Literature, encompassing fiction and nonfiction, has a broader horizon that includes constitutional literature, which is still in its infancy.
The constitution, too, can be considered a part of literature. The inquiry arises: what is the state of constitutional literature?
If literature is acknowledged as an integral part of life, then the constitution, dealing with the foundational principles of society, should similarly hold a significant place. It must be seamlessly integrated into societal discourse.
The constitution should permeate both our narrative and non-narrative domains, exerting influence on life itself, with its content mirroring the intricacies of our existence.
Ideally, literature and the constitution should be harmoniously interwoven, yet, regrettably, this cohesion remains elusive.
While we readily embrace literature in various forms such as stories, poems, novels, and narratives, the constitution, in the non-narrative realm, has not evolved as extensively as it should have.
Currently, there is a dearth of literature highlighting constitutional provisions. Questions arise about the extent of the Constitution’s dissemination among the people, their ownership of it, and whether it encourages them to exercise their rights and fulfill obligations.
It is essential to assess whether people have effectively availed themselves of benefits under the law, influenced their representatives, and successfully ventilated grievances through them.
The transformation of representative accountability to the people and the constitution’s role in creating benefits rather than restricting freedoms also needs scrutiny.
Constitutional rights are not accorded the seriousness they deserve, with a notable absence of responsiveness from duty bearers and responsible authorities towards rights holders and claimants.
The gap between constitutional imperatives and reality prompts questions about the existence of effective laws, institutions, resources, capacities, processes, culture, and a sense of belonging necessary for successful implementation.
These elements are crucial for the constitution’s ideal implementation.
While acknowledging that achieving the ideal implementation might be challenging, a progressive approach aligning with the constitution’s design is essential.
If deviations occur, an inquiry into the reasons becomes imperative. Ignoring this could lead to undesirable consequences over time.
Questions about potential design defects, the constitution’s support from the people, adequate deliberation in the constituent assembly, or the need for a referendum for approval should be addressed.
The constitution’s consideration of the resources required for implementation and its impact on development imperatives at all tiers of government are crucial aspects to explore.
To ensure a constitution aligns with its design, it is essential to question its adequacy and appropriateness in garnering informed consent from the people.
Deliberations in the constituent assembly and potential design defects must be thoroughly examined to avoid shortcomings in its implementation.
Have values of good governance and the rule of law been systematically integrated throughout state functions and among all state apparatus?
The question frequently arises regarding the existence of implementation strategies.
If we proceed with a piecemeal and ad hoc approach, lacking well-thought-out priorities and strategies, the constitution may face risks of noncompliance, non-implementation, and poor execution. Presently, these symptoms are evident.
Federalization has struggled to take root and flourish, largely due to a lack of proper understanding, internalization, and facilitation.
The federal government has inadequately addressed minimum laws, resources, and processes.
Cooperation, coordination, and coexistence among all tiers of government have been minimal.
Constitutional organs have faltered in maintaining checks and balances among major state entities, often falling victim to political designs embedded within the constitution, particularly in the politicization of appointment processes.
Regrettably, the constitution is seldom treated as a mandatory document to be strictly respected and adhered to.
Violations of constitutional mandates lack stringent consequences due to the absence of effective sanctions.
Parliament is frequently dissolved without warranted reasons, constitutional functionaries are not appointed within the stipulated time, and bills are not signed within the specified limits, without facing disqualification or punitive repercussions.
Convicted individuals may evade serving their sentences and obtain amnesty.
The effectiveness and productivity of parliament are questionable, marked by a lack of quality deliberation.
Prosecutions may not result in successful convictions in the majority of cases, and failures often lack accountability for wrongful accusations.
These issues underscore the pressing need for a thorough examination and reform of the current governance and implementation mechanisms to ensure the constitution’s effective and just execution.
Judicial decisions often suffer delays, lacking expeditious proceedings. Federalizing units face challenges marked by a deficiency in skills, knowledge, experiences, exposures, resources, infrastructures, transparency, and orientations.
The relationship between the constitutional system, democracy, and development requires revisiting and reforming where necessary.
These units lack time-bound preparation and strategies to fulfill these crucial elements, making it difficult to estimate how long it would take for them to mature and deliver services as consecrated in the constitution.
Waiting for an indefinite period may not be a viable option.
Constitutional rights are not accorded the seriousness they deserve, with a notable absence of responsiveness from duty bearers and responsible authorities towards rights holders and claimants.
Deficiencies in laws, expeditious processes, institutions, resources, attitudes, strategies, accountability, and transparency result in only a few benefiting from the enjoyment of rights.
Access to justice remains limited, and inadequate resources are allocated for this purpose, portraying the poor status of democracy practically experienced by the people.
Democracy extends beyond elections and party freedoms; it is a governance system that cares for its people, ensuring everyone has the right to participate in decision-making processes affecting their lives.
Fairness and equality across public activities, protection of self-esteem and self-respect, and the expression of people’s potential are fundamental.
The rule of law, with its attributes of good governance, should serve as the guardian, mechanism, and process to implement democracy continuously.
However, blind trust in the electoral system without considering its propriety, feasibility, practicality, contextuality, affordability, familiarity, and implications for the overall functioning of the government system raises concerns.
Mixed election systems, incorporating first-past-the-post and proportional representation, are questioned based on practical experiences from previous elections.
Inner party democracy is not ensured, and political party high commands often manipulate the proportional representation system for their convenience.
Inclusion values are insincerely implemented and widely abused, contributing to rampant corruption and irregularities during electioneering processes.
The country cannot afford another round of conflict, necessitating a wise resolution through governance reforms and constitutional review to protect and cherish the fundamental values of the present constitution.
A comprehensive review of the constitution’s impact on life experiences is overdue.
The relationship between the constitutional system, democracy, and development requires revisiting and reforming where necessary.
Laws that do not cater to the needs and aspirations of the people fail to provide stability, security, and justice.
The rule of law system should nurture democracy through orderly development and maintain security and justice.
Constitutional review should be broad-based, addressing federalization processes, constitutional appointment mechanisms, qualifications and disqualifications of political and constitutional appointees, regulations of political parties, division of powers and resources between different tiers of government, electoral systems, and the effectiveness of the constitutional justice and judicial system.
Additionally, it should focus on the effectiveness of the parliamentary system and, above all, the constitutional design overseeing the implementation of fundamental rights supported by relevant programs and institutions.
Reviewing the constitution and its wording should not be met with skepticism or resistance, despite concerns that it might open Pandora’s Box.
A transparent and open constitutional design, free from hidden agendas, is essential for democratic governance.
Continuing to defend non-performance or malperformance may lead to widespread frustration and dissatisfaction, potentially resulting in fresh conflict and the annihilation and destruction of life and property.
The country cannot afford another round of conflict, necessitating a wise resolution through governance reforms and constitutional review to protect and cherish the fundamental values of the present constitution.
A prudent resolution to govern the country involves mandatory reforms in governance through constitutional review and amendments. This is essential to safeguard and uphold the values that are considered fundamental foundations of the current constitution.
(Based on the keynote speech expressed by former Chief Justice Kalyan Shrestha at the Nepal Literature Festival in Pokhara on Thursday)
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