Nepal | August 07, 2020

Nepali constitutions: Transitional provisions

Birendra P Mishra
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No transitional provisions are found in established democracies. There is no such provision in the constitution of the United States of America, Australia’s constitution, the constitution of French Republic, the Japanese constitution, Israel’s basic Law (no formal constitution)

Nepali consitution transitional provisions

It is said that a nation is reborn with a new constitution. Nepal, as a nation, was supposed to be in its new avatar in dealing with its new statecraft with the promulgation of the new constitution by its elected Constituent Assembly on September 20, 2015.

But sadly, it was born with a bloody agitation on the one hand and on the other with about a dozen transitional management provisions that did not allow its implementation in a normal course.

Since the word ’transition’ stands for ’the process or a period of changing from one state or condition to another’, in the present context, it indicates a process covering change from the existing one to a new one.

It works as a bridge between the present state and the new one as it may not disrupt the smooth functioning of the existing state.

For this simple reason, the transitional provisions in any constitution are supposed to maintain the continuity till new setup takes its shape.

In contrast, the new constitution has provisions for eleven articles under the heading of ’Transitional Management’.

It shows that the intention of the major parties that passed the constitution with above 90% of votes in the CA was not to maintain continuity but to bring changes in the existing order of things, which ultimately seemed to tell upon the timely implementation of the constitution.

There are provisions that are necessary for maintaining the existing conditions but many more provisions are such which could have been normally excluded.

These provisions expose the intention of the major political parties that these parties were in no way interested in implementing the constitution, but rather sharing of state powers in a time frame agreed upon by them.

These provisions envisage change of government within a week after the constitution is promulgated.

This provision really hastened the promulgation, as the second largest party, the CPN-UML was very much eager to occupy the driving seat of the government as per the agreement.

There are, however, only three articles, but these have altogether thirty clauses dealing with elections to all top posts. There are provisions for forming a new cabinet electing a prime minister, president, vice-president, and speaker and deputy speaker of the Legislature-Parliament (L-P).

It also provides for automatic transformation of the CA to L-P after the adoption of the constitution. There are provisions regarding the judiciary and other constitutional bodies.

Interestingly, art.295 (3) empowers the government to determine the number and boundaries of village councils and municipalities, special, reversed or autonomous regions for restructuring the local level units contrary to the provision of the main constitution (art.56) to determine these through the enactment of federal laws.

These provisions under transitional management have made the constitution an interim one.

Looking back to the history of the previous constitutions, we find most of them having transitional provisions, as if it were the regular feature of all constitutions in the past.

For example, the interim constitution, 2007 had only six articles including one directing to bring the property of then king Birendra and queen Aishwarya under the government and make it a Trust to use it in the national interest.

There are articles related to the L-P, judiciary and other constitutional bodies. Similarly, the constitution of the kingdom of Nepal 1990 had only four articles under ‘Transitional Management’ in part-21.

There are provisions for the continuity of the cabinet, power for enacting laws and all constitutional bodies. In the same way, the constitution of Nepal, 1962 had only four articles under this heading.

These include provisions for existing laws to remain in operation, making of law prior to the First Session of the National Panchayat, provisions relating to the Supreme Court, Public Service Commission, etc, and Provisions relating to Council of Ministers, Ministers and Assistant Ministers.

Similarly, The Constitution of the Kingdom of Nepal 1959 had only three articles as transitional provisions. The first is related to power to bring this constitution into operation. The second deals with the continuance and adaptation of existing laws. And the third one is related to power to remove difficulties.

The Interim Government of Nepal Act 1950 had only 73 articles without any transitional provisions. The present constitution is the only constitution that provides for immediate transfer of power from one party to another.

Interestingly, no transitional provisions are found in established democracies in the world.

There is no such provision in the constitution of the United States of America, Australia’s constitution, the constitution of French Republic, the Japanese constitution, Israel’s basic Law (no formal constitution).

However, in the Basic Law For the Federal Republic Of Germany (the constitution), there are thirty articles under the heading,’ Transitional and concluding provisions’ in part-xi.

To sum up, the new constitution was passed without sufficient deliberations and to bring change in the government being the main concern of the parties, transitional provisions become burdensome and the new constitution may not carry on for long.

A version of this article appears in print on October 06, 2016 of The Himalayan Times.

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