KATHMANDU: While Nepal was preparing to mark first decade of constitution’s enactment last month, it witnessed one of the deadliest protests in its history. What began as a peaceful protest led by Gen Zs, it turned into anarchy, overthrew the government, and eventually dissolved the House of Representatives.

The impact of Gen Zs protest was not less significant compared to previous political protests of 1990 and 2006.  This article focuses not on Gen Z’s protest, legitimacy of the Interim Government, and dissolution of the House, but advocates for constitutional review that can address Gen Zs demands and constitutional loopholes.

Before entering into constitutional review, one should understand that the establishment of a republic state, federalism, guarantee of socio-economic and cultural rights as constitutional rights, and secularism among others are key values of the 2015 constitution. Much of these values are new to Nepal’s constitutional history and their implementation, albeit slow and unappealing, can be considered as an achievement, if one is to assess constitution’s progress.

In conflict affected countries like Nepal that faced years of political instability, uncertainties in constitution making, and discriminated marginalized communities, implementation of new constitutional values are always challenging.

In the past, many nations with newly enacted constitution have faced constitutional crisis or accidents. Nepal’s constitutional transition did not face major challenge until recently, but suggests that Nepali polity wasn’t moving right on a constitutional path.

Gen Z’s protest was deeply rooted in widespread corruption, lack of institutional accountability- especially from the executive and the legislature, and uncaring political culture expressing that the current political system wasn’t working. While these issues are largely associated with political culture, there are also underlining areas for constitutional reform. It is where the importance of constitutional review comes in place, if we are looking for a larger reform including reforms demanded by Gen Zs.

In July 2024, when Nepali Congress and CPN (UML) formed a coalition government, they made a surprising political announcement to amend the constitution for larger reforms, political stability, controlling corruption, and maintaining good governance. According to them, it was the fundamental reason for forming the government. However, no formal steps were taken to amend the constitution.

If they had a good intent and if they acted as promised, Nepal could have avoided the recent crisis. Nepali Congress and CPN(UML)’s announcement to amend the constitution was a mere political stunt, lacked constitutional intent, and was a political maneuvering of the constitution. Post 2015, there were instances of misusing the constitution for political ends. Dissolution of parliament, controversial appointments of 52 members to constitutional bodies, and former President’s role in rejecting and delaying citizenship bill were a few examples indicating that constitutional values were often undermined for unfair political advantages.

In the past, Nepali Congress, CPN (UML), and whichever the parties spoke for the constitutional amendment, they had only political ends. Nor were they serious on addressing challenges to constitution’s implementation and reviewing bottlenecks of the constitution.

In fact, constitutional amendment was never given a priority by both the state and non-state actors (civil society, institutions, and individuals involved in the making of the 2015 constitution). However, it should be remembered that both these actors played an instrumental in the making of the constitution.

While the Parliament was never vocal, civil society was less bothered allowing politicians to use constitutional amendment as a tool for political advantages. Parliament, that represented the state to amend the constitution, and civil society, that represents non-state actors, squandered important time and opportunity.

Except in Article 265 on the review of ‘Other Commissions’ and in Article 281on review of special rights, the constitution does not provide for constitutional review; however, the constitution can always be reviewed when required nationally and agreed by larger sections of Nepali polity. It’s been 10 years to the constitution’s implementation and these years have marked constitutional ambiguities, especially in the exercise of exclusive and concurrent jurisdictions by federal, provincial, and local governments almost paralyzing provincial and local governments. This has fundamentally questioned constitution’s spirit of establishing a working federal state.

Citizenship provisions are discriminatory to women, there have been issues with the implementation of the fundamental rights and proportional inclusion and, questions on relevance of the district assembly and district coordination committee. Similarly, problems exist around the composition of the judicial council and constitutional council that have resulted upon politicization of the judiciary and constitutional bodies including the CIAA. These suggests that Nepal needs a timely review of its constitution, which is further supplemented by the Gen Z’s protest. The Gen Z’s protest fundamentally demanded anti-corruption which can be achieved ensuring CIAA’s independence constitutionally. The constitutional fault that lies in the composition of the constitutional council that leads to political appointment at the CIAA needs to be fixed.

Before the Gen Z led protest, almost all of the political parties, inside and outside the parliament, acknowledged the need for the constitution’s amendment. However, it is important to note that, most of them, spoke for constitutional amendment and not for constitutional review. Constitutional review should be viewed differently from constitutional amendment. Constitutional review has a larger scope and assesses constitution in its entirety to find out constitutional achievements, failures, and challenges. Based on assessment’s result, constitutional adjustments are made.

However, constitutional amendment has a limited scope and deals with changing particular provision[s] of the constitution. While it is always the authority and onus of federal parliament to take up the review as well as the amendment, constitutional review goes beyond the scope of federal parliament. Therefore, the process of constitutional review can start even in absence of the House of the Representatives.

Although the constitution is silent on its review; however, the review process should be as close as to the constituent assembly and procedures it adopted. For instance, there were at least two rounds of direct consultation with public, and wider expert consultation during 2015 constitution making. Constitution’s review process should ensure wider participation and consultation with multiple stakeholders; public including youths, experts, former constituent assembly members and officials, political representatives, former justices, civil society representatives among others.

An ideal process to start would be the formation of an independent and socially inclusive expert led task force that should be given jurisdiction to assess the overall implementation and challenges associated with the constitution and give recommendation thereafter. The task force should include experts, representatives from Gen Z and former constituent assembly and judiciary, and selected former/sitting elected representatives from three governments.

The Interim Government should form the task force requiring it to report back to the President before the upcoming election. The President then should present the task force’s report to the federal parliament during its first joint session after the election. The federal parliament then should make constitutional deliberations based on the recommendations of the report, and review and revise the constitution according to its parliamentary procedures.

In terms of issues for constitutional review, it should be left open for the task force and not be politically dictated. If constitutional review is entirely to be handed by politicians, there are chances of compromising constitution’s foundation.

The outgoing government and even some political parties identified electoral system, composition of the provincial assemblies, and federalism as key issues for review, but they lacked rationality and intent, and often their positions were politically motivated. Some of the issues for review that the task force should consider are also raised in the sixth paragraph of this article. Similarly, Gen Z’s major demand for having a functioning anti-corruption body and a directly elected executive are also issues that the task force should consider.

At the present there have been doubts and arguments that if Nepal opts for constitutional amendment or review, this could open floodgates for more issues such as restoration of Monarchy, re-establishment of Hindu Nation, and removal of provinces. Perhaps this was the reason why the PM’s September 25^th address to the nation made it clear that constitutional amendment will not be an agenda of the Interim Government. However, the Interim Government has missed an important opportunity in addressing larger reforms through constitutional review. Excluding anti-corruption and directly elected executive, the Gen Z’s protest also demanded for structural and institutional reforms, good governance, and employment opportunities.

In terms of constitutional review, it shall be noted that any review efforts against constitution’s basic structure will be detrimental to Nepali people. The 2015 constitution’s basic structure or foundation can be inferred from its preamble that includes proportional inclusion, federalism, human rights, republic state among others.

In Kesavananda Bharati vs. State of Kerala 1973, a globally celebrated and an influential case on constitutional interpretation from India, Indian Supreme Court recognized parliament’s authority to amend any part of the constitution excluding the constitution’s basic structure. The task force including the upcoming parliament can repudiate any changes against constitution’s basic structure.

Likewise, the Supreme Court can also nullify acts against constitution’s basic structure, be it of the parliament or executive. Therefore, instead of having doubts or fear on constitutional review, Nepali polity should own the opportunity created by Gen Zs in addressing constitutional loopholes. For this to happen, constitutional review has to start and the Interim Government composed of independent and civilian representatives is in the best position to initiate the review process.

(Alok Pokharel is a researcher and teaches constitutional law. He can be reached at [email protected].)