“Constitution is the supreme law of the land. Law makers posses every right to amend the constitution in due course of Law. Can they repeal the whole constitution and introduce a new one.” Discuss and Explain.
The law regarding constitution is concerned with the role and powers of the instruction within the state and with the relationship between the citizen and state. The constitution is a living, dynamic organism which at any point in time will reflect the moral and political values of the people it governs, and accordingly, the law of the constitution must be appreciated within the socio political context in which it operates. Thus, Constitution is the doctrine which governs the legitimacy of government action. Constitution implies something far more important than the idea of ‘legality’ which requires official conduct to be in accordance with pre-fixed legal rules. A power may be exercised on legal authority; however, that fact is not necessarily determinative of whether or not the action was ‘constitutional’. The doctrine of constitutionalism suggests, at least, the following:
a) That the exercise of power is kept within the legal limits conferred by parliament – concept of intra vires (acting within the law) – and that those who exercise power are accountable to law.
b) That the exercise of power – irrespective of legal authority – must conform to the notion of respect for the individual and the individual citizen’s rights.
c) That the powers conferred on institutions within a state be sufficiently dispersed between the various institutions so as to avoid the abuse of power; and
d) That the government, in formulating policy, and the legislature, in legitimating that policy are accountable to the electorate on whose trust the power is held.
Thus generally speaking, a constitution is a set of rules which governs an organization. Every organization, whether social club, trade union or nation state, which has defined objectives and departments or offices established to accomplish those objectives, needs a constitution to define the powers, rights and duties of the organization’s members. This set of rules, in addition to regulating the internal working of the organization, will also make provision for the manner in which the organization relates to outside bodies. It can therefore be said that a constitution looks to both internal and external regulation of the body to which it relates.
In addition to the function of defining powers and duties and relationships with other bodies, a constitution fulfills two related purposes – those of definition and evaluation. In its defining function, the constitution is both descriptive and prescriptive. In other words, constitution will both define the matter in which the rules in fact operate and dictate what ought to happen in a given situation. As such, the rule or normative statement in question sets a standard of conduct or behavior which is regarded as correct and which is expected to be adhered to by those to whom the rules are addressed. These constitutional rules – whether written or unwritten– facilitate the stability and predictability of behavior. Furthermore, when such normative rules exist, they provide a standard against which actual conduct can be judged or evaluated. If the accusation is made that members of an organization have acted ‘unconstitutionally’, it is being claimed that those accused have acted in a manner which breaches the required standards of behavior as laid down in the body of generally accepted pre-determined normative rules. In this sense, a constitutional rule, in addition to being descriptive, normative and predictive, is evaluative and judgmental. In examining the rules of any organization, it becomes apparent that individual rules have different levels of importance and, moreover, that rules have differing degrees of specificity or generality. The manner in which the rules are expressed may also differ; some may be written down, whereas some may be discernible only through observation of actual conduct; thus it is with the constitution of a state.
Thus according to Thomas Paine, the classical definition of constitution is stated as;
“A constitution is not the act of a government, but of a people constituting a 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.”
Thus from the above definition it can be deduced 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. As such, the constitution set limits both to the powers which can be exercised and to the manner in which they may be exercised. Accordingly, the constitution defines the legality of power. This notion is particularly apposite in a country such as Bangladesh with a written constitution and a Supreme Court which is conferred with jurisdiction to rule on the legality of government action. Under such a constitutional arrangement, it can be said that everything which the government does is either lawful or unlawful depending upon whether or not the contested conduct is held to be ‘constitutional’ or not. Under a written constitution, the constitution will itself define the procedures of amendment in relation to particular rules. The rules regarded as the most important are characterized by the greatest degree of difficulty in the process of amendment.
A written constitution is one contained within one single document or a series of document; In other words ‘codified’, with or without amendments, defining the basic rules of the state. The origins of written constitutions lie in the American War of Independence (1775-83) and French Revolution (1789). More recent written constitutions derive from the grant – or devolution – of law making powers from previously imperial powers to former colonies and dominions, whether secured as a result of peaceful settlement or violent revolution. The feature which characterizes all states with a written constitution is that there has been a clear historical break with a previously pertaining constitutional arrangement, thus providing the opportunity for a fresh constitutional start. Thus if we investigate the origins of modern constitutions, it would be found practically without exception, that they are drawn up and adopted because people wanted to make a fresh start, so far as the statement of their system of government was concerned. The circumstances in which a break with the past and the need for a fresh start come about varies from country to country ( such as the Liberation War for Bangladesh), but in almost every case in modern times, countries have a constitution for the very simple and elementary reason that they wanted, for some reason, to begin again. This has been the practice since 1787 when the American constitution was drafted, and as the years passed, no doubt imitation and the force of example have led all countries to think it necessary to have a constitution. Thus, a codified constitution will provide the basic rules. However for an understanding of the whole constitutional scenario, it must be noted that constitution is studied by examining subsequent interpretations of the constitution contained in case law and the political practices which reveal the actual operation of the constitution. At the heart of this matter lies one simple fact; all constitutions – however defined and categorized – are dynamic organisms. They are dependant for much of their meaning and relevance on the societal framework which surrounds them. It must be noted that the actual protection of individual rights, as with so much of the constitution, is explained not solely by reference to written rules. Regardless of the form in which rights are protected, in any society, it will be democratic political process, political practice and norms of acceptable governmental conduct that, while not having the force of law, provide constitutional standards which determine the respect accorded to individual rights as well as setting standards against which the probity of official conduct may be measured.
The question that may arise is whether or not constitutions can be amended with ease when the situation demands. The framers of a written constitution, endeavoring to provide a comprehensive legal framework for the state, will naturally seek to protect its constitutional provisions from subsequent repeal or amendment. Towards this end, all or many of the rules will be ‘entrenched’, that is to say the constitution will stipulate stringent procedures to be followed in any attempt to amend the provision in question. Entrenchment may take several forms, but its central characteristic is that it either prevents, or makes difficult, amendment or repeal. For example, the federal Commonwealth of Australia Constitution Act of 1900 specifies the procedure to be adopted for its own alteration. An amending Bill must pass through at least one House of Parliament by a specified majority and the proposed amendment must be endorsed in a referendum which approves the measure by an overall majority of at least four of the six states. Between 1900 and 1990, 42 proposals for constitutional reforms had been put forward. Of these, only eight were approved by a majority of electors nationally and a majority of electors in a majority of states. In this regard, it has been observed that ‘constitutionally speaking, Australia is a frozen continent’ due to the difficult procedures related to the alteration of its constitution. Under the United States’ constitution, constitutional amendments may be proposed either by a two-thirds majority of both Houses of Congress or following a request by the legislatures of two-thirds of the States, by the convention summoned by Congress. To be accepted, the proposed amendments must then be approved by the legislatures of three-quarters of the states, or by conventions in three-quarters of the states. Between 1813 and 1913, only three amendments had been accepted; between 1913 and 1933 six amendments, and by 1951 only one further amendment. The United Kingdom’s constitution, by comparison with the constitutions of the United States and Australia, represents the height of flexibility. Under the doctrine of Parliamentary Sovereignty, parliament is the supreme law making body and can pass any law, by a simple majority vote in parliament, on any subject matter whatsoever. Moreover, no court may hold an Act of Parliament void. Thus in theoretical terms, under the United Kingdom’s constitution, no legal restraints can – under the traditional doctrine of sovereignty – fetter parliament’s powers. A particular importance in this regard is the fact that no parliament may lay down irreversible rules regulating future legislative procedures which must be followed. The constitutional importance of this lies in flexibility. However, it has been argued that the legislative supremacy of parliament is constrained by various constitutional devices and acts of constitutional importance. According to Sir Leslie Stephens, if the United Kingdom parliament enacted that all men should be women; they would be women so far as law is concerned. Thus the question might arise what restrains the United Kingdom parliament from passing an Act providing that all blue-eyed babies be put to death? The response to this question is that in legal-theoretical terms, of course parliament could pass such a law, but in political terms, it neither could nor would do so, for ultimately, parliament is dependent upon the support of the electorate.
From the above discussion, it can be deduced that constitution of a Country might be codified (written) or un-codified (unwritten). If the constitution is codified in document it would be next to impossible to repeal or amend it generally speaking, from the statistics given above, since the drafters of the constitution had made the rules ‘entrenched’. Even though Parliament is the law making body, it must conform to the rules laid down in the constitution in a state where the constitution is codified, failure of which may amount to judicial proceedings by the Supreme Court. In a state where the constitution is un-codified and largely flexible like that of United Kingdom, Parliament is the ultimate law making power. However, even with that immense sovereign power a parliament would never pass a law that would be un-enforceable like the blue-eyed baby example given above as even though passing such law would be theoretically possible, it would be practically impossible to be enforced.
4) Mahmudul Islam, Constitutional Law of Bangladesh
5) Various articles from the internet