Constitutionalism- A Point Blemished
– Abhishek Jha
The constitution is a framework that legitimizes the vehicle of power, but also guides and limits power. Putting an end to long and deepened political polarization, we were presented the first constitution written by a sovereign constituent assembly. The fundamental law which, reads that the sovereignty lay with the people, is the outcome of several political transitions and historic revolutions. While a country may have a constitution in black and white, it might not enforce constitutionalism. Thus, the enforceability of the constitution has to be tested through constitutionalism that ensures comprehensiveness.
Backtracking from the basis
The constitution is a norm that standardizes the Rule and brings in Rule of Law in a state. The norm which represents the reason for the validity of such a norm is called the ‘Grund’ norm- a norm presupposed because it cannot be posited by an authority. The 2015 Constitution of Nepal in norms has standardized the Federal rule via Rule of Law of Proportional Inclusion. The newly enacted constitutional norm rests on years of people’s movements, which gave birth to the Interim Constitution in 2007. This was an interim milestone, which meant to end the permanent establishment of Nepal’s ruling class.
The 2015 constitution was presupposed to at least inherit the norms from the interim document. Instead, the new constitution did the opposite by removing some of the inclusive clauses. The newly enshrined electoral policy still blocks out politically excluded groups from the mainstream politics. The affirmative action asserted by the constitution is flawed in representation of the marginalized and those who were underprivileged as it includes almost every ethnicity, thus making the proportional part meaningless. This along with several other flaws have created two factions of the society, those that are strongly opposed to a ‘regressive’ constitution versus those that knowingly, passively or unknowingly support these flaws. This had further generated media frenzy with trends like #notmyconstitution and #myconstitution. The constitution was supposed to create a favorable environment ensuring celebration of unity in diversity. However, by backtracking on provisions already made available even in the Interim constitution, we have lessened the span of sustainability of the new constitution.
Concealed Consensus
The Interim constitution was based on the political consensus culminated by leaders representing diversity of our nation. The 2015 Constitution is a fundamental document based on political consensus, that follows the sixteen-point deal, which is also seen as a deal that excludes the very marginalized that the document was supposed to protect.
Political-Riddance
Political riddance is an anti-thesis to what constitutionalism envisage as leveling of rights and responsibilities. A constitution has to be acceptable and enforceable on all. To check if the prevailing constitution gives any impression of political riddance, the Madhesi-Tharu uprising can serve as an example of the exclusion felt by this faction.
When the constitution was being proclaimed, its glorification was the matter of concern for only half of the population, the rest feeling excluded.
The prima facie of contention gave an impression of prejudiced constitutional terms. Concealed provisions relating to affirmative action, electoral politics and gerrymandering of federal states are construed as steps towards political protectionism to existing hegemonic forces. The drafters did not even give a second thought to how the protectionism measures they asserted are unconstitutional.
Soiled Hand and Soiled Heart
Human Rights Watch in its report (Like We Are Not Nepalese) documents the unrest, killings and use of force by state in Madhes movement. The fundamental law of the land got promulgated at the time when the nation was divided, voice of the voiceless was in dissent and half of the populace was under the scrutiny of curfew, confined by issued prohibited zones.
An ambience of false consciousness that once the constitution is promulgated, its implementation can be paved by force, pervaded those on the top. It is ironic that the constitution, which should be protecting the fundamental rights of its people caused the rights to be violated by shoving it down the throats of its people.
What Nepal today has is a constitution not made by the people, but by those who are soil handed and soil hearted representatives, exploiting people’s sovereignty.
Common law doctrine of public-trust evinces that duty bearers of the state should know that the powers they exercise come through the trust bestowed on them by the general public. People of the southern plain overwhelmingly participated in the election of both constituent assemblies. This was because they were the ones in the most need of change. Promulgation of the unanswered constitution is betrayal of that trust by the drafters. Constitutional amendment is the only way-out to incorporate the resentments and widen the principles of constitutionalism. Let us join hands to bring a a constitution that ensures constitutionalism in Nepal.
(Student of Law @ Kathmandu University School of Law, Dhulikhel)
Email: jha.avck@gmail.com
Phone no.: +977-9845302519
