Exam Oriented notes of Constitutional law in context of Nepal with Case of Sajda Sapkota

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Constitutional Law
Fundamental law of the land. Social contract between political parties. Its an political agreement.  Its main object is peace and security. Punishment. No one should above it. In contrary with this all laws will be void. Supreme law of land. On one is above it. Distribution of power. Exercises sovereign power. Foreign relationship.
Dicey- it is an political agreement that how to exercise of sovereign power.
Lick - Constitution is a form of government.
Written or written body of rules which regulates the system of government.
Wikipedia - Constitutional law is a body of law which defines the role, powers, and structure of different entities within a state, namely, the executive, the parliament or legislature, and the judiciary; as well as the basic rights of citizens and the relationship between federal, state and local government.

Types
Written and unwritten, Flexible and Inflexible , Monarchial and Republican, Federal and unitary

Constitutionalism
Limited government or limitation on government against its arbitrary powers. Constitutionalism is a political philosophy based on the idea that government authority is derived from the people and should be limited by a constitution that clearly expresses what the government can and can't do. There can be present of constitution but cannot be present of constitutionalism. No democracy without constitutionalism.

Principles of constitutionalism
Rule of law, Good governance, Separation of Power, Pluralism, Liberty, Election, Human Rights, and Local Self-governance.  

Features of Good constitution
Clarity, Brevity, Flexibility, Independence of Judiciary, Clarity of fundamental rights, Constitutional remedy

Constitutional Development of Nepal
1.       Government of Nepal constitutional Act 2004 - proclaimed by Padma Shamsher, first written constitution, sovereign power lies on Shree 3 (Rana PM), Judiciary, fundamental rights, Central and local government, Bicameral Parliament.
2.       Interim Government of Nepal Act 2007 - Drafted with the help of Indian expert, asserted king's executive, legislative and judicial powers, proclaimed by king Tribhuvan, 6 times amended
3.       Royal constitution of Nepal 2015 - Proclaimed by king Mahendra, Sovereignty vested on King, drafted by commission headed by Bhagawati prashad sing.
4.       Constitution of Nepal 2019 - Establishes Panchayat system, banned to political partied, Unicameral Legislature, Amended for thrice.
5.       Constitutional of Kingdom of Nepal 2047 - Multi Party democracy, constitutional monarchy, independence of judicary, constitutinal bodies, sovereignty vested on people, human right,  directive prinicples, constitutional as a fundamental law of the land.
6.       Interim consititional of Nepal 2063 - enacted for short time period, secular (धर्म निरिपक्ष), sovereignty and state authority vested on people, Independence judicary, State responsibility, directive principles and policies, Emergency power, Republician (गणतान्त्र),Human rights, constitutional bodies, constitution as a fundamental law of the land.
7.       Constitution of Nepal 2072 - Repealed interim constitution 2063, adopted federalism/decentralized power. 3 level of state structure (Federal, State and local). Independence Judiciary (1 supreme court, 7 high court and one district court in each district), secular, constitutional bodies (no. -13- CIAA, Auditor General, PSC, Election commission, National Natural Resource and Fiscal Commission, National women commission, dalit, Inclusion (समावेशी), Madheshi, Tharu, Muslim commission.), can get citizenship from mothers by birth, all mother tongue is national language, cow as a national animal, citizenship by birth is necessary to be in chief executive, 25 members ministers cabinet, constitutional president elected from both two houses., 7 states, federal democratic republic state.

Fundamental Rights and Constitutional Remedy
Rights which is included in constitution, Individual right, private property, anyone can claim if against fundamental rights. Part 3 Article 16-45 includes fundamental rights and article 46 and 47 deals with its remedy and implementation parts.
Right to live, freedom, equality, communication, justice, victim of crime, against torture, against  preventive detention (निवारक नजरबन्द), against untouchability and discrimination, property, religious freedom, information, privacy, against exploitation (शोषण), clean environment, education, language and culture, employment, regarding labor, health care, food, housing, of women, of children, of dalits, of senior citizens, social justice, social security, of consumers, against exile, constitutional remedy (article 133 and 144)

Duties of citizens
1) Protect nationality, sovereignty and integrity, 2) abide by constitution and law, 3) compulsorily enlist when the state needs the service, 4) to protect and conserve public property.

State Responsibility
-          To maintain independence, sovereignty, territorial  integrity, autonomy of Nepal
-          Protect and promotion of fundamental rights and human rights
-          To observe the directive principles of the state
-          Gradually implementing the policies for development of nation

Directive Principles: - Political objective, Socio-cultural objective, Economic objective and International relation

State Policies:- (article 51, consists of 13 state policies)
1.       Policies regarding national unity and national security
2.       Political and governance system
3.       Social and cultural transformation
4.       Finance, industry and commerce
5.       Agriculture and land reform
6.       Development policy
7.       Conversation management and use of natural resources ( sustainable development, renewable energy, conversation)
8.       Basic needs of citizens (education, quality health, transportation)
9.       Labor and employment (creating employment, ending child labor, manage foreign employment)
10.   Social justice and inclusion (single women, senior citizens, rehabilitation, indigenous ethnic group, madheshi, backward region)
11.   Justice and punishment (competent, easy, impartial and accountable justice system)
12.   Tourism (friendly tourism industry)
13.   International relations (independent foreign policy considering national interest, Principal of Panchasheel, active to defend sovereignty, national independence and interest.

Fundamental Principle of Independence of Judiciary
According to Principle of Separation of Power, only Judiciary have power to interprets the law. Judiciary is a body or an organ of state which interprets the law enacted by legislature. Rule of law. Judiciary should be independence from other bodies. It is a place from which people can get justice. So it should be competent and free from other bodies. Free from any threat, self-benefit.

Contribution of Supreme court to interpretation of constitution and Law
Literal rule:- if there is clarity in law it doesn't needs any interpretation. But every law cannot be clear; there may be ambiguous, vague, unclear, difficulty of language from which it needs interpretation. Law should be interpreted which should be meaningful and should be guided by the thought of the legislature. Eg:- case filed by adv. Sapana pradhan malla vs Government of Nepal, law, justice and parliamentary ministry, mandamus, there is very short limitation on the chapter of rape no. 11 which had adverse effect on providing justice as according to the crime hence it should be increase. As it Supreme court had increase the limitation on that topic of the crime. 

Constitution amending process:- article 274(1) shall not amended that contravenes with self-rule of Nepal, sovereignty, territorial integrity and sovereignty vested in people. For other than non-amendable Bills can be produced in any house federal legislature, presented bill shall publish for the perusal of general public within 30 days, if case of subject matter of boundaries of province state such shall forward to provincial assembly within 30 days and either rejected or endorsed provincial assembly shall forward the information to federal legislature within 3 months. If the bill is rejected then it will be void or if passed then federal legislature should passed it by two-third majority. If it is also passed from federal legislature it will be sent to president for certification or approval.

Case:- Sajda Sapkota etal v. Government of Nepal, office of Prime minister and Minsters, Mandamus
Any person born in Nepal and his/her mother or father lives in Nepal and had got citizenship by birth, that person have right to get citizenship in the name of mother or father. In this case plaintiff father is whereabouts. So she goes to get citizenship certificate through the name of her mother but CDO office verbally rejected to provide citizenship since her father is whereabouts and there is no any marriage certificate. As in Interim constitution of Nepal 2063 article 8(3) if any person born in Nepal and at that time the father of mother is Nepali Citizen then the child shall be regarded as the citizen of Nepal by birth, Citizenship act 2063 section 3(1) if father or mother is Nepali citizen the born child can get citizenship by birth meeting following cirsumstances; 16years, by birth ,citizenship certificate of any member of family up to 3rd generation, certified born certificate by  clearing the relationship VDC or muncipality.                                                                                                                                                                                      

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