Meaning and definition of

constitutional law
Mr. . Bishwa Raman Singh
7/1/2017
 Meaning of Constitutional law
• Constitutional law is the branch of public law which is
related with constitution and constitutional matters
• Public law- a collection of such rules based upon
interest of a majority of people. Such laws include
fundamental rights, composition of parliament,
independence of judiciary, role of constitutional bodies,
political parties, rule of law, forms of legislature,
structure of executive, hierarchy of judiciary, etc)
• Constitutional law is enforced within the territory of
state.
• Constitutional law is the foundation of all laws ( set of
rules made, enforced and recognized by the state.
• Constitutional law can also be understood as body of
precedent.( here not all decision of court are precedents
only those decisions which fulfils the constitutional and
legal gap i.e loopholes in law.
• Most importantly it is the collection of provision
contained by constitution
• For example: Treaty Act 2047 of nepal state tha those
treaties and convention to which government nepal is
party are binding and shall prevail over laws of similar
nature
• It is enforced between individual and state and among the
branches of government
• Constitutional law is superior to statutory law
• Constitutional law concerns with function discharged by
government, the distribution of power between these
organ, the law making process and the protection that the
state can afford to its citizen or its subject matter and the
relation of sovereign and citizen specifically
• If Constitutional law is to be amended then it has to be
done through extra ordinary ways
• Constitutional law is a law relating to constitution which
gives clarity to constitutional provision and makes its
implementation part stronger
• Legal rules which are enacted by sovereign power that can
be enforced by court are included under constitutional law.
• But non-legal rules are not enforced by court
and they are not included under the
constitutional law . (so directive principles
have not been incorporated under
constitutional law.
• Constitutional law is created with the spirit of
protecting and abiding constitutional norms,
values and principle.
 Definition of constitutional law
• According to Black’s law dictionary
constitutional law is one which is consonant to and agree
with the constitution; one which is not in violation of any
provision of the constitution of the particular state.
• Constitutional law as that branch of public law of a state
which treats the organs and frame of government, the organs
and powers of sovereignty, the distribution of political and
governmental authorities and functions the fundamental
principles which are to regulate the relations of government
and subjects and which prescribes generally the plan and
method according to which public affairs of the state are to be
determined
• Thus, constitutional law is an ordinary public law which
specifically deals with constitution and constitutional matters
has no concern over civil, criminal or corporate matters. It is
solely related to constitution and constitutional provisions.
• Marshall, Constitutional Theory: ‘Constitutional Law is the part
of national law which governs the system of public
administration and the relationships between the individual
and the state.’
• Black’s law dictionary: “ The fundamental and organic law of a
nation or state that established the institution and system of
government, defines the scope of governmental sovereign
powers, and guarantees individual civil rights and civil liberties.”
• Mauro R. Monoz and others, Philippine Governance and
Constitution: “Constitutional law- study of the proper balance
between authority as represented by the three inherent
powers of State and liberty as guaranteed by the Bill of Rights.
It may also be defined as that branch of jurisprudence which
treats of constitutions, their nature, formation and
amendment, operation and interpretation.”
 Difference between
Constitution and constitutional law
Constitution Constitutional Law
Meaning - Constitution
Constitution is the fundamental
is the fundamental law of the Meaning- It is law
Constitutional ordinary
is thatlaw and of
branch thatpublic
law of the land comprising the rules
land comprising the rules related to therelated branch of public law which deals with
law which is related to constitution and
to the mechanism
mechanism of government ( it is
of government constitutional
constitutional matters
matters it can be also taken
such a document which contains such rules as organic law. (Organic law – as per the
Constitution
and regulationis entitled
requiredwith a certain
to run name
the system Constitutional law has no for
provision of constitution name it is an
instance
Forgovernment
of eg. Constitution of Nepal - 2019 ordinary
labour law which exist as other law exist
law)
Nature- constitution is mainly Nature- Constitutional law is not
fundamental in nature. There is no other fundamental in nature it has no name it is
People
law aboveareit.
the sole source of constitution. Constitution,
an ordinary law statutes, precedent,
which exist as other treaties,
law
It is always drafted
Constitution in the
is entitled name
with of its name
a certain customs are the sources of constitutional
exist. It came with equal footing with other
people.
For Eg. Constitution of Nepal – 2019 law
forms of law criminal law, civil law
Sources- People are the sole source of Sources- Constitution, legislation, statutes,
Constitution
constitution. isIt the fundamental
is always drafted law
in theof the Constitutional law iscustoms,
precedent, treaties, an ordinary law. It are
tradition has
land.
nameItofcreates a superstructure remaining
its people. no
the special
sourcesstatus of therefore,
of constitutional lawit must
itself at the top comply with the constitution
Making Process : Constitution is said to Making Process: But, constitutional law is
have been made by people themselves, So, believed as the product of the
It is taken
it is an actasofthe
people
act of people It is an act of people’s
representatives representation
of people. So it is the
representatives of people.
Method of Amendment: It is amended by Method of Amendment: It is amended by
special procedure two third majority votes , simple procedure i.e. simple majority of
involvement of provinces or referendum legislators, as other ordinary laws are
amended
classified as written and unwritten, rigid It has no classification
and flexible unitary and federal and so on.
Theories of interpretation: It is interpreted Theories of interpretation: But
by theories of constitutional interpretation constitutional law doesn’t require special
such as principle of harmonies constitution, theories as such. It can be interpreted by
doctrine of fraud on constitution, theory of by principles of interpretation of statutes
direct and inevitable fundamental right are or ordinary laws such as golden rule,
used for interpretation mischief rule, expression unius rule,
ejusdem generis rule, construction of w
ords in benam partem
Objectives: The objectives of constitution Objectives: The objectives is just to fulfill
is external; to create high degree of ideality the objective of constitution only.
it is applicable to all people.
Bodies Responsible to make them: Bodies Responsible to make them:
Constitution can be made by various however; constitutional law making falls
bodies like constituent Assembly (CA), by sole in the hands of the parliament.
the recommendation of reformation
committee, experts committee initiative so
on.
 Sources of Constitutional law
1. Constitution and its amendment
2. Legislation
3. Precedent
4. Customs and tradition
5. Secondary Legislation/ Delegated
6. Books of authority
7. Opinion of experts
8. Foreign constitution law and decision of
foreign courts
 Contd…
9. Historical documents
10. Principles of morality and reason
11. Judicial Interpretation and Decision
 SOURCES OF CONSTITUTIONAL LAW

• Bradly and Ewing: “The formal sources of constitutional law would

compromise: (a) the constitution itself, and amendments made to it; (b)
Acts of Parliament dealing with matters of constitutional importance; (c)
judicial decisions interpreting the constitution.” They further that in the
absence of a written constitution in the UK, the main sources of
constitutional law are the same as those of laws and they include: (a)
legislation and judicial precedent.

• Professor Nicholas Sunday, Constitutional law, Constitutionalism and

Democracy : “In written constitutions, the sources would comprise the
constitution itself and amendments made to it; Acts of Parliament
dealing with matters of constitutional importance; and judicial decisions
interpreting the constitution. The historical sources of a written
constitution include both the immediate circumstances in which it was
framed and adopted, and the long term factors which influenced its
making. So, too, there are broad political principles which influence the
content of particular legal rules.” 
1. Constitution and its amendment
The first and foremost sources of constitutional law is the
constitution. All the legal provisions compiled in constitution are
constitutional law. Similarly, if constitution is amended, then the
added provision becomes constitutional law. Whereas the
repealed provision no more remain constitutional law. Thus
constitution and constitutional amendment are the major
sources of constitutional law
For e.g: the interim Constitution of Nepal 2063 has been
amended for more than 12 times. As each amendment to
constitution is taken as important part of constitution, it is also
taken as important sources of constitutional law
2. Legislation/Statutes
Legislation (Statutes or Acts) are also the sources of constitutional law because
they form organic law. Constitution provision authority to make such organic
laws. Not all legislations are constitutional laws only such statutes which belong
to the constitution and operation of government are constitutional laws for eg.
The Constitution of Nepal (2072), has the provision of public service
commission. Therefore, public service commission Act 2066 is constitutional
law but, the constitution has no provision about Tribhuvan university so,
Tribhuvan university Act 2049 is not a constitutional law. Some of the legislation
incorporating constitutional law are election commission Act, Political Parties
Act, Auditor General Act , supreme court Act, CIAA , constitution assembly Act-
2066, parliamentary Act-2065, Human Right Commission Act -2053 etc
Existing Ones:
• Nepal Supreme Court Act 2072
• Civil Rights Act 2012
• Treaty Act 2048
• Election Commission Act 2072
• Right to Information Act 2007
• Election Commission Act 2073
3. Precedent
Precedent are the judicial decision made by court
fulfill legal and constitutional gap. Those precedent
which determines and fills the constitutional gap are
the sources of constitutional law for example the
verdict of supreme court to provide citizenship on
mother’s name in the case of Sabina damai is
constitutional law as the precedent is related with
the constitutional provision of citizenship. For
instance : Meera dhungana etc.
4.Customs and tradition
Customs or convention also constitute constitutional law such
customary constitutional laws are made by people
themselves; they are the long – run habit of people
For instance: In U.S.A George Washington, first U.S president
determined the practice of holding the premiership by a
president for only 2 terms (i.e. 8 years). The established rule
was functioning well as decided. But the 9 th president denied
to follow the rule because it was not constitutional mandatory
.Thereinafter, America constitution mention the customary
practice of being US president only for two time periods in the
Constitution.
Similarly, interim constitution of Nepal 2063 mentions the council of ministers
shall be appointment by the prime minister. However, as per customary
practice, the PM is not free to choose the ministers as per his will. The PM has
to consider and appoints ministers from among women, dalits, janjatis,
adibashis, madhesis and so on and most importantly from political consensus.
5) Secondary Legislation
Secondary legislation ( rules, regulation, by laws) are made as per
the principle of delegated legislation, which must comply with
primary legislation. Those secondary legislations related with
mechanism of government are sources of constitutional law
For e.g.: Election Commission has the right to make rules regarding
number of constituencies, date, time of periodic elections, which is
secondary legislation forming constitutional law.

While talking about, delegated legislation also serves as a source of

constitutional law. If parliament has authorized any body to make
law and that extends or supports the constitutional provision, such
delegated legislation could also be a important source of
constitutional law. In fact, it could be argued that in modern day
world more constitutional laws are made by delegated legislation
than by Acts.
6) Books of authority
Books of authority, i.e. the books which contain theories of
constitution and constitutional principles written in specific
pattern by authorized writers and scholars are also the
constitutional law
For instance: Inorder to insert federalism to know about
federalism principle and concept Spirit of laws (Montesquieu),
Introduction to the study of law of constitution (A.V. Dicey) are
the book of authority which are the sources of constitutional law.
another example: Sir Iver Jeening “ introduction to constitution is
authoritative sources of constitutional law
Books like constitutional law written by Wade and philips , and
book written by A.V. Dicey etc plays the great role in development
of constitution, law and legal system and such things also
becomes the sources of constitutional law
7. Opinion of experts
The opinion of experts regarding constitution
and constitutional matters are the sources of
constitutional law . In case of deadlock of
governance, the expert opinion help to come
out of the situation
for instance: those person i.e judge, professor,
expert, lawyer, philosopher who have depth
knowledge of constitution, law or any subject
matter if gives opinion or writes or publishes
any article.
8. Foreign constitution law and decision of
foreign courts
The study of foreign constitution and
constitutional laws provide us with the better
understanding of foreign laws. Foreign laws are
applied in many countries
For e.g.: laws made in the UK are followed in
Nepal also though the foreign law are not
allowed in nature, they are applied in national
laws. Different laws like parliamentary form of
government, adversial investigation system etc
are applied in nepal by U.K laws.
Similarly the decision of foreign court are also sources of constitutional
law. For E.g the case marbary Vs madison, 1803, decided by chief justice
of supreme court of U.S.A, John Marshal ensured right of judicial review
. The principle of judicial review provides right to the court to declare
any law void if found contradictory to constittutional provision.

9). Historical documents

Historical document provides the knowledge regarding the historical
events of particular government at the particular time and also help to
enhance the knowledge of constitution making based on government
system based upon its history.
For e.g: Comparing the constitution between the ‘Interim constitution
of Nepal 2063 and ‘ constitution of Nepal 2072 ensures right of senior
citizen which was not ensure and mention in 2063 constitution. Thus
the 2072 constitution creates the necessity of right to senior citizen
which has been fulfilled by this constitution. Therefore such documents
also secure the position in the fulfilment of sources of C.L
10. Principles of morality and reason
Most important is reason or logic. Reason is
basic sources of constitution and should be
applied logically.
Morality: What is right and what is wrong
What should be done and what
should not be done
For instance: to draft a new constitution for
Nepal within stipulated time period works as
the principle of morality for parliamentarians
11. Judicial interpretation and decisions:
The primary function of judiciary is
administration of justice and interpretation of
constitutionally important issue that is taken as
source of constitutional law. The decision made
by supreme court in parliament dissolution
case, case relating to equality, case relating to
environment right case and freedom of opinion
and expression. Case relating to right to
information had become guideline and
direction in new constitution making process.
12. Treaties and convention
International treaties and convention are the
sources of constitutional law because they regulate
the system of government of states. A government
cannot act beyond the provisions of treaties. For
e.g. universal Declaration of human Rights (UDHR,
1948) has the provision of right to equality and this
right is the constitutional provision of different
states. The other treaties conventions, declaration,
protocol as the sources of constitutional law are
ICCPR, ICESCR, UN charter, ICERD, CEDAW, etc
 Concept and meaning of
constitutionalism
Constitutionalism is the doctrine which governs the legitimacy
of government (power) action by limiting the governmental
power.
• Constitutionalism is philosophy or principle of ruling a state or
nation according to constitution or abiding by constitution in
theory and practice.
• Constitutionalism acts exactly as specified by the constitution
• It is backbone of a democratic government
• Constitutionalism reflect the efforts to check or minimize evil
elements of state
• It limit the power of government or decentralized the power
which is most essential elements of modern constitutionalism.
 CONSTITUTIONALISM
Doctrine of Separation of Power

LIMITED POWER ACCOUNTABLE,

OF RESPONSIBLE
GOVERNMENT TO RULE OF LAW
GOVERNEMENT
THE PEOPLE ON
THEIR FUNCTION

Optimum
Independent
power to Respect of
Respect of and
deliver goods Basic human
Rule of Law Competent
and services right
Judiciary
to people
Written constitution: In a written constitution the
powers of various organ of the state are clearly limited.
Rule of law: It is an inseparable component of
constitutionalism. The constitution is said to be
founded on the basis of rule of law. Constitution
allocates power of state organs and rule of law controls
their exercise. Rule of law ensures limited government
and protects individual right. It encompasses traditional
ideas about individual liberty and natural justice, and
more generally ideas about the requirements of justice
and fairness in the relations between government and
governed. Constitutionalism means that rules is to be
done according to law. When there law, then there is
the right to rule.
Fundamental rights: Every constitution demarcates
certain right as fundamental rights because such rights
are inalienable, inevitable and non- derogatory.
Fundamental rights are the objective of constitution.
When people can exercise their rights without any
interruption and derogation from the government, it is
said to be constitutionalism. Fundamental rights
constitute a limitation on the government.
Independence of judiciary: It means that judiciary must
be free ( from other organs of the state, particularly
executive and legislature. It is freedom of judges to decide
cases fairly and impartially relying only on the fact and
laws. It guarantees constitutionalism though rule of law
and protection of fundamental rights of people.
Separation of power: By separating the powers
of state organ constitution restricts the
competency of one organ affecting the
functions of other organs. Separation of powers
ensure constitutionalism because it (ensures)
limits the power of different organs of the state.
Good Governance: Good governance is a means
or precondition of constitutionalism. It ensures
constitutionalism through proper governing
system of the governement where the methods
of governing
 Constitutionalism:
• The basic idea of the constitutionalism is that there is a government
who can exercise its power, but within the legal limits. Therefore, the
authority or legitimacy of the government is based within such limit.
• Roots to the idea of constitutionalism could go back to the time of
John Locke and even American constitution making phase, where
discourses were made from such perspective. However, we can see it
even at the time of Aristotle and Plato.
• Some of the questions that constitutionalism tries to address:
1. How can law limit the government if the law has created it?
2. Is limiting the government possible?
3. Can government be self-limiting?
4. How are laws and rules to be interpreted? (original meaning? Public
meaning? Intention of authors etc.?)
According to Charles H. Mellwain-
“Constitutionalism recognizes the necessity
for government but insists upon limitation
being placed upon its power.
According to hilare Barnett
“Constitutionalism means- that the exercise
of power be within the legal limits conferred
by parliament and that those who exercise
power are accountable to law.
 Constitutionalism and its elements
Louis Henkin defines constitutionalism as constituting the
following elements:
1. government according to the constitution
2. separation of power
3. sovereignty of the people and democratic government
4. constitutional review
5. independent judiciary
6. limited government subject to a bill of individual rights
7. controlling the police
8. civilian control of the military
9. no state power, or very limited and strictly circumscribed state
power, to suspend the operation of some parts of, or the
entire, constitution.
 Constitutionalism:
According to Hilaire Barnett, the doctrine of the
constitutionalism suggests at least following:
• that the exercise of power be within the legal limits conferred
by parliament on those with power – the concept of intra vires
– and that those who exercise power are accountable to law;
• the exercise of power – irrespective of legal authority – must
conform to the notion of respect for the individual and the
individual citizen’s rights;
• that the powers conferred on institutions within a state –
whether legislative, executive or judicial – be sufficiently
dispersed between the various institutions so as to avoid the
abuse of power; and
• that the government, in formulating policy, and the legislature,
in legitimating that policy, are accountable to the electorate on
whose trust power is held.
 Constitutionalism:
Mark E. Brandon: “Constitutionalism is a political theory
concerned with the architectural structure and basic values of
society and of government. It aims to make the world
comprehensible and, to some degree, controllable. Historically,
it is preoccupied with the problem of power, particularly the
power of those who would rule others, especially when that
rule might be arbitrary.”
• H. Kwasi Prempeh: “Constitutions without constitutionalism are
a fairly standard, if not the defining, feature of illiberal regimes
everywhere.”
• Vicki Jackson: “Constitutionalism entails a sufficiently shared
willingness to use law rather than force to resolve
disagreements; to limit government power and to protect
human rights through law and defined processes; to provide a
reasonable degree of predictability and stability of law.”
 Constitutionalism: Continued
• Although previous concepts on constitutionalism has been
accepted almost universally, recently there has been many
changes on the notion and practice of constitutionalism. As a
result, many authors have defined and classified constitutionalism
very differently. It might be because the practice and the study of
constitution has been changing.
• Prof. Gerhard Casper: “Constitutionalism has both descriptive and
prescriptive connotations. Used descriptively, it refers chiefly to
the historical struggle for constitutional recognition of the people's
right to 'consent' and certain other rights, freedoms, and
privileges…. Used prescriptively … its meaning incorporates those
features of government seen as the essential elements of the …
Constitution.” (For e.g. descriptive meaning where executive
power lies and prescriptive meaning how such power is to be
exercised and descriptive means the definition of state and
prescriptive meaning functions of state such as State’s policy.)
 Constitutionalism: Continued
• Wormuth: The legitimacy of governmental authority turns on
its enforcement of the rules limiting its authority. In this regard,
it may be said that constitutionalism is synonymous with the
rule of law, which is the more commonly used terminology.
• Larry Catá Backer have argued about two forms of
constitutionalism: traditional nationalist constitutionalism
which looks into unique domestic constitutional framework
through which government was constituted and power
institutionalized and, transnational constitutionalism which
looks to the common constitutional traditions of the community
of states buttressed by international norms and organizations.
Human rights could be an example of latter.
• Jon Roland: Under liberal constitutionalism, the entire system
of government is created by the constitution. The constitution
defines, allocates and regulates government power.
 Constitutionalism (Various forms)
• Mark Warren on liberal constitutionalism: , “the combination of
constitutional devices—separation of powers, checks and
balances, civil liberties and civil rights—that are presumed to
protect against illegitimate political coercion against persons
and which guarantee public influence over political decision
makers.”
• Some of the forms or types of constitutionalism:
1. Traditional constitutionalism
2. Modern constitutionalism
3. Transnational constitutionalism
4. Natural law constitutionalism
5. Theological constitutionalism
 Legal Constitutionalism Political Constitutionalism

The basic ingredients of legal The basic ingredients of political

constitutionalism are supremacy of constitutionalism are good governance,
constitution, rule of law, protection of periodic election, parliamentary
fundamental right, independence of accountability, responsiveness, etc.
judiciary and political review.

Legal constitutionalism is effectively Political Constitutionalism is effectively

implemented in presidential form of implemented in parliamentary form of
government. Government.

Legal Constitutionalism can be enforced Political Constitutionalism cannot be

by court administration. It can be enforced by court proceeding. It is felt
effectively administered where there is necessary during transitional period and
written and rigid constitution and crisis situation.
independency of judiciary.

Government is limited under Government is guided by political

constitutional control in legal understanding in political
constitutionalism constitutionalism

Legal Constitutionalism gives more Political constitutionalism gives more

emphasis in separation of power emphasis to check and balance.
 Constitutionalism: Continued
• There is also legal and political constitutionalism. Usually, the
legalistic part and characters of any constitution and its legal
scope falls within the study of the legal constitutionalism. For
e.g. the authority of the parliament to delegate its law making
power falls within the legal constitutionalism. Similarly, there is
political constitutionalism which looks into and covers political
component of the constitution. For e.g. commitment to
democracy, federalism, any constitutional agreement having
political element such as comprehensive peace agreement
between the Maoists and the government of Nepal in the 2007
Interim Constitution.
• Natural law constitutionalism is grounded in universal values
based on humanity’s nature or aspirations.
• Theocratic constitutionalism grounds those values in the
imperatives of a privileged religious system.
 Constitutionalism: Continued

• Democratic constitutionalism: Constitutionalism based on

democratic ideals, which usually has following elements:
1. structure of government
2. distribution of powers among executive, legislative, and
judicial branches of government
3. limitations on powers of the branches of government
4. guarantees of human rights
5. procedures for electing, appointing, and replacing government
officials, and
6. methods of constitutional amendment or change.
• Looking into specific country and their constitution, we can say
British constitutionalism (sovereignty vested on people), US
constitutionalism (rigidness), Nepalese constitutionalism
(restructuring and transformation of the state) etc.
Basis/element of Constitutionalism
1. Supremacy of constitution
2. Rule of law
3. Separation of Power and Check and Balance
4. Independence of judiciary and judicial review
5. Free Constitutional Organ
6. Protection of fundamental right, access to
court for justice
7. Representative and Responsible Government
8. Periodic Election
9. Absence of Arbititrary power, limited
government and deconcentration of power
10. Good Governance, transparency, consensus
oriented, equitable, inclusive, effective and
efficient
 Conclusion

• Constitutional rule is called constitutionalism

• It is base on democratic rules. And
constitutionalism government is responsible and
accountable to people.
• In constitutionalism public body can act within
its power and jurisdiction
• Constitutionalism is an antithesis of arbitrary
rule and despotism or in another word it is a
theory and principle which attempts to minimize
or limit dictatorship
 Contd..
• Constitutional rule is favor of people’s
betterment and not in favour of one individual
and class.
• Constitutional rule is governed by laws and
acts and not by personal will and interest.