Research article on Constitutional Development of Nepal

Introduction (Background)

The constitutional development of Nepal has not come a long way. Earlier, during the reign of Gopal and Mahispal dynasty, no legal history is found. During the Kirat Period, Mundhum and Dus Limbuwan ko Thiti were the prime sources of law to govern the society. The Lichchhavi legal system was based upon Hindu Dhramasastras and Smrities. After the arrival of Malla dynasty, the era of written law started in Nepal when Jaysthiti Malla first made Manav NyayaShastra.

During, the constitutional development of Nepal, the government of Nepal Act 2004 B.S is the first and historical document of Nepal which was declared by the Shree III Padma Shamsher JBR. The Padma Shamsher JBR himself was the inciter or promoter of this constitution. It was followed by the Interim Government Act 2007 after the introduction of democracy. Within a short period of hardly six decades, six different constitutions have been announced so far in Nepal. Those constitutions were not fully democratic. Those constitutions failed because they were not formulated according to the democratic participation and wishes of people. Some of them were formulated merely as the means for the rulers to satisfy their ambitious hunger for power. After the popular movement of 2062/63, Nepal started making a truly democratic constitution through an elected constituent assembly that could ensure widest possible public participation.

The following paragraphs briefly describe those constitutions of Nepal:

 Nepal Government Act 2004 BS

Nepal Government Act 2004 BS, the first constitution of the land consisted of 6 parts, 68 articles, and 1 schedule. It made provisions for fundamental rights and duties, the council of ministers, courtiers' assembly, the bicameral parliament, public service commission’s etc. It was supposed to be promulgated on 1^st Baishakh, 2005. But Prime Minister Padma Shamsher could not enforce the constitution because of undue pressure from resistant Ranas like Babar Shumsher and Mohan Shumsher. So, it just remained a constitution without implementation.

Nepal Interim Government Act 2007 BS

Promulgated on 17^th Chaitra 2007 BS after the overthrow of the Rana autocracy, Nepal Interim Government Act 2007 BS was divided into 7 parts, 73 articles, and 3 schedules. It made provisions for directive principles and policies of the government, council, election commission, financial procedure, etc. This interim constitution remained active for unexpectedly a longer time as late as until 2015 BS.

The Constitution of the Kingdom of Nepal 2015 BS

As a more democratic constitution, the Constitution of the Kingdom of Nepal 2015 BS made a provision for the adult franchise, bicameral parliament, auditor general, constitutional monarchy, king's emergency power, supreme court, an independent judiciary, election commission etc. It consisted of 10 parts, 77 articles, and 3 schedules. This democratic constitution was promulgated on 1^st Falgun 2015 BS but was soon suspended almost fully on 1^stPoush 2017 by power seeking King Mahendra.

The Constitution of Nepal 2019 BS

As the fourth constitution of Nepal, the constitution of Nepal 2019 BS gave constitutional recognition to the party-less Panchayat system put into practice by King Mahendra in 2017 BS. It was divided into 20 parts, 97 articles, and 2 schedules. It provided for people's fundamental rights, adult franchise, the council of ministers, national panchayat, supreme court, etc. Promulgated on 1^stPoush 2019 BS, this constitution was amended in 2023 BS, 2032 BS, and 2037 BS and was finally abandoned by the popular movement in 2046 BS that restored the multi-party system in the country.

The Constitution of Kingdom of Nepal 2047 BS

Promulgated by King Birendra on 23 Kartik 2047 BS after the success of the Popular Movement I, the constitution of the Kingdom of Nepal 2047 BS was divided into 23 parts, 133 articles, and 3 schedules. It was noted for its provisions for more fundamental rights, sovereignty inherent in people, constitutional monarchy, multiparty democracy, adult franchise, independent judicature, the rule of law, etc. However, some of its articles gave way to the king's efforts for taking more executive movement II in 2063 BS.

The Interim Constitution of Nepal 2063 BS

The Interim Constitution of Nepal 2063 BS was promulgated on 1^st Magh 2063 BS in the name of the people by legislative parliament. Divided into 25 parts, 167 articles, and 4 schedules, this constitution established Nepal as a secular and republican state whose state power is inherent in the people. The constitution provided for the unicameral legislature parliament, election to the Constituent Assembly, recognition of Human Rights Commission as a constitutional organ, originally the appointment of the Commander-in-Chief by the Prime Minister and so on. It underwent eleven different amendments before its fifth anniversary.

Constitution of Nepal - 2072 BS

The Constitution of Nepal 2072 BS was promulgated by President Ram Baran Yadav unveiled on behalf of Speaker Subash Chandra Nembang on 3rd Ashwin 2072 BS. It is divided into 35 parts, 308 articles, and 9 schedules. It is the seventh constitution of Nepal. It was amended on 9th Magh 2072 B.S.

 The following are the major characteristics of the constitution:

• Secularism
• Federal model with seven provinces
• Democratic Republican State
• Independent and fair judiciary
• Executive rights on Council of Ministers
• President as a ceremonial head of the state
• Full press freedom
• Citizenship by descent to a child of a Nepali father or mother
• Sovereignty of people

Timeline of Constitutional Development in Nepal

Period	Phases	Constitutional Development
1768 – 1854	Pre-Constitutional Period	1768: State of Nepal formed. 1854: Proclamation of Muluki Ain (Law of the Land), the first codification of traditional laws in common practice commissioned by Rana, Jung Bahadur.
1947- 1959	Three Early Constitutions	1.Nepal Government Act 2004 BS (1948) 2. Nepal Interim Government Act 2007 BS (1951) 3. The Constitution of the Kingdom of Nepal 2015 BS (1959)
1960- 1989	Return to Autocracy I	1960 King Mahendra dismisses Prime Minister Koirala government, enacts emergency rule and suspends the 1959 constitution. The Constitution of Nepal 2019 BS (1962) 1980: National Referendum (May) held on the question of return to multi-party democracy or continuing the Panchayat system with reforms.  The allegedly rigged referendum result favor reform in Panchayat system with a small majority –55% against the 45% support registered for multi-party system.
1990- 2001	Second Democratic Experience	1990: People’s Movement for the restoration of multi-party democracy (April). King Birendra bows to popular pressure after 55 days of protests nationwide, The Constitution of Kingdom of Nepal 2047 BS (1990) 1996: Communist Party of Nepal – Maoist submits 40 points demand to the government with ultimatum to launch war if the demands not met.  People’s war launched by CPN – Maoist (February)
2002- 2006	Return to Autocracy II	2002: King dissolves Parliament on the advice of Prime Minister Deuba (May). Date for new election set for November. King removes Prime Minister Deuba from office and proclaims assumption of executive power. 2005: King removes Deuba from office second time in less than two years (February). Proclaims himself as the chief executive and head of the council of ministers.
2007-2015	Return to democracy	Interim Constitution of Nepal 2007 (ICON-2007) promulgated by the House of Representative. Maoists join the interim government under ICON-2007 (April) Eight Party meeting fixes new date for holding election of CA by third week ofNovember, 2007 (May) Constitution of Nepal - 2072 BS

Problems identification

The constitution of Nepal has practiced almost failure of six constitution in six times. Unlike the previous constitutions, the new Constitution recognizes the ethnic diversity of the country. The constitutional development towards changes in society from different aspects like cultural aspect, religious aspect, rights of minority, women, indigenous people, can be seen in some level. Minority people struggle for an identity, and demand that the identity be publicly acknowledged.  Nepal appears to have accommodated ethnicity in the legal structure of the Country while retaining national identity with a federal system of government. There is a need for additional measures both legal and political, to address the problem of disadvantaged ethnic groups in heterogeneous societies like Nepal.

The Present constitution is more democratic than any other constitution which was made from the constitution assembly where more than ninety percent were in favor while promulgation of constitution. However, some big leaders like Dr. Baburam Bhattarai was skeptical in its legitimacy and ownership. Also, major madhesi political parties have always tried to raise the question of madhesis legitimacy.

The Constitution Day in Nepal will always remain to be The Black Day for Madhesis until the meaningful amendment of the constitution addresses their dissatisfaction. Unless the constitution is amended, its legitimacy will always be questioned. The Madhes will have ownership over this constitution only after it is amended to meet their aspirations. Then only, it will be observed the Constitution Day. The ownership of the constitution is always challenging part in the history of constitutional development of Nepal.

Analysis of Issues

The constitutional development of Nepal has ended monarchy to Republican country, Hindu-Kingdom to Secularism and Unitary government system to Federal Government system. The new federal system of government is to address the social diversity and identity of the country. Nepal have move forward in inclusive democracy and provided 31 fundamental rights guaranteed in the constitution. However, the law-making procedure has not completed in the present time. The implementation of   law after its procurement should be done quickly as possible within the time frame provided in constitution. The implementation of the constitution is the challenging part for the government and to raise the ownership of constitution of unsatisfied groups as well either through the amendment of constitution if necessary.

Nepal is also a secular country in the world. The constitution of Nepal declares secular but the practice existed in societies is a Hindu-dominance by a state level. Cow slaughtering is against law in Nepal existed only in the Nepalese societies in the world. This current issue is the most debatable in Nepal where the slaughtering of cow is illegal under two grounds, first cow is the holy animal in Hindu religion and they worship as a mother, however in reality it is found many Hindu religion follower do not believe in making animal as a mother. Second, it is the national animal of Nepal. Under, this many countries like France, Australia do not impose any restriction under it. For e.g., cock is the national animal of France but chicken is popular there. Hence, state should not do interference and regulation in food like beef which cannot be regulated. Beef is popular in many parts of the countries in the world. Further, slaughtering of cow is the culture of certain communities’ group and tradition like Kirati in “Sakhewa”, Tamang, Sherpa, Rai, Limbu community group. So, it will not be wrong to call as cultural religious hegemony still prevails of Hindu at some level from the Hindu kingdom to Secularism country.

Conclusions

Ninety-four years after the promulgation of Muluki Ain, Nepal had its first constitution. With the rise of democracy, the need for constitution further garnished. Within six decades, six different constitutions have been announced so far in Nepal. Those constitutions were not fully democratic. Those constitutions failed because they were not formulated according to the democratic participation and wishes of people. Some of them were formulated merely as the means for the rulers to satisfy their ambitious hunger for power.

Nepal is a federal democratic republic country. The present constitution of Nepal leaves an unsatisfied madhesi people behind during the drafting procedure of constitution. Nepal has moved a forward at present context and successfully conducted a three- tier election. However, the government should pay attention to all the unsatisfied groups and their demands and must try to Build ownership of constitution in a democratic way.