Constitution of Nepal

Constitution of Nepal
The original text of the Preamble
Date effective	September 20, 2015; 6 years ago (2015-09-20)
Location	Constitutional Assembly Secretariat, Singha Durbar, Kathmandu
Commissioned by	Constituent Assembly Of Nepal
Purpose	To establish Federalism in Nepal

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

The Constitution was drafted by the Second Constituent Assembly following the failure of the First Constituent Assembly to produce a constitution in its mandated period after the devastating earthquake in April 2015. The constitution was endorsed by 90% of the total legislators. Out of 598 Constituent Assembly members, 538 voted in favor of the constitution while 60 people voted against it, including a few Terai-based political parties which refrained from the voting process.

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

History[]

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

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

Features[]

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

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

Preamble[]

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

Previous Constitutions of Nepal[]

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

The Nepal Government Act 1948[]

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

Nepal Interim Government Act 1951[]

The Interim Government of Nepal Act 1951 was promulgated after the Revolution of 1951 at the end of the Rana period. This text strengthened the authority of the king, and introduced relevant reforms such as the creation of the Supreme Court and the inclusion of fundamental rights and socio-economic goals to be pursued by the state. This constitution was promulgated on 11 April 1951 by King Tribhuwan. It consisted of 7 parts, 73 articles and 1 schedules.

Constitution of the Kingdom of Nepal, 1959[]

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

Constitution of Nepal 1962[]

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

Constitution of the Kingdom of Nepal, 1990[]

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

Nepal Interim Constitution, 2007[]

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

Parts[]

The Constitution has 35 parts:

1. Preliminary
2. Citizenship
3. Fundamental Rights and Duties
4. Directive Principles, Policies and Responsibilities of the State
5. Restructuring of the State and distribution of State power
6. President and Vice-president
7. Federal Executive
8. Federal Parliament
9. Federal Legislative Procedure
10. Federal Financial Procedures
11. Judiciary
12. Attorney General
13. Provincial Executive
14. Provincial Legislature
15. Provincial Legislative Procedure
16. Financial Procedures of Province
17. Local Executive
18. Local Legislature
19. Local Financial Procedure
20. Interrelationship between the Federation, Provinces and Local Levels
21. Commission for the Investigation of Abuse of Authority
22. Auditor General
23. Public Service Commission
24. Election Commission
25. National Human Rights Commission
26. National Natural Resources and Fiscal Commission
27. Other Commissions
28. Provision regarding National Security
29. Provision relating to Political Parties
30. Emergency Power
31. Amendment of the Constitution
32. Miscellaneous
33. Transitional Provisions
34. Definitions and Interpretations
35. Short title, Commencement and Repeal

Citizenship Provisions[]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Fundamental rights guaranteed in the Constitution (Part 3)[]

1. Right to Life of Dignity (Article 16)
2. Right to Freedom (Article 17)
3. Right to Equality (Article 18)
4. Right to Communication (Article 19)
5. Right regarding Justice (Article 20)
6. Right of the Victim of Crime (Article 21)
7. Right against Torture (Article 22)
8. Right against Preventive Detention (Article 23)
9. Right against Untouchability and Discrimination (Article 24)
10. Right to Property (Article 25)
11. Right to Religious Freedom (Article 26)
12. Right to Information (Article 27)
13. Right to Privacy (Article 28)
14. Right against Exploitation (Article 29)
15. Right to Fresh Environment (Article 30)
16. Right regarding Education (Article 31)
17. Right to Language and Culture (Article 32)
18. Right to Employment (Article 33)
19. Right to Labour (Article 34)
20. Right regarding Health (Article 35)
21. Right regarding Food (Article 36)
22. Right to Residence (Article 37)
23. Women's Rights (Article 38)
24. Children's Rights (Article 39)
25. Dalit's Rights (Article 40)
26. Senior Citizen's Rights (Article 41)
27. Right to Social Justice (Article 42)
28. Right to Social Security (Article 43)
29. Consumer's Rights (Article 44)
30. Right against Exile (Article 45)
31. Right to Constitutional Remedy (Article 46)
32. Student's right (Article 47)

Constitutional Organs[]

The constitutional organs of Nepal form Part 21-27:

1. Commission for the Investigation of Abuse of Authority (CIAA) (Part 21)
2. Auditor General (Part 22)
3. Public Service Commission (Part 23)
4. Election Commission (Part 24)
5. National Human Rights Commission (Part 25)
6. National Natural Resources and Fiscal Commission (Part 26)
7. Other Commissions (Part 27) :
   1. National Women Commission
   2. National Dalit Commission
   3. National Inclusive Commission
   4. National Aborigines Commission
   5. Madhesi Commission
   6. Tharu Commission
   7. Muslim Commission

Schedules[]

The Constitution has 9 schedules:

1. Nepali National Flag
2. National Anthem of Nepal
3. Coat of Arms of Nepal
4. Provinces and Districts within provinces
5. List of Federal Powers/Jurisdiction
6. List of Provincial Powers/Jurisdiction
7. List of Concurrent (federal and provincial) powers/jurisdiction
8. List of Powers/Jurisdiction for Local Level
9. List of Concurrent Powers/Jurisdiction for Federation, Province and Local Level

See also[]

• Constitutional economics
• Constitutionalism
• 2015 Nepal blockade

References[]

Further reading[]

• BBC News. Why is Nepal's old constitution controversial?. 19 September 2015.

External links[]

• Constituent Assembly of Nepal
• The Centre for Constitutional Dialogue at the Wayback Machine (archived 2009-01-30) – in Kathmandu has a wide range of news and other information about the constitution-drafting process, in English and Nepali.
• Theology at the heart of Nepal’s constitutional crisis – Lapido Media 26/05/2010
• Concept papers from the Constituent Assembly of Nepal at the Wayback Machine (archived 2014-02-03)
• Final Interim Constitution of Nepal, 2063 (2007) – in English and Nepali at worldstatesmen.org
• Final Interim Constitution of Nepal, 2063 (2007) – at the Nepalese Supreme Court (in Nepali)
• Constitution of the Kingdom of Nepal, 2047 (1990) at the Wayback Machine (archived 2008-06-03)
• "The Nepal Constitution of 1990: Preliminary Considerations" at the Library of Congress Web Archives (archived 2001-11-17) – by Ellingson, T., Himalayan Research Bulletin, the University of Texas, Vol. XI, Nos. 1–3, 1991.
• "The Constitution of Nepal" (PDF). wipo.int. 20 September 2015.