Introduction
I am hardly an expert on U.S. constitutional law (“Con Law,” as we called it in law school). I have studied under several well-respected Con Law professors, I have some friends who are aspiring international Con Law experts, and I read a lot of blog posts written posted by some of the most renowned Con Law experts in the U.S. I am not in the same league as any of these people. As much as I am a novice in U.S. Con Law, I am even more in the dark about Nepal’s Constitution. It is fundamentally a different legal regime and here I will attempt to explain how.
I am not a Nepal-qualified attorney, so my understanding of Nepal’s Constitution can only be incomplete. I suspect, from my conversations with Nepalese lawyers and law students, that as I continue to carefully read Nepal’s Constitution this will inspire me to write other posts as well. I urge my readers to use the comments section below to suggest any necessary corrections or to ask me specific questions. I also encourage healthful debate. If you do not like that I have written about Nepalese laws, then read no further. By reading on, you hereby consent to my right to express myself here (this website’s server is in Texas).
I wrote this post after some instigation by interested legal scholars in Nepal and I thank them for their insistence. I fully intend this post as comparative and not judgmental. It begins with a word on comparing constitutions, then it briefly introduces the concepts of negative and positive rights, examines natural law as part of U.S. constitutional law and positive rights as found in Nepal’s constitution, then it attempts to analyze these two legal philosophies with regard to constitutional protections of the freedom of expression of people in the U.S. and Nepal, and briefly concludes with a word about the enormous changes that are quietly underway in Nepal’s rapidly developing legal system.
The Tailored Suit: Comparative Constitutional Law
When comparing the U.S. Constitution with Nepal’s, we must first accept that one document is not necessarily better than the other. My law school colleague and adjunct professor of law at Howard University in Washington, DC, Waris Hussein, is currently writing a doctoral thesis comparing supreme court judicial review in the U.S., India, and Pakistan. Recently, Waris came to Nepal as a guest of the U.S. State Department to give a several lectures, both in English and Hindi, about Nepal’s new charter. Waris explained the uniqueness of these documents to me in this way: a constitution is like a tailored suit.
Just like people come in all different shapes and sizes (fat, skinny, tall, short, etc.) so do nations come with different needs for its governing document. Ask any tailor, or well-dressed man for that matter, and they will tell you that one size does not fit all. This is not a simple statement about the physical features of a country’s land, but it is a grander statement on the uniqueness of each country in the world. Each has its own needs and must balance the people’s hopes and desires with existing societal norms, military prowess, economic interdependence, and international realities. Pakistan, for example, has had three constitutions. After the first two did not fit, these were sent back for alterations; perhaps even the fabric changed. A well-fitting constitution requires careful measurement, trial-fittings, and—above all—alterations from time to time. Maybe even you have noticed how your pants feel a bit tighter after the holidays are well-celebrated. So it is with countries and their constitutions.
In short, this means that there are no easy answers when it comes to such important documents. There is no constitutional expert in this world, foreign or otherwise, that can present to Nepal an off-the-rack constitution that would fit Nepal perfectly. All the measurements, the very fabric of the constitution, and its alterations must come from the Nepalese people themselves to ensure the best fit. Nepal must try it on. If one arm is too tight, if the buttons do not reach, or if one leg is slightly longer than the other, then alterations must be made. To take this analogy a step further than even my friend Waris, I will add that these alterations must be made while the country is still wearing the suit. If this sounds difficult that is because it is.
Some Background on a Legal Regime that is Familiar to Me
The United States of America is a former colony of the British Empire. Indeed, the American colonies formed part of the imperial holdings of the first British Empire while India, an area much more familiar to Nepal, formed a part of its second. It is out of this context that our own country was born and is best understood. The colonists had serious grievances with the British king and how he was ruling the American colonies. In 1776, these grievances were most articulately expressed in the Declaration of Independence: independence that was successfully defended both during the American Revolutionary War and the War of 1812.
The newly liberated colonists failed in their first attempt to set up a working central government. Each colony became a “state” and essentially governed as an independent country. So upset were these early Americans with the absolute power of the king and so distrustful of centralized power as wielded by their former king, that our first organizing document—the Articles of Confederation—gave almost no power to its central government. It could not raise its own army, it could not raise taxes, and it could not issue currency. It was a disaster.
In 1787, with the mandate of only making some necessary revisions to the Article of Confederation, the Continental Congress instead formulated an entirely new document: the U.S. Constitution. This document contemplated a strong federal government constrained by carefully delineated powers and an internal check and balance system between three different branches of government. The strongest branch was the legislative branch, or Congress, which was split into two houses. The upper house had an equal number of senators from each state (two) and the lower house had a number of representatives from each state according to that state’s proportion of the entire country’s population. That required a census. It could also run a postal service, regulate commerce between the states, raise an army, and make war. The executive branch, a directly-elected president, was given control of the army, foreign affairs, and enforcing the laws made by Congress. Finally, the Constitution vested judicial power in a supreme court. You can read it yourself in the first three articles of Constitution. These are so concise that you can read all three in one sitting.
In 1791, after a national campaign for its support and the inclusion of the first ten amendments, known as the “Bill of Rights,” ensuring the rights of the individual states and the people, enough states ratified the Constitution that it became the supreme law of the land.
AC/DC: Positive or Negative Rights
The United States Constitution is a negative rights charter, whereas Nepal represents a positive rights charter. By negative rights, I mean the Bill of Rights essentially lists what the government cannot do. By positive rights, I mean Nepal’s Constitution affirmatively grants rights to its citizens. Again, one view is not superior to the other. They may even reach similar conclusions despite the different paths they take before arriving there. However, one is more familiar to me as an attorney than the other, so I am biased. By way of illustration let us compare the freedom of expression in the two charters.
The text of U.S. Constitution’s First Amendment regarding free of expression is short:
Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Here, the Constitution is not bestowing any rights on the people or even powers on the government for that matter. If anything, it seems the Constitution is actually taking power away from the government to legislate in particular areas. But there is more to it than that; it necessarily assumes that the people already have certain rights that are independent of the Constitution. The First Amendment is merely acting as a safeguard against governmental encroachment on preëxisting rights.
This then is what people mean when they talk about First Amendment freedom of expression. Step one in any legal analysis of whether someone’s freedom of speech has been violated is: has there been government action? If the government is not acting, then it is not a First Amendment issue. Has Twitter deleted your anarchist tweets? That sucks, but it is not a First Amendment issue. Twitter is not the government.
Thus the American people are not dependent on the Constitution to give them their rights. Instead they are dependent on the Constitution to constrain the state from taking away rights that they already have. Where then, do the people’s rights come from?
The answer is found in the other seminal document from the founding of the country: the Declaration of Independence:
We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness . . .
(emphasis added). This and the reference to the “Laws of Nature” in the previous paragraph give us a pretty good sign of where these rights come from. Black’s Law Dictionary (9th ed.) defines “natural law” as:
A philosophical system of legal and moral principles purportedly deriving from a universalized conception of human nature or divine justice rather than from legislative or judicial action; moral law embodied in principles of right and wrong.
That means the people’s rights come from God. In more secular terms, this means either the laws of nature as best understood by humans or as the unwritten rules, traditions, and customs that humans have developed over time.
Now let us take a look at Nepal’s Constitution on the freedom of expression:
17. Right to freedom:
(1) No person shall be deprived of his or her personal liberty except in accordance with law.
(2) Every citizen shall have the following freedoms:
(a) freedom of opinion and expression,
(b) freedom to assemble peaceably and without arms,
(c) freedom to form political parties,
(d) freedom to form unions and associations,
(e) freedom to move and reside in any part of Nepal,
(f) freedom to practice any profession, carry on any occupation, and establish and operate any industry, trade and business in any part of Nepal.
Section 17 goes on to qualify these freedoms by allowing the parliament to legislate in a way that will prevent the undermining of the sovereignty, territorial integrity, nationality, and independence of Nepal and the harmonious relations of its people.
Section 17(1) is written in the negative. Although it does not expressly mention the government, we can assume it. According to Black’s Law Dictionary (9th ed.), “personal liberty” means “one’s freedom to do as one pleases, limited only by the government’s right to regulate the public health, safety, and welfare.” The text’s qualification, “except in accordance with law,” seems to bear out this meaning. Unlike Section 17(2), it does not use the word “citizen.” The protection against deprivation of personal liberty seems to apply to equally to everyone in Nepal. This is certainly case in the U.S. with regard to personal liberty. The Fourteenth Amendment applies to all persons “without regard to any differences of race, of color, or of nationality.”
By contrast, Section 17(2) is written in the positive. It says “every citizen shall have . . .” (emphasis added). This is “positive law,” defined in Black’s Law Dictionary (9th ed.) as “a system of law promulgated and implemented within a particular political community by political superiors . . . .” But who is the “political superior” here and how did they derive their authority to say which rights Nepali citizens should have?
The answers are that (1) the political superior is the Constituent Assembly and (2) it is the Nepali citizens themselves that granted it the power to decide their rights. This we can see from the Constitution’s Preamble:
We, the Sovereign People of Nepal, . . . Internalizing the people’s sovereign right and right to autonomy and self-rule, . . . Do hereby pass and promulgate this Constitution, through the Constituent Assembly, in order to fulfil the aspirations for sustainable peace, good governance, development and prosperity through the federal, democratic, republican, system of governance.
Thus the Nepalese people, through their Constituent Assembly, enabled the Constitution to grant certain rights to citizens.
Section 17(2) uses the word, “citizen,” when listing their rights It does not mention which rights, whether these rights or others, allowed to non-citizens. It is silent in this regard. It also does not say whether citizens of Nepal have other rights not specifically mentioned here. It is unclear where the margins are.
Contrast this with the language of the U.S. Constitution’s Ninth Amendment:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The U.S. Bill of Rights is not an exhaustive list of all rights accorded to people in the U.S.
Finding out where the margins is a task left to the courts in Section 128(2): “the Supreme Court shall have the final authority to interpret this Constitution and laws.” This includes other enacted laws as we can see from Section 1 of Nepal’s Constitution: “Any law inconsistent with this Constitution shall, to the extent of such inconsistency, be void.”
Closing Thoughts: Thinking Beyond the Constitution
When asked, most Nepalis that I talk to understand that all of Nepal’s laws are being rewritten so that the laws will conform to the new constitution. Yet I still wonder how many know exactly who is writing their new laws. Perhaps the people think that their Constituent Assembly is busily drafting the statutes. While it is true that the CA or a parliament will eventually have to vote on these laws, the people’s representatives are not writing them. I hope at the very least that they will read them: something that is even lacking in the U.S. Congress at times.
Whenever the laws of the United States stray so far from the founding document that a dispute ends up at the Supreme Court, some justices like to remind us what the document likely originally meant. They offer us an illustration of how the Constitution should be interpreted as protecting the people from the unrestrained power of the central government and not read as increasing the power of the central government until it becomes like a king. Other justices argue instead that the document must be interpreted according to modern societal needs.
It is not a shame to amend a constitution to make it a more inclusive document. The U.S. Constitution has been amended twenty-seven times. Some amendments were necessary for its ratification by the individual states, some amendments repealed earlier amendments, and some amendments were necessary to help advance the vision of equality enshrined in the Declaration of Independence. The Preamble of the U.S. Constitution lays this out as one of its primary goals: “to form a more perfect Union.” The U.S. is far from perfect and it has never claimed to be so. It is our sincere hope as Americans, however, that we have made some significant strides in the right direction.