Commentary On The Preamble Of Padma Shamsher's Government Of Nepal Act, 1948

The Preamble highlights that the Constitutional Act is being ordained and promulgated by the Maharaja Padma Shamsher and not His Majesty King Tribhuvan, who remained on the titular status as an effect of the Panjapatra of 1956. It is pertinent to study the preamble of the Government of Nepal Act by reflecting on its main phrases, expressions, and themes.

March 17, 2020, 8:18 a.m.

Whereas by virtue of the supreme authority

The supreme authority refers to "someone with the power to settle matters at will." There is some difference between power and authority, although in Nepal, these words are used interchangeably. Power, as commonly defined, is the capacity of an individual to influence the will or conduct of others.On the other hand, authority is termed as someone's right to give the command to others.While power is exercised in a personal capacity, authority is used in a professional capacity. Power is a personal trait, springs from knowledge and expertise, does not follow any hierarchy, resides with a person and is not legitimate. Authority, on the other hand, is a formal right given to high officials,stems from position or office, follows the hierarchy, resides with a designation and is legitimate. In essence, supreme authority is the supreme constitutional, legal and formal right vested to a person, who can make decisions and give orders and commands to others to perform a particular task. It is exercised to get things done through others.This expression, "by virtue of the supreme authority," in the preamble refers to the authority vested in Maharaja Padma Shamsher by the Panjapatra and issued by the real owner of the supreme authority:The king of Nepal.

vested through the instruments of their sacred Panjapatra

The preamble makes it clear that the supreme authority in the Maharajas of Nepal have been vested through the sacred Panjapatra by Shree Panch Maharajadhiraja of Nepal.

Due to several factors, Bhimshen Thapa's power began to decline, and he was eventually ousted from office and imprisoned and humiliated to such a degree that he opted to commit suicide within prison walls in 1839. After his fall, the country suffered the worst political instability in history. Trickery, entry, character assassination, and political murder became the order of the day. The climax was on September 15, 1846, when the noble from the Kunwar family, Jung Bahadur, slaughtered his opponents, real or imagined, in a bloody coup at Kot and became more powerful than others. Jang Bahadur was made Prime Minister by the Queen immediately after the massacre. He did not stop there and went to the extent of obtaining the document called 'Panjapatra' (royal decree with the hand impression of the king) from the king on August 6, 1856.

The Panjapatra conferred the title of Maharaja of Kaski and Lamjung on Jung Bahadur and delegated on the Prime Minister all the powers of life and death punishment. He also had the power of appointing and dismissing all government servants, declaring war, concluding peace and signing treaties with all foreign powers as well as creating new laws and repealing old ones, whether civil, criminal or military.The document gave him full authority within the new domains and broad supervisory powers over the king. Evidently, Jung Bahadur's intention was that the rank of the Maharaja and its prerogatives should be inherited by his own family, while the premiership would be passed on by agnate succession among his brothers, sons and grandsons. By making the office of the prime minister hereditary and confined to the Rana family, the royal decree (sanad) formalized the dominance of the Kunwar family. In other words, the Panjapatra meant that the dictatorship of the Kunwar family, a virtual monarchy within the monarchy, would be passed down in the family for generations, with no constitutional legal mechanismsto change the government.

The Preamble refers to the Panjapatra as the "sacred Panjapatra," even though there was no such phenomenon. Prime Minister Padma Shamsher justifies the coup of 1846 as something that was aimed at giving stability to the country. In his opinion, "The present administrative system under which the supreme authority of the State was entrusted to the Rana family started with the joint approval of the King, Bhardars and people on account of frequent commotion and bloodshed in the country, because of which peace and prosperity were fast tending to disappear. It was even fear that the country was on the verse of ruin, and very independence was seriously jeopardized." The Panjapatra is sacred because, by institutionalizing the hereditary prime ministership, the Ranas ended the instabilities in the country.

by Shree Panch Maharajadhiraja of Nepal,

Shree Paanch Maharajadhiraj is a Nepalese expression for the head of the Nepalese monarchy and referred to in English as His majesty the King of Nepal.Here, it is referring to the Shah kings from1768 onwards. The Shah Dynasty existed until 2008.King Prithvi Narayan Shah of Gorkha, also known as the Great King, was the founder of the unified country of Nepal. He founded it on 25 September 1768 by unifying the kingdoms of Kathmandu, Patan, and Bhaktapur asa single state under his Shah dynasty. He also seized many smaller states,combined them into a large Kingdom and laid the fundamentals for an independent country. He defeated the British and Muslim forces and was known to give Dibya Upadesh (Divine Counsel) to his descendants. The King was the source of the executive, legislative and judicial powers and exercised his powers himself or through others. The Kingdom of Nepal was de jure an absolute monarchy for most of its history.

The preamble makes it clear that the supreme authority in the Maharajas of Nepal have been vested through the sacred Panjapatra of 1856 by Shree Panch Maharajadhiraja of Nepal. The title Rana was conferred on Jung Bahadur by the King on Jung Bahadur's advice. The descendants of Jung Bahadur and his brother Dhir Shamsher adopted the practice of appending the name and title "Jung Bahadur Rana" to their own names. From 1846 until the Revolution of 1951, the country was de facto ruled by the hereditary Prime Ministers from the Rana dynasty, reducing the role of the Shah monarch to that of a figurehead. The Panjapatra, the constitutionality of which has always been questionable, became the basis for the Rana's exercise of powerfrom1856.

dating from the Vikram year 1903 onwards,

The Year 1903 (BS) is the year when Kaji Jung Bahadur Kunwar was appointed the Prime Minister of Nepal following the Kot Massacre. During this massacre, the Kaji and his brothers killed about 30 to 40 civil, military officers and palace guards of the Nepalese palace court, including Prime Minister Chautariya Fateh Jung Shah and other senior-most ministers and army generals. The Kot meeting was called upon by Queen Rajya Laxmi Devi after the night her confidante Kaji Gagan Singh Bhandari was murdered while worshippingin his prayer room. This Massacre led to the loss of power of political clans, such as the Chautariyas, the Pandes, the Thapas, and the Basnyats as well as King Rajendra Bikram Shah and Queen Rajya Laxmi Devi.Ultimately, it ended the establishment of the Rana autocracy in Nepal. The autocracy evolved gradually over time.

delegating all powers of the state

By giving Panjapatra, King Surendra Bikram Shah, the son of King Rajendra Bikram Shah, who was forced to abdicate,delegated all powers of the state that he exercised as the monarch.By delegation, the King turned over the political authority vested in him as defined in the Panjapatra to the hereditary prime minister. "Accordingly, the powers of the delegate are precisely those that belonged to the delegant, and the actions performed in virtue of the delegation have the same juridical nature as if they had been performed by the delegant himself. Delegation should not, therefore, be regarded as permission or authorization; rather, it is a transfer of power. The fundamental problem then is to find out whether, and to what extent, that transfer is legitimate in the realm of public law."

upon the contemporaneous Shree 3 Maharajas.

All powers of the state are delegated to the "contemporaneous Shree 3 Maharajas" through the Panjapatra. Jung Bahadur Kuwar was appointed prime minister and commander-in-chief in 1846. The sanad (decree) of Panjapatra,which conferred the honorific term Shri three times (Sri Teen) to Jung Bahadur, also stated that the line of succession would go to his seven brothers and then to Jung's sons and nephew in order of seniority.Prime Minister Chandra Shamsher revised and re-shuffled the Rolls of Succession in the Rana family and divided the Rana clan of Nepal into three categories of A,B and C according to the stature of the purity of lineage. A Class were those born of legitimate high caste married wives. B Class were those born of legitimate married wives of secondary high caste or those born from marriage with a royal household member. C Class were those born of illegitimate wives of lower cast. A Class could fit for position of prime minister and highest military and administrative officials, whereas B and C Class Ranas could only reach the level of colonel of the Nepal Army. In March 1934, Juddha Shamsher expelled the C Class Rana from the direct roll of succession. The reigning king had no choice in the roll of succession. He was expected to remain committed to the Panjapatra regarding all contemporaneous Shree 3 Maharajas.

And whereas I, Maharaja Padma Shamsher Jung Bahadur Rana,

Prime Minister Padma Shamsher refers to himself as Maharaja, rather than Prime Minister or Field Marshall, while enacting the Government of Nepal Act. He was the eighth hereditary prime minister who succeeded Prime Minister Juddha Shamsher [1 September 1932 – 29 November 1945] and was in turn succeeded by Prime Minister Mohan Shamsher[30 April 1948 – 12 November 1951] after his brief rule of 3 years and 5 months.He was Maharaja of Lamjung and Kaski and the Field Marshal of Nepal. Padma Shamsher was on the last leg of his ascendance to power when promulgating the Government of Nepal Act.

am now carrying on the administration of the country by virtue of the authority vested in me by the aforesaid Panjapatra,

Maharaja Padma Shamsher claimed the power of enacting the constitution by virtue of the fact that he was now managing the administration of the country by virtue of the authority vested in him by the aforesaid Panjapatra. As noted earlier, Panjapatra gave all powers to the ruling prime minister categorically. The use of the term 'administration' here does not only mean the power to administer the executive branch of government executing and enforcing law and exercising responsibility for the governance. The formulation of Panjapatra encompasses all powers,executive, legislative and judicial, and concentrates them in the hands of the Rana prime ministers. It is on this basis that Padma Shamsher is claiming the power to enact the constitution.

And whereas it is our fervent desire, through all social, economic and political developments to bring Nepal,

The constitution to be enacted aimed at achieving "social, economic and political developments" in the country. These terminologies were in much use in the world at that time in the aftermath of World War II, which was destructive in every context and profoundlyaffected most countries and people in Europe, Asia, and elsewhere. Nepal participated in the War through its British ally. Although the War was over, its effects lingered well into the second half of the decade. The people still feared backlash.

The war-weary Europe was divided between the jostling spheres of influence of the Western world and the Soviet Union. The emerging geopolitical tension between the Soviet Union and the United States and their respective allies, the Eastern Bloc and the Western Bloc, had started to appear. It led to the beginning of the Cold War. The United Nations was established on 24 October 1945, one month before Prime Minister Padma Shamsher took the oath of Prime Minister. It was an intergovernmental organization that aimed to maintain international peace and security, develop friendly relations among nations, achieve international cooperation, and be a center for harmonizing the actions of nations. Astate came to be perceived as a welfare state that would protect and promote the economic and social well-being of the citizens based on the principles of equal opportunity, equitable distribution of wealth, and public responsibility for citizens unable to avail themselves of the minimal provisions for a good life.

In the changed context, the Bretton Woods system of monetary management, including the rules for commercial and financial relations,was established by the United States, Canada, Western European countries, Australia, and Japan. After the 1944 Bretton Woods Agreement, the system that came into existence was the first example of a fully-negotiated monetary order intended to govern monetary relations among independent states. The Bretton Woods system facilitated the post-World War II economic expansion.

The process of undoing colonization had already started after World War II. The conditions of the post-War world encouraged it. The colonial empires established prior to World War I throughout the world started to liberate themselves through nonviolent revolution or by pursuing movements demanding independence. The UN Charter established the fundamental right to self-determination as essential to decolonization, allowing not only independence, but also other ways of decolonization.The United Nations Special Committee on Decolonization stated that in the process of decolonization there is no alternative to the colonizer but to allow a process of self-determination.

Some scientific developments towards new areas like computers, nuclear power, and jet propulsion gave a new direction to the decade. These new initiatives basically developed in the context of war effort, creating new possibilities for adaption and improvement for the use of common people following the war. The early beginnings of new technologies were obviously exciting at that time.However, the Prime Minister's fervent desire for the social, economic and political developments did not come with any commitment for the rule of law, human rights and justice.

this sacred country of Lord Pashupatinath,

In Hindu faith, Pashupatinath is an incarnation of the god Shiva as "lord of the animals" and is, therefore, sacred. He is revered by Hindus throughout the world, especially Shivites, and in Nepal, Pashupatinath is regarded by Hindus as the principal national deity. The seat of Pashupatinath is at a 5th century temple constructed by King Prachanda Dev of Lichchavi dynasty. The Temple's existence dates back to 400 B.C. History showsthat in 1412, King Jaya Jyoti Malla constructed a three-story temple over a Shivalinga of great antiquity and miraculous origin. Over time, many more temples have been erected around this two-storied temple. These include the Vaishnava temple complex with a Rana temple from the 14th century and the Guhyeshwari Temple mentioned in an 11th-century manuscript.Temples dedicated to several other Hindu and Buddhist deities surround the temple of Pashupatinath.

in line with the advanced nations of the world and

There is a desire in the preamble to bring changes in the country in line with the advanced nations of the world. By advanced nations, the Prime Minister may have understood developed countries with industrialized economy, military power, technological infrastructure and human developments.During Padma Shamsher's time, there was no established criterion for the designation of "developed" and "developing" countries. Nepal's worldview was generally limited to the United Kingdom and its advances.

give our beloved motherland her rightful place in the comity of nations,

The Maharaja intends to give Nepal itsrightful place in the comity of nations. The expression "comity of nations" refers to the principle by which countries, big or small, rich or poor, based upon a strong friendship, accept and respect each other's laws, customs and political systems. It denotes the courtesy and friendship of nations marked especially by mutual recognition of executive, legislative, and judicial acts. It is sometimes just called comity.According to the Preamble, Nepal needed a place that itdeserved in this comity, and the Constitutional Act facilitated it.

And whereas through the resurrection of our ancient ideals of the Panchayat and other similar institutions,

This part of the sentence in the preamble holds that Nepal had the ideals of Panchayat and other similar institutions since ancient times and that such ideals need to be insurrected in the system of government.It is the oldest system of local government in the country, which in essence, enabled self-rule to the locals through their wise and respected elders. Nepal shared this tradition with other countries in the region. However, there were varying forms of such assemblies. Traditionally, these assemblies not only exercised executive powers but also settled disputes between individuals and between villages.

Mahatma Gandhi endorsedthe Panchayati Raj (Panchayat Rule) for India during the independence movement there.He talked about Village Republics, "which could build the country from the bottom.”Such republics would work as Panchayat having full powers. They will be self-sustained and capable of managing their affairs "even to the extent of defending [themselves] against the whole world." Such a society is necessarily highly cultured, in that “every man and woman knows what he or she wants and, what is more, knows that no one should want anything that others cannot have with equal labour." Gandhi defended that "this society must naturally be based on truth and non-violence which, in [his] opinion, are not possible without a living belief in God, meaning a self-existent, all-knowing living force which inheres every other force known to the world and which depends on none and which will live when all other forces may conceivably perish or cease to act. I am unable to account for my life without belief in this all-embracing living light."

Referring to his idea about village government, Gandhi noted: "The Government of the village will be conducted by the Panchayat of five persons, annually elected by the adult villagers, male and female, possessing minimum prescribed qualifications. These will have all the authority and jurisdiction required. Since there will be no system of punishments in the accepted sense, this Panchayat will be the legislature, judiciary and executive combined to operate for its year of office…. I have not examined here the question of relations with the neighbouring villages and the centre if any. My purpose is to present an outline of village government. Here there is perfect democracy based upon individual freedom. The individual is the architect of his own government. The law of non-violence rules him and his government. He and his village are able to defy the might of a word. For the law governing every villager is that he will suffer death in the defense of his and his village's honour... There is nothing inherently impossible in the picture drawn here. To model such a village may be the work of a lifetime. Any lover of true democracy and village life can take up a village, treat it as his world and sole work, and he will find good results."

These ideals of Panchayat at the grassroots level must have been appealing to Padma Shamsher for three reasons. Firstly, the concept was easy to understand and implement. Secondly, it did not much speak about the government at the central level and complicated issues of modern political change. Thirdly, the country already had Panchayati traditions in different forms and other similar institutions (that had a role in different communities of Nepal, no matterthe name they might have been called).

it is our declared policy to provide for the increasingly closer association of our dear people in every branch of administration

The Ranas have been known for keeping the country and its processes closed for outsiders and for being zealous of liberal changes. Padma Shamsher wanted to look different. So he took to the preamble to declare his policy to provide for the increasingly closer association of the people in every branch of administration. Besides Panchayats, the constitution provided for other institutions as well.

and thus bring about enhanced prosperity and happiness to our people.

While prosperity usually means the type of success that comes from money, riches and physical and infrastructural development, happiness comes from goodness of life and a sense of well-being, joy or contentment. The "enhanced prosperity and happiness" among the people is expected to come from increasingly closer association of the people in every branch of administration. The Rana system lacked it for various reasons.

And whereas progress in giving effects of this policy can only be achieved by successive stages and

This is a very important part of the preamble because it expresses the willingness of the father of the constitution to bring about changes through successive stages. This indicates a lack of readiness of the writers of the constitution to go for full-fledged democracy and constitutionalism immediately. However, it also shows the possibility of a major transformation in this regard through step-by-step political development and modernization. Padma Shamsher clarified this in his speech at the inauguration of the statute: "We have decided to introduce those constitutional reforms in the very first step, when other states and our neighbours have done it in two or three stages and at long intervals. The success of this effort, promoted by our affection for the country and its people, will depend on you gentleman who will work according to this scheme and bear the responsibility."

must be guided by the cooperation received from those to whom new opportunities have been offered and

While there is a commitment in pursuing constitutional reforms through successive stages, such reform also depends on the extent to which further confidence can be reposed upon the people's sense of responsibility. The cooperation of the people is expected in order to evolve the constitutional system gradually. The people's cooperation is also necessary to further develop consolidating the present gains. By the same token, however, if there is no cooperation, it also implies that smooth development in this regard might face difficulties.

And whereas we consider it expedient that immediate steps in this direction should now be taken.

With all these preambulatory commitment and assurances, this last sentence holds that the Maharaja considers it expedient that immediate steps now be taken with this constitution in this direction.

I, Maharaja Padma Shamsher Jung Bahadur Rana, do hereby ordain and promulgate that Constitutional Act

There are two important phrases in the above expression. First, it is only here that the Government of Nepal Act 1948 uses the term "Constitutional Act" to the statute, thereby implying the Act that follows includes fundamental laws and principles that constitute the legal basis of a polity and commonly determine how the state is to be governed.A Constitution Act generally confers specific powers on the government and its organizational or institutional entities, established upon the primary condition that it abides by the constitution's limitations. This is the reason that the Government of Nepal Act 1948 is also known as Padma Shamsher's Constitution or the first Constitution of Nepal. Secondly, the Maharaja uses the term "ordain and promulgate" to formalize the constitution. These words have come together for the first time in any statute of Nepal. Whereas ordain means "to institute or establish; to make an ordinance; to enact a constitution or law,""promulgate" means "to publish; to announce officially; to make public as important or obligatory."

in the thirty-sixth year of reign of His Majesty Shree 5 Maharajadhiraj Tribhuvan Bir Bikram Shah.

The Preamble makes it clear that the Constitution Act is being ordained and promulgated by the Maharaja Padma Shamsher and not His Majesty King Tribhuvan, who remained on the titular status as an effect of the Panjapatra.

Bipin Adhikari.jpg

Dr. Bipin Adhikari

Dr Adhikari is a senior constitutional expert and the founding dean of the Kathmandu University School of Law). He can be reached at []

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