Constitutional Unrest in Nepal and Legal Issues: An Academic Discussion

 

Constitutional Unrest in Nepal and Legal Issues: 

An Academic Discussion

Nepal, a nation with a tumultuous yet aspirational constitutional history, has repeatedly found itself at the crossroads of political transition and legal scrutiny. Since the advent of the Federal Democratic Republic of Nepal and the promulgation of its latest Constitution in 2015, the country has been grappling with persistent unrest rooted in both the constitutional framework itself and its practical implementation. This blog post explores the fundamental challenges and key legal issues driving this ongoing period of constitutional unrest.

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📜 The Genesis of the 2015 Constitution

The current Constitution of Nepal is the culmination of decades of struggle, including the Maoist insurgency and the People's Movement of 2006 (Jana Andolan II), which ultimately led to the abolition of the 240-year-old monarchy and the declaration of a federal republic. The document was intended to be a transformative charter, addressing historical inequalities based on class, caste, ethnicity, gender, and region. It introduced a secular, federal-style republic with three tiers of government: federal, provincial, and local.

However, the hurried and compromised process of its drafting, particularly in the aftermath of the 2015 earthquakes, left deep fissures. Many historically marginalized groups, notably the Madhesis and some Indigenous Peoples, felt their demands for identity-based federal provinces and inclusive citizenship provisions were sidelined, leading to immediate protests and violence, especially in the Terai region.

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💥 Core Sources of Constitutional Unrest

The unrest in Nepal stems from a volatile mix of structural flaws in the Constitution and political actors' failure to uphold its spirit.

1. The Unresolved Federal Structure and Demarcation

The Constitution introduced a federal system with seven provinces, but the demarcation of provincial boundaries remains a highly contentious issue.

·       Identity vs. Capability: The debate revolves around whether provincial boundaries should prioritize the identity of ethnic or linguistic groups or be drawn based on economic and geographical capability.

·       Incomplete Federalism: Despite the structural change, the implementation of federalism is weak. Provincial and local governments often lack the financial and administrative autonomy necessary to function effectively, with the federal government retaining significant control over revenue collection and bureaucracy. This has led to disputes over the jurisdiction of the three tiers of government.

2. Issues of Inclusion and Citizenship

While the Constitution is lauded as more inclusive than its predecessors, critical shortcomings have fueled unrest:

·       Proportional Representation: The electoral system includes a proportional representation component intended to ensure the inclusion of marginalized groups. However, the practical representation of women and minority groups, particularly in the judiciary and constitutional bodies, remains inadequate.

·       Citizenship Law: The provisions regarding citizenship by descent for children born to Nepali mothers and foreign fathers have been criticized as discriminatory towards women, making it difficult for many children to acquire citizenship, thereby leaving a segment of the population in a state of statelessness or legal limbo.

3. Political Instability and Interpretation

The parliamentary system adopted by Nepal has struggled with chronic instability, which has recurrently led to constitutional crises:

·       Short-Lived Governments: The constitutional provisions regarding the formation and dissolution of the government (Article 74 et seqq.) have not prevented a revolving door of coalition governments, undermining stability and effective governance.

·       Dissolution of the House: A major flashpoint occurred when a former Prime Minister twice dissolved the House of Representatives, actions which were ultimately invalidated by the Supreme Court. The court's intervention, though necessary to uphold the constitutional text, highlighted the fragility of the political system and the temptation for political elites to violate the spirit of the constitution.

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⚖️ Key Legal Challenges in Implementation

The unrest is often a manifestation of the underlying legal and institutional challenges in making the new constitutional system work:

·       Lack of Enabling Laws: The Constitution mandated the enactment of various federal laws to fully implement its provisions. Many of these crucial laws, particularly those concerning the Civil Service Bill and the specifics of concurrent powers, remain either unformulated or stuck in parliamentary debate years later. This legal vacuum impedes the functioning of the provincial and local governments.

·       Judicial Overburden and Inclusivity: The judiciary, the ultimate interpreter of the Constitution, faces significant challenges.  

·       Transitional Justice: A persistent legal issue is the delay in implementing the two transitional justice mechanisms—the Truth and Reconciliation Commission (TRC) and the Commission on the Investigation of Enforced Disappeared Persons (CIEDP). The failure to address conflict-era human rights violations from the Maoist insurgency era leaves a deep wound in the public consciousness and undermines the rule of law.

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🔮 The Way Forward: Addressing the Root Causes

The constitutional unrest in Nepal is not just a political problem; it's a crisis of governance and trust. The path to stability requires both legal rectifications and a shift in political culture:

1.     Constitutional Amendment: Address key contentious issues like citizenship and provincial demarcation through genuine political consensus and an inclusive amendment process.

2.     Expeditious Lawmaking: Prioritize and pass the essential enabling federal laws to empower provincial and local governments, truly operationalizing the federal structure.

3.     Strengthening Constitutional Bodies: Ensure that appointments to constitutional bodies and the judiciary adhere strictly to the principles of inclusivity and meritocracy enshrined in the Constitution.

4.     Tackling Corruption: As recent youth-led protests demonstrate, widespread corruption and elite impunity are perceived as the greatest threat to constitutional integrity. A robust legal and accountability framework is essential to restore public faith.

Nepal's journey to a stable democratic republic is ongoing. The Constitution of 2015 provides a liberal and progressive foundation, but its longevity and success depend not merely on its text, but on the political will to implement it inclusively and the legal diligence to resolve the deep-seated issues that continue to fuel discontent.