KATHMANDU: Constitutional review is slated for 10 years from now, specifically for constitutional commissions, but waiting for that timeline is not right. When the need arises, the constitution should be amended immediately.

The review of the Constitution is not a matter of choice; it is a necessity. As long as the parties are in power, they think about their own convenience. But this issue should be looked at in terms of the nation’s convenience, its needs, and the Constitution’s own commitment and as an alternative.

Someone may be content with the status quo, thinking ‘I will just spend these two days of life like this,’ but the life of the country does not run like that. After the people consider the Constitution as the supreme law and the biggest basis of trust, it must also provide trust. The national spirit should be attracted to it.

The Constitution is a document of agreement between the state and the people. The Constitution is written to define the relationship between the state and the people, to define the rights of the people, the duties of the state, and the relationship and limits between the organs of the state, that is, it is a document that promises happiness and comfort to the people. On the basis of this commitment of the state, the people have to accept the Constitution. According to this concept, how many of the 31 fundamental rights promised to the people through the Constitution have been implemented? That should be reviewed. It should be monitored.

Undemocratic parties, non-inclusive electoral system

The Constitution has provisions regarding parties, but they have become more and more irresponsible, more and more partisan, and there is a lack of good governance. The parties have become above the law. There is no democratic character. The internal good governance of the parties and their accountability and effectiveness towards the people have never been evaluated. There was no coordination in the electoral system, among the leaders, and in the political system. Therefore, political confusion and instability continued, and a profiteering system continued. Unprincipled alliances made politics non-political.

In the name of inclusion, we developed a proportional system in the electoral system. We brought practices from Norway, Switzerland, Finland, and other countries to this system. The way the parties have distributed the proportional system is not favorable. There is no coordination between the principle of inclusion and the proportional electoral system. The face of the candidate is not known; the background is not known. The party also does not have a specific ideology. The people do not have the feeling of approving the proportional list because the people’s priority list is not included in the party’s list. The people only know the party. The officials of the party determine the priorities, being influenced by extremely private, selfish, family, caste, gender, and what not biases.

If the seats of the proportional system are determined based on the population ratio, it will not be inclusive. The principle of inclusion was brought to include historically excluded minorities and those who have not received a place in every field: economic, social, cultural, and administrative, through special programs. But with the current proportional practice, inclusion has been murdered.

The electoral system was implemented in a worse way than it was brought. Therefore, if this electoral system is to be continued, the same type of government will be formed in 2027 or after. One party will implement the other’s manifesto, or both will not implement either. A partisan system with such an un-partisan character cannot be an achievement of the change of 1990.

Kalyan Shrestha. Photo: Bikram Rai/Nepal News

Conspiracy in federalism

While the Constitution’s three-tiered government structure has been implemented with its corresponding elections and commissions, the broader federal system is being run on a foundation of guesswork.

The Police Act and Civil Service Act have not yet been made. Policy matters and directive principles have almost not been implemented. If federalism is needed, a structure and a process according to it should be given. It’s just a re-appropriation of resources that the union has, giving so much to some provinces and some local levels, and forming governments.

The unitary governments of the past did that. There were no provinces, but the local governments were working. The highest number of complaints in the Commission for the Investigation of Abuse of Authority is from the local level.

The province is a new institution that was born only yesterday. It has no infrastructure, no process, no institution, and no manpower. The union does not listen to the provinces. The local government does not listen. The ones above do not listen, the ones below do not listen, what does the province in the middle do?

Continuing to run the provinces with the status quo will cause federalism to fail. While some may disagree on the need for federalism, it is clear that the provincial structure has been deliberately weakened, rendering the entire system meaningless.

 Unparliamentary practice

We have called the parliamentary system a more improved one. Improved does not mean that after a no-confidence motion is brought once, it cannot be brought again for two years.

In a parliamentary system, the government is formed by the parliament, as a representative body of the people, and the government does not sit for a day without the trust of the parliament.

A no-confidence motion can be registered today, passed tomorrow, and brought again the day after. For example, if trust vote was given today, it would be broken tomorrow. The government must be accountable and responsible to the parliament 24 hours a day.

If this accountability to the parliament is extended with conditions to ensure the government’s lifespan, it is not a parliamentary system. If it is a parliamentary system, the sword of a no-confidence motion must be hanging at all times.

The parties call this a parliamentary system, I call it unparliamentary. Unparliamentary practice should not be done within the parliamentary system.

If it is parliamentary, a multiple system should be maintained, as in Britain, India, or other parliamentary systems. But while calling it parliamentary, an unparliamentary system should not be kept. A system of government that is simple and easy for the people to understand should be arranged. The one who has the majority should run the government. Otherwise, there should be a fresh election. If we talk about the uniqueness of the system, we should have the capacity to bear the cost of the election.

In a parliamentary system, the government is formed by the parliament, as a representative body of the people, and the government does not sit for a day without the trust of the parliament.

We find the money spent on politics to be useless. The money spent on employees is useless. The money spent on constitutional appointments is useless. The meaning of this administrative expense being useless is whether it is desirable or not. Therefore, it is confirmed that we could not be clear in the governance system.

Forgotten responsibility

The biggest issue was the absence of meaningful debate while drafting the Constitution. We appointed 601 individuals without evaluating their expertise in constitution-making. One can reasonably question today how many of them remember or could even justify the provisions they were responsible for.

The Constitution should have been brought into public debate. The reason and justification for this article of the Constitution should have been written. This would have been useful in court debates and decisions.

Books should have been written about the Constitution, research should have been done, it should have come into literature. This means, did the Constitution awaken our consciousness or not? But the biggest irony is that there is no criticism of the Constitution. This means there is a deep indifference to the Constitution, where no one has a sense of ownership. I am not saying this as a critic of the Constitution. I am a well-wisher of the Constitution.

There were problems in the constitution-making phase, and it was neglected even more in implementation. It was limited to the activism of political leaders reaching power through elections and acting arbitrarily there. Aspects like the people’s happiness, prosperity, expectations, security, and justice were grossly ignored.

The very parties and leaders who drafted and supported the Constitution now appear to hold contradictory views, depending on whether they are in power or in opposition. While all benefit from the system, no one takes responsibility for its failures, leaving the public to suffer the consequences.

The biggest issue was the absence of meaningful debate while drafting the Constitution. We appointed 601 individuals without evaluating their expertise in constitution-making. One can reasonably question today how many of them remember or could even justify the provisions they were responsible for.

The Constitution is a conceptualization of the basic needs, aspirations, and rights of the people. It is a tool to regulate relationships. Such an important document is ignored by its creators. Those who accept it do so reluctantly. If the implementation is also makeshift, it will not give results. If the Constitution is not implemented in a result-oriented way, it loses its justification.

If this were not the case, we should be able to show how much economic development we have achieved by relying on this Constitution. How much justice could we give? What kind of changes have we brought in the standard of living of the citizens? But the facts do not say so.

Young people do not consider this country worth living in. It is a situation of chaos. So now we must say, our Constitution has problems. The problems are systemic, structural, procedural, and institutional. There are also problems of manpower, money, and capacity.

A constitution doesn’t implement itself; it requires a phased and continuous approach from all angles. Our governments, however, have not committed to this. Instead, they remember the Constitution only when facing a challenge and then discard it once the issue is resolved. This consistent failure to acknowledge that the Constitution entails responsibilities along with rights is a profound tragedy.

When we were drafting the Constitution, we should have made decisions based on impersonal and national needs. Not just a matter of the system and the individual, but also a matter of the system, we should have made decisions based on pure national needs, national character, national aspirations, national reality, and national capacity. But selfless, impersonal, clean, and national spirit-inspired thoughts could not get as much space as they should have in the constitution-making process.

Flaw in the structure of the judiciary

The structure that the Constitution has given to the judiciary is also flawed. I call it a ‘design defect.’ A regular justice cannot be administered from the kind of constitutional bench that has been set up.

According to the Constitution, there is a five-member constitutional bench under the Supreme Court to hear cases related to constitutional disputes. But that bench is not formed by the Supreme Court, it is nominated by the Judicial Council.

The Judicial Council is political in nature. The council has five members – two judges and three non-judges. The two judges also come from a political process in the past. After such a Judicial Council recommends, it comes to the constitutional bench. What to do if three out of five people have conflicting opinions and no one has a majority? A constitutional bench cannot be formed, it cannot be sent to any regular bench of the Supreme Court, and it cannot be reviewed by itself. In such a situation, will you be left staring in bewilderment? This is what is meant by a ‘design defect.’

There is no systemic provision for a constitutional justice system that allows the necessary spontaneous process of justice to flow. One group says a constitutional court is needed. We say, no, the Supreme Court itself will do the work of a constitutional court.

Young people do not consider this country worth living in. It is a situation of chaos. So now we must say, our Constitution has problems.

Before this Constitution came, were there no constitutional cases? Weren’t there cases from the time of the National Panchayat? Which case was stopped? Was the formation of the Royal Commission stopped? Was the dissolution of the Constituent Assembly stopped? It was not.

The regular system of the Supreme Court had already provided a solution to the constitutional questions. In which case did it miss? As an alternative, why say constitutional court sometimes and constitutional bench sometimes? There was a vested interest in politicization. Politicization prevailed and judicialization became weak.

In every impossible situation, the court must resolve to find a possibility and deliver justice. How much it has been able to do that, one should ask those concerned. No matter how a judge came, he should have the feeling that he is now a judge and his job is to deliver justice. Was that feeling able to get into their hearts or not?

The duty and responsibility of the judiciary is to keep the people’s hopes alive and to reduce harm. If there is systemic harm, it is also the responsibility to reduce it and make it operational. If there are questions of the constitutional system, it is also the responsibility to address them in a fair manner. Even in impossible situations, such efforts should be continued. This is a matter of consciousness and inner consciousness.

Systemic issues were discussed above. But the irony is that the system given regarding the judiciary is also not satisfactory. In this background, which institution does a good job? The face of the parliament has been seen. If for some reason the Constitution is not implemented, then that reason should be debated. The Constitution should be reviewed.

Even when it was time to review the Constitution, some bills could not be passed by the parliament. If the Police Bill and Civil Service Bill cannot be passed, there must be a problem somewhere in the parliamentary system. The solution to that problem should be sought within the Constitution. Its implementation should be sought from within. The inability to implement the Constitution is the problem of the Constitution. This is also the basis for saying that it should be reviewed.

After blaming the Constitution for everything, it became easy for all of us. In this sense, politics won and the people lost.

In the context of who blames whom, the responsibility of the government that runs around politics ultimately lies with politics. Whatever we call it, the constitutional council, the judicial council, or the security council, those council systems themselves were not bad. They were not given a well-thought-out structure. Their institutional development was also not done. It ended when the five people who were appointed sat and looked at them. There is also systemic development within that.

The duty and responsibility of the judiciary is to keep the people’s hopes alive and to reduce harm. If there is systemic harm, it is also the responsibility to reduce it and make it operational.

For example, for the appointment of a district judge or a high court judge, how to determine the qualifications, how to select them, whether to take an exam, what to do? There is also a way to test and investigate his self-respect. An appointment through such a process means that it is also approved by the people.

This lack of empathy and ownership

We have failed to focus on institutional and procedural development. The Constitution’s implementation has been preliminary and unrefined, lacking the concerted effort needed for its true application. As a result, we haven’t seen the desired outcomes.

We’ve also seen the rise of an unempathetic democracy. Those in power have consistently ignored the voices and cries of the citizens. A prime example is when a minister’s car hit a girl at a zebra crossing and fled; when a protest arose, it was simply dismissed as a political issue, and the matter was closed.

Those who govern must show self-restraint, self-control, accountability, and transparency. Most importantly, let people credit-rate how acceptable someone is. How much people like a certain minister or secretary or VC.

It is not possible to bear the cost of opening a party and contesting elections. The electoral system is such that not everyone can contest elections. Not everyone can bear the expenses of the party. Contractors, businessmen, and others who can spend money will have a hold on the election.

In the current situation, it is a crime for citizens not to vote in elections. The Supreme Court had said to provide for a NOTA (None of The Above) option, but the parties did not listen. It is not that a decisive result will come if that provision is made. It is only an option for citizens to express their disagreement.

Citizens only have a forced choice. After winning the election, there is no place or process for the representative to come back. There is no compulsion or code of conduct that they must go to the people after the house is over and tell them what they have done and what they could not do.

If there are questions of the constitutional system, it is also the responsibility to address them in a fair manner. Even in impossible situations, such efforts should be continued. This is a matter of consciousness and inner consciousness.

The election is conducted in a way that creates a disconnect between the people and their representatives. Representatives are chosen in a way that the relationship is not smooth, even if it is not. It is as if a ruler is chosen, while a representative is to be chosen, not a ruler! The representative does not have more rights than the ones vested in the people.

In the parliamentary system, there is no hearing process. It is assumed that the government with a majority and trust has the continuous approval of the parliament for its actions. Why does the executive or the government make an appointment? Because it has the trust of the parliament and a hold in the parliament.

In the presidential system, the president is not accountable to the parliament. The president can nominate anyone he sees fit as a Supreme Court judge. No qualifications are specified. He can nominate his confidant or others. But it must be seen whether that decision is in the interest of the people and is acceptable. In this regard, there is a confirmation process called senatorial confirmation hearing to put a check on the president. Which is very complex and intensive.

When our MPs went to America, they saw the Senate Confirmation Hearing going on there. They were tempted and thought, ‘This is also within the scope of an MP; if we can also adopt this, we would be stronger, and our dignity and respect would increase.’ The difference between why that hearing and confirmation process is kept in the presidential system and why it is not kept in the parliamentary system was not analyzed. They put a hearing process here out of a desire to show their influence and importance.

What does it mean that the recommendation for an appointment made by the Prime Minister, the Speaker of the House, the Chairman of the National Assembly, and the leader of the opposition party is unacceptable? Don’t they have to resign? Don’t they have to apologize? They should say, we recommended the wrong person, you should review this recommendation committee, and remove them. Or, they should say, you rejected the good person we chose.

The Judicial Council and the Constitutional Council were arranged as ‘specialized agencies’ for the purpose of appointment. After that specific body has investigated and brought someone to be appointed, what does another institution that has not investigated know about it? What is there to check? This is called a ‘pissed-patient.’

The government can also start the work of reviewing the Constitution. It can be started by forming a commission or by dialoguing with political parties and starting it from within the parliament with consensus. On the other hand, we or civil society can also informally hold discussions.

In the current situation, it is a crime for citizens not to vote in elections. The Supreme Court had said to provide for a NOTA (None of The Above) option, but the parties did not listen.

I used to believe that the Constitution could be amended in a peaceful and legal way. I have been saying the same for two or four years, but no one listened. For political parties, reviewing the Constitution is like opening a Pandora’s box. They are trying to avoid the issue of amendment by saying this.

Another reason is that the amendment process requires the approval of the provincial assembly. The parties do not have the courage to manage it even if they initiate it. They cannot gather an all-party consensus. For this reason, they cannot say with determination that they will go for a constitutional amendment and bring change.

Even if they failed to amend the Constitution, they should have tried. That would have been honesty towards the Constitution.

The constitution does not work like this. Either it should have worked, or it should have been implemented. If it is not working or cannot be implemented, we are putting the constitution at risk. As a well-wisher of the constitution, I say that the constitution should not be ignored like this. The Constitution is our philosophy of life. It is our guiding principle.

Now civil society is also not awake. The parties are not heard to have discussed the Constitution anywhere. Discussions have also stopped in universities.

The lack of a sense of ownership in anyone is a danger bell for the Constitution. It is my wish that the Constitution survives. But if it remains like this, it may not last. If it does not last, the people cannot tolerate it either.

The main thing is transformation. If we cannot say that we have transformed in these aspects, the people will not continue to bear the burden of the constitutional provisions that do not bring transformation.

No one can guess whether they can withstand the people’s anger or not. Who are we to question the power and wisdom of the people? The people will take their own path. There may be risks, and there may be opportunities. But no one has the right to set conditions or restrictions by showing this or that point.

(Edited excerpt of a conversation with former Chief Justice Shrestha on September 7, just one day before the Gen Z movement.)