Amend the Charter for clarity, brevity

The need for constitutional amendments arises when its provisions are found to be ambiguous. A constitution deserves to be amended for the sake of clarity and brevity. It is presumed that such amendments address societal changes and align with the expectation of the people.

The 2015 Constitution of Nepal is the first charter promulgated by the elected representatives at the Constituent Assembly. It marked a significant milestone, establishing a robust framework for federalism and inclusivity. While celebrating Constitution Day, the stakeholders could advocate for necessary amendments to strengthen the constitutional democracy, as this young republic deserves a prosperous future.

This article delves into some of the provisions that could be amended to bring about reforms and ensure greater clarity.

Fundamental rights

The fundamental rights (FR) should have enforcement value, not mere ornamental value. The rights which could be enforced in true and material sense could be recognized as FR and others could be put under Directive Principles, which are subject to economic viability of the state. 

For instance, rights of consumer, right to employment, right to food, or right to housing could be shifted to Directive Principles. Take an example of India. Initially, right to property was a fundamental right in India under Article 19(1)(f) but later in 1978 by virtue of 44th amendment it was omitted and declared a constitutional right under Article 300A.

Electoral reformation

Under the current constitutional electoral regime, every political party has the opportunity to contest the election. However, securing a clear majority remains a challenging task for any party or alliance. This difficulty impacts the effective implementation of programs and policies, which can have significant long-term consequences.  

Of the 165 electoral constituencies, there could be some reserved for marginalized communities, in line with inclusive policy. This would compel the political parties to give tickets to candidates from diverse ethnic groups within the first-past-the-post (FPTP) category. Ultimately, such a measure would promote fair representation of marginalized community members in the House of Representatives (HoR).

Moreover, the weightage for the FPTP category could be increased to 70 percent, while the proportional representation weightage could be adjusted to 30 percent. This change would ensure fair representation of underprivileged groups in the legislature and simultaneously lessen the likelihood of a hung parliament. In addition, the strength of HoR could be reduced to 205, like that of the 1990 constitution. 

Constitutional bench

The mandatory presence of Chief Justice (CJ) at the Constitutional Bench (CB) may not be appropriate, possible and practical in every given circumstance. If the CJ has a recusal in a case presented before the CB, what would be the alternative then? There would be unreasonable delays in such case proceedings. 

Article 137 could be amended and envisage that the senior-most judge at the apex court shall preside over the CB in special circumstances.

Also, the current constitutional provision, which mandates that the CB has jurisdiction over the electoral disputes relating to polls to federal parliament and state assembly elections, ought to be reconsidered. The CB has dismissed almost all the electoral dispute cases, save for Rabi Lamichhane's case where the CB had annulled Lamichhane's status as a lawmaker, citing invalid citizenship he had produced to fight the election. 

It would be better to confer the power on the High Courts to adjudicate poll disputes, for such a move would help the parties to lodge the cases in their respective provinces. It would be time and cost effective too. 

Meanwhile, there could be an amendment under Article 137, providing powers to the High Courts to test the constitutional validity of legislations drafted by local bodies and provinces both. The full-bench comprising three judges could adjudicate the matter. In India, the High Courts are entrusted with the power to judicially review the provincial laws. 

Also, the High Courts could have original jurisdiction in any disputes between local bodies within their respective provinces.  

Parliamentary hearing

The parliamentary hearing for the CJ and SC judges goes against the spirit of separation of powers. This provision represents an attack on the independence of the judiciary by political parties. Interestingly, the CJ must undergo parliamentary hearings twice: once before being appointed as judge at SC and again when being elevated to the office of CJ. This derogatory provision of Article 292 ought to be amended. 

Judicial council

The composition of the Judicial Council (JC), a powerful body responsible for the appointment, transfer and disciplinary action against judges, is deeply influenced by politics. This is because the Law Minister; an expert appointed by the President on the recommendation of the Prime Minister; and an advocate appointed by the President on the recommendation of the Bar Association constitute the majority of its members with political nature.

The JC is a five-member body that includes the CJ as Chairperson and the senior-most judge of the SC as one of its members. However, with three members having political affiliations, their majority enables political intervention to persist. To address this issue, Article 153 could be amended to reduce the influence of political interest groups in the judicial appointment process, thereby enhancing the integrity of the judiciary. One more senior judge of SC could be accommodated under the Council replacing an expert who represents the government. 

Constitutional commissions

The Commissions envisaged under the constitution don’t necessarily look similar in terms of status. There appear three different forms of Commissions with different status. Simply put, the Commissions, including Commission for the Investigation of Abuse of Authority, outlined under Part 21-26 look like constitutional commission. Under Part-27, National Women Commission, Dalit Commission and National Inclusion Commission appear as having similar status while other four commissions, including that of Madheshi Commission, look like a mere legal entity and thereby, they could be dealt under a federal law. 

The constitution provides that there shall be review of Commissions provided under Part-27 after 10 years of the enforcement of the constitution. However, if the reviews could occur every ten years, then it would ensure the commissions remain effective and relevant over the time.

The Commissions formed under Part-27 have almost similar powers and functions. They could be merged under the National Inclusion Commission and other Commissions (as envisaged under Part-27) could be established under the federal laws, if needed. This will alleviate unnecessary financial burden and streamline efforts to mainstream weaker sections.  

Civil service

The civil service of the province and local bodies should be brought within the jurisdiction of the provincial civil service. There could be amendments under Article 285(3). This will bolster administrative federalism. 

Directive principle

Article 51(j)(8) envisages that the indigenous community members would be “participated in the decision making process that concerns them”. However, the approach is different in case of Madhesi people. Article 51(j)(10) provides that special arrangements would be made for the Madheshi and backward communities for ensuring equal distribution of benefits and opportunities. The constitution does not mandate that the Madheshi and other targeted communities would be “participated in the decision making process that concerns them”.

Way forward

Since the adoption of the Constitution in 2015, it has become clear that many provisions lack clarity and brevity.  On several occasions, it appears that the words used under statute are grammatically incorrect and could be refined by experts. The provision dealing with the Judicial Committee of municipalities needs clarification, as local bodies are increasingly claiming jurisdiction comparable to regular courts. Also, an article could be added to deal with Local Court. 

The constitution is silent as to whether the consent of provinces or local bodies is required when amending the legislative powers of local government, as outlined under Schedule-VIII. The constitutional framework could declare the Vice president as the ex-officio chair of the Upper House, as is the case in India. Also, the provision relating to government formation under Article 76 is in want of amendment. The issues, which don’t have long-term importance, could be removed from directive principles.   

The constitutional amendment could be a step in the right direction toward reclaiming the original vision for Nepal, as the people deserve to live in a democratic polity that respects constitutionalism and ensures stability and the rule of law. 

The authors have been working as judicial officers with the Supreme Court of Nepal