2.3.1 Salient features, Executive, Legislative and Judiciary

Salient features

The Constitution of Nepal 2015 has several salient features that reflect the country’s commitment to democracy, federalism, inclusivity, and secularism. Below are the key features:

1. Federal Democratic Republic

• Nepal is officially a federal democratic republic, moving away from its monarchical past.
• The country is divided into seven provinces and three levels of government: federal, provincial, and local.
• The head of state is the President (a ceremonial position), and the Prime Minister is the head of government.

2. Secularism

• Nepal is a secular state, meaning that no single religion is given preferential treatment by the state. However, the constitution acknowledges the importance of religious and cultural traditions.
• All religions are treated equally, and freedom of religion is guaranteed.

3. Fundamental Rights

• The constitution guarantees a wide array of fundamental rights to all citizens, including:
  • Right to equality (no discrimination on the basis of religion, race, gender, caste, or ethnicity)
  • Right to freedom of speech and expression
  • Right to education, health, and employment
  • Right to social justice
  • Right to privacy and right to information
• Special provisions ensure that marginalized groups, including women, Dalits, indigenous peoples, and Madhesi communities, have equal rights.

4. Proportional Representation and Inclusion

• The constitution emphasizes inclusion and proportional representation in all spheres of government.
• It mandates that one-third of the members of Parliament must be women.
• Provisions exist to ensure the political representation of marginalized communities like Dalits, indigenous groups, Madhesis, and other minorities.

5. Bicameral Legislature

• Nepal has a bicameral federal legislature called the Federal Parliament:
  • The House of Representatives (lower house) consists of 275 members, with 165 elected through the first-past-the-post system and 110 through proportional representation.
  • The National Assembly (upper house) has 59 members, with representatives from each province and some members nominated by the President.

6. Federal System

• Nepal has adopted a federal system with seven provinces, each with its own Provincial Assembly and provincial government.
• Powers are divided between the federal, provincial, and local governments, with a clear demarcation of responsibilities in governance, development, law and order, and other areas.
• Local governments, such as municipalities and rural municipalities, are granted substantial authority.

7. Independent Judiciary

• The constitution provides for an independent judiciary to uphold the rule of law and protect citizens' rights.
• The Supreme Court is the highest judicial body and has the power of judicial review, ensuring that laws and government actions conform to the constitution.
• Each province has High Courts, and there are District Courts at the local level.

8. Fundamental Duties

• The constitution outlines fundamental duties for citizens, including respecting the constitution, safeguarding public property, protecting the environment, and promoting national unity.

9. Directive Principles and State Policies

• The directive principles guide the state in policymaking and governance, promoting social justice, economic development, and environmental sustainability.
• The constitution calls for policies that uplift the socially and economically disadvantaged, promote gender equality, and ensure access to basic services like health and education.

10. Constitutional Commissions

• Several constitutional commissions have been established to protect the rights of various marginalized groups, promote inclusiveness, and strengthen democracy:
  • National Human Rights Commission
  • National Women Commission
  • National Dalit Commission
  • Madhesi Commission
  • Indigenous Nationalities Commission
  • Muslim Commission
  • Tharu Commission
  • National Inclusion Commission

11. Provision for Constitutional Amendments

• The constitution can be amended through a two-thirds majority of the Federal Parliament, making it flexible enough to accommodate future changes or demands.
• Several amendments have already been made to address issues related to federalism and representation.

12. Provision for Social Justice

• The constitution guarantees social justice for disadvantaged groups, including women, Dalits, Madhesis, Janajatis, and people with disabilities.
• It focuses on inclusive development, ensuring equal opportunities for marginalized communities.

13. Citizenship

• The constitution includes provisions on citizenship that allow for both natural-born citizenship and naturalized citizenship. However, it has faced criticism for certain restrictions, especially on women passing citizenship to their children under certain conditions.

14. Directive for Federal Structure Implementation

• The constitution provides the framework for implementing federalism, with a clear timeline for establishing provincial and local governments.
• It outlines a detailed structure for devolution of power and allocation of resources to different levels of government.

15. Provision for Language

• The constitution recognizes Nepali as the official language of Nepal, but also acknowledges the linguistic diversity of the country, allowing the use of other languages for official purposes at the local level.

Conclusion

The Constitution of Nepal 2015 represents a significant step toward a more inclusive, democratic, and decentralized political system. It emphasizes federalism, secularism, fundamental rights, and inclusion of marginalized groups, making it one of the most progressive constitutions in the region. However, its full implementation and the resolution of ongoing political challenges remain critical for Nepal’s continued democratic development.

Executive

Under the Constitution of Nepal 2015, the executive branch of the government operates at both the federal and provincial levels, with distinct roles and responsibilities for each. Here's a breakdown of the executive based on the present constitution:

1. Federal Executive

The executive power of the federal government lies with the Council of Ministers, headed by the Prime Minister, who is the chief executive of the country. The President is the ceremonial head of state.

A. President (Head of State)

• The President of Nepal is the ceremonial head of state, representing the unity of the country.
• The President is elected by an electoral college consisting of members of the Federal Parliament and the Provincial Assemblies.
• Role and Powers:
  • The President performs ceremonial functions, including:
    • Appointing the Prime Minister and other key officials as per the constitution.
    • Summoning and proroguing sessions of Parliament.
    • Ratifying laws passed by Parliament.
    • Granting pardons, amnesties, and reductions of sentences based on the recommendation of the government.
  • The President acts on the recommendation of the Council of Ministers.

B. Prime Minister (Head of Government)

• The Prime Minister of Nepal is the chief executive and holds real executive power.
• The Prime Minister is elected by the House of Representatives and is responsible for forming the Council of Ministers.
• Role and Powers:
  • Forming and leading the government.
  • Implementing laws and policies passed by the Federal Parliament.
  • Managing day-to-day administration of the federal government.
  • The Prime Minister represents Nepal domestically and internationally and directs foreign policy.
  • The Prime Minister can recommend the dissolution of the House of Representatives and call for new elections, under certain conditions.

C. Council of Ministers

• The Council of Ministers is the collective executive authority of the federal government.
• It is formed by the Prime Minister and consists of ministers who are appointed from the Federal Parliament.
• Role and Powers:
  • Formulating government policies and ensuring their implementation.
  • Managing ministries and departments.
  • Preparing and presenting the budget and other key legislative proposals to Parliament.
  • The Council of Ministers is responsible for executing laws, handling foreign relations, defense, internal security, and development planning.
  • Ministers are collectively responsible to the House of Representatives.

2. Provincial Executive

The constitution also provides for the executive branch at the provincial level, headed by the Chief Minister and the Provincial Council of Ministers.

A. Provincial Head (Governor)

• Each province has a Provincial Head, also called the Governor, who is the ceremonial head of the province.
• The Governor is appointed by the President on the recommendation of the federal government.
• Role and Powers:
  • The Governor performs ceremonial functions at the provincial level.
  • Appoints the Chief Minister based on the majority in the Provincial Assembly.
  • Acts on the recommendation of the Provincial Council of Ministers.

B. Chief Minister (Head of Provincial Government)

• The Chief Minister is the head of the provincial executive and holds real executive authority at the provincial level.
• The Chief Minister is elected by the Provincial Assembly.
• Role and Powers:
  • Leads the Provincial Council of Ministers and directs the administration of the province.
  • Responsible for implementing provincial laws and managing provincial affairs.
  • The Chief Minister represents the province in interactions with the federal government and other provinces.

C. Provincial Council of Ministers

• The Provincial Council of Ministers is formed by the Chief Minister and consists of ministers from the Provincial Assembly.
• Role and Powers:
  • Responsible for provincial administration.
  • Implements policies related to areas such as education, health, agriculture, and local infrastructure, which are under provincial jurisdiction.
  • Ministers are collectively accountable to the Provincial Assembly.

3. Local Executive

• At the local level, executive powers are vested in municipalities and rural municipalities.
• Mayors and Chairpersons lead the local governments.
• Role and Powers:
  • Local executives are responsible for administering and implementing local policies, managing services like local infrastructure, and promoting local economic development.
  • They ensure the execution of decisions made by the municipal councils or village councils.

4. Distribution of Powers

• The constitution divides powers between the federal, provincial, and local governments. Each level of government has exclusive as well as shared competencies.
  • Federal Government: Responsible for national defense, foreign affairs, monetary policy, international trade, and other national matters.
  • Provincial Government: Handles provincial matters such as agriculture, health, education, transport, and provincial policing.
  • Local Government: Deals with local matters such as water supply, local roads, basic health services, and local education.

5. Checks and Balances

• The executive is held accountable by the legislature and the judiciary.
• The Council of Ministers is responsible to the House of Representatives and must maintain the confidence of Parliament to stay in power.
• The executive actions can be reviewed by the Supreme Court, ensuring that the government acts according to the constitution and the law.

Conclusion

The executive structure of Nepal is designed to reflect the country's federal system, with shared power between the central, provincial, and local levels. While the President serves as the ceremonial head of state, the Prime Minister exercises real executive authority at the federal level, while the Chief Ministers hold executive power at the provincial level. Each level of government operates within its constitutional framework, ensuring a balanced distribution of power and promoting decentralized governance.

Legislative

The legislative structure of Nepal, under the Constitution of Nepal 2015, is based on a federal system with legislatures at both the federal and provincial levels. The legislative branch is responsible for lawmaking, overseeing the executive, and representing the people. Here is an overview of the legislative framework as established by the current constitution:

1. Federal Legislature (Federal Parliament)

The Federal Parliament of Nepal is bicameral, consisting of:

• The House of Representatives (Lower House)
• The National Assembly (Upper House)

A. House of Representatives (Lower House)

• The House of Representatives is the primary legislative body of the Federal Parliament.
• It consists of 275 members:
  • 165 members are elected through a first-past-the-post system (direct elections from constituencies).
  • 110 members are elected through proportional representation based on the total votes received by political parties.
• Term: The term of the House of Representatives is five years, unless dissolved earlier.
• Elections: Elections are held every five years, and a party or coalition needs to secure a majority (138 seats) to form a government.

Key Powers and Functions:

• Law-making: The House of Representatives initiates and passes legislation, including bills on finances and the budget.
• Executive Oversight: It holds the Council of Ministers (executive branch) accountable through debates, questioning ministers, and votes of confidence or no-confidence.
• Budget Approval: The House of Representatives has the power to approve the national budget and financial bills.
• Impeachment Powers: It can initiate impeachment proceedings against the President, Vice President, and other officials such as Supreme Court judges.
• Constitutional Amendments: The House of Representatives plays a critical role in amending the constitution, requiring a two-thirds majority to pass any amendments.

B. National Assembly (Upper House)

• The National Assembly is the upper house of the Federal Parliament and acts as a body of review for legislation passed by the House of Representatives.
• It consists of 59 members:
  • 56 members are elected by an electoral college consisting of the members of the Provincial Assemblies and the heads of local bodies (mayors and chairpersons).
  • 3 members are nominated by the President on the recommendation of the government.
• Term: National Assembly members have a six-year term, with one-third of the members retiring every two years to ensure continuity.

Key Powers and Functions:

• Review of Legislation: The National Assembly reviews bills passed by the House of Representatives and can send them back for reconsideration. However, it cannot reject money bills or budget bills.
• Legislative Proposals: The National Assembly can introduce bills, except financial bills.
• Deliberative Role: It provides a platform for representation of the provinces and local levels in the national law-making process.
• Impeachment Participation: The National Assembly also participates in impeachment proceedings initiated by the House of Representatives.

2. Provincial Legislature

Each of the seven provinces in Nepal has its own Provincial Assembly, which functions as the legislative body at the provincial level.

A. Composition of the Provincial Assembly

• The Provincial Assembly is unicameral and its members are elected through a mixed electoral system similar to the Federal Parliament:
  • 60% of the members are elected through a first-past-the-post system (direct elections).
  • 40% of the members are elected through proportional representation.
• The size of the Provincial Assembly varies based on the population of each province.

B. Term of the Provincial Assembly

• The term of the Provincial Assembly is five years, similar to the Federal Parliament.
• Elections are held every five years, and the party or coalition with a majority forms the provincial government.

C. Powers and Functions of the Provincial Assembly

• Provincial Legislation: The Provincial Assembly makes laws on matters falling under the provincial jurisdiction, such as education, health, agriculture, and local governance, as listed in the constitution.
• Budgetary Authority: The Provincial Assembly approves the provincial budget and oversees the allocation of funds for provincial projects.
• Oversight of the Provincial Executive: The Provincial Assembly holds the Provincial Council of Ministers accountable for their actions and decisions.
• Constitutional Amendments: Provincial Assemblies play a role in constitutional amendments related to the restructuring of provincial boundaries or powers.

3. Distribution of Legislative Powers

The Constitution of Nepal divides the legislative powers between the federal, provincial, and local levels based on three lists of competencies:

A. Federal Powers (Exclusive Powers of the Federal Legislature)

• The Federal Parliament has the authority to legislate on subjects that fall under the federal list in Schedule 5 of the constitution. These include:
  • National defense, foreign affairs, citizenship, monetary policy, international trade, immigration, air transport, and national highways.
• The federal legislature also has exclusive powers over criminal law, civil law, and international treaties.

B. Provincial Powers (Exclusive Powers of the Provincial Legislature)

• The Provincial Assembly can legislate on subjects that fall under the provincial list in Schedule 6 of the constitution. These include:
  • Education, agriculture, public health, provincial highways, natural resource management, and land management.
• Provinces have significant power in managing their own development and resources.

C. Concurrent Powers (Shared Powers)

• Certain areas of lawmaking fall under the concurrent list, where both federal and provincial governments can legislate. These include:
  • Education, health, tourism, water resources, and agriculture.
• If there is a conflict between federal and provincial law on a concurrent subject, federal law prevails.

4. Local Legislative Powers

• Local governments, such as municipalities and rural municipalities, have the power to make laws on local matters, including local taxation, water supply, local roads, basic health, and education at the local level.
• Local legislative bodies are also responsible for implementing federal and provincial policies within their jurisdictions.

5. Checks and Balances

• Executive Oversight: The Federal Parliament and Provincial Assemblies exercise oversight over their respective executives. This includes questioning ministers, forming parliamentary committees, and approving the budget.
• Judicial Review: The legislative actions are subject to review by the judiciary, especially the Supreme Court, which ensures that laws conform to the constitution.

Conclusion

The legislative structure of Nepal is designed to promote federalism and democracy, with legislatures at both the federal and provincial levels ensuring representation of the people and decentralization of power. The bicameral Federal Parliament (House of Representatives and National Assembly) plays a pivotal role in national lawmaking and executive oversight, while the unicameral Provincial Assemblies ensure local representation and the enactment of provincial laws. Through a detailed division of powers, the constitution ensures a balance between federal and provincial legislative authority.

Judiciary

The judiciary of Nepal under the Constitution of Nepal 2015 is an independent body entrusted with upholding the rule of law, protecting the rights of citizens, and ensuring justice. The judiciary is structured to provide checks and balances within the government, and it operates at three levels: the Supreme Court, the High Courts, and the District Courts. Here is an overview of the judicial system based on the present constitution:

1. Independence of the Judiciary

• The constitution guarantees the independence of the judiciary from the executive and legislative branches of government.
• The judiciary has the power to review laws and executive actions to ensure they conform to the constitution.
• Judicial appointments, transfers, and disciplinary actions are managed by independent judicial bodies to prevent political interference.

2. Structure of the Judiciary

The judiciary is organized into three main tiers: Supreme Court, High Courts, and District Courts.

A. Supreme Court (Sarboccha Adalat)

• The Supreme Court is the highest judicial body in Nepal and has the authority to interpret the constitution and act as the guardian of constitutional rights.
• The court consists of a Chief Justice and other Justices as appointed by the Judicial Council, with the approval of the Constitutional Council.

Key Roles and Functions:

• Constitutional Court: The Supreme Court has the power of judicial review, meaning it can declare laws, executive actions, and decisions of lower courts unconstitutional if they violate the constitution.
• Final Appellate Court: The Supreme Court serves as the highest appellate court, meaning it is the final court for appeals on any legal matters decided by the lower courts.
• Original Jurisdiction: It can hear cases related to public interest litigation (PIL), disputes between the federal and provincial governments, and cases involving interpretation of the constitution.
• Advisory Jurisdiction: The President can seek the Supreme Court's opinion on constitutional matters.
• Writ Jurisdiction: The Supreme Court has the power to issue writs (legal orders), including habeas corpus, mandamus, certiorari, prohibition, and quo warranto, to protect fundamental rights.
• Impeachment: The Chief Justice or other justices of the Supreme Court can be impeached by a two-thirds majority of the Federal Parliament for misconduct, incapacity, or violation of constitutional principles.

B. High Courts

• Each of Nepal’s seven provinces has its own High Court, which serves as the appellate court within the provincial jurisdiction.
• High Courts are responsible for hearing appeals against the decisions of District Courts and other lower courts and tribunals.

Key Roles and Functions:

• Appellate Jurisdiction: High Courts handle appeals in both civil and criminal cases decided by District Courts.
• Writ Jurisdiction: Like the Supreme Court, High Courts can issue writs to protect constitutional rights at the provincial level.
• Supervisory Role: High Courts oversee and supervise the functioning of District Courts and other lower-level judicial bodies within the province.
• Original Jurisdiction: In certain cases, High Courts may have original jurisdiction, particularly in constitutional and administrative matters.

C. District Courts

• District Courts are the lowest level of courts in Nepal’s judicial hierarchy. There is a District Court in each of the 77 districts of Nepal.
• District Courts handle most cases at the trial level and deal with both civil and criminal matters.

Key Roles and Functions:

• Original Jurisdiction: District Courts have original jurisdiction over most legal disputes, including civil, criminal, and administrative cases.
• Criminal Cases: They hear cases involving criminal offenses, ranging from minor infractions to more serious crimes.
• Civil Cases: District Courts also deal with civil matters such as property disputes, contracts, and family law cases (e.g., divorce, custody).
• Judicial Committees: District Courts may also supervise judicial committees at the local level that resolve minor disputes within municipalities and rural municipalities.

3. Judicial Council

• The Judicial Council is responsible for overseeing the functioning and integrity of the judiciary, including the appointment, transfer, and disciplinary action of judges.
• Composition:
  • Chief Justice (Chairperson)
  • Minister of Law and Justice
  • A senior Supreme Court Justice appointed by the Chief Justice
  • Chairperson of the Public Service Commission
  • A legal expert nominated by the Federal Parliament
• Functions:
  • Appointment of Judges: The Judicial Council recommends appointments to the Supreme Court, High Courts, and District Courts.
  • Disciplinary Action: It investigates and recommends disciplinary action or removal of judges for misconduct or incapacity.
  • Judicial Administration: It ensures that the judicial system functions efficiently and effectively, maintaining the independence of the judiciary.

4. Constitutional Bench

• The Constitutional Bench of the Supreme Court deals with issues related to the interpretation of the constitution.
• The bench consists of the Chief Justice and four other justices designated by the Chief Justice.
• Jurisdiction:
  • Constitutional disputes, including conflicts between the federal government and provincial governments, disputes regarding the powers of constitutional bodies, and any other matters requiring constitutional interpretation.

5. Judicial Committees at the Local Level

• The constitution establishes Judicial Committees at the local government level (municipalities and rural municipalities) to resolve local disputes.
• Composition: The Judicial Committee is headed by the deputy mayor or deputy chairperson of the local body.
• Function:
  • They handle minor civil and administrative disputes, such as property issues, land disputes, and community-level conflicts.
  • They promote alternative dispute resolution mechanisms such as mediation and arbitration, reducing the burden on higher courts.

6. Specialized Courts and Tribunals

• The constitution allows for the creation of specialized courts or tribunals to handle specific types of cases, such as commercial disputes, labor disputes, or environmental cases.
• These courts are established by law and function within the judicial framework of Nepal.

7. Fundamental Rights and Judicial Protection

• The constitution guarantees a wide range of fundamental rights, such as the right to equality, right to freedom, right to justice, and right to privacy.
• The judiciary plays a critical role in protecting these rights by providing citizens access to legal remedies through the writ jurisdiction of the courts, particularly the Supreme Court and High Courts.

8. Judicial Review

• The judiciary has the power of judicial review, allowing it to invalidate laws, executive actions, and administrative decisions that violate the constitution.
• This ensures that the legislative and executive branches remain within their constitutional limits.

9. Judicial Accountability

• The judges of the Supreme Court, High Courts, and District Courts are subject to disciplinary actions or impeachment if they are found guilty of misconduct, corruption, incapacity, or violation of constitutional principles.
• The Chief Justice and Supreme Court justices can be impeached by the Federal Parliament through a two-thirds majority vote if serious misconduct is proven.

Conclusion

The judiciary under the Constitution of Nepal 2015 is designed to be independent, impartial, and robust. It acts as the guardian of the constitution, ensuring that the rule of law prevails and that the fundamental rights of citizens are protected. Through the Supreme Court, High Courts, District Courts, and various specialized bodies, the judiciary provides a structured system for resolving disputes, interpreting laws, and maintaining checks on the other branches of government.