The Constitution of Nepal: A Critique

The Constitution of Nepal: A Critique Dr. Hari Bansh Tripathi*

Abstract

Promulgation of the Constitution of Nepal (2015) was guided by the prime motive of political and social transformation, thereby ensuring liberties of the people belonging to different classes and communities and opening the vista of overall development of the nation. In this process, there have been some allegations regarding maneuvering by some mainstream political parties by sidelining the concerns of Madhesh based parties. In this article, the author gives a critical account of the strengths and weaknesses of the new Constitution. The author also discusses the vexatious contents in the Preamble and the fundamental rights Chapter, besides the constitutional provisions about federalism and inclusion. The author rightly concludes that the politicians should display statesmanship, farsightedness and a spirit of co-existence for successful execution of the Constitution.

1. Background

The constitutional discourse of Nepal can be better likened to a laboratory of constitutional experiments. The United States of America is credited to have begun the practice of written constitution long back in 1787, and that Constitution of United States is still going great even after the lapse of almost 221 years. It is so because the American people and politicians have always placed the document of their basic law beyond petty partisan interests, political or personal, and have invariably used it as an effective instrument of governance for strengthening democracy and the rule of law, protecting and promoting basic liberties of the people and overall development of the nation. And the American Judiciary has played all through an effective role to give sustenance and vitality to the constitutional provisions by fulfilling the lacuna, if any, through dynamic interpretations from time to time. But in clear contrast, the Nepali constitutional scenario portrays an uneasy picture marked by repeated experiments, guided by petty partisan political interests, sometime of the then royal rulers and, in recent past, of the short sighted policy of the political parties vying with one another for vested political control or their partisan interests. Since the last half of the preceding Century, Nepal has passed through a series of transitional phases in her march towards democracy and the rule of law. Ever since 1948, the year marking the beginning of limited constitutional exercise in Nepal, this small country has been forced to experience the trauma of witnessing repeated

*

Dr. Tripathi, an ex-Appellate Court Judge, is currently associated with NJA as Consultant. This article is patterned after his earlier article titled “Nepalko Sambidhan: Ek Samichhatmak Tippani”, published in Sopan Monthly, OctoberNovember Issue, 2015, pp. 3-14.

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experiments with seven constitutions of varying hue and colors. However, a close analysis of this constitutional syndrome reveals one fundamental similarity among all the seven constitutions promulgated so far, respectively, in 1948, 1951, 1959, 1962, 1990, 2007 and 2015. In fact, the constitutions in Nepal have been hardly written and promulgated in the form of a pure constitutional exercise guided by the prime motive of using the basic document as a legitimate means of governance of the State and an effective instrument of social and political transformation, thereby ensuring liberties of the people and opening the vista of overall development of the nation. On the contrary, the constitutions promulgated at various turns of political history of Nepal had been primarily introduced as a strategic political tool1 for addressing the social and political discontentment, and curbing or controlling or facilitating conflicts or disagreements prevalent in the then social and political contexts. To illustrate it more succinctly, the then Rana Prime Minister Padma Shamsher had got enacted the Nepal government Act, 2004 (1948) in a bid to suppress the rising discontentment among the people against the Ranacracy. Likewise, the Interim Constitution of Nepal, promulgated in 2007 (1951), was designed in the form of ‘a political manifesto of transfer of power’ marking the end of autocratic Rana regime and ensuring transition to limited democracy in Nepal. King Mahendra tactfully connived for drafting the Constitution of the Kingdom of Nepal, 2015 (1959) so as to present it as a mixed document retaining the supremacy of monarchy under the guise of multi-party system. In fact, this document was prepared as a strategy to salvage the promise made by King Tribhuvan in 2007, on his return from India following the tripartite Delhi Pact, to give to the Nepali people the next Constitution drafted by a Constituent Assembly. But, subsequently, King Tribhuban did not remain true to his promise made to the nation. Even far more worse was the reason behind the enactment of the Panchayat Constitution of Nepal promulgated by King Mahendra in 2019 (1962). The Pachayat Constitution was promulgated by the King to further tighten his absolute grip over the system of governance under the guise of so-called partyless Panchyat democracy. The people’s movement ignited by the mass popular discontentment against the regressive Panchayat rule ultimately resulted in the demise of the Panchayat regime and collapse of the Panchayat Constitution of 2019. The Constitution of the Kingdom of Nepal, 2047 (1990) was born as the brain child of the historic people’s movement which was solely focused on confining the absolute monarchy within the four walls of the Constitution, and establishing the Nepali people as the ultimate source of sovereignty and political authority of the State. However, in the following days the political leaders freely indulged in deliberate abuse and misuse of the multi-party democratic system with a view to promoting their vested political interests. This gave rise to the 10 year long armed rebellion started by the Maoists followed by the autocratic, authoritarian and unconstitutional rule of King Gyanendra for the last few years. Finally, the Interim

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Dr. Hari Bansh Tripathi, Fundamental Rights and Judicial Review in Nepal (Evolution & Experiments), (2001), Pairavi Prakashan, Kathmandu, “…in Nepal time and again Constitution has been successfully used as an effective weapon for crisis management to successfully diffuse mounting tension and conflicts caused by various types of the systemic pulls and pressures, caused by the internal or/and external factors.”, P. 342.

The Constitution of Nepal: A Critique

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Constitution of Nepal came as a compromise document between the mainstream political parties and the rebellious Maoist forces following the Comprehensive Peace Accord signed in November 2006. The Interim Constitution was solely guided by the twin objectives of managing the peace process and bringing the transitional period to a successful conclusion by enacting a democratic constitution of the Republic through the Constituent Assembly. And finally, the seventh Constitution of Nepal was promulgated by the Constituent Assembly on Ashwin 3, 2072 (Sep. 20, 2015). This constitution seems to be rather more comprehensive which promises to charter a road map for the creation of a new democratic Nepal through effective social, political and economic transformation by ending or eliminating discriminations, exploitations and feudalism deeply rooted in the socio-political and economic structure of Nepal. The act of constitution making is a highly complex process, more so in the context of a post-conflict society. It is expected to be capable of facilitating the ongoing dialogues and discussions at the national level so as to achieve coordination among conflicting claims and opinions all through the peace process. Expect constitution making process and participatory Constitution making process are generally the two main models commonly adopted around the world for constitution making. What marks the difference between those two models is reflected in the process of constitution making and its outcomes. In the expert constitution making process the sovereign authority delegates its power to an expert committee to draft the Constitution which is subsequently adopted and formalized as per the law. On the contrary, in the participatory constitution making process the duly elected representatives of the people and the political leadership together lay down the political philosophy, concepts and guidelines, and provide the political road map for the governance and socio-economic transformation of the State. Thereafter, may be, sometimes even with the help of some experts the constitutional roadmap is translated into a well-knit constitutional document. All the preceding six constitutions of Nepal were in some way or the other prepared by constitutional experts and intelligentsia, sometimes with limited involvement of also the representatives of some political parties. However, it is for the first time that the present Constitution of Nepal has been prepared solely by a Constituent Assembly adopting the participatory process. In this sense, the present Constitution looks unique in itself for being an effective expression of the sovereignty vested in the people. But the promulgation of the new Constitution of Nepal has passed through a painful process. The first Constituent Assembly, despite repeated extension of its tenure, could not make the Constitution on account of serious differences among the conflicting political forces chiefly in respect of the issues relating to arms management and integration of the Maoist armed forces in the national army, governance system of the State, federalism, electoral process and the judicial system. Even the second Constituent Assembly had faced the eminent danger of dissolution without making the Constitution due to the persistent rigid stand of the leading political parties and the mutual bickerings among them. However, the devastating earthquake of April 25, 2015 came as a blessing in disguise which forced

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the three major political parties, besides one political party self-claiming to represent the voice of Madhesh, to get over their political differences and execute a 16-Point political understanding on Jyestha 25, 2072. It was this political understanding which served as the foundation for enactment and historical promulgation of the new Constitution of Nepal on Sep. 20, 2015. In all, 91% of the effective membership of the Constituent Assembly, i.e., 597 members participated in the process of constitution making and put their signature on the original copy of the Constitution. And 85% of them cast their votes of assent in favor of the Constitution. This huge number of assenting members has been trumpeted as an indicator of the widest acceptance of the Constitution. Not only that, as compared to the reality of only 67% of the Constituent Assembly members casting their votes of consent in adopting the Indian Constitution, the Nepali number of consent for the new Constitution has been much publicized as an example to reinforce the perception of wider acceptance of the Constitution. However, there are strong teeth in the comments made by some intellectuals including reputed senior journalist Yuv Raj Ghimire who have branded the new Constitution as a document prepared under the “dictate of the three leaders” and marred by procedural irregularities and non-constitutional conduct which accounted for the weak moral standing of the Constitution.2 With the promulgation of the Constitution of Nepal (2072), Nepal has joined the select galaxy of nearly 42 countries which are said to have promulgated their Constitutions through a Constituent Assembly (CA).3 It is also a matter of pride and satisfaction for the Nepali that the new Constitution was successfully promulgated despite several odds and machinations and political maneuverings. Notwithstanding all this, the new Constitution could not acquire unanimous acceptability all through Nepal as its promulgation was unfortunately greeted with boycott, blackout and even violent protests all through the Tarai districts. The Constitution was dubbed in many instances even discriminatory and unjust towards the Madheshi people. However, even though the Madheshi community expressed widespread dissatisfaction with several provisions of the Constitution relating to proportional representation, inclusion, citizenship and demarcation of the State territories, no agitating group of Madhesh has outright rejected or dismissed the Constitution in its totality. This may be treated as ‘silver living in the dark clouds.’ Therefore, in order to understand and appreciate the latest Constitution of Nepal in its proper perspective, it shall be more appropriate to make a critical appraisal of the strengths and weaknesses of the Constitution. So let us first start analyzing briefly the salient features of the Constitution.

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Yuv Raj Ghimire, “Naya Sambidhanle Janmayaka Asha ra Ashanka”,Annapurna Post, Friday, Ashwin 1, 2072. France is supposed to lead the list of the countries which delivered their Constitutions through CA. French Constitution of 1791 was drafted by the National Assembly with technical support from a Constitutional Committee. Of some other important countries which promulgated their Constitutions through CA, Norway delivered its Constitution in 1814, Russia in 1918, Germany in 1919, Ireland in 1922, India in 1949, Pakistan in 1956, Italy in 1946, Israel in 1948, Turkey in 1961, Namibia in 1990, Colombia in 1992, Ethiopia in 1994, South Africa in 1994, East Timor in 1996, Venezuela in 1999 and Lithuania in 1920. (Source: Republica, July 6, 2016).


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2. Salient Features of the New Constitution

The measuring rod of the beauty of any Constitution consists of three components, namely, the constitution making process, the contents of the Constitution and the norms and values enshrined in the constitutional document. The present Constitution has been obviously participatory, at least in principle, as it has been prepared by a Constituent Assembly having effective membership of 597 representatives out of a total of 601 members. Another significant aspect of the participatory process is reflected by the representation of members belonging to various classes, castes, communities and religions. However, apart from the participatory process of constitution making, the inherent quality of its contents and wider acceptance of the norms and values enshrined in the Constitution are equally important for the successful functioning of the Constitution. The main features of the new Constitution lie in its institutionalization of the landmark achievements made by the second popular People’s Movement, namely, federalism, democracy, republicanism and inclusion. In addition to all this, the new Constitution has imbibed and incorporated some universally accepted ingredients of Constitutionalism such as sovereignty vested in the people, the doctrine of separation of power, adult franchise and periodic elections, independent, impartial and competent judiciary, basic liberties of the people, freedom of press, rule of law and constitutional supremacy. The Preamble of the Constitution has also forcefully declared that the Constitution has been promulgated with the pious intention of fulfilling the aspirations of achieving perpetual peace, good governance, development and prosperity through the medium of federal democratic republican system expressing commitment to and embracing the basic constitutional values.

2.1 Dynamism and Flexibility of the Constitution

As the new Constitution is based on the principles of dynamism and changeorientation, it can be plainly described as a liberal and flexible Constitution. It appears progressive in its outlook as it seems to have enough space for accommodating changes and new values as per the needs of the changing times. A Constitution is supposed to be a living, dynamic document which should be capable of addressing the future challenges, emerging aspirations of the people and changing context of the times. Except the provisions relating to self-rule of Nepal, sovereignty, territorial integrity and sovereignty vested in the people4, the new Constitution of Nepal has allowed space for moving amendment to any Article, whatsoever, of the Constitution. However, such an amendment shall require endorsement by a two-thirds majority of the existing members in both houses of Federal Legislature. Thus as propounded by the Supreme Court of India in the landmark constitutional case of Keshavanand Bharti vs. State of Kerala,5 the new Constitution has also imbibed the doctrine of basic structure and described

4

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Constitution of Nepal (2072), Art. 274: Amendment of the Constitution: (1) this Constitution shall not be amended in a way that contravenes with self-rule of Nepal, sovereignty, territorial integrity and sovereignty vested in people. AIR 1973 SC 1461

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the aforesaid four fundamental ingredients of the Constitution as not amendable. In this way, the new Constitution has allowed adequate space for introducing amendments to the Constitution so as to address and incorporate necessary changes as and when required. This flexibility of the Constitution promises to make it a living, dynamic document.

2.2 Comprehensive Catalogue of Fundamental Rights

The new Constitution seems to be overburdened with a comprehensive catalogue of fundamental rights. Whereas the preceding Interim Constitution of Nepal 2063(2007) had provided for 21 fundamental rights, the present Constitution has improved the list by guaranteeing ten more basic rights, thereby taking the tally to 31 fundamental rights in all. Perhaps, our Constitution may compete for the top position among the world constitutions in guaranteeing plethora of fundamental rights of the people. The Constitution has been liberal enough to incorporate and assimilate most of the major social, political, economic and cultural rights of the people as provided in the international human rights law including the International Covenant on Civil and Political Rights (1966) and the International Covenant on Economic, Social and Cultural Rights (1966). Apart from this, the new Constitution has also guaranteed some novel and even third generation rights such as victim’s rights, dalit’s rights, senior citizen’s rights, consumer’s rights and the rights to food sovereignty, employment, residence and health. Article 42 of the Constitution has identified the people belonging to marginalized classes and communities such as women, Adivasi Janajati, Dalits, Madheshi, Tharu, Muslim etc., and guaranteed not only their right to participation on the basis of principle of inclusion in various structures of the State, but also provided for making special laws for their special protection, promotion and improvement. All said and done, there should be no hesitation to point out that, on the whole, the exhaustive list of fundamental rights looks more populist than practical. It will be a Herculean task for the State to create an environment for the realization of some of the fundamental rights which will obviously require huge means and physical resources.

2.3 Inclusion and Proportional Representation

Nepali society has been inflicted for long with the maladies of discrimination, exploitation and feudalism. Despite all sweet music played and presented by the Royal rulers in the past and by the political parties after restoration of democracy in 1990, the overall situation has not made any major improvement. However, the ever increasing awareness among the common people about their rights and interests has exerted considerable pressure on the political maestros to think seriously about addressing those issues. The ten year long armed conflict raged by the Maoist rebels as well as the Madhesh uprising of 2063 were basically triggered by the rising concern for ending systemic discriminations and exploitations embedded in the Nepali society. Besides, the debate regarding the issue of inclusion and participation in the political and administrative structure of the nation has also occupied a central place. No doubt, the present Constitution has tried to address those vital issues to a considerable extent. Nevertheless, still a lot


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more needs to be done to make the constitutional arrangements more inclusive and compatible with the concept of proportional inclusion. The First Amendment introduced to Article 42 of the Constitution ensuring proportional representation in the State structure can be taken as a step in the right direction. In the new Constitution, the lawmakers have endeavored to address the issue of inclusion with respect to various classes and communities as mentioned below: Firstly, the Preamble of the Constitution has expressed the solemn pledge “to create an egalitarian society on the basis of the principles of proportional inclusion and participation”. Secondly, Article 56 of the Constitution envisages the creation of the Federation, Provinces and local levels “based on plurality and equality and inclusive representation and identity.” Thirdly, Article 40(1) guarantees that “Dalits shall have the rights to participate in all agencies of the State based on the principle of proportional inclusion.” Fourthly, Article 42(1) guarantees to the people belonging to various marginalized classes and communities “the right to employment in State structure on the basis of the principle of inclusion.” Fifthly, Under Directive Principles of the State, Article 50(1) expresses commitment to work for establishing a Welfare State “internalizing the principle of inclusion in the governance system on the basis of local autonomy and decentralization.” Sixthly, Article 76(9) instructs that the Council of Ministers shall be formed not exceeding 25 in number from among the members of the Federal Parliament “on the basis of the principle of inclusion”. Likewise, Article 168(9) provides for constituting the Provincial Council of Ministers “on the basis of the principle of inclusion.” Seventh, Article 267(1) envisages ‘an organization of Nepal Army… (which is)… committed to democratic principles, inclusive in character and national in form.” Clause (3) of Article 267 has also laid down the condition of ensuring the entry of women, Dalits, indigenous community, Khas Arya, Madhesi, Tharu, Muslim and people of backward regions “based on the principle of equality and principle of inclusion.” Eighth, Article 282 calls for appointment of Ambassadors of Nepal and other emissaries “based on the principle of inclusion.” So is the case in appointment to the constitutional bodies and agencies to be made according to the principle of inclusion as dictated by Article 283. Last but not the least, Article 285 provides for fulfilling position of all Federal Government services through competitive examinations “based on the principle of open and proportional inclusion according to Federal Law.” On top of all this, the provision of a National Inclusion Commission contained in Article 259 is indicative of the State’s commitment to introduce inclusion in every thread and fabric of governance of the State. This National Inclusion Commission shall be mandated to carry out research and studies for protective rights and welfare of various classes and communities which are less privileged and marginalized, to review and reform the State Policy in regard to more inclusion, to conduct study about the rightful representation of the specified categories of people in the State mechanisms and for further empowerment, development and protection of those classes and communities of the people.

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3. Some Innovative Provisions in the Constitution

Learning by experience is a common practice. The instability introduced by the past Parliamentary practices and sometimes indulgence in horse trading and vested interests by the political players of the system served enough food for our lawmakers to think about creating an inbuilt damage control system in the present Constitution. With the result, some innovative provisions have been made with a view to strengthening the democratic system of governance, its stability, good governance and inclusion. The following provisions are bound to cast positive impacts in this regard. For example, firstly, no person shall be allowed to become a candidate for election for the House of Representatives in more than one electoral constituency at the same time.6 This provision is bound to save unnecessary expenses from the tax payers’ money made on reelection for a constituency vacated by a candidate who happens to win from two electoral Constituencies at the same time. Secondly, a person who has lost election for the House of Representatives shall not be eligible to be a Minister during the tenure of the existing House of Representatives.7 Thirdly, while electing the Speaker and Deputy Speaker of the House of Representatives, either the Speaker or Deputy Speaker shall be a woman and shall belong to a different party.8 Likewise, while electing the Chairperson or Vice Chairperson of National Assembly, either the Chairperson or Vice Chairperson shall be a woman.9 Similarly, while electing the Speaker or Deputy Speaker of Provincial Assembly, either the Speaker or the Deputy Speaker shall be a woman and shall belong to a different party.10 Fourthly, the election for the office of President and Vice President shall be held requiring representation of different gender or communities.11 Fifthly, the Council of Ministers shall be constituted not exceeding twenty five in number from among the members of the Federal Parliament on the basis of inclusion.12 Likewise, the Provincial Council of Ministers shall be constituted on the basis of the principle of inclusion not exceeding twenty percent of the total number of members of the Provincial Assembly.13 Sixthly, even though our Constitution looks like having resemblance to the Westminster model, it has, in fact, three marked differences. Firstly, the Prime Minister’s power of dissolving the Parliament has been restrained. Secondly, a No- Confidence motion shall not be presented for the first two years of appointment of the Prime Minister, and if a confidence motion fails, another motion cannot be tabled within a year of its failure.14 Thirdly, the name of the member proposed for Prime Minister should be mentioned while the tabling the No-Confidence motion as per Article

9 6 7 8

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The Constitution of Nepal, (2072), Art. 84(6) Art. 78(4) Art. 91(2) Art. 92(2) Art. 182(2) Art. 70 Art. 76(9) Art. 168(9) Art. 100(4)


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100(4).15 Such restraining provisions have been incorporated obviously intending to discourage undemocratic practices often resorted to introduce instability in the government, and thus to consolidate the stability of the elected government for a specified time period. So far so good! But we should not be oblivious of the fact that such a provision may sometimes engender arbitrariness among the persons running the State affairs, which may prove counterproductive from the viewpoint of good governance. Apart from that, in case the party in power, for some reason or the other, fails to get approved by the Parliament the programs and policies of the Government or the national budget for the fiscal year, what would be the way out of this political impasse? In a Parliamentary system, such a situation is deemed as a clear indicator of the fact that the Government has lost the trust of the House and has been reduced to minority. But if the party in power refuses to resign from the seat of political power, and, on the other hand, the opposition is constitutionally restrained from moving a No-Confidence motion within the first two years of installation of the Government, it is bound to create a state of political chaos and confusion in the day to day governance of the State affairs. Seventh, a person should have acquired the citizenship of Nepal by descent to be elected, nominated or appointed as the President, Vice President, Prime Minister, Chief Justice, Speaker of the Parliament, Chairperson of National Assembly, Head of any Province, Chief Minister, Speaker of any Provincial assembly and Chief of any security body.16 Eighth, a Nepali Citizen having obtained a permanent residence permission of a foreign country shall not be eligible for election, nomination or appointment to any office as per this Constitution.17 Ninth, the Constitution has envisaged for the establishment of a Constitutional Bench comprising the Chief Justice and other four Justices of the Supreme Court appointed by the Chief Justice on the recommendation of the Judicial Council. The Constitutional Bench shall have chiefly jurisdiction over disputes relating to jurisdiction between the Federation and any Province, among Provinces, between a Province and the local level and among the local governments, disputes relating to the election of members of the Federal Parliament or Provincial Assembly, and ineligibility of any member of the Federal Parliament or Provincial Assembly. Ninth, the new Constitution has addressed a much debated issue of debarring quasi-judicial bodies from handling serious types of criminal cases involving longer terms of imprisonment. It has specifically provided that criminal cases involving prison sentence of more than one year shall not fall under the jurisdiction of any institution other than a court or specialized court or Military Court or judicial body.18 This reformative constitutional provision seems to be guided by Article 14(1) of International Covenant on Civil and Political Rights (1966) which provides,

17 18 15 16

Art. 100(5) Art. 289 Art. 291 Art. 152(2)

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“Everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law” …”in the determination of any criminal charge against him…”. As a follow-up step for implementing Article 152(2), the Constitution has provided in Article 300(7) under the heading of “Transitional Provisions” that the criminal cases involving the sentence of more than a year of imprisonment which are sub judice before any bodies other than the court shall be transferred to District Court of the respective district after the commencement of the Constitution. Following the promulgation of the Constitution thousands of such cases were, in fact, transferred to the respective District Courts. However, in order to dilute the impact of this constitutional provision embedded in Article 152(2) and evade the jurisdiction of general law courts, the Parliament has recently passed a Bill amending the relevant provisions relating to punishment in some statutes, and has significantly reduced the term of imprisonment even in case of some serious criminal offenses like black marketeering, possession of illegal arms and ammunition etc. Such a tactical move of the government to re surrender certain serious offenses to the jurisdiction of quasi-judicial bodies by significantly reducing the length of incarnation is obviously mala fide, and is bound to defeat the sense of justice. In the long run, it shall help promote impunity and undermine the principle of good governance. Last but not the least, the provision made by the present Constitution relating to referendum is unique and innovative. If a two-third majority of the total members of the Federal Legislature decides that it is necessary to make a decision on any matter of national importance through referendum, a decision may be reached on such matter through referendum. It is, no doubt, a democratic process to reach a decision on any controversial issue of national importance. However, the common people still wonder why before declaring the new Constitution some sensitive issues like secularism and form of governance of the State were not subjected to the democratic process of referendum for resolution?

4. Issues of Debate and Dissent in the Constitution

Needless to say, a Constitution is supposed to be a collective document of consensus. The present Constitution is also described as such by the major political partys which were chiefly instrumental in its promulgation. It is believed by many that the present constitutional document is capable of addressing the interests and concerns of the people belonging to different classes and communities living in the Himal, Hills and Tarai regions. But everything obviously does not seem to be well with the Constitution. Had it been so, the promulgation of the new Constitution should have been widely acclaimed and greeted with enthusiasm and generous welcome in every nook and corner of the country. On the contrary, it generated a wave of violent protests all along the Tarai region. Such a scenario is clearly indicative of the bitter reality that notwithstanding its several democratic features, the Constitution suffers from a few marked infirmities and serious drawbacks as well. Some of those drawbacks are an outcome of faulty drafting technique


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whereas a good number of them are caused by political rigidity, discriminatory outlook and centralized status quo mentality.

4.1 Preamble

Preamble of a Constitution is generally regarded as the soul of the Constitution. It is described as a mirror which reflects the intents, basic philosophy and spirit of the Constitution. But our law makers completely failed to understand the rationale behind keeping the provision of Preamble in the Constitution. In their over enthusiasm of assimilating the concerns of various classes and interest groups vying with one another for establishing their stakes, the lawmakers finally ended in converting the Constitution including its Preamble virtually into a collective declaration of various political parties. The style of language and certain terminologies and issues incorporated in the Preamble tend to give the impression as if it was a collective election manifesto of various political parties. The Preamble of the American Constitution vividly and forcefully gives expression to the objectives and goals of the American Constitution in one bare sentence containing only 52 words.19 On the contrary, the Preamble of our Constitution is unnecessary lengthy, cosmetic and vexatious. In a bid to express commitment towards protection of the rights and interests of various classes and communities, the generous use of multiplicity of objectives and jargons seems to have detracted from the main objectives and intent of the Preamble and its overall impact. The textual composition of the Preamble is so clumsy and verbose that in course of going through the details of the Preamble when one comes to the end part, the reader either tends to forget what had been mentioned in the beginning or becomes confused about its contents. Such structural composition of the Preamble is not only defective from the viewpoint of legislative drafting rather it also looks ponderous, maladroit and uncouth. Due to this problematic textual composition of the Preamble and the compulsion before the draftsmen to bring the viewpoints of diverse political parties represented in the Constituent Assembly on board, the Constitution has been designed in such a way that it may be described as a “Varnsankar” (hybrid ) document.20

4.2 Federalism and Demarcation of Provinces

Article 4 of the Constitution has declared Nepal as a “Federal Democratic Republican State.” Whether or not it was appropriate to introduce Federalism in a small country like Nepal will always remain as issue of contentions debate. A look at some other Federal States of the world shows that Federalism is required to be introduced generally in two circumstances. Firstly, when several small independent States decide to reach an agreement to enter into a Federation, and

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Preamble to the Constitution of the United States of America (1787): We the People of the United States, in order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. Kashi Raj Dahal, “Sambidhanka Biseshta R Chunauti”, Gorakhapatra, Ashwin, 2072

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secondly, when some States successfully overthrow a colonial rule to emerge as free nations and subsequently decide to be united under one umbrella in order to safeguard and sustain their new-found independence and work collectively for the progress and welfare of their people. However, neither was the case in the context of Nepal. Also, even without taking into serious consideration the need for huge financial resources required for creating various infrastructures and regular expenses required for sustaining the Federal Provinces vis-à-vis the limited means and resources at the disposal of the Federal State, our political masters decided to plunge Nepal into the Federal structure. Of course, the protagonists of Federalism may argue that the concept of Federalism has been introduced in Nepal in a different context with some valid reasons behind its introduction. Although the Local Self Governance Act, 2055(1999) envisioned the enjoyment of the fruits of democracy through the utmost participation of the sovereign people in the process of governance by way of decentralization and mobilization and allocation of the means for the development of their own region by taking decisions through local leadership, the statutory provisions were, in fact, never seriously implemented for one reason or the other. Moreover, Federalism has been hyped as a panacea, once introduced, for ensuring self-rule and equitable distribution of benefits and national means and resources, besides equal opportunities in the structure of the State. Anyway, notwithstanding our agreements or disagreements with the need of introducing Federalism in Nepal, now the need of the hour is to work sincerely and seriously towards successful implementation of Federalism introduced in Nepal as provided in the Constitution. But, unfortunately, a close look at various provisions of the Constitution reveals that adequate seriousness, sensitivity and liberal outlook have not been displayed in regard to the sensitive issues of Federalism and Inclusion. Federalism is basically a political issue. Provincial structures, their demarcation, regional balance, equitable distribution of power and opportunities, provincial autonomy and reasonable and just adjustment of the rights and interests of various sectors of the society are some of the vital issues which require foremost attention for a peaceful transition to the Federal system. But in the present context, it is the number of Provinces, their demarcation and the issue of Inclusion which have turned highly controversial. Our lawmakers decided to declare the Constitution in haste without settling satisfactorily the issue relating to the number of Provinces and their territorial demarcation despite vocal dissent and disagreement of the Madhesh based parties. Composition of Federalism without nomenclature and demarcation has made the Constitution intangible as well as all the more controversial. The Constitution has entrusted the onerous duty of furnishing suggestions with regard to demarcation of the Provinces to a Federal Commission to be constituted subsequently pursuant to Article 195 of the Constitution, and the naming of the Provinces shall be made later on by a decision of a two-third majority of the Provincial Legislatures. The continuing violent agitation launched by the Madhesh based parties resulting so far into the death of over fifty people


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is bound to create further problems if the political leadership delays to find out a pragmatic solution to the issue. Such a political issue needs a political decision, and shifting its responsibility to technical committee smacks of the escapist or dilly dallying attitude of our political leadership. Equal partnership in the central power and authority and autonomous self-rule in the Provinces constitute the core of federalism. However, our Constitution has not satisfactorily addressed these two components of Federalism. The provision of electing eight members from each Province made in Article 86(2) of the Constitution regarding composition of the National Assembly seems to have ignored demographic composition of the respective Provinces and also tends to create imbalance in their composition. Likewise, while specifying the number of members to be elected to the House of Representatives the density of population should have been taken into consideration along with the geographical territory. The members to be elected to the Parliament first represent the people residing in the territorial limits of a Constituency rather than the insipid geography alone. The First Constitutional Amendment introduced barely four months after its promulgation has rightly stressed that while determining the electoral Constituencies the Constituency Delimitation Commission shall fix the electoral area taking into consideration population as the main basis and geography as the secondary basis for representation. However, it is yet to be tested how the Commission actually executes this constitutional guideline while determining the electoral Constituencies earmarked for 165 members to be elected to the House of Representatives through the first-past-the-post electoral system. Besides, capacity and identity are also equally important factors to be considered in regard to the structuring of Provinces. However, Province No. 2 has been structured in such a way that it looks financially weak as it has been deprived of natural resources like water, soil, stone, mineral substances etc.. In the days to come, this may create serious implications and numerous hurdles in channelizing adequate resources for governance of this Province.

4.3 Federalism and Inclusion

Inclusion is also regarded as a crucial requirement for the successful functioning of Federalism. In fact, the concept of Federalism is basically guided by the concept of Inclusion. Federalism is not simply a crude amalgamation of some territorial entities. It also must present a composite whole of the demographic structure of the people residing within a particular geographical territory and provide equitable opportunities for their overall development and participation in the State structure. Although the Constitution has made several provisions to address the dimension of Inclusion, nevertheless in many instances it has failed to ensure proportional representation. No doubt, the phrase “proportional representation” has been very liberally used at several places including the Preamble, the Directive Policies of the State, women’s rights, Dalit’s rights etc. However, except in the case of women’s rights, this provision has been mentioned at other places simply in

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an intangible way. The Constitution has ensured the representation of women by 33% right from the local level to the central level as regards the electoral process. But no similar specific requirement has been made in regard to the legislative representation of Adivasi Janjati, Madheshi, Muslim etc. Moreover, the constitution makers had originally made a retrogressive provision regarding Inclusion in Article 42 of the Constitution by deliberately not including the adjective ‘proportionate’ before the word inclusion in the phrase “the right to employment in state structures on the basis of the Principle of Inclusion.” This was clearly a retrogression on a similar right guaranteed earlier in Article 21 of the Interim Constitution of Nepal 2007, which had ensured the principle of proportionate inclusion in this context. This deliberate omission was one of the vital reasons which triggered violent protests in several parts of Madhesh. However, this omission was rectified by the Parliament through the First Amendment of the Constitution by qualifying the term ‘Inclusion’ with the adjective ‘proportionate.’ Now the amended Article 42(1) guarantees “the right to employment in State structures on the basis of the principle of proportionate Inclusion.” However, only inclusion of the term “proportionate Inclusion” is no guarantee of actual inclusion of the class or communities specified in Article 42(1) in regard to employment in State structures on the basis of the principle of Inclusion. The precepts and practices of those running the State machinery must synchronize. Paying only lip service to the marginalized sections of the society is not going to serve any purpose or yield any results. Intangible or cosmetic inclusion is bound to be meaningless and ineffective. The inclusion targeted sections of the society cannot be befooled or silenced any more by giving them simply some sort of representative presence in the policy and decision making bodies of the State. In fact, they are rightly agitating to assert their proportionate and meaningful representation in the overall state structure. How much superficial and casual was the approach of the three major political parties dominant at the time of the constitution making process can be further illustrated by the constitutional provisions related to the creation of the four new Commissions such ad Adivasi Janjati Commission, Madheshi Commission, Tharu Commission and Muslim Commission. These provision show as if the state was so much sensitive towards their empowerment by granting constitutional recognition to their independent existence. But appearances sometime do prove deceptive! A look at the relevant provisions clearly shows that the proposed Commissions are guided more by a strategic sense of public consumption than their actual implementation. It is so because those Commissions seem to be incomplete and deficient in the absence of specific provisions describing their powers and functions. Nor has anything been mentioned about the mandate of those Commissions. This deficiency becomes all the more pronounced when these Commissions are compared to some other constitutional Commissions like National Women Commission and National Dalit Commission whose mandates, scope and jurisdiction have been well defined in the Constitution itself.. Had the political leaders


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been serious about these issues, they would have certainly preferred to spend some more time to define the scope of those Commissions as well. But that was not to be so!

4.4 Grievances relating to Citizenship

Citizenship is basically a political concept which establishes a deep, intimate relationship between the State and its citizens. The Constitution has provided for a single Federal citizenship with provincial identity in Nepal and guaranteed that no person shall be denied the right to acquire citizenship.21 The Constitution has envisioned the following three types of citizenship: Citizenship by descent, Naturalized citizenship, and Non-residential citizenship. The new constitutional provision about granting citizenship of Nepal by descent on the basis of the name of mother or father specifying gender identity is surely an achievement of the feminist movement. So, no doubt, Part 2 of the Constitution has made progressive provisions relating to citizenship which has successfully addressed most of the past grievances. However, much of the discontentment regarding citizenship related provisions surfacing in Madhesh is mainly concerned with Article 289 of the Constitution which debars some persons for appointment or election or nomination to some important offices who are not citizens of Nepal by descent. Article 289(1) provides that a person should have acquired citizenship of Nepal by descent to be elected, nominated or appointed as President, Vice President, Prime Minister, Chief Justice, Speaker of the Parliament, Chairperson of National Assembly, Head of a Province, Chief Minister, Speaker of a Provincial Assembly and Chief of any security body. In other words a naturalized citizen cannot be eligible in regard to the above mentioned posts. And rightly so! This provision cannot be found fault with considering the sensitivity and confidentiality associated with those high offices. Even the American Constitution has made it mandatory that only a natural born citizen of United States of America can aspire to be elected to the office of American President.22 All this shows that the much hyped grievances relating to a few citizenship provisions in the Constitution are, in fact, more strategic than real. The citizenship debate has been, thus, blown out of all proportions.

4.5 Some Populist Fundamental Rights: How Much Practicable?

No doubt, the comprehensive catalogue of fundamental rights in the Constitution seems to be guided by the pious wish of ensuring a variety of rights essential for the promotion of a Welfare State. However, the Constitution has provided for some new fundamental rights which seem to be overambitious in nature. In the context of the limited means and resources available at the disposal of the State, the

21 22

Art. 10 Art. II, Sec. 5: Constitution of the United States of America (1787): No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President.

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exercise and enjoyment of some of those fundamental rights is bound to encounter serious difficulties and enormous challenges. Some fundamental rights like the right to employment, the right to health, the right to housing and the right to food sovereignty are such examples which are bound to test the nerve of the government. Besides, the constitution makers have also erred in subjugating some fundamental rights to the prospective enactment of relevant laws by the Parliament. Enjoyment of a good number of fundamental rights, namely, the right of the physically handicapped persons to free higher education, the right to food sovereignty, dalit’s right to health and social security and free higher education, the right to social security etc. have been made somewhat conditional by subjugating them to the phrase “as provided for in law.” On the other hand, Article 47 relating to implementation of fundamental rights has laid down a time frame of three years of the commencement of the Constitution to make legal provisions for the enforcement of the relevant fundamental rights.Such a provision intended to keep the enjoyment of fundamental rights on hold is not at all consistent with the principle of Constitutionalism. A fundamental right cannot be suspended making it relative to the enactment of any law. It is so because fundamental rights are, in fact, Natural rights which are not provided rather simply acknowledged by the Constitution. “The fundamental rights guaranteed by the Constitution acquire the status of justiciable rights immediately after the promulgation of the Constitution, and the citizens reserve the right to invoke the court seeking immediate judicial relief in the event of any infringement. In such a situation, it shall be incongruous with the doctrine of Constitutionalism to advance a plea prohibiting the claim for enforcement of the fundamental rights unless the appropriate laws are made.”23 The Supreme Court of Nepal has very rightly observed in its landmark verdict in the second Godavari Marble Industry case24 as follows: “Any type of restriction whatsoever on uninhibited enjoyment of fundamental rights cannot be acceptable…It can be hardly considered just and proper to keep introducing in the Constitution one after another matters of considerable significance in the form of rights whereas the responsible State agencies remain apathetic towards enforcement of the fundamental rights and the State Policies specified in the Constitution. Inclusion of unenforceable rights in the Constitution tends to detract from the reliability of the State.” In fact, it would have been more pragmatic to include such ambitious rights in the Directive Policies and Principles of the State, and with the gradual improvement in the physical means, financial resources and capacity of the State those rights could be transformed into fundamental rights through constitutional amendment under the policy of progressive realization.

23 24

Dr. Hari Bansh Tripathi, “Maulik Hak R Sambidhanko Masyauda”, Administrative Court Bulletin, Vol. 8, 2066, P.33-34. Prakashmani Sharma & Others vs. Godavari Marble Industry Ltd. & Others, Writ No. 068-WO-0082, Case: Certiorari, date of decision: 16 April, 2015.


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The right to religious freedom has emerged as another most contentious issue in the context of constitution making. In the past, it had been described as the Right relating to Religion in Article 23 of the Interim Constitution of Nepal, 2007. However, the new Constitution has preferred to call it as the Right to Religious Freedom as mentioned in Article 26. Article 23 of the Interim Constitution had guaranteed to every person “the freedom to profess and practice his/her own religion as handed down from ancient times.” In clear contrast, Article 26 of the Constitution simply guarantees to every person “the freedom to profess, practice and preserve his/her own religion according to his/ her faith.” It seems to have meaningfully done away with the phrase “as handed down to him/her from ancient times” as mentioned in the preceding Interim Constitution. This seems to be a calculated, strategic move to discourage indirectly the act of practicing and professing “Sanatan Dharma” (religion handed down from the ancient times). It is interesting to note that religion had been the most discussed and debated issue in course of ascertaining the public opinion regarding the draft of the new Constitution. And it is no secret that the majority opinion of the Nepali people was against Secularism and in favor of retaining the traditional Hindu character of the State. However, the Constituent Assembly was caught in the awkward dilemma of how to strike some sort of balance between the majority opinion of the masses regarding retention of the Hindu character of the State and the pressure and influence exerted by some external forces to destroy the traditional Hindu character of the State. In the process, the Constituent Assembly settled for an absurd solution. Article 4 of the Constitution declares Nepal as a Secular State, and, for the purpose of this Article, it very amusingly defines the term ‘Secular’ to mean protection of religion and culture being practiced since ancient times and cultural freedom. What an absurd and ludicrous explanation it is!

5. Conclusion

Undoubtedly, the Constitution of Nepal (2072) promulgated by the Constituent Assembly has been a historical step aimed at ending the transitional period and taking the peace process to a logical conclusion. But even after the lapse of full nine months following the promulgation of the Constitution everything does not seem to be normal in regard to execution of this constitutional document. A sizable section of Madhesi, Tharu , Adivasi and Janajati communities are still expressing their vocal reservations about certain provision of the Constitution. Until in the recent past, the Madhesh based parties were out on the streets indulging in aggressive sloganeering and sporadic violent protests. At present, the protests have moved to Kathmandu and are being displayed on a low key. But who knows, it may be a lull before the storm? So this issue needs immediate serious and sincere consideration by the State. So long as a basic document like the Constitution does not earn the assent, acceptance and ownership of every section of the society, peace, stability and development can be hardly sustainable. “In order to establish ownership and acceptability of the Constitution the only method shall be to ensure

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people’s participation in the significant agenda. Moreover, a Constitution should be made only on the basis of knowledge, conscience and informed discussion and debate. Only because the Constitution has been adopted according to the order of the party leaders by suppressing one’s conscience or INNER SELF and raising hands, such a Constitution can hardly become the best Constitution of the world!”25 The above views of a senior journalist Yuvaraj Ghimire, Editor-InChief of Annapurna Post, rightly reminds us of the dictates issued by the political trio of the three principal parties, which had collectively occupied a position of unchallenged dominance in the preceding Constituent Assembly during the process of constitution making, and the servile subservience of other members of their parties in adopting the Constitution. The common Nepali people still wonder, if those Constituent Assembly members were not to be allowed to have meaningful debate and discussion according to their own conscience, what was the justification for constituting such a huge 601 member Constituent Assembly resulting in unnecessary expenditure on the national Exchequer? Was it virtually not a misuse (or abuse?) of tax payers’ money? All said and done, still there is time to rectify the errors committed in the past. Democracy is in itself a complex but popular system of majoritarian rule. Every Constitution is a dynamic instrument and reform is a continuous process. Our Constitution is moderately flexible. So it would be prudent to address the valid concerns of the agitating forces through constitutional amendment, but, of course, without compromising in any way with national integrity and sovereignty. However, this would surely require political statesmanship capable of displaying political farsightedness, a spirit of co-existence and dynamic outlook. The political parties should no more delay to act promptly to resolve the crisis surfaced in the southern plains following promulgation of the present Constitution. The State leadership should bring the disgruntled forces to the negotiation table. A Constitution is not a scripture written on a stone with indelible imprints. It is a dynamic and amendable document. Thus it would be wise to hold meaningful and serious dialogue with the agitating forces at the earliest possible, and the agitating forces should also shun political rigidity and violent means of protest and dissent. Political rigidity on either part shall prove only detrimental to both the parties. The nation should not be made to suffer on account of the myopic thoughts and preconceived notions of those who are pulling the string of political power. Let the best interests of Nepal and the Nepali prevail at the end! And, finally, let us work together to transform the new Constitution into an instrument of consensus enriched by common ownership.

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Yuvaraj Ghimire, “Sambidhan, Samichha and Apanattv” published in Annapurna Post, June 24, 2016.

The Constitution of Nepal: A Critique

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