Constitutional Law · Chapter 1
Study notes aligned to the official NEB syllabus.
A constitution (संविधान) is the fundamental law of a state. It is the main document of rules for the country. It sets up the organs of government. It shares power among them. It explains how the state and the citizens relate to each other. It also guarantees the basic rights of the people.
An ordinary law is made by the legislature (the law-making body). A constitution is different. It stands above all other laws. Every other law gets its power from the constitution. If an ordinary law goes against the constitution, that law is void. Void means it has no legal force. This is true to the extent of the conflict.
In Nepal, this supremacy is stated at the very start of the Constitution of Nepal 2015. Article 1 says the Constitution is the fundamental law of Nepal. Any law that goes against it is void to the extent of the conflict. So a constitution is a charter of government. It is also a charter of liberty (freedom).
An example makes this easy to see. Suppose the federal Parliament passes a law. The law bans a newspaper from criticising ministers. The Constitution of Nepal 2015 gives freedom of expression as a fundamental right. These rights are in Part 3. So the new law would clash with the Constitution. A court could declare the law void to the extent of the conflict. An ordinary law cannot defeat the supreme law. This is what makes a constitution different from an ordinary Act of Parliament. It is also different from a municipal by-law or a government order.
The idea of a written constitution that limits rulers grew slowly. Some early milestones are often mentioned.
The first is England's Magna Carta (1215). For the first time, a king was bound to respect certain rights. He had to act by law and not only by his own will. The second is the long growth of parliamentary supremacy in Britain. The third is the first modern written constitutions. These are the United States Constitution (1787) and the French revolutionary constitutions.
From these came the modern idea. The power of government must rest on a supreme written charter. That charter must also limit the government. It is made in the name of the people.
Here is an example. Magna Carta promised that no free person would be jailed except by the lawful judgment of his peers. This is the distant ancestor of a modern protection. That protection is the guarantee against arbitrary (unfair and random) detention. It appears again in Nepal's Constitution of 2015. It is found in the rights relating to justice. It is also found in the remedy of habeas corpus (a court order to bring a detained person before the court).
A constitution is important because it gives a state its legal foundation. It does several jobs.
Without a constitution, a change of ruler could change the whole legal order. With a constitution, governments come and go. The framework stays.
The main features and elements of a constitution usually include these points.
Here is an example from Nepal. A new government is formed after an election. The Prime Minister and the Council of Ministers take charge of the executive. The same Parliament continues to make laws. The Supreme Court continues to decide cases. The fundamental rights of citizens stay exactly the same. The constitution has given a stable skeleton. The changing politics sits on that skeleton.
Constitutionalism (संविधानवाद) is the principle that government power is not absolute. It is limited by a constitution. It must be used according to that constitution.
Having a constitution is not enough. A state practises constitutionalism only when its government really acts within constitutional limits.
The essential elements of constitutionalism are these.
A simple contrast shows the difference. A state may have a fine written document full of rights. But its rulers may jail critics without trial. They may also ignore the courts. That state has a constitution. It does not have constitutionalism.
In Nepal, constitutionalism can be seen in action. Suppose an official seizes a citizen's land unlawfully. The citizen can file a writ in the Supreme Court. A writ is a written order from a court. The court can order the official to act within the law. This shows that even the state is bound by the Constitution.
Limited government (सीमित सरकार) is the natural result of constitutionalism. It is a government whose powers are restricted by the constitution and the law. The opposite is an unlimited or absolute government. An absolute government accepts no legal restraint.
Several things limit a government.
Here is an example. Suppose a minister in Nepal wants to punish a journalist. The minister cannot just order an arrest. The police can act only under a valid law. The detained person can ask for habeas corpus. The voters can remove the government at the next election. Each of these is a wall around power. Together they turn raw authority into limited and lawful government.
Nepal has had several constitutions. Here they are in order.
Each step mostly widened the people's part in power. The early charters were granted from above by rulers. The 1990 Constitution recognised popular sovereignty under a constitutional monarchy. The 2015 Constitution was written by the people's own elected representatives.
The Constitution of Nepal 2015 makes Nepal a federal democratic republic. There are three tiers of government. They are one federal government, seven provinces and 753 local units. It is the first constitution in Nepal's history written and promulgated by the people's own elected representatives. For this reason it is seen as the high point of a long journey. That journey went from rule by command to rule by consent.