Article 139 of the Italian Constitution prohibits any amendment on the Republican form of Government, which was the greatest achievement that Italians thought they made after abolishing the autocratic monarchy. The Indian Supreme Court in a historic judgment of 1973 in the Keshavanand Bharati Case introduced this ‘basic feature’ notion in India that the Constituent Assembly had missed to incorporate in the original text of the Indian Constitution. But the court categorically stated that some constitutional principles are the ‘basic foundation and structure’ inherent in the Constitution that the Supreme Court will continue to discover in the text as and when needed. And the journey of discovery has continued as is reflected in recent cases, including Minerva Mills Case and recent Glanrock Estate Case. This basic feature concept as inducted by Nepal’s 1990 and 2007 Constitutions has now been excluded in the proposed Draft Constitution of 2015. This exclusion is bound to activate the Nepal’s Supreme Court to induct some important democratic elements, such as republicanism, democratic elections and judicial independence, as essential basic features through case jurisprudence in future.
A Constitution is drafted for future, not for the past. Hence, it has to be a dynamic document that effectively responds to the needs and challenges of the present time and future generations. Amending process of a Constitution, in reality, is a peaceful means of constitutional reform. A clause in the text of any written Constitutions is thus inserted for duly amending any or some selected provisions through a prescribed procedure in the legislature. Unwritten texts or assemblage of constitutional laws are usually amended through an easy process by parliament, like UK or New Zealand. Whereas many countries with written charters have adopted different mechanisms and procedures to bring about changes in the Constitution in their respective countries and it may be simple in some and very complex in others. Changes do take place in Constitutions and constitutional laws even if the amendment procedure has been made very rigid. Simply because requirements of a society and people keep changing, the laws also must follow and timely respond to that change. If a normal process is denied, extra-constitutional or revolutionary process takes over, as it has happened in Nepal with the 1990 Constitution that failed to respond to the changes and aspirations of the changing Nepalese society despite its amending provisions.
Many democratic countries have, therefore, used their wisdom through appropriate devices, formal or informal, to accommodate desired constitutional changes as the changing time so demands. Experiences of our neighbouring India shows, over 100 formal amendments have already been made in its short constitutional life of 65 years. In USA , the oldest Constitution of the world had to immediately add important bill of rights through first ten amendments right after promulgation, and later made further additions to include almost 27 amendments in its over 200 years of life. But more than formal processes, several changes have been indirectly made in the skeletal Constitution through volumes of judicial interpretations by giving new meanings to the same provision, mainly bill of rights and commerce clause. Thus, amendment process is in fact a legitimately designed formal constitutional reform process, complemented by the emergence of powerful judiciary, and it evolves as the time passes over as has been demonstrated by many democratic countries, including USA, India and Australia. In these countries, judiciary and other political institutions have played dominant roles in modernizing the Constitution through judicial wisdom of interpretation and pragmatic approaches of developing ‘constitutional conventions’ and practices as well. Even academic discourses and analytical writings of legal scholars have helped strengthen constitutional understandings and applications whenever there are grey areas that demand clarifications. Such informal and indirect constitutional reform processes are great assets.
In the proposed Draft Constitution of Nepal, Article 269 prescribes a formal amending process which is a subject matter of brief comments in this note for academic discussions. Although judicial interpretations and constitutional conventions are as good as formal amendment process in Nepal like much other common law based democratic countries, the new provision of Article 269 in the proposed draft however acutely runs short of a huge jump already advanced by judicial reform dynamism. Sometime however judiciary and political forces have crossed over each other’s dividing line through excessive judicial activism under PILs or through extra-constitutional adventurism by crossing the prescribed constitutional boundaries as happened while appointing the Chief Justice as Chief Executive Head of the country by overtly exercising ‘removal of difficulties’ clause in 2013.
Few observations that must draw urgent attention of the Constitution draftsmen on the proposed draft (Article 269) include:
• Flexible but an odd process of amendment:
Interestingly, except the change in the abstract content specified under of Article 269 (1), almost every achievement of the so called seven decade long democratic struggles, including republicanism, federalism and rule of law principles, independence of judiciary and inclusive representative institutions, can be amended under the proposed Article 269 simply by two-third majority of the federal legislature, i.e. by 214 out of 320 members of the proposed two chambers, if leading political parties so agree. An autocratic ruler commanding two-third majority support in the two Houses may brutally send the whole Constitution in the dust bin. In this situation, we might end up inviting Charles Taylor or Robert Mugabe of Africa in Nepal through electoral process under this provision. Nepal should have itself learned a lesson from the victory of party-less Panchayat regime through deceptive referendum in 1979. The approach of flexibility without any checks and balances may sometime lead to disaster in developing democracies where a leadership mostly tends to stick to power. Missing elements of constitutionalism should thus be closely examined in all Articles, including 269.Hence, some constraints of constitutional principles or co-equal organs or judicial opinion, on the amendment of basic democratic and rule of law values in the Constitution must be entrenched. A blank cheque of amendment power in all matters needs a revision.
• Denial of the basic feature notion:
The new draft Constitution has totally rejected the basic feature notion in it, and back tracked from what was elevated by the 1990 and 2007 Constitutions, and judicial interpretations. The provision stating the Clause 1 and Proviso of Clause 2 of Article 269 as unamendable is fallacious, and substantially does not carry any sense. The notion of Clause 1 of Article 269 is symbolic and abstract, and politically inherent in any democratic nation -state, and it is not a separable ingredient. Even if it is not mentioned in a Constitution, it does not affect the whole framework and constitutional spirit, as they are inherently entrenched and unamendable by its very nature. It does not have to be stated at all.
The implication of creating such a flexible device may eventually weaken the Constitution and prompt to activate the Judiciary to safeguard the underlying values of the written Constitution if there is an onslaught on the constitutional and the rule of law principles. The height and institutional legacy carried by the Nepal’s judiciary in the past may not hesitate to discard such a constitutional reverse gear. This provision will obviously drag judiciary in the political thicket in defence of the rule of law and constitutionalism. In order to respect some core values of 70-year-long democratic struggles, such as republican form of Government, periodic democratic elections, judicial independence, basic fabrics of devolution, etc. may thus be made unamendable or subject to due restrictive procedure and scrutiny.
• President’s Authentication:
‘Mandatory’ language has been used in the last clause of Article 269 that the ‘President’ authenticates the Constitution Amending Bill approved by both Houses, and in some cases further endorsed by federal units, within fifteen days. But the provision is silent about what happens if the President delays or does not authenticate? Will that Bill be useless? Delaying strategy has been found normally made by Head of States to defeat a Bill if s/he is not satisfied. The President may thus be given power to send back the Bill once with reasons for advice of reconsideration. And suimate adoption may take place if the President does not authenticate second time. Lastly, it may be a ground for impeachment if s/he does not sign second time. Or else, the Parliamentary Secretariat may put seal on her/his behalf if the President delays the Bill second time also.
All these stated core values and some aspects are quite important part of Nepali constitutionalism that have already taken roots in the soil as basic features, hence, need well conserved.
(The author is a senior research officer at the Australian Catholic University, Sydney. Opinion expressed is her personal.)