Constitutionalism in Asia in the Early Twenty-First Century

(Greg DeLong) #1

procedure for making, and attempts to make, a new constitution. Finally, it


reflects on the role of constitutions in conflict resolution and the outcomes of


Nepal’s struggles for a new constitution.


i. introduction


On 1 June 2001 , Nepal’s popular monarch, King Birendra, with eight other


members of his family, was murdered in mysterious circumstances, allegedly by


his own son, Crown Prince Dipendra, who then shot himself (and died four


days later, after a brief reign). He was succeeded by his less popular uncle, King


Gyanendra, whose son, the new crown prince Paras, was even more detested.


This family and national drama (the ‘palace massacre’) took place as the country


was torn apart by the Maoist insurgency driven by demands for constitutional and


social reform. The intrigues within the royal family which surfaced (with many


Nepalis doubting whether Dipendra had killed his parents or could have shot


himself) greatly delegitimised the monarchy. Meanwhile, the autocratic tendencies


of King Gyanendra were manifested in his suspension of the Constitution and


assumption of state powers inappropriate in a constitutional monarchy. Before the


decade was over, he was dethroned and the monarchy abolished. This family


drama was reflected in the demise of the old national political order and the


struggle of Maoists, political parties and people’s movements for a new order based


on inclusive democracy, equal citizenship and social justice.


The decade in which these events took place, and which is the topic of this


chapter, is by far the most important for constitutions and constitutionalism in Nepal


since the establishment of a unified and centralised country in the latter half of the


eighteenth century under the first monarch of Nepal, King Prithvi Narayan Shah,


the ancestor of King Birendra. Then, there was no concept of a written constitution.


The country was governed by some rules based on the norms, values and teachings


of Hinduism prescribed in theDharamasastrasand by some rules based on the


norms and values of local communities. Under these systems the king was to be a


strong ruler, recognising the supremacy of thedharma(righteous conduct) as a form


of higher law. The rules governing theRaj dharma(righteous conduct for the king)


were to guide the king in his executive, legislative and judicial functions;


the subjects in turn had obligations to uphold the king’s authority.


The Hindu system envisaged no conflict if the king and the subjects upheld their


respective statuses in society, observing their responsibilities and duties. There were


no set methods to govern the relationship between subjects and the state, or to


resolve conflicts of interest between them. The legal and the political systems


and the various social and communal traditions that the king was bound by lacked


any theory of rights that could form the basis of constitutionalism. The so-called


varna(caste) system discriminated against a large segment of the people, especially


those known then as untouchables. Women were subordinated to men, and


368 Ghai

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