News Commentary-Constitution Day: Time to review enforcement status

Today (Asoj 3), Nepal is observing the Constitution Day with fanfare. Nine years elapsed since the promulgation of the present constitution from the second Constituent Assembly. As we are in the decadal turn of the national charter soon, the time has come for a serious review of the enforcement status so that the weaknesses can be corrected for betterment and goals achieved accordingly.

The 2015 constitution was brought after many struggles and sacrifices, which not only toppled the centuries-old regime and unitary system but also created a substantial base for a new system- the federalism, as per which, three layers of governments are functioning now. People's representatives at three levels have been elected twice since the launch of the present national charter.

Salient features

The striking feature of the present constitution is that it has made the citizens most powerful by vesting the State authority in them. It has recognized past struggles and set national goals, policies and ambitions in addition to the fundamental rights of the citizens. With the provisions of state organs, their roles and duties, and government layers and their functions, the constitution has emphasized the adoption of coexistence, cooperation and collaboration for the smooth functioning of three tiers of government.

When it comes to the assessment of the constitution, whether the provisions in it are materialized in governance is observed. To this, one of the essential pillars of a democratic system is periodic elections. Nepal is indeed on the positive side in this regard and earns an accolade. The elections held successfully twice in all three tiers of government after the promulgation of the 2015 constitution helped a lot in the enforcement of the federal system.

The participation of women and marginalized communities like Madhesi, Muslim, and indigenous nationalities in elections and their proportional representation in the parliaments reflected well the inclusion and diverse fabrics of the entire Nepali society in the governments and governance.

At a time when the above points paint a rosy picture, how effectively the new system and constitution have delivered the people draw attention. The long list of fundamental rights in the constitution is desperately waiting for enforcement through necessary laws and practices.

Time for review

Although it is normal to witness the argument that it takes time for a new system to flourish, a decade's time too is not short either. Irrespective of the above salience, unstable governments and politics are blemishes to weaken the system, where political attitude and willpower have direct relations. The country witnessed several times unstable governments and frequent changes in political alliances at the federal level, which caused immediate aftershocks in the provinces. Many have blamed the hung parliament, which again goes behind the existing electoral system. Is it really because of the present electoral system the governments are unstable? If so, it deserves attention and engagement from all sectors to identify legal hindrances. We are aware that there is a huge cost of unstable governments.

Similarly, the constitution has mentioned Nepalis' aspiration for sustainable peace, good governance, development and prosperity through multi-layer governments. But it is disappointing that corruption is thriving and it is getting entrenched especially at local levels. The recent report of the Commission for Investigation of Abuse of Authority (CIAA) has spoken volumes in this regard. The non-cooperation among people's representatives and government employees at some local levels while collusion among them in others has caused financial irregularities, which has not only taken a toll on citizen's rights but also slowed and impeded development works. As a large chunk of the national budget goes to local levels for development works, squandering it for individual benefits with corrupt practices is against constitutional mandate and the national aspiration of economic prosperity. Where is the lacuna- in law, in practices or attitudes? It is time we paid heed.

Bring essential laws

Moreover, slack enforcement of federalism is behind protracted lawmaking. Utter delay in the introduction of laws related to police administration, civil service, and education are badly hampering the activities in the provincial and local governments. Although the federal bills relating to these significant aspects are brought to light from time to time, serious homework eluded these past years. Very old laws related to these sectors have not only created uncertainty but also stalled sub national functioning. Once the federal government delays lawmaking, the lower governments are hit hard. It is high time the central level realized the role of civil service and police administration as the backbone of the system. They are the law enforcement bodies, but the absence of laws has left them with jitters.

In addition to legal placements, only adequate management of civil servants in the local and provincial governments can deliver the services, utilize budgets and intensify development works. Celebrating local levels as the closest government of the people on the one hand and leaving these in the dearth of workforce is a sheer contradiction.

Empower sub national governments

Effective enforcement of the federal system is a cornerstone of the implementation of the 2015 constitution. The enforcement of the new system largely depends on the strengthening of the sub-national governments. However, the province and local governments are always complaining that despite continued efforts, they were not able to deliver to the people as per expectation owing to the noncooperation of the federal government.

In this regard, an expert on federalism, Dr Khimlal Devkota, also shares numerous problems and challenges before the functioning of the subnational governments. For the local and province levels to carry out development works including infrastructures, Dr Devkota says, "There are centralized revenue powers and limited fiscal resources for the province and local governments and federal encroachment to the functional responsibilities."

Dr Devkota recommended better coordination mechanisms among federal units and the establishment of a scientific approach for determining vertical and horizontal resource pools. "It would be easy for the subnational governments to function well once a clear framework is established for exclusive and shared rights among governments," he stressed. His argument is a robust fiscal federalism gives an impetus to the system.

Making new laws to suit the federal setup has been a pressing need since the promulgation of the present constitution. It however is at the receiving end of political feuds and parliamentary disruption over the past nine years. The smooth functioning of three tiers of government enables the system and empowers citizens, thereby paving the way to speed up developments and realize the national ambition of 'Prosperous Nepal and Happy Nepali'.

When we are celebrating the Constitution Day this year, amendment of the constitution has surfaced lately. It is vibrant, especially after the formation of the present coalition government of the Nepali Congress and the CPN UML. Although what exactly the political parties want to amend in the constitution has not been so clear, the issues that surfaced much in the media are on the electoral system.

Rigorous study for amendment

Here, a pressing question is: Does all political parties' consensus determine amendment of the constitution? Does it ensure the expected result? The fundamentals of constitutionalism must be adhered to while forging political consensus. Limiting the amendment debate within a political circle is illogical. The amendment process can be a rigorous study of important issues that hindered progress or failed to ensure results. Utmost legal and constitutional expertise need to be consulted.

Similarly, is it only in the parliamentary front the constitution needs change, or is it so in the judiciary and executive as well? As we pride ourselves on the long list of fundamental rights, their enforceability also requires a study.

As the expert suggests and the practices reflected so far, it is safe to argue that unless subnational governments are empowered, it is a federal fiasco. By protecting the achievements made so far, the amendment needs to pay heed to the rights of all governments which keep in centre the people by delivering services smoothly and forwarding developments at scale. So, cautious measures of amendment initiative can protect citizen's rights, especially inclusion, proportional representation and justice so that achievements would not be curtailed and jeopardized and the system made more functional and meaningful.

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