“It is not unconstitutional. It is not wrong constitutionally,” say constitutional experts

KATHMANDU, Nov 6: Although a section of politicians and constitutional experts are alarmed by the decision of the government not to call Nepal a federal democratic republic, several legal experts argue that the decision to refer to the country just as ‘Nepal’ is not unconstitutional.

Legal experts argue that since the Constitution of Nepal 2015 mentions Nepal a number of times, there is no question that the decision of the government goes against the spirit of the constitution. They reject it as a move to thwart the federal system that the country has adopted.

“Nowhere does our constitution refer to Nepal as federal democratic Nepal except in Article 4. Our constitution is referred to as the Constitution of Nepal, 2015. So, there is no point raising questions about the decision taken by the government,” argued constitutional expert Bipin Adhikari.

Senior advocate Adhikari argued that Nepal is the generic name of the country. “Different adjectives that explain the nature of the state can be added or kept along with Nepal. This is what Article 4 of the constitution does. Other adjectives added by the constitution could also be used. But it is impractical to say that only the names with those adjectives should be brought into use,” he argued.

In addition to Article 4 of the constitution, Article 56 (1) reads, “The main structure of the Federal Democratic Republic of Nepal shall be of three levels, namely the federation, the province and the local level.” A section of politicians and legal experts have argued that, as per Article 56 (1), Nepal’s official name is ‘Federal Democratic Republic of Nepal.”

Senior advocate Adhikari, however, argues that the adjectives were used to explain the division of power. “The adjectives have been used to refer to the division of power of the state. But this does not indicate the official name of Nepal,” he further added, while arguing that the term Nepal only has been used in a number of other articles of the constitution.

Another constitutional expert, Dr Bhimarjun Acharya, also argued that the government’s circular does not violate the constitutional provisions. “I do not think that the government’s circular violates the constitution in any way. It would have been a matter of objection if the government had issued a direction to write China, India, Singapore or any other name in place of Nepal,” tweeted Acharya, who has been a vocal critic of the federal system in the country.

Most political leaders also agree with the arguments of constitutional experts duo Adhikari and Acharya. Former Sajha Party leader Surya Raj Acharya said that the decision of the government was a correct move. He argued that since there are a number of adjectives used to explain the forms of state, the terms ‘federal democratic republic of Nepal’ could have been merely an ad hoc approach.

The Ministry of Law, Justice and Parliamentary Affairs, on October 14, had issued a circular asking all the government bodies concerned to use “Nepal'' as the official name of the country, instead of writing the Federal Democratic Republic of Nepal. A section of politicians, including those belonging to the ruling Nepal Communist Party (NCP), have argued that this was a conspiracy to weaken, if not abolish, the federal system of governance adopted after the political changes of 2006.

 
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