A constitution in transition

Different kinds of syntheses emerge from the academic summaries from the political and judicial perspectives of the constitution. New dimensions will definitely be added to the discussions about the past years and the future in the implementation of the Constitution from the platforms of universities, bar associations and civil society. Weaknesses of the constitution are always pointed out, the possibilities of improvement are also shown. It is incomplete to use only a political or judicial perspective to see the weaknesses or strengths of the constitution.

An attempt has been made here to analyze the constitution in a multi-faceted manner, not limited to the purely political and theoretical dimensions. In this sense, the constitution is promulgated on a certain date, but the constitution-making process is ongoing for its perfection. Three main elements work in the constitution making process - court interpretation, development of constitutional practice and revision of the constitution. On the Constitution Day, which is celebrated every year, analysis of how much the constitution could or could not be made from these three bases can be more prosperous in the future.

narrow concept

Constitution-related debates and statements that have been and will be among us are focused only on purely technical content. The traditional view of the Constitution as merely a legal and political document dominates almost all of our debates. Regarding the legal and political effects of the constitution, rather than the contents, the commentaries have become the subject of debate and discussion. Apart from the time when the constitution was written, in the initial years of its implementation, the constitution was taken as a social and economic document, and its economic and social aspects and people's issues were rarely discussed.

Constantly missing parties

At present, it has been developed to understand only the Supreme Court, Constitutional Bench, Judicial Council, Parliamentary hearings, provincial structure, executive powers, election system along with the Constitution. When reviewing the years of implementation of the Constitution, only the discussion of the political and judicial events that took place throughout the year dominates. This perspective, which is dominated by puritanism, which views social, economic events and issues other than political and judicial structural issues, beyond the constitution, has narrowed the scope of the purpose with which the current constitution was created. As a result, the constitution is being portrayed as a document of politicians, judges and lawyers, rather than a social document with the adoption of citizens. Such a trend can take the form of social rebellion, gradually increasing the distance between the constitution and the people.

The debates on the implementation and reform of the constitution have been captured by these superficial issues. These are also the basic issues related to the constitution, but what has been the effect of the constitution on the social and economic life of the citizens in the nine years after the promulgation of this constitution? What was the effect of the provision of the fundamental right of free health written in Article 35 on the health of citizens? What effect and change did it bring about in the private relations between the people? The relationship between the government and the people remained in the same form as the ruler-ruled or did a fundamental difference appear? These questions should also be discussed with equal time and diligence. In the same way that this constitution is discussed based on the structural deadlock seen in the performance of the constitutional bench of the Supreme Court, it is necessary to analyze this constitution based on the role of the state structure in implementing the right to employment as a fundamental right.

How has the commitment to economic equality, egalitarian society and socialism been manifested in the monetary policy issued by the Nepal Rastra Bank from the annual budget of the three levels of government? What activities has the Social Welfare Council done to guide the activities of national and international non-governmental organizations towards social justice and equality in accordance with the constitutional intention? How has any university embraced the confederation spirit in expanding its academic programs?

What is the status of ensuring the representation of women and historically deprived class communities in the internal structure and executive bodies of any political party, not only in Parliament? These and other issues must now be the main topic of discussion related to the constitution. Only then will the fact be established that we have understood the real essence of the current constitution. When these issues are not considered to be mainstream issues but are considered to be the concerns of the concerned people only, the minimum purpose of the constitution has been overshadowed.

In the parliamentary elections of 2074, a total of 5 women MPs were directly elected and in 2079, a total of 9 women MPs, portrays how the political parties are embracing the political representation with meaningful gender inclusion as adopted by the constitution. Moreover, the decrease in the number of women elected in the local elections of 2074 and the local elections of 2079 by more than 100 indicates the basic state of representation envisaged by the constitution. However, these shortcomings have been discussed as an integral part of the constitutional reforms, but little has been heard. The current constitution's attitude towards climate change and environmental protection has become purely a matter of concern for environmentalists or conservationists. Such a narrow understanding of the Constitution has led to a natural erosion of expectations for transformation.

Not continuity but innovation

It seems that something needs to be clarified on the serious issue of whether to consider this constitution as a continuation of history or as an innovation after its creation. We have become accustomed to its use in constitution making and power management. It has been almost eight decades since the constitution was conceptualized as an important part of governance. In the meantime, different types of constitutions have been created and implemented in order to institutionalize different systems among us, and we are currently practicing the seventh constitution. We have embraced practices ranging from non-partisan autocracy to multi-party democracy and federal republic.

In this historical background, it is necessary to develop self-awareness about whether the current constitution is a general phenomenon that continues the past or its creation and continuation is itself the highest sign of progressive change. The development of this kind of self-awareness is not common, and eventually the constitution becomes an elite document and the political and judicial spheres privatize it. In order to prevent this kind of accident and extend the adoption of the Constitution to the maximum extent, it is necessary to develop the consciousness of its original meaning and the innovation envisaged by it.

While the freedom struggle was going on in India, on May 16, 1946, through the then cabinet mission, it was ensured that the Constituent Assembly would be formed to create a new constitution. Although not directly elected by the people, the constitution of the Constituent Assembly of India can be considered to have been formed according to the democratic process. Indian constitutional principles have had a persuasive influence on Nepal's constitutional history and even in the present. Thus, it is an acceptable practice to have a comparative influence on the development of the constitution and laws.

The opinion expressed by Ambedkar, the leading character of the Indian constitution in the Constituent Assembly, that the principles and structures of the constitution should not be the intellectual property (patent) of any one country seems to be relevant here. However, in the book 'The Colonial Constitution' published some time ago, author Argho Sengupta has presented the argument that the Constitution of India is only a continuation of the colonial period.

The constitution did not address the main topics of the Indian freedom struggle and the basic topics of Gandhian ideals such as local self-governance, continued colonial issues including preventive detention, and maintained the relationship between the citizen and the state as the ruler and the governed. It is called an improved form.

On the other hand, Gautam Bhatia in his book 'The Transformative Constitution' has claimed that although the legal existence of the Constituent Assembly is colonial, the constitution made by it is a document of transformation. To justify it he adopts two main grounds. First, the fundamental rights provided by the Constitution have elevated the individual from a subordinate object to a citizen in relation to the state and the individual. Second, the constitution envisages the reformation of the state and society. The author believes that the constitution is not a continuation of the past but a transformative document as the constitutional provisions are made to eliminate the discriminatory and unjust hierarchy by accepting the social levels in the constitution rather than considering the state as the center of government power.

Looking at the constitution of Nepal in the light of the above two different academic perspectives, this constitution is not a mere continuation of any history, but is committed to socialism, economic equality by completely eliminating social and political evils such as state and social structures of unjust and feudal nature, centralization, deprivation, discrimination, which are rooted in the past. It is clear that there is a basic pillar of people's expectations and trust built to build a based egalitarian society.

The exercises carried out in the process from the initial stage of the constitution making process to the time of its release also confirm the same thing. Therefore, it is imperative that there be a fundamental difference between our approach to any past constitution and our approach to the current constitution. Trying to look at the previous constitution and this constitution from the same point of view is theoretically flawed and also a cruel insult to the historical revolution and sacrifice. It is an incomplete understanding to consider only the change of government form and system as an achievement of the current constitution. The basic need of today is to direct politics and other structural practices by embracing the egalitarian society envisioned by this constitution as the highest achievement from the ground angle.

The new dimension of constitutionalism

After the cruel and brutal experience of human civilization like the Second World War, some universally accepted concepts such as respect for human life, continuous control over state power, the concepts of inalienable natural rights and natural laws, and fundamental limits in the amendment of the constitution have been incorporated into the constitutions based on neo-constitutionalism. known as The constitution of the then West Germany can be taken as an example. The end of colonialism in Asia and Africa, the third wave of democratization in South and Central American countries further strengthened neoconstitutional principles. Neoconstitutional principles are subjects of liberal circles.

In the context of South African constitutional development, author and jurist Carl Clare first presented a new vision of a transformative constitution in his research article 'Legal Culture and Transformative Constitutionalism'. According to him, a transformative constitution means a long-term mandate and project to create, interpret and implement the constitution in order to transform the political and social structure and power relations towards a democratic, participatory and egalitarian direction. He insists that this type of concept is post-liberal.

The basic principles of neo-constitutionalism are evident in the past constitutions of Nepal. However, the presence of elements of transformative constitutionalism is a fundamental feature of the current constitution. Social justice based on proportional inclusion, participation of women and historically excluded and discriminated groups in state bodies, complete end of discrimination in social behavior, equitable practice in the distribution and distribution of state resources, proper implementation of past peace process agreements and rebellions, accountability and responsibility practices of state structures. Requirement, the useless society of state power are issues under conceptual constitution. Increasing the transformation, politician, legal business, to keep the structure of the constitution, and resolve the implementation of the new constitution, it is important to take a resolution to build a long road. What is the Schedule for

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