Definition of Constitution by Different Scholars and Government Power Distribution in Nepal 2015

Two questions come up again and again in constitutional law study: "definition of constitution by different scholars" and "government power distribution". Both belong to NEB Class 11 Constitutional Law (COL317): Unit 1 "Concept and Definition of Constitution" and Unit 5 "Power Distribution Structure". Examiners usually ask for the meaning of a constitution with the views of two or three scholars, and for how powers are shared among the organs and levels of government in the Constitution of Nepal 2015.

This guide lists the standard scholarly definitions, gives a synthesis you can write as a closing paragraph, and then explains the distribution of powers in Nepal in a table. The unit pages are Concept and Definition of Constitution and Power Distribution Structure.

Definition of constitution by different scholars

A constitution is the fundamental law of a state that sets up the organs of government, defines their powers and relations, and states the rights of citizens. The scholars below are commonly cited, and each is given as a short paraphrase.

According to Aristotle, a constitution is the way in which the offices of the state are arranged, especially the supreme authority, and it reflects the way of life that the city has chosen for itself. According to Lord Bryce, a constitution is a framework of political society organised through law, a set of rules that establishes and regulates government. According to A. V. Dicey, it consists of all the rules that directly or indirectly affect the distribution or exercise of the sovereign power in the state. According to Gilchrist, a constitution is the body of rules, written or unwritten, that determines how government is organised and how power is distributed among its organs. According to K. C. Wheare, in the wider sense it is the whole system of government of a country, the collection of rules that establish and regulate it, and in the narrower sense it is the set of legal rules gathered in one document. According to C. F. Strong, it is the collection of principles by which the powers of the government, the rights of the governed and the relations between the two are adjusted. According to Hans Kelsen, the constitution is the highest level of positive law in a legal order, the norm that regulates how other laws are made and from which their validity flows.

Putting the definitions together

The writers differ in emphasis but agree on the core. A constitution is a body of fundamental rules, written or unwritten, that establishes the organs of the state, divides and limits their powers, and protects the rights of the people. Dicey, Gilchrist and Strong stress distribution of power, Wheare shows that the word has a wide and a narrow sense, and Kelsen adds that it stands at the top of the hierarchy of laws. A good answer ends with this synthesis in two or three lines.

Government power distribution in the Constitution of Nepal 2015

Power distribution has two directions. Vertically, it is shared among levels of government. Horizontally, it is divided among the legislature, executive and judiciary at each level.

Article 56 establishes the structure of the state as three tiers, federal, province and local, and Article 57 distributes state power among them. The federal level covers the Federal Parliament and the Government of Nepal, there are seven provinces with their own legislatures and governments, and 753 local levels (metropolitan cities, sub-metropolitan cities, municipalities and rural municipalities) have local assemblies and executives. The three tiers are expected to work on the basis of cooperation, co-existence and coordination, and Article 58 gives any residual power, one not listed in the schedules, to the federation.

The powers are listed in schedules.

Exclusive powers can be exercised only by the tier named. Concurrent powers can be exercised by more than one tier, and where a provincial or local law conflicts with a federal law on a concurrent subject, the federal law prevails to the extent of the conflict.

Separation of powers among the organs

Within each tier, legislative, executive and judicial powers are exercised by separate organs, with checks and balances between them.

The same pattern is repeated for provinces (provincial assembly and provincial government) and for local levels (local assembly and executive). Nepal follows a parliamentary system in which the executive comes from the legislature, so the separation is not rigid, while the judiciary is independent and can review laws made by the other two organs.

How to write it in the exam

For "define constitution", give a one-line definition of your own, then two or three scholars with "according to", then the synthesis. For power distribution, name the three tiers, give the schedule table, state the residual power rule, and add the horizontal division among legislature, executive and judiciary. A small diagram of the three tiers with their schedules gains marks.

Related guides on this site: how local government works under the Constitution of Nepal 2015 goes deeper on Schedule 8 and 9 powers, and fundamental rights and duties in the Constitution of Nepal 2015 covers the rights that limit all three tiers. The full subject is on the Class 11 Constitutional Law page.