At six, constitution’s fragility has only grown, observers say
Nepal’s political parties remember the constitution once a year—on the anniversary of its promulgation. They will do so on Sunday, as the constitution turns six. Concerns still remain over the wider acceptability of the charter adopted in 2015.
Observers say Nepal’s major political parties rushed the constitution despite knowledge that various sections of the society were opposed to it. Over the years, the political parties that pushed the constitution through the Constituent Assembly have shown minimal commitment to safeguarding it. Parties, many say, instead have used the constitution as a bargaining tool.
Tula Narayan Shah, a political commentator who follows Madhes and national politics closely, said Madhes-based parties were opposed to the constitution from the very beginning, but those parties who pushed for its adoption too seem to have lost faith in it.
Loktantrik Samajbadi Party led by Mahantha Thakur has already announced that it would continue to observe the constitution anniversary as a “black day”.
The Janata Samajbadi Party, yet another political force with its base in Madhes, has not announced any protest programme, but it has said it won’t participate in any celebrations to mark the Constitution Day. Leaders of these two political parties were the ones who objected to the constitution when it was promulgated in 2015. The Janata Samajbadi is organising an interaction on Sunday to discuss the need for constitutional amendments.
Tharu and other indigenous communities have been saying that the agreements forged with successive governments to incorporate their concerns in the constitution remain unaddressed.
Observers say the onus to ensure wider acceptability of the constitution lies on those who pushed for it—the Nepali Congress, the CPN-UML and the Communist Party of Nepal (Maoist Centre), as they had banded together to adopt the charter even as protests grew along the plains.
The adoption of the constitution on September 20, 2015 clearly left the country divided. While celebrations erupted in Kathmandu and other parts of the country, mostly hills, most of the Tarai mourned what they called further marginalisation of the already marginalised communities.
Shah, however, says the Madhes-based parties’ sincerity towards constitutional amendments has already come into question.
“The worry is that over the past six years, rather than becoming stronger, the fragility of the constitution has increased,” said Sah.
“When the principal actors responsible for implementing the constitution competed to flout it for their petty interests, this was bound to happen.”
The first elections under the constitution in 2017 installed UML’s KP Sharma Oli as prime minister. It was Oli who had played a key role in cobbling together a coalition to push for the constitution. His government was mandated to strengthen federalism and implement the charter. However, Oli left no stone unturned in trampling upon the constitution.
The Congress and the Maoist Centre which took umbrage at Oli’s actions against the constitution managed to return to power in July this year. The current government led by Congress’ Sher Bahadur Deuba, however, has little time to invest in the constitution’s implementation.
Experts on constitutional matters say the tendency among the parties to undermine constitutional provisions for power has led many to wonder who actually are the defenders of the country’s top law.
“It is unfortunate that we are in a situation where questions have arisen over the commitment of those to the constitution, who played a key role in its constitution,” said Bipin Adhikari, a former dean at the Kathmandu University School of Law.
Adhikari, the editor of the book “A Treatise on the Constitution of Nepal 2015”, says it is quite disappointing that the parties that rose to power criticising Oli’s moves as unconstitutional and undemocratic are now failing to stick to constitutionalism and democratic principles.
The Madhes-based parties that had vehemently opposed the constitution in 2015 were quick to join the Oli government in 2018. They argued that they agreed to support the Oli government hoping that their constitutional amendment demands would be addressed.
However, they quit the government after the Oli government showed no signs of amending the constitution.
In May this year, the Mahantha Thakur faction of the Janata Samajbadi Party decided to support Oli, saying the government “is ready to address their demands’’. But the Oli government fell in July after a court order. Thakur has now formed the Loktantrik Samajbadi Party.
The Upendra Yadav-led Janata Samajbadi Party is Deuba’s coalition partner. It is waiting to get hold of some ministerial berths rather than making a push for constitutional amendments.
Now after Deuba’s return to power, backed by the Maoist Centre, the House of Representatives has, by and large, remained dysfunctional—so much so that it could not even get the budget through Parliament, resulting in a government shutdown.
As many as 55 bills, many of them necessary for the implementation of federalism, are pending in the federal parliament. Some of the bills have been left unapproved since the first session of the federal parliament that commenced in March 2018. The delay in passing the laws has hampered effective functioning of federalism, which is one of the core pillars of the constitution.
According to Adhikari, effective implementation of the constitution is not possible unless democratic institutions, including Parliament, function effectively.
“Parliament has a constitutional role to hold the government to account but it has been dysfunctional,” said Adhikari.
In the lead-up to Constitution Day this year, Nepal’s political parties, those currently in power, made themselves objects of ridicule. Amid controversy over the Millennium Challenge Corporation Nepal Compact, an American programme under which Nepal is to receive $500 million in grants, the government, as per an understanding among the ruling parties, asked the Millennium Challenge Corporation if the agreement is “above Nepal’s constitution”. Many were quick to criticise the parties for undermining the constitution they promulgated six years ago.
Last week, Nepali Congress Vice President Bimalendra, Nidhi in an interview with Naya Patrika, said there is still displeasure that India hasn’t welcomed Nepal’s constitution and that Delhi should do so as the sixth anniversary was approaching.
Nidhi’s statement may be personal but among a large section of Nepal’s political leadership, there seems to be this feeling that India has not welcomed the constitution yet. New Delhi’s displeasure was apparent in 2015 when it said it had “noted” the promulgation of the constitution in Nepal. Subsequently, India imposed a border blockade.
Experts say an immediate neighbour welcoming the constitution is always good but statements by some leaders like the one by Nidhi are indicative of inferiority complex and their lack of faith in the constitution they themselves promulgated.
“Such things clearly reflect the immaturity of the government and its lack of understanding of its own constitution,” said Adhikari.
That the Constituent Assembly failed to give enough time to people to present their feedback is an established fact. The earthquakes in April and May, 2015 had created an urgency among the Nepali leaders to push the constitution, as it was in the making for seven years.
Observers say since the constitution was promulgated amid protests by some sections of the society, it was incumbent on major political forces to listen to the concerns of the aggrieved parties and make gradual attempts to address their demands. This was the only way to ensure wider acceptability of the constitution, according to them.
“The constitution was disputed from the very first day. Against their responsibility to work to strengthen and increase its acceptability, the major parties are busy weakening it,” Daman Nath Dhungana, a former Speaker and civil society member, told the Post. “The constitution has become more fragile over the last few years. The only way to strengthen it is its revision through consensus.”
Those involved in the constitution drafting process, however, say the constitution has become stronger and that its acceptability has increased.
Subas Nembang, who chaired the Constitution Assembly for both of its terms, said the unanimity seen while passing a constitution amendment bill to incorporate Nepal’s new political map showed every party has taken ownership of the constitution.
According to him, the parties that were objecting to the constitution had hit the streets in the name of protecting it, which also shows how they have embraced it.
“I firmly believe the acceptability of the constitution has increased,” Nembang told the Post. “However, if it needs revision to further broaden its acceptance, it can be done based on the need.”