“The constitution declares that the sovereignty lies with the people and the constitution is the embodiment and solemn expression of the will of the people.”
This research paper focuses on the fact that according to constitution sovereignty lies within the people and constitution is the written expression of the people. In order to explain and illustrate this fact first I went through explaining what is constitution and sovereignty in this research paper. Then some legal facts have been discussed. Constitution of particular country, quotes and articles are included in there. Then some topics against this title have been discussed. Whether this topic is having a real impact or not in the modern world is also an important issue. Some examples were also given regarding the use of this topic. At last self opinion was included. Lots of articles and topic were taken from different sources for this secondary research. All the sources are included in this paper in the footnotes and the bibliography section.
Table of Content
The given topic denotes a firm relationship among the constitution, sovereignty and the people of a country. So, first a brief introduction regarding constitution and sovereignty will help to understand the contents of this research paper more easily.
In general constitution is basically a set of rules which provides a guide line for the members of any institution, organization or union. So, it basically defines the duties, power and rights of the organization. These defined rules and conditions will govern the internal aspect of the organization as well as outside aspects, such as how the organization will communicate with external outside parties. Therefore constitution looks upon on both the internal and external regulation of its related body.[1] A constitution is a nation’s highest law for many reasons. First of all, the constitution is more popular and straightforward than other laws. It provides basic power to official people and takes care of the basic rights of the citizens. On the other hand, most legislation implements policies. Second, constitution outsmarts other laws, because constitution wins whenever it collides with another state law. [2]
The concept of sovereignty, once relatively uncontested, has recently become a major bone of contention within international law and international relations theory.[3] For a long time the word sovereignty strongly stated that there is a supreme and powerful and absolute authority in the political community.[4] Sovereignty is one of the most advanced institutions of the earth and it gave a remarkable shape to the political life which distinguishes between modern and new era.[5] Philpott contends that the most specific definition of sovereignty gives the understanding of ‘supreme authority within a territory’.[6] So, basically sovereignty is – “The agreement and use of the human powers exists in the nation; it is the sum of all powers which can be exercised without accountability; to create laws and to apply them in reality; to make contributions and collect taxes; to announce war or making peace; to create treaties or business opportunities and commerce with foreign countries.”[7]
Next in this research paper I will be discussing some legal relevant issues and some irrelevant issues regarding this title which can be confusing sometimes. Next some real life application will be shown in order to explain this title further.
Relevant areas
Here I’ll discuss all the quotations from articles, from scholars and from constitution of some particular countries relevant to this topic. These discussion and quotation will help to understand the topic and prove the hypothesis.
- Bangladesh Constitution (supremacy of people):
Supremacy of the Constitution.
(1) All powers in the Republic belong to the people, and their exercise on behalf of the people shall be effected only under, and by the authority of, this Constitution.
(2) This Constitution is, as 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 other law shall, to the extent of the inconsistency, be void.[8]
- Constitution represents what people want:
Constitution is a written form of will of people in a country or state or a political unit. The constitution basically supports the following:
- The will of different types of ethnic people or race to live their life together as one entity and authorized basis on which they agrees to live together in such an entity.
- The thoughts and basic principles and objectives of the nation policy according to which they want to lead their lives.
- Public earnings and control over the public funds of the country or nation.
- The sort of internal aspects people wants at different levels of the government and their power, limitations and how they are going to function or work.[9]
In order to understand this topic more precisely we can look at what Benjamin Franklin said- “In free governments the rulers are the servants, and the people their superiors and sovereigns”.[10] According to Johnwade – Strictly speaking, in our republican forms of government, the absolute sovereignty of the nation is in the people of the nation; (q. v.) and the residuary sovereignty of each state, not granted to any of its public functionaries, is in the people of the state.[11]
During Napoleon I and Napoleon III the popular sovereignty got compromised due to the harassment of referenda. From a legitimacy point of view pure national sovereignty was thought to be not enough. In the article 3 of the constitution of the Fifth Republic this “compromise of compromise” can be found. It has been stated in the following form: ‘National sovereignty belongs to the people…’ It unifies the representative national sovereignty and the directly democratic, republican popular sovereignty. [12]
- French revolution in 1789:
During the French revolution in 1789 arose the idea that sovereignty lies within the people although the treaty of Westphalia gave the principle that sovereignty lies within the people. Locke said that people’s influence was required to legitimate rule and government guaranteed the protection of rights of people in return. Failure in protecting such rights will be considered as a crime and will be penalized. However, principle of popular sovereignty has continually been subordinated to claims of state sovereignty within the modern state system.[13] So, this statement proves the legitimate rules should be implied throughout the agreement of people. That means people are basically in charge of sovereignty.
- International covenant on civil and political rights:
According to article 16 individuals who have been constituted as “people” shall have the right to recognition everywhere as a person before law. People’s right of freedom of thought has been described in Article 18. According to article 19 people has the right to hold opinions without interference and people shall have the freedom of expression. Article 25 emphasizes on the right to participate in the political welfare of the state and to participate in public services and to vote.[14]
Issues against this topic
There is a term called – Deposed Monarchical Sovereignty. This term doesn’t actually go with our hypothesis because this term basically deals with non-territorial sovereignty of authentic royal houses. Further discussion will clear this fact.
The notion of the social contract implies that the people give up sovereignty to a government or other authority in order to receive or maintain social order through the rule of law.[15] The people’s authority was given over to the emperor… It is one thing when the people entrust its jurisdiction, but another when it transfers and abdicates it. If, therefore, someone who could do so sets up a superior for himself, he remains the inferior and the subject and loses sovereign authority… [From this point on] sovereignty does not lie in the hands of the.. people.[16]
.. . When the people have once transferred the ruling power, they cannot licitly [legally and lawfully] revoke it at will. If they have set up a hereditary monarchy, they are obliged to leave the ruling authority with the monarch and his heirs; and the succeeding generations are likewise bound by this original transfer and compact.[17]
Lex regia . . . was an irrevocable and complete grant of power by which “the control of the state is transferred for all time to the [monarch or] emperors. . . .” [It meant that] “all power was transferred to the prince by the people, who were thereby stripped of every vestige of sovereignty.[18]
When the absolute power is given to the recipient, the recipient is certainly called sovereign. The power has been alienated to him in order to invest him with all the powers, authorities and sovereign rights which was formerly owned by the people. According to the civil law it is expressed as “all power is conveyed and invested in him”.[19]
The issues discussed above are basically speaks against the given theory. Because according to the topic sovereignty belongs to the people, but discussion in this part suggests that sovereignty should be transferred from the people to another recipient and that recipient will be the only one with all the powers, authorities and sovereign rights.
Does this theory works in reality?
Here first I’ll discuss one interesting fact regarding the constitution of Bangladesh in order to see how this theory works in the real world, whether this theory is strictly being followed or not.
Bangladesh is a so-called “people’s republic”. But it seems that the constitution have not been written by “the people” or even with “the people” in the mind. The complication of the constitution is such that people will hardly understand even the Bengali version of the constitution. The thing is, it has been drafted by 17 jurists. Most of them got educated in UK by legal experts, for the legal experts.[20]
In United States governments are tied by elections and other means. However, “the people” are not hugely authoritative. This constitution has limits regarding the expression of people’s will. Without a huge effort in every state the constitution cannot be amended. That effort has to go beyond anything in order to select representatives. The constitution which was written by people a long time back posses more authority and power than the people living under it today. According to the constitution president has more authority than any other senator or representative. The U. S. Supreme Court has authority denied to all other Americans. And “the people” certainly do not act as a mass to govern themselves.[21] So, even though the constitution says that the American government is grounded in the ultimate authority of people the above article suggests that it is actually not. According to this article supreme court has the power denied to all other Americans.
On 4 July, 2004 a bill was drafted providing immunity to World Bank in Bangladesh. It means that bank as an institution shares no responsibility to answer the people it is meant to ‘serve’. The bank cannot be held liable for its action by the people and it cannot be taken to the court.[22] So, this statement goes against this theory because according to the theory people has the right if they are willing to question some inequality. But here the banks got protected against any action taken by people.
My own opinion:
According to me, in a “people’s republic’ country ‘people’ should have the right to exercise their will properly and the constitution should reflect that supreme power is actually held by the people and people are the ultimate decider of everything. After the detailed discussion of different acts and theories regarding this issue above it is clear that national sovereignty indeed belongs to the people.
But sometimes in some cases general people may not able to take proper decision due to the lack of knowledge regarding that particular issue. In that situation the government representative which is actually in a sense the people’s representative should take up the major authority in making decision regarding these issues.
According to the monarchical sovereignty term sovereignty doesn’t belong to the people. The royal houses enjoy the extreme authority and supreme power. This situation in a sense is a bit too extreme. People should also have their participation in exercising supreme power. So, I agree with the fact that sovereignty lies within the people and constitution is the written expression of the will of the people.
Conclusion
At the end it can be said that above discussions provide much information regarding the topic and indeed sovereignty or supreme power is something which should always involve the will of the general people. The constitution and government should act in order to protect the right of people. In the research paper there are some articles and quotes are included which suggests sovereignty doesn’t belong to people. But they basically express a different term. Even though there are lots of debates and controversies regarding these issues, sovereignty should belong to the people who occupies the majority of the state and they are the one who keep the whole nation up and running by their efforts.
So, in the end it can be said that, sovereignty does lie within the people and constitution just reflects this fact and also it the written expression of people’s will.
References
Azm. Pol 101. (p. 8)
Barnett, H. 2011. Constitutional and administrative law. Chapter. 1 (pp. 6-7). New York, NY: Routledge
Bartelson, J. (2006). The concept of sovereignty revisited. The European journal of international law, Vol. 17, no. 2, pp. 463
Constitution of people’s republic of Bangladesh. 7th article.
Cooter, R, D. 2000. The strategic constitution. (pp. 1). New Jersey: Princeton university press.
D. Philpott, ‘Ideas and the Revolution of Sovereignty’, in S. Hashmi, (ed.), State Sovereignty: Change and Persistence in International Relations, Pennsylvania University Press, Pennsylvania, 1997, p.19.
Hamburger, P. (2008). Law and judicial duty. (p. 72)
Hinsley, F, H. 1986. Sovereignty. 2nd edition. (pp. 1). New York, NY: Press syndicate of the University of Cambridge
IFI Watch Bangladesh (2004, September). Vol. 1, No. 1. The world bank and the question of immunity. Retrieved from http://www.unnayan.org/Other/IFI_Watch_Bangladesh_Vol_1%20No_1.pdf
Introduction to contemporary civilization in the west. Vol. 1, 3rd edi., Columbia college, 1960, p. 483
Jakab, A. Neutralizing the sovereignty question. (pp. 3). Retrieved from http://www.astrid-online.it/eu/Contributi/Studi-e-ri/Jakab-Sovereignty-Athens_June07.pdf
Johnwade. (2011, may). SOVEREIGNTY. Constitution.org on Soverneignty. Retrieved from http://johnwademoore.net/content/constitutionorg-sovereignty
Joseph Canning. The political thought of baldus de ubaldis, 2003, p. 59
Law – sovereignty and the international order. (1st paragraph). Retrieved from http://science.jrank.org/pages/9931/Law-Sovereignty-International-Order.html
National Open University of Nigeria. (2008). 3.2 The nature of the constitution. Law243: Constitutional law. (pp. 7). Retrieved from http://www.nou.edu.ng/noun/NOUN_OCL/pdf/Law%20243.pdf
R. Jackson, ‘Sovereignty in World Politics: A Glance at the Conceptual and Historical Landscape’, Political
Studies, Vol. 47, p.413.
Ryan, J. A. Catholic doctrine on the right of self-government. Catholic world, vol. 108, January 1919, p. 443
Skillen, J, W. (1994). Government and the people (5th paragraph). The question of authority. Retrieved from http://www.cpjustice.org/node/920
Social contract. Retrieved from http://en.wikipedia.org/wiki/Social_contract
Thomas, H. (2004). The myth of absolute sovereignty. Cosmopolitan sovereignty. (pp. 8). Retrieved from http://www.adelaide.edu.au/apsa/docs_papers/Others/Thomas.pdf
[1] Barnett, H. 2011. Constitutional and administrative law. Chapter. 1 (pp. 6-7). New York, NY: Routledge.
[2] Cooter, R, D. 2000. The strategic constitution. (pp. 1). New Jersey: Princeton university press.
[3] Bartelson, J. (2006). The concept of sovereignty revisited. The European journal of international law, Vol. 17, no. 2, pp. 463
[4] Hinsley, F, H. 1986. Sovereignty. 2nd edition. (pp. 1). New York, NY: Press syndicate of the University of Cambridge.
[5] R. Jackson, ‘Sovereignty in World Politics: A Glance at the Conceptual and Historical Landscape’, Political
Studies, Vol. 47, p.413.
[6] D. Philpott, ‘Ideas and the Revolution of Sovereignty’, in S. Hashmi, (ed.), State Sovereignty: Change and
Persistence in International Relations, Pennsylvania University Press, Pennsylvania, 1997, p.19.
[7] Johnwade. (2011, may). SOVEREIGNTY. Constitution.org on Soverneignty. Retrieved from http://johnwademoore.net/content/constitutionorg-sovereignty
[8] Constitution of people’s republic of Bangladesh. 7th article.
[9] National Open University of Nigeria. (2008). 3.2 The nature of the constitution. Law243: Constitutional law. (pp. 7). Retrieved from http://www.nou.edu.ng/noun/NOUN_OCL/pdf/Law%20243.pdf
[10] Johnwade. (2011). Constitution.org on sovereignty. Retrieved from http://johnwademoore.net/content/constitutionorg-sovereignty
[11] Johnwade (2011). SOVEREIGNTY (4th paragraph). Constitution.org on sovereignty. Retrieved from http://johnwademoore.net/content/constitutionorg-sovereignty
[12] Jakab, A. Neutralizing the sovereignty question. (pp. 3). Retrieved from http://www.astrid-online.it/eu/Contributi/Studi-e-ri/Jakab-Sovereignty-Athens_June07.pdf
[13] Thomas, H. (2004). The myth of absolute sovereignty. Cosmopolitan sovereignty. (pp. 8). Retrieved from http://www.adelaide.edu.au/apsa/docs_papers/Others/Thomas.pdf
[14] Law – sovereignty and the international order. (1st paragraph). Retrieved from http://science.jrank.org/pages/9931/Law-Sovereignty-International-Order.html
[15] Social contract. Retrieved from http://en.wikipedia.org/wiki/Social_contract
[16] Joseph Canning. The political thought of baldus de ubaldis, 2003, p. 59
[17] Ryan, J. A. Catholic doctrine on the right of self-government. Catholic world, vol. 108, January 1919, p. 443
[18] Hamburger, P. (2008). Law and judicial duty. (p. 72)
[19] Introduction to contemporary civilization in the west. Vol. 1, 3rd edi., Columbia college, 1960, p. 483
[20] Azm. Pol 101. (p. 8)
[21] Skillen, J, W. (1994). Government and the people (5th paragraph). The question of authority. Retrieved from http://www.cpjustice.org/node/920
[22] IFI Watch Bangladesh (2004, September). Vol. 1, No. 1. The world bank and the question of immunity. Retrieved from http://www.unnayan.org/Other/IFI_Watch_Bangladesh_Vol_1%20No_1.pdf