Executive Branch Reform: Comprehensive Peace Agreement

3.3. No state powers shall remain with the king. The properties owned by the late King Birendra, the late Queen Aishwarya and their family members shall be brought under the control of the Government of Nepal and used in the interest of the nation through a trust. All properties (such as palaces at various places, forests and National Parks, heritages of historical and archaeological significance etc.) acquired by King Gyanendra in his monarchical capacity shall be nationalised. The issue of whether to continue or scrap the institution of monarchy shall be decided by a simple majority of the Constituent Assembly in its first meeting.

Implementation History

2006

Minimum Implementation

Once the House of the Representative was reinstated, a new Seven Political Parties government was formed and the government started consulting with the coalition leaderships and the Maoists on stripping the King’s power and drafting an interim constitution. This process began before the signing of the Comprehensive Peace Agreement on 21 November 2006. On 16 June 2006, the government of Nepal and the Maoists agreed to form an Interim Constitution Draft Committee (ICDC) to create the draft interim constitution within 15 days. On 7 July 2006, the government asked the ICDC to begin its work. The committee submitted the draft interim constitution on 25 August 2006. The interim constitution, however, was not adopted in 2006. Nevertheless, by the time the peace agreement was signed on 21 November 2006, the king had restricted prerogatives as well as limited executive powers.

2007

Intermediate Implementation

The interim constitution was promulgated on 15 January 2007.1 The provisions regarding the king, his property and his family members were adopted in Article 3.3 of the interim constitution. These provisions read as follows:

3.3. No powers to rule the country shall be vested in the King. The properties of late King Birendra, late Queen Aishwarya and their family shall be transferred to the Government of Nepal and be utilized for the national interest by forming a trust. All properties (like the palaces located in different places, forest and parks, heritages of historical and archeological importance etc.) acquired by King Gyanendra in that capacity shall be nationalized. Matters regarding whether or not to maintain the institution of monarchy shall be decided by a simple majority in the first meeting of the Constituent Assembly.

Given that the king had cultivated a personal and institutional leadership of Royal Nepal Army, the Seven Party Alliance forged a 23-point agreement on 23 December 2007. The text of the agreement provided that:

1. The following amendments will be made in place of Subtitles and Sub-article (1), (2), (3a).

(3b) of Article 159 of the Constitution:

a) Nepal shall be a federal democratic republic. 

b) The republic will be implemented at the first meeting of the Constituent Assembly, provided that, if the King poses a threat to holding the Constituent Assembly election, a two thirds majority of the interim Legislature-Parliament can implement the republic by voting for the proposal. The Council of Ministers shall make the decision to submit such a proposal and the Council of Ministers shall present the proposal to the interim legislature-parliament. 

c) The King shall not have any responsibility for handling any state affairs. 

d) The Prime Minister shall be responsible for handling all state affairs.  e) Until the implementation of a republic, the Prime Minister shall conduct all the duties of the head of state.

A third amendment, adopting an agreement among the SPA, was made to the interim constitution on 28 December 2007. This amendment stripped the king of all executive power and instead vested those powers in the office of the interim prime minister.

  • 1. "Secretary General’s Report to the Security Council," United Nations (S/2007/235), April 26, 2007.
2008

Intermediate Implementation

After the Constituent Assembly (CA) elections took place in April 2008, the CA was convened on 28th of May. The first session of the CA voted by 560 votes to 4 to end a 239-year-old monarchy and to implement in its place a federal democratic republic. At the same time, a fourth amendment to the constitution created the post of President and Vice President. The former king agreed to the CA’s decision and left the palace on 11 June after organizing a press conference.2

The interim constitution was further amended, (by the Fifth Amendment), on 25 June. This amendment indicated that the President would be elected by a simple majority if a consensus could not be reached.3 When consensus could not be established among the political parties, the Assembly elected the Nepali Congress Candidate Dr. Ram Baran Yadev. This was done with the support of the UML and MPRF, as well as the NC, on 21 July. According to the constitution, the president assumed the role of the head of the state.4

These changes in the executive branch of the government, however, were only temporary as the final reform had yet to be materialized through the promulgation of the new constitution due to be announced on 28 May 2010.

  • 2. "Secretary General’s Report to the Security Council," United Nations (S/2008/454), July 10, 2008.
  • 3. "Secretary General’s Report to the Security Council," United Nations (S/2008/670), October 24, 2008.
  • 4. Ibid.
2009

Intermediate Implementation

The final constitution was due on 28 May 2010 and was expected to provide the modality of the executive branch of the government. However, the major political parties in Nepal could not agree on the form of the executive. These parties could not figure out whether a republic of Nepal should adopt a parliamentary system or a presidential system of government among other issues related to the executive branch of the government.

2010

Intermediate Implementation

The CA failed to meet the deadline to produce a draft of the constitution. The CA’s tenure was extended by one year.5 The modality of the executive branch was one of the issues of contention amongst political parties. A compromise was not reached because the Maoists were fully in favor of the presidential system while the other major political parties (and specifically the Nepali Congress) were in favor of the parliamentary system.

  • 5. "Secretary General’s Report to the Security Council," United Nations (S/2010/453), September 2, 2010.
2011

Intermediate Implementation

The CA failed to deliver the final constitution even after the extension of its tenure by one year in May 2010. The tenure of the CA was extended again in May 28, 2011, this time for three months. Nevertheless, contentious issues, including the modality of the executive branch of the government, remained as litigious as they had been in 2010.

2012

Intermediate Implementation

Major political parties failed to resolve issues related to executive branch reform. Three main political parties offered three different modalities: the Maoists advocated for presidential system, the NC for parliamentary system and the CPN-UML for mixed form of government system with directly elected president and house of representative elected prime minister. In May, parties involved in the negotiation process agreed on mixed model with parliamentary supremacy.6 This agreement however did not last long as parties failed to draft the constitution through the Constituent Assembly.

  • 6. "Parties Agree on 11-Province Model," Myrepublica, May 15, 2012.
2013

Intermediate Implementation

In the constituent assembly, major parties failed to resolve issues related to executive branch reform. This is one of the reasons for the constituent assembly elections on November 19, 2013.

2014

Intermediate Implementation

While campaigning for votes, parties have made public pledges to draft a constitution within a year. Nevertheless, disagreement on form of government remained one of the main obstacles to break the impasse throughout the year. In September 2014, the Committee for Constitutional, Political Dialogue and Consensus Building (CCPDC) submitted reports to the Constituent Assembly highlighting contentious issues among political parties. While the CCPDC was able to settle some of the issues, form of government remains one of the main issues that was not settled.7

  • 7. “CCPDC submits report to CA,” Kathmandu Post, September13, 2014.
2015

Intermediate Implementation

 Political parties failed to draft and promulgate a new constitution by the 22 January 2015 deadline they had set after the CA elections in November 2013.8 One of the contentious issues was related to the form of government. After the massive earthquake in early May, political leaders representing the big four parties in
the Constituent Assembly met to discuss the constitution issue on 31 May, and agreed to settle all key issues within a few days and produce a draft constitution through fast-track.9 On 9 June, 4 major political parties reached a 16-point agreement to deal with the contentious issues, which the Supreme Court ordered not to implement on 19 June.10 Nevertheless, the CA approved the draft constitution on July 7 forpublic feedback.11  According to the draft constitution, Nepal shall have a constitutional president as head of the state. Federal legislature, parliament and provincial assemblies elect the president for a five year term. According to the draft constitution, Nepal shall have multiparty competitive parliamentary system of government. Accordingly, the leader of the party having a clear majority or having support of other parties in Parliament will become the executive prime minister. For the first time, the draft constitution instructs that the number of ministers cannot exceed 25 at the federal level. The draft constitution also provides that a no-confidence motion cannot be introduced in the parliament in the first two years once the Prime Minister is elected. Also, a no-confidence motion cannot be introduced for the second time within a year
once it is failed. At the provinces levels, the party that wins the majority seat will form the provincial government.

  • 8. “Nepal fails to draft new constitution before promised deadline,” Xinhua News Agency,
    January 22, 2015 http://news.xinhuanet.com/english/2015-01/23/c_133941628.htm.
  • 9. “Big 4 agree to settle key disputes in next 3 days,” Republica, May 31,
    2015.
  • 10. “Supreme Court stays 16-point agreement,” MyRepublica, June 19, 2015.
  • 11. “CA concludes deliberation on draft constitution, sends for public feedback,” Himalayan Times, July 7, 2015.