Constitutional Legal System In Nepal Before Padma Shamsher's Time

Nepal never had a constitution in its history before 1948 when Padma Shamsher promulgated the first constitution of Nepal. If a constitution is taken as an exclusive codified document providing for the fundamental rules and principles that constitute the legal basis of the state, Nepal had none in its history. There was never such a document that determined how the country is governed, and the limitation on the power of the government is enforced. Nevertheless, it had the legal framework to qualify itself as a legal system setting out norms of conduct for the state and the individual as well as institutions to make and administer laws.

April 10, 2020, 4:01 p.m.

Nepal's legal historians and experts claim that except during the Kirata period,which is placed some centuries before the beginning of the Christian Era, Nepalese history generally presents one type of legal system: the classical Hindu system.This is the conclusion of Rewati Raman Khanal, Jagadish Chandra Regmi, Shambhu Prasad Gyawali, Laxman Aryal as well as of the international experts who have worked on Nepal. However, this general conclusion must be understood in a holistic way.

The Himvatkhanda has been inhabitated by a rich variety of tribal and ethnic groups and comprised of different principalities. In fact, these principalities were also very often under the domination of the dominant principalities among them. There is little information about the constitutional legal systems of these principalities. Even though Nepal was only unified in the 18th century by King Prithvi Narayan Shah, its independent principalities each had their own unique administrative practices, including a system of government. Usually, according to Shambhu Prasad Gyawali, the main source of laws in these principalities was the dharmashastrasor holy book or scripture like the Veda, Puran or Smritis, and when they were either absent or vague, the locally recognized Riti Thiti (or the custom or usage) was followed. When the two appeared to be contradicting each other, royal edicts were released to make judgments and highlight guiding norms. This led many to conclude that Nepal's constitutional legal system is based on Hindu norms and values.

Commenting on the state and the functions of the King, Professor Prayag Raj Sharma notes: "The authority of the king over his dominions can be said to be of two sorts. One is derived from divine sanctions. This authority earns him the attributes of a sovereign lord, protector of the kingdom's territory including his subjects, a guardian of the moral order, an upholder and custodian of traditions, and the source of all spiritual and temporal power. In this capacity his territorial authority extended over his entire territorial possessions. this authority was deemed to be one indivisible whole. The other kind of authority resided in the king's power to realize payments of tribute, presents, gifts, revenue, levies, tolls, and taxes from the land and natural resources in his entire domain for the fulfillment of his earlier functions. This later authority, however, could be alienated and delegated by the king to his vassals, feudal chiefs and rulers, civil and military servitors, priests, religious establishments, or ordinary farmers. His subordinates exercised the same authority as the king over their respective areas as long as they obtained their privilege from him."

The Lichchavis of Nepal are known for their rich civilization. Although knowledge about the early Lichchavi rule and its political history is generally lacking, early inscriptional sources from the 5th century indicate that kings opted for Hindu ideology in their systems of government. According to Jagadish Chandra Regmi, references in such inscriptions indicate a few different things, including the fact that kings often adopted Vaisnavism, one of the major forms of Hinduism, and its relations to vedic orthodoxy, Hindu policy, and legal components as the family tradition, that Smriti works are explicitly referenced, and that the caste system seems to have been upheld.Additionally, the Lichchavi political system was a hierarchy, which began with the great king at the top who exercised absolute power, although his influence in the social lives of his people was null. Instead,dharma, the laws and principles governing all righteous conducts,was realized through the village and caste councils, institutions that dictated much of the people’s behaviors.

Royal officers and the prime minister who led them supported the king in his rule.As the preserver of righteous moral order in his kingdom, points out a study edited by Andrea Matles Savada,the king and his domain were limited by the strength of his own army and statecraft, a common trait of kingdoms in South Asia. Of course, Nepal’s geography, with its hills, limited the Lichchavi’s reach to its territories and less hierarchical societies in the east and west.The Lichchavi’s system also supported powerful notables (or samanta), who owned their own private armies and lands and exercised influence in the court.Thus, this system bred a constant struggle for power. The Abhira Gupats in the 7th century had enough power to take over the government, wherein Amsuvarman, the prime minister, assumed the throne from 605 to 641. However, the Lichchavis regained power shortly thereafter.The study maintains that such power struggles were testament to the growing tradition of kingship in the later history of the country.

According to Jagadish Chandra Regmi, notable kings from this era have included Kings Manadeva, Amshu Varman, Narendradeva, Shivadeva II and Jayadeva II. Amshu Varman, for example, was a 7th century ruler who emphasized in his writings his practice of meditating day and night in order to understand how he could make his subjects happy.He was most likely also responsible for the establishment of the institution Bhatta Adhikarana, which attended to people’s caste-based, hierarchical occupations.

The Lichchavi period has been credited for its great contributions to Nepal’s establishment of a state machinery, notes Regmi.While there are various names listed for its administrative and legal judicial systems, sources show that its kings adopted a people-oriented or democratic approach in both bodies. The resolution of administrative and legal issues were often handed to the people themselves, represented by the Panchali or local Panchayat units. Through this policy of decentralization, the people seem to have enjoyed various public activities in cultural spheres.

From the 13th century onward, Nepal was divided into just three kingdoms: the Karnataka kingdom (eastern and middle Terai), the Nepal (proper) kingdom, and the Khasa kingdom (Jumla).This was followed a few centuries later by more than 50 smaller, independent principalities, a scenario that continued on to the late 18th and early 19th centuries.While some kingdoms were known only by their names, others (including Palpa, Parbat, and Gorkha) stood out for their exemplary kings.

During this period and up to the Malla period, the principalities of Kathmandu Valley have been argued to have contributed most to the formulation of rules and law-administering agencies for how citizens were to behave from the village level and upward.King Jayasthiti Malla (1380-1395), for example, is known for the introduction of extensive social and judicial reforms, with the code Manab Nyaya Shastra becoming an important pillar in Nepalese law and justice.This code was based on the dharma of ancient religious texts and traditions and became the source of legal reforms in the 19th and 20th centuries.Due to contradictions in the existing religious texts and changing scenario in Nepal, he undertook various comprehensive legal and judicial reforms for judicial administration under this code. The code which he asked scholars to write, became the basis of administrative justice in the country during the Malla period. Moreover, King Jayasthiti Malla is also known for being a medieval hero due to his introduction of the political status of Nepal’s middle principalities, which led to the reformation of a legal code.

King Jayasthiti Malla’s successors, including Pratap Malla, introduced and added to different aspects of the code. Later, King Siddhinarasimha Malla also introduced some socio-legal changes to the code. During the Malla rule, the local head men of the Panchayat and the governors continued to gain power, especially when it came to dispensing legal cases, while only the most controversial cases were reserved for the Minsters and Kings, who consulted with the headmen in times of crises, including war.

While the 46 principalities in middle and far western parts of Nepal were mostly smaller units, some, including Gorkha, were strong states with big ambitions, despite not having a large territory. The Gorkha state specifically was an 18th kingdom founded by the upper class Shah or Thakuris of the lunar dynasty, namely Drabya Shah. One of Drabya Shah’s successors, King Ram Shah, also issued a legal code that, surviving texts now show, was suited for the needs of people living in the hilly villages of the state.

Regmi notes that justice was delivered to the people in Ram Shah's time on the basis of religious treatise, traditions, equality, and good conscience, values emulated in other kingdoms as well. Additionally, the Gorkhali people and their administrative, military, and legal systems were well-disciplined. The Gorkha state continued to become stronger because of such factors, which allowed King Prithvi Narayan Shah to pursue his forefathers’ ambitions ofextendingits borders by conquering various states in the east of Nepal to found an entire empire.

Since before King Prithivi Narayan Shah came around, notes Revati Raman Khanal, Hindu religious texts determined justice for the people, and it was believed that only learned people with knowledge about the Vedas had the right to write religious texts. However, scholars with such knowledge were not always readily available, which meant that some periods did not see many revisions of the text.Additionally, people from various communities began writing their own commentaries and explanations about the texts’ social usage, which led to differing interpretations about religion, law, and other aspects of human life.When there were any inadequacies with the texts, 'sanads'were proclaimed. The 'sanad' of 1836 is an example. In order to eliminate differences between Nepal’s customs that, for example, allowed a man to marry his dead brother’s wife in one part but didn’t allow it in another, the 'sanad' was proclaimed, and this system was eliminated. However, this law couldn’t be implemented widely because people couldn’t let go of their traditions. This is the reason that the communities that had this tradition were allowed to carry on when the Muluki Ain was enacted in 1854. Thus, proclamations were made to clarify, as had been the tradition since the time of the Lichchavis. And although customary laws were unwritten, they were generally upheld and practiced by the people.

As King Prithivi Narayan Shah (1742-1775) set about conquering other kingdoms and uniting Nepal as a state, he aimed to evolve the legal code to suit his new empire. Prayag Raj Sharma provides an important note to begin with: "The foundation of Gorkha by Prithvi Narayan Shah was laid upon a feudal matrix. It fitted Max Weber's definition of a patrimonial state, in which the king was the patriarch, a protector and a provider. The king was the patron par excellence, and all others under him were his clients whose position was hierarchically and as criptively defined. The polity gave the key role to monarchy in which the ruler's words were a command (hukum); it followed the dynastic and hereditary principles. Familial networks and loyalty to one's patron were the assured means of career success and personal fortune. The values of such a state derived from Hinduism; from it all the king's divine sanctions flowed. Hinduism provided the king (state) not only with its rational basis, but also all its popular legitimacy."

This new empire of Prithvi Narayan Shah was comprised of diverse people in diverse geographical locations.Although he himself was too involved in war efforts in the west of Nepal and was unable to author a legal code himself, historians credit King Prithvi Narayan Shah for evolving the legal system that served his polity and gave way for the Muluki Ain in 1854.As historian Baburam Acharya states, the laws applying to Gorkha, including in the areas of religious and customary laws, could not be adopted to apply to other territories as the state expanded.Although King Prithvi Narayan Shah prepared other detailed laws, not all of them could come into effect, though some were codified in the said Muluki Ain.

The unification of the peoples of various castes, tribes, cultures, and traditions of Nepal meant, notes Khanal, that the officer-in-charge in litigation, appointed from the center, was not necessarily familiar with the local traditions and customs.As such, such officers were advised to consult local panchas, elders, and other respected men before finalizing any ruling or verdict.Prior to Nepal’s unification, almost all the different kingdoms were Hindu and were satisfied that justice was delivered per the Hindu religious treatise. After unification, people of the annexed principalities continued to obey the laws of religious treatise. In fact, each court was to have at least one religious expert. Shambhu Prasad Gyawali points out that his tradition was also reflected in King Prithvi Narayan Shah’s “Divya Upadesh” as well,which was his collection of speeches and instructions about the affairs of the state.

The unification of the country also brought about the institutionalization of judicial administration, states Gyawali, as every district had a Kachahari (or court), each manned by a Dittha, Bichari and Pandit. Together with the Amali, or the administrator, they decided on cases. The Dharmadhikari was responsible for declaring the final decision as the higher judiciary functionary or submitting major, important cases before the King for a final decision. Additionally, the chief Dharmadhikari was present in the King’s court.

During the rule of King Prithvi Narayan Shah, reflecting local traditions in the interpretation of law was preferred to a uniform interpretation of written law.In far western Nepal, for example, local customs concerning certain subjects were preserved following Nepal’s unification. In Jumla, the people followed the “Khaikar” system with regards to land usage, wherein the headman owned the land and leased it out to the people for usage. King Prithvi Narayan Shah also legitimized and gave recognition to the local usage of laws to maintain harmony in the social and political spheres.He collected revenue from them for their usage and submitted revenue to the government.Impartial verdict in the event that revenue wasn’t paid could be given only through an understanding of the Khaikar system; if registration was lacking and there was a conflict regarding land use, a verdict that favored the headman would be considered a mistake.During the time of Prithvi Narayan, it was explicitly stated that the fines charged in court not be considered as an income source of the kingdom.In fact, King Prithvi Narayan Shah commanded that the income not be brought to the Royal Exchequer, as it was the responsibility of the court to give justice, not earn income.This was changed with the introduction of court fee system in 1942.

During these times, it was the job of the judge to be cleverer than both the plaintiff and defendant in order to understand the nuances of the argument.Additionally, judges were to be careful about their decisions, because if more than ten percent of their decisions were reversed by higher courts, these judges would be removed from their positions.

Lying on his deathbed and worried about the collapse of his empire upon his passing, King Prithvi Narayan Shah gathered his family members, courtiers, royal priests and scribes to deliver his Divya Upadesh, as noted above, to his successors and the rest of the country. He talked about national unity, especially given Nepal’s diverse peoples, his protests against corruption, greed, and political squabbling, and advised on Nepal’s foreign policy in the face of rising India and China. His listeners jotted down his messages and transferred them in Shruti form for many years to follow. He also advised that the various castes take turns leading Nepal’s institutions, and people of various castes take on governing roles per the Nyayashastras. Regarding justice, he explained that the King must give attention to the great cause of justice and must not allow injustice to be perpetrated in his kingdom. Givers and takers of bribe are persons who spoil justice. There would be no sin in depriving the life and property of such persons. They are the great enemies of a King.

Although King Prithvi Narayan Shah adopted various laws for implementation when expanding the state of Gorkha, many of them fell short of addressing the changing demands of time in the areas of religious and customary laws. Later, King Prithvi Narayan Shah’s successor further managed to extend the kingdom of Gorkha and developed a standard polity of established legal institutions comprising of the center, districts, and villages. The system ensured that every legal petition that reached the center was approved by the King, aided by judges and Ministers, and delivered with his red seal. The King’s responsibilities, thus, included maintain peace, protecting his people, providing justice, and punishing crimes.

Until Jung Bahadur Rana seized power to become the Prime Minister following the bloody 1846 Kot massacre during King Surendra Bikram Shah’s reign, King Prithvi Narayan Shah’s laws and institutions were upheld by his successors, who introduced some amendments and modifications. After the seize, the Prime Minister was to be delegated all of the King’s power in the executive legislative and the judicialspheres.During the century-long rule of the Rana Prime Ministers from 1846 to 1951, legal institutions were established, including a book of legal code published in 1854, called the Muluki Ain, under King Surendra Bir Bikram Shah Deva and during the prime ministership of Jung Bahadur Rana. Many prime minister successors ambitiously reformed the legal code and its relevance in the court of law and other related institutions.

The promulgation of the Muluki Ain in 1854 meant that all existing laws, civil, criminal, and religious, and customary, were amended and codified.The abused system of trial by ordeal was also abolished.Originally, the Muluki Ain contained three special enactments, one each relating to the throne (the Gaddi ko Ain), the affairs of the state (the Rajkaj ko Ain), and the armed forces (the Jangi Ain).Upon seizing power from the monarchy after the Kot massacre, Jung Bahadur Rana grabbed power until he was the chief of both the judicial and administrative bodies of the country.After receiving the title of “Shree 3 Maharaja” in 1956, he began to rule the final decisions in judicial matters, but did not reserve the right to declare a death sentence. Therefore, the system of Lal Mohar remained intact, and it was the King’s duty to ensure that his subjects were not killed without his command.

As Shambhu Prasad Gyawali explains, the preamble of the Muluki Ain particularly addressed the problem of the conformity of rules relating to crime, punishment, and the administration of criminal justice.It ensured that cases decided in various places and times would still uniformly punish crimes, regardless of the offender’s caste and as ordained by law.However, Brahmins and women were excluded from capital punishment in the matter of capital crimes and instead had to undergo damal, or life in prison, with property confiscation and some other legal consequences.Six year after the promulgation of the Muluki Ain, India also adopted a penal code under the British government that set out punishment measures for crimes irrespective of the offender’s race, caste, sex, or creed.It did not codify the existing criminal law in India.Apparently, the Muluki Ain was an important document. 'Sanads,' as explained earlier, were utilized as necessary before the Muluki Ain of 1854, but otherwise, religious treatise prevailed, Rewati Raman Khanal states. These 'sanad' were then incorporated in the Muluki Ain, and laws in Nepal were thus created to reflect different customs of different castes.

Prayag Raj Sharma clarifies the scenario as follows: "The [Muluki Ain of] 1854 endorsed the idea of the inviolability of 'customary practices' of different jatis. There are any number of decrees to be found issued by the rulersof the center even during the Rana regime in which social and cultural groups were left free to follow their customary traditions and practices under their council of elders. The bharadari, or Council of Nobles, gave its adjudication on disputes over infringements of customary practices or of the customary rights of specific castes (jat) or ethnic groups (jati). They would respond to petitions brought by specific members of such groups and would take care to ensure that the customary practices followed by a large majority of the group in question were respected and passed on intact."

It is not known what prompted Prime Minister Jang Bahadur to codify the Muluki Ain in the first place, Gyawali writes. Perhaps it was upon his return from England or his tour of France, where he was familiarized with the Napoleon Code, or the fact that he maintained relations with the British government (which was considering the enactment of the penal code in India), or his interests to preserve his authority under a legal framework; the third motivation seems closer to the truth, according to some scholars.It is also notable that on putting his lalmohar (red seal of assent) on the document, the King also committed himself, as well as his subjects, to follow the Muluki Ain.Throughout the Rana regime, the Muluki Ain upheld the supremacy of the Prime Minister and his powers as well as the principles of punishment.

As for the judiciary during this time, at the lowest level as well, there existed various forms of judicial administration conducted by the people in their respective communities and in accordance to their customs and traditions, Khanal explains. Based on their nature, such local bodies were given different names.Additionally, appellate courts existed to hear appeals for decisions made in local bodies and tribunals; they also had jurisdiction for cases of serious nature and in different parts of the country.The Bicharis, who adjudicated the courts, were assisted by religious scholars.BadaHakim, or district commissioners, heard appeals from lower courts, and appeals from the Bada Hakim’s decision were heard by three higher courts called the “Gauda Madod Adalat”in different parts of the country.In the capital, however, appeals from the lowest courts went straight to the Goswara Court and then to Itachapali or Kotilinga, the highest court of appeal.If the highest court’s decision still required appeal, the subject could go directly to the King, who would hear the petition in the Royal Court if it has allowed.In the Royal Court, the Royal Counsellors and religious pundits, known as Dharmadhikari, reviewed the cases on the King’s behalf.This court evaluated cases referred to confirmation by the inferior courts.

The position of the prime minister allowed the prime minister to give the verdicts of court cases as a despotic ruler, Khanal explains.There were some improvements made to the Muluki Ain following the rule of the Jung Bahadur. For example, Prime Minister Bir Shamsher promulgated an abridged version of the wordy original in 1886.Additionally, under Prime Minister Chandra Shamsher's rule, the practices of sati (wife burning alive with her dead husband) and slavery were both abolished, in 1920 and 1924 respectively, through amendmentsto the Muluki Ain.Then, in 1931, Prime Minister Bhim Shamsherabolished the capital punishment on a trial basis, and after 15 years, an amendment to the Muluki Ain in 1946 under Prime Minister Padma Shamsherfinalized its abolition.

Later, as Shambhu Prasad Gyawali writes, Juddha Shamsher, in trying to prove that he was not a despotic ruler, separated the functions of the judiciary and the executive in 1940,except at the highest level.This meant that the Supreme Court (the Pradhan Nyayalaya) became the highest court, but not the final court, as its decisions could be revised by the Prime Minister as a court of last resort.Once the Prime Minster decided on a case, it would be closed, with his judgment as the final one.

Nepali tradition, reiterates Revati Raman Khnal, contains many proverbs that speak to its judicial system. One states: “King lives with justice and merchants live with finance.”This speaks to the responsibility of the King to be tied to the delivery of justice, just as merchants are to finance.Another proverb talks about how disputing parties may be fools, but judges should not be, emphasizing the responsibility of the King to be fair and just. Still, another proverb states: “Fishes live in water, and similarly, weak people live in the strength of the King.” This demonstrates how the King’s responsibility of delivering justice is closely tied with the survival of his subjects, just as a fish needs water to survive. With regards to improvement in the judicial field, one proverb names land reform “belly reform,” referring to the irregularities in the implementation of the land reforms.

Before 1951, the legal professional itself was virtually nonexistent, as the Ranas were considered above the law, and democracy and human rights could not flourish in these circumstances.Then, in 1984, a minor amendment to the procedural law allowed a petitioner to call upon another individual to present his or her case on his or her behalf in court. The word "lawyer" or "advocate" was not used anywhere in the modern sense, but this provision allowed the people interested in representing clients to moderately perform the role of a lawyer. Such people, who served as master of facts, also started defending clients and interpreting the laws involved in the case as necessary.

[This article is part of the research work the author is conducting on the first Constitution of Nepal, issued in 1948. Detail references will be on the final product.]

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