Nepal's constitutional path: reform versus amendment

Nepal's government has established a committee to draft a discussion paper on constitutional amendment, a move that has drawn attention due to the Rashtriya Swatantra Party's (RSP) recent General Assembly outcomes. The RSP's resolutions signal firm stances on critical constitutional matters, including the abolition of provincial assemblies and the shift to a directly elected executive. This suggests that the ongoing consultations might be treated as a procedural step rather than a genuine opportunity for shaping constitutional choices and fostering public ownership.

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Such a development gives the impression that consultations are being treated as a formality rather than as offering a genuine opportunity to shape constitutional choices and foster wider public ownership.

The RSP's approach contrasts with the inclusive and independent constitutional review process agreed upon between Gen Z protesters and the government last year. The article emphasizes the distinction between 'constitutional amendment' and 'constitutional reform.' Amendment alters the Constitution's text, while reform aims to enhance the overall constitutional system's effectiveness and uphold its underlying morality and spirit in practice.

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Constitutional reform is a broad-based process of improving or strengthening the ‘constitutional system as a whole’. By contrast, constitutional amendment is only one element of the broader reform process that may also involve genuine implementation, progressive constitutional interpretation, legislative reform, institutional restructuring and strengthening, changes in constitutional and administrative practice, and the deepening of democratic culture.

Given Nepal's decade-long challenges in implementing its Constitution, the article argues for a focus on constitutional reform. This broader process can include progressive interpretation, legislative changes, institutional strengthening, and fostering a democratic culture, in addition to amendments. The intent of parliamentary review, as outlined in Article 265, suggests that any amendment should follow a thorough review of the Constitution's practical operation, a consideration crucial for Nepal's ongoing democratic development.

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While constitutional amendment changes what the Constitution says, constitutional reform seeks to improve how the constitutional system works and how the constitutional morality or spirit underlying its provisions is upheld in their implementation.