English - Support to Participatory Constitution Building in Nepal ...

Information Package on 

Constitutional Issues 

(Series One - Technical Paper)

Information Package on Constitutional Issues 

(Series One - Technical Paper) 

Published by 

Support of Participatory Constitution Building in Nepal (SPCBN), UNDP 

Centre for Constitutional Dialogue (CCD) 

First Edition: 2010 

Copyright © Centre for Constitutional Dialogue (CCD) - 2010. All rights reserved. Portions of 

this booklet may be reproduced and/or translated for non-commercial purpose, provided that 

CCD is acknowledged as the source of the material and is sent copies of such documents. 

Designed by: Himal Shrestha 

Printed by: Creative Press Pvt. Ltd. 

Kamalpokhari, Kathmandu 

FOR MORE INFORMATION, PLEASE CONTACT 

Centre for Constitutional Dialogue (CCD) 

3rd and 4th floor, Alfa Beta Complex, Buddhanagar, Kathmandu 

Telephone : 977-1- 4785998 

Fax : 977-1-4785487 

Email: info@ccd.org.np 

Website: www.ccd.org.np

About the Information Materials on 

Constitutional Issues 

The Support to Participatory Constitution Building in Nepal (SPCBN/UNDP) 

project is providing different kinds of support to Nepal's constitution building 

process. In addition to organizing constructive dialogues and discussions 

between CA members and other stakeholders on contentious issues with regard 

to constitution writing, the Centre for Constitutional Dialogue (CCD) provides 

simple, easily accessible and appropriate information on the constitution 

drafting process. The Centre has also been publishing research material on 

related topics with the objective of contributing to consensus building on 

contentious issues. 

The 'Information Materials on Constitutional Issues (Series One- 

Technical Paper)' booklet has been prepared with the objective of facilitating 

the Constituent Assembly to make decisions on some technical constitutional 

matters and also to provide information to stakeholders on such matters. The 

booklet also provides several options and discusses the strong and weak 

aspects of some of the technical aspects of the Constitution such as the 

preamble (of the Constitution), Definition of Nation and State, Constitutional 

Amendment, State of Emergency, the provision of Removing Difficulties etc. 

The booklet is expected to contribute to rational decision-making on such 

issues and to help in Constitution Building. 

In addition to this technical paper series, CCD is also planning to gradually 

publish a series of research materials on key Constitutional Issues. Such 

publications are expected to help CA members, representatives of the Civil 

Society, and other stakeholders to make the right decisions at the right time.

Contents 

1. Preambles ................................................................. 1 

2. Definition of the State and the Nation ........................ 7 

3. National Anthem, Flag and National Emblem ............. 11 

4. Sovereignty and Staet Authority ................................. 15 

5. Limits Set to Parliament on Substantive 

Amendments to the Constitution ................................ 18 

6. Unamendable Provisions ........................................... 21 

7. The Role of Provinces in Constitutional Amendments.. 23 

8. Referendums ............................................................ 27 

9. State of Emergency ................................................... 30 

10. Power to Remove Difficulties ..................................... 36 

11. Naming the Constitution ............................................ 41

1. PREAMBLES 

Background 

Nepal’s Interim Constitution of Nepal, 2063, 2007 begins with the words 

“We the people”. The tradition of putting a preamble in a Constitution 

probably began with the US Constitution which also begins with the words, 

‘We the People of the United States…’ Many other Constitutions in this way 

to emphasize that Constitutions are based on the will of the people, not of 

kings or gods or governments. By emphasizing people, the preamble also 

asserts that the Constitution is created for and by a political community. 

Nepal has its own tradition of incorporating preambles in its constitutions. 

The preamble sets the tone for the 1990 Constitution recognizing the 

‘constitutional monarchy’ as well as human rights; multiparty democracy and 

other values such as liberty, fraternity and the rule of law.. The constitution 

allowed amendments only if they would not go against the spirit of the 

preamble. 

However, in the aftermath of the Jana Andolan, the 1990 constitution was 

replaced by the current Interim Constitution which recognizes the historic 

struggles for democracy, and the need to restructure the state to resolve 

problems of marginalization on the basis of caste, class, region and gender. 

It reinforces the commitment to democratic norms and values, including multi 

party democracy, periodic elections and a secular, federal, democratic 

republic. It declares that the Interim constitution was created on the basis of 

a political consensus. 


1

Issue 1: Should the constitution have a preamble? 

OPTION STRENGTH CONCERN 

A. No 

preamble 

B. Have a 

preamble 

Where the Preamble has 

no legal value, why spend 

time over framing it? Go 

straight to the point of the 

substantive constitutional 

issues. 

Explains the purposes of 

the Constitutions, its vision 

and what it wants the 

country to achieve (India); 

May unify country by 

referring to struggles in the 

past, especially those 

leading to the new 

Constitution (Bolivia) May 

describe how the new 

Constitution was adopted 

and refer to the common 

values and hopes of the 

people and the orientation 

the people expect the state 

to follow (Nepal Interim 

Constitution); Helps 

identify the “spirit” of the 

Constitution (Indonesia) 

Acts as a guide to the 

Constitution and is seen as 

setting the tone of the 

constitution (Turkey); 

Legislature can refer to the 

preamble when enacting 

laws and courts can refer 

to the preamble when 

interpreting contentious 

An opportunity to highlight 

the spirit of the 

constitution, its core values 

and principles, intention of 

the drafter may be lost. 

The preamble must reflect 

the broadest social 

concerns in a neutral, yet 

inspiring way – if not it will 

be the lightening rod to 

provoke and alienate 

sections of the community. 

2 

Information Package on Constitutional Issues

issues in the constitution to 

see if the issues uphold the 

spirit of the preamble 

(Nepal 1990 Constitution). 

Can also be used to inspire 

and motivate the people 

and build consensus 

around core values. 

Commentary 

The style in which a preamble is written also partially defines its legal value 

or significance. While in some cases preambles contain basic principles upon 

which a Constitution is founded, others are limited to historical references 

and general ideas. Preambles can be useful devices to set the tone of the 

constitution and to unite and reassure people – if they are well drafted. The 

preambles in the US & Indian constitutions mean a lot to their societies; 

India amended its preamble to include secularism to ensure its commitment 

to it as it was becoming diluted through politics. 

Nepal has a tradition of incorporating preambles in its constitutions. It may 

consider using this historic opportunity and the mechanism of the preamble 

to integrate people in broad and inclusive terms, avoiding contentious issues 

that will divide people. It may also use this opportunity to: 

• Refer to common struggles for democracy through the Jana Andolan, 

• Reinforce the commitments that it has made through the Interim 

Constitution to democracy, social inclusion and social justice and outline 

broad principles of ethics and governance that the Constitution seeks 

to uphold. 

• Reinforce its commitments to secularism, republicanism, federalism 

and participatory government free of corruption as ways of ensuring 

social inclusion and social justice. 

• Find new symbols (e.g. unique natural environment) and new ways of 

celebrating it unity in diversity to inspire and integrate its people. 

• Refer to the participatory and inclusive way in which the Constitution 

was drafted and to the submissions thus received. 


3

Issue 2: If the constitution has a preamble what form should it 

take? 


A. Short - 

Clear 

Simple 

Language 

The advantage of having 

short, clear preambles is 

that the core values that it 

advances can be 

memorized even by 

children and in this way at 

least a part of the 

constitution is firmly in the 

minds of the people. 

(USA, India) 

More difficult to create 

consensus about a short 

preamble, might miss the 

opportunity to provide a 

buffer for various 

aspirations of particular 

groups. 

B. Long - 

Refer to 

past 

struggles, 

use 

emotional 

language? 

Long preambles may refer 

in detail to struggles in the 

past, the obstacles the 

country seeks to overcome 

and how it intends to chart 

the future (Papua New 

Guinea, Japan, Germany); 

Preamble that uses poetic 

and common language 

may be appealing to 

emotions (Bolivia), which 

may have a positive uniting 

effect. 

May be confusing, if it is 

long & detailed; every 

group expects be 

recognized and see its 

issues in the preamble; 

Lengthy preambles tend to 

adopt a legalistic style that 

might make it difficult for 

general readers to 

understand it. 

Commentary 

How a preamble is written is contextual and linked to the society in question. 

It has to resonate with the country and the community for it to have any value 

4 


Issue 3: Should the preamble be amendable? 


Preamble 

should be 

amendable 

Preamble 

should not 

be 

amendable 

It helps to update the 

constitution and reflect new 

& emerging values of the 

society 

Protects core values. 

If it can be amendable, can 

it be said that there are 

core values? Majorities 

can shift the constitution in 

ways that minorities feel 

insecure. 

If the values reflected in the 

preamble are not in 

keeping with society’s 

values it make the 

constitution too rigid. 

Commentary 

• The 1990 constitution of Nepal declared that constitutional amendments 

affecting the “spirit of the preamble” (which included recognition of 

the constitutional monarchy) were not to be allowed. Yet the 1990 

constitution was discarded in its totality after the Jana Andolan when 

the people rejected the monarchy. 

• The Preamble to the Indian constitution was amended by the 42nd 

Amendment and the words “Secular” and “Socialist” was added to 

the preamble. The reason for inserting these words was to spell out the 

high ideas of socialism, secularism and the integrity of the nation because 

these institutions were subjected to stresses and strains and political 

interests were undermining them. Some say that it should be amended 

again to remove “socialism” as India has adopted market oriented 

policies – but this has not happened. 

• Preamble of Bangladesh Constitution, by Martial law proclamation in 

1978, could only be amended by a referendum. 

• The Constitution of Turkey declares that Turkey is a ‘secular’ state and 

provides that this provision is not amendable. 


5

Issue 4: When should the Preamble be written? 


At the 

beginning of 

the drafting 

process 

At the end 

of the 

drafting 

process 

Set the tone and values 

that the constitution will 

have to reflect. 

It is possible to synthesize 

the values of the 

constitution into the 

preamble if it is written at 

the end of the process; 

unites drafter around the 

core values 

Drafters can get “stuck” 

settling on what those 

values are, the lack of 

agreement on this can stall 

the whole drafting process 

It does not guide the 

drafters and ensure that 

certain values and spirit 

pervade the constitution. 

Commentary 

A noteworthy fact about the Indian constitution is that it was the last of all to 

be framed. 

6 


2. DEFINITION OF THE STATE 

AND THE NATION 

Background 

With some exceptions, the definition of the State gets its place in most 

constitutions. Some constitutions do not define the nation at all. Some 

constitutions have separate definitions of the nation/nations as well as the 

state. Constitutions generally also define the territory of the state and many 

include provisions on the acquisition of new territory. Many federal 

constitutions mention that the territory of the state is comprised of the territory 

of its constituent units, which are generally listed by name in the Constitution. 

Among the federal constitutions most constitutions define themselves as federal 

states, but not necessarily in the name of the state. Some countries with federal 

characteristics choose not to identify themselves as federal states. Many 

constitutions also define some important principles, values and/or binding 

elements. 

Issue 1: Should the constitution contain a definition of the 

State? 


A. Yes Consistent with the 

practice in Nepal and other 

countries 

None 

B. No Shorter Absence of clearly defined 

basic principles 

Commentary 

Some countries have separate provisions related to the official names and 

some name the country in the part of Basic Principles of the constitution. 


7

• Nepal: The Interim Constitution defines Nepal as an “independent, 

indivisible, sovereign, secular, inclusive, federal, democratic republican 

State”. Under definitions (Art 165) it states that “Nepal” means the 

State of Nepal. 

• India: “India, that is Bharat, shall be a union of states”. In its preamble, 

the constitution defines the state as a sovereign socialist secular 

democratic republic to secure to all its citizens justice, social, economic 

and political; liberty of thought, expression, belief, faith and worship; 

equality of status and of opportunity; and to promote among them all 

fraternity assuring the dignity of the individual and the unity and integrity 

of the nation; 

• France: “France shall be an indivisible, secular, democratic and social 

Republic. It shall ensure the equality of all citizens before the law, without 

distinction of origin, race or religion. It shall respect all beliefs. It shall 

be organized on a decentralized basis.” 

• Belgium is a federal State composed of Communities and Regions. 

Belgium comprises three Communities: the Flemish Community, the 

French Community and the German-speaking Community. Belgium 

comprises three Regions: the Flemish Region, the Walloon Region and 

the Brussels Region. Belgium comprises four linguistic regions: the 

Dutch-speaking region, the French-speaking region, the bilingual region 

of Brussels-Capital and the German-speaking region. 

• Iraq : “The Republic of Iraq is a single federal, independent and fully 

sovereign state in which the system of government is republican, 

representative, parliamentary, and democratic, and this Constitution 

is a guarantor of the unity of Iraq.” 

8 


Issue 2: Should the constitution contain a separate definition 

of the Nation? 


Yes • It can be an effective 

way of addressing unity 

in diversity 

• Consistent with the 

practice in Nepal. 

Identifying the binding 

elements might be 

challenging. Identifying all 

ethnic groups in a diverse 

country as one nation may 

alienate some, especially if 

they claim to be nations in 

themselves. 

No 

Keeps things simple and 

saves unnecessary 

discussion to achieve 

consensus among diverse 

views 

Lacks one effective way of 

promoting unity in 

diversity. 

Commentary 

• Nepal: The Interim Constitution states that all the Nepali people 

collectively constitute the nation, having multi-ethnic, multi-lingual, 

multi-religious characteristics with common aspirations, and being 

committed to and united by a bond of allegiance to national 

independence, integrity, national interest and prosperity of Nepal. 

• India’s Constitution does not have a separate clause on defining the 

nation. From its overall use of the term nation, it is clear, however, that 

India’s Constitution is based on the concept of one single nation, albeit 

in recognition of the ethnic and linguistic diversity of its population. 

• Spain: The Constitution is based on the indissoluble unity of the 

Spanish Nation, the common and indivisible homeland of all Spaniards; 

it recognizes and guarantees the right to self-government of the 

nationalities and regions of which it is composed and the solidarity 

among them all. 


9

Issue 3: In the context of devising a federal structure should 

the definition include the term “federal”? 


Yes • It will assure those 

people and communities 

that demanded and 

supported federal ism. 

The term ‘federal’ may 

prove to be divisive and 

controversial 

• This is the general 

practice of most federal 

countries to identify 

themselves as federal. 

No • Some people fear that 

federal system might 

disintegrate the country. 

So having federal 

system in substance 

without identifying the 

country as federal might 

help achieving 

consensus. 

It might be difficult to 

satisfy especially the people 

who are in favor of ethnic 

federalism. 

Commentary 

Most federal countries mention the federal form in the definition (or even the 

name) of the country. However there are some countries which are federal 

in substance but do not constitutionally declare themselves as federal ones – 

i.e. India, South Africa, Spain and United States of America. This is related 

to the particular context when the constitution was being formed in each 

country. Despite having a very intense debate between federalists and antifederalists, 

the framers of the American constitution chose to identify the 

country as the United States. Similarly, due to the division leading to the 

creation of Pakistan, the framers of the Indian constitution decided to identify 

the country as a Union. 

10 


3. NATIONAL ANTHEM, FLAG AND 

NATIONAL EMBLEM 

Background 

The national anthem, the flag and the national emblem are important in the 

national life of almost all countries including Nepal. Such symbols are either 

determined by the constitution itself or as specified by the law. It entirely 

depends on Nepali people to decide on the national anthem, flag and other 

symbols that are significant in their national life but in doing so they should 

address their diversity, their commitment to live together, as equal and united 

people. 

Issue 1: Should a constitution have a provision on national 

anthem, flag, national colour, flower, animal etc? 


Yes 

Creates unifying symbols; 

makes it more difficult to 

change 

It might delay the process 

to get the common 

consensus. 

No Might speed up the process Not having any national 

symbols might contribute 

to weakening a sense of 

national identity. Not 

defining these in the 

constitution might leave it 

up to the political majority 

of the day to change these 

symbols. 


11

Commentary 

While symbols can be unifying symbols that foster national identity, they can 

also be divisive and contested. The 1990 Constitution specified the national 

flag, anthem and other symbols of Nepal. The Interim Constitution also 

mentions the national flag in detail but leaves the decision on the national 

anthem to be determined by the Government of Nepal, which duly introduced 

a new tune and text subsequently. Nevertheless, the national flower, bird, 

colour and national animal “cow” remained in the Interim Constitution (Art. 

7.2.). 

• Most Constitutions define basic state symbols such as a flag in the 

Constitution. Some countries also adopt additional symbols, such as 

plants and animals, colours, etc. whereby that is often left to specialized 

legislation or to the government to determine. 

• Bolivia’s Constitution mentions two flowers, one for the highlands 

(kantuta) and one for the lowlands (patuhu), which share the same 

colours, also represented in the national flag (red, yellow, green). 

Issue 2 : Who should decide the national anthem, flag, and 

other symbols? 


A. Specify 

in the 

Constitution 

itself. 

It will validate the struggles 

of the people in the 

constitution itself. 

It might take longer time to 

come to the common 

consensus. 

B. To be 

determined 

by the 

government 

or by law. 

It will fasten the process of 

constitution writing 

process. 

It might not address the 

people’s aspirations, hence 

made it binding in the 

constitution. 

Commentary 

There is no standard practice on whether the national anthem and other 

symbols are to be mentioned in the constitution itself or decide by the 

government. 

12 


• Ethiopia: The national anthem could be determined by the law but, it 

shall reflect the ideals of Constitution, the Commitment of Peoples to 

live together in a democratic order and of their common destiny. 

• South Africa: To be determined by the President by proclamation. 

• Sri Lanka: The national anthem and flag are described in the 

Constitution. 

Issue 3: What should the national anthem, flag, colour, bird 

and flower and other symbols symbolize if there should be 

any? 


A. Adopt 

the same 

national 

anthem, 

flag, colour, 

bird and 

flower as it 

is in the 

Interim 


B. Mention 

& describe 

national 

anthem and 

the flag 

only. 

The national anthem, flag, 

and emblems such as the 

bird and flower are a part 

of Nepal’s history, people 

are familiar with it. 

It prevents the constitution 

making from becoming 

bogged down in divisive 

details 

It might be difficult to get 

consensus on the anthem 

and national colour as it 

was linked to the previous 

monarchical regime, the 

animal (cow) is seen as 

symbolizing Hinduism and 

contrary to the secular 

ideals of the new Nepal. 

Questions may be raised 

why national animal, bird, 

flower and colour is not 

mentioned. And there are 

chances of movement by 

Hindu followers. 

C. Details 

of the 

anthem and 

flag to be 

outlined by 

law 

It prevents the constitution 

making from becoming 

bogged down in divisive 

details 

People will be concerned 

that these special symbols 

can be easily changed 


13

Commentary 

National anthem and other symbols should reflect the aspiration of the people 

and the commitment to live together with equality and unity. If they relate 

only to one community they become symbols of division. While it is common 

for constitutions to refer to a flag and constitution fewer countries have 

national animals, colours and flowers. Some countries devote a lot of effort 

to find new symbols if they are turning their backs on a reviled past (South 

Africa after Apartheid, former socialist bloc countries after the fall of 

communism). Members of federations can also have separate flags and 

emblems and can determine the details through their respective legislatures. 

• Venezuela: The symbols used in the flags and the anthem signifies 

“Gloria al bravo pueblo” (Glory to the Brave People), and the coat of 

arms of the Republic are symbols of the native land of Venezuela. 

• Ethiopia: The national emblem on the flag of Ethiopian flag reflect 

the hope of the Nations, Nationalities, Peoples as well as religious 

communities of Ethiopia to live together in equality and unity. And the 

national anthem “shall reflect the ideals of Constitution, the Commitment 

of Peoples to live together in a democratic order and of their common 

destiny” (to be determined by law). 

• France: “The maxim of the Republic shall be “Liberty, Equality, 

Fraternity”. The principle of the Republic shall be: government of the 

people, by the people and for the people. 

14 


4. SOVEREIGNTY AND STATE 

AUTHORITY 

Background 

Most constitutions address the issue of sovereignty and state authority. They 

usually recognize that it is the people who are sovereign and that the authority 

of the state comes from them. Democracies are defined by the concept that 

sovereignty and state authority emanate from the people. To provide for 

continuing control by the people, democratic constitutions provide for free 

elections, equal rights to vote for all citizens, effective protection of human 

rights and freedoms, accountable government and the rule of law. 

Issue 1: Should the Constitution contain a declaration that 

sovereignty comes from the people and that authority is 

exercised on its behalf? 


A. There 

should be 

such a 

declaration 

B. There 

could be a 

statement 

that 

sovereignty 

emanates 

from 

someone 

other than 

the people 

of Nepal 

This is consistent with the 

practice in Nepal and with 

international norms. 

Might speed up the process 

None 

This would reduce the 

democratic quality of the 

new state and would 

probably alienate large 

sections of the population 


15

Commentary 

Apart from statement that the Constitution and state authority derive from the 

will of the sovereign people, Constitutions also need to provide for substantive 

provisions to flesh out this ideal. Examples from around the world have shown 

that a mere statement of popular sovereignty and democratic state authority 

may not be sufficient.. Provisions on periodic and free elections, based on 

equal franchise, the effective protection of human rights and freedoms, 

participatory and accountable government and the rule of law (exercise of 

state authority only on the basis of law which can ultimately be traced back 

to a popular mandate) must also be included in constitutional frameworks to 

give substance to the basic concept that sovereignty comes from the people. 

• Nepal: Previous constitutions have recognized the principle that 

sovereignty comes from the people (see Interim Constitution (2007 CE), 

Art 2 and 1990 Constitution, Art 3. However, in the case of the 1990 

Constitution, its preamble made it clear that the ultimate sovereignty 

did not lie with the people but with the monarch). 

• South Africa: “We, the people of South Africa […] through our freely 

elected representatives, adopt this Constitution as the supreme law of 

the Republic.” 

• China: “The People’s Republic of China is a socialist state under the 

people’s democratic dictatorship led by the working class and based 

on the alliance of workers and peasants.” 

• India: “We, the people of India, having solemnly resolved to constitute 

India into a Sovereign Socialist Secular Democratic Republic…” 

• The United States of America: “We the people of the United 

States …do ordain and establish this Constitution for the United States 

of America.” 

• Japan: “We, the Japanese people…do proclaim that sovereign power 

resides with the people and do firmly establish this Constitution. 

Government is a sacred trust of the people, the authority for which 

comes from the people….” 

• France: “The Government of the Republic [...] has proposed, The 

French people have adopted, and The President of the Republic hereby 

promulgates the Constitutional statute.” Article 3 of the Constitution 

16 


states that “National sovereignty belongs to the people, who shall exercise 

it through their representatives and by means of referendum. […].” 

• Austria: “Austria is a democratic republic. Its law emanates from the 

people.” 

• Russian Federation: “We, the multinational people of the Russian 

Federation, […] hereby approve the Constitution of the Russian 

Federation. […] Article 3 states that “The multinational people of the 

Russian Federation shall be the vehicle of sovereignty and the only 

source of power in the Russian Federation. The people of the Russian 

Federation shall exercise their power directly, and also through organs 

of state power and local self-government. The referendum and free 

elections shall be the supreme direct manifestation of the power of the 

people.” 

• South Africa: “We, the people of South Africa […] through our freely 

elected representatives, adopt this Constitution as the supreme law of 

the Republic.” Its Article 1 also states that “The Republic of South 

Africa is one, sovereign, democratic state founded on the following 

values: […] d. Universal adult suffrage, a national common voters roll, 

regular elections and a multi-party system of democratic government, 

to ensure accountability, responsiveness and openness.” 

• Ethiopia: “Sovereignty resides in the nations, nationalities and peoples 

of Ethiopia. This Constitution is an expression of their sovereignty. 

Sovereignty shall be expressed through the peoples’ representatives, 

elected by them in accordance with this Constitution, and through their 

direct democratic participation.” 

• The expression of popular sovereignty through constitutions is therefore 

an international standard that is also reflected in international law, in 

particular international human rights law. The UN Charter (“we, the 

peoples of the United Nations”), the UN Declaration on Human Rights 

and the Human Rights Covenants (“The will of the people, expressed 

in periodic and genuine elections with universal and equal suffrage 

shall be the basis of the authority of government”) and others include 

references to popular sovereignty (“right to freely determine their political 

status”), self-determination and the “right to take part in the government 

of his country directly or through freely chosen representatives”. 


17

5. LIMITS SET TO PARLIAMENT 

ON SUBSTANTIVE AMENDMENTS 

TO THE CONSTITUTION 

Background 

Every Constitution includes provisions on its own amendment. Usually, there 

is a general amending formula, which applies to most if not all amendments. 

This general formula describes who can initiate the amendment and the 

process for approving it. However, there are examples of constitutional 

provisions that may not be amended at all (see Note No.6 on “Unamendable 

subjects”). While federal constitutions generally provide for participation of 

provinces in constitutional amendments in particular if they affect their powers 

in substance (see Note 7 on the “Role of Provinces in Constitutional 

Amendments”). There are also many examples of amendments that can 

only be proposed by a particular actor, or that must be approved by some 

special process, such as a ‘special majority’ or a referendum (see, for example, 

the special role for legislatures of states or provinces in amendments to federal 

constitutions). Generally, the more fundamental the proposed amendment 

is, the more demanding is the amending formula. Some countries provide 

that an amendment which alters basic structures or principles can only be 

passed by a referendum. 

18 


Issue 1: Should the Constitution set limits to Parliament 

regarding substantive amendments to the Constitution 


A. Yes Strengthens the stability of 

the constitutional order 

Adjusts the difficulty of the 

process to the importance 

of the subject matter 

Different rules leads to a 

complex amendment 

process that can be difficult 

to understand. 

Rules making constitutional 

amendments very difficult 

may lead to deadlock 

B. No Flexibility Creates the risk of frequent 

changes to the 

Constitution, including 

changes to its most 

fundamental character. 

Commentary 

• Nepal: In the Interim Constitution, there is no restriction of on changing 

the most basic parameters of the Constitution, such as the principles of 

federalism, secularism, democracy or republicanism. The 1990 

Constitution (in its Article 116 Amendment of the Constitution) had 

provided for a more restrictive approach. Bills to amend or repeal any 

Article of that Constitution could be introduced in either House of 

Parliament with the exception of those that would aim at changing the 

amending formula itself and those that would “prejudice the spirit of 

the Preamble of this Constitution”. 

• Switzerland: In Switzerland, constitutional amendments must be put 

to the people and the Cantons in a referendum and must be approved 

by a majority of people overall and a majority of the people in a majority 

of Cantons. In Switzerland, however, the popular initiative of 

constitutional amendment is permitted. The people may initiate a partial 

or complete revision of the Constitution by collecting 100,000 signatures. 

If the Parliament disagrees with a popular initiative, it may submit its 

own counter-proposal to a referendum at the same time as the popular 


19

initiative. It cannot, however, prevent the people from voting on the 

popular initiative. In practice, the success rate of constitutional 

amendments proposed by the Swiss Parliament is relatively high 

(around two-thirds), whereas most popularly initiated referenda fail. 

• Austria: Constitutional laws or constitutional provisions contained 

in simple laws can be passed by the parliament only in the presence of 

at least half the members and by a two thirds majority of the votes cast; 

they shall be explicitly specified as such (“constitutional law”, 

“constitutional provision”). Constitutional laws or constitutional 

provisions contained in simple laws restricting the competence of the 

provinces require furthermore the approval of the Federal Council which 

must be imparted in the presence of at least half the members and by a 

two thirds majority of the votes cast. Any total revision of the Federal 

Constitution shall be submitted to a referendum by the entire nation, 

whereas any partial revision requires this only if one third of the 

members of the National Council or the Federal Council so demands. 

• Spain: The total revision of the Spanish Constitution, or the revision 

of certain parts of it (such as those concerning fundamental rights and 

freedoms and the Crown) require two-thirds majorities in each House, 

the dissolution of the Parliament, the passage of the Bill by two-thirds 

majorities in the newly elected Houses and a compulsory referendum. 

• Canada: Canada has 4 different processes for amending its 

Constitution. The Parliament of Canada and the Legislature of each 

province must approve an amendment affecting the ‘role of the Queen’ 

(which is fundamental to Canada’s form of government), the formula 

which determines the number of members of Parliament from each 

province, the use of English and French, the number of representatives 

from each region on the Supreme Court and the amending formula 

itself. “Fundamental rights and freedoms” are amendable under the 

general formula and no special rules apply to them. 

20 


6. UNAMENDABLE PROVISIONS 

Background 

Some constitutions provide that some of their provisions may not be amended. 

Such provisions make it impossible for future generations to alter the basic 

principles of the Constitution. 

Issue 1: Are there some provisions that should not be 

amendable? 


Yes 

Makes it more difficult to 

change ‘fundamental’ 

provisions 

There may be no 

agreement over what is 

fundamental. 

Limits the democratic 

freedom of future 

generations. 

No 

Recognizes the sovereignty 

of the people, who can 

change their constitution as 

they wish. 

Future political majorities 

might squander some of 

the achievements made by 

constitutional drafters. 

Commentary 

Although it is generally assumed today that constitutions are amendable, such 

was not always the case. At one time, most constitutions failed to include any 

provision for their amendment. In fact, it has been said that the idea of 

incorporating within a constitution a provision for its own amendment was 

largely an invention of the US Constitutional Convention in Philadelphia. Article 

Five of the United States Constitution establishes the procedures by which 

future alterations to the Constitution are to be made. 


21

• Nepal: The 1990 constitution of Nepal declared that constitutional 

amendments affecting the “spirit of the preamble” (which included 

recognition of the constitutional monarchy) were not to be allowed. Yet 

the 1990 constitution was discarded in its totality after the Jana Andolan 

when the people rejected the monarchy. The Interim Constitution of 

2007 does mention any unamendable subjects. 

• United States: The provision for equal representation of the States 

in the Senate is not amendable. By implication, the amending formula 

itself is said not to be subject to amendment. 

• Germany: Article 79 of the German Basic Law places limitations on 

amendments, namely: “amendments of this Constitution affecting the 

division of the Federation into States [Länder], the participation on 

principle of the States [Länder] in legislation, or the basic principles 

laid down in Articles 1 [basic rights] and 20 [federalism] are 

inadmissible.” 

• India: Article 368 of the Indian Constitution (authorizing amendments) 

allows the Parliament to amend any part of the constitution, but “does 

not enable Parliament to alter its basic structure or the framework of 

the Constitution.” The Supreme Court of India has also adopted the 

concept of unconstitutional constitutional amendment by articulating 

that there is a “basic structure” to the Indian Constitution. If an otherwise 

permitted amendment were to violate this basic structure, the Court 

can invalidate it. 

• Turkey: the provisions making the state a Republic (Art 1), making it 

democratic, secular and social, and declaring its language to be Turkish, 

settling its flag and its capitol, are all unamendable. 

• Namibia: Art. 131 of the Constitution prohibits the repeal or 

amendment of any constitutional provision in so far as this diminishes 

or detracts from the fundamental rights and freedoms contained in the 


22 


7. THE ROLE OF PROVINCES IN 

CONSTITUTIONAL AMENDMENTS 

Background 

Its amending procedure is the key to any constitution. Federal states have 

procedures for amending the federal constitution that reflect the federal 

character of the state and the limited sovereignty of the provinces. Sometimes, 

the amending procedures give the provinces a role in all amendments – but 

sometimes not. Amendment procedures usually provide that the powers of 

provinces cannot be changed without involving them in the process, either 

through their legislatures or directly through their people in a referendum. 

Another option is the consent of a second chamber that represents the interest 

of the provinces. 

Issue 1: Should provinces have a role in all amendments to 

the national constitution? 


A. Yes Enhances the role of 

provinces. 

Ensures widespread 

support for amendments. 

Makes the constitution 

more difficult to amend. In 

such cases, alternatives to 

formal constitutional 

change are frequently 

sought to adapt federations 

to changing circumstances. 


23

B. No, their 

role should 

be restricted 

to situations 

where the 

amendment 

directly 

affects the 

powers of 

the province 

Clearly separates the 

national and the provincial 

spheres. 

Allows for easier 

amendment to the 

national constitution. 

Ignores the general interest 

that provinces have in the 

organization of the entire 

state 

May leave the province 

out of certain ‘gray areas’ 

that affect it – for example, 

the judiciary 

Commentary 

There is no universal practice. It is common practice for provinces to have a 

role in the amendment of the national constitution. This is more common in 

‘coming together’ federations than in formerly unitary states. In most federal 

countries, the constituent units participate in federal legislation through a 

second chamber of parliament which is formed by representatives of the 

provinces. Some federal constitutions also give no specific role to constituent 

units in Constitutional changes that do not affect them. 

• United States: all amendments require the approval of 2/3 of the 

members in both national houses, plus ¾ of the states. 

• Canada: the general formula requires approval of both houses, plus 

the approval of 7 provinces having 50% of the population (the sevenfifty 

rule) for all amendments. 

• Spain: allows strong powers to its autonomous communities; however, 

they have no role in amending the constitution which is amended by 

special majority in both houses, with the possibility that 1/10 of the 

members of the lower house may call for referendum. 

• India: generally, the constitution may be amended by a special majority 

of Parliament without the consent of the states. Because of the structure 

of political parties in India, such an amendment would be difficult in 

practice without substantial support at the state level. 

• Australia requires double majorities of those voting in a national 

referendum on changes to the federal constitution: a national majority 

plus majorities in four of the six states. 

24 


Issue 2: Should provinces have a special role in amendments 

that affect them? 


Yes 

Recognizes the limited 

sovereignty of provinces 

Makes the constitution 

more difficult to amend. In 

such cases, alternatives to 

formal constitutional 

change are frequently 

sought to adapt federations 

to changing circumstances. 

No 

Simplifies governance and 

speeds up constitutional 

amendments 

This would effectively do 

away with one of the 

essential features of a 

federal system. Such a 

system would be federal 

only in name. 

Commentary 

Federations vary greatly in how much consent is necessary to change the 

powers of all constituent units: this can range from not much more than a 

majority to virtual unanimity. Federal constitutions can afford a veto-role to 

the constituent units in question. Such veto rules tend to be restricted to the 

existence of the province as such, changes of boundaries and its possible 

merger into another. 

• South Africa: special majorities in the lower house plus the consent 

of 6 of 9 provinces for amendments affecting provinces. 

• Canada: any province may ‘opt out’ of an amendment affecting its 

powers and has in effect a veto over amendments concerning the office 

of the Queen, the use of French or English in the province and the 

composition of the Supreme Court of Canada. Amendments that affect 

some but not all provinces, including boundaries or the use of French 

or English within the province, must be approved by the province or 

provinces affected. 


25

• India: one-half of state legislatures must ratify by special majority 

any change to the powers of the Union, the judiciary, the Panchayats 

or certain other matters. 

• Austria: “Constitutional laws […] restricting the competence of the 

Länder [i.e. provinces] in legislation or execution require the approval 

of the Federal Council [made up of Province representatives] which 

must be imparted in the presence of at least half the members and by a 

two thirds majority of the votes cast.” Furthermore, the provisions of 

the articles regulating the composition of the Federal Council “can only 

be amended if in the Federal Council the majority of the representatives 

from at least four Länder has approved the amendment.” 

26 


8. REFERENDUMS 

Background 

In a referendum, citizens vote on some important public issue. Referendums 

can be initiated in many ways and take many forms, but most democracies 

have at some time held referendums. In a few countries, referendums have 

become a regular part of Government (e.g. Switzerland). 

Referendums may have binding legal effect, or they may simply give the advice 

of the people to the government. In some countries, a popular “Yes” may be 

required before a law or constitutional change is put into effect. 

Examples from around the world show that referendums can help defuse 

tensions that ordinary routines of politics seem inadequate to manage. That 

is however only the case if referendums follow the same strict standards and 

procedures as genuine democratic elections. 

Issue 1: Should there be a referendum or direct democracy 

procedure in the Constitution? 


A. Yes Ensures a strong role for 

the people in changes to 

the Constitution 

May be destabilizing if 

people are allowed to 

initiate a referendum. 

Where all constitutional 

amendments require a 

referendum, amendments 

are difficult and costly to 

achieve. People lack the 

information or analytical 

skills to make an informed 

decision. 


27

B. No Prevents populist decisions 

by majorities which may 

harm minority interests or 

the long term interests of 

the nation. 

Constitution and its 

amendments may lose 

popular legitimacy if they 

are perceived as not 

carried by a wide popular 

backing. 

Commentary 

There is no general rule whether democratic constitutions require referendums 

for constitutional amendments. Some countries require popular endorsement 

of amendments that constitute a total revision of the Constitution, and some 

have specific rules related amendments to the distribution of powers in a 

federal structure. 

• Nepal: There is no provision for referendum in the Interim Constitution, 

other than as a possibility mentioned for approval of the new 

Constitution. Art 157: “[…] if the Constituent Assembly decides by a 

two-thirds majority of the total number of existing members that it is 

necessary to make a decision on any matters of national importance, a 

decision may be reached on such matters through referendum.” 

• Switzerland: referendums are a strong feature of Swiss constitutional 

history and current procedure. Any revision to the national constitution 

must be submitted to a referendum. About half of all referendums 

worldwide have been held in Switzerland. 

• Australia: All amendments must be passed in both a national 

referendum and in state referendums; in the state referendums, there 

must be approval by a majority of voters in a majority of states. 

Referendums have been held frequently in the past. 

• Europe: In Western Europe, The Constitutions of Austria, Denmark, 

Finland, France, Germany, Greece, Iceland, Ireland, Italy, Portugal, 

Spain, Sweden and Switzerland mention referendums in their 

Constitutions. Referendums are required for Constitutional amendments 

in Austria and Spain (for total revision), France (as one form of 

amending procedure), Ireland, and Switzerland. In Eastern Europe and 

the former Soviet Union, referendums were a frequently used tool in 

the transition to democracy in the 1990s and in the establishment of 

new constitutional orders. In former Yugoslavia, referendums in the 

28 


ethnic Republics led to the dissolution of the federal state and the 

outbreak of inter-ethnic wars in the 1990s. 

• In the United States, voters in all States but Delaware must formally 

approve changes in the state constitution, and voters in some States 

sometimes cast ballots on proposed amendments to the US Constitution. 

State legislatures often place legislative referendums on the ballot. 

• Asia and Africa: Referendums for constitutional amendments have 

been used in Algeria, Congo, Egypt, Ghana, Liberia, Morocco, Senegal, 

Sierra Leone, South Africa, Syria, Zambia, Bangladesh, Philippines, 

South Korea, and others. Also Latin America and other regions have 

seen frequent referendums on constitutional changes. 


29

9. STATE OF EMERGENCY 

Background 

Most constitutions contain provisions which governments can use to declare 

a State of Emergency when the defense or security of the state is threatened 

due to natural disaster, civil disorder or war. During a State of Emergency the 

government may suspend all or parts of the constitution, aspects of civil 

liberties and certain normal functions and processes of government. In federal 

countries the state of emergency has been used by the federal government to 

administer the provinces directly. 

Issue 1: What criteria should exist to define state of 

emergency ? 


A. No clear 

criteria to 

define State 

of 

Emergency 

B. Clear 

criteria 

needed to 

define State 

of 

Emergency 

Government has flexibility 

to intervene if it feels that 

there is an imminent threat 

to the state and to 

governability 

Government will not be 

able to suspend the 

constitution or rights 

arbitrarily 

Governments could abuse 

their power and declare a 

State of Emergency without 

real cause; People’s rights 

could be suspended 

arbitrarily. 

Government may not be 

able to respond rapidly and 

sufficiently forceful to 

threats to public security. 

30 


Commentary 

• Nepal: The Interim Constitution (Art. 143) includes a provision for 

the exercise of authority in case of a grave emergency caused by war, 

external aggression, armed rebellion or extreme economic disarray. In 

such a case, the President may, on the recommendation of the Council 

of Ministers, declare a State of Emergency to be enforced in Nepal or 

any specified part thereof by Proclamation or Order. The President 

can also revoke that decision at any time. 

• South Africa: limits the declaration of a state of emergency to 

situations involving a state of war, an immediate threat to the 

independence and unity of the state, a severe natural disaster, and 

similar events. 

• India: limits the declaration of state of emergency to the situation 

involving grave threats to the nation from internal and external sources 

or from financial situations of crisis caused by war, external aggression 

or armed rebellion in the whole of India or a part of its territory. 

• International law context: The specific measures derogating from 

an international treaty need to be officially notified to the competent 

international organization and other States parties. Derogation is 

permissible only to the extent strictly required by the situation. The 

derogation is lifted as soon as the situation permits. 

Issue 2: Protection and restriction of basic rights during state 

of emergency 


A. Suspension 

of all 

rights or 

wide margin 

of discretion 

to executive 

power 

Gives the government all 

required powers to respond 

strongly to the state of 

emergency; 

Risk of violation of people’s 

rights and violation of 

article 4 of ICCPR 1966; 

disproportionate use of 

force, limitation of rights 

might lead to further 

destabilization. 


31

B. Protection 

of 

fundamental 

rights 

Ensures that people’s basic 

fundamental rights can 

not be threatened even in 

times of emergency. Right 

to life and to a fair trial, 

freedom from torture, nondiscrimination 

are basic 

rights that cannot be taken 

away even in an 

emergency. 

Identification of 

fundamental rights that 

cannot be taken away 

might be contested; 

Commentary 

In addition to specifying which rights may be suspended during a state of 

emergency, many constitutions also specify which rights may not be 

suspended. The UN Covenant on Civil and Political Rights states that “in 

time of public emergency which threatens the life of the nation and the 

existence of which is officially proclaimed, the States Parties may take measures 

derogating from their obligations to the extent strictly required by the exigencies 

of the situation, provided that such measures are not inconsistent with their 

other obligations under international law and do not involve discrimination 

solely on the ground of race, colour, sex, language, religion or social origin.” 

A number of fundamental rights cannot be suspended. States must also 

immediately inform the other States Parties through the UN Secretary-General. 

• Nepal: During the State of Emergency, a number of fundamental rights 

may be suspended, with the exception of the following: right to live 

with dignity, ban on capital punishment, right to personal liberty, 

freedom to form a political party, unions and associations, right to 

equality, right against untouchability and racial discrimination, right 

for broadcasters and print media not be closed because of the content 

of its materials, rights regarding the environment and health, education 

and cultural rights, rights regarding employment and social security, 

rights of women, right to social justice, rights of children, right to 

religion, rights regarding justice, rights against torture, right against 

exploitation, right regarding labour, right against exile and the right to 

constitutional remedy related to Article 32 as well as the right to Habeas 

Corpus. 

32 


• United States: permits certain fundamental rights to be suspended 

only in the case of rebellion, invasion, or when needed to ensure the 

public safety. 

• Switzerland: requires that limitations to fundamental rights be 

expressly provided for in a statute, except in cases of clear and present 

danger. 

• Spain: permits the suspension of some provisions for personal liberty, 

freedom from search and seizure, freedom of movement, freedom of 

speech, freedom of assembly, and freedom to strike during states of 

emergency, but leaves other fundamental rights intact & such limitation 

of fundamental rights must be justified by public interest, be 

proportional, and maintain the essence of the fundamental rights. 

• Albania: prohibits all amendments to the constitution. 

• Mongolia: limits allowable restrictions to those that do not pertain to 

fundamental rights such as the right to life, prohibition of torture, cruel 

or degrading treatment or punishment, or the legal definitions of penal 

offenses and punishments. 

• South Africa: provides example of table of non derogable rights in 

which Equality, Human dignity, Life, Freedom and Security of the 

person, Slavery, Servitude and forced labour, Children, Arrested, 

detained and accused persons cannot be suspended during state of 

emergency. 

• Mauritania: prohibits the dissolution or suspension of any state organs 

or their powers under the constitution during a state of emergency. 


33

Issue 3: Authority to declare state of emergency 


A. Head of 

State 

B. Head of 

Government 

C. Parliament 

/ 

legislature 

If head of State & head of 

government are not the 

same, there is some check 

on abuse as they will have 

to consult with each other. 

A quick response to the 

situation is possible. 

Easier to handle the 

situation 

Debate & discussion 

If head of the state and 

head of the government are 

the same person then more 

chances to misuse the 

power. 

High risk of misuse of 

power 

Political issues may 

interfere with the need to 

react quickly and decisively 

in an emergency 

Commentary 

• In Nepal the President on the recommendation of the council of 

ministers may issues such orders as are necessary. 

• Afghanistan, Mauritania and other post-conflict states vest this power 

solely in the executive branch. Other states require broader consensus. 

• Albania requires the affirmative vote of two-thirds majority of the 

Assembly, with a contingency plan in case the legislature is unable to 

meet. 

• In India, the President declared a State of Emergency upon the advice 

of the Prime Minister Indira Gandhi on 26 June 1975. In her own 

words, democracy was brought “to a grinding halt”. As the constitution 

requires, the Prime Minister advised President Ahmed to approve the 

continuation of Emergency every six-months until her decision to hold 

elections in 1977. The emergency was declared to save the Prime 

Minister from an unfavorable electoral ruling and was not related to 

any real national emergency. 

34 


Issue 4: Authority to review state of emergency 


Courts 

Legislature 

No review 

Additional protection 

against the abuse of 

power 

Additional protection 

against the abuse of power 

Quick governmental action 

possible 

Courts may not understand 

the political & security 

issues and the delays may 

cause additional problems 

for effective governance 

The government in power 

is likely to have a majority 

which will endorse the 

emergency – so no real 

control against abuse of 

power; May be a 

complicated process and 

will impede fast action in 

an emergency 

No checks or balances 

against abuse of power 

Commentary 

• Nepal: The Proclamation or the Order must be laid before the meeting 

of the Legislature-Parliament for approval within a month from the date 

of its issuance. If it is approved by a two-thirds majority of the members 

of the Legislature-Parliament present at the meeting such Proclamation 

or Order continues in force for a period of another three months, and 

can be extended once in the same manner. Otherwise, the Proclamation 

or Order automatically ceases to operate. 

• Albania requires the affirmative vote of two-thirds majority of the 

Assembly, with a contingency plan in case the legislature is unable to 

meet. 


35

10. POWER TO REMOVE 

DIFFICULTIES 

Background 

Outside of Nepal, few if any constitutions assign to anyone a broad power to 

“remove difficulties in the implementation of the constitution”. It is obvious 

that such a broad power contains the potential for abuse, including takeover 

of the state. It is clear, however, that there may be circumstances in which it 

is difficult or impossible for the state to comply with the ordinary requirements 

of the constitution. These include: (i) state of emergency: what to do when 

the machinery of the state or one of its organs fails? Or where extraordinary 

circumstances such as war, insurrection or natural disaster threaten the safety 

of the people? [this issue is dealt with in a separate briefing note in this series 

entitled “State of Emergency”]; (2) what to do when there is ambiguity about 

what the constitution requires and Government cannot act? and (3) 

transitional provisions – should there be special powers to ensure the 

functioning of the state during the period in which a new constitution is being 

implemented? 

Issue 1: Should power to ‘remove difficulties’ be retained, 

eliminated or limited? 


A. Retain 

this power 

Creates the maximum 

flexibility for the State to 

act if it considers that the 

Constitution cannot be 

followed. 

Creates the maximum 

opportunity for the abuse 

of power, including the 

takeover of the State. 

36 


B. Eliminate 

this 

power 

C. Limit 

this power 

Reduces the risk of abuse 

power 

Constitutional ambiguity 

and transitional 

requirements can be 

addressed. 

The well-being of the 

people may be at risk if 

Government is unable to 

act because of uncertainty 

or disagreement about the 

scope of a constitutional 

power, or if there are 

urgent transitional 

requirements. 

Does not eliminate the 

potential for abuse of 

power. 

Commentary 

A broad power to “remove difficulties in the implementation of the constitution” 

creates the risk of abuse of power. Where the problem is that there is a ‘state 

of emergency’ requiring emergency measures, a more limited power can address 

the issues of who can declare a state of emergency? under what circumstances? 

with what power? and with what oversight? [see the briefing note “State of 

Emergency”]. Sometimes the problem is that the government cannot move 

forward because there is uncertainty about what the constitution requires or 

permits, the parties cannot agree, and there is not enough time for constitutional 

amendment. In such cases, some countries use the technique of a ‘reference’ 

to the Courts. Sometimes, particularly in transitional phases, it may be 

desirable for the Government to take steps before all necessary legislation is 

in place. In such circumstances, transitional powers may be desirable. 

• Nepal: The 1990 constitution (Art. 127) gave the King the absolute 

power to issue necessary orders if there were difficulties in connection 

with the implementation of the Constitution. Such orders were 

eventually to be laid before Parliament. The King used this power to 

dismiss the government and assume absolute power. The 2007 Interim 

Constitution contains a similar broad power: “If any difficulty arises in 

connection with the implementation of this constitution, the President 

on the recommendation of the Council of Ministers may issue necessary 

Orders to remove such difficulties, and such Orders require endorsement 

by the Legislature-Parliament within a month.” 


37

Issue 2: Is it desirable to permit references to the Courts to 

clarify ambiguities in the Constitution? 


A. Yes References can clarify 

ambiguity and 

misunderstanding about 

Constitution. References 

can resolve constitutional 

issues before new laws are 

implemented, ultimately 

saving time and money 

B. No Forces political actors to 

find some resolution to 

their dilemma 

If this power is used too 

frequently, it can 

discourage political debate 

and compromise. 

Requires courts that are 

capable and independent. 

When the political actors 

cannot resolve the problem, 

the Government may be 

paralysed. 

Commentary 

No Constitution provides a clear answer to all questions. Constitutions are 

often ambiguous, sometimes intentionally because the drafters could not 

resolve a problem and decided to leave it for later consideration. Many 

countries permit their government to seek the advice of the highest courts to 

resolve such ambiguities, and for other purposes. 

• Canada: All governments have the power to refer to their highest court 

any matter on which it requires the advice of the Court. Usually, these 

are opinions about planned legislation. Governments have asked for 

the opinion of the Courts in connection proposed legislation concerning 

the independence of Quebec, gay marriage, and economic emergency 

arising from inflation in the economy. In Canada, the power can also be 

used to examine past cases where there is concern that there may have 

been a wrong decision by the court. 

• South Africa: The Constitutional Court is the highest court in all 

constitutional matters; may decide only constitutional matters, and 

issues connected with decisions on constitutional matters; and makes 

the final decision whether a matter is a constitutional matter or whether 

an issue is connected with a decision on a constitutional matter. A 

constitutional matter includes any issue involving the interpretation, 

protection or enforcement of the Constitution. 

38 


Issue 3: Is it desirable for the State to have transitional 

powers to implement the Constitution? 


A. Provided 

Government 

with limited 

powers in 

the 

transition to 

full 

implementation 

of the 


Can make constitutional 

implementation go faster 

Creates the risk of abuse of 

power - Governments may 

simply issue transitional 

orders instead of actually 

implementing the 


B. No Everything that 

Government does is done 

with the full protection of 

the system of checks and 

balances required under 

the Constitution 

The restructuring of the 

federal state may be unduly 

delayed. 

Commentary 

This question deserves more detailed consideration. It should be noted that 

constitutions often have transitional provisions that govern when and how 

they come into effect, and how Government carries on until they are fully 

implemented. These are necessary to facilitate the functioning of the state 

while the machinery of government is being built. They should be structured 

in such a way that the transitional actions of the government are open and 

transparent and subject to review by Parliament and/or the Courts. 

• Nepal: Part 23 of the Interim Constitution is called ‘Transitional 

Provisions’ and deals with the continuation of existing laws, the making 

of judicial decisions on cases filed before the Interim Constitution came 

into effect, the nationalization of royal property, and other matters. 

• India: Article 392 provides for a ‘power to remove difficulties’. However, 

it is clear that the provision applied to the transition from colonial rule 

to the implementation of the new Indian Constitution; authorized only 


39

orders consistent with the implementation of the new constitution; and 

had to be laid before Parliament where it could be considered and 

possibly rejected. 

• South Africa: Schedule 6 contains detailed transitional provisions. 

An important one deals with executive power that existed before the 

new constitution. It provides: 

• 15 (1) An authority within the national executive that administers 

any legislation falling outside Parliament’s legislative power when 

the new Constitution takes effect, remains competent to 

administer that legislation until it is assigned to an authority within 

a provincial executive in terms of item 14 of this Schedule. 

• (2) Subitem (1) lapses two years after the new Constitution took 

effect. 

40 


11. NAMING THE CONSTITUTION 

Background 

Some countries have written constitutions; others do not. Where constitutions 

are written, they may be contained in one law, or in more than one. Where 

constitutions are in a single law, the Constitution usually gives itself a name. 

In the case of Nepal, both the current Interim Constitution and the 1990 

Constitution are embodied in a single law. In each case, an article of the 

Constitution gives the Constitution its name. 

Issue 1: Should the name of the Constitution be specified 

within the text of the Constitution? 


A. Yes Clarity, standardization May not be used in 

practice if long and 

complicated 

B. No Constitution will be known 

by its title 

Possibility for confusion 

and misunderstanding 

Commentary 

There is no fixed principle. 

• Nepal: The interim constitution specifies in Art. 166 that “this 

Constitution shall be called “The Interim Constitution of Nepal, 2063” 

[2007]. The 1990 constitution stated in Art. 133 that “this Constitution 

may be called “The Constitution of The Kingdom of Nepal, 2047” 

[1990]. 


41

• Belgium: The Constitution of Belgium is a short and simple title. The 

country’s characteristics as a federal monarchy are not reflected. 

• Some countries have official names that are longer and more descriptive, 

and that name is incorporated into the name of the constitution, for 

example, the ‘Constitution of the People’s Republic of China’. 

• Switzerland: Federal Constitution of the Swiss Confederation: The 

title of the constitution also reflects the type of state. 

• Cambodia: The Constitution of the Kingdom of Cambodia, 

incorporates the name of the state which again reflects the character of 

the state with its monarch as the head of State 

• South Africa: The Constitution of the Republic of South Africa, 

1996 is designated as the short title in South Africa’s constitution. 

• Venezuela: The title of the Constitution of Republic of Venezuela was 

changed to the “Constitution of the Bolivarian Republic of Venezuela” 

when the official name of the country was changed. 

42

English - Support to Participatory Constitution Building in Nepal ...

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