Table of Contents
Meaning and definition of Constitution
The word constitution is derived from Latin word ‘Constituter’ which means to establish. It is the legal order of the state and provides power to the government as well as control it. It is known as fundamental law of the land and also the supreme law as all the laws are guided through it. It is a document that records fundamental principle according to which a country is guided. It determines the political organization of the state and safeguard the right of the people and reminds people for their duties. It determines the relation between individual and start. Constitution is mainly a Public law. It is necessary for fresh start like USA, Nepal, France etcetera. As it is a mother of all laws as all laws get validity from constitution.
Article 1 of our constitution of Nepal states that, this constitution is the fundamental law of Nepal. Any laws inconstient with this constitution shall be void.Either written or not, it describes forms of government, system of government . It is a political legal document. It divides power between state (ruler) and subjects (ruled).
Constitution is the document of the people’s faith and aspirations. Validity of the constitution is the political question because it’s validity is based on the political reality of the country. There is a special procedure for amendment of it.
Aristotle – Constitution is the way of life, the state has chosen for itself.
Lord Bryce – Constitution is the aggregate of laws and custom under which the life of state goes on.
A.V. Dicey– All rules which directly or indirectly affect the distribution of the sovereign power in the state makeup the constitution of state.
To conclude, in broader sense, Constitution is the collection of all legal and nonlegal rules( acts, rules, court decisions, customs, usages, practices, understanding) . But in narrow sense, document of constitution having part, articles and schedules is regarded as constitution.
Why constitution is called the fundamental law of the land ?
Constitution is the primary source of law. It is called fundamental law of the land because all all law must be constituent with it otherwise declared void. Others law derived their validity and legitimacy from the constitution. Constitution is also called mother of all law because all law must have been made according to constitution and if they are not made as per provisions set in the constitution then those laws are not recognised as law. Therefore those laws must be under the provision of constitution.
Constitution of Nepal has declared constitution as fundamental law of the land. According to Article1(1) this Constitution is the fundamental law of the land and any law inconsistent with the constitution shall, to the extent of such inconsistency, be void. It means of any law is made but not meet the constitutional norms and values then that law may be declared void. So law must be made according to the constitutional provisions.
Constitution guarantee the fundamental rights of people so it is also called fundamental law of the land. Fundamental rights are basic rights and it is necessary conditions for the welfare and proper development of human beings.
Fundamental rights limits the government power towards its citizens. So citizens are safe from governmental unnecessary interferences and theirs fundamental rights like right to freedom, justice and dignity is protected by the constitution from being violated by the government and if government violates then people can go supreme court for remedies. This prevents government from violating fundamental rights.
Legislation is the supreme law making body and no others authorities can question about laws made by legislature. It has full power of law making and it can cancel old law, modify current law and make new law. But legislature also cannot make law beyond the provision of the constitution and if legislature makes law but not meets the procedures of law making described by the constitution then that law does not get validity and court can declare that law void through judicial review. Therefore, legislature being the supreme power of the nation but legislature must also follow the process and provision of constitution to make a law.
Similarly, supreme court has power of judicial review and the power of judicial review has been given to the supreme court by the constitution.The power, duties and functions of government and directive principles of state are defined by constitution. The structure of government system is also determined by the constitution. Constitution determines the power, function and duties of government. So that constitution is the fundamental law of the land.
Constitutional History of Nepal
The Government of Nepal Act 2004 B.C (1948)
During, the constitutional development of Nepal, the government of Nepal Act 2004 B.S is the first and historical document of Nepal. This constitution had 68 articles and 6 schedules. Due to the various factors this constitution never is enforce or came into existence as the law of the state. Though, one should not forget that this is the first written and historical document of the state. The government of Nepal Act 2004 B.S was declared by the Shree III Padma Shamsher JBR. The Padma Shamsher JBR himself was the inciter or promoter of this constitution.
The Nepal Interim Government Act 2007
The Interim Government of Nepal Act 2007 was promulgated after the Revolution of 2007 at the end of the Rana period. This constitution was promulgated on Chaitra 30, 2007 by King Tribhuwan. It consisted of 7 parts, 73 articles and 3 schedules.
The Constitution of the Kingdom of Nepal, 2015
In 2015, parliamentary elections were conducted by king Mahendra Bir Bikram Shah. He established another constitution just before the elections. This constitution had 10 parts 77 articles and 3 schedules. This constitution was promulgated on Falgun 1st 2015 BS. In this constitution, there was provision of fundamental rights and emergency power was vested in the king by the constitution in article 55.
Constitution of Nepal 2019 B.S
The constitution of Nepal 2019 B.S is the fourth constitution during the constitutional development in Nepal. This constitution declared and enacted by the then King Mahendra on Poush 1st 2019 B.S. Due to the various political differences within an among the political parties as well as the adverse condition in the state the King Mahendra took over the system or the leadership of the government in his own hand in Poush 1st 2017 B.S. and constituted a cabinet for his support. The King also established the Party less Panchayat System in which no any party are given to participate.
Constitution of kingdom of nepal 2047 BS
This constitution was promulgated on 23th Kartik 2047 BS by King Birendra Bir Bikram Shah. The Constitution of the Kingdom of Nepal, 1990 lifted the ban on political parties, described a democratic representative system where the authority of the king was curtailed, and enshrined fundamental rights. This constitution was promulgated on 9 November 1990 by King Birendra.
Interim Constitution of Nepal 2063 BS
With the promulgation of interim constitution 2063, we became secular and republic state. Again following the 2063 democracy movement in Nepal, Interim Constitution was promulgated in 2063. This constitution was promulgated on 11 Baishakh 2063. It consisted of 25 parts, 167 articles and 4 schedules.
Constitution of Nepal 2072 BS
Constitution of Nepal 2072 is the present governing Constitution of Nepal. Nepal is governed according to the Constitution which came into effect on Ashoj 3 2072 BS, replacing the Interim Constitution of 2063. The constitution of Nepal is divided into 35 parts, 308 Articles and 9 Schedules. This constitution is first constitution of Nepal issued by Constituent Assembly. After promulgation of Constitution of Nepal, Constitution Assembly converted into Legislature Parliament.
Features of Constitution of Nepal 2072
- It establishes Nepal as secular and federal democratic republic with bicameral parliament.
- Country has been split in seven federal provinces.
- Executive rights are vested in Council of Ministers headed by Prime Minister.
- The President is ceremonial head.
- It establishes independent judiciary and press freedom.
- It establishes competitive multi-party democratic system with periodic elections.
Kinds of Constitution
Unitary and Federal Constitution
Unitary Constitution : Generally, in unitary state all sovereign power is vested on central government and in federal government sovereign power is divided among different levels of government. So unitary constitution vests the sovereign power to central government. This constitution let central government to exercise all power. Unitary constitution promotes uniform policy all over the nation and laws are same in every nook and corner of the state. Unitary constitution makes a strong central government and it is suitable for small and under developed countries.
Federal Constitution : This constitution vests sovereign power in the hands of different government like central, provincial and local.There is the division of power among the different governments. This constitution let different types of policies in a same country by which laws in a same country may be different. Federal constitution promotes the efficiency in administration. As federal constitution divides the powers, when the powers are contradicted it may result mutual conflict. There may be negative competition among different states.
Parliamentary and Presidential Constitution
Parliamentary constitution : Parliamentary constitution distinguishes between head of state and head of government. Head of the government is PM and head of the state is president. Ministers are the member of the parliament and majority holder of parliament can form government. This constitution doesn’t properly follow the principle of separation of power.It let legislature to dismiss government by vote of no confidence. Generally statues are prepared by government because government forming party holds majority in parliament.This constitution may result to political instability.
Presidential constitution : This constitution states head of the state and head of the government as same i.e. president. President isn’t elected by parliament but it is directly elected by people. Presidential constitution allows the member of parliament to prepare bills themselves. This constitution stricking follow the principle of seperation of power. Vote of no confidence may dissolve the government. Generally ministers aren’t the member of parliament by which expert become the ministers. This constitution helps for political stability.A president form government according to his\her wish. President needn’t to be responsible towards parliament but it should be towards general people.
Written and Unwritten Constitution
Written Constitution : A written constitution is single, formal document that describes the arrangement of governance in a country. It is framed in a systematic manner, usually by a representative body called the constituent assembly after many deliberations and discussions and therefore is also known as codified Constitution or enacted Constitution. It also specifies the date of its enactment. A written constitution is generally rigid in nature, i.e., a defined procedure which is different from the procedure of making an ordinary legislation is laid down to amend it, examples are – US Constitution and Nepal Constitution
Unwritten Constitution : An unwritten Constitution is not written in a single document. It is derived from a number of sources that are part written and part unwritten, including conventions, traditions, customs, Acts of Parliament and the common law, and hence is also called a cumulative Constitution. It evolves over a period of time and therefore is also known as an evolved Constitution. An unwritten constitution is usually flexible in nature as the amendment procedure is simple and usually there is no difference between the procedure of making an ordinary legislation and the procedure of amending the Constitution, example – British Constitution.
Flexible and Rigid Constitution
Flexible Constitution : A flexible or elastic constitution can be easily amended. For this type, constitutional law can be amended in the same way as ordinary law. It has ability to change quickly in accordance with changes in the social and political environment of the society and the state. It is helpful in meeting emergencies since it can be easily amended. It is dynamic; hence there is less opportunity for revolt. This is also because of its ability to keep pace with changing times. It keeps on developing with time; hence, it is up to date and popular. It has disadvantage also. It is a source of instability. This is because the government in power can use it for its benefit. It is unsuitable for a federation. This is because it can lead to undesired changes by the federal government or governments of federating units.
Rigid constitution : This is the kind of constitution that cannot be easily amended.It is amended by a particular procedure requiring the passing of the amendment proposal by a big majority of votes followed by ratification by the people in a referendum.There are various advantages of a rigid constitution as it is a source of stability in administration. It maintains continuity in administration. It cannot become a tool in the hands of the party exercising the state’s power at a particular time. It prevents the autocratic exercise of powers by the government. It is ideal for a federation. As there are various disadvantages of a rigid constitution where it doesn’t keep pace with the fast-changing social environment. It hinders the process of social development because of its inability to change easily. It is a source of hindrance during emergencies.Its inability to change easily can lead to revolts against the government.It can be a source of conservativeness.
Republican and Monarchical Constitution
Republican Constitution : Those constitution who makes a provision for the president to be a head of the state are known as Republican Constitution. President is nominated head and is elected by the people. There is clear provision to deligate the power and authority to the president in the constitution. Republican Constitution is a system of law and government that embrace the basic features of republican theory. Republican legal system are which system of law and justice that serve the common good of the people best. The constitution of USA, Pakistan, India and Germany etc are the example of republican constitution.
Monarchical Constitution : Monarchical Constitution is a form of government in which a monarch acts as head of the state within the guidelines of a constitution, whether it’s a written or unwritten. This form of government is different from absolute monarchy. An absolute monarch serves as the source of power in the state and is not legally bound by the constitution and any law. But Constitutional monarchy’s power is limited by the constitution and king is not above the law but he must also act under law. The constitution of Bhutan, Japan, Saudi Arabia, Northern Ireland etc are the example of constitutional monarchy.