A constitution is a set of rules duly codified in a single document. The constitution illustrates the nature and behaviour of a country. The constitution guides the citizens what to do and what not to do. The constitution also governs relations among citizens and with countries in the global community. In other worlds, the constitution ensures what the second American president, John Adams, called ‘the government of laws and not the government of men’. The constitution specifically says what a government should or should not do in defence of people’s rights, freedom, and well-being. The constitution is, thus, the soul of democratic governance.
The history of constitutions in the world goes back to the 17th century, when a tiny European state, San Marino, adopted a constitution. However, the modern and democratic constitution-making process has its roots in the 18th century’s political upheavals in America and Europe. The American War of Independence and the French Revolution heralded a new wave of political movement and consciousness in the larger mass against colonial brutality and feudal subjugation across the world. The United States adopted the constitution in 1787, and France followed suit in 1792. Americans were the first to declare open war against British colonial rule, whereas the French tore apart the shackles of feudal monarchy, thus placing the people and their rights at the top of the state's priority list. Both countries adopted republican constitutions. Now, almost every country in the world has its own constitution, but not all constitutions are democratic. Thus, having a constitution is one thing, but having a democratic constitution is another. The crux thus lies in the process of making the constitution.
Nepal has a relatively short history of constitutionalism. In the span of 75 years, Nepal has experienced seven different constitutions. The first constitution was given by Rana Prime Minister Padma Samsher Rana during the Rana family's oligarchic rule, not with the intention of establishing a constitutional regime in Nepal but to hoodwink the people and the outside world in the wake of a burgeoning movement against the family autocracy. Padma Shamsher’s constitution was neither a real constitution from the perspective of constitutionalism nor did it ever come into practice. The second constitution came into effect in 1951 and was given by King Tribhuvan soon after the political change in 1951 that overthrew Rana family rule and dawned multi-party democracy for the first time in Nepal. However, this political change eventually proved to be a mere transfer of power from one clan to another, or from Ranas to Shah kings. King Tribhuvan himself broke his own promises and also violated the interim act. King Tribhuvan, in the public announcement he made soon after returning from India in 1951, said ‘the country would now be ruled under the constitution written by the elected representatives. But he was never allowed to start the democratic constitution-making process. King Mahendra gave another constitution in 1959, under which the first ever parliamentary elections were held. However, the elected government, too, did not last long as King acted against the democratic setup, thus dismissing the parliament and other democratic institutions as well as sending leaders to prison. This marked yet another dark era of the king’s absolute monarchy, which was formalised by the constitution given by the king in 1962.
Constitution-writing and constitution-making are two different things. The legitimacy of the constitution comes from the process of its making. All four constitutions were made through an undemocratic process. When the constitution-making process is flawed and undemocratic, the constitution loses legitimacy and is bound to fail. This is exactly what happened to the fate of all these four constitutions in Nepal.
Nepal remained under the king’s absolute regime for nearly 30 years. However, a mass movement forced the king to restore democracy in Nepal. Accordingly, a new constitution was adopted in 1991. This time too, a less democratic process was adopted to write the constitution. Instead, a few handpicked representatives from three main forces—the Nepal Congress, the United Left Front, and the king—drafted the constitution, which was promulgated by the king. This was a semi-democratic process chosen while making the 1991 Constitution. The question of a fully democratic constitution-making process remained alive in Nepal, which was realised only after the third Janaandolan, or popular movement, in 2005. The Constituent Assembly election was held, and the constitution was written by the democratically elected representatives of the people. And the constitution written by the Constituent Assembly was promulgated in 2015. This was the most democratic process of constitution-making.
Nepal’s present constitution, by all accounts, is the most democratic one, with several unique features. The preamble of the constitution begins with "We, the people of Nepal, in exercise of the sovereign powers inherent in us... hereby promulgate this Constitution through the Constituent Assembly". Thus, it is the people’s constitution, written by the people’s elected representatives. This constitution was promulgated in the name and on behalf of the people. It has institutionalised a republican set-up, federalism, a proportionate system of elections, inclusive democracy, freedom of speech, and periodic elections, among others. In other words, this constitution enshrines all the fundamental elements of modern democracy. All previous constitutions were monarchical, and the present is a republican one. According to the French philosopher Montesquieu, ‘men are equal only in republican governments.’ The monarchical system contains dynastic traditions that cannot be called fully democratic. From both perspectives of constitution-making as well as contents, the present constitution is the best democratic constitution. However, having the best and most democratic constitution alone does not work if the actors who are responsible for implementing it are not competent and sincere. According to Dr. B.R. Ambedkar, who is said to be the father of the Indian constitution, ‘However good a constitution may be, if those who are implementing it are not good, it will prove to be bad’. As observed by Dr. Ambedkar, all, especially those at the helm of affairs, should be more sincere and committed to defending this constitution and implementing it in its true letter and spirit.
(Lamsal is a former editor-in-chief of TRN and former ambassador.)