Definition of Constitution:
Constitution is a body of rules written or unwritten which determine the organization of the state, the distribution of powers within the principle organs of the government and the relation between government and governed.
According to C.F Strong- A constitution may be said to be a collection of principles according to which the powers of the government, the rights of the governed and the relation between the two are adjusted.
Austin say’s that- The way of life the state has chosen for itself.
According to Lord Bryce- Constitution is the aggregate of laws and customs under which the life of the state goes on.
Classification of Constitution
Constitutions are widely classified into two categories, firstly written and unwritten, and secondly, rigid and flexible.
Written Constitution
A Written constitution is one in which the fundamental principles concerning state administration are embodied and which has, as a specific document been passed by a specific boy. So a written constitution can be produced and shown as a single document the us constitution. Indian constitution, Bangladesh constitution provide examples of written constitution.
Unwritten constitution:
The constitution has not been passed formally as a specific document by a Specific body and the fundamental principles concerning state administration exist in political customs. Judicial decisions and in some scattered document the constitution is an unwritten one. The British constitution Provides the glaring example of unwritten constitution.
Rigid:
The constitution which cannot be amended by ordinary law making procedure but a special procedure like two thirds or three fourths majority is needed, it is called a right constitution. For example Bangladesh constitution.
Flexible Constitution:
The constitution which can be amended by ordinary law making procedure is called a flexible constitution. For example. British constitution is a flexible.
Constitutional Supremacy
The Constitutional supremacy means that the Constitution is supreme over the parliament and the parliament can exercise its functions being only within the bounds of the Constitution. Constitutional supremacy is possible only where the constitution is written and rigid. This constitutional supremacy is also called judiciary supremacy in the scene that the judiciary the highest court of the land is supreme over the legislature Professor Hood Philips says that, “To say that a Constitution is supreme is to describe its relation to the legislature’s power to alter the Constitutions either limited or non-existent.”
Characteristics of Constitutional Supremacy
The doctrine of constitutional supremacy as contradistinguished form the parliamentary supremacy has following characteristics:
(i) The Constitution is written.
(ii) The Constitution must be rigid.
(iii) There must be, in the Constitution, either express or implied declaration that this Constitution shall be the supreme law and any other law inconsistent with this Constitution shall be void.
(iv) The parliament is created by the Constitution itself and it exercises its legislative power being within the pounds of the constitutional limitations.
(v) There is distinction between constitutional law and ordinary law.
(vi) There is an independent body (court) created by the constitution to examine the constitutionality of legislation made by the parliament and any action done by the executive.
How can the Supremacy of the Constitution be Maintained
Constitutional supremacy is never a matter of conventional sanction as is the case of parliamentary supremacy in Britain. Constitutional supremacy depends on the fulfillment of the following conditions:
The Constitution must be written:
If the Constitution is not written, the distinction between the fundamental law and ordinary law will be impossible; no restriction can be imposed on the parliament’s legislative power and as a result constitutional supremacy will not be possible.
The Constitution must be rigid:
If the Constitution is flexible then it can easily be amended by ordinary law making procedure and there will be on distinction between constitutional law and ordinary law, and it would then ultimately be parliamentary supremacy.
An Independent Judiciary:
An independent judiciary must be created by the Constitution itself and it must be given the status of a guardian of the Constitution and fundamental rights enumerated in the Constitution. Otherwise the test of constitutionality of any law made by the parliament and any action done by the executive will be impossible leading to the total impossibility of constitutional supremacy.
How is Constitutional Supremacy ensured in Bangladesh Constitution
The following points will help clarifying how the constitutional supremacy is ensured in the constitution of Bangladesh.
The Constitution of Bangladesh is a written one. It specifically prescribes the
manner how the power and functions of the organs of the government will be exercised.
It is a rigid Constitution. Because it can be amended only by two-thirds majority
(Art. 142). Again, to amend some provisions like the preamble, the form of government (Articles 48 & 56) and Fundamental Principles of State Policy (Art.8) a more stringent method has been provided for. in these cases even after the bill has been passed by two-thirds majority, a referendum is essential. This rigidity, therefore, imposes restriction on the power of the parliament on the one hand and ensures distinction between ordinary law and fundamental law on the other hand.
in is the Constitution and not the parliament which is supreme under the
Constitution of the Bangladesh. This is because, firstly, it is stated in the preamble that “it is our sacred duty to safeguard, protect and defend tis Constitution and to maintain its supremacy as the embodiment of the will of the people of Bangladesh”.
Secondly, Article 7 states “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. 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 that other law shall, to the extent of the inconsistency, be void.”
Thirdly, Article 26 states that “All existing law inconsistent with the provisions of
this part (i.e. fundamental rights) shall, to the extent of such inconsistency, become void on the commencement with the provisions of this part, and any law so made shall to the extent of such inconsistency be void.
Fourthly, Article 65 states that the legislative powers of the Republic shall,
subject to the provisions of this Constitution, be vested to the parliament.
Thus it is clear that the Constitution declares itself to be supreme over the parliament.
The declaration of Constitutional supremacy in the Constitution implicitly
presupposes the existence of an independent authority to examine the constitutionality of actions taken by the legislative and the executive. To that end the Constitution of Bangladesh has ensured in Articles 94 and 95 an independent organ–the Supreme Court. Under article 102 the Supreme Court has been empowered to scritinise the governmental actions done on violation of fundamental rights. Again, under Articles 7 and 26 the Supreme Court exercises the power of judicial review i.e. to examine the constitutionality of any law passed by the parliament. And a glaring example to this is the historic Eighth Amendment case. In that case the Supreme Court held the Eighth Amendment to the Constitution unconstitutional and invalid.
A. Judicial Review in Constitutional Supremacy
As mentioned earlier the doctrine of judicial review in the sense of constitutional supremacy refers to the powers of the judiciary to examine the constitutionality of laws made by the legislatures. This is the primary and strict meaning of judicial review. But from broader and liberal point of view the doctrine includes the following things:
(i) Judicial review of laws made by legislatures;
(ii) Judicial enforcement of fundamental rights enumerated in the Constitution;
(iii) Judicial review of administrative actions under the provisions of the Constitution;
(iv) Judicial review of administrative actions under statutory law;
(v) Judicial review of delegated law.
The last two of these are principally the subject matter of administrative law.
Some aspects of all these will be discussed later under the headings of “Judicial review in Britain.” and “Judicial review in Bangladesh.”
Who is to exercise the Power of Judicial Review in a System of Constitutional Supremacy
In a governmental system with constitutional supremacy the Constitution itself creates a body empowering it to decide whether or not particular legislation contravenes the constitution and it is natural to commit this function to the judiciary. And the fact is that in most cases the highest seat of ordinary courts i.e. the Supreme Court exercises this power of judicial review. But this is not the case in everywhere. Somewhere provisions for separate constitutional court is maintained in the Constitution. For example, the Federal Constitutional Court of Germany which is not a necessary part of ordinary court is invested with the power of judicial review. So is the case of Italian Constitutional Court. Again, the French system provides for a peculiar body exercising judicial review. The French Constitution is a written one with constitutional supremacy. But the Supreme Court of France i.e. La Cour de Cassatio has no power of judicial review. The Constitution provides for a Constitutional Council (article 56) consisting of nine members. This Council has the power to test the constitutionality of law. Before organic laws (ordinary law) are promulgated, the Council must examine them to ensure that they do not conflict with the Constitution (Article 61). If a law is declared unconstitutional it cannot be promulgated or come into force (Article 62). This device differs from judicial review in the sense that the Council is not a court where judicial review operates expost facto. Once the Council declares a law constitutional, it is promulgated or comes into force and no further question as to the constitutionality of that law can be raised. There is no appeal against the decision the decision of the Council which is binding on all public, administrative and judicial authorities. To be mentioned here that the power of judicial review as mentioned under this heading in respect of its operating body refers necessarily to the doctrine of judicial review in strict sense. Because the other elements of judicial review are applied mostly be ordinary courts.
Constitution is a body of rules written or unwritten which determine the organization of the state, the distribution of powers within the principle organs of the government and the relation between government and governed.
According to C.F Strong- A constitution may be said to be a collection of principles according to which the powers of the government, the rights of the governed and the relation between the two are adjusted.
Austin say’s that- The way of life the state has chosen for itself.
According to Lord Bryce- Constitution is the aggregate of laws and customs under which the life of the state goes on.
Classification of Constitution
Constitutions are widely classified into two categories, firstly written and unwritten, and secondly, rigid and flexible.
Written Constitution
A Written constitution is one in which the fundamental principles concerning state administration are embodied and which has, as a specific document been passed by a specific boy. So a written constitution can be produced and shown as a single document the us constitution. Indian constitution, Bangladesh constitution provide examples of written constitution.
Unwritten constitution:
The constitution has not been passed formally as a specific document by a Specific body and the fundamental principles concerning state administration exist in political customs. Judicial decisions and in some scattered document the constitution is an unwritten one. The British constitution Provides the glaring example of unwritten constitution.
Rigid:
The constitution which cannot be amended by ordinary law making procedure but a special procedure like two thirds or three fourths majority is needed, it is called a right constitution. For example Bangladesh constitution.
Flexible Constitution:
The constitution which can be amended by ordinary law making procedure is called a flexible constitution. For example. British constitution is a flexible.
Constitutional Supremacy
The Constitutional supremacy means that the Constitution is supreme over the parliament and the parliament can exercise its functions being only within the bounds of the Constitution. Constitutional supremacy is possible only where the constitution is written and rigid. This constitutional supremacy is also called judiciary supremacy in the scene that the judiciary the highest court of the land is supreme over the legislature Professor Hood Philips says that, “To say that a Constitution is supreme is to describe its relation to the legislature’s power to alter the Constitutions either limited or non-existent.”
Characteristics of Constitutional Supremacy
The doctrine of constitutional supremacy as contradistinguished form the parliamentary supremacy has following characteristics:
(i) The Constitution is written.
(ii) The Constitution must be rigid.
(iii) There must be, in the Constitution, either express or implied declaration that this Constitution shall be the supreme law and any other law inconsistent with this Constitution shall be void.
(iv) The parliament is created by the Constitution itself and it exercises its legislative power being within the pounds of the constitutional limitations.
(v) There is distinction between constitutional law and ordinary law.
(vi) There is an independent body (court) created by the constitution to examine the constitutionality of legislation made by the parliament and any action done by the executive.
How can the Supremacy of the Constitution be Maintained
Constitutional supremacy is never a matter of conventional sanction as is the case of parliamentary supremacy in Britain. Constitutional supremacy depends on the fulfillment of the following conditions:
The Constitution must be written:
If the Constitution is not written, the distinction between the fundamental law and ordinary law will be impossible; no restriction can be imposed on the parliament’s legislative power and as a result constitutional supremacy will not be possible.
The Constitution must be rigid:
If the Constitution is flexible then it can easily be amended by ordinary law making procedure and there will be on distinction between constitutional law and ordinary law, and it would then ultimately be parliamentary supremacy.
An Independent Judiciary:
An independent judiciary must be created by the Constitution itself and it must be given the status of a guardian of the Constitution and fundamental rights enumerated in the Constitution. Otherwise the test of constitutionality of any law made by the parliament and any action done by the executive will be impossible leading to the total impossibility of constitutional supremacy.
How is Constitutional Supremacy ensured in Bangladesh Constitution
The following points will help clarifying how the constitutional supremacy is ensured in the constitution of Bangladesh.
The Constitution of Bangladesh is a written one. It specifically prescribes the
manner how the power and functions of the organs of the government will be exercised.
It is a rigid Constitution. Because it can be amended only by two-thirds majority
(Art. 142). Again, to amend some provisions like the preamble, the form of government (Articles 48 & 56) and Fundamental Principles of State Policy (Art.8) a more stringent method has been provided for. in these cases even after the bill has been passed by two-thirds majority, a referendum is essential. This rigidity, therefore, imposes restriction on the power of the parliament on the one hand and ensures distinction between ordinary law and fundamental law on the other hand.
in is the Constitution and not the parliament which is supreme under the
Constitution of the Bangladesh. This is because, firstly, it is stated in the preamble that “it is our sacred duty to safeguard, protect and defend tis Constitution and to maintain its supremacy as the embodiment of the will of the people of Bangladesh”.
Secondly, Article 7 states “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. 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 that other law shall, to the extent of the inconsistency, be void.”
Thirdly, Article 26 states that “All existing law inconsistent with the provisions of
this part (i.e. fundamental rights) shall, to the extent of such inconsistency, become void on the commencement with the provisions of this part, and any law so made shall to the extent of such inconsistency be void.
Fourthly, Article 65 states that the legislative powers of the Republic shall,
subject to the provisions of this Constitution, be vested to the parliament.
Thus it is clear that the Constitution declares itself to be supreme over the parliament.
The declaration of Constitutional supremacy in the Constitution implicitly
presupposes the existence of an independent authority to examine the constitutionality of actions taken by the legislative and the executive. To that end the Constitution of Bangladesh has ensured in Articles 94 and 95 an independent organ–the Supreme Court. Under article 102 the Supreme Court has been empowered to scritinise the governmental actions done on violation of fundamental rights. Again, under Articles 7 and 26 the Supreme Court exercises the power of judicial review i.e. to examine the constitutionality of any law passed by the parliament. And a glaring example to this is the historic Eighth Amendment case. In that case the Supreme Court held the Eighth Amendment to the Constitution unconstitutional and invalid.
A. Judicial Review in Constitutional Supremacy
As mentioned earlier the doctrine of judicial review in the sense of constitutional supremacy refers to the powers of the judiciary to examine the constitutionality of laws made by the legislatures. This is the primary and strict meaning of judicial review. But from broader and liberal point of view the doctrine includes the following things:
(i) Judicial review of laws made by legislatures;
(ii) Judicial enforcement of fundamental rights enumerated in the Constitution;
(iii) Judicial review of administrative actions under the provisions of the Constitution;
(iv) Judicial review of administrative actions under statutory law;
(v) Judicial review of delegated law.
The last two of these are principally the subject matter of administrative law.
Some aspects of all these will be discussed later under the headings of “Judicial review in Britain.” and “Judicial review in Bangladesh.”
Who is to exercise the Power of Judicial Review in a System of Constitutional Supremacy
In a governmental system with constitutional supremacy the Constitution itself creates a body empowering it to decide whether or not particular legislation contravenes the constitution and it is natural to commit this function to the judiciary. And the fact is that in most cases the highest seat of ordinary courts i.e. the Supreme Court exercises this power of judicial review. But this is not the case in everywhere. Somewhere provisions for separate constitutional court is maintained in the Constitution. For example, the Federal Constitutional Court of Germany which is not a necessary part of ordinary court is invested with the power of judicial review. So is the case of Italian Constitutional Court. Again, the French system provides for a peculiar body exercising judicial review. The French Constitution is a written one with constitutional supremacy. But the Supreme Court of France i.e. La Cour de Cassatio has no power of judicial review. The Constitution provides for a Constitutional Council (article 56) consisting of nine members. This Council has the power to test the constitutionality of law. Before organic laws (ordinary law) are promulgated, the Council must examine them to ensure that they do not conflict with the Constitution (Article 61). If a law is declared unconstitutional it cannot be promulgated or come into force (Article 62). This device differs from judicial review in the sense that the Council is not a court where judicial review operates expost facto. Once the Council declares a law constitutional, it is promulgated or comes into force and no further question as to the constitutionality of that law can be raised. There is no appeal against the decision the decision of the Council which is binding on all public, administrative and judicial authorities. To be mentioned here that the power of judicial review as mentioned under this heading in respect of its operating body refers necessarily to the doctrine of judicial review in strict sense. Because the other elements of judicial review are applied mostly be ordinary courts.
* * *
No comments:
Post a Comment