Substance: Controversial Provisions of the 2015 Constitution

Nepal's 2015 Constitution establishes a federal republic with three tiers of govern­ment under a parliamentary system and an independent judiciary. It is entrenched, difficult to amend,^[1577] and contains an extensive section of justiciable fundamental rights.

In terms of frame of government, Article 74 provides for ‘a multi-party, competitive, federal democratic republican parliamentary system’. At the central level, the bicameral Federal Parliament comprises the House of Representatives and the National Assembly.^[1578] The lower House features 275 directly elected seats for a term of five years: 165 members elected on the basis of first-past-the-post voting in 165 single-member districts, and 110 members elected on the basis of nationwide proportional representation from party lists that must satisfy identity­based quotas for ‘women, dalit, Adivasi Janajati, Khas-Arya, Madhesi, Tharu, Muslim, and backward regions’^[1579] This provision gave rise to two critiques. First, the 2015 Constitution significantly reduced the proportion of seats allocated through proportional representation from the formula used to elect both constitu­ent assemblies. This change further increased the control of political parties over the selection of candidates and reduced the main mechanism to secure political representation for historically marginalised groups. Second, the new Constitution has created the controversial new category of Khas-Arya (namely, high-caste Pahari Hindus, including Bahun, Chetri, Thakuri, and Sannyasi) to the list of protected categories entitled to benefit from affirmative action (ie the reservation of parliamentary seats and public offices for historically marginalised groups).

In terms of vertical organisation of power, the modality of federalisation under the 2015 Constitution has been the most controversial feature of the new document. The document allocates executive and legislative power among three tiers of government: a federal government at the centre, seven provinces, and local government.^[1580] On paper, the creation of a second tier of government (the provinces) represents the greatest departure from Nepal's traditional struc­ture as a unitary state. However, the 2015 Constitution remained silent on the names of the provinces and simply gave each of them a number from one to seven. This was seen to dilute the historical demand for ethnic federalism in the name of ‘viability' of the federal units. It also adopted a controversial approach to the territorial demarcation of the federal units, dividing the country longitudinally into provinces bringing together clusters of the existing 75 districts. This demar­cation was particularly controversial because it essentially rejected the Madhesi demand for the creation of a single Madhesi Province in the Terai. Instead, the new Constitution adopted a longitudinal division of the country that lacked any obvi­ous historical, geographical, or demographic basis. Madhesi and Janajati activists have argued that this approach aimed at entrenching Khas-Arya demographic dominance in every province.^[1581] Moreover, the 2015 Constitution also abandoned the long-standing and controversial demand for preferential rights (agradhikar, lit. ‘priority entitlement to provincial-level political offices for certain groups'), which had been recommended by CA1. The net result was that the 2015 Constitution departed drastically from the ethno-linguistic federal model that had initially been proposed at the start of the constitution-making process.

With respect to judicial structures and powers, the 2015 Constitution perpetuates Nepal's tradition of an entrenched constitution with justiciable constitutional rights under Article 1, giving the judiciary - especially the Supreme Court - a key role as the guardian of the Constitution.

1. The ability to review legislation is confined to the newly established Constitutional Bench, which is now the only judicial organ allowed to adju­dicate on the validity of legislation on the basis of constitutionality, resolve disputes between the various tiers of government, and determine electoral controversies. This was designed to slow down the work of the Supreme Court through backlog and reduce the ability of the Court to oversee the Government.

2. The requirements for impeachment have been relaxed, threatening to under­mine the independence of the judiciary and increase executive interference.^[1582]

3. The procedure for judicial appointments introduced by 2007 interim Constitution was retained. It requires all nominations for the posts of Chief Justice and all Supreme Court Justices, members of Judicial Council, Head or official of Constitutional bodies and ambassadors to be reviewed by Parliamentary Hearings Committee (PHC). Article 293 clearly states that ‘constitutional bodies must be accountable and responsible to the Federal Parliament’. This procedure, however, is redundant as the constitutional bodies, in which the executive is in a majority, already perform the function of vetting candidates. It is again designed to constrain the judiciary further.^[1583]

Finally, other contentious issues in the 2015 Constitution pertain to the framing of Nepal's national identity and the accommodation of socio-cultural diversity in the new framework.

The 2015 Constitution also reintroduced a detailed chapter on citizen­ship that discriminates on the basis of gender in a manner similar to the 1990 Constitution.^[1587] Historically, Nepali women have had less legal ability than Nepali men to transmit citizenship to their children and foreign spouses. This framework has clear intersectional implications as it has been purposefully designed to target the Madhesi community, due to the frequency of cross-border marriages with Indian citizens. As a result, a disproportionate amount of Madhesi women have been affected by these discriminatory practices. Again, this is in clear violation of international legal instruments to which Nepal is party to, like the Committee on the Elimination of Discrimination against Women. In stark contrast to the treat­ment of women in matters of citizenship, following the landmark Supreme Court’s decision in the Sunil Babu Pant case,^[1588] Nepal has become one of the very few coun­tries in the world to recognise LGBTQ rights at the constitutional level. Articles 18 and 42 refer to ‘gender and sexual minorities’ (laingik tatha yaunik alpasankyak) respectively as groups that ought not be discriminated against,^[1589] and groups enti­tled to affirmative action measures in public employment.^[1590] As such, the outcome of Nepal's constitution-making process brought mixed results in terms of the features of the 2015 Constitution, and an assessment of the tensions within the constitutional text will only be possible by observing constitutional implementa­tion in the medium and long term. For the time being, one can only take note of its problematic features.

IV.