Nepali Constitution: In search of Excellence

By Prof. Suryabahadur Singh*

The experimentation of various types of Constitutions was carried out in Nepal. The country had to experience six more Constitutions until elections to Constituent Assembly, 2065 (2008) were held. It had been observed that, these procedural delay jeopardized the growth of democratic system to a greater extent and derail overall national development in the absence of stable constitution of Nepal.

First Constituent Assembly of Nepal

The King Mahendra, while promulgating ‘the Interim Government of Nepal Act, 2007 (1951), had emphasized upon, framing the Constitution by duly elected Constituent Assembly. During this stage, the King had desired to have Constitution drafted through a duly elected Constituent Assembly. At that time, the formation of first Constitutional Assembly was dithered due to political turmoil, lack of time, urgent need for constitution and unstable administration. This lags the constitutional development of Nepal in search of suitable constitutional model.

The recently framed Constituent Assembly (2065) should not loose its opportunity to frame New Constitution of Nepal. The political agenda of all political parties should focus on providing new constitution at the earliest and within the time frame of two years. There should be a perfect coordination amongst proceeding of constituent assembly, 601 members of the Assembly, constitutional experts, all political parties, public opinion and the present government of Nepal.

New Constitution of Nepal

The Nepalese Constituent Assembly holds plenary power of making Constitution. The framers of new constitution should work on collective wisdom of Constituent Assembly and adopt constitutional provisions suited for successive generation. In the changed context, it is a challenging task to provide Federal Republic structure with an objective to upkeep the spirit of JanAndolan-II (2006) and aroused public expectations.

The wind of ‘sarvasamaveshikaran’ (inclusiveness), administrating Nepal as a Republic, adopting Federal structure, providing progressive modern constitution, simplified procedural techniques, protecting individual life, liberty, and property are prime cause of concern for drafting a new Constitution.

The separatist activities, strategic location, non-focused ideals of major political parties, identification of traditionally exploited backward class, providing reservation, distinguishing separate states on globally accepted norms and obstacles in providing Constitutional coverage might block development-oriented Constitution with progressive federal structure.

There exist many Constitutional issues which were not properly addressed through erstwhile Nepali Constitutions. The immigrating human resources, blocked developments in far-flung treacherous Himalayan region, burgeoning societal hiatus, political instability, selecting right model of development oriented democracy, meaningful inter-State/intra-State relations, cordial international relations, role of Nepal as an active nations in Asiatic region, innovative, value-based application of knowledge, science and technology are some of the key areas which should be properly addressed in the new Constitution.

Institutionalization of Constitution

In the past, the Constitution of Nepal had successively replaced with every change in the system of Governance. This had resulted into drifting away from the process of institutionalization of Constitution of Nepal. This process delayed the development, growth and leading to heavy cost affecting entire Nepal. This had resulted into retarded Nepal moving away from reality and engrossed with meek power to withstand in the competitive age. It had been observed that, barring earlier three Constitutions, the Government under Panchayati Constitution was palace centered. The democratic government under the Constitution of Kingdom of Nepal 2047 (1990) was focused on Singh Durbar, Kathmandu. These Governments had neglected the development in far-flung Himalayan region.

There exist disparity in development of Terrai and other parts of the country. Slow pace of industrialization, least infrastructure development, poor modes of communications, landlocked geographical condition, exploding population, flight of human resources, agrarian economy etc. were some of the prime cause for underdeveloped state of Nepal.

The Government efforts were inadequate to control bungling problems of soaring inflation, poverty, illiteracy, corruption, universalization of education, multipronged regional development, proper industrialization, failure to create self-sustained economy etc. All governmental efforts were haywire with poor show of GDP ratio and Nepali national growth rate. The tourism industry, hospitality services, rural development, financial markets, Asian hub for hydro-electricity power generation, and over all development efforts were set back due to instability for more than ten years, along with unidirectional efforts of erstwhile governments in quest for excellence.

The framing of new Constitution, in a multi-religious, multi-lingual, multi-ethnic, caste-ridden backward society of Nepal, demand farsighted deliberations. It needs political will power with proactive global approach to further institutionalize democracy in Nepal. The framers of new constitution should balance between the aroused public expectations and Constitutional excellence.

Considering experience of working of Indian Constitution along with all other available developing Constitutional documents, the framing of new Constitution of Nepal may become a simplified task. The new constitution, should be simple, short, effective and pathfinder for modern constitutional problems in Nepal.

CITIZENSHIP

It is remarkable that, in spite of government efforts there exists plethora of problems related to acquire and distribution of citizenship in Nepal. Several charges, allegations and blames were leveled against government of the day. The landless labours, monks, loaders, and migrant landless people face problems of acquiring citizenship.

The non-registration of their birth, death, and details of movement within the State. Their inability to collect proof of marriage, false grounds, difference in name, age, caste, incomplete documentary details, divorce cases, insufficient supporting proofs etc. are prime factors which are found to slow down the process of citizenship distribution. Similarity in culture, tradition, face, open border, broader social relationship, infiltration by Tibetan / Bhutanese refugees and free entry into Nepal are other related factors, which compounded these problems of citizenship.

In the changing time it had been found that, on false details, people had obtained 2 to 3 citizenship certificates. At present, there are no legal provisions to rectify the basic details after issuance of citizenship certificate. The procedures are cumbersome; the rectification depends on the wish and availability of the section officer. The people have to travel far away and spend full day or two to complete the formalities regarding the citizenship procedures. There exist no penal provisions for acquiring more than one certificate on false and fabricated details.

These problems call for initiating immediate corrective steps through simplified Constitutional provisions. The direct curb on procedural delays, administrative lethargy, latches, negligence, and reluctance shall streamline distribution of citizenship. The citizenship certificate should be provided in dual language i.e. Nepali and English. This shall provide a great relief to globe trotting Nepalese.

Ever increasing public awareness, population explosion, demand to strengthen Sovereignty of State, identity of citizens
, multi-fold use of citizenship certificate; peaceful and friendly global relations call for short, clear, hassle-free and simplified procedures for obtaining or carrying out amendments in the Nepalese citizenship certificate.

Directive Principles and State Policies

The New Nepalese Constitution should contained all general directive principles and state policies required for a welfare State.

The changed context calls to provide following Directives and State Policies in the new Nepalese Constitution:

i) Re-organization of existing Village Panchayats,

ii) Provision for just and humane conditions of work and maternity relief,

iii) Uniform civil code for citizens,

iv) Provision of free and compulsory education for children,

v) Promotion of educational and economic interest of lower caste and other weaker sections,

vi) Duty of the State to raise the level of nutrition, the standard of living and to improve public health,

vii) Organization of animal husbandry,

viii) Protection of monuments, places and objects of national importance and,

ix) Separation of judiciary from executive

The analysis of Nepalese precedents, the set principles of law and ratio decidendi of decided Nepali case laws confirm use of these Directive Principles and State Policies. This needs proper re-orientation in the new Constitution of Nepal.

Probable Areas of Amendment/Inclusion

The post-JanAndolan-II (2006) period had witnessed declaration of the Interim Constitution of Nepal, 2063 (2007) with effect from 1^st Magh, 2063 (15^th January, 2007). The Constitution of Kingdom of Nepal, 2047 (1990) was made dysfunctional.

In this changed circumstances, the probable areas which should be included in New Constitution are as under:-

a) The Nepali constitutional framers must emphasis to provide constitutional provisions related to federal republic structure with independent identity. These provisions should emphasis on retaining its originality on the basis of geographical position. It should be true Nepalese federalism,

b) The key factor must be maximum decentralization of power,

c) There should be clear demarcation of legislative, administrative relations between federal units,

d) The federal units should be bare minimum in numbers and the Federal system should contain Nepalese uniqueness,

e) The Constitutional provisions of Inter State/Intra State trade, commerce and inter-course within the territory of Nepal,

f) With an objective of Constitutional recognition the special provisions regarding various languages spoken throughout the Nepal,

g) The Constitution should contain independent provisions regarding finance, contract, rights, liabilities, obligations and suits,

h) With an object of protecting Constitutional rights providing fair procedure board for preventive detention,

i) The Constitution should contain adequate provisions for administration of property by a religious denomination,

j) The efforts should be carried along to provide latest changed role to heads of Government, Constitutional bodies and institutions, and

k) Considering the probability of declaring Federal Republic of Nepal, there should be clear cut demarcation about Central list, State list and Concurrent list. This should be based on the various subject of administration. As far as possible the Concurrent List should be kept small for smooth and effective administration.

Basic vision for new Constitution of Nepal

The framers of new Constitution of Nepal should endeavor to make it a living document. The expectations of people, spirit of JanAndolan-II (2006-2007) and foresight to developmental issues should be addressed in great detail. The new Constitutional document should envision direct application of science, technology, high-tech solutions and modern trends to cope with pressures of changing time.

According to the rich experience of Constitution of India and available constitutions in the world, the probable provision of Reservation, equal representation to all sections of society and reduction of economic disparities should be properly addressed. It needs in-depth application of touchstone of constitutional parameters. A critical care should be taken for tackling above said societal issues. These issues may affect the entire social fabric of Nepalese society. It must contain dynamic values, ideals and aspirations to tackle global challenges.

Nepalese Constitutional Bodies and Institutions – a far way to go

The Public Service Commission, Attorney General, Election

Commission, Auditor General and Commission for the

Investigation of Abuse of Authority is consistently functioning in

Nepal. These Nepali constitutional bodies and institutions are

Functioning as a means for achieving of constitutional goals, letter

and spirit in true sense. The basic constitutional functions were

Allotted to each of these institutions. There exist variations in

duties, power, function, structure and procedure mainly due to

specific conditions or prevailing circumstances.

In the new constitution, there is a need of inclusion of reformative constitutional provisions with elaborate, exhaustive and detail aspects to these Nepali Constitutional bodies. The provision related to qualifications, eligibility, age, area of work, tenor of office and removal of office should not be reapited. There should be common grounds and constitutional provisions which must provide the specific and related aspects of those institutions. In the light of these aspects, considering the present Nepalese trend, these Constitutional bodies and Institutions have a far way to go.

Challenges to Constitutionalism

Constitutionalism presupposes a society with moral order and judiciary with higher integrity. The prevailing social, political and economic conditions in Nepal had been vitiated by poverty, illiteracy, corruption, political instability and high hand negative practices. This had obstructed ‘realism’ or ‘social engineering work’ of the Court.

The new constitution of Nepal should follow that, “a government functioning carried out strictly in accordance with the rule of law, judicial review and respect for human rights are the pillars of constitutionalism”. There should be a harmony and balance between fundamental rights and directive principles.

The activist and creative Nepali judges had developed new interpretation based on the concept of due process of law, locus standi, natural justice, ultra vires, public interest litigation and doctrine of unamendability of the basic structure of the Constitution. These aspects were duly observed in numerous Nepalese precedents. It should be followed in Toto by the framers of the new constitution for Nepal.

FAILURE OF MONARCHIAL SYSTEM

The constitutional monarchy failed to sustain public expectations, voice of grass-root people and oppressed class. The winds of globalization, liberalization and privatization had swept away the traditional mental block of Nepalese at large. The level of awareness started reaching the optimum level. There was a realization in the mind of large chunk of Nepalese that, Royal family and its regime were root cause of underdevelopment. Along with this, the seven-Party political alliance and Maoist forces toiled for protecting democratic system by uprooting autocratic monarchial system.

In the new constitution, the King and his family members should be provided with right similar as that of ordinary citizen. The related regulatory provisions about King should legi
slate through existing Parliament.

Downfall of Nepali Judicial System

It had been observed that, “we cannot say that, empowering Constitution or an enactment shall make any individual or institution capable of its utilization. The present constitutional structure had expected judicial guidelines from judiciary for effective constitutional development”.

Nepali society had been infected by corruption, criminalization of politics, lack of realization of duties and concrete determination for multi pronged developments. The personal interests were considered important, the democratic institutes were weakened, and its moral were downgraded to make it directionless. The corrupt and stubborn political activity had obstructed effective utilization of present Constitution. The successful implementation of Constitution demands emotional and value-based activities along with development of proper infrastructure. The lack of commitment and correct attitude had deformed the constitutional development process.

The past decade (1996-2006) had witnessed negative economic growth leading to recession and downslide of all Nepali societal system.

There should be Alternate Dispute Resolving system, fast track courts, and utilization of available court infrastructure to fullest possible extent along with congenial atmosphere for officials working with the Nepalese Judiciary. The check and balance aspects should be followed to upkeep spirit of free/fair judicial system.

Dodging Constitution to Pathway of Failure

The ex-Chief Justice of Supreme Court of Nepal Shri Bishwanath Upadhyay observed that, The constitutional bodies and power centre were not functioning as per letter and spirit of the Constitution. The post-1996 period had witnessed tremors of political instability, declaration of people war, power centered political cleavages, Royal massacre, coalition government and worsening system of governance. The legislature could not able to frame laws for constitutional developments.

The anti-defection laws were not applied strictly. A bill for cancellation of membership from parliament due to defection was not passed. The corruption and anti-public activities were not controlled by the Executive. The naked power road show, immoral and degrading campaign of political parties, passive civil societies were some of the causes which turned Election Commission, Supreme Court, Commission for Investigation of Abuse of Authority in a difficult situation.

The better remedies to such situation shall be to avoid it and sincere effort to remove its root causes. The related new constitutional provision should contain accountability, appraisal, assessment and disciplinary action against erring officials. The constitutional provision should contain guidelines, wherever needed, there must be proper legislations in this regard. Along with enormous opportunity to escalate in judicial career through remuneration, promotions and fair play.

*Other Residual Suggestions

1) There should be provision related to the constitutional rights of immigrating Nepalese. They should have been provided with the right to vote from their place of livelihood in the issues related to national importance. This could be carried out through Web voting, electronic voting, vote through post or consular or diplomatic arrangements for voting from the respective countries.

2) There is no need of constitutional provision related to Political parties, Nepali Army, and power to remove difficulties clause. In this regard, there exist numerous legislation, enactments, procedure and precedents for proper control. These institutions and provision have gained maturity and stability in the changed Nepalese contexts.

3) The qualifications, eligibility and terms of condition of service related to constitutional functionaries should be kept quintessential so as to avoid repetitive provisions.

4) The new constitution should be kept simple, short, focused and right spirit oriented to direct Nepal towards achieving proper quest for excellence.

Constitution – A Panacea for Developmental Challenges

Now this is the right time for Nepalese to have a broader but qualitative Constitution, which focuses on service of people at large. The Constituent Assembly should bring out everlasting flexible Federal Constitution on the strong base of realism, social transformation, and power of self-esteem at local levels. There should be maximum decentralization. The new Constitutional provisions should provide solutions to withstand global challenges. It must contain the best available constitutional aspects with farsighted vision to lead Nepal in highly competitive Twenty-First Century. Its quest for constitutional excellence should be institutionalized by adopting the best available provisions of constitution.

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(*The author is a Research Scholar at University of Mumbai )