Monograph: The Constitution Saga of Nepal

Nepal is an immensely diverse country by geography, ethnicity, language, religion as well as caste. In epic times, it was ruled by ethnic people of Himalayas called Kirats. The Kirat rulers were replaced by several ingenious tribes such as Thakuris, Mallas etc. For the first time in 18th century, this country was unified by king Prithvi Narayan Shah, of the Shah dynasty by defeating the minor and major principalities. He shifted his capital to Kathmandu and renamed his “Gorkha Kingdom” to Nepal. The kings of this Gorkha kingdom were very ambitious and wanted to extend their territories as far as possible. They fought with Tibet, with China as well as British India. In 1814, the two year Anglo-Nepalese war resulted into their heavy defeat and they lost the terai region to British.

The Shah dynasty lost the control over Nepal when entire generation of these people were massacred in a coup called “Kot Parba” (Court massacre) in 1846. Hence forth, the sovereign power came with “Ranas” led by Jung Bahadur Rana. The Shahs were made titular monarchs and Ranas became real rulers under the hereditary Prime Minister system they established via this coup. Junbg Bahardur Rana was able to first codify the traditional laws and proclaim the so called “Muluki Ain” (Law of the Land) in 1854. Nine rulers of this dynasty ruled for entire one century till 1951 when increased dissatisfaction against the family rule resulted in the Revolution of 1951.

The revolution of 1951 was the first political movement of Nepal against the dynastic regime of the Rana Prime Ministers. It Nepalese it is called Sat Salko Kranti corresponding to year 2007 of Bikram Samvat era. This revolution was led by the educated and exiled people of Nepal, most of whom were educated in other countries including India. They came together to form several political parties such as Nepal Praja Parishad and Nepali Congress (with its military wing called Nepali Congress’s Liberation Army) to overthrow the hereditary prime ministers Ranas by force.

Such revolutionary activities against Ranas were explicitly supported by the then shah monarch King Tribhuvan (Shah). Prime Minister Mohan Shamsher Jang Bahadur Rana tried to suppress the revolt by executing several people but the crisis deepened when Tribhuvan fled from Nepal and took refuge in New Delhi. However, Prime Minister Rana responded this move by crowing Gyanendra Bir Bikram Shah, grandson of Tribhuvan as new King of Nepal. The new king was not recognized by international community including India.

The crisis ended after signing of a tripartite agreement in Delhi between Ranas, King Tribhuvan and Nepali Congress. This so called “Delhi Accord” secured return of Tribhuvan as King of Nepal with ultimate powers in his hand. It was also agreed that an elected Constituent Assembly will frame a democratic constitution of the country in two years. An interim cabinet will be formed of 10 ministers of which 5 will be from Nepali Congress Party. Thus, the “Interim Government of Nepal Act 1951” was enacted as one of the most prototype of the constitution of Nepal in 1951 with some democratic elements in the government. A few months later, Nepali Congress members resigned from the interim government and King Tribhuvan appointed a new non-Rana prime minister Matrika Prasad Koirala, as head of Nepal’s first democratically elected government.

But within 18 months, another coup was organized by Tribhuvan’s son Mahendra, who dismissed the Koirala government on the ground that parliamentary democracy is a failure. He imposed his own constitution and what was established is so called “Panchayat system”, a partyless government in Nepal.

The partyless Panchayat system was established in Nepal by King Mahendra in 1960 and it remained in force till 1990s. This was a pyramidal structure, beginning with some 4000 village assemblies and ending into the Rastriya Panchayat (National Parliament). Though people could elect their representatives, the Panchayat system was based on the absolute power of the monarchy with King as sole authority over all governmental institutions, including the Cabinet and the Parliament. The political parties were declared illegal.

The National Panchayat was made of 90 members. It had no power to criticise the royal monarchy; no power to introduce budget without royal approval and no power to debate the principles of partyless democracy. The King was supreme commander of the armed forces, had power to appoint and remove the supreme court judges, appoint the members of public service commission and amend the constitution at will. The elections were held first time in 1963 for National Panchayat but all political parties were banned. In around a decade, King Mahendra virtually had regained all the sovereign powers enjoyed by his ancestors in 18th century.

In 1972, King Mahendra was succeeded by his son King Birendra, who continued the authoritarian rule. The public dissent, student demonstration, anti-regime activities kept on growing along with rampant arrests of activists by the royal government.

Amid protests, the King Birendra called for a national referendum in 1980 on the question of -what should be the system of government: whether to continue the Panchayat system with democratic reforms or establishment of a multiparty system. In this referendum, the Panchayat system got a narrow victory. Few democratic reforms were carried out swiftly by the King such as:

• Election of the prime minister by Rastriya Panchayat
• Council of Minister would be responsible to Rastriya Panchayat not the King
• Freedom of speech and political activities
• Eleven-member Constitution Reforms Commission

The above changes were done via amendment of the 1962 Constitution. Elections were held in 1981 under the new constitution. The political parties boycotted these elections but people participated paving the way for Surya Bahadur Thapa to become elected Prime Minister. However, the Panchayat system soon became a stage for factional fights and ever-changing coalitions in the Nepal politics. In mid 1980s, the government of Surya Bahadur Thapa fell because of charges of corruption and food crisis. His place was taken by Lokendra Bahadur Chand. Elections were once again held in 1986 when Marich Man Singh Shrestha was elected as prime minister.

Marich Man Singh Shrestha had served as Nepal’s Prime Minister for about four years till April 1990, when the political parties launched an agitation to restore democratic rights. He is known for mass suppression of democratic forces and this highly degraded his status. Meanwhile, the Nepal-India relations started souring due to an array of reasons mainly including the below two:

• In March 1988, King Birendra had allowed Nepal to buy weapons from China. This was against the terms of Indo-Nepal Friendship Treaty of 1950 and 1965 agreement on import of arms between the two countries.
• According to the articles of the Indo-Nepal Friendship Treaty of 1950, both the countries would provide national treatment to the citizens of each other with regard to industrial and economic activities. Violating these, Nepal put stringent restrictions on the ownership of property by Indians in Nepal. Further, in 1987, Nepal included Indians into the category of foreigners requiring work permits, initially in three districts later in entire country. This deprived many Indians employment in Nepal, while many Nepalese enjoyed freedom to work and employment in India.
• The India-Nepal transit route was used to smuggle cheap third country products (China) into India.

Due to these, India hardened its position and refused to renew two separate Treaties of Trade and Transit. The treaties got expired in 1989 and India closed all but two border entry points with Nepal.

The economic blockade was a big blow to Nepal’s economy and common people. The people of Nepal suffered souring inflation and inadequate supply of consumer goods and petroleum products. Nepal is a landlocked country and its entire economy is dependent on India for resources, trade as well as transit.

Jan Andolan-I

Instead of reconciliation with India, the Nepal government tried to tackle the crisis on the basis of foreign aid from US, UK, China and Australia. However, this was a flawed strategy. People’s resentment grew who wanted the government to negotiate with India in place of depending on foreign aid. Taking advantage of the people’s resentment, the Nepali Congress and other parties such as United Left Front (ULF)  started mass mobilization movement against the tyranny of the Man Singh government.  The movement turned violent and these parties garnered international support, thus forcing the King to dismiss the Marich Man Singh government and replace him with Lokendra Bahadur Chand on 6 April 1990. But the people were resenting against the partyless democracy so mere change in Prime Minister did not satisfy them. Within 10 days, the King dismissed the Chand Government also and issued a royal proclamation to dissolve the Rastriya Panchayat. He accepted constitutional reforms and to establish a multiparty parliament that took seat in May 1991. This was known as Jan Andolan.

A new Constitution came up in Nepal as a follow up to Jan Andolan which limited the Monarch’s role, retained Nepal as a Hindu Kingdom, paved the way for parliamentary system and granted fundamental rights to the people of Nepal.

Key Features of 1990 Constitution

The 1990 Constitution was different from earlier traditional constitution of Nepal. It was not drafted by a constituent assembly and it:

• Lifted ban on political parties and established multiparty system
• Curtailed authority of King
• Declared Nepal as a Hindu monarchy Kingdom
• Had scope of emergency power to be used by Nepal

The above features make it clear that the 1990 constitution substantially increased the democratic character vis-à-vis Panchayat system but it was criticized and rejected by the left parties. The key points of its criticism were as follows:

• It was not drafted by a constituent assembly but a nine-member commission whose two members were royal representatives.
• It declared Nepal a Hindu state and not a secular state, thus did not protect minorities
• It granted no freedom of life and fundamental rights could be suspended.
• It does not provide for a balance of power within the government.

The 1990 constitution did not usher Nepal into political stability, not even till date. The constant infighting and factionalism continued within the political parties. Among various political parties was a small party Communist Party of Nepal (Maoist), which was nothing more than a fringe group of Maoism supporters. The legislators of this group abandoned their legislative seats and went underground in 1994. In 1996, they declared People’s War with their well known claim that only a communist state is panacea to all social and economic ills. This was the birth of Maoist Insurgency in Nepal. Its leaders were Baburam Bhattarai and Pushpa Kamal Dahal. By 2006, this insurgency spread across the Nepal. We note here that this insurgency is considered to be most successful Maoist insurgency around the world. It established provisional “people’s government” at the district level in several parts of Nepal.

The 2001 Shooting spree

Meanwhile, the royal family was about to be doomed. King Birendra had a prodigal son Dipendra, who wanted to marry Devyani Rana, the daughter of rival Rana family. His mother came in between this love and under the influence of drugs and alcohol; Dipendra not only wiped out the entire family including his father, mother, brother, sister and other half dozen of people but also shot himself. He was wounded and went into coma; but the Nepalese crowned him as next King of Nepal even while in Coma. He could not sustain the self inflicted injuries and died in three days.

Jan Andolan -II

After the untimely demise of King Birendra and his son Dipendra, Prince Gyanendra was sworn in as King of Nepal as per Nepalese traditions. Gyanendra was once in his childhood sworn in as King by Rana prime minister. His second term beginning from 2001 ended in 2008 with the end of shah dynasty as well as monarchy in Nepal.

During initial years of his rule, he tried to curb political instability by trying to gain full control over the government, because political parties were unable to hold elections. In October, 2002 he dismissed the elected Prime Minister Sher Bahadur Deuba and consolidated his power subsequently by sacking three more prime ministers by 2005 because all of them failed to hold elections and bring the rebels to negotiation.

In February 2005, he assumed the direct rule abolishing the prime minister Deuba’s government. His confrontational approach and repression of dissent continued for 14 months period under the state of emergency. Political leaders were put under house arrest, phone and internet lines were cut, and freedom of the press was severely curtailed. In April 2006, the country came under violent protests and strikes staged by Maoists. The Maoist led revolution was called Jan Andolan II and it forced the King to relinquish the direct rule. The King now declared that he would yield executive power to a new Prime Minister chosen by the political parties.

End of Civil war

In 2006, Parliament was reinstated with Girija Prasad Koirala as Prime Minister. This parliament clipped royal privileges, brought Royal Nepal Army under direct civilian rule, declared Nepal a secular state and abolished untouchability. The Maoist leader Prachanda appeared over ground and peace talks began. A Comprehensive Peace Agreement was signed which declared the

end of the civil war and created a roadmap for elections to a Constituent Assembly.  To support the transition process, a United Nations Mission in Nepal (UNMIN) was deployed.

After the Comprehensive Peace Agreement, the Interim Constitution was promulgated in January 2007. The constitution provided for a Constituent Assembly with dual functions viz. as a constitution making body as well as legislative body / parliament.  It was initially decided that the Interim Parliament will have 330 member and it will get dissolved with the first sitting of Constituent Assembly. The newly elected Constituent Assembly will have 425 members out of whom, 202 would be directly elected on the basis of First Past the Post System. 204 members will be nominated by political parties in proportion to the votes they score in elections and 16 members were to be nominated by Council of Ministers. Every Nepali, who has attained the age of 18 years was given right to vote in the Constituent Assembly. Constituent Assembly would be given two years time to draft the constitution.

Amendment of Interim Constitution 2007

The elections to Constituent Assembly were to be held in June 2007, but they were postponed twice. The major issue that created roadblock was the method of elections. The Maoists wanted the system of proportional elections while other political parties wanted first past the post system. The interim constitution was amended and it was finally decided that the Constituent Assembly will be of 601 members of which 240 members would be elected on the basis of FPTP system while 335 via the proportional representation system. Rest 26 Members will be nominated by the Prime Minister. It was also decided that whichever party secured maximum number of seats in the elections to Constituent Assembly, will form the new government till the new Constitution is not enforced. Decisions in the Constituent Assembly would be taken on the basis of consensus.

Elections to Constituent Assembly 2008

Elections were finally held in April 2008 only after the interim constitution was amended to adjust the demands of the Maoists. However, the elections were marred by clashes among various political parties viz. Nepali Congress (NC), Communist Party of Nepal (United Marxist Leninist- UML) and CPN (Maoists).

In the elections, the CPN (Moist) emerged as largest party with 200 seats in 601 member constituent assembly. The first meeting of the Constituent Assembly was held on May 28, 2008 and monarchy in Nepal was abolished on the same day. With this, Nepal was turned into an “independent, secular, inclusive, federal, democratic republic with sovereignty and authority entrusted in Nepali people”.

The King was asked to leave the royal palace “Narayanhiti” within 15 days, which was to be turned into an historical museum.

In the 2007 elections, Maoists emerged as victorious. The Maoist leader “Prachanda” won by almost 50% margin from his nearest rival. After victory, the Maoists were so adamant that they did not like to share the posts of PM and president.

The key factor that was responsible for thunderous victory of Maoists was that they were able to mobilise the poor and deprived dalits, tribals and women of Nepal. They focussed on core issues such as demand for inclusion of deprived, federalism, secularism and economic reforms. They demanded abolition of untouchability, which is a big issue in Nepal. They successfully transformed themselves from a militant outfit and repositioned themselves as champions of social justice in the poverty-stricken country. They demanded control of health, education, village development and those things which are directly related to an ordinary man. The Maoist student wing took to the streets to demand free education until the age of 15.

Implications of Victory of CPN (Maoist) in Nepal

Today, Nepal is known for the most successful Maoist insurgency around the world. The victory of CPN (Maoist) brought a paradigm change in the fundamental parameters of politics of Nepal. The democratic politics of Nepal initially became more radical but later, Maoists gave up guerrilla war and joined hands with the Seven Party Alliance for a peaceful and democratic political transition. People of Nepal, who wanted a change, laid their hopes on Maoists for fundamental changes and restructuring of the society.

However, the Maoists had little or no experience of administration either as ruling party or as opposition. Further, they were declared terrorists and Royal Nepal Army was deployed to contain them. Many people became victims of People’s Liberation Army atrocities. The real challenge was to manage the People’s Liberation Army that was cultured to wage a violent struggle against government.

Madhesh is synonym of Terai, referring to a narrow strip running along the southern border of Nepal with India. This fertile region, shown as green strip in the below image, is home to 50% of Nepal’s population and covers some 22 of 75 Nepali districts.

Being most productive region of Nepal, Madhesh region has also maximum concentration of industries.

Who are Madheshis?

Terai People living in the southern plain area adjacent to India are called Madheshis. The term Madhesh denotes contrasts of ethnic diversity. This is because the Tharu people, who are said to be the original settlers don’t like to be called as Madheshis. They cherish their Pahadi character and demand for the Tharuhat autonomous region under the federal Nepal.

Tharus: The Malaria Resistant People

Tharus are recognized as an official nationality by the Government of Nepal and they claim that they are direct descendants of Lord Buddha. In India, they are abundant in Uttarakhand and northern Uttar Pradesh. A very important point about the Tharus is that these people were found seven times more resistant to Malaria compared to others. They were a subject of study and it was later found that presence of genes of Thalassemia in all of them was the reason for this.

On the other hand, the term Madheshi is used for Brahmins, Bhumihar, Rajput and Kayasthas and migrants from India with similar demographic and caste composition in Bihar and UP.

Madhesh Politics

Their demand is centred around “Terai rights” . The question of Madhes or Terai rights was first raised by Bedananda Jha in 1960s but his movement ended as he became minister. Other leaders kept raising voice against the denial of citizenship and unequal treatment, the voice became louder in 1980s when Nepal started showing signs of political liberalization. In 2006-07, their movement became so much bigger and stronger that the Madhesh centric parties started demanding an entire Madhesh as one single province under slogan “One Madhesh, One Pardesh” in the federal arrangement.

In 2008, these parties launched came under banner of United Democratic Madhesi Front (UDMF) and launched a “Terai Andolan”. This movement ended with signing of an eight point agreement between UDMF and Nepal Government. The key points of  this agreement are as follows:

• Those who were killed in Madhes agitation will be declared as martyrs.
• Nepal will be a federal republican democratic state with an autonomous Madhes state
• Madehsis will be allowed entry in army
• Government will ensure the proportionate and inclusive representation of Madhesis in organs of the state.
• All armed groups in Terai will leave arms and will join the peaceful talks
• Those arrested will be immediately released

We see that via the 2008 agreement the government committed a separate autonomous Madhesh province. But this demand was rejected later and has not find place in September 2015 constitution. This led to protests by Madhesis and a confrontation of sorts with India.

The deadline for framing the constitution was extended several times since 2008. During this period, politics of Nepal has been subject to all sorts of factional and political struggles. The Constituent assembly could not draft the constitution in its original and extended total tenure of 4 years. Due to this, the assembly was dissolved in May 2012.

Second Constituent Assembly and Drafting of Constitution

The next Constituent Assembly elections were held in November 2013, and in between this period, politics of Nepal remained in suspension. After the elections, a 2nd Nepalese Constituent Assembly was created.  The major issue in framing the constitution was  absence of consensus between the political parties and Maoists; radical leftists and royalist rights.

Constitution of Nepal 2072

Finally after many years of struggle, Nepal adopted its first democratic Constitution on September 20, 2015. Its salient features are:

• It establishes Nepal as secular and federal democratic republic with bicameral parliament. Country has been split in seven federal provinces.
• Executive rights are vested in Council of Ministers headed by Prime Minister. The President is ceremonial head.
• It establishes independent judiciary and press freedom.
• It establishes competitive multi-party democratic system with periodic elections. Enshrines fundamental rights, civic freedom, human rights, voting rights and full press freedom etc. to its citizens.

It took eight full years after adoption of the interim constitution in 2007 to promulgate the new constitution. With this Nepal now stands as youngest republic in the world. The path to new Constitution was highly strenuous as there was lack of consensus among the legislators.

The constitution was passed by a clear majority with 507 of the 598 constituent assembly members voting in favour. However, around 60 members from the Madhesis and Janjatis community boycotted the vote. The Tharu and Madhesi groups had demanded that provinces should be demarcated keeping in view the ethnic populations. Further, the 2008 Eight Point Agreement between Government and Madhesi parties had committed for a separate Madhesh province.

However, this was objected by three major parties, the Nepali Congress (NC), Communist Party of Nepal (Unified Marxist-Leninist) (CPN-UML), and the United Communist Party of Nepal (Maoist) (CPN-M). These parties argued that fulfilling such demands would cause other protests and violence demanding still more ethnically based provinces. They signed a 16-point agreement to federate the country into eight provinces and promulgate the constitution. This led to violent protests in southern Nepal causing an economic blockage and crisis of essential commodities in Nepal.

Key Issues

• The Nepali constitution has given equal representation on the basis of “geographical area” , while the Madhesis demanded that the constitution should ensure their representation as per their “population” size. The government in Nepal contends that if population were to be sole criteria for inclusion, some minority groups such as Dolpa would never get represented.
• The interim constitution had proposed that various groups of nepal would have right to participate in state structures on principle of proportional representation. But the adopted constitution has dropped the word proportional. Madhesis want representation in terms of proportion. Madhesi parties want representation in National Assembly to be based on population of the Provinces.
• Most of the key constitutional posts have been reserved for only citizens by descent. This is a problem because a huge number of Madhesis have acquired citizenship by birth or naturalization. They cannot hold office of President, Vice-President, Prime Minister, Chief Justice, Speaker of Parliament, Chairperson of National Assembly etc.
• The interim constitution had fixed delineation of the electoral constituencies every 10 years. The newly adopted constitution has fixed it to 20 years.

What has been India’s stance?

Madhesis account for 50% of Population of Nepal. The new constitution has not brought any cheers in India because India sees the new constitution as unrepresentative of a significant fraction of the population.  However, India has been hesitant to openly speak for the Madhesis mainly because of allegations coming from Kathmandu that India has an invisible hand influencing politics of Nepal.

What is the Current Status?

As of October 20, 2015, the Nepal Government has created a team to hold dialogue with agitating Madhesis. This team will be headed by Nepal’s Deputy Prime Minister Kamal Thapa, who visited India to speak to PM, Home Minister and External Affairs Minister here in New Delhi.

The current “Constitution of Nepal 2072” is fifth such constitution and denotes Bikrami year 2072. The first constitution of Nepal was Government of Nepal Act, 1948. This constitution vested all the powers into the hereditary Prime Ministers of the Rana clan. After the Revolution of 1951, an “Interim Government of Nepal Act, 1951” restored the power to the king. This constitution was restored by King Tribhuvan. The third such constitution was promulgated in 1959 before the parliamentary elections by King Mahendra Bikram Shah as “Constitution of Kingdom of Nepal, 1959”. Hover, after the elections, Mahendra dismissed the government and party system and established a partyless Panchayat system under “Constitution of Nepal, 1962”. In this system, the sole power was with the Kings, democracy was absent and forming political parties was illegal. After the Jan Andolan-I revolt, the King Birendra was pressurized to take new constitution and Nepal was thus converted into Constitutional Monarchy. A multiparty system with parliamentary system of government was put in place. After the Jan Andolan-II, the Interim Constitution was adopted in 2007, which provided for an elected Constituent Assembly. In 2008, the Constituent Assembly abolished the monarchy in its very first meeting. In September 2015, the present Constitution of Nepal was promulgated which declared Nepal as federal democratic republican nation. The executive rights of the country are stated to be belonged to the Council of Ministers while the President would be ceremonial head-of-the-state.

Thus, the new Constitution imbibes the principle of democracy in stark contrast to the last one which promulgated state as a constitutional monarchy ruled by a Hindu king.  The new constitution has also ended the chances of revival of monarchy.