A Good Constitution That Could Be Better
The new Nepali Constitution represents a milestone, but it has many problems of principle and interpretation that have to be overcome through amendment by the future Parliament.
The eight-week-long Nepali movement for the restoration of human rights and democracy which culminated in mid-April has fundamentally changed the nature of the Nepali political order. Earlier, the king was regarded as the repository of all executive, legislative and judicial powers. In theory and practice, he was the only source and centre of state authority. This is now history, as the new Constitution of the Kingdom of Nepal, 2047, promulgated by the king on 9 November, explicitly states in its preamble that sovereignty resides in the people. It guarantees their fundamental rights to freedom of expression, assembly and association and the right to the rule of law. Article 116 (1) lays down that fundamental rights, multi-party democracy, and constitutional monarchy are to be henceforth regarded as inalienable.
As to the question of popular legitimacy of the Constitution, the fact remains that it was not drawn up by elected representatives of the people, nor by a constituent assembly. The 2047 Constitution is also, technically speaking, a gift of the king to the people. But its redeeming feature is that it can always be amended by the elected representatives of the people.
Two serious questions have been raised: Does the king still retain the right to revoke the present Constitution? Can he declare a state of national emergency and suspend fundamental rights, even if temporarily?
POWER TO REVOKE
To take the first question, the king's explicit reference in his proclamation to the exercise of his "inherent constitutional and state authority and prerogative" in promulgating the 2047 Constitution with immediate effect does not seem to be inconsistent, as claimed by certain political party leaders,. with what is stated in the last paragraph of the preamble of the Constitution itself which runs as follows:
"Now, therefore, keeping in view the desire of the people that the state authority and sovereign powers shall, after the commence merit of this Constitution, be exercised in accordance with its provisions, we, King Birendra Bir Bikram Shah Deva, by virtue of the state authority as having been traditionally exercised by us, do hereby enact and promulgate the Constitution of the Kingdom of Nepal by and with the advice and consent of the Council of Ministers." (emphasis added)
Whether the king has permanently given up, at least in theory, his right to revoke the Constitution is thus an open • question which can only be answered by the Supreme Court. We can only hope and pray that the king might never feel tempted to do so in future out of his regard for public opinion and morality and thus avoid the occasion for mass political upheaval, which of course does not respect any constitutional niceties.
EMERGENCY POWERS
Now to turn to the question of whether the king can declare a state of emergency on his own under Article 115. It has been pleaded that he cannot do so except by and with the consent of the Council of Ministers because Article 35 (2) of the Constitution provides that:
"The powers of His Majesty under the Constitution except those which are to be exercised exclusively by him or at his discretion or on the recommendation of any institution or official, shall be exercised by and with the advice and consent of the Council of Ministers. Such advice and consent should be submitted through the Prime Minister." (emphasis added)
But the plea is rendered somewhat suspect because the original . draft of Article 115 as prepared by the Constitutional Recommendation. Commission had explicitly mentioned that the king could declare an emergency only on the recommendation from the Council of Ministers.
Further, Article 43 (2) of the Constitution becomes untenable if we are to put the same construction on it as on Article 115. (Article 43(2) says the king can give advice and encouragement to, or alert, the Council of Minister to issues of national importance.)
Article 115 and 43 (2) are both worded similarly without any clear mention of whether the powers are to be exercised exclusively by the king or at his discretion. Using the construction that has been suggested for Article 115, how could the king possibly, in article 43 (2), be expected to act by and with the advice and consent of the Council of Ministers while giving it advice or encouragement?
My contention is that an article dealing with such an important matter as the declaration of emergency should not have left any room for doubt or ambiguity. Moreover, Article 115 leaves the key word "emergency" undefined. The circumstances under which emergency powers could be exercised are described vaguely as a "grave emergency'". It would have been consistent with international legal standards if an expression such as "grave threat to the life of the nation" had been used to indicate more clearly the severity of circumstances necessitating the use of emergency power.
DISCRIMINATION AGAINST SEX
Although Article 11 of the Constitution states that the State shall not discriminate against any citizen on the grounds of sex, the Constitution itself discriminates on those very grounds in its definition of citizenship in Article 9. The children of Nepali male citizens arc deemed to be citizens of Nepal by descent, whereas children of Nepali female citizens are considered foreigners, and have to reside in Nepal for 15 years before they can become citizens.
RIGHTS TO EQUALITY, SUPREME COURT JURISDICTION
Under Article 11 (2) and (3), the Constitution restricts many of the most fundamental human rights to "citizens". Thus, constitutional protection against discrimination on the grounds of religion, race; gender is enjoyed only by citizens; this restriction is inconsistent with Article 11 (1) which states that no "person" shall be denied equal protection of the law. Likewise; the . right to challenge the constitutionality of laws before the Supreme Court is limited by Article 88 (1) to any "citizen" of Nepal. The term "person" should have been used in place of "citizen" to ensure that all those residing in Nepal enjoy equal protection and equal legal remedies.
RIGHT TO FREEDOM AND PRESS AND PUBLICATION RIGHTS
The 2047 Constitution limits these rights through a number of provisions that could be used to curtail fundamental freedoms severely. For instance, most of the rights in Articles 12 (Right to Freedom) and 13 (Press and Publication Rights) can be restricted if they "undermine the sovereignty and integrity of the kingdom" or disturb the "harmonious relations among ethnic groups." These restrictions should have been narrowly drawn up so as to make the government bear a heavy burden of demonstrating the need for the restriction. The freedoms of expression, assembly, association and the press would have then been better protected. Under the International Covenant on Civil and Political Rights, the right to freedom of expression can only be restricted as necessary for the respect of the rights and reputations of others and for the protection of national security, public order, or public health or morals.
RIGHT AGAINST PREVENTIVE DETENTION
The practice of preventive detention has caused the most common abuses of human rights everywhere. The new Constitution has done well by expressly providing protection against it in Article 15. But the protective language leaves much to be desired, as in the case of Articles 11 and 12. Article 15 should have defined the grounds for preventive detention narrowly without leaving, as it does, a wide scope for justification of preventive detention as implied in the wording of the article, which requires only "sufficient ground of existence of threat to the sovereignty, tranquility and indivisibility, or public peace and order of Nepal." More stringent requirements should have been laid down in order to make it difficult for the government to deviate from the regular legal procedures.
RIGHT TO RELIGION
The officially distributed (but "unofficial") English translation of the Constitution has Article 19 on the right to religion read thus:
"Every person shall have the freedom to profess and practice his own religion as coming down to him from the perennial past (sic) having due regard to traditional practices. Provided that no person shall be entitled to convert another person from one religion to another."
However, the English version of the Constitution is not binding and does not have the same sanctity in Nepali courts as the original Nepali text. The literal rendering of the exceptional clause in the Nepali text in English should have run as follows: "Provided that no person shall cause or compel another individual to change one's religion."
Article 19 clearly implies that one can change one's religion at one's free will. The fact of the matter is that there are laws which prohibit religious conversion which are therefore inconsistent with the spirit of the Constitution as translated above. The very same constitutional stipulation had also existed in the recently revoked Nepali Constitution of 2019 (1962) but the courts, including the Supreme Court, were in the past hesitant to declare the existing laws as ultra vires of the Constitution. As a result, people responsible for religious conversion and also the converts themselves have been persecuted in Nepal from time to time.
The practice of penalising conversion is inconsistent with Article 18 of the Universal Declaration of Human Rights which specifically upholds "the right to freedom…of religion; this right includes freedom to change…religion."
It remains to be seen whether the courts will declare the existing laws barring conversion ultra vires of the Constitution or not. Strangely enough, Article 19 of the Constitution seems to deny, if interpreted in accordance with the terms of the "unofficial" translation, the right to practice the religion of one's own choosing, while leaving one free to follow the religion of one's ancestors.
A HINDU STATE
An awkwardly phrased Article 4(1) in the Part I of the Constitution has unnecessarily provoked the religious, ethnic and linguistic minorities against Nepal's Hindu majority and Hindu king. This article is self-consciously worded in an attempt to mollify the feelings of the minorities. Actually, it has had the opposite effect, and runs as follows: "Nepal is a multiethnic, multilingual, democratic, independent, sovereign, Hindu monarchial Kingdom." The Nepali version is as awkward as its "unofficial" English version: "Nepal is a…Hindu, constitutional monarchical Kingdom." The comma after "Hindu" is significant. As the position of the Hindu king is safeguarded in Article 27 (1) of Part V, which deals with the kingship, there was no reason for calling Nepal a Hindu state in the Part I. Not only does Article 4 (1) have the effect of rubbing religious minorities the wrong way, it militates against the principle and practice of separation of Religion and the State.
The Constitution of 2047, on the whole, represents a milestone in the evolution of a constitutional order in Nepal. The actual experience of the Nepali people with the Constitution will largely depend on how it is worked in practice. It is yet to be seen whether the king and the political parties who have so far assumed the entire responsibility for promulgating the Constitution will co-operate with one another in implementing it with care and integrity. The king will still have an important role to play in effecting a smooth transition from unlimited monarchy to limited or constitutional monarchy suited to the needs of intrinsically democratic modernisation.
Shaha is President of the Human Rights Organisation of Nepal. He had a hand in the drafting of the 1962 Constitution, but later agitated against it when it came into effect on grounds that it did not respect fundamental human rights.