The Constitution of Nepal 2015 (2072) is the seventh constitution of Nepal. This is the first Constitution made and adopted by the Constituent Assembly (CA) which was specifically elected for this purpose. It was proclaimed by the President of Nepal on September 20, 2015 (Asoj 3, 2072).
The Interim Constitution of Nepal 2007 (2063, which provisioned designs for the election of a Constituent Assembly, enabled it to write Nepal’s permanent constitution. The new constitution was to be promulgated by May 28, 2010 by the elected house. Due to disagreements between political parties on several issues, among other things, the house was not able to do the assigned job. This led to amendment of the term of the house again and again. On May 25, 2011, eventually, the Supreme Court of Nepal ruled that the repeated extension of the Interim Constitution was not right. It reasoned that an elected House is not supposed to extend its term again and again going beyond the reasonable electoral mandate.
On May 28, 2012, the Constituent Assembly was dissolved, after it failed to finish the constitution drafting process despite repeated extensions, ending four years of constitution drafting and leaving the country in a constitutional vacuum. New elections were held on November 19, 2013 to elect the Constituent Assembly – II on a special arrangement agreed by the political parties and approved by the President. The political leaders then 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 provinces to be carved, the constitution could not be finalized and promulgated in time. Only now did it become possible to finalize and adopt the Constitution.
A total of 507 votes were casted in favour of the Constitution Bill while 25 votes went against it. Major three political parties of Nepal – Nepali Congress (NC), CPN (UML), and UCPN (Maoist) – and a majority of fringe parties voted in support of the Bill in a meeting of the CA. Those voting against the Bill were members of Rastriya Prajatantra Party-Nepal (RPP-N). However, some Terai based parties boycotted the constitution finalization and adoption process. Of the total 598 CA members, 532 were present at the meeting.
President Ram Baran Yadav announced the promulgation of Constitution of Nepal, 2015 (2072) at a special meeting of the Constituent Assembly on September 20, 2015. The President announced the commencement of the new constitution endorsed by the CA and as authenticated by CA Chairperson Subas Chandra Nembang.
To begin with, the Preamble of the new Constitution has the following highlights:
(1) The Constitution has been adopted and proclaimed in the name of “We, the people of Nepal, in exercise of the sovereign powers inherent in us.”
(2) The people of Nepal has the sovereign power and the right to autonomy and self-rule, by maintaining Nepal’s independence, sovereignty, geographical integrity, national unity, freedom and dignity.
(3) It recalls historical peoples movements and armed struggles and the sacrifice made by people for national interest, democracy, progressive change.
(4) It recognizes the martyrs, the disappeared citizens and the victims.
(5) It declares ending all forms of discriminations and oppression created by the feudal, autocratic, centralized and unitary system of government in the past.
(6) It notes its commitment to Nepal’s multiethnic, multilingual, multicultural and diverse geographical specificities and end of discriminations relating to class, ethnicity, region, language, religion and gender discrimination including all forms of racial untouchability, in order to protect and promote unity in diversity, social and cultural solidarity, tolerance and harmonious attitudes.
(7) It also expresses the determination to create an egalitarian society on the basis of the principles of proportional inclusion and participation, to ensure equitable economy, prosperity and social justice.
(8) There is a commitment to create the bases of socialism by adopting democratic norms and values, including peoples’competitive multi-party democratic governance system, civil liberty, fundamental rights, human rights, adult franchise, periodic elections, complete press freedom and an independent, impartial and competent judiciary, and the concept of rule of law.
The new Constitution has 308 Articles, nine Annexes and Preamble. It builds in the past and has many new and progressive provisions. It has become somehow a lengthy document. This length owes to different reasons. The first and foremost reason is obviously political. Due to the distrusts among the parties, things have been unnecessarily elaborated. Many matters have been dealt in the Constitution extensively. They should better have been put into an ordinary law. Therefore, the constitution does not seem to be the Basic Law, which usually only sketch the basic principles of the statehood. The Constitution at the same time includes a law on nationality, a law on municipality and to a certain extent even a law on the civil service. It would have been better if the constitution had been limited to regulate the principles leaving the details for the ordinary legislation, because it would be easier to reform such a legislation if necessary. The details of the legislation on nationality do not require a constitutional guarantee.All these features need careful analysis.
This Constitution is not only the constitution of the Federation but at the same time the constitution of all provinces and even an important statute for the municipalities. One may question if under the flag of a decentralization it had not been better, if the constitution had not just established some basic principles for the internal structure of the provinces – leaving the more detailed shaping of the statutes to the provinces, thereby strengthening their autonomy or to a federal law which could be adapted to the requirements.
The objective of this article is only to highlight the salient features of the new Constitution without going into critical analysis of its pros and cons:
* Article 1 states that this Constitution is the fundamental law of Nepal. All laws inconsistent with this constitution shall, to the extent of such inconsistency, be void. The inconsistency will be declared by the Supreme Court under Article 133. The Constitution also states that it shall be the duty of every person to uphold this Constitution.
* Nepal is defined by the new Constitution as “an independent, indivisible, sovereign, secular, inclusive democratic, socialism-oriented federal democratic republican state.” [Article 4] The explanation attached to this provision makes clear that the word ‘secular’ as stated above “means protection of religion and culture being practiced since ancient times and religious and cultural freedom.”
* The sovereignty and state authority of Nepal are vested in Nepali people. Their exercise shall be as provided for in this Constitution. [Article 2]
* Article 11 deals with major citizenship provisions. In terms of acquisition of citizenship by decent, one needs to have a Nepalese father or mother at the time of his/her birth. Any person whose father or mother was a citizen of Nepal at the birth of such a person is thus entitled to Nepalese citizenship by descent. 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 majority. [Clauses (1), (2) and (3) of Article 11] Every child found in Nepal whose both parents are not known shall, until the mother or father is traced, be deemed a citizen of Nepal by descent. [Clause (4)] A person born in Nepal to a Nepali citizen mother and having his/her domicile in Nepal but whose father is not known, shall be conferred the Nepali citizenship by descent. In case his/her father is found to be a foreigner later, the citizenship of such a person shall be converted to naturalized citizenship according to the Federal law. [Clause (5)] 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. [Clause (6)] 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. If his/her father and mother both are the citizens of Nepal at the time of acquisition of the citizenship, he/she, if born in Nepal, may acquire citizenship by descent. [Clause 97)] The Government of Nepal may confer naturalized citizenship to a foreigner according to federal law. It may also confer honorary citizenship according to such law.
* The new Constitution provides a long list of fundamental rights, including economic, social and cultural rights, most important for the Nepalese people at this stage. [Part III] There is a provision for affirmative action for historically prejudiced or disadvantaged communities among others. [Article 18(3)] The right to inclusion and participation in the state structures is also there that applies to all communities in the country. [Article 42, for example] The rights of the Women, Dalits, indigenous people and minorities have also been enlisted through several provisions. These rights can be claimed at the provincial high court and district courts as part of the right to remedy.
* Further, the new Constitution creates specific independent constitutional commissions (such as the Women Commission, Dalit Commission, Janajati Commission, Madhesi Commission, Tharu Commission and Muslim Commission). They will exist with the National Human Rights Commission. These commissions, which are created outside the framework of Fundamental Rights, and in different chapters, have a mandate to recommend changes in the laws, policies, and practices of areas that discriminate against or deny rights to their respective communities. They submit annual reports to the parliament. These provisions are expected to make the state inclusionary for major groups and communities in the country.
* Furthermore, the new constitution expresses the determination of the state to build an equitable society on the basis of the principle of proportional inclusion and participation, by ensuring economic equality, prosperity and social justice.
* The Constitution also lays down the Directive Principles, Policies and Responsibilities of the State as guidelines for the governance of the State. While the policies recommended by the above thematic commissions are based on modern requirements, this Chapter deals with long term principles, policies and responsibilities. It is the responsibility of the state to mobilize required resources and means for their implementation [Article 49]. Even though the citizens cannot claim these principles and policies as a matter of right, politically, Article 53 requires the government to produce an annual report regarding its works and achievements made in the implementation of these principles, policies and responsibilities. The President is to make arrangements to send such reports to the federal parliament through the Prime Minister. Again, Article 54 requires that a committee will be formed in the Parliament to monitor the progress in this regard.
* In terms of religion, the country will remain a secular state. It will remain dedicated to respecting ancient traditions whilst ensuring freedom of Nepalese citizens to choose any religion.
* Nepali language remains as the official language of Nepal. [Article 6] All the mother tongues spoken in Nepal shall be the national language. In addition to Nepali language, a province shall select one or more national language that is spoken by majority of people in that province as the language of official business, as provided for by the provincial law. Other matters concerning language shall be as decided by the Government of Nepal on the recommendation of the Language Commission to be established by the federal government within a year. [Article 7] This Commission has been empowered to determine the basis for a language to acquire status of official language and forward a recommendation to the Government. It is also to forward a recommendation to the government regarding the measures to be adopted for the protection, promotion and development of languages. [Article 287]
* The Constitution restructures Nepal as a federal country with three layers of federalism. [Part 5] The erstwhile unitary structure of the country has been replaced by seven federal provinces with delineation of stipulated legislative powers for the central, provincial, and local bodies. There is an elaborate federal scheme in the Constitution. [Parts 5 – 20] It provides for separate list of powers of the federal layers. [Schedules 5-9] Similarly, legislative and financial procedures of each level has also been elaborated by the Constitution. [Parts 14-16 and 18-19] A National Natural Resources and Fiscal Commission has been created to determine extensive grounds and measures, regarding the distribution of revenue from the federal consolidated fund to the federal, provincial and local level governments according to the constitution and law. [Articles 250-251] The demarcation of the provincial borders will be finalized by the Federal Commission and the provinces will be named through two-third majority in the provincial parliament. [Article 295]
* To achieve the federal objective, Part 5 of the Constitution, sets out some key principles. Firstly, the State powers of Nepal shall be used by the three main levels of structure: federal, provincial and local, in accordance with this constitution. Secondly, the power of the each level of the structure has been set out in the given schedules and shall be exercised in accordance with this Constitution and the federal law. Thirdly, the Constitution also sets out concurrent/shared power of the federation and the province, and federation province and the local level. Fourth, Article 58 states that powers relating any subject that are not mentioned in the list of powers of the federation, province or the local level entity, or in the concurrent/shared powers of federation and the province, or not stated in this Constitution, shall rest with the federation as residual powers. Fifth, the Constitution also lays down norms for use of fiscal power and distribution of sources of revenue. Finally, the federation may make basic laws regarding necessary policies and criteria related to the subjects included in the list of concurrent/shared power and in other areas of fiscal authority, which may also be implemented in provinces.
* Nepal continues to be a parliamentary system at the federal and provincial levels. Article 74 states that “the form of governance of Nepal shall be a multi-party, competitive, federal democratic republican parliamentary system based on plurality.” At the federal level, it will have a bi-cameral parliamentary form of government with a president elected through the Legislative-Parliament and the National Assembly, as well as the provincial legislative body. The prime minister will be elected by the Legislative-Parliament based on a majority. There are three significant departures from the erstwhile Westminster system. First, the Prime Minister cannot dissolve the parliament and, secondly, there can be no motion for vote of no confidence against the Prime Minister for two years subsequent to his/her election. Thirdly, any no-confidence motion moved for the removal of the Prime Minister in the House of Representatives must also come with a proposal for the new prime minister who will immediately replace him/her. Article 105(5) thus states that “the name of the member proposed for Prime Minister should be mentioned when tabling the no-confidence motion under clause (4).”
* The executive powers of the country shall vest in the Council of Ministers while the President would be constitutional head of the country. Article 66 limits the power of the President to three important categories: (1) President shall exercise his/her rights and duties as provided for by this constitution and federal laws; (2) While exercising rights under clause (1), the President shall perform all the works with the consent and recommendation of the Council of Ministers, except in case where the works have to be performed expressly under the recommendation of some agency or official. Such consent and recommendation shall be made to the President through the Prime Minister; and (3) the decision or order made in the name of the President as provided for by clause (2) and the certification of credentials in that regard, shall be done as specified by federal law. As a constitutional head, the President is to “promote national unity of Nepal.” Similarly, the Constitution states that “compliance and protection of the Constitution shall be the main duties of the President.”
* In terms of judiciary, the idea of constitutional court that used to be a hot issue has been withdrawn. Instead, the Supreme Court will specialize on constitutional issues by creating provision for a constitutional bench. Five judges will be assigned to this bench. Further, Constitutional Council will nominate the chief justice and head and members of the constitutional commissions. The Judicial Council will nominate the judges of the Supreme, High, and District Courts; the judicial system is an integrated one. Apart from Supreme Court, Nepal will have High Court in each province and District Courts as necessary.
* In terms of the electoral system, a mixed system has been adopted comprising of the FPTP (First Past the Post) and PR (Proportional Representation). The House of Representatives in the federal parliament will consist of 275 members: 165 elected through FPTP and 110 elected through PR. Similarly, the National Assembly will consist of 59 members: 56 elected through federal provinces and 3 nominated by the President (on the advise of the government).
* In the federal provinces, the legislature will be unicameral. There will be a total of 550 members in the legislatures of the 7 states. The Chief Minister of the state will be elected by the provincial legislature whereas the head of the province will be appointed by the President.
* The new Constitution continues with the provisions on registration and operation of political Parties [Article 269-72]. They are required to register their names under the Election Commission in accordance with the procedure determined by law. The constitution and rules of the political party should be democratic. There should be the provision, in the constitution of the political party, of the election of the office bearers in the federal and provincial levels, at least once in five years. There should be the provision of proportional participation so as to reflect the diversity of Nepal, in the executive committees at various levels of the party.
* In case a grave emergency arises in relation to the sovereignty or territorial integrity of Nepal or the security of any part thereof, whether by war, external attack, armed revolt, extreme economic breakdown, natural calamity or epidemic outbreak, the President may, by Proclamation or Order, declare a state of emergency to be enforced in Nepal or any specified part thereof. [Article 273] In case a grave situation arises, whether by natural calamity or epidemic outbreak, in any province, the concerned province may request the Government of Nepal to declare, by Proclamation or Order, a state of emergency to be enforced in the province or any specified area of the province. The Proclamation or the Order issued as above is to be presented before the meetings of both houses of federal legislature for approval within a month from the date of its issuance. If the Proclamation or the Order presented for the approval is approved by a two-third majorities of the total members present at the meetings of both the houses of federal legislature, such Proclamation or Order shall continue in force for a period of three months from the date of Order or Proclamation. If the Proclamation or Order presented before both houses of federal legislature is not approved, such Proclamation or Order shall, ipso facto, be invalid. The proposal to extend the period of the Proclamation or Order of state of emergency for another period, not exceeding for three months, may be forwarded in the federal legislature, stating that the circumstances still exist. If the resolution for Proclamation or Order of state of emergency for another period is passed by a majority of the two third members present of both the houses of the federal legislature, the state of emergency for the said period shall continue to exist. In case of dissolution of House of Representatives, the power of Federal Parliament shall be exercised by National Assembly. While issuing the Proclamation or Order of state of emergency, the President may suspend the fundamental rights provided in Part 3 so long as the Proclamation or Order is in operation. However, some important fundamental rights and the right to constitutional remedy and right to habeas corpus related to Article 46 shall not be suspended. If, during the continuation of a Proclamation or Order pursuant to this article, any damage is inflicted upon any person by an act of any official done in contravention of law or in bad faith, the affected person may, within three months from the date of termination of the Proclamation or Order, file a petition for compensation for said damage. In case the petition is filed, the court may arrange for the appropriate compensation, or punish the guilty according to the Federal law. The President may, at any time during its continuance, revoke the proclamation or order relating to state of emergency.
* Article 274 enables amendment of the Constitution except in contravention with self-rule of Nepal, sovereignty, territorial integrity and sovereignty vested in people. An amendment proposal may be presented to either house of the federal legislature. The bill so presented shall be published for the perusal of the general public within 30 days of presentation of the bill in either house of the federal legislature. In case the bill proposed as such is related with altering the boundaries of a province and falls under the right of provinces as mentioned in Schedule (6), such a bill shall have to be forwarded to the respective Provincial Assembly to garner consensus, within thirty days of the time the bill is presented in the federal legislature. In that case, the Provincial Assembly shall have to get the consensus bill endorsed or rejected through majority of the Provincial Assembly and forward the information regarding the same to the federal legislature, within three months. In case the Provincial Assembly is not in place, the bill shall have to be endorsed or rejected within three months from the time the assembly comes into force and forward the information to the federal legislature. If the Provincial Assembly, within the time frame informs the federal legislature that the bill has been rejected by the majority, the bill shall considered to be rejected. If, within the time stipulated the majority of provincial assemblies inform the Federal Parliament of the rejection of the bill, such bill shall be void. In case the bills that do not require consent from Provincial Assembly or the one that has garnered consensus from Provincial Assembly as mentioned under clause (5), shall require endorsement by the two-thirds majorities of the existing members in the both houses of federal legislature. The bill so approved shall be forwarded to the President for approval. The President shall have to approve the bills under within fifteen days from the day of reception of the bill. The constitution stands amended from the date of such approval.
‘Key Features’ of the Fundamental Rights
* No Nepali citizen shall be denied the right to acquire citizenship. There shall be a provision of single federal citizenship with provincial identity in Nepal. [Article 10: Part 2 of the Constitution]
* “… nothing shall be deemed to bar the making of special provisions by law for the protection, empowerment or advancement of the women lagging behind socially and culturally, Dalits, Adibasi Janajati, Madhesi, Tharus, Muslims, oppressed class, backward communities, minorities, marginalized groups, peasants, workers, youths, children, elderly citizens, gender and sexual minorities, persons with disabilities, persons in a state of pregnancy, incapacitated and the helpless persons, and of the citizens who belong to backward regions and financially deprived citizens including the Khas Arya.” [Proviso to Article 18(3)]
* “Right against untouchability and discrimination: (1) No person shall be treated with any kind of untouchability or discrimination in any private or public place on grounds of caste, ethnicity, origin, community, occupation, or physical condition. (2) No person belonging to a particular caste or ethnicity shall be prevented from buying an object or getting services or facilities in the process of production of such objects or in the distribution or delivery of services, or no such objects shall be sold to, or facilities or services distributed or delivered to persons belonging to a particular caste or ethnicity only. (3) Racial discriminations shall not be encouraged in any way, or there shall not be any behavioral attitude to exhibit high or low status on grounds of a particular caste, ethnicity or community, or physical condition of a person, or there shall not be any behavioral attitude that justifies social discrimination based on caste, ethnicity, or untouchability, or encouragement for the propagation of attitudes based on caste superiority and untouchability, or hatred. (4) There shall not be any racial discrimination in the workplace by indulging or not indulging in untouchability. (5) All forms of untouchability or discrimination contrary to this provision shall be punishable by law as a serious social crime, and the victim of such an act shall have the right to compensation as provided for by law.” [Aricle 24]
* “Right to language and culture: (1) Each person and community shall have the right to use their language. (2) Every person and community shall have the right to participate in the cultural life of its community. (3) Each community living in Nepal shall have the right to preserve and promote its language, script, culture, cultural civilization and heritage.” [Article 32]
* “Right of women: (1) Every woman shall have equal right to lineage without any gender discriminations. (2) Every woman shall have the right relating to safe motherhood and reproductive health.(3) There shall not be any physical, mental, sexual or psychological or any other kind of violence against women, or any kind of oppression based on religious, social and cultural tradition, and other practices. Such an act shall be punishable by law and the victim shall have the right to be compensation as provided for in law. (4) Women shall have the right to access participate in all state structures and bodies on the basis of the principle of proportional inclusion. (5) Women shall have the right to special opportunity in the spheres of education, health, employment and social security on the basis of positive discrimination. (6) Both the spouses shall have equal rights in property and family affairs.” [Article 38]
* “Right of Dalits: (1) Dalit shall have the right to participate in all agencies of the state based on the principle of proportional inclusion. There shall be special legal provision of empowerment, representation, and participation of Dalit community for employment in other area also including the public service. (2) Provisions of free education with scholarships shall be made for Dalit students from the primary to higher level of education as provided for in law. Special provision shall be made in law for Dalits to pursue higher education in technical and professional subjects. (3) In order to provide health care and social security to Dalit community, special arrangements shall be made in accordance with law.(4) Dalit community shall have the right to use, preserve and develop their traditional occupation, knowledge, skill and technology. The State shall give priority to modern profession of Dalits in relation to their traditional occupation, by providing them with necessary skill and resources. (5) The State shall, as per the law, provide land to landless Dalits for one time. (6) The State shall, as per the law, make housing arrangements for Dalits who do not have shelter of their own. (7) The facilities provided to the Dalit community according to this Article, shall have to be justly distributed to Dalit women and men and all the Dalit communities living in different parts of the country, ensuring that all Dalits receive the facilities proportionally.” [Article 40]
* “Right to social justice: (1) Socially backward women, Dalits, Adibasi, Adibasi Janajati, Madhesi, Tharu, minorities, persons with disability, marginalized, Muslim, backward classes, gender and sexual minorities, youths, peasants, workers, oppressed or citizens from backward regions, and economically poor Khas Arya shall have the right to participation in the state bodies on the basis of principle of inclusion. (2) Citizens who are economically very poor and communities on the verge of extinction, shall have the right to special opportunity and facilities in the areas of education, health, housing, employment, food and social security, for their protection, progress, empowerment and development. (3) People with physical impairment shall have the right to a dignified way of life and equal access to social services and facilities, along with their diversity identity. (4) Each peasant shall have the right to access to land as provided for in law for agricultural purposes, along with the right to choose and preserve traditionally adopted and used endemic seeds and agricultural species. (5) The families of martyrs who sacrificed their lives in the people’s movements, armed conflicts and revolutions for a democratic progressive change in Nepal, the families of those who were disappeared, persons who fought for democracy, victims of conflict and the displaced, persons who were physically maimed, the wounded and the victims, shall have the right with priority, as provided for by law, to education, health, employment, housing and social security, with justice and appropriate respect.” [Article 42]
* “Right to social security: Economically poor, physically incapacitated and helpless person, helpless single women, persons with physical impairment, children, persons who cannot look after themselves and the citizens who belong to communities that are on the verge of extinction, shall have the right to social security as provided for by law.” [Article 43]
Provisions on Inclusion
* “Embracing multi-caste, multi-lingual, multi-cultural and diverse geographical specificities, by ending discriminations relating to class, caste, region, language, religion and gender discrimination including all forms of racial untouchability, in order to protect and promote unity in diversity, social and cultural solidarity, tolerance and harmonious attitudes, we also express our determination to create an egalitarian society on the basis of the principles of proportional inclusion and participation, to ensure equitable economy, prosperity and social justice,” (Preamble)
* “Women shall have the right to access and participate in all state structures and bodies on the basis of the principle of proportional inclusion.[Article 38(4)]
* “Dalit shall have the right to participate in all agencies of the state based on the principle of proportional inclusion. There shall be special legal provision of empowerment, representation, and participation of Dalit community for employment in other area also including the public service.” [Article 40(1)]
* “Socially backward women, Dalits, Adibasi, Adibasi Janajati, Madhesi, Tharu, minorities, persons with disability, marginalized, Muslim, backward classes, gender and sexual minorities, youths, peasants, workers, oppressed or citizens from backward regions, and economically poor Khas Arya shall have the right to participation in the state bodies on the basis of principle of inclusion.” [Article 42(1)]
* “It shall be the political objective of the State to strengthen a federal democratic republican system to ensure an atmosphere where democratic rights are exercised by acknowledging sovereignty, independence and integrity of the country to be of utmost importance; by protecting freedom, equality, property and all citizens through rule of law; by embracing the norms and values of fundamental rights and human rights, gender equality, proportional inclusion, participation and social justice; and by maintaining a just system in all spheres of national life in order to establish a government system aimed at public welfare, while maintaining relations between federal units on the basis of cooperation between them, and internalizing the principle of inclusion in the governance system on the basis of local autonomy and decentralization,” [Article 50(1)]
* “The President shall, on the recommendation of the Prime Minister, form a council of ministers consisting of members not exceeding twenty five in number from among the members of the Federal Parliament on the basis of the principle of inclusion.” [Article 76(9)]
* “The Provincial Head shall, on the recommendation of the Chief Minister, constitute from among the members of the Provincial Assembly the Provincial Council of Ministers on the basis of the principles of Inclusion and not exceeding more than twenty per cent of the total number of members of the Provincial Assembly, including the Chief Minister.” [Article 168(9)
* “There shall be a National Inclusion Commission in Nepal …” [Article 258(1)] The Commission is “to carry out research and studies for protecting rights and welfare of Khash Arya, backward community, persons with disability, elderly citizens, workers, peasants, marginalized and minority communities, people of Karnali region and economically disadvantaged people,…” [Article 259(1)]
* “The entry of women, Dalit, indigenous community, Khash Arya, Madhesi, Tharu, Muslim, people of backward class and backward region shall be ensured in Nepal Army, based on the principle of equality and principles of inclusion as provided for in the Federal law.” [Article 267(3)]
* “The President shall appoint ambassadors of Nepal and other emissaries for specified purposes based on the principle of inclusion.” [Article 282(1)]
* “Appointment to the constitutional organ and bodies shall be made based on the principles of inclusion.” [Article 283]
* “Positions of all federal governmental services shall be fulfilled through competitive examinations on the basis of the principle of open and proportional inclusion according to Federal law.” [Article 285(2)]
Inclusive Electoral System
Article 84, as stated above, provides that the House of Representatives, the upper house of the federal parliament, consists of 275 members. 165 members are to be elected through the first-past-the-post (FPTP) electoral system consisting of one member from each of the one hundred and sixty five electoral constituencies formed by dividing Nepal into 165 constituencies based on geography and population. Article 42 (i.e. the right to social justice) as a catch all provision requires that the 165 members are inclusive members, even though Article 84(1) does not explicitly mention it.
Out of 275, the next 110 members will be elected from proportional representation (PR) electoral system where voters will vote for parties, while treating the whole country as a single electoral constituency. Article 84(2) states that the Federal Law will require the contesting political parties to file candidacy for the election of the House of Representatives for proportional representation system through closed list of women, Dalit, Adibasi Janajati, Khas Arya, Madhesi, Tharu, Muslim, and backward regions. Balance in geography and province shall be considered for such candidacy. In the group of Khas Arya are included Chhetri, Brahmin, Thakuri and Sannyasi (Dasnami) community.
Article 84(8) mentions it categorically that women should account for at least one third of total members elected from each party in Federal Parliament. In case, one-third percentage of women are not elected while being elected under FTTP, the party that fails to ensure one-third representation shall have to elect at least one-third of total numbers as woman in the Federal Parliament while electing members under PR system.
Similarly, Article 176, which provides for formation of the Provincial Assembly, builds on the same provisions. Every Provincial Assembly will consist of the following number of members: (a) members equal to double the number of members to be elected through the FTTP election system to the House of Representatives from the concerned province, (b) the number of members to be elected through the PR election system equal to the number equivalent to the remaining forty per cent when the number of members maintained pursuant to above is regarded as sixty per cent. Electoral constituencies is to be maintained pursuant to Federal law on the basis of geography and population for the election of the FTTP members. Sixty per cent of the members of the Provincial Assembly will be elected through FTTP election system and forty per cent shall be elected through proportional representation election system. Here too the representation of women, Dalit, indigenous, indigenous nationalities, Khas Arya, Madhesi, Muslim, backward region and minorities community on the basis of geography and population in the nominations filed by the political parties for the election to be held for the Provincial Assembly through the proportional representation (PR) election system will be made on the basis of closed list in accordance with Federal law. While filing of candidacy by political party, representation of the persons with disability will also be made.
At least one third of the total number of members to be elected from each political party to the Provincial Assembly shall have to be women. In case at least one third of the candidates elected from a political party pursuant to FTTP election are not women, the political party shall have to make provision of electing at least one third women while electing members pursuant to PR system.
National Flag, Anthem and Symbols
The traditional triangular flag of Nepal remains the national flag under the new Constitution. Article 9 sets the song in Schedule 3 as the national anthem of Nepal. The Rhododendron Arboreum is the national flower, Crimson is the national color, the cow is the national animal and the Lophophorus is the national bird of Nepal.
* There are many other features too.
Article 5 of the Constitution has a provision on “national interest” for the first time in Nepal’s constitutional history. “Independence, sovereignty, territorial integrity, nationality, autonomy, self-respect, protection of rights and interests, and dignity of Nepali people, protection of boundaries, and economic progress and prosperity, shall be the fundamental subjects of Nepal’s national interest.” Clause (2) of this Article enables federal law to make acts and conducts against national interest as punishable by Federal law. This provision exists apart from Article 48 which specifies the following duties of Nepalese citizens: (a) protect nationality, sovereignty and integrity of Nepal by pledging allegiance to the nation, (b) abide by the Constitution and law, (c) compulsorily enlist when the state needs the service, protect and conserve public property.
According to Article 3, all the Nepali people “having multi-ethnic, multi-lingual, multi-religious, multi-cultural characteristics with common aspirations of people living in diverse geographical regions, and being committed to and united by a bond of allegiance to national independence, territorial integrity, national interest and prosperity of Nepal, … collectively constitute the nation.”
Shortcomings of the New Constitution
The new Constitution has introduced many changes in the erstwhile constitutional system of Nepal. Apart from federalism, which is a new feature in Nepal, it tries to make the state inclusive and the democratic system more participative than before. It tries to further consolidate peoples’ competitive multi-party democratic governance system, civil liberty, fundamental rights, human rights, adult franchise, periodic elections, complete press freedom and an independent, impartial and competent judiciary, and the concept of rule of law. The state embraces multi-ethnic, multi-lingual, multi-cultural and policies based on diverse geographical specifics. It ends discrimination relating to class, caste, region, language, religion and gender including all forms of racial untouchability, in order to protect and promote unity in diversity, social and cultural solidarity, tolerance and harmonious attitudes. Towards this end, it expresses determination to create an egalitarian society on the basis of the principles of proportional inclusion and participation. These are all are lofty principles. It is in its implementation that the process of change will depend. This is not a process that can be accomplished very quickly. There is a long way to go. However, some clear comments on the Constitution may be highlighted as hereunder:
* The necessity of reform in the institutions of political parties cannot be overlooked in Nepal’s situation. However, the Constitution does not have clear rules on financial transparency within political parties. It has not addressed the issue of campaign finance and corruption in generating it.
* Despite its importance, and hectic national discussions, the Constitution does not contain a provision on electoral threshold (as the minimum share of the vote which a political party requires to secure any representation). This means Nepal will continue to remain a country with multiplicity of insignificant political parties.
*It was possible to make many of the fundamental rights guaranteed by the Constitution immediately enforceable by working further on the rights that has been included in Part 3 of the Constitution. Article 47 states: “For the enforcement of the rights conferred in this Part, the State shall make legal provisions, as required, within three years of the commencement of this constitution.”
* It was not necessary to create the ethic group of ‘Khas Arya’ for the purpose of proportional inclusion. This group has been traditionally competitive and do not require state protection to this extent. * The concept of inclusion, and for that matter, the approach of how to ensure proper level of representation and participation of the deprived communities in the state structures, must be the basis of any system of proportional representation. There are five groups in the Nepalese society which need proportional inclusion: women, dalits, janjatis, madhesis and minorities. There was no need to create any other group at this stage. The concept of inclusion should work within these groups for the people who are deprived and less represented based on existing socio-political indicators. Article 176(6) regarding federal and provincial proportional elections have complicated the concept by creating many groups, and leaving the question of how inclusion would work in the given scenario unattended. It was possible to organize these provisions more efficiently – giving best reflection to the political compromises made by the leaders.
* Ideally, it would have been better to bring out the Constitution with the names and boundaries of the provinces already settled. The Federal Commission would in that case have only to work on the less serious issues including those involving special structures.
Problems of Interpretation
This Constitution may pose serious problems of interpretation to the organs of the state including the Supreme Court.
The Preamble, for example, sets as a purpose of the State to lay the bases for „socialism“ – what is meant by socialism will remain an issue for contradictory interpretation. In a western sense socialism means a State which establishes a social welfare-system whereas in the eastern European countries socialism meant the nationalization of the means of production, so that private persons could not be owner of such means.
Article 17 right to freedom is another case. The restrictions of the fundamental right provided for in this provision are quite broad. The principle of proportionality, i.e. the imposition of restrictions must be justified by the importance of their purpose – could have been considered as an option. There could be an abuse of the power to impose restrictions. The provision could be much shorter if one general restriction would be introduced applicable to all fundamental rights. This has been the approach in the Charter on Human Rights of the European Union, for example.
In Fundamental Rights, the problem of definition is bound to occur. Some examples could be cited here. In Article 20, which deals with the right to criminal justice, it is not clear why a citizen of an enemy State not under the protection. As far as he/she is a civilian he/she should enjoy the same protection as any other citizen. In Article 22, not only persons in detention should be protected against torture, but everyone is supposed to have this right. There must be no preventive detention under Article 23 even against citizens of enemy States as far as they are civilians. The cases when preventive detention may be imposed must be more specifically described in order to prevent any abuse.
Regarding the Article 25, which guarantees the right to property, a compensation is necessary in all cases of expropriation, not only when land is expropriated. The expropriation should be based on a law adopted by parliament.
Article 25, para. 4 is problematic, the protection of property in case of expropriation should serve these cases. There should be no exception from them State’s obligation to pay a compensation. Another question is the amount of the compensation. There is no common standard in the constitutional law of the States. It is not always required that the compensation must be at market-value.
Article 26, which ensures the right to religious freedom, para. 3, has its share of problem. According to international law freedom of religion includes the right to proselytize. In religions such as Christianity or Islam proselytism is a religious obligation. Therefore, to prohibit it – even if understandable with respect to peace in the society – would not be in line with the general notion of freedom of religion. Proselytism can be prohibited only in extreme cases when it leads to hatred in the society.
In the right to clean environment under Article 30, what will be the implication of this article i.e. in the case of the smog in Kathmandu? Has a person a right to compensation if he/she can prove that he/she suffered a damage?
There is a possibility of dispute in the matter of Article 42 right to social justice. How will this provision be implemented? Will it be a individual right for every member of the mentioned groups or does it mean that only the group as such must be represented.
On Article 48, among the duties the obligation to pay taxes according to the law should be mentioned.
Nepal has a tradition of maintaining a list of directive principles in the constitution. This tradition has been maintained by the new Constitution as well. The list has certainly frown further. Many new issues have been further inducted in the list – with or without new orientation. It seems doubtful for many critiques if it helps to include all these objectives in the constitution, specifically as they are not subject to court jurisdiction as in the case of rights falling under Fundamental Rights. In a comparative perspective there are not many constitutions with such a lengthy enumeration of the purposes of the State. They think they should be better the result of a political discussion than predetermined by the constitution.
The question of ‘federalization’ of Nepal has been a crucial issue. After long discussions the Constitution Assembly decided to adopt seven province model. They are not directly mentioned in the main part of the federal structure in the Constitution, but only in an annex. Taking into consideration that the territorial structure was a main point in the discussions on the constitution it would have been better to name the provinces directly in the Constitution in order to clearly express that they are now the constitutive elements of the State. As far as the boundaries of these provinces are still in question it would have been good to regulate the way how to delimitate them in the constitution.
Article 57 Para 6 deals with division of power under the federal set up. It reads: “While making law by Provincial Assembly, Village Council and Municipal Council pursuant to Clause (5), they shall have to make laws without being inconsistent to Federal law and if such laws formulated by Provincial legislature, Village Council and Municipal Council is inconsistent with the Federal law, such law shall, to the extent of its being inconsistent, be void.” The provision apparently provides for the nullity of normative acts of provinces and other inferior regional entities with normative acts of the Federation. However, one has to bear in mind that a federal law which is conflicting with the law of a province may be unconstitutional as far as it relates to an issue which falls under the competences of the provinces.
Again, the criteria which apply to the distribution of State income – including income from natural resources – should be laid down in more detail in Article 59 and Article 60. The distribution of the tax income should not be left with the government, otherwise the provinces will not have a real autonomy, but depend on the decisions of the center. It seems to be recommendable to establish limits for contracting debts. The sources of taxation – at least the most important such as income tax, corporation tax, value added tax – should be identified.
Keeping with the traditions, the new Constitution continues with the system of two sessions every year with Article 93. The issue, however, is why the Parliament should not be in session regularly. There are of course democratic systems where the Parliament is sitting only during specific periods (f.e. in France). However, today the tasks of a Parliament are so comprehensive that it seems to be more convenient to have it sitting all the time.
Article 96 talks more about prerogative than responsibility. This provision should not emphasize the right of the minister to participate in the sessions of the parliament, but the obligation to answer questions of the deputies whenever he/she is invited to do so by the parliament.
Proceedings under Article 98 shall not become invalid if a person participated which was not entitled to do so – however this should be construed in the sense that a participation in the voting makes the voting invalid, if the vote of this person was decisive. Otherwise, unauthorized persons could participate in the voting with the consequence that the vote is manipulated which makes it undemocratic.
In reference to Article 100, there should be the possibility to combine a vote of confidence with an important political vote, i.e. a bill or another decision. In this way the government could underline that a question put to vote is of such an importance that it will link its own existence to it.
The motion of no confidence is not clearly drafted in the Constitution: It should be provided that the motion is successful if a new prime-minister is elected. That will help stabilize the political system. Otherwise, opposition parties could form an alliance for toppling a government without proving able to elect a new one.
On Article 103, most surprisingly, there is no immunity for the deputies but only a protection for their speeches and votes in parliament. It is a good tradition to grant parliamentarians a further reaching protection against criminal prosecution, however always linked with the possibility of a waiver by the parliament. The immunity is not an individual right of the deputy, but exclusively serves the independence of the parliament as a constitutional organ.
Article 123 is very far-reaching giving the government the authority to spend money without specification.
It seems doubtful if a contingency fund (Article 124) is a good idea, because it contains money which may be spent without the parliament controlling it.
Article 128 Para 1 could be problematic. What does it mean that the Constitutional Court may interpret the constitution and the laws? Only case by case – insofar there might be no difference with other courts – or in an abstract way, i.e. independently from a case? This would give it quite a lot of power, especially if these abstract interpretations will be binding as provided by Article 128(4).
The Attorney General (Article 157) should not be appointed by the government in order to guarantee his/her independence. It is questionable if the Attorney General as the Chief Legal Adviser to the Government is best qualified to investigate human rights abuses which are normally committed by members of the executive.
Article 232 is a strange provision. The Federation may issue directives to the provinces in questions concerning the national interest. Does this competence include matters which fall under the competences of the provinces?
Similarly, Article 269 stands out different. What will be the consequence if a party does not prove to be democratically structured, especially under the perspective of art. 270? If there is no sanction for an undemocratic structure of a party, why does the requirement exist?
The holding of a referendum (Article 275) is not very well developed in the Constitution. As the referendum is an important means within the constitutional order there should be a more specific regulation in the constitution – concerning f.e. the quorum, the effects, the relationship to ordinary legislation; it should not be left to the ordinary law.
Opposition Remarks on the Constitution
While the Constitution was welcomed by the majority of the people of Nepal, of all segments of the national population, some ethnic Madhesi (plains based) parties with regional roots have not been happy with both the process of finalizing the Constitution and its final contents. There is a protest going on in the country.
The main comments of the Madhesi parties have been mainly attributed to the issue of delineation of provinces under the new Constitution, the provision on carving out constituencies on the basis of geography and population, representation of provinces both in the Lower House and Upper House of the federal parliament, the theme of proportional representation and certain issues related to new citizenship provisions. These parties want the entire Tarai region extending from the east to the west to be divided only into two provinces. The initial proposal, which has now been taken back, was to carve one state from Parsa to Saptari and another extending from Nawalparasi to Bardiya. Now we have a province from Parsa to Saptari. At that time, there were three disputed districts in the east and two in the west. Now, all the districts that lie to the west of Nawalparasi are disputed because they have been mixed with hill districts. In the east, Jhapa, Morang, Sunsari are also part of a province that includes the hills. They want to carve only two provinces in the plains.
Conclusion
With the new Constitution, the over seven-year-long arduous task of constitution making has come to an end. As the constitution making project was also the major part of the peace process in Nepal, the latest progress has taken the process toward conclusion. As such, it also now provides the basis for new politics in the country. Obviously, the process of further reform of the Constitution will be part of this politics.
Salient Features of the Constitution of Nepal 2015 (2072)
The Constitution of Nepal 2015 (2072) is the seventh constitution of Nepal. This is the first Constitution made and adopted by the Constituent Assembly (CA) which was specifically elected for this purpose. It was proclaimed by the President of Nepal on September 20, 2015 (Asoj 3, 2072).
The Interim Constitution of Nepal 2007 (2063, which provisioned designs for the election of a Constituent Assembly, enabled it to write Nepal’s permanent constitution. The new constitution was to be promulgated by May 28, 2010 by the elected house. Due to disagreements between political parties on several issues, among other things, the house was not able to do the assigned job. This led to amendment of the term of the house again and again. On May 25, 2011, eventually, the Supreme Court of Nepal ruled that the repeated extension of the Interim Constitution was not right. It reasoned that an elected House is not supposed to extend its term again and again going beyond the reasonable electoral mandate.
On May 28, 2012, the Constituent Assembly was dissolved, after it failed to finish the constitution drafting process despite repeated extensions, ending four years of constitution drafting and leaving the country in a constitutional vacuum. New elections were held on November 19, 2013 to elect the Constituent Assembly – II on a special arrangement agreed by the political parties and approved by the President. The political leaders then 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 provinces to be carved, the constitution could not be finalized and promulgated in time. Only now did it become possible to finalize and adopt the Constitution.
A total of 507 votes were casted in favour of the Constitution Bill while 25 votes went against it. Major three political parties of Nepal – Nepali Congress (NC), CPN (UML), and UCPN (Maoist) – and a majority of fringe parties voted in support of the Bill in a meeting of the CA. Those voting against the Bill were members of Rastriya Prajatantra Party-Nepal (RPP-N). However, some Terai based parties boycotted the constitution finalization and adoption process. Of the total 598 CA members, 532 were present at the meeting.
President Ram Baran Yadav announced the promulgation of Constitution of Nepal, 2015 (2072) at a special meeting of the Constituent Assembly on September 20, 2015. The President announced the commencement of the new constitution endorsed by the CA and as authenticated by CA Chairperson Subas Chandra Nembang.
To begin with, the Preamble of the new Constitution has the following highlights:
(1) The Constitution has been adopted and proclaimed in the name of “We, the people of Nepal, in exercise of the sovereign powers inherent in us.”
(2) The people of Nepal has the sovereign power and the right to autonomy and self-rule, by maintaining Nepal’s independence, sovereignty, geographical integrity, national unity, freedom and dignity.
(3) It recalls historical peoples movements and armed struggles and the sacrifice made by people for national interest, democracy, progressive change.
(4) It recognizes the martyrs, the disappeared citizens and the victims.
(5) It declares ending all forms of discriminations and oppression created by the feudal, autocratic, centralized and unitary system of government in the past.
(6) It notes its commitment to Nepal’s multiethnic, multilingual, multicultural and diverse geographical specificities and end of discriminations relating to class, ethnicity, region, language, religion and gender discrimination including all forms of racial untouchability, in order to protect and promote unity in diversity, social and cultural solidarity, tolerance and harmonious attitudes.
(7) It also expresses the determination to create an egalitarian society on the basis of the principles of proportional inclusion and participation, to ensure equitable economy, prosperity and social justice.
(8) There is a commitment to create the bases of socialism by adopting democratic norms and values, including peoples’competitive multi-party democratic governance system, civil liberty, fundamental rights, human rights, adult franchise, periodic elections, complete press freedom and an independent, impartial and competent judiciary, and the concept of rule of law.
The new Constitution has 308 Articles, nine Annexes and Preamble. It builds in the past and has many new and progressive provisions. It has become somehow a lengthy document. This length owes to different reasons. The first and foremost reason is obviously political. Due to the distrusts among the parties, things have been unnecessarily elaborated. Many matters have been dealt in the Constitution extensively. They should better have been put into an ordinary law. Therefore, the constitution does not seem to be the Basic Law, which usually only sketch the basic principles of the statehood. The Constitution at the same time includes a law on nationality, a law on municipality and to a certain extent even a law on the civil service. It would have been better if the constitution had been limited to regulate the principles leaving the details for the ordinary legislation, because it would be easier to reform such a legislation if necessary. The details of the legislation on nationality do not require a constitutional guarantee.All these features need careful analysis.
This Constitution is not only the constitution of the Federation but at the same time the constitution of all provinces and even an important statute for the municipalities. One may question if under the flag of a decentralization it had not been better, if the constitution had not just established some basic principles for the internal structure of the provinces – leaving the more detailed shaping of the statutes to the provinces, thereby strengthening their autonomy or to a federal law which could be adapted to the requirements.
The objective of this article is only to highlight the salient features of the new Constitution without going into critical analysis of its pros and cons:
* Article 1 states that this Constitution is the fundamental law of Nepal. All laws inconsistent with this constitution shall, to the extent of such inconsistency, be void. The inconsistency will be declared by the Supreme Court under Article 133. The Constitution also states that it shall be the duty of every person to uphold this Constitution.
* Nepal is defined by the new Constitution as “an independent, indivisible, sovereign, secular, inclusive democratic, socialism-oriented federal democratic republican state.” [Article 4] The explanation attached to this provision makes clear that the word ‘secular’ as stated above “means protection of religion and culture being practiced since ancient times and religious and cultural freedom.”
* The sovereignty and state authority of Nepal are vested in Nepali people. Their exercise shall be as provided for in this Constitution. [Article 2]
* Article 11 deals with major citizenship provisions. In terms of acquisition of citizenship by decent, one needs to have a Nepalese father or mother at the time of his/her birth. Any person whose father or mother was a citizen of Nepal at the birth of such a person is thus entitled to Nepalese citizenship by descent. 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 majority. [Clauses (1), (2) and (3) of Article 11] Every child found in Nepal whose both parents are not known shall, until the mother or father is traced, be deemed a citizen of Nepal by descent. [Clause (4)] A person born in Nepal to a Nepali citizen mother and having his/her domicile in Nepal but whose father is not known, shall be conferred the Nepali citizenship by descent. In case his/her father is found to be a foreigner later, the citizenship of such a person shall be converted to naturalized citizenship according to the Federal law. [Clause (5)] 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. [Clause (6)] 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. If his/her father and mother both are the citizens of Nepal at the time of acquisition of the citizenship, he/she, if born in Nepal, may acquire citizenship by descent. [Clause 97)] The Government of Nepal may confer naturalized citizenship to a foreigner according to federal law. It may also confer honorary citizenship according to such law.
* The new Constitution provides a long list of fundamental rights, including economic, social and cultural rights, most important for the Nepalese people at this stage. [Part III] There is a provision for affirmative action for historically prejudiced or disadvantaged communities among others. [Article 18(3)] The right to inclusion and participation in the state structures is also there that applies to all communities in the country. [Article 42, for example] The rights of the Women, Dalits, indigenous people and minorities have also been enlisted through several provisions. These rights can be claimed at the provincial high court and district courts as part of the right to remedy.
* Further, the new Constitution creates specific independent constitutional commissions (such as the Women Commission, Dalit Commission, Janajati Commission, Madhesi Commission, Tharu Commission and Muslim Commission). They will exist with the National Human Rights Commission. These commissions, which are created outside the framework of Fundamental Rights, and in different chapters, have a mandate to recommend changes in the laws, policies, and practices of areas that discriminate against or deny rights to their respective communities. They submit annual reports to the parliament. These provisions are expected to make the state inclusionary for major groups and communities in the country.
* Furthermore, the new constitution expresses the determination of the state to build an equitable society on the basis of the principle of proportional inclusion and participation, by ensuring economic equality, prosperity and social justice.
* The Constitution also lays down the Directive Principles, Policies and Responsibilities of the State as guidelines for the governance of the State. While the policies recommended by the above thematic commissions are based on modern requirements, this Chapter deals with long term principles, policies and responsibilities. It is the responsibility of the state to mobilize required resources and means for their implementation [Article 49]. Even though the citizens cannot claim these principles and policies as a matter of right, politically, Article 53 requires the government to produce an annual report regarding its works and achievements made in the implementation of these principles, policies and responsibilities. The President is to make arrangements to send such reports to the federal parliament through the Prime Minister. Again, Article 54 requires that a committee will be formed in the Parliament to monitor the progress in this regard.
* In terms of religion, the country will remain a secular state. It will remain dedicated to respecting ancient traditions whilst ensuring freedom of Nepalese citizens to choose any religion.
* Nepali language remains as the official language of Nepal. [Article 6] All the mother tongues spoken in Nepal shall be the national language. In addition to Nepali language, a province shall select one or more national language that is spoken by majority of people in that province as the language of official business, as provided for by the provincial law. Other matters concerning language shall be as decided by the Government of Nepal on the recommendation of the Language Commission to be established by the federal government within a year. [Article 7] This Commission has been empowered to determine the basis for a language to acquire status of official language and forward a recommendation to the Government. It is also to forward a recommendation to the government regarding the measures to be adopted for the protection, promotion and development of languages. [Article 287]
* The Constitution restructures Nepal as a federal country with three layers of federalism. [Part 5] The erstwhile unitary structure of the country has been replaced by seven federal provinces with delineation of stipulated legislative powers for the central, provincial, and local bodies. There is an elaborate federal scheme in the Constitution. [Parts 5 – 20] It provides for separate list of powers of the federal layers. [Schedules 5-9] Similarly, legislative and financial procedures of each level has also been elaborated by the Constitution. [Parts 14-16 and 18-19] A National Natural Resources and Fiscal Commission has been created to determine extensive grounds and measures, regarding the distribution of revenue from the federal consolidated fund to the federal, provincial and local level governments according to the constitution and law. [Articles 250-251] The demarcation of the provincial borders will be finalized by the Federal Commission and the provinces will be named through two-third majority in the provincial parliament. [Article 295]
* To achieve the federal objective, Part 5 of the Constitution, sets out some key principles. Firstly, the State powers of Nepal shall be used by the three main levels of structure: federal, provincial and local, in accordance with this constitution. Secondly, the power of the each level of the structure has been set out in the given schedules and shall be exercised in accordance with this Constitution and the federal law. Thirdly, the Constitution also sets out concurrent/shared power of the federation and the province, and federation province and the local level. Fourth, Article 58 states that powers relating any subject that are not mentioned in the list of powers of the federation, province or the local level entity, or in the concurrent/shared powers of federation and the province, or not stated in this Constitution, shall rest with the federation as residual powers. Fifth, the Constitution also lays down norms for use of fiscal power and distribution of sources of revenue. Finally, the federation may make basic laws regarding necessary policies and criteria related to the subjects included in the list of concurrent/shared power and in other areas of fiscal authority, which may also be implemented in provinces.
* Nepal continues to be a parliamentary system at the federal and provincial levels. Article 74 states that “the form of governance of Nepal shall be a multi-party, competitive, federal democratic republican parliamentary system based on plurality.” At the federal level, it will have a bi-cameral parliamentary form of government with a president elected through the Legislative-Parliament and the National Assembly, as well as the provincial legislative body. The prime minister will be elected by the Legislative-Parliament based on a majority. There are three significant departures from the erstwhile Westminster system. First, the Prime Minister cannot dissolve the parliament and, secondly, there can be no motion for vote of no confidence against the Prime Minister for two years subsequent to his/her election. Thirdly, any no-confidence motion moved for the removal of the Prime Minister in the House of Representatives must also come with a proposal for the new prime minister who will immediately replace him/her. Article 105(5) thus states that “the name of the member proposed for Prime Minister should be mentioned when tabling the no-confidence motion under clause (4).”
* The executive powers of the country shall vest in the Council of Ministers while the President would be constitutional head of the country. Article 66 limits the power of the President to three important categories: (1) President shall exercise his/her rights and duties as provided for by this constitution and federal laws; (2) While exercising rights under clause (1), the President shall perform all the works with the consent and recommendation of the Council of Ministers, except in case where the works have to be performed expressly under the recommendation of some agency or official. Such consent and recommendation shall be made to the President through the Prime Minister; and (3) the decision or order made in the name of the President as provided for by clause (2) and the certification of credentials in that regard, shall be done as specified by federal law. As a constitutional head, the President is to “promote national unity of Nepal.” Similarly, the Constitution states that “compliance and protection of the Constitution shall be the main duties of the President.”
* In terms of judiciary, the idea of constitutional court that used to be a hot issue has been withdrawn. Instead, the Supreme Court will specialize on constitutional issues by creating provision for a constitutional bench. Five judges will be assigned to this bench. Further, Constitutional Council will nominate the chief justice and head and members of the constitutional commissions. The Judicial Council will nominate the judges of the Supreme, High, and District Courts; the judicial system is an integrated one. Apart from Supreme Court, Nepal will have High Court in each province and District Courts as necessary.
* In terms of the electoral system, a mixed system has been adopted comprising of the FPTP (First Past the Post) and PR (Proportional Representation). The House of Representatives in the federal parliament will consist of 275 members: 165 elected through FPTP and 110 elected through PR. Similarly, the National Assembly will consist of 59 members: 56 elected through federal provinces and 3 nominated by the President (on the advise of the government).
* In the federal provinces, the legislature will be unicameral. There will be a total of 550 members in the legislatures of the 7 states. The Chief Minister of the state will be elected by the provincial legislature whereas the head of the province will be appointed by the President.
* The new Constitution continues with the provisions on registration and operation of political Parties [Article 269-72]. They are required to register their names under the Election Commission in accordance with the procedure determined by law. The constitution and rules of the political party should be democratic. There should be the provision, in the constitution of the political party, of the election of the office bearers in the federal and provincial levels, at least once in five years. There should be the provision of proportional participation so as to reflect the diversity of Nepal, in the executive committees at various levels of the party.
* In case a grave emergency arises in relation to the sovereignty or territorial integrity of Nepal or the security of any part thereof, whether by war, external attack, armed revolt, extreme economic breakdown, natural calamity or epidemic outbreak, the President may, by Proclamation or Order, declare a state of emergency to be enforced in Nepal or any specified part thereof. [Article 273] In case a grave situation arises, whether by natural calamity or epidemic outbreak, in any province, the concerned province may request the Government of Nepal to declare, by Proclamation or Order, a state of emergency to be enforced in the province or any specified area of the province. The Proclamation or the Order issued as above is to be presented before the meetings of both houses of federal legislature for approval within a month from the date of its issuance. If the Proclamation or the Order presented for the approval is approved by a two-third majorities of the total members present at the meetings of both the houses of federal legislature, such Proclamation or Order shall continue in force for a period of three months from the date of Order or Proclamation. If the Proclamation or Order presented before both houses of federal legislature is not approved, such Proclamation or Order shall, ipso facto, be invalid. The proposal to extend the period of the Proclamation or Order of state of emergency for another period, not exceeding for three months, may be forwarded in the federal legislature, stating that the circumstances still exist. If the resolution for Proclamation or Order of state of emergency for another period is passed by a majority of the two third members present of both the houses of the federal legislature, the state of emergency for the said period shall continue to exist. In case of dissolution of House of Representatives, the power of Federal Parliament shall be exercised by National Assembly. While issuing the Proclamation or Order of state of emergency, the President may suspend the fundamental rights provided in Part 3 so long as the Proclamation or Order is in operation. However, some important fundamental rights and the right to constitutional remedy and right to habeas corpus related to Article 46 shall not be suspended. If, during the continuation of a Proclamation or Order pursuant to this article, any damage is inflicted upon any person by an act of any official done in contravention of law or in bad faith, the affected person may, within three months from the date of termination of the Proclamation or Order, file a petition for compensation for said damage. In case the petition is filed, the court may arrange for the appropriate compensation, or punish the guilty according to the Federal law. The President may, at any time during its continuance, revoke the proclamation or order relating to state of emergency.
* Article 274 enables amendment of the Constitution except in contravention with self-rule of Nepal, sovereignty, territorial integrity and sovereignty vested in people. An amendment proposal may be presented to either house of the federal legislature. The bill so presented shall be published for the perusal of the general public within 30 days of presentation of the bill in either house of the federal legislature. In case the bill proposed as such is related with altering the boundaries of a province and falls under the right of provinces as mentioned in Schedule (6), such a bill shall have to be forwarded to the respective Provincial Assembly to garner consensus, within thirty days of the time the bill is presented in the federal legislature. In that case, the Provincial Assembly shall have to get the consensus bill endorsed or rejected through majority of the Provincial Assembly and forward the information regarding the same to the federal legislature, within three months. In case the Provincial Assembly is not in place, the bill shall have to be endorsed or rejected within three months from the time the assembly comes into force and forward the information to the federal legislature. If the Provincial Assembly, within the time frame informs the federal legislature that the bill has been rejected by the majority, the bill shall considered to be rejected. If, within the time stipulated the majority of provincial assemblies inform the Federal Parliament of the rejection of the bill, such bill shall be void. In case the bills that do not require consent from Provincial Assembly or the one that has garnered consensus from Provincial Assembly as mentioned under clause (5), shall require endorsement by the two-thirds majorities of the existing members in the both houses of federal legislature. The bill so approved shall be forwarded to the President for approval. The President shall have to approve the bills under within fifteen days from the day of reception of the bill. The constitution stands amended from the date of such approval.
‘Key Features’ of the Fundamental Rights
* No Nepali citizen shall be denied the right to acquire citizenship. There shall be a provision of single federal citizenship with provincial identity in Nepal. [Article 10: Part 2 of the Constitution]
* “… nothing shall be deemed to bar the making of special provisions by law for the protection, empowerment or advancement of the women lagging behind socially and culturally, Dalits, Adibasi Janajati, Madhesi, Tharus, Muslims, oppressed class, backward communities, minorities, marginalized groups, peasants, workers, youths, children, elderly citizens, gender and sexual minorities, persons with disabilities, persons in a state of pregnancy, incapacitated and the helpless persons, and of the citizens who belong to backward regions and financially deprived citizens including the Khas Arya.” [Proviso to Article 18(3)]
* “Right against untouchability and discrimination: (1) No person shall be treated with any kind of untouchability or discrimination in any private or public place on grounds of caste, ethnicity, origin, community, occupation, or physical condition. (2) No person belonging to a particular caste or ethnicity shall be prevented from buying an object or getting services or facilities in the process of production of such objects or in the distribution or delivery of services, or no such objects shall be sold to, or facilities or services distributed or delivered to persons belonging to a particular caste or ethnicity only. (3) Racial discriminations shall not be encouraged in any way, or there shall not be any behavioral attitude to exhibit high or low status on grounds of a particular caste, ethnicity or community, or physical condition of a person, or there shall not be any behavioral attitude that justifies social discrimination based on caste, ethnicity, or untouchability, or encouragement for the propagation of attitudes based on caste superiority and untouchability, or hatred. (4) There shall not be any racial discrimination in the workplace by indulging or not indulging in untouchability. (5) All forms of untouchability or discrimination contrary to this provision shall be punishable by law as a serious social crime, and the victim of such an act shall have the right to compensation as provided for by law.” [Aricle 24]
* “Right to language and culture: (1) Each person and community shall have the right to use their language. (2) Every person and community shall have the right to participate in the cultural life of its community. (3) Each community living in Nepal shall have the right to preserve and promote its language, script, culture, cultural civilization and heritage.” [Article 32]
* “Right of women: (1) Every woman shall have equal right to lineage without any gender discriminations. (2) Every woman shall have the right relating to safe motherhood and reproductive health.(3) There shall not be any physical, mental, sexual or psychological or any other kind of violence against women, or any kind of oppression based on religious, social and cultural tradition, and other practices. Such an act shall be punishable by law and the victim shall have the right to be compensation as provided for in law. (4) Women shall have the right to access participate in all state structures and bodies on the basis of the principle of proportional inclusion. (5) Women shall have the right to special opportunity in the spheres of education, health, employment and social security on the basis of positive discrimination. (6) Both the spouses shall have equal rights in property and family affairs.” [Article 38]
* “Right of Dalits: (1) Dalit shall have the right to participate in all agencies of the state based on the principle of proportional inclusion. There shall be special legal provision of empowerment, representation, and participation of Dalit community for employment in other area also including the public service. (2) Provisions of free education with scholarships shall be made for Dalit students from the primary to higher level of education as provided for in law. Special provision shall be made in law for Dalits to pursue higher education in technical and professional subjects. (3) In order to provide health care and social security to Dalit community, special arrangements shall be made in accordance with law.(4) Dalit community shall have the right to use, preserve and develop their traditional occupation, knowledge, skill and technology. The State shall give priority to modern profession of Dalits in relation to their traditional occupation, by providing them with necessary skill and resources. (5) The State shall, as per the law, provide land to landless Dalits for one time. (6) The State shall, as per the law, make housing arrangements for Dalits who do not have shelter of their own. (7) The facilities provided to the Dalit community according to this Article, shall have to be justly distributed to Dalit women and men and all the Dalit communities living in different parts of the country, ensuring that all Dalits receive the facilities proportionally.” [Article 40]
* “Right to social justice: (1) Socially backward women, Dalits, Adibasi, Adibasi Janajati, Madhesi, Tharu, minorities, persons with disability, marginalized, Muslim, backward classes, gender and sexual minorities, youths, peasants, workers, oppressed or citizens from backward regions, and economically poor Khas Arya shall have the right to participation in the state bodies on the basis of principle of inclusion. (2) Citizens who are economically very poor and communities on the verge of extinction, shall have the right to special opportunity and facilities in the areas of education, health, housing, employment, food and social security, for their protection, progress, empowerment and development. (3) People with physical impairment shall have the right to a dignified way of life and equal access to social services and facilities, along with their diversity identity. (4) Each peasant shall have the right to access to land as provided for in law for agricultural purposes, along with the right to choose and preserve traditionally adopted and used endemic seeds and agricultural species. (5) The families of martyrs who sacrificed their lives in the people’s movements, armed conflicts and revolutions for a democratic progressive change in Nepal, the families of those who were disappeared, persons who fought for democracy, victims of conflict and the displaced, persons who were physically maimed, the wounded and the victims, shall have the right with priority, as provided for by law, to education, health, employment, housing and social security, with justice and appropriate respect.” [Article 42]
* “Right to social security: Economically poor, physically incapacitated and helpless person, helpless single women, persons with physical impairment, children, persons who cannot look after themselves and the citizens who belong to communities that are on the verge of extinction, shall have the right to social security as provided for by law.” [Article 43]
Provisions on Inclusion
* “Embracing multi-caste, multi-lingual, multi-cultural and diverse geographical specificities, by ending discriminations relating to class, caste, region, language, religion and gender discrimination including all forms of racial untouchability, in order to protect and promote unity in diversity, social and cultural solidarity, tolerance and harmonious attitudes, we also express our determination to create an egalitarian society on the basis of the principles of proportional inclusion and participation, to ensure equitable economy, prosperity and social justice,” (Preamble)
* “Women shall have the right to access and participate in all state structures and bodies on the basis of the principle of proportional inclusion.[Article 38(4)]
* “Dalit shall have the right to participate in all agencies of the state based on the principle of proportional inclusion. There shall be special legal provision of empowerment, representation, and participation of Dalit community for employment in other area also including the public service.” [Article 40(1)]
* “Socially backward women, Dalits, Adibasi, Adibasi Janajati, Madhesi, Tharu, minorities, persons with disability, marginalized, Muslim, backward classes, gender and sexual minorities, youths, peasants, workers, oppressed or citizens from backward regions, and economically poor Khas Arya shall have the right to participation in the state bodies on the basis of principle of inclusion.” [Article 42(1)]
* “It shall be the political objective of the State to strengthen a federal democratic republican system to ensure an atmosphere where democratic rights are exercised by acknowledging sovereignty, independence and integrity of the country to be of utmost importance; by protecting freedom, equality, property and all citizens through rule of law; by embracing the norms and values of fundamental rights and human rights, gender equality, proportional inclusion, participation and social justice; and by maintaining a just system in all spheres of national life in order to establish a government system aimed at public welfare, while maintaining relations between federal units on the basis of cooperation between them, and internalizing the principle of inclusion in the governance system on the basis of local autonomy and decentralization,” [Article 50(1)]
* “The President shall, on the recommendation of the Prime Minister, form a council of ministers consisting of members not exceeding twenty five in number from among the members of the Federal Parliament on the basis of the principle of inclusion.” [Article 76(9)]
* “The Provincial Head shall, on the recommendation of the Chief Minister, constitute from among the members of the Provincial Assembly the Provincial Council of Ministers on the basis of the principles of Inclusion and not exceeding more than twenty per cent of the total number of members of the Provincial Assembly, including the Chief Minister.” [Article 168(9)
* “There shall be a National Inclusion Commission in Nepal …” [Article 258(1)] The Commission is “to carry out research and studies for protecting rights and welfare of Khash Arya, backward community, persons with disability, elderly citizens, workers, peasants, marginalized and minority communities, people of Karnali region and economically disadvantaged people,…” [Article 259(1)]
* “The entry of women, Dalit, indigenous community, Khash Arya, Madhesi, Tharu, Muslim, people of backward class and backward region shall be ensured in Nepal Army, based on the principle of equality and principles of inclusion as provided for in the Federal law.” [Article 267(3)]
* “The President shall appoint ambassadors of Nepal and other emissaries for specified purposes based on the principle of inclusion.” [Article 282(1)]
* “Appointment to the constitutional organ and bodies shall be made based on the principles of inclusion.” [Article 283]
* “Positions of all federal governmental services shall be fulfilled through competitive examinations on the basis of the principle of open and proportional inclusion according to Federal law.” [Article 285(2)]
Inclusive Electoral System
Article 84, as stated above, provides that the House of Representatives, the upper house of the federal parliament, consists of 275 members. 165 members are to be elected through the first-past-the-post (FPTP) electoral system consisting of one member from each of the one hundred and sixty five electoral constituencies formed by dividing Nepal into 165 constituencies based on geography and population. Article 42 (i.e. the right to social justice) as a catch all provision requires that the 165 members are inclusive members, even though Article 84(1) does not explicitly mention it.
Out of 275, the next 110 members will be elected from proportional representation (PR) electoral system where voters will vote for parties, while treating the whole country as a single electoral constituency. Article 84(2) states that the Federal Law will require the contesting political parties to file candidacy for the election of the House of Representatives for proportional representation system through closed list of women, Dalit, Adibasi Janajati, Khas Arya, Madhesi, Tharu, Muslim, and backward regions. Balance in geography and province shall be considered for such candidacy. In the group of Khas Arya are included Chhetri, Brahmin, Thakuri and Sannyasi (Dasnami) community.
Article 84(8) mentions it categorically that women should account for at least one third of total members elected from each party in Federal Parliament. In case, one-third percentage of women are not elected while being elected under FTTP, the party that fails to ensure one-third representation shall have to elect at least one-third of total numbers as woman in the Federal Parliament while electing members under PR system.
Similarly, Article 176, which provides for formation of the Provincial Assembly, builds on the same provisions. Every Provincial Assembly will consist of the following number of members: (a) members equal to double the number of members to be elected through the FTTP election system to the House of Representatives from the concerned province, (b) the number of members to be elected through the PR election system equal to the number equivalent to the remaining forty per cent when the number of members maintained pursuant to above is regarded as sixty per cent. Electoral constituencies is to be maintained pursuant to Federal law on the basis of geography and population for the election of the FTTP members. Sixty per cent of the members of the Provincial Assembly will be elected through FTTP election system and forty per cent shall be elected through proportional representation election system. Here too the representation of women, Dalit, indigenous, indigenous nationalities, Khas Arya, Madhesi, Muslim, backward region and minorities community on the basis of geography and population in the nominations filed by the political parties for the election to be held for the Provincial Assembly through the proportional representation (PR) election system will be made on the basis of closed list in accordance with Federal law. While filing of candidacy by political party, representation of the persons with disability will also be made.
At least one third of the total number of members to be elected from each political party to the Provincial Assembly shall have to be women. In case at least one third of the candidates elected from a political party pursuant to FTTP election are not women, the political party shall have to make provision of electing at least one third women while electing members pursuant to PR system.
National Flag, Anthem and Symbols
The traditional triangular flag of Nepal remains the national flag under the new Constitution. Article 9 sets the song in Schedule 3 as the national anthem of Nepal. The Rhododendron Arboreum is the national flower, Crimson is the national color, the cow is the national animal and the Lophophorus is the national bird of Nepal.
* There are many other features too.
Article 5 of the Constitution has a provision on “national interest” for the first time in Nepal’s constitutional history. “Independence, sovereignty, territorial integrity, nationality, autonomy, self-respect, protection of rights and interests, and dignity of Nepali people, protection of boundaries, and economic progress and prosperity, shall be the fundamental subjects of Nepal’s national interest.” Clause (2) of this Article enables federal law to make acts and conducts against national interest as punishable by Federal law. This provision exists apart from Article 48 which specifies the following duties of Nepalese citizens: (a) protect nationality, sovereignty and integrity of Nepal by pledging allegiance to the nation, (b) abide by the Constitution and law, (c) compulsorily enlist when the state needs the service, protect and conserve public property.
According to Article 3, all the Nepali people “having multi-ethnic, multi-lingual, multi-religious, multi-cultural characteristics with common aspirations of people living in diverse geographical regions, and being committed to and united by a bond of allegiance to national independence, territorial integrity, national interest and prosperity of Nepal, … collectively constitute the nation.”
Shortcomings of the New Constitution
The new Constitution has introduced many changes in the erstwhile constitutional system of Nepal. Apart from federalism, which is a new feature in Nepal, it tries to make the state inclusive and the democratic system more participative than before. It tries to further consolidate peoples’ competitive multi-party democratic governance system, civil liberty, fundamental rights, human rights, adult franchise, periodic elections, complete press freedom and an independent, impartial and competent judiciary, and the concept of rule of law. The state embraces multi-ethnic, multi-lingual, multi-cultural and policies based on diverse geographical specifics. It ends discrimination relating to class, caste, region, language, religion and gender including all forms of racial untouchability, in order to protect and promote unity in diversity, social and cultural solidarity, tolerance and harmonious attitudes. Towards this end, it expresses determination to create an egalitarian society on the basis of the principles of proportional inclusion and participation. These are all are lofty principles. It is in its implementation that the process of change will depend. This is not a process that can be accomplished very quickly. There is a long way to go. However, some clear comments on the Constitution may be highlighted as hereunder:
* The necessity of reform in the institutions of political parties cannot be overlooked in Nepal’s situation. However, the Constitution does not have clear rules on financial transparency within political parties. It has not addressed the issue of campaign finance and corruption in generating it.
* Despite its importance, and hectic national discussions, the Constitution does not contain a provision on electoral threshold (as the minimum share of the vote which a political party requires to secure any representation). This means Nepal will continue to remain a country with multiplicity of insignificant political parties.
*It was possible to make many of the fundamental rights guaranteed by the Constitution immediately enforceable by working further on the rights that has been included in Part 3 of the Constitution. Article 47 states: “For the enforcement of the rights conferred in this Part, the State shall make legal provisions, as required, within three years of the commencement of this constitution.”
* It was not necessary to create the ethic group of ‘Khas Arya’ for the purpose of proportional inclusion. This group has been traditionally competitive and do not require state protection to this extent. * The concept of inclusion, and for that matter, the approach of how to ensure proper level of representation and participation of the deprived communities in the state structures, must be the basis of any system of proportional representation. There are five groups in the Nepalese society which need proportional inclusion: women, dalits, janjatis, madhesis and minorities. There was no need to create any other group at this stage. The concept of inclusion should work within these groups for the people who are deprived and less represented based on existing socio-political indicators. Article 176(6) regarding federal and provincial proportional elections have complicated the concept by creating many groups, and leaving the question of how inclusion would work in the given scenario unattended. It was possible to organize these provisions more efficiently – giving best reflection to the political compromises made by the leaders.
* Ideally, it would have been better to bring out the Constitution with the names and boundaries of the provinces already settled. The Federal Commission would in that case have only to work on the less serious issues including those involving special structures.
Problems of Interpretation
This Constitution may pose serious problems of interpretation to the organs of the state including the Supreme Court.
The Preamble, for example, sets as a purpose of the State to lay the bases for „socialism“ – what is meant by socialism will remain an issue for contradictory interpretation. In a western sense socialism means a State which establishes a social welfare-system whereas in the eastern European countries socialism meant the nationalization of the means of production, so that private persons could not be owner of such means.
Article 17 right to freedom is another case. The restrictions of the fundamental right provided for in this provision are quite broad. The principle of proportionality, i.e. the imposition of restrictions must be justified by the importance of their purpose – could have been considered as an option. There could be an abuse of the power to impose restrictions. The provision could be much shorter if one general restriction would be introduced applicable to all fundamental rights. This has been the approach in the Charter on Human Rights of the European Union, for example.
In Fundamental Rights, the problem of definition is bound to occur. Some examples could be cited here. In Article 20, which deals with the right to criminal justice, it is not clear why a citizen of an enemy State not under the protection. As far as he/she is a civilian he/she should enjoy the same protection as any other citizen. In Article 22, not only persons in detention should be protected against torture, but everyone is supposed to have this right. There must be no preventive detention under Article 23 even against citizens of enemy States as far as they are civilians. The cases when preventive detention may be imposed must be more specifically described in order to prevent any abuse.
Regarding the Article 25, which guarantees the right to property, a compensation is necessary in all cases of expropriation, not only when land is expropriated. The expropriation should be based on a law adopted by parliament.
Article 25, para. 4 is problematic, the protection of property in case of expropriation should serve these cases. There should be no exception from them State’s obligation to pay a compensation. Another question is the amount of the compensation. There is no common standard in the constitutional law of the States. It is not always required that the compensation must be at market-value.
Article 26, which ensures the right to religious freedom, para. 3, has its share of problem. According to international law freedom of religion includes the right to proselytize. In religions such as Christianity or Islam proselytism is a religious obligation. Therefore, to prohibit it – even if understandable with respect to peace in the society – would not be in line with the general notion of freedom of religion. Proselytism can be prohibited only in extreme cases when it leads to hatred in the society.
In the right to clean environment under Article 30, what will be the implication of this article i.e. in the case of the smog in Kathmandu? Has a person a right to compensation if he/she can prove that he/she suffered a damage?
There is a possibility of dispute in the matter of Article 42 right to social justice. How will this provision be implemented? Will it be a individual right for every member of the mentioned groups or does it mean that only the group as such must be represented.
On Article 48, among the duties the obligation to pay taxes according to the law should be mentioned.
Nepal has a tradition of maintaining a list of directive principles in the constitution. This tradition has been maintained by the new Constitution as well. The list has certainly frown further. Many new issues have been further inducted in the list – with or without new orientation. It seems doubtful for many critiques if it helps to include all these objectives in the constitution, specifically as they are not subject to court jurisdiction as in the case of rights falling under Fundamental Rights. In a comparative perspective there are not many constitutions with such a lengthy enumeration of the purposes of the State. They think they should be better the result of a political discussion than predetermined by the constitution.
The question of ‘federalization’ of Nepal has been a crucial issue. After long discussions the Constitution Assembly decided to adopt seven province model. They are not directly mentioned in the main part of the federal structure in the Constitution, but only in an annex. Taking into consideration that the territorial structure was a main point in the discussions on the constitution it would have been better to name the provinces directly in the Constitution in order to clearly express that they are now the constitutive elements of the State. As far as the boundaries of these provinces are still in question it would have been good to regulate the way how to delimitate them in the constitution.
Article 57 Para 6 deals with division of power under the federal set up. It reads: “While making law by Provincial Assembly, Village Council and Municipal Council pursuant to Clause (5), they shall have to make laws without being inconsistent to Federal law and if such laws formulated by Provincial legislature, Village Council and Municipal Council is inconsistent with the Federal law, such law shall, to the extent of its being inconsistent, be void.” The provision apparently provides for the nullity of normative acts of provinces and other inferior regional entities with normative acts of the Federation. However, one has to bear in mind that a federal law which is conflicting with the law of a province may be unconstitutional as far as it relates to an issue which falls under the competences of the provinces.
Again, the criteria which apply to the distribution of State income – including income from natural resources – should be laid down in more detail in Article 59 and Article 60. The distribution of the tax income should not be left with the government, otherwise the provinces will not have a real autonomy, but depend on the decisions of the center. It seems to be recommendable to establish limits for contracting debts. The sources of taxation – at least the most important such as income tax, corporation tax, value added tax – should be identified.
Keeping with the traditions, the new Constitution continues with the system of two sessions every year with Article 93. The issue, however, is why the Parliament should not be in session regularly. There are of course democratic systems where the Parliament is sitting only during specific periods (f.e. in France). However, today the tasks of a Parliament are so comprehensive that it seems to be more convenient to have it sitting all the time.
Article 96 talks more about prerogative than responsibility. This provision should not emphasize the right of the minister to participate in the sessions of the parliament, but the obligation to answer questions of the deputies whenever he/she is invited to do so by the parliament.
Proceedings under Article 98 shall not become invalid if a person participated which was not entitled to do so – however this should be construed in the sense that a participation in the voting makes the voting invalid, if the vote of this person was decisive. Otherwise, unauthorized persons could participate in the voting with the consequence that the vote is manipulated which makes it undemocratic.
In reference to Article 100, there should be the possibility to combine a vote of confidence with an important political vote, i.e. a bill or another decision. In this way the government could underline that a question put to vote is of such an importance that it will link its own existence to it.
The motion of no confidence is not clearly drafted in the Constitution: It should be provided that the motion is successful if a new prime-minister is elected. That will help stabilize the political system. Otherwise, opposition parties could form an alliance for toppling a government without proving able to elect a new one.
On Article 103, most surprisingly, there is no immunity for the deputies but only a protection for their speeches and votes in parliament. It is a good tradition to grant parliamentarians a further reaching protection against criminal prosecution, however always linked with the possibility of a waiver by the parliament. The immunity is not an individual right of the deputy, but exclusively serves the independence of the parliament as a constitutional organ.
Article 123 is very far-reaching giving the government the authority to spend money without specification.
It seems doubtful if a contingency fund (Article 124) is a good idea, because it contains money which may be spent without the parliament controlling it.
Article 128 Para 1 could be problematic. What does it mean that the Constitutional Court may interpret the constitution and the laws? Only case by case – insofar there might be no difference with other courts – or in an abstract way, i.e. independently from a case? This would give it quite a lot of power, especially if these abstract interpretations will be binding as provided by Article 128(4).
The Attorney General (Article 157) should not be appointed by the government in order to guarantee his/her independence. It is questionable if the Attorney General as the Chief Legal Adviser to the Government is best qualified to investigate human rights abuses which are normally committed by members of the executive.
Article 232 is a strange provision. The Federation may issue directives to the provinces in questions concerning the national interest. Does this competence include matters which fall under the competences of the provinces?
Similarly, Article 269 stands out different. What will be the consequence if a party does not prove to be democratically structured, especially under the perspective of art. 270? If there is no sanction for an undemocratic structure of a party, why does the requirement exist?
The holding of a referendum (Article 275) is not very well developed in the Constitution. As the referendum is an important means within the constitutional order there should be a more specific regulation in the constitution – concerning f.e. the quorum, the effects, the relationship to ordinary legislation; it should not be left to the ordinary law.
Opposition Remarks on the Constitution
While the Constitution was welcomed by the majority of the people of Nepal, of all segments of the national population, some ethnic Madhesi (plains based) parties with regional roots have not been happy with both the process of finalizing the Constitution and its final contents. There is a protest going on in the country.
The main comments of the Madhesi parties have been mainly attributed to the issue of delineation of provinces under the new Constitution, the provision on carving out constituencies on the basis of geography and population, representation of provinces both in the Lower House and Upper House of the federal parliament, the theme of proportional representation and certain issues related to new citizenship provisions. These parties want the entire Tarai region extending from the east to the west to be divided only into two provinces. The initial proposal, which has now been taken back, was to carve one state from Parsa to Saptari and another extending from Nawalparasi to Bardiya. Now we have a province from Parsa to Saptari. At that time, there were three disputed districts in the east and two in the west. Now, all the districts that lie to the west of Nawalparasi are disputed because they have been mixed with hill districts. In the east, Jhapa, Morang, Sunsari are also part of a province that includes the hills. They want to carve only two provinces in the plains.
Conclusion
With the new Constitution, the over seven-year-long arduous task of constitution making has come to an end. As the constitution making project was also the major part of the peace process in Nepal, the latest progress has taken the process toward conclusion. As such, it also now provides the basis for new politics in the country. Obviously, the process of further reform of the Constitution will be part of this politics.
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