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 – Explain and Illustrate.

Question # 1: 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 – Explain and Illustrate.

 

  1. 1.      INTRODUCTION:

Law is for human being. It is for protection of human being as a social member. There are several types or derivatives of laws & jurisdiction. Law is applied as a form of Rules of law or any kind of formation of the application of law such as constitution or oral law. The rules or the formation law which is written in a structured format are known as constitution. Not only the constitution but also oral rules and regulation are available in some countries such as United Kingdom.

On the other hand, sovereignty is very much related to the legislation and jurisdictional system of any particular region or country. Sovereignty[1] is a vast structure of any society or country refers the total power including making laws, implementing those and utilizing the power with proper accountability as a state. An Indian Law regarding tribal sovereignty[2] means the supreme power as sovereignty. The idea was revealed by Jean Bodin[3] at the sixteenth century who explained the sovereignty not as supreme power but also as legal authority. It is most important to have the sovereignty of any state. Sovereignty can be a vital factor to create rules and regulation even to make a constitution. As an example, UK Parliamentary sovereignty[4] is the base of UK constitution. Having the sovereignty the parliament is actually the highest authority to create, control, and monitor the rules, regulations, legislations and the other offshoots of the laws. Even the court can’t claim superiority over this sovereignty. It has very much significant effect of their total constitutional laws and overall jurisdictional system.

So, we will see how the constitution and sovereignty is related to each other and their present implementation in the world.

 

  1. 2.      CONSTITUTION:

Aristotle describes Constitution[5] as the prescribed formula of the people which must be made by the highest authority or the sovereign power. In details, ‘Constitution’[6] is a Latin word which came from a Roman emperor who was the highest authority of the land. Whatever he declared automatically converted as rules of law. Further, ‘this important law’ became constitution. A constitution is a system or a tool for the government which arranged as a written document and contains major laws and principles. It usually contains important political principles, and inaugurates the structure, procedures, powers and responsibilities of a government. In a word, constitution is a complete system or the basic structure of the laws and legislations of any communities[7].

Basically, the constitution is two types. One is written another is oral. However, some tribal groups may have invisible constitution[8]. Gutzman explained this invisible constitution as like as surprised laws or rules which were unknown for those tribal. This type of constitution is not very common. The most common constitution around the world is written constitution. From the constitution another concept comes known as ‘rule of law’.

 

  1. 3.      RULE OF LAW:

Rule of the law is basically an essential and puzzling conception of the constitution. It proclaims that the power used to be in a fair, unbiased and reasonable way, but it might not be irrational and discrimination should be denied. It is a great challenge for the state authority and power for accepting that powers legitimately and implementing the power according to the law or constitution. In other way the rule of the law can be defined as a route or structure that shields the interest or will of the people of a country from the abuse of the power of the government and from the discrimination & other legal rights. Rule of the law is applicable for each & every citizen of a country regardless of their rank and status in a society. It can be found differently in different countries, but in general, rule of the law is for protecting the interests and rights of the people of a country from different manipulations and discernment. In addition it plays the role of a guard or as a shield of the utilization of power from the abuses.

 

  1. 4.      SOVEREIGNTY:

Sovereignty is not a single word. It has a vast meaning. Sovereignty refers to super power or the highest authority. Sovereignty comes automatically when a state is born.[9] State law system along with constitution is significantly related with the state authority. Only that authority is able to make the laws, change to the constitution. The members of that authority are eligible to do the necessary changes. Without this sovereign power, it is not possible to create the constitution and thus there is a risk of misuse of the power. Thomas Hobbes[10] explained

that sovereign power can be a state or any individual personality.[11] Whoever the sovereign power is, has a great responsibility to enhance the utilization of power for the well establishment of the people’s interest and their rights as a citizen.

 

  1. 5.      SOVEREIGNTY LIES WITH PEOPLE:

Sovereignty is the ultimate power that is eligible to control the change or manipulate the law of a state. Usually, this power is owned by the government or any higher authority of certain kingdoms. A good example of this statement is the democracy. Most countries are ruled in a democratic system. The strong base of this democratic system is that it is all about the people of the state. Democracy[12] is established by the people and controlled by the people and it is for the people. Ultimately, people are the prime owner of the law but they elected their representatives as government. It is very much important though the government seems to have a lot of power; the people have the power to make them go away. Hobbes and Jean-Jacques Rousseau [13] explained that

Citizens exchange their sovereignty with security to the state & they surrender or become submissive to the states authority. Along with this exchange people actually give their security responsibilities to the government or that authority for their ultimate safety as citizens. (p. 152)

Sovereignty is the basic characteristics of any state and it is for the people. People feel this sovereignty requirement by born because their security. Human being can’t live alone and without society they are weak as well. This concept illustrates that without the people sovereignty doesn’t have any value.

Another recent example can be drawn regarding the mutiny in Egypt. A researcher Solomon Johnson[14] (2011, February 14) noted that

True sovereignty is reestablished by the people whether people made the protest against the incumbent ruler to construct democracy. People are very much coconscious that democracy is the easy way for their freedom and rights.[15]

 

  1. 6.      CONSTITUTION IS THE EMBODIMENT AND SOLEMN EXPRESSION OF THE WILL OF THE PEOPLE:

As far as we know that constitution is the guideline or certain rules of any state or community. However, it is directly related to the people of the state. Without the presence or any responses of the people it is impossible to have the constitution. Constitution is made for the people for a certain region or certain community base on their culture, tradition, and living systems. If we go through the Constitution of Bangladesh we see that in Chapter 1, 7 (2) the constitution declares

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 inconsistent with this Constitution and other law shall, to the extent of the inconsistency, be void.[16]

The constitution of Bangladesh clearly dictates that all the powers owned by the people and the constitution is actually reflecting the exercising power of the people. The necessary decisions, the authority on behalf of the people and their behavior pattern along with rules and regulation, the litigation system, legislation procedure and the jurisdictional system everything is included in the constitutional approach for the people. This indicates the constitution is the supreme power and it reflects the interest of the people.

 

CONSTITUTION OF BANGLADESH

The unitary feature of the Republic is reflected in all the three organs of the state, legislation, executive and judiciary. All the “legislative powers of the Republic” are visited in a single parliament (Article 65). There is no other co-ordinate or territorial law-making body. All the powers of Government are conferred upon a single central government and all territorial administrative units and local governments derive their power and jurisdiction from the single authority. All judicial powers of the Republic are vested centrally in the Supreme Court of Bangladesh, comprised of two divisions. Thus all the legislative, executive and judicial powers are vested in a single set of authorities. The outstanding feature of the unitary system of government, as the name implies, is unity and the Constitution carefully built up a single, unified and centralized command structure from where territorial units will receive their law, administration and justice. In a federal structure, the federating units do not derive their authority from the federal legislature, federal executive and federal judiciary. Partly the federal constitution and mainly the State Constitution are the source of their authority.[17]

CONSTITUTION OF UNITED KINGDOM:

In England both the legal and political sovereignty exists. UK parliament consists of the Autonomous, the House of Commons and the House of Lords. The House of Commons involves of 650 members elected by the people by following the passage of the House of Lords Act 1999, on the other hand the House of Lords comprises of 26 bishops of the Church of England (Lords Spiritual), 92 elected representatives of the hereditary aristocrats, and several hundred life peers.[18] Though many countries may have their own constitution is in a written format but by contrast United Kingdom’s constitution has never been constructed and written down. However, it has been slowly evolved throughout the centuries. The Queen of UK is the supreme body in the parliament who makes the law. The parliament comprises the Queen, House of Lords and House of commons. In almost every constitution there are three necessary bodies exist: the executive (Prime Minister, Cabinet, Government Departments and Civil Service), the legislature (Parliament) and the judiciary (court). The most important for the spirit of the doctrine that there should be, ideally, a clear demarcation of functions between these three in order to keep them in a balance situation where no one has the superfluous power and moreover if these three are arranged in such a good way then the constitution will have to be well arranged. But the separation of power in UK is often said weak. Parliament of UK consists of the Sovereign, the House of Commons and the House of Lords.

CONSTITUTION OF AUSTRALIA:

The constitution of Australia declares that the sovereignty lies with the people because of the perspective of living in democratic world where the people rule and elect the government to implement their will. Australia is a common law country where people make the law and government give most of the priority to the people. The Australian Constitution is, itself, Common Law because it was directly approved by and can only be altered by a referendum of the common people (s. 128).[19]

CONSTITUTITON OF U.S.:

The constitution of US also related with people’s interest. Basically it’s a democratic constitution. Regardless the interest & rights of the people the constitution is valueless. Thus, that constitution runs on majority rules. The majority voted items for the people are included in the constitution which reflects the people’s interest.[20]

 

 

 

  1. 7.      CONCLUSION:

Throughout this paper I actually supported the statements. It is very much true and a matter of logic that without people interest constitution and thus sovereignty doesn’t exist. They interlinked and also inter-dependable. Without a constitutional system or sovereign power, a state can’t be formed as civilized. Constitutional system actually ensures rights of the people and their involvements as a part of the constitutional system. Thus it is all about people’s interest and their will of the power to attain the ultimate sovereignty though constitution for their safety and other rights along with security purposes.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

BIBLIOGRAPHY

 

  1. Aristotle. (384–322 b.c.). Politics.
  2. Bouvier’s Law Dictionary, Ed. 1856
  3. Hilaire Barnett, Constitutional and Administrative Law (6th Edition, p 152).
  4. J. B. Elshtain (2008). Sovereignty: God, state, and self (p. 91),
  5. J.M. Gallagher, “Understanding the ‘Invisible Constitution’” 31
  6. K. Roosevelt III, “The Indivisible Constitution” 25 Constitutional Commentary 321 (Sum. 2008).
  7. K.R.C. Gutzman, “Book Review: The Invisible Constitution. Laurence H. Tribe” 13 Texas Review of Law and Politics 419 (Spr. 2009)
  8. Kamal, M. (1994). Bangladesh Constitution: Trends and Issues. Dhaka: University of Dhaka.
  9. Peter d’Errico, A Brief History in the Context of U.S. “Indian law”.
  10. Information retrieved from http://answers.yourdictionary.com/history/government/what-is-the-definition-of-the-constitution.html
  11. Information retrieved from http://legal-dictionary.thefreedictionary.com/constitution
  12. Information retrieved from http://plato.stanford.edu/entries/bodin/
  13. Information retrieved from http://uk.ask.com/question/what-is-constitution
  14. Information retrieved from http://www.answers.com/topic/constitutional-democracy
  15. Information retrieved from http://www.iep.utm.edu/hobmoral/
  16. Information retrieved from http://www.oregonstate.edu/instruct/phl302/texts/hobbes/leviathan-d.html
  17. Information retrieved from http://www.parliament.uk/about/how/sovereignty/
  18. Information retrieved from http://www.umass.edu/legal/derrico/sovereignty.html

 


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[1] See in Bouvier’s Law Dictionary, Ed. 1856 from http://www.hawaii-nation.org/sovereignty.html, The union and exercise of all human power possessed in a state; it is a combination of all power; it is the power to do everything in a state without accountability; to make laws, to execute and to apply them: to impose and collect taxes, and, levy, contributions; to make war or peace; to form treaties of alliance or of commerce with foreign nations, and the like.

[2] See in Peter d’Errico, A Brief History in the Context of U.S. “Indian law”, Sovereignty is classically defined as supreme legal authority. The concept was formulated by sixteenth century legal philosopher Jean Bodin and elaborated by many theorists since then. One basic controversy has been whether to trace supreme authority to the people or to a “divine right” of rulers.

[3] Jean Bodin (1529/30–1596) was a lawyer, economist, natural philosopher, historian, and one of the major political theorists of the sixteenth century. There are two reasons why Bodin remains both fascinating and enigmatic: on the one hand, aspects of his life remain shrouded in legend; on the other, misunderstandings about his thought and political positions have engendered contradictions and discrepancies amongst historians which have been attributed mistakenly to Bodin himself. His most significant work, The Six Books of the Commonwealth (Les Six livres de la République, 1576), represents the sum total of legal and political thought of the French Renaissance. His Method for the Easy Comprehension of History (Methodus ad facilem historiarum cognitionem, 1566) is at the pinnacle of early-modern, European humanism’s Ars historica.

[4] Information retrieved from http://www.parliament.uk/about/how/sovereignty/ , Parliamentary sovereignty is a principle of the UK constitution. It makes Parliament the supreme legal authority in the UK, which can create or end any law. Generally, the courts cannot overrule its legislation and no Parliament can pass laws that future Parliaments cannot change. Parliamentary sovereignty is the most important part of the UK constitution.

[5] See Politics by Aristotle (384–322 b.c.), constitution may be defined as an organization of offices in a state, by which the method of their distribution is fixed, the sovereign authority is determined, and the nature of the end to be pursued by the association and all its members is prescribed. Laws, as distinct from the frame of the constitution, are the rules by which the magistrates should exercise their powers, and should watch and check transgressors.

[6] Information retrieved from http://answers.yourdictionary.com/history/government/what-is-the-definition-of-the-constitution.html, the word ‘constitution’ comes from a Latin word meaning ‘an important law.’ This kind of law was generally declared by a Roman emperor, the highest authority in the land. Our use of the word today is not much different. We 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. The Constitution of the United States is the name of a specific document that does the same thing; it defines the United States of America.

[7] From Professor KC [1966, p1], Constitution is the whole system of government of a country, the collection of rules which establish and regulate or govern the government.

[8] See in K.R.C. Gutzman, “Book Review: The Invisible Constitution. Laurence H. Tribe”, What Tribe calls the “invisible” constitution is in fact the “unwritten” constitution that many writers before him have identified  and engaged with. As some of the reviewers of his book so exasperatedly  conclude, this is not a novel idea, and he need not have spent such a  substantial portion of The Invisible Constitution proving that it exists.

[9] See in J. B. Elshtain (2008). Sovereignty: God, state, and self (p. 91), When we think of states we think sovereignty.

[10] Information retrieved from http://www.iep.utm.edu/hobmoral/, The English philosopher Thomas Hobbes (1588-1679) is best known for his political thought, and deservedly so. His vision of the world is strikingly original and still relevant to contemporary politics. His main concern is the problem of social and political order: how human beings can live together in peace and avoid the danger and fear of civil conflict.

[11] THE SEVERAL KINDS OF COMMONWEALTH BY INSTITUTION, AND OF SUCCESSION TO THE SOVEREIGN POWER by Thomas hobbes in Chapter XIX, the sovereignty is either in one man, or in an assembly of more than one; and into that assembly either every man hath right to enter, or not everyone, but certain men distinguished from the rest; it is manifest there can be but three kinds of Commonwealth

[12] Democracy is the government of the people, by the people, for the people by Abraham Lincoln (1809-1865)

[13] Hilaire Barnett, Constitutional and Administrative Law (6th Edition, p 152). the citizens of a country surrender his or her sovereignty to the state in exchange for the security.

[14] Solomon is a trained communicator and independent researcher currently based in Lagos.

[15]  Solomon Johnson wrote that History was made last week in Egypt when the incumbent President Hosni Mubarak after what has been described as an ‘unprecedented protest’ which lasted for about two weeks finally in a press briefing declared he was quitting office. Presently, Egypt’s national administration is temporarily in the hands of the military until fresh elections are conducted to meet the yearning and aspirations of the people. True sovereignty was restored to the people after a 30 years rule that lost the support and confidence of the majority. Congratulations Egypt, Congratulations Africa!

[16] Constitution of Bangladesh, Chapter 1, 7,            Supremacy of the Constitution.(1) All powers in the Republic belong to the people, and their exercise on behalf of the people shall be effected only under, and by the authority of, this Constitution.(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 inconsistent with this Constitution and other law shall, to the extent of the inconsistency, be void.

[17] See in Bangladesh Constitution: Trends and issues by Mustafa Kamal. P. 16 , 17

[18] Information retrieve from http://en.wikipedia.org/wiki/Constitution_of_the_United_Kingdom, The constitution of the United Kingdom is the set of laws and principles under which the United Kingdom is governed. Unlike many nations, the UK has no single core constitutional document. It is therefore often said that the country has an unmodified, or de facto constitution.[2] However, much of the British constitution is embodied in the written form, within statutes, court judgments, and treaties. The constitution has other unwritten sources, including parliamentary constitutional conventions and royal prerogatives.

[19] Information retrieve from Australian Constitution, In Australia sovereignty lies with the people because we are a Democracy where, by definition, the people rule. Australia is a Common Law country, where the law made by the common people prevails over all other forms of law.  The Australian Constitution is, itself, Common Law because it was directly approved by and can only be altered by a referendum of the common people (s. 128). Australian State and Federal Parliaments create Statute Law, which are only laws made indirectly by the common people, through their elected representatives.

[20] Information retrieved from http://www.answers.com/topic/constitutional-democracy, The government of the United States is called a constitutional democracy. It is a democracy because the government is based on the consent of the people. Further, the government operates according to the principle of majority rule. The people, for example, elect their representatives and senators in Congress by majority vote; and the members of Congress make laws according to majority rule.

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