2.1 Constitutionalism

Constitution

The constitution is the foundational document outlining the basic principles for governing a state. It delineates the organs of the state and their respective powers. It is the legal document embodying political principles. The constitution is regarded as the supreme law of the land. Any law or government action conflicting with the constitution can be invalidated by the courts. The constitution expects a limited government and accountability. The constituent power to create the constitution resides with the people. Provisions for amending the constitution are an integral part of its basic structure. The interpretation of the constitution is done in a specific manner.

Constitutionalism

Constitutionalism refers to the concept of constitutional supremacy and limited government. In constitutionalism, the ideals of the constitution are accepted, the objectives and powers of the government are defined, and limits are imposed on the exercise of such powers. To establish good governance worldwide, various forms of government systems have been adopted, and mechanisms have been implemented to control the misuse of governing power, preventing the government from becoming excessive.

Measures/Main Conditions/Bases for Ensuring Constitutionalism

From a traditional perspective, the constitution must be written, and the government must operate according to it. However, according to the modern viewpoint, the following are considered the main conditions/bases for constitutionalism:

• Constitutional supremacy and limited government,
• Guarantee of fundamental rights and human rights,
• Adoption of the rule of law,
• The constitution as the fundamental law,
• Separation of powers and checks and balances,
• Representative, limited, and accountable government,
• Adoption of democratic values and norms,
• End of absolutism and arbitrariness,
• Independent, impartial, and competent judiciary and judicial review,
• Free and fair periodic election system,
• Arrangement for decentralization of power,
• Sovereignty in the people, civil liberties,
• Independent constitutional bodies,
• Full press freedom,
• Institutional and functional autonomy of government organs,
• Inclusive governance system,
• Guarantee, respect, and protection of human rights and fundamental rights,
• Provision for constitutional amendment (as needed, but only while protecting the basic structure), etc.

These mechanisms ensure good governance and government accountability, and their effectiveness serves as the standard for measuring the practical adoption of constitutionalism in any country.

Bases for Conceptual Development of Constitutionalism

• The Magna Carta of 1215,
• The Glorious Revolution of England in 1688,
• The American War of Independence from 1773-1789,
• The French Revolution of 1789,
• The U.S. Constitution of 1789,
• The United Nations Charter of 1945,
• The Universal Declaration of Human Rights of 1948,
• International treaties, conventions, and covenants.

Importance of Constitutionalism

Constitutionalism is the foundation of democratic governance. It advocates for the supremacy of the people. It maintains the belief that discipline must be upheld in governance. It expects the rule of law, not of individuals. It holds the view that state organs and officials must operate within constitutional limits and establish this in governing practices. The importance of constitutionalism can be outlined as follows:

• To give concrete form to the concepts of constitutional supremacy and limited government,
• To guarantee people's choice, voice, rights, and representation,
• To establish a governance system based on public opinion,
• To respect and promote human rights,
• To establish the rule of law in the country,
• To limit governing power and end arbitrary rule,
• To provide the main basis for operating the governance system,
• To make the government accountable to the people,
• To ensure good governance.

Types of Constitutionalism

To realize the concepts of limited government and good governance, various mechanisms can be classified into two groups: legal constitutionalism and political constitutionalism. (Questions may ask to differentiate between the two.)

1. Legal Constitutionalism

The mechanism that controls unconstitutional activities of the government through judicial processes, keeping the government within constitutional bounds, is called legal constitutionalism. The independence and competence of the judiciary play a crucial role in ensuring legal constitutionalism. It can also be called remedial constitutionalism.

When political constitutionalism is weak or fails, the need, importance, and effectiveness of legal constitutionalism increase. The mechanisms for ensuring legal constitutionalism are as follows:

Constitutional Supremacy (Article 1):

• The constitution is the fundamental and supreme law of the country.
• All laws and actions of the state must derive legitimacy from the constitution. Therefore, every action of the political organs—legislature and executive—must be intra vires (within powers). If ultra vires (beyond powers), the judiciary declares them invalid and void, maintaining the supremacy of the constitution.

Guarantee and Protection of Fundamental and Human Rights (Articles 16-46 and 248-249):

• Basic and inalienable rights are ensured in the constitution.
• Provisions for their unhindered enjoyment, along with effective remedies, are made in the constitution, also known as constitutional remedies.

Independent, Impartial, and Competent Judiciary (Part-11):

• Since legal constitutionalism is ensured through judicial processes, the judiciary has a central role.
• The court must declare unconstitutional actions of political organs invalid and void to maintain the supremacy and integrity of the constitution, making judicial independence from other state organs essential.

Judicial Review (Articles 133 and 144, among others):

• Judicial review is an extraordinary power indispensable to an independent judiciary for protecting people's fundamental human rights and ensuring constitutional supremacy.
• The judiciary examines the constitutionality of political organs' actions through this power.

Judicial Self-Restraint, Dynamism, and Activism (Articles 133 and 144, among others):

• Under judicial self-restraint, before making a decision, the court ascertains its jurisdiction and shows respect for the jurisdiction and wisdom of the other two branches—executive and legislature.
• Under judicial dynamism and activism, it liberally interprets rights to establish economic and social rights of neglected people and addresses public interest litigations to perform or compel actions not done by the executive or legislature.

Doctrine of Basic Structure of the Constitution:

• Democratic governance system (Preamble and Article 74),
• Sovereignty vested in the people (Article 2),
• Free and fair periodic elections, representative democracy (Election Commission),
• Principle of separation of powers, checks and balances (Three organs and their functions, duties, and powers),
• Concept of rule of law (Preamble),
• Right to amend the constitution (Article 274).

However, legal constitutionalism has some limitations:

• Courts do not initiate cases without petitions.
• Courts cannot enter political questions.
• Pure administrative actions are generally outside judicial control.

2. Political Constitutionalism

The mechanism that prevents misuse of power through political processes is called political constitutionalism. The representative institution (parliament) is at its center.

Political constitutionalism includes non-legal and moral mechanisms that cannot be enforced through judicial processes. Though they lack legal force, they play a significant role in maintaining good governance.

It includes the following political processes:

• Adult suffrage and periodic elections,
• Independent constitutional bodies,
• Parliamentary accountability.

Adult Suffrage and Periodic Elections (Preamble, Articles 245-247):

• Adult suffrage is the essence of democracy, and periodic elections make democracy meaningful. In a democratic system, political organs of the state are elected by the people.
• The government obtains its mandate or legitimacy through elections.
• The democratic and accountable character becomes a prerequisite for gaining power, making elections a strong political mechanism for people to achieve good governance.

Independent Constitutional Bodies (Parts 21-27):

• Bodies like anti-corruption and abuse of authority investigation (Ombudsman), Public Service Commission, Election Commission, Auditor General, Human Rights Commission monitor and control government and officials' actions, helping maintain good governance.

Parliamentary Accountability:

• In countries with parliamentary systems, the government is accountable to parliament (Article 76(10)).
• Government formation and dissolution occur through parliament (Articles 76, 100).
• Provisions for reporting to parliament (292, among others).
• Parliamentary committees,
• Parliamentary questions/zero hour,
• Parliamentary hearings,
• Vote of confidence or no-confidence motions and impeachment maintain parliamentary accountability.

In addition, in the context of viewing the constitution as a document for economic and social transformation, economic constitutionalism and social constitutionalism are also included within types of constitutionalism.

Constitutionalism and Major Governance Systems

In the world, presidential and parliamentary systems are two major models of democratic governance. A mixed system incorporating the positive aspects of both is the third prevalent model.

The United States is a good example of the presidential system, and the United Kingdom of the parliamentary system. In the presidential system, the principle of separation of powers is applied more rigidly.

As a result, unlike in the parliamentary system, government formation is not from the legislature, there is no dual personality of officials or overlapping functions, the executive is not accountable to the legislature, and neither can dissolve the other on political grounds. Both perform their constitutional functions relatively independently.

Though the legislature can impeach the executive head, this is not a political matter like government accountability in the parliamentary system. It involves formal proceedings like court actions for serious charges such as misconduct or treason. The presidential system follows the principle of constitutional supremacy more, so legal constitutionalism is more effective than political constitutionalism.

In the parliamentary system, emphasis is on checks and balances rather than separation of powers, so state affairs are conducted through mutual coordination, control, and balance among government organs. Government is formed from parliament and is politically accountable to it.

Parliament can dissolve the government, and the government can dissolve parliament. Therefore, in the parliamentary system, ensuring limited government and good governance is more effectively done through political processes than legal means.

Legal constitutionalism prevents the government from being arbitrary, keeping it within constitutional limits, but it does not compel good governance. Thus, legal constitutionalism is essentially negative and restrictive.

Political constitutionalism ensures government accountability, pressuring it to maintain good governance.

Mechanisms like parliamentary questions/zero hour, committee arrangements, and no-confidence motions under the parliamentary system are measures to ensure political constitutionalism.

Theoretically, legal constitutionalism is more effective in presidential systems, and political constitutionalism in parliamentary systems.

Looking at Nepal's past parliamentary practice overall, the practical aspect of legal constitutionalism has been strong, while the implementation of political constitutionalism has been weak.

During that period, the judiciary (Supreme Court) successfully exercised its extraordinary powers independently and competently through judicial review, invalidating unconstitutional laws and government actions, maintaining constitutional supremacy, and addressing economic and social rights through public interest litigations to institutionalize social justice.

Parliament, the empowered organ to ensure political constitutionalism, could not effectively discharge its constitutional duties.

Conclusion

The governance system is not an end in itself for the state; it is merely a means. Which system to adopt depends on the complex objective and subjective realities specific to the country. However, regardless of the system adopted, the key concern should be how to incorporate as many elements of constitutionalism as possible.

Constitutionalism is not just a mechanical concept; it is a value. Therefore, merely mentioning elements of constitutionalism in the constitution does not automatically ensure good governance. This has been proven by our own experience. The subjective aspect, i.e., commitment, is the most important.

In other words, psychological and cultural aspects play a role in the successful implementation of constitutionalism, and cultures do not change or develop overnight.

Constitutionalism-Friendly Provisions in Nepal's Constitution

• Constitutional supremacy: Constitution as fundamental law, laws conflicting with it invalid to that extent (Article 1)
• Sovereignty and state power vested in Nepali people (Article 2)
• Guarantee of fundamental rights with remedies (Part 3, Articles 16-46)
• Federal structure with seven provinces and 753 local levels (Article 56)
• Pluralistic multi-party competitive federal democratic republican parliamentary system (Article 74)
• Independent judiciary (Preamble and Article 126)
• Judicial review and extraordinary jurisdiction, constitutional remedies (Articles 133, 144)
• Separation of powers, checks and balances (Executive, Legislature, Judiciary in Parts 7, 8, 11 respectively)
• Free periodic elections, adult suffrage, representative democracy (Preamble)
• Independent constitutional bodies (13 in Parts 21-27)
• Parliamentary accountability
• Government formation from parliament (Article 76)
• Government accountable to legislature {Article 76(10)}
• Parliamentary committees (Article 97)
• Vote of confidence and no-confidence, impeachment (Articles 100 and 101 respectively)
• Government, judiciary, constitutional bodies to submit annual reports to parliament,
• Parliamentary questions/zero hour
• Provision for constitutional amendment (Article 274)
• For economic constitutionalism: Balanced mixed economy between liberal and socialism-oriented, free development and mobilization of public-private-cooperative sectors, public-private partnership, investment-friendly environment, attracting foreign investment for national interest, protection of domestic industries and investment, mobilizing foreign aid based on national needs and priorities, economic diplomacy, etc.
• For social constitutionalism: End to all forms of discrimination and exclusion, proportional inclusive principle, reservation, positive discrimination, proportional representation, fundamental rights for women, Dalits, senior citizens, consumers, social justice, social security, etc., state directive principles on social and cultural objectives (50(2)), policies on social and cultural transformation (51(g)), rights-based commissions (Part 27)

Problems Seen in Constitutionalism in Nepal

Problems in Political Constitutionalism:

• Failure to properly utilize public mandate by elected representatives,
• Lack of experience of periodic elections (failure to hold by-elections for vacant positions in local levels due to various reasons)
• Parliament developing more as a venue for producing governments rather than controlling and monitoring them,
• Lack of effectiveness in parliamentary committees,
• Lack of practice of serious discussion and publicization of reports submitted to parliament,
• Misuse of parliamentary questions and zero hour on non-national issues,
• Weakness in practical application of separation of powers, checks and balances,
• Excessive use of no-confidence motions in the past,
• Lack of morality, honesty, accountability in governance/administration, widespread corruption
• Lack of cultured political culture, dominance of power-centered politics, opaque political activities, irresponsible political decisions
• Lack of civil society free from party interests,
• Press not truly free, lack of investigative journalism,
• Opposition parties' role not as effective as expected.

Problems/Challenges in Legal Constitutionalism:

• Failure to achieve universal acceptance of the constitution through necessary amendments,
• Incomplete implementation of fundamental rights (free basic education, health), requiring separate laws for implementation,
• Occasional attempts to exert undue pressure and influence on independent judiciary, decline in respect for judgments and orders (comments by top leaders on sub-judice cases, contempt of court),
• Court records not updated, lack of uniformity in precedents,
• Justice not affordable and accessible to all,
• Failure to timely resolve disputes raising constitutional questions,
• Increased impunity due to political protection of criminals (withdrawal of cases against standards, amnesty, postponement)
• Executive dominance in Judicial Council and Constitutional Council posing threat to judicial independence.

Solutions

• Amend the constitution to incorporate everyone's sentiments,
• Effectively use legal constitutionalism.
• Improve political culture,
• Develop institutional capacity of lower federal units for effective decentralization,
• Develop social awareness and citizen consciousness,
• Address public expectations, bring economic development and improve living standards,
• Increase activity of constitutional bodies,
• Make opposition's role constructive,
• Properly utilize periodic elections and adult suffrage, respect public mandate,
• Preserve judicial independence,
• Respect courts and implement decisions,
• Update court records management, ensure uniformity in precedents,
• End arbitrary amnesty and postponement of crimes, stop political protection of crimes,
• Make justice accessible and establish access to justice for all,
• Timely resolve disputes raising constitutional questions,
• Guarantee human rights,
• Build transparent and accountable governance and public administration,
• Hold periodic elections on time, conduct by-elections within time limits for vacant positions,
• Make parliament constructive in controlling and monitoring government,
• Make parliamentary committees' activities effective,
• Conduct serious discussions on reports submitted to parliament and publicize them, properly use zero hour on national issues,
• Resolve legal and practical problems in separation of powers, checks and balances,
• Develop morality, honesty, accountability in governance/administration,
• Develop cultured political culture, make political activities transparent,
• Develop investigative journalism,
• Emphasize full implementation of fundamental rights.

Loyalty to the constitution is constitutionalism. Constitutionalism ensures clean administration, controls arbitrary use of government power, and guarantees citizen rights. Constitutionalism is the ideal of a written constitution with basic structure and operating the governance system accordingly. The constitution maintains democratic governance in the country.