Federal Constitution Of Nepal Let It Evolve Through Practice

 Mukti Rijal

 

The Constitution of Nepal promulgated on September  20, 2015  is ademocratic and republican charter of the nation . In its preamble, the intent and purpose of this democratic republic constitution is clearly stipulated. The preamble to the constitution states that this democratic republican constitution was enacted by the constituent assembly to achieve the people’s aspirations for enduring peace, good governance, development and prosperityfor the nation. The constitution combines both democratic and republican features and dimensions. These dimensions are very important in democracy building,  institutionalisation of rule of law and nurturing  sovereignty of the people. A republican state is defined as a sovereign state which is organized with a form of government  in which power resides in elected individuals representing the citizens.

Moreover, in a democratic state,  the  government leaders exercise power according to the rule of law. Currently, 147 of the world’s sovereign states use republic as part of their official names. Not all of these are republics in the sense of having elected democratic governments. Nor do all nations with elected governments use the word republic in their names.

 But Nepal qualifies to be a democratic republic  in the sense it has abolished the hereditary monarchy to meet the universal and global standards of republicanism. Moreover, Nepal has  established the democratic institutions  and these democratic mechanism  find better elucidation and  illustration   in this constitution   promulgated just a year ago. Going back to the history we find that  the republics became more common in the Western world starting in the late 18th century. They  had come into existence  displacing the autocratic and abolute monarchy  as the most common form of government in Europe in those times  The republics that were brought into existence in Europe in those days had not been  democratic  having  the mandate of the people in the modern sense of the term. However in modern republics,  the situation is completely different. The  executive theoretically  is legitimized both by the written  democratic constitution  in most of the cases and also   by popular vote.

The  ideal of a democracy is universal equality while  that of   a republic is individual liberty.When ideal of equality and individual freedom are  effectively  combined and blended , the   democratic republic becomes  a functioning proposition.

But experiences have  shown that  the  strong   commitment to democracy have to be expressed in practice. Only mentioning  democracy and republic in the constitiution expressed in letter and words  does not make sense if  democratic politics, culture and behaviour  are lacking. Although envisaging   democracy and republic in the basic law of the land is necessary as a matter of democratic commitment, these have to  be backed up  by appropriate operational environment and reality.  In fact,  it is interesting to  note the fact that the democracy does not appear anywhere  in the US  Constitution or the Declaration of Independence; or in any   State constitution, for that matter. It is in order to note that  the US has  fifty one federal entities called states and they have  their own separate constitutions. It is through practices and conduct  that  the US has become one of the most  impportant and vibrant demoratic republican   countries in the world.

In the democratic histroy of around  three  hundred years, the US constitution  has been amended less than three dozen times and so is the case of other countries  like India . India  got democratic republic constitution in 1951 after the British left  but the amendments are carried out only when the empirical  experiences and practical needs  dictated  accordingly.  However, when we   take the case of our own country Nepal,   it is poised to be amended  even before  the constitution  has been enforced and implemented in its fuller sense. It is very disconcerting to note that a constitution that has been  enacted and promulgated  by the constituent assembly  has  to get confronted  with the very unsavoury destiny of being tinkered with    and altered before its provisions are implemented . It  indicates  how fragile and weakened  has been the constitutional  foundation of the democratic political system  of the country .

Nepal is not only the democratic republic but also has become a federal country. This  is clearly stipulated in this constitution. The constitution provides for seven provincial entities and these units have  been endowed   with  substantive  functions and competencies. As the country is entering the phase of constitution implementation through enactment of  several laws and legislations, the incumbent government is toying with the notion  of amending the constitution.

Though it is necessary to address the genuine aspirations  of the people though  amendment to the constitution if needed, it is equally important to let the constitution come into implementation  to ascertain the substantive contents for  amendment.

It  will set a bad precedent  as the constitution can be demeaned  and derogated  as it were an ordinary legislation amenable to amendment at the flimsiest pretext. Only on the ground of perceived  benefits or harms the  basic law of the land should not be subjected to amendment.

Experiences and practices world wide have indicated that the federalism is an envolving process. India is a case of federalism where boundariesof federal entitties are redemarcated and redrawn time and again. In India the new provinces have  been drawn up  but these are done only after  the genuine aspirations  of the people are articulated and  confirmed through practical implementation of the constitutional provisions. If we have to uphold and strengthen the values  enshrined  in the constitution   we need to have the sense of patience , tolerance and accommodation. Otherwise  the ideals of democracy and republicanism vouchsafed for  in the constitution will not be translated  into reality.

 

 

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