2.2 Constitutional Development of Nepal

Seven constitutions have been issued in Nepal so far. A brief overview of Nepal's constitutional development up to now is mentioned here.

Nepal Government Legal Act, 2004

• There was no existence of the basic conditions of constitutionalism,
• Although provisions for fundamental rights were made, numerous restrictions were placed on them,
• Separation of powers into executive, legislature, and judiciary,
• It was the first written constitution in Nepal's constitutional history but was not implemented.

Interim Governance Statute of Nepal, 2007

• Implemented on an interim basis with the intention of creating a constitution through a Constituent Assembly,
• The king exercises executive powers on the advice and consent of the Council of Ministers (basis of constitutional monarchy).
• Directive principles of state policy mentioned citizens' rights. No separate provision for fundamental rights.
• Efforts were made to keep the judiciary separate and independent from other state bodies.

Constitution of the Kingdom of Nepal, 2015

On Magh 10, 2014 Vikram Samvat, King Mahendra declared that the source of the new constitution would be the King, not the Constituent Assembly, and formed a Constitution Drafting Committee under the chairmanship of Bhagwati Prasad Singh. It was implemented on Falgun 1, 2015.

Main Features:

• Declared as the fundamental law for the first time in Nepal's constitutional history.
• Sovereignty and state power vested in the King.
• Provisions for fundamental rights and freedoms. The King could suspend them.
• Bicameral parliament including the Grand Assembly and House of Representatives.
• Executive powers vested in the King and the Cabinet, the Cabinet collectively accountable to the House of Representatives.
• Chief Justice appointed at the King's discretion.
• Supreme Court has the authority to issue writs and declare laws conflicting with the constitution invalid to that extent.
• Provisions for constitutional bodies like Public Service Commission and Auditor General.

Constitution of Nepal, 2019

A Constitution Drafting Committee was formed (under the chairmanship of Rishikesh Shah). Issued on Poush 1, 2019. This constitution was amended three times.

Features of this Constitution:

• Legislative, executive, and judicial powers vested in the King and emanating from the King.
• Declaration of Nepal as a Hindu Kingdom.
• Provisions for fundamental duties and rights but with restrictions.
• Ban on political parties, party-less Panchayat system through the second amendment.
• Constitutional bodies such as Auditor General, Public Service Commission, and Attorney General; Election Commission (first amendment) and Corruption Prevention Commission (second amendment).
• National Panchayat (legislative body - third amendment) to assist the King in law-making.
• The 2019 constitution was weak from the perspective of constitutionalism, and there was no honesty in implementing its ideals and spirit.

Constitution of the Kingdom of Nepal, 2047

Issued as the fifth constitution following the political and constitutional changes after the people's movement of 2046 Vikram Samvat ended in an agreement between the King and parties. More democratic than previous ones, issued under the inherent powers of the King.

Features:

• Sovereignty vested in the Nepali people for the first time in the constitution.
• Constitutional monarchical kingdom.
• Adult suffrage, multi-party parliamentary system, rule of law, judicial independence, constitutional monarchy, guarantee of fundamental rights as basic structures of the constitution.
• Guarantees such as no death penalty laws, right to information, right against torture, right to privacy, which are not even written in constitutions of so-called democratic countries.
• Bicameral legislature with House of Representatives and National Assembly.

Interim Constitution of Nepal, 2063

As a result of the then CPN Maoist war and the people's movement of 2062/63, passed by the House of Representatives in the name of the Nepali people on Magh 1, 2063, and implemented. Amended twelve times.

Features of the Constitution:

• Envisioned institutionalizing achievements from revolution and movement through Constituent Assembly, progressive restructuring of the state, etc.
• Declaration of secular state for the first time.
• Provision to use mother tongues as official languages.

Ambitious provisions were included in Nepal's Interim Constitution, but implementation remained weak.

Constitution of Nepal

The current Constitution of Nepal, passed through the Constituent Assembly by the sovereign Nepali people and issued and implemented on Ashoj 3, 2072. First amendment on Falgun 16, 2072 (Articles 42, 84, and 286), and second amendment on Ashad 4, 2077 (including the new "pointed" map in the coat of arms in Schedule 3 related to Article 9(2)).

Fundamental Aspects of the Constitution:

• Nepal established in the constitution as a secular, inclusive, democratic, socialism-oriented, federal democratic republican state.
• Provision for non-residential Nepali citizenship to enjoy economic, social, and cultural rights.
• Rights such as right to food, housing, Dalit rights, senior citizens' rights, consumer rights added as fundamental rights.
• Citizens' duties also included.
• Directive principles, policies, and obligations of the state as guidelines for state operation.
• Provision for a committee in the federal parliament to monitor and evaluate the progressive implementation of the state's directive principles, policies, and obligations.
• The main structure of the Federal Democratic Republic of Nepal consists of three levels: federal, provincial, and local, with state powers distributed in schedules among federal, provincial, and local levels.
• Provinces and local levels can exercise executive and legislative powers under the guidance and subject to the constitution and federal laws.
• Provision for an Inter-Provincial Council chaired by the Prime Minister to resolve political disputes between the federation and provinces, and among provinces.
• Election of President and Vice-President to ensure representation from different genders or communities. Provincial Chief as representative of the Government of Nepal in each province.
• Parliamentary Accountability: Formation of Prime Minister and Council of Ministers from parliament, requirement to obtain vote of confidence, removal through no-confidence motion, Prime Minister and ministers collectively accountable to federal parliament; government, judiciary, and constitutional bodies to submit annual reports, provision for parliamentary committees; budget and treaties to be approved by parliament; national issues raised in parliament's zero hour.
• Judicial powers in Nepal exercised by courts and judicial bodies in accordance with the constitution, other laws, and recognized principles of justice.
• Three levels of courts in Nepal: Supreme Court, High Court, and District Court.
• Judicial committees in village and municipal councils.
• High Courts granted powers similar to the Supreme Court to enforce fundamental rights granted by the constitution.
• Only the Constitutional Bench of the Supreme Court has jurisdiction over writ petitions claiming federal, provincial, or local laws conflict with the constitution.
• In addition to previous constitutional bodies, National Human Rights Commission, National Natural Resources and Fiscal Commission, National Women Commission, National Dalit Commission, Inclusion Commission, Indigenous Peoples Commission, Madhesi Commission, Tharu Commission, and Muslim Commission established as constitutional bodies.
• Heads and officials of constitutional bodies accountable and responsible to federal parliament, committees of the House of Representatives can monitor and evaluate reports and actions of constitutional bodies except the National Human Rights Commission.

Conclusion

As mentioned above, broader and more distinct provisions have been made in the latest constitution compared to previous ones. Citizens' rights have been expanded, structures have been changed or added extensively, sufficient constitutional provisions have been made to make state bodies responsible and accountable to the people. Transitional provisions in the constitution have been used and implemented. Other provisions are being implemented gradually. However, the behavior of the actors refines the constitutional provisions and system. If actors in implementation create situations of arbitrary interpretation of the constitution, leading to implementation or non-implementation, the result could be contrary to constitutional development. Amendments to the constitution as per time are not only necessary but inevitable. But frequent amendments more than in ordinary laws can weaken the strength of the constitution. Amendments that damage the ideals, spirit, and essence of the constitution in the name of amendment rights can create obstacles in constitutional development. Therefore, for constitutional development, minimum amendments may be made as needed, but the constitution is refined and improved maximally through the development of constitutional practices. When actors implement the spirit and letters of the constitution honestly, constitutional practices develop, and ultimately, the constitution can be expected to achieve sustainability.

Reasons for Frequent Constitution Changes in Nepal

In Nepal, seven constitutions have changed in a short period of about seven decades. The reasons for so many constitutions changing in such a short time could be as follows:

• Issued according to the rulers' wishes, so people did not feel ownership,
• Increasing wave of democracy and change among people, constitutions failing to address changing aspirations of citizens,
• Dominance of the king's absolutism,
• Political instability and new constitutions for each governance system,
• Lack of dynamic and visionary leadership,
• Politics of negation among parties,
• Lack of constitutional culture,
• Fraudulent/deceptive use of the constitution,
• Nepal Government Legal Act, 2004, could not be implemented,
• Interim Governance Statute of Nepal, 2007, formulated with the objective of electing a Constituent Assembly and making a new constitution, but circumstances became adverse,
• Constitution of the Kingdom of Nepal, 2015, King Mahendra misused Article 55 giving arbitrary powers to the king, overthrowing the elected government and abolishing the constitution,
• Constitution of Nepal, 2019, autocratic and non-democratic constitution with party-less Panchayat system, not embracing the essence of constitutionalism.
• Constitution of the Kingdom of Nepal, 2047, friendly to constitutionalism but implementation aspects became weak, due to political instability and conflict, declared goals and ideals of the constitution could not achieve expected results, people could not feel sovereignty vested in them, lack of mature institutions and visionary leadership; repeated violations of the constitution by those in power and the constitutional king, lack of ownership towards the constitution due to weak implementation, abolished after people's movement and system change.
• Interim Constitution of Nepal, 2063, issued on an interim basis for the purpose of making a new constitution through Constituent Assembly.