Politicians and leaders have paralyzed key state institutions such as the judiciary, legislature, and the president’s office. There is a growing tussle between the Office of the President and Office of the Prime Minister and Council of Ministers. Frequent government changes have become a new normal. Nepal has witnessed six governments in seven years.
Former chief justice Kalyan Shrestha says all the political dysfunctions and maladies post-2015 are the results of some provisions in the constitution that have cemented heavy political control over state apparatuses. Moreover, he adds, numerous provisions in the constitution including some fundamental rights remain unimplemented. There is a growing demand among some sections of Nepali society and even inside some major political parties for reinstating unitary government system by doing away with federalism. This begs the question: Who is responsible for this situation: the constitution or the political parties? Constitutional expert Bipin Adhikari says while the constitution could be reviewed, we must also consider whether we have a favorable situation for constitution amendment. The experience of last eight years shows that the new constitution has been accepted by wider section of society, adds Adhikari. He personally believes that the problem lies with the political parties and their leaders, rather than the constitution. To date, political parties are not fully committed to some of the key spirits of the constitution, such as federalism, fundamental rights and the issue of inclusion. Adhikari says Nepal’s political parties and their leaders are suffering from a bad case of elitism. Instead of finding faults with the constitution, he adds we must ask why the constitution has not been fully implemented. Political analyst Chandra Dev Bhatta, however, holds an opposite view to Adhikari. He is in favor of reviewing and amending the constitution. Bhatta says we never had problems with the constitution in the past, but only with the political actors. These days we have more problems with the constitution than with the political actors, he adds. That said, Bhatta also strongly believes in changing our attitude. Nepal’s fundamental problem, he says, is lacking the capacity to honor and uphold constitutional behavior. Of course, no constitution is prefect in itself and they can certainly be improved over time, adds Bhatta, but unlike the past constitution, our political parties and leaders have truly upheld the new constitution. Political parties have developed the tendency of explaining and interpreting the constitutional provisions as per their interests and conveniences, says Bhatta. The final arbiter of the law and the constitution is the Supreme Court. But in Nepal, major political parties have reduced the highest court of the land into their playground. Experts are of the view that on the basis of the experiences of the past eight years, there should be an overall review of the constitution, as parties have failed to implement it to the full. The 2015 statute was a document of compromise among traditional parties and the then Maoist rebels. Soon after its promulgation, political parties and the communities based in Madhes staged protests calling for various demands that were unaddressed. They are still clamoring for constitutional amendments to guarantee them greater rights and representation. But constitution amendment is not an easy job. Unless all major parties are on board, there cannot be any amendment to any provision in the constitution. According to article 274 of the constitution, no amendment shall be made to this constitution in manner to be prejudicial to sovereignty, territorial integrity, independence of Nepal and sovereignty vested in the people. Other clauses of the constitution, however, could be amended. For example, a bill to amend or repeal any article of the constitution may be introduced by either house of the federal parliament. Such a bill should be made public within days of its introduction in the concerned house. Some experts, however, say that constitution amendment at this point of time would be tantamount to opening the Pandora’s box, because there are various forces who want to review the constitution on their own terms. If the amendment process is initiated, they say, it would be difficult to meet the demands of various conflicting groups. For instance, royalist forces like the Rastriya Prajatantra Party are pressing for an amendment to reinstate the Hindu state and constitutional monarchy. Likewise, parties like CPN (Maoist Center) are trying to introduce presidential rule and make changes to the existing electoral system. Expert there are too many contradictory demands that could upend the whole system. Here are the views expressed by former chief justice Kalyan Shrestha, former speaker Daman Nath Dhungana and former law minister Nilambar Acharya at a program organized by Tanka Prasad Acharya Memorial Foundation. ‘Centralized mindset will take us nowhere’ Kalyan Shrestha, Former chief justice Federalism was a point of departure for us, but it is unlikely to succeed. Without a creative roadmap, it is unlikely to be sustainable in the long run. The current federal government is more of a ‘centralized’ government rather than a true federal one, as it aims to retain power at the center and is hesitant to devolve power and resources to subnational governments. The tendency to centralize the law-making process and withhold necessary laws from subnational governments is still prevalent. Selling the concept of centralization as federalism will take us nowhere. Furthermore, political appointees hold the majority in our constitutional bodies. This means whatever they say will be the final decision. The work done so far has not aligned with the spirit of the constitution. The 1990 constitution looked good on paper. The new constitution has several provisions from the old one. Unfortunately, due to the centralized mindset of our political leaders, the situation is deteriorating. ‘PM should not have arbitrary decision-making power’ Nilambar Acharya, Former minister It is imperative to review the process of government formation. Perhaps, only the party that secures electoral majority should be allowed to form a government. We need to establish a philosophical basis for this and clarify the provisions in the constitution. It is also crucial to define the rights of the prime minister who has resigned and the prime minister who has not yet received a vote of confidence. Additionally, we should outline the rights of the prime minister after an election has been announced. The current system, which permits arbitrary decision-making from the prime minister, must be rectified. ‘Parties must have courage to amend constitution’ Daman Nath Dhungana, Former speaker The country has experienced radical changes, but the political parties have struggled to effectively implement them. Despite adopting a new constitution, they have not demonstrated the capacity to work in its spirit. There is a lack of a functional apparatus to govern the state. The parties need to have the courage to pursue constitutional amendments. Rather than solely focusing on contesting elections and gaining state power, they should also have a clear plan for governance. We need a broad national consensus.
