Challenges Of Implementing Constitution


The Constitution of Nepal was promulgated on September 20, 2015 after a long delay. With the declaration of Nepal as a federal republic and abolition of the monarchy, it became necessary to supplant the Constitution of Nepal, 2007 with a federal constitution in conformity with the changed political landscape. For this, a Constituent Assembly (CA) was formed in 2008 but it miserably failed to draft the constitution. However, the second CA was able to promulgate the constitution in 2015. It would be pertinent to note that it was possible mainly because of the earthquake that occurred in April 2015. The earthquake left destruction of property and loss of life in its trail, necessitating international aid and assistance for reconstruction. 

As the constitution-making process had been lingering for years, the CA hastily endorsed the new constitution by a large majority so as to prevent the image of the country from getting tarnished.  But Madhes-based parties were not happy with the new constitution because they thought their demands were not addressed in the constitution. At the same time, India imposed an implicit embargo against Nepal in support of the Madhes-based parties. The embargo was in place for five or six months, inflicting suffering on the people. Although the Madhes-based parties do not fully abide by the constitution, they have taken part in two general elections in 2017 and 2022 held in accordance with the constitution, proving that they tacitly adhere to the constitution.

Fundamental principles 

The constitution contains the fundamental principles of the 21st century. So it differs from the previous constitutions. It also provides as many as 31 fundamental rights. However, the contents of the constitution do not matter as long as the constitution is not fully implemented. It has been over eight years since the constitution was promulgated. But the successive governments are still grappling with fully implementing it. In fact, implementing the constitution has been a challenge from the very inception. The successive governments are yet to enact all the required laws to implement the constitution. The government and political leaders focus on clinging to power rather than making the laws necessary to implement the constitution. The game of dissolving and forming governments not only at the federal level but also at the provincial level has been going on since the elections in November 2022. 

Federalism is the mode of governance as provided for in the constitution. There are three tiers of government – federal, provincial and local. This arrangement has empowered the provincial and local bodies to make decisions for the benefit of marginalised groups. However, the provision of proportional representation in the electoral system seems defective. Owing to this provision, no single political party can win a majority of votes, leading to a hung parliament. As such, a ‘coalition’ culture has flourished and political instability at both federal and provincial levels seems to be the order of the day.  

There are instances of violations of the constitution. During the 2017 elections, the CPN-UML emerged as the largest party. The party chair, KP Sharma Oli, claimed that he would form a government without becoming the party leader by challenging the constitution. After forming the government, Prime Minister Oli inducted Yubaraj Khatiwada, not a lawmaker, into the government as Finance Minister. As per the constitution, a non-lawmaker can be made a minister for six months but during the period they should be a lawmaker, failing which they cease to be the minister. But even after the expiration of six months, Khatiwada was reappointed as Finance Minister as a flagrant challenge to the constitution. However, his appointment was stayed by the Supreme Court. 

Oli dissolved the House of Representatives (HoR) twice. When he first dissolved the HoR for the first time, citing lack of cooperation from within the government and the HoR, the Supreme Court reinstated the HoR. At the time, he cited the Constitution of 1990, which had provision for granting the prerogative to the Prime Minister to dissolve the Parliament. But the present constitution does not have such a provision. The constitution stipulates that the HoR can be dissolved if the Prime Minister fails to secure a vote of confidence or if a new Prime Minister cannot be appointed. 

House dissolution 

The then Premier Oli again dissolved the HoR but he got a blow when the dissolution was again invalidated by the Supreme Court. At the time, the CPN, a merged party consisting of the CPN-UML and the CPN-Maoist Centre, had almost a two-thirds majority in the HoR.  At the provincial and local levels, too, there were violations of the constitution. The provinces and local bodies enacted their own laws regarding remunerations and allowances to their office-bearers, which had to be rescinded later as the constitution has no such provision. 

As per the constitution, laws regarding implementing the constitution shall be formulated within three years. But there are many laws galore that need to be formulated. The Civil Service Bill, for example, is still being discussed in the HoR. Likewise, for lack of umbrella laws, the laws regarding concurrent powers for the provinces and local bodies are still in limbo. The local bodies have not formed local courts as per the constitution. 

There are, however, judicial committees, but such committees cannot provide effective services for service-seekers. In a similar vein, the provinces cannot levy tax without the consent of the federal government. There are several roadblocks to fully implementing the constitution. Instead of engaging in Mission 84, the government and the political parties should work in tandem to formulate necessary laws and implement various constitutional provisions to fully implement the constitution in earnest. 

(Maharjan has been regularly writing on contemporary issues for this daily since 2000.)

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