Chapter-II

Basic Features of Nepali Political System

2.1 Treaty of Sugauli 1815. 2.2 Govt. of Nepal Act 1948. 2.3 Parliamentary Constitution of 1959. 2.4 Direct Rule by Monarchy. 2.5 Panchayat Constitution. 2.6 End of Panchayat System. 2.7 New Constitution of 1990.

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2.1 The Treaty of Sugauli,1815

A country never subjugated by any colonial power, Nepal is proud of a glorious history of national independence. The country’s unification process in the eighteen century under king Prithvi Narayan Shah coincided with colonial penetration of the British East India Company into the subcontinent. Nepal’s relations with British India spanned a period of 180 years (1767-1947 AD) marked by distrust, suspicion and even hostility in the beginning and ending with the tripartite Treaty of 1947, which allowed independent India and its erstwhile colonial master to recruit Nepalese national in their armies. The Treaty is still in force, despite opposition to it by the left radicals in Nepal as a colonial legacy. Nepal’s international boundary was delineated under the Treaty of Singauli 1815. The Rana’s who ruled Nepal for 104 years (1847-1951 AD) maintained extremely cordial relations with British India to serve the interests of the ruling family rather than the National interest8.

The 1815 Treaty of Sugauli was a low watermark in the history of Nepali nation. The Treaty was made during the weak position of Nepal. Nepal signed the Treaty by the ink of tear which compile to loose nearly one-third part of the present Nepal. Bhimsen Thapa aimed to bring under Nepal the entire hill region from Kumaon to Kashmir, where prevailed ethno-cultural customs common with those in Nepal but the treaty between the British government and Maharaja Ranjeet Singh of Punjab concluded at Amritsar on 12 April 1809, Which placed the Sutlaj Kingdom under British protection frustrated his policy to expand west of the Sutlaj river9. Nepalese encroachments in the adjacent British territories led to conflicts with the British government. The quarrel centered on the Nepalese claim to parts of the Purnea, Saran and Gorakhpur and Bareilly border districts. There were also disputes over the extradition of dacoits and runaway criminals. On 1st Nov 1814, in view of the failure of its forces to eject the Gorkha armies from there Lord Francis Raw don Moira Governor General of British India from 1812 to 1823, declared war against Nepal. At first, The British armies faced several odds in their

8 Vaidya Padma Jyoti: Nepal-India Trade Relations, “ Paper presented at an Interaction programme Organised by the Institute of Foreign Affairs, Kathmandu, December 22, 1998. 9 Regmi, Delli Raman: Modern Nepal: Rise and Growth In Eighteen Century,Vol I Culcutta,1975, Pg 12-15.

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campaigns against the Gorkha armies. Later, they were successful defeating the Gorkha armies at Makwanpur, their home front. On the eve of the war Nepal’s power was at its zenith. Its territories had extended from the Teesta River in the east to the Satluj River in the west.

Dhaibung, the hill north of Nuvakot, was the royal summer residence up to 1813, a year before the commencement of the Anglo-Nepalese war. Even latter it seems to have retained this status. It was perhaps to maintain the tradition of his predecessors that Maharajadiraj Prithvi Bir Bikram Shah Dev (ruled 1881-1911) also set up his summer camp there10.

The British and Nepalese government signed the treaty of peace at Sugouli (Motihari, Bihar) near the Budhi Gandak River on 5 March 1815, ratified in March 1816. It fixed the Kali River as the western limit of Nepal and the Mechi River as its eastern limit. Nepal ceded to the British government all lands it had claimed before 1st Nov 1814. The British government retained Kumaon and Garhwal as well as the hill tracts further west. To ensure the use of routs to Tibet through the Arun and Karnali valleys, the British government also considered setting up rivers as political entities under Nepalese subservient to it. Perhaps it did not want itself to be in Nepal.

On 8 Dec 1816, the British government returned to Nepal part of the territory that had been ceded to it. Nepal also engaged never to take or retain its service to any British subject, nor the subject of any European and American state, without the consent of the British government.

The British government transferred the entire tract between the Mechi and Teesta rivers to Sikkim, retaining the right to arbitrate in disputes between Nepal and Sikkim. Respecting its formal transfer to Sikkim it signed with Sikkim its first treaty at village Titaliya near Siliguri, under a tamarind in 1817. The Titaliya treaty made Sikkim an ally of the British government. Incidentally, there were no Khas or Nepali speaking people in south Sikkim during the short period of its occupation by Gorkha Nepal from 1789 to 1815, nor even until the introduction of tea in the Darjeeling hills in the 1850. It is therefore, distorting history to describe south Sikkim of time, as certain politicians do as the Gorkhaland11.

10 Aryal, K. R : Monarchy in the making of Nepal, Shanti Sadan Kathmandu, 1975, pg 12-14. 11 Sanwal B. D. : Nepal and the East India Company, Asia Publishing House,1965, Pg 22-25.

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The Anglo-Nepalese treaty of 1816 was quite different from the Anglo-Nepalese treaties of 1791 and 1801. It established the principle of perpetual peace and friendship between British India and Nepal. It placed no restriction on the right of Nepal to maintain relations with countries such as Bhutan and Tibet. As such, it recognized Nepal as a sovereign state. But the resident, which the British government stationed at Kathmandu, gradually arrogated to himself the same right as the resident that the British government had stationed in those princely states in India which had accepted British paramount. The British residency at Kathmandu also served as an observation post on Chinese activities in Tibet and beyond. The Manchu government of China had no objection to the stationing of a British resident at Kathmandu. The Nepalese government of courses tried to get rid of the British resident by pretending that the Manchu government did not want him there12.

The British forces defeated the Gorkha forces in 1814-15. But the British government was not able to establish its suzerainty over Nepal as the Manchu government had done in 1792. However, the British government was having political connection with the princely state in India. Bhimsen Thapa found it hard to reconcile himself to the humiliation implied in the Anglo-Nepalese treaty of 1816. Therefore, he tried to set up other powers against the British government and he organized the Nepalese army also constructed barracks for quartering the troops, an armament factory to manufacture arms and ammunitions. He also sent his army men to Lahore for training by the French Instructors of the army of Maharaja Ranjeet Singh. The people of Nepal called the Nepalese soldier who thus visited Lahore. The Nepalese soldier who later joined the British Indian and British armies and even now (The Nepalese) continue to call as Lahore the Nepalese soldier of the British and Indian armies13.

On 6 Nov 1839, the Nepalese government had given up its right to intercourse with the dependent allies of the East India Company without the consent of its government. Surely, this was a setback for Ranjang Pande’s maneuver to enlist the support of Marathas and the Sikhs in India and Afghanistan and Burma than seeking the opportunity of lining themselves up against British expansionism.

Maharanee Rajyalakshmi does not seem to have received her conjugal rights. Consequent to her elder sister enroot to Banaras on 12 Hussain Asad: British India Relations With Kingdom Of Nepal (1857-1947), A Diplomatic History of Nepal, Allen And Unwin, London, 1970,PP 55. 13 Shah Rishikesh : Modern Nepal : A Political History 1769-1955 Vol I, Manohar Publication, 1990, Pg 17-19.

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6 Oct 1841, although the Maharaja had been taken himself to, and adobe her apartments on pressure from the nobles and Maharaja vested absolute power in her, thereby creating dual monarchy. This weakened the Monarchy. The Maharaja Rajendra who sought to restore the actual position of the monarchy, appointed Choutara Fatehjang Shah as Mukhtiyar on the overthrow of Ranjang Pande on 1st Nov 1840. This marked the end of the anti British period in the history of Gorkha Nepal. The years 1822-1843 had been the most critical years for the British government in Nepal. Nepal, along with Afghanistan and Burma had presented a danger of war to the British government in India in 1839. The British resident, B. H. Hodgson, called the “Bada Saheb”, had even to clap Maharaja Rajendra into confinement at the desire of Lord Elenborough, Governor General of British India from 1842 to 1844.

The immediate successes of Prithvi Narayan Shah had continued his policy. The most important reason for the continuity of his policy had been that the people, who had provided the advice to continue it, came from the Gorkha elite group that had change very little since his days. There were components of this policy internal peace, conquest and expansion. It was role of queen-mother’s and step-queens and the rivalries among the nobles from 1777 to 1845 created chaos in the country. Jang Bahadur exploited the situation to the advantage of himself and his family. Thus the processes, which led to the fall of the Gorkhas, also led to the rise of the Ranas14. When British quitted from India, the all portions of Nepal before, the Treaty of Sugauli was to restore to Nepal in 1947. Despite the Nepalese efforts with body, mind and money to make Britain a powerful and resourceful nation Britain made some injustice, some dishonesty to Nepal; Britain did not return the area before quitting India. Nepal has and will have a moral dispute for the actual territory of Nepal that existed just before 1815. However, the boundary line surveyed by the British Commissioner appointed for the purpose and marked by the natural boundaries and pillars passage of time, it seems, some divergence in the area.

14 Satish Kumar : Rana Policy in Nepal : Origin and Growth, Asia Publishing House, Bombay, 1967, Pg 19-23.

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2.2 THE CONSTITUTION OF 1948

The constitution of 1948, the first written constitution, a landmark in Nepal's constitutional development was promulgated by Padma Shumsher on 26th January 1948. This constitution also safeguarded the privileges of the ruling family as the most important issue was the succession, position, powers and prerogatives of the Rana Prime Minister. The constitution in article 3 laid down that the rule of succession relating to his Majesty the Maharajadhiraj Shri 5 and his Highness the Maharaja Shri 3 Shall continue as heretofore, in accordance with law, custom, usage in that behalf and shall all time be inalienable and unalterable. Thus the traditional family rule and law of succession for Shri 5 and Shri 3 remained unaltered15.

The constitution was aimed initiating the process of democratization of the Nepalese polity. It provide fundamental rights to the people of Nepal such as, freedom of speech, freedom of right to form press, association, equality of religion, elementary free education, equality before law and right to private property. However, it was made clear that these fundamental rules should not oppose public policies and the laws.

The executive authority was vested in the hands of Rana Prime Minister who could exercise it either directly of through the officers subordinate to him. He was to be in total control of other ministers. He could hire and fire them at his pleasure, allocate portfolios to them, determine their salaries and allowances and accept their resignations. Moreover, the veto powers also rested with the Prime Minister who could use it as many times as he wished. Thus the 1948 constitution retained the absolute power of the Prime Minister. The king had no role to play in active politics at the country. He remained confined to his palace Narayanhiti Darbar, enjoying life without any responsibility. In essence, 1948 constitutional document provided no relief from the continuing oppressive system of Rana’s and downing the status and functions of the institution of Monarchy in Nepal16.

The constitution made provision for a legislative council constituted of two houses: Rashtra Sabha and Bhardari sabha. The strength of 15 Agrawal H.N: Nepal: A Study in Constitutional Change, New Delhi, 1980, Pg 37-45. 16 Bhuwan Lah Joshi and Leo E. Rose, Democratic Innovation In Nepal: A Case study of political acculturation, Barkeley, University of California Press, 1966, Pg 72-76.

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Rashtra Sabha was to be between 60 and 70, two third of whom would be nominated. In Bhardari Sabha Shree 3 Maharaj could nominate 20 members. The two houses were to follow the instruction of Shree 3 Maharaj. All bills other than money bills should be introduce in any of the two houses and their approval by Shree 3 Maharaj was necessary for being enacted as laws. Provisions were also made for a judiciary. It was divided into different parts; Judicial committee, High Court, Adalats and Village or Nagar Panchayats. Besides these Courts, special court could also be set up the maintenance of peace in the country. There was no provision for amendment in the constitution. On the whole the constitution of 1948 preserved the traditional powers of the Rana Prime Minister17.

Yet, the passing of the constitutional Act was an important landmark in the history of Modern Nepal. By regularizing the system of government in which the personal wishes, likes and dislikes of a single individual had so long wielded the force of law; Padma Shamsher laid down constitutional checks on the Rana rule. Secondly, by admitting two elected members to the council of ministers, the act recognized that henceforward even the non-Rana members had a right, howsoever limited, to participate in official transactions. Thirdly, the principle of representative rule was incorporated so far as election to Gram and Nagar Panchayats was concerned. Fourthly, certain fundamental rights, at least in form, were granted to the people. Again, by guaranteeing freedom of speech and immunity from arrest to the members of the legislature during its session, the act provided certain democratic rights where there had been none. Fifthly, the mention of an auditor general “to examine and audit the accounts of the state” (Art 62 a), and a public service commission for “the purpose of selecting qualified candidates to all civil post under the government” (Art 65 a) indicated, in theory, that new ideas had begun making in roads into the forbidden land of the Ranas. This fact is made more evident from the objective of the government as laid down by Art 6018.

17 Chauhan R. S : The Political Development in Nepal, Associated Publishing House, 1971, Pg 27-30. 18 P. Neupana (Ed & Translated): The Constitution and Constitutions of Nepal, Center for study of Nepal, B. H. U Varanasi, 1972, Pg 102.

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2.3 THE CONSTITUTION OF 1959

This constitution was consisted of 10 parts and 77 articles. It was

important in the sense that it, for the first time, envisaged the establishment of parliamentary system in the kingdom. The constitution was declared the fundamental law of the land. The constitution had an elaborate chapter enumerating fundamental rights of the people. In this regard it followed the interim constitution of 1951. Such rights as, freedom of speech, expression, assembly without arms, freedom to form association and unions and freedom to reside freely in any part of the kingdom were guaranteed in the constitution. Like the interim constitution, the new constitution also provided for equal protection of law to all citizens without discrimination on grounds of religion, Sex, caste, race or tribe. Along with these rights certain restrictions were also inserted in the constitution19.

The executive structure included a cabinet headed by a Prime Minister and which would work under the constitutional leadership of the King. It was accepted in the constitution that the leader of the majority party in the House of Representatives should be the Prime Minister. The constitution provided the king two kinds of powers; nominal and discretionary. In respect of his nominal powers the King could act on the advice of the cabinet and discretionary power was to be directly exercised by the king. The King also had emergency powers. In case of internal or external threat to the security of the country, the King could declare an emergency during which he could suspend any provision of the constitution excepting those relating to the Supreme Court20.

The Prime Minister and the cabinet were responsible to the King and the legislature. The King had the right to dismiss the Prime Minister if he acted in a manner contrary to the constitution or lost confidence in the lower house of parliament21.

The constitution provided for a bicameral legislature with the king at the head. The lower house called the House of Representatives consisted of 109 members to be elected for five years on the basis of universal adult franchise. The upper house called Senate was to be a permanent body with 36 members, half of whom would be elected by the

19 Jha S. K Nepal’s Experiments in Constitutionalism, Occasional Paper Series Vol 5, C.S.N, 1982, pp 11-12. 20 A. Appadorai and L. S. Baral: The New Constitution Of Nepal, Intrenational Studies, Delhi, Pg 223 21 “Democratic Convention under constitutional Monarchy” The Commoner, Kathmandu, 9 Dec 1959.

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House of Representatives by proportional representation and the other half nominated by the King. The term of the senators was 6 years with one-third of them retired at the expiry of every two year. Equal status was granted to both the houses, though in financial matters the lower house had more powers as the money bill could be introduced only in the lower house. The parliament could not pass any law unless it received formal sanction of the King who could withhold, refuse or postpone his assent. It was also debarred from discussing the King's private sources of revenue collection22.

The constitution made provisions for the establishment of a Supreme Court which was given the highest judicial powers. The important thing about the Supreme Court was that even during emergency its provisions were not to be suspended. It was the highest court of the land.

The constitution also provided for the establishment of a Public Service Commission as was the case with the 1951 constitution. Its duty was to conduct examinations for the recruitment of government officials. It was stated that the commission would have to be consulted on all matters of recruitment of civil services and also in matters of transfers and promotions.

The most important aspect of the constitution as the preceding discussion would have already shown, was the high place it gave to the Nepalese crown. By declaring the Monarch as the supreme head of the state, it affirmed the principle of royal supremacy as propounded earlier by the government of Nepal act of 1954. It was once more stated that except as provided in this constitution or any law for the time being in force, servants of the crown shall hold office during the pleasure of His Majesty (Art 65)23.

The king was given further emergency power to suspend or abrogate, both in time of peace or war, part or whole of the constitution. Thus, the constitution remained inoperative so far as the royal dynasty was concerned. In fact, by asserting the doctrine of inherent sovereignty of the Monarch, the framers of the constitution left no doubt in the minds of people as to the actual position of the king24. 22 Rao P Chandra Shekhar : “Nepal and its Constitution”, Indian Yearbook Of International Affairs 1960-61, Madras, 1961, Pg 62 23 23 Rao P Chandra Shekhar : “Nepal and its Constitution”, Indian Yearbook Of International Affairs 1960-61, Madras, 1961, Pg 64. 24 Sharma Sita Ram: Politics of greater Nepal, Raj Prakashan, New Delhi,1988,PP 12.

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2.4 DIRECT RULE OF MONARCHY

According to the provisions of 1959 constitution, the general elections for the first Parliament in Nepal were held on 18 February 1959. Nepali Congress had won the elections with overwhelming majority and formed the government. The democratically elected government took measures to implement the programmes for national reconstruction which disturbed the obscurantist forces. They consequently started hatching conspiracies. The opposite political forces also did not keep quite, without playing constructive political rival; they began to harp on non-issues in order to discredit the Nepali Congress with the people. Meanwhile governmental lapses started piling up. All these combined to create discontent in the people. King Mahendra Bir Bikram Shah was not at all happy in becoming a mere figure head. Moreover, he was an ambitious man. Growing discontent in the masses and irresponsible behaviour of the political forces provided him the opportunities to intervene under the cover of the emergency provisions in the constitution, Result being the termination of the Congress government. Thus the first attempt to establish democratic polity in Nepal was foiled25.

King Mahendra promulgated a new law, called Nepal Special Arrangement Act of 1961, which vested all powers of the country in the King. King Mahendra in this way established his direct rule in the country. But till now the socio-economic and political conditions in the country had undergone qualitative changes and it was not possible for the King to rule the country with traditional bases of power. Hence, a popular facade was essential to legitimize the authority of the monarchy. Therefore, a committee was formed in order to frame a new constitution for the country. It may be pointed out here that there was a difference in apparent and real motives behind the search for a new political system for the country. Apparently it was stated that the western model of democracy was not suitable for a backward and underdeveloped country like Nepal, hence such a 'model' should be adopted which was suitable for the Nepalese cultured tradition. King Mahendra talked of establishing democracy at the grass root level if the real motive was to impose a constitutional order which would establish supreme political authority of the monarchy by pretending to accommodate the minimum democratic

25 Gupta Anirudha: Politics in Nepal, A Study of Post-Rana Political Devolopment and Party Politics, Allied Publisher, Bombay 128-130.

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aspirations of the people. A popular facade was also useful to the King to be used as a scapegoat for the failures of the King dominated system. THE ROYAL COUP

On 15 December 1960, king Mahendra issued a royal proclamation dismissing the popularly elected government, banning all political parties; depriving the citizens of their fundamental rights and freedoms, and above all putting hundreds of political leaders and workers including the Prime Minister B. P. Koirala in prison just within one and a half years of the functioning of the Parliamentary government. In accordance with the Royal Proclamation of 15 December 1960, ended the parliamentary democracy in Nepal on vague and general charges, and which has been characterized as “The greatest political hoax played in modern times upon democracy”. King Mahendra assumed the entire administration of the county having equipped him with tremendous power to deal with the opposition with the final aim of laying the foundations of the democracy. “And he set up an alternate political party superior to the old parliamentary systems which was out of step with the history and traditions of the country.” King Mahendra asserted that he would not allow the country to go to the ruins in the name of democracy26.

Soon after the coup King Mahendra started a campaign to convince the nation that parliamentary democracy was not appropriate for meeting the needs and aspirations of the people of Nepal. As an alternative, he worked out and launched what was known as 'Panchayat Democracy'. The country had to experiment with it for three full decades under the unchallenged leadership of the King himself. King Mahendra's new political system, viz. the Panchayat democracy was forma1ised in a new constitution bestowed on the country in December 1962. The system was organised on a three-tier system. The 1962 constitution had also provided for 14 zonal panchayats. The 1967 amendment to the constitution, however, replaced this body with anchal committees consisting of the chairmen of district panchayats, class and professional organisations and up to five members nominated by the King27.

The Panchayat system supposedly represented an attempt to decentralise both political power and the government process and was frequently defended as a higher form of democracy. Political activities on

26 Gupta Anirudha: Politics in Nepal, Kalinga Publication, Delhi, 1993, Pg 67. 27 Sharma Sita Ram: Politics of a greater Nepal, Raj Prakashan, New Delhi, 1988, PP 172-173.

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party lines were also banned and the system was turned as partyless democracy, free from the ills of the party politics.

Instead of decentralisation, the system helped in greater concentration of power in the palace. The King became the central figure in the politics and political process. The people had to be either pro-palace or anti-palace. Pro-palace politics was encouraged and rewarded while anti-palace political activities were treated as anti-national and the people's participating in such activities were subjected to all kinds of coercion including banishment from the country. True, political parties were legally banned, but they did continue functioning both from within and without the country. Some factions and leaders of the left parties having understanding with the palace were encouraged to function in the interest of the King. Worst of all, the non-partism Panchayat members themselves functioned as a party by rigidly adhering to panchayat ideology. The proxy presence of the political parties was always discernible in the actual working of the system at every level. It was more clearly 'visible in the elections of the students' union in the university campus.

Despite all this, so long as King Mahendra was alive he contained the opposition, maintained his tight grip over state machinery by exercising absolute power and managed to run the system effectively. He was also successful in manipulating wide popular support by projecting a new kind of Nepali nationalism and asserting the country's personality in international society28. The Panchayat System The most striking feature of panchayat democracy was that it established party-less system. The Panchayat system was organized on the three-tier system. At the lowest level were the village and town panchayats. The second tier consisted of the direct Panchayats, one each for the 75 development districts. At the top was the national Panchayat. The primary units alone were popularly elected. All over Panchayats were elected by the directly below from among its own members, thus providing, at least, in theory a pyramidal structure on a popular base.

Local elections were held throughout Nepal in 1962 and village town panchayats were elected, and then zonal and national panchayats

28 Saran P: Government and Politics of Nepal, Metropolitan Book Co, 1983, PP 77-79.

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were established. By April 1963, the Panchayat system became fully operational29. The Panchayat system instead of bringing genuine decentralization, helped in greater concentration of power in the palace. The Panchayat constitution underlined that sovereignty was located in the hands of the king by constitutional laws, customs and usages of the land. The king was to be the executive, legislative, and judicial power. The constitution provided for a Council of Ministers to assist the king in the exercise of his executive power. But the king retained the discretion to fix the tenure of office, portfolios etc of the ministers who were appointed from among the members of the national Panchayat. Further, the national Panchayat, which was to be the legislative organ, was a mere advisory body whose recommendation could become law only with the approval of the king. The king had the power to call, suspend or close the session of national Panchayat. Under the Panchayat system, real power concentrated in the king’s secretariat and in the countryside influence rested in the offices of zonal commissioners and their official staffs or the parallel system of development officers. People had to be either pro-palace or anti-palace. All anti palace activities were treated as anti-national and the people’s participation in such activities were subject to all kinds of coercion including banishment from the country30.

Despite all this, king Mahendra contained all opposition, maintaining tight grip over state machinery by exercising absolute power and managed to run the system effectively. He was also successful in manipulating wide popular support by projecting a new kind of Nepali nationalism and asserting the country’s personality in international society of states. Future of Monarchy

Two possible extremes hold key to future of monarchy in Nepal. The recent trend in some political quarter for abolition of the institution monarchy is at one extreme and the attempt on the part of the king to stage a come back as their absolute ruler of Nepal is at the other.

True in the history of the monarchy in the country for over two centuries, there was absolutely no attempt to abolish the institution. But the extremely authoritarian functioning of the kings since Mahendra 29 Jha Shreekrishna, Nepal’s Experiment in constitution (1940-1901). Center for the study of Nepal, (BHU, 1982) PP.8-11. 30 Pradhan Bishwa: Panchayat Democracy in Nepal, Pub Hari Charan Shrestha, Barakhamba Road ,New Delhi,1963,

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gradually made a section of the people hostile to this institution some factions of new left parties see no prospect of real democracy in Nepal so long as the king remains part of the political system. Therefore, after the success of the democratic movement in 1990 on the eve of the drafting of a new constitutions, there was a forcefully demand fur abolition of the institution. It is not secret, the left parties have a strong popular base and their performance in the last general election has given Nepali congress. Though there care numerous political parties in Nepal, but the country has emerged essentially as a two party system. As such, there is every possibility of the left parties coming to power in future. If it so happens, the monarchy will face the danger of its extension31.

The other possibility is a danger signal to democracy. The situation has forced the king to reconcile himself with the present position. But it may change and at can be changed. Mahendra has also started functioning more or less like a constitutional head after the formation of the poplar government in 1954, though he had enormous powers them under this constitution. But through conspiratorial tact’s he divided the political leaders into mutually hostile and conflicting groups and staged a successful coup. The danger of history repeating itself cannot be ruled out altogether. The king has been deprived of political powers, but it has not deprived him of his privilege of palace intrigues. The prospect of democracy in Nepal is really intrigued on this point. One who has tasted power, and that two for long, cannot live without it. A lion can hardly be converted into grazing animal.

Moreover, the constitution has left some loopholes for the king to manipulate the site ration for usurping power. In fact, constitution has never provided an effective check on dictatorial tendency. In Nepal, it is a well-known fact that the army, composed as it is, is closer to the palace and top brass of the army have been deriving undue benefits under king’s patronage. The king being now also the supreme commander in chief of the Army has ample opportunity to maintain his traditional link with the armed forces. The constitution does put limitation on the king to follow the recommendation of the national defense council (Consisting of the prime minister and the commander in chief) beet the arrangement can be circumvented. Similarly, the king’s authority to declare emergency can be misacted for personal power gain. Therefore, it the institution of monarchy is to function on the British Pattern, the people of Nepal have

31 Richard J. Barnet, “the future of Democracy” Yale Review, Autumn, pp. 2-7

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to keep a constant vigil on the power politics of the kingdom till monarchy is fully accustomed to its non-asserting place in the political system.

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2.5 PANCHAYAT CONSTITUTION OF 1962 Exactly after two years of the royal takeover on 16 December 1962

a new constitution was promulgated by the King Mahendra which noted the new system as Panchyat Democracy. This new constitution contained a stronger and more explicit statement about the authority of monarchy than any previous constitutions. In essence, the 1962 constitution concretized the political philosophy of King Mahendra, the innovator of the system who was itching since 1955 to introduce a political system which could allow him to wield absolute power and enable him to consolidate his personal rule32.

Therefore, under the constitution of 1962 the king had every set of political power that could be obtainable in a despotic order. In relation to His Majesty The constitution itself occupies only a second place and its provisions were to be amended by His Majesty by proclamation which in turn was to form an integral part of this constitution. But the more striking feature of the theoretical basis of the king’s powers, for the first time since 1951(Monarchy’s restoration) was frankly laid down in a constitutional garb as under: “The sovereignty of Nepal is vested in His Majesty and all powers executive, legislative and judicial emanate from him. These powers are exercised by His Majesty through the organs established by or under this constitution and other laws for the time being in force keeping in view the interest and wishes of His Majesty’s subjects according to the highest traditions of Shah dynasty” (Art. 20-2)33. Nepalese Nationalism has grown and nurtured under the leadership of the crown from the earliest time to the modern age. Is the partyless Panchayat System was more useful for the Nepalese people or the Nepalese people wanted to change in any type of political system? Although not any system is complete one form or another way, but it will be seek to help for the modernization of the any society. In the course of the past several hundred years, Nepal has experienced a succession of political system a monarchy under the Shah Kings (1769-1846), an oligarchy under the Rana Prime Minister (1846-1951), an uncertain period of government shared by the monarchy and various political parties (1951-59), a parliamentary system (1959-1960) and re-establishment of absolute monarchy under partyless Panchayat System

32 Agrawal H. N, “Nepal: A Study in Constitutional Change” , New Delhi, 1980, Pg 56. 33 The Constitution of Nepal ( H.M.G Nepal, July 1976, English Translation) Pg55.

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since 1960 to 1990 and again parliamentary system from 1990 to present34. Nepal is an independent, sovereign and indivisible Himalayan Kingdom. In the course of its long history, various ruling clans and dynasties have contributed to shaping the destiny of the Nepalese people and preserving their national independence. The Kiratas, the Lichchhavis, the Thakuris, the Mallas and the Shahas have successively played a dynamic part in moulding and influencing Nepalese way of life and civilization in different epochs of the country’s long historical march. In a word, in Nepal monarchs have represented the different ages and played distinct roles. Nepal in ancient times had been divided into innumerable feuding small states and at times mutual hostilities between them reigned supreme. It was His late Majesty Prithvi Narayan Shah, who played a most important role in the building of modern Nepal. His late Majesty, with great sagacity, undaunted fortitude and astounding heroism, unified all principalities under one national flag and thus laid the foundation stone of Modern Nepal in 1769, He became the father of modern Nepal. The shah king’s (1769-1846) who had promoted as well as consolidated the political, social and religio-cultural unity of the Nepalese people35. The first general elections were held in the country in 1959 under the new constitution. In the election the Nepali congress won 73 seats out of 109 seats in the Lower House of the Parliament and a Government was formed with Mr. B. P. Koirala as Prime Minister in May 195936. The Parliamentary government could not meet the expectation of the people. Mutual bickering among the political parties and the negligence of the country’s interests on the part of the elected government brought many internal disorders and exposed the country to external threats. The seriousness of the situation made King Mahendra take the historic step on December 15, 1960, when he dissolved the parliament and banned all political parties. Having given serious thought to an alternative political arrangement, King Mahendra came out with a solution which was a new

34 Leo. E. Rose and Maragaret, W. Fisher: The Politics of Nepal: Persistance and change in an Asian Monarchy , Itaha Cornell, 1976, pp38-62. 35 Lohani, M. P : Monarchy in Nepal, Kathmandu, 1966, Pg 102. 36 Facts about Nepal; HMG, Ministry of Communications, Department of Information, Kathmandu (Nepal) 1982, pg 32.

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political system, known as partyless Panchayat System, which came under the new constitution of 196237. The main tenants of the Panchayat system, according to the constitution of 1962 were as follows:

1- Leadership of the crown as inviolable precept. 2- Creation of a dynamic, democratic, equitable and exploitation free

society as the ultimate goal. 3- Class co-ordination as the means or medium with cooperatives as

an economic strategy. 4- Partylessness as a basic political character; and 5- Decentralization of authority as a political strategy. 38

According to the constitution of Nepal 1962, the sovereignty of Nepal was rested in the crown. All powers executive, legislative and judiciary emanate from the King. The king exercised these powers taking into consideration the will and welfare of the people. His Majesty’s Power :-

Executive Powers As a sovereign of the state and Head of government all the executive powers were vested in the hands of the king. In the executive works of this power there shall be a council of ministers to advise and assist him. All the members of council of ministers were to be appointed by the King. They were responsible to the King. Their tenure of offices was at the pleasure of the King39.

His Majesty the King should appoint the Ambassadors, Zonal Commissioners and also the heads of the constitutional bodies that’s an executive power was quite comprehensive. The supreme command of the Royal armed forces was vested in His Majesty and as such the Commander-in-chief of the Royal Armed Forces shall be appointed by His Majesty40.

Legislative Powers The constitution had invested the king with wide powers over the

composition, character, power and life of the national legislative body— 37.Ibid, pg. 32 38 Khagendra Nath Sharma- “ Political implications of Economic Development Policies in Nepal (Review of the Panchayat Period 1962-90)”. (Unpublished Ph. D. thesis), Department of political science, B.H.U., Varanasi, 1991, p. 80. 39 R. S. Chauhan- “The Political Development in Nepal 1950-1970.” New Delhi, Associated Publishing House, 1971, p. 212. 40 R.S. Chauhan, Op.cit., p. 212.

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Rastriya Panchayat. The king was empowered to nominate fifteen percent of the total elected members of the Rastriya Panchayat to it41. The King might also designate a commission to enlighten him by submitting a report with a finding whether a member of Rastriya Panchayat has committed a breach of secrecy or not. His approval of the Report should be regarded as final. The chairman of Rastriya Panchayat was also appointed by the king on the recommendation of Rastriya Panchayat from among the members42. The king may summon and prorogue the sessions of the Rastriya Panchayat. The king may send the messages to the Rastriya Panchayat and the Rastriya Panchayat after considering it shall submit its opinion to the king. The king could further amend the constitution through the proclamation. The king had absolute and wide powers over the decisions of the Rastriya Panchayat43. Judicial Powers The king was the source of judiciary in Nepal. The constitution of 1962 had embodied him most of the judicial powers. In fact, he was the supreme judicial head of the state. The chief justice and other judges were appointed by the king. Attorney General was also appointed by him. The king was given power to re-appeal or pardon any case decided by the Supreme Court. So His Majesty the king was the fountain head of the justice44. Emergency Powers The constitution of 1962 gave the importance of emergency power vested in the king which defines the provisions of Art.81 of the constitution. If the king believed that an emergency exist for threatening national security by war, external aggression or internal disturbance in the country, the king could proclaimed emergency. No time limit and no reviewing device exist to limit the exercise of this power except that laws made under this emergency provision had no effect after six months following the emergency if they conflict with the constitution.45 Constitutional Reforms The 1962 Constitution was amended in 1967, 1975 and 1980. General elections were held in 1981 and 1986 on the basis of adult franchise. According to the 1967 Constitutional amendment, the 41The Constitution of Nepal, 1962, Art. 34 (2) 42 Ibid. 43 R. S. Chauhan, - “The Political Development in Nepal 1950-1970.” New Delhi, Associated Publishing House, 1971, pg.213. 44 Ibid., p.213. 45 Ibid., p. 215.

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Panchayat system was described as ‘Partyless and democratic.’ The second amendment of the Constitution was promulgated on December 12, 1975. “Back to Village” National Campaign (BVNC) machinery was introduced by the 1975 constitution, with the objective to provide the political guidance and control for the partyless Panchayat Democracy. The unfolding of events seemingly showed that the Panchayat system, as amended in 1975, was neither becoming resilient nor integrative. Wave of discontent and disenchantment engulfed the whole country.46

On May 24, 1979 King Birendra announced a National Referendum urging the people to vote either for Panchayat system with ‘timely reforms’ or the multi-party system. On December 16, 1979 in a messages to the nation, His Majesty declared, that whatever the outcome of the national referendum, the election to the country’s legislature shall take place on the basis of the adult franchise, the Prime Minister elected by it and the Cabinet responsible to it. The polls were held on May 14, 1980. The majority of the voters opted for ‘Partyless Panchayat Democracy’ with suitable reforms. The partyless side thus came out victorious over the multi-party camp by a margin of about 10 percent votes bagging 2,433, 452 votes as against 2,007,965 votes secured by the letter in the poll.47

After the announcement of the result, His Majesty set up a constitutional reforms commission and the third amendment to the constitution of Nepal was promulgated. The third amendment initiated some important changes-

(i) the ‘Back to the village” national campaign committee were abolished, (ii) The members of the Rastriya Panchayat (National Assembly) have been elected on adult franchise, (iii) the tenure of members of the Rastriya Panchayat was fixed for the period of five years, (iv) the provision for a coordination committee to promote coordination among the executive, legislative, judicial and other working procedures was made, (v) it lays down the objective of the foreign policy of the Panchayat system shall be to adhere to the fundamental values of the United Nations and the principle of non-alignment and Endeavour to make Nepal a zone of peace. The Government under the dynamic leadership of His Majesty King Birendra under the Panchayat system was committed to the all-round development of the country48. 46 Facts about Nepal, Department of Information, Ministry of communications, H.M.G, Kathmandu, p. 34. 47 Ibid p. 35. 48 Profile of Political Studies, Vol.3, No. 1 and 2 March and Sept. 1987 p. 50.

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The third amendment which was promulgated in 1980 had, indeed, taken tangible steps to transform political system from modernizing autocracy to monarchical reconciliation system. The King’s role was supreme and unviable. Such a crown could not remain an ideal spectator of events in the country. On a theoretical basis the termination of parties created a void of political leadership and political opposition of an organized nature. So, the king remained the only authority to guide and channelise the aspirations of the nation. This was also reinforced by the fact that there was no authority to contest the royal claim of leadership49. 49 Khgendra Nath Sharma, “Political Implication of Economic development Policies in Nepal(Review of Panchayat Period, 1962-1990)” Deptt Of Political Science, B.H.U Varanasi, 1991,Pg 81.

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2.6 End of Panchayat System The constitutional amendment of 1980 was significant in the sense

that it added a new dimension to the Panchayat system. The element of politics entered to the Panchayat system with the holding of general elections. However, the democratic forces were still not satisfied with the reforms because they were not prepared to accept anything less than a multi-party democratic system. Therefore, the major (banned) political parties did not participate in the 1981 and 1986 general elections of the National Panchayat. They took it for granted that democracy cannot be established in Nepal through constitutional reforms. Hence, they decided to continue their struggle in order to uproot the Panchayat system50.

The final blow to the Panchayat system came in the form of a movement launched by the Nepali Congress and the Communists jointly. It demanded abrogation of the Panchayat system and the establishment of democracy in the kingdom. The movement became so intensive that King Birendra found no alternative but to declare liquidation of the Panchayat system in April 1990.

A 'Constitution Committee' was formed to frame a new constitution for the country. A coalition government of the Nepali Congress, Communist party and the King's nominees was constituted for the interim period. The new constitution was promulgated in November, 1990 and with this the democratic system was re-established in Nepal51. The preceding discussion on the constitutional development in Nepal shows that Nepal has been for last four decades striving for a lasting constitution. For a long-time an absolutist and despotic rule of the Shah rulers and later the Ranas had been in operation, wherein personal wishes and orders of the ruler were considered as the fundamental law of the land. It can also be seen that the process of constitutional development has not been uniform. The 1948 constitution which was the first constitution of the country could not be promulgated. The 1951 and 1959 constitutions were designed to promote western models of democracy in the country but the process was reversed when King Mahendra assumed power and the 1962 constitution were promulgated. It attempted to restore the traditional authority of monarchy and democracy remained a mere facade. It is only through the 1990

50 Agrawal H.N: Nepal, A Study in Constitutional Change, New Delhi. 1980, Pg 60. 51 Bhuwan Lal Joshi and Leo E. Rose, Democratic Innovation in Nepal, Berkeley. 1965, pg 105.

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constitution that the process of democracy has been restored in the country) and a parliamentary constitution has come into force52. King Birendra inherited the system as well as the absolute authority to rule the kingdom after the death of his father in 1972. But he could not resist the pressure for change in the system. On 12 December 1975 he announced various changes in the system, which was mere constitutional window-dressing box preserving royal absolutism. The National Panchayat sessions which used to be secret earlier were now thrown open to a new commission to prevent abuse of powers. The ministers and officials under the direct control of the king were established. The membership of the National Panchayat was raised from 90 to 112 and King's power, to nominate 15 percent of its members was raised to 20 per cent. The 14 zones were abolished and they were reorganized into 4 divisions53. A new unity of "Nepal Adult Organization" was added to the recognized class organizations but the representation of the class organisations in the National Panchayat was abolished. The most anxious charge was the elevation of an extra-constitutional body 'Back to Village National Campaign' under the direct control of the crown. This body was given enormous powers to control the political process at the level of 4000 village Panchayats and function somewhat like a polit bureau. Thus, the reforms through the second amendment of the constitution did not affect the fundamentals of the Panchayat system. Now could they provide any relief to the Pro-changers who had been striving for liberalization of the system Instead, they further strengthened the position and role of the king54.

52 Chauhan R.S: Political Development in Nepal,1950-1970 Conflict between Tradition and modernity, Associated Publisher, New Delhi. 1970,Pg 57. 53 Gupta Anirudha: Politics in Nepal, A Study of Post-Rana Political Development and Party Politics, Allied, Bombay, 1964,Pg 69. 54 Goyal Narendra: The King and His Constitution, Nepal trading corporation, New Delhi, 1980. pg 82.

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2.7 THE CONSTITUTION OF THE KINGDOM OF NEPAL, 1990

The enormous powers on the part of monarchy and checks on the working of various other constitutional bodies made the Panchayat system a closed and repressive one. As a result, gradually, it led to opposition against the autocratic functioning of King’s administration. Moreover, there was no room for political parties in the Panchyat system. The structural laws and performance failures constituted the basic source of opposition to the system. This was also compounded by the emergence of the hard core modern elites, the peripheral elites and the new Panchyat elites which all in due course of time became fully dischanted with the system. They all began to mobilize the general discontent among the Nepalese masses which finally resulted in collapsing of the Panchayat system. After the end of 30 years old Panchyat system, a new constitution, the Constitution of the Kingdom of Nepal 1990, was promulgated on 9 November 1990, by the King Birendra Bir Bikram Shah Dev upon the advice and with consent of the Council of Ministers headed by K. P. Bhattarai. The following are the main features which deal with the powers, status and functions of the king. The preamble of the 1990 constitution clearly envisages the Constitutional Monarchy besides guarantee of the fundamental rights of every citizen, the protection of his liberty, consolidation of the parliamentary Government and multi-party system and to provide for independent judicial system.

The new constitution vests the sovereignty in the Nepalese people as the preamble states “WHEREAS we are convinced that in the independent and sovereign Nepal, the source of sovereign authority is inherent in the people. ……with the popular will”55.

Under the New Constitution, Nepal has been declared a multi ethnic, multi lingual, democratic, independent, indivisible sovereign Hindu and Constitutional Monarchical Kingdom56. According to the new constitution of 1990, His Majesty is the symbol of Nepalese nationality and the unity of the people of Nepal. The expenditures of the privileges relating to his Majesty and the royal family

55 See The Preamble of the Constitution of Kingdom of Nepal, 2047 V.S. (1990) Legal Research Associates, Kathmandu, Pg.1. 56 Ibid Pg 2.

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are to be determined by law. His Majesty’s income and property are exempted from tax. The executive powers of the country have been vested in His Majesty and the council of Ministers. The direction, supervision and conduct of the general administration of the kingdom of Nepal are the responsibility of the Council of Ministers. All acts to be performed by His Majesty, expect those which are within his exclusive domain or which are to be done on the recommendation of some other institutions or officials will be performed only with the advice and consent of Council of Ministers57. HIS MAJESTY AND THE COUNCIL OF MINISTERS

The 1990 constitution clearly defines the relationship between His majesty and the council of Ministers. As stated above the executive powers of the country have been vested in His Majesty, The king and the council of Ministers. His majesty is to appoint the leader of the party commanding majority in the House of Representatives as Prime Minister and other ministers or to be appointed from amongst the members of the parliament on the recommendation of Prime Minister. In case no single party wields a majority in the House, the member who commands a majority on the basis of two are more parties shall be asked to form the Government. And if this also is not the case then His Majesty may ask a member of the party having the largest number of members to form the government in case these special situations occur, the leader forming the government must obtain a vote of confidence within thirty days. If such confidence is lacking, his majesty is to dissolve the House and order fresh election to be held within six months. His Majesty is also the part of legislature as the constitution provides that His Majesty, the House of Representatives and the National Council together form the parliament, the legislature of the country58. His Majesty is the Supreme Commander in Chief of the Royal Nepal Army. The Royal Nepal Army is to be administered and developed by His Majesty on the recommendation of the National Defence Council. The Commander-in-Chief is to be appointed on the recommendation of the Prime Minister. The National defence Council will consist of the Prime Minister as the chairman and the Defence Minister and the Commander in Chief are to be its members. 57 Nepal News Vol. XXIX, November 15, 1990, Royal Nepal Embassy, Barakhamba Road, New Delhi, Pg 10. 58 Ibid, PP 11-12.

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Emergency Powers under the New Constitution: The present constitution enacted in 1990 after a struggle for a democratic order launched by the Nepali congress and the communists, is a first constitution which vests sovereignty in the Nepalese people. The preamble of the constitution envisages guarantee of the fundamental rights of the Parliamentary Government, constitution Monarchy and Multiparty system and to provision for independent Judicial System. 59 Constitutional Provisions of the Emergency Powers Article 115 of the new constitution writes that

I. In case a grave crisis is created by war or external attack or armed rennet or extreme economic disorder to the sovereignty and territorial integrity or the security of any part of the Kingdom of Nepal, his majesty may declare or proclaim a state of Emergency throughout the Kingdom or any specified part of Nepal.

II. Any declaration or proclamation under clause (l) shall be presented for approval to the House of Representatives within three months.

III. In case any such declaration or proclamation under clause (ii) is approved by a two Thirds majority of the House of Representatives, it shall be effective for a period of six months from the date of its first announcements.

IV. In case any such declaration or proclamation under clause (2) is not approved under clause (3) it shall immediately be ineffective.

V. The House of Representatives may extend the emergency further for a period of six months.

VI. The National council shall exercise the powers conferred by clauses (ii, iii, iv and v) on the House of Representatives if it is dissolved. 60

If we go by the literally meaning of this article without taking into account their relevant articles of the constitution; we would be forced to conclude that the king has independent right to use the emergency powers. And if we accept this, the whole exercise of constitution making process to introduce constitutional monarchy would have been defeated. The King

59 Nepal News Vol. XXIX, November 15, 1990, Royal Nepal Embassy, Barakhamba Road, New Delhi, PP 27. 60 Ibid- PP 27- 28.

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under the new constitution is neither answerable to any court nor accountable to parliament. Therefore, we have to understand the Emergency powers of the king along with the article 35 (2) which state that His Majesty shall exercise his powers with the advice and consent of the council of Ministers. Such advice and consent shall be communicated through the Prime Minister. It is actually this part of the constitution which has a direct bearing on the exercise of power by the king under Article 115 clause (1). The reading of Article 35(2) with Article 115(1) makes the council of Ministers the real institution vested with the power to declare emergency. The king cannot declare emergency under Article 115(1) on his own if he were to abide by the mandate of article 35(2). Parliamentary control over the Emergency powers

The Nepalese constitution has also besides the council of Ministers has put limitations on the king by providing for the powers to be ratified by the 2/3 majority of the members of House of Representative within three months failing which such declaration will be automatically nullified. Thus the recognition of the role of parliament in checking the executive not only conforms to the basic principles of parliamentary supremacy but also the sovereignty of the people. The provisions for ratification though a welcome step, has been criticised on the several grounds:- First: the constitution has given sufficient time to the executive to place the declaration before the House for ratification. As such, it has virtually given quite a long period of time to the King to run the country. The problems became even more a cute if the emergency is declared during the time when Parliament is not in session and the executive deliberately prefers not to call the session during that three months time period. Second: In case the King or Council of Ministers do not want to call the session of the Parliament the only alternative left to the members to sign a petition signed by ¼ of the total members to request the King to summon the extraordinary session of the parliament and then pass a vote of no confidence against the council of Ministers for ignoring the House of Representatives61. Judiciary and the Emergency Powers:

Article 115 says that in case a situation of grave emergency having arisen due to war, external aggression, armed revolt or grave economic

61 61 Nepal News Vol. XXIX, November 15, 1990, Royal Nepal Embassy, Barakhamba Road, New Delhi, PP 30-32.

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crisis in regard to the sovereignty and integrity of Kingdom of Nepal or the security of any part of the country, His Majesty may declare rote of Emergency throughout the Kingdom of Nepal or on any part thereof. It is therefore clear that the declaration of Emergency will take place only in a situation when the Executive (the king in name and the Council of Ministers in fact) is satisfied that such a situation has arisen62. The question as to whether the given situation really exist or not is a purely executive decision of political nature and Judiciary, nothing to do with such powers. Numerous attempts to seek the judicial interference in declaration of Emergency by Executive has been tactically discouraged by the Apex court of India under the cover of the doctrine of political question. This doctrine is based on a belief that there are certain areas of Executive functions which are purely of political nature and hence the discretion of the exercise of such power must be left to be evaluated through political process rather than judicial process.

Now one obvious question which agitates the minds of the Nepalese people and the scholars working on Nepal is that will the institution of monarchy in practice will act as constitutional head envisages in the new constitution. In this connection it may be pointed out here that despite some misgivings regarding the role of the monarchy in the new constitution, when the results of the General Elections were declared and it become clear that the Nepali Congress was heading for a majority in the parliamentary the process of electing the parliamentary leader was initiated by the members of the parliament of the same party; the king in conformity with the stipulated norms of the constitution invited G. P. Koirala to become the Prime Minister and asked him to form his council of Minister. What is important to point out here that according to the constitution it has been clearly mentioned that the Executive powers of the Kingdom of Nepal shall in pursuant to this constitution and other laws, be rested in His Majesty and the council of Ministers63. To conclude, it can be said that the emergency powers of the King have to be implemented on the advice of the council of Ministers and subject to the approval of the Parliament. However if the King along with Council of Minister wish to ignore the parliament it can put the Kingdom under emergency rule for more than three months and it would be very difficult for the Parliament to check the powers of the Executive, But the 62 62 Nepal News Vol. XXIX, November 15, 1990, Royal Nepal Embassy, Barakhamba Road, New Delhi, PP 18-20. 63 Ibid PP 22-23.

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experience of the last three decades is testimony of the fact that the Nepalese King has responded with imagination to popular aspirations by relaxing their personal control over political authority and has been bold enough to experiment with the system of parliamentary government.

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