Nepali Congress and CPN (UML) have formed a new government with the main agenda of amending the Constitution. On Sunday (July 21) KP Sharma Oli presented the seven-point agreement reached between UML and NC while taking the vote of confidence. One of the main points of the agreement is to review and amend the Constitution.
When the two parties formed a ruling alliance on July 1, a rumor circulated that former Chief Justice Kalyan Shrestha would be made the coordinator of the Constitution Review Committee. When Prime Minister Oli secured a two-thirds majority of votes of confidence last Sunday, he also presented the road map that the new ruling would run the government till 2084 BS. As the Constitution approaches its tenth anniversary, statute review is poised to become a central political issue. Against this backdrop, Nealkhabar talked to former Chief Justice Kalyan Shrestha for his views. Excerpts:
With the issue of the constitution amendment, the power equation has changed in the country, two big bigwigs who played a crucial role in drafting the constitution have formed a ruling coalition. How do you take it?
The process of constitutional reform seems to have engendered a new breed of solution-oriented thinking, largely driven by widespread calls for review. Dialogue between parties has established a shared commitment to reform, though the path forward remains unclear.
Which areas of the Constitution require amendment?
It would be immature to say that these are the areas right now. Decades of experience have shown that factors such as complexity and feasibility must be considered. The next steps will be determined by the parties' discussions, their perspectives, and the overall process.
Currently, the topic of proportional election system and the structure of the province is being raised. Is this the main issue?
Inclusiveness, proportional representation, and federalism are indeed complex and multifaceted issues, leading to ongoing debates and discussions. Concerned stakeholders will be allowed to present their views, opinions, concerns, and experiences in the course of amendments. There will be no prohibition or acceptance of a particular topic as such.
You have long been saying that this Constitution could not deliver and needs to be reviewed. Which areas of the Constitution do you think to be amended?
A comprehensive review of the entire document is required. This necessitates examining every part without omission. Any necessary amendments should be made during this comprehensive process.
The Constitution of Nepal, 1990 was drafted by an expert commission. Primarily, a political lens was applied when the Constitution was promulgated by the Constituent Assembly in 2015. Does it now require an expert's scrutiny?
The focus differs between what experts do and what politicians do. While experts often emphasize constitutional and academic principles, politicians tend to focus on political considerations.Naturally, a constitution drafted by a particular community is likely to favor that group's interests to some extent. The 2047 constitution, crafted by experts, may have had a lesser political emphasis compared to the current constitution, which was produced by an elected Constituent Assembly. This shift in focus is tacit given the differing nature of the bodies involved.
Unlike the 1990 Constitution, which maintained the existing state structure, the current Constitution has redefined the state's structure. What other key differences exist between the two?
To accurately compare the 1990 and 2015 constitutions, we must examine the distinct mandates under which they were created. The 1990 constitution was primarily focused on transitioning from an autocratic monarchy to a constitutional monarchy and establishing a multi-party system. The commission tasked with drafting it had a limited scope, confined to these two fundamental changes. State restructuring was not on the agenda. In contrast, the 2015 constitution aimed to comprehensively overhaul the state. It addressed the relationship between the state and its citizens, the distribution of power among different levels of government, the roles of state institutions, and the overall character of the state. Given these vastly different objectives, direct comparisons between the two constitutions may be misleading. It's essential to consider the unique historical and political contexts in which they were produced.
Are there international examples of Constituent Assembly-made constitutions being subjected to expert review?
The Constitution was formally endorsed by the Constituent Assembly. In many other countries, such a fundamental document would be subsequently ratified through a popular referendum. Did Nepal adopt this practice? Furthermore, the process of amending the Constitution is strictly legislative. While expert input is valuable, the ultimate authority rests with the parliament. Any proposed changes must follow established legal procedures. An expert commission serves as an advisory body, not a decision-making one. Its role is to provide recommendations, not dictate outcomes. The responsibility for constitutional amendments lies solely with the parliament and, in some cases, the state assemblies. Therefore, the idea of sidestepping the legislative process is unacceptable.
The 2047 Constitution could not provide stability. A hung parliament was formed. Many anomalies and distortions were observed. To stop them, some 'caps' (preventive measures) were introduced in the constitution, but they did not make any sense. Why is there still the same kind of instability?
The history can only be defined. Any point of view, principle, or theory cannot be good or bad by itself. It is considered good if it yielded good outcomes and taken as bad when it did not produce good results. Principles come tested over time. A belief or personal opinion, no matter how eloquently expressed, cannot be considered a principle until its practical application has been tested over time.
The power balance that existed at the time of the Constitution's promulgation has evolved. Is it reasonable to conclude that this shift in power dynamics is driving the push for constitutional reform?
The power balance is an ever-changing process and so is the Constitution. It is not permanent and irrefutable, nor is it irrevocable. It changes over time and is subjected to review as per the demands of society. Some issues require immediate attention, while others necessitate a judicial ruling. And in some situations, it should be addressed in line with principles. Hence, not a single system is permanent, nor will it remain so. When the society itself is changeable, the Constitution and the system will not remain permanent.
Along with the social dynamics, its meaning and its necessity change over time. The meaning of terminologies changes. If the meaning of the Constitution is understood and interpreted according to the time and context, its amendment may not be necessary. If scholars and its users can comprehend its meaning according to the time and context, it will yield sustainability, stability, and less risky changes in society. Therefore, the Constitution should be rewritten, and reinterpreted according to the time and context. But again, it is not a piece of cake.
The Constitution amendment process is not a piece of cake. Given the complex process requiring coordination between provincial to national bodies, it is questionable whether such a feat is achievable in the current political climate.
The Constitution outlines the specific procedures for amendments. Undoubtedly, the input of all stakeholders is crucial to this process. The designated bodies will carry out the necessary actions as stipulated.
How much time will it take to complete the process, approximately?
I’m not qualified to provide a definitive answer to this complex issue. It’s possible that political parties might oppose constitutional amendments, and the specifics of review and mandate determination remain unclear. As a concerned citizen, I can only express my apprehensions. Overreaching or offering suggestions would likely be counterproductive and could create unnecessary interference.
