The constitution of a country is regarded as the fundamental law of the land which lays down a broader canvass to make laws, rules and regulations for organizing the national life at both the collective and individual levels. It’s often argued that a constitution is tailored in such a way that it succeeds to define how a country examines its past, determines its present and foresees its future. Unlike past six constitutions—that of 1948, 1951, 1959, 1962, 1990 and 2007—the present constitution adopted and enacted by the Constituent Assembly (CA) in 2015 declared Nepal as a Federal Democratic Republic. The Constitution of Nepal, the precursor of the new Nepali renaissance, entered into force on September 20, 2015.
The Constitution of Nepal and the basic structures it envisaged have allowed the democratic credentials to thrive on the sovereign soil of Nepal. One of such basic structures has been the principle of federalism, which plays a stellar role in the consolidation of Nepali democracy. In contrast to the kingship regime, the current constitution establishes civil supremacy in the affairs of the state, giving life to the Abraham Lincoln’s memorable phrase: democracy is for the people, by the people and of the people.
In this regard, Professor Dr Bipin Adhikari’s Salient Features of the Constitution of Nepal, 2015 provides a concise introduction to Nepal’s constitution, with not only historical background but also political, legal and judicial developments that played stellar role in birth of the latest charter. The book brings together a collection of six chapters which provide a critical investigation into the key issues, principles and themes on constitutional law and constitutionalism. A short foreword by former Chief Justice of Nepal Kalyan Shrestha sets the tone for the discussion on the challenges and goals of the constitution. “This book not only fills the vacuum of an initial offering of its kind of the 2015 constitution, but also helps readers understand the immediate challenges in its implementation,” writes Justice Shrestha, adding, “Now, the great challenge before the new Nepalese state is to bring all political forces and stakeholders under the newly-adopted constitutional regime, while resisting geopolitical elements and other free-riders. Dr Adhikari has explained this challenge well.”
In the first chapter, Dr Adhikari shades light on the role of Constituent Assembly, Nepal’s constitutional journey from 1948 to present, challenges faced by the CA and the international perspectives in constitution making process. “By the time Constituent Assembly-I started constitution-building on May 28, 2008 until the CA-II was re-elected and adopted the new constitution (i.e., a period of approximately seven years and four months), many other countries produced new constitutions, leaving their own histories behind,” he writes. In 2008, Bhutan, Burma, Ecuador, Maldives and Kosovo promulgated their new constitutions. “In 2009, Bolivia and the Falkland Islands did the same. In 2010, Angola, Curacao, the Dominican Republic, Guinea, Kenya, Kyrgyzstan, Niger and Sent Maarten followed suit. Hungary, Libya (an Interim constitution) and South Sudan were also able to do the same in 2011. In 2012, Haiti, Somalia, Syria and the Turks and Caicos Island took their turns. In 2013, Fiji, Vietnam and Zimbabwe enacted their constitutions and 2014 was the year for Egypt and Tunisia,” writes Dr Adhikari on page 40 in his first chapter of the book.
The second chapter endeavours to show the perambulatory pledges and the anatomy of the constitution. He writes that the preamble of the Constitution of Nepal provides an introductory text explaining its statement of purpose and underlying philosophy. Adhikari borrows the words of Lord Blackburn, who in the case of Overseers of West Ham v Lies (1883) stated that “the preamble of an Act of Parliament would be given effect to the extent of the intention of the legislature,” to substantiate his claims. On page 46, he makes an important claim that “the preamble of the 2015 constitution is no less of a constitutional moment than in other countries. Rather, it has even deeper role.”
Bipin Adhikari argues that both socialism and referendum remain undefined jurisprudence in the constitution.
As the preamble to the constitution begins with the opening words of “We, the people…”, this proclamation ensures that the 2015 constitution is an expression of power by the sovereign people. He argues that “the preamble highlights that the people of Nepal have the sovereign power and the rights to autonomy, self-rule, and to maintain Nepal’s independence, sovereignty, geographical integrity, national unity, freedom and dignity.”
The most illuminating portion of the book is the one that talks about the “salient features of the 2015 Constitution” under third chapter. While discussing the arrangements of inclusivity, citizenship, fundamental rights, directive principles, separation of powers, judiciary, judicial review, among others, he claims that constitutional provisions are tailored in such a way that the right to inclusion and participation in state affairs is expressly guaranteed for identified groups, including Madheshis, Dalits and women. He explains separation of powers between the legislature, the executive and the judiciary at the federal level in tabular form on page 87 which further gives brevity and clarity about the constitutional arrangements. He calls eight independent constitutional bodies as fourth bench of the government.
In the fourth chapter, Dr Adhikari has canvassed the factual scenario of the fundamental rights, federalism, financial powers, multi-lingual policy, among other features of the constitution that make the constitution truly federal. He argues that the conferment of state’s power to make special provisions for the protection, empowerment or development of “gender and sexual minorities” is a catch-all term for groups whose sexual identity, orientation, or practices differ from the majority of society and who often face discrimination as a minority group.
Over and above all this, the challenge lies in implementation. “The implication is that inclusion will now be measured by not just representation but whether such representation reflects the size of the particular group or community in the national population,” argues Dr Adhikari on page 204.
In chapter five, the author outlines significant constitutional provisions that require necessary interpretation from the Supreme Court. The constitution does not contain a provision on electoral threshold and also lacks clear rules requiring financial transparency within the political parties. “The necessity for reforms in the institutions of political parties cannot be overlooked in Nepal’s case,” maintains Dr Adhikari, while adding, “This failure has impacted the country’s ability to effectively maintain free and fair elections, ample opportunities for Nepalese of all backgrounds to run for elections, effective governance, democratic government and regulation of corruption.”
He comes down heavily on the constitutional arrangement for parliamentary hearing regarding the appointments to the offices of Chief Justice, judges of the apex court, members of Judicial Council, and the chiefs and members of constitutional bodies, who are appointed on the recommendation of the Constitutional Council under the constitution, as provided for under the federal law. “As government controls the house proceedings in most cases, parliamentary hearings may entail appointment of these important officials politically, rather than on professional grounds,” argues Dr Adhikari on page 211.
He argues that both socialism and referendum remain undefined jurisprudence in the constitution. Socialism may be divided into both non-market and market forms. “Thus, given these wide implications, what is meant by socialism will remain an issue subject to the contradictory interpretations in Nepal because of the constitution’s failure to adequately define the term and its implication for Nepalese state.” Apart from this, “as referendum is an important means within the constitutional order, there should be a more specific arrangement in constitution that addresses the referendum quorum, effects and relationship to ordinary legislation.”
He suggests that the apex court must be alert in ensuring that the essence of all fundamental rights remains and their value is not compromised by future legislation.
He suggests that the apex court must be alert in ensuring that the essence of all fundamental rights remain and their value is not compromised by future legislation.
Shading light on the bitter truth, Dr Adhikari writes that the missionaries have taken advantage of the ignorance and poverty of marginalized communities, especially during and after instability created by Maoist insurgency. “Thus, the business of proselytization has grown tremendously, thousands of churches have been erected, and indigenous Hindus, Buddhists and Kirants have been converted, leading to a consistent loss of Nepal’s age-old social and cultural heritage, the identity of the common people and historical legacies.”
He shades light on implications associated with right to environment, right to social justice, fundamental duties, directive principles, federalism, constitutional geopolitics among other issues. On page 239, he writes, “During Nepal’s constitution-making process, India used the Indian media overtly to influence the outcome. At times, the voice raised, even tried to divide Nepalese people and exploit the vulnerabilities thereby created,” he writes. “The economic blockade was also an opportunity to understand India and its agenda in Nepal.”
In the final chapter, Dr Adhikari stresses on the need of implementing the constitutional provisions for a constitutionally empowered democracy. He says that the new constitution’s framework on federalisation and decentralised governance is opportune and encouraging for the development of grassroots institutions. “It redistributes power, executive, legislative, and judicial in some capacity, which is a vital step in the right direction and a potent instrument for deepening democracy. This redistribution of power translates to responsive, responsible, and accountable governance.”
If there is one reason to read Dr Adhikari’s timely exposition, it is his endeavours to give conceptual clarities on the provisions of the constitution in the light of international precedents. His book should be a mandatory reading for judges, judicial officers, teachers and students of various streams, including that of social sciences and law.
The federal democracy, independent judiciary, non-discrimination at private or public life, civil supremacy, or judicial review is hailed as the basic structures of the constitution. In doing so, the constitution leaves no room for the revival of any monarchical power, unruly or undemocratic forces. For me, the constitution is a living document and site of struggle that may merit amendments for clarity and brevity but it could not be a document to be compromised to give birth to arbitrary exercise of power by neglecting good governance, rule of law and constitutionalism.
Let me again borrow Dr Adhikari’s words from 252: “No constitution can endure without ethical leadership and people-oriented political institutions, especially given that Nepal is an ancient country of a nationalist people.”
It’s time to implement the constitution to realise the democratic aspirations envisaged there under.
Jivesh Jha, formerly a Lecturer of Law at Kathmandu University School of Law, is currently a Judicial Officer at Dhanusha District Court, Janakpur.
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