Nepal's constitution
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This article is written by Sankalpita Pal, from Symbiosis Law School, Pune. This article attempts to explain Nepal’s journey through the making of its Constitution and a detailed analysis of the events that led to Nepal transitioning from Absolute Monarchy to Democracy. 

Introduction

Nepal is one of India’s neighbour countries. It is a landlocked nation situated in the foothills of Himalaya. It has a politically and geographically important position as it lies between India and China. It consists of various small principalities. These principalities are further classified as Basis, Malla Kingdoms of Kathmandu Valley, the Sen Kingdom and Chaubasis. 

Democracy in Nepal has had a tumultuous history. Almost six constitutions have been promulgated in Nepal till date. The current Constitution was established only in 2015. 

In the year of 1951, Nepal attained democracy for the first time. This was preceded by an armed revolution in order to dethrone the autocratic Rana Dynasty. The primary movement was launched by ‘Nepali Congress’. The Nepali Congress demanded constitutional democracy. King Tribhuvan took the responsibility for the throne after the success of the movement. In a historic event, he announced the formation of an interim constitution in order to govern the Interim Government and provide a temporary legislative framework. The interim constitution would be in force until a proper Constituent Assembly (CA) was instituted. Once the CA would have been elected, a new constitution would be drafted.

There are various intermediate events which have had an immense impact on how eventually Nepal became a constitutional democracy. This article will provide a detailed overview of the same. 

A brief timeline on Nepal’s Constitutional history

For the sake of convenience and clarity, it is important to chalk out a brief overview of Nepal’s political history. Nepal has had a turbulent political history. The following is a timeline of the major historic events that have shaped Nepal’s present political situation. 

1946– The establishment of the Nepali Congress Party.

1948– Nepal’s Constitution was promulgated for the very first time. 

1950– The Nepali Congress launched a movement for demanding democracy. The movement became a success and King Tribhuvan (from Shah Dynasty) took charge. However, he had to seek asylum in India as political violence led him to flee Nepal. A 2-year -old King Gyanendra (from the Rana Dynasty) ascended the throne. 

1951– An understanding was reached in Delhi and King Tribhuvan was restored to the throne. This time, however, King Tribhuvan resorted to absolute monarchy. The Rana regime officially ended with the formation of a proper government by the Nepalese Congress Party. 

1955– Unfortunately King Tribhuvan died and King Mahendra ascended the throne. 

1959– Once again a new constitution was promulgated. General elections take place for the first time. The Nepali Congress wins the general elections with an absolute majority. 

1960– King Mahendra banned all political parties, the parliament of Nepal and even the constitution. 

1990– After the death of King Mahendra in 1972, King Birendra ascended the throne. The Nepali Congress had started a movement demanding democracy. Due to this movement, King Birendra was forced to lift the ban on political parties. However, King Birendra announced that a new constitution would be formed in order to facilitate the functioning of democratic government under a constitutional monarchy. 

1991– Once again the Nepali Congress Party won the first-ever democratic elections of Nepal. G.P. Koirala took charge as he became the premier. 

1996– A Maoist movement was launched. The Maoists conducted an armed struggle in order to try to put an end to the monarchy. 

2001– The most tragic royal family murder takes place. King Birendra along with members of the royal family are shot dead in a shootout headed by the crown prince Dipendra. He also died right after the shoot-out. Consequently, Prince Gyanendra ascends the throne. Maoist rebels one again evoked violent strife. 

2005– King Gyanendra takes absolute power and invokes Special emergency powers and assumes direct control. He successfully crushed the Maoist movement. However, persuaded by international pressure he lifts the emergency after 3 months.

2007– After 2 years of constant political instability another uprising began amongst the ethnic minorities (Madhesi population). The Madhesis resided in the southern plains of Nepal. The Ethnic minorities were demanding the inclusion of a federal system. They also demanded new electoral constituencies in the constitution and greater opportunity of representation of the Madhesis in all government bodies. Madhesis wanted their own autonomous state. 

2010– The drafting of a new constitution was extended to May 2011. The Coalition government was at heads with the Maoist opposition. Prime Minister Madhav Kumar resigned from his post under Maoist pressure. 

2011– After Madhav Kumar resigned, Jhalnath Khanal was elected as the PM of Nepal. Once again the coalition government was still not able to reach a compromise with the Maoist opposition regarding the formation of a new constitution. The Parliament finally elected Maoist party’s Baburam Bhattari as PM. He promised that he would bring about a cross-party consensus in order to draft the new constitution.

2012– Prime Minister Bhattari’s promise was followed by the dissolution of the parliament as politicians couldn’t come to a consensus with regard to the formation of a new constitution. New elections were set to take place as a result of the dissolution. 

2014– Sushil Koirala became the PM of Nepal after seeking coalition support. He was the leader of the Nepali Congress.

2015– A new federal Constitution was unveiled.

Intermediate events in history that led to the formation of the present constitution

Early history

  • Prithvi Narayan Shah conquests 

Prithvi Narayan Shah was one of the most eminent Gorkha rulers in Nepal’s early political history. He ruled a small territory amidst the Chaubasis. Prithvi Narayan Shah ascended the Gorkha throne in 1742 A.D. He wanted to conquer all the divided principalities and unify them under one strong kingdom. Historians have pointed out that the motive behind his plan of unification of divided provinces was not patriotism or nationalism however, he only desired to extend the territory of his Gorkha kingdom. His motive was conceived through the pattern of his conquests and regime. After him, a long line of the Shah dynasty continued.

In 1804, Ran Bahadur Shah (Ex-king) who was in Banaras for a long time returned to Nepal. He returned as the regent of his son Girvana and acquired all State powers. Bhimsen Thapa was appointed by Ran Bahadur Shah as the Prime Minister of Nepal. Queen Rajarajeshwari was banished from his kingdom to Helambu village. Ran Bhadushah declared her as guilty of trading Nepal to the British as she was friendly with them.

Later on, King Ran Bahadur was murdered by his stepbrother. His death was definitely politically motivated. Bhimsen Thapa still remained in power as the Prime Minister of Nepal. 

  • Treaty of Sugauli 

The colonial rulers started eyeing territories of Nepal. Prime Minister Bhim Thapa, on the other hand, started expanding the dominion of Nepal. He was the Prime Minister between 1806 to 1837. During his period as the PM, the Nepalese forces took over Palpa Butwal and 22 Saran Villages. These villages were situated near the frontiers of Gorakhpur borders in India. The British started to claim their sovereignty over these territories. Thapa was fully aware of the British military strength and wanted to avoid any kind of war.

On the 2nd of December, 1815, a compromise was chalked out. A treaty was signed between the Colonial power (East India Company) and Nepal at Sugauli. Even though Prime Minister Thapa was keen on this treaty the then King of Nepal outrightly refused to ratify the treaty. Consequently, the British invaded Nepal. The Colonial rulers pressurised the Nepal government to accept and ratify the Sugauli treaty. Finally, the Nepal government unwillingly ratified the treaty.

  • Fall of Bhimsen Thapa 

In 1816, King Girvana died at an early age of 19. His son Rajendra Bikram Shah (minor) ascended the throne and Queen Lalita Tripura Sundari Devi became his regent. Meanwhile, PM Thapa was enjoying absolute powers. However, after Queen Lalita’s death, King Rajendra Bikram Shah started looking after all State affairs himself. He had attained his age of majority by then. All this while Thapa was looking after all the state affairs himself. In order to gain the powers enjoyed by PM Thapa, the King imprisoned him on some false charges. PM Thapa committed suicide during his incarceration.

  • Chaotic Political Situation 

Post Prime Minister Bhimsen Thapa’s suicide, Nepal experienced one of the most chaotic political situations in its history. The King Rajendra Bikram was unsuccessful in consolidating the ruling power due to lack of support from his queens. Senior queen Samrajya Laxmi supported the Pandes and on the other hand junior queen, Rajya Laxmi supported the Thapas. The crown prince also started interfering in the administration.  The King was also threatened and pressurised by the crown prince to abdicate the throne in his favour. Finally, King Rajendra Bikram sent out a Royal proclamation that pronounced Queen Rajya Laxmi as the de facto ruler of Nepal.

Evolution and growth of political parties in Nepal     

In the early 20th century, the citizens of Nepal were gradually realising their political consciousness. The main motivation behind the rise in political consciousness was the impactful events of the first and second World Wars. The events of WWII caused a political uproar in Nepal. Various political parties started forming and promoting their manifestos and agendas.  

In 1936, Nepal Praja Parishad was secretly formed by some young Nepalese. It was led by Tanka Prasad Acharya. Their main aim was to put an end to the oppressive Rana regime.

All India Nepali Congress 

The formation of Nepal Praja Parishad was followed by the educated young Nepalese forming a political party with the objective of establishing a Constitutional democracy in Nepal. B.P. Koirala was one of the advocates of this radical idea. He was one of those politically conscious Nepalese who vehemently opposed the Rana Regime. He issued the statement ‘call for Nepal’ which was published in Searchlight newspaper. He encouraged the Nepalese youth to struggle and abolish the Rana regime. Finally, on 31 October 1946, his efforts led to the formation of the All India Nepali Congress. In early 1947, the Nepali Sangh and the All India Gorkha League combined to form the Nepali National Congress.

A civil disobedience movement was launched by the Nepali National Congress on the 13th of April, 1947. Expectantly, the main objective of the civil disobedience movement was to pressurise the Ranas to release the party leaders. There were other pushing factors as to why the political party launched the movement. Earlier, the Nepali National Congress demanded that the Rana regime must grant civil liberties to the needy Nepalese citizens. However, the Nepalese government didn’t accept the demands of the political party. Consequently, the civil disobedience movement was launched.

Nepal Democratic Congress 

In 1948, a new political party named the Nepal Democratic Congress was established in Calcutta. This was one of the most important parties in Nepal’s political history.

Background of experiment with democracy

1950 movement for democratization

The Nepali Congress party, right after its formation, decided to launch an armed rebellion against the Rana rule. In September 1950, this historic decision was taken by the Nepali Congress at a conference in Bairgania. The main objective of the revolution was to overthrow the Rana autocracy.

The Mukti Sena, a liberation Army, was set up by the Nepali Congress in order to launch an armed revolution. Several Nepali youths joined the Mukti Sena song with several Nepalis residing in India; students,  ex-Gurkha servicemen, ex-serviceman of Indian National Army were enlisted in the Mukhti Sena. The Mukti Sena was not exactly an organized army. In fact, it was not an army in the strict sense, as extraordinary physical fitness was not required in order to be recruited. Even committed and dedicated novices were admitted like any well-trained army professional. The government of Burma (now Myanmar) provided weaponry support to the Mukti Sena.

Nepal was divided into 4 main zones: eastern, western, southern and central in order to facilitate the launch of the armed revolution. Suvarna Shamsher became the Commander-in-chief of Mukti Sena.

King Tribhuwan: Escaped to India 

An intense conflict started brewing between the Monarch and the Rana PM Mohan Shamsher. As a result of the political tension, King Tribhuwan felt unsafe in the palace. At that point of time, he was being pressured into giving his approval of the death sentence, imposed by the Ranas. Therefore, Kong Tribhuwan escaped the royal palace along with all his family members. Eventually, he took asylum in the Indian Embassy situated at Kathmandu. On the 11th of November 1950, he directly flew to New Delhi. 

The Delhi Agreement 

India intervened looking at the kind of struggle their neighbouring country was going through. The revolution launched by the Nepali Congress was in full swing when India started offering to mediate between the Rana regime and the Nepali Congress. There were 3 parties involved in the negotiations: King Tribhuvan, the Ranas and the Nepali Congress.  Finally, on February 12, 1950, the 3 parties reached an agreement. This agreement was known as the Delhi Compromise or Delhi Agreement.

Due to this agreement, King Tribhuvan’s reign in Nepal was restored. On February 18, 1950, the king made a historic announcement for the formation of a government by an elected constituent assembly. The same day he appointed a ten-member cabinet consisting of 5 members belonging to the Rana family and 5 from the Nepali Congress members. Mohan Shumsher, however, continued to be the Prime Minister of Nepal. As a result of this compromise the Rana rule officially ended. A new cabinet was established.

Period of Democracy 1951-55 (Development of the Interim Constitution)

The Delhi Agreement plays an important role in the making of the Constitution of Nepal. This Compromise marked the restoration of king Tribhuvan to the throne. Moreover, it put an end to the oppressive and arbitrary rule of the Rana clan. On the red-letter date of February 18, 1951, a historic declaration was made that assured a definite democratic transition. The democratisation would only be possible when the Country’s political transition is based on principles adopted in the new constitution of Nepal.

Various Political luminaries of Nepal have described the Delhi Compromise of 1950 as not a revolution but a restoration. Both the Nepali Congress and the Rana clan had to accept the Delhi agreement under compelling circumstances. These circumstances were caused by the impactful mediation by the Government of India. The king on the advice of the Council of Ministers proclaimed an interim constitution in 1951. In fact, the primary purpose behind the adoption of the interim constitution was to provide a definite set of rules and regulations that would govern the functioning of the interim government. Secondly, the interim constitution was aimed to provide law and order and to put an end to the disputes between the Nepali Congress and the Rana clan. 

The Constitution consisted of 47 articles and provided certain fundamental rights to the people of Nepal. It was interesting to note that the Nepali Congress was very supportive of the interim constitution as its aim was to downsize the Rana oligarchy.

The M.P. Koirala Government 

The formation of the M. P. Koirala’s government once again brought about political instability. The interim coalition government collapsed. As a result of the same, the King formed a new cabinet under the Prime Ministership of M.P. Koirala, who was the President of the Nepali Congress at that point of time. M.P. Koirala resigned on August 6, 1952. The Nepali Congress was divided into 4 groups. The largest group was led by B.P. Koirala and M.P. Koirala had formed his own group.

 Amendment of the Interim Constitution

The monarch formed an advisory council after M.P. Koirala resigned. The advisory council had a pyramidal structure consisting of 4 councillors, 1 advisor and a chief councillor. The councillors were appointed according to the King’s pleasure. Finally, the interim constitution was amended by promulgating the Special Emergency Powers Act, 1952 and a new constitution came into force on February 12, 1959. 

It is interesting to note that this change came into force only six days before the voting process started. The amendments were made in order to restructure the constitution and to provision for a bicameral legislature system. The lower house consisted of 109 members who were to be directly elected by the people. The upper house consisted of 36 members. 

The constitution also laid down that the king could exercise his powers only when he had to act upon the recommendations made by the ministers. He could also exercise his own discretion in some specific situations. After analysing the amendments it suggests that the balance of power was completely in favour of Nepal’s royal authority.       

Why were Nepal’s previous Constitutions so divisive

Nepal’s Constitution wasn’t well accepted until recently. Yet Nepal’s Constitution is argued to be one of the most progressive governing systems in Asia. It guarantees equal rights to the transgender community and also recognises gender-fluid citizens of the country. The constitution even provides representation to the transgender community in all government mechanisms. 

It has taken Nepal’s Constitution almost 7 decades to have been widely accepted and adopted by an established elected constituent assembly. Nepal used to primarily be a Hindu-state, however, the constitution transitioned the country’s religious entity into a secular one. It also deviated from a previously unitary system to a federal system. Seven provinces were set up and the legislative and executive powers were distributed amongst the provincial governments.

The 1990 constitution faced a lot of protest due to the non-implementation of various provisions due to the lack of appropriate laws that would have facilitated what was actually promised by the statute. More than just being a bad constitution, the main reason behind its failure was its ineffective implementation.

The major criticisms faced by the older Constitutions of Nepal were that it evoked fear amongst the marginalised groups that the provisions of the constitution aren’t in their favour. The major grievances were :

  1. Only 45% of parliament members were being elected by the method of proportional representation which is relatively lower as compared to the 58% stake in the interim constitution. A higher proportion of the same would have secured a better representation of the marginalized communities in Nepal’s parliament. 
  2. Nepal’s Madhesis tribe were one of the communities who were protesting against the new constitution and demanded that the government must withdraw army deployment from their area. They wanted fair representation in the parliament. They also demanded self-autonomy by having a separate state and electoral constituencies. 
  3. Once again the Dalit population felt that they had low representation in the parliament and the percentage must increase in order to truly hold the concept of positive discrimination. 
  4. Women Rights activists alleged that the provisions of the constitution were structured under patriarchal influence. For example, the constitution laid down that unmarried women were not entitled to equal property rights as a married woman had. 
  5. Janjatis was another community who pointed out that the constitution doesn’t recognise their rights and also doesn’t address the need for identity-based ethnic states.
  6. In reference to the above point, even though the new constitution had transitioned Nepal from a Hindu-state to a secular one, there are still traces of its initial Hinduism inclined provisions. For instance, one can be criminally charged for killing a cow and will have to serve a sentence of up to 12 years for the same. At the same time, cow slaughter is a religious practice of some groups and communities. 

Support of International Community towards constitution building

Nepal has already received a lot of international support when it came to their constitution building process. Few of the major contributions made by international organizations are:

International Institute for Democracy and Electoral Assistance (International IDEA) 

International IDEA supported Nepal in launching a project named Supporting Constitution Building Process in Nepal. This project basically supported national actors who took part in the process of constitution building. This project actively involved the Constituent Assembly (CA) and the CA Secretariat. It was also inclusive of the Women’s caucus and Indigenous People’s Caucus, other political parties. It also played as a meditator who facilitated dialogues amongst the influential political actors. This helped the political leaders to reach a consensus on various contentious issues. Having an insight into the international knowledge and support helped the different political parties to share a comparative perspective. This project was supported by the embassies of Norway and Finland. 

United Nations Development Programme (UNDP) Supporting Participatory Constitution Building in Nepal (SPCBN) 

The SPCBN project primarily provided infrastructure and logistics support. The CA Secretariate benefited immensely as the staff vacancy in the advisory committee increased. Once again it facilitated a neutral space for dialogue between the CA members and the political parties whose support was valuable for the constitution building process. The SPCBN also helped in promoting public participation while the Constitution was undergoing the drafting process. It provided a venue for orientations, public lectures and workshops that dealt with issues arising during the constitution building process.

Department for International Development (DFID)

This organisation launched the Enabling State Programme (ESP) back in January 2001. This programme ensured that there is an integration between the interests of the state institutions and that of the citizens. The government and citizens must work together in order to promote inclusive policies and responsive programmes. The ESP facilitated the DFID to work closely with state institutions and promote inclusive governance (for ethnic groups). 

Swiss Agency for Development and Cooperation (SDC) 

The Swiss agency for Development and Cooperation collaborated with various Nepali experts in order to support the constitution building process. The SDC realised that in order to restructure the administrative mechanisms of the State it would require some technical inputs. Thus, the SDC provided the same. They organized workshops where relevant stakeholders participated. The stakeholders included government ministries, political party representatives, Dalits, the leader of the Madhesis and Tharus etc. 

Challenges to the present Constitution

In 2015, Nepal promulgated their sixth constitution. One of the biggest challenges to the present Constitution is the proper implementation of a federal system. Once again, the existing political parties agreed that in order to incorporate a federal system, Nepal needs to be divided into 7 provinces. Once again no proper plan was made to facilitate the flourishing of federalism in the country. 

It needs to be understood that in order to establish federalism, technical support is required along with financial capacity and human resource support. Since the initial unitary system is being scrapped out, a lot of administrative, social, political, and economic restructuring is required. Restructuring administrative policies would be the toughest. Thus, this gives rise to the risk of intense conflict.

Another major challenge is the generation of appropriate legal policies that would facilitate the implementation of the constitution. The government will have to make various amendments to an umpteen number of laws and revise various policies accordingly. 

Conclusion

Nepal as a country has come a long way over the past few decades. It has struggled with the democratization process throughout and it’s journey till 2015 has been pretty commendable. It is understandable that even the present constitution has various flaws and needs to be refined but in the end, it has the potential to be one of the most progressive constitutions in Asia. 

Nepal’s political situation has been pretty unstable since the 1950s which marked the end of the infamous Rana regime. 1990 saw a sea change in political institutionalism when the multi-party system came into existence. The protests launched by the Nepali Congress that eventually led to the end of Monarchy in 2005 also gravely impacted the process of democratization. Political tension along with protests for equal rights and representation in the parliament has had a fair share in the history of the promulgation of the Constitution.

Finally, on 20th September 2015, Nepal reached an important juncture. It can be concluded on a positive note that the present constitution of Nepal has the potential to bring all the ethnic groups to the table and reach an understanding regarding their demands. Successful implementation of the Nepali constitution will necessitate the government to recognise the rights of all the existing ethnic groups. The international community can also help Nepal out in forming a good set of administrative amendments in order to establish the 2015 constitution.

References


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