Constitutional development in Nepal & it’s analytical review (Part-I)

Introduction

A constitution is a formal document that establishes the fundamental principles and legal framework of a nation or organization. It delineates the structure, powers, and functions of government institutions, defines the rights and responsibilities of citizens, and sets forth the procedures for making and enforcing laws. A constitution serves as the supreme law, guiding the governance and legal system, and ensuring the protection of individual rights and the rule of law.

Broad Definition of a Constitution

In a broad sense, a constitution refers to the entire body of fundamental principles, norms, and rules that establish the structure, functions, and limits of a political entity. This includes not only the written document but also unwritten customs, conventions, judicial decisions, and legislative practices that collectively guide the governance of the state. It encompasses all the laws and norms that define how power is exercised, distributed, and controlled within the society.

Narrow Definition of a Constitution

In a narrow sense, a constitution is specifically the formal, written document that outlines the fundamental legal framework of a state or organization. This document explicitly enumerates the essential elements such as the organization of government, the distribution of powers among different branches, the process for lawmaking, the protection of fundamental rights, and the mechanisms for amending the constitution itself. It is seen as the supreme legal authority, often referred to as the “supreme law of the land.”

Constitutional development in Nepal

Nepal’s constitutional development is a compelling narrative of struggle, aspiration, and transformation. Spanning over seven decades, the evolution of Nepal’s constitution reflects the country’s socio-political changes, ethnic diversity, and aspirations for democracy and inclusivity. This review goes beyond the historical context, key constitutional milestones, and the contemporary implications of Nepal’s constitutional journey.

Historical Context

Nepal, a landlocked country nestled between India and China, has a rich history of monarchial rule that dates back centuries. The Shah dynasty unified Nepal in the mid-18th century, laying the foundation for a centralized state under monarchical control. However, the desire for a more democratic and inclusive governance system started to emerge in the early 20th century, influenced by global movements and local discontent.

Before the promulgation of the constitution in 1948 AD, the governance in Nepal was largely influenced by Hindu customs, cultures, norms, values, and beliefs. Here is a more detailed look at how these elements were integrated into the ruling systems:

Ancient and Medieval Periods

1. Licchavi Period (c. 400 – 750 AD)

   • The Licchavi kings ruled according to Hindu principles, with the king considered the supreme ruler and a representative of divine authority. The social and legal systems were heavily influenced by Hindu texts like the Manusmriti, which dictated caste roles, duties, and social hierarchy.

2. Malla Period (12th – 18th Century)

   • The Malla kings were patrons of Hinduism and also supported Buddhism. Governance was based on Dharma, and kings were seen as protectors of religion. Many Hindu festivals, traditions, and rituals were institutionalized during this period. The caste system played a significant role in social structure.

Unification and Shah Dynasty

3. Shah Dynasty under Prithvi Narayan Shah (1743 – 1775 AD)

   • Prithvi Narayan Shah unified Nepal and promoted the idea of Nepal as a “Hindu nation.” His governance was deeply rooted in Hindu beliefs, and he emphasized the importance of traditional Hindu culture and values. His policy of “divine kingship” reinforced the king’s role as a semi-divine figure.

Rana Regime (1846 – 1951 AD)

4. Rana Autocracy

   • The Ranas maintained a strong Hindu identity. The legal and administrative systems during the Rana period were heavily based on Hindu customs and the Muluki Ain (National Code) of 1854. This code was a comprehensive legal document that institutionalized Hindu social norms, including the caste system and gender roles.
   • The Muluki Ain included laws that regulated marriage, property rights, and criminal behavior according to Hindu principles. The Ranas upheld the caste hierarchy, with Brahmins and Chhetris (the warrior and ruling classes) holding significant power.

The First Constitution: The Government of Nepal Act, 1948

Introduction

The Government of Nepal Act, 1948, was a landmark legal document intended to introduce constitutional governance in Nepal. Promulgated by the Rana Prime Minister Padma Shumsher Jang Bahadur Rana, it aimed to placate growing demands for democracy and political reform. However, its implementation and impact were short-lived and limited.

Historical Context

The act came during a period of increasing political awareness and agitation against the Rana autocracy, which had ruled Nepal since 1846. Influenced by global movements towards democracy and the end of colonialism, as well as political developments in neighboring India, there was mounting pressure on the Rana regime to reform.

Main Features of the Government of Nepal Act, 1948

1. Executive Authority:
   • The act provided for a dual executive with a hereditary Prime Minister (from the Rana family) holding significant power, while the King remained the nominal head of state.
   • The Prime Minister was to be supported by a Council of Ministers, some of whom were to be elected and others appointed by the Prime Minister.
2. Legislature:
   • A bicameral legislature was established, consisting of an upper house (State Council) and a lower house (Assembly).
   • The Assembly was to include elected representatives, thus introducing elements of representative democracy. However, the electoral system and franchise were limited.
3. Judiciary:
   • The act proposed an independent judiciary to oversee the application of the law, including fundamental rights and administrative justice.
4. Fundamental Rights:
   • The act enshrined several fundamental rights, such as freedom of speech, freedom of assembly, and equality before the law. However, these rights were not comprehensive and were subject to limitations.
5. Provincial Administration:
   • Provision was made for the decentralization of administration, allowing for provincial and local governance structures.

Critical Analysis

1. Strengths:
   • Introduction of Representative Elements: The act was the first attempt to introduce elements of representative democracy in Nepal. The creation of an elected Assembly, albeit limited, was a significant step towards political modernization.
   • Recognition of Fundamental Rights: By including fundamental rights, the act acknowledged the importance of civil liberties, setting a precedent for future legal frameworks.
   • Institutional Framework: The establishment of a bicameral legislature and the concept of an independent judiciary provided a basic institutional framework for governance.
2. Weaknesses:
   • Limited Democratic Transition: The act maintained significant power in the hands of the Rana Prime Minister, undermining the democratic intent. The electoral process was restricted, and the franchise was limited to a small, elite segment of the population.
   • Ambiguities and Power Imbalances: The division of power between the Rana Prime Minister and the King was not clearly defined, leading to potential conflicts and power struggles.
   • Ineffectiveness and Lack of Implementation: The act was never fully implemented. Resistance from conservative Rana elements and lack of genuine commitment to reform meant that the promised changes were not realized in practice.
   • Insufficient Rights Protections: While fundamental rights were recognized, their scope was limited, and the judicial system lacked the capacity to enforce these rights effectively.
3. Impact and Legacy:
   • The act failed to bring about significant political change, leading to continued dissatisfaction and eventual revolution. The 1950-51 revolution, driven by demands for genuine democracy, culminated in the end of the Rana regime.
   • The act’s shortcomings highlighted the need for more comprehensive and genuinely democratic reforms, influencing subsequent constitutional developments, including the Interim Constitution of 1951.
   • Its legacy is one of a missed opportunity. While it marked a step towards constitutional governance, it ultimately fell short of transforming Nepal’s autocratic system.

Conclusive Remarks

The Government of Nepal Act, 1948, was a significant but flawed attempt to introduce constitutional governance in Nepal. While it included important elements such as representative institutions and fundamental rights, its limited democratic transition, power imbalances, and lack of genuine implementation rendered it largely ineffective. The act’s failure underscored the challenges of transitioning from autocracy to democracy and set the stage for future political upheaval and reform. Its legacy serves as a reminder of the complexities involved in political transformation and the importance of genuine commitment to democratic principles.

Constitutional development in Nepal & it’s analytical review (Part-2)