Saturday, 4 April, 2020
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OPINION

Security Provisions In Constitution



Bigyan Sharma

 

The issues of security in the Constitution of Federal Democratic Republic of Nepal 2015 can be viewed from several dimensions ranging from of the traditional security to the human security. While interpreting state’s obligation towards the citizens, the federal constitution also defines core security system of the country, intra-state security issues including peace and harmony, international security and civil-military relations.
Vitality of the sovereignty, territorial integrity, nationality and independence are exclusively expressed in the constitution. There are several provisions in the constitution to prevent possible disorder and chaos by maintaining peace and harmony. Such provisions are focused on maintaining integrity of the nation and peace and harmony among the people. In its preambles, the constitution internalises people's sovereign rights and right to autonomy and self-rule, while maintaining freedom, sovereignty, territorial integrity, national unity, independence and dignity of Nepal.
Territorial integrity can be viewed from the prospective of internal security of the country for which the state might use its authority against any possibility of disintegrity. In the definition of the Nation (article 3), State of Nepal (article 4) and National Interest (article 5), sovereignty, territorial integrity, nationality, and independence of the country remain key concerns of the constitution.
The constitution explicitly presents security as a national interest. Article 5 of the constitution indicates both intra-state and inter-state security as the national interest by stating that safeguarding of the freedom, sovereignty, territorial integrity, nationality, independence and dignity of Nepal, the rights of the Nepali people, border security, economic wellbeing and prosperity shall be the basic elements of the national interest of Nepal. Safeguarding citizen’s rights is largely concerned with the state’s responsibility to maintain security within the country as intra-state issue whereas safeguarding border and independence indicates freedom from any foreign interventions.
The urgency of freedom, sovereignty, territorial integrity and independence of Nepal is also expressed in Directive Principles in Article 50 that sets a political objective of establishing a public welfare system of the governance. These phenomena are also attributed to the duty of the citizen in article 48 that says ‘every citizen shall have duty to safeguard the nationality, sovereignty and integrity of Nepal’.
Peace and security is also mentioned in the policy of the state. Article 51 (a) of the constitution presents the account of state’s policy on national unity and national security. According to this provision, the state will pursue policies to keep intact the national unity, while protecting the freedom, sovereignty, territorial integrity and independence of Nepal. It also includes the provision of maintaining law and order by developing a national security system; making all the security organs, including the Nepali Army, Nepal Police and Armed Police Force competent, strong, professional, inclusive and accountable to the people on the basis of national security policies. Besides, its incorporates the provisions to make proper use of the knowledge, skills and experiences of former public employees including former employees, military and police among others.
As its topic suggests, Article 51 deals with international relations. As per this provision, the state will pursue policies to conduct an independent foreign policy based on the Charter of the United Nations, non-alignment, principles of Panchasheel, international law and the norms of world peace, taking the overall interest of the nation into consideration. It also incorporates the review treaties concluded in the past, and making treaties, agreements based on equality and mutual interest.
The constitution conceives misuse of freedom as a threat. Such concerns are mentioned in the prohibitory clauses of article 17 that offers freedom of opinion and expression, freedom to assemble peacefully and without arms, freedom to form political parties, freedom to form unions and associations, freedom to move and reside in any part of Nepal. Besides, it includes the provision of freedom to practice any profession, carry on any occupation, and establish and operate any industry, trade and business in any part of Nepal.
The constitution presumes possible threats emerging from the misuse of these provisions and hence imposes several prohibitory clauses to control possible acts to maintain security. One of the prohibitory clauses allows state to put restriction on the acts that undermine the sovereignty, territorial integrity, nationality and independence of Nepal or the harmonious relations between the federal units or the people and of various castes, tribes, religions or communities or incite caste-based discrimination or untouchability.
Civil-military relation is another crucial aspect of the national security that has been clearly defined in the constitution. The constitution provides rights to civilian authority to control the military. According to article 267, the president is the supreme commander-in-chief of the Nepal Army. Similarly as per the article 266, a seven member National Security Council headed by prime minister who is non-military authority for making recommendation to the Government of Nepal for the formulation of a policy on overall national interest, security and defense of Nepal, and for the mobilisation and control of the Nepali Army.
The constitution has set provisions for four security bodies-- Nepali Army, Nepal Police, Armed Police Force and National Investigation Department. The major role of the Nepali Army is to safeguard of independence, sovereignty, territorial integrity and national unity. The constitution has aimed to address the issues of human security through some provisions of social justice and social security as fundamental rights whereas these issues have also been reflected in state’s guiding principles and policies.
Thus, the Constitution of Nepal 2015 has addressed and incorporated security issues directly or indirectly. With or without mentioning the terms security or threat, the constitution sets state’s position in dealing internal and international security issues. The major security concern revolves around sovereignty, integrity, national unity and independence of the people and the state. However, other issues such as peace and harmony among the people and federal units have also remained priority in the constitution.

(The writer is a PhD Scholar at Tribhuvan University, Department of Conflict, Peace and Development Studies. He can be reached at bigyansharma@gmail.com)  

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