Title: ‘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.’
Abstract
The assignment focuses on the Constitution’s aspect of Supremacy of the Constitution, which basically means constitutional supremacy is a well accepted characteristic of the Constitution where the government’s power to regulate has been limited within the boundary assigned by the Constitution and any law which conflicts the Constitution itself should be invalidated. The article also signifies that the Republic belongs to the public and the Constitution is the reflection of the general people’s will. All through the assignment I tried to focus on the Constitutional Supremacy across countries-especially in UK, US, and Bangladesh. In addition I gave some insight of the Constitutional practices in these countries with some historical background. For further illustration, some direct quotations were included to further elaborate the idea of Constitutional Supremacy. I tried to put on some thought of my own about the topic before concluding the assignment.
Table of content
- Introduction………………………………………………….4
- US Constitution…………………………………………….6
- UK Constitution……………………………………………9
- BANGLADESH Constitution……………………….12
- Opinion………………………………………………………15
- Bibliography……………………………………………….16
INTRODUCTION
The constitution of a nation is its supreme law, wherefrom the powers of government are derived and wherein the rights of the citizens of that nation are outlined.[1] In common usage, a constitution is a document that outlines the structure of a political system. In simple language, a constitution is the instruction book for how things work. Most constitutions also specify individual rights and freedoms.
The form of a constitution differs from country to country. Although in most countries it’s in written form, however there are exception where there are laws and declarations which serve as constitution, for instance in UK and Israel.
The purpose of Constitution has been identified to have a physical written form of the national thoughts, giving a structure to the government, and finally to give the rule of the government justification.[2]
The Constitution has been classified by Professor KC Wheare in the following manners:[3]
1) Written and unwritten- US written and unwritten UK
2) Rigid and flexible- US & Australia rigid and UK flexible
3) Supreme and subordinate- Bangladesh portray supreme and UK subordinate
4) Federal and unitary- USA, Canada, and Malaysia federal and UK unitary
5) Separated power and fused powers- USA separated power and UK fused power
6) Republican and monarchical – USA and Bangladesh republican, and UK monarchical
Thomas Paine, one of the founding fathers of the US described “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 only the creature of the constitution.”[4]
Hilaire Barnett, a famous scholar in law from Queen Mary University of London, further elaborated the thought of Thomas Paine by stating that “from this definition it can be discerned that a constitution is something, which is prior to government, or, as Paine expresses it ‘antecedent’ to government giving legitimacy to the government and defining the powers under which a government may act.”[5]
U.S CONSTITUTION
Background
The Constitution of the United States was written in 1787. It is still used as the plan for the US government. This first section of the Constitution is called the Preamble. The Preamble lists the reasons that the Constitution was created. The writers of the Constitution wanted people to be protected and free. They wanted peace at home. By starting with the phrase “We the People,” the Preamble shows that citizens of the United States created this plan to govern themselves.[6]
Primary Source
“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”[7]
Structure of the U.S Constitution
The Constitutional Supremacy is evident in US Constitution, where it is known as “The Supreme Law of the Land”. While selecting the government, democracy is seen well in act. The general people are allowed to voice their choice through the election, where they choose the party of their choice to rule the country.[8]
Article VI, section 2 of the U. S. Constitution which reads: “This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding.” Thus a Supreme Court ruling can be binding on state courts if involving a constitutional issue.[9]
Article VI, Section 2, of the U.S. Constitution is known as the Supremacy Clause because it provides that the “Constitution, and the Laws of the United States … shall be the supreme Law of the Land.” It means that the federal government, in exercising any of the powers counted in the Constitution, must persist over any contradictory or discrepant state exercise of power.[10]
The concept of federal supremacy was developed by Chief Justice John Marshall, who led the Supreme Court from 1801 to 1835. In mcculloch v. maryland, 17 U.S. (4 Wheat.) 316, 4 L. Ed. 579 (1819), the Court invalidated a Maryland law that taxed all banks in the state, including a branch of the national bank located at Baltimore. Marshall held that although none of the enumerated powers of Congress explicitly authorized the incorporation of the national bank, the Necessary and Proper Clause provided the basis for Congress’s action. Having established that the exercise of authority was proper, Marshall concluded that “the government of the Union, though limited in its power, is supreme within its sphere of action.”[11]
The Supremacy Clause also requires state legislatures to take into account policies adopted by the federal government. Two issues arise when State Action is in apparent conflict with federal law. The first is whether the congressional action falls within the powers granted to Congress. If Congress exceeded its authority, the congressional act is invalid and, despite the Supremacy Clause, has no priority over state action. The second issue is whether Congress intended its policy to supersede state policy. Congress often acts without intent to preempt state policy making or with intent to preempt state policy on a limited set of issues. Congress may intend state and federal policies to coexist.[12]
In Pennsylvania v. Nelson, 350 U.S. 497, 76 S. Ct. 477, 100 L. Ed. 640 (1956), the Supreme Court developed criteria for assessing whether federal law preempts state action when Congress has not specifically stated its intent. These criteria include whether the scheme of federal regulations is “so pervasive as to make the inference that Congress left no room for the States to supplement it,” whether the federal interest “is so dominant that the federal system [must] be assumed to preclude enforcement of state laws on the same subject,” or whether the enforcement of a state law “presents a serious danger of conflict with the administration of the federal program.”[13]
UK COSTITUTION
The British Constitution is unwritten or in other words uncodified. The main reason of this is Britain constitution has evolved over centuries and they were already established with their old customs so they do not want any constitution. Basically the concept of constitution is being followed by the countries that have become independent very recently for example United State of America. The British monarchy has proved to be a durable institution. It has monarchy from the tenth century. In British constitution it has four sources of laws- statute law, European community law, common law, judge’s interpretation and convention. In British constitution the sovereignty power lies within the Queen. She has the power to make all the decisions. To pass any law it has to take consent from the queen otherwise the bill will not be passed. The united nation constitution is unitary as the power is given to the Northern Ireland, Scottish and Welsh Legislature and to local government under the Act of the United Kingdom parliament. The sovereignty power lies within the queen. She has the right to make all the decision. She can appoint the Prime minister and if she want she might not appoint any prime minister and keep the post vacant. The citizen elect the prime minister and the queen appoint them. In UK constitution there is no law to protect individual rights. The UK constitution is flexible as it is not written. It can be changed anytime. It does not have separated powers rather it has fused power meaning the power is not separated to different branches rather it is concentrated only in the hands of the Queen.[14]
BANGLADESH CONSTITUTION
Background: It was the following of the liberation war that the constitution took its shape and formalized into a structure form. The preamble reflects the characteristics of the Bengali people, their support towards secularism and several other Bengali cultures.
The constitution of Bangladesh is divided into 11 parts, which are further subdivided into 153 articles. In addition, there are 4 schedules. Up till now there have been 14 amendments in the Bangladesh Constitution.[15]
Constitutional Supremacy in Bangladesh
‘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.’ The topic statement is taken from the article seven of Bangladesh constitution which is given as follows:
“The 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 that other law shall, to the extent of the inconsistency, be void.” [16]
This article 7 is a declaration that Constitution is the supreme and fundamental law of the country and every other law should be consistent with it.[17] The focus of the statement assumes that rather than parliamentary Supremacy which is in Britain, Bangladesh has Constitutional Supremacy. That means Constitution is supreme over the Parliament and the Parliament requires to work within the boundary set by the Constitution.
The constitution supremacy is further characterized by its written form and rigidity. Furthermore, the Constitution created the Parliament where the latter works within the bindings set by the constitution itself.[18]
Judiciary Supremacy is the other name for the Constitutional Supremacy. The reason lies in the fact that highest court of the land is supreme over the legislature and look over the legislation made by the parliament in order to make sure that it fall within the limitations of the Constitution.[19]
Professor Hood Philips says that, “To say that a Constitution is supreme is to describe its relation to the legislature’s power to alter the Constitutions either limited or non-existent.”[20]
Furthermore, Professor Wade says that “in a constitutional system which accepts judicial supremacy legislation may be held invalid on variety of grounds: for example, because it conflicts with the separation of powers where this is a feature of the Constitution or infringe human rights guaranteed by the Constitution or has not been passed in accordance with the procedure laid down in the Constitution.” [21]
OPINION
Constitution is an instrument which is made in order to voice the right of the people. It is a tool which is meant to use by the nation to keep the right of the people intact. So one should be careful while dealing with the Constitution, which is the highest law of the nation.
One might get the wrong idea that having a Constitution which portray that it always look out for the right and people and always bring wellbeing for the nation does not always necessary has to be true. Because it is inevitable from the regular news of voiding right of the people of Bangladesh, which boast a written constitution having constitutional supremacy. On the other hand, UK which does not have a written constitution is a doing better in terms of keeping their nation’s people rights intact.
Moreover, written constitution posses several problems. And the major one is amendments. Although it is true that amendments is inevitable in an ever changing society of a nation, which changes with the flow of time. Different situations give rise to different issues following which changes are required to be brought in the constitution.
However, the ruling parties of Bangladesh, whenever whoever came to power has misused this tool of amending the Constitution. They have brought change to the highest law of the country for their own benefit and did it without valid ground.
To bring a halt to this misuse, accountability of the elected leaders need to be brought. Good governance need to be practiced at every sphere of the national system of governing the nation.
Bibliography
- Barnett H. Constitutional and Administrative Law, pp-8-13
- Halim M.A. Constitution, Constitutional law and Politics. CCB Foundation
- Kavanagh D. British politics continuities and change (2nd edition) Oxford University Press.
- Liton S. Of Chaos, Confusion and our Constitution. Retrieved on 25th May 2011 from http://www.thedailystar.net/forum/2010/November/chaos.htm
- Mohammad A.Z. Constitution. In POL101 Lecture Notes, p-1
- Parliamentary and constitutional Supremacy. Retrieved on 26th May,2011 from
- Part-III Fundamental Rights. Retrieved on 30th May 2011 from
http://www.commonlii.org/bd/legis/const/2004/part3.html
- 8. Preamble to the United States Constitution-Historical document. Retrieved on 25th May 2011 from
http://www.eduplace.com/kids/socsci/ca/books/bkc/sources/bkc_template.jsp? name=preamble&bk=bkc&state=ca retrieved on 25th May 2011
- Supremacy Clause.Retrieved on 28th May,2011 from
http://legal-dictionary.thefreedictionary.com/Supremacy+Clause
10. What is a Constitution? Retrieved on 7th June 2011 from
http://legalsutra.org/1598/what-is-a-constitution/
[1] What is a Constitution? Available at http://legalsutra.org/1598/what-is-a-constitution/retrieved on 7th June,2011
[2] Mohammad A.Z. Constitution. In POL101 Lecture Notes, p-1
[3] Barnett H. Constitutional and Administrative Law, pp-8-13
[4] Of Chaos, Confusion and our Constitution available at http://www.thedailystar.net/forum/2010/November/chaos.htm retrieved on 25th May 2011
[5] Of Chaos, Confusion and our Constitution available at http://www.thedailystar.net/forum/2010/November/chaos.htm retrieved on 25th May 2011
[6] Preamble to the United States Constitution-Historical document available at http://www.eduplace.com/kids/socsci/ca/books/bkc/sources/bkc_template.jsp?name=preamble&bk=bkc&state=ca retrieved on 25th May 2011
[7]Preamble to the United States Constitution-Historical document available at http://www.eduplace.com/kids/socsci/ca/books/bkc/sources/bkc_template.jsp?name=preamble&bk=bkc&state=ca retrieved on 25th May 2011
[8]Preamble to the United States Constitution-Historical document available at http://www.eduplace.com/kids/socsci/ca/books/bkc/sources/bkc_template.jsp?name=preamble&bk=bkc&state=ca retrieved on 25th May 2011
[9] Halim M.A. Constitution, Constitutional law and Politics. CCB Foundation.p-57
[10] Halim M.A. Constitution, Constitutional law and Politics. CCB Foundation.p-58
[12] Supremacy Clause available at http://legal-dictionary.thefreedictionary.com/Supremacy+Clause retrieved on 28th May
[13] Halim M.A. Constitution, Constitutional law and Politics. CCB Foundation.p-66
[14] Kavanagh D. British politics continuities and change (2nd edition) Oxford University Press
[15] Part-III Fundamental Rights available at http://www.commonlii.org/bd/legis/const/2004/part3.html retrieved on 30th May 2011
[16] The Constitution of the People Republic Of Bangladesh(Edition April 2008)p-3
[17] Halim M.A. Constitution, Constitutional law and Politics. CCB Foundation p-61
[18] Halim M.A. Constitution, Constitutional law and Politics. CCB Foundation p-59
[19] Halim M.A. Constitution, Constitutional law and Politics. CCB Foundation p-58
[20]Parliamentary and constitutional Supremacy available at http://www.scribd.com/doc/2024125/Parlemantary-Constitutional-Supremacy retrieved on 26th May,2011
[21] Halim M.A. Constitution, Constitutional law and Politics. CCB Foundation p-58