Contents

  1. Background

  2. Introduction to Constitution of Nepal, 2072

  3. Basic Features of Constitution of Nepal, 2072

  4. Controversy on Constitution of Nepal, 2072


Background

Previous constitutions of Nepal were enacted in 1948, 1951, 1959, 1962, 1990 and 2007. In 1948, the Government of Nepal Act was enacted. Since the mid-nineteenth century, the country had been a monarchy where the prime ministers, from the Rana dynasty  had sweeping control over the affairs of the state.. The 1948 document introduced limited democratic elements, but the experiment was not successful due to the misgivings of the Rana rulers to give away power. The Interim Government of Nepal Act 1951 was promulgated after the Revolution of 1951 that the end of the Rana period. This text strengthened the authority of the king, and introduced relevant reforms such as the creation of the Supreme Court and the inclusion of fundamental rights and socio-economic goals to be pursued by the state.

The Constitution of the Kingdom of Nepal, 1959 followed the previously mentioned interim text. Interestingly, despite the establishment of a bicameral parliament, the king continued to hold important powers such as the prerogative to appoint half of the members of the Senate and the suspension of parliament under certain circumstances.

The democratic experiment was short-lived, as in 1962 a new constitution came in to eliminate political parties, and to introduce the so-called panchayatsystem. In this model, panchayats were councils organized at the local level, presumably to ensure the representation of citizens. However, the king exercised much stronger authority than in the 1959 regime. and could modify the constitution or suspend it in case of emergency.

In 1990, the first Jana Andolan Popular Revolt, brought multi-party democracy back to Nepal. The Constitution of the Kingdom of Nepal (1990) lifted the ban on political parties, described a democratic representative system where the authority of the king was curtailed, and enshrined fundamental rights.Although the 1990 constitution substantially increased the democratic character of the state in comparison with the Panchayat Regime, critiques have argued that this text did not adequately represent all sectors of society, even though Nepal is a multi-cultural country where diverse social groups coexist

Again following the 2006 democracy movement in Nepal, Interim Constitution was promulgated in 2007.

Introduction to Constitution of Nepal, 2072

Nepal is governed according to the Constitution of Nepal, which came into effect on Sept 20, 2015, replacing the Interim Constitution of 2007.The Constitution was drafted by the Second Constituent Assembly following the failure of the First Constituent Assembly to produce a constitution in its mandated period. The constitution was endorsed by 90% of the total lawmakers. Out of 598 CA members, 507 voted in favor of the constitution while 25 voted against and 66 members of the Constituent Assembly mainly representing political parties based in Terai boycotted the final debates on the constitution as a protest against states delimitation and inclusion of minorities and Madhesi population in the national and public life.

President Ram Baran Yadav announced the promulgation of Constitution of Nepal, 2015 (2072) at a special meeting of the Constituent Assembly on September 20, 2015. The President announced the commencement of the new constitution endorsed by the CA and as authenticated by CA Chairperson Subas Chandra Nembang.

Basic Features of Constitution of Nepal, 2072

  • The constitution is largely written in gender neutral term. Some of the important aspects of the constitution include the following:
  • The new Constitution has 308 Articles, nine Annexes and Preamble.
  • The Constitution has restructured the Nation into a federal republic. The Constitution has divided the nation into seven states and finalized the march of the Nation towards republicanism from constitutional monarchy and federalism from unitary system.
  • Bicameral parliamentary system has been created with two houses at the Center and unicameral parliamentary system in each state.
  • Mixed electoral system has been opted for the elections of the lower house at the Center with both first past the post election system and proportional election system are used to elect members of the lower house.
  • Rights of gender and sexual minorities are protected by the new constitution with provisions of special laws to protect, empower and develop minority groups as well as allowing them to get citizenship in their chosen gender.
  • Recognizing the rights of women, the constitution of Nepal explicitly states that “women shall have equal ancestral right without any gender-based discrimination.”
  • Nepal also has continued to abolish the death penalty. Nepal had abolished death penalty in 1990 after the promulgation of the Constitution of the Kingdom of Nepal 1990.
  • The Constitution defines wide range human rights as fundamental rights.
  • The new Constitution continues with the provisions on registration and operation of political Parties [Article 269-72]. They are required to register their names under the Election Commission in accordance with the procedure determined by law. The constitution and rules of the political party should be democratic. There should be the provision, in the constitution of the political party, of the election of the office bearers in the federal and provincial levels, at least once in five years. There should be the provision of proportional participation so as to reflect the diversity of Nepal, in the executive committees at various levels of the party.
  • In case a grave emergency arises in relation to the sovereignty or territorial integrity of Nepal or the security of any part thereof, whether by war, external attack, armed revolt, extreme economic breakdown, natural calamity or epidemic outbreak, the President may, by Proclamation or Order, declare a state of emergency to be enforced in Nepal or any specified part thereof. [Article 273]
  • It recalls historical peoples movements and armed struggles and the sacrifice made by people for national interest, democracy, progressive change.
  • It recognizes the martyrs, the disappeared citizens and the victims.
  •  It declares ending all forms of discriminations and oppression created by the feudal, autocratic, centralized and unitary system of government in the past.
  • It notes its commitment to Nepal’s multiethnic, multilingual, multicultural and diverse geographical specificities and end of discriminations relating to class, ethnicity, region, language, religion and gender discrimination including all forms of racial untouchability, in order to protect and promote unity in diversity, social and cultural solidarity, tolerance and harmonious attitudes.
  • It also expresses the determination to create an egalitarian society on the basis of the principles of proportional inclusion and participation, to ensure equitable economy, prosperity and social justice.
  • There is a commitment to create the bases of socialism by adopting democratic norms and values, including peoples competitive multi-party democratic governance system, civil liberty, fundamental rights, human rights, adult franchise, periodic elections, complete press freedom and an independent, impartial and competent judiciary, and the concept of rule of law.
  • National Flag, Anthem and SymbolsThe traditional triangular flag of Nepal remains the national flag under the new Constitution. Article 9 sets the song in Schedule 3 as the national anthem of Nepal. The Rhododendron Arboreum is the national flower, Crimson is the national color, the cow is the national animal and the Lophophorus is the national bird of Nepal.
  • Article 5 of the Constitution has a provision on “national interest” for the first time in Nepal’s constitutional history. “Independence, sovereignty, territorial integrity, nationality, autonomy, self-respect, protection of rights and interests, and dignity of Nepali people, protection of boundaries, and economic progress and prosperity, shall be the fundamental subjects of Nepal’s national interest.”Clause (2) of this Article enables federal law to make acts and conducts against national interest as punishable by Federal law. This provision exists apart from Article 48 which specifies the following duties of Nepalese citizens:(a) protect nationality, sovereignty and integrity of Nepal by pledging allegiance to the nation,(b) abide by the Constitution and law,(c) compulsorily enlist when the state needs the service, protect and conserve public property

Controversy Over Constitution of Nepal, 2072

  • The promulgation of the new constitution was immediately followed by virtual blockade of all checkpoints at Nepal-India border. Various Human Rights Activists and some ethnic groups in lowland Nepal have accused the Constitution of being gender discriminatory especially in regards to citizenship provisions. They allege new constitution makes it difficult for woman to pass on citizenship to their children as compared to men.
  • Similarly, Madhesi and indigenous population view that the new constitution fails to address demands of marginalized communities and support status-quo of the ruling groups. They are protesting mainly over the federal delineation of new states as proposed in the constitution fearing existing demarcation could affect their political representation. With the protest ongoing since August 15, 2015 or earlier, at least 45 people, including 8 security personals and one Indian National, have been killed. Human Rights Watch has criticized the Nepal Government as well as the protesters for violation of human rights during the protest.
  • Additionally, there is controversy over Nepalese citizenship rules, which Nepal deems to protect the state from being overwhelmed by Indian immigrants, and which India claims discriminates against Madhesis of Indian origins, the draft constitution and final constitution that passed differ on this issue.
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