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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: This essay focuses on the constitution which is a set of rules that will say how to operate the organization and what are the liabilities of the members of the organization. It is a support or gives a guideline that how to operate a country or an organization. One difference between constitution and law is that if we break the law then there is a punishment but if we do not follow the constitutions then there will not be any punishment. Basically, constitution is a set of rules decided by the citizens. Because the primary power belongs to the citizens as they vote those people and after that the power is exercised by the government. Even the rule of law is all about the equality in terms of relations of government and citizens. Therefore it is a legitimate process as the governments are being selected by the citizens at first. In accordance with it whether constitution is being followed or not totally depends on the individuals or the normal public of the country. But Karl Marx is saying on a contrary that it is to protect the proletariats of the society only means only the rich people can take the advantage of it. Whereas rule of law should be the objective and it should be fairly applied. In addition Joseph Raz mentioned that the rule of law is an ornament of the State. So it says that human rights are included in the constitution where it is with the people will that whether they would follow the constitution or not as the political sovereignty lies with the people.

Table of Content

Introduction                                                                                                 4

Body

Constitution of  United kingdom                                                             4

Constitution of Bangladesh                                                                                                                    5

Constitution of Unites States                                                                             6

Legal Bodies or Areas                                                                                       7

The Executive                                                                                8

The Legislature                                                                              8

The Judiciary                                                                                 9

Rule of Law means Equality                                                                    9

Defining Sovereignty                                                                               10

Distinguishing between legal and political sovereignty                                     10

The validity of law and the effectiveness of law                                             10

Will of the people in accordance with Human rights                             11

Suggestions & Own Point of View                                                               12

Bibliography                                                                                                14

Introduction:

A constitution is a set of rules, generally written, which identify and regulate the major institutions of the state and govern the relationship between the state and the individual citizen.[1] Basically it is a fundamental law that is determining the fundamental political principles of a government. In most countries the written constitution is the ultimate source of legal authority, where all actions of government and the lawmaking body [2] must conform to the constitution.

Whether the constitutions are written one or an unwritten one all the common features would be shared by both of the constitutions. Hence it will identify the principal institutions of the state which has three branches like the executive, the legislative and the judicial. Moreover the constitution will identify the rights and freedoms of citizens through a Bill of Rights which operates both to protect citizens and to restrict the power of state.

Constitution has many forms such as written and unwritten, republican and monarchical, unitary and federal, rigid and flexible, supreme and subordinate.

Constitution of United Kingdom:

So now let us take a view on a further classification explains whether a particular constitution is supreme or subordinate. A supreme constitution is not subject to any external superior force. A subordinate constitution is one where- as with former British colonies -the constitution is drafted and introduced in a country by an external sovereign power and theoretically it may be amended or go for appeal again with the help of that external power. So in relation to this aspect of constitutions, much debate continues concerning the status of the British constitutions following membership of the European Union. Now the key question here lies that to whom does the sovereignty lie? If we consider from the standpoint of the European Court of Justice of the community , the treaties which have been made or established  totally defines the Community and Union are supreme and sovereignty of the people only would be to them if they have a membership or the country has to be a member state of the European Union. [3] Therefore the unwritten British constitution displays the characteristics that it is monarchical, largely unitary and has a supreme Parliament. British customs, statutes[4] and precedents[5] are so strong that the British government considers itself bound by practices developed over the centuries. Thus British does have a constitution in a way.[6]

Body:

Constitution of Bangladesh:

Now if we will consider the example of our own country Bangladesh which has a written constitution like the other countries. The Bangladeshi constitution has been amended whenever a new government is replaced which has also been reflected in the state principles. While there was a commitment to Socialism in the original version of the constitution, it was as soon as 1977 under Zia-ur Rahman that it was defined as ‘economic and social justice”. In the same era, even the original principle of Secularism was removed from the preamble and absolute trust and faith in the Almighty Allah was inserted. In fact, the earlier existence of Islam and Socialism looks odd, considering that most communists and socialists are actually atheists and partially used to believe that there is a fundamental difference incompatibility between religion and socialism.[7] In Bangladesh, although there have been frequent regime changes-from democracy to one party rule, from parliamentary to presidential and back to parliamentary democracy.[8]

Constitution of United States:

If we take another example of written constitution which is the oldest one and that is the constitution of America. It is the central instrument of American government and it is also known as the supreme law of the land. Even this US constitution has served as the model for all other various countries of the world. The constitution owes its staying power to its simplicity and flexibility.[9]Therefore the path to the constitution was not very easy as well as not very straight. [10] The US Articles of Confederation a d subsequently; the US Constitution symbolized American independence.[11]According to the preamble of the US constitution, the nation is dedicated to six goals. [12] In addition self government did not exist earlier in the United States which existed in the England and for this reason they did not had the written constitution.  But the degree to which the constitution committed the United States to rule by the people was unique.[13] Therefore the ultimate authority was given to the American people who can change the fundamental law by changing or improvising the existing constitution if they ever wish to do so. Mostly, the American people express their will through the ballot box rather doing it directly.[14] Now we can take the voting system as an example that though the legal people are selected by the government but again the ultimate authority rests on the public as we have to take the final decision whom to support by giving votes. However, under a written constitution this background has a particular significance.[15]

Legal Bodies or Areas:

Although the constitution has changed in many aspects since it was first adopted, its basic principles remain the same now as in 1789.

The three main branches of government- executive, legislative and judicial are very different and distinct to each other. As per the rule of law it says that all persons are equal before the law and are equally entitled to its protection. All states are equal and there will not be any biasness or special treating some specific people from the federal government. Within the limits of the constitution, each state must recognize and respect the laws of the others. State governments should also be a democratic one like the federal government where the ultimate authority remains with the people. Now the people have the right to change their form of national government by legal means defined in the constitution itself.[16]

The separation of powers together with the rule of law and parliamentary sovereignty runs like a thread throughout the constitution of the United Kingdom.  This very concept has played a significant role in the formation of constitutions. In any state there are three very essential government bodies existed in the countries which are executive, legislative and the judiciary. This has been mentioned that none bodies should have extreme power or authority which should balance these institutions in course of their activities.

The executive:

The executive may be clearly defined as that branch of the state which formulates guiding principle and is dependable for its implementation. But it is said in official terms that the sovereign is the leader of the executive body. [17]

The legislature:

The queen in Parliament is the sovereign law making body within the United Kingdom. The government is formally expressing that parliament comprises the Queen, House of Lords and House of Commons. All Bills [18] must be passed by each House and receive royal assent. Thereafter the prime minister will select his or her own cabinet. The opposition parties [19]comprise the remainder of the now659 members of Parliament.[20] In principle, the role of the formal opposition is to act as a government for the future, ready at any time to take office should the government inquire about termination of parliament.[21]

The Judiciary:

The judiciary is that subdivision of the state which adjudicates upon conflicts between state institutions, between state and individual, and between individuals. The judiciary is self-governing of both parliament and the executive. It is evident however at the same time as a degree of judicial independence is protected under the constitution.

Rule of Law means Equality:

The decisions of the judges through the analysis of statutes or through improvement of the common law are a source of constitutional law where they have an effect on the powers of the state, the relationship between institutions of the state and the protection of citizens rights and freedoms.[22] Even AV Dicey agreed with this.[23] Though rule of law says equality before the law but Dicey is not saying that in the society everyone is getting the equal rights.[24] For an example we can consider the case of Malone v Metropolitan Police Commissioner.[25]

Defining Sovereignty:

Sovereignty is the authority to govern or rule a nation or group of people.
“Sovereignty is the exclusive right to exercise supreme political (e.g. legislative, judicial, and/or executive) authority over a geographic region, group of people, or oneself.”[26] In a democracy, sovereignty is considered to reside with the individual citizens. Sovereignty then is limited and conditional where government holds supreme power on trust for the people. This is because people are trusting government that they will take the best decision on what to do if any crime or injustice has taken place against them.

Distinguishing between legal and political sovereignty:

It is often difficult to distinguish clearly between legal and political sovereignty. AV Dicey said that the people grasp political sovereignty where legal authority rests on the “Queen in Parliament”.  Therefore this legal theory contributes to an appreciative of legal and political sovereignty surrounded by the constitutions. So John Austin, Hans Kelsen and HLA Hart has identified that the jurists would surely seek an clarification of the source of ultimate authority, its identifying characteristics and the manner in which sovereignty is upheld within a legal order.[27] The jurist of nineteenth century John Austin[28] offered that to have an in depth analysis of sovereignty. Austin’s theory was an attempt to define law in the positivist tradition.[29] Laws are basically neither more nor less than the common commands of this sovereign, to which sanctions are attached.  From Austin’s point of view, sovereignty is a legal concept within the United Kingdom where political concept lies within the Queen of Parliament whereas the ultimate sovereignty rests on the people. Hans Kelsen identified sovereignty both within a state and within the international legal order.[30] Kelsen’s theory involves nothing less than an attempt to formulate a scientific global analysis of law. For Kelsen positive, man made, law is best expressed as a “norm”.[31] But unless and until the country is not democratic itself, the sovereignty will not lie with the people rather it would totally rest on the government.

The validity of Law and the Effectiveness of Law:

The importance of the distinction between validity and effectiveness of law lies in explaining the ultimate source of authority or Sovereignty within a state.[32] The ultimate power that has been rejected by the people within the state would be captivating the power that they had entrusted to the sovereign. So therefore it can be again understood clearly that the legal sovereignty which was supposed to be dependent on the “Queen of Parliament” according to the British Law, is actually highly dependent on the political sovereignty which is the people. [33]

Will of the people in accordance with Human rights:

The Human Rights Act1998[34] represents an elementary change in the domestic protection of rights.[35] Nobody could force anyone to do something against their own will. Though laws are made to protect us and to live peacefully but at the same time on a contrary there are several crimes happening only because of those people’s own will. Therefore in addition even US passed a declaration of independence in 1776.[36]

Suggestions & Own Point of View:

Having a written constitution, a country like ours; it is rather easy to allocate who holds what power, and what are the roles of the government and the citizens, the ministers and the judges. The guidelines are made in such a way that the interest of all is served and at the same time the primacy of what we call the government is maintained, which is ultimately achieved by meeting expectations and demands of the people of the country.

It can be easily said that sovereignty lays with the government and the politicians in a country where there is no democracy such as Pakistan being under the command of military or when Bangladesh was under the control of the CARETAKER GOVERNMENT.  Bangladesh and most countries in the world have a voting system via which democracy is upheld and so it is the voice of the public that is ultimately given precedence and priority over that of the desires and wishes of the political candidates or parties. With those services that they offer to provide, the people choose the better representative for themselves thus setting their own controlling body. As a cumulative body the people or the electorate are what we can say are the sovereign.

As per H. L. A. Hart the word sovereignty can be easily explained and used if it is taken to mean that the electorate [37] is what is cumulatively known as the sovereign. As they are the ones who are voting and choosing their leaders and if they revolt or refuse to vote there can be a completely different situation, enforcing to present with a new candidate, or perhaps a better candidate for the position. Whether sovereignty lies with the people or with the government is a real controversy and it can be only resolved by looking at the practical situation of the current world. For that we need to consider a number of examples like smoking, voting system, eve teasing, rape. Like if we consider the R v. R case[38] then it could be understood about the situation for women was such that they could not ask for a fair trial for rape as the law was not made that way to address such issues, but after a long time and from the many cries for reform the law had to be changed and the beginning of this was initiated via the famous case R v. R.[39]

Bibliography:

Kavanagh , D. (1990). British Politics: Continuities and Change. Oxford University Press.

Barnett , H. ( sixth edition). Constitutional & Administrative Law. Routledge.Cavendish.

Barnette , H.A. , Diamantides , M. (2004) Public Law. University of London External Programme

The Constitution- An enduring document, Outline of US government , Pg-6

Lecture notes of Pol101, Faculty-AZM

From Wikipedia, the free encyclopedia, Constitution of Bangladesh. Retrieved June 7,2011, from http://en.wikipedia.org/wiki/Constitution_of_Bangladesh

Porter, R. O. (2005). Sovereignty, Colonialism and the Indigenous Nations: A Reader.

Carolina Academic Press. Retrieved June 5, 2011, from http://www.cap-   press.com/pdf/porter_fm.pdf

Bartelson , J . The Concept of sovereignty Revisited. The European Journal of International Law   Vol.17 no.2. Retrieved June 8, 2011, from http://www.ejil.org/pdfs/17/2/83.pdf.

Wilson , J . L . (2009) .Majority Rule and the Federalist Papers: Democracy, Equality, and    Constitutionalism.130 Corwin Hall Princeton. Retrieved June 8, 2011 , from http://lapa.princeton.edu/hosteddocs/Wilson_Majority%20Rule%20and%20the%20Federalist%20Papers%20092909.pdf.

West’s encyclopedia of American Law , edition 2. Definition of sovereignty in law. Retrieved June 9, 2011, from http://legal-dictionary.thefreedictionary.com/sovereignty

The Free dictionary. Definition of constitution. Retrieved June9, 2011, from http://legal-dictionary.thefreedictionary.com/constitution

Barker, Ernest, trans. and ed. 1946. The Politics of Aristotle. New York: Oxford University. Press.

Hamilton, Alexander, James Madison, and James Jay. Terence Ball, ed. 2003. The Federalist. Cambridge, U.K., New York: Cambridge University. Press.

From Wikipedia, the free encyclopedia . Human Rights. Retrieved June10 , 2011 , from http://en.wikipedia.org/wiki/Human_rights

Smollet , S .(2002) . Philosophy of Law. Retrieved 10 June , 2011 , from http://www.yellowpigs.net/philosophy/valid_law

Hart, H. L. A. The Concept of Law in The Philosophy of Law. Ed. Schauer. pp. 40-48.

Austin, John. The Providence of Jurisprudence Determined and the Uses of the Study of

Jurisprudence in The Philosophy of Law. Ed. Schauer. pp. 32-39.

Llewellyn, Karl. A Realistic Jurisprudence, and the Common Law Tradition in The Philosophy of Law. Ed. Schauer. pp. 54-61.

Smithy , M . , Green M , A . , Giacomazzi , A .L .,(2002). Collaborative effort and the effectiveness of Law enforcement training toward resolving domestic violence . US Department of Justice.

Holmes , O . W. From Wikipedia, the free encyclopedia . The Common Law. Retrieved June12 , 2011 , from http://en.wikipedia.org/wiki/Common_law

[1] Characteristics of the UK Constitution, pg-19

[2] The legislature

[3] “For example if we consider the British constitution which is an unwritten one identifies the rules and procedures relating to the principal institutions of the state. It is merely a very first principle of the constitution that Parliament is supreme in its law-making power, and that accordingly there can be no limit as to the matters on which Parliament can legislate.”

[4] Statutes: normal laws which are passed by parliaments

[5] Precedents: an instance that may be used as an example in dealing with subsequent similar instances.

[6] See chapter 2, Characteristics of UK Constitution, Public Law, pg-22

[7] With the help of this misconception it has been forced to accommodate quite opposing views of and ideals

[8] See the notes of Political science, written by Faculty AZM, pg -4

[9] Outline of US government, Chapter-The constitution: an enduring document, Pg-6

[10]. The primary aim of the constitution was to create a strong elected government directly responsive to the will of the people. Pg-8, Outline of US government

[11] See the notes of Faculty AZM on Political Science, pg-4

[12] preamble : foreward in which the spirit of the constitution is reflected

[13] The US constitution calls itself” the Supreme Law of the Land”.

[14] See the US government , Pg-19

[15] Chief Justice Marshall in Marbury v Madison (1803) explained the power of constitution: It is a proposition too plain to be contested that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act. Between these two alternatives, there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and , like other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative is true, then a legislative act contrary to the constitution is not law; if the latter part be true , then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.

[16] See the book US government, pg-21

[17] Note that some ministers are drawn from the unelected House of Lords. See chapter 17.

[18] With the exception provided by the parliament Acts 1911-49

[19] Conservative, liberal democrat , Scottish Nationalists, ulster unionists, democratic unionists and plaid Cymru

[20] Number of members of parliament was increased to 659 for the 1997 General Election

[21] For consideration of the role of the Opposition, see chapters14-16.

[22] See the chapter :Sources of The Constitution, pg-31, Public Law

[23] “Rights and freedoms are best protected under the common law”

[24] For Dicey’s own words, see http://www.constitution.org/cmt/avd/law_con.htm

[25] Malone v Metropolitan Police Commissioner [1979] 1 CH344.James Malone was on trial on suspicion of dealing in stolen goods. In the course of the trial it became clear that the police had intercepted Malone’s telephone calls, thereby obtain evidence of alleged criminality. Sir Robert Megarry V-C ruled that there had been no trespass committed by the police, but that the interception of communications was ‘a subject which cries out for legislation’.

[26] From the Latin superanus, supremacy

[27] See Chapter 7, Parliamentary Sovereignty,Pg.154

[28] 1790-1859. See The Province of Jurisprudence Determined, 1832.

[29] Positivism being defined as manmade law-as opposed to divine or natural law-enacted by a political superior within the state for the governance of citizens: the law which is posited or laid down.

[30] 1881-1973. See the Pure Theory of Law, 1967 and The General Theory of Law and State, 1961.

[31] By ‘norm’ we mean that something ought to be or ought to happen , especially that a human being ought to behave in a specific way.[1967, pp4-5]

[32] See Chapter 7, The Validity of Law and The Effectiveness Of Law, Pg.157

[33] Consider the example of smoking that when the law was passed in the parliament and it was enacted that if anyone smokes on the street then that particular person has to give a fine of some amount but these same people did not listen to it, and the law became invalid.

[34] This incorporates the rights enshrined in the European Convention on Human Rights and Freedoms into domestic law

[35] See Chapter2: Constitutional & Administrative Law, Pg-23

[36] “We hold these truths to be self evident, that all men are created equal, that they are endowed by their creator with certain unalienable Rights, that among these are Life, Liberty and pursuit of Happiness” from http://en.wikipedia.org/wiki/Human_rights

[37] Electorates: the voters

[38] [1992] 1 A.C. 599 A husband (H) appealed against his conviction of the attempted rape of his wife (W) to which he had pleaded guilty, ([1991] 2 W.L.R. 1065). The couple was contemplating divorce and W had left the matrimonial home to live with her parents when the offence took place. The case turned on whether a husband could be found guilty of raping his wife.

[39]See the case related whereby the women are protected by marital rape and although no law existed to deal with these issues but it was ensued through the judicial decision which later on was taken up by the legislations. The situation was even more enhanced via Sexual Offences Act 2003 and Youth Justice and Criminal Proceedings Act 1999. This change was only possible as the government was forced to meet expectations of the people and citizens as they are obliged to them; if they however would failed to do so then the government would ultimately fall and no one would follow their commands or guidelines.