Federalism and Human Rights in Nepal's Constitutional Design: Challenges for the Judiciary
Constitutionalism and Good Governance: Western and Eastern perspectives. D. Ehlers, H. Glaser and K. Prokati. Baden Baden, Nomos. 2014 1: 193-203, Forthcoming
10 Pages Posted: 27 Nov 2013 Last revised: 9 Dec 2013
Date Written: 2013
The article addresses one of the difficult tasks of the Nepal Judiciary, which it shares in part with the Constituent Assembly: how to interpret the idea and mechanisms of federalism in ways that are faithful to the best interests of the Nepal people. The CA must create the constitution of a democratic, human rights-respecting Nepal republic, in light of how the constitution will in turn be interpreted and applied by the judiciary. The reflections in this article concern four varieties of federal elements, discussing arguments in favor and against each drawn from an interpretation of other states’ experiences. Two of the four are territorial: Constitutional – an entrenched split of powers – and Political: decentralised autonomy. Two are non-territorial: Minority Rights, and Minority Representation in common decision making bodies. Some of these arguments and lessons may be helpful also for Nepal’s challenges, two features of which are especially noteworthy: there are very many different groups that must be accommodated fairly. Such And members of these groups very often live side by side on the same territory. Human rights protections combined with federal elements of Nepal’s new constitution must serve to prevent future domination, especially by the centres, over these many ethnic groups and castes. The new constitution therefore creates several new tasks and challenges for Nepal’s judiciary, several of which are identified.
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