Eternity clauses and minority exclusion: Unamendable constitutional nationalism in Nepal
Unamendability will play out differently in contexts that are divided, fragile, and conflict-affected, just as all constitutional institutions will, counting also the constitutional courts enforcing it.[961] Paradoxically, of course, these are also the contexts most in need of unamendability’s purported defensive and state-building promise.
These are the constitutional settings where constitutional democracy is still a work in progress and as such needs shoring up, including via legal and constitutional means. Typically, part of that apparatus will encompass strong commitments to human rights, some version of judicial review, and increasingly, a formal eternity clause.[962]However, again a more holistic interpretation of these constitutional commitments presents a more complicated picture, including of eternity clauses. This can be illustrated by challenging three prominent assumptions often found in understandings of constitution-making processes generally, and of unamendability specifically. The first is an assumption that the constitution-making process will give rise to a more or less consensual outcome, that allows us then to speak of the adopted constitution as an expression of a single, unified, and pacified constituent power.[963] As the embodiment of the will of the people, eternity clauses are therefore not only important symbolic statements, but also to be enforced and
operationalised against attempts at constitutional change. In reality, more often than not, this is not the case: not only do deep divisions and cleavages persist during constitution-making, but whose will, exactly, gets enshrined may not be obvious or indeed desirable. This may be the will of dominant political elites; of the winning side following a conflict; and, given the growing internationalisation of constitution-making, of external actors with varying degrees of influence over domestic politics.[964]
A second assumption is that democratic pluralism and peaceful electoral competition will quickly become the norm, whereas in many fragile, divided, and conflict-affected contexts, single-party dominance or electoral volatility are often the reality instead.
This then is reflected not just in political forces' ability to abuse the amendment procedure, but also in their capacity to entrench their grasp on power, including through the courts. The same dominance risks being embedded in the constitutional text itself where these forces are able to pursue their political goals during the constitution-making process as well. For example, Maoist openness to multiparty democracy during Nepal's conflict went largely ignored by a government seeking to end the conflict with the former's military defeat.[965] Even where some degree of power-sharing is sought, this may be done instrumentally and without key elites such as the military relinquishing their dominance, as was the case in Myanmar.[966]Finally, I have already mentioned a third assumption in the previous section: one of constitutional coherence and of a pacified constitutional identity, the latter instantiated in amendment rules and eternity clauses among other sites in the constitutional text.[967] The messy reality of constitutional politics around constitution-making, including deal-making and the possibility of domination by one set of forces seeking to entrench their position, cannot escape unamendable provisions. Thus, they are not always the constitutional ordering mechanism they are supposed to be, at the top of a neat constitutional hierarchy, and also do not always or only enshrine uncontested values and core principles of liberal constitutionalism. The most blatant example of this in a post-conflict context are constitutionalised amnesties and immunities for past coup and wartime leaders, which have on occasion been “eternalised.”[968]
We could briefly return to Thailand's example here. The 2007 Thai Constitution was contested by democratic forces in the country as the result of the 2006 coup, but nevertheless embraced by many as necessary “to get the country going.”[969]
Eternity clauses as tools 265 The hope was to be able to draft a truly “popular” constitution later.
The relatively low bar for constitutional amendment initially set in the constitution would have been reassuring in this sense. This reminds us that constitution-making is a creature of compromise, and drafting decisions must be seen diachronically. Rather than a single, easily identifiable constituent moment encapsulating a constituent will (including via an eternity clause), constitution-making often reflects a concatenation of decisions, some express in the draft, others not, and of expectations, some of permanence and some of change.[970] The Thai Constitutional Court's invocation of original constituent power to block the 2013 constitutional amendment that would have restored a fully-elected senate, seen in its broader constitutional political context, therefore becomes problematic. Such arguments would be even more disputable regarding the 2017 Constitution, which was adopted only once new king Vajiralongkorn's demand for recognition of his power to intervene in politics was enshrined in the draft, post-referendum approval. “Whose will does this constitution represent?”,[971] indeed.Another instructive example here would be that of Nepal. The 2015 Constitution of Nepal contains a doubly entrenched eternity clause. Article 274(1) declares: “This Constitution shall not be amended in way that contravenes with self-rule of Nepal, sovereignty, territorial integrity and sovereignty vested in people.” Article 274(2) then protects the former from amendment. Such double unamendability is rarer but not unheard of, with the case of Honduras's eternity clause - which on top of double entrenchment also contained criminal sanctions for even proposing prohibited constitutional amendments - perhaps most known.[972] The Nepalese eternity clause can only be fully understood in context, one that stretches back decades given the country's constitutional instability, as well as holistically, in conjunction with other constitutional provisions on sovereignty, territory, and minority rights. It is only then that its exclusionary potential is revealed.
The 2015 Constitution was the culmination of a protracted constitution-making process. Emerging after three decades of monarchic autocracy, the country's 1990 Constitution was meant to pave the way to democracy and guarantee fundamental rights.[973] A decade-long civil war between 1996 and 2006 led to the abrogation of the 1990 Constitution in 2007, replaced by an Interim Constitution that was meant to be quickly superseded by a new draft prepared by a constituent assembly.[974] The 240-year-old Hindu monarchy was also abolished in 2008. The new constitution was to remove the hegemony of the upper caste communities that had been entrenched in the 1990 document, as well as to finally achieve
social justice and the political inclusion of previously marginalised groups and communities.[975] It was also to seal the transition to a secular federal republic.[976] Despite repeated extensions, this first constituent process (2008-12) collapsed.[977] The current constitution is the result of a second constituent process operating between 2013 and 2015.[978]
Nepal's is thus a case of non-linear constitutional negotiations, as well as illustrating the difficulties of pursuing peace-building alongside constitutionbuilding.[979] Its 2015 Constitution has been the object of significant contestation, which helps contextualise the otherwise innocuous-seeming constitutional eternity clause. One core locus of contestation has been citizenship. Previous progress on allowing the passing of citizenship along matrilineal lines was reversed in the 2015 Constitution.[980] The latter contains exclusionary citizenship provisions that constrain Nepali women's ability to pass on their citizenship to their children (Part 2 of the Constitution). This choice, in spite of years of protest and mobilisation by the women's movement, is steeped in fears over the “Indianization” of Nepal via frequent cross-border marriages between Madhesi women and Indian men in the Terai region.[981] In other words, a sovereigntist territorial logic permeates gendered citizenship arrangements that perpetuate exclusion and discrimination.
Another focal point of contestation has been the constitutionalisation of federalism in the new constitution (Preamble and Article 4(1)). Federalism was first introduced in Nepal in 2007 in its interim constitution following mass protests,
Eternity clauses as tools 267 and has from the onset been enmeshed with identity politics.[982] During negotiations in the second constituent assembly, opinion was divided between those looking to federalism as a vehicle to secure the inclusion of previously marginalised communities and those fearing it would destabilise and, in its ethnic form, Balkanise Nepalese society.[983] Protests surrounding federal demands continued throughout the workings of the assembly, which only managed to fast-track its drafting in the aftermath of the 2015 earthquakes.[984] The compromise eventually reached set up three levels of government - federal, provincial, and local - and, faced with continued protests and amendments tabled before the draft had even been ratified, actually named and demarcated the federal units.[985]
As Yaniv Roznai and I have shown elsewhere, eternity clauses regarding territory - such as declaring territorial integrity unamendable, as Article 274(1) of Nepal's Constitution also does - can be ambiguous and unenforceable.[986] However, they do typically indicate deep anxieties about the constitutional selfdefinition of the state and adopt a defensive stance towards perceived infringements on sovereignty from either within or without. I have also argued elsewhere that these types of eternity clauses often also entrench a nation-state logic and that, rather than remaining symbolic statements of state sovereignty, can be and have been enforced judicially to block constitutional overhaul.[987]
The legal continuities of constitutional nationalism in Nepal mean that an ethnocultural notion of the nation, initially transposed into the 1990 constitutional settlement, continues to permeate the constitutional system.[988] The 2015 Constitution has not only not quelled contestation, especially around the state's federal features and citizenship, but contestation has continued and now
plays out in the arena of constitutional amendment.
The Madhesi community in particular is fighting for greater constitutional recognition and inclusion, as well as for more proportionate representation in parliament. As a consequence, the constitution was amended in January 2016, a mere four months after its ratification, to respond to some of these demands.[989] However, because the amendment had failed to address their core demand of a fresh demarcation of provincial boundaries, the Madhesi parties walked out of the vote on the bill. In June 2020, a second amendment was passed, enshrining in the constitution a new map to be used in the Coat of Arms of Nepal.[990] The new map depicts three regions, disputed with India, as part of Nepalese territory. The amendment bill was certified by Nepal's President as not trespassing against the eternity clause and signed into law in spite of India's objections that it amounted to an “artificial enlargement” of national borders.[991] Other as yet unsuccessful attempts at constitutional amendment include pushing for recognition of linguistic diversity, remedying the discriminatory citizenship rules, and again increasing the proportional representation of the Madhesi community.[992] Crucially then, these dynamics persist in spite of the eternity clause. There have even been calls to amend Article 274 itself, insofar as it is perceived to hinder the revision of provincial boundaries.[993]14.4