-Ashish Poudel
Constitution
The constitution is a comprehensive and legal framework for the operation of the state system and the basic or fundamental law of the state. It is considered as the state charter, which frames the types of government and distribution of power among them. The constitution is supreme in guaranteeing human rights and fundamental rights, certifies the government organs’ accordance with their power, and mandates the recognition of sovereignty and state power to whom they belong.
Constitutionalism
Constitutionalism is a governance philosophy based on the concept of constitutional supremacy and limited government. Here, limitation means that governmental actions are defined by the Constitution and law, but it does not mean that the government is restricted from functioning or operating within limits.
Generally, Constitutionalism refers to governing according to the Constitution of the state. It stands in contrast to dictatorship and irresponsible governance. Constitutionalism entails acting in accordance with rules and the Constitution, upholding the supremacy of the rule of law, protecting and promoting human rights, ensuring good governance, and ending arbitrariness.
It is certain that Constitutionalism does not exist without a constitution. However, merely having a constitution is not sufficient for Constitutionalism if there is dictatorship, rule by law, concentration of sovereign and state power in the rulers’ hands, absence of human rights and freedoms, lack of good governance, and reliance solely on the faith in these norms. Constitutionalism requires a proper definition and implementation based on democratic norms and values. It encompasses attributes such as the supremacy of human rights and fundamental rights, separation of powers, checks and balances, good governance, the rule of law, and an independent, competent, and impartial judiciary.
In the present world, the concept of modernizing democracy and emphasizing the supremacy of human rights and fundamental rights, along with the separation of powers, checks and balances, good governance, the rule of law, and an independent, competent, and impartial judiciary, is relevant to Constitutionalism.
The concept and development of Constitutionalism in Nepal
The Constitutional development of Nepal has started since 2004 B.S. but the officially implementation since 2007 B.S . In the Constitution of 2007, 2015 and 2019 B.S , the ruler (king) is accepted as the source of state power so Constitutionalism is not founded in those Constitution’s and the governing system.
The concept of Constitutionalism in Nepal firstly appears to have spread and started after the promogulation of the Constitution of the kingdom of Nepal, 2047. There are several contexts to recognizes the Constitutionalism, such as :- Sovereignty over people, Constitution as a basic law, provision of fundamental rights including constitutional remedies, separation of power, check and balance on organs of the state and Constitutional Bodies, concept of independent judiciary, adult suffrage and periodic election, rule of law, and multi-party democratic governance system.
The Interim Constitution of Nepal, 2063 added that state’s power in the people, with the formal end of monarchy and declaration of the Federal Democratic Republican Nepal.
The existing Constitution of Nepal and Constitutionalism
The constitutional development of Nepal began in 2004 B.S., with official implementation starting in 2007 B.S. The main achievement of this Constitution put an end of to the centralized, unitary, federal and autocratic governance system of Nepal. The Constitution of Nepal has absorbed the great idea of adopting a competitive multi-party democratic governance system, fulfilling the aspirations of the social justice, sustainable peace, development and prosperity and good governance. The Constitution has emphasis the three level of governance system structure and practically guarantees the people’s sovereign rights, autonomy and self-governance rights. Constitution has insured Nepal’s sovereignty, geographic integrity, nationalism, protection of the rights and interests of Nepalese, development, promotion, and protection of national interest.
With the practice of those essential components of Constitutionalism in considering diverse factors such as ending all forms of class, ethnic, regional, and gender discrimination, ensuring full press freedom, establishing an independent, impartial, and competent judiciary, and upholding the rule of law, there is a commitment to democratic values, beliefs, and socialism. The provisions of 31 fundamental rights in part 3, article 16 to 46 , including the right to Constitutional remedies are in line with modern democratic standards, ensuring civil liberties. Also, Part 4 of the constitution, article 50 on Directive Principles of the state, article 51 on State Policies, and article 52 on State Responsibilities, reflect contemporary and democratic norms essential to Constitutionalism. Additionally, the existence of 13 independent Constitutional bodies further strengthens the foundation of Constitutionalism. Furthermore, provisions such as referendums (Article 275), parliamentary hearings (Article 292), inclusive theories, proportional representation systems, and gender inclusion demonstrate the absorption of the concept of Constitutionalism in the existing Constitution of Nepal.
