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FAQsConstitution
A Constitution is the basic law of a country. It creates the government, lays down the main rules for the operation of that government, and provides for the protection of the rights of the people, and for bodies designed to ensure that government is effective, not corrupt, and is accountable to the people. For text of some foreign constitutions click here . For the text of constitutions of Nepal click here.
Now Nepal has the Interim Constitution passed in January 2007. For some more information, including the text in English and Nepali and a brief description in both languages click here.
Nepal's first Constitution was the Government of Nepal Act 1948. For the English text of that click here. And for a brief account of Nepal's constitutional history click here.
This is the introductory part of a legal document usually explaining why the document exists. In the case of a constitution it will usually include a little reference to history and some to the hopes for the future. Not all constitution have preambles. For the preamble of the Interim Constitution click here.
It can never be very easy, but it is possible for a Constitution to be written in language that is not too difficult. Also the main points about a constitution can be put across in a way that most people should be sable to understand. We have attempted to do this for the Interim Constitution; click for "A Simple Guide to the Interim Constitution" in English here and for Nepali here.
The honest answer to this is "No". There should be effective provisions for enforcement in the new Constitution, but the people should also be prepared to insist on their rights, and to insist that politicians and public servants respect the constitution. The 1990 Constitution disappointed people partly because of what it said - it was not inclusive in its provisions - and partly because of the way the government, the parties, the King and others failed to act in the spirit of the constitution. Hopefully lessons have been learned from this past history.
The Constitution should be made very hard to change, though not impossible. The Constituent Assembly will decide how to protect it from being too easily changed. Possible methods are to require a large majority of the legislature to make any amendment, or to require the people's approval in a referendum or even to make some parts impossible to amend. The 1990 Constitution said that no amendment could affect the principles laid down in the Preamble. But it is agreed that a Constituent Assembly is not limited by this provision. For a paper on amendment go to [coming later]
It is a body set up to represent the nation and make a new constitution (or revise an old constitution). Usually many of its members are elected (though some may be chosen in other ways). For more on constituent assemblies click here.
No. Nepalis were promised one in 1951, but no assembly was ever called, and the constitution of that year that was supposed to be an 'interim constitution' lasted until 1959.
According to the Interim Constitution of Nepal, 2007 (Third Amendment), there were six hundred and one (601) Constituent Assembly members. Presently, two hundred and forty (240) Constituent Assembly members were elected under the first-past–the–post system. They were from each geographical constituency as determined by Constituency Delimitation Commission, based on the national census (2001) preceding the Constituent Assembly election. Three hundred and thirty-five (335) members were elected according to the proportional representation system treating whole country as a single constituency and voting being for the political parties. The remaining twenty six (26) Constituent Assembly members were nominated by the Council of Ministers from among the distinguished persons who have made significant contributions to the nation and persons from among the ethnic indigenous groups who fail to be represented according to the first-past-the-post and proportional representation election system.
The CA will represent the people. How accurate a reflection this is will depend on the electoral system, on people's participation in the elections and the way they chose to vote, as well as on how the parties chose their candidates. The people will also presumably have opportunities to put their views to the Constituent Assembly.There will not be a referendum in which the constitution is put to a vote of the people before it becomes law. For a brief discussion referendums click here.
Yes, for two reasons. Firstly, participation gives people the opportunity to voice their thoughts about what kind of political system the country should have. This ensures that the constitution is accepted and chosen by the people rather than just by politicians. Secondly, participation gives people the chance to learn about democracy and about the ways in which they can exercise their authority. Ultimately, public involvement in constitution building strengthens democracy, and the legitimacy of the document. For more on participation click here.
A republic is a country without a king or queen. In other words the head of state of the country is chosen by the people under the constitution and is not there because of divine right or inheritance. For more on systems of government click here. For more on heads of state click here.
No - there are many different forms pf republican government. India is a republic and so is the USA but their systems are different. India has a parliamentary system (like Nepal) and the USA has a presidential system. For more on systems of government click here
Most kings or queens these days are ceremonial: they have very few powers and almost all of these are very formal ones. These usually include signing laws (but not having any control over their content), receiving foreign ambassadors etc. You could get an idea of what a ceremonial monarch does by looking at the website of the British monarchy, though this will not give any idea about the nature of meetings with the Prime Minister. For more on heads of state click here.
This is a way of dividing the powers and duties of government between different levels. A federation will have several, or many, geographical areas that are smaller than the whole country, each of which has its own elected government. That government will have certain powers, and certain resources. These should be guaranteed in the constitution. There is still a national government with certain powers. And the interests of the lower level governments should be represented in the national government. For more on federalism click here
No. Many countries have effective systems in which a great deal of power is exercised by local governments. But if the system is not guaranteed in the constitution it is not a federal system. Countries with such systems in which a lot of power is "devolved" to local governments include Sweden and Japan.
Parliament is the name often given to the body that makes the laws of the country. Usually the members (or most of them) are elected by the people. The laws it makes often have to be signed by a separate Head of State. We can call this other names - such as Legislature; in the USA it is Congress. For more information click here.
In a federal system it is almost essential to have a second house of parliament so that the interests of the lower level governments can be represented there. In some systems a second chamber includes members of various elites or other groups in society, including ethnic groups. The powers of the second house may be limited; it may be able only to delay the passing of laws, for example. Quite a lot of countries have only one house in their parliament.
In many countries members are elected to present particular parts of the country called constituencies. They have a special interest to represent the people there, but they have a duty to work for the good of the country as a while, and in most systems they are also members of a political party and have to work closely with the party. Their job includes studying proposed laws and contributing to discussion on them, looking closely at the work of government to make sure that it is serving the people. They often have inquiries in which the parliament looks into special issues of public importance. Good members of parliament should be open to members of the public - especially their constituents - who have problems. Older constitutions say very little about the role of members - but it is perhaps desirable that they should. For a draft provision suggested for Kenya click here.
A Constitution creates many powers and rights and responsibilities. Unfortunately, many people will, though incompetence, desire for power, greed or other reasons, not carry out their constitutional duty unless they are compelled to do so. And sometimes a constitution and other laws may not be entirely clear in a particular situation. Most modern systems give to the courts the responsibility to interpret the constitution and the laws and say what they mean. Also if a person wishes to complain that some right has not been respected or some responsibility not carried out, in the end they may have to take a case to the court. And if the behaviour of a person is a crime it is only the courts that can punish them. If a country is a federation it is especially important that the courts can make sure that the boundaries between the powers of the various governments are respected. But if the courts are not independent - if they are under pressure from some personal government or political party or individual etc, with an interest in the outcome of the dispute - then the law and the constitution will not work properly.
The constitution can do a lot - by having a system of appointments that excludes political and other considerations, and ensure competent judges, by making sure that judges cannot be sacked for displeasing the government or someone powerful and by ensuring that the courts are properly resourced etc - to try to ensure an independent judiciary.
For more on the independence of the judiciary click here
A constitutional court is one that has the final word on the meaning of a constitution and on enforcing the constitution. Sometimes it is the only court that can deal with cases involving the constitution. A constitutional court is a specialised court - it will not deal much with any other type of case. Not all countries have separate constitutional courts. They are found mainly in countries in Europe which have particular type of legal tradition "known as the civil law". There is also one in South Africa. For more on this click here
Unfortunately in many countries the only involvement many people have in politics is voting. But in many countries there are more ways of being involved on a continuous basis. Governments having been setting up ways in which the people can be involved. See [coming later]…
The Constitution provides the legal framework for government. It would be possible for the system of elections provided for in the Constitution to ensure an inclusive legislature than in the past. This is a complicated subject; for more on electoral systems see International IDEA's website - on electoral system design http://www.idea.int/esd/index.cfm
The political parties are also very important, and the constitution can require that the partiers have democratic constitutions, and have wide representation in their internal committees. It can also have rules about people's participation in the working of public bodies - not just voting for candidates every five years. For more on click here.
Some older constitutions never mention parties - which means that the constitution is very misleading about how government actually works. But more recent constitutions often contain provisions about how parties should be run, and about accountability especially in collection with money. For more information click here.
A constitution can do a lot to try to achieve fair elections. It should provide for an independent Election Commission (click here) with the necessary resources and powers to run the elections. It should provide for secret ballot. There will be many other provisions, but like all provisions in a constitution these will only be effective if they are obeyed by the officials - and this may only happen if the public are vigilant to see that this is done.
An electoral system is about how the way the people vote is translated into the seats in the legislature or parliament (or other elected bodies). The systems are described in various places - see for example International IDEA Election System Design Handbook. It is important to realise that the systems also have a big impact on how government and political parties operate. Choosing the right system for a country is a difficult and important task. Click here for some more information on this website.
The best way of dealing with poverty is through an effective government, and the main purpose of a constitution is to make this possible. The Constitution can also give rights such as housing, food and health, and in certain circumstances people who are denied these can go to court to enforce their rights. The Constitution can also lay down guidelines for government to follow in eliminating poverty and other injustice in society. But by itself the Constitution cannot achieve this: people will have to work hard to use the constitution.
Every person has certain rights because they are human. This is a moral statement but it is also a principle of international law, and also of national law. The key ideas of human rights are human dignity and freedom. In the past we tended to think of these rights as belonging to individual but now we realise that some belong more to groups - especially to minorities. We find these rights in international treaties and documents such as the Universal Declaration of Human Rights (click for the English version, for Nepali and for Hindi) and the Covenant on the Rights of the Child (click here). If you click here you will find a long list of human rights treaties on the website of the UN High Commission for Human Rights. See also the Nepal office - click here. We also find rights in national constitutions. When they are in a constitution they exercise control over the acts of government and others - and give rise to legally enforceable protection to the people from abuse.
Affirmative action involves the government (and sometimes others) taking positive action to raise the quality of life of certain groups - especially those that have been disadvantaged in the past. The objective is to make equality between all a reality. Sometimes it may seem to be favouring certain groups over others - but can be justified if this is the only way to compensate for the injustice of the past. For a rather long paper on affirmative action, click here.
A right to information means that the people have the right to know about things that affect them - as individuals and as citizens. Now a number of constitutions have such rights to know - including the 1990 Constitution and the Interim Constitution. Many countries have introduced laws giving the right to know, and this would be necessary in order to make this right really effective. In fact Nepal has a new Right to Information Act. For more on this topic generally, there is a brochure by the Nepal Office of the High Commissioner for Human Rights, a more general one from the UNDP Governance Centre. There is an analysis of the Nepal Bill on the website of the International Freedom of speech NGO Article 19.
A constitution can give certain rights specially to women, as well as ensuring general equality of citizens. It can have rules about participation of women in public bodies and affairs. It can use language that makes it clear that women as well as men can become president or prime minister or judges etc. For more on this click here.
A Constitution should provide that everyone is equal. It could also indicate clearly that his means that person with disability must not be discriminated against. It could also make it possible to have affirmative action (see above) for people with disabilities. It could even require certain things to be done for persons with disability, for some more information click here
If a constitution successful creates the conditions for good governance and peace then disappearances should not occur. But the Constitution cannot do this alone - people must use the mechanisms of the constitution. There is now an international convention on disappearances. In an important case the Supreme Court directed the Government to set up an inquiry to look into disappearances. The Nepal Government proposes to set up an inquiry, under the Commissions of Inquiry Act. It also drafted a Bill on Disappearances - see the comments of the International Commission of Justice in Nepali and English. Also click here for critical comments from Human Rights Watch. See also FAQ on "past injustice"
A constitution can create a body and a process to deal with the past, but it cannot go into great detail. The details would have to be worked out and included in ordinary law. The Interim Constitution includes a requirement that the government set up a truth and reconciliation commission for Nepal, and also has various other provisions about dealing with the legacy of the conflict.
The Government has drafted a Bill. For some comments on it click here (Amnesty International) or here (INSEC).
On transitional justice generally see the International Center for Transitional Justice
See also FAQ on disappearances.
A Constitution can give rights to information and set up various procedures to increase openness in government. It can set up bodies such as the Commission on the Investigation of the Abuse of Authority. It can set out rules for the proper behaviour of public servants (on Codes of Practice see [coming later]…) Democracy should help to reduce corruption - but only if people exercise their rights. Ultimately, the Constitution is only effective when it is followed and enforced, and you can play an important part in this process. For more on corruption [coming later]
This refers to the situation when a state does not have an official or a preferred religion. A Hindu, Muslim, Christian, Buddhist or Jewish state would not be a secular state. The exact implications of being a secular state vary: it might be unconstitutional to have a religious element to official ceremonies; or it might mean no public money must go to support religious institutions. Each country will work out what is best for that country. Being secular does not mean being hostile to religion - basically it means that religion is a personal rather than an official matter.
If you want to read further you can look at an article by an Indian scholar of this topic - Rajeev Bhargava "The Distinctiveness of Indian Secularism" which discusses what secularism is.
Constitutions usually set out some of the rules about who is a citizen. This will usually cover those who are born in the country or who have one or more parent who is a citizen. It may say something about how other people can become citizens. More details will be needed in ordinary laws. Many countries have had rules about citizenship that discriminate against women or against certain groups. This is an important topic that people need to think about. For some more information click here
A Constitution cannot set up all the details of land. But it could provide that certain steps should be taken to deal with land problems, These could include setting up a commission of inquiry. It should include something about land reform. And it could set deadlines. But with such a technical subject it is important that the constitution is not too detailed or it may turn out to have unworkable provisions that are hard to change.
Many constitutions say that the army and other security forces are subject to the control of civilians - especially of the government. But it is also possible to have provisions about the role of parliament in supervising the military, or even to have supervisory bodies that include people who are not part of government in any way. For more see [coming later]
Some constitutions say nothing about police! But many have provisions about the police that are like those about the military - aimed at ensuring that the police serve the people. The Head of the police may be an independent person - who cannot be dismissed for displeasing government for example. For more see [coming later]
International law comes mainly from agreements between countries that bind together the nation-states in accordance with recognized rules and principles. The main difference between international law and other legal system is that the international law binds nation-states rather than the individual citizen. But there are some agreements that deal with the issues to name some like World Trade Organization, human rights and environment that have a significant importance for the individual citizen. However, an individual citizen cannot in many countries, including Nepal, bring action in a national court relying on international law if it is not ratified by the Government. In case of Nepal, if there is conflict between international law and the domestic law, according to the Nepal Treaty Act, international law prevails. For an account of international law see the American Society of International law.
Constitutions will usually set up a procedure for auditing public expenditure, often called the Auditor General, and create bodies like the Commission on the Investigation of the Abuse of Authority.. It can create a public right to know. All these may help - but only if the people use them.
Many modern constitutions do. Some give a "right to clean environment" to the people, and some create bodies with responsibility for the environment. The South African Constitution some rights relevant to the environment - you can find a neat summary of these here. Various American States, including Pennsylvania, have introduced environmental rights into their State Constitutions. The IUCN and UNEP have been pressing for a new Constitution of Nepal to include environmental rights.
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