Implementation
At the time of writing only seven years have passed since the promulgation of Nepal's 2015 Constitution. As such, it is difficult to provide a systematic assessment of the implementation of this document beyond an impressionistic and partial evaluation.
This section will look at the two amendments to the 2015 Constitution that have been passed so far, the position of the Supreme Court, and the legislation that has been passed to implement the various rights.The first amendment to Nepal's 2015 Constitution was passed already in January 2016 with a view to addressing some of the long-standing demands from the Madhesi parties and community for greater social inclusion and representation of historically marginalised groups. These were provisions to enshrine the principle of proportional representation and introduce electoral constituencies based on population.[1591] Article 42 right to social justice was amended to include the right of certain groups to participate in state institutions on the basis of proportional representation, while the amendment of Articles 84 and 286 ensured that the constituencies for the elections of the 165 members of the House of Representatives under first-past-the-post are now to be delimited on the basis of population first, and geography second. The Madhesi delegates, however, were still displeased with the limited reach of the amendment and walked out in protest. In January 2020, Nepal's legislature passed a second amendment to the 2015 Constitution to include in the map on Nepal's coat of arms under Schedule 3 of the Constitution the areas of Limpiyadhura, Lipulekh, and Kalapani, which have been the subject of a longstanding territorial dispute with India.[1592] The second amendment appears to have been no more than a political stunt by the then Prime Minister Khadga Prasad Oli of the UML to bolster its reputation with a nationalist move vis-a-vis India, at a time in which his popularity was waning.
It is significant to reflect also on a failed amendment attempt slightly over a year after the promulgation of the 2015 Constitution. In November 2016 the Nepali Congress-led government had tabled a comprehensive amendment bill to bring about significant changes to the 2015 Constitution with a view to delivering on the initial promise of social inclusion. Under this proposal the controversial federal demarcation adopted the previous year would have been revised, the diversity of the groups represented in Parliament’s upper chamber would have increased, the acquisition of naturalised citizenship by foreign women married to Nepali men would have been facilitated, and a Schedule listing all the languages that the Constitution defines as mother tongues would have been created.[1593] The proposal, however, was kept pending in Parliament for months as the UML opposed it and when the Government eventually changed, nothing came of it. Perhaps this failed amendment attempt is an apt metaphor for the dilution of the inclusion agenda in Nepal’s constitutional politics and the difficulty of bringing it back to the forefront of political engagement now that the constitutional moment appears to have irremediably dissipated.
Another significant set of issues concerning the implementation of the 2015 Constitution is the actualisation of the problematic provisions concerning the judiciary that I have outlined above. First, with respect to the creation of the Supreme Court’s Constitutional Bench, the backlog of constitutional cases has become enormous due to the bottleneck effect of the structural reforms under the 2015 Constitution alongside disputes over the appointment of the judges to the Bench itself. This has significantly hampered the ability of the higher judiciary to fulfil its constitutional function, especially in a context in which an ever-growing number of litigants keeps approaching the court. Second, the easing of the impeachment requirements has already facilitated two failed impeachment attempts at the Supreme Court level in September 2016 against Justice Ananda Mohan Bhattarai, and another in April 2017 against Chief Justice Sushila Karki.
In the case of Justice Bhattarai, the impeachment complaint failed to secure the necessary one- fourth support in the legislature and was quashed by Parliament’s Impeachment Recommendation Committee as spurious. In the case of the Chief Justice Karki, the Supreme Court issued a robust response through an interim order staying the impeachment motion and reinstating the Chief Justice. Ultimately, the three main political parties simply agreed to withdraw the impeachment motion against Karki as part of a political deal to reshuffle the Cabinet. Even if both attempts failed, they highlight the increased vulnerability even of the higher judiciary to executive interference and the very often personal risk that individual Justices may face, or at the very least the vulnerability of the judiciary to political intimidation. Third, in line with these considerations, the PHC procedure was treated as a mere formality until very recently, but in August 2018 the PHC rejected the nomination of Acting Chief Justice Deepak Raj Joshi in what appeared to be a politically motivated decision by law-makers from the Government’s party. Moreover, the effectiveness of the constitutional bodies in dealing with issues pertaining to the judiciary - including misconduct - had already been tested in March 2018, when the Constitutional Council removed Chief Justice Parajuli from his post based on the mandatory age requirement for retirement. Again, the elected branches of government have demonstrated a much more active and interfering approach to judicial appointments and conduct. This is a troubling development.Finally, the saga of the fast-tracked, last-minute passing of the ordinary legislation needed to implement the majority of the social rights contained in the 2015 Constitution illuminates the tension between the promise of the constitutional text and its lived political reality. Article 47 of the 2015 Constitution decrees that the Government of Nepal is under a constitutional obligation to pass ordinary legislation to implement the rights contained in the Constitution within three years since the date of the document’s promulgation.
However, in 2018 these 18 pieces of legislation were fast-tracked and passed the day before the deadline mandated by the Constitution. No public consultation or scrutiny of these laws took place, falling short of international standards like the International Covenant on Civil and Political Rights as highlighted by Amnesty International.[1594] On a similar note, Amnesty extended its criticism of the Government to the fact that a number of constitutional human rights bodies like the National Inclusion Commission, Indigenous Nationalities Commission, Madhesi Commission and Tharu Commission were still lacking commissioners and therefore remained unable to function three years after the 2015 Constitution had created them. These instances of constitutional implementation all point to growing tendencies of the elected bodies to elude forms of oversight that the Constitution has set up as counter majoritarian checks, and ultimately a cavalier change in political attitudes towards constitutional norms.V.