■ Constitutional History of Nepal

Introduction

Nepal is a multiethnic, multicultural and multilingual country. Situated between India and China, known as the land of Mt. Everest and the birth place of Lord Buddha, Nepal is a landlocked country. Nepal occupies 0.03% and 0.3% of total land area of world and Asia respectively. Geographically, the country is divided into three ecological zones: Mountain, Hill and Terai. At present, the country is divided into 5 development zones, 75 administrative districts, 3915 Village Development Committees and 58 Municipalities. The total population of the country in 2010 has reached about 28 millions of which the proportion of male and female are almost equal. The economic growth of the country measured by GDP is 3.53 percent per year in the year 2009/10. Nearly one fourth of the population lives below poverty line as per the Nepal Living Standards Survey 2003/04 and MDG Indicators.

Constitutional history

Since there was no written constitution in Nepal till 1951 from the time of unification in 18^th century, the Monarch, as the Hindu King, used to be the source of all laws. The Muluki Ain (Country Code) that was introduced in 1853 provided for the laws on social conduct but not on state powers and relations. After success of a decade long people’s movement for democracy against feudal rule of Rana family, an Interim Constitution was introduced in 1951 for the first time in the history of Nepal which provided for the system of constitutional monarchy. The executive power of the state was vested in the King and Council of Ministers, the King was obliged to exercise the power on the advice of the Council of Ministers. During eight years of existence of constitution till 1959, seven amendments were made to the constitution; all of them added the powers to the King gradually. The 1951 constitution introduced democracy in Nepal, however, could not remove political instability and mismanagement.

The then King Mahendra, upon advice of the Constitution Drafting Committee, promulgated the new constitution of Kingdom of Nepal in 1959. The constitution was primarily based on the concept of constitutional monarchy and Westminster model of parliamentary system. However it conferred the King with the power to declare state of emergency which was a loophole for the King to take over the power. After a year and half of the elected government in December 1960, the tussle between the King and the Prime Minister, former for active monarch and the later for constitutional monarch, led the issuance of state of emergency by the King, dissolution of parliament and cabinet and revival of all unlimited powers back to the King. In fact, taking over powers in the name of emergency was a violation of constitution.

In order to legitimize the monarchical system, the King Mahendra promulgated the Constitution of Nepal 1962 by exercising sovereign power of state inherent on him. The constitution introduced monarchical system; party-less panchayat system and restricted fundamental rights of people. The constitution provided for supremacy of Monarch over constitution and source of all legislative, executive and judicial powers that were to be used through His Majesty’s Government, national courts and National Panchayat. Some major reforms were incorporated in the constitution through three amendments in its life of 30 years until 1990 but basic ideological differences put forward by political parties were not responded therein. Demands for multi party democracy, constitutional monarch, independent judiciary, rule of law and basic human rights needed a fresh democratic constitution rather than reforms in the constitution. For these basic demands, a movement of people against the regime was launched in 1989.

In response to people’s movement, the then King Birendra withdrew ban on political parties and declared the recognition of basic human rights through a royal decree. A Constitution Drafting Committee was formed upon advice of the parties at movement to make a new constitution. After a year’s exercise, the draft constitution was prepared, got consent from the parties and was promulgated by the King in 1990 in recommendation of the Council of Ministers. The sovereignty of state was transferred to people from the Monarch. The Constitution of Nepal 1990 was based on multi-party democracy, Westminster model of parliamentary system, separation of powers and check and balance, constitutional monarchy, basic human rights and rule of law. The constitution had incorporated all democratic provisions but was poorly implemented creating ethnic discrimination, regional and gender disparity. The mono-cultural policy, monolingual official communication and mono-ethnic identity were some of the dissatisfaction by-produced in the practice of constitution. Large section of society demanded participation to be guaranteed in policy making and representation to be ensured in state mechanism which could be a mechanism in addressing the grievance of exclusion, marginalization and alienation.

In the meantime, the Communist Party of Nepal (Maoist) started a rebellion against the existing system from 1996 and declared people’s war against state. They resorted to violence (killings, extortion, destructive activities, enforced membership to the party etc) to pressurize the government for their demands. After failure of rounds of negotiations, state of emergency was declared and a Terrorist and Destructive Activities (Control and Penalty) Act was issued in 2001 in order to counter the violence. The insurgency period of 10 years until 2005 claimed lives of 13, 000 and suffered a loss of billions in property and infra structures.

Dramatically, a royal massacre occurred in 2001 in which the King Birendra and his family members were killed and that Gyanendra succeeded the monarch. Contrary to the constitution, the House of Representatives was dissolved in 2002 and the government led by political party was also dissolved after couple of years and a new government led by the King was formed in February 2005. In fact monarchical system was revived against the constitution which was a threat to all political parties including the CPN-M. Dissatisfied with King’s action, parliamentary parties joined hand with the banned Communist Party of Nepal (Maoist), Twelve Point Agreement was reached and second people’s movement for democracy and republic was launched in April 2006. King had to reinstate the parliament and give the executive power back to people. The Communist Party of Nepal (Maoist) came to negotiation, declared ceasefire, Comprehensive Peace Accord was signed by the CPN-M and Government of Nepal in 2006 and the end of war was formally declared. Interim Constitution of Nepal 2007 was promulgated and 1990 constitution was dismissed. Interim government was formed in participation of Maoists that held the election of the Constituent Assembly in 2008. The Constituent Assembly is still undergoing constitution drafting till June 2011.

Interim Constitution of Nepal 2007

The Interim Constitution of Nepal 2007 is currently at practice until a new constitution shall be promulgated. The provision of constitutional monarch provided by the constitution was replaced with ceremonial President through third amendment in May 28, 2008. Likewise country was declared to be federal democratic through first amendment to the constitution in April 13, 2007. Key provisions of the constitution are as follows:

President

The President of Nepal is the ceremonial head of the state and government. The President is elected by the Legislature Parliament, either through political consensus or majority votes for the period constitution is declared. Key responsibility of the President is to protect and adhere to the constitution. President has the power to declare the state of emergency, make appointment of chief of army staff and heads of constitutional organs and address the session of parliament, but all on recommendation of the Council of Ministers.

Executive power

All executive power of Nepal is vested on the government of Nepal led by Prime Minister. Prime Minister is elected by the Legislature Parliament through political consensus or majority votes. Ministers who are not necessarily members of parliament are appointed by the President on recommendation of the prime minister. The Council of Minister is responsible for issuing general directives, controlling and regulating administration of Nepal and all executive functions.

Legislative power

Legislative power of Nepal is vested on the Legislature-Parliament which is unicameral and is composed of 601 members. Among 601 members, 240 are elected through FPTP, 335 members elected through PR and 26 members nominated by the Council of Ministers. The parliament works in the double capacity of Constituent Assembly to write the constitution as well. Key responsibilities of the parliament is to elect the President, vice President and Prime Minister, enact laws, pass budget and national programmes and policy, check and balance the government and judiciary, conduct legislative hearing for the post of constitutional organs and judges of Supreme Court and pass impeachment motion against prime minister and other constitutional heads n case of need.

Judicial power

The court system of Nepal is made up of a Supreme Court, Appellate Courts, District Courts, and lower courts established by law. The Supreme Court is the final arbiter of the constitution and is the highest court with the power to inspect, supervise, and give directives to the lower courts. It has extra ordinary jurisdiction to hear of mandamus, habeas corpus, certiorari, prohibition and quo warranto and also to hear public interest litigation for the enforcement of fundamental rights conferred by the constitution and laws. The power of judicial review of laws is also a major power provided by the constitution. The Supreme Court is composed of 15 members, including a Chief Justice in addition to temporary judges. The Chief Justice is appointed by the President on the recommendation of the Constitutional Council, and the Chief Justice in turn selects the other Justices on the recommendation of the Judicial Council. Courts of Nepal are active on enforcing fundamental rights guaranteed by the constitution and Conventions ratified by Nepal.

Constitutional organs

Interim Constitution provides for five constitutional bodies: Public Service Commission, Election Commission, Auditor General, Commission for the Investigation of Abuse of Authority and National Human Rights Commission.

Constitution Making Process

Constituent assembly, while adopting its rules of procedure, made it very clear that it would start with zero draft and it would play its role right from the start of conceptualization to finalization of draft constitution. It, therefore, adopted a lengthy, detailed, participatory and bottom up approach. The expert involvement has been kept to the minimum to avoid preemptory over influence. Its process consisted of following major steps:

Consensus building process

Some issue that were failed in the committee process and some of them that were passed with dissenting opinions need consensus making, since each clauses of constitution requires political consensus or two third majority of the total members of Constituent Assembly for approval. The following initiatives were introduced for consensus making, but at the same time all of them shall not be effective until and unless get approved by the plenary of the Constituent Assembly:

• Study Committee on Preliminary Drafts and Concept Papers that identified 220 differences in the committee reports. It was a 15 member committee formed under CA Rule and was represented with major parties and a representative from small parties.

• High Level Task Force that reached some major consensus on judiciary and forms of government and constitutional organs. It was a political party initiative for consensus building, composed of parliamentary leaders of major political parties and was coordinated by the Chair of CPN-M.

• Constitutional Subcommittee on Dispute Resolution formed by the Constitutional Committee where parliamentary leaders of major political parties are members. It forged major consensus including formation of constitutional court and bicameral legislature. The report of the subcommittee will be finalized by the constitutional committee. The subcommittee is still working by June 2011.

Major challenges