Constitution is considered as the supreme law of a state in the perception that it is the primary source of law-illustrate and explain.
Man is a socio-political being who cannot lead the life of an island. Such a world would simply turn out to be boring and worthless. There are a number of rights and obligations for every single citizen which vary from different perspective such as intellectual, political, economic, judicial, to the freedom of expression, property ownership, equity and justice. However, the obligations and rights of the population are subject to the nature of law within a particular sovereign state.
Every organization such as a state, a university, a trade union, a club will have a constitution which refers to a set of rules and regulations defining the formation and functioning of the organization. The constitution of a state defines the most important institutions. These institutions include the decision makers, elected representatives, judiciary and the nature and scope of their powers. In addition, the rights and freedom of citizens, rights of the government with which the government cannot lawfully interfere are also included in the constitution. Very broadly, a constitution of a state may be defined as being – “… the whole system of government of a country, the collection of rules which establish and regulate or govern the Government.”
In 1972, after the independence, the Bangladesh constitution was started. To become a state it is crucial to have a piece of land, group of people as well as a government. Bangladesh is a democratic country and the government of this country is elected by the people. Government is the representative who governs the country according to the constitution. So, a constitution is a set of important principles by whish the policy and affair of the state is conducted or controlled. The rights as well as the freedom of citizens are illustrated very well in the constitution. However, we can utter that the will of the people and people’s rights as well as their sovereignty is demonstrated in the constitution.
Explanation and Illustration:
‘Constitution’ means the way in which a thing is made up. The term ‘constitution’ may be used in two related senses. In the first and more precise sense it means a document in which are set out rules governing the composition, powers and methods of operation of the main institutions of the government. However in the second sense of the term constitution means whether written or unwritten those rules determining the creation and operation of governmental institutions. But more commonly, it means the way in which a government is set up, and it refers to a specific document that lays out the system.
The word ‘constitution’ comes from a Latin word and the meaning of this word is ‘an important law.’ This kind of law was generally declared by a Roman emperor, the highest authority in the land. People use the word ‘constitution’ to describe the makeup of a substance, a person or an organization, but even with that definition, we are still referring to what governs that substance, person or organization – what gives it the properties it has, what makes it what or who it is.
“A Constitution should be short and obscure.”– Napoleon Bonaparte
The constitution provides the eventual power to its citizens. According to the constitution of Bangladesh all the power belong to its people and their exercise should be settled only by the proper authority (“constitution of the people’s republic of Bangladesh”, 1972a, p.3). The people of the country are declared as the supreme authority in the constitution. The U.S constitution also declares people as final source of power. So, people hold the ultimate authority to create, improve and represent the constitution and the policy, rules as well as regulation that the representative of the country have to follow is provided in the constitution. Constitution sites restrictions on the representative of a country, gives an explanation of the responsibility and provides instruction by which the government will act. The underlying target or goal of government, according to the constitution of Bangladesh, is to construct and preserve a community where supremacy of law, human rights as well as liberation of citizens are safeguarded and establishing proper management of law to ensure rightness in social as well as economic sector (“constitution of Bangladesh”, 1972, p.1). So the rules and regulation specified in the constitution are assembled and implemented for the betterment of people. Constitution is constructed keeping in mind that a citizen’s wants as well as willingness is reflected through it.
It is clearly stated in the constitution that new restriction upon law can be inflicted by the parliament (Mathivanav, 2008, p.5). All of those changes or restrictions are for the betterment of people. It is clearly sited on the Article 7 as well as Article 26 of the constitution that any other law inconsistent with the constitution will be void (“Constitution of the People’s Republic of Bangladesh”, 1972, p.7). The fundamentals of constitution also need to be modified with the changes of time. Those modifications can be done by taking into account the wants of country citizens. Also, people’s living can be improved by these modifications. Mathivanan (2008) said that state should avoid making that law that affect people’s fundamental rights and if such law is made it becomes invalid and unconstitutional to the degree of its inconsistency (p.6). So, for guarantying equal rights and avoiding discrimination the constitution are made and further amended. But one thing is very important to note that basic structure of constitution can not be destroyed rather only can be revised (Mathivanan, 2008, p.8). The protection of people’s fundamental right is the basic composition of constitution. So, the amendment of the constitution will not hinder people’s choice and desire if the basic is not destroyed.
The word ‘Supreme’ means highest in authority or rank and that’s why constitutional supremacy certainly indicates that the constitution is highest in rank over the parliament. The constitutional supremacy is possible only if the constitution is written and rigid as the written constitution is very definite and there are very little chances of uncertainty and debate. Article 7 and Article 26 of the constitution of Bangladesh are the declaration that constitution is the supreme law of the country and every other law should be unchanged in standard over time with it. So it is clearly focused from the above statement that Bangladesh has constitutional supremacy which means the constitution is superior to the parliament and that’s why the parliament should have to work enclosed by the boundary set by the constitution. Every officer in government must follow the policy, rules and regulations stated in the constitution as the constitution is the supreme law of the land. Any officer who contravenes the rules and regulations of the constitution ultimately violates the supreme law of the land and due to this reason that officer must be prosecuted to the fullest extent of the law. So, constitution is the most important legislation of any country as it declares itself to be the supreme law of the land. The importance of the constitution lies significantly in its content. The other name of constitutional supremacy is judiciary supremacy in the context that highest court of the land is supreme over the legislature. 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 nonexistent.”
There is an express provision in the constitution itself in all countries that makes it clear or understandable that the constitution is the supreme law. Any other law is invalid and void if it is inconsistent with the constitution and for that reason it cannot be operated. This is clearly stated in that provision of the constitution which pronounces that the constitution to be the highest in authority or rank. The statement that a law not compatible or in keeping with the constitution is void means that there will be given no legal effect by the courts to the law or action which violates the constitution. The most precise example here is the customary law. It is the law in Republic unless it is inconsistent with the constitution or an Act of parliament. So laws not compatible or in keeping with or in derogation of fundamental rights (part iii of the Constitution of the People’s Republic of Bangladesh) to be of no effect.
Freedom of expression is universally acknowledged. Without it democracy cannot work properly. It is essential to have the right to freedom of speech and expression in enabling democracy to work and public participation in decision-making. It is not possible for citizens to exercise their right to vote successfully or to take part in public decision-making if they do not have free access to information and ideas and also do not have the capacity to express their views liberally. Freedom of expression is basically a right which should be supported to the utmost extent possible given its significant role in democratic system and public involvement in political life. There may be certain extreme forms of expression that can tarnish the image of the government or anything that can give rise to anarchy or massive violence or any speech that can harass innocent people need to be truncated for the safety of other human rights. Limiting freedom of expression in such situations is always a fine balancing act. But if the freedom of expression and speech is fully restricted then that would held to be void by the Supreme Court as it is inconsistent with the provisions stated in the constitution.
One very important thing that needs to be remembered is that there are some terms in the written constitution which are implied by the courts but are not explicitly stated in the relevant constitution. Also, a written constitution incorporates some exceptions of some of its provisions and if a law or action falls enclosed by the extent or range of an exception to the terms of constitution, it will not be void if it is changeable or not compatible with these terms. So it is important to be aware of those exceptions of the provisions which safeguard fundamental rights and freedoms.
The interpreters of the constitution are the courts and they determine whether any law made by parliament or others is contradictory to the terms and condition of the country. If the law is contradictory to the provisions stated in the constitution then the court is bound to strike it towards a lower position as having no consequence to the extent that it is not compatible with the constitution in question. This action or process of striking down laws and the like which are not compatible with the constitution is recognized as Judicial review.
Rigidity of the constitution is compulsory or required to safeguard our system although a constitution cannot be entirely rigid. It is supposed to be flexible enough to encounter the needs and that’s why amendments of the constitution are perhaps mandatory with the changes of times. The elected representatives of people of Bangladesh hold the power to amend provisions of the constitution. To maintain discipline in the society as well as in the work place, each and every citizen should have to observe the constitution and the laws. Power on parliament to amend the constitution is conferred by the constitution and there are some procedural requisites for such amendment. According to the Article 142 (power to amend any provision of the constitution) of Constitution of People’s Republic of Bangladesh, the bill must have to be passed by the votes of not less than two- thirds of total number of member of members of parliament for the amendment of constitution.
As the power to amend any provision of the constitution is clearly stated in the constitution, it will not be void. Now, whether an amendment to the constitution, made by meeting certain conditions, will remain valid or become void is the question. To find the answer, we need to look at the third part of article 26, where we have the following statement-
“Nothing in this article shall apply to any amendment of this Constitution made under article 142”.
This means, any amendment to the Constitution made by meeting the provisions of article 142 will not be considered ‘inconsistent’ with the Constitution, and, therefore, it will remain valid. To get a better idea, let’s see the provisions of article 142 of the Constitution, which states the provisions to be satisfied for making an amendment. We notice that in article 142, part 2, it is again mentioned that any amendment to the Constitution made by meeting the provisions of article 142 can’t be overruled by the ‘inconsistency’ discussed in article 26, and, therefore, it will remain valid.
Bangladeshi Constitution is referred to as the mother law in Bangladesh. I think that the constitution, being the supreme law of a country, should reflect the fundamental rights of the people. To find out the rights and wrong in law is a matter of perception and it varies from person to person. Now, with the change of time, change in the political and socio-economic condition of a country is unavoidable. This change may demand some amendment in the fundamental provisions of the constitution. We will be actually lagging behind if we close the door of making necessary constitutional amendments. So, amendments should not be considered void like other customary laws that contradict the constitution. Rather, there should be certain provisions in the constitution which allow the lawmakers to make necessary amendments to the constitution, after meeting certain conditions, which, in case of our constitution, is the support of at least two-third of the parliamentarians.
Constitution is considered as the supreme law of a state in the perception that it is the primary source of law. It is the instrument that is made so as to voice the right of the people. As it is the highest law of the nation, one should be cautious while dealing with the constitution. Laws are made to uphold the rights of the people and improvement of a nation as whole. Enacting that law will be considered as having no meaning or significance as well as just politically stimulated if a policy adopted does not bring betterment in people’s life. So, other Laws which are not compatible or in keeping with the constitution will be invalid and laws should be made just and for the right reason with the will to make the society better in mind. However, changes in the community are certain and contrasting circumstances give rise to different issues. That’s why changes are required to be brought in the constitution and for every changing society of a nation amendments are inevitable. Amendment to the constitution will remain valid as it is made by meeting the provisions clearly stated in the constitution.
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See in Relationship between a Written Constitution and other Laws. (2003). Retrieved form http://www.vanuatu.usp.ac.fj/courses/LA207_Public_Law_1/LA207_unit7_constitution_laws.html