Constitution Day: Time to deliver on promises rather than celebration

Who should remember the constitution? Why should it be upheld? Why should it not be violated? How can the constitution be best implemented?

Jivesh Jha

  • Read Time 5 min.

We are marking Constitution Day to mark the adoption of the Constitution of Nepal by the Constituent Assembly on Asoj 3 (September 19) in 2015. This day has a special significance in the country as it reminds both the rulers and citizens to act and compose their functions in pursuance with constitutional mandates. But who should remember the constitution? Why should the constitution be upheld? Why should it not be violated? And, how can the constitution be best implemented?

In fact, observing the constitution and becoming familiar with its provisions is a fundamental duty of every citizen by virtue of Article 48 of the Constitution.  But have we succeeded in implementing our constitution in letter and spirit? As a matter of fact, the constitutional mandates are mere black letters of law in our context. They are yet to come into full-fledged implementation. Here is how.

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 federal, provincial, and local governments. The other main characteristic features of the charter are inclusiveness and commitment of the state to guarantee fundamental rights, like right to health, employment, education, and environment to all. The milestone for this constitutional spirit was set by the 2007 Interim Constitution and the 2015 charter gave emphasis on the continuance of this inclusivity with certain modification in number of clusters, keeping in mind the rights of women, the disabled, sexual minorities and other oppressed groups.

However, the cherished dreams of the constitution are yet to come true. Let me discuss here some of the laws enacted to implement the provisions of fundamental rights.

Right to environment

 In Nepal’s context, the right to a clean and green environment to every citizen [Article 30] is merely a promise of the state to its citizens. And this promise is meant to be broken, not observed. In order to protect ecological interests, Nepal’s Parliament passed the Environment Protection Act in 2019, which replaced the previous environmental protection legislation of 1997.  The federal, provincial and local governments and even private individuals are obligated to safeguard and conserve the environment under this green law.

The Act includes a number of clauses aimed at environmental conservation and enhancement. The Act’s preamble envisions that the pollution victims have the right to seek compensation from the individuals or entities responsible for the pollution. This arrangement is in accordance with Nepal’s Constitution’s ‘polluter pays’ principle as stated in Article 30(2).

Apart from this, Local Government Operation Act (2017) hosts a plethora of provisions where the local units have been conferred with the power to enact laws, policies and other measures. Section 11(2) (i) empowers the local bodies to adopt and enact measures to contain the pollution and to ensure clean water and fresh air.

But in practice, pollution is what troubles the Nepalis. In 2021, Kathmandu stood ninth on the world’s most polluted cities’ index.  In the case of local bodies, they have also failed miserably to act for the protection of the environment. For instance, Janakpur is known for stranded pigs, solid wastes from hospitals and households on the streets, unmanaged drainages, bad smells of rotten things, and abnormally high number of mosquitoes.

Given these bad precedents, it suffices to conclude that Nepal’s environment laws are merely cosmetic in nature.

Right to employment

The government has enacted The Right to Employment Act (2018) to give effect to Article 33 of the Constitution that confers a fundamental right on every citizen to select employment.

The preamble of the Act (2018) intends to ensure employment to every citizen. Section 11(2) empowers the Employment Service Center (ESC), which is to be established by the Government of Nepal under Section 10, to prepare a list of ‘actual’ unemployed persons from the list of total applicants. The Act does not incorporate any provision suggesting the time period within which jobs will be provided to the applicants. The Act contains nothing to foil the outflow of migrant workers. Despite these legal arrangements, the youth unemployment and outflow of migrant workers have been one of the most pressing issues being faced by Nepal.

The constitutional mandates are mere black letters of law in our context. They are yet to come into full-fledged implementation.

Right to safe motherhood

The Right to Safe Motherhood and Reproductive Health Act (2018), which is enacted to give effect to Article 38 of the Constitution, is also with ill fate. This Act has welcome provisions but they are yet to be taken seriously. For instance, Section 13(3) provisions for a designated place for breast-feeding in every office. Unfortunately, there are a handful of non-government and government offices in Nepal that have made arrangements for designated places for breast-feeding.

Moreover, Section 32(3) directs the private hospitals to charge affordable fees. But, the Act does not contain any explanation as to what constitutes ‘affordable’ fees. So, what’s the yardstick to determine if the fee is affordable or hardly affordable ? The private hospitals may interpret any sum of fees as an affordable fee. Again, this law, too, is ignored.

Right to education

The Right to Free and Compulsory Education Act (2018), which is adopted to implement Article 31 of the constitution that deals with right to education, is an instrument of guarantee in a sense that the onus to ensure free and compulsory education lies on the state.

Though the Act envisaged that the provincial governments and local bodies would aggressively ensure that the children are brought into schools, the school dropout rates show the non-compliance of the legal arrangements. A report of the School Sector Development Program says that about 86 percent of children who enroll in grade one reach grade five and only 74.6 percent survive to grade eight. This shows a grim face of reality.

The Act provisions that the persons who would not have received basic level education–from class one to eight–would not be eligible for any government or non-government jobs or benefits after 10 years (after April 13, 2028).

So, we could have islands of unemployed youths if we fail to educate our children.

Nelson Mandella has said, “Education is the most powerful weapon which you can use to change the world.” We can bring a change in the country if we succeed to enforce this Act in true and material sense. It is yet to be seen if this Act will be truly implemented.

Think beyond celebration

The 2015 Constitution of Nepal is the seventh constitutional document in a span of approximately 68 years. Mere celebration of the Constitution Day without a commitment of implementing its provisions would be of no use.

We have enacted a good deal of laws but they are of cosmetic value only. Consider the Right to Food and Food Sovereignty Act (2018). It’s a welcome legislation which aims to foster the cause of socio-economic democracy. This Act encourages the federal, provincial and local authorities to take (joint) initiatives in limiting the complexities coming in the way of food sovereignty. But, we don’t have sufficient food productivity. Our dependence on import of foods from India and abroad shows that we have failed to ensure food sovereignty in our country.

The debates, dialogues and discourse for reformative laws without ensuring a reformation in true sense would be a joke. Our all laws, not only some of the laws that are discussed here, deserve to be implemented. Action speaks louder than words. HLA Hart, a jurist of the Analytical School of Jurisprudence, has rightly said that enactment of law is one thing while implementation is the other. Our failure to abide by the constitutional ethos is contempt of the constitution. The violation of the Constitution is a fraud on the constitution. It’s high time to abide by the constitution.