Published by: Mandira
Published date: 16 Jan 2022
Success follows any programmes if its prescribed rules are followed properly. Similar is the case with the administration of a country because we find that all the countries at large, except England, have written constitutions to have their affairs run properly. Although England has no written constitution to follow, it works with conventional laws founded from the early times. The constitution of the United States of America, adopted in 1787, is the oldest of all. Constitution is amended and perfected as per the changes in circumstances and necessities.
We find that a constitution of the country embodies a basic point laid in it, which defines the system or the form of the government it has- unitary or federal, dictatorial or democratic, etc. Since a constitution is the most authentic political and legal document of the land, it limits the power of government, protects people's rights and delegated power between different offices. The constitution is the supreme law of the country and all other laws are subordinate to it. Any laws inconsistent with the constitution are declared void to the level of their inconsistency.
The following are the functions of constitution:
Features of an ideal constitution
Clarity
All articles and clauses of a constitution should be clear and free from ambiguity and contradiction. A Clear explanation should be included when needed so as to avert such possibilities. Lack of such clarity in the 1990 constitution of Nepal brought about several constitutional complications and ultimately suspension of the same.
Changeability
A constitution made in a circumstance might turn unfit in another circumstance. So it should be made provision for its amendment that is needed according to time, circumstances, will of the people and need of the nation. Otherwise, it may be rigid and unsuccessful.
Universality
An ideal constitution, though short, includes all major provisions related to the system of government, distribution of power, fundamental rights, etc. It must have widest possible coverage.
Conciseness
A constitution is not everything but the fundamental basis for all other subordinate laws. It should have wide coverage but should not be very lengthy.
Separation of power
According to Montesquieu, a famous French philosopher, power should be duly separated in order to prevent absolutism. No matter how efficient the ruler is, sooner or later he becomes a dictator and breaches the constitution if all the powers are given. So an ideal constitution makes a clear distribution of power into executive, legislative and judiciary and keeps these organs interdependent and self-restrained.
Respect for a public wish
A good constitution is prepared according to the wish of the general public. It aims at promotion the public welfare. In turn, this helps to ensure the successful working of the constitution.
Provision of fundamental rights
Fundamental rights of people should be guaranteed by the constitution. It should also provide for the measures for the restoration and preservation of such rights.
Independent judicature
A good constitution establishes judiciary as a fully independent and efficient organ. Rule of Law should be ensured. Without the rule of law, public welfare cannot be guaranteed.
The following are the bases for drafting the constitution:
Types of Constitution
Britain is being governed according to the prevailing practices, traditions, norms, and values. Thus, there is no written constitution in Britain. Other countries except Britain have written constitution. The USA drafted its constitution in 1787 AD which is the oldest constitution of the world.
A constitution provides for the chief organs of government, like the executive, legislative and judiciary, their power sharing and guarantees for the people's fundamental rights. The constitution is formulated with due regards to the people's rights and their will and the need of the nation. It reflects the characteristics and aspirations of the state. The constitution is essential for the preservation of people's rights and justice, to fulfill the wish of the people and to direct the nation to a specific goal.
The constitutional development of Nepal has not come a long way. During, the constitutional development of Nepal, the government of Nepal Act 2004 B.S is the first and historical document of Nepal which was declared by the Shree III Padma Shamsher JBR. The Padma Shamsher JBR himself was the inciter or promoter of this constitution. It was followed by the Interim Government Act 2007 after the introduction of democracy. Within a short period of hardly six decades, six different constitutions have been announced so far in Nepal. Those constitutions were not fully democratic. Those constitutions failed because they were not formulated according to the democratic participation and wishes of people. Some of them were formulated merely as the means for the rulers to satisfy their ambitious hunger for power. As we know, after the popular movement of 2062/63, Nepal started making a truly democratic constitution through an elected constituent assembly that could ensure widest possible public participation.
The following paragraphs briefly describe those six constitutions of Nepal:
Nepal Government Act 2004 BS
Nepal Government Act 2004 BS, the first constitution of the land consisted of 6 parts, 68 articles, and 1 schedules. It made provisions for fundamental rights and duties, thecouncil of ministers, courtiers'assembly, thebicameral parliament, public service commissions etc. It was supposed to be promulgated on 1st Baishakh, 2005. But Prime Minister Padma Shamsher could not enforce the constitution because of undue pressure from resistant Ranas like Babar Shumsher and Mohan Shumsher. So it just remained a constitution without implementation.
Nepal Interim Government Act 2007 BS
Promulgated on 17th Chaitra 2007 BS after the overthrow of the Rana autocracy, Nepal Interim Government Act 2007 BS was divided into 7 parts, 73 articles, and 3 schedules. It made provisions for directive principles and policies of the government, council, election commission, financial procedure, etc. This interim constitution remained active for unexpectedly a longer time as late as until 2015 BS.
The Constitution of the Kingdom of Nepal 2015 BS
As a more democratic constitution, the Constitution of the Kingdom of Nepal 2015 BS made a provision for the adult franchise, bicameral parliament, auditor general, constitutional monarchy, king's emergency power, supreme court, an independent judiciary, election commission etc. It consisted of 10 parts, 77 articles, and 3 schedules. This democratic constitution was promulgated on 1st Falgun 2015 BS but was soon suspended almost fully on 1stPoush 2017 by power seeking King Mahendra.
The Constitution of Nepal 2019 BS
As the fourth constitution of Nepal, the constitution of Nepal 2019 BS gave constitutional recognition to the party-less Panchayat system put into practice by King Mahendra in 2017 BS. It was divided into 20 parts, 97 articles, and 2 schedules.It provided for people's fundamental rights, adult franchise, the council of ministers, national panchayat, supreme court, etc. Promulgated on 1stPoush 2019 BS, this constitution was amended in 2023 BS, 2032 BS, and 2037 BS and was finally abandoned by the popular movement in 2046 BS that restored the multi-party system in the country.
The Constitution of Kingdom of Nepal 2047 BS
Promulgated by King Birendra on 23 Kartik 2047 BS after the success of the Popular Movement I, the constitution of the Kingdom of Nepal 2047 BS was divided into 23 parts, 133 articles, and 3 schedules. It was noted for its provisions for more fundamental rights, sovereignty inherent in people, constitutional monarchy, multiparty democracy, adult franchise, independent judicature, the rule of law, etc. However, some of its articles gave way to the king's efforts for taking more executive movement II in 2063 BS.
The Interim Constitution of Nepal 2063 BS
The Interim Constitution of Nepal 2063 BS was promulgated on 1st Magh 2063 BS in the name of the people by legislative parliament. Divided into 25 parts, 167 articles, and 4 schedules, this constitution established Nepal as a secular and republican state whose state power is inherent in the people. The constitution provided for the unicameral legislature parliament, election to the Constituent Assembly, recognition of Human Rights Commission as a constitutional organ, originally the appointment of the Commander-in-Chief by the Prime Minister and so on. It underwent eleven different amendments before its fifth anniversary.
Constitution of Nepal - 2072 BS
The Constitution of Nepal 2072 BS was promulgated by President Ram Baran Yadav unveiled on behalf of Speaker Subash Chandra Nembang on 3rd Ashwin 2072 BS. It is divided into 35 parts, 308 articles, and 9 schedules. It is the seventh constitution of Nepal. It was amended on 9th Magh 2072 B.S.
The following are the major characteristics of the constitution: