Constitutional Developments in South Asia: Constitution of Nepal, 2015

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On 20th September 2015, Nepal adopted a new constitution that was prepared by its Second Constituent Assembly. The instant write-up is aimed at presenting briefly the constitutional developments in Nepal since its independence. It will also examine the structure of the new Constitution of Nepal. Finally, it will try to summarily compare it with the Constitution of Pakistan.

Constitutional History of Nepal

Nepal’s history can be linked to ancient era. From small kingdoms, it saw its unification in 1768 when the Kingdom of Nepal came into being. It remained under the influence of the East India Company for quite some time, and later its protectorate status of the Britain came to an end through a treaty between the Britain and Nepal. Its recorded constitutional history, in the contemporary sense, may be studied from 1948, when, after the independence of India, the impact of the Indian Congress was felt in Nepal where a Nepalese Congress was already in the making. The Kingdom was thus challenged by the democratic political forces.

In 1948, the Government of Nepal Act was passed that was followed by the Interim Government of Nepal Act 1951. The tension essentially was between the kingdom and the democratic aspirations of the people. This culminated in the Constitution of the Kingdom of Nepal in 1959 but it did not last long. In 1962, through local government/panchayat system, yet another Constitution was introduced. The 1962 Constitution aimed at marginalizing the political parties. The efforts did not sustain though. The Nepalese enacted yet another Constitution in 1990 which attempted to transform the country from an absolute monarchy to a constitutional monarchy. It placed sovereignty in the people of Nepal. It also introduced a basic structure doctrine in the sense that three basic features in the Constitution were non-amendable: constitutional monarchy, multiparty democracy, and the sovereignty of the people. These features could only be amended by a supermajority process coupled with a national referendum. The office of the Prime Minister was also established. The parliament was bicameral.

However, the arrangement did not last long due to the palace massacre of 2001, sacking of the government by the next King, and the Maoist-led politics in the country. The net result was that in 2007 an agreement took place amongst all the political parties whereby it was decided, in principle, to end the monarchy and to hold elections in 2008. It was also decided that the elected parliament will act as the Constituent Assembly for framing the new Constitution of Nepal. Based on this agreement, Nepal’s Interim Constitution of 2007 was promulgated. According to this Constitution, a 601-member unicameral parliament formed the 1st Nepalese Constituent Assembly that started its work immediately after its swearing-in, but could not fulfil its task in the given time.

Later in 2013, elections were held and the Second Constituent Assembly was constituted which has framed the present Constitution of Nepal 2015, which was formally adopted on 20th September 2015.

The Constitution of Nepal 2015

With 37 parts and 294 articles, the Constitution of Nepal, 2015 is a long and detailed document. It provides for a parliamentary form of government. The Fundamental Rights have been envisaged in detail. The constitution provides for a bicameral parliament: the House of Representatives and the National Assembly. The Constitution is federal in structure. It constitutes various national commissions: the National Human Rights Commission, the National Natural Resources and Fiscal Commission, the National Women Commission, the National Dalit Commission and the National Inclusion Commission. The Constitution prohibits amendments to the extent of altering the principles of self-rule of Nepal, the sovereignty by people and altering its territorial integrity. Accordingly, it vests the sovereignty in people. In the realm of foreign affairs, the right to enter into a treaty with other nations has been vested in the federal government. The judges’ appointment, according to the Constitution, will be made through the Constitutional Council comprising the Prime Minister, the Chief Justice, the Speaker of and Leader of Opposition in the House of Representatives, and the President of the National Assembly.

constituional 1The Constitution along with the Federal Public Service Commission provides for the Federal Judicial Service Commission. The competence of the three tiers of legislature (the federal, the provincial and the local) has been separately outlined. Fundamental Rights have been provided for in a long list and it includes the rights regarding mass media, justice, victims of crime, the Dalits, senior citizens, social justice, social security and exile. Above all, the new Constitution has turned Nepal into a republic from a kingdom. In the context of policing in Nepal, Article 263 of the Constitution constitutes a National Nepal Police, which will work under a federal law. The provinces have been authorized to have their own provincial police organizations. For the local government, there is a provision for legislation for municipal police.

Comparative Analysis with the Constitution of Pakistan—1973

In comparative terms, the constitutional history of Pakistan is not much different from that of Nepal. The two countries witnessed a plethora of constitutional developments. In case of Pakistan, three major constitutions i.e. 1956, 1962 and 1973, may be equated with the changing constitutional documents of Nepal in the years 1962, 1990 and 2007.

The 1962 Constitution of Pakistan provided the legal framework for local government in form of Basic Democracies and the presidential system; likewise, the 1962 Constitution of Nepal aimed at introducing the raj by panchayat (local government) system. The oscillation of Nepal’s constitutional structure and its power base between its monarchy and the democratic forces forms an interesting phenomenon worth a fully-fledged research. The Fundamental Rights provided by the new Constitution of Nepal are similar in nature to the Fundamental Rights as provided by the Constitution of Pakistan, 1973. The Nepal Constitution 2015 is a detailed document containing detailed procedures for working of the system especially the local government system; on the contrary, the Constitution of Pakistan, 1973 does not provide much detailed provisions vis-à-vis the local government. There is only an enabling provision in the form of 140-A provided through the 18th Amendment to the Constitution of Pakistan that caters for this aspect of the government. The Nepalese Constitution also provides the textual basis for doctrine of basic structure as propounded in India in Kesavananda Case by specifically providing aspects of the Constitution that cannot be amended.

Another distinguishing feature is that the Constitution of Pakistan, 1973 has legalized the religious dictates by codifying the same into its body, whereas, no such attempt has been made in the new Nepalese Constitution. The substantive nature of the Objectives Resolution that was introduced through Article 2-A into the Constitution of Pakistan is another feature unique to it, and obviously different from the Nepalese Constitution.

One aspect, which may be of interest, is that the First Constituent Assembly of Nepal did not grant itself a second term when it could not finish the task of constitution writing; the Constituent Assembly of Pakistan on its inability to complete its constitutional task instead of caring to get itself re-elected, opted to continue. This aspect of the matter has been highlighted just by the way of comparison. An article-by-article comparison of the two constitutions qualifies for a detailed academic project, which should surely be undertaken by the academics.

Concluding Remarks

Constitution-making of a country is surely a venture in the forming of a state. The continuity of a Constitution is tested best on the anvil of time. The constitutional developments in South Asia form an important part of its study. The Constitution of Nepal, 2015, in its present form, may be seen as an evolutionary step towards its nation-building, instead of as a culminating end unto itself.

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