Thursday, 9 December, 2021

Right Conduct, Integrity Matters


Mukti Rijal

The federal constitution of Nepal, enacted and promulgated on September 20, 2015, has completed six years of its implementation. Like other democratic constitutions in the world, it describes the basic principles of the Nepali state, the structures and processes of government and above all the fundamental rights of citizens. A constitution is a set of fundamental legal-political rules that are binding on everyone in the state, including the president, prime minister and ordinary citizens. It stipulates the structure and operation of the institutions of government, political principles and the rights of citizens based on widespread democratic public legitimacy, which is harder to change and alter at the whims of a group of people and a coterie of leadership.

Nation Building
Nepal's federal democratic constitution is indeed a nation-building instrument as it defines the national flag, national anthem highlighting social and cultural diversity and other symbols. It makes proclamations about the values, history and identity of the nation. It lays down the norms and rules to ensure the accountability and transparency of those in power who run and conduct the governance of the state.
The institutional provisions in the federal constitution of Nepal provide mechanisms for the democratic allocation and peaceful transfer of power and provisions for the restraint and removal of those who have lost the trust and confidence of the people. Furthermore, it needs to be mentioned it is the seventh constitution of Nepal but the first one made and adopted by the Constituent Assembly which was purposefully elected by the people for writing the basic law of the land.

An important feature of the constitution is that it has been adopted and proclaimed in the name of "We, the people of Nepal, in the exercise of the sovereign powers inherent in us." The constitution vests sovereign power in the people of Nepal and commits to ending all forms of discrimination and oppression created by the centralised and unitary system of government in the past. Moreover, it also expresses the determination to create an egalitarian society based on the principles of proportional inclusion and participation and social justice.

Another important feature highlighted in the preamble of the constitution of Nepal has been that it enshrines a commitment to creating the bases of socialism through democratic norms and values, including competitive multi-party democratic governance system, civil liberty, fundamental rights, periodic elections, press freedom and an independent, impartial and competent judiciary, and the concept of rule of law. Furthermore, the constitution provides an exhaustive list of fundamental rights, including economic, social and cultural rights of the citizens.
The Constitution restructures Nepal as a federal country with three layers of federalism. The erstwhile unitary structure of the country has been replaced by seven federal provinces with delineation of stipulated legislative powers for the central, state (Pradesh) and local government institutions.

There is an elaborate arrangement of the federal scheme provided in the constitution. It provides for a separate list of powers of the federal layers- national and sub-national government- through constitutional schedules. Similarly, legislative and financial procedures for each level has also been elaborated by the Constitution.
A National Natural Resources and Fiscal Commission has been created to determine extensive grounds and measures regarding the distribution of revenue from the federal consolidated fund to the Pradesh(state) and local level governments according to the constitution and law.

Nepal continues to be a parliamentary system at the federal and provincial levels according to the constitution even though demands to replace it by direct elected executive presidency were very strong at the time of writing the constitution. Article 74 states that "the form of governance of Nepal shall be a multi-party, competitive, federal democratic republican parliamentary system based on plurality."
At the federal level, it has a bi-cameral parliamentary form of government with a constitutionally limited president elected through the Parliament and the National Assembly, as well as the Pradesh legislative body. The prime minister is elected by the Parliament based on a majority. However, there are three significant departures from the erstwhile Westminster system according to the provision of the constitution.
First, the prime minister cannot dissolve the parliament and, secondly, there can be no motion for a vote of no trust against the prime minister for two years subsequent to his/her election. Thirdly, any no-confidence motion tabled for the removal of the prime minister in the parliament must also come with a proposal for the new prime minister who will immediately replace him/her.

Enlightened Leadership
However, contemporary political developments and arm-twisting in the country show that constitutional provisions can be effective only when wise and enlightened political leadership extends matching behaviour and conduct.
Furthermore, the experiences have also indicated that the strong commitment to democracy has to be expressed not in words and rhetoric but in practice, conduct and behaviour. Only mentioning democracy and republic in the constitution does not make sense if democratic politics, culture and behaviour are not cultivated and absent among political actors and stakeholders.

Of course, incorporating democracy and republic in the constitution is necessary as a matter of express democratic commitment, these have to be backed up by appropriate operating environment, practice and integrity. It is interesting to note that democracy does not appear anywhere in the US Constitution or the Declaration of Independence; or in any state constitution, for that matter. It is through institutional practices and robustness that the US has become one of the vibrant democratic countries in the world.

In the democratic history of around three hundred years, the US constitution has been amended less than three dozen times and so is the case of other countries like India too. Accordingly, in order to uphold and strengthen the values enshrined in the federal constitution of Nepal, it is necessary to have a sense of integrity, ethics, accommodation and collaboration among the political actors and stakeholders of Nepal.
Otherwise, the ideals of democracy, federalism and republicanism vouchsafed for in the constitution cannot be translated into reality. This is the critical aspect for which the political actors and stakeholders in Nepal need to pay serious and deserving attention.

(The author is presently associated with Policy Research Institute (PRI) as a senior research fellow.