la
r
te
Chapter-II
Basic Features of Nepali Political System
Es
2.1
2.2
2.3
2.4
2.5
2.6
2.7
Treaty of Sugauli 1815.
Govt. of Nepal Act 1948.
Parliamentary Constitution of 1959.
Direct Rule by Monarchy.
Panchayat Constitution.
End of Panchayat System.
New Constitution of 1990.
2.1 The Treaty of Sugauli,1815
Es
te
la
r
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 1215.
Es
te
la
r
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 AngloNepalese 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
11
Aryal, K. R : Monarchy in the making of Nepal, Shanti Sadan Kathmandu, 1975, pg 12-14.
Sanwal B. D. : Nepal and the East India Company, Asia Publishing House,1965, Pg 22-25.
Es
te
la
r
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.
Es
te
la
r
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.
2.2 THE CONSTITUTION OF 1948
Es
te
la
r
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.
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.
16
Es
te
la
r
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.
P. Neupana (Ed & Translated): The Constitution and Constitutions of Nepal, Center for study of Nepal, B. H.
U Varanasi, 1972, Pg 102.
18
2.3 THE CONSTITUTION OF 1959
Es
te
la
r
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.
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.
20
Es
te
la
r
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.
2.4 DIRECT RULE OF MONARCHY
Es
te
la
r
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.
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.
Es
te
la
r
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
27
Gupta Anirudha: Politics in Nepal, Kalinga Publication, Delhi, 1993, Pg 67.
Sharma Sita Ram: Politics of a greater Nepal, Raj Prakashan, New Delhi, 1988, PP 172-173.
Es
te
la
r
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 propalace 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.
Es
te
la
r
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,
la
r
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.
Es
te
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
Es
te
la
r
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.
2.5 PANCHAYAT CONSTITUTION OF 1962
Es
te
la
r
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 reestablishment of absolute monarchy under partyless Panchayat System
32
33
Agrawal H. N, “Nepal: A Study in Constitutional Change” , New Delhi, 1980, Pg 56.
The Constitution of Nepal ( H.M.G Nepal, July 1976, English Translation) Pg55.
Es
te
la
r
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.
Es
te
la
r
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
38
.Ibid, pg. 32
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.
Es
te
la
r
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
41
The Constitution of Nepal, 1962, Art. 34 (2)
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.
42
Es
te
la
r
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
47
48
Facts about Nepal, Department of Information, Ministry of communications, H.M.G, Kathmandu, p. 34.
Ibid p. 35.
Profile of Political Studies, Vol.3, No. 1 and 2 March and Sept. 1987 p. 50.
Es
te
la
r
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.
2.6 End of Panchayat System
Es
te
la
r
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.
Es
te
la
r
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.
2.7 THE CONSTITUTION OF THE KINGDOM OF NEPAL, 1990
Es
te
la
r
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.
la
r
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
Es
te
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
58
Nepal News Vol. XXIX, November 15, 1990, Royal Nepal Embassy, Barakhamba Road, New Delhi, Pg 10.
Ibid, PP 11-12.
Es
te
la
r
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.
Es
te
la
r
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
32.
Nepal News Vol. XXIX, November 15, 1990, Royal Nepal Embassy, Barakhamba Road, New Delhi, PP 30-
Es
te
la
r
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.
Es
te
la
r
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.