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🇳🇵 Nepal /Elections & Politics

The caveats of amending a constitution

From Kathmandu Post · () English

Summarized and contextualized by DistantNews.

At a glance

Analysis Sources not specified Context piece
  • Amending a constitution presents a paradox: the power to change it is granted by the constitution itself.
  • Constitutional theory distinguishes between constituent power (founding a constitution) and constituted power (amending it), with the latter being subordinate.
  • Amendments must not subvert the constitution's fundamental principles or the original intent of the people who established it.

The process of amending a constitution grapples with a fundamental paradox: the authority to alter the founding document is itself conferred by that document. This delicate balance is being tested globally as nations consider changes to their core charters.

A constitution confers the authority to alter it. To what extent, then, can that power go before it subverts the authority that gave it?

— Article AuthorIntroducing the central paradox of constitutional amendment.

Constitutional theory differentiates between "constituent power," the original authority of a sovereign people to establish a constitution, and "constituted power," the ordinary powers created by the constitution, including the ability to amend it. The power to amend is delegated and subordinate; it allows for refinement but not for undermining the foundational settlement.

A power to amend is always a delegated one, subordinate to the delegating power. They cannot do so to change the founding settlement.

— Article AuthorExplaining the limits of amendment power based on constitutional theory.

Legal history, such as Chief Justice John Marshall's views in 1803, emphasizes that the people's right to establish government is paramount and should not be easily interfered with. A constitution is intended to endure beyond the immediate will of successive majorities.

The provision of Article 274 bars any modification which may prejudice the popular sovereignty or territorial integrity, independence and sovereignty of Nepal.

— Article AuthorReferencing a specific constitutional safeguard in Nepal.

Nepal's own constitution reflects this, with Article 274 barring modifications that prejudice national sovereignty or territorial integrity. While procedural conditions allow for amendments, the substance must not encroach upon fundamental principles. Any change infringing upon these core tenets would effectively be the enactment of a new constitution, a power reserved for the original constituent authority, not the delegated power to amend.

Where a change infringes upon the fundamental principles of a Constitution, it is no longer an amendment but the enacting of a new Constitution; and this can be done only by the original Constitutional Power, not by the delega

— Article AuthorConcluding the argument on the limits of constitutional amendment.
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Originally published by Kathmandu Post. Summarized and contextualized by our editorial team with added local perspective. Read our editorial standards.

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