The letter and spirit

No Constitution is complete by itself, besides the laws, there is a need for a corpus of court judgements and commentaries which will accumulate over time. Nepal has to make up for a lack of such archiving to understand and implement the Constitution.
August 10, 2018
Bhanu Bhattarai

The Constitution of Nepal was passed in 2015 after two Constituent Assemblies, as a part of the peace process and through a period of great social polarisation. This was followed by the Indian Blockade, and in 2017 through three tiers of elections the-election-fever-federal-and-parliamentary-election,3982.

This Constitution is meant to chart Nepal’s path to the future, but much depends on how sagaciously it is implemented amidst Nepal’s ever-present socio-political turmoil. It is essential to study the Constitution, to make changes where required, but to proceed to implement the letter as well as the spirit.

The challenges to the implementation of the new Constitution start with many of the framers themselves not taking ownership of the text. Senior-most negotiators from the political parties claim they were forced to adopt provisions under ‘pressure’. That is unconvincing, they have a duty to take unequivocal ownership, and thereafter to do what is necessary through amendments, appropriate laws, and so on.

Read also: ‘Share rule and self rule‘, George Varughese

Talking of laws, the Constitution requires the adoption of hundreds of laws, and that is where the spirit of the document must carry through. Instead, not only has the political turbulence of the past couple of months delayed the drafting, much of the responsibility on the drafting has been handed to the top-level bureaucracy where there is great resistance to innovations in the Constitution.

The fundamental freedoms enunciated in the Constitution are very broad, and the laws are needed to make them justiciable. Missing the deadline will set a poor precedent and weaken the public’s trust in the Constitution and its ‘handlers’. Several laws have been adopted (such as in education, local government) which experts say go against the tenets of federal devolution of powers.

The sense of arrogance within the ruling coalition, with its near-two-thirds majority, and the disarray within the Nepali Congress following its rout last year, too, is leading to a standoff in Parliament. This is unfortunate because a minimum level of goodwill is required between the political forces if the Constitution is to be implemented through laws that uphold the spirit of representative democracy, inclusion and equity enshrined in the Constitution.

Read also: ‘Nepal’s constitution, 3 years later‘, Prakriti Kandel

No doubt, there are weak points and contradictions in the Constitution. Many new advances are not fully understood by stakeholders. There must be a sense of excitement and ownership around the Constitution. Any attempt to undermine it will not only invite socio-political chaos but will be accompanied by mass psychological distress, leading to the economy not being able to rise to the potential of Nepal’s landscape and demography.

It is imperative that all forces outside of the political parties gather their forces to protect, advance and (as required) amend the Constitution. Nepal’s civil society has so far been concentrated in Kathmandu Valley, but civil action now needs to well up from all seven provinces. Nepal now has federal, provincial and local governments, and this has to be reflected in social activism.

Civil society has an important role in nurturing the new Constitution and promoting its implementation. President Bidya Devi Bhandari’s  role is definitely ‘constitutional’, but by that very token one of her principal tasks must be to use good offices and goodwill to goad the government in the sagacious implementation of the laws of the land.

In the meantime, recalling its well-meaning and sometimes prejudiced involvement in the Constitution-writing phase, it would help if the international community maintained a positive spirit to support implementation.

No Constitution is complete by itself, besides the laws, there is a need for a corpus of court judgements and commentaries which will accumulate over time. The American Constitution was assisted in its implementation by what are known as the Federalist Papers, while the detailed deliberations in India’s Constituent Assembly, as chaperoned by BR Ambedkar, have served in understanding the spirit beyond the letter of the Indian Constitution.

In the case of the Nepal Constitution, there seems to have been a lapse in not archiving the debates. Better late than never, we need to start building a corpus which will help in understanding and implementing the new Constitution.

We hope the Conference on the Constitution of Nepal, 2015 which brings together constitutional experts from Nepal, South Asia and beyond, being held in Kathmandu over the weekend, will help in building commentary on the Constitution.

Read also: Federalism, republicanism and secularism , Anurag Acharya

Making the best of it, Editorial

10 years ago this week

Three years after the Constitution was promulgated, we look back at the issue of Nepali Times ten years ago this week which contained a package of reportage on urban decay, lawlessness, the unacceptable rise in crime. The editorial in the #412 edition of 8-14 August 2008 week said:

‘At the root of all these problems is the prolonged lack of legitimate government and the unnecessarily lengthy post-election powerplay. This is a classic example of what happens when elected leaders lack accountability and are obsessed about retaining power at all cost. Police posts removed during the insurgency need to be restored. VDC secretaries need to be in the villages. School teachers must be liberated from extortion. A stopgap political setup will have to be devised at village, district and municipality levels till the next local elections are held. Development can’t happen in the present vacuum.