Constitutional Development of Nepal

What is a Constitution (संविधान)?

The Constitution is a guiding document containing the basic and fundamental laws of the nation, setting out the organization of government and key principles of society. Quoted as the Supreme Law of the Land, the document defines fundamental political principles and establishes the  structure, procedures, power and duties of government while guaranteeing certain rights to the people. 

When is a Change of Constitution Possible? 

The change of the constitution is possible during the change of regimes and the transfer of power. The first change in the constitution in Nepal took place in 1951 with the dissolution of the Rana oligarchy, and the recent change in constitution took place in 2015 with the transfer of power from the monarch to the general public. 

Who Makes the Constitution?

Constitutions are either made by experts or through a participatory process led by parliamentarians elected by the general public. The former process is referred to as Constitution as Contract, while the latter is referred to as Constitution as Document of Conversation. In Nepal, apart from the recent constitution in 2015, all the constitutions were codified by the experts or rulers, making the Constitution of Nepal 2015 the first document of conversation.

What is Constitutionalism (संवैधानिकता)?

Constitutionalism is a system of governance that limits the power of government by laws, checks, and balances to reconcile authority with individual and collective freedoms. It is based on:

• Representative government (प्रतिनिधि सरकार) enabling citizens to participate in public affairs and hold the government accountable
• Protection of rights through which citizens are insulated from abuse of power 

Constitutionalism furthermore features power being limited among the three organs of the constitution (संवैधानिक अंगमा शक्ति केन्द्रित रहने ) : 

• Legislative (an organ working on deriving new laws)- व्यवस्थापिका 
• Executive (an organ implementing laws) – कार्यपालिका 
• Judiciary (organ adjudicating disputes under laws or interpretation of the laws) – न्यायपालिका 

How is the Constitutional System Different from the Political System?

Although political systems deal with the processes, structures, and functions of the state, the core understanding of sovereignty, power division, and accountability (सार्वभौमिकता, शक्ति विभाजन, र जवाफदेहिता) lies within the constitutional system. Thus, while a political system may change, it does not necessarily signify a change in the constitutional system. However, the dissolution of a constitutional system carries far greater consequences, as it directly affects the very definition of sovereignty and the structure of the state.

How Did We Reach Here? 

Why Did the Formation of the 2015 Constitution Take So Long?

There were multiple factors affecting the timely formulation of Constitution of Nepal in 2015. Some of the major factors include:

• Political Instability and Institutional Challenges: The end of decade-long Maoist insurgency in 2006 led to considerable political instability. The first Constituent Assembly elected in 2008, failed to produce a constitution in mandated term, leading to its dissolution in 2012. The second assembly elected in 2013, held a commitment to promulgate the constitution by 2015. However, existing tensions among political parties on governance structure, federalism and identity-based representation hindered progress. 

• Ethical and Regional Tensions: The marginalized groups such as Madhesi and Tharu felt excluded from their identities and interests. Post Constitutional formation, the protests erupted in Terai, leading to significant unrest and a blockade further escalated the political crisis. 
• Contentious Constitutional provisions: The system of governance, structure of judiciary and delineation of federal boundaries remained contested throughout the process, leading to prolonged negotiations. 

Does this mean the country remained without the constitution throughout the transition process?

No, the Interim Constitution of Nepal-2007, served as the supreme law during the transition period from 2007 to 2015. Before the dissolution of the Constitution of Kingdom of Nepal-1990, a team of experts had already formulated the interim constitution. The team of experts was formed by  six lawyers, headed by a former member of the 1990 constitution drafting committee, one Supreme Court judge, and another ten lawyers to collect public opinions, chaired by retired Supreme Court Justice, Laxman Aryal.

The Major Highlights of Constitution of Nepal, 2015

• Legitimacy and Acceptance (वैधानिकता र अनुमोदन)

1. 1. 1. Out of 598 members of the Constituent Assembly (संविधान सभा), 537 supported the adoption of the Constitution of Nepal 2015, reflecting wide acceptance across socio-economic and political backgrounds.

• Inclusivity and Equality (समावेशीता र समानता)

1. 1. 1. The Constitution of Nepal 2015 envisions an egalitarian society based on proportional inclusion and participation.
      2. Article 42 identifies marginalized groups and guarantees special opportunities and benefits.
      3. 33% representation of women in each political party in the Federal Parliament (संघीय संसद) is mandatory (Article 84(8)).
      4. Either the Speaker or Deputy Speaker of the House of Representatives (प्रतिनिधि सभा) must be a woman, and from different political parties (Article 182).
      5. Either the Chairperson or Vice-Chairperson of the National Assembly (राष्ट्रिय सभा) must be a woman (Article 92)

• Fundamental Rights (मौलिक अधिकार)

1. 1. 1. The number of fundamental rights increased from 21 in the Interim Constitution of 2007 to 31 in the Constitution of 2015.

• Federalism and Decentralization (संघीयता र विकेन्द्रीकरण)

1. 1. 1. Article 56 structures the state into federal, provincial, and local levels.
      2. Nepal has 1 federal government, 7 provincial governments, and 753 local governments, decentralizing power and bringing governance closer to citizens.

• Dynamic and Amendable (गतिशील र संशोधनयोग्य)

1. 1. 1. The Constitution is flexible and dynamic, allowing amendments to all provisions except Article 274(1).
      2. A referendum on issues of national importance can be held if two-thirds of both houses agree (Article 275).

• Good Governance and Accountability (सुशासन र जवाफदेहिता)

1. 1. 1. To reduce election costs, Article 84 forbids contesting from two constituencies simultaneously.
      2. Article 78(4) prevents a person who lost the House of Representatives election from becoming a minister.
      3. The number of federal ministers is capped at 25 (Article 76).

• Citizenship and Eligibility (नागरिकता र योग्यता)

1. 1. Article 289: Only citizens of Nepal by descent can hold top constitutional positions, such as President, Prime Minister, Chief Justice, Speaker, Chief of State, Chief Minister, and heads of security bodies.
   2. Article 291: Nepali citizens with permanent residency abroad are ineligible for election, nomination, or appointment to public office.

Conclusion

The Constitution remains the supreme law of the land, defining the power, rights and governance of the country. The Constitutional journey of Nepal portrays the struggles for democracy, inclusivity and stability witnessing shifts from monarchical and oligarchic regimes to a federal democratic republic. Despite the development of the current constitution amid political instability, social tensions and lengthy negotiation, the document ensures the institutionalization of democratic norms, federalism and inclusivity. The constitution is not just a legal document but a living framework that is dynamic , amendable and reflective of a nation’s aspiration towards justice, equality and shared prosperity.