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.

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:

The constitution is the fundamental law, written or unwritten, that establishes the character of a government by defining the basic principles to which a society must conform[1].  In another way it can be said that the constitution is a living, dynamic organism which at any point in time reflects 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. [2]

Constitutions are usually the crops of Political Revolutions[3]. Through revolutions people express their will to change.

Aristotle described two types of political revolution:

  1. Complete change from one constitution to another
  1. Modification of an existing constitution.
  1. A.

    2. The Human Rights Act 1998:[14]

  1. B.

    2. Constitution of Bangladesh:

1)      Constitutional amendment:
2)      Martial Law:

  1. 1.

    2. Hilaire Barnett H. Constitutional and Administrative Law.

  1. 2.

    2. Wayne M (Author), Adam G (Author), Robert J (Author).The Politics of the Common Law Constitution of Bangladesh.

  1. 3.

    2. Human Rights Act 1998

  1. 4.

    2. European Convention on Human Rights

  1. 5.

    2. A. V. Dicey A.V, An Introduction to the Study of the Law of the Constitution (1885)

  1. 6.

    2. Diamantides M, Public Law Subject Guide .University of London External System.(1989)

  1. 7.

    2. Shakhawat Liton. Chaos, Confusion and our Constitution.Daily Star.

  1. 8.

    2. Westlaw

  1. 9.

    2. Constitution of Peoples Republic of Bangladesh

[12] Justice ABM Khairul Haque was the Chief Justice of Bangladesh.

Is constitution is the solemn expression of the will of the people?

I will give an example to illustrate the point:

Consent of the governed:

Consent of the governed[4]” is a phrase synonymous with a political theory where in a government’s legitimacy and moral right to use state power is only justified and legal when derived from the people or society over which that political power is exercised.

Most of the constitutions of the world state that the will of the people shall be the basis of the authority of government. The theory of the “social contract” influenced the belief among many of the Founders that among the “natural rights” of man was the right of the people to overthrow their leaders, should those leaders betray the rights of the people.

It can be also said that a 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.. Besides establishing the institutions of government and the manner in which they function toward each other and toward the people.

History of Constitution:

It can be said that constitution is a product of history, a slow & largely peaceful process of evolution.

Excavations in modern-day Iraq by Ernest de Sarzec in 1877 found evidence of the earliest known code of justice, issued by the Sumerian king Urukagina of Lagash ca 2300 BC.

The concept of a constitution dates to the city-states of ancient Greece. The philosopher Aristotle (384–322 b.c.), in his work Politics[5], analyzed over 150 Greek constitutions. He described a constitution as creating the frame upon which the government and laws of a society are built.

Sources:

There are many sources of constitution. They are listed below:

1)      An act of parliament: An act of parliament is generally the highest form of law.  A draft act of Parliament is known as a bill. Once passed by the parliament it becomes a part of the constitution.

2)      Common Law: The decisions of judges through the interpretation of statutes or through development of the common law are a source of constitutional law.

3)      The law and customs of the parliament

4)      The Royal Prerogative or the prerogatives of the President of the country.[6]

Codification[7]:

A fundamental classification is codification or lack of codification. Constitutions – written or unwritten identify and regulate the major institutions of the state and govern the relationship between the state and the individual citizen.

1)      Codified Constitution: A codified constitution is one that is contained in a single document, which is the single source of constitutional law in a state.

2)      Uncodified constitution: A constitution not embodied in a single document but based chiefly on custom and precedent as expressed in statutes and judicial decisions

Most countries have codified constitutions. As of 2010 at least three states have uncodified constitutions: Israel, New Zealand, and the United Kingdom.

How Constitution Works?

The two pillars of constitution are Parliamentary Sovereignty & Rule of Law. Through these doctrines and a proper separation of powers[8], we can say that the sovereignty lies with the people.

a) Rule of Law:

The rule of law is one of the fundamental concepts or principles of the constitution. An ideal constitution demands that society must be governed by law and all must be equally subject to the law. British jurist A.V. Dicey[9] popularized the phrase “rule of law” in 1885.

b) Sovereignty of Parliament: Parliamentary sovereignty is a principle part of a constitution. It makes Parliament[10] the supreme legal authority in a country, 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. By making law for the people a parliament represents the citizens of it country.

c) Separation of Power: Constitutions introduces us to the doctrine of separation of powers. It is a doctrine which states that the three bodies of the government check & balance their powers. It ensures that no abuse of power takes place that can harm people.

The Constitution of Bangladesh:

The Constitution of Bangladesh is the supreme law of Bangladesh. It declares Bangladesh as a secular democratic republic where sovereignty belongs to the people. The constitution of Bangladesh declares Bangladesh as a secular democratic republic where sovereignty belongs to the people. Passed by the Constituent Assembly of Bangladesh on November 4, 1972, it came into effect from December 16, 1972, the day commemorated as Victory Day in the country, marking the defeat of the Pakistan Army in the Bangladesh Liberation War.

The Constitution of Bangladesh is divided into 11 parts containing 153 Articles.

The Preamble[11] of the Bangladesh Constitution states that 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 that other law shall, to the extent of the inconsistency, is void.

Article 7 of the Constitution recognizes people’s power as it says: “All powers in the Republic belong to the people, and their exercise on behalf of the people shall be affected only under, and by the authority of, this Constitution.”

Does the Bangladesh Constitution reflect the will of the people?

Justice ABM Khairul Haque[12], in the landmark verdict on the Constitution’s Fifth Amendment case, said “the modern republican form of democratic government is based on the concept of the right of the people to govern themselves through their own elected representatives. Those representatives are the agents of the people. They govern the country for and on behalf of the people at large. But those very ordinary people are the owners of the country and their superiority is recognized in the Constitution”

When enacted in 1972, the Constitution of Bangladesh was hailed by international jurists and legal historians and as one of the most progressive and democratic constitutions in modern history and one that inspired progressive political aspirations among third world countries and populations struggling for self-determination. However, amendments during socialist one party and military rule in Bangladesh radically altered the secular and liberal democratic nature of the constitution.

In bringing amendments,[13] the political and military rulers did not pay heed to the true spirit of amendment of the Constitution.

Therefore, the amendments contributed little for further advancement of the country’s citizens and further refinements of their constitutional position. Rather, successive governments abused the parliament’s authority in some cases to amend the Constitution.

Given the dynamic nature of our society, it has gone through a number of changes, as has been the case with many such documents, and it is also expected that it will go through further refinement in the future, with the betterment of people’s welfare in mind. But in the final analysis, what is important is that the Constitution would bring about within our society a balance between change and stability, tolerance and competition, opportunity and meritocracy.

How constitutions protect the rights of the citizens?

I will provide two examples where we will see that rights are protected by constitution.

The Human Rights Act 1998 is an Act of Parliament of the United Kingdom which received Royal Assent on 9 November 1998, and mostly came into force on 2 October 2000. Its aim is to “give further effect” in UK law to the rights contained in the European Convention on Human Rights. I will state some of the rights provided in the act below:

1)     Article 2- Right to life

2)     Article 5- Right to liberty & security

3)     Article 6- Right to fair trial

4)     Article 10- Freedom of expression

I will provide some of the fundamental rights[15] provided by Part 3 of the Bangladesh Constitution:

1)     Laws inconsistent with fundamental rights to be void.

2)     Equality before law. All citizens are equal before law and are entitled to equal protection of law.

3)     Protection of right to life and personal liberty. No person shall be deprived of life or personal liberty saves in accordance with law.

If we compare the Bangladesh & UK constitution on the basis of fundamental rights, we will find that both tries protect the rights of the citizens.

How constitutions get violated:

Constitutions can be hampered by many situations. I will provide two examples:

A constitutional amendment is a formal change to the text of the written constitution of a country. Amendments of constitutions can destroy the true spirits of it. Most constitutions require that amendments cannot be enacted unless they have passed a special procedure that is more stringent than that required of ordinary legislation.

Martial law is the imposition of military rules by military authorities over a country or region on an emergency basis when the civilian government or civilian authorities fail to function effectively. Under a military rule the constitution could be suspended and the ruler removes all power from the executive, legislative, and judicial branches of the federal government.

My Views & Suggestions:

My view on this topic is that usually oppressed people of a country gain their freedom through revolutions or liberation wars where they sacrifice a lot. And after the long awaited freedom, the first thing they want to do is protect their rights. Through constitution they can express their views. They write their constitution to express their wish for a better future. So the purpose of the constitution is to hand over the power to its citizens. I think that the constitution of a country should never be suspended or changed against the will of its citizens. The constitution can only be protected and fruitful when a government is run by an elected parliamentary body.  It is the only that way the people of a country can take part in evaluating the constitution.

I also want to state that an independent judiciary is absolutely mandatory for a country.  Though almost every constitutions of the world declare the independence of judiciary, in practical it is tough to achieve. I think that the other parts of the government should make enough sacrifices for the sake of the people and take necessary steps to make a effective and free judiciary.


Conclusion:

We like to think that constitutions are drafted to protect our fundamental rights. But it’s not always the case. And it should be said that a constitution is not the act of government, but of a people constituting a government and a government without a constitution is power without right. The Constitution is considered the supreme law of the land both because of its content and because its authority is derived from the people.  The concepts and ideas of the Constitution are the higher law, things which a government cannot create or destroy. Among these concepts and ideas is the notion that the people are sovereign and that legitimate governments must be based on popular consent. Because a Constitution is ratified by the representatives of the people, it is a document, in both word and deed, created by and for the people.  So we can say that constitution is the embodiment and solemn expression of the will of the people.

Bibliography:

10. JSTOR

11. Constitutional Sovereignty. Retrieved from: http://www.britannica.com/EBchecked/topic/134357/constitutional-sovereignty on June 13,2011.

[1] See Free Online Law Dictionary

[2] Barnett H. Constitutional & Administrative Law. ( 1963)

[3] A revolution is a fundamental change in power or organizational structures that takes place in a relatively short period of time.

[4] The phrase was popularized during the American Revolution

[5] Aristotle’s Politics (Greek ????????) is a work of political philosophy.

[6] There are many other sources of constitution depending on the respective country.

[7] In law, codification is the process of collecting and restating the law of a jurisdiction in certain areas, usually by subject, forming a legal code, i.e. a codex (book) of law.

[8] Under separation of powers the state is divided into three sections. They are the Executive, The Legislature & the Judiciary.

[9] Albert Venn Dicey (4 February 1835 – 7 April 1922) was a British jurist and constitutional theorist, who wrote An Introduction to the Study of the Law of the Constitution (1885)

[10] Parliament is a legislature body where elected and opposition parties make laws.

[11] A preamble is an introductory and expressionary statement in a document.

[13] The Constitution of the People’s Republic of Bangladesh has been amended 14 times.

[14] Read the articles of the European Convention on Human Rights to know more about them.

[15] Fundamental rights are essential for existence of a human being.

Disclaimer:

The information contains in this web-site is prepared for educational purpose. This site may be used by the students, faculties, independent learners and the learned advocates of all over the world. Researchers all over the world have the access to upload their writes up in this site. In consideration of the people’s participation in the Web Page, the individual, group, organization, business, spectator, or other, does hereby release and forever discharge the Lawyers & Jurists, and its officers, board, and employees, jointly and severally from any and all actions, causes of actions, claims and demands for, upon or by reason of any damage, loss or injury, which hereafter may be sustained by participating their work in the Web Page. This release extends and applies to, and also covers and includes, all unknown, unforeseen, unanticipated and unsuspected injuries, damages, loss and liability and the consequences thereof, as well as those now disclosed and known to exist.  The provisions of any state’s law providing substance that releases shall not extend to claims, demands, injuries, or damages which are known or unsuspected to exist at this time, to the person executing such release, are hereby expressly waived. However the Lawyers & Jurists makes no warranty expressed or implied or assumes any legal liability or responsibility for the accuracy, completeness or usefulness of any information, apparatus, product or process disclosed or represents that its use would not infringe privately owned rights. Reference herein to any specific commercial product process or service by trade name, trade mark, manufacturer or otherwise, does not necessarily constitute or imply its endorsement, recommendation or favouring by the Lawyers & Jurists. The views and opinions of the authors expressed in the Web site do not necessarily state or reflect those of the Lawyers & Jurists. Above all, if there is any complaint drop by any independent user to the admin for any contents of this site, the Lawyers & Jurists would remove this immediately from its site.