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Family Courts Tyrannically Deny Fit Fathers Their Constitutional Right to Parent Their Children

Family courts routinely deny one fit parent – overwhelming the father- his parental right to raise his child. They tyrannically allege a right to deny father’s fundamental rights since they do so for ‘the best interest of the child’.

Such family court claims are tyrannical and directly conflict with constitutional rights and protections – as this article shows.

Fundamental or ‘Constitutional’ rights are enumerated in the Bill of Rights, the further Amendments, and rights raised to that level by Supreme Court Case law. Supreme Court case law overrides all lower jurisdictional laws including family courts procedures.

The Fourteenth Amendment prohibits the state from depriving any person of “life, liberty, or property (i.e. any fundamental right), without due process of law.” Due Process Clause “guarantees more than [a] fair process.”Washington v.Glucksberg, 521 U.S. 702, 719 (1997). It includes a substantive component to the process that “provides heightened protection against government interference with certain fundamental rights and liberty interests.” Id., at 720; see also Reno v. Flores, 507 U.S. 292, 301302 (1993).

The Supreme Court consistently upholds parental right as a fundamental constitutional right. And that’s the right to determine what the best interest of the child shall be.

The Supreme Court asserted that the ‘liberty’ protected by the Due Process Clause includes the right of parents to “establish a home and bring up children” and “to control the education of their own.” Meyer v. Nebraska, 262 U.S. 390, 399, 401 (1923). So parenting includes both legal and physical custody of your children.

To deny a parental right requires constitutional due process that proves he’s either unfit or a clear danger to his children – proven with ‘clear and convincing’ evidence. As such, Santosky v. Kramer 455 U.S. 745 (1982) emphasized to restrict a fundamental right of a parent to any extent, requires a showing of clear and convincing evidence that serious harm will come to the child.

Family courts ignore all constitutional due process when they daily deny a fit father his right to physical and legal custody of his child – a right that every other fit parent has.

Family Court claims to determining ‘best interests of children’ over fit fathers’ rights are illegal in a presumably free republic. Only if there are no fit parents can the court invoke the ‘best interest of the child’ doctrine to assign custody.

In Parham v. J.R. et al 442 U.S. 584 (1979), the Supreme Court declared the ‘best interest of the child’ resides in the fit parent – not in the state: “Our constitutional system long ago rejected any notion that a child is a “the mere creature of the State” and, on the contrary, asserted that parents generally “have the right, coupled with the high duty, to recognize and prepare [their children] for additional obligations.”

In the 1978 case of Quillon v Walcott, the Supreme Court ruled: “If a state were to attempt to force the breakup of a natural family, over the objection of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children’s best interest,” the Due Process Clause would clearly be violated.

In 2000, the United States Supreme Court ruled in Troxel v. Granville 530 U.S. 2000: “[S]o long as a parent adequately cares for his or her children (i.e. is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.”

Under divorce and paternity actions, the ‘equal protection clause’ of the 14th Amendment, requires that one fit parent must necessarily retain all of his fundamental rights to the extent that the other does. But two disputing parents can’t both exercise a few decisions – such as where a child goes to school simultaneously – but these are few.

Now the level of scrutiny required for a family court to infringe upon fundamental rights of either parent is “strict scrutiny”, which requires the court to show that the infringement serves a “compelling state interest” and that there is no constitutionally less offensive way for the state to satisfy this compelling interest.

The constitutionally least offensive way – by far – is an equal partition of time parenting their child. So, during one’s parenting time, that parent can control all decisions about the child which parenting implies, i.e. education, religion, medical, etc, as well as the typical day to day decisions.

The family courts deny a father’s fundamental rights in order to extort money from him and support a billion dollar industry based on such denials. They provably work to the ‘worst interests of the children’

Shane Flait gives you workable strategies to accomplish your goals in financial, legal, tax, retirement and protection issues. .
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Posted on January 24, 2011 by , Reply

Constitutional Reforms Is Ready To Change Procedure For Judges? Appointment In Pakistan

The Parliamentary Committee on Constitutional Reforms is all set to recommend a new procedure for the appointment of judges of the superior judiciary in line with the Charter of Democracy (CoD) when it meets next week.

Sources in the committee said that the present constitutional procedure for the appointment of judges in high courts and the Supreme Court will be replaced by a better system, which is being practised in some developed countries, including the United States.

Interestingly, the judges’ appointment system is being reviewed by the parliamentary committee at a time when the country has just witnessed a serious controversy over the judges appointment with the executive trying to over-step its limits to have its choice judges in the superior judiciary.

The proposed system as is reflected in the CoD would involve the judiciary, the executive and the legislature to appoint judges in the superior judiciary in a transparent manner, ensuring that no individual has arbitrary powers in this regard.

Although the committee would give final shape to these recommendations, a source said that draft recommendations prepared by Senator Raza Rabbani, who is also head of the constitutional reform committee, in line with the CoD in 2008 is the most serious work done so far on the issue. The source said that these draft recommendations suggest that the chief justice of Pakistan would be appointed by the president after consultation with the commission to be constituted under the Constitution while judges of the Supreme Court, high courts and the Federal Shariat Court would be appointed by the president in consultation with the chief justice and the commission. Consultation with the commission shall be binding on the president.

The commission, as referred above, would be called the Judicial Commission of Pakistan and would consist of the chief justice (chairman), two next most senior judges of the SC, four chief justices of the high courts, a member of the Pakistan Bar Council, the president of the Supreme Court Bar Association in matter related to the SC, four president of the high court bar associations at the principal seats of the high courts in matters related to their respective high court, a MNA nominated by the prime minister, a MNA nominated by the opposition leader and four members of the Senate (one from each province to be nominated by the chairman Senate in consultation with the leader of the house and the leader of the opposition).

The commission shall forward a panel of three names in each vacancy (of a judge) to the prime minister, who shall forward one name to the joint parliamentary committee for confirmation of the nomination through a transparent public hearing.

The joint parliamentary committee shall comprise of 50 per cent members from the treasury benches and the remaining 50 per cent from the opposition parties based on their strength in parliament, to be nominated by respective parliamentary leaders.

After the appointment of the judges and their taking oath under the Constitution, taking of another oath subsequently (for example PCO) will automatically terminate the incumbent from the office of the chief justice or any other judge for such office as the case may be.

No change in the age of the Supreme Court or the high courts is expected. However, age for the appointment of high court judge would possibly be recommended to reduce from 45 to 40.

For the appointment of the acting chief justice, the senior most judge would be appointed as such. The ad hoc judges of the Supreme Court and additional judges of the high court would be appointed for a period not more than one year. The president’s power to transfer a high court judge from one high court to the other is also likely to be deleted.

The commission besides being involved in the appointment of judges, would also recommended to inquire into the conduct of a judge: a) If upon any matter inquired into by the commission there is a difference of opinion amongst its members, the opinion of the majority shall prevail and the report of the commission to the president would be expressed in terms of the view of the majority. b) If, on information received from any source, the chairman of the commission may or on the requisition of not less than one-fourth of the total membership of the commission, the chairman, shall direct the Inquiry Committee of the Commission to enquire into the capacity and conduct of a judge of the Supreme Court of high court as to whether he may be incapable of properly performing the duties of his office by reason of physical or mental incapacity or may have been guilty of misconduct.

On receipt of the report of inquiry committee the commission would consider the matter and make appropriate recommendations to the president. On receipt of the recommendation from the Commission to the effect that the Judge is incapable of performing the duties of his office or has been guilty of misconduct the President shall remove the judge from the office. A judge of the Supreme Court and high court shall not be removed from the office except as provided under this Article.

The commission shall issue a code of conduct to be observed by the Judges of the Supreme Court and high courts. Although the CoD also reflects on the setting up of a constitutional court, this proposal is not expected to get through the parliamentary committee owing to the changed situation following the restoration of the judiciary and because of the fact that the system of constitutional court is not practiced by most of the countries including the most developed nations.

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In the early eighties Michael Badnarik started his career as a computer programmer at an Illinois nuclear power plant. For the past twenty years he has continued this professional course, but during this time he became interested and frustrated with politics. As a result, in 1983 Badnarik began studying the IRS and then the constitution. He had since condensed his 18 years of research into a short eight hour course that he would teach in a lecture format. It included some of the fundamentals on our rights and the foundations of our republic. A video recording of one of the classes has been made and you can watch it here..

Posted on January 23, 2011 by , Reply

The Family Court Abridges Constitutional Rights and Justice

Because our family courts are not setup to protect the rights of litigants but a so-called ‘higher good’, it’s ripe for distributing injustice and persecution – mostly to fathers and their children. This article explains why.

Thomas Jefferson stated that trial by such a jury is the only anchor yet known to man to hold the state to the principles of the constitution so as not to leave the protection of the individual solely up to the government or judicial elites.

It’s through the jury that ‘the people’ participate in the judicial process and rein in unconstitutional or unreasonable laws and judgments of the state. Without the protection of a jury trial, tyranny will surely reign.

*Our most fundamental rights are in jeopardy in family court for doing no wrong:

At stake are your right to parent your child, to control and choose your income and profession, your right to maintain your professional and driver’s licenses, your right to have or maintain your passport and travel as you see fit. These rights are guaranteed by the constitution.

*What about the ‘best interest of the child’ – isn’t that ‘a greater good’?

Greater goods are part of dictatorships and tyrannies. The greatest goods of republics are peoples’ constitutional rights which includes the protection of ‘due process’. Supreme Court case laws states that the ‘best interest of the child’ resides in a ‘fit’ parent – not the state.

*How are fundamental rights at stake?

Because if the family court judge assigns you to be the noncustodial parent, you lose your parenting rights to your children (i.e. to support them directly, live with them, and direct their lives) and then you’re forced by the court to pay the mother whatever the judge says – amounts that will impoverish most fathers. If you don’t pay regularly and pay it all, you’ll go to jail without a trial.

*What do you have to do wrong to be assigned the noncustodial status?

Nothing! Fit parents – overwhelmingly fathers – have their constitutional rights denied by judges assigning them as noncustodial parents.

The judge – as representative of the state – invokes his ‘illegal’ right to take away constitutional rights of fit fathers for the ‘best interests’ of the children. Best interest determinations are only to be invoked when there are no fit parents.

*The family court setup prevents protection of father’s constitutional rights:

The family court doesn’t allow a trial with a jury. It only permits ‘bench’ trial which means that the judge is both judge and jury for you. So you’re denied the protection of the people from the legal elites and special interest groups that feed off the injustice that the family courts produce.

*Why doesn’t the family court protect a father’s constitutional rights?

Because when you eliminate the natural protections – like a jury – you leave judicial elites in power. More power means a more corruptible system. That’s human nature.

The family court and its affiliates have seized on a ‘greater good’ excuse such as ‘best interest of the children’ and ‘safety of women’ to forego constitutional law and protections for fathers.

*Special interest groups influence on the family court setup and actions:

A host of legal and court-assisting persons and organizations have a strong financial interest in keeping the family court set-up as it is. They together can be called the Divorce and Domestic Violence Industry (the DDVI).

The DDVI is made up of the judges, lawyers, GALs, mothers/women, probation/family service officers, psychiatrists, sociologists, visitation centers, battered women’s shelters, the abuse industry, women’s advocates, the state’s department of revenue (DOR), the federal government’s child support enforcement division…and more! Let’s consider where some of these entities find their financial interest in the family court setup.

The DDVI have interest in:

* Setting larger child support orders.

Both the court and DOR/CSE(child support enforcement (agency)) receive federal incentive payments. Court-DOR (Department of Revenue) agreements send some DOR money to the Court systems. County jails make money by more inmates – who are court-created deadbeat dads.

* Making abuse allegations more easily allowed.

Visitation centers and lawyers benefit by this as well as do Battered Women shelters and Batterers Groups. Incidentally, battering is relatively rare; accusations are very common.

* Aggravating parental exchanges and unequal allotment of rights – as the court imposes.

This makes lots of money and job security for lawyers, family services officers, psychologists, GALS, parenting class coordinators, women’s groups, and affiliated VAWA organizations who receive some Billion over 5 years.

The DDVI, taken together, is a powerful lobby and participant in the rule-making process. They’re not about to favor any change – however fair – that will undermine their positions, benefits, or money and power they’ve accumulated.

Shane Flait gives you the capability you need to fight for your rights.
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Posted on January 17, 2011 by , Reply

Constitutional Validity of NArco- Analysis test

Article

Constitutional Validity of Narco-Analysis Test

Prepared by:  Urja. B. Dave

Nirma University of Science and Technology

Institute of Law

Ahmedabad

Constitutional validity of Narco Analysis Test

Introduction:

Development of new tool of investigation has led to the emergence of scientific tools of interrogation and criminal investigation like NARCO ANASLYSIS TEST. However, its application must be assessed objectively so that it can be replaced by existing conventional methods of interrogation. Narco analysis test can be effective as an alternative to barbaric third degree methods. Care should be taken that it is not misused or abused by investigation officer and should be correlated with corroborative evidence. Such test is a result of advancement not only in Forensic science but also in Science and Technology. It often Raises doubts regarding basic human rights and about their reliability.

Legal questions are raised bout validity with some of them holding in the light of legal Principles and Perceptive and some others rejecting it as a violence of constitutional Provisions.

Historical perspective:

In 1922, Robert House, an obstetrician from Texas, experiment the use of narco analysis in the interrogation of suspected criminals. He arranged to interrogate two Prisoners in the Dallas country jail by using Scopolamine1, whose guilt seemed clearly confirmed. Both the prisoners denied the crimes for which they have been detained and upon trial were [1]found not guilty. After the successful experimentation, House concluded that an accused under the influence of scopolamine could not lie.

The Narco analysis during past was used only by psychiatrists to find out the psychological reality. Nevertheless, the application of the Technique was adopted frequently in the criminal investigation from early 1950s.

Narco analysis was rather unheard in India until recent past. It was first used in 2002 in the Godhra Carnage Probe. Narco analysis test once again is in the limelight in the contest of Aarushi Murder case. It was also used in Nithari village serial killings case, Telgi Stamp paper Scam, Arun Bhatt Kidnapping case in Gujarat, and others.

What is Narco Analysis Test?

The term Narco-Analysis is derived from the Greek word “narke” meaning anesthesia and is used to describe a diagnostic and psychotherapeutic technique that uses psychotropic drugs, particularly barbiturates, which acts as Central Nervous System depressants, and by virtue of this, they produce a wide spectrum of effects from mild sedation to anesthesia.

Narco-Analysis tries to recall repressed materials. The therapist gives post-hypnotic suggestion to patient. Repressed material is recalled during influence of the drug and repressed conflict of the patient is located and cured.

Procedure of Narco-analysis test:

The narco analysis test is conducted by mixing 3 grams of sodium penthol or sodium amytal dissolved in 3000ml of distilled water. Narco test refers to the practice of administering barbiturates or certain other chemical substances, most often penthol sodium, to lower a subject’s inhibition, in the hope that the subject will more freely share information, a person is able to lie by using his imagination. Experts inject a subject with hypnotics like sodium penthol or sodium amytal under controlled circumstances of the laboratory. The dose is dependent on the person’s sex, age, health and physical condition. The subject, which is put in a state of Hypnotism, is not in a position to speak up on his own but can answer specific but simple questions after giving some suggestion. The answers are believed to be spontaneous as a semi-conscious person is unable to manipulate the answers. Wrong dose can send the subject into coma or even result in death.

The subject is then interrogated by the investigating agencies in the presence of doctors. The revelations made during this stage are recorded both in video and audio cassettes. The report prepared by the experts is what is used in the process of collecting evidence.

The procedure is conducted in government hospital after a court order is passed instructing the doctors or hospital authorities to conduct the test. Personal consent of the subject is also required.

It is established that in of the total number of the individuals subjected for narco analysis are found to be innocent. Therefore this technique not only helps to identify the real perpetrator of crime, conspiracies, displacement of evidentiary items etc. but also to identify the innocents within a short period.

Pros and Cons of Narco Analysis Test:

According to police Narco analysis is a scientific tool of investigation, it helps a lot in crime prevention and detection. It is definitely considered better than third degree treatment of the police to extract truth from an accused.

It is not possible to determine the correct dose of the drug, which varies according to the physical constitution of the subject, but also his mental attitude and will power. A wrong dose can send the subject into coma or even cause death, thus resulting in legal complication. The person to administer them has to be highly qualified physician.

The test can be misused by suggestive questioning by the investigating agencies. Psychiatrists hold that some individuals are suggestible even while fully conscious, meaning they can be made to believe events that never actually happened. Therefore, while patients under narco analysis may find it difficult to lie consciously, they can certainly say things that are on the surface on their mind. The patient may say things that he wished were true and not that are necessarily true.

Constitutional Validity:

Some legal experts consider that narco analysis test during the investigation is a blatant violation of Art. 20(3) of our constitution. Art. 20(3) says, “No person accused of any offence shall be compelled to be witness against himself”

The conditions for the applicability of Art. 20(3) are:

There must be a person accused of any offence. There must be compulsion against such person. Such compulsion must be to be witness and Such person must be compelled to be a witness against himself, in other words to incriminate himself by his evidence.

All these four ingredients must be necessarily co exist before the protection of Art. 20(3) can be claimed. If any of these ingredients is missing Art. 20(3) cannot be invoked.

The controversy regarding test is against the fundamental right is due to the modus operandi of the test. In the test, the drug is administered which suppress the reasoning power without affecting the memory and speech.

The test also goes against the maxim “Nomo tenetur se Ipsum Accusare” which means no man not even the accused himself can be compelled to answer any question, which may tend to prove him guilty of a crime of which he has been accused. The previously mentioned principle of the maxim is also incorporated in the section 161(2) of the code of criminal procedure.

Sec. 161(2) of Cr. P. C says that such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than the questions the answer to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.

The most important case in this regard is that of Nandini Satpathi v. P. L. Dani (AIR 1978 SC 1025).

Facts: Nandini Satpathi was a former chief minister of Orissa, against whom a case was registered under the Prevention of Corruption Act. She was asked to appear before the Dy. S. P for questioning. The police wanted to interrogate her by giving her a string of questions in writing. She refused to answer the questions because it was a violation of her fundamental right against the self-incrimination.

In the previously mentioned case Krishna Iyer, J. has widened the scope of the protection. The issue before the court was whether a potential candidate for accused can avail of the privilege. It was held that the right extends to witness & the accused alike. The expression ‘accused of any offence’ must mean formally accused in presenti not in futuro. It applies at every stage at which furnishing of information & collection of material takes place.

Thus, Right to Silence has been granted to the accused by virtue of the pronouncement in the case of Nandini Satpathi. No one can forcibly extract statements from the accused, who has right to remain silent during the course of interrogation (investigation). By administration of narco analysis test, forcible intrusion into one’s mind is being restored to, thereby nullifying the validity & legitimacy of the Right to Silence.

It is an accepted legal position that the protection of Art. 20(3) do not extend to compulsory production of material or compulsion to give specimen signatures, finger impression or blood samples. However, Narco analysis is still different & clearly distinguishable from giving specimen signatures or blood samples or even taking a polygraph test because except in case of a narco analysis, the accused retains his control over what he is doing or saying & at no point of time can he be compelled to disclose any such information that he wants to keep to himself. Giving blood sample or specimen signatures is much like allowing the investigation officer to search the residence of the accused & go through his belongings in search of evidence. That is very much permissible.

The legal & constitutional infirmity of narco-analysis lies in the fact that it takes away one’s control on one’s mind, which brings it in category of mental torture & torture of all kind fall foul with Art.21.

Now the question may arise that the so-called ‘consent form’ sign by the accused supplies the requirement of the ‘voluntary discloser’. It is incorrect as in the court mandated narco analysis, the ‘consent form’ has absolutely no relevance because the compliance of a judicial order passed by a competent authority to compel obedience. Therefore, if a competent court orders narco analysis the order has to comply with, unless it is challenged by the superior court. The accused has no choice against the court order. Therefore, there is ‘compulsion’, there is ‘testimony’, and it is surely ‘testimony by compulsion’. However, compulsion per se is not illegal. Therefore, the only one question is whether the compulsion is legally sound.

The Madras High Court in Dinesh Dalmia v. State of Madras held that subjecting an accused to undergo such scientific tests would not amount to breaking his silence by force. He may be taken to the laboratory for such test against is quite voluntary. Therefore, such process does not amount to compelling a witness to give evidence against him. When the human rights activist adopt third degree methods to extract information from the accused, it is high time the investigating agency took recourse to scientific methods of investigation.

The Bombay High Court in Abdul Karim Telgi case held that “certain physical tests involving minimal bodily harm” like narco analysis test and brain mapping does not violate Art. 20(3) and did not compromise the constitutional protection against self-incrimination. The important point is that the confession or statement made during narco analysis is not admissible as evidence in a court of law, and that is the reason why the protection against self-incrimination under Art. 20(3) is not breached. In the above-mentioned case Bombay High Court seems to have held that nacro analysis is permissible because it involves “minimal bodily harm”, which implies that all such methods of extracting information that inflict minimal bodily harm are legally permissible.

However, the final judicial pronouncement on the constitutional status of narco analysis is yet to come. In 2006, Supreme Court of India stayed the order of a metropolitan judge to conduct nacro analysis on K. Venkateswara Rao in the Krushi cooperative Urban Bank case. The issue required to be settled by a court decision because Mr. Rao refused to sign the consent form & hence the Forensic Laboratory at Gandhinagar declined to conduct a narco analysis test without a duly filled and signed consent form. The Supreme Court verdict is still awaited.

Conclusion:

Law is a living process, which changes according to the changes in society, science, and ethics and so on. Law is not static but it is dynamic. The legal system should imbibe developments and advances that take place in science as long as they do not violate fundamental legal principles and are for the good of the society. The criminal justice system should be based on just and equitable principles. The issue of using narco analysis test as a tool of investigation in India has been widely debated. The extent to which it is accepted in our legal system and our society is something, which will be cleared in the near future. In a situation where narco analysis is gaining judicial acceptances and supports despite being an “unreliable and doubtful” science, we have to seriously rethink about its legal and constitutional validity from human rights perspective.

The criminal justice system is based on the principle that “let hundred guilty go unpunished rather than an innocent is punished”. To uphold this principle narco analysis test has to be made compulsory in cases where the interest of public is involved. For this purpose, it is necessary to amend or to enact new laws for that purpose so that justice may be delivered in a fair manner.

[1] Scopolamine is also popularly known as tooth serum.

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Posted on January 3, 2011 by , Reply

Q&A: Which do you feel is more important – national security against terrorism or protecting Constitutional rights?

Question by C.Diva: Which do you feel is more important – national security against terrorism or protecting Constitutional rights?
Which is more important to you (in your own poinion) – national security against terrorism or protecting Constitutional rights? Why?

Best answer:

Answer by Warren S
National security. With it you have some rights. Without it you can lose the biggest right that you have and that is your life itself.

Add your own answer in the comments!

Posted on December 28, 2010 by , 2 comments

The Constitutional Walking Tour Offers a Variety of Educational Resources to Commemorate Constitution Day on September 17; Teachers are Invited to Have Their Students Enter the 2nd Annual American Freedom Essay Contest to Win a Free Field Trip of Historic Philadelphia for Their Entire Class

Philadelphia, Pennsylvania (PRWEB) September 7, 2008

The Constitutional Walking Tour of Philadelphia today announced its 2008 Constitution Day Resources to help celebrate Constitution Day. September 17th is designated as Constitution Day because on that date in 1787, the delegates of the Constitutional Convention in Philadelphia signed the United States Constitution at Independence Hall. The Constitutional Walking Tour is celebrating Constitution Day throughout the entire month of September, and teachers are encouraged to utilize The Constitutional’s many free educational resources available at: www.TheConstitutional.com/1787 .

2nd Annual American Freedom Essay Contest

In honor of Constitution Day, The Constitutional Walking Tour wants students to give their views about American freedom. The American Freedom Essay Contest challenges educators to have their students to write a 100-300 word essay on the importance of freedom in their lives. Entries will be judged in Elementary School, Middle School and High School categories with the winner in each category earning a free field trip of Historic Philadelphia with The Constitutional Walking Tour for his/her class. The deadline for entries is October 15, 2008. For more details, educators are encouraged to visit www.TheConstitutional.com/schools .

Background on Constitution Day

In late 2004, Senator Robert Byrd, one of the United States Senate’s leading Constitutional scholars, introduced legislation that President George W. Bush signed into law on December 8, 2004 requiring that all schools, colleges and Federal agencies receiving Federal funds offer annual educational programming involving the Constitution of the United States on or around Constitution Day, September 17th.

“Walking in the Founding Fathers’ footsteps with The Constitutional Walking Tour of Philadelphia is a great way to commemorate Constitution Day. Along the tour, visitors see many important sites related to the U.S. Constitution including The First Bank of the United States which sparked the first great Constitutional debate between strict and loose constructionalists,” stated Jonathan Bari, Chairman of The Constitutional Walking Tour. “Whether you want to visit Historic Philadelphia in person, or take a “virtual field trip,” we can assist in integrating The Constitutional’s educational programming into your Constitution Day curriculum.”

Constitution Day Offerings, Plus Field Trips and Group Tours Year-Round

The Constitutional Walking Tour offers a variety of resources to help Educational Institutions and Federal Agencies fulfill the annual requirement for Constitution Day programming. Below is a detailed list of the resources for Educators, Students, Government and Military and Community Leaders.


The Constitutional Guided Walking Tour — The Constitutional Guided Walking Tour tells the dramatic story of the brave men and women who were responsible for creating America. Step back in time to see where The United States Constitution was created. See more than 20 of the most historic sites and attractions in 75 minutes on a 1.25-mile outdoor journey, including many sites and topics related to the U.S. Constitution such as Independence Hall and the National Constitution Center. Group tours and field trips are available year-round with advance reservations, and this Fall, special programming has been added to discuss the road to the White House with the Presidential election. Group rates and student discounts are available for groups of 25 or more. For more information, visit www.TheConstitutional.com/schools, or call our group sales department at 215.525.1776.

The Constitutional Virtual Field Trip — For those who cannot travel to Philadelphia this September, The Constitutional provides free “virtual field trips” through our interactive web site so that you can “walk” in the Founding Fathers’ footsteps and learn about the birth of our Nation, including the creation of the U.S. Constitution, by taking The Constitutional’s tour online. For more information, visit www.TheConstitutional.com/1787 .

For details on all of The Constitutional’s educational resources, please visit www.TheConstitutional.com/1787 .

About The Constitutional Walking Tour of Philadelphia

The Constitutional Walking Tour of Philadelphia is one of the leading providers of sightseeing tours of America’s Birthplace — “Where Every Day is Independence Day!”™ Located in Historic Philadelphia, The Constitutional visits more than 20 of the most historical sites on a 75 minute, 1.25 mile outdoor adventure in the Independence National Historical Park area, which is home to the Liberty Bell, Independence Hall and the National Constitution Center. The Constitutional guides visitors on a walk through history where The Declaration of Independence and the Constitution of the United States were created. Since 2004, The Constitutional has been consistently ranked as one of Philadelphia’s “Top 25 Tourist Attractions” by the Philadelphia Business Journal. Come see why the Chicago Tribune stated, “No visit to Philadelphia is complete without taking a Constitutional Guided Walking Tour, a 75-minute, mile and a quarter stroll that puts 15 historic sites, from Independence Hall to the National Constitution Center, and Ben Franklin, in perspective.” For more information on The Constitutional’s various tours, please visit www.TheConstitutional.com. The Constitutional is also the producer of the Spirits of ’76 Ghost Tour of Philadelphia which is “1 Part History, 2 Parts Haunt.”™ The Spirits of ’76 Ghost Tour features more than 20 of “Philly’s Frights & Sights”™ on a 75 minute, 1.25 mile outdoor walking tour through Historic Philadelphia that features haunted facts and folklore. For more information, please see www.Spiritsof76.com.

EDITOR’S NOTES – For Education media, please visit The Constitutional’s various online resources:

High-resolution Photographs of Historic Philadelphia are available for media usage at:www.TheConstitutional.com/images .

Story Ideas on The Constitutional Walking Tour, Historic Philadelphia and Heritage Tourism are available for media usage at:www.TheConstitutional.com/StoryIdeas .

By the Numbers statistics on The Constitutional Walking Tour and Historic Philadelphia are available for media usage at:www.TheConstitutional.com/numbers .

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Posted on December 13, 2010 by , Reply

Constitutional Amendments ? How Are They Done?

A Constitutional Amendment is any form of adjustment to the legislator system of a country. The constitution of a country is a lists of rulings that are approved by the congress of a state that are implemented to govern its people.In order for these rulings to be modified, there are certain procedures that need to be employed, which can sometimes follow irregular proceedings from what would be enacted for ordinary laws. A constitutional amendment has to be validated by a submission through either the members of congress or by the request of certain civilian bodies. However, some amendments can only be achieved with the direct approval of the electorate in a referendum.

The way in which a constitution is altered may vary from state to state. In some states the jurisdictions entail that a constitutional amendment must be agreed upon by the governing body of a country on two separate occasions during two separate but consecutive terms, and is done through a general election. The proceedings of the legislature is then suspended to allow a general election whenever an amendment is being implemented for the first time. This is done in sovereign states such as Denmark, The Netherlands, Iceland and Norway and in individual states in America like Iowa, Vermont and Wisconsin.

In countries like the United States of America three quarters of the legislature body have to agree upon a change in the constitution before it can be formally put into practice. In countries like Switzerland, Canada and Australia, different requirements apply. In Canada, after a proposition is made by the members of parliament then the approval of a provincial legislature is required. While in Switzerland and Australia, a constitutional amendment has to be passed by the leading vote of electorates as well as separate majorities in each state within the country.

Many states also combine various elements from each amendment proceedings. In cases like the French, their constitution amendment system is formulated from one or two procedures. It can either be done by a majority vote or by a referendum. In the U.S. Commonwealth of Massachusetts a constitutional amendment has to be passed by a special majority of legislature during two back to back terms which is then submitted to a referendum for a final approval.

In Austria, the Constitutional settings are much more moderate in regards to the recording of constitutional amendments. Almost any piece of parliamentary legislation can be voted in as part of the constitution if the required supermajority and other dealings for an amendment are met. An amendment may adopt to the form of a change of the centerpiece of the constitution, a change to another constitutional act, the B-VG, a new constitutional act, or a section of constitutional law in a non-constitutional act.

Please visit this link for more information on Constitutional Amendments : Constitutional Amendments and this link for American Revolutionary War American Revolutionary War

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Posted on December 5, 2010 by , Reply

The United States Constitutional Requirements Of Due Process Applied To The Public Employment Relationship Of School Personnel In Texas

The United States Constitutional Requirements of Due Process Applied to the Public Employment Relationship of School Personnel in Texas

 

Barbara A. Thompson, M.S.

PhD Student in Educational Leadership

College of Education

Prairie View A&M University

Administrative Assistant

College of Engineering Graduate Affairs and Research

 

William Allan Kritsonis, Ph.D.

Professor and Faculty Mentor

PhD Program in Educational Leadership

Prairie View A&M University

Member of the Texas A&M University System

Visiting Lecturer (2005)

Oxford Round Table

University of Oxford, Oxford England

Distinguished Alumnus (2004)

Central Washington University

College of Education and Professional 

ABSTRACT

 Most of the legal disputes arise out of the employment of public school personnel.  Laws that affect the employment relationship, the constitutional concept of due process of law, different employment arrangements available to public schools in Texas, the hiring and firing process, and the legal issues that arise in these contexts are examined.

  

 

Introduction

The United States (U.S.) Constitution applies to the public employment relationship (Walsh, Kemerer & Maniotis, 2005).  This fact distinguishes public employment from private employment.  The due process of the Fourteenth Amendment is not invoked in the private sector and it is not a guarantee against incorrect or poor advisement.  According to the U.S. Constitutional requirement of the due process clause, states must afford certain procedures before depriving individuals of certain interests.   Laws and legal proceedings must be fair.  When a person is treated unfairly by the government, including the courts, he is said to have been deprived of or denied due process.  (The Lectric Law Library’s Lexicon on Due Process, n.d.).  The focus is on deprivation of liberty or property.  Certain procedures are considered due process and certain interests are life, liberty, or property.  The Supreme Court requires individuals to show that the interest in question is either their life, their liberty, or their property.  If the interests are not in either of these categories, life, liberty or property, no matter how important it is, it doesn’t qualify for constitutional protection.  The U.S. Constitution only restricts governmental action.

Rights can be regulated or taken away altogether if due process of law is provided (Walsh, Kemerer & Maniotis, 2005).  The due process clause serves to the use of fair procedures, more accurate results that would prevent the wrongful deprivation of interests.  Due process provides individuals the opportunity to be heard from their point of view.  This allows the individual to feel that the government has treated them fairly.  The due process clause is essentially a guarantee of basic fairness by giving proper notice, providing an opportunity to be heard at a meaningful time in a meaningful way or a decision supported by substantial evidence.  The more important the individual right in question is, the more process that must be afforded (Exploring Constitutional Conflicts, 2009).

 


The Purpose of the Article

The purpose of this article is to focus on the constitutional concept of due process of law, different employment arrangements available to public schools in Texas, the hiring and firing process and the legal issues that arise in these areas.

The Constitutional Concept of Due Process

            In any personnel decision, the question is whether the employee was deprived of any property or liberty with the constitutional guarantee of due process of law.  The 1972 U.S. Supreme Court case of Board of Regents v. Roth, ruled that teachers are protected under the 14th amendment property right of continued employment if the state law gives them a legitimate claim of entitlement to it (Walsh, Kemerer & Maniotis, 2005).  Before any process is due, there must be state action and a significant, more sudden and dramatic deprivation of life, liberty or property.  For example,

            The federal court is not the appropriate forum in which to review the multitude of

personnel decisions that are made daily by public agencies.  We must accept the harsh fact that numerous individual mistakes are inevitable in the day to day administration of our affairs.  The United States Constitution cannot feasibly be construed to require federal judicial review for every such error.  In the absence of any claim that the public employer was motivated by a desire to curtail or to penalize the exercise of an employee’s constitutionally protected rights we presume that official action was regular and, if erroneous, can best be corrected in other ways.  The Due Process Clause of the Fourteenth Amendment is not a guarantee against incorrect or ill-advised personnel decisions.  (Russell v. El Paso I.S.D., 1976, p. 565.)

When the government deprives an individual of life, liberty or property, the due process clause is invoked.  A property right protected by the Fourteenth Amendment may not be taken away without providing a person with due process (Walsh, Kemerer & Maniotis, 2005).  Governmental action is restricted by the U.S. Constitution.  In the private section, the due process clause is not invoked.  Due process is not an absolute.  It varies according to the deprivation of property.

            When a person accepts a position with a school district on an at-will basis, he or she has no property right in the job (Walsh, Kemerer & Maniotis, 2005).  There is an at-will employee contract that incorporates an at-will relationship.  If the at-will employee points to the employee’s policies and procedures manual as reasons not to be fired, no process is due.  The at-will employee has a contact where the at-will relationship is stated and each party is free to end the employment relationship without notice, hearing or good cause (Walsh, Kemerer & Maniotis, 2005).  There is no property right in the job, therefore no process is due.  If the employee’s contract is not renewed and the contract has run its full course, there is no process due.  If the contract is not renewed and there is another year on the contract, then due process is invoked.  The employee who has a contract is entitled to due process.  

Due process for a terminated employee includes giving timely notice of why the termination is occurring, a fair hearing so that the employee can defend himself, names and the nature of the testimony of witnesses against the employee must be available, and sufficient evidence to establish a good cause for dismissal must be presented (Walsh, Kemerer & Maniotis, 2005).  The employee can be on the job for thirty years or the employee can be a one year probationary teacher.  If the contract was terminated before the stated expiration date, the property right of the individual is in question and due process is invoked.  Texas employees are allowed an independent hearing.  Any decision to terminate a contract comes back to the school Board before it is final.  The employee must produce clear evidence if they charge the Board with partiality.

            The liberty right of the individual addressed in the Fourteenth Amendment suggests that the parent has a right to select a non-public school, the right to privacy and the right to a good reputation.  In the 1972 Supreme Court case Wisconsin v. Constantineau (p.437), the employee stated the government put his name, honor and reputation at state, therefore a notice and an opportunity to be heard was essential.  Stigmatizing statements create a right to a name clearing hearing only if they arise in conjunction with termination or non-renewal of employment as in the Siegert v. Gilley, 1991 court case.  If the employee publicized the defamatory remarks, due process is not invoked.  There is no right to a name clearing hearing.  In Burris v. Willis I.S.D., 1983, a teacher claimed that when a board official read a letter about him at an open board meeting and in so doing, it violated his constitutional rights by depriving him of a liberty right to a good reputation.  The teacher’s claim was rejected because the file was kept confidential. 

Employment Arrangements, Contracts and Legal Recourse

            There are six types of employees within the public school (Walsh, Kemerer & Maniotis, 2005).  They are at-will employees, non-chapter 21 contract employees, probationary contract employees, term contract employees, continuing contract employees and third-party independent contract employees.  Legal issues arise within each area when the relationship is ended. 

At Will Contracts

The at-will employee has a contact where the at-will relationship is stated and each party is free to end the employment relationship without notice, hearing or good cause.  This employee can be terminated for good reasons, bad reasons, or ‘no reason at all’.  ‘No reason at all’ refers to a reason based on a bad reason that violates state or federal law.  If the decision is a wrongful discharge and the employer violated state or federal law, the employee can sue (Walsh, Kemerer & Maniotis, 2005).  The at-will relationship is the norm in the private sector.  For example, an employee in at at-will relationship in the private sector can be described as an employee working for 30 years and quit his or her job tomorrow.  Also, an employee can go into work the next day and be fired (Walsh, Kemerer & Maniotis, 2005).   The terminated at-will employee can file suit alleging his discharge was due to retaliation for his exercise of his constitutional rights when he or she blew the whistle on wrongdoing.  The terminated employee can also file discrimination based on race, sex, religion, age, national origin, or disability if it can be proven.

Chapter 21 and Non Chapter 21 Contracts

Teachers certified under chapter 21 of the Education code must have a contract.  Chapter 21 employees include the classroom teacher, librarian, nurse or counselor, which means a probationary, term or continuing contract.  Section 21:201 describes a teacher under term contract law as a supervisor, classroom teacher, counselor or other full-time professional who must be certified under Subchapter B or a nurse.  Non-chapter 21 employees do not need a contract and do not require certification.  They are not subject to an independent hearing system or statutory non-renewal process.  Positions such as business manager, director of transportation, director of construction and facilities or director of maintenance do not require certification.   If there is a written employment contract, and the employee alleges the district violated the contract and meant him monetary harm, the employee can appeal to the commissioner pursuant to TEC § 7.107.

Probationary Contracts

            Probationary contracts are for those teachers who have never taught before or who have not been employed for two consecutive years subsequent to August 28, 1967. (TEC § 21.102.  The probationary period can be as long as 3 years except for experienced educators with previous employment in public school for 5 of the 8 preceding years.  The probationary teacher will serve under a 3 consecutive one-year probationary contracts.  Probationary periods can be for a semester when the school year falls in the middle of the year.  A probationary teacher can resign without penalty up to forty-five days before the first day of instruction.  If school starts in mid-August, the teacher must resign before July 1 or suffer sanctions imposed by the State Board of Educator Certification.  A probationary contract can be non-renewed by the board even if the superintendent recommended that it be renewed (Berry v. Kemp I.S.D.).

Term Contracts

            After the probationary period, the teacher must receive either a continuing or a term contract (Walsh, Kemerer & Maniotis, 2005).  The length of the contract and the process for renewal, nonrenewal, or termination determines which contract to offer.   A classroom teacher, superintendent, principal, supervisor, counselor or other full-time professional employee who holds a certification or a nurse may be offered a term contract.  A term contract has a beginning date and an end date and is any probationary Chapter 21 contract for a fixed term that can be as long as 5 school years.  As the end date approaches, some action must be taken.  The resignation date for a term employee is 45 days prior to the first day of instruction which is the same for probationary employees (Walsh, Kemerer & Maniotis, 2005).  A term teacher contract can be renewed by the school, non-renewed or terminated.  Termination refers to the action of the district to end the contract prior to its normal expiration date.  The teacher is deprived of property interest and good cause, thus due process is required. 

A non-renewal of contract refers to the school district letting the contract expire.  The employee is permitted to fulfill the terms of the contract and no new contract is offered.  If there is a multi-year contract, the district extends the contract each year or if the contract is not extended in the 2nd year, it is still valid for that year.  The contract is non-renewed.  A term contract teacher is entitled to a hearing prior to nonrenewal.  Once the teacher receives notice, a hearing can be scheduled within 15 days with the board or an independent hearing system that is closed to the public, unless the teacher requests an open hearing.  A term contract teacher can be suspended, but not beyond the school year, without pay for good cause as determined by the school board.  The teacher is entitled to request an independent hearing or the district can suspend the teacher with pay and non-renew the contract at the end of its term.  The district must give notice of a proposed non-renewal to the teacher 45 calendar days before the last day of instruction.  If the 45 days are not adhered to, the contract is automatically renewed.  Complaints of procedural irregularities in the appraisal process cannot be resurrected at the contract non-renewal process (Walsh, Kemerer & Maniotis, 2005).

When the superintendent contract is up for non-renewal, reasonable notice of the reason for the proposed non-renewal must be given before the 30th day of the last day of the contract term.   In contrast, the teacher term contract does not require reasonable notice of the reason for the proposed non-renewal.

Continuing Contracts

            A continuing contract is issued to a classroom teacher, superintendent, principal, supervisor, counselor or other full-time professional employee who was eligible for a continuing contract.  The contract rolls over form one year to the next year without the necessity of board action.  Non-renewal does not apply to continuing contracts.  A former administrator, who moves into a teaching position and teaches children, can be issued a continuing contract.  There is no specific length of time for continuing contract.  The contract remains in effect until the teacher resigns, retires, is terminated, or is returned to probationary status.   The continuing contract teacher can be terminated according to the independent hearing system, at any time for good cause (failure to meet the standards of conduct for the profession as generally recognized and applied in similarly situated school districts in the state) as determined by the board of trustees (TEC §21.156).   Instead of discharge, a school can suspend a continuing teacher contract with notice, entitlement to an independent hearing, and without pay for a period of time not to exceed the current school year.  The continuing teacher contract can return to a probationary status, provided the teacher consents to the move (Walsh, Kemerer & Maniotis, 2005).


Third-Party Independent Contracts

            Full vested educators in the Texas Teacher Retirement system (TRS) could retire, begin drawing benefits, and them go to work at a salary equivalent to or better than what they had been making.  School Boards could begin hiring teachers and not be burdened with having to treat them as employees.   The teachers would keep their benefits under TRS (Att’y Gen. Op. GA-0018, 2003).  If a school principal was dissatisfied with a teacher, he would call and ask for a different teacher.  The school district did not employ the teacher and there was no contract and no legal requirements to end the relationship.

The Hiring and Firing Process

            In 1992, the legislature created State Board for Educator Certification (SBEC), a 14 member board, as the key entity to oversee and regulate all aspects of the certification, continuing education, and standards of conduct of public school educators.   SBEC has power to adopt rules for out of state educators, certification, requirements for renewal of certificates, and disciplinary procedures for suspension and revoking a certificate as well as approval and continuing accountability of such programs (Walsh, Kemerer & Maniotis, 2005).  The board must annually review the accreditation status of each educator preparation program.  An advisory committee has to be appointed by SBEC for each class of educator certificates.  These rules must be submitted and reviewed by the State Board of Education and can be rejected by SBOE by a 2/3 vote.  A public school district can hire certified and licensed employees.  Certified employees are teachers, teacher interns, teacher trainees, librarians, educational aids, administrators, and counselors.  Licensed employees are audiologists, occupational therapists, physical therapists, physicians, nurses, school psychologists, associate school psychologists, social workers, and speech pathologists (Walsh, Kemerer & Maniotis, 2005).

            Texas public school districts are governed by the same laws that prohibit discrimination laws based on race, sex, religion, age, national origin, sexual harassment, and disabilities.  Nondiscrimination laws apply to all employees regardless of the contract and have implications for the hiring process.  Those involved in the hiring process need specific training (Walsh, Kemerer & Maniotis, 2005). 

            School districts are not required to advertise or post vacancies in their school.  Advertising is a choice the school makes so that they can defend themselves against discrimination.  The school board adopts policies regarding the employment and duties of personnel.  The superintendent has sole authority to make recommendations to the board regarding the selection of all personnel and must be in the loop in hiring people.  The principal does not hire staff, but must approve each teacher, reassignment, or staff appointment to the principal’s campus except for necessary teacher transfers due to enrollment shifts (11.202; Att’y Gen. Op. DM-27, 1991).  In this regard, the superintendent has final placement authority for a teacher.   SBEC must obtain criminal history on all certified educators.  Background checks are not required by each school district except on contracted bus drivers of transportation services.  If the bus driver has been convicted of a felony or misdemeanor involving moral turpitude, the bus drive may drive the bus only with the school’s permission.  If an applicant lies on an application about the felony or misdemeanor involving moral turpitude, the applicant must be terminated (TEC 22.085).  “Moral turpitude is a legal concept in the United States that refers to “conduct that is considered contrary to community standards of justice, honesty or good morals” (Moral turpitude, 2009).  If an applicant has a clean record when hired, and is convicted of an offense while working for the district, a report must be made within seven calendar days by the superintendent or chief executive (19 TAC 249.14)

Concluding Remarks

In conclusion, school districts employ many people and must comply with many federal and state mandates.  The relationship between employees in the public schools is determined by constitutional restrictions and statutory provisions in the Education Code and other legislation.  Regardless of the type of contract used by a school district, contract with teachers must be in writing.  Verbal commitments from school administrators may not be legally binding.  Terms of the contract must be approved by the school board.  According to Walsh, Kemerer & Maniotis (2008), the knowledge of the basics of the law should move from the central office to each campus.   The director of personnel for the district should be an expert and have full of the United States constitutional requirements of due process applied to the public employment relationship of school personnel in Texas.

 

 

References

Att’y Gen Op DM-27, 1991

Berry v Kemp I.S.D., Dkt. No. 103-R10-600 Comm’r Educ. 2001):  158-159

Burris v Willis I.S.D., 713 F.2d 1087 (5th Cir. 1983):  131, 236

Linder, D. (2009).  Exploring constitutional conflicts.  Retrieved November 1, 2009 from

http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/home.html

19 TAC 249.14

Russell v El Pas I.S.D., 539 F.2d 563 (5th Cir. 1976):  128

Siegert v Gilley, 500 U.S. 226 (1991):  131

TEC 21:201

TEC 7.107

TEC 21.102

TEC 11.202

TEC 22.085

The Letric Law (2009).  Moral turpitude.  Retrieved November 18, 2009 from

http://www.lectlaw.com/def/d080.htm

Walsh, J, Kemerer, F., & Maniotis, L. (2008).  The educator’s guide to Texas school law. 

6th ed.  University of Texas Press:  Austin, Texas.

Wisconsin v Constantineau, 400 U.S. 433 (1971):  130, 327

Dr. Kritsonis Recognized as Distinguished Alumnus In 2004, Dr. William Allan Kritsonis was recognized as the Central Washington University Alumni Association Distinguished Alumnus for the College of Education and Professional Studies. Dr. Kritsonis was nominated by alumni, former students, friends, faculty, and staff. Final selection was made by the Alumni Association Board of Directors. Recipients are CWU graduates of 20 years or more and are recognized for achievement in their professional field and have made a positive contribution to society. For the second consecutive year, U.S. News and World Report placed Central Washington University among the top elite public institutions in the west. CWU was 12th on the list in the 2006 On-Line Education of “America’s Best Colleges.”

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Posted on December 3, 2010 by , Reply

The Tribunalization of Justice: the Constitutional Validity of the National Tax Tribunal

Introduction:

 

The passing of the Forty Second Amendment to the Constitution of India in 1976, tribunals became key dramatis personae in the justice delivery system. In order to achieve the objectives of the amendment, which was to ensure speedy disposal of cases, an array of tribunals were set up. These included the Administrative Tribunals, the Rent Control Tribunals and also Tax Tribunals. The constitution and functioning of these tribunals have been controversial and intensely debated. The Constitution of the National Tax Tribunals, through the passing of the National Tax Tribunal Act, 2005 in pursuance of Article 323-B (1) (a). The Act provides a machinery for the adjudication by the National Tax Tribunal of disputes with respect to levy, assessment, collection and enforcement of direct taxes and also to provide for the adjudication by that Tribunal of disputes with respect to the determination of the rates of duties of customs and central excise on goods and the valuation of goods for the purposes of assessment of such duties as well as in matters relating to levy of tax on service. The Act is bound to raise constitutional issues of immense significance as to validity of conferral of the power and functions of the Tribunal, the exercise of such powers and functions, and the concept of judicial review under the Constitution.

 

The Edict Machinery of Tribunals in India:

 

The concept and the constitution and functioning of the Tribunals established under Administrative Tribunals Act. The exclusive jurisdiction hitherto have the benefit of by the Tribunals in service matter and distinguish the High Courts was put at stop partially by the Supreme Court of India in its landmark judgment in ‘L.Chandra Kumar Vs.Union of India and others. The Supreme Court diversified and re-distributed the jurisdiction of service matters etc in between these Tribunals for which purpose they have been established and High Courts as per the spirit of the Constitutional mandate enunciated by the framers of the Constitution, keeping in

view the ‘Basic Structure Theory’ and the provisions contained under Article 226,227, 32 and Articles 323 A and 323 B of the Constitution of India.

The salient feature of our Constitutional system that whenever new legislations or enactments are passed, either by Parliament or Legislative Assemblies, it is generally found that, they, being tested in courts of law, either on their validity as a whole or certain provisions of such acts if they are offending any provisions of Constitution, any public policy or established legal principles. Therefore, no exception was shown to the ‘Administrative Tribunals Act, 1985, enacted in terms of Article 323 –A of the Constitution of India. Consequent upon the establishment of service Tribunals in the country ‘under the Administrative Tribunals Act, 1985, a string of litigation had erupted before the High Courts of several States and also in Supreme Court, questioning the validity of certain provisions of the Act and also ultra vires of Articles 323-A and 323-B. Firstly, the ‘Apex Court’ by a Five Judge Constitution Bench, headed by the then Hon’ble Chief Justice, Justice P.N. Bhagwati, examined the constitutional validity of Article 323-A and its provisions in S.P. Sampath Kumar Vs. Union of India and others3 said Bench while upholding the validity of Article 323-A, held that the Service Tribunals created under Article 323-A are substitutes to the High Courts and the exclusion of the jurisdiction of High Courts is legal. Thereafter, a seven Judge Constitution Bench of the Supreme Court in ‘L. Chandra Kumar case’ while dealing with power of judicial review vested in High Courts and Supreme Court under Articles 226,227 and 32 respectively vis-a-vis Articles 323-A and 323-B not only deviated from the earlier discussion of the Supreme Court in ‘S.P. Sampath Kumar’s case’, but also held that, the Tribunals are supplementary in their role and the power of ‘Judicial Review’ vested in High Courts and Supreme Court under Articles 226, 227 and 32 is an inviolable basic structure of the Constitution and struck down clause 2(d) of Article 323-A and clause 3(d) of Article 323-B of the Constitution of India to the extent they exclude the jurisdiction of High Courts and Supreme Court under Articles 226/227 and 32 as unconstitutional and also Section 28 of the

‘Administrative Tribunals Act, 1985’ which excludes the jurisdiction of High Courts. The Supreme Court in the above case further held that: “The Tribunals created under Article 323-A and 323-B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a ‘Division Bench’ of the High Court within whose jurisdiction the concerned Tribunal falls. The Tribunal will, nevertheless, continue to act like Courts of ‘first instance’ in respect of the areas of law for which they have been constituted. It will not, therefore, be open or litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal.” In the same case, when an argument was advanced for the superintendence over the Tribunals by the concerned High Courts, the Supreme Court categorically held as follows: “To this end, it is suggested that the Tribunals be made subject to the supervisory jurisdiction of the High Court within whose territorial jurisdiction they fall. We are, however, of the view that this may not be the best way of solving the problem. We do not think that our Constitutional scheme requires that all adjudicating bodies which fall within the territorial jurisdiction of the High Courts should be subject to their supervisory jurisdiction. If the idea is to divest the High Courts of their onerous burdens, then adding to their supervisory functions cannot in any manner, be of assistance to them”. Therefore, in view of the law laid down by the Supreme Court in ‘Chandra Kumar’s case'(emphasis furnished supra) this Tribunal is now functioning as a ‘Court of first instance’ like any other Tribunal in the country established under Article 323-A of the Constitution of India. It is also to be noted that the ‘Judicial Review’ propounded by the Supreme court in ‘Chandra Kumar’s case cannot be treated/equated with an ‘Appeal’ in as much as the constitutional exercise by way of ‘Judicial Review’ displayed by the High Courts originated from the ‘Basic Structure Theory’ read with Articles 226 and 227 of the Constitution of India.

 

Appellate provisions under the direct and indirect tax enactments

 

Aforementioned to National Tax Tribunal, under the direct and indirect tax enactments, appeals on substantial questions of law from the decisions of tribunals such as the Income Tax Appellate Tribunal and the Customs, Excise and Service Tax Appellate Tribunal lies to the High Court.

The Income Tax Appellate Tribunal Under Section 252 of the Income Tax Act, 1961 an appellate tribunal known as Income Tax Appellate Tribunal has been set up which consists of both judicial members as well as Accountant members. This tribunal hears appeals against orders passed by the Deputy Commissioner of Appeals or the Commissioner of Appeals, as specified in Section 253 of the Act on questions of law as well as questions of fact. Under the direct tax regime, Income Tax Appellate Tribunal is the final authority as regards determination of questions of fact. Under Section 260 A of the same Act, an appeal lies to the High Court, from every order passed by the Income Tax Appellate Tribunal if the High court is satisfied that the case involves a substantial question of law. However, there is also a provision for filing further appeals to the Supreme Court from any judgment of the High Court as specified under Section 261, only if the High Court certifies that the case is fit for appeal to the Supreme Court. In cases where High Court refuses to give such certificate, the aggrieved party has an option to invoke extraordinary jurisdiction of Supreme Court through special leave petition under Article 136 of the Constitution of India. Income Tax Appellate Tribunal, High Courts and the Supreme Court have been given similar powers of hearing appeals in respect of disputes concerning wealth tax under the Wealth Tax Act, 1957. The Customs, Excise and Service Tax Appellate Tribunal Under Section 129 of the Customs Act, 1962 the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) has been constituted which consists of Judicial as well as Technical Members. The Tribunal hears appeals against orders passed by the authorities mentioned in Section 129 A of the Customs Act. It also hears appeals against orders passed by the excise authorities as specified in Section 35 B of the Central Excise Act, 1944. Earlier, instead of appeal a reference used to lie regarding questions of law. An appeal lies to the High Court on a substantial question of law against an order passed by the Customs, Excise and Service Tax Appellate Tribunal, under Section 130 of the Customs Act, as substituted by the Finance Bill, 2003. Similar provision has been incorporated in respect of appeals to High Courts under the Central Excise Act, 1944. The tribunal also has appellate jurisdiction in anti-dumping matters and the Special Bench headed by the President of the tribunal hears appeals against orders passed by the designated authority in the Ministry of Commerce. The appeals under the Service Tax are also heard by the tribunal. This tribunal is the appellate authority on matters relating to classification and valuation, with the appeals lying to the Supreme Court in these matters.

 

The Need for Establishment of National Tax Tribunal in India:

 

The necessity for uniformity and certainty in the administration of tax laws (both direct and indirect tax laws), appeals or references from the orders of the Income Tax Appellate Tribunal and the Customs, Excise and Service Tax Appellate Tribunal lie with the High Courts, these Courts get flooded with such cases which need considerable time to dispose them. Due to the heavy workload of the High Courts, there is a huge backlog of tax related cases as a result of which huge revenue is blocked in such litigations. This is adversely affecting the national economy. Hence, urgent measures are required to be taken to speed up taxation matters pending

before the High Courts. It may also be noted that there are at present 21 High Courts. Many a time, decisions of the High Courts vary from each other which create uncertainty, delays and problems in the administration of tax matters. Conflict of decisions amongst various High Courts

on the same point of law have the effect of distorting uniformity and give rise to unnecessary appeals to the Supreme Court which results in further delay.

National Tax Tribunal will help in clearing the backlog and mitigating the burden that lie at the doors of High Courts. The constitution of the National Tax Tribunal would relieve the taxpayers from the burden of pursuing the tax disputes for a long period and substantially reduce the workload of different High Courts which could not concentrate and devote as much focus which the complex tax laws presently demand.

 

Judicial Sovereignty and the National Tax Tribunal

 

In the Landmark Judgments of the Court in L Chandra Kumar and Sampath Kumar that even if the Tribunals have to play a supplemental role, given the powers that they enjoy, including the power to strike down legislation as ultra vires the constitution, the NTT will have to enjoy Judicial Sovereignty as understood in the Indian constitutional context. Judicial Sovereignty in India always has been a very controversial subject. The judicial pronouncements and the scholastic opinion in this regard, point out different stages at which the independence of the judiciary will have to be assessed. Judicial Sovereignty will include the collective independence of the judiciary from the other branches of the State and also the independence of the individual judges. The first aspect relates to appointment, removal etc whereas, the second aspect relates to matters concerned with security of tenure, salaries and allowance etc. Let us take up these issues in relation to the National Tax Tribunal. The Members and the Chairperson of the National Tax Tribunal are appointed by the Central Government in accordance with the recommendation of a selection committee consisting of the Chief Justice of India or his nominee. Though the other two members in the committee are not from the judiciary, it is submitted that this is sufficient safeguard against executive fiat. In terms of the qualification also sufficient safeguards seem to have been provided. The legislation provides that all members including the Chairperson have sufficient legal qualifications and adequate experience to handle complex matters relating to tax as also maters relating to the vires or otherwise of legislations and administrative actions. More importantly, the method of removal of the member and the Chairperson also has been made sufficiently elaborate to minimize executive interference. Section 11 provides that removal and suspension can take place only in consultation with the Chief Justice and on completion of a formal enquiry. The Chairperson also has been given enough discretion to constitute the benches of the National Tax Tribunal. In terms of salaries and other benefits, the members and the Chairperson have been accorded the same status as that of High Court judges. Also of significance is the fact that these Tribunals have been vested with contempt powers under section 12 of the NTTA, 2005 in addition to certain powers of the Civil Court granted to it in section 16. The legislation also protects actions taken in good faith in the course of discharge of duties by any member, Chairperson or other employee, which also helps in maintaining judicial independence. In all it is submitted that the provisions of the enactment do indeed secure judicial sovereignty.

 

The Differentiation of National Tax Tribunal and High Courts in India

 

There is a provision in the Act that may cause adversity to tax-payers. The Act stipulates that an appeal before the NTT can be preferred only if the appellant deposits at least 25 per cent of the tax or duty payable on the basis of the order appealed against. The NTT is also given the discretion to condone this requirement. There is no such stipulation in cases that go before the

high court. Yet another distinction is that no interim order can be passed by the NTT without hearing the other party. No Tribunal constituted under 323A or 323B of the Constitution can ever

oust the jurisdiction of the high court under Articles 226/227 of the Constitution. The writ jurisdiction of the high court will continue, despite the provision that appeals from the NTT will go to the Supreme Court. The NTT will, therefore, be one more forum working along with the

High court.

The Government makes it appear that there is huge pendency before the various high courts involving fiscal disputes. The truth seems to be that the overall pendency does not exceed 30,000 cases, the maximum being around 10,000 in Mumbai and an equal number in Delhi. Probably, constitution of permanent tax benches in these two High Courts will solve the problem for revenue. The NTT will not be governed by the Civil Procedure Code, though rules of natural justice will apply.

 

Conclusion

 

There cannot be fault with the intention of the Government, to reduce the backlog of cases, in proposing the National Tax Tribunal, but the way in which the NTT has been setup raises a lot of concern. Apart from creating multiple and simultaneous structure for the resolution of tax disputes, which will obviously lead to a lot of turmoil, the NTT also faces challenges in the form of allowing Chartered Accounts to appear before it. The enactment seems to fair well in terms of securing the independence of the judiciary but fails the Constitution on account of abridging the writ jurisdiction of the High Courts in relation to the transfer of cases. This is a grave blemish that will have to be rectified. Efficiency arguments for and against the Tribunal can be analyzed or answered only if a systematic and scientific study happens in that regard. The Law Commission must come out with official statistics in this regard. More importantly, we will have to decide whether Tribunals are the best way to deliver justice in relation to tax matters or whether mere creation of exclusive tax benches in the High courts would solve the problem. Vacancies in the High Courts are not filled regularly nor is there a concerted effort at the national level to streamline procedures relating to dispose off pending disputes. The Government has not been able to come up with any realistic presentation statistics of existing tribunals nor has it explained tribunalize the tax administration for the justice further. At least in future, efforts like this, to create an alternative forum and working substitute for the Court must be backed with methodical study, more debates and comprehensive planning, in order to guarantee that they do not end up as unproductive outlay at the hands of the exchequer.

 

Bibliography:

1) Durga Das Basu- Shorter Constitution of India- Thirteenth Edition 2001 Wadhwa Nagpur.

2) H.M.Seervai-Constitutional Law of India: A Critical Commentary- Universal Law Publishers

3) Walter W. Brudno- Taxation in India-Harvard Law School International Program in Taxation.

4) The National Tax Tribunal Act, 2005- Bharatgazette Government of India.

5) The National Tax Tribunal (Amendment) Act, 2007- Manupatra Bare Act.

Harsh Vardhan Jajodia – hobby is to bring to light the problems faced by the people in the legal field

Article from articlesbase.com

Posted on November 20, 2010 by , Reply

Sarkozy Set For a Constitutional Showdown

Hardly the sexiest headline by any stretch of the imagination. But there again when it comes to institutional reform and changes to the constitution, the subject matter is hardly guaranteed to instill much enthusiasm.

The French president, Nicolas Sarkozy is fighting constitutional reform on two fronts. There is of course the debate over how to deal with the Irish “no” vote in June to the Lisbon treaty. He’ll be tackling further that issue on July 21 when he pitches up in Dublin in his role as the EU big cheese while France holds the 27-nation bloc’s six-month rotating presidency.

And this week will see his attempts to update the French constitution receive either final parliamentary approval or a political slap in the face.

The vote is too close to call with some likely splits in the governing Union pour un Mouvement Populaire (Union for a Popular Movement, UMP) party and the opposition Socialist party promising to reject the changes.

The reforms themselves have already been passed separately by both chambers of parliament, the National Assembly and the Senate. But for constitutional changes to be made, both have to meet jointly and vote together at a special session opening in Versailles on Monday. A three-fifths majority of votes cast will be needed for the reforms to be endorsed.

At stake basically is one of Sarkozy’s electoral promises to change the way politics works here in France.

Among the proposals are moves to make the president more accountable to parliament, allowing him (or her) to appear directly before both chambers. Another clause would require the government to seek parliamentary approval for a military operation (abroad) longer than six months. The number of terms a president could serve would also be limited to two (periods of five years) and the process of allowing national votes or referenda on issues would also be possible if the requisite number of signatures were collected and had political backing.

So in a very real sense the changes could be interpreted as at the very least boosting the powers of parliament.

So what exactly are the fears of the opposition to a reform which on the whole has also received fairly widespread popular support in France – if the most recent opinion polls are to be believed?

Basically the main opposition party, the Socialists, fear that allowing the president to address parliament directly will blur the boundaries between the executive and legislative arms of government.

The separation of powers has been an essential of French politics in all its republics since 1873 and the president has been banned from appearing in person before the National Assembly or the Senate.

In trying to reach a compromise, Sarkozy has suggested an annual state address to parliament along the lines of the US president’s state of the nation speech. But even that has met with only lukewarm enthusiasm.

In the past couple of weeks Sarkozy has also made more concessions – proposing for example that opposition parties have equal (television) airtime to address issues raised by the president whenever he appears on the small screen over the course of a year.

But the Socialist party in particular has held firm in maintaining that it will present a united front in Versailles and vote “no”.

While it might be hard to figure out exactly why the Socialist party isn’t supporting the reform – apart perhaps from refusing to accept a centre-right inspired proposal – it must appear even more difficult to understand why some members of the governing UMP party might break ranks.

There again as the reforms have passed through parliament to the final vote, a number of compromises have been struck which leaves the reform package, as far as some of them are concerned, almost a shadow of what was first put forward.

To get the majority needed, the government is counting on – and indeed will need – some defections from the Left, and one such vote could come in the shape of a high profile former Socialist minister, Jack Lang, who has apparently still not made up his mind how he will vote.

Lang calls the changes modest and far from the wide-ranging proposals envisaged by a parliamentary committee of which he is a member, to look at the overall reform of France’s institutions.

Even though the Socialists are calling for a united front in voting “no” in Versailles, which would certainly stop the changes to the constitution being made, there are also some waverers, and they could just tip the balance.

Critics of the Socialist party’s stance have claimed that their opposition to the reforms is based more on principle than conviction and a simple look at the latest opinion polls would tell them that a healthy majority of French voters are in favour of the reforms.

In a weekend survey, almost 70 per cent of those asked said they supported the changes.

Johnny Summerton is a Paris-based broadcaster, writer and journalist specialising in politics, sport and travel. For more on what’s making the headlines here in France, log on to his site at http://www.persiflagefrance.com

Posted on August 13, 2010 by , Reply
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