Amendment is possible

- Dipendra Jha, Kathmandu

Aug 31, 2016-

Conservative interpretation of the constitution that allows room to impose subjective and elitist values should be avoided 

Some people are saying that Article 274 of the constitution bars amendments concerning revisions to the provincial boundaries without the approval of the respective State Assembly. The argument received wide publicity after a lawyer Budhi Karki wrote a magazine article saying that it was impossible to change state boundaries. This is not an objective interpretation of the constitution. The statute cannot be interpreted without looking at the political consequences and precedents. The Madhesis and Tharus, who have faced discrimination for centuries, are agitating against the constitution. They want a fair share in the state for which they believe the provincial boundaries must be revised and other provisions that can guarantee equality in the real sense must be amended. 

Enough space

Can’t we amend the constitution so that the provincial boundaries can be redrawn? If a political understanding is reached between the major political stakeholders, there is enough space in the constitution to amend its related provisions. Karki’s contention that the constitution cannot be amended only complicates the situation and creates obstacles to holding elections which is key to implementing the document. Article 274 (4) says, “If a bill introduced pursuant to Clause (2) is related with the alteration in the borders of any state or matters set forth in Schedule 6, the Speaker or the Chairperson of the concerned House must send that bill to the State Assembly for its consent, within thirty days after its introduction in the Federal Parliament.”

Those who argue against Parliament’s power to amend the constitution relating to the provision of provincial boundaries say it cannot revise them since the provincial assemblies have not been formed yet. Here’s what Article 296 (3) has to say, “The Legislature Parliament set forth in Clause (1) shall perform the business required to be performed by the Federal Parliament in accordance with this constitution until election to the House of Representatives is held pursuant to this constitution.”

Moreover, Article 296 (4) states, “The legislature power of the State Assembly with respect to matters set forth in Schedule 6 shall, upon the commencement of this constitution, be vested in the Legislature-Parliament set forth in Clause (1) until the State Assembly is formed. Any law so made shall be inoperative in relation to that State after one year of the date set forth in this constitution.” Schedule 6 covers 21 areas but does not state anything about provincial boundaries. So my argument is that the Federal Parliament where the powers of the state assemblies are vested during the transitional phase, can easily amend the constitution and revise the provincial boundaries.

Available options

If people still think that Parliament cannot amend the constitution to revise the provincial boundaries as demanded by the agitating Madhesi, Tharu and Janajati forces, the major parties could amend Article 274 (4) itself to change the phrasing of the provision. If they do not want to do that, they can invoke Article 305 which provides for removing constitutional difficulties. As far as Article 274 is concerned, only Sub-article (1) is non-amendable. Article 274 (1) states, “No amendment shall be made to this constitution in a manner to be prejudicial to the sovereignty, territorial integrity, independence of Nepal and sovereignty vested in the people.” This means the provision related to altering the borders can easily be amended.

The constitutional clause related to removing difficulties was first invoked by the previous KP Sharma Oli government when a no-trust motion was moved in Parliament against him a few weeks ago. Oli first argued that there was no provision for the formation of a new government under the transitional provisions of the constitution. His Cabinet later invoked Article 305 allowing the formation of a new government. The clause related to removing difficulties was invoked twice in the Interim Parliament, and the last time it was invoked was when the parties formed an Interim Council of Ministers under the then chief justice Khil Raj Regmi.

Let’s also remember how Parliament elected Bidya Devi Bhandari as the new President last year. Article 62 of the constitution states that the President shall be elected through an electoral college consisting of the members of the Federal Parliament and State Assemblies, but this provision was not implemented on the sole ground that it did not apply during the transitional phase. So my argument is that as per Article 296, Parliament can amend the constitution to redraw the provincial boundaries. But if others do not agree, there are other options: Amend Article 274 to change the phrasing of the constitution to allow revisions to the provincial boundaries or invoke Article 305 to do so.

Time to ponder

The point is that there is a solution in the constitution, but there can be no solution if somebody uses constitutional ambiguity or lack of clarity as a pretext to not find a solution. Ambiguous articles in the constitution that complicate the political process should be ignored. The constitution does not say read me broadly or read me narrowly. It depends on individual choice whether to choose a progressive interpretation or a conservative one.

If any of the big three political parties cite constitutional hurdles to revise the provincial boundaries, it would only give people a reason to doubt their attempts to fast-track the constitution making process. We have heard political leaders, particularly leaders of the CPN-UML, say: “Let’s make the constitution first; if there is any issue, we can resolve them from the transformed Parliament.” 

The law is important, but politics should remain as the decisive power in a democratic society. The constitution makes politics happen within agreed rules but does not supersede it. Blocking political solutions on a technical legal ground is more likely to weaken democracy than stop wrongdoings. Thus, if we want to end the political 

deadlock by revising the provincial boundaries as a way to opening the door for local elections, a conservative interpretation of the constitution that allows room to impose subjective and elitist values should be avoided. 

Jha is a practicing lawyer at the Supreme Court

Published: 31-08-2016 11:22

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