PATTERNS OF CONSTITUTIONAL DEVELOPMENT: TRANSFERRING POWER

The constitutional history of the world shows that there were various patterns of constitutional development. Constitutions made during the post conflict era, tentatively followed one or more of the following patterns. The world's youngest constitution is being made in Nepal for which the consideration of the different types that were in vogue in one or another period of history can be enlightening.


A look at the various patters of constitution may provide a valuable insight as Nepal is engrossed in the statute drafting process.


Of the various types, the Commonwealth pattern is based on the 16th century ideas of constitution developed in Europe particularly in the United Kingdom. It focuses on constitution as a covenant establishing a civil society and setting forth its frame of government. So, this pattern focused attention on extracting power from a tyrant ruler or king or colonial power to the people's representatives.


After the power was transferred from the king to the parliament, different interest groups present in the parliament or those interest groups who had access to parliament had to share power among themselves. So, this was second stage of maturity in constitutional development. The constitution of Illinois, USA is an example. If a country is influenced by different issues at the time of making the constitution, then this pattern applies.


When the constitution of a nation is disrupted after a civil war or rebellion, then this Contractual Pattern is applied to patch up the disgruntled forces. After the civil war, the US constitution appears to follow this pattern. Nepal's present Interim Constitution also falls under this pattern since it is a contract or compromise between the erstwhile rebels (Maoists) and the erstwhile government.


When a lot of issues come to the floor at the time of making the constitution, then people may like to ensure their likes and dislikes by writing everything in detail in the constitution. European countries and the countries with common law tradition happen to be nearer to such Civil Code kind of constitution. Louisiana, USA also has such a type of constitution. Nepal's Constitution which is being drafted now may apply this pattern since it seems at the Constitution making process everybody wants to put everything down in the Constitution.

A Frame of Government Pattern type of constitution is of moderate length. The constitution straightly focuses to establish a frame government and the rest of the things are entrusted to the government itself.


The Managerial Pattern is the latest in constitutional development. This constitution is concise and broadly grants the power to the local government focusing on natural resources conservation and social legislation. A constitution of federal structure falls under this category. The newest states of USA, namely Alaska and Hawaii follow this pattern.


It is generally supposed that a Constitution provides to establish a government and run the government.


It means a state is already there and the constitution gives the rules to run the state. However, this does not materialize sometimes as the Constitution itself needs to create a nation apart from giving the rules to run the nation.

Such Constitutions are special Constitutions. Before the US Constitution was made, there was no United States of America, the Constitution created it. In Nepal, there was the old Nepal when the 1990 Constitution ended. On the basis of this interim constitution, the Constitution which is being drafted now needs to create a new nation which is popularly called new Nepal.


It is not easy to answer as to which pattern Nepal's Constitution will follow. It can be said, however, that the new Constitution to be made needs to follow the sixth and latest pattern since Nepal's new Constitution has to deal with federalism and newly emerging issues including the management of natural resources and conservation of nature. However, we can analyze the Constitution with some other patterns too. Even as Nepal's past constitutions may seem to have followed other patterns like the second, third and fourth, Nepal's all past Constitution's were patently or latently following the first pattern.


When the government of Nepal Act was made in 1947, it focused on transferring the power of the Ranas to the people whereas the same task of transferring power from the King remained unfinished till the Interim Constitution was made in 2007 after the people's movement II. It might seem in surface that Nepal's Constitution made in 1990 was following the second pattern. But, it is not true if we look in depth because the task of transferring power from the king to people was not completed till then. That is the reason for the failure of the 1990 Constitution.


It seems that the present Interim Constitution of Nepal 2007 follows the third pattern since it is a contract between the erstwhile rebels and the state. Whatever pattern a constitution may follow, a constitution must answer the question: Why do we genuinely need a Constitution?