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
Introduction
- I. Constitution
Constitution is designed to systematize a nation and its people. [1]A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. The people of that country are responsible to form it in concern about their interest. All powers in the state belong to the country people, and their exercise will take place on the people and it will effect only under, and by the authority of, this Constitution. [2]This is the supreme law of a nation, and if any other law is opposing with this constitution then the law will be invalid. Basically constitution is made to declare the sovereignty of the nation and the basic rules that the people of that country follow through it. According to a scholar
[3]“A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is. When these principles are written down into a single or set of legal documents, those documents may be said to comprise a written constitution.”
- II. Sovereignty
Sovereignty means the declaration of the independence of a nation. When one country declares its sovereignty it declares its presence to the world. [4]It is the power to do everything in a state without liability, from making laws to execute and ended up with applying them. Laws are basically made to impose and collect taxes and charge contributions, to make relations with other alliances in order to retain friendly relationship and if something is wrong they can protect their sovereignty by doing war or peaceful meeting. [5]From the ancient time, the pre-condition to be a sovereign country was that the nation must have the ability to ensure the best interests of its own citizens. That means, if any state does not behave according its peoples interest it cannot be consider as a “sovereign” state.
Linking the constitution with the sovereignty
[6]Constitution is considered as an assurance that cannot be renegotiated. Thus it is considered unambiguously as the “the supreme Law of the Land”—in addition to it, anything is in the constitution or Laws of any nation to the opposing apart.
[7]On the other hand sovereignty is considered as a sole characteristic and is a result of the unwritten constitution. It means that when a nation declares its sovereignty it also forms its constitution and according to it its constitution it behaves. Constitution is formed in concerning about to protect the sovereignty. Sovereignty is an achievement for a nation and the constitution is always there to retain it. One country takes action according to its jurisdiction or according to the constituent and that is by law. Both sovereignty and the constitution are linking up in order to run a nation successfully.
People, Sovereignty and the Constitution
Constitution is the reflection about the rights of the people of a nation. People are solely responsible for the formation of the constitution and the pre-condition of declaring a sovereign country is to take of the public interest. So in both ways public interest is being taken care of or it is the main concern. Sovereignty focuses on the interest of the country people. On the other hand constitution is there to protect the interest of the public and for the constitution people can express their interest.
It concerns that if one nation wants to maintain its sovereignty it must have constitution to back for it. Since sovereignty lies on the people and constitution is the expression of the people so in both case people is the factor to form a country. People can best express their interest and the way of expressing it is the Constitution.
Almost every sort of organizations follows a constitution. For example universities have constitution to define the power among its different boards, members and committees. But when someone talks about constitutions it is mainly about political constitutions. It basically sets the structure of a government. [8]Constitution defines how the rules and laws are made and by what procedures. So it clearly says that a constitution is prior to government. A constitution also defines how breaches of those rules are to be dealt with. It defines the legitimacy of the government as well as the power and rules under which the government must act; undoubtedly it also sets the limits.
[9] Within the country, a constitution is placed on the basis the values of one nation upon which that country is based, and also the process by whom and how the laws will be made. Some constitutions, especially written constitutions, also act as limiters of state power by establishing lines which a state’s rulers cannot cross such as fundamental rights.
[10]The founders of the nation believed that the people should have maximum autonomy and independence, and that the appropriate responsibility of the government is to look after that independence. The US Constitution is a document firmly “enumerating” and restricting the powers of government. While doing drafting, they were doubtful of a well-built central government, that’s why they were forced to mention specifically that the Constitution does not delegate any kind of power to the United States, nor barred to the states, but kept to the states respectively, or to the people. This was the indication that the drafters just wanted to restrict the powers of the Federal government. [11]The longest written constitution of any sovereign country in the world is in the India Constitution, containing 444 articles, [12]12 schedules and 94 amendments, with 117,369 words in its English language version; [13]on the other hand the United States Constitution is the shortest written constitution, at 7 articles and 27 amendments.
[14]Usually, all the current written constitution consult definite powers to an organization or institutional entity, establishment is based on the initial clause that it abides by the unwritten constitution’s limitations. [15]According to Scott Gordon,
“A political organization is constitutional to the extent that it “contain[s] institutionalized mechanisms of power control for the protection of the interests and liberties of the citizenry, including those that may be in the minority.”
Sovereignty in government is that public right which indicates or commands what can be done by each and every associate related in relation to the end of the organization. All the citizens of a nation and the person or body of persons in the state who is not politically superior are governed by this supreme power. Initially, it was believed that sovereignty lies with the Parliament as A. V. Dicey said that in 1880s. However, a number of people disagreed with his theory. They argued sovereignty must lie with the people if people voted for Parliament. Dicey spoke against this by classifying sovereignty into two types – legal and political.
He said that legal sovereignty lay with Parliament as they make the laws while political sovereignty lay with the people on Election Day. However, Norton argued in the 1900’s that ‘If one accepts that sovereignty is indivisible, how can one have two distinct bodies (the electorate and Parliament) each exercising sovereignty?’[16]
[17]Sovereignty refers to where the supreme authority in a State lies. For example, the Constitution of the USA places “sovereignty” with “the People” whereas, in the U.K., essentially as a result of history, it is the Queen in Parliament which is sovereign and where the ultimate law-making authority is said to lie.
Since Australia is a democratic country, sovereignty lies with the people of Australia. And in a democratic country, by definition, the people rule. Australia is a country where the law made by the common people, well known as Common Law, prevails over all other forms of law. The Australian Constitution is Common Law because it was directly approved by and can only be altered by a referendum of the common people.[18]
Bangladesh, its Constitution and the Sovereignty
In concern about today’s situation, taking Europe in consideration, we can either have The Queen as the constitutional head of a sovereign country, or we can have a president of the European Union. But, by definition – and despite John Major’s claim after Maastricht that The Queen was henceforth a citizen of Europe – we cannot have both.
Taking Bangladesh in consideration former Chief Justice Shahabuddin Ahmed in the landmark verdict on the Constitution Eighth Amendment case found that Bangladesh’s Constitution stands on certain fundamental principles, which are its structural pillars and if those pillars are demolished or damaged, the whole constitutional edifice will break down. He listed the following to be the basic structures of the Constitution, namely — sovereignty belongs to the people, supremacy of the Constitution as the solemn expression of the will of the people, democracy, republican government, unitary state, separation of powers, independence of the judiciary and the fundamental rights.
On the question of basic features, Justice BH Chowdhury in the Eighth Amendment case listed 21 ‘unique features’ of the Constitution and held that ‘some’ (without specifying which) of the said 21 features are the basic features of the Constitution.
Justice ABM Khairul Haque in the Fifth Amendment case held that sovereignty of the people, supremacy of the Constitution, rule of law, democracy, republican form of the government, unitary state, separation of powers, independence of judiciary, fundamental rights and secularism are the basis of the Constitution. Haque also stated that the Constitution is the supreme law in Bangladesh, all functionaries of the republic are the creatures of the Constitution and the existence of the country as a republic is dependent on its Constitution.
An independent person of this world after getting his or her sovereign country declares that he or she will no longer be the slave of those that possibly ruled me by force. I will no longer be seated inactive while the other people are subjected to oppression. I will position unified with those that carry the idea that all individuals are sovereign and equal, that being ruled by power and/or trick is opposing to human dignity.
[19]No longer will I submit to wars, taxes, subjugation through ‘living wages’,
propagandistic educational systems, deceptive media, private monetary systems,
lying/unaccountable representation in communal matters, nor any other contracts I
have not personally approved.
Bangladeshi people went through a lot of sufferings both under the British and in Pakistan time, under different Martial Law periods. As a matter of fact, there was never any democracy in Pakistan time. When the results of the December 1970 elections were announced, the dictators and their oppressive acquaintances conspired to thwart democracy by not recognizing and giving power to the elected representatives. It is this denial of democratic recognition that finally led to the struggle for a separate homeland for the Bengalis.[20]
[21]The political system of Bangladesh rests on the dissimilarity among constitutional and other laws. People I its ultimate sovereignty laid down the former solemn principles, afterwards regulations are made within the limited authority by its representatives, and the courts can hold unauthorized and void any act which exceeds those limits. Also the court can do this job because they are maintaining against the parliament the primary principles which the people themselves have determined to support, and they can do it only on the basis that if the people feel that the constitution is something more sacred and enduring than ordinary laws, something that derives its force from a higher authority.
Conclusion
No one constitution will be exactly the same as another constitution. This is because in the words of Finer. All constitutions contain elements that are autobiographical and correspondingly idiosyncratic. Different historical contexts have generated different preoccupations; different preoccupations have generated different emphasis. However, despite acknowledging that constitutions have their own particular features it is worth nothing finer et al have taken at a ‘general level’ the constitution on USA,France,Germany and Russia ‘have much in common’. Common features which they share include a democratic basis, providing for protection against the abuse of power, according a special role to political parties and having a version of the separation of powers and some system of checks and balance. Finally ,however the authors note that: in none of these does the constitution itself give a full accurate depiction of the policy each text operates within a matrix of custom,convention,case law, cautious compromises. In other words, to adopt professor king’s terminology once again, the Capital C constitution for each states represents but part of the over all picture. That picture ban only is viewed in its entirety by also having regard to each state’s small c constitutions.
All these things are indicating that we are deficient in the sense of toleration that is needed for a carrying out democracy and we are unfit to rule ourselves democratically. Regardless of the fact that the will of working together and the democratic values are something intangible, we cannot go on ignoring these facts without any punishment or harm. Sovereignty lies with the people and the Constitution is the embodiment and solemn expression of the will of the people – this declaration by the constitution must be privileged in practice.
Bibliography
- 1. Bangladesh shongbidhan er shobdo o khodo bakko-Habibur Rahman
- 2. Parliamentary Guide-Jalal firoz
- 3. National Bangladesh Constitutions
- 4. Black’s Law dictionary
- 5. Constitution and administrative Law-Nil parpworth and Nicola Padfield
- 6. Constitution and administrative Law-Hilaire Barnett
- (http://en.wikipedia.org/wiki/Constitution)
- http://answers.yahoo.com/question/index?qid=20081002141727AAxcGVw
- Wilson, J. Retrieved from http://www.rightsandwrong.com.au.
10. Wheare, K.C. (1966). Modern Constitutions. Oxford University Press.
11. Philpott, D. Sovereignty. The Stanford Encyclopedia of Philosophy (Summer 2010 Edition), Edward N. Z. (ed.). Retrieved from http://plato.stanford.edu/archives/sum2010/entries/sovereignty.
12. Okoro, C. (2010, June). Law and the State: a Philosophical Evaluation. 7.1/7.2, 136.
13. Jacob, R. (May 2000). Kerly’s Law of Trade Marks and Trade Names Hb
[1] The New Oxford American Dictionary, Second Edn., Erin McKean (editor), 2051 pages, May 2005, Oxford University Press
[2] Jeremy Rabkin, The Constitution and American Sovereignty
[3] Erin McKean (editor), 2051 pages, May 2005, Oxford University Press, ISBN 0-19-517077-6.
[4] Black’s Law Dictionary (Sixth Edition)
[5] Bateman, C.G. (February 15, 2011). Nicaea and Sovereignty: Constantine’s Council of Nicaea as an Important Crossroad in the Development of European State Sovereignty
[6] Kenneth R. Thomas Legislative Attorney American Law Division, Federalism, State Sovereignty, and the Constitution: Basis and Limits of Congressional Power, Updated February 1, 2008
[7] Kenneth R, Federalism, State Sovereignty, and the Constitution: Basis and Limits of Congressional Power
[8] Modern Constitutions (Opus Books)(1966, p1)
[9] “National Constitution Center”. Independence Hall Association. Retrieved 2010-04-22.
[10] Gordon, Scott (1999). Controlling the State: Constitutionalism from Ancient Athens to Today. Harvard University Press. p. 4.
[11] Pylee, M.V. (1997). India‘s Constitution. S. Chand & Co.. pp. 3
[12] Sarkar, Siuli. Public Administration In India. PHI Learning Pvt. Ltd.. p. 363.
[13] “National Constitution Center”. Independence Hall Association. Retrieved 2010-04-22.
[14] Gordon, Scott (1999). Controlling the State: Constitutionalism from Ancient Athens to Today. Harvard University Press. p. 4.
[15] Gordon, Scott (1999). Controlling the State: Constitutionalism from Ancient Athens to Today. Harvard University Press. p. 4.
[16]See in Rhea. How Far Could it be Argued that Parliament Has Lost Sovereignty?[Web blog post]. Retrieved from http://www.ourcoursework.com/showthread.php?t=4578&goto=nextoldest
[17] Law Observer, items of general legal interest
[18] See in Wilson, J. Retrieved from http://www.rightsandwrong.com.au
[19] http://www.infowars.com/declaration-of-sovereignty/
[20] See in Zahir, M. (2009, July 14). Eroding democratic values and Constitution [Web blog post]. Retrieved from http://www.lawinbd.co.cc/2009/07/eroding-democratic-values-and.html
[21] Raymond Ku ARTICLE: CONSENSUS OF THE GOVERNED: THE LEGITIMACY OF CONSTITUTIONAL CHANGE November, 1995 64 Fordham L. Rev. 535