Face-To-Face
Senior Advocate Chandra Kanta Gyawali holds a PhD in Constitutional Law. He has authored over three dozen books in his field of legal expertise. Many of these books have served as references for researchers and jurists and some of them have been prescribed as university textbooks in Nepal and overseas. Among these books, the Constitutional Law of Nepal has been awarded as Excellent Book and also Great Book. Both these awards were presented by the Chief Justice of Nepal. Two of his recent books Commentary on the Constitution of Nepal Part One and Part Two, were launched by former president Ram Baran Yadav recently. Ram Kumar Kamat of The Himalayan Times discussed issues related to the implementation of the Constitution as well as judicial reforms. Excerpts:
How do you look at the implementation of the constitution?
The current constitution of Nepal is entirely different from previous constitutions, because the present constitution has incorporated fundamental principles of the 21st century. The implementation of this constitution has posed a challenge from the very beginning. After the 2017 parliamentary election, the CPN-UML emerged as the largest party and its Chair KP Sharma Oli claimed he would form the government without becoming Parliamentary Party Leader. The president who was supposed to check the procedures appointed Oli as the new PM. This was the first violation of the new constitution.
Then, Oli made Yubaraj Khatiwada who was not a lawmaker, a minister and after six months he reappointed him as a minister for the second time. The constitution does not allow anybody who is not a lawmaker to become a minister for more than six months. This issue was taken to the court and the court stayed Khatiwada's appointment.
Another violation of the constitution occurred when Oli dissolved the House of Representatives twice. Oli argued that the PM had the prerogative to dissolve the HoR. The current constitution, as formalized by the Constituent Assembly, does not have such a provision for dissolution of the House in that manner.
Framers of the constitution were of the view that if the PM was not given the prerogative to dissolve the HoR as was the case with the constitution of 1990 and that the HoR would continue to suffer at the whims of the PM. Therefore, the Ex CA-members at that time decided to offer the PM the power to dissolve HoR only under two conditions: A minority government formed under Articles 76 (3) and 76(5) of the constitution may recommend dissolution of the House under article 76 (7) of the constitution if he/she fails to secure vote of confidence and if a new PM cannot be appointed.
At the time of drafting the constitution, the constitution of the United Kingdom served as big reference because the UK is considered to be the mother of parliamentary democracy.
The UK legislature had introduced a Fixed-term Parliament Act, in 2011, ending the PM's prerogative to dissolve the HoR.
Most Madhes-based political parties that had refused to sign the constitution gave their tacit consent twice to the constitution by taking part in the parliamentary and local elections.
Enactment of new citizenship bill is one of the crucial factors in implementation of current constitution. President Bidhya Devi Bhandari sent the citizenship bill back to Parliament with seven points as memorandum and eight suggestions to be addressed by the Parliament. But again, the Parliament passed the bill without addressing the president's suggestions.
In this case, the Parliament ignored the Head of State's suggestions. The Parliament passed the citizenship bill without any change for the second time and sent it to the president for approval. She refused to sign the bill.
Unlike in India and some other countries where the head of state has some power on bill passed by the House, our president has no option but to sign a bill passed twice by the Parliament. Now the question we face is that if the new president signs the same citizenship bill, the president can be blamed of exercising parallel executive powers, and consequently, lawsuits can be filed against the president. But if the president does not sign the bill,it will set a bad precedent because then presi-dent Bhandari's refusal to sign the bill will get legitimacy. Now the option we have is to either treat the citizenship bill as automatically enacted into law because the president did not act on the bill within 15 days, or the home minister can make a fresh start on the bill by reintroducing the bill in the House and securing its passage.
The constitution was violated when provinces and local levels enacted their own laws to give remuneration and allowances to their office bearers because there was no such provision in the constitution.
Thus, we can say that all tiers of governments have violated the constitution. The constitution states that laws relating to implementation of the constitution shall be made within three years, but the federal parliament has not enacted such laws to implement 31 fundamental rights guaranteed by the constitution.
How do you look at the implementation of the constitutional provisions related to federalism? Some are saying the federal system has become expensive for the country. What do you say?
As regards federalism, this is the best system for achieving the goals of development and empowering the marginalised regions and groups as it gives autonomy to the lower tiers of government to take appropriate decisions about government policies that they deem fit for their empowerment.
Two small nations- Saint Kitts and Nevis with 46,000 population and Palau with 19,000 population are federal countries. Saudi Arabia is a kingdom, but it is also a federal country. The United Kingdom is a unitary state but there is power sharing with the local tiers of administration. The federal government, which has the responsibility of playing key role in implementing constitutional provisions related to federalism failed to enact umbrella laws. Provincial and local governments have not been able to enact laws on concurrent powers because the federal government has not facilitated the enactment of laws.
Schedule 7 of the constitution that provisions concurrent powers hasnot been implemented due to lack of umbrella laws. The federal government should have given residual powers to the provinces.
The federal government should have given the provincial and local governments authority to collect excise and income taxes. The federal government should have given 30 per cent revenue rights to provinces and 15 per cent revenue rights to local governments. The federal government should collect very few taxes because most of the service delivery works are supposed to be done by the lower tiers of government.
What are your views on proportional representation system?
Proportional Representation is bad for political stability. If we continue to have PR in the Parliament, a single party may never win simple majority and we will continue to have hung parliament. In order to avert this situation, we need to amend the constitution and introduce a new system whereby certain percentage of electoral districts should be reserved for eight clusters that qualify for reservation in the constitution. During the drafting of the constitution, people of the country offered 90,000 suggestions, but most of them were ignored. Political parties should take people's feedback on the constitutional provisions and amend them accordingly.
Local governments have failed to form local courts as envisaged by Article 217. What are your comments on this?
Although Article 217 stipulates that the local governments can form local courts in their jurisdiction. None of the local governments have, however, formed such local courts yet. The current provision of judicial committees formed under the deputy chiefs of local levels are quasi-judicial bodies which cannot deliver justice to service seekers because the office bearers of the judicial committees cannot take bold decisions that could go against their parties' dictates. At present, local people have to knock on the door of the Supreme Court and in the course of justice; they have to spend a lot of money and time.
A version of this article appears in the print on May 26, 2023, of The Himalayan Times.
