Note of chapter 1 from exam perspective (cursory notes) of constitutional law.
In Lay term, Constitution means any written document which describes ‘how to operate an organization. Constitution was understood as a will of the ruler. It is also understood as a document related to political structure.
Constitution means the document that defines the composition and power of organs of state. It is a legal, social and political document.
Charles Evans Hughes: “We are under a constitution, but the constitution is what the judges say it is.”
In Marbury V. Madison, 1803; The US Supreme Court Chief Justice Marshall said, “it is the province and the duty of the judicial department to say what the law is”.
Constitution can be divided into mainly two categories:
- Written constitution.
- unwritten constitution.
K. C Wheare and Hilaire Barnett have classified constitution into 6 categories:
- Written and unwritten
- Rigid and flexible
- Supreme and subordinate
- Federal and unitary
- Power separated and power fused.
- Republican and monarchial.
Other categories: 1. Federal and state constitution. 2. Presidential and parliamentary.
Importance of constitution:
- Stability
- Guarantees of fundamental rights
- Reasonable representation
- Flexibility
- Transparency
- Accountability
- Limits the power of government.
Constitutionalism:
It is defined as a ‘belief in constitutional government’. It means the limited power which includes the idea of rule of law and separation of power. The main feature of constitutionalism is the limited government.
Donald S Lutz : ‘constitutionalism is a political technology to marry power with justice’
Hilaire Barnett: ‘It is a doctrine that governs legitimacy of government action’
Constitution is like blank paper without constitutionalism. No constitutionalism means no Liberty and justice.
It is a tool to avoid the absence of power by the government.
Elements of doctrine of constitutionalism:
- Supremacy of constitution
- Limitation on power of government
- Based on separation of power,
- accountable government
- responsible government,
- check and balance,
- guarantee the individual rights and liberties,
rule of law.
Constitutionalism; theory and practice in Nepal.
Constitution of Nepal 2072 has recognized the doctrine of constitutionalism as follows:
- Preamble: Declares the basic elements of constitutionalism, like rule of law, multi party democracy, fundamental rights, human rights.
- Article 1: Constitution as fundamental law of Nepal. Any law which is inconsistent with this constitution shall be declared void to the extent of such inconsistency.
- Article 133: Nepali citizens may file petition to supreme court of Nepal to declare law void, which is inconsistent with the constitution of Nepal.
- Article 16-48: Fundamental rights of Nepali citizens.
- Article 56(6): Guarantees rule of law as well as separation of power and checks and balance.
- Division of power:
- Article 61 to 73: provision of president and vice president
- Article 74 to 82: provision of P.M and cabinet
- Article 83 to 125: provision of parliament or legislature
- Article 126 to 155: provision of Judiciary.
Implementation of constitutionalism in Nepal:
Doctrine of constitutionalism has been undermined by government and government agencies in Nepal as follow:
- Abuse of ordinance power by the government
- Undermining constitutional council by the government,
- Abuse of impeachment power (e.g., against Chief Justice Cholendra Shamsher J.B.R.)
- Denial of parliamentary discussions regarding citizenship bill,
- Denial of an assent to the citizenship bill by president.
- Denial of vote of confidence motion by PM.
- Judicial activism regarding appointment of PM within 24 hours beyond the constitution.
- Enlargement of original jurisdiction of supreme court through the supreme court rules.
Prepared and Edited By: Manish Rajak & Madhu Dahal
