Constitutional Rhetoric And Reality
We have completed two years since we enacted and promulgated the federal democratic constitution of Nepal 2015. The constitution day was observed with glowing praise for the important features of the constitution. In the history of the constitutional development, this has been the seventh constitution of Nepal. But this constitution has been the first one enacted and adopted by the 601-member Constituent Assembly (CA) which was purposively elected for writing the constitution in consonance with the wishes and aspirations of the people. The constitution transforms the country into a federal democratic republic and proudly proclaims that the people of Nepal wield the sovereign power. They have the right to exercise autonomy and self-rule.
Moreover, the constitution notes its commitment to Nepal’s multiethnic, multilingual, multicultural and diverse geographical characteristics. The constitution also expresses its determination to end of discriminations relating to class, ethnicity, region, language, religion and gender, including all forms of abusive and demeaning treatment meted out to the people. The democratic republican constitution articulates its pledge to create an egalitarian society on the basis of the principles of proportional inclusion and participation to establish equitable economy, prosperity and social justice. Needless to say, Nepal is defined by the new Constitution as an independent, indivisible, sovereign, secular, inclusive democratic, socialism-oriented federal democratic republican state. Furthermore, the new constitution provides a long list of fundamental rights, including economic, social and cultural rights.
There is a provision for affirmative action for discriminated and socially disadvantaged communities in the country. The right to inclusion and participation in the state structures is also guaranteed which does apply to all communities in the country. The rights of the women, Dalits, indigenous people and minorities have also been envisaged in the constitution through several substantive provisions. These rights are justiciable in the sense that these can be claimed by the citizens of Nepal at the high court and district courts as part of the right to seeking remedy for enforcement of the fundamental rights.
Furthermore, the important basic features of the new constitution have been that its several provisions exist to create specific independent constitutional commissions such as the Women Commission, Dalit Commission, Janajati Commission, Madhesi Commission, Tharu Commission and Muslim Commission and so on. These commissions co-exist with the National Human Rights Commission. These commissions have a mandate to recommend changes in the laws, policies, and practices of areas that discriminate against or deny rights to their respective communities. These commissions are expected to make the state inclusionary for major groups and communities in the country. It is positive to note that the laws are being enacted by the parliament for the formation of the commissions and make these constitutional bodies active and functional.
The noteworthy feature of the constitution has been that it restructures Nepal into a federal country with three layers of governments. The centralised unitary structure of the country has been supplanted by seven federal provinces with clearly stipulated legislative powers for the central, provincial, and local bodies. The welcome political development has been that the long deferred elections for the local level government has been held. The successful holding of election for 136 local level governments in Province 2 has completed the cycle of installation of the popularly elected democratic institutions at the local level and also ended the political disagreement persisted in the acceptability of the constitutional provisions.
Needless to repeat, the constitution has an elaborate federal scheme for reorganisation of the state. The local level governments have been restructured. The constitution also provides for separate list of powers of the federal layers. Similarly, legislative and financial procedures of each level have also been elaborated by the constitution. A National Natural Resources and Fiscal Commission has been envisaged to determine extensive grounds and basis in regard to the distribution of revenue from the federal consolidated fund to the federal, provincial and local level governments according to the constitution and law of the land. According to the constitution, the state powers (Rajkiya Shakti) of Nepal shall be used by the three main structures of the government, namely federal, provincial and local subject to the provision of the constitution.
It is apt to note the fact that the power of the each level of the structure has been stipulated in different schedules of the constitution and shall be exercised in accordance with this constitution and the federal law. Like in other federal countries, the constitution also provides for concurrent/shared power of the federation and the province, and federation, province and the local level. It is stated in the constitution that powers relating to any subject that are not mentioned in the list of powers of the federation, province or the local level entity, or in the concurrent/shared powers of federation and the province shall rest with the federation as residual powers. As fiscal resources are the mainstay for implementation of federal governance scheme, the constitution also lays down norms for use of fiscal power and distribution of sources of revenue among the three layers of the government.
The constitution continues with the provisions on registration and operation of political parties reminiscent of the constitution of the Kingdom of Nepal 1990 that had provided for the security of the existence of the political parties. The political parties are required to register their names under the Election Commission in accordance with the procedure determined by law. The constitution and rules of the political party should be democratic.
According to the constitutional provision there should be the provision in the statute of the political party for the election of the office-bearers in the federal and provincial levels once in five years. The new federal democratic republic constitution, therefore, contains very important and substantive provisions to warrant for democratisation of state and society but key subject lies in how they are put into implementation. Though the elections being planned for federal and provincial government are the right step in positive direction, crux lies in how would-be elected governments perform to deliver to the wishes and aspirations of the people.