Abstract
Historically, the demand of the Nepalese people for a Constituent Assembly (CA ) dates back to Rana regime; however, this demand was only fulfilled on May 28, 2008, when the CA formally met for the first time and also took a historical decision on the abolition of the monarchy. In February 1947, Rana Prime Minister Pudma Shumsher had also introduced a grotesque prototype of a CA, which consisted of 12 elected and 12 nominated members to initiate constitutional reform in the country (See Giri, Pradeep (Ed.), (2009). Political Documents of Mr. Bishweshwar Prasad Koirala, Kathmandu: Student Book Store. p. 38.). However, the so-called 1947 CA lacked four important features of a Constituent Assembly. They are:
-
A fully representational institution
-
An autonomous body with authority to develop constitutionalism and promulgate a constitution
-
A supreme body able to work without interference of any individual or institution
-
An efficient public forum for constitutional discourses
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
See Giri, Pradeep (Ed.), (2009). Political Documents of Mr. Bishweshwar Prasad Koirala, Kathmandu: Student Book Store, p. 38.
- 2.
See Pande, Sardar Bhim Bahadur (1982). The Then Nepal. Kathmandu: rep. 1982. referred in Regmi , Mukunda (2004). Constitutional Development: Constitution of the Kingdom of Nepal 1990. Kathmandu: Mrs. Sitadevi Regmi, pp. 4–5.
- 3.
Cited in Singh, Top Bahadur (1985). Constitution of Nepal and Constitutional Law. Kathmandu: Law Book Publication Committee, p. 660; see also Regmi , Mukunda. Constitutional Development, supra note, pp. 4–5.
- 4.
See Article 82 of the Interim Constitution of Nepal, 2007. It provides, “On the day of the commencement of the Constitution promulgated by the Constituent Assembly , the task given to the Constituent Assembly shall come to an end. Provided that until the election of the Legislative-Parliament held in accordance with the Constitution promulgated by the Constituent Assembly, the proceedings of the Legislative–Parliament shall be conducted as specified in the Constitution promulgated by the Constituent Assembly.”
- 5.
See Dixit, Kanak Mani (2012). The Life and Death of the Constituent Assembly of Nepal. Economic & Political Weekly XLVII(36).
- 6.
See Popper, Karl (1971). Open Society and Its Enemies: The Spell of Plato. Princeton University Press, 5th Rev. ed. Vol. I. In its preface to the first edition, Popper remarks that “… if our civilization is to survive, we must break with the habit of deference to great men. Great men may make great mistakes; … some of the greatest leaders of the past supported the perennial attack on freedom and reason. Their influence, too rarely challenged, continues to mislead those on whose defense civilization depends, and to divide them. The responsibility for this tragic and possibly fatal division becomes ours if we hesitate to be outspoken in our criticism of what admittedly is a part of our intellectual heritage. By our reluctance to criticize some of it, we may help to destroy it all.”
- 7.
See Shakya, Purna Man (2012, April 30). It’s not that everything will be lost or won on May 27. http://www.ekantipur.com/2012/04/30/interview/its-not-that-everything-will-be-lost-or-won-on-may27/353186.html. Accessed 25 August 2012.
- 8.
See the Preamble of the Indigenous and Tribal People Conventions, 1989. It provides that “Noting that in many parts of the world these peoples are unable to enjoy their fundamental human rights to the same degree as the rest of the population of the States within which they live, and that their laws, values, customs and perspectives have often been eroded…”
- 9.
Id. The Preamble further provides that “Recognizing the aspirations of these peoples to exercise control over their own institutions, ways of life and economic development and to maintain and develop their identities, languages and religions, within the framework of the States in which they live…”
- 10.
See Lijphart , Arend (2008). Thinking About Democracy: Power Sharing and Majority Rule in Theory and Practice. London: Routledge, p. 4.
- 11.
Id., p. 8.
- 12.
See Rawls , John (Rawls 2001). Justice as Fairness : A Restatement. The Belknap Press, pp. 80–134;see also Rawls , John (1999). A Theory of Justice. The Belknap Press, pp. 102–170; Rawls, John (1996). Political Liberalism. Columbia University Press, pp. 22–28; Rawls, John (1972). A Theory of Justice. The Belknap Press, pp. 118–194. In short, the idea of “original position ” can be described as a methodology to obtain social cooperation with a reference to an independent moral order of free and equal citizens . In Political Liberalism, Rawls observes that “… the fair terms of social cooperation are conceived as agreed to by those engaged in it, that is, by free and equal citizens who are born into the society in which they lead their lives. But their agreement, like any other valid agreement, must be entered into under the appropriate conditions. In particular, these conditions must situate free and equal persons fairly and must not allow some persons greater bargaining advantages than others. Further, such things as threats of force and coercion, deception and fraud must be excluded.”
- 13.
Article 157 (1) of the Interim Constitution of Nepal, 2007, reads, “Except as otherwise provided elsewhere in the Constitution, if the Constituent Assembly decides, by its two-thirds majority of the total number of members present therein, that it is necessary to make a decision on any matters of national importance, then the decision may be reached on such matters through referendum.”
- 14.
See UNDP (2004). Human Development Report 2004: Cultural Liberty in Today’s Diverse World. Kindle Location 42.
- 15.
See Dahl, Robert A. (2006). On Political Equality. New Haven: Yale University Press, Kindle Edition, p. 18.
- 16.
See Rawls , John (Rawls 2001). Collected Papers. Samuel Freeman (Ed.), Cambridge: Harvard University Press, Fourth Reprint, pp. 573–574.
- 17.
See Fukuyama, Francis (2006). The End of History and the Last Man. New York: Free Press. Fukuyama argues, “… a remarkable consensus concerning the legitimacy of liberal democracy as a system of government had emerged throughout the world over the past few years, as it conquered rival ideologies like hereditary monarchy, fascism, and most recently communism. More than that, however, I argued that liberal democracy may constitute the end point of mankind’s ideological evolution and the final form of human government.”
- 18.
In recent days a plethora of literature has been produced on Chinese Capitalism. See e.g., Coase, Ronald & Wang, Ning (2013). How China Became Capitalist. Palgrave Macmillan; Walter, Carl & Howle, Fraser (2012). Red Capitalism. Wiley; Napoleoni, Loretta & Twilley, Stephen (2011). Maono:ics: Why Chinese Communists Make Better Capitalists Than We Do? Seven Stories Press; Chu, Yin-Wah (2010). Chinese Capitalism: Historical Emergence and Political Implications. Palgrave Macmillan; Huang, Yasheng (2008). Capitalism with Chinese Characteristics. Cambridge University Press.
- 19.
See Bell, Daniel (2001). The End of Ideology : On the Exhaustion of Political Ideas in the Fifties. Cambridge: Harvard University Press, Second Printing. Bell observes, “Ideology, as I used the term, was not simply a weltanschuung, a cultural worldview, or a mask for interests, but an historically located belief system that fused ideas with passion, sought to convert ideas into social levers, and in transforming ideas transformed people as well. When it becomes a striking force, ideology looks at the world with eyes wide shut, a closed system which prefabricates answers to any question that might be asked.”
- 20.
See Mannheim, Karl & Writh, Louis (2008). Ideology and Utopia. Kessinger Publishing, LLC, p. 2.
- 21.
See Haywood, Andrew (2007). Political Ideologies . Palgrave Macmillan, 4th ed, p. 338.
- 22.
See Bell, Daniel. The End of Ideology, supra note, p. xi.
- 23.
See Ekantipur (2013, November 4). Fate of President, Veep in the Hands of Parties. http://www.ekantipur.com/2013/11/04/top-story/fate-of-prez-veep-in-the-hands-of-parties-jha/380345.html. Accessed 5 November 2013.
- 24.
Id.
- 25.
The constitutional optimality, constitutional efficiency, and constitutional equilibrium are further molded into a specific shape through specific laws: statutes, precedent, rules, regulations, and contract. Therefore, in specific terms the idea of constitutional optimality, efficiency, and equilibrium can be stated as legal optimality, efficiency, and equilibrium.
- 26.
See Raz, Joseph (1996). Ethics in Public Domain. Oxford University Press, p. 376.
Author information
Authors and Affiliations
Rights and permissions
Copyright information
© 2014 Springer Science+Business Media Singapore
About this chapter
Cite this chapter
Bhandari, S. (2014). Why Did the Constituent Assembly Fail?. In: Self-Determination & Constitution Making in Nepal. Springer, Singapore. https://doi.org/10.1007/978-981-287-005-6_3
Download citation
DOI: https://doi.org/10.1007/978-981-287-005-6_3
Published:
Publisher Name: Springer, Singapore
Print ISBN: 978-981-287-004-9
Online ISBN: 978-981-287-005-6
eBook Packages: Humanities, Social Sciences and LawPolitical Science and International Studies (R0)