Bypassing the constitution through political consensus will not only jeopardise it, but also endanger federalism and democracy
Sep 8, 2016- Advocate Dipendra Jha’s op-ed on constitutional amendment on 31 August in this paper and an article about the same issue in Nepal magazine a couple of weeks ago show that a much needed debate has started on our constitution. The objective of this write-up is to take the debate forward to widen the understanding of this pertinent issue.
In his piece, Jha argues that the current Legislature-Parliament cannot amend the constitution to change the provincial boundaries because Article 274 of the constitution requires the involvement of Provincial Legislatures to amend the provisions. Provincial involvement in amending the constitutional provisions related to them is a core component of federalism, and its purpose is to safeguard their interests from unilateral alteration.
Whether the constitution should be amended to change the provincial boundaries is a political question. But how it is amended is a purely constitutional matter. The constitution must be amended exactly the way prescribed in the statute itself.
Objective or conservative
The first argument made in Jha’s op-ed is that ‘the amendment of the constitution to change the provincial boundary is not possible without provincial involvement’ is not an objective but a conservative interpretation of the constitution. Interpretation, according to Oxford Dictionary of Law, is the process of determining the true meaning of a written document. Article 274 (4) and (7) provide that the bill related with alteration of the boundaries of any provinces or matters set forth in Schedule 6 must be sent to the Provincial Assemblies for their consent and if the majority of the Assemblies (at least four out of seven) reject the bill, it shall be inactive. Article 296 (3) mandates the existing Legislature-Parliament to act as the Federal Parliament until the elections of the first House of Representative. Thus, the existing Parliament is competent enough to amend the constitutional provisions other than the alteration of the provincial boundaries and the provincial list of competencies and inadmissible provisions set forth in Article 274 (1).
It has been further argued that Article 296 (4) mandates the existing Parliament to act as Provincial Assemblies until they are formed. But this provision clearly gives the Parliament the authority to only make laws related to the provincial competencies. So the limited power given to the Parliament cannot be extended to amend the constitution on behalf of Provincial Assemblies. It has also been claimed that the constitution can be amended by invoking Article 305. This is a transitional provision kept in the constitution for the situation where the statute does not provide an answer to a question which obstructs its implementation. This is for the rarest of rare occasion and the current situation does not warrant it. This provision has been misused in the past, which has weakened Nepal’s constitutionalism. The proper way to amend the constitution is through the Provincial Assemblies. For that, the elections of the Provincial Assemblies have to take place.
It is important to understand the underlying principle behind this constitution—it cannot be unilaterally amended and requires the consent of the majority of the units as this is the core characteristic of a federal system. This is why federal constitutions are less amenable to amendments than are unitary constitutions. Most of the federal constitutions require the consent of federal units in amending all provisions, while some federal constitutions like those of Switzerland and Australia have more rigorous processes, including holding a referendum. But some federal constitutions require the participation of federal units in some provisions only. The Indian constitution is a case in point. Article 268 of the Indian constitution makes a list of four types of provisions that require the ratification of the amendment of such provisions by the Legislative Assemblies of not fewer than half of the states. The Indian constitution also makes the requirement that similar participation of the states is needed to amend this amendment provision as well.
A wrong precedent
In our case, provincial participation is needed only to amend the constitutional provisions which are related to provincial boundaries and list of competencies; there is no requirement of provincial participation to amend the amendment provision. So technically speaking, amending the amendment provision by taking out the mandatory provincial participation is possible. But this is inadvisable for two reasons. First, the amendment provision in any constitution is its core constant—a basic structure for an important reason that it sets the most important rule of the game. Second, withdrawing provincial involvement in amending the constitutional provisions that directly affect them is against the notion of federalism. If the federalist forces agree to compromise the core principle of federalism for short-term goals, it will set a very wrong precedent.
So amending the provisions through the current Parliament and securing a wider political consensus to address the demands of the Madhes-based political forces as per the constitutionally prescribed way is the best option. A Federal Commission consisting of independent experts can be formed as per Article 295 of the constitution to help the political parties reach a decision on issues related to provincial boundaries. This will be a widely agreeable and sustainable solution.
The first Constituent Assembly got
dissolved without producing a constitution simply because the political forces could not agree on the boundary issue. The second Constituent Assembly almost suffered a similar fate. All political forces should make sure that the constitution, which was a product of a prolonged, painful and expensive process, does not fail. Bypassing the constitution by following a non-constitutional way of the so-called ‘political consensus’ will not only jeopardise this constitution, but also endanger federalism and democracy in the country.
Karki is a constitutional lawyer
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