Yes, the constitution is a historic document but it has still failed to become the people’s document for it is not still wholly accepted by the excluded and marginalized communities
In his recent op-ed in Republica, Jivesh Jha wrote that Nepal’s constitution is one of the most progressive documents in the world (see “Our constitution is one of the most progressive documents,” Sept 18). He went on mentioning the progressive provisions of the constitution but ignored its regressive and flawed aspects.
Had the constitution been the best document, why did the then Prime Minister Sushil Koirala, on the day of the constitution promulgation itself, express commitment for its immediate amendment? Accordingly, the first amendment was made to the constitution in January 2016, four months after its promulgation. In response to the demands of Madhes-based parties, Article 42 and Article 286 were amended to ensure proportional representation and electoral constituencies based on population. The author himself is assuming privilege of proportional inclusion in his recent selection as a judicial officer.
The country celebrated the fourth anniversary of the constitution on September 20, 2019. Despite continuing resistance and challenges, this constitution has successfully been implemented. The implementation of this constitution marks the implementation of republicanism, federalism and secularism. In that sense, this marks a new beginning in Nepal’s political history. In Nepal’s history, this is the first ever constitution written by people’s representatives. And it was the outcome of people’s aspiration expressed during various movements—People’s Movement 2006 and Madhes Movements (2007, 2008 and 2015). But this has failed to become the people’s document for it is still not wholly accepted by the excluded and marginalized communities, including Madhesis and Thaurs.
As the government celebrated the fourth successful year of the constitution implementation, people in Tarai called it a repression day or ‘black day’. This shows that people in Tarai are still not satisfied with many provisions, most notably citizenship and provincial boundary. The constitution discriminates between the citizenship by descent and others. Since the statute came into effect, many hurdles have been created for Madhesis to acquire citizenship certificates though citizenship is the basic right of the citizens.
2015 constitution has regressive provisions on citizenship. The interim constitution 2007, which remained in effect for almost a decade, had put the bar of 10-year residency in the country on naturalized citizens but they were not prevented from holding any constitutional posts. Current constitution does restrict the naturalized citizens to hold top state positions.
Even constitution of 1962, enacted under autocratic Panchayat regime, did not discriminate against foreign women marrying Nepali men. They were naturalized citizens but their status was equal to the citizens by decent.
Of course, the constitution has a list of 31 fundamental rights. However, the implementation of these rights requires laws. The constitution has made provisions to enact such laws within the three years of the commencement of the constitution. So far, the Parliament has enacted 16 laws relating to fundamental rights. Even these laws, which alone are not sufficient, require regulations, directives and manuals for the effective implementation. As of now, only two regulations—right to social security and right to employment—have been made. In the absence of those regulations, many citizens have not been able to enjoy their fundamental rights.
Four years have passed since constitution promulgation but chairpersons of four commissions—Madhesi, Muslim, Tharu and Inclusion commissions—were appointed only recently. In lack of required members, human resources, funds and infrastructures, National Adibasi Janjati Commission, National Women’s Commission and National Dalit Commission have remained largely ineffective and non-functional. Besides, the government is amending the National Human Rights Commission (NHRC) Act to weaken the constitutional human right watchdog.
Thus Jivesh Jha seems to have forgotten a crucial flaw of this constitution. The judiciary under this federal constitution has still remained unitary. This has become a major challenge for not only in providing access to and delivery of justice but it has also created confusions among judicial institutions and actors regarding their jurisdictions.
Statute of haste
Let’s not forget that the constitution was promulgated in a forced manner. Although the Rule 93(3) of the Constituent Assembly Rules of Procedure 2014 stipulated a week’s time for the feedback and suggestion from the Constituent Assembly members once the draft was produced in the assembly, it was not observed. In addition, there was undeclared whip issued by the top leadership of major political parties that any member going against the party line would have to face an action. This prohibited many members from registering their amendment proposals on the draft. This led to the passage of some conservative clauses in the constitution.
On the day of promulgation, Satrudhan Patel in Birgunj was shot dead by police in anti-constitution demonstrations. Constitution was promulgated on the majoritarian approach. The same approach is being used for its implementation as well. In due course of the implementation, power is being centralized, federalism is being weakened, discrimination and marginalization has deepened, judiciary has been politicized and constitutional bodies have been made weak.
Thus, the government should acknowledge that people still have dissatisfactions. The major political parties, both the ruling and opposition, should try to accommodate them through the amendment. Then only will the constitution become a perfect document.
The author writes on politics, human rights and social justice