LUMBINI BOUDDHIST UNIVERSITY

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MEGHA NATH KHANAL

LAW FACULTY
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Constitution
 Roadmap of the state
 Manifesto of the state
 Legal document of the state
 Political document of the state
 Mirror of the state
 Fundamental law of the land
 Basic law of the land
 Father of the other laws of the state
 Umbrella of the state
 Mutual manifesto of the all political parties
 Guideline of the state
 Constitution indicates following aspects:
 It is a fundamental law of land

 Power, function and responsibility of three state organ are based on constitution,

 It is directive od the government.

 it mention and protects the fundamental right of the citizen.

 It determines the relation between the rulers and ruled.

 It determines the sovereign power of the country,

 It determines the nature of system of government

 Its mention the provision of independence of judiciary and other constitutional organ.

 It mention the election system of country.

 It mention about its own amendment process and protections.

And many more

Definition of the constitution
According to K.C. Where,

 Constitution can be defined in broad and narrow sense, in broader sense , constitution is
a collection of legal and non legal rules which is all about the system of government,
method to establish and regulate the government. British constitution is the collection
of those legal and non legal rules which govern the government in Britain.

 In narrow sense, Constitution is the collection of those legal rules which include only
those rules which are written in the form of the constitution. A particular document
consists of those rules. A country with the written constitution is considered as the
example of the narrow meaning.
A. V. Diecy

The constitution as the collection of two types of rule which is made for the regulation of
government. The first type of rule are those rules which are written in constitution and laws
and those are considered as pure law and second types of rule are not written in
constitution and law but recognized by society and court such ad custom, convention,
treaty, etc.
Classification of Constitution
1. Classification on the basis of forms of constitution
A. Written constitution
B. Unwritten constitution
2. Classification on the basis of process of amendment
A. Rigid constitution
B. Flexible constitution
3. Classification on the basis of power distribution
A. Federal constitution
B. Unitary Constitution
4. Classification on the basis of Head of state
A. Republican constitution
B. Monarchial constitution
5. Classification on the basis of nature of executive
A. Parliamentary constitution
B. Presidential constitution
Constitution, Constitutional law and constitutionalism
 Constitution is a legal document framed by a body of people's representatives
(constitutional assembly and sometimes constitutional commission)
 Constitutional law is a broader term
 Constitutionalism means limited government

A constitution is a legal document having a special legal sanctity which sets out the
framework and the principal functions of the government organs of a State and lays down
the principles governing the operation of those organs. The Constitution is framed by a
body of representatives duly elected by the people at a particular point of time in history.
The Constitution places itself above and between the two processes of law-making and law
enforcement. The Constitution is a source of power and not an exercise of legislative
power.
Constitutional law is a broader term as it comprises of the Constitution, statutory regulations,
judicial decisions and conventions. It has been developed by interpretation of the Constitution
through judicial review. It consists of legal norms and non-legal norms. Legal norms are those
which can be enforced and applied by the Courts, whereas non-legal norms refer to
conventions, usages, practices and customs.

Interpretation of the Constitution gives rise to two doctrines: Living Constitution and originals.
Originals is the judicial interpretation of the Constitution which aims to recover the original
meaning of the Constitutional text. The focus is on the textual meaning of the Constitution. In
originals, the interpretation seeks to follow the intention of the drafters of the Constitution.
Thus, originals tries to keep the original meaning of the Constitution intact. On the other hand,
living Constitution states that the Constitution must be able to adapt to the present times. The
Constitution does not have a fixed meaning but is dynamic. “Constitution is a living tree which
must grow and adapt to contemporary beliefs and practice.” Though the basic features of the
Constitution remain unalterable, the flexible provisions can be interpreted dynamically. Thus,
the Constitution is considered as an organic living document.
 Constitution is the actual document setting out the structure and status of the nation,
plus the kind of rights and obligations afforded to the citizens and non-citizens. The
Constitution of a nation is the ultimate source of law — all other laws of that country
must come from or comply with the requirements of that document.

 In some countries, the Constitution is “codified” — meaning it is set out in an actual

written document (e.g. the USA and most other countries).

 In some other countries, the Constitution still exists but in “un codified” form — there
isn’t a single written document but the principles are spread out in various things such
as individual legislation and the case law (e.g. the UK, New Zealand, etc.)

 “Constitutional Law” is the study of the body of laws and legal issues relating to the
operation of the national Constitution,
Evolution Of Constitutionalism
• In the past, Constitutions were promulgated by Kings . The concept of governing a
country on the basis of a constitution, drafted by a special representatives is the
product of democratic revolutions.
• Constitutionalism first found its expression in the Philadelphia Convention in the
USA. And it was the 1st nation to experiment with a written constitution. The
American constitution laid the foundation to the art of constitutionalism.
• Later French revolution succeeded in giving a greater development to the
constitutionalism.
• Constitutionalism suggested a way of reconciling of the power of the state with
individual liberty & rights. The evolution of of these rights has a long history
in the UK, USA and France.
• Magna Carta in 1215, habeas corpus act of 1679, Bill of rights in 1689 in the UK ,
Declaration of Independence in 1779 in USA & France declaration of rights of man
and citizens of 1789
• After the end of the conflict between monarch and the feudal lords. The results of the
revolutions of different kinds in France, USA, USSR, and the over throw of the
colonial rule in the 3rd world countries, the concept of “constitutionalism” has taken
deep roots.
• The doctrine or system of government in which the governing power is limited by
enforceable rules of law, and concentration of power is limited by various checks and
balances so that the basic rights of individuals and groups are protected.
• “A commitment to limitations on ordinary political power; it revolves around a
political process, one that overlaps with democracy in seeking to balance state power
and individual and collective rights; it draws on particular cultural and historical
contexts from which it emanates; and it resides in public consciousness.”
• Constitutionalism recognizes the need for government with powers but at the same time
insists that limitation be placed on those powers. It envisages checks and balances by
restraining the powers of governmental organs by not making them uncontrolled and
arbitrary.
 The aim of constitutionalism is to ensure good government. Good governance is one
which:
1. Has optimum power to deliver goods and services to the people for their all round
development.
2. Respect rule of law in the exercise of the power.
3. Uses the power and resources for the benefit of the general public and not for vested
interest of the person in power.
4. Remain accountable to the general will of people.
Different Between Constitution and constitutionalism

• A constitution can be defined as the fundamental laws custom, conventions, rules and
regulations, stipulating how a country is governed, while constitutionalism can be
defined as a principle which is not just a constitution but put limitations to the
activities of individuals and the government.

• The implication of constitutionalism is that in exercising its powers the government

should be limited by law. Its authority over the people is dependent on its observance
of the limitations under the law. Those limitations are usually enshrined in the
constitution.
• A constitution is a charter of government deriving its whole authority from the
governed. ‘Constitutionalism’ means limited government or limitation on
government. It is antithesis of arbitrary powers.
Constitution
1. The constitution as a certain document.
2. Constitution is the fundamental law of land.
3. Constitution is prepared by people
themselves.
4. The sources of constitution are sovereignty
and peoples fundamental right.
5. Constitution is made by special procedure
( through constituent assembly, constitutional
draft committee// commission.)
6. In narrow sense constitution is only
constitutional law.
7. Constitution is not drafted frequently but
amended as per necessity.
8. Constitution amendment process if more
difficult then amendment process of constitutional
law.
9. Constitution is a guardian law of all other law.
10. Directive principles and state policies are
included in constitution.
Constitutional law
1.Constitutional law is defined as a constitution
itself and the law relating to the constitution.
2. Constitutional law are the supporting laws of
constitution.
3. Constitutional law are drafted by legislative and
other constitutional organ of the country.
4. The sources of Constitutional law are legal and
non legal rules.
5. Constitutional law are prepared by general law
making process of legislative.
6. In broader sense Constitutional law refers to
constitution and all constitution related laws.
7. Constitutional law are drafted when legislative
feels necessary.
8. Constitutional law are amended by general
process of legislative.
9. Constitutional law is obedient law under
constitution.
10. Directive principles and state policies are not
included in Constitutional law
Classification of the constitutionalism

1. Legal constitutionalism

2. Political constitutionalism

 Legal constitutionalism is also known as remedial constitutionalism (we can get

remedy from judicial process). It is a mechanism for enforcing limit on the government
through court process like judicial review, judicial activism etc. therefore we can say
that legal constitutionalism is related with legal issue.

 It is limitation over the power of government through political means ( political

process) it is a mechanism to ensure efficiency of government through the political
process of election, impeachment, accountability and transparency etc.
 Different between Legal and political constitutionalism
Legal Constitutionalism
1. It is limitation over the power of government
through the legal means.
2. It is enforce by court and law.
3. There is availability of legal remedy in case of
violation of Legal constitutionalism.
4. Its presupposes that the law of the nation shapes
the politics.
5. Its believes in the idea that the right and freedom
of people can be protected by legal means and
active role of judiciary.
6. Custom, convention and morality are minor
valued in it.
7. This type of constitutionalism is effective in the
stable period.
8. The component of legal constitutionalism are:
Constitutional supremacy, Rule of law,
independent, impartial and competent judiciary,
judicial activism, judicial review, protection of
fundamental right.
Political constitutionalism
1. It is limitation over the power of government
through the political means.
2. It is enforce by people and political parties.
3. There is no any availability of legal remedy in
case of violation of political constitutionalism.
4. Its presupposes that the politics guide the law of
the nation.
5. Its believes in the idea that the right and freedom
of people can be protected only through political
stability and properly established political
culture.
6. Custom, and morality are strongly valued in it.
7. This type of constitutionalism is effective during
crisis and transitional period rather than the
stable period.
8. The component of political constitutionalism
are: political consensus, limited and responsible
government, , vote of confidence/ no confidence
motion, impeachment, political parties, adult
franchise, periodic election. Etc.
THANK YOU