It is aptly said, ubi societas ibi jus, i.e., where there is society, there is law. The question as to who uses the machinery of law and for what reasons, continues to be debated upon. Still, the end of law is to secure human justice, rather than ideal justice. From one perspective, the Constitution of Nepal, loaded with democratic principles that have potential to help the country thrive on the path of sovereign democracy, prosperity and tranquility, may be taken as an abstract body of rights and duties. From another perspective, it’s a document of social process, balancing conflicting interests. After all, concepts like federal democracy, independent judiciary, non-discrimination in private and public life, civil supremacy, and judicial review are basic tenets of our constitution.
Progressive features
Immanuel Kant says laws are a sum total of conditions under which the personal wishes of one man can be combined with the personal wishes of another man in accordance with the general law of freedom. Duguit, a jurist of Sociological School of Jurisprudence, argues that law can exist when people live together.
The drafters of the constitution have ensured that everyone receives an equal share in our democracy without any distinctions and this conception is in recognition of Aristotle’s distributive justice.
Under the new constitution, Nepal’s federal structure is merited with a development that divided the country into seven provinces, with clear lists of legislative powers for the central, provincial and local governments. It sets aside 33 percent of parliamentary seats for women, which is a major breakthrough.
The Constitution of Nepal became the first country in Asia to explicitly recognize the rights of Lesbian, Gay, Bisexual and Transgender (LGBT). The provision of right to equality clearly states that no discrimination shall be made along the lines of sex, or sexual orientation as well. Under the scheme of the new constitution, victims of environmental pollution have a fundamental right to receive compensation from the polluter. Also, it has been provisioned that citizens with disability and economically poor conditions shall have the right to free higher education. These schemes are incorporated to promote equity and equality both, for garnering constitutionalism.
Yet, notably, the constitution was passed amidst intense polarization in the Nepali society. The Madheshi leaders protesting against the constitution had enjoyed vital governmental positions. This shows their dishonesty and power greed.
Roscoe Pound, who propounded the theory of social engineering, believed that law must be stable, yet it cannot stand still.
In Keshvanand Bharati v the State of Kerala (1973), the Supreme Court of India held that the word ‘amend’ implied that “while any piecemeal change may be made, the old constitution cannot be totally destroyed or so radically changed as to lose its identity; the basic features cannot be amended.” The court further held that the original constitution can be amended, subject to basic features, but cannot be repealed.
In fact, no rule can provide for every possible situation. Amendments, not repealing of laws, could be an answer to probable issues.
From fundamental rights to federal principles, these provisions clarify that Nepal’s constitution is one of the progressive documents. The charter aims to promote equality, fraternity, liberty and equity. This message needs to be communicated across the country.
Communicating with the Charter
Nelson Mandela has said, “If you talk to a man in a language he understands, that goes to his head. If you talk to him in his language, that goes to his heart.”
It’s high time that the government distributed free copies of the constitution in different regional and local languages. Such an attempt would be a milestone in the healthy development of mother tongues. For instance, the government could translate the constitution in Maithili and Bhojpuri languages for the Madhesh province. If the constitution is communicated in regional languages, it would help the people understand the constitutional provisions in the language they understand.
It’s worth remembering that the Madheshi activists, who had protested against the constitution and later bagged vital government positions under the same constitutional mandates, had “interpreted” the constitutional provisions in Maithili and Bhojpuri languages to seek solidarity of the people in their protest against the statute.
Fundamental duty of citizens
Our constitution under Article 48 lays down fundamental duties on every citizen to abide by the constitution and the prevailing laws of the land. Under this mandate, the government as well as private persons have to compose their functions in accordance with the procedure established by the constitution. This concept of fundamental duty is not a noble one.
The fundamental duties were inserted in the Indian constitution through 42nd amendment in 1976, upon the recommendation of the Swarna Singh Committee. Article 51A of the Indian charter embodies 11 duties, including the duty to abide by the constitution and to protect as well as improve the natural environment. The 11th duty—duty of parents to educate their children—was inserted through 86th amendment of 2002.
The Constitution of China also bears testimony of the fundamental duties in various Articles under the chapter of Fundamental Rights and Duties’, including, the duty of the citizens of the People’s Republic of China to work (Art 42); rights and duty to receive education (Art 46); duty to safeguard national unity (Art 52); and duty to pay tax (Art 56).
Although the Universal Declaration of Human Rights (UDHR) concentrates on rights of every person by virtue of being human being, Article 29 says that the corollary of the rights is duties. The provision (i.e., Art 29) talks about the duty towards the community.
Implementation matters
Nepal’s constitution is a bag of progressive provisions. However, the problem lies in implementation of the provisions. HLA Hart, a jurist of the analytical school of jurisprudence, says: enactment of law is one thing, while implementation is the other.
Jeremy Bentham believed that the role of law should be to increase happiness and decrease pain, pointing: Law should ensure maximum happiness for the maximum number. This cannot happen unless the constitution is implemented in its letter and spirit.
For instance, the theory of polluter pays principle (PPP), recognized under Article 30 of the constitution, would remain on paper unless the state succeeds to guarantee a breath of fresh air to all and inflict a penalty against the polluters. Also, the concept of equity and equality would remain limited to black letters of law unless the mechanisms of positive and protections discriminations are duly implemented.
Everything is within the constitution and that too in the codified form. The only thing left is to implement it.
We, the people of Nepal, deserve to have employment, proper healthcare at affordable cost, quality education, and quality foodstuffs as a matter of right, because our constitution guarantees that. Mere enactment of cosmetic laws would not give a desired result unless they are implemented.
Leaders should live with promises
The Pandora of promises should be cherished by the newly-formed government. The political parties had shown ambitious plans and policies for the people. Interestingly, their lofty plans were in recognition of the constitution. It’s high time for the government to implement the constitution in its letter and spirit, for the Himalayan Republic deserves development, peace and prosperity. No country could ever grow with a tendency of sidelining the constitutional mandates. After all, our constitution is a living document promoting social transformation. Now, it’s time to live with it.
Published on Jan 17, 2023 in The Annapurna Express
https://theannapurnaexpress.com/news/implement-the-charter-in-letter-and-spirit-for-progress-prosperity-37104
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