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

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

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

Abstract

This topic focuses on Constitution. It is describing that people have the right to make the constitution. As people choose their government so the government is their representative. Therefore it depends on the people whom they elect for their representative. The constitution is basically the antecedent of government. They have the ultimate power. I have tried to show some evidence regarding this by doing some legal researches from different books and Articles.  Basically I have talked about three countries constitution UK, USA and Bangladesh and compared their constitution and tried to find whether the power actually lies within the people or not. I have also given some of the examples of other countries to see how their constitution works. I have discussed the structure of constitution of these three countries and after analysing it I have given some of my opinions.

Table of content

  1. Introduction…………………………………………4
  1. British Constitution……………………………..6
    1. Structure Of BritishConstitution…7
  1. Bangladesh Constitution………………………9
    1. Structure ofBangladesh Constitution……………………………………11
  1. US Constitution……………………………………12
    1. Structure of US Constitution……….13
  1. Opinion…………………………………………………..15
  2. Bibliography…………………………………………..16

Introduction

A constitution is a set of rules that tells the people how they should behave in an organization and what are rights and liabilities of that organization. It will tell the citizens how to behave in the country. It will give them the power to do anything. Constitution whether written or unwritten but it acts as a legal custom and opinion. Constitution discusses two issues:

  1. Command
  2. Codes of conduct

It does not tell directly about punishment. This makes the difference between law and constitution. However this constitution is in the hand of the public. Basically the people have the right to select the government. The government is the representative of the people. As the government makes the constitution therefore the ultimate power goes to the people.[1] It is defined in constitution itself that people have the right to change their government.[2]

Written constitution came into effect during the eighteenth and nineteenth centuries in Europe. The concept of constitution was first introduced by the ancient Greece. The United States was influenced by the Greek models and created their own constitution in 1787. During the twentieth century different countries around the world concluded that constitution is a necessary part of democratic or republican government, therefore many countries started to adopt their own constitution.[3] When Scotland became independent their first article stated that the sovereignty lies with people of the Scotland.[4]

Professor KC Wheare classifies constitution in six ways and the classification is given according to the countries. E.g. USA constitution is written, rigid, supreme federal, separated powers and republican. However UK constitution is unwritten, flexible, subordinate, unitary, monarchical and has fused powers.[5]

Almost every country around the world has written constitution. However there are exceptions like UK, Israel, do not have written constitution. But they have many laws and regulation which are consider as constitution. Constitution does not have value in chaotic corrupt or dictorial system. [6]

The Philosopher Aristotle in his book “Politics” described constitution as:

“Constitution as creating the frame upon which the government and laws of a society are built”[7]

According to Thomas Paine:

A constitution is not the act of a government, but of people constituting government and a government without a constitution is power without right. A constitution is a thing antecedent to a government and a government is only the creature of a constitution”.[8]

For example, Afghanistan is unable to implement constitution as the country is ruled by clans and warlords and they have their own rules so they do not encourage any new national constitution. There are many governments who claim that they follow constitution but in reality they do not follow true constitutionalism. For Instance, Soviet Union constitution was created in 1936 but that document did not establish a truly constitutional form of government. It talked about freedom of speech but in practice it continually kept back those who wanted to express those freedoms. It looked democratic in his paper but in reality it was violated by the ruler and the system.[9]

Constitution is mainly formed so that the structure of the government is formalized, to justify the attempt of government rights to govern and to provide the symbolic function of writing the national ideal.[10]

British Constitution

In Britain there is no written constitution. It does not have any codes, document or any kind of rules that would help you to distinguish the relation between government institution and the citizens. However it is consider that Britain has a constitution as it has laws, customs and conventions but those laws, customs and conventions is not written. The reason behind of not having a written constitution is as the system has evolved over centuries so there was already established ways of conducting politics in Britain. Written constitution came into effect from the last two hundred years and it is mostly adopted by the countries or states which are newly independent.[11]

Structure of British constitution

In Britain it has legislative, judiciary and executive branch but the power is vested only to the queen.[12]

In Britain they follow four sources of constitution:[13]

1) Statutes law

Statute law is the law made by the parliament.

2) Judge’s interpretation

In this law the judges do not decide the validity of laws rather their main job is to see whether all the Acts has been properly applied.

3)      European Community Law

It is a treaty which was signed by Britain in 1972 and according to this treaty the British authority has to follow all the rules and regulation made by the European Community.

4) Common Law

Under the common law all the citizen, high ranking officials have to follow a set of laws and the exercise of government power is limited to those laws.[14]

5) Convention

At first this were not considered as law but as this has been existing for so may years as a result it is considered as law.[15]

In UK the sovereignty power is exercised by the Queen, Lords and Commons. She has the right to make and dismiss a parliament. The parliament has the right to make and change any laws.[16] However to pass any Bill or law in the parliament the consent of Queen is necessary, without her consent no bill would be passed in the parliament and this indicates that the queen have the veto power on all the legislation passed by the government.[17]

In Britain there was a demand for an entrenched Bill of rights to protect the rights of the citizen but unfortunately Britain does not provide guarantee for individual rights of the citizen.[18] Even the Prime minister is elected by the citizen and parliament and overall majority of seats in the House of Commons and then the Queen have the right to appoint anyone she likes. If she wants she can even keep the post vacant. [19]

This kind of unwritten constitution creates problem in the country. As England does not have any written constitution so it makes really difficult for other countries to know what are rules and regulations of UK. It also says that in UK the constitution can be changed easily as they are not written but in other countries it is difficult to change.[20]

Bangladesh Constitution

Bangladesh constitution was started in 1972 after the independence. After the independence the Constituent Assembly of Bangladesh was created by the Constituent Assembly Order 1972 on March 22, 1972. The Constituent Assembly consist the elected representatives. These representatives came up with the Constitution of the People’s Republic of Bangladesh on 4th November 1972. But it was started from 16th December 1972. As Bangladesh has a bad experience in the past so they decided that they declare the Preamble and Articles of their constitutional law. The first amendment was brought in July 1973 where it has talked about empowering the government with full authority. The second amendment act was brought in September 1973 introducing a condition for declaring a state of emergency by the president.[21]

According to Article 8 there are four principles about state policy- nationalism, socialism, democracy and secularism.[22] However this has been replaced in the preamble to “absolute trust and faith to Almighty Allah, nationalism, democracy and socialism mean economic and social justice.”[23]

Bangladesh is a democratic country where the government is elected by the people. The Constitution of Bangladesh is divided into 11 parts which are subdivided into 153 Articles. [24]According to Article 7 it is stated that “All powers in the republic belong to the people, and their exercise on behalf of the people shall be affected only under, and by the authority of, this Constitution”. This article also stated that “This constitution is the solemn expression of the will of the people, the supreme law of the republic, and if any other law is inconsistent with this constitution and that other law shall, to the extent of the inconsistency, be void.”[25]

Article 142 gives power to the parliament to change any constitution. However the legal experts say that constitution should be permanent but as everything is changing so constitution may be changed for future development.[26]

In the Fifth Amendment case it has been said that through elected government the people are representing themselves. The government is the agent of the people and representing the country on behalf of them. Basically the people are the owner of the country and their superiority is recognized through constitution.[27]

According to the constitution of Bangladesh the state should provide the people with some fundamental rights and they are “the basic necessities of life, the right to employment at a reasonable wage; the right to reasonable rest, recreation, and leisure and the right to social security etc.”[28]

Structure of Bangladesh Constitution

Former Shahabuddin Ahmed stated on the Constitution eighth amendment case that Bangladesh constitution structure is based on certain principles and they are- “Sovereignty belongs to the people , supremacy of the constitution as the solemn will of the people, democracy, republican government, unitary state, separation of powers, independence of the judiciary and the fundamentals right.”[29]

The pattern of constitution of Bangladesh is closely related to British and United States constitution. Bangladesh has branches legislative, executive and judicial which is similar to United States. When the Bangladesh constitution first created it has prime minister which resembles the British constitution.[30]

In Bangladesh constitution parts are equivalent to Articles and some of them contains chapters in Bangladesh constitution which is equivalent to sections and the articles in Bangladesh constitution is similar to clauses of US Constitution.

Bangladesh constitution comprises of three main branches:

  • Legislative branch- the branch in which the government makes laws.
  • Executive branch- the branch of government that executes the law
  • Judicial branch- it is the system law court which talks about justice and constitute the judicial branch of the government.[31]

Articles 4 through Articles 6 it outlines the duties of legislature, executive and judiciary branches. In Bangladesh the constitution has been amended every time a new government comes into power. Since 1971 it has been amended 14 times. But to do this amendment it requires approval from at least two-thirds of the total number of Member of Parliament.[32]

U.S. Constitution

The American constitution is one of the oldest constitutions in the whole world. The primary aim of the constitution is to select a government which will be the direct response of the will of the people. The concept of the self government did not originate from United States rather it came from England but the Americans came with the unique idea that the constitution committed by the government of the United States should be ruled by the people.[33]

Structure of the U.S Constitution

The U.S constitution is known as “The Supreme Law of the Land”. The format of the election is American people choose their government by giving votes in a ballot box. There are three main branches of government in USA- executive, legislative, judicial. They are separate and distinct from one another. Executive is the branch of the government that executes the laws, legislature makes laws and judiciary is the system of law courts that constitute the judicial branch of the government and also manage justice.[34]

Different states have different constitutional laws. For example in Washington State Constitution the Article 1 is related to declaration of rights. In this Article in Section 1 it is stated that all the political powers are belong to the people and the government is only their representatives.[35] In USA within two years there were rapid changes in the amendments so the first 10 amendments are called the bill of rights. The bill of rights protects the basic freedom of the citizens of the United States. In United States there are seven articles and twenty-four amendments.[36] However it is very difficult to change these amendments in US compared to other countries as it requires two-third approval from both Senate and the House of Representative and then ratification by three-fourths of the state legislature.[37]

USA provides civil rights to the people through their Bill of rights where the citizen has the freedom to speak and vote. The first ten amendments are called the bill of rights. The US government does not provide economic rights to the people.[38]

Opinion

Different countries have different constitution which matches to their traditions and customs. As I have analyzed only three countries and also given some of the exmaples of other countries more or less most of the countries constitution is same except UK. Constitution is the representative of the people but unfortunately Bangladesh constitution does not represent people. They are written but those things are not followed. But if we compare with UK they do not have written constitution still they are so strong that they still hold their customs. It is the people who give the right to government and the government is only their representative so they need to think about the people. In Bangladesh constitution is only written nothing is followed only corruption is their. If we can follow our constitution we hope to see a beautiful country.

However unwritten constitution have problems as they can be changed very easily but on the other hand US and Bangladesh constitution is very difficult to change. The constitution of UK do not have any individual right but in US and Bangladesh they do have individual right. However those rights are not followed in Bangladesh. Basically the constitution is in our hand so we have to decide which leader we should choose so that aour rights could be exercised properly.

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