“The Preliminary Draft of the Constitution of Nepal, 2015 may further be streamlined” – Professor Matthias Hartwig (Kathmandu: August 07, 2015)
Kathmandu University School of Law (KUSL) in association with German Foundation for International Legal Cooperation (IRZ) organized a week long (3rd August-7th August, 2015) interaction program on the Draft Constitution, 2015 in various parts of Kathmandu.
The program hosted Professor Matthias Hartwig, a leading constitutional expert associated with the Max Planck Institute for Comparative Public Law and International Law, Heidelburg. The programs were hosted by Dr. Bipin Adhikari, Dean of Kathmandu University School of Law (KUSL) , Mr. Dinesh Tripathi, constitutional expert and Ms. Angela Schreimic, associated with IRZ.
The interaction program saw participation from a wide range of Nepalese stakeholders including constitutional experts, political scientists, legal practitioners, parliamentarians, journalists, academicians, civil society members, activists and law students.
The modus operandi of the programs included a brief presentation from Prof. Hartwig highlighting his observations and comments on the proposed Draft Constitution of Nepal, 2015. This was followed by an open floor discussion session where the participants raised pertinent issues regarding the Draft Constitution and sought Prof. Hartwig's feedback on contentious issues in the proposed Constitution based on his German and European experience.
In his presentation, Prof. Hartwig attempted to highlight, based on the comparative constitutional models, some of the pertinent issues enshrined in the Constitution that could be relevant for Nepal. He said that the draft constitution is full of potentials. Some of his key observations discussed among the participants have been highlighted below:
Length of the Constitution: The draft of the Constitution is very lengthy, much alike the Indian or Brazilian Constitution. This could lead to complications later when certain provisions need to be amended. Amending a Constitution is generally more complicated than ordinary legislation so this point should be taken into consideration. Also, a lengthy Constitution could give rise to more contradictions and repetitiveness. A Constitution should be precise and coherent. Furthermore, a Constitution is declaration and as such the general people should identify with it. A lengthy Constitution could be difficult for people to identify with. Also, more content in Constitution means less flexibility to the legislators. This could be construed as contrary to the principle of democracy. It could be necessary to do so in Nepalese context; however, it would be beneficial to shorten it if there aren't any pressing needs to do so.
State Objectives: It is perhaps not necessary to lay down such exhaustive state objectives in the Constitution. Sometimes extensive state objectives could lead to the misconception that the state does not owe any other obligations rather than the ones enshrined in the Constitution. However, in changing world, this is not the case. For example, the recently prominent issues of asylum seekers and refugees have been addressed as a matter of state obligation, via the concept of Social Welfare State and Fundamental Rights principles, without its express mention in the German Constitution. In the same vein, the Nepalese Constitution could adopt less exhaustive state objectives.
Fundamental Rights: The provisions on Right to Equality and Discrimination are intrinsically linked and as such should be put together in chronological order of the Constitutional text. Also, under Freedom of Expression, there are broad possibilities in Nepalese Draft Constitution to limit this right. This should be taken into consideration because these limitations could be easily manipulated in the future. In terms of Freedom of Religion, the inclusion of the provisions on right to conversion could be further discussed.
Constitutional Court: Once the establishment of Constitutional Court has been agreed, it could be given more competencies. Also, it is astonishing to see the provisions for the abolition of the Constitutional Court after 10 years. This could perhaps be removed.
Citizenship: It is in line with German and International practice to grant citizenship from both the father's and mother's side. In modern globalization, the concept of dual nationality is also unavoidable. In Europe and Germany, it has become quite common for citizens to hold multiple citizenships in recent times. In light of this, Nepal could rethink its position on citizenship issues.
Federalism: Federalism is a hotly debated topic in Nepal. First, we need to be aware of what the idea of federalism is? First is the idea of decentralization of powers between different administrative units. Second is the idea of character identities of the citizens. Third is the idea of delineation of states. All these factors have to be carefully assessed prior to establishing federal states. It is indeed a very tricky concept. Issues ranging from jurisdictional disputes to financial transfers may appear in the process. Also, a clear framework to implement the separation of powers between the legislative, executive and the judiciary needs to be ascertained. Also, the concept of who controls the money is also very important in Federalism, i.e. the provinces or the Centre. This needs to be discussed.