Constitutionalism in Nepal

The Constitutional history of Nepal

The Nepalese legal system is a blend of the common law, civil law and Hindu law. This blend exists today for the various historical reasons. Nepal is an ancient State that has been existed in various forms for more than 2,500 years. When the colonial flag flew over the rest of the South Asia, Nepal managed to maintain its independence which was also formally recognised by the British through the 1923 peace and the friendship treaty.

Until modern times, Nepal had been governed on the basis of the royal edicts based on tenets of Hinduism and the ancient religious codes such as Manusmriti and the Kautilya’s Arthasastra, which sought to regulate both affairs of statecraft and relations between the individuals. As Nepal was never colonised by the foreign power, there has not been significant direct foreign influence on the legal system of the Nepal until recently.

It was in 1948 that Nepal promulgated its first constitutional instrument which is known as the Government of Nepal Act. It was promulgated during last years of the Rana family rule when Padma Shamsher was the Nepalese Prime Minister. But the Ranas had no sincerity for implementing a programme of the reform. Consequently, there was people’s movement for the democracy which resulted in promulgation of the Interim Government of the Nepal Act 1951 (known as the Interim Constitution) by King Tribhuvan.

Transition from Monarchy to communalism to Constitutionalism

This constitution lasted for the nearly 30 years and was repealed by another people’s movement for democracy in 1990 resulted in the adoption of the new democratic constitution based on a constitutional monarchy and replacing executive monarchy, thanks to the foresight and wisdom of late King Birendra, a gentlemanly king who was willing to usher the country towards modernity and democracy.

However, since 1990, Nepal has gone through several of tragedies. Nepal experimented with liberalism and the communism between 1990 and 2014, and finally adopted an ambitious Constitution for Nepal in 2015, written by a constituent assembly which was elected by the people and designed to usher the country from a Monarchy to a Republic, from a unitary system towards a federal structure and from first-past-the-post electoral system to a mixed system with the elements of proportional representation.

The new Constitution enshrines a long list of rights, with all four generations of rights, i.e., firstly, the civil and political rights, second, the economic, social and cultural rights, third, the group rights, and fourth right to a clean and healthy environment etc, and the country ratified most major international human rights treaties. However, the question that arises is: how democratic is this Constitution? And is this constitution robust enough to guarantee basic freedoms such as the freedom of speech?

Constitutionalism in Nepal

The 1990 Constitution was foundation for the development of constitutionalism and for the restoration of the democratic values and norms. But the people who came to power after the 1990 Constitution could not provide visionary leadership required to manage the process for the transition from autocracy to democracy. Hence, the country witnessed once again a period of the political instability.

After nearly 10 years of brutal Maoist rebellion, royal massacre and the third people’s movement in 2006 against royal takeover of power by the King Gyanendra in 2005, a comprehensive peace agreement between Maoists and other political parties was finally achieved in 2006. Consequently, Nepal has undergone a profound socio-economic and political transformation within an overall framework of the democratic polity since 2006.

The monarchy was abolished in 2007 and another Interim Constitution was adopted in the same year. After failing to write the new constitution, the constituent assembly itself was dissolved and new the elections took place to elect a new constituent assembly which managed to write a new democratic, federal, and republican constitution in 2015, after the peace agreement between the Maoist and the other political parties.

The transformation process and new Constitution adopted in 2015 firmly establishes the political, economic, cultural and social rights of the people as the bedrock of the Nepal’s democratic process. The Constitution is the fundamental law and Supreme Court is the ultimate power to interpret the Constitution. This limits arbitrariness of the political power and secures the personal liberty of the people.

By limiting the power of government, it does not hinder it from working towards the good governance, economic prosperity, inclusivity and the lasting peace in the country. It provides for checks and balances and the separation of powers among the three principal organs of the state. It preserves the independence of judiciary and makes parliament a powerful institution. It makes Nepal, formerly a Hindu Kingdom, a secular state, and it also provides for a federal structure to accommodate the aspirations of the different ethnic groups and a mixed electoral system with the elements of proportional representation to elect people’s representative in as a representative and inclusive manner as possible.