With great hope, expectation, and immense struggle, Nepal’s Constitution was promulgated in September 2015. It officially came into force on September 20, 2015, replacing the Interim Constitution of 2007.
As we contemplate the eight years that have elapsed since the promulgation of the Constitution of Nepal, a pervasive lack of awareness and willingness to adhere to the laws has become evident.
In the intricate tapestry of a nation’s development, the constitution assumes a pivotal role as the foundational document, encapsulating the collective aspirations and will of its citizens.
It serves as a guiding framework for a brighter future, establishing a binding contract between the state and its people, committed to upholding justice, equality, and prosperity.
In this article, I delve into the compelling need for transformative constitutionalism in our society, addressing the challenges, deficiencies, and potential solutions on the horizon.
The core objectives of any constitution should center around eradicating poverty, providing enhanced healthcare services, fostering economic opportunities, and empowering citizens to exercise their rights fully.
These ideals form the very bedrock upon which a nation’s well-being is constructed. Citizenship day serves as a reminder that the values enshrined in the constitution must not remain mere words on paper; they must be upheld and practiced diligently.
Fundamental rights often go unfulfilled due to insufficient attention directed towards creating the necessary infrastructure and institutions to ensure their enjoyment.
This glaring shortcoming results in laws designed for their implementation suffering from protracted delays and inadequate deliberation.
Many socio-economic and cultural rights, constituting a vital part of our constitution, remain practically unenjoyable.
Additionally, the President failed to sign a Bill passed by the parliament within the constitutionally stipulated time, a clear violation of constitutional obligations that went without consequence.
The lack of planning and commitment in this regard is evident, with the government failing to issue a white paper to account for the current state of affairs.
Furthermore, the directive policies of the state are not effectively integrated into its planning and policies, and laws often disregard the imperatives of the directive principles and policies.
Elections for legislative representatives are periodically conducted, essential for the formation of governments and the exercise of political power.
However, the serious implementation of fundamental rights and the establishment of infrastructures and institutions to facilitate their enjoyment remain elusive.
Accountability forms a cornerstone of constitutional governance, and adherence to the constitution and its laws is crucial under the rule of law.
Regrettably, a pervasive lack of awareness and willingness to abide by laws is evident, ranging from the highest offices to ordinary citizens.
Instances of constitutional transgressions, such as dissolving the House of Representatives contrary to constitutional provisions, underscore the pressing need for mechanisms to hold office bearers accountable for failing their constitutional duties.
The effectiveness of our parliamentary system is marred by challenges such as the inability to form a government based on a single majority, hindering its efficiency and effectiveness.
Restrictions on motions of no confidence against the prime minister within two years of appointment raise questions about the system’s stability and parliamentary functioning.
Federalism, a vital component of our governance structure, faces criticism due to the perceived poor performance of provincial governments.
These governments are caught between the federal and local levels, leading to inefficiencies and disputes.
A fundamental reevaluation of federalism’s structure and procedures appears necessary.
In the judiciary, political influence through various councils has affected the quality of appointments and performance.
Impeachment motions against chief justices without proper accountability measures undermine trust in the judiciary.
Political parties, vital to democracy, often lack internal democratic practices and good governance, undermining their role as constitutional entities.
Transparency in their operations is essential for healthier democratic practices.
Compliance with the constitution and laws under it constitutes the fundamental element under the rule of law.
The pervasive culture of non-compliance looms large in our society, extending from the highest office, the president, to ordinary citizens.
All of them cumulatively affect the functioning of constitutional bodies and render them ineffective in maintaining fair constitutional checks and balances.
On some occasions, the country’s President has been unable to prevent the prime minister from exceeding constitutional limits by dissolving the House of Representatives.
Instead, the President succumbed to the unconstitutional recommendations of the latter to dissolve parliament.
Additionally, the President failed to sign a Bill passed by the parliament within the constitutionally stipulated time, a clear violation of constitutional obligations that went without consequence.
There is a pressing need to establish constitutional mechanisms to hold office bearers accountable for failing in their constitutional duties or openly disregarding constitutional mandates, ensuring equal administration of the law.
In another instance, the President ventured to sign a Citizenship Bill that exceeded the time limit specified in the Constitution, raising questions about adherence to constitutional procedures.
Furthermore, the President’s signing of amnesty orders without meticulous adherence to procedure, often at the attorney general’s advice, hints at the overuse and abuse of pardoning or amnesty procedures.
The creation of a constitutional crime to hold office bearers accountable for failing in their constitutional duties or openly disobeying constitutional mandates is deemed necessary to ensure equal administration of the laws.
It is worth noting that the Prime Minister dissolved the House of Representatives at least twice within the same tenure, a direct contravention of the constitution’s explicit provisions.
This disregard for constitutional norms continued even after an adverse judgment by the Supreme Court. Adding to these concerns, the Constitutional Council operates without a proper framework for its rules of conduct.
Meanwhile, our society grapples with issues of poverty, illiteracy, and disempowerment, painting a grim picture of our national condition.
The economy remains stagnant, heavily reliant on remittances, which carry significant implications for both economic development and social harmony.
Furthermore, a significant portion of our youth views the country as an unworthy place to live, reflecting a broader disillusionment.
Constitutional bodies and functionaries are either politically influenced or operate with limited effectiveness, undermining the principles of good governance and accountability.
These issues underscore the pressing need for transformative change and renewed commitment to constitutional values and principles.
On the other hand, the society is heavily characterized by poverty, illiteracy, and disempowerment.
While designed to ensure government stability, this provision steers the system towards non-parliamentary trends, making the argument for stability appear artificial and potentially leading to chaotic governance without maintaining majority support.
The economy is not improving and heavily leans on remittances, which have multiple implications for economic development as well as social harmony.
The country is generally seen as less worthy of living by a large section of youths from across the country.
Questions relating to the quality and legality of appointments have marred the confidence of the constitutional appointees. Disputes relating to the appointments have been unnecessarily deferred from resolution.
All of them cumulatively affect the functioning of constitutional bodies and render them ineffective in maintaining fair constitutional checks and balances.
The parliament has not been effective in delivering the services as expected. Its legislative functions have been marked by non-productive characteristics.
The quality of deliberations is not up to the mark. Compared to its predecessors, very few legislation have been passed by the present parliament.
Only three in seven months of its being in session, the present parliament has been able to enact laws. It has failed to appoint chairpersons for its committees within the stipulated time.
The parliament seemed to be unable to defend itself from being dissolved by partnerships between the president and the prime minister against the Constitution.
Twice within a year, the Parliament had to be reinstated by the order of the judiciary.
The enactment of a law to create a constitutional crime is necessary to combat such mischievous acts done on the part of high-ranking constitutional authorities.
The parliament has also failed to legislate even core minimum laws like the civil service act or police law to cater to the needs of the federalization process.
Furthermore, instead of diligently focusing on legislative functions, attention appears to be diverted towards securing resources for discretionary spending on development projects, thereby maintaining influence over their constituencies.
The flawed electoral system creates a situation where the parliament struggles to form a government with a clear majority, severely impacting the efficiency and effectiveness of governance.
With hope and concerted effort, we can look forward to a future where our constitution serves as a beacon of justice, equality, and prosperity for all.
Restrictions on bringing a no-confidence motion against the prime minister within two years of appointment have grave consequences for the functioning of the parliamentary system.
While designed to ensure government stability, this provision steers the system towards non-parliamentary trends, making the argument for stability appear artificial and potentially leading to chaotic governance without maintaining majority support.
Moreover, the parliament has failed comprehensively to address the mounting needs, aspirations, and expectations of the people and to guarantee good governance.
It has also fallen short in its role of holding the government accountable and fostering a conducive environment for development.
Consequently, a weak, ineffective, and timid institution seems to be emerging.
The rule of law system encounters challenges as politicians exploit exemptions and exceptions, often evading investigation, prosecution, or withdrawing legal cases.
The operation of the national economy, initially envisioned as a liberal economy with socialist elements, is plagued by financial misconduct, eroding public confidence.
In conclusion, the implementation of our constitution confronts numerous challenges and shortcomings.
A constitution is ultimately judged by its implementation rather than its words, and many positive aspects remain unrealized.
It is imperative to address these issues seriously and consider reviewing the constitution to identify and rectify these problems.
With hope and concerted effort, we can look forward to a future where our constitution serves as a beacon of justice, equality, and prosperity for all.
(The writer is a former Chief Justice, the Supreme Court of Nepal)
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