LAW5202 Constitutional Law-I — Unit 1: Introduction — Meaning and Definition of Constitution and Constitutional Law; Nature and Scope; Sources of Constitutional Law

Unit 1: Introduction — Meaning and Definition of Constitution and Constitutional Law; Nature and Scope; Sources of Constitutional Law

1. Meaning and Definition of Constitution and Constitutional Law

(a) Constitution

The word “constitution” is used in three ascending senses:

1. In the widest sense, the constitution of a State is the whole system of its governance — the collection of rules (written and unwritten, legal and non-legal) which establish, distribute and regulate the exercise of public power. In this sense every State has a constitution, for no State can exist without some rules allocating power.
2. In the narrower, lawyer’s sense, the Constitution is the solemn written instrument — a single authoritative document (usually entrenched, usually adopted by a special constituent process) that constitutes the organs of the State, distributes powers among them and limits them in favour of rights. Nepal’s Constitution of Nepal (2015) is a constitution in this sense.
3. In the structural sense, a constitution constitutes — it creates what did not exist before: the President, the Federal Parliament, the Supreme Court, the provinces. The constitution is prior to the State organs it creates; it is the legal fountainhead of all public authority.

Classic definitions:

• Aristotle: the constitution is “the arrangement of offices in a State” — the way power is organized.
• Lord Bolingbroke (18th century): the constitution is “that assemblage of laws, institutions and customs… which compose the general system, according to which the community hath agreed to be governed.”
• K.C. Wheare: the constitution is “the whole system of government of a country, the collection of rules which establish and regulate or govern the government” — and a constitutional law, strictly, is a code of rules regulating the structure and powers of government.
• Carl J. Friedrich: the constitution is “the process by which governmental action is effectively restrained” — emphasizing limitation over organization.
• Modern working definition for this course: the constitution is the fundamental law that constitutes the organs of the State, distributes powers among them, limits those powers in favour of the rights of the people, and stands superior to all ordinary law.

(b) Constitutional Law

Constitutional law is the law that governs the constitution in both senses: (i) the law contained in the constitution itself — its provisions on the legislature, executive, judiciary, federal relations, rights, amendment and elections; and (ii) the law derived from the constitution’s interaction with other sources — statutes giving effect to it, conventions regulating it, judicial decisions interpreting it. Dicey divided constitutional law, in the English tradition, into “constitutional law strictly so called” (enforceable rules of law) and “constitutional conventions” (rules of political morality enforced not by courts but by public opinion and Parliament). Constitutional law is thus both narrower and wider than the constitutional document: narrower, because much of the document is political programme; wider, because much of constitutional law lives outside the document.

Constitution vs. ordinary law (the two tests to remember):

1. Source test (constituent vs. ordinary power): the constitution is made by the constituent power — the people or their constituent assembly, a power superior to ordinary organs; ordinary statutes are made by the legislature the constitution itself creates.
2. Supremacy test: the constitution is the fundamental law; laws inconsistent with it are void — in Nepal, courts exercise judicial review to strike down inconsistent laws (a function the Supreme Court performs under the Constitution’s provisions on its jurisdiction). Ordinary law can be repealed by later ordinary law; the constitution can be changed only through its own stricter amendment procedure (Article 274, discussed below).

2. Nature and Scope of Constitutional Law

Nature — three descriptive theses:

1. It is fundamental law — the apex of the legal hierarchy (Article 1 of Nepal’s Constitution states the Constitution is the fundamental law, and any law inconsistent with it is void to that extent).
2. It is political law — constitutional law is where law meets politics: it channels the competition for power (elections, no-confidence, federalism), and its interpretation (ratio of constitutional adjudication) is inevitably value-laden. This is why constitutional interpretation is distinct from ordinary statutory interpretation (living tree vs. original intent; textual, structural, purposive approaches).
3. It is partly non-justiciable — constitutions contain directives and aspirations (Nepal’s directive principles and policies in Part 4, which Article 55 declares non-justiciable: no question may be raised in court as to their implementation), side by side with hard, enforceable rules (the fundamental rights of Part 3, with the right to constitutional remedy as their guarantee).

Scope — what constitutional law covers (map of this course and its sequel):

• The nature and classification of constitutions; constitutionalism, rule of law, separation of powers (this course);
• The structure of the State and distribution of powers — unitary/federal systems (this course, Unit 6);
• Organs of the State: legislature, executive, judiciary — their composition, powers and mutual relations (Constitutional Law-II);
• Fundamental rights and their enforcement; directive principles; constitutional remedies (Constitutional Law-II);
• Constitutional bodies (Election Commission, Commission for the Investigation of Abuse of Authority, Auditor-General, Public Service Commission, National Human Rights Commission), the constitutional council that recommends appointments, emergency powers, amendment, and the living constitution built by interpretation.

Scope in Nepal — the point students must appreciate: Nepal’s constitutional law cannot be understood from the 2015 text alone. It is the product of seven constitutions (1948, 1951 interim, 1959, 1962, 1990, 2007 interim, 2015), of revolutions and movements (1950/51, 1990, 2006), and of a rich body of Supreme Court jurisprudence interpreting each of them. Constitutional law in Nepal is also intensely comparative — its concepts (judicial review, fundamental rights, proportional representation, federalism) are borrowings domesticated to Nepali experience.

3. Sources of Constitutional Law

A source is the material from which the content of constitutional law is derived. The syllabus lists six:

3.1 The Constitution and Its Amendment

The primary source is the constitutional document itself — in Nepal, the Constitution of Nepal (2015), with its Preamble, 35 Parts, over 300 Articles and 9 Schedules. The amendment procedure is part of the constitution’s own law because the constitution can change only as it allows: under Article 274, an amendment bill on the fundamentals of the Constitution is presented in either house of the Federal Parliament and published for public perusal within 30 days; most amendments require endorsement by two-thirds of the existing members in both houses; bills altering provincial boundaries or Schedule-6 provincial powers must be forwarded to the Provincial Assembly for consensus, and if a majority of provincial assemblies reject the bill, it is void; the approved bill is then authenticated by the President within fifteen days. At the unamendable core, clause (1) of Article 274 protects Nepal’s self-rule, sovereignty, territorial integrity and the sovereignty vested in the people — an explicit entrenchment clause. Amendments, once made, become part of constitutional law itself (the constitution in force is always “as amended”).

3.2 Statutes

Constitutional law is fleshed out by ordinary statutes exercising constitutional powers: election laws (Federal Parliament Election Act), laws on the Supreme Court’s procedure and jurisdiction, the Act governing the functioning of the Constitutional Council, legislation implementing directive policies, and — repeatedly litigated — laws that limit rights (so that courts must test their reasonableness). Statutes are the workhorses: the constitution fixes the frame; statutes fill the rooms.

3.3 Secondary (Subsidiary) Legislation

Delegated legislation — rules, regulations, orders, by-laws made under statutory authority — can raise grave constitutional questions: whether the delegation was excessive (the delegated legislation must stay within the parent statute’s limits, or be ultra vires), whether it invades fundamental rights, and whether it trenched on provincial or local competences in the federal scheme. Nepal’s federal transition has been a workshop of such litigation: federal rules meeting provincial and local legislation under the Local Government Operation Act-era framework.

3.4 Judicial Decisions

Constitutional interpretation builds constitutional law: decisions on judicial review of statutes, on the scope of rights, on federal conflicts, on the President’s and governors’ discretions, become part of the living constitution. Nepal’s Supreme Court, exercising original and review jurisdiction, has shaped constitutional law through landmark decisions — on the reinstatement of dissolved legislatures under successive constitutions, on citizenship, on inclusion, on the constitutionality of statutes and of constitutional amendments themselves (the doctrine that amendments must not destroy the constitution’s basic architecture is a global doctrine debated in Nepali case law as well). Constitutional conventions on judicial restraint, stare decisis and constitutional avoidances all operate through this source.

3.5 Custom and Convention

• Custom: long-standing practices that harden into law — parliamentary practice, royal-then-presidential ceremonial usage; customary institutions recognized by the constitution itself (Nepal’s recognition of customary institutions of local governance and the guthi tradition is one echo).
• Conventions: non-legal rules of constitutional behaviour enforced by politics, not courts — the constitution’s “unwritten etiquette.” Nepal’s examples: the practice that the President acts on the advice of the Council of Ministers in matters where the text speaks of the President’s powers; consultative practices in appointing officials; the tradition (now statute-backed) of all-party consensus on major constitutional questions. Dicey’s dictum applies: conventions ensure that the legal machinery works as the electorate expects; breach of convention is a political, not a legal, wrong.

3.6 Literature of Constitutional Experts/Scholars

Works of jurists — classic (Dicey’s Law of the Constitution, Wheare’s Federal Government, Jennings’ The Law and the Constitution, Kelsen’s theory of the basic norm) and Nepali (the commentaries of Singh, Dhungana, Bashyal, Gyawali, Thapa and others on each successive Nepali constitution) — are persuasive sources: not binding, but routinely cited by counsel and courts to interpret and evaluate constitutional arrangements. Scholarly literature supplies the vocabulary (constitutionalism, judicial review, basic structure) with which Nepali constitutional law thinks and argues.

Hierarchy to remember for the examination: Constitution (as amended) → statutes → secondary legislation, all subject to judicial interpretation, supplemented by conventions and scholarly literature — custom and scholarship stand outside the enforceable hierarchy but inside the living constitution.

Model Questions

1. Define a constitution. Distinguish a constitution from ordinary law with reference to constituent power and constitutional supremacy. (10)
2. Explain the nature and scope of constitutional law. Why is it said to be “political law”? (10)
3. Discuss the sources of constitutional law with Nepali illustrations. (15)
4. Explain the amendment procedure of the Constitution of Nepal (2015). Which provisions are entrenched, and what role do provincial assemblies play in amendments affecting provinces? (15)
5. “Conventions are the flesh that clothes the dry bones of the law” (Dicey). Discuss conventions with Nepali examples. (10)
6. Short notes: (a) Constituent power; (b) Unamendable core under Article 274(1); (c) Constitutional law strictly so called vs. conventions; (d) Persuasive authority of scholars. (4×5)