Law and Justice

Archive for the ‘Constitutional Law’ Category

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Written by leading scholars, each title in the “Introduction to Law” series contains comprehensive treatment in black-letter style. Featuring footnotes citing to case law, statutory and other authorities, these vo… More >>

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We work to live; we do not live to work.

As early as early adulthood, employment is one of this life’s major concerns. Actually, there are thousands federal laws and state statutes, administrative regulations and jurisprudence in the United States which deal with labor or employment law.

Employment law is very broad. But the most important specific areas include the following:

Collective bargaining

Employment discrimination

Unemployment compensation

Pension

Workplace safety

Workmen’s compensation

COLLECTIVE BARGAINING

The National Labor Relations Act is the main law governing collective bargaining. It expressly gives employees the right to collectively bargain and join unions. It is applicable to most non-agricultural employees and employers who are engage in some aspects of intestate commerce.

Collective bargaining is composed of negotiations between the employees and the employer to determine the conditions of employment such as wages, work hours and compensation and benefits, among others.

Most states have laws, which further regulate collective bargaining and make collective agreements enforceable under state law.

EMPLOYMENT DISCRIMINATION

Discrimination laws prohibit discrimination based on race, gender, religion, national or ethnic origin, physical disability, age and sexual preference by employers.

Bias in hiring, promotion, job assignment, termination, compensation, and various types of harassment are discriminatory practices.

The Federal Constitution and some state constitutions give additional protection where the employer is a government agency or the government has taken significant steps to foster the discriminatory practice of the employer.

UNEMPLOYMENT COMPENSATION

This is insurance for those who are unemployed because they are terminated without the fault of their own. Monetary payments are given to terminated employees until such time that they find a new job.

PENSIONS

Employees continuously receive this monetary compensation from their employers even after retirement.

There are two main forms of pensions, they are:

defined benefit plan

defined contribution plan

Defined benefits plan is based on the length of the employee’s service and his wages.

Defined contribution plan is based on the employer’s regular deposit into an account secured for each employee.

WORKPLACE SAFETY

Workplace safety laws establish regulations designed to eliminate personal injuries and illnesses from happening in the workplace. These laws are primarily composed of federal and state statutes.

The Occupational and Safety Health Act (OSHA) is the main law which protects the health and safety of workers in the workplace. It is Congress which enacted this law.

All private employers who are engaged in interstate commerce are subject to the regulations promulgated under OSHA.

WORKMEN’S COMPENSATION

For those who are injured or disabled on the job, these laws give them fixed monetary award as a matter of right without the need of an action in courts.

Under these laws, dependents of workers who were killed while working or suffered work-related illnesses and died will also be given benefits.

While majority of these laws can be considered pro-employees, some were also designed to protect employers by limiting the amount an injured employee may received from the former.

To help you with issues related to your employment, you can consult with our experienced http://www.mesrianilaw.com/Los-Angeles-Employment-Lawyers.html or visit our website to avail of our free case analysis.

The Thirteenth Amendment:

The Thirteenth Amendment to the United States Constitution, from 1865, abolished and continues to prohibit slavery in the United States. The African-American received legal freedom, but nothing more. The true revolution for them was only after 1954. The congress did not propose any decision for equal rights for blacks and whites

The Fourteenth Amendment:

The Fourteenth Amendment is an example for a radical republican legislation. The first section formally defines citizenship and requires the states to provide civil rights.

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The amendment includes a section that prevents the election of any person to the Congress who had held any of certain offices and then engaged in insurrection, rebellion, or treason. Another section confirmed that the United States would not pay “damages” for the loss of slaves, nor debts that had been incurred by the Confederacy. Most of the south states, except Tennessee,  rejected the amendment, and they paid dearly later.

The Fifteenth Amendment:

The Fifteenth Amendment provides that “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude”.

This amendment was also intended against the south, that tried to prevent political rights from the blacks.

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Why quest for a new constitution
may yet prove exercise in futility

By John Nyaosi

The seismic and nightmarish convulsions Kenya went through in January and February this year may probably have been avoided had Kenyans collectively a couple of years earlier acceded to the enactment of a new constitution. The post-election chaos that killed over 1,000 Kenyans and displaced 300,000 besides the setting aflame property with billions would never have happened if the country had a foolproof, time tested , solid mechanism for resolving the disputed presidential election.
Remember the explanation given by the aggrieved parties for not seeking recourse in the courts was that the wheels of justice were pitifully slow, and their impartiality ,rightly or wrongly, perceived as not being as beyond reproach as Ceasar’s wife. What with lawsuits and petitions contesting disputed constituency elections often lasting a whole parliamentary term thereby defeating the reason for petitioning poll results!

The conflagration came as a shock to many and when it lasted, it put Kenya on the same league as ‘failed states’ like Somalia and others where the general rule is survival of the fittest, ‘might is righ’ and law and order an alien thing. As we dithered on the brink even as the political protagonists Mwai Kibaki and Raila Odinga stood their grounds, the world watched with consternation, the orgy of violence flashed on the screens of world television networks including CNN. It was the intervention of the Africa’s eminent personalities led by former United Nation’s secretary-general Kofi Annan that managed to save the country from total annihilation by brokering a peace deal that saw the crafting of a Grand Coalition Government.

A darling of the west at Independence and at par with the so called tiger economies like Hong Kong and the rest, Kenya under Mzee Jomo Kenyatta was particulary in good books for choosing the mixed ecomomy model as opposed to Tanzania’s Socialism or Vijiji vya Ujamaa under Julius Kambarage Nyerere. Kenya which had set off well with high expectations on it development path was nevertheless sadly later to be beset by political rivalry that led to problems of governance, graft and accountability in running of state. affairs. From the Kenyatta era, through Daniel arap Moi’s autocratic era during which the one-party de facto state morphed into a de jure one party veritable dictatorship,and Kibaki’s first one term, the Independence constitution fared badly. Through amendments the Independence document was rendered a pale shadow of that bequeathed to us at independence.
To perpetuate themselves a leader will do anything. Despots like Marcia Nguema of Equitoral Geania, Jean Bedel Bokassa of Central African Republic , Mobutu Sese Seko wa Ngibendu of Zaire, Sani Abacha and the like just to mention, a few, trampled underfoot their countries’ constitutions and rode roughshod on largely docile citizens. Multiparty euphoria later emboldened citizens enough to challenge the tin gods. with demands for constitutional reforms.
As Niccol Machaivelli points out for any politician to guarantee success he or she must live by the dictum: The end justifies the means. You use any means-lies, cajoling , repression, blackmail , demagoguery, doublespeak and obfuscation, to achieve the end. Our politicians have at one time or the other been guilty of all or some of these vices. Machiavelli further counsels that the politician must besides have three important qualities viz: (a)Selfishness, (b) selfishness, and (c) selfishness. For them selfishness takes precedent over the common or national good. If destroying the Mau Catchment will endear a few voters to them , then so be it.
Ideally , a country’s constitution be one able to the see it overcome any crisis however shattering even including the demise of a leader in office. It should spell out to the finest detail how to handle a regime change , at it were , it has a list of dos and donts that safeguard the nation or national good. It should preferably be fail safe.
Even as far back as the monolithic Kenya African National Union .(Kanu ) days, now with hindsight the seeds of what befell Kenya early in the year are discernible.

Reintroduction of multipartyism through repeal of Section 2a of the constitution to allow for competitive politics, saw a proliferation of political parties make a vain bid to unseat Moi since 1992. It was only in 2002 after the opposition big guns united under National Rainbow Coaliiton (Narc) that they vanquished Moi’s Kanu.
It will be recalled that in the run-up to 2002 gereral election, the main contending parties had each promised a new constitution after 100 days in office. But when Narc took power although under its watch there was a spirited attempt to give the country a new constitution, the whole process was stillborn largely due to protracted wrangles on various issues including power Devolution at Bomas. .Then there were the Bomas Draft and Wako draft and even other quasi-official drafts. The most shocking thing was that although the opposing interest groups guzzled close to Shs 4 billion on debates, arguments and counter arguments they couldn’t agree on various issues. Even when it emerged that they were in agreement on 80 per cent of the constitution, vested interests , selfishness, bigotry, sheer greed denied the country a new constitution fours years down the line even when the matter was subjected to a referendum that the government side lost miserably. Disgruntled elements ensured they threw a spanner into the works every time the nation appeared closer to a breakthrough.
It is often said that a people get the type of government they deserve. In other words the pathetic plight of Kenya’s hoi polloi, the poorest of the poor who make up a majority of the 36 million Kenyans-and who live on less than one dollar a day and sometimes nothing- are culpable in some way for the cadre of leaders running the country at any given time as they chose them. So as they groan under the weight of a 26.5 inflation rate, food scarcity and unemployment , they should know they are as much are responsible for the status quo. Through the ballot they picked the pampered Members of Parliament who can afford Shs 3.3 m loans for Prados, and other sleek limousines even as large sections of the country’s citizenry sleep on empty stomachs, have no health insurance, and no tap water and other fairly basic needs like schools and good motorable tracks to transport farm produce. During the Bomas meetings, delegates most of them sitting MPs conspired to shoot down the recall clause that would have ensured that MPs are kept on their toes by the electorate. Granted, the recall clause may be misused by mischievous busy bodies to unnecessarily harass an elected representative, but by and large it is a useful recourse tool for a neglected constituency and can be used to eject those politicians who only go to their constituencies on election day and return their only after the five-year term.
Currently there is worrying talk to the effect that the one year timeframe for the Grand Coalition Government to deliver a new constitution is not enough. One hopes that perusal of the Waki and Kriegler reports will sober up our politicians to see the need for a new constitution before the 2012 general election. Let all patriotic leaders eschew parochial and narrow considerations to fast-track the quest for a new constitution

For as long as we are blinded by bigotry, chauvinistic tendencies to sacrifice the motherland’s national interest in favour of the selfish narrow considerations of clan , tribe or region , so long will we grope in the dark in search of a panacea that will heal the tattered and wounded national fabric.

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If you have an autistic child, your rights are the prime things that you should learn and study. The constitution protects every American citizen, and special laws have been passed in order to protect autistic people and people suffering from other disabilities. If you know your rights and the laws that can protect your autistic dear ones, you will find yourself in a world with better opportunities, irrespective of disability, gender, ethnicity and race. Knowing ones laws helps create a world in which there is more tolerance.

The I.D.E.A is the first law that you should familiarize yourself with. This is the Individuals with Disabilities Education Act. This act covers the age group 3-21 and provides special educational programs that autistic children require. This act gives the parents an active role to play when it comes to education that the school gives. First, you child will need to qualify under this act and a private professional makes this assessment. If your child qualifies, he or she gains the right to receive free public education according to her or his skill level. If the public school you choose does not have any provisions for such a program, it is mandatory that they create a program free of any charge.

Another act you need to know is the American Disabilities Act. This act prohibits discrimination based on disability in the workforce and with local and state government, the US congress, public accommodations, telecommunications and public transport. For instance, if a person suffers from autism, but has all the skills required for a particular job, he or she cannot be denied the job due to their condition.

There are many other laws that provide for autistic people to be constitutionally equal to everyone else. One of these laws states that autistic people have voting rights and all accommodations should be made to facilitate this. Another law states that no kind of housing can be denied to a person because he or she suffers from autism. There are many other laws providing for equality in many other aspects of life, and if someone you love is in a health care institution, you should study these laws well. You will help uphold justice if you know your laws and how it applies to your loved ones and to you. If you have any queries, local law officials will be willing and ready to answer them for you or provide you with sufficient material to clear your doubts. Ignorance is not a valid excuse. Therefore educate yourself regarding your laws so that you can protect yourself and autistic people around you.

                                       Indian Constitution – A Bold Experiment

 Our constitution is not a novel formation of the constituent assembly, the various parts of the constitution has been derived from the working constitutions of other nations. As we know the fundamental rights enshrined in Part 3 and our federal structure of governance with a strong centralizing tendency has been taken from the American Constitution. The fundamental duties from the Irish Constitution and the parliamentary system of democracy with an independent judiciary from the England. We have been fortunate enough that our founding fathers took the initiative to inculcate such essential freedoms and form of governance in the most sacred law of the land, without which perhaps we would have resorted to an autocratic form of government akin to the British rule in India. Our forefathers had given us the tools that were essential for building a nation that had been ravished by the scourge of multi-ethnic wars and colonialism for decades, but in my respectful submission the moot question which they possibly did not envisage was whether our diverse cultures coupled with the burden of illiteracy would be able to handle these tools effectively. Sixty years down the line we might say that our democracy is the largest in the world and has been a grand success, but if we look minutely we can find that it is working mechanically. When we look into the majority flooding our constituent assembly we can see power hungry ministers who hardly have any concern for the masses.

If we go back to history we can find a possible answer as to why we have such a gloomy situation in our country. The ideologies of democracy, federalism and fundamental rights have been taken from the Western world, where people have attained there rights through struggle. The French Revolution of 1789 resulted in the: La Déclaration des droits de l’Homme et du citoyen) which is one of the fundamental documents of the French Revolution, defining a set of individual rights and collective rights of all of the estates as one. Influenced by the doctrine of natural rights, these rights are universal: they are supposed to be valid in all times and places, pertaining to human nature itself. We can also draw inspiration from the American Declaration of Independence in 1776 which came after 8 long years of war and it declared that “…..We hold these Truths to be self-evident, that all Men are created equal, that they are endowed, by their CREATOR, with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness….” These monumental documents arose out of an unprecedented social and political struggle.

We did recognize these rights in our constitution but our illiterate masses remained oblivious to its true meaning as they were far away from these ideologies as they struggled for their basic necessities; which were further enhanced in the aftermath to the creation of two separate countries after independence when millions were left homeless and thousands were massacred. We still have people who are unaware of their own basic rights. Our founding fathers had borrowed these principles from the Western society and had imported and transplanted them on our backward, semi-feudal society. Consequently our constitution and our society do not correspond with each other the former being modern while the later being backward. The belief that by merely importing and transplanting a modern Constitution on a backward society will result in our society quickly becoming modern has proved to be a mistake. We have still today a lot of casteism and communalism in our society.

At the same time it cannot be said that the Indian constitution is merely a paper document, by setting up modern ideals the Constitution is pulling society forward the goals of creating a modern society. No doubt that it has not done so automatically merely by its promulgation but it has reduced the pain, agony and duration which Western societies had to go through during the period of their transition from feudal agricultural society to modern industrial society. This transitional period is a very painful period and its is only after going through this fire that a transformation can be brought about

India is presently passing through this fire. We need to first bring our society and its attitude at par with the modern world, free from all the bias and inequality; after all the constitution is for the people, of the people and by the people of this nation .Our constitution makers had indeed made a bold experiment when they created the constitution in the backdrop of the society which prevails in our country.  However the Constitution if implemented in its true spirit, will be a boon to us, it is up to us to give it teeth and make the dream of our founding fathers a reality.

Baseball may be America’s favorite pastime, but liberals have a favorite pastime of their own; stretching and warping the Constitution. They’ve been at it so long that it has become a sport which they excel at and one at which daily practice is strongly encouraged, if not already mandated, for any aspiring leftist.

Of course, they only succeed in this pursuit when discussing the Constitution amongst themselves. When they journey out into the real world they run into people like myself who have spent a lot of time discussing how they distort and down right lie about what is in the document that established our current government. When they try to engage in their favorite sport with normal Americans who are not willfully blind as to what the Constitution says and have a grasp of the English language beyond that of a first grader, they fail miserably with their spin which always leads to interesting, if not ignorant, slogans, rants and shout-fests.

Rep. John “Cut and Run” Murtha may just be finding out that he and his liberal brethren have stretched the Constitution as far as the Constitution is willing to stretch even with a healthy suspension of logic, history and basic English however. Last week, U.S. District Judge Rosemary M. Collyer ordered Rep. Murtha to give a sworn deposition in the case brought against him by Marine Staff Sgt. Frank Wuterich relating to his unwise, ignorant and self-serving comments about the marines in Haditha participating in “cold-blooded murder and war crimes”. It is important to note that the case against these Marines has fallen apart.

Murtha’s defense, which was rejected so far by the judge, was that Murtha was immune from prosecution and even questioning about the incident because those comments were made while acting in his official role as a United States Representative. This is an apparent reference to Article I, Section 6 of the Constitution and his “interpretation” of what it says which might get by people unable to actually read the Constitution. But since I actually can, it isn’t going to fly with me and apparently not with the judge either.

For the record, Article I, Section 6 states in it’s entirety: “The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.”

The long and the short of this section is that if you are an elected representative of the United States in either house of Congress you cannot be arrested while the Congress is in session, nor can you be arrested while traveling to or from said session. It also grants immunity from prosecution for any “speech” or “debate” that takes place on the floor by saying that they “shall not be questioned in any other Place”. Which would include a court of law. The exceptions to this are of course given as when the Representative or Senator commits a Felony, Treason or “Breach of the Peace”.

Notice there is no exemption for acting in your “official role” beyond these limited descriptions. It is important to note at this time that John “Our Troops Are Murderers” Murtha made the statements with regards to our soldiers and promulgated his charges at places other than during a “speech” or “debate” in the House such as at press conferences and on Chris Matthew’s television program.

So is he immune? Should he not be questioned? Should he just be free to continue to make these assertions? Not unless you really, really stretch the meaning of the Constitution and read between the lines by inserting language that isn’t there. Making such statements during Speeches and Debates in the House may be deplorable and anti-American in as much that they were made without evidence and to prejudice the case against the Marines to promote John Murtha’s delusions, but his despicable acts would be protected. However once he steps out of the Halls of Congress he has no more protection.

He is not being arrested either. This is a civil suit, not a criminal matter. So again, Article I, Section 6 does not apply. Now, if he refuses the order to comply he could be faced with an arrestable offense such as contempt of court. In such a case, he had better convince the House to remain in permanent session and always be in a constant state of travel to and from the Capitol when it is to avoid arrest.

You could also make a strong case that his words provided aid and comfort to the enemy since the Haditha incident was used by our enemies against America and freedom seeking Iraqis. And since Treason is a clear exemption to this clause as well as the first amendment I certainly would be looking over my shoulder if I were Mr. Murtha.

But it’s just the Constitution. Right? And since when do liberals actually care about what the Constitution actually says? Since when do Congressmen care that their power is not unlimited? So I am sure that John “Where’s My White Flag?” Murtha will continue to whine and twist and squirm in an attempt to avoid the truth.

All the while his fellow members of Congress can continue to their smoke screen to cover their own failures. They can run cover for him and promulgate abuses of their power by waging a dog and pony show over things Rush Limbaugh didn’t even say with regards to our troops who are serving bravely over in Iraq and slamming General Patraeus and calling our troops NAZIs, stupid and anything else that they can think of. All for what? In order to try and further convince moonbats who naively believe that the troops really do agree with their stance on the war? Despite the fact that they are continually signing up and even re-upping to serve in a time of war for a mission the liberals detest so much?

Perhaps we are finally getting to a point where the Constitution has been stretched as far as it can be by the left to support their ideas and goals. But even if it has, I doubt they will stop trying to stretch it even further. At which point it is only a matter of whether it will snap back like a rubber band and leave a massive welt or completely break.

God help us if it is that latter

We should have a review of our Constitution.

Dalip Singh Wasan, Advocate,

Formerly employment Officer P.E.S. II.

E.Mail. dalipsinghwassan @ Yahoo Co.In.

We must accept that our Constitution had accepted all good items available in Constitutions of other countries and therefore, it is a comperhensive document and shall be guiding us for all the times to come. We have been conducting review and there had been some amendments in this Constitution. Still we need more amendments because uptil now we could not provide that only competent people should come forward in the houses. We could not provide maximum age uptil which they shall be in the houses. It would have been better if people who are more than 70 years age should not be present in the house and we should have abolished all the state level legislative assemblies because one Parliament is enough to represnt us. We are one country and we have got one types of our problems and the situations and conditions are also the same. We have got one nation and when we have a deep look, all the provinces have created so many problems for us. These units have given birth to religious and regional political parties and now these parties are taking more than due place in the centre too. Had there been one Parliament in this country, there were chances that there could have been two to three political parties there were chances that these parties would have taken competent people in them. All and sundary would not have been allowed to enter these two to three parties and there were chances that these parties would have adopted the path of giving us shadow cabinets and we, the people of India would have been given a chance to elect ministers direct. The present system of appointing ministers by the Prime Minister is not healthy because here we are obliged to appoint ministers as their share in the government and merit is no consideration. That is the reason there is no unity in the cabinet and they just work. Since ministers are not appointed on the basis of merits, they are not in a position to hold charge of people working under them. Rather they work under the bureaucracy and in most of the cases orders are passed by the bureaucracy and signed by the ministers. Such government cannot be called a

democracy.

We should think of establishing one Public Service Commission for the whole country and similarly there should be Subordinate Services Selection Board for whole of the country. We should see that the Employment Exchanges are also allowed to function and if candidates appointed through these agencies are found fit their services should be regularised without rooting them thrrough the Subordinate Service Selection Boards. Recruitment to all offices should be made through these agencies and even establishments in private sectors be invited to utilise the services of these organisations. We should not disturb and put into difficulties our unemployed people and they should be tested once and given job as per their performance in the competitive test.

We should abolish all schools and colleges which are estrablished on religious basis and there should be educational institutions as national institutions and none should be allowed to preach his own religion through these institutions. We should limit the religious institutions in the country their numbers be fixed by the state and the state must have an eye on these institution so that they may not be giving birth to fundamentalists who can cause danger to our unity and integrity.

We should have one law for the whole of India so that the people must be in a position to understand law and they also start believing that people of one part are not better placed. Whole of India must be open to all of us and none of the state be allowed to see that people of its own area are getting jobs under the state and people from other states are not allowed to participate in competitions.

We should ensure that each one of us has got proper education, proper training and proper adjustment at work from where each one is carrying adequate income with which he is able to run his family administration. We are more than 100 crore in number and therefore, we need a working force of about 40,00,00,000 and if such an assessment is carried out, we shall be short of workers. There had been some defect in our plannings that we could not develop such a structure in which each one of us should have been at work and none should have been dependant upon others.

We may allow to the people religious libirty, but time has come when we shall have to see that people who are living on charity should not be allowed to increase in number. even to day this number is on higher side and we must try to see that no one is allowed to live on charity alone and everyone should be at work because when a nation has got a large number of people living on charity, more and more people shall be joining this line and thus burdon on working people is increased and this is not a healthy sign. We should have an introspection and must see that this number is decreased.

We should see that people of one religion should not be allowed to concentrate on one place. They must be asked to disperse and locate themselves amongst people of other religions because people of one religion are located at one place, they start demanding something which our Constitution dies notallow. We should have one common civil code in which system of marriage and divorce should be one and similarly we should be having one succession law with us. We should see that the family should be bound to look after the infirm and old people and every child must get proper education and proper training. The nation must look after the child through his or her parents, but none of them should be allowed to go astray.

Till we have one spirit, we shall never become a nation and till we attain the status of a nation all these terrorism and riots shall be hampering our progress and we shall remain a backward country. Therefore, we should see that each one of us must get all these fundamental rightws automatically and is not is compelled to fight for these rights in Courts.

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