After seven decades of struggle, the people of Nepal have been able to obtain a constitution written by their elected representatives. The new constitution promulgated in 2015 has a number of characteristics that intend to put Nepal on a path of prosperity through the institutionalization of federal, democratic, and republican system of governance.
The Preamble of the Constitution embraces the sovereign rights of the people, and their right to self-rule. It talks about ending all forms of discrimination and exploitation through the displacement of autocratic, centralized and unitary state structure. In order to attain socio-economic equality, the constitution had stressed on proportional, inclusive and participatory form of governance. The Preamble underscores the democratic system of governance, citizen's independence, fundamental rights, human rights, universal adult franchise, periodic elections, independent and capable judiciary and press freedom.
The Constitution envisages the effective federal system through the operation of federal, province and local level governments. All three tiers of the governments are equipped with specific executive, legislative and judicial powers. Their jurisdictions are specified in separate Schedules of the Constitution including exclusive and concurrent lists. The power of federal government is listed in Schedule 5, 6, and 9. The power of province government is listed in Schedule 6, 7 and 9. And the power of local level is listed in Schedules 8 and 9.
The Constitution has laid down 31 fundamental rights ranging from right to equality to right to clean environment. These rights cover all aspects of the lives of the common people.
In terms of judiciary, the Constitution has adopted unitary judicial system with one Supreme Court, 18 High Courts and 77 District Courts. However, there are Judicial Committees in each of the Rural Municipality and Municipality that are provided with specific judicial rights.
Given the complex nature of federalism, the constitution itself envisages the possibilities of disputes among federal, province and local level; and has propositioned mechanisms and procedures of dealing with such disputes. Article 235 of the constitution has created Inter Province Council to deal with political natures of disputes. Article 137 has provided for the Constitutional Bench to deal with constitutional/legal disputes among federal, province and local level. The Bench is headed by Chief Justice of the Supreme Court. Likewise, Article 235 provides for ways of maintaining coordination among all three levels.
The Constitution also has a number of Constitutional Commissions. They are Commission for Investigation of Abuse of Authority, Auditor General, Public Service Commission, Election Commission, National Human Rights Commission and National Natural Resources and Fiscal Commission. The Constitution has also specified seven other bodies as Other Commissions – National Women Commission, National Dalit Commission, National Inclusion Commission, Adivasi Janajati Commission, Madhesi Commission, Tharu Commission and Muslim Commission.
It has been four years since the promulgation of the new constitution. The government faces tremendous challenge in operationalizing the new constitution. Elections for all three levels had to be conducted, their roles defined and implemented. Likewise, the government has to formulate 600 new laws. In short, the government at all levels had to ensure public faith in the new constitution through its proper implementation.
After the elections, there is a government with two-third majority support in the federal level led by the Communist Party of Nepal. Likewise, there are majority governments – in some provinces with two third majority – led by the same party in six provinces and the one led by Terai parties in Province 2.
The elections have established three major political forces the Communist Party of Nepal, Nepali Congress and Terai-based parties.
In order to ensure smooth implementation of new constitution, there is a need for the government to formulate federal, province and local level laws along with the capacity development of the stakeholders. But this task is largely unfulfilled as yet.
On the other hand, there is a need to ensure coordination among federal, province and local level in the spirit of coexistence and cooperation. The issue of staff management has become confusing and complicated.
Furthermore, one of the pressing challenges is to remain true to the constitutional principles of equality, independence and human rights. This is even more important because a government with two third or more support may want to indulge in activities that undermine such spirit.
Statement of Problems
It has been almost four years since the promulgation of the new constitution. During these initial years, the country has made an important march towards its implementation through the holding of elections for all three levels.
By and large, most of the structures envisaged by the constitution are in place. However, successful implementation of constitution does not merely depend on structures. Rather, it depends on the system and functionality of those structures, and how well they deliver the public aspirations from democracy. That requires constant monitoring and evaluation by constitutional experts and civil society.
As it is said, the price of democracy is eternal vigilance. They key word here is eternal vigilance and the nature of such vigilance. Watchful eyes on constitutional development and public debate on the steps and directions are of paramount significance.
Unfortunately, in case of present day Nepal, not much discussion seem to be taking place relating to the constitution and constitutional development, particularly among the academics, intellectual community and the media. Although issues such as constant frictions in the implementation of federalism in constitutional spirit; and the building up of tendency among the actors in the government to indulge in excesses as is currently evident in the nature of press laws being proposed and other statements being made may not appear to be decisively problematic at this point but must be subjected to thoughtful considerations.
In these formative years, the main problem is how to build the ownership over the constitution itself. Nepal has experimented with half a dozen constitutions in these past seven decades already. The new constitution is a result of long struggle so it must not be allowed to suffer similar fate. In the course of the implementation of the constitution, there have been a lot of gains such as the election held for all tiers of government and the federalism being put in implementation, but many things are yet to happen. Many burning questions have emerged whether the constitution is being implemented in its entirety and is moving in a direction that is expected; whether the rule of law is anybody’s priority and whether the core issues of the constitutional governance, justice, security, law making etc are being respected and nurtured; whether the federalism is being allowed to take root and prosper; and whether it is working as per the constitutional design. These are common but critical questions that must move all sections of the intelligentsia. For that purpose, endeavors of oversight on behalf of the public seem necessary. The key goals of such oversight would be to see if the constitutionalism is being developed in a proper direction; and if the laws being made cater to the constitutional mandates and reflect the expectations of the people. Similarly, it is necessary to see if justice delivery system is meeting its key objectives such as access and fulfillment of the expectations of competitive, impartial and independent judiciary. Likewise, such oversight should involve assessment of whether necessary infrastructures, human and financial resources have been provided.
These are all crucial issues, but people, in general, seem to be largely unaware of this need of the hour. Hence, there is the need for a group of intellectuals and civil society leaders to rise to the occasion and take up this responsibility on behalf of the people.
Why Constitution Watch Group?
At this crucial phase of constitution implementation, there is an urgent need for careful monitoring and evaluation of each and every step by a group of independent and respected members of civil society.
The group can not only identify the problem areas but also help the government, the judiciary and the parliament by pointing out the correct resolution.
Their constant monitoring will be a God-send opportunity for the authorities as it will help in the proper implementation of constitution. They can help in the proper establishment of many constitutionally-envisaged structures for proper exercise of federalism.
That apart, the Group will be a beacon of hope for the common people who will get to know how appropriately their constitution is being utilized. It can provide a platform for research, study and recommendations that are neutral, independent and fact-based.
Additionally, the media will also benefit from the Group as it will provide moral compass and reasoned voice.
Objectives of the Constitution Watch Group?
- To oversee and assess the working of the constitution in line with the standards of the constitution itself
- To oversee and assess the enactment of laws and their quality according to the constitutional mandate and if they reflect the expectations of the people
- To oversee and assess the rule of law, development of system, structures and their contribution in terms of ensuring governance
- To oversee if the federalism is being properly implemented to the satisfaction of the constitutional spirit and structure, and assess if it is taking roots and developing in the direction provided by the constitution
- To oversee the judicial activities and justice delivery system and to assess if it upholds the values like competence, impartiality and independence as enshrined in the constitution
- To examine the nature of laws relating to the implementation of the constitution and fundamental rights, and to assess their enforceability and help create the situation where the people can enjoy their rights