Constitutional Law · Chapter 2
Study notes aligned to the official NEB syllabus.
A constitution is the supreme law of a state. So the way it is made matters a lot. The more a constitution reflects the will of the people, the more legitimate and democratic it is. A charter forced from above may be obeyed out of fear. But a charter the people helped to make is obeyed out of ownership. That sense of ownership is the deepest source of a constitution's authority. History shows four main ways to frame a constitution. They differ mainly in how directly the people take part.
In this method the government appoints a commission (आयोग). A commission is a small body of selected persons. It often includes politicians, officials and a few experts. The commission studies the needs of the country. It may consult the public. It may also examine other constitutions. Then it prepares a draft. The draft is usually adopted by the executive or by an existing legislature.
This method has a clear strength. It is quick and orderly. It also draws on experienced hands. But its weakness is a shortfall of democratic legitimacy. The drafters are appointed, not elected. So the document can reflect the views of the appointing authority more than the free choice of the people. Here is a simple example. Imagine a government that appoints a twelve-member commission of retired officials. They write a new charter in a few months. The text may be neat and workable. But citizens may fairly ask a question. Why did a dozen appointees decide the fundamental law, and not their own elected representatives? Nepal's own Government of Nepal Act of 1948 is a historical example. It was prepared under the Rana regime. Its drafters were not elected by the people.
Here the drafting is given to a team of constitutional and legal experts (विशेषज्ञ). These are scholars, jurists and senior lawyers. They are chosen for their knowledge, not for any representative character. The advantage is technical quality. The text tends to be well drafted. It is internally consistent and professionally sound. The rights are carefully worded. The institutional powers are clear. There are few internal contradictions.
The drawback is again legitimacy. Experts may produce an elegant document. But it may not capture the political hopes or the social diversity of the people. They are not elected. So the constitution lacks a direct popular mandate. Here is an example of the limit. Suppose a panel of distinguished professors drafts a technically perfect constitution. Yet it says little about the inclusion of marginalised communities. This happens simply because the panel did not represent them. The text would be sound on paper. But it would be thin in legitimacy. For this reason, expert drafting is most often used as a support to another method. For example, experts may help a constituent assembly with the technical shaping of provisions. They are rarely relied on alone.
A constituent assembly (संविधानसभा) is a body specially elected by the people. It has a single purpose. That purpose is to frame a constitution. Its members are chosen by the citizens. So a constitution made by a constituent assembly is seen as the most democratic. It rests directly on the sovereign will of the people. It carries their mandate. The assembly debates the text. It amends it. Finally it adopts it. There is often wide public consultation too. Ordinary citizens can submit their views before the text is settled.
Nepal used exactly this method. The Constitution of Nepal 2015 was framed and promulgated by an elected Constituent Assembly. This was the second such assembly. That is why it is celebrated. It is the first constitution in Nepal's history made by the people's own elected representatives. A simple example shows the democratic character. A farmer in a remote district and a professional in the capital both voted. Through their votes they both chose the members who wrote the charter. So both are bound by a document they helped to make. The method has only two real costs. It can be slow. It can also be expensive. Electing and running an assembly takes time. Debating thousands of provisions and consulting the public takes time and money too.
A referendum (जनमत संग्रह) puts a draft constitution directly to the people. Sometimes it puts just a key question about the constitution to a popular vote. It is the most direct expression of popular will. The people themselves say yes or no. In practice a referendum is usually combined with another method. A commission, an expert team or a constituent assembly prepares the draft. Then the referendum ratifies it.
Used this way, a referendum adds a strong seal of legitimacy. The final word rests with the whole electorate, not with any body of representatives. Here is an example. A country might have an assembly prepare a draft. Then it holds a national vote. Citizens are asked to approve or reject the draft. A clear "yes" would give the charter strong popular backing. But the method has limits. Complex constitutional questions are hard to reduce to a single yes or no. So important details can be lost. Organising a nationwide vote is also costly. It is demanding to administer fairly.
Taken together, these four methods differ mainly in how directly the people take part. A commission or an expert panel places the drafting in a few hands. A referendum places the final decision in all hands. A constituent assembly places the whole making of the charter in the hands of elected representatives. A constituent assembly is considered the most democratic. This is even more true when it is combined with public consultation or a referendum. That is the path Nepal followed in 2015.