Constitution of Nepal

Constitution of Nepal 2015 (Nepali: नेपालको संविधान २०७२) is the present governing Constitution of Nepal. Nepal is governed according to the Constitution which came into effect on Sept 20, 2015, regarding the Interim Constitution of 2007.[1][2] The constitution of Nepal is divided into 35 parts, 308 Articles and 9 Schedules.[3]

Constitution of Nepal
Date effectiveSeptember 20, 2015 (2015-09-20)
LocationConstitutional Assembly Secretariat, Singha Durbar, Kathmandu
Commissioned byConstituent Assembly Of Nepal
PurposeTo establish Federalism in Nepal
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The Constitution was drafted by the Third Constituent Assembly following the failure of the First Constituent Assembly to produce a constitution in its mandated period after the devastating earthquake in April 2015. The constitution was parties which refrained from the voting process.

Its institutions were put in place in 2010 and 2018 through a series of direct and indirect elections in all governing levels.[4]

Struggles in Promulgating a New Constitution

The Interim Constitution provided for a Constituent Assembly, which was charged with writing Nepal's temporary constitution. Under the terms of the Interim Constitution, the new constitution was to be promulgated by April 28, 2010, but the Constituent Assembly postponed the promulgation by a year because of disagreements. On May 25, 2011, the Supreme Court of Nepal ruled that the 2010 extension of the Interim Constitution was not right. Since May 29, 2011 the Constituent Assembly repeatedly extended the Interim Constitution.

On May 28, 2012, the Constituent Assembly was dissolved after it failed to finish the constitution after the latest extension, ending four years of constitution drafting and leaving the country in a legal vacuum. New elections were held on November 19, 2013 to the Second Nepalese Constituent Assembly and political leaders pledged to draft a new constitution within a year. The new assembly expressly committed that the new constitution would be promulgated on January 22, 2015. However, due to continued differences on key issues including system of governance, judicial system and federation issues like number, name and areas of the states to be carved, the constitution could not be finalized and promulgated in time.

Salient features of the Constitution of Nepal

The constitution is largely written in gender-neutral terms. Some of the important aspects of the constitution include the following:

  • The Constitution restructured Nepal into a federal republic. The Constitution divided the nation into seven provinces and completed the transition of Nepal from constitutional monarchy to republicanism and from a unitary system to federalism.
  • The Federal system is established with three tiers, Federal Government, Provincial Level, and Local Level. The guiding principles of the 'Holding Together' type of Nepalese federal system are based on Co-existence, Co-operation, and Coordination (3Cs).
  • Nepal is defined in article 4 as an "independent, indivisible, sovereign, secular, inclusive, democratic, socialism-oriented, federal democratic republican state."
  • A bicameral parliamentary system was created with two Federal houses and unicameral parliamentary systems in each province.
  • A mixed electoral system was adopted for the elections of the lower Federal house with both first-past-the-post and proportional electoral aspects used to elect members.
  • The rights of gender and sexual minorities are protected by the new constitution with provisions of special laws to protect, empower and develop minority groups as well as allowing them to get citizenship in their chosen gender.
  • The rights of women were explicitly recognized, the constitution stating that “women shall have the equal ancestral right without any gender-based discrimination.”
  • Acts leading to conversions from one religion to another were banned, and acts that undermine or jeopardize the religion of another prohibited. At the same time, the constitution declares the nation to be secular and neutral toward all religions.
  • Nepal also has continued not to use the death penalty. Nepal had abolished capital punishment in 1990 after the promulgation of that year's Constitution of the Kingdom of Nepal.[5]

Preamble

We, the Sovereign People of Nepal, internalizing the people's sovereign right and right to autonomy and self-rule, while maintaining freedom, sovereignty, territorial integrity, national unity, independence and dignity of Nepal, recalling the glorious history of historic people's movements, armed conflict, dedication and sacrifice undertaken by the Nepalese people at times for the interest of the nation, democracy and progressive changes, and respecting for the martyrs and disappeared and victim citizens, ending all forms of discrimination and oppression created by the feudalistic, autocratic, centralized, unitary system of governance, protecting and promoting social and cultural solidarity, tolerance and harmony, and unity in diversity by recognizing the multi-ethnic, multi-lingual, multi-religious, multi-cultural and diverse regional characteristics, resolving to build an egalitarian society founded on the proportional inclusive and participatory principles in order to ensure economic equality, prosperity and social justice, by eliminating discrimination based on class, caste, region, language, religion and gender and all forms of caste- based untouchability, and being committed to socialism based on democratic norms and values including the people's competitive multi-party democratic system of governance, civil liberties, fundamental rights, human rights, adult franchise, periodic elections, full freedom of the press, and independent, impartial and competent judiciary and concept of the rule of law, and build a prosperous nation, do hereby pass and promulgate this Constitution, through the Constituent Assembly, in order to fulfill the aspirations for sustainable peace, good governance, development and prosperity through the federal, democratic, republican, system of governance.

Previous Constitutions of Nepal

In the 68-year history of constitutional development up to this Constitution, Nepal experienced 7 different constitutions in different time periods, with previous constitutions being enacted in 1948, 1951, 1959, 1962, 1990, and 2007.

The Nepal Government Act 1948

In 2004 Bikram Sambat, the Government of Nepal Act was enacted. Since the mid-nineteenth century, the country had been a monarchy where the prime ministers, from the Rana dynasty, had sweeping control over the affairs of the state. The 1948 (Common Era) document introduced limited democratic elements, but the experiment was not successful due to the misgivings of the Rana rulers to give away power. This constitution was declared on 26 January 1948 by PM Padma Shumsher. The constitution was formed under the chairmanship of Padma Shumsher and three Indian Scholars had helped him to prepare this document. The three Indian Scholars who contributed during its writing were Prakash Gupta, Raghunath Singh and Ram Ugra Singh. It consisted of 6 parts, 68 articles and 1 schedules.

The Nepal Interim Government Act 1951

The Interim Government of Nepal Act 1951 was promulgated after the Revolution of 1951 at the end of the Rana period. This text strengthened the authority of the king, and introduced relevant reforms such as the creation of the Supreme Court and the inclusion of fundamental rights and socio-economic goals to be pursued by the state. This constitution was promulgated on 30 March 1951 by King Tribhuwan. It consisted of 7 parts, 73 articles and 3 schedules.

The Constitution of the Kingdom of Nepal, 1959

The Constitution of the Kingdom of Nepal, 1959 followed the previously mentioned interim text. Despite the establishment of a bicameral parliament, the king continued to hold important powers such as the prerogative to appoint half of the members of the Senate and the suspension of parliament under certain circumstances.This constitution was drafted under the chairmanship of Bhagawati Pd Singh. The constitution drafting commission included members like Surya Pd Upadhyaya, Ranabir Subba, Hari prashad Joshi. Sir Ivor Jennings was an advisor in this committee. This constitution was promulgated on 12 February 1959. It consisted of 10 parts, 77 articles and 3 schedules.

Constitution of Nepal 1962

The democratic experiment was short-lived, as in 1962 a new constitution came in to eliminate political parties, and to introduce the so-called panchayat system. In this model, panchayats were councils organized at the local level, presumably to ensure the representation of citizens. However, the king exercised much stronger authority than in the 1959 regime. and could modify the constitution or suspend it in case of emergency. This constitution was promulgated on 16 December 1962 by King Mahendra. It consisted of 20 parts, 97 articles and 6 schedules.

Constitution of the Kingdom of Nepal, 1990

In 1990, the first Jana Andolan, Popular Revolt, brought multi-party democracy back to Nepal. The Constitution of the Kingdom of Nepal, 1990 lifted the ban on political parties, described a democratic representative system where the authority of the king was curtailed, and enshrined fundamental rights. Although the 1990 constitution substantially increased the democratic character of the state in comparison with the Panchayat Regime, critiques have argued that this text did not adequately represent all sectors of society, even though Nepal is a multi-cultural country where diverse social groups coexist. This constitution was promulgated on 9 November 1990 by King Birendra. It consisted of 23 parts, 133 articles and 3 schedules. This constitution was repealed by the constitution of Nepal.

Nepal Interim Constitution, 2007

Again following the 2007 democracy movement in Nepal, Interim Constitution was promulgated in 2007. This constitution was promulgated on 15 January 2007. It consisted of 25 parts, 167 articles and 4 schedules. It has articles on citizenship, fundamental rights, responsibilities, directive principles and policies of the State, the Executive, Legislature-Parliament, the Constituent Assembly, the legislative procedure, the financial procedure, the Judiciary, the Commission for the Investigation of Abuse of Authority, the Auditor General, the Public Service Commission, the Election Commission, the National Human Rights Commission, the Attorney General, structure of State and local self-governance, political parties, emergency powers, provisions regarding the army, amendment of the Constitution and transitional provisions.

Controversy over 2015 Constitution

The promulgation of the new constitution was immediately followed by blockade by India in all checkpoints at Nepal-India border. Various Human Rights Activists and some ethnic groups in lowland Nepal have accused the Constitution of being gender discriminatory especially in regards to citizenship provisions. They allege new constitution makes it difficult for woman to pass on citizenship to their children as compared to men.

front view

Similarly, Madhesi and indigenous population view that the new constitution fails to address demands of marginalized communities and support status-quo of the ruling groups. They are protesting mainly over the federal delineation of new states as proposed in the constitution fearing existing demarcation could affect their political representation. With the protest ongoing since August 15, 2015 or earlier, at least 45 people, including 8 security personals and one Indian National, have been killed. Human Rights Watch has criticized the Nepal Government as well as the protesters for violation of human rights during the protest. Additionally, there is controversy over Nepalese citizenship rules, which Nepal deems to protect the state from being overwhelmed by Indian immigrants, and which India claims discriminates against Madhesis of Indian origins, the draft constitution and final constitution that passed differ on this issue.

Parts of the Constitution

The Constitution has 35 parts which are as follows:

1. Preliminary (part 1)

2. Citizenship (Part 2)

3. Fundamental Rights and Duties (Part 3)

4. Directive Principles, Policies and Responsibilities of the State (Part 4)

5. Restructuring of the State and distribution of State power (Part 5)

6. President and Vice-President (Part 6)

7. Federal Executive (Part 7)

8. Federal Parliament(Part 8)

9. Federal Legislative Procedure(Part 9)

10. Federal Financial Procedures (Part 10)

11. Judiciary (Part 11)

12. Attorney General (Part 12)

13. Provincial Executive (Part 13)

14. Provincial Legislature (Part 14)

15. Provincial Legislative Procedure (Part 15)

16. Financial Procedures of Province (Part 16)

17. Local Executive (Part 17)

18. Local Legislature(Part 18)

19. Local Financial Procedure(Part 19)

20. Interrelationship between the Federation, Provinces and Local Levels (Part 20)

21. Commission for the Investigation of Abuse of Authority (Part 21)

22. Auditor General (Part 22)

23. Public Service Commission(Part 23)

24. Election Commission(Part 24)

25. National Human Rights Commission (Part 25)

26. National Natural Resources and Fiscal Commission (Part 26)

27. Other Commissions (Part 27)

28. Provision regarding National Security(Part 28)

29. Provision relating to Political Parties (Part 29)

30. Emergency Power (Part 30)

31. Amendment of the Constitution (Part 31)

32. Miscellaneous(Part 32)

33. Transitional Provisions(Part 33)

34. Definitions and Interpretations (Part 34)

35. Short title, Commencement and Repeal (Part 35)

Citizenship Provisions in the Constitution of Nepal 2015

The conditions to be fulfilled to be a Nepalese Citizen are outlined below (Copied from Section 11, Part 2, Constitution of Nepal, 2015)(final)

(1) The persons who have acquired citizenship of Nepal at the commencement of this Constitution and the persons who are eligible to acquire citizenship of Nepal under this Part shall be deemed to be the citizens of Nepal.

(2) The following persons who have their permanent domicile in Nepal shall be deemed to be citizens of Nepal by descent:-

  1. A person who has acquired the citizenship of Nepal by descent before the commencement of this constitution.
  2. Any person whose father or mother was a citizen of Nepal at the birth of such a person.

(3) A child of a citizen who has acquired citizenship of Nepal by birth before the commencement of this Constitution shall, if his/her father and mother both are the citizens of Nepal, shall be entitled to Nepali citizenship by descent upon his/her attaining the age of maturity.

(4) Every child found in Nepal whereabouts of whose paternity and maternity is not known shall, until the mother or father is traced, be deemed a citizen of Nepal by descent.

(5) A person born to a Nepali citizen mother and having his/her domicile in Nepal but whose father is not traced, shall be conferred the Nepali citizenship by descent.

Provided that in case his/her father is found to be a foreigner, the citizenship of such a person shall be converted to naturalized citizenship according to the Federal law.

(6) If a foreign woman married to a Nepali citizen so wishes, she may acquire naturalized citizenship of Nepal as provided for in a Federal law.

(7) Notwithstanding anything contained elsewhere in this Article, in case of a person born to Nepali woman citizen married to a foreign citizen, he/she may acquire naturalized citizenship of Nepal as provided for by a Federal law if he/she is having the permanent domicile in Nepal and he/she has not acquired citizenship of the foreign country.

Provided that if his/her father and mother both are the citizen of Nepal at the time of acquisition of the citizenship, he/she, if born in Nepal, may acquire citizenship by descent.

(8) Except provided for in this Article, Government of Nepal may confer naturalized citizenship of Nepal according to Federal law.

(9) Government of Nepal may confer honorary citizenship according to Federal law.

(10) In case any area is annexed into Nepal by merger, the persons having domicile in such area shall be citizens of Nepal subject to a Federal law.

==Fundamental rights guaranteed in the Constitution (Part 3)==(Article 16-47)

1. Right to Life of Dignity (Article 16)

2. Right to Freedom (Article 17)

3. Right to Equality (Article 18)

4. Right to Communication (Article 19)

5. Right regarding Justice (Article 20)

6. Right of the Victim of Crime (Article 21)

7. Right against Torture (Article 22)

8. Right against Preventive Detention (Article 23)

9. Right against Untouchability and Discrimination (Article 24)

10. Right to Property (Article 25)

11. Right to Religious Freedom (Article 26)

12. Right to Information (Article 27)

13. Right to Privacy (Article 28)

14. Right against Exploitation (Article 29)

15. Right to Fresh Environment (Article 30)

16. Right regarding Education (Article 31)

17. Right to Language and Culture (Article 32)

18. Right to Employment (Article 33)

19. Right to Labour (Article 34)

20. Right regarding Health (Article 35)

21. Right regarding Food (Article 36)

22. Right to Residence (Article 37)

23. Women's Rights (Article 38)

24. Children's Rights (Article 39)

25. Dalit's Rights (Article 40)

26. Senior Citizen's Rights (Article 41)

27. Right to Social Justice (Article 42)

28. Right to Social Security (Article 43)

29. Consumer's Rights (Article 44)

30. Right against Exile (Article 45)

31. Right to Constitutional Remedy (Article 46)

Constitutional Organs (Part 21-27)

The following are the Constitutional organs of Nepal:

1. Commission for the Investigation of Abuse of Authority (CIAA) (Part 21)

2. Auditor General (Part 22)

3. Public Service Commission (Part 23)

4. Election Commission (Part 24)

5. National Human Rights Commission (Part 25)

6. National Natural Resources and Fiscal Commission (Part 26)

7. Other Commissions (Part 27) :

  1. National Women Commission
  2. National Dalit Commission
  3. National Inclusive Commission
  4. National Aborigines Commission
  5. Madhesi Commission
  6. Tharu Commission
  7. Muslim Commission

Schedules of the Constitution

The Constitution has 9 schedules as follows:

1. Nepali National Flag (Schedule 1)

2. National Anthem of Nepal (Schedule 2)

3. Coat of Arms of Nepal (Schedule 3)

4. Provinces and Districts within provinces (Schedule 4)

5. List of Federal Powers/Jurisdiction (Schedule 5)

6. List of Provincial Powers/Jurisdiction (Schedule 6)

7. List of Concurrent (federal and provincial) powers/jurisdiction (Schedule 7)

8. List of Powers/Jurisdiction for Local Level (Schedule 8)

9. List of Concurrent Powers/Jurisdiction for Federation, Province and Local Level (Schedule 9)

See also

References
  1. "President promulgates Constitution of Nepal, 2072". kathmandupost.ekantipur.com. Retrieved 9 July 2019.
  2. "Prez Yadav announces commencement of Constitution of Nepal 2072". kathmandupost.ekantipur.com. Retrieved 9 July 2019.
  3. "Constitution of Nepal – Nepal Law Commission". Lawcomission.gov.np. Retrieved 9 July 2019.
  4. "The Rising Nepal: Federal Constitution Of Nepal Let It Evolve Through Practice". therisingnepal.org.np. Retrieved 9 July 2019.
  5. Oli, KP Sharma. "Constitution's Nepal". My Republica. Retrieved 9 July 2019.

Further reading
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