What Every Nepali Should Know About the Constitution
1. What is a Constitution?
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.
2. Does Nepal have a constitution now?
Yes, 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.
3. When did Nepal first have a constitution?
Nepal's first Constitution was the Government of Nepal Act 1948.
4. What is a preamble?
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.
5. A Constitution is a long and technical document - can the people understand it?
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 able to understand.
6. How can we ensure that the people are not disappointed by the new constitution just as so many of them were with the 1990 Constitution?
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.
7. Having got a new Constitution, can we be sure that it will not be changed to suit the rulers?
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.
8. What is a Constituent Assembly?
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).
9. What is a republic?
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.
10. Are all republics the same?
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.
11. What is Federalism?
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.
12. What is a constitutional court?
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"
13. What are Human Rights?
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 and the Covenant on the Rights of the Child. 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.
14. What is affirmative action?
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.
15. What is the right to information?
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.
16. What can a constitution do about issues of gender?
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.
17. What can a Constitution do for persons with disability?
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.
Participatory Constitution Making
5 Main Principles of a Constitution
Creating the New Constitution: A Guide for Nepali Citizens
Democratic Appeal for Democracy_April_2010