Dissatisfactions against the government have been accumulating over the years and there are fears that they may be vented out in the streets if the parties in power do not mend their ways
KATHMANDU, Sept 19: As the country marks the fifth anniversary of the promulgation of the Constitution of Nepal 2015 today, the document is yet to be fully implemented. A number of laws and bylaws still await enactment, and a host of institutions that the constitution envisions are yet to be given a full shape.
The culprits behind this unfinished project of the implementation of the constitution are the country's major political parties, mainly the ruling Nepal Communist Party (NCP) and the main opposition party Nepali Congress (NC). They are responsible for this mainly for two reasons:
One, they have not shown the willingness or the required political will to formulate the necessary laws and regulations and put in place the institutions and mechanisms envisioned to fully implement the constitution.
Two, they have not embraced the spirit of the federal constitution even in the life of their own party, and have taken every opportunity to tweak or misinterpret the constitutional provisions, raising questions about their own commitment to embrace the provisions of the new constitution.
Some positive developments
Nepal adopted the federal democratic constitution on Asoj 2, 2072 (September 20, 2015) in the aftermath of the major earthquake that devastated most parts of central and eastern Nepal. This came after a decade-long political turmoil amid reservation from the Madhes-based political parties over some of the crucial provisions of the constitution.
In these five years, the three-tier elections have been held under the framework of the new constitution, and local, provincial and federal governments have been elected and have begun to show their presence.
Constitutional experts believe that the acceptability of the constitution has increased over time, with the Madhes-based parties, which initially threatened to disown the constitution, accepting it with reservations and taking part in the local, provincial and federal elections held under the new constitution. They now run the Province 2 government.
There has also been a modest achievement in formulating the necessary laws as a number of such laws, including those related to fundamental rights as provisioned in the constitution, have been drafted in the last five years. Most importantly, India, which only 'noted' the promulgation of new constitution and called for amending the constitution, has lately stopped short of making such calls.
Commitment of major political parties under question
The Constitution of Nepal, 2015 sought to institutionalize federalism, secularism, proportional representation system and inclusion in Nepal's polity. Despite some modest achievements in the past five years, the implementation of the new constitution remains a project in the making as the commitment of parties that publicly claim to have promulgated a new constitution is not reflected in their action and behavior.
Political analyst Uddhab Pyakurel argues that the commitment of the major political parties is questionable when it comes to the implementation of the constitutional provisions both in letter and spirit. "While the political party in the government has least cared about the implementation, the role that the main opposition party has played to this end is equally disappointing," he says.
The implementation of the constitutional provisions can start earnestly from their own party structures. But none of the major parties have embraced the principles of proportional representation, inclusion and participatory democracy within their own party structures. Most parties, including the main opposition party, are yet to put up their party's structures in line with the federal system and the representation of women and other marginalized groups within these structures has not seen any changes.
A number of commissions were to be formed immediately after the elections held under the new constitution. But they are either vacant or are left with only the chief commissioner with no conducive environment to discharge their duties.
"Neither the ruling party has given any interest to fill these vacancies and make them functioning bodies, nor has the main opposition party exerted pressure on the government. This raises questions about the commitment of the major political parties toward the implementation of the new constitution," Pyakurel further said.
The government has also not shown interest in forming the National Natural Resources and Fiscal Commission (NNRFC), which is supposed to transform the old unitary system into a federal one, fully functioning. It took more than two years after the promulgation of the new constitution to establish the NNRFC and another two years to appoint former secretary Bala Nanda Paudel as its chairman. But this crucial body is yet to get a full shape with the appointment of its commissioners still pending. The government is also largely snubbing its recommendations on the distribution of economic resources to provincial and local governments, hindering the process of effective decentralization.
The fact that the country's politicians are yet to agree on the name and headquarters of many of the provinces raises questions about their commitment to help create a political environment conducive to implement the constitution. While Province 1 is yet to agree on its name, Province 2 has failed to determine both the name and its provincial headquarters. Disputes among the parties over the headquarters and name of Province 5 are ongoing.
Revival of the unitary system of governance?
The COVID-19 pandemic has exposed how the federal government is usurping the rights of provincial and local governments, thereby weakening the spirit of federalism. Although the constitution has devolved most of the rights related to health and education, for instance, to the local level, the laws formulated by the federal government pave the way for the federal government to retain them under its jurisdiction as in the erstwhile unitary system of governance.
While the chief district officers (CDOs) under federal government are given the authority to exercise most executive powers in the districts, the roles of local and provincial governments are nowhere to be seen. It is the CDOs who are taking the calls on whether to issue prohibitory orders at the local level. Similarly, whether to open the schools is decided by the federal government.
What makes the commitment of the government or the ruling parties to implementing the constitution dubious, according to experts, is its failure to give shape to a number of constitutionally-guaranteed commissions to ensure the rights of the marginalized communities. Although the government has formulated a number of laws to implement the constitutionally-guaranteed fundamental rights of citizens.
Similarly, many other laws such as Citizenship Act, Civil Servants Act and a number of other acts including those related to the media and the Public Service Commission are gathering dust in parliament. Adjustment of the police organization is still a project in the making.
"If we look at the past five years, top leaders of major political parties have appeared as the main hindrance in implementing the new constitution. They have least cared about honoring the spirit of the new constitution," says advocate Om Prakash Aryal.
Advocate Aryal believes that the judiciary has also failed to play its part when it comes to implementing the constitution as there is an impression that it is acting under certain political influence. "The constitutional bench set up at the Supreme Court has so far passed only a few verdicts. Its performance has not been effective," he further said.
NC lawmaker Pushpa Bhusal, who is the whip of NC parliamentary party, admits that federalism is yet to be fully implemented and that the ruling party is solely to be blamed for this inordinate delay. "The government has deliberately left at least 43 positions vacant in various commissions. It has put other statutory commissions as well under its effective control," she said. "What good can be expected when the government exerts all its tactics to make even the judiciary as its puppet?"
Are political parties serious?
The political change that people fought for back in 2006 was supposed to bring economic development and cultural transformation. The political parties promised meaningful changes in the lives of the people.
But these past five years have shown no sign of fundamental change in the lives of the people. Political parties seem concerned only about staying in power with the intention of accumulating wealth. The internal squabbles within the ruling Nepal Communist Party (NCP) and the recent decision of the government to nominate those defeated in the parliamentary election as members of the National Assembly is widely seen as a testimony to these facts.
This, experts say, sends an ominous sign to the longevity of the constitution promulgated with great trials and tribulations, starting with the fight to end autocratic monarchy and the huge sacrifices the country as a whole made to bring the former rebels into the political mainstream.
Disenchantment with the system itself has been growing among the people in recent years as the government has largely failed to fulfil its promises. A large number of youths have started coming out in the streets to protest against poor governance, lack of effective response to the COVID-19 pandemic and most recently against the government's dilly-dallying to reappoint Kulman Ghising as the top executive of the state-owned Nepal Electricity Authority (NEA).
These grievances and dissatisfactions against the government have been accumulating over the past years and there are fears that they may be vented out in the streets if the parties in power do not mend their ways. "What we have observed over the years is that unscrupulous businesspersons have their say in all government appointments and other crucial decisions. This is likely to provide an opportunity to those who opposed this constitution to amplify their voice and foil the constitution altogether. Our political parties should realize this sooner than later," warned Advocate Aryal.
Major political events after promulgation of new constitution
September 20, 2015: A new constitution is promulgated amid protest of Madhes-based parties and India's strong reservation.
October 11, 2015: Then CPN-UML leader KP Oli becomes the first prime minister under the framework of the new constitution.
January 23, 2016: First amendment was brought to the constitution to address the demands of agitating Madhes-based parties
February 8, 2016: India lifts blockade, and Madhes-based parties withdraw their movement.
February 22, 2016: Prime Minister Oli visits India to restore strained ties
July 25, 2016: PM Oli resigns after the erstwhile CPN (Maoist Center) withdraws its support to his government.
August 3, 2016: CPN (Maoist) Chairman Pushpa Kamal Dahal becomes prime minister.
June 6, 2017: Nepali Congress President Sher Bahadur Deuba becomes prime minister.
May-Sept 2017: Three-phase local elections.
Nov-Dec 2017: Federal and provincial elections.
February 15, 2018: KP Oli becomes prime minister again.
March 13, 2018: Bidya Devi Bhandari is re-elected president under the new constitution.
December 10, 2018: Prime Minister Oli holds the first meeting of the Inter-state Council, a coordinating body of chief ministers, amid complaints that the federal government was not cooperating with them.
March 7, 2019: Madhes-based parties withdraw their support to the government as PM Oli fails to amend the constitution.
November 2019: By-elections are held on November 30 for the 52 vacant positions at all three federal levels.
April 2020: Rastriya Janata Party Nepal and Samajwadi Party merge to form Janata Samajwadi Party Nepal.
July 9, 2020: Janata Samajwadi Party registered at Election Commission