The case for timely appraisal of constitutional performance

A sober appraisal of constitutional performance will provide timely evidence for careful investment in constitutional development.

Nepal has undergone massive constitutional transformation in the past several years. After the protracted Maoist conflict and a decade of constitution-making, the 2015 Constitution promised to usher in a more equal and inclusive ‘Naya’ (New) Nepal, in which political power is devolved from elite-captured Kathmandu institutions; development is balanced across all regions of the country; religious and ethnic diversity are accommodated; and historically marginalised groups participate in governance.

Six years after its promulgation, significant progress has been made in implementing the new Constitution: crucially, elections for all three levels of government were successfully held in 2017; new sub-national governments are established and their critical roles in public service provision are clearly evident; the federation of seven provinces has slowly but surely begun to take functional shape; laws have been enacted or amended to align with constitutional provisions; and policies and programs that embody social justice have been instigated; and so on.

However, challenges also remain. For example, while many laws have been enacted to progress the Constitution’s key provisions (e.g., regarding fundamental rights), in many instances the delegated legislation and policies required to give life to these laws have yet to be formulated, which is preventing the meaningful implementation of the Constitution’s content. Sub-national governments continue to struggle to carve out autonomous governance space; and newly established constitutional bodies only fulfill a fraction of their envisaged potential.

Significant questions regarding the Constitution’s evolution and performance remain: Is it living up to the high expectations placed upon it? Is it functioning as its drafters had anticipated? This is especially important given the contested political context in which the Constitution was ratified—as a compromise document. There are issues yet to be addressed with regard to indigenous peoples, ethnic minorities and the demarcation of provinces, municipalities, and special protected or autonomous regions. The state needs to demonstrate a long-term commitment in this regard. Moreover, recent political developments such as the fragmentation of parties and a rotation among those occupying executive office have brought back anxieties that the new Constitution will cause cosmetic adjustments only rather than the hoped-for fundamental transformation of the state. As one commentator recently highlighted, ‘Nepal is currently facing an unprecedented situation, with all key state organs in a mess. The executive is non-functional, the House has been taken hostage by political parties and the Supreme Court, the ultimate arbiter of the constitution, is caught in constitutional tangles’. Indeed, it appears as though governance in Nepal remains business as usual, with constitutionalism only a peripheral consideration.

In this context, a comprehensive appraisal of the performance of the 2015 Constitution focused on its implementation is needed. It must be asked whether the Constitution is in fact helping to construct a state architecture in which the rule of law and the values of constitutionalism are respected and nurtured, where government is closer and more responsive to citizens’ needs, and where justice is enjoyed by all. A serious assessment is required to ascertain if the necessary initiatives have been undertaken in order to achieve what has been promised by the Constitution. Only then can stable foundations for further constitutional development be established and available.

The Constitution itself only sets out requirements for the periodic review of particular sections: regarding the implementation of the special rights accorded to women and Dalits, every 10 years (Article 281), and regarding the ‘Other’ constitutional commissions in 2025 (Article 265). In the six years since the Constitution’s promulgation, no wide-ranging and systematic, substantive review has been done. Many laws that were passed under pressure of time must now be reviewed on the basis of actual experience and feedback from provincial and local governments. A living constitution requires continuous nurture through necessary constitutional improvements and lawmaking. This is crucially important, as key issues surrounding the next electoral cycle in 2022-23 begin to surface, such as political party reforms and amendment of the Political Parties Act (2073 BS) to comply with constitutional provisions.

In the absence of current state mechanisms, the Ministry of Law, Justice and Parliamentary Affairs is the logical place in government to anchor such self-reflection. Ideally, the government would deploy an inclusive process to develop an overarching analytical framework and convene civil society to identify, discuss and analyze key issues. In addition to gathering information and gaining a wide range of perspectives, the inclusion of legal scholars and civil society would also foster deeper engagement and wider ownership of the constitutional appraisal process. Indeed, such deliberative civic engagement is critical for the Constitution’s ongoing relevance and endurance for meeting aspirations for a more equal and inclusive Nepal. A sober appraisal of constitutional performance will provide timely evidence for careful investment in constitutional development.

[Mohan Das Manandhar, George Varughese, and Bipin Adhikari collaborate on a Niti Foundation program on constitutionalism and rule of law]