Constitution vs Constitutionalism

Constitution vs Constitutionalism

A constitution is the fundamental legal framework that establishes the structure, functions, and limits of a government. It defines the governmental organization, the relationship between the state and its citizens, and the rights and freedoms of individuals. Constitutionalism, on the other hand, refers to the practice of governance that emphasizes limited government, the rule of law, and the protection of individual rights, all within the bounds of the constitution.

Key Differences:

The constitution can be written or unwritten. A written constitution is a single, formal document that outlines a country’s legal framework, such as the Constitution of the United States. An unwritten constitution, on the other hand, is based on historical documents, traditions, conventions, and judicial decisions, like the constitution of the United Kingdom.

While a constitution serves as a foundational legal document, constitutionalism is the philosophy or practice that emerges from the constitution. It guides how government should operate and ensures that power is exercised in a manner that is both lawful and accountable to the people.

Key Features of a Constitution:

Some of the key features found in most constitutions include:

• Separation of Powers: Dividing the government into distinct branches—executive, legislature, and judiciary—to prevent the concentration of power.
• Fundamental Rights: Guarantees that protect individual freedoms and prevent arbitrary government action.
• Rule of Law: Ensures that all individuals, including government officials, are subject to the law.
• Amendment Process: Procedures that allow for the constitution to be updated as society evolves, reflecting changes in governance or values.

These principles not only define the structure of governance but also act as checks on governmental power. Constitutionalism emphasizes how these principles are applied in practice, ensuring that political leaders remain within the limits set by the constitution.

Evolution of the Constitution and Constitutionalism:

Historically, the constitution has evolved in response to social changes, revolutions, and shifts in governance. It marks a transition from monarchy to democracy, outlining the limits of government power and the rights of citizens.

Similarly, constitutionalism has emerged as a response to monarchies and authoritarian regimes. Its primary focus has been on ensuring the separation of powers, the protection of individual rights, and the accountability of government. Constitutionalism aims to create a system where the government is bound by law and accountable to the people.

Relevance in the Nepali Context:

Nepal has undergone significant constitutional evolution, having experienced six different constitutions from 1948 to the present. The most recent, the Constitution of Nepal 2015, was promulgated after years of deliberation and has been a major milestone in Nepal’s democratic development. The current constitution embodies the principles of constitutionalism through its articles, ensuring that governance is transparent, accountable, and democratic.

Several articles in the Constitution of Nepal reflect the core principles of constitutionalism:

• Article 1: Declares Nepal as a sovereign, secular, inclusive, democratic, and republican state, establishing the foundation for constitutionalism by affirming the sovereignty of the people.

• Article 2: Defines the territory of Nepal, outlining the geographical boundaries and the state’s authority, which upholds national sovereignty and the rule of law.

• Article 18: Guarantees equality before the law and prohibits discrimination based on religion, race, caste, sex, or any other status, reinforcing the core principle of constitutionalism by ensuring justice for all citizens.

• Article 25: Protects personal freedoms, including the right to movement, privacy, and peaceful assembly, ensuring the government’s power is limited and citizens' freedoms are safeguarded.

• Article 56: Defines Nepal’s parliamentary structure and ensures the separation of powers between the executive, legislature, and judiciary, preventing any branch of government from becoming too powerful and safeguarding the democratic process.

• Article 118: Grants the Parliament the authority to make laws, ensuring that laws are created by elected representatives, thus supporting democratic governance and popular sovereignty.

• Article 126: Provides for judicial review, allowing the judiciary to review the constitutionality of laws and government actions, ensuring that they comply with the constitution and protecting the rights of citizens.

• Article 138: Defines the electoral system, ensuring the democratic election of members to the federal parliament and provincial assemblies, reinforcing constitutional principles by ensuring that governance remains accountable to the people.

Conclusion:

Overall, the Constitution of Nepal reflects the principles of constitutionalism by establishing a framework that promotes democracy, the rule of law, and the protection of fundamental rights. Through its key articles, the constitution limits governmental power, ensures accountability, and safeguards individual freedoms, thus fostering a system of governance where leaders are bound by law and accountable to the people. This adherence to constitutionalism ensures that Nepal remains a democratic and just society.