A law is a resolution of the whole people for the whole people, touching a matter that concerns all, says Rousseau. Indisputably, constitution is the highest law of the land. Article 1 of the constitution secures the supremacy of the charter, declaring that any law inconsistent to it would be void to that extent. As it represents and respects the people collectively; the constitution of a country never has for its objects an individual man; or particular action. In the words of Rousseau, law represents the general will. The Constitution of Nepal 2015 represents the common will of the Nepalis. The constitutional arrangements are tailored in such a fashion that could suit all without any distinction to caste, creed or community. As a matter of fact, new constitution, which entered into force on September 20, 2015, neither leaves anyone stateless, nor does it discriminate anyone.
In Part-2, the Constitution provides arrangement for the citizenship. Adhering to Jus Sanguinis principle, it has been provisioned that citizenship would be granted on the basis of bloodline. A person is eligible for citizenship by descent, if his father and mother both are citizens of Nepal. If a person is born to a Nepali mother citizen who is married to a foreigner and has not acquired citizenship from his/her father’s country, when proved, s/he will be conferred with naturalized citizenship. A foreign woman married to a Nepali is entitled to obtain naturalized citizenship. Moreover, there is a well-settled practice of awarding citizenship by descent to a person whose father is citizen by descent and mother is otherwise.
In Part-III, the Constitution embraces a long list of fundamental rights, including freedom of speech and expression, right to employment, right to housing, right to food, fair and speedy trial, right to clean and healthy environment, and among others. The right to obtain constitutional remedy at the instance of infringement of fundamental rights has been ensured under Article 46 which prescribes that petitions could be filed before the Supreme Court (Article 133) or High Courts (Article 144). The Constitution lays down Directive Principles under Part-IV as guiding principles which are non-enforceable in nature. Therefore, if a directive is not obeyed by the State, its obedience or implementation cannot be secured through judicial proceedings. They are fundamental in governance of the country. Based on economic capability, its the duty of the province/state to apply these principles in making laws.
Our constitution departs from the concept of dual citizenship which is prevalent in United States. The Constitution of United States (US) allows dual citizenship — the citizenship of US and the citizenship of state in which a person is domiciled. We are close to India but depart from American position. Unlike US, the constitution introduces well-ordered and well-regulated judicial machinery with the Supreme Court at the apex. It does not confer on a Province to enact a piece of constitution to govern or regulate their affairs. Hence, we have a single constitution like that of India’s but unlike that of US where each state has own constitution.
In every country, there are certain administrative posts which might be of strategic or national importance from the point of view of maintaining the standard of administration. This respect, we are close to India. The Constitution prescribes the Auditor General would be appointed by the President on the recommendation of Constitutional Council, which is headed by Prime Minister. The accounts of the government offices, including that of office of the President and Vice-President, Supreme Court, the Federal Parliament, and Provincial Assemblies is audited by the Auditor General.
The laws of centre would prevail over the concurrent power of federation and province, while the laws made under the exercise of concurrent jurisdiction by the center would prevail over the provincial enactments. Interestingly, Article 246 of Indian Constitution is couched in the similar language. The constitution further becomes unitary when it comes to learn that the provincial governments are not conferred with prosecutorial power. The provincial governments are not empowered to appoint a single staff or a judge at the High Courts or district courts.
In yet another unitary feature, Article 232 provisions that the federal government may, in pursuant to the constitution and federal law, provide necessary support and directives to the Village Executive and Municipal Executive and they have a duty to abide by such directive. This way the centre has opportunity and authority to enforce its mandates at the grassroots level. Despite of some unitary features, it, like that of India’s, acknowledges federal principles as well. So far the distribution of legislative power is concerned; the Constitution seeks to distribute the powers of the state into lists, viz., Federal List, Concurrent List, Provincial List (and Local List for local bodies).
The constitution and the basic structures it envisaged have allowed the democratic credentials to thrive on the sovereign soil of Nepal. One of such basic structures has been the principle of federalism, which played a stellar role in the consolidation of Nepali democracy. The constitution has explicit mandate of one-third representation to women at legislative apparatus. Also, it’s the foremost fundamental document in Asia — and only the third in world along with South Africa and Ecuador — to expressly guarantee the rights of transgender people.
As its living document, the derogatory issues or points of indifferences, if there is any, could be resolved by way of amendment and this constitution would also evolve like other constitutions of the world. From strengthening federalism to nurturing fundamental rights and inclusivity, the constitution aims to consolidate democratic fabrics. So, while celebrating the Constitution Day this year, we have to rejoice the constitutional provisions and take a pledge to live by the constitution. As law is the manifestation of the ‘general will,’ we should build a common consciousness to live by the constitution, the highest law of the land.
(The author holds an LLM in Constitutional Law and currently working as a Section Officer at Rajbiraj High Court.)