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June 14, 2024, Friday
२०८१ असार २

 American Constitution: Mother of Constitution  

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खबरमाला संवाददाता



Hom  Lamsal


The United States of America, the mother country of the Constitution is now in the forefront. The first Constitution of the world promulgated in 1789 has still been successfully operating in the world. The experts of the Constitution say the Constitution of the United States of America shall exist further one century more.


In the middle of the deadly world war, with the city of Gotisberg being a national war-ridden country, the President of the United States of America Abram Lincoln cited the best example of democracy which has been taken as the most popular world in the globe.  His saying, “By the people, for the people, and of the people,” has made a clear definition of democracy which is still very much contextual in the world. Among all forms of governance, democratic governance is the most challenging and difficult. This shall have various kinds of difficulties and conflicts therefore those who are in its favor should always made attempts for making it perfect.

The spirit of democracy is not to serve the public quickly but to serve the public by being accountable to the public. Any democratic government may not work quickly like any authoritarian government but when a simple process shall be fixed it shall get the support of the common people.

Democracy is the process to get support gradually henceforth every country should develop its own separate process on the basis of own history and culture. Since when Nepal is doing final preparation for drafting the Constitution therefore there is an urgent need to determine what should be the basic principle of democracy. Specially, Constitutionalism, the formation of laws, an independent judiciary, power of the chief executive, role of the free press, citizens’ right to be informed, protection of the minority community, civil control over the military and democratic elections are the basic principles of democracy. Promulgation of laws should be done based on certain rules, there must be an adopted process for the promulgation and amendments in the laws and there might be some such kinds which could be taken as civil rights which should not be allowed for amending just because of the whim of the majority.

Constitutional History

Constitution is a law. This is such kind of document that determines the power and duties of the constitutional body and exercised and by such bodies and also determines limitations as well. Constitutional shall have one major point that the basic principle of the Constitution cannot be changed just with the power of a simple majority. For this, the common people should have given consensus clearly and without confusion. In the powerful United States of America where there is complete democracy has amendments in the Constitution only for 27 times since its promulgation in 1787. The architects made the amendment process difficult but not impossible. Such major amendments have widened the individual rights of the people and ended sex or caste-based discrimination while letting the democratic principles.  Not any single amendment had been taken lightly out of these amendments and following the endorsement, all the amendments got public support.

Alexander Hamilton wrote: “Since the court does not have the power of sword and money therefore the court is ‘least dangerous’ institution of the government.” But in democracy, the courts are one way or another powerful and make easy for the implementation of the constitutions by removing the hurdles. Ultimately, the judiciary is the final and powerful protector of civilians’ rights.

The media has the close relation with the rights of the people who have the Right to Information under which newspapers, radio and television or the internet shall have the function. This sector should disseminate information without fearing with the government. In any complex society, everybody could not run to watch the proceedings of the court and cannot monitor the proceedings of the parliament or go through the programs of any government office therefore the media shall work to uncover such facts with the capacity of the representatives of the people. Ultimately, the people shall know everything about the state affairs and also know his or her rights as well. Without the free press, not a single country shall be independent and democratic.

In the 18th century and till the end of 19th century, laws were used to promulgate with consensus among the citizens and the representatives of the local and central bodies representatives. But when reached to 20th century, the society became more complicated and the role of the government somehow increased. Now, many such questions are seemed, in which public should express their views and also began formulating pressure groups just for the sake of taking their concerns heard. Such things shall raise the personal and collective interests. Earlier, the public wished to know the function of the government, the public could watch the proceedings while visiting the town assembly or in public meetings. But in the present context it s not easy to go through the complicated bureaucracy, and rules and regulations and hundreds of pages laws. The present proceedings of the legislature are accountable with the public but they are too much complicated even after they are accountable with the public therefore public could not easily have access into them. The government in every democracy should be transparent in maximum but or the public should know about the decision and the process on any matter. The public should have the right to access on work of the government and the information. Not any single government functions secretly not which shall comes under the democratic system.

If we know the multi-party system democracy, there are so many challenges in the democracy and also one about dealing with the rights of the minority community as a big challenge. Since we are at the stage of drafting a constitution with the acceptance by of all therefore the ownership of the all communities and marginalized people’s concerns should be respected in the new constitution. For every country, the ethnic problems shall be a serious problem and for our country Nepal also it has become a serious problem. But this is an obvious process in democracy, which shall have the concern not only to give freedom to have unnecessary charges to the other people then the majority class but which is also required for giving equality status and to participate with the capacity as a citizen which shall ensure for further more inclusive society. There are numbers of examples for arbitrarily with the minority community people in many countries and the deadly attack against the Yahudis by the Najies have been taken as a best example.

In a democracy, the people are the infinite sources of the state power. The constitution of the United States of America states in the constitution itself: “We the people of United States accepting declare this constitution,” All the state power should be obtained from the people and the people should accept the legitimacy as well. Such legitimacy shall be received through the law-making process, elections and may other ways. We are in this process therefore we should make a habit by accepting these processes. The second general principle is to establish separation of power in democracy in clear manner so that none of organ of the state should get a chance for being unnecessarily powerful to destroy the rights of the people. Moreover, not only with the executive but to maintain the power balance, court has existed. A democratic government should always be balanced as per the principle of separation of power and checks and balances and such organs should always keep in mind the significance of the separation of power and checks and balances and respect the rights of the minority people and the majority shall also not violate the rights and freedoms of the people. In a democracy, for implementing such things might be difficult in general. Specially, for the democratic society is to flourish various kinds of groups and populations. But if the government begins snatching anyone’s rights in such time the others rights shall come into crisis. The success of any rule shall be related with various subjects. Therefore only recognizing the democratic principle as the base of power, we should respect for the rights of the people because ruling with the power of the police may erode the respect of democracy because searching transformation to a combatant of any militant force of a political party because the Maoists have reached to the hut of the public for seeking support while reaching in the parliament. As per the popular saying that there might be bad intentions at the time of the collapse, the structure of the power has been destroyed in such a manner that the Moist need to accept the principle of power separation and checks and balances without any condition and to restore the power taken back by the police personnel after which we need not go to Delhi for seeking power, it shall be there in Nepal.

(Published in Annapurna Post daily on 9th Srawan 2068 BS corresponding to translated version by Hom Lamsal.