Discussion of constitutional amendment

If so, how will the level of consciousness of the society change? There are specific elements that bring about changes in the level of consciousness of the society, they include ease of quality education, development of science and technology, industrialization, exercise of democratic rights and development of critical consciousness. These elements keep the society constantly changing.

In a society that is changing, the constitution should also be constantly changing. If the level of consciousness of the society is on the one hand and the speed of the constitution remains as it is, there will be a conflict between the society and the constitution. Such conflicts are managed by amending the constitution to suit the level of social awareness and the constitution continues to move forward at its own pace. After some time, there will be a change in the level of consciousness of the society and if the constitution can absorb that change and have the power to move forward, the continuity of the constitution will remain with changes or amendments. If the change cannot be assimilated, no one can save that constitution. This dialectical relationship between society and law is the basic basis of social development. It goes on and on. The pace of politics and the constitution also progressed in this way.

When we talk about constitutional amendment here, we do not mean only the amendment made by the Parliament. Even the Supreme Court can develop the Constitution through interpretation. When both the Supreme Court and the Parliament fail to speed up the Constitution based on the changing social consciousness, then the debate on alternatives rather than amendment of the Constitution begins. None of the indicators show that the Nepalese society now wants to go with the alternative of this constitution.

When it comes to law and social development, on 26 May 2009, the Supreme Court Act 2008 was red-stamped and came into force on 8 December 2009. Before that, during the Rana period, in 1997, the Supreme Court had been established by separating the judiciary from the executive. The Chief Court Act was the necessary law for its operation. This was an Act which was amended before it came into force. Why this episode of history is mentioned here is today, 26th of Baisakh, even after Law Day.

More importantly, the consciousness of separating the judiciary from the executive had already developed during the Rana period. But even today, our rulers are deceiving the court by treating the judiciary as an institution of their subordinates and the judges as workers of their own party. Judges who are protected by the constitution's unprecedented freedom and autonomy are also working on the hopes and fears of political parties, why? This is an integral question connected with the amendment of the constitution. May today's Law Day develop a culture of respect for the constitution, law and the judiciary in the ruling class, and may the fear and fear of political parties end among the judges.

Why constitutional amendment?

If it is to save the basic subjects of the constitution (republic, federalism, inclusion, secularism and democracy), then constitutional amendment has become mandatory. As discussed above, this constitution was a product of the awareness level of the society at that time and the armed conflict management. Today society has moved beyond that and there is no conflict. It is said that every decade a new generation emerges as an interventionist in society. Considering this belief as the basis, it is about to reach ten years since the implementation of this constitution. This constitution was the core of the society's consciousness at that time. Due to the development of science and technology and the impact of globalization, today a new generation has entered politics and society with interventionist power. Amendment of the constitution has become essential to address the wishes and aspirations of this generation.

Constitution amendment has become necessary to control the distorted practices seen during this period of about ten years and also for political stability. When the Constituent Assembly was drafting the constitution, this writer also had the opportunity to attend its various committees from time to time. The common concern of all subject committees and leaders was that there should be stability, development and prosperity in the country after the new constitution. With the conclusion that the main reason for the lack of political stability in the past is the right to dissolve the House of Representatives and the constitutional provision to propose a motion of no-confidence at any time (however, this author made a public statement that the right to dissolve the House of Representatives should be given to the Prime Minister with conditions), and those provisions of the traditional parliamentary system were amended in the constitution.

It was arranged that the House of Representatives cannot be dissolved except in cases where the government cannot be formed and no no-confidence motion cannot be raised for two years after the formation of the government and once a no-confidence motion is presented for one year. We also called this the original parliamentary system of Nepal. But to defeat this originality, the political parties started playing the game of forming and overthrowing the government three times a year from the union to the state by using the weapons of natural personal originality. In other words, the party that made the constitution killed the essence of the constitution itself. The question of political stability, which emerged as a common concern during the constitution making, has been stalled today because the beautiful aspects of the constitution have been made ugly to manage the ambitions of the major leaders of major parties. Therefore, constitutional amendment is necessary to control this terrible form.

Political parties must remain strong and unbroken for political stability. Janata Samajwadi Party, Nepal (JSP) is the latest victim of the tendency of political parties to split for the sake of power. There are early signs of this series moving to other teams as well. The smaller the party, the greater the tendency to seek a share of power sharing. It is ironic that in a democracy that operates on the basis of majority vote, a party that does not even get five percent of the votes, claims the position of Prime Minister or Minister and takes the respect of democracy. To stop this distortion, it is necessary to mention in the constitution that only the parliamentary parties of the parties that have a certain percentage of popular votes can be divided. If not, it is certain that the parliamentary system will fail due to the continuous series of dividing parties for the sake of power and democracy itself will be in danger due to continuous instability.

The electoral system should be amended immediately so that the principles of social justice and inclusiveness, which are fundamental subjects of the constitution, are not adversely affected. Otherwise, Parliament, a political platform that exercises the sovereignty vested in the people with the status quo electoral system, will continue to be an ugly resting place for managing its factional leaders, activists, family members, representatives of crony capitalism and interest groups. This fact has been proven by the results of the last two elections and the embarrassing practice and discussion in the parliament.

If parliament is to be truly a place of people's representatives, its credibility, dignity, dignity and competence must be increased. In order to do that, there is an immediate need to amend the electoral system. Whether one likes it or not, we cannot go back to the federal system any time soon. It is also related to geopolitics. The basic structure of the federal system is the state government. The status quo province has become nothing more than a misuse of people's taxes and an opportunity for employment of party leaders and workers. This ten-year exercise has made the state aware that it should be empowered by giving it some more rights. Since the practice of seven provinces has been accepted and the naming dispute has been resolved, the centralized mentality of weakening the provincial structure by fearing such and such provinces must be abandoned. Amendment of the constitution is also necessary to make the province more empowered.

Judiciary is the most reliable and trusted institution of the people in democracy. The Constitution provides full powers to the Judiciary and full independence to the Judges through terms of service. But as the executive is dominating the judiciary through the appointment process, the judges are not free to use the rights protected by the constitution. Judiciary is not as efficient and effective as expected today, amid the pressure of having to live with the hopes and fears of political parties for appointments.

Therefore, the Constitutional Council, which is a party structure that recommends the appointment of the Chief Justice, and the judiciary could not act independently until the end of the practice of the Chief Justice remaining in such a structure. On the other hand, due to structures such as the structure of the Judicial Council recommending the appointment of judges other than the Chief Justice, the unjustified parliamentary hearing system for the parliamentary hearing of the Chief Justice and Supreme Court judges, the development of an independent, competent and effective judiciary envisaged by the Constitution of Nepal has not been possible. When we are witnessing the ugly practice of making the judiciary dependent on political parties through these structures, constitutional amendment is necessary for the independence of the judiciary.

In the same way, the justification of the constitutional bench set up within the Supreme Court to deal with the dispute over the jurisdiction of the Union and the State, the dispute over the jurisdiction of the State and the Province, the qualification and election of the members of the Union and the State Assembly, and the dispute about the law conflicting with the Constitution, has almost ended. There are two main reasons for this. One, due to the pressure of regular cases of the Supreme Court, the Constitutional Bench could not take up the cases in the spare time. It is a shame to say that some of the disputes of the previous elections have not been resolved by the constitutional bench. Two, since the same judges sometimes sit in regular cases and sometimes in the constitutional bench, the expertise of the judges has not been developed. Therefore, if the constitutional court is to be established by amending the constitution or if the constitutional bench is to be maintained, it has become essential to make a constitutional arrangement such that judges are appointed and retired from the same bench only.

Constitution amendment condition

The need, rationale, and some content of this article is presented for public discussion only. It is neither complete nor mature. However, at least now the discussion of constitutional amendment is necessary. The Nepal Bar Association is formally carrying out the courage of the amendment based on the Judiciary-centered theme at the provincial level and this author is also participating as a presenter in most of the provinces, the voice of the legal community of Nepal is seen as one voice on this issue.

Now political parties should not delay in starting the debate on constitutional amendment for political stability, development and prosperity. While the debate on the amendment of the constitution is going on, the debate conducted by the Nepal Bar or the debate conducted by the political parties, the basic content of the current constitution should be kept intact and the constitution should be strengthened and enriched. The fact that the debate on the alternative to this constitution is not the desire of the Nepali people has been confirmed by the public opinion expressed in the two parliamentary elections held under this constitution.

original team in which part?

It is tried to forcefully establish the comment that the political parties in favor of the constitution are status quo and parties that have no idea, organization, history, or contribution as a supposed transformative force. Due to the behavior of the mainstream political parties, the style of organization, the practice of inter-party democracy, the tendency to reach power in any situation or to be unable to imagine a power other than themselves, the air of alleged populism has started to give an impression that the mainstream political parties are really status quo. If that is not the case and they are transformative, now the agenda of occasional reform of the current constitution should become the common agenda of mainstream political parties for the strengthening of the federal democratic republic. They should remain in the same place in the constitutional amendment for political stability, development and prosperity.

If Nepali Congress, a big party at that time, was ready to amend the 2047 constitution, perhaps the violent movement would not have started in the country. Remembering this brief moment of history, even now, if mainstream political parties do not stand up for constitutional amendment, it is impossible to say what will happen to the future of the Federal Democratic Republic. Therefore, there is only one question for the mainstream political parties – are you status quo or change? It should be decided immediately in which quota to stand.