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Nepal witnessed a change of constitution for 6 times in its 68-year long history of constitutional development. The struggle to get a constitution that embodies a democratic representative system and put an end to the monarchial revival happened only in the year 2015. This constitution embraced the principles of republicanism, federalism, secularism. In spite of the long-drawn struggle to fruition of a stable constitution, it received flack from various indigenous ethnic groups and from women.

The controversy roots to Article 304 which states any law which is inconsistent with this constitution shall ipso facto be invalid to the extent of such inconsistency, after one year of the date on which the first session of the federal parliament set forth in this constitution is held. The federal parliament met on March 5 of 2018. Thus, the constitutional deadline for revising all laws was on March 4, 2019. This is similar to Article 13 of the Constitution of India but for the buffer time given in the former.

There are 174 legislations of the 339 legislations that are inconsistent with the constitution. Of the 174 contradicting laws, 22 laws needed to entirely replaced.[1] The respective ministries should prepare the draft amendments. The Government has to provide agenda for the parliamentary business, and it didn’t prepare a single draft amendment until there were only less than three months of time before the constitutional deadline. It would relevant to understand the legal implications due to this failure of the government to act in time. Various questions arise as to the operation of laws without the authority of the constitution or even conflicting laws; how would the Court interpret given the federal structure.

The rich jurisprudence on this type of situation can be easily viewed surmounting upon Article 13 of the Constitution of India. It envisages two important doctrines; Doctrine of severability and Doctrine of eclipse. The former propounds the whole legislation need not be held invalid but for the provisions inconsistent with the constitution. It is possible if the inconsistent part is separable from the whole law.[2] The latter doctrine doesn’t render a law invalid ipso facto but is unenforceable for the time being. Once the restriction is lifted, the law can be enforced with the vigour as if it is not inconsistent with the constitution. Applying these two principles, the legal vacuum created in Nepal could be stabilised to an extent, however, a long term solution in the form of a constitutional amendment and legislative amendments is imperative.

The constitution can be understood in two ways; (1) a superior law, unchangeable by ordinary means or at least on a level with ordinary legislative acts (2) like any other legislations is alterable according to the whims and fancies of the legislature. If the first view is taken, then any law inconsistent with the constitution is not a law. If the latter view is taken, then “written constitution are absurd attempts on the part of the people to limit a power in its own nature illimitable…”[3] A similar situation arose in America as to the repugnancy of the laws with the constitution, and which should the court regard paramount. It was held in a catena of cases that it is the duty of the court to interpret the rule before applying, and when two laws conflict with each other, it is incumbent upon the court to decide which would take precedence. This is the very essence of judicial duty. Therefore, it was held that “the constitution is superior to any ordinary acts of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply.”[4]

The federal parliament has to amend the inconsistent laws as per constitutional mandate. If the Parliament chooses to amend the Article 304 itself, it would be counter-productive. It would be open for the federal parliament to change the constitution as per its whims and fancies, and the parliament would create a precedent for covering up the governmental failures. As a consequence, the dream of getting a stable constitution would remain just a dream to the people of Nepal. After all, the constitution is the will of the people, if it is to be meddled with, the will of the people would quiver.


[1] Binod Ghimire, “Ministry Finds 174 Laws Clashing with Statute” The Kathmandu Post Dec 5, 2018, available at: https://kathmandupost.com/miscellaneous/2018/12/05/ministry-finds-174-laws-clashing-with-statute

[2] A.K. Gopalan v. State of Madras, ; State of Bombay v. F.N. Balsara, ; R.M.D.C v. Union of India,

[3] Charles B. Elliot, “The Legislature and the Courts: The Power to Declare Statutes Unconstitutional” Political Science Quarterly, Vol. 5, No. 2 (Jun., 1890), pp. 224-258, 247

[4] Marbury v. Madison, 1 Cranch, 137. See also 131 U.S. Reports, Appendix, p. ccxxxv.

1 Comment

  1. Darius Olinsky 25th March 2020 at 6:50 AM

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    Reply

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