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Kathmandu Friday November 09, 2001 Kartik 24, 2058.
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Constitution day
Yesterday, the country observed its eleventh Constitution
day. This is an occasion for pondering anew the objectives of that basic law and
re-examining those provisions that need amendment. Such an exercise will help foster and
safeguard pluralistic values, good governance, transparency in decision-making, prudence,
impartiality and all the other virtues that make for a good polity. The 1990 constitution
has generated its share of controversy. Many constitutional experts, including political
leaders of both ruling and opposition parties, have raised their voice for amendment. This
is quite apart from the Maoist demand for the scrapping of the constitution altogether to
make way for a constituent assembly. Lawyers and political leaders say certain provisions
should have been included in the constitution to underscore the democratic rights of every
individual. Debate on constitutional matters has also occurred in relation to the role and
composition of the upper house of parliament, the role of the army, relations between
executive, legislative and judicial branches of government, the issue of judicial
corruption, the question of provisions governing succession to the throne, care taker
governments during national elections, local bodies and other matters. Had provisions on
local bodies for instance been included in the constitution, the government would not have
stumbled while legislating the Decentralization Bill in 1998.
Unlike the Indian constitution, which consists of 395
articles and has seen over ninety amendments in five decades, our constitution consists of
23 parts with 133 articles. The US constitution is even shorter and has been amended only
about a dozen times in the past two hundred odd years. These vital statistics reflect in
part the far greater complexity of mid-twentieth century India compared to a new country
in a largely new and open continent towards the end of the eighteenth century, and partly
the wisdom of the framers of the respective constitutions. But the point is that
constitutions do change with the changing times. They inevitably undergo mutations. That
is not in doubt. What is important in this respect is the quality of the public debate
that should and must precede any amendment. Ours is still a virgin constitution, and any
amendment should set a healthy precedent in terms of the gravity of the accompanying
intellectual exercise. Having said that it should be added that human rights, adult
franchise, parliamentary rule and constitutional monarchy are the defining elements of our
constitution. Such statutory elements cannot be changed through any normal process of
amendment. To contemplate change of that order may require contemplation of a constituent
assembly after all. However, going the constituent assembly way may be too divisive
an exercise and the grass roots level national debate that such an exercise presumes would
be largely inconclusive. The public at large would not have the sophistication to grapple
with the issues involved and would have to leave things to the experts any way. But the
best argument for not taking that route is that our constitution as it exists has by and
large functioned reasonably well and will continue to do so given timely amendments to
rectify the evident shortcomings that have become evident.
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