LAW304 Constitutional Law — Unit 1: Introduction

Unit 1: Introduction

Syllabus coverage in this unit
1.1 Definition of Constitutional Law · 1.2 Basic Sources of Constitutional Law · 1.3 Constitution and Statutes · 1.4 Secondary Legislation and Other Rules · 1.5 Judicial Decision · 1.6 Non Legal Rules/Convention; Custom · 1.7 Books of Authority · 1.8 Difference between Constitution and Constitutional Law

1.1 Definition of Constitutional Law

Constitutional law is the body of law that establishes, distributes, limits and regulates the exercise of public power in a State — the law of the constitution. It answers four questions every organised State must answer: who governs (the organs — legislature, executive, judiciary); how they are chosen and removed; what each may do (the allocation and limitation of power); and what the individual may demand against the State (fundamental rights and remedies).

The word “constitution” works in three ascending senses — constitutional law tracks all three:

1. The widest (systemic) sense: the constitution of a State is its whole system of governance — every rule, written and unwritten, legal and non-legal, that regulates the government. In this sense every State has a constitution, because no State can function without some rules allocating power.
2. The lawyer’s (documentary) sense: the Constitution is a single, solemn, written instrument — usually adopted by a special constituent process and entrenched against easy change — that constitutes the organs of the State and limits them in favour of rights. The Constitution of Nepal (2015) is a constitution in this sense.
3. The constitutive sense: a constitution constitutes — it creates what did not exist before it: the President, the Federal Parliament, the Supreme Court, the seven provinces. It is the legal fountainhead of all public authority: every act of government traces its legality back to it.

Classic definitions to quote:

• Aristotle: the constitution is “the arrangement of offices in a State” — the way power is organised.
• Lord Bolingbroke: 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.”
• Carl J. Friedrich: the constitution is “the process by which governmental action is effectively restrained” — limitation, not mere organisation.
• Working definition for this course: constitutional law is the fundamental law that constitutes the organs of the State, distributes power among them, limits that power in favour of the people’s rights, and stands supreme over all ordinary law.

Dicey’s two-part split (learn this — it structures 1.6 and 1.8): A.V. Dicey divided English constitutional law into (i) “constitutional law strictly so called” — enforceable rules a court will apply; and (ii) 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 parts of the document are political programme (directive principles); wider, because much of living constitutional law (conventions, interpretation, statutes) lives outside the document.

1.2 Basic Sources of Constitutional Law

A source is the material from which the content of constitutional law is derived. The syllabus identifies six heads — the constitution itself, statutes, secondary legislation, judicial decisions, non-legal rules (convention and custom), and books of authority. The hierarchy to remember for the examination:

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

Nepali reality check: Nepal’s constitutional law cannot be built from the 2015 text alone. It is the product of seven constitutions (1948, 1951 interim, 1959, 1962, 1990, 2007 interim, 2015), of the movements that produced them (1950/51, 1990, 2006), and of a rich body of Supreme Court jurisprudence interpreting each — plus statutes, rules and conventions grown around them.

1.3 Constitution and Statutes

The relationship is one of supremacy and subordination, tested by two classic contrasts:

(a) Constitution vs. statute — the two tests:

1. Source test (constituent vs. ordinary power): the constitution is made by the constituent power — the people acting through a constituent assembly or an equivalent extraordinary process, a power superior to the ordinary organs; a statute is made by the very legislature the constitution creates. The maker’s rank explains the product’s rank.
2. Supremacy test: the constitution is fundamental law; law inconsistent with it is void. In Nepal this is explicit: Article 1 declares the Constitution the fundamental law and any inconsistent law void to that extent, and the Supreme Court enforces this under Article 133 (any citizen may petition to declare a law void). A statute can be repealed by a later ordinary statute; the constitution can be changed only through its own stricter procedure (Article 274: two-thirds of the existing members of both houses; provincial-assembly consensus for boundary and Schedule-6 changes; a small unamendable core of sovereignty, self-rule, territorial integrity and popular sovereignty).

(b) Statutes as a source of constitutional law: the constitution fixes the frame; statutes fill the rooms. Election legislation, the Supreme Court Act, the Constitutional Council Act, legislation implementing directive policies, and — repeatedly litigated — statutes that restrict fundamental rights (which courts must then test for reasonableness) are all constitutional law in operation. A statute can expand a right’s enjoyment (Right to Information legislation), organise an institution (Judicial Council procedures), or trigger constitutional scrutiny (a statute invading a competence or a right is the raw material of judicial review).

Presumption of constitutionality: courts presume every statute valid and read it, if possible, to avoid constitutional conflict — invalidation is the last resort (the doctrine of constitutional avoidance, met again in Unit 14).

1.4 Secondary Legislation and Other Rules

Secondary (delegated/subsidiary) legislation — rules, regulations, orders, by-laws, notifications made under statutory authority — is constitutional law’s third layer. It raises three grave constitutional questions:

1. Ultra vires: the delegation itself may be excessive, or the instrument may exceed the parent statute’s limits — either way it is void.
2. Rights invasion: delegated rules restricting expression, privacy or property invite fundamental-rights scrutiny (the reason “no prior censorship” type guarantees are read strictly against rule-makers).
3. Competence trespass: in a federal scheme, a federal rule touching a Schedule-6 provincial or Schedule-8 local subject — or vice versa — produces federal-conflict litigation; Nepal’s federal transition has been a workshop of exactly such disputes.

Other sub-statutory rules — parliamentary rules of procedure, standing orders, executive business-allocation rules — regulate the machinery the constitution creates and are binding within their sphere, but they cannot contradict statute, still less the constitution.

1.5 Judicial Decision

Constitutional interpretation is a source of constitutional law: what the Supreme Court says the constitution means becomes part of the constitution’s living content. Under Article 128, the Supreme Court’s interpretations and legal principles bind all courts and organs (the precedent rule). Landmark lines of Nepali decisions — on the reinstatement of dissolved legislatures, on citizenship, on inclusion, on the constitutionality of statutes and of prosecutions, on environmental rights (the Unit 18 prescribed cases are largely this line) — have made constitutional law without a word of textual amendment.

Three judicial craft-rules operate through this source: stare decisis (precedent discipline), constitutional avoidance (decide on non-constitutional grounds if possible), and restraint vs. activism (the political-questions doctrine and the interpretive doctrines of Unit 14 are the vocabulary of this debate).

1.6 Non-Legal Rules: Convention and Custom

(a) Conventions — non-legal rules of constitutional behaviour, enforced by politics, not courts. Dicey: conventions ensure the legal machinery works as the electorate expects; their breach is a political, not a legal, wrong. Nepali examples:

• The President acts on the advice and recommendation of the Council of Ministers — Article 66(2) now writes this into the text, but the practice predates and surrounds it;
• consultative practice in high appointments;
• the all-party-consensus tradition on major constitutional questions;
• the caretaker convention — a government that has lost confidence carries on routine business only until the next government is formed.

How to tell law from convention (exam favourite): the test is enforcement — a court will apply a legal rule; a convention’s sanction is public opinion, Parliament or resignation. Custom: long-standing practice hardening into law — parliamentary practice, ceremonial usage, and the customary institutions the constitution itself recognises (the guthi tradition’s echoes). Custom differs from convention in origin (long usage vs. understood expectation) but both are non-legal until a text or a court absorbs them.

1.7 Books of Authority

The writings of constitutional scholars are persuasive sources — not binding, but routinely cited by counsel and courts. Classics: Dicey, Law of the Constitution (sovereignty of Parliament; law/convention split); Wheare, Federal Government (the federal definition); Jennings, The Law and the Constitution; Kelsen (the basic norm — the theoretical foundation of constitutional supremacy). Nepali commentaries on each successive constitution (the standard treatments of Singh, Dhungana, Bashyal, Gyawali, Thapa, and current writers such as Bhimarjun Acharya on fundamental rights and judicial review) supply the profession’s shared vocabulary. In Nepal, courts cite scholars in the rationes of major decisions — authority, not command.

1.8 Difference between Constitution and Constitutional Law

One-line version: the Constitution is the document; constitutional law is the living discipline — the document plus everything lawfully built upon, around and despite it. Dicey’s formula is the shortest route: constitutional law = constitutional law strictly so called + conventions.

Model Questions

Long-answer questions

1. Define constitutional law. Explain its nature and scope with special reference to Nepal. (15)
2. Discuss the sources of constitutional law. Which sources are enforceable and which are merely persuasive? (15)
3. “The constitution is the fundamental law; statutes are its servants.” Examine with reference to constituent power, supremacy and judicial review in Nepal. (15)
4. Distinguish between constitution and constitutional law. Why is constitutional law said to be wider than the constitution? (10)

Short-answer questions

1. State the three senses of the word “constitution.”
2. Write short notes: (a) Constituent power; (b) Presumption of constitutionality; (c) Ultra vires; (d) Books of authority.
3. “Conventions are the flesh that clothes the dry bones of the law” (Dicey). Explain with Nepali examples.
4. How do judicial decisions operate as a source of constitutional law in Nepal?
5. Distinguish custom from convention.

📚 Get the complete notes: Download the full Constitutional Law PDF (all units) — Law Info Nepal Original Notes Series (LL.B., 3-Year New Course, 2076/077 B.S.).