Constitutional Law · Chapter 3
Study notes aligned to the official NEB syllabus.
Constitutions are not all of one kind. Scholars sort them in several ways. These ways overlap. One test is form. This asks whether the rules are collected in one document. Another test is the distribution of power. This asks whether power is shared among levels of government. A third test is the ease of amendment. This asks whether the constitution changes easily or only with difficulty. A fourth test is the manner of growth. This asks whether the constitution was deliberately framed or grew over time. A single constitution usually fits one category under each test at once. Take Nepal's Constitution of 2015. It is written, federal, rigid and enacted. Now take the constitution of the United Kingdom. It is unwritten, unitary, flexible and evolutionary. These categories help a student see why a constitution behaves as it does.
A written constitution (लिखित संविधान) sets out its fundamental rules in one formal document. Sometimes it uses a defined set of documents. It is deliberately framed and adopted at a particular moment. Most modern constitutions are of this kind, including Nepal's. Its merits are clarity, certainty and ease of reference. A citizen, a lawyer or a judge can open the text and read exactly what the law provides. That is why a written constitution is usually supreme and rigid. Its drawback is that it can be slower to adapt to new situations. This is because changing it requires a formal amendment. Here is an example. A dispute arose in Nepal about the powers of the three tiers of government. The parties could point to the written text and its schedules of powers. From these they could settle what belonged to whom. This would be impossible where no single document exists.
An unwritten constitution (अलिखित संविधान) is not contained in one document. Its rules come from many sources. These include statutes, judicial decisions, conventions and long-settled customs. They build up gradually over time. The United Kingdom is the classic example. There is no single "British Constitution" one can hold in the hand. Instead the rules are found in historic statutes. They are also found in decisions of the courts. They are found too in binding conventions. One such convention is that the monarch acts on the advice of ministers. Its merit is flexibility. It can evolve quietly. Its weakness is uncertainty. It gives a weaker guarantee against arbitrary change. In truth, no constitution is purely one type. Even a written constitution like Nepal's relies on conventions. For instance, conventions shape how a coalition is formed after an election. And even an unwritten constitution contains crucial written statutes.
A federal constitution (संघात्मक संविधान) divides governmental power between two sets of government. One is the central (federal) government. The other is the regional (provincial or state) governments. Each draws its authority directly from the constitution within its own sphere. So neither can simply abolish the other. Nepal's Constitution of 2015 is federal. It has three tiers: the federal level, seven provinces, and 753 local units. Suppose a province wants to make law on a matter placed on its own exclusive list. An example is a subject of provincial administration. The province may do so in its own right. Its power comes from the Constitution, not as a grant from Kathmandu that could be withdrawn.
A unitary constitution (एकात्मक संविधान) concentrates power in a single central government. Any regional or local authority gets its powers from the centre by delegation. The centre can change or withdraw those powers at will. Nepal before 2015 was unitary in this sense. Local bodies existed. But they acted on powers handed down from the centre. A unitary system has clear strengths. It offers uniformity of law. It offers strong central direction. It is economical and allows quick decisions. A federal system has different strengths. It offers self-rule to regions. It accommodates a country's diversity. It brings government closer to the people. It guards against too much power in one place. Its cost is greater complexity and expense. Nepal chose federalism for a reason. It wanted to answer long-standing demands for regional and group self-rule.
A rigid constitution (कठोर संविधान) can be amended only through a special, stricter procedure. This procedure is different from the one used for ordinary law. It is also harder. For example, it may require a two-thirds majority in the legislature. Written and federal constitutions are usually rigid. Rigidity protects them from hasty change. It also preserves their supremacy. Nepal's 2015 Constitution is rigid in this sense. A fundamental right cannot be swept away by a bare majority in a single sitting. The amendment procedure deliberately sets a higher bar. Imagine a government of the day with a simple majority. It wishes to curtail freedom of expression overnight. A rigid constitution stands in its way. Such a change demands the special, heavier process the Constitution lays down.
A flexible constitution (नरम संविधान) can be amended by the same procedure as an ordinary law. So it changes easily to meet new needs. The United Kingdom is an example. There, Parliament can alter even constitutionally important rules by an ordinary Act. Rigidity gives stability. It protects the constitution from passing majorities. But it can block necessary reform. Flexibility gives quick adaptability. But it offers weaker protection to rights and to the basic structure of the state.
An evolutionary constitution (विकसित संविधान) has grown gradually over a long period. It grows out of custom, convention, statute and judicial decision. It is not framed at any single moment. The United Kingdom is again the leading example. Its constitution is the slow deposit of centuries of practice.
An enacted or made constitution (निर्मित संविधान) is consciously framed and adopted at a definite time. It is made by a competent body such as a constituent assembly. Nepal's Constitution of 2015 is an enacted constitution. It was framed and promulgated by the elected Constituent Assembly. There is a precise moment at which it came into force. There is a clear body that made it. Evolutionary constitutions carry the authority of long tradition. They adapt smoothly. Enacted ones have other merits. They have clarity, deliberate design and a precise moment of democratic origin. The difference shows in how each is studied. An enacted constitution is read from its text. An evolutionary one must be pieced together from history and practice.