injuries suffered by

workers.

Penal Law

2011-05-26T11:38:00.001-07:00

Introduction

Islamic criminal law is one of the areas of law that is deeply influenced by pre-Islamic tribal law. The laws of homicide, bodily injury and rape, for example, are closely related to tribal law, and in many respects Islamic law can be regarded as an attempt to reform these earlier norms. It is also an area of law that exhibits fundamental differences with Western law in many of its characteristics. The most important of these differences is the fact that Islamic law regards many criminal offences as a matter of private law, whereas the distinguishing factor of Western criminal law is the fact that it is primarily the state and not the individual who is responsible for the prosecution and punishment of an offender. In Western criminal law, the role of the victim is insignificant in these matters. However, it should be noted that even English law is increasingly prepared to give the victim of crime a role in the punishment of an offender. Criminals can, for instance, be compelled to pay compensation to their victims by a criminal court.

While in the majority of the countries in the Muslim world modern penal codes have been enacted which depart from traditional Islamic penal law, one of the effects of the rise of political Islam has been the reintroduction of Islamic criminal law into the legal systems of some states. In Iran, following the establishment of the Islamic Republic, Islamic criminal law replaced the previous code which was based on a Western pattern. Pakistan as part of the Islamisation programme initiated by General Zia ul Haq also introduced some aspects of Islamic criminal law, as has Nigeria in those states which are largely Muslim. In the Kingdom of Saudi Arabia, of course, Islamic law applies in the area of criminal law as well in all other areas of the law.

Some aspects of Islamic criminal law, especially the laws on sexual offences and on corporal punishment, is considered controversial within and outside the Muslim world. In this chapter, we will look at classical Islamic criminal law but will also examine the application of these laws in modern Islamic states, in particular the Islamic Republic of Pakistan.

Be that as it may, in Islamic law, though hadd punishments appear to be harsh, sufficient measures have been provided to restrict the hadd punishment to the lowest level. Firstly, the offences classified as hadd have been defined narrowly. Secondly, short period of limitation for lodging the complaint (normally one month, however in case of wife drinking, so long the smell of wine is found from the mouth of accused). Finally, proofs in hadd offences have been made difficult.

Hadd and taz’ir punishments

Islamic law distinguishes between offences for which the punishment is determined in the Qur’an and offences for which the punishment is established by the judge in his own discretion. Punishments specified in the Qur’an itself are called hadd punishments, for the Arabic term for ‘limit’ or ‘boundary’. Of these the most important is apostasy, the abandonment of Islam by a Muslim. Punishments which are at the discretion of the judge are called taz’ir.

Where an offence has been committed but there is insufficient evidence to warrant the application of the hadd punishment the ta’zir punishment is applied, subject to the discretion of the judge. However it may never exceed the hadd punishment.

There are three main aspects of Hadd punishments: firstly, this punishment is prescribed in public interest. Secondly, it can not be pardoned either by him, by political authority or by the victim of the offence. The non-changeability of the hadd punishment is supported by the Koranic verse: “these are the limits of allah. Do not transgress them” (Sura 2 verse 229)

Apostasy

The punishment for apostasy is death but before the sentence is carried out the accused must be offered the chance to return to Islam and belief. Apostasy is still a capital offence in Saudi Arabia, Yemen and the Islamic Republic of Iran. Apostasy does not appear as a criminal offence in either the Pakistan Penal Code (PPC) or the Code of Criminal Procedure of Pakistan. However since the amendment of article 295-C of the PPC to make blaspheming the name of the Prophet an offence punishable by death or life imprisonment, it is likely that an apostate would suffer the same penalty as there can be no greater blasphemy of the Prophet than renouncing Islam and the role of the Prophet as the Messenger of God.

Sexual relations outside marriage (Zina)

Another most serious hadd offence is that of Zina (i.e. sexual relations outside of Marriage). The offence therefore can either be the committing of adultery or fornication. Sexual acts which do not amount to having actual sexual intercourse are punished at the discretion of the judge and are, accordingly, taz’ir offences. The punishment for a person found guilty of Zina, has laid down in Surah Noor verse 2 as follows:

“The adulterer and adulteress shall each be given a hundred lashes. Let no pity for them cause you to disobey God, if you truly believe in God and the last day; and let their punishment be witnessed by a number of believers”

However, it is found from the tradition of prophet that if the party to the adultery is married, then an additional punishment of stoning to death would be imposed. It is however disputed as to whether the requirement of stoning to death is still sanctioned by Islamic law. One view is that those traditions which have prescribed for stoning to death are relating to the events which are in point of time earlier than the revelation of the Kornic verse, and as such the provision of stoning to death has been abrogated. On the other hand, another view emphasizes that this is still applicable because that was the practice of prophet in cases of married offender. This is also a disagreement among the jurists as to whether the married offender, who should be stoned to death, should also be subject to flogging or not. Conversely, it is not disputed that if the offender is a person who has never been married the punishment is a hundred lashes.

To prove the hadd offence of Zina the testimony of four eyewitnesses of the act of intercourse itself is required. Moreover the eye witnesses must be adult sane male Muslims possessing the highest degree of moral probity. Guilt may also be established by the confession of the accused, which is maintained until punishment is actually carried out. It should be noted that in traditional Islamic law pregnancy outside marriage does not constitute proof of the hadd offence of Zina.

The early years of the new Islamic Republic of Iran saw the execution of many women charged with the offence of Zina. There is no record of how the conviction of these women was obtained but it would be virtually impossible for the Sharia standard of proof (i.e. eye-witnesses of the act of sexual intercourse) to be obtained or that all the women convicted made a complete confession which they maintained even while punishment was carried out.

False accusation of Zina (Qazf):

Qazf – falsely making an accusation of Zina, is another kind of hadd offence. The unproved allegation that a person had committed zina constitutes this offence. Jurist of the sunni school hold that in order to constitute such offence, the person accused of zina must be a sane adult Muslim who is known to be a chast person. The punishment for zina is prescribed in verse 4-5 of Surah Noor, which as follows:

“Those that defame honorable women and can not produce four witnesses shall be given eighty lashes. Do not accept their testimony ever after, for they are great transgressors- except those among them that afterwards repent and mend their ways.”

Theft

Theft is defined as taking and carrying away without right a thing of value from a protected place. There is almost complete agreement on this definition among jurists, but they are not so unanimous concerning the value of the stolen property. According to Hanafi Jurists, the minimum value should be 10 dirham, but according to Maliki Jurists the minimum amount should be 3 dirham, while other schools do not prescribe any minimum amount. Things that have no value in Islam such as pigs, pork or wine, cannot be the object of the hadd offence of theft.

Keeping something that is found does not constitute theft. Further the requirement of stealth implies that any property taken forcibly does not amount to theft; and taking away from custody requires that the property should be taken out of the premises where the theft takes place.

Again, to establish the hadd offence the testimony of two eye-witnesses of the highest moral probity is required. Circumstantial evidence can never suffice to procure a conviction to the hadd offence although it can result in the application of a lesser ta’zir punishment.

The punishment of theft has been prescribed in Surah 37 verse 4, as follows:

“As for the man or woman who is guilty of theft, cut off their hands to punish them for their crimes. That is the punishment enjoyed by Allah…. But whoever repents and mends his ways after committing evil shall be pardoned by Allah.”

All views agree that for the commission of the first theft, the punishment is the amputation of the right hand from wrist. However, it is the punishment subsequent thefts that the jurists disagree. Hanafi School takes the view that for the second theft the left foot should be amputated, and for further thefts, no further amputation would be made, rather the thief should be imprisoned until he shows repentance. Maliki, Shafei and Hanbali jurists hold the view that for the third theft the left hand should be cut off and for the fourth the right foot. Ibn Hazam expresses a different view holding that the Koran has mentioned only about the hand and nothing about the feet, and as such there is not authority to support that a thief’s foot can be amputated.

In Pakistan, The Offences against Property (Enforcement of Hudood) Ordinance, 1979 provides for hadd punishments that, however, can be awarded if the very high evidential burden imposed under Islamic law is satisfied. The proof of theft liable to a hadd punishment (i.e. the amputation of the right hand for the first offence), requires that either the accused pleads guilty to the commission of the theft or that at least two Muslim adult male witnesses, other than the victim of the theft, who are regarded by the court to be truthful persons and who have in the past abstained from major sins, give evidence as eye-witnesses of the occurrence. Further, the statement of the victim of the theft has to be recorded before the statements of the eye-witnesses are recorded. However, in the Indian sub-continent India does not apply Islamic penal law at all.

Armed robbery (Haraba)

The offence hiraba is often translated as highway robbery, but which covers other offences committed by stealth. The punishment for hiraba has been declared in the Surah Maidah verse 33-34:

“Those that make war against God and His prophet and spread distorder in the land shall be put to death or crucified or have their hands and feet cut off on alternate side, or be banished form the country. They shall be help up to shame in this world sternly punished in the hereafter.”

There may be two types of situations. One, where the armed robbery has been committed without any killing and another, the armed robbery has been committed accompanied by killing. While in the former case, the punishment would be cutting off hands following the rules applicable in case of theft. That is to say for the commission of the first theft, the punishment is the amputation of the right hand from wrist. Hanafi School takes the view that for the second theft the left foot should be amputated, and for further thefts, no further amputation would be made, rather the thief should be imprisoned until he shows repentance. Maliki, Shafei and Hanbali jurists hold the view that for the third theft the left hand should be cut off and for the fourth the right foot. Ibn Hazam expresses a different view holding that the Koran has mentioned only about the hand and nothing about the feet, and as such there is not authority to support that a thief’s foot can be amputated.

In the letter case, the punishment would be cutting off the hands and feet in the opposite directions, and killing by crucifixion.

Drinking alcohol

The drinking of wine or other intoxicating liquids is also a hadd offence. It has forbidden by the Holy Koran in the following verse:

“Believers, wine and games of chance, idols and divining arrows are abominations devised by satan. Avoid them, so that you may prosper. Satan seeks or stir up enmity and hatred among you by means of wine and gambling, and to keep you from remembrance of God, and from your prayers. Will you not abstain from them?” (Surah 90 verse 5)

However, no punishment has been prescribed in the Koran for drinking alcohol. But from the tradition of prophet, it is found that prophet has inflicted different kinds of punishment upon those who were accused of drinking wine. In some cases he threw a fist of dust upon the face of the accused, in some cases he ordered to beat the offender. However exact number of lashes and mode of making them was not clear. Thus during the first caliph Abu Bakr, the issue came up, and it was decided in an ijma that the number of lashes should be 40. However, during the second caliph the issue again came up for review, since the number of drunken people increased alarmingly and upon consultation with the companion of the prophet, it was ultimately fixed at 80 lashes to make a parallel with the punishment of false accusation of unchastity.

Some countries, such as

Saudi Arabia

, have also made the taking of hallucinatory drugs a hadd offence. The punishment for this offence is 80 lashes. Unlike the lashes inflicted in the case of ta’zir for Zina and for the false accusation of adultery, the lashes inflicted for drinking are not meant to inflict harm on the person but to shame him. Traditionally it is recommended that the lash be held between the first and the second fingers of the hand (i.e. lightly).

A further distinction is made in Islamic law between those crimes that involve a ‘right of God’ and those that involve only the right of an individual. In the first category fall the hadd offences (i.e. theft, illicit sexual relations, the drinking of alcohol, the unproved assertion of a chaste person’s immorality and apostasy from Islam). Crimes involving ‘the right of God’ can be compared to the concept of a crime in English criminal law: the court, once seized with the matter, cannot drop the case nor can the aggrieved party withdraw the case or come to an out-of-court settlement with the accused. The second category, namely offences against the right of an individual but not against a right of God, includes homicide and wounding. These are regarded very much like a tort in English law: the aggrieved party can accept compensation, insist on retaliation or pardon the offender.

Homicide

Islamic criminal law on homicide and wounding constituted a major reform of pre-Islamic tribal custom. Customary law demanded that a homicide was dealt with by revenge killings of not only the murderer himself but also of several of his fellowtribesmen, since tribal pride regarded only several members of the murderer’s clan

to be equal to the victim from their own tribe. The result was inevitably a blood feud between clans that would spread over many years. Islamic law introduced three major reforms.

uu Only the guilty party was liable for the crime and could be punished by being killed

or wounded.

uu A punishment was only imposed if the wounding or killing had been committed deliberately and wrongfully.

uu The facts of the crime and the guilt of the accused had to be established before the

ruler or a judge.

However, the principle of personal vengeance itself is preserved in Islamic criminal law: once guilt is established it is not the ruler or the judge who decides on the punishment of the guilty party but the victim or, in case of homicide, his heirs. The first option of the victim is to insist on retaliation. The second option is to waive the right of retaliation and to accept instead monetary compensation from the culprit. This sum payable to the victim or his heirs is called diyat. The amount of diyat depends on the status of the victim. For instance the blood-money payable for a woman is fixed at half the rate for a man; for a slave the amount was not fixed but determined by his value. Where a slave is killed by a free Muslim, only the Hanafis allow retaliation for deliberate homicide. The other schools restrict the punishment to the payment of blood-money to the owner.

The same principles apply to the killing of a non-Muslim: only the Hanafis allow for retaliation whereas all other schools and sects restrict the punishment to blood-money, which is reduced to a lower level than that of a Muslim. The third option is remission (to forgive the culprit and not to insist on either retaliation or blood-money).

The McLauchlan and Parry case

Aspects of the criminal law of Saudi Arabia – both substantial and procedural – have been highlighted by the case of Lucille McLauchlan and Deborah Kim Parry, two English nurses who were accused of murdering an Australian colleague. This was perhaps the most ‘open’ trial conducted under the criminal law of the Kingdom. The two accused were – for what is believed to be the first time –represented before the court by Saudi counsel. Counsel, in a submission to the court on their behalf, discussed the role of confession in Sharia. He stressed that the Islamic jurists would not recognize a confession obtained under duress whether physical or moral. He stressed that the Islamic jurists included in the concept of duress promises, threats and violence, irrespective of the degree of pressure in a prolonged interrogation, and every interrogation which was made in the late hour of the night. He also argued that under the Sharia a confession is nullified when: the interrogator conveys to an accused that his co-accused incriminated him or that

much evidence has been found against him at the crime scene etc and other similar tricks and deceptions if these contribute to the pressure and the breakdown of the accused and his admission of things which he did not do in order to get rid of his psychological and physical sufferings. Counsel argued that confessions should be corroborated by other evidence, because ‘confessions are the start of the evidence and not the end’.

He argued that in the case before the court the two accused must have been subject to duress as defined in accordance with the principles of the Sharia. Initially and while the trial was still in progress the brother of the victim was urged to accept blood money, diyat. At first he demanded retaliation which on a finding of guilt would have meant the execution of the two accused. However, intensive diplomatic efforts by the British government and other parties resulted in his agreeing to accept blood money. The trial itself was somewhat inconclusive, for while Lucille McLauchlan was found guilty of being an accessory to murder there is no report of any finding on the guilt of Deborah Kim Parry. It appears that there must have been a finding of guilt in both cases, however, as both the accused were pardoned by the late King Fahd and repatriated to the UK.

Honour crimes

In many countries of the Muslim world where Islamic criminal law does not apply, there are provisions in the statutory law to justify so-called honour killings. In Jordan, for example, article 34 of Law 16 of 1960 (the Penal Code) states that: A man who catches his wife or one of his female kinswomen who is within the prohibited degree of relationships having sexual relations with a man to whom she is not married and who kills or wounds both of them is exempt from any punishment. The law further provides that a man who catches his wife or a female ascendant or descendant or his sister with a male person in ‘an unlawful bed’ (presumably in bed with a man other than her husband) and who kills or wounds either of them will receive a reduction of his sentence. Provisions such as the ones in Jordanian law also appear in the laws of Iraq and Egypt. In 1999 King Abdullah of Jordan removed these provisions – which he considered offensive – from Jordanian law by decree when Parliament was not in session. The Jordanian Parliament, however, refused to ratify the decree. It should be noted that there are no provisions in Islamic law that justify honour killings. Honour killings are more a matter of tribal customs and the tribal customary belief that ‘the honour of the tribe rests in its women’.

Pakistan

The Hudood Ordinances

In most Arab countries modern penal codes have been established that depart from Islamic penal law. In the Indian sub-continent India does not apply Islamic penal law at all but Pakistan has introduced Islamic penal law for certain types of offences, for instance unlawful sexual intercourse. Traditional Islamic penal law is also applied in Saudi Arabia and some Gulf states. Pakistan introduced Islamic criminal law in 1979 in the form of three Ordinances, which are collectively referred to as the Hudood Ordinances. They are:

uu the Offences against Property (Enforcement of Hudood) Ordinance, 1979

uu the Offence of Zina (Enforcement of Hudood) Ordinance, 1979

uu the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979.

Under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (the Zina Ordinance, 1979), before it was amended in 2006, any sexual intercourse between a man and woman who were not validly married constituted a criminal offence. This meant that adultery, rape and fornication were all criminal offences liable to hadd punishments if the required evidential burden was met. Anybody who falsely accused somebody else of having committed Zina was liable to be punished under the provisions of the Offence of Qazf Ordinance, 1979. Qazf in traditional law is the hadd offence of falsely accusing someone of Zina and is punishable by 80 lashes.

The Zina Ordinance, 1979 had an effect on the legal status of women: if a woman alleged that she had been raped and the matter came to trial it could happen that the accused was actually acquitted because of lack of evidence. In this situation the woman faced an awkward legal position: in order to prove rape she had had to admit that sexual intercourse had taken place. After the acquittal of the accused the possibility of rape was excluded and the woman now faced charges for either adultery if she was married, or for fornication if she was not. The Zina Ordinance, 1979 had therefore made it quite dangerous for a woman to press rape charges since she might in fact end up as an accused herself.

In 2006, the Protection of Women (Criminal Law Amendment) Act was enacted in Pakistan. This act seeks to redress much of the injustice and hardship caused to women by the Zina Ordinance, 1979. First, the 2006 Act returns a number of offences from the Zina Ordinance back to the Pakistan Penal Code. The offence of kidnapping or abducting a woman in order to compel her to marry against her will or to force her into illicit sexual intercourse, or kidnapping a male in order to subject him to ‘unnatural lust’ and selling a person for the purpose of prostitution, have now been reinserted into the penal code of 1860.

Also, the offence of rape has been returned to the penal code. The offence of rape is so defined that marital rape becomes a criminal offence. Sexual intercourse with a female below the age of 16, even with her consent, is defined as rape. The punishment for rape may be death or imprisonment for up to 25 years, with a minimum of 10 years. The offence of Zina is defined as ‘adultery’ if one of the parties is married at the time the intercourse occurs and ‘fornication’ if they are not. The 2006 Act inserts a new offence of fornication into the penal code. The offence is punishable by imprisonment for up to five years and a fine not exceeding 10,000 Rupees. The new offence is, however, safeguarded from abuse by the creation of a new offence of false accusation of fornication. The new provision provides that anyone who brings or gives false evidence of fornication shall be punished with imprisonment up to five years and a fine of up to 10,000 Rupees. Very importantly, once a prosecution for fornication results in an acquittal, the trial judge can, in the same proceedings, try and sentence the person bringing the charge.

The offence of adultery is the only offence retained by the Zina Ordinance itself. It is an offence for anyone to make a false accusation of adultery. The punishment for the offence follows the punishment of fornication in the penal code. A new definition of ‘confessions’ has been added to the Ordinance. The new definition serves to prevent women being placed in the invidious position of having been deemed to have ‘confessed’ to Zina when they brought an accusation of rape before the court, which the court found unproven.

The definition of what constitutes a valid marriage has also been deleted. The original definition had caused hardship to many women and resulted in confusion regarding the interpretation of Section 7 of the Muslim Family Laws Ordinance 1961. All too often, a husband would repudiate his wife by talaq (see Chapter 10) but would fail to comply with the requirement of ‘notice’ enjoined by Section 7 of the Ordinance. The woman would believe herself divorced and re-marry, whereupon the first husband would bring a charge of Zina against her, citing his failure to give notice of talaq as required by law and that, in effect, the woman was still his legal wife. The 2006 Act removes all reference to taz’ir punishments. The result is that now, under the Zina Ordinance, adultery may only be proved if the act itself is witnessed by four pious Muslim eye-witnesses, or if the accused confesses to the offence, for which the only punishment is death by stoning.

Finally, the 2006 Act amends the procedure governing sexual offences under both the penal code and the Zina Ordinance. Any complaint of adultery must be lodged directly in court, not made to the police. The judge hearing the case must examine on oath the complainant and at least four adult male eye-witnesses, who the court has established to be truthful. The witnesses must testify on oath to the committing of the act of penetration, i.e. the strict evidence required by the Sharia. Moreover, the offence of qazf in the Qazf Enforcement of the Hadd Ordinance 1979 has been amended. If the prosecution fails, punishment for qazf is now virtually automatic. If a prosecution for adultery fails and the judge is satisfied that the offence of qazf has been committed, he shall not require proof of qazf and will proceed to pass sentence against the complainant. Punishment for the offence is 80 lashes. The testimony of a person committed of qazf is thereafter inadmissible in any court proceedings. The procedure regarding allegations of fornication follows that of allegations of adultery, but only two actual eye-witnesses are required. The complainant and the eye-witnesses must be examined in court before the judge can issue a summons for the accused to attend the court.

The law of Pakistan now expressly recognises honour crimes as criminal offences. The amended Article 311 of the penal code provides a mandatory sentence of 10 years imprisonment if the offence is committed in the name of, or on the pretext of, honour. A compulsory sentence of imprisonment must also be given to anyone convicted of an attempted murder or assault in the name of honour.

Blasphemy

Article 295-C of the Pakistan Penal Code 1860 provides that:

Whoever by words, either spoken or written, or by visible representation, or by any imputation, innuendo, or insinuation, directly or indirectly, defiles the sacred name of the Holy Prophet Muhammad (Peace be upon him) shall be punished with death, or imprisonment for life, and shall also be liable to fine.

The Federal Shariat Court has held that, despite the discretion in the statute accorded to the trial judge, the only punishment for blasphemy is death. Although there have been many cases brought under the blasphemy provision and convictions obtained, what actually constituted the blasphemy is not reported, presumably because this would be to repeat the blasphemy.

The Christian community and the Ahmadiyyas (the followers of Mirza Ghulam Ahmad (1835-1908) who consider themselves as Muslims, although they are not so regarded under the law of Pakistan) have been the main sufferers of the blasphemy laws. Pakistan also makes it a criminal offence for a non-Muslim to make himself out to be a Muslim. Following an amendment to the Pakistani constitution, members of the Ahmadiyya sect are not regarded as Muslims although they regard themselves as such.

S.260 of Company Act 2006 is an unnecessary piece of legislation.

2011-05-20T08:05:00.001-07:00

According to the Foss v Harbottle rule, Company is the proper claimant where a wrong has been done to the company. It is known as proper claimant principle. The justifications lay behind this ruling is that- it upheld the principle of majority rule and it prevents multiplicity legal proceedings being brought in respect of the same issue. A clear application of the rule illustrates how it fits with the principle of majority rule is MacDougall v Gardiner. The classical statement has formulated in Burland v Earle by Lord Davey. He sated that the court will not interfere with the internal management companies acting within their powers. Again, it is clear law that, in order to redress a wrong done to the company, the action should be brought by the company itself.

As a result it is the directors of the company, who will have the right to bring a proceedings against third party who has committed a wring against the company or, on the other hand, to defend an action brought against the company falls within the remit of the board. However, problem arise where the majority shareholder misappropriate the property belonging to the company and are not willing to bring an action. They can use there majority to prejudice of minority shareholders.

To counter such abuse there are, therefore, certain exceptions to the rule whereby a shareholder is permitted to sue on behalf of the company. Jenkins LJ in Edwards v Halliwell considered that circumstances in which it will not operate to prevent a shareholder from suing. In essence, he stated that there were four exceptions to the rule in Foss v Harbottle:

a) Where the act complained of is illegal or is wholly ultra vires to the company

b) Where the matter in issue requires the sanction of a special majority, or there has been non compliance with a special procedure

c) Where a member’s personal rights have been infringed

d) Where fraud has been perpetrated on the minority and the wrongdoers are in control.

Wedderburn in his frequently cited article, “shareholder’s rights and the rule in Foss v Harbotttle” has argued that in reality there is only one true exception, namely the fourth exception in Jenkins LJ’s list. He reasons that the first two are not exceptions because the rule is directed towards preventing a minority from challenging acts that can be legitimized by a simple majority and conduct falling within theirs first two grounds cannot be sanctioned by an ordinary majority. The third so called exception covers a wrong by the company and not a wrong to the company. The exception is where a fraud has been perpetrated on the minority and the wrongdoers are in control and this is truly a derivative action. Now question arise what is mean by derivative action?

S.260 (1) Company Act 2006 define derivative action as proceedings brought by a member of a company in respect of a cause of action vested in the company and seeking relief on behalf of the company. The grounds for bringing a derivative claim are laid down by s.260 (3) which provides that such a claim may be brought only in respect of a cause of action arising from an actual or proposed act or omission involving negligence, default, breach of duty or breach of trust by a director of the company.

Before 2006 it was necessary to show “fraud on minority” and “majority in control” in case of common law derivative action. Firstly, I will discuss about fraud on minority. Here first question arise whether it will restricted upon common law fraud. In case of Eastmanco fraud means common law and equitable fraud. There is considerable doubt whether at common law a derivative claim could be brought for a negligence claim by the company against directors. In Pavlides v Jensen a shareholder sought to bring a derivative action to recover damages for the company. Mere negligence is not fraud even in the equitable sense and Dankwerts J. held that no derivative action will lie in such case. However in Daniels v Daniels Templeman J. in a strike out application allowed a claim to go forward that included a negligence claim. The judge seems to have been very much influenced by the fact that, unlike the facts in Pavlides v Jensen, a director made a considerable profit at the expense of the company. That issue, the 2006 Act puts beyond doubt so that the derivative action will be available for breach of the duty to exercise reasonable care, skill and diligence. This will be so even if the director has not benefited personally as a result of the breach.

Furthermore, it was also required to show that “majority in control”. In one interpretation the majority in control means de jure control. However in Prudential assurance co ltd v Newman industries it was accepted that the action can be brought even though the two directors whose conduct was in question did not have majority of shares. This relaxation of the test of majority in control is subsequently limited in Smith v Croft (no 2) where it was stated that if the majority of remaining shareholders who are not wrong doers did not desire to initiate proceeding from disinterested reasons, the member seeking locus standi will be denied so. Under 2006 Act it is not required to show that majority in control.

Other grounds of action are default. The words “default” in addition to the words “negligence” and “breach of duty”. What are referred to as “breach of duty” and “breach of trust” are also included as causes of action for which a derivative action may lie.

Section 261 states that once a derivative claim has been brought, the member must apply to the court for permission to continue it. This is the first step in a two stage process. A paper hearing will take place where the court considers the member’s evidence. The onus is on the member to establish that they have a prima facie case for permission to continue the derivative claim. If this is not demonstrated the court will dismiss the application. If the application is dismissed at this stage, the applicant may request the court to reconsider its decision at an oral hearing, although no new evidence will be permitted at this hearing from either the member or the company. The Practice Direction 19C, Derivative Claims, which amends Part 19 of the Civil Procedure Rules (CPR), provides that this stage of the application will normally be decided without submissions from the company. If the court does not dismiss the application at this stage, the application will then proceed to the full permission hearing and the court may order the company to provide evidence at this stage.

S.263 (2) sets out detailed criteria as to whether permission is to be given. The Court must refuse permission if it is satisfied that a claimant would not seek to continue a claim, that where a cause of action arises from an act or omission that is yet to occur, that the act or omission has been authorized by the company or that where the cause of action arises from an act or omission that has already occurred that the act or omission was authorized by the company before it occurred or has been ratified by the company since it occurred. The list of factors to be taken into account for determining the refusal of permission is supplemented by S.263 (3).

The first of these is that the Court should have regard to whether the member is acting in good faith in continuing the action. The fundamental reason for derivative actions is that they are brought in the interests of the company. In having a good faith criterion presumably the Statute will enable to Court to judge whether there is any bad motive in bringing the action or whether the member has an ulterior motive. Of course there may be mixed motives but it is thought that this will not necessarily amount to lack of good faith if all the other circumstances indicate to the Court that the action should be continued.

Moreover, in Smith v Croft (no 2), the court continued to develop strict conditions for shareholder-claimants to meet. Thus, the view was taken that since the origins of the derivative action are rooted in equity, its availability was a matter within the discretion of the court, and in exercising its discretion the court would have regard to all circumstances, including the claimants conduct, his motives in seeking to sue and the availability of alternative remedy. This is disappointing because of by S.263 (4) the effect of Smith v Croft (no 2) still retain as law.

Provision is also made for an alternative member of the company to apply to the court to continue a derivative claim originally brought by another member but which is being poorly conducted by him or her. Section 264 provides that the court may grant permission to continue the claim where the manner in which the proceedings have been commenced or continued by the original claimant amounts to an abuse of the process of the court, the claimant has failed to prosecute the claim diligently, and it is the appropriate for the claimant to continue the claim as a derivative claim. Similarly, by virtue of s 262, where a company has initiated proceedings and the cause of action could be pursued as a derivative claim, a member may apply to the court to continue the action as a derivative claim on the same grounds listed in s 263. This addresses the situation where directors fearing a derivative claim by member seeking to block it by causing the company to sue but with no genuine intention of pursuing the action diligently.

In assessing the statutory reforms it is noteworthy that there is little or no change of emphasis in terms of formulation. The focus of the rule laid down in Foss v Harbottle and its jurisprudence was on prohibiting claims unless one of the exceptions to the rule was satisfied. The statutory language similarly proceeds from the rather negative standpoint that the court must dismiss the application or claim in the circumstances specified in SS. 261(2), 262(2), 263(2)-(3) and 264(3).

I think if the statutory Derivative claims can be brought by registered shareholder it will have some good effect. In New South Wales in Hooker Investments Pty v Email Ltd this was held to be the common law position and after reviewing the English case law in the area the Court of Appeal of the Cayman Islands in Svanstrom v Jonasson confirmed that only a registered shareholder could bring the action.

কম্পিউটার ক্রয়ের আগে অবশ্যই জেনে নেওয়া উচিৎ যে সব বিষয়

2011-05-17T02:02:00.001-07:00

কম্পিউটার যে আধুনিক প্রযুক্তির সর্বশ্রেষ্ঠ যন্ত্র, সেটা না বললেও চলবে। তাই সবারই ইচ্ছা থাকে একটা কম্পিউটার কেনার। কিন্তু একটা ভালো কম্পিউটার কেনার জন্য কম্পিউটার সম্পর্কে কিছু বিষয় জানা প্রয়োজন। আমি আজকে আপনাদের সেইরকম কিছু বিষয়ই জানাবো। কম্পিউটারের ব্যাপারে একেবারেই নতুন, এমন মানুষদের কথা মাথায় রেখেই পোস্টটা সহজ কথায় লেখার চেষ্টা করলাম, যারা সামনে কম্পিউটার ক্রয়ে আগ্রহী তাদের জন্য পোস্ট টা দারুণ উপকারী একটা পোস্ট।

কম্পিউটার কেনার আগে যে সব বিষয়ের প্রতি লক্ষ্য রাখবেন:
১. যেখান থেকে কিনছেন, সেই দোকান ক্রেতাদের কীরূপ গ্রাহক সেবা দেয়। এক্ষেত্রে পরিচিতরা সাহায্য করতে পারে।
২. বাজারে অনেক সময় খোলা হার্ডওয়্যার পাওয়া যায়। কখনোই এগুলো কিনবেন না।
৩. আপনি কম্পিউটার এক্সপার্ট না হলে অন্তত:পক্ষে Processor, Mainboard, RAM, HDD, ODD, Graphics Card, Casing একই দোকান থেকে কিনবেন। তারাই এগুলো সঠিকভাবে configure করে দিবে।
এখন আমি কম্পিউটারের মূল প্রত্যেকটি আলাদা part সম্পর্কে বলবো এবং এগুলো কেনার সময় কী কী বিষয়ের প্রতি খেয়াল রাখতে হবে, দেখুন

Processor (প্রসেসর):

কম্পিউটারের প্রধান জিনিস। এটিই কম্পিউটারের সকল কাজ করে থাকে। মূলত একেই CPU (Central Processing Unit) বলে। প্রসেসর নির্মাতা প্রতিষ্ঠান গুলোর মধ্যে সবচেয়ে জনপ্রিয় হল Intel এবং AMD (Advanced Micro Device)। দুইটাই ভালো, তবে সবচেয়ে জনপ্রিয়
এবং technology’র দিক থেকে এগিয়ে রয়েছে Intel

প্রসেসর যেহেতু সবচেয়ে গুরুত্বপূর্ণ, তাই এটি কেনার সময় বিশেষ সতর্কতা নিতে হবে।
১. প্রসেসরের clock speed কত, সেটা লক্ষ্য করতে হবে। ক্লক স্পিড যত বেশি হবে, প্রসেসরের প্রসেসিং ক্ষমতাও তত বেশি হবে।
২. প্রসেসরের সিরিজ কী, সেটা খেয়াল করতে হবে। সিরিজ যত উন্নত হবে, স্পিড তত বাড়বে। Intel এর প্রথম দিককার প্রসেসর এর মধ্যে রয়েছে, Pentium Series। পরবর্তীতে ধারাবাহিকভাবে এসেছে, Celeron series, Core Series, i Series। Pentium Series এর মধ্যে, P1 (Pentium 1) এর চাইতে P2 ভালো, P2 এর চাইতে P3 ভালো আবার, P3 এর চাইতে P4 ভালো। অর্থাৎ, same clock speed এর P1 এর চাইতে P2 এর স্পিড বেশি। আবার, একইভাবে, Pentium Series এর চাইতে Core Series এর স্পিড বেশি। core series এর প্রসেসর গুলোর মধ্যে, Core 2 Quad> Core 2 Duo> Dual Core. আবার core i series এর প্রসেসর গুলোর মধ্যে, Core i7 extreme> Core i7> Core i5> Core i3।
৩. প্রসেসরে কয়টি কোর (core) এবং কয়টি থ্রেড (thread) রয়েছে, তা খেয়াল করতে হবে। কোর এবং থ্রেড এর সংখ্যা বেশি হলে স্পিড বাড়বে। এখন পর্যন্ত সবোর্চ্চ ছয়টি কোরের প্রসেসর আবিস্কৃত হয়েছে।
৪. FSB (Front Serial Bus) এর পরিমাণ লক্ষ্য করতে হবে। FSB বেশি হলে স্পিড বেশি হবে। যদিও নতুন প্রসেসর গুলোতে FSB ব্যবহার করা হয় না। এর পরিবর্তে QPI ব্যবহৃত হয়।
৫. Cache Memory (ক্যাশ মেমরি) কত, তা লক্ষ্য করতে হবে। ক্যাশ মেমরির মধ্যে প্রকারভেদ রয়েছে। সর্বাধুনিক প্রযুক্তির ক্যাশ মেমরি হল L3 Cache.
৬. Hyper Threading Technology রয়েছে কিনা, লক্ষ্য রাখবেন। এ প্রযুক্তি Multitasking এর ক্ষেত্রে কার্যকরী ভুমিকা রাখে।
৭. Intel Processor এর ক্ষেত্রে, Turbo Boost Technology রয়েছে কিনা, তা লক্ষ্য রাখবেন। এই প্রযুক্তি প্রয়োজনের সময় প্রসেসরের ক্ষমতা বৃদ্ধি করে।
৮. GPU (Graphics Processing Unit) রয়েছে কিনা, দেখবেন। প্রসেসরে GPU থাকলে এবং ভালো মাদারবোর্ড ব্যবহার করলে External Graphics Card দরকার হয়না। (যদি না আপনি কম্পিউটারে খুবই উন্নত মানের গেম খেলেন অথবা গ্রাফিক্স ডিজাইনিং বা HD ভিডিও এডিটিং ইত্যাদি কাজ না করেন।)
[শেষ তিনটি অপশন বিশিষ্ট প্রসেসরের দাম সাধারণত বেশি হয়। সাধারণ কাজের জন্য এই সকল অপশনের প্রয়োজন নেই।]
Mainboard or Motherboard (মেইনবোর্ড বা মাদারবোর্ড):
এই বোর্ডটিতেই কম্পিউটারের সকল যন্ত্রাংশ যুক্ত থাকে। মেইনবোর্ড এর জন্য ভালো ব্র্যান্ডগুলো হল: Gigabyte, Intel, Foxcon, Asus ইত্যাদি। মেইনবোর্ড অবশ্যই প্রসেসর সাপোর্টেড হতে হবে। মেইনবোর্ড এর পোর্ট দুই ধরনের হয়, IDE এবং S-ATA। তবে বর্তমানে S-ATA পোর্টের মেইনবোর্ডই দেখা যায়। প্রায় সব S-ATA পোর্টের মেইনবোর্ডে অন্তত একটি IDE পোর্ট থাকে। প্রয়োজনে IDE to S-ATA converter ব্যবহারের মাধ্যমে S-ATA পোর্টের মেইনবোর্ডে IDE device ব্যবহার করা যায়। মেইনবোর্ড কেনার সময় যে যে বিষয় লক্ষ্য রাখবেন, তা হল:
১. মেইনবোর্ড যেনো প্রসেসর সমর্থিত হয়।
২. RAM এর ধরন। মেইনবোর্ডে RAM এর স্লট যেরকম হবে, সেই ধরনেরই RAM কিনতে হবে। সর্বাধুনিক RAM টাইপ হল DDR3।
৩. USB Port এর version কত। সর্বাধুনিক হল USB 3.0। [USB 3.0 পোর্ট বিশিষ্ট মেইনবোর্ড এর দাম কিছুটা বেশি]
৪. বর্তমানে সব মেইনবোর্ডেই LAN Card (Local Area Network Card) থাকে। তাছাড়া, HD audio এবং HD Video ও লক্ষ্য করা যায়। Integrated Graphics এর মান বেশি হলে ভালো হয়।

Monitor (মনিটর):
এটাই কম্পিউটারের প্রধান আউটপুট। মনিটরের জন্য ভালো ব্র্যান্ড গুলো হচ্ছে: Samsung, Philips, LG, Asus, HP, Fujitsu ইত্যাদি। মনিটর কেনার সময় নিচের বিষয়গুলো লক্ষ্য রাখবেন:
LCD (Liquid Cristal Display) /LED (Light Emitting Diode) Monitor এর ক্ষেত্রে:
১. আপনার প্রয়োজন অনুসারে স্ক্রিন সাইজ সিলেক্ট করবেন। বর্তমানে অনেক মনিটরেই Built-in TV Tuner থাকে। একই সাথে কম্পিউটারের মনিটর এবং টিভির কাজ করবে এগুলো। TV Tuner না থাকলে প্রয়োজন হলে আপনি পৃথকভাবে TV Tuner কিনতে পারবেন।
২. LCD মনিটর গুলো স্কয়ার এবং ওয়াইড স্ক্রিন এই দুই ধরনের হয়। আপনার কজের প্রয়োজন অনুসারে আপনি তা select করবেন।
৩. LCD এবং LED মনিটর এর পার্থক্য হল: LED মনিটর হল উন্নত প্রকারের LCD মনিটর। তুলনামূলক ভাবে LED মনিটরে ভালো ছবি দেখা যায়। তাছাড়া, LED মনিটরে দেখতেও সাচ্ছন্দ্য বোধ হয়।
৪. কন্ট্রাস্ট রেশিও (Contrast Ratio) লক্ষ্য করবেন। এটি যত বেশি হবে, ছবির মান তত ভালো হবে, অর্থাৎ ছবি শার্প আসবে।
৫. Response Time কম হলে ভালো হয়।

RAM- Random Access Memory (র‍্যাম):
RAMও কম্পিউটারের স্পিড বৃদ্ধিতে সাহায্য করে। RAMএর জন্য ভালো ব্র্যান্ড হচ্ছে: Transcend, Twinmos ইত্যাদি। RAM কেনার সময় এগুলো খেয়াল রাখবেন:
১. RAM এর পরিমাণ বৃদ্ধি পেলে কম্পিউটারের স্পিড বাড়বে। অর্থাৎ, 1 GB RAM এর চেয়ে 2 GB RAM এর স্পিড বেশি হবে।
২. RAM এর বাস ফ্রিকোয়েন্সি বেশি হলে RAM এর ক্ষমতা বাড়বে।
৩. RAM এর ধরন উন্নত হলে তা কম্পিউটারের গতি আরও বৃদ্ধি করবে। যেমন, DDR3 RAM সমপরিমাণের DDR2 RAM এর চেয়ে শক্তিশালী। তবে মেইনবোর্ডে RAM এর স্লট যেমন হবে, সেই ধরনেরই RAM কিনতে হবে।

Hard Disk Drive (HDD) (হার্ডডিস্ক):
কম্পিউটারের তথ্য এতে জমা থাকে। এটি কম্পিউটারের Virtual RAM হিসেবেও কাজ করে। এর ভালো ব্র্যান্ড হচ্ছে, Samsung, Transcend ইত্যাদি। এটি কেনার সময় নিচের বিষয়গুলো লক্ষ্য করবেন:
১. সাধারণভাবেই, হার্ডডিস্ক এর স্টোরেজ ক্ষমতা বেশি হলে বেশি তথ্য জমা রাখতে পারবেন। বাজারে ১৬০ GB থেকে শুরু করে ৩ TB হার্ডডিস্ক পাওয়া যায়।
২. হার্ডডিস্ক এর RPM (Revolutions Per Minute) বেশি হলে এর ডাটা ট্রান্সফার রেট বেশি হবে।
৩. মেইনবোর্ডের পোর্ট S-ATA হলে হার্ডডিস্কও S-ATA ই কিনতে হবে।
৪. এক্সটার্নাল হার্ডডিস্ক এর ক্ষেত্রে, আপনার মেইনবোর্ড এ USB 3.0 থাকলে USB 3.0 হার্ডডিস্ক কেনাই ভালো। কেননা, কয়েক বছরের মধ্যেই USB 2.0 উধাও হয়ে USB 3.0 এর জায়গা নিবে। লক্ষণীয়: এক্সটার্নাল হার্ডডিস্ক স্হায়ী HDD এর ন্যায় ব্যবহার করা যায় না, তবে ইন্টার্নাল HDD, এক্সটার্নাল HDD এর ন্যায় ব্যবহার করা যায়।
Casing (কেসিং):
কেসিং হল Mainboard, HDD, ODD সাজিয়ে রাখার জন্য বক্স। কেসিং এর জন্য ব্র্যান্ড অতটা গুরুত্বপূর্ণ নয়। তবে Mercury এবং Gigabyte এর কেসিং গুলো ভালো হয়। কেসিং কেনার সময় নিচের বিষয়টি লক্ষ্য করবেন:
১. কেসিং এর দাম vary করে PSU (Power Supply Unit) এর জন্য। PSU যদি বেশি watt এর হয়, তবে PSU এর দাম বেড়ে যায়। ফলে কেসিং এর দাম বেড়ে যায়। আপনার কাজের ধরন অনুযায়ী PSU select করবেন। যেমন, ভালো এবং বেশি পাওয়ারের এক্সটার্নাল গ্রাফিক্স কার্ড, বড় স্ক্রিনের মনিটর ব্যবহার করলে বেশি পাওয়ার এর পাওয়ার সাপ্লাই লাগবে।

Optical Disk Drive (ODD) (অপটিক্যাল ডিস্ক ড্রাইভ):
ODD হল সিডি/ডিভিডি প্লেয়ার/রাইটার। ODD এর জন্য ভালো ব্র্যান্ড হল: Samsung, Asus, Lite-On ইত্যাদি। লক্ষ্য করুন:
১. বর্তমানে সিডি প্লেয়ার এবং ডিভিডি প্লেয়ার এর মূল্যে পার্থক্য খুবই কম। CD player, DVD play করতে পারেনা, কিন্তু DVD player, CD play করতে পারে।
২. আপনি চাইলে কয়েকশ টাকা বেশি দিয়ে Combo Drive অথবা DVD writer কিনতে পারেন। Combo drive হল সেইসব ODD যেগুলো CD Play, DVD play এবং CD write করতে পারে। আর DVD writer দিয়ে আপনি CD play, DVD play, CD write, DVD write সবই করতে পারবেন।
৩. মেইনবোর্ড এর পোর্ট অনুসারে ODD কিনতে হবে। (অন্যথায় converter ব্যবহার করতে হবে)
৪. ODD এর speed বেশি হলে সিডি/ডিভিডি থেকে দ্রুত ডাটা রিড হবে এবং দ্রুত ডাটা রাইট হবে।

Graphics Card (গ্রাফিক্স কার্ড) বা AGP Card(Accelerated Graphics Port Card):
ভালো গেম খেলার জন্য বা গ্রাফিক্স ডিজাইনিং এর কাজের জন্য ভালো গ্রাফিক্স কার্ড অত্যন্ত প্রয়োজন। গ্রাফিক্স কার্ডের মধ্যে ভালো ব্র্যান্ড হল: Asus, Gigabyte, Sapphire ইত্যাদি। এটি কেনার জন্য নিচের বিষয়গুলো খেয়াল করবেন।
১. V-RAM বেশি হলে ভালো গ্রাফিক্স পাবেন।
২. সাধারণ র‍্যাম এর মতই V-RAM এর টাইপ উন্নত হলে ভালো ফলাফল পাওয়া যাবে।
৩. এছাড়াও, Clock rate, Memory Bus ইত্যাদি বিভিন্ন জিনিসের জন্যও গ্রাফিক্স কার্ডের ক্ষমতার পরিবর্তন হয়।
৪. আপনি যদি কোন নির্দিষ্ট গেম এর প্রতি আকৃষ্ট হন অথবা নির্দিষ্ট কোন সফটওয়্যার দিয়ে কাজ করেন, তবে সেই সফটওয়্যারের requirement অনুসারে নির্দিষ্ট চিপসেটের গ্রফিক্স কার্ড কিনবেন।

Key Board (কী-বোর্ড):
কী-বোর্ড কম্পিউটারের সবচেয়ে গুরুত্বপূর্ণ দুইটা ইনপুট ডিভাইস এর মধ্যে এটি একটি। কী-বোর্ড এর জন্য ভালো ব্র্যান্ড হল: A4Tech, Deluxe, Mercury ইত্যাদি। এটি কেনার সময় লক্ষ্য করবেন বাংলা অক্ষর রয়েছে কিনা। (Unijoy বা Bijoy লে আউট-এ লেখার জন্য অপরিহার্য)।

Mouse বা মাউস:
অপর গুরুত্বপূর্ণ ইনপুট ডিভাইস হল এটা। এর ভালো ব্র্যান্ড হল: A4Tech, Mercury ইত্যাদি।
১. কত DPI (Dots Per Inch) লক্ষ্য করবেন। DPI বেশি হলে সূক্ষ্ণ ভাবে মাউস দিয়ে কাজ করতে পারবেন।
২. ধরতে সুবিধা হয়, এমন মাউস কিনবেন।

UPS (Uninterpretable Power Supply) ইউপিএস:
বাংলাদেশে ডেস্কটপ কম্পিউটারের জন্য UPS যে অপরিহার্য তা বলার বাইরে। UPS কেনার সময় এগুলো লক্ষ্য করবেন:
১. দুই ধরনের UPS পাওয়া যায়। Online UPS এবং Offline UPS। এদের মধ্যে পার্থক্য হল, বিদ্যুৎ চলে গেলে Online UPS on হতে কোন সময় নেয় না, কিন্তু Offline UPS সামান্য সময় নেয়। সম্ভবনা কম হলেও এই সামান্য সময়ের মধ্যে কম্পিউটারের পাওয়ার চলে গিয়ে রি-স্টার্ট হতে পারে।
২. আপনার চাহিদা অনুযায়ী UPS এর পাওয়ার select করবেন। মনিটরের স্ক্রিন বড় হলে, বেশি পাওয়ারের গ্রাফিক্স কার্ড ব্যবহার করলে, উন্নত প্রসেসর হলে বেশি পাওয়ারের UPS প্রয়োজন। দোকানে আপনার কম্পিউটারের কনফিগারেশন বললে তারা সঠিক UPS দিতে পারবে।
৩. সাধারণত একটি UPS এর Back-up time ২০-২৫ মিনিট। এর চেয়ে বেশি Back-up time এর UPS কিনতে হলে মূল্য বেশি হবে।

TV- Tuner/ TV card:
কম্পিউটারের মনিটরকে একই সাথে টিভি দেখার কাজে ব্যবহার করতে প্রয়োজন। LCD/LED টিভির মূল্য বেশি বলে অনেকেই LCD monitor এবং TV card কিনে টিভি দেখার পদ্ধতির দিকে ঝুঁকছেন। তবে টিভি দেখাই যদি হয় আপনার উদ্দেশ্য, তবে LCD/ LED TV monitor ই কিনুন। এতে ফলাফল ভালো পাবেন। TV card এর সুবিধা হল, এর মাধ্যমে আপনি শুধু টিভিই দেখতে পাবেন না, অনুষ্ঠানও রেকর্ড করে আপনার হার্ডডিস্ক এ জমা করে রাখতে পারবেন। TV tuner অবশ্যই মনিটরের রেজ্যুলেশন এর সাথে সামঞ্জস্য পূর্ণ হতে হবে। শপ এ আপনার মনিটরের রেজ্যুলেশন বা মডেল বললেই তারা সঠিক টিভি কার্ড বেছে দিতে পারবেন। TV card এর জন্য ভালো ব্র্যান্ড হল: Avermedia, Real view, Gadmei ইত্যাদি।

Speaker বা স্পিকার:
কম্পিউটারের আরেকটি আউটপুট ডিভাইস। গানের প্রতি আপনার আসক্তি অনুযায়ী এটি কিনবেন। ২:১ এর স্পিকার হল মোট তিনটি স্পিকারের সমষ্টি, যার মধ্যে একটি বড় এবং অন্য দুইটি ছোট। বড়টি হল উফার (woofer) এবং ছোটটি হল সাব উফার (sub-woofer)। উফারটি ব্যাস সাউন্ড এবং সাব উফারটি ট্রেবল প্রদান করে। গানে আপনার ভালো আসক্তি থাকলে এক্সটার্নাল সাউন্ড কার্ড কিনতে পারেন। তবে বর্তমান প্রায় সব মেইনবোর্ড এই ৫:১ সাউন্ড কার্ড বিল্ট-ইন থাকে। ফলে আপনি ৫:১ স্পিকার ব্যবহার করতে পারবেন। তবে আরও উন্নত সাউন্ডের জন্য ৭:২ স্পিকারও ব্যবহার করতে পারেন (এর জন্য ৭:২ সাউন্ড কার্ড লাগবে)। স্পিকারের জন্য ভালো ব্র্যান্ড হল Creative, Microlab, Logitech ইত্যাদি।

কম্পিউটার এবং বিভিন্ন যন্ত্রাংশের বর্তামান বাজার দর
ইন্টেল প্রসেসর
পন্য গতি দাম (টাকা)
ইন্টেল কোর টু কোয়াড গি.হা. ১২,০০০.০০
ইন্টেল ডুয়েল কোর ২.৮০ গি.হা. ৪,৯০০.০০/ ৫,১০০.০০
ইন্টেল ডুয়েল কোর ২.৮ গি.হা. ৫,০০০.০০
ইন্টেল কোর টু ডুয়ো ২.৯৩ গি.হা. ৮,৬০০.০০
ইন্টেল সেলেরন ১.৮ গি.হা. ৩,১০০.০০
ইন্টেল কোর i7 ২.৯৩ গি.হা. ২৩,৫০০.০০
ইন্টেল কোর i5 ৩.০২ গি.হা. ১৫,০০০.০০
ইন্টেল কোর i3 ৩.৬ গি.হা. ৯,৬০০.০০
মাদারবোর্ড
পন্য দাম (টাকা)
ইন্টেল DG 41 WB ৪,৫০০
গিগাবাইট G 41 COMBO ৪,৩০০
ইন্টেল চিপসেট G 41 (অন্যান্য ব্র্যান্ড) ৩,৫০০
ইন্টেল চিপসেট G 31 (অন্যান্য ব্র্যান্ড) ৩,০০০
ইন্টেল কোর আই প্যেকেজ (মাদারবোর্ড + প্রসেসর)
পন্য দাম (টাকা)
ইন্টেল DH 55 P [মাদার বোর্ড] এর সাথে
ইন্টেল Core i3 (540) 3.06 GHz [প্রসেসর] ১৫,৭০০
ইন্টেল DH 55 P [মাদার বোর্ড] এর সাথে
ইন্টেল Core i3 (540) 3.06 GHz [প্রসেসর] ১৫,৭০০
ইন্টেল DH 55 P অথবা Gigabyte D 55 [মাদার বোর্ড] এর সাথে
ইন্টেল Core i5 (370) 2.95 GHz [প্রসেসর] ২১,৮০০
প্রসসর ছাড়া Intel Chipset 55 মডেলের যে কোন ব্রান্ডের মাদার বোর্ড এর দাম (শুধু মাত্র কোর আই সিরিজ) ৬,৫০০ থেকে ৯,৫০০
শর্তঃ বর্তমান বাজারে ইন্টেল কোর আই সিরিজ এর প্রসেসর গুলোর সাথে মাদারবোর্ড প্যেকেজ আকারে কিনতে হয়।
এএমডি প্রসেসর*
পন্য গতি দাম (টাকা)
Phenom II x6 1090T ক্যাশ মেমোরি ৯ মেগা (মাদারবোর্ড ছাড়া) ৩.২ গি.হা. ২১,০০০.০০
Phenom II x6 1075T ক্যাশ মেমোরি ৯ মেগা (মাদারবোর্ড ছাড়া) ৩.০ গি.হা. ১৮,৫০০.০০
Phenom II x4 955 ক্যাশ মেমোরি ৮ মেগা (মাদারবোর্ড ছাড়া) ৩.২ গি.হা. ১৩,৮০০.০০
Athlon II x4 640 ক্যাশ মেমোরি ২ মেগা (মাদারবোর্ড ছাড়া) ৩.০ গি.হা. ৮,৮০০.০০
Athlon II x2 250 ক্যাশ মেমোরি ২ মেগা (মাদারবোর্ড ছাড়া) ৩.০ গি.হা. ৫,২৫০.০০
Sempron 145 ক্যাশ মেমোরি ১ মেগা (মাদারবোর্ড ছাড়া) ২.৮ গি.হা. ৩,২৫০.০০
এএমডি মাদারবোর্ড*
পন্য দাম (টাকা)
890-GXM-G65-AMD 890 GX Chipset, mATX, USB 3/SATA 6 (প্রসেসর ছাড়া) ১১,২০০
880-GMA-E45-AMD 880 G Chipset, mATX, USB 3/SATA 6 (প্রসেসর ছাড়া) ৮,৯০০
880-GM-E41-AMD 880 G Chipset, mATX, HDMI (প্রসেসর ছাড়া) ৭,১০০
760 GM – P33 AMD 760 G Chipset, mATX, DDR3 (প্রসেসর ছাড়া) ৪,৮০০
740 GM – P25 AMD 740 G Chipset (প্রসেসর ছাড়া) ৪,৪০০
GF 615M – P33 (প্রসেসর ছাড়া) ৪,১০০
হার্ডডিস্ক
পন্য সাইজ দাম (টাকা)
Samsung / Hitchi ৩২০ গি.বা. ২,৭৫০
Samsung / Hitchi ৫০০ গি.বা. ৩,০০০
Samsung / Hitchi ১০০০ গি.বা. ৪,৮০০
Samsung / Hitchi ১৫০০ গি.বা. ৫,৮০০
অন্যান্য ব্রান্ড ১ টেরা ৪,৭০০ থেকে ৬,৯০০
র‍্যাম
পন্য সাইজ দাম (টাকা)
ডিডিআর ৩ ১ গি.বা. ১,৪০০
ডিডিআর ৩ ২ গি.বা. ১,৮০০
ডিডিআর ২ ১ গি.বা. ১,৯০০
ডিডিআর ২ ২ গি.বা. ২,৪০০
মনিটর
পন্য সাইজ দাম (টাকা)
স্যামসাং LCD ১৮.৫ ইঞ্চি ৮,৫০০
স্যামসাং LED ১৮.৫ ইঞ্চি ৯,২০০
স্যামসাং LCD (স্কয়ার স্ক্রিন) ১৭ ইঞ্চি ৯,২০০
স্যামসাং LED ২০ ইঞ্চি ১০,৮০০
স্যামসাং LED ২১.৫ ইঞ্চি ১৫,০০০
এলজি LED ২১.৫ ইঞ্চি ১৫,০০০
আসুস LED ২১.৫ ইঞ্চি ১৫,০০০
ডেল LED ২১.৫ ইঞ্চি ১৫,৮০০
ষ্টার সনিক (স্কয়ার স্ক্রিন) ১৫ ইঞ্চি ৫,৫০০
ষ্টার সনিক CRT ফ্ল্যাট ১৭ ইঞ্চি ৩,০০০
ডিভিডি রাইটার
পন্য দাম (টাকা)
স্যামসাং ১,৫৫০
আসুস ১,৭০০
গ্রাফিক্স কার্ড
পন্য দাম (টাকা)
ATI RADEON HD 4550 1GB DDR2 ৪,২০০
GIGABYET পিসিআই এক্সপ্রেস 9500 GT 1GB ৪,৬০০
স্যাফায়ার HD 5850 1GB ৪,৮০০
স্যাফায়ার HD 5570 1GB ৭,৬০০
XFX HD 1GB ৪,৪০০
FoxCon জিফোর্স পিসিআই এক্সপ্রেস ১০,৯০০
পেনড্রাইভঃ
4 GB – ৬৫০ থেকে ৯০০ টাকা।
8 GB – ১,০০০ থেকে ১,৯০০ টাকা।
16 GB – ২,৫০০ টাকা।
ক্যাসিং :
ATX থার্মাল – ১,৫০০ থেকে ৫,০০০ টাকা পর্যন্ত।(ওয়াট অনুযায়ী)
স্পিকারঃ
মাইক্রোল্যাব ২:১ – ১,৭০০ থেক ৩,৮৫০ টাকা পর্যন্ত।
মাইক্রোল্যাব ৫:১ – ৪,৮০০ টাকা।
ক্রিয়েটিভ ইন্সপায়ার ৫:১ – ৫,২০০ থেকে ৫,৪৫০ টাকা পর্যন্ত।
ক্রিয়েটিভ ৪:১ – ৩,৮০০ টাকা।
ক্রিয়েটিভ ২:১ – ১,৬০০ থেকে ৩,২০০ টাকা পর্যন্ত।
ক্রিয়েটিভ SBS – ২,৪০০ টাকা।
লজিটেক ২:১ – ৭৫০ টাকা।
ওয়েব ক্যেমেরাঃ
৫.০ মেগা পিক্সেল – ৯৫০ থেকে ১,৮০০ টাকা পর্যন্ত।
৮.০ মেগা পিক্সেল – ১,৩০০ থেক ২,৫০০ টাকা পর্যন্ত।
টিভি কার্ডঃ
Gadmei LCD – ১,৭৫০ টাকা।
Gadmei Combo – ১,৩৫০ টাকা।
Kworld LCD – ২,৩৫০ টাকা।
এভারমিডিয়া USB – ৩,৩০০ টাকা।
এভারমিডিয়া এক্সটার্নাল w7 – ৪,৬০০ টাকা।
এভারমিডিয়া ইন্টার্নাল – ২,৮০০ টাকা।
রিয়েল ভিউ অরবিট টিভি কার্ড – ১,৭৫০ টাকা।
ইন্টারনেট মডেমঃ
HSDPA (3G Net Card) – ২,৬০০ টাকা।
Mobi Data (3G Net Card) – ৩,০০০ টাকা।
Mobi Data (GPRS/EDGE) – ২,৪০০ টাকা।
গ্রামীন ফোন (সংযোগ সহ) – ২,৯৫০ টাকা।
জুম আল্ট্রা (সংযোগ সহ) – ২,৯৯০ টাকা।
বাংলা লায়ন (সংযোগ সহ) – ১,০৯৯ টাকা।
কিউবি (সংযোগ সহ) – ১,৫০০ টাকা।
ল্যাপটপঃ
কম্প্যাক CQ 42 – 303 TU – ৩৩,০০০ টাকা।
কম্প্যাক CQ – 420 – ৪০,০০০ টাকা।
এইচ পি প্রোবুক 4420S নোটবুক পিসি {LC077PA} কোর i3 – ৪৮,৫০০ টাকা।
এইচ পি প্রোবুক 4420S নোটবুক পিসি {LC078PA} কোর i5 - ৫২,০০০ টাকা।
এইচ পি প্রোবুক 4420S নোটবুক পিসি {LC079PA} কোর i3 - ৫৬,০০০ টাকা।
এইচ পি প্রোবুক 4520S নোটবুক পিসি {LC075PA} কোর i5 - ৫৪,০০০ টাকা।
আসুস “এএমডি” প্রসেসর – ৩২,০০০ টাকা।
বিঃ দ্রঃ
যে কোন সময় যন্ত্রাংশের মূল্য বৃদ্ধি বা হ্রাস পেতে পারে।
এখানে “এএমডির” মাদারবোর্ড ও প্রসেসর এর পাশে * চিহ্ন দেবার কারন প্রসেসর এর সাথে মাদারবোর্ড প্যেকেজ আকারে ক্রয় করতে হবে।
ভাল থাকবেন সবাই ..... আল্লাহ্‌ হাফিজ।

Inserting Stipulation Pertaining to Polygamy in A Marriage Contract in Muslim Countries

2011-05-16T22:11:00.003-07:00

A. Introduction

Generally, all schools of law permit a wife to stipulate any conditions in her marriage contract. However the Muslim jurists differed in determining the validity of such conditions. With this regard, the wife may include a condition in her marriage contract that prohibited her husband for contracting another marriage in her marriage contract. The majority of the jurists have opposed this view, declaring that such a prohibition as invalid. They argued that polygamy was undoubtedly permitted by the Quran and therefore, a stipulation against polygamy in any marriage contract was certainly against the Quran.

For the Hanbalite schools of law, however, inserting a stipulation against polygamy in a marriage contract did not prohibit the husband from entering into another marriage. Such a stipulation entitled the existing wife to file for divorce if the husband violated the stipulation agreed upon. It is interesting to note that the wives in the Hanbalite schools of law are at a better edge. They held the advantage in ascertaining that their husbands do not practice polygamy, for which this right is not given by other schools of laws. Under the Hanbalite school of law, such terms and conditions were considered valid and if the husband somehow or rather violated the conditions agreed upon in the marriage contract; the wife was entitled for divorce by way of talaq tafwid or talaq ta’liq. They argued that every Muslim has to obey every single term and condition that had been agreed together.

However, not all stipulations were enforceable. There were stipulations that could not be carried out as they were found to be harmful to the wives. As an example, if the prospective wife requested her husband to divorce the existing wife as a condition of marriage, then all the jurists agreed that such stipulation was void.

B. Legal Reform

Legal reform in terms of inserting a stipulation in marriage contract has been adopted in many Middle Eastern countries. This reform has generally allowed the existing wife to insert a wide range of stipulations in marriage contract.¹ The practice of inserting stipulations against polygamy in marriage contracts is not a practice that is new or unusual among many Muslims societies in the Middle East.² However, stipulations against polygamy in the marriage contract are very rare among the Muslims in south and Southeast Asian countries where the Hanafite and Shafi’ite schools of law are predominantly followed in respective region.³

As noted by Anderson, the Hanbalite rule allows women to insert a stipulation in their marriage contract. Today it is commonly accepted among upper class families in Jordan and increasingly accepted among all members of society. Studies on husband-wife agreements among several Muslims normally relate the stipulations to divorce. Stipulations in the marriage contract are often aimed at preventing such eventuality and also protecting the position of women should it come to pass. In the context of polygamous marriages it was found that the husband and wife had agreed to insert stipulations against the husband practicing polygamy in the marriage contract. In the event the husband contracts another marriage, then the wife is entitled for divorce.⁴ Abdal Rehim, in his study on the use of stipulations in the registered marriage contract in the sixteenth century found that the practice was prevalent among those who reside at larger cities. Normally the stipulation in the registered marriage contract was associated with divorce. If it was established that the husband had violated the stipulation, then the wife has the right to seek divorce without forfeiting her financial rights. It was also found in Abdul Rahim’s research, that the stipulation that restricted the husband from contracting another marriage was one of the most popular stipulations used by society at that period of time.

Such a stipulation in the marriage contract that restricts the husband’s right to practice polygamy is specifically recognized in many Middle Eastern Countries.⁵ The codified 1917 Ottoman Family Rights Code was the first piece of legislation that had adopted the Hanbalite’s rules on inserting stipulations in marriage contracts. This stipulation includes allowing the wife to seek a divorce in case the husband contracts another marriage. Article 38 of this legislation provides that,

“Where a woman stipulates that the husband should not marry another woman and that if he does so she or the second wife would stand for divorce, and that the contract of marriage shall be valid and the condition enforceable”.

In this Article it is clear that the wife is given the right to divorce the husband if the husband fails to abide by the terms stipulated in their marriage contract. This provision can be regarded as a protective provision for women against her husband’s polygamous intention. This provision in the said code of law did not aim at controlling or abolishing the practice. The opportunity to insert a stipulation against polygamous marriages is however, left to the wife to make the choice and not enforced through the legislation.

The Hanafite school of law has been followed as the basic reference for all laws in several countries in the Middle-East, therefore, inserting a stipulation in a marriage contract is a procedure that is not allowed. However, the opinions of other schools of law have been taken into account for the purpose of solving current problems concerning family matters. In this matter, the method of takhayyur has been used in which the adoption of the Hanbalite view allows the insertion of a stipulation in the marriage contract in the 1917 Ottoman of Family Rights. This means that the stipulation against polygamy is recognized in legislations in several Muslim countries, in which other than the Hanbalite school of law is predominantly followed.

In 1951, the Jordanian Law of Family Rights 1951 (Qanun al-Huquq al-A’ila al-Urduniyya) was promulgated in Jordan.⁶ There were no differences between the Jordanian Law of Family Rights 1951 and the previous Ottoman Law of Family Rights 1917. This is because under section 21 of the Jordanian Law of Family Rights 1951 provides similar provisions pertaining to giving rights to the wife to seek for the dissolution of her marriage if the husband failed to abide with the stipulation agreed upon in their marriage contract. Later the Jordanian Law of Personal Status 1976 (Qanun al-Ahwal al-Shakhsiyya) repealed the Jordanian Law of Family Rights 1951 after 25 years of its implementation.

The Jordanian Law of Personal Status 1976 still maintains provisions that allow the insertion of the stipulation in the marriage contract whereby the husband should not take another wife. In this stipulation the wife has the right to divorce in a situation where the husband has violated the stipulation. This means that the new family law legislation did not introduce any new provision or reform in relation to polygamy except that the provision in section 21 of the Jordanian Law of Family Rights 1951 guaranteed that the wife’s right after divorce would not be lost even though the wife herself was seeking for divorce on the grounds that her husband had violated the condition stipulated in their marriage contract. At the same time, the insertion of such a stipulation is now a rule and no longer a choice for wife.⁷ With the existence of such a procedure that made stipulation obligatory, it showed that the stipulation which gives the wife the right to divorce in case the husband contracts another marriage, can very much benefit the wife and may protect her from any abuse by her husband’s polygamous marriage. Such a provision is not to enforce the implementation of the content of the marriage contract but rather to give rights to the wife to seek for judicial dissolution (fasakh) of the marriage by the Qadi .⁸

Apart from the more comprehensive law that had been formulated in 1976, the Jordanian Law has yet to include the provisions in which a polygamous marriage is controlled through the court’s permission. Although there has been demand from society to regulate rules that empower the courts to grant permission to practice polygamy, the Jordanian legislators did not favour such regulations. According to Welchman, the Jordanian legislators felt unnecessary to review and change the classical position on polygamy since polygamy is not an urgent issue that needs to be solved.⁹ Provisions are still based on the incorporation of terms and conditions in the marriage contract. The law requires the stipulation in the marriage contract in which the husband cannot marry another. In addition to that Section 40 has a provision where a husband is obliged to treat the wives equally and should provide separate accommodation. However, there is no explanation of the consequences that may occur should the husband fail to obey section 40 of the Jordanian Law of Personal Status 1976.

The Syrian Personal Law Code of 1953 provides general provisions that allow the wife to insert a stipulation in her marriage contract.¹⁰ This general provision in actual fact does not state specifically that the wife has the right to divorce in case the husband violates the stipulation by contracting another marriage. However, such a stipulation was made possible under article 14 of the Syrian Personal Law Code 1953. This article provides that

(1) where a marriage contract is coupled with a condition which is opposed to the essential nature or the purpose of marriage, or which makes obligatory something forbidden by the Shariah, the condition shall be ineffective while the marriage shall be valid.

(2) where a contract is coupled with a condition which stipulates something for the benefit of the wife, it shall be valid and binding the husband, provided that it is not forbidden by the Shariah, does not effect the rights of a third person, and also does not take away any of the husband’s legal rights.

(3) where the wife stipulates a condition in the marriage contract which takes away any such right of the husband, or adversely affects a third person’s rights, the condition, although not binding the husband, shall be enforceable to the extent of giving the wife a right to seek dissolution of her marriage, if it is violated by the husband.

It is understood from this provision that the law permits the wife to stipulate in her marriage contract that she is entitled for divorce if her husband contracts another marriage. If the wife merely stipulates that her husband cannot marry another woman during the existing marriage, then the wife cannot enforce such stipulation. The wife, on the other hand, has the right to divorce if the husband insisted in contracting another marriage.

For countries stated above, it is clear that inserting stipulations in the marriage contract is a cautionary step for wives who do not agree with the husband’s intention to practice polygamy. The absence of such stipulation in the marriage contract would actually give rise to problems for the wife to file for divorce. This is because divorce through talaq is subjected to the husband’s pronouncement of the talaq. In that case the wife has an alternative which is, either, divorce through fasakh or khulu‘’. This means that polygamy per se is not a valid ground for a wife to seek divorce. Under the Moroccan Personal Status Code 1958, a woman who did not insert such a stipulation and the husband does contract another marriage may request for judicial dissolution of her marriage on the ground of harm (dharar). On this point Anderson has rightly viewed that a wife whose husband marries another woman can claim that the deprivation and indignity involved in being reduced to the status of a ‘co-wife’ in a polygamous union itself constitutes such an ‘injury’.¹¹

In Egypt, even though there are no procedures that restrict the practice of polygamy, the amendment of the Egyptian Personal Status (Amendment) Law No. 100, 1985 has introduced provisions that protect women from any abuses arising from polygamy. Efforts to prevent the incidence of abuse is not through the powers of the Qadi , that is, by preventing polygamy, but on the other hand, giving rights to the existing wife to seek a judicial dissolution of her marriage if her husband takes another wife without the consent of the existing wife even though no conditions existed within the existing marriage contract that the husband would not marry another woman.¹² If the existing wife decided not to live anymore with her husband in a polygamous marriage, then section 5A of the Egyptian Personal Status (Amendment) Law 1985 provides that the wife has the right to divorce on the ground of injury caused by her husband’s taking another wife. This means that polygamous marriage without the consent of the existing wife has been regarded by the legislation as an act of harm to his existing wife. In that case the existing wife has the right for divorce on the ground of harm (dharar) subsequent to her husband’s polygamous marriage. The existing wife still has such right every time her husband contracts another marriage. A similar right was also provided under the law for the additional wife in case she did not know that her husband has already married at the time they contracted the marriage.

This provision would not compel women to live as co-wife. It is somehow an effective measure for both the existing wife and the new wife to avoid abuses but only after the polygamous marriage had been contracted. The law seems to protect women and ensures that women would not be abused and become victims from polygamous marriages. It is clear that the laws on personal status in Egypt do not at all prevent the husband from practicing polygamy but, on the other hand, the freedom of the husband to practice polygamy has been balanced with giving of rights to the wife for divorce for the reason that the husband has practiced polygamy.

The Law has provided that the existing wife’s right to divorce on the ground of her husband’s taking another wife will lapse if the existing wife does not initiate action for divorce within one year from the date she comes to know about her husband’s polygamous marriage. The law gives the existing wife one year to decide whether she agrees to live with her husband in the polygamous union or she will seek divorce. However, if the Qadi makes any decision for irrevocable divorce on the grounds of polygamous marriage, the law requires the Qadi to conduct a reconciliation session/s. This gives an opportunity to both parties to make decision on their marriage. However, if the reconciliation session/s fails to improve the situation then the Qadi will grant the existing wife irrevocable divorce. It can be understood that from this provision, polygamous marriage that is not made known to the existing wife would cause harm (dharar). This means that Article 5A of the Egyptian Personal Status (Amendment) Law 1985 is a provision that aims to prevent abuse from occurring. The effort to avoid the occurrence of abuse is not through the authority of the Qadi to prevent the practice of polygamy but, on the other hand, to give rights to the existing wife to seek for divorce if her husband takes another wife.¹³

In a case decided in the Egyptian Constitutional Court, the plaintiff, that is the husband, challenged the legal provisions that gave rights to the wife to seek for divorce on the ground of harm subsequent to her husband’s taking another wife.¹⁴ The plaintiff in this case argued that the provision allowing the wife to seek a divorce was violation of the Quranic verse that permits the husband to contract a polygamous marriage and only required the husband to give equal treatment to his wives. The High Court Judges argued that Article 1 of Law 100 of 1985 did not violate the Quranic verse that permitted the husband to practice polygamy. The court admitted the importance and the benefits of polygamy as a universal human interest. The provision neither prohibited the husband to practice polygamy nor restricted his right. The High Court Judge also recognized the emotional feelings of hatred and jealousy between the wives in polygamous marriages but refused to consider these negative subjective emotions as sufficient to override the benefits of polygamy.¹⁵

The Judge further argued that the provision did not provide automatic divorce for the existing wife due to her husband’s polygamous marriage. The wife has to produce evidence to support her allegation that her husband’s polygamous marriage

“would amount to negating the good companionship between them and its basis, and would result in degrading her”.¹⁶

If the court was satisfied that the husband’s polygamous marriage had caused harm to the wife which included a court instigated reconciliation process, then only can the court decide to grant judicial divorce to the wife. The court defended Article 1 of Law 100 of 1985 as not repugnant to the general principle of polygamy in Islam.¹⁷

In connection with allowing the wife to insert a stipulation that the husband may not marry another wife, the High court Judge argued that the provision does not make the lawful unlawful¹⁸ that is, the provision does not violate the Quranic permission to practice polygamy. An interesting fact found in this case was where the Judge argued that polygamy is not an obligation but it is a revealed permission for the husband to practice polygamy. In that case the husband may not choose to practice polygamy or to confirm his choice by consenting to the stipulation that the husband may not take another wife in the marriage contract without the contract being in contradiction with the Quran¹⁹

Even though efforts have been made to restrict the husband’s polygamous marriage through the court’s authority in Egypt such a regulation has been criticized. As Nagla Nassar argued that the percentage of polygamy practitioners in Cairo is around 2.8 percent, which is generally considered too low to raise radical legal actions that may lead to serious consequences.²⁰

In Article 30 of the Moroccan Code of Personal Status 1958 it provides that if any injustice is to be feared between wives, polygamy is not permitted. This provision actually is a repetition of what is stated in the Quran in verse 3 Surat al-Nisa’. There were no legal restrictions on polygamy but the court may grant judicial divorce to a wife who complains of injury as a result of her husband contracting another marriage.²¹ In Article 35 of the Moroccan Code of Personal Status 1958 it requires that the man has to treat his wives with just and fairness. Legal reforms in Morocco merely involved the codification of family matters in the modern form of legislation while matters relating to polygamy remain in the classical position.

The same situation is also seen in India, Pakistan and Bangladesh. The wife has the right to divorce in the event the husband marries another. This means that the laws have recognized polygamy as a valid ground for divorce. In Itwari v, Asghari,²² the court held that taking another wife is constituted as cruelty to the first wife for the purpose of Indian Dissolution of Muslim Marriages Act 1939. The court had given its view on the concept of polygamous marriages. The court held that:

“…Muslim law as enforced in India has considered polygamy as an institution to be tolerated but not encouraged, and has conferred upon the husband any fundamental right to compel the first wife to share his consortium with another woman in all circumstances. A Muslim husband has the legal right to take a second wife even while the first marriage subsists, but if he does so, and then seek the assistance of the Civil court to compel the first wife to live with him against her wishes on pain of severe penalties including attachment of property, she is entitled to raise the question whether the court, as the court of equity, ought to compel her to submit to co-habitation with such a husband. In that case the circumstances in which her second marriage took place are relevant and material in deciding whether his conduct in taking a second wife in itself an act of cruelty to the first”.

This judgment showed that the court accepted the action of the husband in taking a second wife represented as an injury in which it could be a defence to any action brought against her for restitution of conjugal rights.²³

C. Marriage Stipulations under Islamic Family Law in Malaysia

Section 22 of Islamic Family Law (State of Selangor) Enactment 2003 provides that

“(1) Immediately after the solemnization of a marriage, the Registrar shall enter the prescribed particulars and the prescribed or other ta‘liq of the marriage in the Marriage Register”.

This provision recognized both the prescribed ta‘liq as well as any other conditions agreed upon by the spouse. Women should know their rights before they enter into marriage. They can impose certain conditions to secure themselves in future and does not necessarily rely upon the statutory conditions as provided by the law. A preliminary research done on this matter shows that many women do not know that they have the right to insert any kind of stipulations in their marriage contract other than what has been prescribed by the law. The ignorance of such rights due to the fact that inserting stipulations in a marriage contract among the Muslims in Malaysia is not as popular among the Middle Eastern communities.

The form of ta‘liq prescribed by the law for example in many states in Malaysia is as follow:

“I do solemnly declare when I leave my wife for four months Hijrah continuously or more voluntary or with force and I or my representative do not give her maintenance such period whereas she is obedient to me or I cause hurt to her body, then she makes a complaint to the Shariah court and if I found by the Shariah court to be true, and she gives to the Shariah which received on my behalf a sum of ten ringgit, then she is divorced by way of khulu‘’”.

This standard taliq deals only on three aspects namely: if the husband leaves the wife more than 4 months Hijrah continuously; or if the husband neglects to provide maintenance to his wife or if the husband hurts and abuses his wife. Other than this actions, a wife is not entitled for divorce through ta‘liq. Although the pronouncement of ta‘liq is voluntary under the Hukum Syara, it has been a practice in every states in Malaysia where the husband is requested to pronounce the prescribed ta‘liq upon marriage. In a situation where the husband violates the stated conditions, the wife has the right to claim talaq ta‘liq.

As it is difficult for the wife to obtain divorce on the ground of polygamy per se, thus by stipulating in the marriage contract where the wife has the right to obtain ta‘liq divorce if the husband contracts another marriage is indeed a protective mechanism. The right for the wife to obtain ta‘liq divorce was not an automatic divorce but it represented an option to divorce given to the aggrieved wife who is unable to live in polygamous marriages. Such stipulation was not a recent innovation but rather follows the Hanbali’s view, which has been adopted in several Middle Eastern Countries. Such stipulation in the marriage contract did not prevent a husband from practicing polygamy but, otherwise, the stipulation merely provided rights to the wife to file for divorce if the husband chooses the practice. Undoubtedly this stipulation did not go against Islamic teachings because it did not prevent something that is allowed in Shari‘ah law, that is, polygamy. Therefore, a wife who decided to include this stipulation in the marriage contract must make sure that the wording for the stipulation concerning polygamy did not actually preclude the husband from contracting another marriage.

Many do not agree with this suggestion because they felt that not all of the laws enforced in the other Islamic countries are suitable for enforcement in Malaysia. If in any case the existing wife refuses to accept her husband’s polygamous marriage then she could file for divorce through khulu‘. However, many Shari‘ah lawyers in Malaysia give the opinion that divorce at the instigation of the wife such as fasakh and khulu‘ are particularly difficult to obtain compared to ta‘liq. This is due to the fact that the procedure for dissolution of marriage through ta‘liq is rather simple compared to fasakh and khulu‘. This is because in the ta‘liq procedure, the court may grant permission for dissolution of marriage if the wife can prove to the court that the husband has violated terms and conditions he agreed upon in their marriage contract. So far that have been no case in Malaysia where a wife filed for divorce based on the tali‘q that if the husband marries another woman, the existing wife has the right to file for divorce through ta‘liq.

In Mohd Razali Mat Saman vs Norshidah Nik Man,²⁴ the respondent, who the first wife of the appellant (husband), had said to the appellant words to the effect that “If you set foot on the other land a divorce of three talaq would befall me –ta‘liq.” The “other land” as was understood by the appellant was the house of the appellant’s second wife. The respondent acceded to the ta‘liq and responded with he word “yes” twice and followed by “yes I accepted it. During the trial, the appellant (husband) admitted that he had gone to his second’s wife house and stayed there overnight. The learned trial judge ruled that a divorce of three talaq had befallen the respondent. The husband appealed and argued that he only acceded to the pronouncement of ta‘liq in order to muffle the respondent who was then reprimanding him.

The Syariah High Court of Kelantan then held that the word “yes” uttered by the husband was an answer to the wife’s words of ta‘liq. Since the husband had thereafter gone to his second wife’s house, the husband had violated the ta‘liq and therefore no supporting witness evidence is required. The Syariah High court of Kelantan then dismissed the appeal. The decision of the trial court that ruled the divorce of three talaq was affirmed.

From the example above, it shows that the court will confirmed the divorce of one talaq by way of ta‘liq if the husband breach of the pronouncement of ta‘liq made during the marriage by marrying another wife.

D. Conclusion

From this discussion, it is clear that legislators are not in accordance with the idea of giving rights to the existing wife to file for divorce when the husband practices polygamy. The wife can only file for divorce if the husband was found to act unjust in the polygamous marriage. In this matter, Hinchcliffe feels that giving rights to the wife to file for divorce due to the husband practicing polygamy is not really that helpful.²⁵ This is because, divorce has negative consequences and it provides social stigma for a divorced woman. Hinchcliffe’s argument was based on the Indian society in which divorce was not preferred. However, previous researches have shown that, for some Malayisan women, divorce is the better choice than polygamy. Even though there are several opinions on this matter, Badawi’s opinion to give a choice to the existing wife as to whether she agrees to remain as one of the wives in the polygamous marriage or not, represents the most equitable opinion that should be considered.²⁶ Such an option can be considered as a solution to the wife who feels that she is unable to tolerate her husband’s intention to practice polygamy. Therefore it is a high time for Malaysia to recognize stipulations that giving rights for a wife to file for divorce in case the husband takes another wife for the purpose of protecting the existing wife from being abused in a polygamous marriage.

Corporate Governance

2011-05-16T22:07:00.000-07:00

Corporate governance, defined as "…the system by which companies are directed and controlled… 1" is principally concerned with the issues of the ownership, control and accountability of the company. In other words a set of rules that define the relationships between shareholders, managers, creditors, the government, employees and other internal and external stakeholders in respect to their rights and responsibilities. Alternatively it can simply be described as the system by which companies are directed and controlled.

The issue that has prompted much academic debate is the issue regarding the separation of power between controller (management) and that of the ownership (the shareholders). Unlike the modus operandi of corporate company personality in such countries as France and Germany, the United Kingdom differs to the extent that a director does not have to be a natural person 2 This tenet of company law rests on the basic question of how directors can be accountable to shareholders for their actions. This has been termed the 'quest for stockholder democracy' 3.

Thus the mere proposition of the term corporate governanance challenges the ambit of conventional business administration. In the UK it operates under the aegis of the 1985 Companies Act. The general ethos garnered from such committees that have addressed this issue in the UK, such as the Cadbury Committee 4, the Greenbury Committee of 1995 5 and the Hampel Report of 1998 6 has been one of self-regulation and internal discipline rather than any fundamental of the status quo vis-à-vis the freedom in which directors operate without intrusive external control 7.
This attitude generally prevailed on the other side of the Atlantic until the Enron debacle utterly transformed the corporate landscape. This was a scandal of gargantuan proportions. A contemporary description of the time, chronicled it as a "…a fitting epitaph to the bubble decade of the 1990s… 8 " , with the potential to undermine "…the integrity of the entire system for channeling savings into investment…just as America's debts to foreigners and its own consumers indebtedness have reached unsustainable levels… 9 " It has led to major upheaval in the US, notably the Sarbanes-Oxley law, which oversaw the introduction of an accountancy oversight board as its core value.
As a corollary, the European Union, has almost by default been galvanized to address the issue of corporate accountability within its own parameters. As Mark Tran remarked, "…Once the US started overhauling corporate governance practices, the rest of the world was forced to go some way to meeting these new best practices… 10 "
By producing the Winter Report 11 , Frits Bolkestein, an Internal Market Commissioner rather hubristically proclaimed that "…[w]e have a unique opportunity in the European Union, as we move towards the integration of our capital markets by 2005, to put into place the best corporate governance standards in the world. We should seize the moment. Why is this so important? The Enron scandals have shown that undermining of investor confidence seriously damages the development of capital markets and subsequently economic growth… 12 "
Despite the issue of corporate governance being of vast importance to shareholders, the solution to this simple desire for more democracy and greater accountability has proven to be problematic. Perhaps the principle reason why this transition to greater shareholder participation has not happened the way idealists had envisioned is for the simple reason that Gower suggests: basically 'Athenian style democracy is not particularly appropriate for public companies 13 .
Further attempts at increasing shareholder democracy have foundered because, although desirous in a pluralistic market system, greater information for shareholders and stricter requirement that shareholders ratify managerial decisions has not led to a broader plain of decision making. Gower observes that to make a truly informed decision, shareholders need inter alia sufficient knowledge to fully appreciate the information; a large enough shareholding to influence the decision and the desire to resort to the courts to see their wishes enforced . 14
Whilst the first two prerequisites of informed decision making are often met, shareholders often lack the will to enforce their wishes through litigation. The reason for this is that institutional investors usually represent large shareholding bodies. These investors tend to shy from litigation, preferring to re-allocate their share resources.
Other problems encountered by the ownership of public companies in having their wishes enforced include the exorbitant cost of litigation in the UK. It takes a brave investor to take on the corporate might of entrenched directors interests.
This contrasts with the situation in the U.S. where investors have been more pro-active in tackling such issues as so called fat cat directors pay packets in the federal courts. The Sarbanes-Oxley law has created a new accountancy watchdog, while Wall Street firms have been obliged to invest over $400 (£245m) to finance independent research for retail investors. Rattled by the howls of outrage from an already critical global community aimed at the Bush administration, fines of $5m (£3.2m) and 20 years prison penalties are part of the package for directors of companies intentionally producing fraudulent accounts of their companies assets 15

Significantly, the new act bears testimony to the corporate globalisation that big business must now operate in. Referring to the new act Alex Cohen, securities lawyer in the London office of law firm Latham and Watkins, observed that: "[t]he Act does not distinguish between US and non-US issuers." 16
This lack of membership activism within the structure of UK corporate governance is to be regretted. As Gower remarks, the Government seems unwilling to bear the burden of allocating a more powerful watchdog body over the governance of company affairs. He cites the DTI as one option that could be used as a greater enforcement measure against errant company directors who fail to pay heed to the wishes of the general membership .17
It is the above lacuna which the Sarbanes-Oxley Act seeks to address in the perceived autonomy of board-members and directors of the corporate behemoths in the US from any form of accountability from ordinary shareholders and stakeholders. What we are left with in these terms between corporate regulation UK style and corporate regulation US style is a stark choice between 'the blunt instrument' 18 of the US regulatory model or the "…measured response to the post-Enron era…" 19

The various aspects of corporate governance, such as responsibility, controllability of management and especially that of accountability to shareholders and stakeholders needs further examination. Director's are in position's of trust within companies and therefore they owe the company certain fiduciary duties. Accordingly any conflicting ancillary purposes therefore must not deflect this power to act 20
The difficulty, especially in Europe is synthesizing an effective corporate governance regime without disturbing the tenuous equilibrium that prevails in an already unwieldy consensus as to the best route forward regarding big business operations within the EU. This is difficult, especially when entrepreneurial flair is comparatively at a premium in the EU. According to Peter Montagnon, The Winter Report reacts to this tenuous by proposing what he calls 'light touch' regulation of corporate affairs 21 .
The EU is further hampered in this respect by the fact that Europe is not a single-track economy lint the UK or indeed the US. The last thing the EU zone requires right now is further regulation! But here's the rub. The centralized and bureaucratic ridden Commission cannot loosen its grip lest it itself loses influence. Thus according to Montagnon,he less centalization, the more that stakeholders in the EU zone can feel a sense of ownership in their own market system.
In this regard the balance must be found whereby high levels of flair and entrepreneurial skills are allowed to flourish whilst maintaing a market equilibrium. As Montagnon acknowledges however, the tendency is to cover everything in a veneer of red-tape and regulations. One way to perhaps avoid the seemingly inevitable would he proposes to encourage each member state to create its own national code and companies should comply or disclose their reasons for non-compliance. This is the basis on which the UK regulatory market functions 22 .

Higgs builds on already widely accepted guidelines recommended by the Hampel Report. According to this report a director is required to "…act in good faith in the interests of the company and for a proper purpose; and to exercise care and skill. These are derived from common law and are common to all directors. The duties are owed to the company, meaning generally the shareholders collectively, both present and future, not the shareholders at a given point in time… 23 " This is embodied in the UK by the fact that company directors must act bona fides in the best interests of their company. These duties are an amalgamation of several different elements. It is submitted that this analysis is too narrow and suffers from the overly lax English approach. There are surely wider interests at stake than merely the individual shareholder? .24

Strictly speaking, the director's duty is to the company not to the shareholder's 25. The large variety of stakeholders however requires a well-balanced approach however to the various interests related to a company. The company itself has the prime responsibility of recognizing these interests and of ensuring that all these interests are met in an appropriate way through implementing an effective system of corporate governance.

Whilst it is true that in the UK, directors owe no duty the employees of the company, 26 nevertheless there are provisions that mean that employees share obliquely in the patronage of corporate decision making. 27 At the same time that the Statute giveth it also taketh away…section 309(2) of the same act 28 means that employees have no locus standi. In this regard they are merely shadows in the boardroom decision-making process.

It is the companies and associations of industries and professionals therefore which have the prime responsibility for setting and implementing rules and principles of corporate governance through their Articles of Association, Codes of Conduct and through the application auditing and accounting standards. This reflects the way that the UK has refrained from following the US route to corporate regulation, opting instead for greater flexibility and thus underpinning the general ethos of laissez faire in regard to the new era of regulatory intrusion into the boardroom ushered in from the US. The UK has had its own financial debacles in respect of Marconi, BAE Systems and Cable & Wireless. It is suggested that this reflects an air of complacency within the realm of the DTI and CBI.

At all times the ultimate objective of ensuring the essential level of transparency and stakeholder protection in an environment conducive to the corporate sector should be observed. Weight should be given to the interests of the directors, shareholders, employees and other stakeholders. A sound corporate governance system should provide effective protection for shareholders and creditors, so that they can assure themselves of getting a return on investment. It should also help to create an environment conducive to the efficient and accountable running of the business. Assuming that it can avoid the pitfalls of over-regulation and stifling red-tape, the Winter Report may offer a compromise between the lax British attitude of 'if it ain't broke, don't fix it' and the US 'sledgehammer' 29 approach to internal shenanigans.

The more modern practical approach is that propagated by the Cadbury 30 and Greenbury Committees 31 . Both advocated greater roles for non-executive members who can act as the eyes and ears for shareholders in the boardroom. Perhaps they could act as the vanguard for shareholders' best interests instead of the present role of directors who seem more interested in their own self-aggrandizement.
Most of the director's duties in the UK are regulated by the Companies Act 1985, although this Act does not impose a duty of good faith or competence. A director should not allow their personal interests and their duty to the company to conflict. According to the proper purposes rule, if a director applies himself to purposes other than to those which his powers were conferred, it may constitute a breach of his fiduciary duty. According to Hoffman LJ, "…if a director chooses to participate in the management of the company and exercise powers on its behalf, he owes a duty to act bone fide in the interests of the company. He must exercise his powers solely for the purpose for which it was conferred…" 32

Any misapplication of the proper purpose presumption does not require dishonest intent 33 .If the director does make personal gain from information he obtained in his position as director, then he will be obliged to account to the company for any profit he made, unless he has fully disclosed all the relevant facts to the members of the company and obtained their approval by ordinary resolution at a general meeting. Most companies articles 34 , do contain a provision allowing director's to have personal interest's separate from the company, and to keep any profits made, provided they disclose all details to the company members and are not cheating the company in any way 35 .
Directors' owe a general duty of good faith to the company. This means that directors are expected to act loyally toward what they perceive is in the best interests of the company. This necessitates that a director must act 'bone fide' or in what they themselves believe to be is in the interests of the company 36 Therefore directors should only exercise the powers they have been given by the articles of the company and they should only use those powers for the purposes for which they were given. This is a fact specific duty. It is not therefore essential that a director acts with abstract good intentions. Rather it is to the short and long-term benefit to which he should turn his attention .37
Directors are expected to exercise the degree of competence that could reasonably be expected from someone with their degree of knowledge and skill. 38 This is a common law presumption applied incrementally to existing statutory law. The standard of skill required of directors is judged on a subjective basis, whereas the standard of care is judged on an objective basis. A director is required to exercise the degree of care, which a reasonable person would exercise on his own behalf. According to Gower's 39 this level of duty of care and skill must conform to that of a reasonably diligent person who has
(i) that skill and knowledge expected of an experienced person in that office and
(ii) the general knowledge, skill and experience that the particular director has.
This appears to apply an objective standard for the former requirement whilst the latter example imports a subjective element into the director's ability.
It is important to distinguish between the requirement of good faith or loyalty and that of the expectation of care and skill. The former demand a fiduciary relationship between director and shareholder and director, which is akin to that expected of trustees. According to Goulding this has a subjective element in that it is what the director thought at the time that any decision was made 40 .The emphasis is therefore on caution and prudence. The latter requirement however recognizes that a director's duties encompass operating in a commercial market that demands an element of risk when maximizing shareholder profit. The Proper purpose rule places a strong objective element on the behavior of a director. Therefore a director must act fairly between different shareholders within the company. 41 The separate tests, although somewhat artificial if applied mechanically allow the court to distinguish more easily the various capacities of a director when making an overall decision regarding liability and for this reason serve a useful purpose as separate tests.
While a company is solvent, its directors do not owe strictly defined fiduciary duties to the company's creditors, but are placed under a statutory obligation to consider the interests of employees. The duty of directors to take into account the interests of creditors is indirectly enforced through the rules which call for the directors to maintain capital levels, and which impose personal liability for fraudulent trading and wrongful trading immediately before liquidation. The traditional rule is: Directors have no fiduciary duties towards creditors during the day-to-day operations of a company. 42
Traditionally, the Directors fiduciary duty is limited to the shareholders and only the shareholders. This traditional rule is modified, but not reversed, in the instance of insolvency 43. An actual petition for bankruptcy need not be filed, either voluntarily or involuntarily, for the traditional rules regarding the fiduciary duties of Directors to expand to include creditors. Mere insolvency is sufficient. Once a company is no longer solvent, the Directors acquire new fiduciary duties towards the creditors but continue to have the established fiduciary duties towards stockholders . 44

Under the Companies Act 1993 Directors do not owe duties directly to the creditors of a company. Directors owe duties to the company itself and a liquidator, receiver or creditor of a company can only enforce those duties in the name of the company. As receivers principally act for the debenture holder that appointed them (usually the bank) which will have access to guarantees in respect of any shortfall, actions against Directors in the company name for reckless trading are usually brought by a liquidator on behalf of unsecured creditors.

Judicial dicta complements legislative provisions. When a company approaches insolvency, the interests of shareholders are supplemented or even overtaken by those of its creditors. 45 Whilst the West Mercia Case does not presume absolute priority for creditors, a director should not take action that would leave a creditor in a worse situation than if they had not taken action. The rationale behind this case allows creditors to overreach the demands of shareholders through the mechanism of liquidation .46

Once a company is in liquidation, a creditor can bring an action against the Directors, in the company's name under S.301 (1) of the Companies Act 1993, but any order for damages in respect of reckless trading will be made in favour of the company and will be available to the general body of creditors and opposed to a specific creditor. The relevant Directors duties under the Companies Act 1993 are sections 135 (reckless trading) and section 136 (executive Directors who will have varying degrees in involvement of the day to day running of the business duty in relation to obligations). Under section 135, Director must not agree, cause or allow the business of the company to be carried on in a manner likely to create a substantial risk of a serious loss to the company's creditors.

The description "reckless trading" has come under some criticism as being misleading as the actual test involved. The reality is that the test is closer to negligence than recklessness and Courts approach the conduct of a Director on the basis of what an ordinary prudent Director or Manager would have done in the same situation. In other words, would have an ordinary prudent Director continued to trade the business in the same circumstances.

Common law precedent in this area highlights how the dichotomy between creditors interests and that of the company breakdown under pressure from litigation involving liquidation. Company directors are severely subscribed by law from disposing of their company's assets in such circumstances. According to Gower it will in any case be in any companies' interests that directors perform their duties honestly and scrupulously, as ultimately it will be the shareholders and therefore the company that will suffer if it becomes subject to further bad publicity and possible litigation . 47 The directors' duties should in this respect be concerned with those having the ultimate financial stake in the company. Once the directors lose financial control, it will be hard for them to justify promoting the interest of the company above that of the creditors.
Fortunately for the Bush administration, the 'Enron factor' failed to haunt the President through his term in the Whitehouse in the manner that the specter of Monica Lewinski's lips seemed to define the final years Bill Clinton's tenure. Ironically, the vocal baying of America's critics may have encouraged the administration to take radical steps to address the cliché of 'corporate sleaze' that dominated the newspapers at the time. Whilst Europe and the UK may have found the balance to regulate the competing strains of economic success, it would be an irony if a committed libertarian such as President Bush presided over the suffocation of US business regulation.

What's Going on...........( ট্রুথ কমিশন অবৈধ ঘোষণার রায় আপিল বিভাগে বহাল)

2011-05-16T01:13:00.000-07:00

সত্য ও জবাবদিহিতা কমিশনকে (ট্রুথ কমিশন) অবৈধ ঘোষণা করে হাইকোর্টের দেওয়া রায় বহাল রেখেছেন আপিল বিভাগ। হাইকোর্টের রায়ের বিরুদ্ধে করা আপিল অনুমতির আবেদন খারিজ করে দিয়েছেন আদালত। আজ সোমবার সকালে প্রধান বিচারপতি এ বি এম খায়রুল হকের নেতৃত্বে সাত বিচারপতির পূর্ণাঙ্গ বেঞ্চ এই আদেশ দেন।
আদেশের পর রিট আবেদনকারীর আইনজীবী মো. আসাদুজ্জামান জানান, ট্রুথ কমিশন অবৈধ এবং ওই কমিশনে বিচারের মুখোমুখি হওয়া ব্যক্তিদের দায়মুক্তি অবৈধ ঘোষণা করে হাইকোর্ট রায় দিয়েছিলেন। আপিল অনুমতির আবেদন খারিজ হওয়ায় হাইকোর্টের রায় বহাল থাকল। ট্রুথ কমিশনে দায়মুক্তদের বিরুদ্ধে দুর্নীতি দমন কমিশন ব্যবস্থা নিতে পারবে বলে জানান তিনি।
২০০৮ সালের ৮ জুন তত্ত্বাবধায়ক সরকার ‘স্বতঃপ্রণোদিত তথ্য প্রকাশ অধ্যাদেশ-২০০৮’ জারি করে। এর আলোকে গঠিত ট্রুথ কমিশন ওই বছরের ৩ আগস্ট থেকে কার্যক্রম শুরু করে। এর বৈধতা চ্যালেঞ্জ করে ২০০৮ সালের ২৫ আগস্ট সুপ্রিম কোর্টের আইনজীবী আদিলুর রহমান খান, বেসরকারি সংস্থা উবিনীগের নির্বাহী পরিচালক ফরিদা আক্তার, দীপু মনি (বর্তমানে পররাষ্ট্রমন্ত্রী) ও মানবাধিকার সংগঠন অধিকারের ভারপ্রাপ্ত পরিচালক নাসির উদ্দিন যৌথভাবে হাইকোর্টে রিট আবেদন করেন। ২০০৮ সালের ১৩ নভেম্বর হাইকোর্ট স্বতঃপ্রণোদিত তথ্য প্রকাশ অধ্যাদেশ-২০০৮ অবৈধ ঘোষণা করে রায় দেন। রায়ে ট্রুথ কমিশন গঠন এবং ট্রুথ কমিশন গঠনের পর এর কার্যক্রমও অবৈধ ঘোষণা করা হয়।
এরপর ট্রুথ কমিশন থেকে ‘দায়মুক্তি’ পাওয়া সড়ক ও জনপথ বিভাগের তত্কালীন নির্বাহী প্রকৌশলী মঞ্জুর আহমেদসহ আরও কয়েকজন গত বছর লিভ টু আপিল করেন।
উল্লেখ্য, ২০০৯ সালের জানুয়ারির শুরুতে সরকার ট্রুথ কমিশন বিলুপ্ত করে।

Form: prothom -alo 16 may.

Israeli forces open fire at Palestinian protesters

2011-05-15T21:34:00.000-07:00

Israeli forces have fired on groups of protesters at borders with the Palestinian territories, Syria and Lebanon.

Reports say that at least 12 people have died and dozens more have been injured.

In one incident, thousands of Palestinian supporters from Syria entered the Golan Heights, Israel says.

Palestinians are marking the Nakba or Catastrophe, their term for the founding of the Israeli state in 1948.

Hundreds of thousands of Palestinians fled or were forced out of their homes in fighting after its creation.

Responding in a televised address to Sunday's violence, Israeli Prime Minister Benjamin Netanyahu said he hoped "calm and quiet will quickly return, but let nobody be mistaken, we are determined to defend our borders and sovereignty".

Later on Sunday, security forces in the Egyptian capital Cairo fired warning shots and tear gas to break up protests outside the Israeli embassy.

UN Secretary General Ban Ki-moon has called for calm and urged all sides to show "utmost responsibility".

In a statement, he said there was an "unsustainable status quo in the Arab-Israeli conflict, which is only thrown into sharper relief by the profound political changes now under way in the region" and called for a renewed effort to reach comprehensive peace in the region.

Impetus

Clashes have been taking place at four separate borders or crossing points - at Erez in Gaza, near Ramallah in the West Bank, on the Golan Heights and at the border with Lebanon.

The BBC's Jon Donnison, in the West Bank town of Ramallah, said this year's Nakba protests have been given impetus by the uprisings in countries across the Middle East and North Africa.

Clashes at the Qalandiya checkpoint in Ramallah continued for hours, with dozens of Palestinians injured.

Palestinian protesters threw stones at Israeli security forces, who fired tear gas and rubber bullets.

On the occupied Golan Heights, the Israeli military said it had only fired warning shots as a large number of protesters tried to breach a border fence near the village of Majdal Shams.

But reports said at least two people had been killed and dozens injured.

Israel's army says this is a "serious" incursion. Brig Gen Yoav Mordechai said soldiers were still trying to control the crowds and that dozens of protesters had crossed.

The army has reportedly sealed off Majdal Shams and is carrying out house-to-house searches for "infiltrators".

Israel seized the strategic territory from Syria in the closing stages of the 1967 Six-Day War.

On the Lebanon-Israel border, a large number of protesters also approached the crossing with Israel.

Dozens of buses had brought protesters to the area under the rally slogan of "March for the return to Palestine".

Lebanese soldiers had fired in the air to try to disperse the protesters, who were chanting: "By our soul, our blood, we sacrifice ourselves for you, Palestine."

Gen Mordechai says Israeli troops fired as demonstrators began vandalising the fence.

Lebanese military officials say 10 people have been killed and scores wounded.

"We are seeing here an Iranian provocation, on both the Syrian and the Lebanese frontiers, to try to exploit the Nakba day commemorations," Gen Mordechai said.

A spokesman for the UN peacekeepers in southern Lebanon called on both sides there to show restraint.

Syria denounced Israeli actions in the Golan Heights and Lebanon as "criminal", Agence France-Presse news agency reported.

"Israel will have to bear full responsibility for its actions," the foreign ministry said.

However, one Israeli official told AFP: "Syria is a police state. Demonstrators do not randomly approach the border without the prior approval of the central government."

On the Israel-Gaza frontier, at the Erez border crossing, Israeli troops opened fire with tanks and machine guns, injuring dozens, Palestinian medical officials said.

Police in Jordan fired tear gas to break up protesters gathering at a village near the Israeli border.

In Cairo, police used tear gas and warning shots to drive back a crowd of several hundred people who were attempting to reach the Israeli embassy in protest.

The Mena state news agency said at least 24 people were injured in the clashes.

Meanwhile in Tel Aviv, Israeli police are investigating whether an Arab-Israeli lorry driver deliberately ploughed into pedestrians, killing one Israeli man.

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2011-05-15T13:14:00.000-07:00

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SC declares Ershad’s ML rule illegal

2011-05-15T12:34:00.000-07:00

DHAKA, May 15: The Appellate Division of the Supreme Court, on Sunday, has declared illegal the Seventh Amendment to the constitution, which had legitimised the autocratic regime of military strongman Hussein Muhammad Ershad.
It also cancelled the trial and conviction of Siddique Ahmed, a resident of Chittagong, upon whose petition, the High Court (HC), on August 26 last year, had declared the Seventh Amendment as illegal. A six-member bench of the Appellate Division, headed by Chief Justice ABM Khairul Haque, passed the order. Barrister Hasan MS Azim, counsel for the appellant, termed the verdict as a historic judgement. "Following the apex court verdict, the door of martial law regimes has been closed forever in the constitution. Martial law regimes will not be able to usurp power in future," he added.
Attorney general Mahbubey Alam told reporters that the Appellate Division is paving the way for challenging the trials that had been held under martial law. "People, who had been tried under martial law, could now file petitions challenging their trials," he said. He added that the trials can be continued in trial courts concerned.
In its brief order, the apex court said the declaration given by the High Court over the Seventh Amendment, is now affirmed. "Paragraph 19 of the Fourth Schedule of the Constitution is hereby declared illegal," it added. "All proclamations, martial law regulations and martial law orders promulgated by Ershad during the period between March 24, 1982, to the date of commencement of the Constitution in 1986, are hereby declared illegal void ab-initio," it continued.
"However, all acts, things, deeds, actions, proceedings taken during the said period, and all transactions of the period, which are past and closed, are provisionally condoned," it said. The verdict also said that all international treaties signed during the period will remain in force.
The apex court declared illegal the trial and conviction of Siddique Ahmed, who had been convicted and sentenced to life imprisonment, in relation to a murder case, by a martial law court in 1986.
It also granted bail to Siddique, who is now in jail, in this case. The Appellate Division, however, said the case against Siddique will be heard in a trial court. "The appeal is allowed in part. The judgment, in detail, would follow," the apex court said.
Following a writ petition, a HC bench, comprising Justice AHM Shamsuddin Chowdhury Manik and Justice Sheikh Md Zakir Hossain, on August 26 last year delivered the watershed judgment on the Seventh Amendment.
Although the HC had declared the Seventh Amendment as illegal, it neither acquitted Siddique of the murder charge, nor ordered a retrial of the case. The HC, however, asked Siddique, who was then out on bail, to surrender his bail bond to the lower court, and to explore other legal options for his remedy.
In the judgment, the HC also issued a certificate, so that an appeal could be filed directly with the SC against the HC verdict.
Siddique surrendered to a Chittagong court on April 7, in connection with the murder case, as per the HC order. After that, he filed an appeal with the SC. Following Siddique's petition, which had challenged a part of the HC judgement, the highest appeals court selected four senior lawyers as amici curiae.
Of them, Rafique-ul Huq, Mahmudul Islam and M Amir-Ul Islam, gave their opinions to the court, while another jurist, Ajmalul Hossain, could not, as he had been abroad.
Legal experts said that since the High Court declared the rule of Ershad from 1982 to 1986 as illegal and said nothing about his four year rule from November 10, 1986 up to 1990, the second phase is regarded as legal.
After the apex court order, Syed Amirul Islam, another lawyer for Siddique, told reporters that the military regime of Ershad has now become illegal, following the SC verdict. Attorney general Mahbubey Alam said that the apex court declared illegal the military regime of HM Ershad.
Replying to a query he said that in its judgement the High Court the parliament would take decision about the fate of HM Ershad. But, it is not wise to say anything about him without seeing the full judgement of the apex court over the 7th amendment, he added.
The HC in its verdict observed that Ershad or any other people taking over the state powers illegally should be suitably punished and parliament can enact an appropriate law in this regard
The amendment was adopted by the Parliament on November 11, 1986, by ratifying and confirming the promulgation of martial law on March 24, 1982, and all other proclamations under the martial law, martial law orders, martial law instructions, ordinances and all other laws made during the period, chief martial law administrator’s orders and martial law regulations which were in force until November 11, 1983.
The then army chief Lieutenant General (retd) Hussain Mohammad Ershad proclaimed Martial Law on March 24, 1982 overthrowing President Justice Abdus Sattar government.

Supremacy of EU Law

2011-05-15T11:38:00.001-07:00

The supremacy principle as formulated by the court of Justice can help to resolve legal problems where there is a conflict between a national rule and a point of Union law by indicating to the national court that of the two rules to be applied, the court should give effect to the union law. The principle of supremacy or primacy of Union law has been developed by the Court of Justice. It is implicit in Case 26/62 von Gend en Loos [1963] ECR I which founded the doctrine of direct effect.

It was stated explicitly in Case 6/64 Costa v ENEL [1964] ECR 585 where the Court said that,

“By crating a community of unlimited duration, having its own institutions, its own personality, its own legal capacity and capacity of representation on the international plane and, more particularly, real powers stemming form a limitation of sovereignty or transfer of powers from the state to the community, the member states have limited their sovereign rights, albeit within limited fields, and have thus created a body of law which binds both their national and themselves.”

In a further step, in Case 11/70 Internationale Handelsgesellschaft GmbH [1970] ECR I-125, the Court held that Community law took precedence even over a fundamental rule in the German national constitution.

The clearest statement of the implications of the supremacy of Community law came in Case 106/77 Simmenthal SpA (No 2) [1978] ECR 629 where the Court held that national courts, even a lowly court of first instance, have a duty to set aside provisions of national law which are incompatible with EC law. There was no need to wait for the national law to be amended in line with national constitutional procedures: the national rule had to be set aside immediately if it conflicted with a directly applicable or directly effective Community provision.

Nor does the obligation to set aside conflicting national rules only apply to national courts: even an administrative agency dealing with a national social insurance scheme was held to be required to do so in Case C-118/00 Larsy v INASTI [2001] ECR I-5063.

Although the national measure is rendered ‘inapplicable’, this does not absolve the Member State from the need formally to repeal it. In the interests of legal certainty, the Court said that Member States must also repeal the offending national rule: Case 167/73 Commission v France (French Merchant Seamen) [1974] ECR 359.

Even if it is not yet clear whether a person actually has a right which they claim under Union law (i.e. it is a ‘putative’ right, not a definite one), the doctrine of supremacy requires a national court to set aside any national procedural rules which might prevent them from getting the full benefit of the Union right if it is eventually found that they have it!

This was laid down in the case C-213/89 R v Secretary of State for Transport, ex parte Factortame Ltd and others [1990] ECR I-2433. Spanish fishermen claimed that the UK’s Merchant Shipping Act breached a number of EC Treaty articles and wrongly prevented them from fishing in British waters. They asked for interim relief (an injunction setting aside the offending clauses of the Act pending the full hearing of the case). The problem was that under English law, courts could not grant an injunction ‘against the Crown’, that is, they could not order the suspension of an Act of Parliament. On the other hand, if the Act continued to be applied, the Spanish fishermen would probably be driven out of business and any subsequent judgment in their favour in the main proceedings would be useless – their Community law right would be rendered ‘ineffective’. The Court ruled that, in order to ensure the ‘full effectiveness’ of Community law, the English rule preventing suspension of the Act must be set aside. The House of Lords went on to grant the injunction.

Moreover, the supremacy principle can also permit to reopen a settled matter if the decision or judgment was based upon the incorrect assumption as to what the requirement of Union law might be. In case C-453/00 Kuhne & Heitz (2004) Dutch citizen authorities had made an administrative decision on the clarification of poultry meat for customs tariff purposes that required Kuhne & Heitz to pay more than it should if the relevant community law provision had been correctly applied. When the community law position was subsequently clarified, Kuhne & Heitz sought a refund. From the Dutch authorities’ perspective this matter had been long settled and general practice was not to reopen administrative decisions. The court noted however that the Dutch administrative bodies are able to reopen final decisions and that the courts, when the matter came before them, had misinterpreted the community law provision without referring the matter to the court for a preliminary ruling. Also taking in to account the promptness with which Kuhne & Heitz could require this settled matter is reopened by the Dutch authority so Kuhne & Heitz could get its money back.

The supremacy of Union law over national law is now stated in a Declaration attached to the Treaty of Lisbon. This reiterates the doctrine as stated by the Court as follows:

“The Conference recalls that, in accordance with well settled case law of the Court of Justice of the European Union, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by the said case law.”

There is also attached the Opinion of the Council Legal Service of 22 June 2007 which states:

It results from the case-law of the Court of Justice that primacy of EC law is a cornerstone principle of Community law. According to the Court, this principle is inherent to the specific nature of the European Community. At the time of the first judgment of this established case law (Costa/ENEL, 15 July 1964, Case 6/64) there was no mention of primacy in the treaty. It is still the case today. The fact that the principle of primacy will not be included in the future treaty shall not in any way change the existence of the principle and the existing case-law of the Court of Justice.

Thus, it is clear that the supremacy of Union law is firmly established by the decisions of the Court of Justice and the deliberations of national courts. The way in which Union law enters into the legal systems of the Member States depends, from a constitutional point of view, on whether the Member State is monist or dualist in its approach to international law.

Under the monist doctrine, domestic and international law constitute a single integrated legal system. As a result, in monist states international law is automatically incorporated into national law which out the need for further transposition. In addition, while monism does not logically imply the precedence of international over domestic law in the event of conflict, it is commonly associated with that principle. France and Italy are examples of monist states; the Netherlands also has a monist system, albeit a qualified one.

Dualism presupposes the existence of two separate systems of law: international law and national law. These two systems of law have different purposes and occupy different spheres. Under dualism, international law does not become part of national law until, and to the extent that, appropriate national measures so provide. What legislative or administrative from then measures take does not matter, provided the one selected provides for the proper transposition of the international legal measure.

A dualist member state may still acknowledge a privileged status to Union law within its domestic legal order. Thus, both primary and secondary Union law may be entrenched in national law through an express constitutional amendment or other enactment to that effect. Ireland, Poland and the United Kingdom are examples of dualist states.

United Kingdome

Treaties entered into by the

government do not affect the law applied by the domestic courts and are only binding in international law. As a dualist states, a treaty will only have effect in the domestic legal system if an Act of Parliament incorporates. Thus, when the UK joined the EEC, the European Communities Act 1972 had to be adopted to give effect to directly effective provisions of Community law within the

. It has been amended, following the adoption of the Single European Act and all the subsequent treaties by the relevant European Communities (Union) (Amendment) Acts.

The ECA 1972 section 2 provides for the application of community (now union) law arising from the treaties, secondary legislation and the case law of the court of justice, in the British courts. Without using the terms, section 2(1) provides for the direct applicability and the direct effect of Union law as determined by Union law. The ECA 1972 sections 1 and 2 are both backward and forward looking in scope, requiring the adoption of existing Union law and providing for the adoption for future Union law.

Lord Denning in Bulmer v Bolinger (1974) said that “Parliament has decreed that the Treaty is henceforward to be part of our law. It is equal in force to any statute.” This view may not have been widely shared at this time, and even if it had been, there remained question as to whether community law could have greater force than a statute, by being able to prevail over any Acts of Parliament in conflict with it. In 129/79 McCarthys Ltd v Smith (1980) Lord Denning again considered the supremacy point and stated that if on close investigation it should appear that our legislation is deficient or is inconsistent with community law by some oversight of our draftsmen then it is out bounded duty to give priority to Community law.

Day by day the courts were interested to establish the supremacy of EC law. The House of Lords accepted in the landmark case: Regina v Secretary of State for Transport, ex parte Factortame Ltd and Others (No 1) [1990] ECR I-2433, that an English court could be obliged to set aside a rule of national law in order to safeguard putative EC law rights. This meant that the application of an English Act of Parliament had to be suspended pending the outcome of a claim that its provisions infringed Community law. Under English rules, courts could not grant an injunction ‘against the Crown’ (i.e. suspend an Act of Parliament) but the House of Lords accepted, following a reference to the ECJ, that such national rules had to be set aside if they interfered with the protection of Community rights.

This case has far-reaching constitutional implications in the

United Kingdom

. It takes it clear that any Act of Parliament must be read as subject to directly enforceable rights under Union law.

On the application of the principle of indirect effect in the UK, courts show how the English judiciary has traditionally based its application of Union law on the rules laid down in this English statute rather than on any abstract notion of supremacy stemming from the Union Treaties. For the ways in which English courts have dealt with the interpretation of national law in accordance with Community law. Litster v Forth Dry Dock and Engineering Co Ltd [1990] 1 AC 546 HL is the case where a claim against a private employer, which prevented any question of direct effect arising, was based on the “Transfer of Takeovers” directive. The statutory instrument in question had been introduced in order to implement the directive and therefore, the House of Lords were prepared to interpret the regulation contrary to its prima facie meaning in order to comply with the directive.

The cases Thoburn v Sunderland County Council, Hunt v London Borough of Hackney, Harman and Dove v Cornwall County Council and Collins v London Borough of Sutton [2003] QB 51 are also interesting on this issue. They concerned the so-called ‘metric martyrs’ who refused to use metric weights as well as imperial weights as required under EC law. They were convicted under the Weights and Measures Act 1985 and a number of other statutory instruments and appealed to the High Court. The case was heard by Sir John Laws, who dismissed the appeals. He reiterated the traditional view about the basis of the supremacy of EC law in the UK, basing it on the constitutional law of the

rather than on principles of EU law. He stated that the European Communities Act 1972 is a constitutional statute which means that it cannot be impliedly repealed by a later inconsistent statute. Hence it would prevail over later statutes which were inconsistent. However, he went on to comment that: In the event, which no doubt would never happen in the real world, that European measure was seen to be repugnant to a fundamental or constitutional right guaranteed by the law of England, a question would arise whether the general words of the ECA were sufficient to incorporate the measure and give it overriding effect in domestic law.

Moreover, the House of Lords seemed to have concluded that the duty arising under community law to interpret British Legislation in a manner securing consistency with community law is confined to legislation that was passed to give effect to community obligation. The question arise in Case C-32/93 Webb v EMO Cargo (UK) Ltd [1994] ECRI-356, where the dismissal of a woman employed to cover a period of maternity absence had been prompted when the woman providing the cover notified her employer of her own pregnancy. British court felt that UK law on this point was clear: the situation was not prohibited act of sex discrimination within the meaning of relevant employment legislation. Relevant points of community law came to a different result, one which classed the treatment of Ms Webb as direct discrimination since she had been dismissed for a reason related to her pregnancy.

Germany

In Case 11/70 Internationale Handelsgesellschaft [1970] ECR 1125, the ECJ had stated that the validity of Community measures could only be judged according to Community criteria, not according to principles enshrined in the German constitution. The German Administrative court did not agree and referred the matter to the German Federal Constitutional Court.

This ruling was not accepted by the German Federal Constitutional Court (FCC) in Internationale Handelsgesellschaft (Solange I) [1974] 2 CMLR 540. It noted that the protection of fundamental human rights was an essential element of the Basic law, and that this power could not automatically be restricted by transferring sovereignty to a supranational organization under Article 24 of the Basic law. In the opinion of the FCC, the fundamental rights guaranteed by the basic law were insufficiently protected under community law, as the community lacked a democratically legitimated and directly elected parliament as well as a codified catalogue of human rights. The protection of fundamental rights by the court of justice was considered insufficient as the case law of courts could not fully guaranteed legal certainty. FCC confirmed that it would not rule on the validity or invalidity of a rule of Community law, but it held that the German authorities or courts should not apply rules of Community law which infringed a rule of the Basic law relation to basic rights as long as the Community did not itself provide adequate protection of fundamental rights. In cases of doubt the FCC would rule on the existence of such an infringement.

However, FCC changed its position in Wünsche Handelsgesellschaft (Solange II) [1987] 3 CMLR 225. The FCC acknowledged that Community law now had its own equivalent standard of human rights protection. On this basis it ruled that it would no longer exercise its jurisdiction to review secondary community law by the standard of the fundamental rights guaranteed by the Basic law.

Nonetheless, in Brunner v The European Union Treaty [1994] 1 CMLR 57, when considering whether the Maastricht Treaty on European Union unduly extended the competences of the European Community and made too many inroads on German sovereignty, the Federal Constitutional Court again re-affirmed German constitutional sovereignty and its right to review the scope of Community competence.

In its judgment after various constitutional complaints had been brought before it by private citizens as well as by a political party in respect of the ratification of the Lisbon Treaty, the FCC ruled in June 2009 that the Treaty was in accordance with the German Basic Law and simply objected to the domestic law which implemented the Treaty and annulled the law. As regards the Lisbon Treaty itself, it spelt out in a lengthy judgment the limits to which integration could go and emphasized the safeguards under the German Basic law which must be respected. It did not, however, consider that the Treaty as such exceeded the boundaries of what was acceptable under the Basic Law. A new implementing law was then passed in September 2009 and ratification duly followed.

France

There are two main separate court systems in France. The judicial courts which deal with civil and criminal matters and administrative courts review the legality of administrative action. The highest court in judicial order us the Council de cassation while the Council d’Etat is the supreme administrative court.

The Cour de Cassation (Highest civil court) accepted the primacy of directly effective EC law, on the basis of Article 55 of the French constitution which states that Treaties or agreement which have been duly ratified or approved shall, on publication, have higher authority than that of statutes: Vabre and Weigel [1975] 2 CMLR 336.

The Conseil d’Etat (Highest administrative court) has shown reluctance to accept the primacy of Union law. In Chemins de Fer Francais (1962) the court d’etat ruled that, on the basis of Article 55 of the French Constitution, the EEC treary had similar status to that of French statutes.

Moreover, the Conseil d’etat has refused to accept that Directives can have direct effect (in the French Court’s view, only a French implementing measure can give effect to a Directive according to Article 249 EC (now Article 288 TFEU): Minister of the Interior v Cohn-Bendit [1980] 1 CMLR 543. Here, the Commissaire du Governement, who has a similar function to that of the Advocate General in the Court of Justice of the European Union, argued by citing all the relevant cases decided by the court and had come to a directly different conclusion.

The court adopted a more positive attitude towards the doctrine of supremacy of Community law in its decision in Nicolo (1990). In its judgment, the Conseil d’etat impliedly recognized that the EC treaty would prevail over a French statute in case of conflict. The Conseil d’etat took a further step in Boisdet [1991] 1 CMLR 3 where, for the first time, it recognized the primacy of EC regulation over a France statute, even though this was enacted after the EC regulation concerned. Then, in case concerning directive: Rothmans and Arizona Tobacco [1993] 1 CMLR 253 the Conseil d’etat acknowledged that a directive would prevail over a subsequently adopted statute. It also awarded damages under the Factortame principle, for loss caused by a Ministerial order which conflicted with an EC Directive.

While, in practice, therefore, the French courts accept the primacy of directly effective of Union law, their reasoning is frequently based on the French constitution, rather than on the European Court’s doctrine of supremacy. This is a similar view to that expressed in UK and German courts that it is the national constitution which is at the head of the legal order and that Union law supremacy exists only in so far as it is provided for under national law.

Italy

The Italian Constitutional Court has accepted the supremacy of Union law, based on Article 11 of the Italian constitution: Frontini v Ministero delle Finanze [1974] 2 CMLR 372. However it reserved the right to ensure that the fundamental principles of the Italian constitution were not infringed by Union law. It reaffirmed this position in Fragd [1990] CML Rev 94, stating that if it found that a Community measure infringed those fundamental rights, it would declare it inapplicable – thereby giving precedence to the Italian constitution.

Free Movement of Goods

2011-05-15T11:37:00.001-07:00

10.1

The free movement of goods between the Member States is one of the four fundamental freedoms established by the Treaty of Rome. The original 1957 Treaty spoke of creating ‘a common market’, but in the Single European Act of 1986, the term ‘internal market’ was substituted. This term is defined in what is now Article 26 TFEU, as ‘an area without internal frontiers’:

“The Union shall adopt measures with the aim of establishing or ensuring the functioning of the internal market, in accordance with the relevant provisions of the Treaties...The internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of these Treaties.” Article 26 TFEU (ex Article 14 EC)

It is not correct to think that the law of free movement of goods will only applicable where there was inter-state trade. In Case C-293/02 Jersey Produce Marketing Organisation Ltd v States of Jersey [2005] ECR I-9543, the Court of Justice took a reference from the Royal Court of Jersey (Jersey is one of the Channel Islands and part of the United Kingdom), and held that there was a breach of Articles 28 and 35 TFEU (ex Articles 25 and 29 EC) in respect of legal requirements imposed on exporters of potatoes from the Channel Islands to the United Kingdom. Jersey potatoes are a special type of ‘new’ potato which are distinctive and command high prices. Jersey producers were prohibited from exporting their potatoes to the United Kingdom market unless they had registered with a body such as the Jersey Potato Export Marketing Board and entered into a marketing agreement with them. Further, the rules prohibited all marketing organisations from exporting produce unless they had entered into restrictive agreements with the same body concerning which potato sellers they bought their produce from. There were penalties for non-compliance with these requirements. The Court of Justice held that these measures were a breach of Article 35 TFEU. Additionally, the requirement for all potato producers to pay a contribution to the Jersey Potato Export Marketing Board was a breach of Article 30 TFEU.

The idea, then, is not simply that goods should be able to cross the borders between states without having to pay duties or face any other kind of obstacle, but those very borders should cease to exist as far as the movement of goods is concerned and give the right to impoter or exporter to import and export. There were two main aspects to achieving the aim of an integrated European Community (as it was then called) market.

a) Negative integration

b) Positive integration

10.2

Negative integration:

To establish a sigle market some time the member state requires to remove quotas in imported goods which may be considered under Articles 34–36 TFEU, or to remove the existing monetary (or tariff) barriers (i.e. those that concern some form of financial charge, is also known as customes duty) which fall under Articles 28–30 TFEU, and discriminatory taxation under Article 110 TFEU, is known as negative integration. This is because integration of the market results from the removal or abolition of existing rules.

10.2.1.1

Customes duties:

For trade between Member States of the EU, the basic rule is laid down in Article 30 TFEU (ex Article 25 EC) that:

“Customs duties on imports and exports and charges having equivalent effect shall be prohibited between Member States. This prohibition shall also apply to customs duties of a fiscal nature.”

It was held in case 26/62 Van Gend en Loos [1963] ECR 1 that this could be relied on by individuals in the national courts.

Customs duties as such were successfully abolished early in the history of the European Community. However, it was not originally clear what was covered by the concept of ‘a charge having equivalent effect’ (CEE). The Commission brought a number of cases against Member States in the 1960s and the Court of Justice took the opportunity to give a very wide meaning to this phrase. One such case, 24/68 Commission v Italy (‘Statistical Levy’) [1969] ECR 193, [1971] CMLR 611, involved an Italian levy on imports and exports across its borders. The levy was a very small sum and it was used to pay for the gathering and publication of statistics on trade patterns. The Court of Justice emphasised that it is the effect, not the purpose, of the levy that

matters: extra fees and charges are likely to put imported goods at a disadvantage compared with domestically produced goods. It also dismissed the Italian government’s argument that the statistical data was a ‘service’ to traders which they should pay for. The Court of Justice ruled:

Any pecuniary charge, however small and whatever its designation and mode of application, which is imposed unilaterally on domestic or foreign goods by reason of the fact that they cross a frontier... constitutes a charge having equivalent effect… (Statistical Levy Case 24/68)

Even if the money is used for a ‘social’ aim, the prohibition, which is absolute, applies. See Joined Cases 2 and 3/69 Social Fond voor de Diamantarbeiders v Brackfield [1969] ECR 211. The key part of this definition or test is whether the sum of money has become payable because goods have crossed a frontier within the EU.

The Court of Justice has held that the prohibition on ‘charges of equivalent effect’ also applies to goods imported directly from third countries: Case 37, 38/73 Diamantarbeiders v Indiamex [1973] ECR 1609. This means that the CCT duty can be levied on such goods, but no other charges can be added by the Member States.

10.2.1.2

Exception/ Justification/ Defence

The EU Treaty does not contain any exceptions or defences to Article 30 TFEU, the prohibition is strict and absolute. However there are some situations that fall outside the prohibition because they do not fulfil the above test. These are:

a) Proportionate payment for a service received

b) Charge for inspection where the inspection is mandatory under European Union law

c) Payment due under the importing state’s internal tax system (‘internal tax’).

Proportionate payment for a service received:

There must be a specific benefit individually conferred on the importer/exporter. If it is simply a benefit in the ‘general interest of all exporters’, or a general benefit to the public at large, it will not qualify: Case 24/68 Commission v Italy (Statistical levy) [1969] ECR 193. Even if inspections of goods on import or export are usually for public health reasons, or to ensure quality will also be illegal: 63/74 W. Cadsky SpA v Instituto nazionale per il Commercio Estero [1975] ECR 281.

A charge for a service will be lawful where the benefit paid for is a service actually rendered to the importer, probably at his request AND the cost charged for the service is based on the actual cost of providing it. See Case 132/82 Commission v Belgium [1983] ECR 1649 (public warehouses – storage charges).

Charge for inspection where the inspection is mandatory under European Union law:

It is lawful for a Member State to charge a fee for an inspection where the inspection is required under a European Union Directive, rather than by national law, and the Directive does not specify who should pay for it. See: Case 46/76 Bauhuis v Netherlands [1977] ECR 5.

Payment due under the importing state’s internal tax system:

If a charge applies equally and in the same way to both domestic and imported goods, it may be legal as an internal ‘tax’. There has been some harmonisation of indirect taxes such as VAT, and the setting of minimum excise duties on alcohol and tobacco but Member States are still largely free to decide their own level of taxes, for example, on tobacco, cars, petrol, alcohol etc. provided these ‘internal taxes’ are ‘origin-neutral’. As long as there is strict equivalence in the treatment of domestic and imported products, it is lawful to impose domestic taxes on imported goods. Such taxes, however, fall under Article 110 TFEU and not under Article 30 TFEU. It should be noted that the two Articles are mutually exclusive. If a product is taxed when it crosses a border, such tax will be subject to Article 30 TFEU.

Problem arise when taxing on imports where there is no equivalent domestic product. For example tobacco is not commercially grown in the UK. Does this mean that a tax on tobacco is unlawful because it will only apply, in practice, to imported tobacco? The problem have been solved in Case 193/85 Cooperativa Cofrutta Srl [1987] ECR 2085. The court held that when there is no identical or similar domestic product, does not constitute [an illegal] charge but internal taxation within the meaning of Article 110 TFEU.

10.2.2.1

Quantitative restrictions:

Article 34 TFEU prohibits quantitative restrictions (quotas, bans, import licences) on imports and all measures having equivalent effect (MEQRs). Article 35 TFEU contains the same prohibition in relation to exports:

Article 34 TFEU: Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States.

Article 35 TFEU: Quantitative restrictions on exports, and all measures of equivalent effect, shall be prohibited between Member States.

Quantitative restrictions (QR) are ‘quotas’ or limits on the number of goods which can be imported from one country into another, so a hypothetical rule stating that only 100,000 watches can be imported from Russia into the United Kingdom each year would be a QR. Such quotas are prohibited between Member States by Article 34 TFEU. The Court of Justice has defined quantitative restrictions as ‘measures which amount to a total or partial restraint of... imports, exports or goods in transit’ (see Case 2/73 Geddo v Ente Nazionale Risi [1973] 865).

An example of a quantitative restriction is the Spanish provision at issue in Case C-47/90 Établissements Delhaize Frères et Compagnie Le Lion SA v Promalvin SA and AGE Bodegas Unidas SA [1992] ECR I-3669. Spanish law set quotas on the bulk export of its wine while placing no restrictions on domestic sales. When Delhaize from Belgium, ordered 3,000 hectolitres of the wine, the export was not permitted under the Spanish rules. The law was held to be a QR on exports and illegal under Article 35 TFEU (ex Article 29) EC.

The meaning of ‘Measures having equivalent effect to a quantitative restriction’ (MEQRs) is not given by the Treaty but the Commission attempted to fill this gap by adopting Directive 70/50. The main focus of the Directive (see Article 2) is on discriminatory measures. These are sometimes called ‘distinctly applicable measures’ as they only apply to imported goods; they ‘make importation more difficult or costly than the disposal of domestic production’.

In Article 3, the Directive says that Article 34 TFEU (ex Article 28 EC) also covers:

measures governing the marketing of products which deal, in particular, with shape, size, weight, composition, presentation, identification or putting up and which are equally applicable to domestic and imported products, where the restrictive effect… exceeds the effects intrinsic to trade rules. [emphasis added]

This is the kind of measure referred to as ‘indistinctly applicable’. The Commission, in Directive 70/50, appeared to accept that ‘indistinctly applicable measures’ will generally be acceptable unless they are ‘out of proportion to their purpose’ and ‘the same objective can be attained by other means which are less of a hindrance to trade’ – that is, they should be subject to a proportionality test.

The Directive is no longer in force but has been influential on the case law of the Court. The Court of Justice has extended the reach of Article 34 TFEU to catch measures which are not discriminatory in law but which do have a discriminatory effect in fact. In this respect the Case 8/74 Procureur du Roi v Dassonville [1974] ECR 837 is important one. Dassonville was prosecuted in Belgium for selling Scotch whisky without a certificate of origin required by Belgian law. He had imported the whisky from France where such a certificate was not required. He argued that the Belgian rule prevented the free movement of whisky from France to Belgium. The Court of Justice agreed, and said that Article 34 TFEU (ex Article 28 EC) covers:

“all trading rules enacted by Member States which are capable of hindering, actually or potentially, directly or indirectly, intra-Community trade.”

This definition focuses on ‘hindrance’ rather than discrimination. Because the certificate was less easily obtainable for an indirect importer (than for a Belgian distributor buying direct from the manufacturer), the Belgian requirement was a MEQR in breach of Article 34 TFEU (ex Article 28 EC). The Court acknowledged that Member States might need to have reasonable measures to protect consumers, but these should not be more difficult for some importers than others to comply with.

Another important step was taken in Case 249/81 Commission v Ireland (Buy Irish) [1982] ECR 4005. The Irish Goods Council’s publicity campaign to persuade Irish consumers to buy Irish goods in preference to imported ones was held to be a MEQR. It had been argued that a ‘measure’ meant a legally binding measure, but the Court held that even non-binding measures could have the effect of hindering imports just as much as laws and rules. There was not even a need to prove that imports had fallen – under the Dassonville formula, a potential effect is enough.

However, the definiton of MEQR was extended by Cassis de dijon case where an “indistinctly applicable” measure might be caught by Article 34 of TFEU. In that case, the rule at issue was the German requirement that fruit liqueurs must have an alcohol strength of 25 per cent. The French blackcurrant liqueur, Cassis, had a strength of 15–20 per cent and therefore could not be sold in

Germany

. The German rule, although apparently non-discriminatory, in fact made it impossible for French manufacturers to export Cassis to Germany. To change the strength would be uneconomic. The German rule effectively amounted to an import ban. This is because German fruit liqueurs have been manufactured by complying with the rules applicable in their home state; French fruit liqueurs meet the standards set in their home state but now also have to comply with the rules of the Germany. Thus, French has to satisfy two sets of rules, those of the home state and those of the Germany, whereas goods sold on the domestic market have only to comply with one set of rules, those of the home state i.e Germany. This indistinctly applicable rules are sometimes referred to as ‘dual burden’ rules because of the double regulatory burden that results for imported goods. As a result of these burden, German measure has been treated an MEQR.

However, the very wide definition of a MEQR in Dassonville, combined with its extension in Cassis to catch indistinctly applicable measures, generated a huge number of challenges to national rules based on Article 34 TFEU. Rules would be challenged and then justified under an ever-growing list of mandatory requirements. It could be argued, as Advocate General Slynn did in Cinéthèque, that some of these rules were not intended to restrict imports and did not in any way make things more difficult for the importer than the domestic producer and should not be caught by Article 34 TFEU at all.

This issue came to a head in the ‘Sunday trading’ cases, see Case 145/88 Torfaen Borough Council v B&Q plc [1989] ECR 3851. A national law restricting what kinds of goods could be sold on Sunday restricted the sale of imported goods to exactly the same extent as the sale of domestically produced goods (it imposed an ‘equal burden’), yet the Court of Justice still required such a rule to be justified.

Finally, in Joined Cases C-267 and C-268/91 Criminal Proceedings against Keck and Mithouard [1993] ECR I-6097, [1995] 1 CMLR 101, the Court accepted the argument that a clear limit should be placed on the types of measure caught by Article 34 TFE. The Court of Justice declared that ‘contrary to what has previously been decided’, Article 34 TFEU would not apply to:

certain selling arrangements... provided that [they] apply to all relevant traders in the national territory... and affect in the same way, in law and in fact, the marketing of domestic products and those from other Member States [paragraph 16].

The judgment creates two categories of trading rules: those which lay down ‘product requirements’, affecting in some way the goods themselves, and ‘selling arrangements’ which do not require any change to the product itself but only restrict the way it is marketed. ‘Product requirements’ are still governed by the existing rules on discriminatory and dual burden measures. ‘Selling arrangements’ fall outside the scope of Article 34 TFEU and are legal. They do not have to be justified or proportionate under European Union law.

A rule of thumb for distinguishing between a ‘product requirement’ and a ‘selling arrangement’ is to ask yourself whether, in order to comply with this rule, the importer has to make any physical alteration to the product, for example, change the ingredients, packaging, labelling. If so, it is a ‘product requirement’. If not, it is a ‘selling arrangement’. ‘Selling arrangements’ concern where, when and how goods are to be sold.

The Court of Justice in Keck did not state which earlier cases were overruled, but it is likely, for example, that the rules in the following cases would now be regarded as ‘selling arrangements’: Case 60, 61/84 Cinéthèque [1985] ECR 2605 (timing of sales of videos); and Case 328/87 Buet v Ministère Public [1989] ECR 1235 (doorstep selling of educational materials).

Since Keck, the Court has reaffirmed the continued importance of the Cassis principle in relation to obstacles to trade caused by disparities between national laws governing product presentation and composition (i.e. where the Keck test has not been fulfilled).

Some cases have concerned marketing rules which nonetheless have an effect on the product itself. In Case 315/92 Clinique [1994] ECR I-317, a German law, which prohibited the use of the name ‘Clinique’ for cosmetics, because the consumer might be confused and think that the product had medicinal properties, was challenged under Article 34 TFEU. It was held by the Court of Justice to be disproportionate to satisfy the requirements of consumer protection and the health of humans.

Case 368/95 Familiapress v Heinrich Bauer Verlag [1997] ECR I-3689, [1997] 3 CMLR 1329 concerned Austria’s law on ‘unfair competition’ which forbade the offering of large cash prizes for competitions in magazines. Familiapress is a publisher of newspapers in Austria. German newspapers and magazines could be sold in Austria (also German speaking), and Familiapress brought proceedings against a German publisher of weekly magazines which were being sold in Austria and which offered large cash prizes for crossword competitions. This was held not to be a selling arrangement under Keck, because the law ‘bears on the actual content of the products... the competitions in question form an integral part of the magazine... Since it requires traders... to alter the contents of the periodicals…’ It is an MEQR. It was justified to protect press diversity (the aim was to protect the local press which could not offer high value prizes); it was for the national court to decide whether it was proportionate.

The Court has applied Keck in a formalistic way which has been criticised by many commentators, particularly in relation to advertising restrictions. In a highly influential Opinion in the case Leclerc-Siplec, Advocate General Jacobs identified potential problems with the Keck formula, pointing out that domestic products are probably already known to consumers, whereas products from other Member States are more dependent on advertising to penetrate new markets. In his conclusion in his Opinion in Leclerc-Siplec, Advocate General Jacobs applied the Keck formula and decided that the national rule fell outside Article 34 TFEU.

Now-a-days several cases started to follow the view of Advocate General Jacobs. An interesting case in which the Court held that a ‘selling arrangement’ discriminated against foreign traders in fact is:Case 254/98 Schutzverband gegen unlauteren Wettbewerb v TK Heimdienst GmbH [2000] ECR I-151. Under the Austrian Code of Business and Industry 1994, traders such as bakers, butchers and grocers were only permitted to offer for sale on rounds from locality to locality or from door-to-door goods which they also sold from a permanent establishment in the area or in an adjacent municipality. The Schutzverband, an association for the protection of the economic interests of undertakings, brought an action against TK-Heimdienst to restrain it from offering for sale on rounds groceries which it did not sell in permanent establishments in that municipality or any adjacent one. The Court of Justice held that the legislation in question related to ‘selling arrangements for certain goods’ but that it did not affect in the same manner the marketing of domestic products and that of products from other Member States. It did not apply equally in law and in fact. The rule ‘in fact impedes access to the market of the Member State of importation for products from other Member States more than it impedes access for domestic products’. Therefore the Austrian law did fall within the scope of Article 34 TFEU despite being described by the Court of Justice as a selling arrangement. An argument that the rule could be justified under Article 36 TFEU (ex Article 30 EC) as a measure to protect human health was rejected because the measure was held to be disproportionate.

A key case concerning a selling arrangement which did not apply equally in fact is:Case 405/98 Konsumentombudsmannen (KO) v Gourmet International Products (GIP) [2001] ECR I-1795. The case concerned an application for an injunction by the Swedish Ombudsman responsible for consumer protection preventing Gourmet International Products (GIP) from placing advertisements for alcoholic beverages in magazines. A Swedish law was effectively a total ban on advertising alcoholic beverages, prohibiting the advertising of such drinks on radio, television or in magazines and periodicals other than those sold at the point of sale. GIP published a magazine called Gourmet which contained advertisements for red wine and whisky.

The reference to the Court of Justice from the Swedish court asked whether Article 34 TFEU or Article 56 TFEU precluded legislation entailing a general prohibition on alcohol advertising, such as the one at issue and whether, if so, such a prohibition could be justified on the grounds of public health. The Consumer Ombudsman and the French, Danish, German and Austrian governments argued that such a law on advertising fell within Keck, and was therefore not within Article 34 TFEU. The Court of Justice rejected this argument. It pointed out that paragraph 17 of Keck states that national provisions prohibiting certain selling arrangements must not impede access to the market for products from another Member State or must not impede access more than they impede the access for domestic goods. The Court concluded that a prohibition on advertising such as the one at issue was liable to impede access to the market for products from other Member States more than for domestic products with which consumers are already familiar. Therefore the prohibition on advertising affected the marketing of products from other Member States more than the marketing of domestic products and was caught by Article 34 TFEU (ex Article 28 EC).

So the Court is recognising the importance of advertising as a way for new products to break into a market. Although the sales of wine and whisky, which are imported, were increasing faster than sales of domestically produced vodka, the Court of Justice held that the sales of these imported beverages might have grown even faster without the ban on advertising.

This case indicates that advertising bans which ‘prevent access to the market by products from another Member State or impede access more than they impede the access of domestic goods, despite being selling arrangements, will nonetheless be caught under Article 34 TFEU.

The Court of Justice accepted that the rule could be justified on the grounds of public health and stated that it was for the national court to determine whether it was proportionate. As to justification under Article 36 TFEU, on the grounds of public health, the Court of Justice accepted the justification for the rule. It stated that, as this required an analysis of the circumstances of law and of fact which characterised the situation in the Member State concerned, it was for the national court to determine:

a) whether it was proportionate

b) whether ‘the protection of public health against the harmful effects of alcohol can be ensured by measures having less effect on intra-Community trade’.

The Court of Justice has refined the Keck test so that it is no longer a question simply of asking whether a change to the product itself is required, but whether ‘access to the market’ is made more difficult for imported products. Case C-322/01 DocMorris [2003] ECR I-4887 discussed above.

10.2.2.2

Dfence/ Exception/ Justification

If the rule is distinctly applicable then the justificaiton will be under Article 36 only; whereas if he rule is indistinctly applicable then the justification will be under Article 36 and Cassis de dijon principle as the national measures are proportionate.

10.2.2.2.1

Article 36 TFEU

Unlike Article 30 TFEU in relation to financial charges, the prohibition of quantitative restrictions and MEQRs in Articles 34 and 35 TFEU is not absolute. Article 36 TFEU can be used to justify both distinctly applicable (discriminatory) and indistinctly applicable rules. The Treaty provides that such measures may be justified on one of six grounds listed in Article 36 TFEU.

Public morality

Case 34/79 R v Henn and Darby [1979] ECR 3795. Henn and Darby were prosecuted under English law for importing obscene films and magazines from the Netherlands into the UK. They raised a ‘eurodefence’: that this was contrary to the free movement of goods laid down by Article 34 TFEU. The case eventually reached the House of Lords and a preliminary reference was made to the Court of Justice as to whether the UK could rely on Article 36 TFEU to prevent these imports on public morality grounds. The Court of Justice accepted that Article 36 TFEU confers a discretion on the Member States to set their own standards in relation to public morality, provided that, as was the case, no lawful trade in such goods was allowed within the

either:

In principle, it is for each Member State to determine in accordance with its own scale of values and in the form selected by it the requirements of public morality in its territory.

Contrast this case with Case 121/85 Conegate Ltd v HM Customs and Excise [1986] ECR 1007, which illustrates the rule that Article 36 TFEU grounds must not be used to support ‘arbitrary discrimination or disguised restrictions’. The UK ban on inflatable ‘love dolls’ from Germany would be disproportionate in a situation where, within the UK, sale of such products was not banned, although there were certain restrictions on how and where they could be sold.

Public policy

This ground has rarely been used successfully in the Court of Justice, which has made clear that it cannot be used for economic reasons (Case 95/81 Commission v Italy [1982] ECR 2187). It was, however, successfully pleaded in the House of Lords case R v Chief Constable of Sussex ex p. International Trader’s Ferry Ltd [1999] 1 CMLR 1320 HL. Animal rights protesters were blockading the port of Shoreham, trying to prevent the (lawful) export of veal calves to France. ITF challenged the Chief Constable’s decision that protection for the lorries could only be provided on two days a week because of limited police resources. The Divisional Court agreed that the decision was a restriction on exports, contrary to Article 35 TFEU, but this ruling was reversed, with the Court of Appeal and House of Lords accepting the public policy justification: the state’s responsibility for ensuring the free movement of goods had to be balanced with the right of residents to policing, and with the right of peaceful protest.

Public security

Case 72/83 Campus Oil [1984] ECR 2727. Importers of oil products into Ireland were obliged to buy 35 per cent of their requirements from the state oil refinery. Campus Oil argued that, as they could not import 100 per cent of their needs, this was a breach of Article 34 TFEU. The Court of Justice said that the maintenance of regular oil supplies, which were fundamental to the existence of the state, was a legitimate aspect of public security. However, the Court questioned whether the compulsory purchasing requirement, at a price above the world market price, was necessary to ensure the survival of the state oil refinery. If it reduced its prices to the world market price, would it not still get enough customers to survive? These issues of fact were left to the national court. The judgment shows clearly the Court’s approach to the Article 36 TFEU derogations: it is not enough for the Member State to invoke a legitimate objective covered by Article 36 TFEU. It has also to show that the measure in question is necessary for that purpose, and that it is proportionate. That means asking whether there is any other way of achieving the objective (in this case viability of the Irish state oil refinery) which would be less of a restriction on the free movement of goods.

The protection of health and life of humans, animals and plants

There are many cases where this ground has been pleaded. The following show the Court’s approach. The Court of Justice will consider whether the risk to health is genuine, or a disguised restriction on trade as was found in Case 40/82 Commission v UK (re Imports of Poultry Meat) [1982] ECR 2793, [1982] 3 CMLR 497.

Public health inspections of imports from other Member States have also attracted close scrutiny. Any inspection is, in principle, an MEQR because, even if there is no charge for it, it causes delay and is a hindrance to importation. The importing state must take into account evidence of any tests already complied with in the exporting state, and only if it can show those are insufficient can it require additional tests: Case 124/81 Commission v United Kingdom [1983] ECR 203 (UHT milk).

Case C-170/04 Klas Rosengren and Others v Riksåklagaren [2007] ECR I-4071 was a challenge to the lawfulness of a Swedish measure prohibiting the import of alcoholic beverages by private individuals into Sweden; it was possible for individuals to ask the holder of the retail sale monopoly, on request, to supply and, if necessary, to import the alcoholic drinks in question. The Court found that the measure was unsuitable for attaining the objective of limiting alcohol consumption generally and not proportionate for attaining the objective of protecting young persons against the harmful effects of such consumption. Therefore, the measure was caught by Article 34 TFEU and not justified under Article 36 TFEU.

Case C-322/01 DocMorris [2003] ECR I-4887: a German law prohibiting the sale of medicines by mail order over the internet was held to be caught by Article 34 TFEU and to be discriminatory as ‘for pharmacies not established in Germany, the internet provides a… significant way to gain direct access to the German market’. The prohibition therefore had a greater impact on pharmacies established outside Germany and could impede access to the market for products from other Member States more than it impeded access for domestic products. The Court of Justice held that the rules were justified and proportionate in so far as they applied to medicines which could only be obtained with a prescription in German, but could not be justified in regard to medicines which did not need a prescription.

Case C-212/03 Commission of the European Communities v French Republic [2005] ECR I-4213. The import of medicinal products into France by private persons, not affected by personal transport, was prohibited by a rule which stated that prior authorisation was needed. Medicinal products caught by this rule included products licensed in France and the Member State of purchase, homeopathic products, and products licensed only in the Member State of purchase. Challenging this rule, the Commission argued that France had failed to fulfil its obligations under Article 34 TFEU. The Court found that the prior authorisation procedure for personal imports was disproportionate to the objectives of the rule and went beyond what was necessary to ensure the objectives.

The Court will take into account the attitude of other Member States and of international health bodies such as the World Health Organisation when assessing whether particular additives pose a real risk to health. In Case 178/84 Commission v Germany (Additives in Beer) [1987] ECR 1227, [1988] 1 CMLR 780, Germany prohibited a large number of additives to beer. These were permitted in other Member States. The Court of Justice was not swayed by the argument that they posed an increased danger to German consumers because so much beer was consumed in Germany!

Case C-67/97 Criminal Proceedings against Ditlev Bluhme [1998] ECR I-8033 concerned the protection of the life of animals under Article 36 TFEU. It was held that a ban on imported bees into the Danish island of Laeso to protect the native bee from more aggressive species was justified and proportionate.

The precautionary principle

Where the available scientific evidence on the health impact of particular substances is unclear, the Court said in Case 174/82 Sandoz [1983] ECR 2445, concerning vitamins added to Muesli bars, that Member States can decide what level of protection is appropriate, subject to the proportionality rule:

… in so far as there are uncertainties at the present state of scientific research it is for the Member States, in the absence of harmonisation, to decide what degree of protection of the health and life of humans they intend to assure, having regard however for the requirements of the free movement of goods within the Community (paragraph 15).

This principle has been defined in further cases on the sale of foods enriched with added vitamins and minerals.

In Case C-192/01 Commission v Denmark [2003] ECR I-9693, the Court confirmed that Member States can adopt their own precautions in situations where the precise risks to health are uncertain, but said that any such precautions must be necessary and proportionate. Denmark had argued that the normal Danish diet was sufficient in nutrients. The Court held that the Member State must show that the products posed a real risk to public health: it was not enough to show that the product did not meet a need among the Danish population.

The requirements in cases where there is controversy as to the health risks were summarised by the Court in case C-41/02 Commission v Netherlands [2004] ECR I-11375. Marketing of foods fortified with vitamins and minerals was subject to prior proof of a nutritional need in the Netherlands population. This was clearly an MEQR, but could it be justified on the basis of the precautionary principle?

The Court held (paragraphs 47–53) that the Member State must carry out a risk assessment to measure the probable harmful effects on human health and the seriousness of those potential effects. In doing so they may ‘take into consideration the cumulative effect of the presence on the market of several sources, natural or artificial, of a particular nutrient and of the possible existence in the future of additional sources which can reasonably be foreseen’.

The greater the uncertainty, in science and in practice, the greater the Member State’s discretion in applying the precautionary principle. It does not need to wait until the existence and extent of the risks are clearly established. The Court said that the proper application of the precautionary principle requires:

a) the identification of the potentially negative consequences for health of the proposed addition of nutrients

b) a comprehensive assessment of the risk for health based on the most reliable scientific data available and the most recent results of international research

c) where data on the existence or extent of the alleged risk is insufficient, inconclusive or imprecise, ‘but the likelihood of real harm to public health persists should the risk materialise, the precautionary principle justifies the adoption of restrictive measures’ (paragraphs 53–54).

The burden of proving that a particular substance is harmful is on the Member State: it is not up to the importer to prove that it is safe. An example of a Member State failing to discharge this burden is C-420/01 Commission v Italy (Caffeine) [2003] ECR I-6445. The prohibition of sale of an energy drink with excess caffeine was a breach of Article 34 TFEU and could not be justified under Article 36 TFEU as it had not been shown that this was necessary for the protection of public health.

10.2.2.2.2

Cassis de dijon principle

If a rule is indistinctly applicable and if the following conditions are fulfilled then that measure fall outside the scope of Article 34 TFEU and are legal. Unlike the Article 36 TFEU grounds, mandatory requirements can only be used to justify indistinctly applicable rules: Commission v Ireland (souvenirs) below). The conditions are as follows:

a) The rule in question applies equally to domestic products

b) It is ‘proportionate’

c) The rule is necessary to protect an essential public interest

There is not any problem regarding first two conditions. However further discussion is required as to when the test of “public interest” which is also known as “Mendatory requirement” will be satisfied? It is necessary to keep in mind that this is not a close group. The list given by the court in Cassis was by way of example and has since been added to – and no doubt will continue to be added to as new issues of public concern emerge. Therefore it provides for a more flexible response than Article 36 TFEU. Here are some examples of the Court’s approach:

Consumer protection

Case 261/81 Walter Rau [1982] ECR 3961 (Belgian margarine). Belgian rules stated that margarine sold in Belgium must be packaged in cube-shaped containers. Belgium based its case on the mandatory requirement of consumer protection: that the packaging rule was to prevent confusion with butter. The result of the rule was to make imports of margarine from countries where margarine is normally packaged in tubs or rectangular blocks more difficult or impossible. The Court held that the rule could not be imposed on imported margarine because it was disproportionate – clear labelling would be enough to prevent confusion with butter.

An Italian rule that only pasta made from durum wheat could be sold in Italy was struck down in Case 407/85 Drei Glocken GmbH v USL Centro Sud [1988] ECR 4233. Italy argued that Italian consumers would assume that all pasta on sale was made with this traditional ingredient. The result was that imported German pasta could not be sold. The Court was not prepared to endorse such a paternalistic approach to the consumer and said that a clear label as to the type of wheat used would be enough.

Public health

The Court of Justice has ruled that as Article 36 TFEU provides for derogation on this ground, the Treaty Article should be used in preference to the ‘mandatory requirements’: C-1/90 and 176/90 APESA v DSSC (Aragonesa) [1991] ECR l-4151.

Protection of the environment

Case C-112/00 Schmidberger shows the interpretation of the environment. Here

Austria

had put in place a ban on lorries of over 7.5 tonnes transporting certain goods (such as waste, stone, timber) using the A 12 highway for a distance of 46 kilometres. The road is the main transit route between the south of Germany and Italy. The Court of Justice accepted that this was justified under the mandatory requirement of ‘protection of the environment’ but held that it was not proportionate. The Austrian authorities had declared that they wanted a shift from road to rail transport for such heavy goods but had not ensured that there was adequate and sufficient rail transport available or alternative means of transporting the goods by road routes. They had not considered whether there were other ways of reducing the air pollution caused by the traffic that were less restrictive of the free movement of goods. The transitional period of two months between the adoption of the ban and its implementation ‘was clearly insufficient reasonably to allow the operators concerned to adapt to the new circumstances’. The Austrian measures were therefore caught by Articles 34 and 35 TFEU and were justified but not proportionate.

Protection of national or regional socio-cultural characteristics

See Case 145/88 Torfaen BC v B & Q plc [1989] ECR 3851.

Plurality of the press

See Case 368/95 Familiapress v Heinrich Bauer Verlag [1997] ECR I-3689, [1997] 3 CMLR 1329.

The protection of fundamental rights

Case 112/00 Schmidberger v

Austria

[2003] ECR 1-5659.

10.2.3

Discriminatory taxation

Generally Article 110 TFEU prohibits discriminatory taxation which favours domestic production over imports from other Member States. For example, charging a higher rate of tax on French wine than on English wine would amount to discriminatory taxation and be prohibited by Article 110 TFEU.

Although Article 110 TFEU does not mention exports, the Court of Justice has held that it could apply if goods to be sold on the domestic market had to pay less tax than those for export, as this might deter exports, contrary to the Treaty aim which is to encourage free movement of goods: Case C-234/99 Nygard [2002] ECR I-3657.

The first paragraph, Article 110(1) TFEU prohibits any tax imposed on imported goods which is in excess of that imposed ‘directly or indirectly’ on ‘similar’ domestic products. The second paragraph, Article 110(2) TFEU, prohibits internal taxation which gives ‘indirect protection’ for domestic goods. The aim of the article is to achieve ‘fiscal neutrality’ between domestic and imported goods:

No Member State shall impose, directly or indirectly, on the products of other Member States any internal taxation of any kind in excess of that imposed directly or indirectly on similar domestic products.

Further, no Member State shall impose on the products of other Member States any internal taxation of such a nature as to afford indirect protection to other products.

It can sometimes be difficult to decide whether products are ‘similar’. For example, is wine similar to beer? After much controversy and lengthy litigation, the Court of Justice ruled, in Case 170/78 Commission v UK (wine and beer) [1980] ECR 417, [1983] CMLR 2265 that they were not. Different raw materials were used, different production methods and the products had different characteristics. If not ‘similar’ for the purposes of Article 110(1) TFEU, could wine

and beer be regarded as ‘competing’, for the purposes of Article 110(2) TFEU? The test the Court of Justice uses to decide whether products are competing is whether customers regard those products as ‘fulfilling the same consumer need’. At the time of this case, the British were not great wine drinkers and tax on wine was higher than on beer. Despite this, the Court said that consumer attitudes should not be frozen in time: with the greater availability of imported products as a direct result of the free movement of goods in the EC, customers could try new things – and should not be deterred by high taxes from doing so! So light wines at the cheaper end of the market were held to be ‘competing’ with beer.

In Case C-302/00 Commission v France (Tobacco) [2002] ECR I-2055, France was imposing a higher rate of tax on light tobacco cigarettes than on dark ones. The Court of Justice decided that light and dark tobacco products were similar, despite the fact that they tended to be consumed by different age groups, because they were made from the same basic raw material (although different types), had similar properties and fulfilled the same consumer need. The finding was reinforced by the fact that European Union legislation on excise duties treated both types of cigarettes as the same. France was required to equalise the tax.

Consequences of a breach of Article 110 TFEU

This depends on whether the breach is of Article 110(1) TFEU or 110(2) TFEU. In the case of similar products under Article 110(1) TFEU, the remedy is that Member States are required to ensure strict equivalence in the tax, or if there is a sliding scale which is difficult to apply to imports, then the imports must be placed at the lowest point on the scale so there can be no possibility of them paying more tax than the domestic equivalent product: Case 127/75 Bobie Getränkevertrieb v Hauptzollamt Aachen-Nord [1976] ECR 1079.

If the products are not similar, but are competing, as in the UK wine and beer case above, it is not necessary that the rates of tax be identical. Rather, the Member State must ensure that the rates are such that there is no ‘protective effect’ for the competing domestic product. In Case 356/85 Commission v

Belgium

[1987] ECR 3299, [1988] 3 CMLR 277 (beer and wine), the Commission’s action failed on this point. The products were competing, but the effect of the tax differential was so small at the point of sale that it was unlikely to have any impact on consumer choice and so would not ‘protect’ the domestic product (beer).

This is not enough to achieve a single market for goods, however. Take, for example, a light bulb manufactured in the UK. It may be perfectly possible to export this to Greece without payment of duty or other entry restrictions, but will it fit into a Greek light socket? If not, there is clearly not a single market for light bulbs in the EU. For this reason another integration is introduced.

10.3

Positive integration:

The second aspect of achieving a single market, therefore, involves a process called ‘harmonisation’ of national rules, technical standards, safety requirements and so on. This is sometimes referred to as ‘positive integration’ because it requires positive steps to introduce new European Union-wide rules and standards so that, provided a particular product complies with these, it can truly be sold and used anywhere in the EU.

Article 114 TFEU (ex Article 95 EC) provides the legal basis, allowing measures to be adopted ‘which have as their object the establishment and functioning of the internal market’. In the original Treaty, unanimity was needed for the adoption of harmonisation measures and, as this was hard to achieve, progress was slow. In this context the Court’s establishment of the principle of mutual recognition in Cassis was particularly important, requiring Member States to accept each other’s products even in the absence of harmonised standards. Cassis also triggered a ‘new approach’ to harmonisation measures. The old approach was to lay down very detailed and comprehensive rules for particular products which would then apply in a uniform way throughout the European Union. After Cassis, the Commission realised that a uniform approach was no longer necessary – Member States would accept products lawfully produced and marketed in other Member States, and European Union rules only needed to ensure protection of essential public interests. The process of harmonisation was given a further boost in the Single European Act 1986 which abolished the need for unanimity, replacing it with the cooperation procedure and qualified majority voting in all but the most sensitive fields (taxation, free movement of persons, employment rights). Following Maastricht, the co-decision procedure now applies.

Since 1987, large numbers of harmonisation measures have been adopted with the aim of ‘completing’ the single market. As we saw in Section 10.4.6 above, harmonisation measures facilitate the free movement of goods specifically by reducing the scope for Member States to impose their own rules on Article 36 TFEU (ex Article 30 EC) or Cassis grounds.

IMF head Strauss-Kahn charged over New York 'sex crime

2011-05-15T10:52:00.000-07:00

The head of the International Monetary Fund, Dominique Strauss-Kahn, has been charged by New York police over an alleged sex attack on a hotel maid.

Mr Strauss-Kahn, 62, was taken off an Air France plane at JFK airport just minutes before it left for Paris.

Police say he faces three charges, including attempted rape. His lawyers say he denies the claims.

The married former French finance minister is also considered a possible Socialist candidate for the presidency.

The BBC's Hugh Schofield, in Paris, says Mr Strauss-Kahn has been riding high in the polls and was seen as having a genuine chance of beating President Nicolas Sarkozy.

Martine Aubry, leader of France's Socialist Party, described news of his arrest as a "thunderbolt" which left her "astounded".

Mr Strauss-Kahn is expected to appear before a New York state court later on Sunday, Reuters reports.

He had been scheduled to meet German Chancellor Angela Merkel on Sunday, but that meeting has now been cancelled, reports say.

On Monday he had planned to attend a meeting of European Union finance ministers in Brussels on Monday to discuss the bailouts of Portugal and Greece.

Correspondents say his detention is likely to complicate ongoing efforts to stabilise the finances of struggling eurozone member states.

In a brief statement posted online on Sunday, an IMF spokeswoman acknowledged Mr Strauss-Kahn's arrest and said the organisation would not comment on the case.

"The IMF remains fully functioning and operational," she added.

'Locked in'

Dominique Strauss-Kahn's arrest unfolded in dramatic fashion as he was poised to fly to Europe.

A spokesman for New York's Port Authority said they detained Mr Strauss-Kahn at JFK airport at the request of the New York Police Department (NYPD).

NYPD spokesman Paul Browne said Mr Strauss-Kahn had been charged with a criminal sexual act, attempted rape and unlawful imprisonment relating to an incident involving a 32-year-old woman.

Mr Browne said the allegations had been made by a 32-year-old woman who worked at the hotel, which has been identified as the Sofitel near Times Square. His accommodation there was described by the New York Times as a luxury suite costing $3,000 per night (£1,900).

"We received a call that a chambermaid in a hotel in midtown Manhattan had been sexually assaulted by the occupant of a luxury suite at that hotel, and that that individual had fled," Mr Browne told the BBC.

"The maid described being forcibly attacked, locked in the room and sexually assaulted," he said.

Speaking to Reuters, Mr Browne gave more details on the allegations against Mr Strauss-Kahn.

"She told detectives he came out of the bathroom naked, ran down a hallway to the [suite] foyer where she was, pulled her into a bedroom and began to sexually assault her, according to her account."

"She pulled away from him and he dragged her down a hallway into the bathroom where he engaged in a criminal sexual act, according to her account to detectives. He tried to lock her into the hotel room."

Mr Strauss-Kahn then made his way to the airport but left his mobile phone and other items behind, Mr Brown said.

"It looked like he got out of there in a hurry."

By the time police established that the occupant of the room was Mr Strauss-Kahn, the IMF chief was on board an Air France plane at John F Kennedy airport, about to depart for Paris.

"Our detectives requested of the airport authorities that they stop the plane from leaving, went to the airport and took him into custody," Mr Browne said.

"If our officers had been 10 minutes later he would have been in the air and on their way to France."

The woman has been treated at hospital for minor injuries, said Mr Browne.

'Error of judgement'

Mr Strauss-Kahn ran for the French Socialist Party's presidential candidacy in 2006 but lost to Segolene Royal.

He was appointed managing director of the IMF the following year.

Mr Strauss-Kahn has won praise for his stewardship of the IMF, which he has guided through difficult times including the recent world financial crisis.

But in 2008 he was investigated by the IMF board over his relationship with a female member of his staff.

The board ruled his actions "reflected a serious error of judgment" but that the relationship had been consensual. He apologised to IMF staff and his wife, French TV personality Anne Sinclair.

Mr Strauss-Kahn has not yet announced whether he intends to run in the 2012 French presidential elections, but had widely been expected to do so.

Pirates of the Caribbean: On Stranger Tides (2011)

2011-05-15T10:45:00.000-07:00

Produced by Jerry Bruckheimer and directed by Rob Marshall, “Pirates of the Caribbean: On Stranger Tides” captures the fun, adventure and humor that ignited the hit franchise—this time in Disney Digital 3D™. Johnny Depp returns to his iconic role of Captain Jack Sparrow in an action-packed adventure. Crossing paths with the enigmatic Angelica (Penelope Cruz), he’s not sure if it’s love—or if she’s a ruthless con artist who’s using him to find the fabled Fountain of Youth. When she forces him aboard the “Queen Anne’s Revenge,” the ship of the legendary pirate Blackbeard (Ian McShane), Jack finds himself on an unexpected adventure in which he doesn’t know whom to fear more: Blackbeard or Angelica, with whom he shares a mysterious past. The international cast includes franchise vets Geoffrey Rush as the vengeful Captain Hector Barbossa and Kevin R. McNally as Captain Jack’s longtime comrade Joshamee Gibbs, plus Sam Claflin as a stalwart missionary and Astrid Berges-Frisbey as a mysterious mermaid.

Starring:

Manifesto of the Communist Party

2011-05-15T10:28:00.000-07:00

Manifesto of the Communist Party
Karl Marx and Frederick Engels

A spectre is haunting Europe — the spectre of communism. All the powers of old Europe

have entered into a holy alliance to exorcise this spectre: Pope and Tsar, Metternich and Guizot,

French Radicals and German police-spies.

Where is the party in opposition that has not been decried as communistic by its opponents

in power? Where is the opposition that has not hurled back the branding reproach of

communism, against the more advanced opposition parties, as well as against its reactionary

adversaries?

Two things result from this fact:

I. Communism is already acknowledged by all European powers to be itself a power.

II. It is high time that Communists should openly, in the face of the whole world, publish

their views, their aims, their tendencies, and meet this nursery tale of the Spectre of

Communism with a manifesto of the party itself.

To this end, Communists of various nationalities have assembled in London and sketched

the following manifesto, to be published in the English, French, German, Italian, Flemish and

Danish languages.

Do legal question have right answer?

2011-05-15T10:23:00.001-07:00

The statement identical to the theory if adjudication of Dworkin who pictures law as a gapless legal universe and here there is always a correct answer in every legal question. On the other hand professor HLA Hart took an opposite view that in hard case judges have to use discretion. As judge use discretion so that there is not any right answer.

According to Hart law comprises both primary and secondary rules. Dworkin identified that Hart made a big mistake to say that law is made up of rules only and he argued that apart form rules we can find principles. By rule Riggs v Palmer case can not be defined. It was held that the defendant was denied the inheritance due to the principle “no one should be permitted to benefit from his own wrong doing”. We can see here that the principle is the determining factor. If we apply only rule then the law will permit palmer to get inheritance. Here it may be argued that constructive interpretation which considers principle along with rule able to give right answer here.

On the other hand, one of the most important areas of Hart’s theory is his “open texture theory”. He put forward the concept of “open texture” as an argument for why rules should be applied in a way which requires judicial discretion. By “open texture”, Hart means that in some situations judges need to exercise their discretion when a case is not governed by any existing rule. This is due to the indeterminacy of the application of rules. Hart giving three main reasons:

Firstly, Language is indeterminate. Legal rules are composed of words and they aim to communicate the required standards of behavior. Nevertheless, words are always problematic and imprecise. According to Hart, one or more words in a legal rule have a core of plain meaning. Here he gives us an example of “No vehicle is allowed in the park”. In plain case, a car or coach is not much problematic as it is well accepted that these are vehicle but problem arise regarding skateboard. Hart then said that there are reasons both for and against the use of a world and the person called upon to answer the question need to consider whether the present case resemblance the plain cases “sufficiently” in “relevant” respects. Therefore, the discretion left to him by language is very wide. But at the same time, there are restraints when he exercises his discretion. He maintains that we can never exclude uncertainty form language because we are men, not god.

Secondly, very general standards are used in the rules. Very often we find words like fairness, reasonableness or justice in the rules which impose very general standards to all different kinds of situations. Therefore, uncertainty would easily arise because of the unclear and imprecise standards.

Thirdly, there is indeterminacy in the common law system of precedent. Hart pointed out that there is no clear rule governing the selection of precedents and also the process of extracting holdings. Finally, the judges may either narrow or widen the rules extracted form the precedents.

Dworkin is not satisfied with this model. The reasons are: discretion is not free-standing but part if a process. Discretion, like the hole in the doughnut, does not exercise except as an area left open by a surrounding belt of restriction. Discretion is not outside the law but internal to the law. If discretion is uses then judicial law making will come into existence and it will be fraud upon litigant because at the time of committing of the offence it was not law.

Regarding the question of judicial discretion, Dworkin, outlines two type of discretion. One of them is strong and another is weak. Strong discretion does not exist for judge. In weak discretion there is no gap in law and it is a part of judicial role. The strong discretion will not exist if the judge applies the theory of constructive interpretation or law as integrity. It means that if every case there is a right answer and it is not necessary to use discretion by judges.

But problem arise about right thesis that it can not demonstrated that there is only one right answer to a question. Supposing two judges are to decide whether Elmer is entitled to inherit his grandfather’s property, they may answer this question differently from each other and yet claim that each answer is the right answer. How do we demonstrate that there is only one right answer to a problem? Dworkin’s answer is that it is insufficient to say that there can be no right answer just because they cannot be proved. Here he introduces the Hercules judge who has superhuman power that most judges lack. He can find out correct answer in all hard cases by applying constructive interpretation which includes analyzing all the applicable rules and principles.

Moreover, Geenawalt have argues that the “denial of discretion is wrong and is inconstant with out ordinary understanding of judicial responsibilities for opinion. To suggest that judges have discretion is not to imply that they have license to do what they will. The institution of judging offers the judge choice only within the constraints of judgment”.

Greenawalt argues that there are also examples which contradict the right theories. For example, in a case of nuisance, the judge may consider the effect of his discretion on the community before accepting the right of the claimant. Such cases indicate that judges do decide on policies while determining the rights of the individual. Dworkin replies that this is not a case of policy but a case where the judge compromises competing rights.

Finally, I want to conclude that, there is a right answer of every legal dispute though it is not discovered in all cases. By constructive interpretation it is the duty upon the judges to find out that right answer.

Is the statute right always?

2010-11-05T08:34:00.000-07:00

Incietment is not a very much familiar chapter for us. So when i was reading this chapter i find there was a new Act coming .After effecting the satute regarding incietment (New Serious Crime Act 2007 ), i find the common law was much better regarding this topic.

To know about this we should look at :

n Previous common law.

n New Serious Crime Act 2007 part-2 sec 44-49.

n Problem regarding the new Act

Previous Common Law:

n In previous common law there was a draft Criminal Code which does not describe the actus reus & mens rea

n It is describe by case laws.

n And as there was a developing trend , and it was sufficient to describe incitement

Some Important cases:

Actus Reus:

Marlow Case [1997] Crim LR 897

Giannetto Case [1996] Crim.L.R. 722 :

Race Relation Board v Appline [1973] QB 815

Mens Rea:

R v Curr (Patrick Vincent) [1968] 2 Q.B. 944; [1967] 2 W.L.R. 595

R. v Shaw [1994] Crim. L.R. 365

R. v C (David Alexander) [2005] EWCA Crim 2827; [2006] 1 Cr. App. R. 20; [2006] Crim. L.R. 345

NEW ACT:

n Sec-44 :Intentionally encouraging or assisting an offence

n Sec-45: Encouraging or assisting an offence believing it will be committed

A person commits an offence .

n Sec-46: encouraging or assisting offences believing one or more will be committed

n Sec-47: Proving an offence under this Part

PROBLEMS with the New Act:

Sec-44:

n It’s only extends liability beyond the old incitement offence to include doing an act capable of assisting, even if not actually encouraging, where the full offence is not committed.

n For example-D will be liable under s.44 if he provided an imitation pistol to P with the purpose thereby to encourage or to assist the latter to carry out a bank robbery and the requirements of s.47(5) are satisfied .The fact that D did not intend to participate directly in the commission of the anticipated offence is immaterial. It is also immaterial whether the anticipated offence was committed, or not .

Sec-45:

n It has boarded the mens rea, regarding this offence.

n As an example of the operation of s.45, consider D who supplies a gun to P, believing that P will use it to commit a murder. Under s.45 D can now be convicted and liable to life imprisonment the instant he supplies the gun, provided he has the specified mens rea .

Sec-46:

n This is the broadest, most complex and most controversial of the new offences. It is introduced to deal with the problem encountered in secondary liability .

n For example- D drives P to a public house, being unsure whether D is going to commit robbery, murder, explosives offences or offences against the person . under s.46, D need only do acts capable of assisting or encouraging; they need not assist or encourage in fact. Secondly, P need not perform any act or commit any offence; D's liability is inchoate, not dependent on P and is complete as soon as D has performed his act. Thirdly, D's mens rea under s.46 must be merely a “ belief” that one of the crimes will be committed.

Sec-47:

n What does s.47(8)(c) do? We should begin by saying what it does not do. As argued by Rudi Fortson in his commentary on the Act, it does not create an offence of attempting to encourage or assist an offence.Although in ss.44 and 45 “ the doing of an act” refers to the conduct of the encourager or assister, in section 47 it refers exclusively to the conduct of the perpetrator; and s.47(8) is relevant only to the interpretation of this section.Its effect therefore is limited to encouraging or assisting an attempt to commit an offence.

For more Details:

Cases:

n Marlow, [1997] Crim LR 897

n Giannetto [1996] Crim.L.R. 722

n Race Relation Board v Appline, [1973] QB 815

n R v Curr (Patrick Vincent) , [1968] 2 Q.B. 944; [1967] 2 W.L.R. 595

n R. v Shaw, [1994] Crim. L.R. 365

n R. v C (David Alexander), [2005] EWCA Crim 2827; [2006] 1 Cr. App. R. 20; [2006] Crim. L.R. 345

Articles:

Case Comment , Incitement , Criminal Law Review 1997, Dec,page 897-898

Case Comment ,Incitement to incite - common law offence ,Apr , Criminal Law Review 1986. page 245-248

Case Comment ,The mens rea of incitement, Alan Reed , Criminal Lawyer 2006, 162, page 1-3

Encouraging or assisting an attempt ,David Ibbetson, Archbold News2009 ,3,page 8-9 :

Serious Crime Act 2007: the Part 2 offences ,David Ormerod and Rudi Fortson , Criminal Law Review 2009, 6, page 389-414:

Encouraging or assisting crime , L.H. Leigh , Archbold News 2008, 1,page 6-9:

Encouraging and assisting crime: legislate in haste, repent at leisure, John Spencer and Graham Virgo , Archbold News 2008 , 9 ,page 7-9

Is Islamic Law Unfair for 21th Century?

2010-11-04T06:40:00.000-07:00

An Iranian women was to be hanged yesterday(3 november,2010) for adultery. It has been stopped now. Her punishment of stoning sentence was suspended earlier this year after prominent political and religious figures called it medieval, barbaric and brutal. The government said they really care about the Human Rights, But International organizations still putting pressure on them. Since 1979 Islamic Revolution Islamic law was in force in Iran.

Now, many one can think because of this Islamic law some curtail punishment like death to stoning, amputation of hand ,lashes are still existing. They are really wrong. Because to prove the offences standard of proof is very high.. As an Example: To prove adultery 4 eye witnesses are needed. And they need to be present on the time of punishment of death to stoning. If one of them are absent punishment will not occur.

So, the country which are maintaining the Islamic law regulation should not be forced .Because The punishment which is set by Quran is Perfect.(Hadd punishment).The other type of punishment (Tajir Punishment) can be asked question.

About Commercial Contract

2010-11-03T08:04:00.000-07:00

Defination & Types:
A commercial contract is a type of contract that defines the terms of a commercial transaction. There are several types of commercial contracts.

1. Fixed Price Contracts:

Firm fixed price contract, or FFP contract, establishes the cost of a service before the service is rendered, and it does not change if the service costs more than anticipated. A fixed price contract gives the contractor a maximum price and a target price

2.Time and Materials Contracts:

A time and materials contract determines the cost of services based on fixed wages and materials costs. With this type of contract, laborers are given specific hourly pay rates, and materials are paid for based on their cost with no contractor fee.

If Parties Fail to Perform:

If a party in a contract fails to live up to their part of the contract, the justice system steps in to fix the problem. Generally, a court either enforces the contract or asks the offending party to compensate for harm done.

Remembering BDR Massacre in Bangladesh

2010-11-03T07:04:00.000-07:00

There was a BDR Massacre on February 2009 in Bangladesh. Around 74 Military army was killed at that time.There was a "Gerenal pardon "for all the BDR by the Prime Minister. But Now they are under a trail.Almost each and every BDR haveing punishment's.
As a law student i don't think it is fair because people who was not related with the conflict , are also under the trail. which is a question of human rights. Befor the trail Begain there was a conflict that under which law the trail should go on. So in totaly i think we should look at thae facts and decied wheather goverment is going on right track to punish them.

Related Link:
http://bangladeshwatchdog.blogspot.com/2009/03/bdr-massacre-aftermath-and-historical.html
http://en.wikipedia.org/wiki/2009_Bangladesh_Rifles_revolt
http://www.e-bangladesh.org/2009/02/28/the-bdr-massacare/
http://www.heval.org/legerin/bdr
http://www.demotix.com/news/massacre-bdr-dark-episode-bangladesh-history

Work Shop Presentation

2010-11-03T06:44:00.000-07:00

Friends!
I have upload my presentation on Child Labour. You can have a look.
Thank You.

Web Address:
http://www.slideshare.net/FalguniMoyeed/work-shop-sild