Analysis

Need to follow the spirit of preamble of Constitution 

Jivesh Jha

Jivesh

The preamble of the Constitution of Nepal obliges the state to end “all forms of discriminations and oppressions created by the feudal, autocratic, centralised, and unitary system” for the purpose of creating an “egalitarian society on the basis of the principle of proportional inclusion.”

It affirms the sovereignty of “We the people,” who are committed “to fulfil the aspirations for perpetual peace, good governance, development and prosperity through the medium of democratic republican system of governance” and thus “hereby promulgate this Constitution through the Constituent Assembly.” The concluding part seeks to unite the citizens in an enduring sense of duty to uphold the Constitutional norms, not just paying lip service to it.

Parliamentarians and the newly formed provincial legislatures must ask themselves whether, as responsible public servants, they have stood up to the Constitutional promise of maintaining the concept called “rule of law.”

In three years of Constitutional journey, Nepal has witnessed many challenges. The challenges range from instability of government (KP Sharma Oli is the fifth prime minister in office since the inception of 2015 Constitution) to Madhes unrest.

At this backdrop, we need to ask ourselves whether our practice of democracy and governance has been able to advance the core constitutional aims enshrined under the preamble.

What is a preamble?

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“The preamble of any Constitution enshrines the essence of entire document and is like an introduction and preface of a document which explains the purposes and objectives with which the Constitution has been enacted and hence provides the guiding principles to the Constitution,” opines Dr Rajeev Kumar Singh, a faculty member at Constitutional Law in Uttaranchal University, Dehradun.

“Preamble is not only a key to open the mind of the Constitution makers but also a summary of the highest law of the land. It contains the objective for which every political party has to work for, apart from their individual manifestoes. Also, all the wings of government are duty bound to work for the goals which are set out in the preamble,” argues the much-admired commentator of Constitutional Law Dr Mamta Rao, who is well-known for her popular book Law relating to women and children. 

She has a suggestion for Federal Republic of Nepal. “The Nepali government (i.e., both state and centre) should not only work towards respecting the principles of federalism but should also take initiatives to foster the breeds of cooperative federalism. To put it simply, the time is ripe for the state as well as central government to achieve the goals (envisaged under the preamble) in a cooperative manner.”

It should be borne in mind that Nepali federalism is not just meant to ensure distribution of power but is a way out to affirm a continuous cooperation between centre and state for the cause of the Republic,” further says Dr Rao, who heads the Department of Law at RD University, Jabalpur, India. She shows satisfaction with the goals (preamble) of the 2015 charter.

Is the preamble mere academic and hypothetical? The Election Commission has not so far refused registration of a proposed political party on the grounds of non-adherence to the objective of the Constitution.

Dr Singh puts his claims to counter the question. For him, preamble is the place of pride as it embodies ideals and aspirations of a state in a solemn form and it can never be held as a mere hypothetical arrangement.

“It’s a settled notion that the preamble is the mirror of the Constitution which reflects the voice and goals of the national population. The political parties failing to pay heed to the object of the Constitution should be barred from contesting the General Election. It is often seen that the parties who claim to be representative of the people cannot remain firm with their claim once they fail to uphold ideals and principles scripted under preamble,” argues Dr Singh.

He adds that the preamble of the Constitution has succeeded enough to acknowledge the glorious history of various movements on the sovereign soil of Nepal. “It’s a lamp post which shows a vivid path to be followed in a bid to realise ultimate dreams contained in the charter. Although it lacks judicial enforceability in the court of justice, it cannot be construed as mere symbolic or hypothetical arrangement.”

In this context, it’s pertinent to revisit the object of the newly enacted charter. The preamble which is seven-paragraph long seeks to guarantee justice, liberty of thoughts and expressions, equality, egalitarian society, periodic elections, complete press freedom, rule of law, republican system of governance, or principle of proportional inclusion.

“These concepts are surely part of basic structure, which under the law of the land cannot be done away with. So, it’s fundamental duty of ordinary citizens as well as politicians to uphold the objectives of the Constitution—if they are truly dedicated to the Constitution,” says Dr Nidhi Saxena, a faculty of International Law at Sikkim Central University, Gangtok.

However, “There could be political differences or there might be heated exchange of words or muscle flexing on the streets; yet amidst the noise and chaos, what the Constitutional ethos seek to garner is: despite extraordinary diversity and differences along the lines of caste, creed, faith, language or ethnicity, Nepal must remain united as it marches ahead with full democratic credentials,” maintains Dr Vijay Srivastava, a faculty member at Comparative Law in Uttaranchal University, Dehradun.

He further says that the third paragraph of preamble clearly casts an obligation on the state to buy the messages of political movements. After all, the country witnessed a sea change in system of governance under the heat and blaze of political uprisings in the past.

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Underscoring martyrs and fighters as important weapon for leading the state into a new era, Dr Srivastava adds, “The state governments as well as the Centre should stress the determination in giving martyrs their due honour and fulfilling their dreams.”

Importantly, preamble ought not to be a vague expression and different people should not mean different things when they interpret it.

“It’s the foundational principle on which the whole Constitutional philosophy is based. If you are interested in understanding the spirits of Nepali Constitution, you must understand the underlying messages of the preamble,” insists Dr Anupam Jha, a faculty member of International Law at Delhi University.

He has an advice for Nepal. “The newly formed provincial governments should act in pursuance of the Constitutional spirit which is enshrined under the preamble. They should not take the philosophy of the Constitution lightly. They are duty bound to adjust their moves strictly in line with ‘preambular’ object.”

It’s high time to realise that the post-Constitution civic life is yet to adjust with the preamble and fundamental duties of the Constitution.

The author is a student of LL.M (Constitutional Law) at Uttaranchal University, Dehradun, India.

jhajivesh@gmail.com

Published on February 18, 2018

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