Constitutional Development in Nepal

Constitutional Development in Nepal

As of now, Nepal has witnessed seven constitutions in her constitutional history.

At present, Constitution of Nepal (2072) is in effect, after its issuance on Ashwin 3, 2072. Constitutional development in Nepal is discussed in brief hereunder: –

I. Government of Nepal Act, 2004

Issued on Magh 13, 2004 by the then Prime Minister Padma Samser and designed to be effective from Baisakh 1, 2005, it is the first written constitution in Nepal`s constitutional history. But it did not come into effect. Constitutionalism was weak as state power was totally vested in Rana Prime Minister. It consists of 6 Parts, 68 Articles and 1 Schedule (Feharista). Some major provisions in it were:

• Provision of bi-cameral legislature (Rastriye Sabha and Vaardaari Sabha)
• Provision of some fundamental rights and duties as well.
• Provision for free primary education.
• Provision of Pradhan Nyayalaye (similar to Supreme Court).
• Provision of Pradhan Jaanchaki to audit government`s financial transactions.
• Provision of Darkhasta Parisad to recruit the government employees.

II. The Interim Government of Nepal Act, 2007

This constitution, issued on Chaitra 29, 2007 by the then king Tribhuvan, is the second constitution in terms of issuance but the first constitution in terms of implementation in Nepal`s constitutional history. It was promulgated for the interim period after the establishment of democracy until the new constitution would be promulgated by the Constituent Council. It transferred state power from Ranas to the king. It initialized the democratic process of transferring state power from the autocratic Rana regime to people but it itself had no provision of democratic system, as executive power was totally vested in king. It consists of 7 parts, 72 Articles and 1 Schedule. Some major provisions in it were:

• Provision of directive principle of the state policies.
• Executive rights/power vested in king.
• Unicameral legislature (Sallahakaar Sabha).
• Provision of Pradhan Nyayalaye as independent judiciary.
• Provision for financial procedures and budget.
• Provision of some fundamental rights.
• Provision of some constitutional bodies such as Public Service Commission, Controller-Auditor General and Election Commission.

III. Constitution of the kingdom of Nepal, 2015

Though Interim Government of Nepal Act, 2007 was issued with the idea to promulgate the new constitution by the constituent council, it was of no success. Thereafter, Constitution of the kingdom of Nepal, 2015 was issued on Falgun 1, 2015 by the then King Mahendra, with motto of holding parliamentary election. It consists of 10 parts, 77 Artciles and no Schedule. The major provisions in it were:

• Constitution regarded as the fundamental law of land.
• Executive power vested in king, but milestone for democratic governance system.
• Provision of bicameral legislature (Pratinidhi Sabha and Mahasabha).
• Provision of National Council.
• Nepali Language in Devanagari script regarded as the language of the nation.
• King vested with emergency power.
• Provision of the Supreme Court as independent judiciary.
• Provision of some constitutional bodies.
• Fundamental rights with provision of constitutional remedy in case of violations.

IV. Constitution of Nepal, 2019

Issued on Paush 1, 2019 by then King Mahendra, this constitution was intended to provide legitimacy to party-less Panchayat system with active involvement of King in state matters banning the political parties. It created foundation for panchyat system that existed until 2046 B.S. It consists of 20 Parts, 97 Articles and 6 Schedules.

The major provisions in it were:

• State authority vested in King.
• Nepal regarded as sovereign Hindu Kingdom.
• Embracement of single language and single-religion policy.
• Nepali Language in Devanagari script regarded as the language of the nation.
• Provision of fundamental rights and duties as well.
• All executive, Legislative and judicial power vested in King.
• Provision of some constitutional bodies.
• Unicameral legislature (Rastriye Panchayat).
• King vested with emergency rights and right to amend constitution.
• Party-less governance system.

V. Constitution of the Kingdom of Nepal, 2047

This constitution was issued on Kartik 23, 2047 by the then king Birendra, internalizing the democratic norms and values. It was promulgated after the downfall of party-less panchyat system by people`smovement in 2046 B.S. This is the first constitution in Nepal`s constitutional history having full-fledged democratic provisions. It consists of 23 Parts, 133 Articles and 3 Schedules. The major provisions in it were:

• Sovereignty vested in Nepalese citizens, sources of state power to be the citizens.
• Constitutional monarchy, Hindu kingdom, multiparty democracy, periodic election, adult suffrage.
• Rule of law, Independent judiciary.
• Parliamentary governance system.
• King vested with emergency rights.
• Nepali language in Devanagari script regarded as the language of the nation.
• Provision of fundamental rights and constitutional remedy in case of violations.
• Executive power vested in king and the council of ministers.
• Bicameral legislature- House of Representatives and National Assembly.
• Three-tier court. Supreme Court as the Apex Court. Provision of judicial review.
• Provision for separation of power, check and balance of power.
• Provision of constitutional bodies.
• Amendment of constitution by two-third majority of House of Representative with exception on those matters that cannot be amended.

VI. Interim Constitution of Nepal, 2063

This Constitution, issued on Magh 1, 2063, is a document for conflict management and peace building. After the People`s Movement in 2062/63 that overthrew king`s direct rule, this Constitution was issued as a document of political consensus among the political parties to develop the foundation for federal democratic republic system of governance. It was repealed by the issuance of constitution of Nepal (2072) on Ashwin 3, 2072. It consists of 25 Parts, 167 Articles and 4 Schedules. The major provisions in it were:

• Sovereignty and state authority vested in Nepali people.
• Acknowledgement of multi-ethnic, multi-lingual, multi-religious and multi-cultural characteristics of the nation.
• All mother tongues spoken in Nepal acknowledged as language of the nation.
• Executive power vested in council of ministers.
• President as the head of the state.
• Unicameral legislature.
• Provision for the constituent assembly election.
• Independent judiciary with provision for judicial review.
• Provision for separation of power, and check and balance of power.
• Constituent Assembly to act as legislature parliament as well.
• Provision of 21 fundamental rights.
• National Human Rights commission added in the list of constitutional bodies.

VII. Constitution of Nepal

Constitution of Nepal (2072), the constitution in effect at present, is the seventh constitution of Nepal but the first constitution promulgated by the Constituent Assembly in Nepal`s constitution history. It was issued on Ashwin 3, 2072 by the Constituent Assembly that consisted of people`s representatives repealing the Interim Constituent of Nepal, 2063.

With a view to ending all forms of discrimination and oppression created by the feudalistic, autocratic, centralized and unitary system of governance before, this constitution lays the foundation for progressive changes, sustainable peace, good governance. It consists of 35 Parts, 308 Articles and 9 Schedules.