Nepal marks the second anniversary of the constitution promulgation on Tuesday. Despite the failure of two constitutional amendments and the dissatisfaction of Madhesi-parties, the establishment of federal states as per constitutional guidelines has been progressing and things seem to be on track regarding Nepal’s development as a federal nation. In this context, Kamal Dev Bhattarai and Binod Ghimire spoke to constitutional expert and Dean of Kathmandu University’s School of Law, Bipin Adhikari about Nepal's progress under the new federal structure, the implementation of the constitution, the failure of the recent constitutional amendment, issues of inclusion and proportional representation, and Nepal’s growing geopolitical significance.

How do you evaluate the two-years of constitution implementation?

In my opinion, something is better than nothing. It is essential to realise that the promulgation of the constitution is a huge step forward. Issues with the implementation of the constitution may exist to a certain degree, and so positive development may be hampered somewhat, but the crux of the matter remains that we are at least progre ssing in a positive direction now.

The constitution has a number of flaws, of which its supposed non-inclusivity is the main cause for debate at this juncture. Do you think this argument is justified?

The issue of non-inclusivity in the constitution is purely a result of political discontent. The constitution is inclusive and has a number of pro-people clauses. What is integral now is for the implementation of the clauses calling for inclusivity in our constitution; we may have the structure and principles in place for inclusivity now, but we need the legal structures and law-making bodies in place to implement them on a broader context. The handing-over of power, how the central government nurtures these newly created local bodies, and how they allocate resources to these entities will ascertain the success of the constitution.

So was the call to amend the constitution on the basis of greater inclusivity erroneous?

Nepal marks the second anniversary of the constitution promulgation on Tuesday. Despite the failure of two constitutional amendments and the dissatisfaction of Madhesi-parties, If amendments could be made for increased inclusion, then it would not be entirely remiss. There can always be positive steps made in this regard. However, the amendment was not passed because it failed to garner a two-third majority required to pass a bill in Parliament. This is the way our society is run; this decisive majority will lend strength to a confident system of governance and provide political impetus for the functioning of the state.

The Nepali Congress (NC) - Maoist Centre (MC) coalition could not make good on their claim to push through the constitutional amendment. They could not garner a two-thirds majority. I believe this was a political stunt. NC is assuming a sympathetic stance to the argument of inclusivity and is taking advantage of the situation.

If an agenda fails to garner a two-third majority, it will not be eliminated. Those who are pushing for the failed agenda can seek an alternative route. They can appeal to their constituents for votes and thus develop their political clout over time. By doing so, they will eventually be able to garner the required majority.

What progress have the major state institutions made in implementing the constitution?

The state is responsible for electing leadership for the implementation of the constitution; the problem is that our government has changed four times following the promulgation of the constitution. So their focus has not been towards the fulfilment of the constitution.

Even within constitutional bodies, a number of issues have arisen in terms of implementation of the constitution. For example, the state has the authority to fix the dates for the election, but they have no power to decide on the phases of elections. This authority has been ceded to the Election Commission (EC), however, the EC has not been able to exercise this authority and has gone along with the government’s dates instead. The failure of the EC to assert their authority has led to debates regarding their lack of decision-making leadership power.

Another issue has arisen in terms of the Constituency Delimitation Commission (CDC). They were given a difficult task to complete within a very limited timeframe, however, the allocation of 90 percent weightage to population and 10 percent weightage to geography while allocating electoral constituencies is not justifiable. Districts in the rural, mountainous areas have only been given one constituency each, whereas, the hills and low-lands districts have a population advantage. Those minority populations living in the rural, mountainous areas will suffer from lack of representation. However, delineation has brought stability in discourse to a certain degree and will promote the success of the elections.

Are there any broader weaknesses in terms of the implementation of the constitution?

There is definitely an issue with law-making. The Ministry of Law, Justice, Constituent Assembly, and Parliamentary Affairs has said that there is a need for about 126 new rules for the proper implementation of the constitution. There has been no expected progress in formulating such rules. The government could have taken advantage of the considerable expertise in Nepal and formed a number of task forces. These task forces could have made a number of recommendations that could then be finalised by the government. This would have allowed a number of inroads in terms of regional decisions, and a number of frameworks and legislation could be brought into effect.

Given these problems, how will the elected bodies help the country progress under the new federal structure?

Change cannot occur through one election alone, especially with the presence of a number of issues that hinder progress. In the face of these problems, we need a magnanimous central government that can help local bodies to establish themselves. The central government should facilitate progress and avoid confrontation. If problems arise between the central and local bodies, transfer of power will be slow and the governance system at the local level will be weak.

Many people believe that Nepal’s bureaucracy has not been able to reconcile themselves with the fact that Nepal is now a federal state; they have not been able to realise that the power base is no longer within the Capital. I believe that once the elected government starts functioning, the central government will be required to toe the line. The constitution has established institutions for the benefit of federalism. For example, the Inter-Provincial Council is a political body that allows discourse for political dissent, and the central government will act according to the commission’s decision. The National Natural Resources and Fiscal Commission is another such institution that has been established to decide on the collection and distribution of national revenue on the basis of the equalisation policy. A constitution bench has also been created in the Supreme Court; if the government proposed a bill that understands the federal system, is functional, and broad-based, this bench has the authority to pass it. With these three institutions in place, positive steps can be taken.

I am also of the view that these local bodies will establish their own independence very quickly. They will have to be democratic and truly reflect local needs and decisions; we need to see how this can accomplished and how the state can help in this regard. The rule of law has to be maintained under all circumstances and if it is followed, self-governance will be a fait accompli.

What geopolitical challenges could hamper the implementation of the constitution?

Nepal’s geopolitical position between India and China affords it considerable economic and political significance but also makes the situation particularly sensitive. India has been involved in Nepali politics since 1947, when BP Koirala sought refuge in India and looked for arms to storm Kathmandu. Since then, India has constantly sought Nepal’s support to bolster its regional political position. China, on the other hand, has only recently extended overtures towards Nepal, and has shown that Nepal could benefit considerably from this particular relationship. However, they seem to respect that Nepal is a sovereign state that retains its independence.

At this juncture, Nepal has to maintain a balanced position between China and India; for this we need strong and stable leadership, we also need to manage internal dissent and maintain our independence.