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What is involved in making a Constitution?There are many ways to make a constitution, but the basic processes would be the same. We could summarise the essential ones as:
Developing the ideas about the contents of the Constitution Most countries that set out to make a new constitution already have a constitution. So an important part of the process is to decide what is wrong with the existing document. Whether or not there is an existing constitution, a good constitution making process should involve asking what the particular country needs at this stage of its history. In theory this process could all be carried out by a single person sitting in a library. Or perhaps by a small committee. And there have been constitutions made like that. But these days it would be thought wrong not to take account of the views of the people who are to be governed by the constitution. And if there are political parties, they will naturally insist on being involved. Sometimes the development of the ideas happens in two stages: first certain overall principles are developed, and then the more detailed ideas, but they must be in accordance with the principles. Before developing detailed ideas, it is useful to have a concept of what issues may need to be decided, or, in other words, what are the possible contents of the constitution . Putting the ideas into a formal structure and into legal language These are more technical processes in which many people will have little interest. They are very important however. It is important that the ideas developed in the first process are properly translated into the final document, and not distorted by the lawyers (deliberately or because they do not understand what the real makers of the constitution want). And it is also important that if possible the final document should be written in a way that the ordinary people can understand. Making the document into a legally binding Constitution Any law needs to be made in a formal way in order to have legal effect. The way to make a constitution a legally binding document may be different from that used for an ordinary law. It may have to be made by a special body (like a Constituent Assembly). It may be passed by an ordinary parliament. It may have to be approved by a vote of all the people in a referendum. It may even have to be approved by a special court (this is what happened in South Africa). In the light of these points, we can break down a typical constitution making process into more stages. And we can add possible bodies that might carry out these various stages. Finally we can indicate what is going to happen (or may happen) in the process that is under way in Nepal.
You will see that in Nepal most of the formal responsibility will rest on the Constituent Assembly. And also that there are a number of uncertainties about how the process will operate. You can read a paper on a possible way in which the Constituent Assembly could operate - click here. You can read a bit more about constituent assemblies here , about the High Level Commission on State Restructuring here , and on whether there might be a referendum here . There is no standard way of carrying out a constitution making process, as mentioned earlier. You can read a bit more about how other countries have done it by clicking here . |
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