KATHMANDU, Nov 25: While the main opposition party CPN-UML has been stating that the Constitution itself bars any amendment for changing the provincial boundaries, legal experts opine that amendment could be more a political issue than a technical or legal one.
Constitutional law expert Bipin Adhikari said that raising technical issues against amendment is unnecessary, but he added that the political leadership and Parliament itself do not at present have the popular mandate to amend the constitution.
“To argue only on the basis of technicalities is rubbish but the constitution itself is a political issue. The Constituent Assembly, after promulgating the Constitution, transformed into a legislature. Unless the political parties take their amendment agenda to the people and get a fresh popular mandate, nobody has the right to amend it,” Adhikari told Republica.
Bhimarjun Acharya, another constitutional expert, opined that amendment is possible through Parliament, which can, through transitional provisions, exercise the powers of the Federal Parliament.
However, he said that the government has failed to clarify the reasons for a constitution amendment.
“The Constitution could be amended to maintain its timeliness, to correct flaws if any or to fill the gaps in the Constitution itself, but the government is yet to establish why the amendment is needed,” he said.
On the other hand, advocate Deependra Jha, who is a Madhes activist, said that the UML’s argument about constitutional difficulties in amendment is its way of hindering the process after failing the political argument.
“We are now guided by the transitional provisions of the Constitution and arguing that provincial delineations could not be changed until the provincial assemblies are elected makes no sense,” said Jha.
He also raised a moral question over the UML leadership for obstructing the amendment process. “UML Chairman KP Sharma Oli had officially written to the agitating Madhes-based parties when he was prime minister, stating that he was ready for amendment including provincial delineations,” said Jha.
Advocate Tikaram Bhattarai, who is close to UML, said that Article 274 could be a hurdle to amendment. “Article 274 has been put in place so as not to let the federal state cut down the rights of the provinces, and defying it would be a constitutional question,” said Bhattarai.
Article 274 (4) states that an amendment bill related to altering the borders of any province must be sent to the respective state assemby for its consent, and it must be sent within 30 days after introduction in the federal parliament.