KATHMANDU: “The Constitution only gives people the right to pursue happiness. You have to catch it yourself.” – Benjamin Franklin
The 3rd of Asoj in the Nepali calendar is a day when the Nepali peoples’ cherished dream of a people-drafted constitution came true. Tomorrow is the 3rd of Asoj and it marks the completion of six years of promulgation of the Constitution through the historic Constituent Assembly (CA).
The present constitution was promulgated on 20 September 2015 from the Constituent Assembly with the support of more than 90 per cent people’s representatives in unprecedented circumstances.
Although some of the political parties were not agreed with some provisions and the content of the constitution when it was issued by the first President of Republic Nepal, Dr Ram Baran Yadav, on that historic day, they signed in support of its promulgation. Therefore, it was a culmination of the more than seven decades of struggle of the people to write their own constitution.
Mainly, the Madhes-centric political parties continue to articulate their dissatisfaction over the main law of the land as their political demands to this day. There is, however, no immediate situation in which political parties representing in the Parliament will reach a concrete political agreement in favour of amending the constitution to address their demands.
This constitution is a document of consensus that carries with it the spirit of the political changes, struggles, the armed conflict and civil movements since 1950. It formally declared the end of the unitary state system that the nation had been practising for long as well as the termination of the transition towards federal democratic republic. The 2015 Constitution not only ushered Nepal into a pluralistic politics from a unitary one but it also declared an end to the inequalities created by the unitary system.
The country’s main law is claimed to be highly progressive document for its numerous distinct features. It has assimilated the principles of federalism, republic, secularism, proportional representation, an independent judiciary and separation of powers, multi-party reformed parliamentary democracy, periodic election and the provisions of inclusion, proportional representation, social justice, right to equality, and the rights of women and so on. It has also spelled out the duties and responsibilities of the citizen.
Commitment to social justice
Nepal has tried and tested seven constitutions in seven decades. The past constitutions were not acceptable as they were not endorsed by the people. The present constitution is drafted and brought into implementation by the people’s representatives through the Constituent Assembly. The constitution has resolved to build society based on equality. It has internalised the fundamental principles of liberal democracy and set the goal of building a prosperous nation by remaining committed to socialism.
The constitution has set the objective of fulfilling the national aspirations of durable peace, good governance, development and prosperity by means of federal democratic republic governance system. It has adopted the policies in line with liberal democracy and commitment to socialism-oriented economy.
It would be difficult and challenging to translate into practice the constitutionally-guaranteed economic and social rights and the right to social justice until and unless the country’s economy is made strong and prosperous.
The present constitution envisages citizen participation in the state system and establishing good-governance through the adoption of democratic dispensation. It not only recognises that people are the sovereign but it also conceptualises them to be self-governed.
Beginning of age of democratic constitutionalism
The constitution is a means of state governance that binds the people. A constitution is made and promulgated to bring the diversities of peoples and their views for fulfilling the national aspirations. It establishes and defines the relations between the citizen and the state by protecting the civic rights and incorporating the topics of promoting national interest. The civilized nations of the world have adopted constitutions and the governance system based on the principles of democratic constitutionalism. The constitutions made in accordance with the tenets of democratic constitutionalism are found to be sustainable in the long term. The modern political thinking is nothing but building a people-governed constitutional and democratic state system.
Democracy is government of, by and for the people. It is government of a community in which all citizens rather than favoured individuals or groups, have the right and opportunity to participate. In a democracy, the people are sovereign. The people are the ultimate source of sovereignty. In a constitutional democracy, the authority of the majority is limited by legal and institutional means so that the rights of the individuals and minorities are respected.
So, seen from this perspective, the Constitution of Nepal is an epitome of a progressive constitutionalism and has laid the foundation to constitutional democracy. It has inaugurated an era of constitutional democracy in the country.
Nevertheless, there needs to be improvement in the behaviour and attitude of the people and the rule of law, and democratic culture and constitutional culture should be fostered in order for the successful implementation of the constitution. These are the prerequisites for making the constitutional democracy dynamic and functional.
Some gaps in implementation of present constitution
No matter how good a constitution is it will only be limited to paper if it is not implemented in letter and spirit. A constitution can deliver only when it is respected, upheld and executed sincerely.
The political parties, the civil society and the constitutional bodies have a paramount role to play in upholding the constitution. It has been found that all of them have been found wanting in this respect.
Since democracy is a system that requires equal respect to all sections of society it should accommodate all the voices and address the grievances of the general public. Exercise of pluralism in practice, existence of citizens’ rights and freedom, improved performance of the government and the state organs, people’s participation and ownership in the government and a mature political and constitutional culture are the indicators to assess a country’s democratic practices and the state system.
In order for institutionalising constitutional democracy in Nepal, some fundamental issues have to be addressed and the bedrock of the constitution should be improved. These are: reformation in the election system, enhancing the effectiveness of the parliament and the parliamentary committees, promoting a responsible and accountable government, rooting out the corruption and establishing good governance, reforming the judiciary, bringing improvement in the role of political parties and increasing the active participation of civil society and the media. (Mr Sanyal is the senior editor at National News Agency – RSS)