Amendment Necessary to give Constitution a Meaning

Abhishek JhaOff-board faction of Madhesi leaders and newly formed government made an attempt to harmonize the long-going political impasse. The three point agreement signed by the newly in-boarded and long off-boarded leaders, agreed to proceed further with the second constitutional amendment. The obstinate demand for the second constitutional amendment comes forward in the backdrop of short-falling of the first amendment. The Madhesi Morcha claims that, it didn’t address the substantive demand of redesigning federal boundaries and change in provision on citizenship.

Morcha argues that the second amendment have both legal and moral accountability to serve. Morcha considers that, to address the issue of federal demarcation is the moral obligation of the government because the gerrymandering of the states still gives demographic privileges to the politically included group and sidelines the excluded group as they stand in minority by demographics. Similarly to address the issue of citizenship related discriminatory provision is a legal obligation of the government. The implication of the citizenship provisions undermines women’s citizenship rights and discriminates a citizen by naturalization in degree of privilege.

The constitution of Nepal got proclaimed amid the controversies. The constitution making process had a prima facie wrong. It was drafted by a very selective alignment of regressive political group. The denial stand for the demand acceptability called forth disowning of the constitution. A large section of southern plain was in grave agitation. The requirement of the day was to bring all on board, but the chief whips of major political party pushed it through.

The first constitutional amendment was not a whole-hearted accepted path of the Oli-led government. Instead it was force driven. The coalition of inert leftist, a section of populists and fringed political parties, whose proposal of reminder altercation over the preamble of the constitution, formed a very reprehensible tie. This tie tenaciously colored the whole of the scenario in ultra-nationalistic semblance. Prime Minister Oli in public-forums evidenced the whipped constitution as consensual. This helped the government and the parliament to impose expressed limitation on the amendment. Though the amendment addressed some major demands of the people, the nationalistic cover disguised the substantial demand of demarcation and citizenship issue.

The step of crusading the forced constitution resulted to irreparable loss to the nation. The extra-judicial killing of more than 50 people in Madhesh evinced minimum sensitivity of the government towards human rights. The use of unsanctioned power in a political movement fueled the intensity of the protestors. Then the nation faced six-moth long logjam. The growing ignorance of rule of law, invited vested political play, both internal and external.

The illustrations are not new to the Nepalese trend of politics. The aristocratic cliques always play fraud on the plebiscitarian principle of democracy. The growing nature of exclusivity among the political parties, have miniaturized the political system. Both Morcha and the government led by Maiosts have a fundamental question to answer. Why is it necessary to go ahead with second constitutional amendment? As the new federal constitution is concerned, it cannot evolve in the deep-rooted exclusivity. The state needs to adopt an inclusive and consolidated character to let the constitution evolve.

As the security hand of the state has already subjugated the dissenting voices, Madhesi, Janjati and other excluded groups now seems less exertive to take back the recourse of revolution. Yet the amendment is necessary to prevent the outraged groups from relapsing into the conflict and to achieve peace and political stability.

A republican constitution lays the sovereignty with the people, united as a nation under common territory. Likewise the amenability of the constitution is the extension of the sovereignty of the people. To amend constitution by no means entails the insertion of any instrument or machinery of the government, which would work according to the political requirement. People have the right to meet new challenges over time without taking recourse to extra-constitutional methods like revolution.

The first amendment of the constitution leaned forward to fill the ownership vacuum, but the implied deterrence instilled with the over-arching fear of losing national sovereignty, halted its unfeigned purpose to serve. Second constitutional amendment is necessary for rebutting the vague definition of nationalism, which the Oli-led establishment impersonated. The preamble of amendment bill should imprint a comprehensive identity of being a Nepali.

The non-consensual, yet a majority holding constitution, got promulgated when a large section of Nepalese were standing in the opposite pole. They opposed the adoption of exclusive and fast-tracked mechanism for the constitution making process. Obscured panoptic of participation has raised apparent glib on the implementation side of the constitution. The second amendment should not only be done, but it has to be seen as well.

Legal realism evinces that an active interpretation of the constitution in sociological approach can deputize the ambiguous constructiveness of the constitutional terms. The last moment interpolation of conciliated typographic interests in the constitutional draft contradicts with the constitutive indispensability. The new charter is yet to make headway to solidify Federal Republic Nepal. The new government should tend to extend the spectra of amendment, so that credibility of the people retains back on the constitution and its propagated values.

Hon. Prime Minister, an amendment is never meant to diminish the efficacy of the constitution. Instead, a just, reasonable and fair attempt to amend the constitution is a step forward towards creating a progressive and inclusive nation. Hence, I humbly request you to make the constitution more conciliatory, less ambiguous and majorly acceptable.

(Student of Law @ Kathmandu University School of Law, Dhulikhel)


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