Constitutional Thought
Print Friendly and PDF

B. P. Koirala [1914- 82] is the most highly admired of Nepal's democratic leaders, and with good reason.

He was the leader re-established by a revolution. He established and led the first democratic party of Nepal. He became the first elected prime minister. Koirala has also been described as a symbol of modernity, a leader of the renaissance in Nepalese society, politics and literature, and a liberal example of ethical politics. He gave the country a modern administration, modern judiciary and firm faith on freedom of speech and expression. In the matter of principle, Koirala described himself, as a 'lone Jupiter', by which he meant his positions in politics, which were independent and generally different than many other politicians. At the peak of cold war politics, and its effect in Nepal, Koirala wanted to see the king as partner, rather than adversary in the nation building process. He was proud for his opinions, and expressed unabashed commitment to constitutional democracy, rule of law and basic human rights. It is not strange that Koirala was a leading figure in Nepal since he entered politics till he died in 1982.

By the time of Koirala's death he was already a notable public figure, with a long and respected personality in politics, with an unparallel repute at the national and international level. He conveyed a quality of leadership that organically brings all people together, with a spirit of caring for others and for the whole. A shining star of Nepal's history, and one who is still a subject of discussion in the current affairs of Nepal, Koirala was the lever of political change throughout fifties, sixties, seventies and eighties of the Twentieth century Nepal. His death in 1982 has not affected his status in Nepal's society.

Koirala is even now the most talked and discussed among the political leadership of Nepal. Yet Koirala never committed any writing on constitutional thoughts. He is not known for any specific book, essay or lecture given anywhere explaining the roots of his constitutional foundations. Yet, as a statesman, he had deeply held values and principles. His political life is no more secret. It is from these values and principles, and the life he lived that his constitutional thoughts have to be deduced.

This paper explores what were the constitutional thoughts of Koirala for which he led an active political life throughout. It also tries to explore how these thoughts were relevant to the age he lived in. The objective is to assess Koirala's contribution in Nepal's constitutional development. This will also help explain the currents of constitutional development in Nepal during the last six decades.

Early Life and Education
Bishweshwar Prasad Koirala was the son of Krishna Prasad Koirala. His father had to leave Nepal for India in 1917 when B. P. was three years old. The government of Nepal had confiscated all property of senior Koirala because of his political stand against the Rana regime. Everyone in the family had a warrant of arrest against him. They returned home only in 1929. It is in India that Koirala had to do the schooling. He continued to be there even as a young man. The British Raj charged him and his brother Matrika for their contacts with terrorists in 1930. They were arrested and set free after three months.

Koirala studied at Scottish Church College in Kolkata in the beginning. He completed his bachelor's degree in economics and politics in 1934 from Banaras Hindu University. He later took his Bachelor of Law degree from the University of Kolkata. After his graduation in law Koirala joined the law firm of Hari Prasad Pradhan at Darjeeling, and practiced law there for a couple of years. While still a student he became involved in the Indian nationalist movement. His continued interest in the "quit India movement," and association with Indian National Congress and its activities led to his internment by the British in Dhanbad for two years between 1942 - 1944. He was imprisoned there with senior Indian leaders. After the release, Koirala returned Ghograha, his birth place, which was given the dignified name Biratnagar by his father before the World War 1. He was imprisoned in Nepal in 1947-1948 again on the charge of conspiring to lead a labor demonstration. A year later he was arrested again for his clandestine movement against Rana regime. He was soon released from the prison after a 27-day hunger strike and popular protests in his favour.

Establishment of Nepali Congress
Koirala was the founding President of Nepali Congress. The party was established to end the system of hereditary prime ministers, and unite voices in favour of democracy. It has been in continuous operation since it was founded as the Nepali National Congress in 1947. It is a reform-oriented centrist party, which wanted to enter the country in the modern age of politics and governance, and negotiate with traditional forces for proper avenues of change. This is what was considered 'revolutionary' by the party ever since it started its life. A new impetus was given to this revolutionary agenda by formation of Nepali Congress through the merger of Nepali National Congress (established on January 25, 1947) and Nepal Democratic Congress (established on August 4, 1948).

It is through this unified Nepali Congress that the armed struggle against the hereditary Rana regime was called. In September 26-27, Nepali Congress adopted the strategy of the armed revolution to at Bairgania conference of the party to overthrow the Rana regime. The armed revolution began on November 6, 1950. It had the support of King Tribhuvan, who was almost a prisoner in the hands of ruling families. The first attack was made at the government establishment of Birgunj in November 11, 1950. It led to several attacks through out the country serially afterwards. This struggle successfully ended the Rana dynasty and kicked off the process of civilian system of government.

Socialist Platform
As a freedom fighter, and the chief architect of the revolution of 1950-51, Koirala was the icon of Nepal's politics from early 40s till his death in early Eighties. He was a part and parcel of this era of national politics – both for its success and failure. He stood on the plank of socialism. He was a steady traveler of this path, and liked to live it. Yet Koirala neither tried to establish himself as a socialist theorizer or philosopher with a new current. He did not want to define it, or be a prisoner of definition. Like Washington and Abraham Lincoln, or Churchil and Kennedy, Koirala remained a great leader, without being a theorizer (Giri, 1984, 16-23). It is natural therefore that any study on the constitutional thought of Koirala must be carefully discovered from his political life and choices he made.

Again, Koirala's socialism had nothing to do with political movements that resorted to authoritarian means to achieve a transition to socialism. The young Koirala was a revolutionary Koirala, who found cause in the right to revolution. But as a form of government he believed in parliamentary democracy, and favoured a grassroots-level, spontaneous revolution or gradualism over Leninism. He also had commitment in five political freedoms that symbolize his democratic banner. There was no overarching vanguard party in his concept that operated on the basis of democratic centralism. In this sense, his socialism was in contrast to movements like that of the Soviet Union, the People's Republic of China and other socialist states during the cold war. This set the political platform of Koirala.

Koirala after the Fall of Rana Regime
In February 18, the fall of Rana regime was declared. A Rana-Nepali Congress coalition government was formed on parity basis with Rana Mohan Shumshere as Prime Minister and Koirala as Home Minister and leader of Nepali Congress representing the party at the coalition government. This coalition lasted only for nine months. Upon this, Matrika Prasad Koirala, the elder brother of B. P. Koirala, was nominated by the King as the new Prime Minister - the first commoner Prime Minister under the democratic set up. On May 23-26, 1952, Nepali Congress had the fifth national convention in Janakpur where B. P. Koirala was elected the Party President. On July 25, 1952, the party expelled Prime Minister Matrika Prasad from the membership of the party as he was found violating the party principles and acting against the Constitution of 1951. The sixth national convention of the party was called thereafter. This convention held in late January 1956 adopted the principles of democratic socialism and decentralization for social transformation; and Subarna Shamsher Rana was elected as the party President. In May 23, 1957 another special national convention was called in Biratnagar, where B. P. Koirala became the Party President once again.

Government of Nepal Act, 1951
Koirala was a crucial figure behind the promulgation of the Government of Nepal Act in 1951 and modernization of its political system. This is considered to be the first constitution of Nepal, and the first document towards a limited form of government, and the rule of law. Its effects were colossal for liberal politics being introduced in the country – although it was just the basic first step towards constitutional democracy and civic republican values in a monarchical system.

The interim constitution remained in force for approximately eight years. Its main features included the provisions of local government , national legislature, Council of Ministers, Supreme Court and other independent constitutional departments. The local government was based on Panchayat system. Although the Interim Constitution referred to the national legislature as "Advisory Body" to the King, it had under that Constitution, all powers of a legislature (including, for example, the power to enact statutes, subject to the approval by the King, the power to move resolutions and its members were guaranteed immunity for speeches made and votes cast in the legislature). Similarly, although the Interim Act conferred direction upon the king in appointing the members of that Legislature, in practice. The king appointed them from among the political parties which had for the first time formed in Nepal after the downfall of the Rana reghime and from among the outstanding personalities in all walks of life. (Tope Bahadur Singh: 2, 1981) The Interim Act, which, as even its title implies, was meant to be provisional, was followed by the Constitution of the Kingdom of Nepal.

Politics of Constitution Making
In December 1957, Nepali Congress led civil disobedience movement in cooperation with other political parties in demanding to form an elected government as laid down in the interim Constitution. The movement stopped when an agreement was reached with King Mahendra to hold an election for the parliament. On May 15, 1958, Nepali Congress participated in a multi-party caretaker government led by Subarna Shamsher Rana to hold general election. In this election, Nepali Congress established itself as the foremost party in the country, securing two thirds majority (74 out of 109 seats) in Nepal's first parliamentary election held. Following this the first elected government was formed under the Prime Ministership of B. P. Koirala. He was elected in May 1960 as the Party President by the seventh national convention held at Kathmandu. No sooner was Koirala able to re-establish himself in the party and the government, on December 15, 1960 King Mahendra, the elder son of King Tribhuvan, who supported the Nepali Congress led revolution in 1950-51, with the help of the army arrested Koirala and other party leaders, dissolved the government and parliament, imposed ban on political parties, and suspended some of the civil liberties.

Assertion of the Right to Revolution
A Conference of Nepali Congress was held in January 1961 in Patna, India, under the leadership of Subarna Shamsher Rana, the Deputy Prime Minister in the deposed government. He appealed for a non-violent movement against the Royal Coup and restoration of democracy. Merging of various political parties in Nepali Congress, including the main parliamentary opposition party Gorakha Parishad followed. There was a start of a full scale armed revolt in December 1961. After about a year, the armed struggle was called off and peaceful means for struggle was proclaimed. The dialogue with the regime continued through different channels throughout the next seven years.

In October 30, 1968, Koirala and other leaders were released after eight years in illegal confinement. On 12 February 1969, Koirala called for restoration of democracy even by violent means if non-violent methods would not work. Subsequently three pronged approach of Nepali Congress emerged for restoration of democracy. Subarna Shumshere tried to work through dialogue and cooperation with the King, Krishna Prasad Bhattarai through non-violent and non-cooperative means at home and by Koirala by armed struggle from exile in India. Koirala led the armed action from August 24, 1972. For that on November 17, 1975 (Mansir 1, 2032 B.S.) he was sentenced to death in absentia.

On February 12, 1976, Koirala nominated Krishna Prasad Bhattarai as the acting president of the Nepali Congress.

The Constitution of the Kingdom of Nepal, 1959
The next eight years in Nepal following the revolution of 1950-51 was a period of political instability. The first parliamentary constitution was put into force in Nepal only in 1959. It was promulgated only after B. P. Koirala agreed to give it his moral support. It was a constitution promulgated by the King, but the experts and politicians had the opportunity to discuss its contents, though not in a planned way. A Drafting Commission was created by the King for this purpose. Koirala's interaction with the team drafting the 1959 constitution led by Chairman Bhagavati Prasad Singh including his close working with Sir Ivor Jennings, the foremost UK constitutional expert employed as advisor at that time, was a crucial aspect of constitution building debate in Nepal. The 1959 constitution internalized adult franchise, bicameral legislature, parliamentary system of government, independence of judiciary, and constitutional status was given to monarchy. These features were the inherent aspects of any constitution based on Westminster modality. (Patrick Weller & Bishnu Sharma: 63-80, 2005)

A very short term advisor to the constitution drafting team, Sir Ivor Jennings (16 May 1903 - 19 December 1965) was nevertheless a leading constitutional expert of the age. (Bradley, 1965) He was expert on the workings of the then British Constitution which symbolized: parliamentary supremacy and the rule of law, unitary state, constitutional monarchy, cabinet system. Court judgments also commonly formed a source of the constitution: generally speaking in English Law, judgments of the higher courts form precedents or case law that binds lower courts and judges; and judgments in one legal system do not have a direct effect in the other legal systems. Jennings was a member of the Reid Commission from June 1956 to 1957, which was responsible for drafting the Constitution of the Federation of Malaya (now Malaysia). This Constitution established the Federation as a constitutional monarchy having the Yang di-Pertuan Agong as the head of state whose roles were largely ceremonial. It provides for the establishment and the organization of three main branches of the government: the bicameral legislative branch called the Parliament, which consisted of the House of Representatives (in Malay, Dewan Rakyat) and the Senate (Dewan Negara); the executive branch led by the Prime Minister and his Cabinet Ministers; and the judicial branch headed by the Federal Court. Jennings wrote as a constitutional lawyer, not as a historian. His concern was to discover what parts of British experience are relevant in modern conditions, not to trace in detachment how these modern conditions have been arrived at. These fundamentals were discussed with B. P. Koirala as well.

The constitution that came out had ten parts and 77 Articles. According to the constitution, Nepal was to be a democratic country. The Constitution provided two houses in the Nepalese Parliament-Pratinidhi sabha (lower house) and Mahasabha (upper house). The Pratinidhi Sabha consisted of 109 members elected by the people, and the Mahasabha consisted of 36 members, 18 of the members of the Mahasabha to be elected by the Pratinidhi Sabha and the remaining 18 to be nominated by the king. For the purpose of election, the country was divided into 109 constituencies and each constituency was to send one member to the Pratinidhi Sabha. Among other things, the Constitution contained the provisions of the fundamental Rights for the first time in the history of Nepal. The constitution provided the National Council of Ministers, the Supreme court, the Public Service Commission, Auditor General, and the Emergency powers of the king.

Jenning wrote some 7 years after the promulgation of the Constitution he advised on:

It is much easier to draw a formal constitution putting into words the outline of the Westminster model than it is to create the environment and the complex of personal relationships which make the Westminster model work. Indeed, it is to be expected that where democratic government works well it will work with a different set of political conventions from those observed in Westminster… Variations from the Westminster model must be expected; what one hopes is that they will be variations which do not infringe fundamental principles … Where 'judicial review' does exist in the United States and the Commonwealth it is particularly effective because the Constitution and the common law speak the same language and in large measure have a common content. (Jennings: 1965, 35, 36, 43)

The document that came out was something that Koirala also had his faith on. He always believed, though, that a constitution is nothing if there is no genuine commitment of the King and political elite in the country in its basic rules of democracy – or government accountable to the people and basic human rights. If there is such commitment at functional level, even if there is no single written constitution in the country, there could be an operative system of constitutionalism in practice. This was a clear reference to the British constitutional law and traditions. This, more or less described the constitutional ideal of B. P. Koirala.

Following the first General Election held on 18th February 1959, Koirala, the leader of the majority party in the parliament, was sworn in as the Prime Minister on 27th May 1959. His Cabinet included 9 Ministers and 11 Deputy Ministers. The ministers were: Subarna Shumsher, Surya Prasad Upadhaya, Ram Narayan Misra, Ganesh man Singh, Shiva Raj Panta, Parshu Narayan Chaudhary, Tribeni Prasad and Kashinath Gautam. The Deputy Ministers were: Premraj Aang Dambe, Lalit Chand, Dwarika Devi Thakurani, Min Bahadur Gurung, Iman Singh Gurung, Netra Bahadur Malla, Yogendra Man Sherchan, Tulsi Giri, Shiva Pratap Shah, Diwan Singh Rai and Suryanath Das Yadav. A very inclusive cabinet, it was the first of its kind in Nepal, which recognized the need of representation in the government of a variety of constituencies.

When Koirala became the first elected Prime Minister of Nepal following the first general elections in the country in 1959, he got the opportunity to further articulate his constitutional thoughts in his relation with the people, the monarch and established political theories. As prime minister, B.P. Koirala pursued three major reforms. First is the abolition of Birta system without compensations. The Birta system foresees tax-free long holdings, mostly benefiting the Rana and their close ones. However, an intermediate class of landlord already existed on these Birta estates, so there was not much impact on the actual cultivators, but nevertheless showed the will of land reform. The second is the abolition of the Rajauta system. Under the Rajauta system, formerly independent rajas of central and western Nepal retained control over some area for annual payment. The third is the Nationalization of forests with compensation. Some of the forests were owned by the king's brother, and this reform, before it was even executed, alarmed those who would be affected. Much of the initiatives launched by him as prime minister, be it legal reform, state organization and institution building, they were manifestations of his philosophy and beliefs. Right from the land reform programme, commitment to equality and non-discrimination to independence of judiciary, he laid down the foundation of a socialist economy based on democratic parameters.

Under him, the Nepal government exerted control over the fundamental sectors of the economy and laid the foundation for public sector enterprises. The programmes of his government were able to give hints on what Koirala believed to be the responsibility of an accountable government committed to the poor and deprived people. But the Constitution endorsed by B. P. Koirala was withdrawn in 1960, in very mysterious circumstances, and he was put in prison along with most of his senior colleagues for about eight years. This interrupted the political stability and the process of constitutional development in Nepal once again.

Don Krasher Price noted:

A few years later King Mahendra, on a state visit to the united States, confided to President Eisenhower that he did not understood the constitution and wished that Eisenhower would send over someone to explain it to him. Since (as I will tell later) I was then serving on an advisory committee for the President I was assigned that mission: while formally I undertook it as a Foreign Service Reserve Officer, it was essential in Kathmandu that I be perceived as an advisor to the king, without any active connection with the United States Embassy, so I was given Nepalese staff help and a suite in the King's guest palace.
I soon found myself in an acute conflict of interest. The Prime Minister B. P. Koirala, was supported by a party … secular and modernizing with an approach based more on economic and sociology than on Hindu theology. It might have served to support the King's professed hope to establish a constitutional monarchy with a parliamentary cabinet system. But … , it made no secret of its ultimate intention of abolishing the monarchy.
The king consulted me on this issue and made it clear that he might therefore abolish the Constitution and the Parliament. I gave him the inaccurate advice that his military forces, equipped with out-of-date Enfield rifles and a few pieces of rusty artillery, were inadequate to support a coup d'etate. I then took a plane to New York with the Prime Minister, on his way to attend a united Nations meeting, and tried to warn him that his public statements that the monarchy should ultimately be abolished involved obvious risks. My advice carried no weight in either direction. Later that autumn, at a time when the ambassadors to Nepal of most of the major powers were away, the king called out the troops, abolished the constitution and the parliament, and put the entire cabinet into confinement. (Price: 167-68)

The Panchayat Constitution
A new constitution was tried in 1962 while Koirala and other defenders of democracy were in prison. It was a constitution, which more or less, copied the 1959 constitution with three important limitations: first, it introduced indirect election system based in a framework which did not support the operation of political parties in the country; secondly, the king took active leadership in the place of elected prime minister, although he ruled through the cabinet picked up from the legislature; thirdly; and the system of judicial review as far as it related with the laws enacted by the legislature were concerned was kept under check. The rest of the institutions and procedures remained in operation. The Preamble of the said constitution read out:

Whereas it is desirable in the best interests and all-round progress of the kingdom of Nepal and of the Nepalese people to conduct the government of our country in accordance with the popular will,
And whereas we are firmly convinced that such arrangements is possible only through the partyless democratic Panchayat System rooted in the life of the people in general and keeping with the national genius and traditions and as originating from the very base with the active cooperation of the whole people, and embodying the principles of decentralization,
Now, therefore, I, King Mahendra Bir Bikram Shah Dev, in exercise of the sovereign powers and prerogatives inherent in us according to the constitution, law, custom and usage of our country and which devoted on us from our august and reverened forefathers do hereby enact and promulgate the constitution.

The opening clause declared that the constitution is the fundamental law of Nepal, meaning thereby, it envisages to limit the different organs of government – the executive, the legislature and the judiciary. The democratic spirit of the Panchayat system was said to have enshrined in the fundamental rights and duties. It was said to be framed and set in the direction of greater economic and social equality. In this respect, the political model of the Weimer Republican Constitution of 1919 was said to have been applied. In the fourth chapter of the Constitution entitled "Directive Principles of Panchayat policy, clauses bearing on the principles of social policy, an attempt is made to relate power to the social ethos.

Since the promulgation the Panchayat constitution incorporated three amendments. The First Amendment on 14 Magh 2023, the Second Amendment on 26 Marg 2032 and the Third Amendment on the Poush 2037. Needless to say, Koirala and his Nepali Congress had a problem in the new constitution and all its amendments.

As a consequence, Koirala led the opposition politics in the country without entering the legislature till his death in 1982. There is a long story of mismatch between the monarch and Koirala, but the struggle between them was the matters of principles, which Koirala had express commitment on.

National Reconciliation and Constitution Building
On December 30, 1976, Koirala returned home from exile in India following the new policy of "national reconciliation" advocating an understanding between the King and people for the restoration of democracy. On May 24, 1979 King Birendra, the elder grandson of King Tribhuvan, proclaimed a national referendum following student's revolt against the Panchayat's system.

Koirala called for national reconciliation between monarchy and democratic forces to the disadvantage of the third illegitimate force, which wanted a role in Nepal's politics, and was able to force a third amendment on the constitution of 1962. This amendment tried to address the question of ministerial responsibility of the executive to the legislature, and the power of the house to remove the prime minister, when he does not command the confidence of the house.

There were some other constitutional reforms, but the system still banned political parties' due role in politics. A submission of B. P. Koirala to the government before the third amendment of the 1962 constitution deals with his thoughts on the change needed in the constitution. In particular, to ease the problem of the king, he mentioned that the king could decide not to write anything in the constitution in support of the 'party-less' or 'multi-party' system. Koirala believed a system which recognizes adult franchise and mass politics necessarily leaves political space for parties and organizations, which mobilize the people and articulate their demands.

The third amendment of the Panchayat constitution was claimed by the loyalists as landmark. The formal declaration of the document by the king was preceded by a referendum of the total adult population of Nepal. This meant double legitimation, and left no scope for objection from any democratic minded person. Thus the partyless panchayat system has been formally accepted by a major part of population. The second landmark was a formal acceptance of the fact that constitution is a scientific and dynamic institution and since it represents the system as a whole, thje panchayat system of democracy will be based upon the social, political, economic and various internal and external factors conditioning our progress from time to time. This closed down the long standing controversy among elements within about strict and liberal construction. The third landmark was expansion of the area of panchayat to cover the whole population of Nepal. Since there is no party to divide the people in groups and factions this formal emphasis on all comprehensiveness of the system had been overdue. In absence of such an attitude there has been a confusion in the minds of right thinking intelligentia and danger of converting the no party pattern into one party by power seekers.

The introduction of the concept of collective responsibility of the Cabinet towards the Rastriya Panchayat is another landmark. Although this concept was accepted under the constitution of 1959 also, it may be taken as a new experiment under partyless character where there is likelihood of practicing the system through coordination, cooperation, consensus and reconciliation to resolve the national issues. The last but most revolutionary landmark of the third amendment was the introduction of the concept of zone of peace in the chapter of Directive Principles of Panchayat system. (U. N. Sinha: 16-17, 1981). Nepal wanted a guarantee from its neighbouring and friendly countries that inspite of misgivings and misunderstandings amongs its neighbouring or friendly countries, Nepal should get a guarantee that it will be left peacefully to survive and develop.

The third amendment had some fundamental changes. Firstly, according to the Article 9 of the Amendment the election to be held for the national legislature shall take place on the basis of aduly franchise, that is to say, the Nepali citizen of 21 years of age are empowered to cast their votes for the legislature. Secondly, the amended constitution provided that all the Mi8nisters including the Prime Minister will be jointly and severally accountable to the legislature for the work of their respective Ministries. Thirdly, it was also provided that the council of Ministers will be constituted under the chairmanship of the Prime Minister. The fourth important feature inducted into the constitution was the provision of appointment of the Prime Minister. The provision on this specified that the Prime Minister will be appointed by the king on the recommendation of the legislature. Any member of the legislature who was nominated and supported by at least 25 percent of the total membership would be a candidate for the office of the Prime Minister and the member elected by at least 60 percent of the total membership will be recommended for the appointment to the office of the Prime Minister.

In the event of no candidate receiving the required number of votes, candidates of two members receiving the highest number of votes will be retained and fresh ballot held. In the event of no candidate receiving the required number of votes even after the fresh ballot, provision has been made for the Rastriya Panchayat to recommend three names from among its members, one of which will be appointed as Prime Minister by the King.

The aforesaid principles were said to be similar with the principles imbedded in the parliamentary system of government, particularly of the Westminster style. [Tope Bahadur Singh: 7-8, 1981). Koirala appreciated the space provided for democracy, even though it was not as much as he would want. For, example, Article 20(2) of the Constitution pointed out that "the sovereignty of Nepal is vested in the His Majesty and all powers, executive, legislative and judicial emanate from him. According to the highest tradition of the Shah dynasty, His Majesty, taking into consideration the will and welfare of the subjects, will exercise these through the organs established by the Constitution and law in force."

Apart from this, the constitution gave the power to the king, if he so desired, to constitute a council of coordination to maintain coordination in the executive, legislative and judicial functions of the country in order to unite all countrymen and preserve national independence, sovereignty and territorial integrity under Partyless, Democratic, Panchayat system. Additionally, the constitution had the provision for a Committee on Panchayat Policy and Investigation in the National Panchayat under the chairmanship of the chairman of the National Panchayat. The functions of this committee would be to undertake all necessary work for the promotion of the Partyless Democratic System and ensure implementation of the decision taken by the National Panchayat in regard to the annual reports of the constitutional bodies. These institutional models were alien to the Westminster system, and could be abused to affect the functioning of democratic government. Even though an ample space was given to the development of democratic leadership within the legislature on the one hand, the fact remained that out of … members of the house, … were to be nominated by the king.

This meant that the appointee of the king were supposed to have important influences in the process of garnering 60 percent of the votes, and take the administration as prime minister. Koirala was taken back by the logic in any of these institutions, but he believed that as long as the King had commitment to basic constitutional ethics and democratic principles, the democratic leadership will have no problem in a setting where checks and balances within the constitutional structures are allowed to operate.

The concept of class organizations, however, disturbed Koirala much. It maintained that membership of any one of six class organizations is mandatory for becoming a candidate for elections to all tiers of Panchayat. This provision seems to have made for filling up gap left by the absence of political parties. In the absence of party interaction, Koirala believed, it was not possible to mobilize public opinion, and represent several voices through organized discipline. Parties, to Koirala, were permanent mechanisms for coordination and consensus, and it was not possible to make the legislature functional without them. If groups and class interests were not well-identified and their views and interests were not considered at decision making level, it was very ambitious to assume that an atmosphere of coordination and cooperation could be possible. The defenders of the system advocated that re-introduction of class organization may also help in reshaping the politics of Nepal.

Under party-oriented system the parties are supposed to unify the interest of various pressure and interest groups. In the absence of parties and powerful economic groups in Nepal, these organizations may be made to serve as mechanism for socio-economic reconstruction and at the same time they can represent various interest groups also. Side by side and long with it these organizations may be made to act as liaison between government agencies and various interest groups on one hand while on the other they may act as supportive institutions for local panchayats. However, to Koirala, they were just utopian concepts, yet to be proved by the experience of the world.

This is the time when Koirala developed his statesmanlike posture. A complete Koirala is a mix of socialist aspirations, democratic modus operandi, constitutionalism and the rule of law in an environment of competitive politics and national reconciliation.

The constitutional thought of Koirala has never been an issue of seminar, workshop or discussion programme in Nepal. Nobody has ever shown any academic interest in the towering personality of Nepal's politics, which still inspires the intellectual class of the country. This discussion series on Constitutional Thought of B. P. Koirala is aimed at giving considerable insight into his views, explore its myriad dimensions, and help illustrate the vast gulf between his vision of constitutional Nepal, and the governments that have been formed and practiced over these years.

This is no dry treatment of ideas from a past era; it shows Koirala struggling to establish the foundational principles of constitutional government, reconcile opponents in politics, from communists to the hardcore royalists, and the international vested interests, which had problem to see a thriving small nation achieve its destiny. It is an effort to discover the portrait of the ideas of a man to be admired.

Background of Koirala as a Lawyer
Any discussion on Koirala's constitutional thought must start with the roots of his ideas, which he sees as grounded in "democratic socialism" of European history. Koirala studied American constitutional thoughts, the evolution of British parliamentarianism, Edward Coke's commentaries, which upheld a construction of the Magna Carta. Locke and Algernon Sidney have been mentioned among the better-remembered authors who influenced his thinking. As a law student, he studied jurists of his time, and they obviously included Walter Bagehot, A. V. Dicey, Erskine May, Granville Austin and Wade and Phillips. He was as aware of basic constitutional documents like Magna Carta (1215), Laws in Wales Acts 1535-1542 (repealed), Petition of Right (1628), Instrument of Government (1653) (replaced 1657–1st Constitution of England), Humble Petition and advice (1657) (2nd Constitution of England), Habeas Corpus Act 1679, Bill of Rights 1689, Act of Settlement 1701 and similar historical documents as any other law student.

Koirala was not a philosophical system-builder. He was a product of his time. He had many things common with politicians of his generation. Two significant additional features may be highlighted here. Firstly, the political ideology of Koirala was far more western than the leaders of his generation in South Asia. He believed in armed revolution to overthrow the hereditary Rana regime, and restore monarchy with traditional powers. It was not something like Satyagraha of Mahatma Gandhi, or indoctrinated armed rebellion of Mao Dze Toung. Secondly, Koirala was highly consistent in his opinions on the system of government and the principles that he wanted to uphold. It was not a utopian concept, not the ideal of American Declaration of Independence, for example.

What was unique about Koirala was that he always wanted to work with his perceived opponent, King Mahendra, assuming that he had common interests with monarchy, in terms of institutionalization of democracy, and political independence of the country unlike the forces which had been using the monarch for their vested interests. Koirala had trust in popular sovereignty. He regarded the people as the ultimate defenders of liberty. Distrust of power, especially power concentrated in an authoritarian government, was central to his political views. Like Lord Acton, he also believed that power corrupts, and it must be checked. What he always pleaded for was a little political space to begin with. He believed that as democracy gets practiced, it become more matured, responsible and progressive. This grounded Koirala deeply in liberal discourse of politics – where opponents were to be managed, not eliminated.

Among the constitutional measures which he supported in order to avoid concentration of power were constitutional monarchy and the separation of powers. He saw monarchy as strictly limited one, primarily concerned with traditions, and parliament as the principal organ to make the government accountable.

However, Koirala trusted the power of the judiciary, and strenuously supported the idea that the judicial branch should be the final arbiter of the Constitution. He has been petitioner in the Supreme Court of Nepal to vindicate his claim, thereby also reposing faith on judicial settlement of constitutional issues. His statements given to the court in defense of the charge of treason is a living testament of his concept of what constitutionalism is and how to achieve a society on the strength of certain ethical values.

This discussion series is certainly aimed at exploring Koirala in all his constitutional dimensions. As these discussions go along this will help decide what should be the output of this process.

Koirala died on July 21, 1982. He handed over his power as the President of Nepali congress before his death to the troika of Ganesh Man Siingh, Krishna Prasad Bhattarai and Girija Prasad Koirala. Bhattarai was nominated as the acting party President.

The death of B. P. Koirala led to the change in party positions in different ways. In May 1985, Nepali Congress organized a nationwide civil disobedience movement against the Panchayat system. In January 1990, under the command of supreme leader Ganesh Man Singh, the national conference of Nepali Congress called for a decisive movement for the restoration of democracy, welcoming other political groups to join if they desired to do so. It led to a nation-wide movement on February 18, 1990 to restore democracy. It was joined by coalition of seven Communist Parties led by Nepal Communist Party (ML). The Panchayat system falls after street protests in April 8, 1990. A Royal proclamation ends party-less system.

An Interim Government was formed on April 18, 1990 under the Prime Ministership of Nepali Congress Acting President Krishna Prasad Bhattarai, representing the three forces- King, Nepali Congress, and the Communists. It prepared and enacted Constitution of 1990 to safeguard constitutional monarchy and people's sovereignty with multi-party democratic set-up, and hold election, accordingly. Nepali Congress secures majority (114 seats out 205) in the general elections in May 12, 1991. The same month Nepali Congress forms government under the Prime Ministership of Girija Prasad koirala, the then General Secretary. The government was unable to carry on due to internal rifts in the party. In November 1994, mid-term election was held nationwide, giving birth to minority government of Unified Marxists Leninist. Different coalition government formed after the failure of minority governmentof Man Mohan Adhikari.

(Discussion Note prepared by Dr Bipin Adhikari, Nepal Consulting Lawyers, Inc September 2011)


A. W. Bradley, "Sir William Ivor Jennings: A Centennial Paper" in The Modern Law Review 716–733, (September 2004)

Don Krasher Price, America's Unwritten Constitution: Science, Religion and political Responsibility (Harvard University Press, 1983)

Ivor Jennings, Magna Carta and its Influence in the World Today (1965)

Mahamuniswar Acharya, Surya Prasad Upadhyay: Multi-dimensional Personality of Democratic Movement (Kathmandu: Urmila Rimal, 2068/2011) (in Nepali)

Patrick Weller & Bishnu Sharma, "Transplanting Westminster to Nepal: The stuff of dreams dashed" in Haig Patapan, John Wanna & Patrick Weller (eds), Westminster Legacies: Democracy and Responsible Government in Asia and the Pacific (Sydney: University of New South Wales Press, 2005)

Pradeep Giri, Bishweswar Koirala: An Evaluation (Kathmandu: Samata Adhyayan Kendra, 1984) (in Nepali)