Constitutional Law

(b) The constitution of United States of America

The Constitution of the United States of America, drafted in 1787 and coming into force in 1789, is generally regarded as the first written constitution of a modern nation-state. The others came later — France's first written constitution was adopted in 1791 and Switzerland's in 1848.

(d) Right to vote

Right to vote is a constitutional/legal right (provided under the provisions on elections to the House of Representatives, Article 84 of the Constitution of Nepal 2072), but it is not listed in Part 3 of the Constitution as a fundamental right. The other three are fundamental rights: Right to live with dignity (Art. 16), Right to Equality (Art. 18) and Right to Communication (Art. 19).

(c) 20

Article 128 of the Constitution of Nepal (2072) provides that the Supreme Court shall consist of the Chief Justice and a maximum of 20 other judges. So excluding the Chief Justice, the number of judges is 20.

The Constitution of Nepal was promulgated by the second Constituent Assembly on 3 Ashwin 2072 BS (20 September 2015). Its main features are as follows.

1. Federal democratic republic. Nepal is an independent, indivisible, sovereign, secular, inclusive, democratic, socialism-oriented, federal democratic republican state. Sovereignty and state authority lie with the people, and the monarchy has been abolished.
2. Three-tier federalism. State power is shared among the federation, 7 provinces and 753 local levels, with exclusive and concurrent lists in Schedules 5 to 9. The three tiers are to work on the principles of cooperation, coexistence and coordination.
3. Bicameral federal parliament. The House of Representatives has 275 members (165 directly elected, 110 by proportional representation). The National Assembly has 59 members (56 elected by provincial electoral colleges, 3 nominated by the President).
4. Parliamentary system. The President is the ceremonial head of state. The Prime Minister, who leads the majority in the House of Representatives, heads the government and exercises executive power.
5. Fundamental rights. Part 3 (Articles 16 to 46) guarantees a wide range of civil, political, economic, social and cultural rights, including newly justiciable ones such as the rights to food, housing, health and a clean environment. Article 46 gives the right to constitutional remedy.
6. Directive principles, policies and obligations of the state. Part 4 sets welfare-state goals, which guide state policy but cannot be enforced directly in court.
7. Independent judiciary. The Supreme Court, High Courts and District Courts exercise judicial power. The Judicial Council and a Constitutional Bench handle appointments, discipline and constitutional questions.
8. Inclusion and proportional representation. Women, Dalits, Adivasi Janajati, Khas Arya, Madhesi, Tharu, Muslims and backward regions are guaranteed representation in state bodies. At least one-third of the federal parliament must be women.
9. Secularism. The state has no official religion, though religious freedom is protected. The reference to "protecting religion and culture handed down from time immemorial" is a debated qualification.
10. Constitutional bodies. The main bodies are the Commission for the Investigation of Abuse of Authority (CIAA), Auditor General, Public Service Commission, Election Commission, National Human Rights Commission, National Women Commission, National Dalit Commission and others.
11. Fiscal federalism. Revenue sources are divided among the three tiers, and a National Natural Resources and Fiscal Commission recommends the sharing of revenue and the grants to provinces and local levels.
12. Rigid in amendment. An amendment needs a two-thirds majority of the total members of both houses. Provisions that affect provincial boundaries or federal powers also need approval of the provincial assemblies. Provisions on sovereignty and the nature of the state, other than those in the preamble, cannot be amended.

Conclusion. The Constitution combines federalism, republicanism, secularism, inclusion and rights-based governance in a single written, largely rigid document that sets the framework for Nepal's democratic state.

Part 3 of the Constitution of Nepal (2072), Articles 16 to 46, guarantees the following fundamental rights.

(a) Civil and political rights

(b) Economic, social and cultural rights

(c) Rights of specific groups

(d) Remedy

Note on limits. Some rights, such as those to education, health, food and housing, are enforced as provided by law. The state may impose reasonable restrictions on certain freedoms in the interest of sovereignty, public order, morality and similar grounds.

Constitution and Its Difference from Ordinary Laws

Meaning of Constitution

The term "constitution" comes from the Latin word constitutio, meaning "that which is established." In simple terms, a constitution is the fundamental law of a state — the supreme body of rules that establishes the structure of government, distributes powers among its organs, defines the relationship between the state and its citizens, and guarantees the rights and freedoms of the people.

In the words of Aristotle, a constitution is "the way of life of a state." K.C. Wheare defines it as "the whole system of government of a country, the collection of rules which establish and regulate or govern the government." The Oxford Dictionary describes it as "the system of rules and principles by which a country is governed."

Every modern state has a constitution, whether written (like Nepal, India, USA) or unwritten (like the UK). It is the fundamental document that gives legal identity and structure to the state.

How the Constitution Differs from Other (General) Laws

The constitution is not merely one law among many; it stands above all other laws. The main differences are:

1. Source of Authority A constitution derives its authority from the sovereign people — it is made by the people through a constituent assembly or special procedure. Ordinary laws derive their authority from the constitution itself and are made by the legislature.

2. Supremacy The constitution is the supreme law of the land. Any law inconsistent with it is void (ultra vires). Ordinary laws are subordinate to the constitution and must conform to it. In Nepal, Article 1 declares the Constitution as the fundamental law, and Article 133 gives the Supreme Court power to invalidate inconsistent laws.

3. Method of Amendment A constitution is amended through a special, rigid procedure requiring a special majority (e.g., two-thirds in Nepal's Federal Parliament under Article 274). Ordinary laws are amended by a simple majority through the ordinary legislative process.

4. Content and Scope A constitution deals with fundamental matters — sovereignty, form of government, distribution of power, fundamental rights, and directive principles. Ordinary laws deal with routine and specific matters such as traffic, taxation, contracts, or criminal offences.

5. Generality vs. Specificity A constitution is general and broad in nature, laying down principles. Ordinary laws are specific and detailed, providing concrete rules for day-to-day governance.

6. Stability and Permanence A constitution is relatively permanent and stable, designed to endure. Ordinary laws are flexible and changeable, amended or repealed as circumstances demand.

7. Guardian of the Constitution The judiciary (especially the constitutional/supreme court) acts as the guardian of the constitution and can strike down unconstitutional laws. Ordinary laws are interpreted and applied by ordinary courts but cannot override the constitution.

8. Legitimacy of Government A constitution creates and legitimizes the organs of government. Ordinary laws only regulate the functioning of already-created organs.

Conclusion

In short, the constitution is the supreme, fundamental, and organic law of a state, while other laws are ordinary, subordinate, and specific. The constitution is the "mother law" from which all other laws draw their validity. It provides the framework within which ordinary laws operate, and its supremacy is the cornerstone of constitutionalism and the rule of law.

Formation of the Council of Ministers under the Constitution of Nepal

1. Constitutional Basis

Part 7 of the Constitution of Nepal (2015) deals with the Federal Executive. Article 75 governs the formation of the Council of Ministers. The Constitution adopts a parliamentary executive model, meaning the real executive power lies with the Council of Ministers, which is collectively responsible to the House of Representatives (HoR).

2. Procedure of Formation (Article 76)

Article 76 lays down a graded procedure:

• The President appoints the Prime Minister, and other ministers are appointed by the President on the recommendation of the Prime Minister (Art. 76(9)).
• The President, on the PM's recommendation, assigns portfolios and may reshuffle them.
• The number of ministers, including the PM, must not exceed 25 (Art. 76(9)).
• A person who is not a member of the HoR may be appointed minister, but must become a member of the Federal Parliament within 6 months (Art. 78).
• The Council of Ministers is collectively responsible to the HoR (Art. 76(10)); individual ministers are responsible to the PM and the HoR.

3. Critical Analysis

Merits:

1. Flexibility in hung parliament — The four-tier fallback in Article 76 prevents constitutional deadlock when no party wins a clear majority.
2. Democratic legitimacy — The PM must command the confidence of the directly elected House, ensuring executive accountability to the people.
3. Checks on arbitrary power — The 25-member cap discourages jumbo cabinets; collective responsibility ensures cohesion.

Demerits / Criticisms:

1. Political instability — The provision allowing the leader of the largest party (even a minority) to be PM has repeatedly produced fragile coalitions. Nepal has seen 13 governments in 10 years, exposing the weakness of the design.
2. Horse-trading and defection — The requirement of majority support encourages floor-crossing and opportunistic alliances, undermining party discipline.
3. Weak accountability of non-HoR ministers — The 6-month window allows technocrats and defeated candidates to enter the cabinet, raising questions of democratic mandate.
4. Ambiguous role of the President — The President's discretion in inviting a leader to form government has been challenged in the Supreme Court (e.g., Oli vs. Deuba cases), showing the provision is open to interpretation.
5. No fixed term or minimum tenure — Frequent reshuffles and no-confidence motions make governance unstable and policy continuity difficult.

4. Conclusion

Article 76 provides a workable but imperfect mechanism for forming the Council of Ministers. While it safeguards against constitutional vacuum, its practical operation has exposed Nepal to chronic instability. Constitutional reform — such as a constructive vote of no-confidence, a minimum threshold for coalition partners, or a fixed term for the PM — is needed to make the executive both stable and accountable.

Separation of Power and Check and Balance

Separation of Power

Definition: Separation of power is the constitutional principle under which the three organs of government — the legislature (law-making), the executive (law-implementing), and the judiciary (law-interpreting) — are vested in separate bodies, with distinct functions, so that no single organ exercises all the powers of the state. It prevents the concentration of authority in one hand and thereby protects individual liberty.

The doctrine was systematically developed by the French jurist Baron de Montesquieu in his work The Spirit of the Laws (1748). He argued that "when the legislative and executive powers are united in the same person or body, there can be no liberty," and that the judiciary must be kept separate from both. The idea traces back to Aristotle (who identified three elements of a state: deliberative, executive, and judicial) and John Locke (who distinguished legislative, executive, and federative powers).

The principle has three essential elements:

1. Distinct organs — the three functions of government are performed by three separate bodies.
2. Distinct personnel — the same person should not hold office in more than one organ at the same time.
3. Distinct functions — each organ must confine itself to its own function and not encroach on another's.

Check and Balance

Definition: Check and balance is the complementary principle by which each organ of government is given certain powers over the other organs, so that each can restrain or correct the excesses of the others. Since absolute separation of power is neither possible nor desirable in practice, the organs are kept in a state of mutual dependence and control, producing a balance of power.

This principle was practically applied in the Constitution of the United States of America (1787), where the framers deliberately created overlapping powers so that "ambition may be made to counteract ambition" (James Madison, Federalist No. 51).

Illustration of Check and Balance

Conclusion

Separation of power and check and balance are two sides of the same coin. Separation of power divides authority among the three organs to prevent tyranny, while check and balance links them so that no organ becomes supreme. Together they maintain the balance of power, protect liberty, and ensure the rule of law. In practice, no state follows the doctrine in its absolute form — even the USA, its strictest adherent, has considerable overlap — but the principle remains the foundation of modern constitutional government.

Federalism

Federalism is a system of government in which political power is constitutionally divided between a central (federal) government and constituent regional units (states, provinces, cantons), each of which is supreme within its own sphere. Neither level derives its authority from the other; both derive it directly from the constitution. The classic definition is given by K.C. Wheare, who held that federalism exists where the powers of government are divided between a general government and regional governments "in such a way that each government is legally independent within its own sphere."

Essential features:

1. Written, rigid constitution — the supreme law that cannot be amended unilaterally by either level.
2. Division of powers — powers are enumerated (Union list, State list, Concurrent list).
3. Supremacy of the constitution — with judicial review to settle disputes.
4. Independent judiciary — an impartial arbiter, usually a supreme or constitutional court.
5. Bicameralism — an upper house representing the units (e.g., Nepal's National Assembly, India's Rajya Sabha, the US Senate).
6. Dual citizenship and dual government — citizens owe allegiance to both the federation and the unit.

Difference between Federalism and the Unitary System

Conclusion: The decisive test is where sovereignty lies. In a unitary state the centre is legally omnipotent and the units are subordinate; in a federation sovereignty is shared, and the units possess constitutionally entrenched autonomy that the centre cannot abolish unilaterally. Nepal's Constitution of 2015 transformed the country from a unitary to a federal democratic republic with seven provinces and 753 local units.