Constitutional and Political Development of Nepal

Constitution: Meaning, Necessity, and Types

Meaning of Constitution

• Fundamental Law: The constitution is the fundamental law of a country. Any law conflicting with it is void to the extent of the conflict.
• Foundation of the Nation: It establishes the foundation for freedom, equality, and justice.
• Exercise of State Power: The constitution determines the method of exercising sovereignty and state power.
• Legitimacy of Government: It defines the structure of the government and legitimizes state actions.
• Origin: The term "constitution" was first used in the United Kingdom, where it evolved gradually.
• Global Examples: Constitutions in India and the USA were created by constituent assemblies.
• Dicey: "A constitution is a set of laws that directly or indirectly determines the distribution and exercise of sovereign power."
• Aristotle: "A constitution is the way of life chosen by the state itself."
• France: Before the French Revolution, King Henry II considered rules governing the relationship between the king and clergy as the constitution.

Necessity of a Constitution

1. Strengthening national unity and prosperity.
2. Ensuring citizens' rights.
3. Establishing separation and balance of powers.
4. Defining the political, economic, and geographical structure of the state.
5. Including all societal groups in the mainstream of the state.

Types of Constitutions

Constitutions can be classified based on six criteria:

1. Nature of the Constitution:
   • Written vs. Unwritten:
     • Written: Codified in a single document, e.g., India (world’s longest written constitution) and the USA (world’s shortest written constitution).
     • Unwritten: Based on customs, traditions, judicial decisions, parliamentary acts, charters, and religious texts, e.g., the UK.
   • Rigid vs. Flexible:
     • Rigid: Complex amendment process, e.g., the USA.
     • Flexible: Simple amendment process, e.g., the UK.
     • Nepal’s constitution is a mixed type, amendable by a two-thirds majority, neither fully rigid nor flexible.
   • Enacted vs. Evolved:
     • Enacted: Created on a specific date by a constituent body, e.g., most countries.
     • Evolved: Developed gradually over time, e.g., the UK.
2. Nature of the State
3. Nature of the Legislature
4. Nature of the Executive
5. Nature of the Judiciary
6. Nature of the Head of State

Characteristics of a Good Constitution

• Clearly written and codified.
• Specifies key state structures and functions.
• Concise and uses universally understandable language.
• Includes state organs, fundamental rights, policies, and principles.
• Protects and addresses the interests of all societal groups.
• Mixed in nature (neither too rigid nor too flexible).
• Democratic and inclusive.
• Thomas Paine: "Where a constitution cannot be produced, there is none."
• Peter de Salter: Magna Carta, Petitions of Right, and Bill of Rights are the "Bible" of the UK constitution.

Constitutional Development of Nepal

Nepal’s constitutional history began in 2004 BS (1947 CE). Seven constitutions have been enacted to date.

1. Nepal Government Legal Act, 2004 BS (1947 CE)

• Background: Announced by Rana Prime Minister Padma Shamsher on Magh 13, 2004 BS, influenced by India’s independence movement and anti-Rana agitation.
• Features:
  • Nepal’s first written constitution.
  • 6 parts, 68 articles, 1 schedule.
  • Bhardari Sabha (30 members nominated by Sri 3).
  • Chief Court, bicameral legislature, emergency powers with Sri 3, petition council, fundamental rights, local bodies, free primary education, and auditor general.
• Status: Announced to be effective from Baishakh 1, 2005 BS, but never implemented.

2. Interim Constitution of Nepal, 2007 BS (1951 CE)

• Issued: By King Tribhuvan on Falgun 7, 2007 BS, effective from Chaitra 29, 2007 BS.
• Features:
  • Second constitution, first to be implemented.
  • 7 parts, 74 articles, 4 chapters.
  • Advisory assembly, chief court, auditor general, public service commission, and election commission.
  • Executive powers with Sri 5 and cabinet, fundamental rights, and directive principles.
  • Amended 6 times.

3. Constitution of the Kingdom of Nepal, 2015 BS (1959 CE)

• Issued: By King Mahendra on Falgun 1, 2015 BS, effective from Asar 16, 2016 BS.
• Features:
  • Third constitution, second to be implemented.
  • 10 parts, 77 articles, 6 schedules.
  • Executive powers with Sri 5, Nepali language recognized as national language, constitution as supreme law.
  • Expanded fundamental rights, continuation of auditor general, public service commission, and election commission.
  • Cabinet formed under the leadership of the House of Representatives.

4. Constitution of Nepal, 2019 BS (1962 CE)

• Issued: By King Mahendra on Paush 1, 2019 BS, introducing the partyless Panchayat system.
• Features:
  • 20 parts, 97 articles, 6 schedules.
  • Ban on political parties, emergency powers with the king, king as supreme authority.
  • Supreme Court with extraordinary powers, birth-based and naturalized citizenship, local bodies with Panchayat, adult suffrage, and anti-corruption commission.
  • Amended 3 times.

5. Constitution of the Kingdom of Nepal, 2047 BS (1990 CE)

• Issued: On Kartik 23, 2047 BS, based on recommendations of a commission led by Bishwanath Upadhyaya.
• Features:
  • End of Panchayat system, restoration of multi-party democracy.
  • 23 parts, 133 articles, 3 schedules.
  • Sovereignty with the people, constitutional monarchy, extensive human and fundamental rights (equality, freedom, press, property, education, religion, etc.), constitutional council.

6. Interim Constitution of Nepal, 2063 BS (2007 CE)

• Issued: On Magh 1, 2063 BS, based on recommendations of a committee led by Laxman Prasad Aryal.
• Features:
  • 25 parts, 167 articles, 4 schedules.
  • Result of the 2062-63 People’s Movement and Maoist insurgency.
  • Unicameral legislature, extensive fundamental rights, National Human Rights Commission as a constitutional body.
  • End of monarchy, establishment of a republic.

7. Constitution of Nepal, 2072 BS (2015 CE)

• Issued: On Ashoj 3, 2072 BS by the Constituent Assembly with 90% support.
• Features:
  • 35 parts, 308 articles, 9 schedules.
  • Federal democratic republic, secularism, inclusivity, and seven provinces.
  • Mixed electoral system, bicameral federal legislature (House of Representatives and National Assembly).
  • President and Vice-President from different genders or communities.

Political Development of Nepal

Revolution of 2007 BS (1951 CE)

• Background: After the Kot Massacre of 1903 BS, Jung Bahadur Rana’s rise led to 104 years of Rana rule.
• Initiation: Nepali National Congress (2003 BS) and Nepal Democratic Congress (2005 BS) merged on Chaitra 20, 2006 BS. Armed struggle decided at Bairgania Conference on Kartik 21, 2007 BS.
• Outcome: Tripartite agreement in Delhi on Falgun 7, 2007 BS, declaration of democracy, and end of Rana rule.
• Causes:
  • Political: Authoritarian Rana rule, powerless king, corruption, denial of rights.
  • Economic: National treasury as Rana’s personal property, stalled development, unequal land distribution.
  • Social: Class discrimination, religious exploitation, social evils.
  • International: King Tribhuvan’s support, India’s independence, China’s dominance over Tibet, lack of support from Britain and China.

Major Political Events

• 2008 Mangsir 1: Government formed under Matrika Prasad Koirala.
• 2015 Falgun 7: First general election, Nepali Congress won 74 of 109 seats.
• 2017 Paush 1: B.P. Koirala’s government dissolved, parties banned, Panchayat system established.
• 2036 Jestha 10: Referendum announced; Panchayat won 55%, multi-party 45%.
• 2046 Falgun 7: People’s Movement by Nepali Congress and United Left Front, end of Panchayat system.
• 2062-63: 19-day People’s Movement, parliament restored, secular state declared.
• 2063 Mangsir 5: Comprehensive Peace Agreement between government and Maoists.
• Constituent Assembly Elections:
  • 2064 Chaitra 28: First election, Maoists (240 seats), Congress (114), UML (110).
  • 2070 Mangsir 4: Second election, Congress (196), UML (175), Maoists (80).
• 2065 Jestha 15: End of monarchy, establishment of federal republic.

Constituent Assembly Elections

First Constituent Assembly (2064 BS / 2008 CE)

• Total voters: ~1.7 crore.
• Results: Maoists (240), Congress (114), UML (110), Madhesi People’s Rights Forum (52).
• Achievement: End of monarchy, republic declared, but failed to draft a constitution.

Second Constituent Assembly (2070 BS / 2013 CE)

• Total voters: 1,21,47,865; polling stations: 10,013.
• Participating parties: 120 direct, 122 proportional.
• Results: Congress (196), UML (175), Maoists (80), RPP Nepal (24).
• Achievement: Constitution of Nepal promulgated on Ashoj 3, 2072 BS.