[Constitution special] Departure from the pastThe new constitution begins a clear departure from a centuries-old centralised unitary state into a federal republic—decentralising governance and empowering the local authorities to adopt their own programmes and policies
The Constitution of Nepal 2015, with 308 Articles, 35 parts and nine schedules, will formally replace the Interim Constitution 2007 today, turning Nepal into a federal democratic republic. The seven-province federal model, three tiers of governance and inclusive commissions are the major provisions the new constitution has adopted, for the first time in Nepal. The seventh constitution of the country will mark a clear departure from the centuries-old centralised unitary state into a federal republic—decentralising governance and empowering the local authorities to adopt their own programmes and policies. The federal states will also largely have financial autonomy, and not just the political, where the provincial and local entities can collect revenues and spend them as they deem fit. Of course, none of these things will happen overnight, but the process starts in earnest today.
The new constitution mandates the formation of seven different commissions to address the grievances of marginalised communities, including of the Tharus, Madhesis, Muslims, women and Janajatis after the promulgation of constitution.
Each of the commissions will protect the rights of minorities and formulate plans and policies to promote the welfare of the respective committees. Similarly, the constitution has several provisions for a welfare state, which range from free education up to secondary level and free basic health services to positive discrimination for the empowerment of the marginalised communities. There is also a provision of scholarship for Dalits up to the higher-education level and special arrangements for them to pursue higher education in technical and professional subjects.
Republicanism, federalism, secularism, inclusive and proportional representation of the oppressed and marginalised communities are the other key features of the new constitution. In addition, it has also institutionalised rights of women, press freedom, equal rights to property and family affairs to the women and inclusive democracy.
"This is the most progressive and inclusive statute the country ever had," said Chandra Kanta Gyawali, a constitutional lawyer. He said that decentralization and inclusiveness and the empowerment of the marginalised communities are the major features the constitution has adopted. Similarly, the proportional representation of women, Dalit and other marginalised communities in both the houses in the bicameral parliament is also a progressive measure the new constitution has adopted.
In order to ensure representation of different communities and genders in the state authority, the constitution has made it mandatory for the president and vice-president to not be of the same gender or come from the same community. The provisions for duties of citizens too are an innovative provision the new constitution has adopted.
A person who is entitled to Nepali citizenship by descent can obtain the citizenship certificate after the name of either parent along with gender identity. The constitution, for the first time, includes a provision of citizenship to Non Resident Nepalis, that is all the rights except political ones. The provision of not allowing one who has lost the election to have a ministerial berth is also a reformative measure the new constitution has taken.
According to Gyawali there are some weaknesses in the constitution, mainly regarding the judiciary. He claimed that the new constitution does not adopt centralisation in the judiciary. The new constitution has provisions to have three layers of courts; Supreme, High and District, largely as in the present form. "There had to be a separate constitutional court to decide on the controversy in the constitution. Establishing a constitutional bench under Supreme Court will not work," he said. He also claimed that the powers that had to be delegated to the provincial and local government was with the federal government.
According to international practice, the state government only has authority over the national army, foreign relations, the currency and monetary policy; however, the new constitution gives additional 17 rights to the state government. "This contradicts the provision of federalism," he said. In addition, he said, barring women from passing on citizenship to their children independently is also the other major regressive provision the constitution includes.