Constitutional Development in Nepal

Constitutional is the basic mechanism of freedom, equality, and justice. It determines the right of people and power of the government. The constitution is a political, legal, economic, social and cultural document as a whole. It is the main law of a state. There are many ways of drafting constitution. Generally, the constitution is prepared from the Constitution Drafting Commission, Constituent Assembly, Constitution Drafting Committee or any other appropriate means.

The constitution prepared from the Constituent Assembly is considered better as it reflects the will, aspirations and feeling of the people and it is also prepared with the participation of people's representatives. Some countries have made and reformed their constitution many times. The constitution in Venezuela was changed for 27 times, in Thailand for 19 times and in Haiti for 20 times. Nepal is also one of the fast constitution changing countries.

The history of constitutional development in Nepal is not very long. It has only been about 7 decades since the constitution came into existence in the written form. The declaration of Nepal Government Legal Act 2004 by Padma Shamsher in 2004 BS was the beginning of the constitutional development in Nepal. Seven constitutions have been promulgated in Nepal so far. If we look at the constitutional development process of Nepal, we find the constitution being changed too frequently that in average one constitution in 10 years . The salient features of the constitutions promulgated in Nepal till now are discussed below:

1.Nepal Government Legal Act, 2004

This is the first written constitution of Nepal. It was promulgated by Rana Prime Minister Padma Shamsher on 13th Magh, 2004 BS and supposed to be effective from 1st Baisakh, 2005 BS but remained without implementation. The draft of the constitution was prepared by a team involving Indian legal experts Shreeprakash Guha, Raghunath Singh and Dr. Ramugra Singh. There were 6 parts, 68 Articles and 1 Schedule in that constitution.

Major provisions

• Main source of the rights of Rana Prime Ministers,
• All the power along with executive power vested in Rana Prime Minister,
• Provision of Bicameral Legislature namely Rastriya Sabha and Bhardari  Sabha (Upper house).
• Provision of fundamental rights including religious freedom, accessible justice,
• Provision of Council of Ministers, High Court, Auditor General, Public Service Commission, etc. 

Weakness

• The council of Ministers to be formed and dissolved by the Rana Prime Minister.
• The role of King was ignored.
• The principle of separation of power was not accepted.

2.Interim Government Act of Nepal,2007 

This constitution was promulgated on 17th Chaitra 2007 BS after the overthrow of the autocratic Rana rule and implemented from 29th Chaitra 2007BS. It was the first constitution promulgated by the King. It had 7 parts, 73 Articles and 1 Schedule. This constitution was amended for 8 times. 

Major Provisions

• The executive power, to remain in the King and Council of Ministers,
• provisions for directive principles and policies of the state, Council of Ministers, Economic and financial procedure, etc.
• Provision of fundamental rights in the directive principles,
• Provision of Supreme Court, High Court.

Weakness

• King could form and dissolve the Council of Ministers.
• The principle of separation of power was not accepted.
• King used to amend the constitution though there was no provision for amendment. 

3. Constitution of the Kingdom of Nepal, 2015

This constitution was promulgated on 1st Falgun, 2015 BS through the royal proclamation of King Mahendra. It had 10 parts and 77 Articles. The Constitution Drafting Commission chaired by Bhagawati Prasad Singh had prepared the draft of this constitution. The commission had taken advises from Sir Ivor Jennings, a British constitutional expert. This constitutional was drafted in British Model and considered democratic comparatively. Article:73 and Article: 75 were implemented immediately and the rest of the Articles were implemented on 16th Asar, 2016 BS.

Major provisions

• For the first time, the constitution was mentioned as the main law of the nation in this constitution,
• The sovereignty vested in the King,
• Provision of bicameral parliament including the king, Mahasabha and House of Representatives,
• Council of Ministers to be formed from the House of Representatives and responsible to it, 
• Provision of adult suffrage, constitutional organs, independent judiciary, etc.

Weakness

• Fundamental rights could be made spiritless  by legislature.
• Active role of King in the constitution though constitutional monarchy was mentioned in the preamble.
• Even though the constitution was considered as the main law of the land, the constitution was not able to change the law regarding the successor of the royal throne.

4. Constitution of Nepal, 2019 

This constitution was promulgated by King Mahendra on 1st Poush, 2019 BS. After dismissing the democratic government, suspending the existing constitution and banning all the political parties. King Mahendra had introduced Partyless Panchayat  System in 2017 BS. This constitution was mainly brought in order to support the Panchayat Support. In spite of being dictatorial character, this constitution was implemented for a long time. The draft of this constitution was prepared by the Constitution Drafting Commission chaired by Rishikesh Shah. It had 20 Parts, 97 Articles and 6 Schedules. It was amended for three times on 14th Magh, 2023 BS, on 26th Mangsir, 2032 BS and on 1st Poush, 2037 BS.

Major provisions

• The sovereignty, vested in King,
• Constitution was mentioned as the main law of the nation,
• Provisions of Partyless Panchayat System,
• The Chief justice, to be appointed as per the discretion of King.

Weakness

• The government, to be responsible to the King rather than to the people, 
• Provision of Partyless system mentioned in the preamble,
• The Supreme Court was not considered as the final court that the king could order to review the cases

5. Constitution of the Kingdom of Nepal, 2047 

This constitution was made after the historical Mass Movement of 2046 BS. It had acknowledged the ethics of constitutionalism. The draft of this constitution was prepared by the Constitution Reform Suggestion Commission chaired by Bishwanath Upadhyaya. It was promulgated by King Birendra on 23rd Kartik, 2047 BS after revising by the Council of Ministers. This constitution was divided into 23 Parts, 133 Articles and 3 Schedules.

Major Provisions

• Constitution, as the main law of the nation.
• Sovereignty, vested in people.
• Provision of adult suffrage, rule of law, guarantee of fundamental rights, constitutional monarchy, etc. were mentioned in the preamble.
• Bicameral legislature including the King, National Assembly and House of Representatives.
• Provision of multiparty system, parliamentary system and independent judiciary 

Weakness

• Though it was called a democratic constitution, it did not have the provision of referendum.
• It did not have clear provision regarding the norms of social justice.
• Though there were many norms of constitutional monarchy, because of ambiguousness and unclearness the king could use his discretion.

6. Interim Constitution of Nepal, 2063

This constitution was drafted after the success of People's Movement 2062/63. This was the first constitution promulgated on behalf of the people. It was divided into 25 Parts, 167 Articles and 4 schedules. It was brought in implementation for managing the interim period after the political change of 2062/2063 BS. It was promulgated on 1st Magh, 2063BS. It was amended many times within a short period.

Major Provisions

• The sovereignty and state authority vested in people,
• Provision of secularism, competitive multiparty democratic system, recognition of all national languages, appointment of the Chief of the Nepal Army by the President,
• Unicameral legislative parliament,
• Cabinet with all executive powers, constituent assembly election, National Human Rights Commission as a constitutional body.

7. Constitutional of Nepal

The Constitutional of Nepal is prepared by the Constituent Assembly. It is promulgated on 3rd Ashwin, 2072BS. It is considered as the successful document for transforming ten years long armed conflicts and the spirit of People's movement 2062/63 BS into peace process. It is divided into 35 Parts, 308Articles and 9 Schedules.

Major Provisions

• Provision of constitution amendment as per the need of the country,
• Guarantee of end of discrimination based on region, class, gender, caste, language, etc.
• Separation of power, Check and balance system adopted,
• Nepal, accepted as a multi-ethnic, multi-cultural, multi-religious and multi-lingual country,
• Guarantee of federalism and democratic republicanism.