(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 thatconstitutes the organs of the State, distributes powers among them, limits those powers infavour 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 constituentpower — 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).