Constitutional Development and Governance System in Nepal

The history of written constitution in Nepal begins with its first from the year 1948AD. So far the country has got 7 constitutions in 68 years of time span. For the small country like Nepal the number of constitutions promulgated shows its volatile situation of governance in governing its people and the country in a fully democratic manner. Here is the glimpse of the country’s governance systems envisioned in the constitution so far;

2.1 Government of Nepal Act 2004 (1948 AD):

It was promulgated by Padhma Shamsher Jung Bahadur Rana to legitimize the Rana autocracy of the time. They provisioned fundamental rights related to freedom of speech, press and property in constitution. But it seriously lacked in practice. The executive power was fully controlled by Rana prime minister rightfully titled as ‘Shree 3’. By means king’s role was more like ceremonial. This conflicting power structure enforced by the Rana regime became the first tipping point for monarchy to ally with political parties for democratic movement in the country later. It opted for the central governance system. Governance authority was fully in control of ‘Shree 3’. The executive, legislature and the judiciary formed under the Rana regime was authoritarian in its model. Council of ministers were obliged to ‘Shree 3’ for functioning of its task. The village based ‘gram panchyat’ and city based ‘nagar panchayat’ can elect ‘Pradhan Panch’, among them reelected would go to district based ‘Zilla Panchayat’, president of the zilla panchayat’s job was to aid and advise ‘Bada Hakim’ of district on matter of policy (GoN,1948). State legislature of Nepal was consists of Rastra Shabha and Bhardari Shabha. Both elected and nominated members in Rastra Shabha not exceeding 70 members were opted. And Bhardari Shabha was all nominated by ‘Shree 3’ where Commander-in-chief is the president. Council of ministers had chosen from legislature no less than 5 to aid the ‘Shree 3’ in functioning of the state (GoN, 1948). And administrative committee and departmental secretary had to attend the meeting upon the summoned by ‘Shree 3’. Regarding judiciary, elementary civil and criminal justice was administered by village/city panchayats. It also provisioned for Public Court as well, with Court of First Instance and Court of Appeal. For further need Special Court can be established by ‘Shree 3’ to resolved the case. Judicial Committee was there with 12 members among them 2 were out of legislature but with expertise in the legal issues. It has also envisioned of High court of Nepal (Pradhan Nyayalaya) with one chief justice and 12 judges. Provision of Auditor General was there to examine and audit accounts of state.

2.2 The Interim Government of Nepal Act 2007 (1951 AD):

This constitution was promulgated by King Tribhuvan Bir Bikram Shahdev. It came after the political revolution of 1951. This constitution strengthens the authority of king as the head of the state. This constitution opted to the fundamental rights and socio-economic goals persuade for peoples right. Executive power was opted to exercise by His Majesty’s Government (GoN, 1951). The cabinet opted with Prime minister and ministers appointed by king. Annual financial statement was to present to Advisory Assembly to get it passed for implementation. King had the sovereign power to make new laws by legislature. Advisory Assembly (AA) consists of Speakers and Deputy Speakers selected by king or among and by its members with the majority of vote (GoN, 1951). King can be called AA meet twice a year or upon the need and brief about the call. Pradhan Nyayalaya was continuing with new constitutional rights. As well as Auditor General of Nepal was opted to appoint by the government. Establishment of Public service Commission was envisioned to recruit people in public service. The chairman was to appoint by the government. This interim constitution was opted to hold election for the parliament. Election commission was designed for fair election practice. King and his Cabinet became decisive in functioning of the government.

2.3 The constitution of the Kingdom of Nepal 2015 (1959 AD):

This constitution followed the major democratic rights mentioned in the interim constitution. Despite the establishment of a bicameral parliament (which consists of upper house; the Senate (Maha Sabha) and House of Representatives as lower house), the king continued to hold important powers such as the prerogative to appoint half of the members of the Senate and the suspension of parliament under certain circumstances (International IDEA, 2015). King Mahendra Bir Bikram Shahdev was on throne. By constitution, country became a Hindu nation representing majority of Hindus in the country. The executive body, Council of State (Rastriya Parishad) was opted. The cabinet and ministers of the Crown were responsible to run the central government. Temporary suspension of the Cabinet government was envisioned by king cleverly in this constitution that if the Prime Minister failed to command the majority of the House of Representatives in consultation with council of state king can suspend the cabinet. Parliament was opted to consist of His Majesty-the king, the Senate (Maha Sabha) and House of Representatives (Pratinidhi Sabha). In Senate 36 senators were opted with 18 elected by house of representatives and 18 nominated by the king (GoN, 1959). In this constitution 109 electoral district were envisioned. Emergency power in case of failure of constitutional machinery was also opted in this constitution. The constitutional provision says Chief justice was to appoint by His Majesty. Job of the Public Service Commission and Auditor General was continued as mentioned in the interim constitution.

2.4 Constitution of Nepal 2017 (1962 AD):

The ambitious king Mahendra eliminates the political parties blaming them as not capable to fulfill the demand of people of the time. The democratic experiment of the country ended too early. The new constitution came in and introduces the party less Panchayat system. In this system, panchayats were councils organized at the local level, presumably to ensure the representation of citizens. However, the king exercised much stronger authority than in the 1959. This constitution was promulgated on 16 December 1962 by King Mahendra (International IDEA, 2015). Under this Panchayat System Executive power opted to His Majesty. Raj Sabha was provisioned consisting the Prime Minister, the Chief Justice, Chairman of the National Panchayat, Deputy Prime Minister, Ministers of the Crown, The Bada Gurujyu, Commander-in-Chief , Auditor-General , Chairman of the Public Service Commission, Chief Election Commissioner, Attorney-General, Mool Purohit and such other members as His Majesty may appoint from among persons who are renowned in different fields of national life or who have rendered distinguished service to the country or who are otherwise considered fit to be members of the Raj Sabha (GoN, 1962). Legislative body was opted to consists of Village Panchayat, Town Panchayat, district Panchayat and Zonal Assembly from local level to National Panchayat in central level.

2.5 Constitution of Kingdom of Nepal 2047 (1990 AD):

Peoples Movement I; known as Jana Andolan I, abolished the Panchayat system and brought multi-party democracy back in life in Nepal’s governing system. It established constitutional monarchy, lifted ban in political parties and described democratic representative system with the sovereign authority to the people of the country. This constitution was promulgated on 9 November 1990 by King Birendra Bir Bikram Shahdev, who was known for his attraction on liberal vision in governing nation. This constitution gave continuation of ‘Raj Parishad’ constitute by the king for the recognition as the head of the state. Executive power was opted for his majesty; the king and the council of ministers. The legislative body was opted consist of his majesty, and two Houses, namely the House of Representatives and the National Assembly (GoN,1990). To focus on the good governance and speed up the development activities this constitution provisioned for the establishment of Commission for the Investigation of Abuse of Authority as constitutional body. Related to judiciary Supreme Court, appellate court and district court were provisioned to expand access to justice by general public. Though it opted for the local election in every five year the armed conflict led by CPN (Maoist) engulf country into complex political turmoil and this constitution being praised best in south Asia almost crippled on its functioning.

2.6 Nepal Interim Constitution 2063 (2007 AD):

The major political events post 1990 constitution, from beginning of the armed conflict in the country by CPN (Maoist) in 1996 and later the Royal massacre in 2001 that killed all the family members of the then king Birendra Bir Bikram Shahdev fueled the political unrest even more. Later when his younger brother Gyanendra Bir Bikram Shahdev became king and suspended the House of Representatives and assumed direct authority, this led to peace accord between political parties and “Jana Andolan II” known as “People’s Movement II” happened and following this movement in Nepal, Interim Constitution was promulgated. This constitution was promulgated on 15 January 2007. The Interim Constitution of Nepal 2007 For the purpose of restructuring the State, article 138 (1) states: “there shall be made progressive restructuring of the State with inclusive, democratic federal system of governance, by doing away with the centralized and unitary structure of the State so as to end discriminations based on class, caste, language, gender, culture, religion and region” (p. 128, GoN 2007). The ten thematic committees formed under the Constituent Assembly (detail in 2.1 below) to work on it. The main purpose of this constitution was to write constitution in participatory approach while running the transitional government. After abolishing monarchy in 2006, president became of ceremonial head of the state. For the demarcation of the election constituency, Election Constituency Delimitation Commission opted in the constitution but only formed in 2017 with five members to work on federal boundaries. Its main job was to locate election constituency on the basis of population and geographical location of the area.

2.7 The Constitution of Nepal 2072 (2015 AD): 

President Ram Baran Yadav on 20 September 2015 announced the promulgation of Constitution of Nepal, 2072 at a special meeting of the second Constituent Assembly (CA). The country became The Federal Republic of Nepal and President as the head of government with ceremonial status. This new constitution was important for three reasons. First, it provided a historic opportunity for Nepali people to write their own constitution, through the elected representatives in constituent assembly. Second, the constitution codifies most of the demands articulated in the Maoist insurgency (1996-2006), the Madhesi uprising (2007 ), and many other ethnic and social movements that Nepal has witnessed. The constitution responded to several themes that were glamorized under the rhetoric of &lsquo;New Nepal&rsquo; for over a decade. Third, it is being dubbed as a meaningful end to the peace process, which in turn was expected to herald a time for peace, inclusive democracy, social justice, and prosperity in the country. To realize these aspirations, Nepal adopted a participatory constitution drafting process . The three procedural committees formed under the provision in CA rules worked on collecting public opinions on issues of federalism and state restructuring (CA,2008). Under this constitution; functioning of the federal, state (provincial) and the local executive, legislature and financial procedures are provisioned. With the 735 local bodied, 7 provinces and the federal government is currently running as provisioned by this constitution.</p>