“The constitution declares that sovereignty lies with the people and the Constitution is the embodiment and solemn expression of the will of people”

“The constitution declares that sovereignty lies with the people and the Constitution is the embodiment and solemn expression of the will of people”

TABLE OF CONTENTS

Title: The constitution declares that sovereignty lies with the people and the Constitution is the embodiment and solemn expression of the will of people.

1. 1. Introduction:

Constitution and Sovereignty is interrelated with each other. Every independent country has its own constitution as a basis to govern the country and this constitution reflects the powers, rights and duties of its citizens. The constitution defined the manner in which the rules should operate and also dictate what ought to be done in a given situation in a public place. Constitution declares fundamental human rights, state policy, functions of – legislature, executive and judiciary to ensure sovereignty among people. It also declared the separation of power among principle regulatory institutions which serve to give equal opportunity and law among all citizens without regarding race, religion or status. So constitution is all about public interest and that’s why it is very much important to constitute a constitution which will reflect people’s will and desire.

1. 2. What is Constitution?

According to Aristotle (384–322 b.c.):

A constitution may be defined as an organization of offices in a state, by which the method of their distribution is fixed, the sovereign authority is determined, and the nature of the end to be pursued by the association and all its members is prescribed. [1]

Constitution is a set of basic principles or established precedents on basis of which a state or other organization is governed.[2] These rules altogether constitute what the entity is and when these principles are written down into a single or set of legal documents, those documents are termed as a written constitution. Constitutions concern various segments of organizations performing, from sovereign[3] states to companies and unincorporated associations. In the case of countries, it is referred to a national constitution defining the fundamental political principles, and establishing the structure, procedures, powers and duties, of a government.[4] In a state of sovereign or federated[5], a constitution defines the principles upon which the state is based, the procedure in which laws are made and by whom. Most of the written constitutions act as limiters of state power by establishing lines and rules named as fundamental rights[6] which a state’s rulers cannot cross. Usually constitution and government are used to express more or less the same idea which is the manner by which sovereignty is exercised in each state.[7]

1. 3. What is Sovereignty?

By definition sovereignty is the supreme, absolute, and uncontrollable power in a state without accountability by which any independent state is governed; absolute political authority; the supreme will; paramount control of the constitution and frame of government and its administration; the self-sufficient source of political power, from which all specific political powers are derived; the international independence of a state combining with the right and power of regulating the domestic affairs without foreign intervention; and also the sovereign and independent political society, or state.[8]

In other word comprising supreme and independent authority over a geographic area such as a territory[9] or a state is termed as Sovereignty.  For the time being, sovereignty of a state was always connected to its capability to guarantee the best interests of its own citizens. Therefore, until and unless a state could not act in the best interests of its own citizens, it could not be said as a “sovereign” state.[10]

In the context of Rights and Duties of States, the Restatement of the Law Third states:

“Sovereignty’ is a term used in many senses and is much abused. As used here, it implies a state’s lawful control over it’s territory generally to the exclusion of other states, authority to govern in that territory, and authority to apply law there.”[11]

Basically sovereignty is classified into three great powers or three broad institutions; such as:

• The legislative,
• The executive, and
• The judiciary.

Legislative means having power to make new laws as well as modifying the old one. Executive is the power to execute the laws both at home and abroad; and Judiciary is the power to apply the laws to particular facts of the state and also to adjudicate conflicts between state institutions to punish crimes. To ensure sovereignty it is essential to have a sufficient interplay among these institutions.

1. 4. Sovereignty in constitution:

Constitution basically reflects the legality of power under which a government may perform. It is written or designed in such a way that can’t smash the sovereignty of people. Because sovereignty indicates that creation of government is dependent on the consent of the people, and that political power comes from the people and that’s why in every constitution the will of people is focused.

• Fundamental rights ensured:

For every citizen in a country human right is the first and foremost need and constitution is obliged to ensure that. In the constitution of Bangladesh it is written that,

“The Republic shall be a democracy in which fundamental human rights and freedoms and respect for the dignity and worth of the human person shall be guaranteed, and in which effective participation by the people through their elected representatives in administration at all levels shall be ensured”.[12]

Constitution declares the provision of basic necessities for a citizen.  It is written at the constitution that the govt. should be responsible  to  attain this  through  planned  economic growth, a stable  increase of productive  forces and a sound  improvement  in  the material and cultural standard of living of the people for securing citizens of a country.  It is concerned to basic necessities like food, cloth, shelter, education and medical care; right to social security; as well as right to work with a regard to quality and quantity of work.[13] Constitution also implies that every citizen in a country should exercise equal power and opportunity.

Freedom of citizens in a country is another factor for ensuring sovereignty. In constitution it is stated that every citizen should have the freedom of movement that is the right to move freely throughout country or state, to reside and stay in any place in that and to leave and re-enter the country.

In constitution of Bangladesh, it is stated that every citizen should have freedom of assembly to participate in public meetings and processions peacefully and without arms. It also ensures the freedom to form associations or unions; freedom of thought and conscience as well as of speech, expression and press. It is stated that, every citizen in a country possessing such qualifications, as may be prescribed by law in relation to his profession, occupation, trade or business should have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business. That is everyone in a country has the freedom to do any legal business. In addition in constitution it is declared that everybody in a country has the right to profess, practice or propagates any religion as well as every religious community or denomination has the right to launch, maintain and control its religious institutions. It is also declared that any  person  attending  any  educational  institution  is  required  to  receive  religious instruction, or to take part in or to attend any religious ceremony or worship, if that instruction, ceremony or worship relates to a religion other than his own.[14] Constitution protects the interests of minorities saying that no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.[15]

The constitution provides for basic or fundamental rights and the enjoyment and enforcement of those rights have been guaranteed in the Constitution. It is also stated that no authority can make any law which is inconsistent with provisions of the fundamental right and if any law made shell be void to the inconsistency.[16] So it can be said that constitution ensures a citizen’s freedom in a state, their basic rights as well as social security.

As discussed earlier sovereignty concerns with three great powers named legislative, executive and judiciary. Addressed to constitution of Bangladesh, Part V, the legislature part is comprised of three chapters such as Parliament, Legislative and Financial Procedures, and Ordinance Making Power.

• Legislature:

Constitution states that a Parliament should be established for Bangladesh (to be known as the House of the Nation) in which subject to the provisions of this Constitution, should be vested the legislative powers of the Republic.[17] This parliament has a periodic session to seat where the representatives on behalf of general people from different districts or states are gathered together to place upon the queries and problems to the Prime minister or chief of the government. Parliament can be summoned, prorogued and dissolved by the President by public notification if it is in the interest of people. That means the legislature is established to ensure the accountability of govt. to the people which ensures a sovereign country.

• Executive:

The Constitution of Bangladesh provides that President is at the highest power of the country. He or she is elected by the members of Parliament in accordance with law. The constitution of Bangladesh states under Article 1 that,

“Bangladesh is unitary[18] people’s republic”

That means all source of power to rule the country is centralized on constitution. Also it is stated that Bangladesh follows Westminster type of parliamentary system. This form of government is run by Cabinet of Ministers headed by the Prime Minister and this selection is totally dependent on the general public, because only people have the right to vote a person to rule the country.

• Judiciary:

Independent judiciary is guaranteed in the constitution. It is stated in article 22 that,

“The State shall ensure the separation of the judiciary from the executive organs of the State” [19]

That means judiciary should be separated from the executive to ensure the right and equal judgments for the general public. Firstly, provision is made that the President will appoint the Chief Justice and other justice of the Supreme Court will be appointed by consulting with Chief Justice. Secondly, without any order a judge can not be removed from his office. President passed to a declaration of Parliament after it is voted by a two-third the parliament. Thirdly, Supreme Court has the utmost control over the person employed in judicial service including the power of posting, promotion as well as disciplinary actions.

• Separation of power:

A basic constitutional concept is separation of powers. It assess that powers vested in the major institutions of the state or country – legislature, executive and judiciary – should not be centralized in the hands of one institution. It ensures checking of the power exercised by each institution as well as prevents the potential for oppression which may otherwise happen. The constitution clearly defined the boundaries of power and also made provisions limiting one institution from exercising the power of another which confirms the separation of power within the country or state.[20]

1. 5. Conclusion:

From the above discussion we can say that Constitution is an important written document for every country. It is the sign of people’s wishes and desires. It is written in such a way that can’t bring any harmful action against the country’s citizen. Constitution ensures basic human rights along with equality among all the citizens. It is also stated that if any change need to do in constitution then it should be for national interest in accordance with people’ expectation as well as desire. That means constitution declares that national interest in other word citizen’s interest is well above the personal or political interest.  Constitution of Bangladesh itself declared its supremacy by saying that,

Constitution is, as the solemn expression of the will of the people, the supreme law of Bangladesh, and if any other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency, be void.[Article 7(2) of the Constitution].[21]

So we can say, the constitution declares that sovereignty lies with the people and the Constitution is the embodiment and solemn expression of the will of people.

Bibliography

Books and articles:

i) Barker, Ernest, trans. and ed. (1946). The Politics of Aristotle. New York: Oxford Univ. Press.

ii) Bateman, C.G. (February 15, 2011). Nicaea and Sovereignty: Constantine’s Council of Nicaea as an Important Crossroad in the Development of European State Sovereignty. University of British Columbia. pp. 54–91.

iii) Constitution of the People’s Republic of Bangladesh (4^th November, 1972). Retrieved from www1.umn.edu/humanrts/research/bangladesh–constitution.pdf

iv) The Constitution of India. Retrieved from aptel.gov.in/pdf/constitutionof%20india%20acts.pdf

v) Constitution From the ‘Lectric Law Library’s Lexicon. Retrieved from http://www.lectlaw.com/ref.html

vi) Constitution. Retrieved from http://en.wikipedia.org/wiki/Constitution

vii) Constitution. The Free Dictionary. Retrieved from  http://encyclopedia.thefreedictionary.com/Constitution

viii) Definition of Sovereignty. ‘Bouvier’s Law Dictionary’ (1856 Edition). Retrieved from http://www.hawaii-nation.org/sovereignty.html

ix) Federated state. Retrieved from http://en.wikipedia.org/wiki/Federated_state

x) Fundamental rights. Retrieved from http://en.wikipedia.org/wiki/Fundamental_rights

xi) Sovereignty. Black’s Law Dictionary (Sixth Edition). Retrieved from http://www.hawaii-nation.org/sovereignty.html

xii) Sovereignty (politics). Britannica Online Encyclopedia. Retrieved on June 12, 2011.

xiii) Sovereign state. Retrieved from http://en.wikipedia.org/wiki/Sovereign_state

xiv) Taylor, C. (n. d.). Constitutional & Administrative Law. Chapter 1. P. 12

xv) The New Oxford American Dictionary, Second Edn., Erin McKean (editor), 2051 pages, May 2005, Oxford University Press, ISBN 0-19-517077-6.

[1] See Barker, Ernest, trans. and ed. 1946. The Politics of Aristotle. New York: Oxford Univ. Press.

[2] See The New Oxford American Dictionary, Second Edn., Erin McKean (editor), 2051 pages, May 2005, Oxford University Press, ISBN 0-19-517077-6.

[3] See sovereign available at http://en.wikipedia.org/wiki/Sovereign_state

[4] See constitution in The Free Dictionary available at http://encyclopedia.thefreedictionary.com/Constitution

[5] See federated state available at http://en.wikipedia.org/wiki/Federated_state

[6] See fundamental rights available at http://en.wikipedia.org/wiki/Fundamental_rights

[7] See Constitution From the ‘Lectric Law Library’s Lexicon available at http://www.lectlaw.com/ref.html

[8] See ‘Sovereignty’ in Black’s Law Dictionary (Sixth Edition) available at http://www.hawaii-nation.org/sovereignty.html

[9] See “sovereignty (politics)”. Britannica Online Encyclopedia. Retrieved on June 12, 2011.

[10] See Bateman, C.G. (February 15, 2011). Nicaea and Sovereignty: Constantine’s Council of Nicaea as an Important Crossroad in the Development of European State Sovereignty. University of British Columbia. pp. 54–91.

[11] See Definition of Sovereignty in ‘Bouvier’s Law Dictionary’ (1856 Edition) available at http://www.hawaii-nation.org/sovereignty.html

[12] Constitution of the People’s Republic of Bangladesh (4^th November, 1972). Part II, Sec 11.

[13] Paraphrasing from Constitution of the People’s Republic of Bangladesh (4^th November, 1972). Part II, Sec 15.

[14] Paraphrasing from Constitution of the People’s Republic of Bangladesh (4^th November, 1972). Part II, article 36-41.

[15] The Constitution of India. Part II, Sec 29 (1, 2).

[16] Constitution of the People’s Republic of Bangladesh (4^th November, 1972). Part III.

[17] Constitution of the People’s Republic of Bangladesh (4^th November, 1972). Part V, Chapter I (article 65).

[18] Unitary government means all power centralized under the Constitution, article 1

[19] Constitution of the People’s Republic of Bangladesh (4^th November, 1972). Part II, article 22.

[20] Paraphrasing from  Taylor, C. Constitutional & Administrative Law. Chapter 1. P. 12

[21] Constitution of the People’s Republic of Bangladesh (4^th November, 1972). Part I, article 7(2).