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Rule of law is a basic tenet of democracy. If a nation has a robust rule of law, it will essentially have a strong and durable democracy. But what is the rule of law and how can it be meaningful? The first element of rule of law deals with the process of lawmaking—which ought to be transparent and participatory. According to the Constitution of Nepal 2015, all three tiers of the state—the federal, province and the local level—are entitled to make their own laws within their constitutionally and legally-defined limits. 

Presently, there are 334 members in the two Houses of the Federal Parliament; 550 members in assemblies of seven provinces; and over 20,000 elected representatives in legislative bodies of 753 local levels in the country. All of them are called lawmakers. 

With the promulgation of a new constitution in 2015 that transformed the country from unitary Hindu monarchy into a federal secular republic, there is a huge need to frame hundreds of laws to replace the old system. Despite the completion of two rounds of general, provincial and local elections, the task of lawmaking is yet to complete. Numerous essential laws on federal governance, police system in provinces, civil service system in provinces, education, health have not been formulated yet. 

From federal to province to local level, each tier has faced unique challenges in lawmaking. Take for instance the recently concluded session of the federal parliament—the MPs themselves have lamented that only one single law was passed during the entire session spanning months. 

In practice, Nepal also faces a unique problem of lawmaking being dominated by a handful of senior leaders of major parties. The MPs or even committees always look up to them to pass any law. They also block any legislation that is against their vested interests. Prime Minister, the leader of the opposition and president of the Nepali Congress rarely take part in committee discussions or House meetings. They do not even attend the House for more than 10 days in the entire session. 

Provincial assemblies have always complained that they lack facilitating federal laws that can allow them to frame their provincial laws in areas like provincial civil service, which are of urgent necessity. Local levels have been found to engage in lawmaking that is either outright copying of model laws distributed by the federal government—without incorporation of local context and circumstances—or haphazard drafting without concerns for due process and content. Many laws originating in provincial assemblies and local level have also been challenged for violating the limits and jurisdictions as laid down by the Schedules of the Constitution. 

That apart, the prevalent practice is to enact laws without peoples’ participation. Government bodies draft a law to their liking and push it through the parliament with minimal involvement of stakeholders. As such, they are not structured in a way that people can comprehend them. They usually fail to reflect the peoples’ aspirations and expectations. 

The second element of the robust rule of law is concerned with the state of implementation of laws. People must know about the laws of the land and abide by them, but there is no systematic procedure to sensitize the people about the laws and provisions introduced. This is the first barrier to the implementation of the laws. 

In fact, even the lawmakers do not know what they have enacted into laws, though they expect everyone to abide by the laws. Clearly, the laws do not get implemented automatically. Processes, programs, resources, management and a favorable environment are required for their implementation. 

Capacities, willingness, monitoring and enforcement are all necessary to make that happen. Most importantly, there has to be a realization of how much ownership is felt by the stakeholders, including those who are supposed to abide by them. 

Some of the critical issues in any rule of law system are to find out whether the people feel benefits of abiding by laws, or whether they feel the burden of abiding by the laws and consider it as imposition of exploitative measures. 

The third and final element of the robust rule of law deals with the institutions that are responsible for upholding laws, and ensuring a system of checks and balances. This involves the geographic distributions of the legal institutions that will have to, first and foremost, ensure the access to law and justice for the ordinary people. 

The people must have easy, economical and intimidation-free access to the institutions of law, including the administration and courts. They must be able to get justice on a predictable timeline. They must also be able to feel that justice is being delivered equally—irrespective of caste, gender, region, economic status or political clout. 

Rule of law institutions must be strong enough to serve their purpose. Matters like trustworthiness in terms of their competence, impartiality, independence, accountability and legitimacy are of utmost importance. This will also determine whether their 

decisions are easily accepted and implemented.  

This will demand a change in all three elements mentioned above. In lawmaking, there is a need to expeditiously formulate essential laws, particularly in areas listed under the concurrent list of the constitutional schedule such as policing, civil service, education and health. 

The Rule of Procedure of the parliament should explicitly state that all MPs must attend at least 50 percent of the House meetings or face disciplinary action. The bills tabled in the parliament must be settled—passed or rejected—within a certain timeline within the session. 

There is a need to ensure participation in lawmaking for public ownership before implementing laws. Town hall meetings or mobile meetings of parliamentary committees at province and local levels can be held with help from civil society organizations to pre-inform the people about the laws. The authorities also need to be accountable to ensure proper implementation of laws. 

In the institutional development aspect, there is a need to first ensure timely and full appointment of judges and court officials. They need to be held accountable to ensure economical, easy, timely and equal access to law and justice for the people. 

The judiciary also must settle cases on stipulated time and if any case is made to linger, there has to be accountability on the part of the courts. For example, a case against appointments in constitutional bodies has been lingering for three years without any justification. 

On the part of the people, they need to be empowered so that they can also rise and demand a robust rule of law in all spheres of their lives. Combined efforts of the executive, the legislature, the judiciary and the people will ensure a robust rule of law that is transparent and participatory.

The author is Executive Director of Nepal Law Society

It is believed that a nation is reborn by adopting a new constitution. And it really became true with the adoption of a new constitution in Nepal when its Constituent Assembly-2 declared it a secular, inclusive, federal, democratic republic on 20 Sept 2015. These are the cardinal features of the constitution. 

Looking back, we find that the three words, ‘democratic federal system’ were incorporated in the Interim Constitution (Article 38) in addition to the terms ‘inclusive and restructured’ through its first amendment on 13 April 2007. It has its basis in the Comprehensive Peace Accord (Clause 8.2) signed on 21 Nov 2006 by the then PM GP Koirala and the Maoist Chief PK  Dahal, which provides for making a ‘a high-level  Recommendation Commission for the Restructuring of the State.’ 

The Maoists were calling for restructuring of the state, however, it was not mentioned in the 12-point agreement signed on 21 Nov 2005, in India by the Seven-Party Alliance and the Maoists. Perhaps, the most pressing need at that time was to throw out of power the absolute monarchy and other demands were considered secondary.

The entire country celebrated as usual the eighth ‘Constitution Day’ on Sept 20, save the Madhes-based parties, which celebrated the day as a ‘Black Day’ for them, as  more than 100 Madhesi youths had sacrificed their lives for incorporating federalism with one Madhes Pradesh for 20 districts in the Tarai region in the forthcoming constitution. However, the constitution adopted provides for seven provinces out of which a province consisting of only eight districts was carved out of 12 districts. 

The other 12 districts of the Tarai were made part of the five provinces.

It was the thorny issue of federalism that failed Constituent Assembly-1 as consensus was impossible among the parties on the one hand and the strength of the Maoists and the Madhes-based parties in the CA was 

significant which could be ignored, on the other. 

In the CA-2, the number of representatives of both the parties, the Maoists and the Madhesi outfits, was reduced; it was possible for the Nepali Congress and the CPN-UML to adopt the constitution with support from some other parties. And realizing the position, the Maoist party also supported the NC and the UML’s proposals and gave up its demand for making identity and resources as the bases 

of federalism.

It was obvious that while adopting the constitution most of the top leaders of all major parties apprehended that federalism would weaken the nation, as it would affect the existing central control over those areas which would be brought under different provinces. 

They also apprehended that since local populations will have control over their areas, they may go for division/bifurcation of the territories. 

Their main concern was regarding their control of the bureaucracy, the permanent government.  If power was divided, their complete say over it would decrease, if not end.

These are the reasons that even after the passing of eight years and three tiers of government duly elected, they are not allowed to function as per powers delivered by the constitution. Important federal laws are not framed as yet to enable them to use their rights to govern the administration and discharge day-to-day duties. 

It seems that many laws, including those related to the civil and police administrations, have not been enacted by the center deliberately to prove that the provincial tier of governance is superfluous and redundant. It is evident from the facts that the frequent transfers and postings of high officials hinder the government’s functioning seriously, as there have been frequent complaints to the center. There are cases filed by the provincial governments in the Supreme Court for the protection of their constitutional rights.

It can be assumed that before taking the decision for carving out seven provinces, they made the local tiers of government more powerful and kept it outside of the overall supervision and control of the provinces to make the second tier weak and worthless. 

The constitution has provided for three tiers of government—central, provincial and local. 

However, the central government has made it a four-tier government by adding one more tier by way of district government, which is controlled by the central government. 

Chief district officers are in charge of peace and security of the districts. It has been made so that the central government will prevail ultimately over provincial and local governments. There are many more obstacles created by the center to prove that federalism is only an unwanted child of the constitution, which is not allowed to grow properly so that its life gets shortened for want of nutritious food to survive by not providing sufficient support.

Chief Justice Bishowambhar Prasad Shrestha said the Constitution of Nepal was not only a document of constitutional change but also a long-awaited state restructuring, forms of governance and social and cultural transformation.

Extending best wishes to all Nepali sisters and brothers at home and abroad on the occasion of the Constitution Day, 2080, Chief Justice Shrestha said the Constitution has its objective to assure lasting peace, good governance, development and prosperity.

"Constitutionalism, justice and equality are the spirit of the constitution", reads the message. "The Constitution can be rightly implemented through thinking, perspectives and performances of all state agencies".

The day today was epochal for the people for attaining the Constitution through the Constituent Assembly having their representatives, he said, adding the Nepal Constitution was of special importance from the constitution-making process and its inherent content.

Eight long years have passed since Nepal embarked on the journey of crafting a new federal democratic constitution through the Constituent Assembly (CA), a vision held dear by the people since the 1950s.

As per the constitution's mandate, we have seen two rounds of elections for a three-tier government—federal, provincial, and local— with even parties from the Madhes region embracing the constitution, albeit with initial reservations. Today, there is hardly any prominent political force opposing it outright, though many still harbor reservations.

Yet, despite these advancements, the constitution has fallen short of delivering the much-needed political stability. Over the past eight tumultuous years, we have witnessed six governments led by three different leaders—KP Sharma Oli, Sher Bahadur Deuba and Pushpa Kamal Dahal. There was a glimmer of hope when CPN-UML and CPN (Maoist Center) united in 2018, but that optimism was shattered with their subsequent split.

During this period, the parliament faced dissolution twice, and the ruling alliances underwent frequent changes. Provincial assemblies fared no better. Thanks to the electoral system adopted by the constitution, the chances of a single party securing a majority are nearly nonexistent, and the sustainability of such a majority is uncertain. Parties have become engrossed in safeguarding their interests, leaving the people's agenda in the dust. Ideological positions were abandoned as parties displayed a willingness to form alliances with anyone, anytime. 

In these eight years, parties made systematic efforts to control the judiciary and parliament, undermining the crucial separation of powers principle. The constitutional bodies suffered politicization and paralysis.

The constitution has also failed to ignite the economic prosperity and development it promised. Frequent changes in government, a growing economic crisis, corruption, job scarcity, and poor governance have fueled frustration among citizens.

The disillusionment has driven many youths to seek education and employment abroad, with approximately 2,000 leaving Nepal daily. Those remaining in the country are increasingly losing hope for their careers. Opportunistic royalist and anti-federal forces are meanwhile attempting to capitalize on this discontent.

Constitutional expert Radheshyam Adhikari says that the people's growing frustration is not a reflection of the constitution's failure but rather the ineptitude of those in power. 

“Obviously, people are frustrated because of the working style of the rulers who have failed to deliver. Rule of law has been undermined and economic issues remain unaddressed,” he says. “A constitution is just a tool, not a solution. It is the political parties who must mend their ways.” 

Adhikari adds while there are flaws in the constitution, it can always be redressed after thorough and objective analysis, underscoring that there is no alternative to this constitution.

Another constitutional expert, Nilambar Acharya, shares a similar sentiment. He sees no reason to blame the constitution for the country's current state. 

“Weaknesses and loopholes can be amended, but the constitution itself is not at fault. It's the actors and parties that have made mistakes,” he says. 

The 2015 constitution was a result of compromise among major political players, including Nepali Congress, CPN-UML and CPN (Maoist Center), and various ethnic groups. Madhes-based parties initially disowned the charter, leading to the first amendment to partially address their concerns. Eventually, most Madhes-based parties abandoned their original agenda to join the government.

After eight years, one would expect the constitution and federal structure to have strengthened. However, doubts are emerging about the constitution's sustainability and core principles. Even within major parties, voices are growing in favor of scrapping the federal structure.

Secularism faces more threats than ever, with major parties wavering in their commitment. Pro-Hindu forces are pushing for a return to a Hindu state, and social harmony and religious tolerance are under strain. Recent incidents in Dharan and Lahan serve as examples, where tensions flared. The only way to quell anti-constitution sentiments is through effective governance and action from political parties.

Despite these challenges, it is high time to review the constitution and assess the performance of political parties. This doesn't mean the constitution must be discarded; rather, parties need to course-correct immediately. The constitution was a step toward progress, but the journey requires the right guidance and determination to succeed.