Implement the constitution in true sense

On 20 Sept 2015, Nepal adopted its first federal democratic republican Constitution promulgated by the Constituent Assembly, a historic step for a nation that had gone through a decade-long Maoist insurgency, royal massacre, Madhes movements and other  political deadlocks.  The seven years’ exercise finally produced a new Constitution. Nepal formally abolished its legacy of Hindu monarchy and emerged as a federal democratic republic. Over the years, the political instability was so heightened that the country saw 15 prime ministers since 2006. Even after the delivery of the 2015 Constitution, the country witnessed eight prime ministers. The drafting process (2008 to 2015) kicked off in 2008 with the formation of Constituent Assembly-I, the unicameral body of 601-member, after its election. In fact, the demand for a new Constitution was raised by Maoist rebels, who waged a decade-long civil war which ended with the 2006 comprehensive peace accord. The Constitution aimed to reinforce Nepal as a secular, democratic republic with a provision for safeguarding the religion, and federate the country into seven provinces.

Bag of progressive provisions  

While celebrating Constitution Day, it’s high time for us to rejoice in the progressive provisions. It stands as the first national  charter in South Asia to include an explicit mandate of one-third representation to women in legislative apparatus. The Constitution expressly guarantees the rights of transgender people. This paradigm shift has made the country bound to adopt affirmative action to ensure the proportional representation of oppressed groups, including that of transgender and disabled persons, in the state apparatuses. In yet another breakthrough, the charter institutes fair corpus of provisions for language as well. In order to flourish the languages given by mother, it's been provisioned that the languages given by mother shall be the national languages. The fundamental rights provisions are praiseworthy. Take the example of the right to privacy. Right to privacy is yet to be expressly mentioned in the Indian constitution; however, the same right has been enlisted under fundamental rights in Nepal. Still, the right to privacy is protected as an intrinsic part of the ‘right to life and personal liberty’ clause in India.

The provisions relating to fundamental rights have been embodied under Part-III (Article 16-48) of the Constitution. There are ample provisions which are progressive in nature. For instance, right to information, right to communication, right to justice, rights of victim of crime, right against torture, right to free legal aid, right to privacy, right to property, right to clean environment, right to language and culture, rights of women, rights of Dalits, rights of senior citizens, and  right to social security, among others, are the provisions which appear progressive in one way or the other.

Our progressive fundamental rights would become meaningless unless implemented in true and material sense. The state is failing to implement these rights in letter and spirit due to its poor economy and political instability. It’s the fault of the government, not the Constitution.

Constitutional supremacy

The Constitution of Nepal under Article 1 secures the supremacy of the constitution, while Article 133 and Article 146 confers power on the Supreme Court and High Courts, respectively, to issue any form of writs and determinations to secure the fundamental rights of the people. Our Constitution confers a wide range of powers on the judicial department to judicially review the actions of executive and legislature.

The Supreme Court in the case of  Bed Krishna Shrestha v Ms Secretary, Department of Industry, Commerce, Food Civil Supplies (2010 BS) held that power and obligation of the Pradhan Nayalaya, under Section 30, was to prevent unlawful action in case it infringed on the fundamental rights of people. In Mrigendra Shamsher Rana v Inspector General of Police (2011 BS), Chief Justice Hari Prasad Pradhan for the first time in the judicial history of Nepal issued a directive order to the government to initiate immediate amendment in Raj Kaj Act. The 1990 constitution had considered the provision of the Judicial Review as one of the sacrosanct parts of the charter.  This way, the judicial department has the ultimate power to test the constitutionality of the action of the government under writ jurisdiction.

In the United States, in 1789, Judiciary Act conferred power on the US courts to review the governmental actions. In 1803, Chief Justice Marshal in the case of Marbury v Madison held that it is the judicial department to say what the law is. Article-III, Section-2 of the US constitution envisages that the Judicial power shall extend to all cases arising under the constitution, laws of US and up to certain specified controversies.  Likewise, Article VI, Section 2 provides that the US constitution is supreme and the laws inconsistent to it would be void.

Similarly, in the United Kingdom (UK), where the constitution is unwritten, and parliament is supreme, the courts have been conferred with power to interpret the laws. In Germany, the constitutional court is empowered to strike down not only ordinary laws but also constitutional amendments for being incompatible with the basic features of the constitution. Interestingly, the concept enjoys a similar currency in Nepal as well. 

Missed opportunities

The preamble acknowledged the glorification of various movements in the past such as the people’s movements and Maoist insurgency. But, the Constitution does not recognize the Madhes uprisings that led to the inclusion of federalism into the characteristics of the new Nepal. Had the makers of the Constitution recognized the Madhes movements, it could have further amplified the acceptance of the Constitution in the southern plains. It was a missed opportunity.

The charter provisions that the “operation, supervision, and coordination of Nepal police and provincial police shall be as provided by Federal law” [Article 268 (3)]. In doing so, the makers of the Constitution have offered a little say to the provincial legislatures in enacting policies for the police apparatus. 

Article 56 confers the power to declare village councils and municipalities to the federal government. It means the provinces do not have the power to restructure local bodies in the future. Article 203 does not give power to the provincial governments to levy tax without the consent of the central government. 

Moreover, the drafters ought not to have rejected calls to revert back to a Hindu state. It was the Hindu identity of Nepal that was crucial in bringing the Madhes and Hill people together. It would have been better had the CA members given due respect to the things which could be crucial in bringing Madhesis and Pahadis together.  Still, there would be political debates, there would be heated arguments also, at times there would be protests on the streets, yet amidst the noise and chaos, what the preamble of 2015 Constitution has taught ordinary population and those who claim to be representatives of people is that despite extraordinary diversity and differences along the lines of ethnicity, caste or religion, Nepal must remain one and march ahead with full faith on democratic credentials.

Way forward

There is no need to be disappointed with a handful of conflicting provisions, which may appear to be unitary in nature. They can be amended. From ensuring equality to providing positive discrimination to marginalized communities, from guaranteeing one-third representation of women in legislature to allowing transgender to seek citizenship certificates with recognition of sexual orientation and promoting egalitarianism, equity and good governance, our Constitution appears to be a progressive document. It’s high time to popularize these progressive measures. It’s time to implement them in letter and spirit.  The Constitution of Nepal—like other constitutions of the world—will also evolve with the passage of time. Nepal deserves constitutional democracy and rule of law. It’s time to live with the constitution.