Nepal And Constitutional Reforms

first_imgColumnsNepal And Constitutional Reforms Nabeela Siddiqi2 March 2021 5:05 AMShare This – xIn all modern constitutions, human rights and freedoms and their security occupy a prominent role. Many of them include references to human rights in international law, Constitutional reform is a compelling shift from one form of governance to another, from autocracy to democracy, from one-party rule to multi-party rule, for example, it is a precursor to elections for any new form…Your free access to Live Law has expiredTo read the article, get a premium account.Your Subscription Supports Independent JournalismSubscription starts from ₹ 599+GST (For 6 Months)View PlansPremium account gives you:Unlimited access to Live Law Archives, Weekly/Monthly Digest, Exclusive Notifications, Comments.Reading experience of Ad Free Version, Petition Copies, Judgement/Order Copies.Subscribe NowAlready a subscriber?LoginIn all modern constitutions, human rights and freedoms and their security occupy a prominent role. Many of them include references to human rights in international law, Constitutional reform is a compelling shift from one form of governance to another, from autocracy to democracy, from one-party rule to multi-party rule, for example, it is a precursor to elections for any new form of government (by local constituents as well as the international community). Constitution-making is no longer regarded as a technical legal exercise but is used as a profoundly political, transformative process in conflict-affected countries (Teitel, 1997). The openness to international law is one of the features of all new constitutions. Manifestations of this transparency are diverse but differ from constitution to constitution. It is only natural thatand others affirm their primacy over national laws. Many new constitutions contain foreign affairs and international relations provisions. Both these provisions, one way or another, include general requirements to conform with the laws of international law when performing international relations (for instance, Art. 6 of the Turkmen Constitution, Art. 18 of the Belarus Constitution, Art. 8 of the Kazakh Constitution). The monarchy of Nepal ended in 2008. It’s parliament was dissolved three times during the time it was in force, and finally the Constituent Assembly-cum-Parliament was established in 2008. The Communist Party of Nepal (Maoist) emerged as the dominant party by taking 220 out of 575 seats in the elections to the Nepalese Constituent Assembly (CA) in 2008. Despite having received four extensions from the Supreme Court of Nepal, the first CA was unable to deliver the constitution by the deadline that came to an end in 2012. The Supreme Court of Nepal did not grant any further extension. The second CA was elected in 2013. Unofficially, the one-year deadline for the second CA was set by the Assembly to deliver the constitution. It took seven years and two Constituent Assemblies, the second of which passed with a 90% majority. Article 1 of the new Constitution reads as “1. Constitution as the fundamental law: ((1). This constitution is the fundamental law of Nepal. All laws inconsistent with this constitution shall, to the extent of such inconsistency, be void.” Since the nation’s first political crisis in the previous year, constitutional experts have anticipated a new one. Following the strife within the ruling NCP (Nepal Communist Party) leadership, Prime Minister K.P. Sharma Oli dissolved the lower house of the country’s parliament (275-member House of Representatives) recently. Following the criticism of his opponents in the party, he resorted to choosing the necessary evil to save the fall of his government. It is a crucial moment for constitutional experts to ‘look east’ and watch out for the ‘constitutional fractures’ in the neighborhood. With an interesting turn of events, the Standing Committee of the Nepal PM’s party condemned this move as unconstitutional and undemocratic. A writ petition against the move was filed with the Supreme Court. This incident would be an epoch in the history of the Constitution of Nepal. It would analyze the courts and legislatures in reasoning processes, deliberation and decision-making structures, and institutional capacity. If the court finds that Oli’s decision has violated constitutional provisions, he will have to resign as prime minister. If not, the interim government will continue until the next elections, this year. In their reaction, both the Opposition and the Speaker boycotted the constitutional council meetings called by the Prime Minister, which were considered unconstitutional by the Oli group. Numerous rounds of talks and discussions between the two have proven unsuccessful in addressing the crisis, with both leaders sticking to their respective positions. P.M. Oli was hesitant to step down from one role as a PM or party chair, as his rival group had requested. All efforts by the second-ranking leadership to coax the two leaders to reach a compromise have also failed. The split in a two-thirds majority party raised concerns that it could lead to a systemic collapse. The constitution of 2015, has 305 articles and eight parts. This constitution is started with a preamble by incorporating the principle of “socialism based on democratic values.” The constitution has democratic provisions as possessed by the best constitutions of the world. It contains the major principles such as democracy, republicanism, federalism, secularism, and inclusiveness. Under the provision of proportional representation, efforts to make it inclusive covering vulnerable sections of society. According to Article 85 (1) and Article 76 (7) of the Constitution of Nepal, the lower house has a term of five years unless dissolved earlier. There is no provision in the Constitution, however, that allows the Prime Minister, who leads the two-thirds majority government, to unilaterally dissolve it. Which is why Section 76 of the Constitution states clearly that the President can dissolve Parliament only in a condition where the prospect of establishing a coalition ceases entirely, on the advice of the Prime Minister. So this exercise should have taken place within the parliament. These procedural requirements were not followed as Oli abolished the parliament. As a repercussion, several opposition parties have taken to the streets to protest the decision of PM Oli, the first dissolution in the country’s democratic history. With the political and constitutional crisis in Nepal escalating by the day and the ruling Nepal Communist Party (NCP) experiencing a vertical split. Elkins, Ginsberg, and Melton have used their extensive empirical data to suggest that on average, constitutions last only 19 years (Elkins et al, 2009) while 406 out of 964 of those lasted more than 10 years (Huq et al, 2014). The government is right that it is impossible to satisfy all the people in a democracy all the time, but erroneous when it, therefore, ignores the real concerns of a large sector of the population. Years of prejudice and discrimination have pre-disposed populations of plain origin, to a degree that other social groups perceive government acts of prejudice and arrogance. Nepal will find its way back from the edge, but the international community also has a role to play, especially in encouraging the government and the parties to revisit the obligations of the CPA and the statutory bodies to uphold the rule of law. Such constitutional commitments do not, from the perspective of international law, add much to the already existing obligations of all States to comply with the customary and treaty rules of that law. Rather, willingness is a kind of ‘confidence-building measure’ to be a loyal and law-abiding member of the international community. The Diplomat in a recent piece argued that Nepal’s foreign policy has become strongly pro-China under the NCP government. The issue of the Kalapani boundary conflict has eroded common conceptions of India in Nepal. Trying to take advantage, Nepal’s current leadership has taken a unilateral decision to draw up new maps showing that Kalapani, Lipulekh, and Limpiyadhura belong to Nepal. Evidently, by accusing New Delhi of seizing Nepali land, by issuing maps that showed disputed territory as part of Nepal, and by including these changes in the Constitution, Oli began to take hostile positions against India, even provoking New Delhi. It is essential that a stable democratic government is in place in Nepal in the interest of India and International community. Views are personelThe author is a Doctoral Candidate Previously worked as – Research – cum – Teaching Assistant, National Law University Jabalpur  Next Storylast_img read more