Mere enactment of constitutions does not serve the cause of democracy unless the provisions therein are implemented in both letter and spirit.
Benjamin Franklin said of America, it’s a “republic if you can keep it.” The remark stresses on the need of enforcement more than enactment. A democracy is easy to declare but difficult to uphold in letter and spirit.
As we are celebrating the Loktantra Diwas today, commemorating the victory of people against autocratic monarchy in April, 2006, we should make a solemn commitment to behave and act in accordance with the constitution which unites the population of over 30 million. The constitution of Nepal, the precursor of new Nepali renaissance, entered into force on September 20, 2015 laying down the new political structure to address the needs and aspirations of the citizens who are united for the purpose of resisting external intervention, upholding rule of law and preserving sovereignty and integrity.
Democratic transformation
The 2015 constitution transformed Nepal from a constitutional monarchy into a republican state, a federal democracy from a unitary system of governance, and a secular structure from a Hindu character. Unlike the constitution of the United States and Australia, which provide only for the federal government, the Constitution of Nepal provides for federal, provincial and local (Village Councils and Municipalities) governments. Special provisions have been made for advancement of weaker sections of society. The preamble itself has set the goal to that effect.
All the governmental organs and institutions derive their powers from the constitution itself. Like India, the constitution of Nepal mandates that the powers of the state must be exercised within the bounds of the constitution. Our constitution established dual polity much like in India but unlike in the United States. In the US, federal and state governments do not seem hierarchical in nature. In Nepal, provincial governments (state governments in case of India) seem to be subordinates of the federal governments as the latter often have a final say in the matters with far-reaching consequences.
Thus Nepali federation departs from the constitutional norms of the United States but has a lot in common with the framework of many democratic constitutions, including India’s. The Indian constitution provisions that Parliament is composed of the President, House of the People and Upper House. But, in the US and Nepal, the President is not the integral part of Parliament. The parliamentary composition of Nepal is more comparable to the US than India. In both India and Nepal, the President is the final authority to certify bills into laws.
Positive indicators
Nepal stood at 112th place out of 180 countries on the Press Freedom Index for 2020 released by Paris-based Reporters Sans Frontiers. In South Asia, Afghanistan stood at 122nd, Sri Lanka 127th, India 142nd, Pakistan 145th and Bangladesh 151st positions. In the 2021 World Press Freedom Index, Nepal’s situation has further improved with the ranking of 106 out of 180 countries. This shows Nepal stands at a better pedestal than India, Pakistan, Sri Lanka, Bangladesh and Afghanistan.
Likewise, in the 2020 Human Development Index (HDI), unveiled by the United Nations Development Program (UNDP), Nepal ranked 142nd out of 189 countries with HDI value of 0.602 for 2019. This takes Nepal into the medium human development category.
Constitutionally, Nepal’s is the first constitution in South Asia to include an explicit mandate of one-third representation of women in the legislative spectrum. India has been considering similar provisions since 1996. Also, it’s the foremost fundamental document in Asia—and only the third in world along with South Africa and Ecuador—to expressly guarantee the rights of transgender people.
According to Inter-parliamentary Union Open Data, Nepal’s 275-member Lower House is a home to 90 women parliamentarians, while India’s 543-member Lower House welcomes only 78 women lawmakers. Nepal’s Lower House succeeds to ensure almost 33 percent of women representation, while the percentage of representation for the same in India stands at 14.4 percent. In the Upper House, the number of women lawmakers stands at 22 out of 58, which makes around 38 percent of women representation. In India, currently 25 lawmakers out of total 243 are represented in the Upper House (see the table). Globally, Nepal stands at 45th position in terms of women representation in parliament, whereas India ranks at 145th position.
Women in Parliament
Lower House
| Country | Seats | Women | % of Women | ||
| Nepal | 275 | 90 | 32.7 | ||
| India | 543 | 78 | 14.4 | ||
Upper House
| Country | Seats | Women | % of Women | ||
| Nepal | 58 | 22 | 37.9 | ||
| India | 243 | 25 | 10.3 | ||
Time for consolidation
HLA Hart, a jurist of Analytical School of Jurisprudence, has rightly said that enactment of law is one thing and its implementation another. To give concrete shape to the aspirations of the people and the goals ordained under the constitution, there is a dire need of guaranteeing the rights of the people.
Provisions of the fundamental rights relating to right to housing, employment, food, or right to clean and healthy environment are yet to be implemented. Jobless people are yet to claim employment as a matter of right. Enforcement of fundamental rights during the Covid-19 remains a far cry so far.
From 2006 to 2015, Nepal has had several constitutions. In fact, Nepal has been more active in replacing old constitutions with the new ones but the successive governments have done little to address the aspirations of people and develop the nation by fully implementing the provisions enshrined in those constitutions.
Mere enactment of constitutions does not serve the cause of democracy unless the provisions therein are implemented in both letter and spirit. Nepal’s young republican democracy deserves development, rule of law and constitutional democracy, not frequent changes of the constitutions.
(The author, former lecturer of Law at Kathmandu University School of Law, is currently a Judicial Officer at Dhanusha District Court. He has co-authored Socio-legal impacts of COVID-19: Comparative critique of laws in India and Nepal)
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