CONSTITUTIONS OF NEPAL
The current constitution of Nepal was approved by the Third Constituent Assembly on September 16, 2015 and was signed by the president and put into effect on September 20, 2015. It was last amended in 2016. There were three constitutions (with variations) prior to this since 1951, when Nepal’s first constitutional government was established,. The Nepal constitution promulgated on November 9, 1990 was in effect with modifications until 2015. [Source: CIA World Factbook, 2020]
Nepal was a constitutional monarchy until the monarchy ceded power in 2006 and was officially abolished in 2008. An interim was parliament formed in January 2007 after peace agreement between the ruling Seven-Party Alliance and the Maoist rebels was signed, ending a civil war that started in the 1990s. An interim constitution adopted in January 2007, transferred the executive power of the Nepalese monarch to the prime minister. The 330-seat Interim Parliament was replaced by an elected 601-seat temporary Constituent Assembly in 2008 that served as Nepal's legislature and was responsible for writing a new constitution. The new constitution was enacted in 2015 after much effort, establishing the present form of government. [Source: Columbia Encyclopedia, 6th ed., The Columbia University Press]
Before the 2015 constitution was adopted Nepal was ruled for many years under the 1990 constitution. That constitution guaranteed the citizens' unfettered rights to political pluralism and a multiparty democracy. The constitution could be amended or repealed by a majority of two-thirds in each house of Parliament. However, such amendment or repeals could not be designed to frustrate the spirit of the preamble of the constitution, which recognizes the Nepalese people as the source of sovereign authority. After passing in both houses, any bill to repeal or amend the constitution had be approved by the king. [Source: Andrea Matles Savada, Library of Congress, 1991 *]
2015 Constitution
The Constitution of Nepal — which came into effect on September 20, 2015 after being and approved by the Third Constituent Assembly — is the present governing constitution of Nepal. The constitution of Nepal is divided into 35 parts, 308 Articles and nine Schedules. It was drafted by the Third Constituent Assembly following the failure of the First and Second Constituent Assembly to produce a constitution in its mandated period after the devastating earthquake in April 2015. Elections were held before the constitution was approved The constitution’s institutions were put in place in 2010 and 2018 through a series of direct and indirect elections in all governing levels. [Source: Wikipedia]
The Interim Constitution of 2007 provided for a Constituent Assembly, which was tasked with writing Nepal's temporary constitution. It was supposed to have a new constitution ready by April 2010. Because of disagreements this constitution was not ready until May 2011. Later, the Supreme Court of Nepal ruled that the 2010 extension of the Interim Constitution was unlawful because of the way Constituent Assembly repeatedly extended the Interim Constitution. In May 2012, the Constituent Assembly was dissolved after it failed to come up with a constitution after four years and several extension, leaving the country with no constitution. In November 2013, new election were held and the Second Nepalese Constituent Assembly was established, with political leaders promising to have a new constitution ready within a year but due to differences on key issues such as the system of governance, judicial system and federation issues like the number, name and areas of the states, the constitution was not finalized and promulgated until September 2015, with four states given the names Province No. One, Province No. Two, Province No. Three, and Province No. Five.
The Preamble of Nepal’s 205 Constitution reads: “We, the Sovereign People of Nepal, internalizing the people's sovereign right and right to autonomy and self-rule, while maintaining freedom, sovereignty, territorial integrity, national unity, independence and dignity of Nepal, recalling the glorious history of historic people's movements, armed conflict, dedication and sacrifice undertaken by the Nepalese people at times for the interest of the nation, democracy and progressive changes, and respecting for the martyrs and disappeared and victim citizens, ending all forms of discrimination and oppression created by the feudalistic, autocratic, centralized, unitary system of governance, protecting and promoting social and cultural solidarity, tolerance and harmony, and unity in diversity by recognizing the multi-ethnic, multi-lingual, multi-religious, multi-cultural and diverse regional characteristics, resolving to build an egalitarian society founded on the proportional inclusive and participatory principles in order to ensure economic equality, prosperity and social justice, by eliminating discrimination based on class, caste, region, language, religion and gender and all forms of caste- based untouchability, and being committed to socialism based on democratic norms and values including the people's competitive multi-party democratic system of governance, civil liberties, fundamental rights, human rights, adult franchise, periodic elections, full freedom of the press, and independent, impartial and competent judiciary and concept of the rule of law, and build a prosperous nation, do hereby pass and promulgate this Constitution, through the Constituent Assembly, in order to fulfill the aspirations for sustainable peace, good governance, development and prosperity through the federal, democratic, republican, system of governance.”
Features of the 2015 Constitution of Nepal
The constitution is largely written in gender-neutral terms. Some of the important aspects of the constitution include the following: 1) The Constitution restructured Nepal into a federal republic. The Constitution divided the nation into seven provinces and completed the transition of Nepal from constitutional monarchy to republicanism and from a unitary system to federalism. 2) The Federal system is established with three tiers, Federal Government, Provincial Level, and Local Level. The guiding principles of the 'Holding Together' type of Nepalese federal system are based on Co-existence, Co-operation, and Coordination (3Cs). [Source: Wikipedia]
3) Nepal is defined in article 4 as an "independent, indivisible, sovereign, secular, inclusive, democratic, socialism-oriented, federal democratic republican state." A bicameral parliamentary system was created with two Federal houses and unicameral parliamentary systems in each province. 4) A mixed electoral system was adopted for the elections of the lower Federal house with both first-past-the-post and proportional electoral aspects used to elect members.
5) The rights of gender and sexual minorities are protected by the new constitution with provisions of special laws to protect, empower and develop minority groups as well as allowing them to get citizenship in their chosen gender. 6) The rights of women were explicitly recognized, the constitution stating that “women shall have the equal ancestral right without any gender-based discrimination.” Acts leading to conversions from one religion to another were banned, and acts that undermine or jeopardize the religion of another prohibited. At the same time, the constitution declares the nation to be secular and neutral toward all religions. 7) Nepal also has continued not to use the death penalty. Nepal had abolished capital punishment in 1990 after the promulgation of that year's Constitution of the Kingdom of Nepal.
Constitutional Development in Nepal: Rana System
Beginning in 1856, the center of power in Nepal rested with the Rana prime ministers, who retained sovereign power until the revolution of 1950-51. Many of the nobles who participated in the consultative court called the Assembly of Lords, or Bharadari Sabha, had been slaughtered at the Kot Massacre in 1846. Following his official visit to Britain and Europe in 1851, Jang Bahadur Kunwar (later called Jang Bahadur Rana) began to use the Bharadari Sabha as deliberative body for state affairs. For almost 100 years, this council served as a rubber stamp for the Rana autocracy. [Source: Andrea Matles Savada, Library of Congress, 1991 *]
The next major effort at institutional development was initiated in 1947 by Padma Shamsher Rana, a liberal prime minister, who appointed a Constitutional Reform Committee to draft the first constitution. Known as the Government of Nepal Constitution Act, 1948, this constitution, written with the help of Indian advisers, superficially changed the Rana system. It established a bicameral legislative body. The entire membership of one house and a majority of the other was selected by the prime minister, who could reject any measure that the legislature might pass. There was a cabinet of at least five members, of whom at least two were chosen from among the few elected members of the legislature.*
The act also specified that a panchayat system of local self-government would be inaugurated in the villages, towns, and districts. It enumerated certain fundamental rights and duties, which included freedoms of speech, the press, assembly, and worship; equality before the law; free elementary education for all; and equal and universal suffrage. Despite the appearance of reform, the alterations made in the Rana system by the constitution were slight. The more conservative Ranas perceived the constitution as a dangerous precedent, forced Padma Shamsher to resign, and suspended promulgation of the constitution. The constitution became effective in September 1950 but remained in force only until February 1951, when the Rana monopoly was broken and the creation of a new constitutional system began.*
Interim Constitution, 1951
The revolution of 1950-51 resulted in the overthrow of the Rana system. In 1951 King Tribhuvan Bir Bikram Shah announced by royal proclamation an interim government and an interim constitution until a new Constituent Assembly could be elected. The interim constitution, based on principles in India's constitution and entitled the Interim Government of Nepal Act, 1951, ratified the end of the authority of the prime minister and the system surrounding that office. It also reasserted the king's supreme executive, legislative, and judicial powers. The king exercised his executive authority through, and was aided and advised by, a Council of Ministers, which he appointed and which served at his pleasure.*
The king also appointed an Advising Assembly to sit until the Constituent Assembly was elected. The king retained sovereign and plenary legislative powers. The Advising Assembly was, with certain exceptions, authorized only to discuss matters and to recommend measures to the king for enactment into law. The final authority to approve any legislative measure lay with the king. The constitution also established a Supreme Court, made the king supreme commander of the armed forces, reiterated and enlarged upon the fundamental rights included in the Rana constitution, and proclaimed numerous social and economic objectives of the government. These objectives were to promote the welfare of the people by securing a social order in which social, economic, and political justice pervaded all the institutions of national life. King Mahendra (reigned 1955-72) vigorously sought to broaden the monarch's political base, but the Nepali National Congress succeeded in gaining some democratic reforms. Although the constitution was expected to be temporary pending the election of a Constituent Assembly and the preparation of a permanent organic law, King Mahendra was unable to resist the increasingly well-orchestrated political demands by the Nepali National Congress for a more democratic and representative government, and was forced to promulgate a new constitution.*
Royal Constitution of 1959
The most significant aspect of the constitution of 1959 was that it was granted by the king rather than drawn up by elected representatives of the people as had been specified in the 1951 constitution. Although the constitution formally brought into being a democratically elected parliamentary system under a constitutional monarchy, the king retained ultimate sovereignty, even though the document itself did not explicitly grant this power. [Source: Andrea Matles Savada, Library of Congress, 1991 *]
The 1959 constitution, modeled on British and Indian constitutional custom, vested executive power in the king, who was advised and assisted by a Council of State (Raj Sabha) and a Council of Ministers (cabinet). The Council of State, which consisted of officers of Parliament, ministers ex officio, former ministers, and royal appointees, advised the monarch on legislation and handled the details of regency and succession in the event of his death or disability. The general direction and control of the government were entrusted to the Council of Ministers, headed by a prime minister required to command a majority in the lower house of Parliament, to which the council was collectively responsible.*
The king was an integral part of the legislative arm of the government. Parliament was defined as consisting of the king; the House of Representatives, composed of 109 popularly elected members; and the Senate, composed of 36 members of whom half were elected by the house and half were nominated by the king. All bills approved by the two houses required the assent of the king to become law. The constitution granted the king wide latitude to nullify the parliamentary system. The king could suspend the operation of the cabinet and perform its functions himself if he determined that no person could command a majority in the house as prime minister. In the event of a breakdown of the parliamentary system or of any one of a number of emergency conditions, the king could suspend either or both houses of Parliament, assume their powers, and suspend the constitution in whole or part. In December 1960, King Mahendra invoked these emergency powers to dissolve the Nepali Congress Party government. The constitutional system that had prevailed before 1959 was then returned to operation.*
Panchayat Constitution, 1962
By royal proclamation on December 16, 1962, King Mahendra announced a new constitution that radically reformed the 1959 constitution but also adopted many features of the Rana system. Known as the Panchayat Constitution, it was the fourth constitution in fifteen years. [Source: Andrea Matles Savada, Library of Congress, 1991 *]
The panchayat system was an institution of great antiquity. Historically, each caste group system of Nepal formed its own panchayat, or council of elders, a sociopolitical organization operational on a village level that could expand to include neighboring districts, or even function on a zonal basis. Although it could be argued that the panchayat system was adopted from India, King Mahendra had argued for its incorporation at the national level as an exponent of Nepalese culture — a worthy and historically correct representation of cultural expression.*
The 1962 constitution was based on some elements from other "guided democracy" constitutional experiments — notably "Basic Democracy" in Pakistan, "Guided Democracy" in Indonesia, and the "Dominant Party System" in Egypt. The Panchayat constitution not only codified the irrelevance of political parties, but also declared them illegal.*
The 1962 constitution contained a stronger and more explicit statement of royal authority than did previous constitutions. Real power remained with the king, who was the sole source of authority and had the power not only to amend the constitution but also to suspend it by royal proclamation during emergencies. The Council of Ministers, selected from the members of the legislative (Rashtriya Panchayat, or National Panchayat), served as an advisory body to the king. Members of the Rashtriya Panchayat were elected indirectly by the members of local panchayat as well as by the members of professional and class organizations such as the Nepal Workers' Organization, the Nepal Ex-servicemen's Organization, and the Nepal Youth Organization. The constitution abolished all political parties.*
Constitutional Amendments and the Referendum of 1980
The Panchayat Constitution was amended several times, primarily to increase the power and prerogatives of the monarchy against the increasing popular demand for liberalization of the political institutions and processes. In view of the mounting criticism against the Panchayat Constitution, King Birendra, who had succeeded his father in 1972, pursuant to recommendations of a specially created Constitutional Reform Commission, announced in 1975 that the constitution would be amended to include provisions governing the amending procedure itself. Previously the king could not amend the constitution unless two-thirds of the Rashtriya Panchayat ratified the proposed amendment. Under the proposed amendment, the king would have to consult a special committee of the Rastriya Panchayat before amending the constitution. In addition, the term of a delegate to the Rashtriya Panchayat was reduced from six years to four years.*
In May 1979, concerned by the unabated political demonstrations and considerable general unrest, King Birendra called for a nationwide referendum to determine the future form of government. The referendum offered two choices: a continuation of the partyless panchayat system, with prospects for further reform; or a multiparty system. Although no clear definition of a multiparty system was provided, the implication was that it stood for a parliamentary system of government run on a party basis. The referendum, the first nationwide vote in twenty-two years, was held on May 2, 1980, and 67 percent of the eligible voters participated. The panchayat system was chosen with a majority of 54.7 percent of the votes. On May 21, 1980, the king appointed an eleven-member Constitution Reforms Commission to be chaired by the acting chief justice of the Supreme Court. On December 15, the king promulgated three constitutional amendments: direct elections to the Rashtriya Panchayat would be held every five years for 112 seats, with 28 additional seats filled by the king's personal nomination; the prime minister would be elected by the Rashtriya Panchayat; the cabinet would be appointed by the king on the recommendation of the prime minister and would be accountable to the Rashtriya Panchayat; and Nepal would commit to the Nonaligned Movement as a zone of peace. These provisions, with a few minor modifications, remained in operation until early 1990, when the prodemocracy movement successfully agitated for a multiparty democratic system.*
Constitution of 1990
The constitution, broadly based on British practice, is the fundamental law of Nepal. It vests sovereignty in the people and declares Nepal a multiethnic, multilingual, democratic, independent, indivisible, sovereign, and constitutional monarchical kingdom. The national and official language of Nepal is Nepali in the Devanagari script. All other languages spoken as the mother tongue in the various parts of Nepal are recognized as languages of the nation. Although Nepal still is officially regarded as a Hindu kingdom, the constitution also gives religious and cultural freedom to other religious groups, such as Buddhists, Muslims, and Christians. The preamble of the constitution recognizes the desire of the Nepalese people to bring about constitutional changes with the objective of obtaining social, political, and economic justice. It envisages the guarantee of basic human rights to every citizen, a parliamentary system of government, and a multiparty democracy. It also aims to establish an independent and competent system of justice with a view to transforming the concept of the rule of law into reality.*
The constitution lays down various directives in matters of political, economic, and social development, and foreign policy. These lofty policies are guidelines to promote conditions of welfare on the basis of the principles of an open society. One objective is to transform the national economy into an independent and self-reliant system by making arrangements for the equitable distribution of the economic gains on the basis of social justice. The constitution stresses the creation of conditions for the enjoyment of the fruits of democracy through the maximum participation of the people in governance of the country. Other aims include the pursuit of a policy in international relations that will enhance the dignity of the nation and ensure sovereignty, integrity, and national independence and the protection of the environment from further ecological damage.*
Other safeguards include the right to property; the right to conserve and promote one's language, script, and culture; the right to education in the student's mother tongue; freedom of religion; and the right to manage and protect religious places and trusts. Traffic in human slavery, serfdom, forced labor, or child labor in any form is prohibited. The right to receive information about matters of public importance and the right to secrecy and inviolability of one's person, residence, property, documents, letters, and other information also are guaranteed.*
Baakground Behind the Constitution of 1990
Widespread prodemocracy protests toppled the panchayat system in April 1990. The king appointed an independent Constitution Recommendation Commission to represent the main opposition factions and to prepare a new constitution to accommodate their demands for political reform. [Source: Andrea Matles Savada, Library of Congress, 1991 *]
On September 10, 1990, the commission presented King Birendra with the draft of a new constitution, which would preserve the king's status as chief of state under a constitutional monarchy but establish a multiparty democracy with separation of powers and human rights. As agreed upon earlier, the king turned the draft constitution over to Prime Minister K.P. Bhattarai and his cabinet for review and recommendations. The draft was discussed extensively and approved by the interim cabinet. A major obstacle to approval was avoided when the commission removed a disputed provision under which both the constitutional monarchy and multiparty system could have been eliminated by a three-quarters majority vote of Parliament. *
On November 9, 1990, King Birendra promulgated the new constitution and abrogated the constitution of 1962. The 1990 constitution ended almost thirty years of absolute monarchy in which the palace had dominated every aspect of political life and political parties were banned.*
Basic Rights Constitution of 1990
Part three of the constitution provides for the fundamental rights of citizens. Although some elements of fundamental rights guaranteed in the 1962 constitution are reflected in the 1990 constitution, the latter provides new safeguards in unequivocal language and does not encumber the fundamental rights with duties or restrictions purported to uphold public good. All citizens are equal before the law, and no discrimination can be made on the basis of religion, race, sex, caste, tribe, or ideology. No person shall, on the basis of caste, be discriminated against as an untouchable, be denied access to any public place, or be deprived from the use of public utilities. No discrimination will be allowed in regard to remuneration for men and women for the same work. No citizen can be exiled or be deprived of liberty except in accordance with the law; and capital punishment is disallowed.*
In addition, sections on fundamental rights provide for freedom of thought and expression; freedom to assemble peacefully and without arms; freedom to form unions and associations; freedom to move and reside in any part of Nepal; and freedom to carry out any profession, occupation, trade, or industry. Similarly, prior censorship of publications is prohibited, and free press and printing are guaranteed. Unfettered cultural and educational rights also are guaranteed. Articles twenty-three and eighty-eight provide for a citizen's right to constitutional remedy. Any citizen can petition the Supreme Court to declare any law or part thereof as void if it infringes on the fundamental rights conferred by the constitution.*
Rights regarding criminal justice include the guarantee that no person will be punished for an act unpunishable by law or subjected to a punishment greater than that prescribed by the laws in existence at the time of commission of the offense; no person will be prosecuted more than once in any offense; and no one will be compelled to bear witness against himself or herself. Inflicting cruelty on a person in detention is prohibited, as is detaining a person without giving information about the grounds for such detention. Further, the person in detention must be produced within twenty-four hours of such arrest before the judicial authorities. Any person wrongly detained will be compensated.*
Image Sources: Wikimedia Commons
Text Sources: New York Times, Washington Post, Los Angeles Times, Lonely Planet Guides, Library of Congress, Nepal Tourism Board (ntb.gov.np), Nepal Government National Portal (nepal.gov.np), The Guardian, National Geographic, Smithsonian magazine, The New Yorker, Time, Reuters, Associated Press, AFP, Wikipedia and various books, websites and other publications.
Last updated February 2022