On September 20, Nepal promulgated the new constitution, arguably the most awaited event in the political history of the nation.
It was not merely a historic moment, but also a milestone that advances the nation into another era, a revolutionary one. Along with the constitution, the mission of political change has reached a conclusion and the Nepalis are bestowed upon with a whole new destination - the destination of peace, security, development and social transformation.
The promulgation of the new constitution, along with all its challenges, required immense bravery to be showcased by all the Nepalis. We’ve been able to adopt one of the most democratic and progressive constitution through a democratic process.
In the end, it was the Nepalis who turned out victorious in a battle that started 65 years ago. We’ve successfully promulgated a republican constitution, which is a fact all Nepalis can take pride in and a special one considering the world history and politics
The constitution, besides being a means of social change, can be a tool for social transformation. Every constitution in a democratic nation is as much a political document as it is legal. One of the major characteristics of an ideal constitution is the fact that it reflects the socio economic scenario and the intellectuality of the society. Every society is based upon a definite socio economic foundation that demands a constitution that can regulate the society and the state.
The science of constitution often revolves around a principle - one can never expect an isolated generation to assume the desires and the aspirations of the ones to follow and incorporate them into the constitution of the present. This principle, though a basic guideline, points to another important characteristic of the constitution.
The constitution should be flexible enough to allow the following generations to amend it, in order to incorporate the desires and aspirations of the then generation, yet be careful enough to not allow the alteration of its basic norm. Hence, this gives rise to a factor - flexibility, which helps measure the robustness of the constitution.
The present constitution is flexible considering the fact that besides sovereignty and national unity, all other provisions or article are open to amendment via a two-thirds majority of the Parliament.
This opens a democratic pathway for every political slogan to be legitimated in the constitution, as a preferred alternative to armed struggle.
Constitutionalism is the basic value of the constitution and other important factor to analyse the constitution’s robustness. Rule of law, independence of the judiciary, separation of the powers with checks and balances, periodic election, adult franchise, democratic process and limited government are the core and fundamental values of the constitutionalism.
All these principles and values are secured in the new constitution, hence keeping it under the guidelines of the principle of constitutionalism.
It’s not a new fact that the constitution-making process has been adopted by almost ninety per cent of the members of the constituent assembly making it a widely accepted document by its nature.
Social harmony and nationalism
Every constitution must guarantee the prevalence of social harmony, peace and security following it’s implementation.
The fact that some differences have been shown in this process and some Tarai-based political parties have boycotted the process can and should not be isolated.
Major political parties should address the reasonable demands of those who were an integral part of the Constituent Assembly.
It takes no hesitation in mentioning that each individual living in Tarai and Madhes must be able to recognise the constitution as not just a mere document but a guarantee of their rights, freedom and justice. The constitution must be able to arouse the same feelings in Tarai and Madhes as it does in other parts of the country, the feelings of patriotism, nationality, social harmony, peace and justice.
Social harmony has been a prominent feature of the Nepali society throughout history and it must be kept that way by all stakeholders. No forces can and should break our social harmony, and we as aware citizens must be responsible and sensitive enough to protect our harmony in order to protect our nationalism.
Judiciary is yet another aspect that determines the quality of a constitution.
Independent judiciary is a salient feature of the new constitution. Although judiciary has been one of the areas not completely transformed with respect to the constitutions in the past, some fundamental provisions have been changed.
The three tier court system are left untouched, however the provision of a constitutional bench within the Supreme Court is a major policy introduced in the new constitution.
By adopting the provision of constitutional bench, Nepali judiciary can take a step forward towards reducing its criticism.
Disputes between centre and provincial governments, between provincial and local governments and election disputes regarding members of federal Parliament and provisional assemblies will be under the jurisdiction of the constitutional bench.
Another fundamental change is the provision of high court and its jurisdiction. All kinds of writ petitions shall be heard by the high court, including the power of ultra vires regarding provisional law.
This means that the federal system has been applied to the judiciary.
Another important change in the judicial system is the fact that no ad hoc judges shall be placed in the Supreme Court and the high court and that the district court has the right to hear appeals in particular cases.
After the promulgation of the new constitution district court may hear appeals to those cases that are disposed by quasi-judicial bodies, which is another fundamental change considering the judicial history.
There’s also a fundamental change in the impeachment process. According to the Interim Constitution, after 25 per cent lawmakers register a motion of impeachment against Supreme Court judges, the Parliament could proceed with impeachment procedure. However, following the promulgation of the new constitution, there is a provision for a permanent standing committee within the parliamentary committee to look into impeachment cases. The committee, consisting of 11 members, may independently initiate the impeachment process.
This is an essential provision regarding judiciary whose adoption shall no doubt lead to reduction in judicial corruption and enhance the sustainability of the Supreme Court. Judiciary is the back bone of any democratic system and efforts must be made to restore and preserve the faith in judiciary.
All in all, despite all measures, the ultimate means for the success of any constitution resides in its recognition by the citizens of the nation, and in that sense, without doubt, the present constitution is in fact a progressive and democratic one, which, if implemented precisely, can lead the country to a new era.