The Constitution declares that the sovereignty lies with the people and constitution is the embodiment and solemn expression of the will of the people?

Question-01: The Constitution declares that the sovereignty lies with the people and constitution is the embodiment and solemn expression of the will of the people?


1.0 Introduction:

Do we have a right to hold opinions that differ from others? Can we write and publish what we think? Can we protest to your government if we disapprove of its policies? Can the government search and seize our property? Can we be arrested and held without trial? Can the government treat us differently than it treats other people? Every country is based on some kind of law. Some of those are arbitrary powers, however over the years the only rule that seems to dictate the terms is the rule of law. As a citizen, we must know our constitutional rights in order to assert them. One of the basic principles of the any constitution is the rule of law.[1]Actually sustainable development and good governance mostly depends on the proper application of rule of law. Laws are made for the welfare of the people, to bring a balance in society, a harmony between the conflicting forces in society. One of the prime objects of making constitution is to maintain law and order in society, a peaceful environment for the progress of the people.


2.0 Sovereignty of the people:

Today, most modern states have followed written and fixed constitutions. [2]A constitution presupposes the universe of a constituent power, as distinguished from other constituted powers, created by the constitution itself. [3]Constitution is the highest law in the state; constituent power invests in those entitled to sovereignty. Jean Bodin defined sovereignty as the ‘absolute and perpetual power of a commonwealth’. [4]He thought that the power of the state had to be embodied in the prince or other appointed leader and had to be single, unlimited and absolute. Sovereignty is one of the most important components of any independent states. [5]It entails a state power to take decision without any influence, control or interdependence from any other power both external and internal. It does not mean that the state’s decision are not affected by events in internationals policies, demands made by the peoples or groups, suggestions or advised by people, leaders or organization. Black’s Law Dictionary once defined sovereignty as: “The supreme, absolute, and uncontrollable power by which any independent state is governed; supreme political authority; the supreme will; paramount control of the constitution and frame of government and its administration; the self-sufficient source of political power, from which all specific political powers are derived; the international independence of a state, combined with the right and power of regulating its internal affairs without foreign dictation; also a political society, or state, which is sovereign and independent”.

Finally,[6] we can say that sovereignty is the power to do everything in a state without accountability – to make laws, to execute and to apply them, to make war or peace, to form treaties of alliance or of commerce with foreign nations, and the like. By the sovereignty a country or a nation can do anything as they want.

[7]Beginning with the premise that all are equal before God, John Locke concluded that the basis of political authority must be sourced in the consent of the governed. Locke drew upon natural law to claim that there are some rights that lie beyond the power of individual consent. This Freedom from Absolute, Arbitrary Power, is so necessary to, and closely joined with a Man’s Preservation. For a Man, not having the Power of his own Life or his own accept, enslave himself to anyone, nor put himself under the Absolute, Arbitrary Power of another, to take away his Life, when he pleases. If the rights of life and liberty are beyond the power of the individual, it follows that for Locke it is impossible for an individual, or a community made up of individuals, to give these rights to anybody, including the government. [8]The impossibility of giving comprehensive power to any of the three arms of government means that there are some areas that lie beyond the power of governments. [9] Therefore, the government is properly considered as a “trustee” rather than the embodiment of the people’s power.


3.0 Why Constitution is the embodiment and solemn expression of the people?

A constitution is the set of rules which governs a nation state. [10] All nation states, needed a constitution which is determine the nation’s objectives, Powers, duties, rights of the state members. Constitution – in its broadest sense refers to that body of rules and principles in accordance with which the powers of sovereignty are regularly exercised”. [11]It may be defined as that instrument by which the fundamental powers of the government are established, limited, and defined and by which these powers are distributed among the several departments or branches for their safe and useful exercise for the benefit of the people. It serves as the supreme or fundamental law of a country or state. [12] It establishes basic framework and underlying principles of government.


3.1 Main Features of a constitution:

Constitutional interpretation must be faithful to the character of the document itself. Three features are particularly important. First, the Constitution is [13]the basic charter of any society, setting out in spare but meaningful terms the principles of government”. The Constitution is intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs. It is a charter of general principles open to fair and just interpretation over time.

Second, the Constitution is a document designed to be [14]understood by the public.” the meaning of the Constitution’s text and principles has been the subject of public debate and intense mobilization among the people and their representatives. Third, the Constitution is a declaration of our ideals as well as a set of operational commands. The Constitution does not state our ideals as merely lofty aspirations. It records our commitment to put our ideals into practice. To keep faith with the Constitution is to fulfill its promises [15] “not as a matter of fine words on paper, but as a matter of everyday life in the Nation.”


3.2 The relationship between a constitution and its people:

The constitution and the people were in a mutually reflexive relationship. Although the constitution is enacted and established by the people, at the same time the constitution that defines the people and gives them an identity. Thus, it would not be justified to hold an almost theological approach, whereby the people is seen as an all-powerful and everlasting being. The people is always embedded in, and formed and recreated throughout history. There are a variety of rights that are protected by the constitution. These rights cover everything from basic human rights to the rights of the charged. [16]Freedom of speech is one of our constitutional rights. [17]Freedom of expression is a cornerstone upon which the very existence of a democratic society rests. It is indispensable for the formation of public opinion. It can be said that a society that is not well informed is not a society that is truly free. If we did not have freedom of speech we could not say what we want. [18]We also have the right to bear arms.[19] That means we can have guns in our house for protection against criminals. Since our rights are written in the Constitution, the government cannot take those rights away from the people. The government must follow the Constitution to be democratic. This is called rule of law. The constitution helps us live in the world.

In the constitution it states that all people 18 and older have the right to vote.[20] This right is a very important one because it gives you the power to pick who you feel is right for the job. If we did not have this right it would mean that the people will not have a say in that would be right for the position. If the people did not have the right to vote and pick their leader they would not be very happy for the reason that they would not have a say in who is going to run their life.

These are just three of the rights protected by our constitution. [21]The right to vote is important to me because I would like to have a part in deciding who will be the leader. The right of free speech is important because I like to voice my opinion.

3.3 Rule of law and the constitution of Bangladesh:

The rule of law is a basic feature of the constitution of Bangladesh. It has been pledged in the preamble to the constitution of Bangladesh that – “It shall be fundamental aim of the state to realize through the democratic process socialist society, free from exploitation – a society in which the rule of law, fundamental human rights and freedom, equality and justice, political economic and social, will be secured for all citizens.”

In accordance with this pledge the following positive provisions for rule of law have been incorporated in the constitution: Article 27 guarantees that all citizens are equal before law and are entitled to equal protection of law. Article 31 guarantees that to enjoy the protection of the law, and to be treated in accordance with law, is the inalienable right of every citizen, wherever he may be and of every other person for the time being with in Bangladesh, and in particular no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with Law. Our constitution proclaim that in article 7(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 inconsistence with this constitution and other law shall, to extent of the inconsistence, be void.” Depending on the constitutional order all activities must be done at the same time all laws should be formulated to the consistency with the constitution. As citizens, we must maintain the rules and regulation which are incorporated in constitution. If we want to see the preamble of the constitution, we see, affirming that is our scare duty to safeguard, protect and defend this constitution and to maintain its supremacy as the embodiment of the will of the people of the Bangladesh so that we may prosper in freedom and may make our full contribution towards international peace and co-operating in keeping with the progressive aspirations of mankind.


4.0 Opinion:

Constitution was set up in order to form a more perfect union, and to give the people under its provision certain unalienable rights. By stating what the constitution was intended to do, it can remain an important part of government. It’s ability to serve the majority of the nation, but at the same time not to trample the rights of the minority. Its ability to be amended when needed, and stand strong when tested. It’s careful system of checks and balances, making sure that no one branch becomes too strong, and wields unstoppable power. Each person, including the president himself must answer for their actions. This is what makes a country such a great country.


5.0 Conclusion:

Finally we can say that, Constitution is considered as the most appropriate legal instrument to immortalize a political compromise between entities composing the state. It is guarantee of the respect to which individuals and groups bind, in order to stop reclaiming rights through violence but rather to obtain them through law. It remains a necessary tool for the nation to express its will but also for the individual and communities within the state to protect themselves from the nation itself and from its expression. For this reasons, we can say that the constitution is the best expression of sovereignty and at the same time it is more serious limitations.













ü      Austin, John (1832-1863)1954 The Province of Juris-prudence Determined and the Uses of the Study of Jurisprudence. London: Weidenfeld & Nicolson; New York: Noonday. ? Two books reprinted in one volume

ü      Dicey, Albert V. (1885) 1961 Introduction to the Study of the Law of the Constitution. 10th ed. With an Introduction by E. C. S. Wade. London: Macmillan; New York: St. Martins. ? first published as Lectures Introductory to the Study of the Law of the Constitution.

ü      VENTER, Francois, 1999. Constitution making and the legitimacy of the constitution, in National CONSTITUTION IN THE ERA OF INTERRATION, Antero Jyranki., Kluwer Law International.

ü      LERNER, Hanna, 2004. The people of constitution: Constitution making, Legitimacy and identity, paper presented at the mini-APSA, Department of political science, Colombia University, April 30, 2004.

ü      Marsh, The rule of law as a supranational concept, in Guest, 1961, p 240 and Marsh, 1959.

ü      Massey, I.P. Conceptual objections against the Growth of Administrative Law. Administrative Law, 5th Ed; Eastern Book Company: 34, Lalbagh.

ü      Dicey, A.V. The Rule of Law: Its Nature and General Applications. Introduction To The Study Of The Law Of The Constitution, 8th Ed; Macmellan and Co. Limited: St. Martin’s Street, London, 1915; 202.

ü      Thakker, C.K. Basic Constitutional principles. Administrative Law, 1st ed; Eastern Book Company.

ü      Wade, H.W.R. Some Constitutional Principles-The Rule of Law, Administrative Law, 3rd Ed; clarendon Press: Oxford, 1971; 6.

ü      N Douglas, “Freedom of Expression Under the Australian Constitution” (1993) 16 UNSWL/ 315; T Campbell, “Democracy, Human Rights, and Positive Law” (1994) 16 Syd LR 195; A

ü      A V Dicey, Introduction to the Study of the Law of the Constitution (10th ed, 1959) at 72-74.

ü      G Lindell, “Why is Australia’s Constitution Binding? – The Reasons in 1900 and Now, and the Effect of Independence” (1986) 16 F L Rev 29 at 44.

ü      Wade, H.W.R. Some Constitutional Principles-The Rule of Law, Administrative Law, 3rd Ed; clarendon Press: Oxford, 1971; 6.

ü      Dicey, A.V. The Rule of Law: Its Nature and General Applications. Introduction To The Study Of The Law Of The Constitution, 8th Ed; Macmellan and Co. Limited: St. Martin’s Street,London, 1915; 202.

ü      Woodrow Wilson, Constitutional Government in the United States 69 (1908).

ü      David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb—A ConstitutionalHistory, 121 Harv. L. Rev. 941, 993 (2008) [hereinafter Barron & Lederman, Constitutional History].

ü      Missouri v. Holland, 252 U.S. 416, 433 (1920).

ü      Office of Legal Policy, U.S. Dep’t of Justice, Guidelines on Constitutional Litigation 3 (1988).

ü      Jean Bodin, On Sovereignty: Four Chapters from the Six Books of the Commonwealth, edited and Julian H. Franklin (Cambridge: Cambridge University Press, 1992) 1.

ü      William Blackstone, Commentaries on the Laws of England (Oxford: Clarendon Press, 1765) vol. I, ch.7, p. 234.

ü      Raz, Concept 27-43, H. L. A. Hart, The Concept of Law, second edition (Oxford: Oxford University Press, 1994) chs. 1-4.

ü      Bereket Habte Selassie, The Making of the Eritrean Constitution: The Dialectic of Process and Substance (Asmara: The Red Sea Press, Inc., 2003).

ü      Haridakis, P. (2006). Article: Citizen Access and Government Secrecy. Saint Louis University Public Law Review, 25 St. Louis U. Pub. L. Rev. 3.

ü      Williams, G. (2006). National Security & The Law: Special Issue: Indefinite Detention and Extraordinary Rendition. Los Angeles Lawyer, 29 Los Angles Lawyer 44.

ü      Muhlke, A. The Right to Language and Linguistic Development: Deafness from a Human Rights Perspective, 40 Virginia Journal of International Law, Winter 2000, 705.


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ü      Sellick, J. (2007). Constitutional and Administrative Law, London: Hodder Arnold, pp. 20

ü      Taylor, C. (2009). Constitutional and Administrative Law, Harlow: Pearson Longman.


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[1] Halim, M. A. Rule of Law. Constitution, Constitutional Law and Politics: Bangladesh Perspective, Khan, M. Yousuf Ali, Eds; Rico Printers: 9 Nilkhet, Babupara, Dhaka-1205, 1998; 345.
[2] Dicey, A.V. The Rule of Law: Its Nature and General Applications. Introduction To The Study Of The Law Of The Constitution, 8th Ed; Macmellan and Co. Limited: St. Martin’s Street,
[3] Constituent power is the authority to framed amend a particular text, which is superior to others laws and known as the constitution. WhatDistinguishes farming power from amending power is that the latter changes the constitution in ways provided therein, while amends it outside existent constitutional framework.
 [4] Jean Bodin, On Sovereignty: Four Chapters from the Six Books of the Commonwealth, edited and trans. by Julian H. Franklin (Cambridge: Cambridge University Press, 1992) 1.
[5] Lord Cooke has suggested that implications from the Constitution in cases “The Dream of an International Common Law” in C Saunders (ed), Courts of Final Jurisdiction (1996) 138 at 139. T R S Allan has portrayed parliamentary sovereignty as a pillar of legal positivism: “The Limits of Parliamentary Sovereignty” [1985] Public Law 614 at 614. Note that this conflict between natural law and positivism is most sharply focussed if a “Lockean”.
[6] BIACK’S LAw DimONARY 1396 (6th 1990).
[7] J Locke, Two Treatises of Government, P Laslett (ed), (1988) at 330-331: “Men being, as has been said, by Nature, all free, equal and independent, no one can be put out of this Estate, and subjected to the Political Power of another, without his own Consent. The only way whereby anyone devests himself of his Natural Liberty, and puts on the bonds of Civil Society is by agreeing with other Men to joyn and unite into a Community, for their comfortable, safe, and peaceable living one amongst another, in a secure Enjoyment of their Properties, and a greater Security against any that are not of it”.
[8] As much of the Two Treatises of Government was written before the 1688 Revolution, it is better regarded as a “demand for a revolution to be brought about, not the rationalization of a revolution in need of defence”: J Locke, above n 17 at 47
[9] For an application of this concept in an Australian context: see P Finn, “A Sovereign People, A Public Trust” in P Finn (ed), Essays on Law and Government (1995).
[10] Marinus Wiechers, ‘Namibia: Constitution-Making, Peace-Building and National Reconciliation’ (USIP, 2001).
[11] Dicey, A.V. The Rule of Law: Its Nature and General Applications. Introduction To The Study Of The Law Of The Constitution, 8th Ed; Macmellan and Co. Limited: St. Martin’s Street, London, 1915; 202.
[12] Between 1990 and 2000, 17 African states, 14 Latin American, states, and nearly all the post communist states in Eastern Europe and the former Soviet Union drastically altered or replaced their constitutions. Currently constitutional reviews are underway or the subject of negotiations in several countries, including Bolivia, Kenya, Bhutan, Nepal, Sri Lanka, the Maldives, Solomon Islands, Bosnia-Herzegovina, Kosovo, Iraq, and the Democratic Republic of the Congo.
[13] Poe v. Ullman, 367 U.S. 497, 540 (1961) (Harlan, J., dissenting) (citing McCulloch v. Maryland, 17 U.S. 316 (1819)).
[14]Thakker, C.K. Basic Constitutional principles. Administrative Law, 1st ed; Eastern Book Company: 34 Lalbagh, Lacknow-226001, India, 1992; 26.
[15] Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738, 2836 (2007) (Breyer, J., dissenting).
[16] Constitutional Rights Project and Media Rights Agenda v. Nigeria, 31 October 1998
[17] Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory Opinion OC-5/85, 13 November 1985, Series A, No. 5, para. 70
[18] Lund, Nelson. ‘‘A Primer on the Constitutional Right to Keep and Bear Arms.’’ Virginia Institute for Public Policy Report no. 7, June 2002.
[19] “The right to keep arms, necessarily involves the right to purchasethem, to keep them in a state of efficiency for use, and to purchase andprovide ammunition suitable for such arms, and to keep them in repair.”Andrews, 50 Tenn. (3 Heisk.) at 178.
[20] U.S. Department of Justice, Civil Rights Division, Voting Section, “Procedures For The Administration Of Section 5 Of The Voting Rights Act Of 1965,” as amended, Appendix to Part 51–Jurisdictions Covered Under Section 4(b) of the Voting Rights Act.
[21] Arend Lijphart refers to compulsory turnout in his article. Sarah Birch refers to compulsory participation in ‘Conceptualising Electoral Obligation’, a paper prepared for the Workshop on Compulsory Voting – Principles and Practice, ECPR Joint Sessions Workshops, Helsinki, 2007. This paper is drawn from her book, Full Participation: A Comparative Study of Compulsory Voting, (Manchester University Press, 2008)