Thursday, 13 June, 2024
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OPINION

Key Constitutional Strengths



Mukti Rijal

 

Last week, we celebrated the occasion of the promulgation of the federal democratic constitution which was delivered to fulfil the aspirations of the people. In fact, we have already completed four years since we enacted and promulgated the federal democratic constitution of Nepal. In the history of the constitutional development, this has been the seventh constitution of Nepal. But this constitution has been the first modern national statute enacted and adopted by the 601 member Constituent Assembly (CA) which was purposively elected for conceptualising and writing the constitution in consonance with the popular will.
The constitution transforms the country into a federal democratic republic and proclaims that the people of Nepal shall exercise the sovereign power. This is a distinct departure from the past as the monarchy, not the people, had been the repository of power and authority. The constitution also expresses its determination to end discriminations relating to class, ethnicity, region, language, religion and gender including all forms of abusive and demeaning treatment meted out to the people.
The constitution articulates its pledge to create an egalitarian society on the basis of the principles of inclusion and participation to establish equitable economy, prosperity and social justice. 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.
The right to inclusion and participation in the state structures is also guaranteed in the constitution. The rights of the women, the Dalits, indigenous people and minorities have also been envisaged in the constitution through several important 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 and implementation of the fundamental rights. Furthermore, the important basic features of the new Constitution have been that 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 that discriminate against or deny rights to the 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 most of the laws have been enacted by the Parliament for the formation of the commissions and make these constitutional bodies active and functional. However, these commissions have not been staffed adequately yet. The noteworthy feature of the constitution has been that it restructures Nepal into a federal country with three layers of government. The centralised unitary structure of the country has been supplanted by seven federal provinces with clearly stipulated executive and legislative powers for the central, provincial, and local bodies.
The welcome political development in the execution of the constitution has been that the governments have been installed across the three layers– local, province and federal through democratic elections. In fact, the constitution has an elaborate scheme for reorganisation of the state. The local level governments have been restructured. The constitution provides separate list of powers and competencies for three tiers of the government.
Similarly, legislative and financial procedures for each level has 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. The commission is yet to be fully staffed and make full functional though its chairman has been appointed.
According to the constitution, the state powers (Rajkiya Shakti) of Nepal shall be used by the three layers of the government namely federal, provincial and local subject to the provision of the constitution. It is apt to note that the power for each level of the structure has been stipulated in different schedules of the constitution. Like in many other federal countries the Constitution also provides for concurrent/shared power for federation, province and 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 to be governed by inter-governmental fiscal transfer act.
The Constitution stipulates the provisions in regard to registration and operation of political parties. The political parties are required to register their names under the Election Commission in accordance with the procedure determined by law. The party statute and governing rules should be based on democratic norms and values and requires each party committee needs to be elected. The constitution thus contains substantive provisions to enhance democratisation of state and society. However, crux lies in how they are put into implementation.
Though there have been some voices of disenchantment and dissatisfaction especially raised by Madheshis and Janjatis in regard to some provisions of constitution alleging that the right of autonomous self-rule has been has been ignored in the constitution. They also call for its amendment. In any way, the basic law of the land should be allowed to grow and develop, either through amendment if needed, to ensure that aspirations of the underrepresented groups of the people are addressed peacefully and democratically.

(Rijal, PhD, contributes regularly to TRN and writes on contemporary political, economic and governance issues. He can be reached at rijalmukti@gmail.com)