Constituent Assembly

Constituent Assembly is the process of drafting the constitution. It is the assembly of elected people’s representatives formed in order to draft the constitution. It is the outcome of the democratic movement. In the process of constituent assembly, there is more participation of people and they have the right to write their constitution by themselves. Thus, the constituent assembly is regarded as a democratic practice for drafting the constitution. There are proportionate representation and involvement of the people of every caste, sex, geographical region, etc. It is also taken as one of the most democratic ways of drafting a constitution. So, it is more trustworthy for the promulgation of the constitution.

Necessity of Constituent Assembly in Nepal

In the history of Nepal, altogether 6 constitutions were promulgated. They were made by a single authority. All of them did not comprehend the sentiments of the people and their aspirations due to which Mass Movement 2062/63 took place and Loktantra was established. After the establishment of Loktantra in Nepal, the constituent assembly was conducted and thus, a constituent assembly was formed. The first Constituent Assembly was unable to introduce constitution because of that the election of second constituent assembly was held in 2070 BS. It was formed to ensure better rights and freedom to the people.

Formation of Nepalese Constituent Assembly

• There were 240 lawmakers elected directly from 240 constituencies.
• 335 members were elected through proportionate election system supposing entire country a constituency.
• 26 members were nominated by the Council of Ministers from among the experts having the contribution of different sectors representing indigenous people.

Provisions made to form inclusive Constituent Assembly

The following are the provisions made to form the inclusive Constituent Assembly:

• There was the provision to select the candidates in accordance with gender, geographical basis as per the principle of inclusiveness in the direct selection.
• There was the provision of 50% representation of the women from each constituency through the proportionate election system.
• There was the provision of at least \(\frac {1}{3}\) (one-third) compulsory representation of the women in the constituent assembly.
• There was the constitutional provision of the representation of enlisting people from suppressed group, poor peasants, laborer and handicapped category while preparing a list of candidates through proportionate election system.

Rule of Law

The legal principle for governing a nation is known as the rule of law. It is also known as ‘Supremacy of Law’, ‘Constitutional Supremacy’ etc. The rule of law implies that every citizen is subjected to the law including lawmakers themselves.

The concept of the rule of law is developed by a Scottish theologian named Samuel Rutherford while having an discussion against the almighty power of kings but it was popularized further by a British Jurist named AV Dicey in the 19th century.

According to A.V. Dicey, there should be the following characteristics to be called as rule of law which are as follows:

 

• Supremacy of law
• Equality in front of law
• Source of law is constitution

Supremacy of law
The law should be supreme in the nation. No one can represent himself or herself above the law. No person shall be punished except the case of violation of the law. Autocracy and monopoly in governance are highly restrained.

Equality in front of law
No one is biased by law. Everyone is equal in front of the law. The level and status of people are not considered in the law.

Source of law is constitution
Constitution is regarded as the main law of the nation. The constitution is the main source of the law. Hence, all the laws implemented in the nation are the outcome of the constitution.

Principles of Rule of Law

Rule of law is a system in which the following four universal principles are upheld:

• The government, its officials, agents as well as individuals and private entities are accountable under the law.
• The laws are clear, publicized, stable, and just; are applied evenly; and protect fundamental rights, including the security of persons and property.
• The process by which the laws are enacted, administered, and enforced is accessible, fair and efficient.
• Justice is delivered timely by competent, ethical, and independent representatives and neutrals who are of sufficient numbers, have adequate resources, and reflect the makeup of the communities they serve.

Basic elements of Rule of Law

• Equality
• Equity
• Periodic election
• Democracy
• Human Rights
• Good Governance
• Limited role of the government
• Separation of power
• Balance of power
• Transparency
• Accountability
• Independent judiciary

Need of Rule of Law

Rule of law is important to maintain the following aspects in the country:

• Assurance of independent judiciary
• Unbiased media
• End of impunity
• End of lawlessness
• Good political knowledge
• Supremacy of law
• Peace and security
• Feeling of belonging of all in the governing rule
• Democracy formation and the government responsible towards the people
• Promotion of social justice and equality

Obstacles in establishing rule of law in Nepal

The following are the obstacles in maintaining rule of law in Nepal:

• Political instability
• Misuse of power
• Priority for the personal benefits or favor
• Lack of proper mechanism to systematize policies
• Lack of proper strategies to implement the rules of laws
• Privatization of common issue
• Fighting for rights but ignoring the duties

Ways to promote Rule of Law

Rule of laws should be maintained properly for producing loyal and honest generations who have the broad knowledge of the rules of laws of a nation.

The following are some of the ways to promote rule of law:

• The inclusive law should be formed.
• Successful political culture should be practiced.
• Corruption should be controlled.
• People who perform the task against the rule of law must be punished.
• People should be aware and practical that right and duties are to be taken side by side.
• Social organizations should address the social problems prevailing in our society.
• Feeling of nationalism should be developed.