Chapter 1: Introduction
1.1 Definition of Constitutional Law
According to Lord Bryce: "A constitution consists of those rules of a state or nation which determine the form of government and the rights and duties of citizens. A constitution establishes a permanent institution with definite functions and definite rights within a framework of organized political society created by law."
According to Prof. Dicey: "A constitution is that body of law which directly or indirectly determines the distribution and exercise of the supreme power of the state."
According to Bolingbroke: "A constitution is a collection of laws, institutions, and traditions, derived from certain principles of reason, directed to certain objects of public good, on which the community itself has agreed to be governed."
According to Article 1(1) of the Constitution of Nepal, 2072 (2015): It is stated that, "This Constitution is the fundamental law of Nepal. Any law inconsistent with this Constitution shall, to the extent of such inconsistency, be void."
1.2 Source of Constitutional Law
1. Statutes (कानूनहरू): The Constitution is accepted as the fundamental law of Nepal. All the acts and laws necessary to implement the Constitution are sources of constitutional law.
2. Secondary Legislation and Other Rules (द्वितीय विधायन र अरु नियमहरू): Rules, regulations, formation orders, notifications, and directives made to implement the acts passed by parliament as a source of constitutional law are considered secondary legislation.
3. Judicial Decision (न्यायिक निर्णय): Even in countries with a mixed system like ours, such decisions are accepted as a source of law when there is a lack of clarity in written laws.
4. Customs, Traditions, and Conventions (प्रथा, परम्परा र मान्यताहरू): Values, cultures, and practices ongoing since ancient times are called customs. Laws are formulated by taking into account the provisions within these customs and traditions, hence they are taken as a source of law.
5. Books of Authority (कानूनविद्का लेख, रचना, पुस्तकहरू): Articles, essays, and books written by legal scholars are studied during law-making. They help research debates and exceptions to draft laws according to public sentiment.
1.3 Difference between Constitution and Constitutional Law
Since the constitution is the fundamental law, other laws exist under it. The constitution stands as the national law and the fundamental law. To achieve the goals of the state and bring coordination and balance between the ruler and the ruled, the constitution and its organs exist as a document. Customs, traditions, and rules made by the legislature are considered constitutional law.
Chapter 2: Classification of Constitution
2.1 Written and Unwritten Constitution (लिखित र अलिखित संविधान)
Written Constitution
A written constitution is the fundamental legal document of a country. In any country, a written constitution holds the supreme position. It provides written arrangements for matters such as the methods of running the country, international relations, individual and fundamental rights of citizens, the system of governance, local relations, the rule of law system, governance methods, the executive, judiciary, security, internal and external relations, and the style and system of governance.
Unwritten Constitution
Since there is no organized single document like in a country with a written constitution, the operation of the state, state policies, directive principles, fundamental rights of the people, political parties, and administrative arrangements are based on political customs, judicial decisions of courts, and various scattered laws. Even though a constitution is unwritten, it secures the fundamental matters regarding the operation and administration of the state through written documents.
2.2 Rigid and Flexible Constitution (कठोर र नरमशील संविधान)
Rigid Constitution
A rigid constitution views constitutional law and ordinary law from different perspectives. If a constitution requires a special process or procedure to amend, alter, or repeal it, such a constitution is called a rigid constitution. A rigid constitution cannot be amended through ordinary legislative procedures. The provision to amend such a constitution is made within the constitution itself through a special procedure of the legislature, such as a two-thirds ($2/3$) majority of the parliament.
Flexible Constitution
A flexible constitution views constitutional law and ordinary law from the same perspective. Both of these laws are formulated and amended through the same process, and their legal sources are also the same. If a constitution can be amended, altered, or repealed just like an ordinary law, such a constitution is called a flexible constitution. A flexible constitution can be amended through ordinary legislative procedures.
2.3 Federal and Unitary Constitution (संघात्मक र एकात्मक संविधान)
Federal Constitution
A constitution where the powers of government are distributed among the center, state, and local governments is called a federal constitution. Currently, a federal system is found in 28 countries, including Argentina, Australia, Brazil, Comoros, Ethiopia, Germany, India, Mexico, Nepal, Nigeria, Sudan, Switzerland, and the United States of America.
A federal constitution has the following features:
· Written Document: The constitution must be a written one.
· Rigid Amendment: It requires a rigid procedure for amendment.
· Division of Power: Powers are distributed between the state and the center.
· Judicial Supremacy: The judiciary holds supreme authority.
Unitary Constitution
A constitution where the entire power of the state is centralized only in the center is called a unitary constitution. Currently, a unitary constitution is found in around 170 countries, including Britain, France, Bangladesh, Chile, China, the Philippines, and New Zealand.
2.4 Republican and Monarchical Constitution (गणतन्त्रात्मक र राजतन्त्रात्मक संविधान)
Republican Constitution
A constitution that provides for a President who is either directly elected by the people or through public representatives is a republican constitution. In a republican constitution, the President serves as the head of state. Nepal, America, India, Germany, France, Bangladesh, and China are countries with republican constitutions.
Monarchical Constitution
A constitution that provides for a King as the head of state is called a monarchical constitution. Countries with monarchical constitutions include Britain, Japan, Burma, and Bhutan. The constitutions of Nepal made in 2004, 2007, 2015, 2019, and 2047 BS were monarchical constitutions, whereas the 2063 BS (Interim) and the current 2072 BS (2015) constitutions are republican constitutions.
2.5 Parliamentary and Presidential Constitution (संसदीय र अध्यक्षात्मक संविधान)
Parliamentary Systems
A parliamentary constitution is one that allows the leader of the parliament or the parliamentary party to exercise executive authority. Under the parliamentary system, the party elected by the majority exercises the executive power of the state. The Prime Minister formed in this manner must remain responsible to the parliament. The constitutions of countries like Britain, India, and Nepal can be taken as examples of parliamentary constitutions.
Looking at the parliamentary constitutional arrangement of Nepal, the parliament selects the executive head. Provision regarding the form of governance is made in Article 74 of the Constitution of Nepal, 2072 (2015). It states: "The form of governance of Nepal shall be a multi-party, competitive, federal, democratic, republican, parliamentary system based on pluralism."
Presidential Systems
If a constitution is formed in such a way that the executive power is vested in the President, it is called a presidential constitution. In such a constitution, the executive power is exercised by the President.
Chapter 3: Constitutional History of Nepal
3.1 Pre-Constitutional Norms and Laws
Arrangements Prior to the Muluki Ain (Civil Code), 1910 BS (1853 AD)
In ancient times, although there was no written constitution, the Narad Smriti, Shukra Niti, Manusmriti, Yajnavalkya Smriti, and Shruti were given the status of law. Nepal's legal history is found to be based on religion. At various times, the justice system was directed on the basis of religious texts, culture, social values, and good conscience prevalent at those respective times.
Nepal's law specifically appears to be based on Hindu jurisprudence, although a common law justice system currently exists in Nepal.
Kirat Period
· During the Kirat period, there were 4 different regional judicial bodies: Kunther, Shulli, Lingwal, and Mapchok.
· The most prominent source of law was Mundhum. Mundhum is also the religious text of the Kirat people. Under Mundhum fell Thudhasap and Pesap. Thudhasap was based on the Vedas.
· Rules were specifically made regarding matters such as birth, death, marriage, and property.
Lichchhavi Period
· During the Lichchhavi period, administrative bodies like Bhattadhikaran and Mahadhikaran were present in the palace.
· To oversee justice, bodies like Purvadhikaran (Eastern Court) and Paschimadhikaran (Western Court) were designated. At that time, crimes were classified into 2 types: Panchakhat and Panchamahapataki.
Arrangements After the Muluki Ain (Civil Code), 2020 BS (1963 AD)
The Muluki Ain, 2020 consists of 5 parts. Part 1 contains preliminary statements, Part 2 contains court management and punishment/sentencing, Part 3 covers civil law, and Part 4 covers criminal law. In number 4 of the preliminary statements, it is mentioned that: "In matters where separate laws have been made for specific subjects, actions shall be taken as written in those laws, and for matters not written in those specific laws, actions shall be taken according to this Muluki Ain." From this, the provisions made in the Muluki Ain do not affect separate acts created for specific subjects.
3.2 Post-Constitutional History:
To operate Nepal's governance system, 7 constitutions have been formed so far in the years 2004, 2007, 2015, 2019, 2047, 2063, and 2072 BS. Following the voice of the Nepali people demanding that they should make their own constitution, Nepal entered into a constitutional path in the year 2007 BS. The constitutions formed in various eras and circumstances were not created with the direct participation of Nepali citizens, but were instead issued through consensus, agreements, and declarations. For the first time in Nepal's history, the Constituent Assembly issued the seventh constitution with the direct participation of the citizens.
The list of 7 constitutions of Nepal :
i. Government of Nepal Act, 1948
ii. Interim Constitution, 1951
iii. The Constitution of the Kingdom of Nepal, 1959
iv. The Constitution of Nepal, 1962
v. The Constitution of the Kingdom of Nepal, 1990
vi. The Interim Constitution of Nepal, 2007
vii. The Constitution of Nepal, 2015
From the 'Government of Nepal Act, 2004 BS' to the 'Interim Constitution, 2063 BS', 6 constitutions were created by constitutional commissions. Those constitutions were neither endorsed by the people nor was any public participation ensured. The said document (2004 BS), which consisted of 6 parts, 68 articles, and 1 schedule "Ka", included praise of King Tribhuvan.
The 'Government of Nepal Act, 2004 BS', considered the first written constitution in Nepal's history, was based entirely on religion, culture, rituals, and traditions. Issued by Shree 3 Padma Shumsher, the 'Government of Nepal Act, 2004 BS' ended up being displaced before it could ever be implemented.
After the movement against the Rana regime took a fierce form, democracy emerged in the year 2007 BS. The 'Interim Government Act, 2007 BS', issued by King Tribhuvan's cabinet at that time, is accepted as the first implemented written constitution of Nepal.
Issued by the then King Tribhuvan on Chaitra 29, 2007 BS, that constitution was published in the gazette on Bhadra 4, 2008 BS. While it initially had 7 parts and 47 articles, after being amended 6 times, it eventually consisted of 7 parts, 74 articles, and 1 schedule. From the declaration made in the third amendment of that constitution in Magh 7, 2010 BS stating, "From now on, the governance of our subjects shall be in accordance with a democratic constitution made by a constituent assembly chosen by themselves," it was made clear that the governance of the people would be according to a constitution issued through a constituent assembly formed by the people themselves.
Even though that constitution (1951) was amended 6 times, the election for a constituent assembly could not be held. Consequently, in accordance with the report of the 'Drafting Committee' formed by King Mahendra, 'The Constitution of the Kingdom of Nepal, 2015 BS' was issued on Falgun 11, 2015 BS.
Consisting of 10 parts, 77 articles, and 3 schedules, that constitution restricted executive power to the King alone. Alongside this, it granted constitutional remedies within the constitution including equality, freedom, religion, the use of property for public good, political freedom, and secularism.
After King Mahendra repealed that constitution, the state governance was run from 2017 BS to 2019 BS through the "Nepal Special Provision Act, 2017" issued by him.
Issued on Poush 1, 2019 BS, 'The Constitution of Nepal, 2019' placed a ban on political parties and prioritized a governance system based on public consensus, decentralization, and the partyless Panchayat system. Comprising 20 parts, 97 articles, and 6 schedules, this constitution was repealed after the People's Movement of 2046 BS led to the creation of 'The Constitution of the Kingdom of Nepal, 2047'.
For the first time in history, 'The Constitution of the Kingdom of Nepal, 2047', which vested sovereignty in the people, was accepted as the fundamental law with constitutional supremacy.
Containing 23 parts, 133 articles, and 3 schedules, that constitution made constitutional monarchy, multi-party democracy, the parliamentary system of governance, sovereignty vested in the people, and an independent and impartial judiciary unamendable.
Following the People's Movement of 2062/063 BS, 'The Interim Constitution of Nepal, 2063', which was created from the people's side for the first time, was approved by the Interim Legislature-Parliament on Magh 1, 2063 BS. Amended up to 12 times, this constitution vested the sovereignty and state power of Nepal in the Nepali people, placed executive authority in the Prime Minister, provided for a President as the head of state, and embraced features like the Legislature-Parliament functioning as a constituent assembly.
Compared to the previous 6 constitutions, 'The Constitution of Nepal, 2072 (2015)' is high-level and progressive from every perspective. Comprising 35 parts, 308 articles, and 9 schedules, 'The Constitution of Nepal, 2072' was passed by a two-thirds majority of the Constituent Assembly. Signed by 537 members of the Constituent Assembly, the constitution was authenticated by Speaker Subas Nembang and issued on Ashwin 3, 2072 BS with the signature of President Ram Baran Yadav. This constitution is the first to be made by the Nepali people themselves through their representatives, implementing a federal and republican governance system for the first time, and embracing inclusive and proportional principles. It is the first constitution that pledges to protect the rights of citizens of all classes and regions through fundamental rights and various commissions, and establishes a federal provincial and local government structure.
Chapter 4: Constitutionalism and Constitutional Principles
4.1 The Concept and Meaning of Constitutionalism
The literal meaning of constitutionalism is constitutional supremacy. The concept that all organs of government, and every individual, body, or institution associated with those organs, must work under the constitution, and that no one is above the constitution, is called constitutionalism. Embracing the concept of placing limits on the unlimited power of the government to run a limited government under the rule of law is known as constitutionalism.
'Constitutionalism' is a goal (i.e. a means to an end), and it refers to the regularity of political life within a state by means of a constitution. As a concept; Constitutionalism means limited government, i.e. a system of restraint on both the rule and the ruled. Constitutionalism asserts that there are fundamental limits which must be observed in the relationship between the ruler and the ruled, when the power relationship among the groups in political society becomes regularized under law and subject to well-defined restraint, the constitutional government exist.
4.2 Various forms of Constitutionalism
ii. Political constitutionalism
iii. Western constitutionalism
iv. Socialist constitutionalism
v. Constitutionalism of Developing Countries
Chapter 5: Rule of Law
5.1 Concept of Rule of Law
The developed form of ideas regarding the rule of law is found to have emerged from the Glorious Revolution of Britain. The development of independence took place through the American Declaration of Independence and the American Bill of Rights. Through these declarations and bills of rights, the provisions of the rule of law were included in the constitution. The provision for the rule of law was established in the French Constitution of 1791. According to Prof. Dicey, there are three meanings of the rule of law. There are three meanings based on the supremacy of law, the public as the source of law, and a state where everyone is equal under the power of law. Under the rule of law, a representative legislature is accountable, and it includes an executive and an independent judiciary. According to the concept of the rule of law, the law is supreme, and there is constitutional supremacy. The constitution is based on constitutionalism. Arbitrariness is controlled by law. There is complete personal freedom.
5.2 Background Principles of Rule of Law
Requirements for the Validity of the Rule of Law
· Legal Constitutionalism (कानूनी संविधानवाद)
· An independent, competent, and impartial judiciary (स्वतन्त्र, सक्षम र निष्पक्ष सहितको न्यायपालिका)
· Judicial Autonomy (न्यायिक स्वायत्तता)
· Judicial Review (न्यायिक पुनरावलोकन)
· Judicial Activism (न्यायिक सक्रियता)
· Principles of Natural Justice (प्राकृतिक न्यायको सिद्धान्त)
· A state system committed against judicial jeopardy, etc. (न्यायिक खतरा विरुद्ध प्रतिबद्ध राज्य व्यवस्था आदि।)
Chapter 6: Separation of Powers and Checks and Balances
6.1 Conceptual Framework of the Separation of Powers
As an essential element of constitutionalism, the rule of law, and constitutional government, the principle of separation of powers refers to the division of state power among the three main organs of the state: the executive, legislature, and judiciary.
What is Separation of Power (शक्ति पृथकीकरण)?
· The three organs performing their respective functions is Separation of Power.
· The functions and nature of the three organs:
o Legislative Functions and Organization:
§ Declaring the 'General will of the people'.
§ Formulating laws.
§ This power belongs to the 'Body of the People'. Only the 'People' can govern themselves. Since the 'People' cannot perform this function all at once, representatives must do it. Representatives should be 'Elected', not just 'Pick up'.
Executive Power, Functions, and Organization (कार्यपालिकी शक्ति, कार्य र सङ्गठन)
· Being a Modest head of the state (monarch) instead of Autocractic.
· Work (Domestic and foreign affairs, war, peace, army, navy, internal and external peace, diplomatic).
Judicial Functions (न्यायिक कार्य)
· Deciding Civil and Criminal Cases.
· Giving decisions regarding an individual's Life, Liberty, and Property.
Wade and Phillips have stated the following points regarding the separation of powers:
1. Among the three organs of government, the same person should not be part of more than one organ (One member of the wing should not sit [in] another wing).
2. One organ of government should not control or interfere with the performance of another organ's functions (One wing of government should not interfere or control another wing).
3. One organ of government should not perform the functions of another organ (One wing of government should not carry out the function of another wing.)
6.2 Principles of Check and Balance
The principle of checks and balances refers to a system where the three organs of the state—the executive, legislature, and judiciary—do not interfere in each other's working jurisdictions, but can control each other to prevent wrongdoing and maintain balance.
According to Black's Law Dictionary, "Check and Balance is an arrangement of governmental powers whereby powers of one branch check or balance those of other branches."
Through this principle, the organs of the state are linked to one another in such a way that no single organ of the state can dominate over another, and they can also exercise control.
6.3 Separation of Powers and Checks and Balances under Presidential and Parliamentary Constitution
1. Separation of Powers and Checks and Balances under Presidential Constitution
Taking the Constitution of the United States of America as a key example of a presidential system, we can analyze the separation of powers and checks and balances within a presidential system. In America, executive power is vested in the President, legislative power in Congress (Congress of the United States), and judicial power in the Supreme Court and its subordinate courts.
(A) Checks and Balances Between the Executive and the Legislature
- The President can issue a veto over legislation passed by Congress.
- The Legislature allocates the budget for the Executive.
- The Legislature can override the President's veto.
- The Senate must confirm appointments and treaties made by the President.
(B) Checks and Balances Between the Legislature and the Judiciary
- The Legislature can increase or decrease the number of lower federal courts.
- The Legislature can impeach judges.
- The Legislature can determine the number of Supreme Court justices.
- The Legislature allocates the necessary budget for the Judiciary.
- The Judiciary can declare laws passed by Congress unconstitutional.
(C) Checks and Balances Between the Executive and the Judiciary
- The President appoints federal judges.
- The President can pardon punishments handed down by the court.
- The Judiciary can declare actions taken by the President unconstitutional.
2. Separation of Powers and Checks and Balances under Parliamentary Constitution
In a parliamentary system, the division of power is not possible in the same manner as in countries that adopt a presidential system. Since the executive is formed through the support of the majority of members in the legislature, the influence of the executive over the legislature and the legislature over the executive is clearly visible. In a parliamentary system, executive power is vested in the Prime Minister, legislative power in the Parliament, and judicial power in the Supreme Court and its subordinate courts. In a parliamentary system, the Prime Minister and ministers are accountable to the legislature.
(A) Checks and Balances Between the Executive and the Legislature
· In the selection of the Prime Minister, rather than just the legislature, it is based on political consensus.
· If political consensus is not reached, a provision exists where the Prime Minister is appointed by a majority of the Legislature-Parliament.
· The executive remains accountable to the legislature.
· The legislature can pass a vote of no confidence against the Prime Minister, and the Prime Minister must take a vote of confidence.
· The Prime Minister is removed from office if they cease to be a member of the legislature.
(B) Checks and Balances Between the Legislature and the Judiciary
· The court does not have the authority to examine the regularity or irregularity of parliamentary proceedings.
· No proceedings can be initiated in court regarding documents, reports, or voting under parliamentary privileges.
· The Supreme Court will not interfere in the exercise of privileges conducted by the parliament within its jurisdiction.
· Cases sub-judice (pending) in court and the judicial actions taken by a judge in the line of duty cannot be discussed in parliament.
· When debating a motion of impeachment against a judge, the conduct of the judge can be discussed.
· If an impeachment motion is passed by the Legislature-Parliament, the Supreme Court justice is removed from office.
· There will be a parliamentary hearing for the appointment of Supreme Court justices.
(C) Checks and Balances Between the Executive and the Judiciary
· Nepal's judicial authority shall be exercised by courts and judicial bodies.
· The authority to give the final interpretation of prevailing laws rests with the Supreme Court.
· The court should not enter into "Political Questions".
· The Supreme Court can exercise judicial review.
· The Executive shall arrange for the necessary resources, means, and security required by the court.
· The court must remain generally neutral regarding diplomatic relations and foreign policy.
Chapter 7: Unitary System
7.1 Meaning and Nature of Unitary System
If a constitution is formed in such a way that the state power remains centered only in the center, such a governance system is called a unitary governance system. In this system, state power is not distributed to the local level but remains limited to the center. Resources and power required for operating the state are decentralized according to the decisions of the center. In this system, all resources and powers of the state are mobilized from the center itself. Bodies formed at the regional and local levels operate their programs according to the laws made by the central legislature.
7.2 Distribution of Power Under Unitary System
In a unitary governance system, all powers related to governance are kept only within the central government by the constitution, and in a unitary state system, only one government is arranged at the central level. Therefore, the central government has a monopoly over the exercise of state power. In this manner, since all governance powers of the state constitutionally remain only in the center, the sovereignty and state authority of the country are all kept strictly in the center.
In some countries, provinces or local governments are established, or provinces are created, in such a way that they remain subordinate to the center. In this setup, local governments are also established by looking at administrative convenience according to the center's own interests. Therefore, the central government maintains absolute control over them.
Chapter 8: Federal System
8.1 Meaning of Federalism
A political system or governance system where there are two or more levels of government in a single state is called a federal governance system. In federalism, the center and the units below it are independent in their jurisdictions and powers as arranged by the constitution. A federal government is more participatory and representative than a unitary government, and there is a division of powers.
As per A.V. Dicey, "A political contrivance intended to reconcile national unity with the maintenance of the state rights".
In the world, the formation of federal states is found to happen in two ways:
1. Coming Together Method (राज्यहरूसँगै आउने विधि)
A federation formed by independent states making mutual understandings, agreements, or treaties among themselves.
2. Holding Together Method (राज्यलाई सँगै राख्ने विधि)
Alternatively, a structure is erected by dividing a single, previously centrally governed unitary state into various sub-units, accompanied by a distribution of power between the center and the provinces.
8.2 Essential Features of Federal System
· It is a political system or governance setup where there are two or more levels of government in a single state.
· In a federal governance system, the division of power between various levels of government is established in the constitution itself, and these powers generally cannot be snatched away. They are permanent in nature. In this system, federal states function in a parallel manner alongside one another.
· Between the center and the states, a written constitution exists at both levels as the fundamental law; certain parts of the written constitution cannot be amended without the consensus of the central and provincial governments.
· For the formation of a federal state, at least two principles must be followed. First, the principle of autonomy, and second, the principle of division of power.
· In the world, the formation of federal states happens in two ways: the Coming Together Method and the Holding Together Method.
· In federalism, power distribution can be done in two ways: the Classical Model (where provinces independently enjoy specific powers) and the Interlocking Federal Model (where the federation creates model laws and provinces create detailed laws according to their context).
· Citizens of all castes, languages, religions, cultures, and communities receive recognition and respect according to their respective states.
8.3 Distribution of State Power in the Federal System
In federalism, there are two levels of government. There is a national government for the entire country and provincial or state governments for specific areas. Through a written constitution, legislative and financial powers are distributed to both levels of government, and such constitutional provisions regarding federalism cannot be changed without the substantive consensus of the central government along with the states.
In federalism, power distribution is seen to happen in two ways:
1. Classical Model (शास्त्रीय मोडेल): In the classical model, provinces independently enjoy specific powers, such as in Australia, Canada, and the United States of America.
2. Interlocking Federal Model (अन्तर बन्धन संघीय मोडेल): In this federal model, the federation creates model laws and provinces create detailed laws according to their context. In Germany and South Africa, provinces implement federal legal programs.
8.4 Merits and Demerits of the Federal System
Merits of Federal System (संघीय प्रणालीका गुणहरू)
· Appropriate method for the division of power.
· Effective for large countries, while also increasing the feeling of nationalism.
· Independent states join together to strengthen democracy through an all-round and inclusive medium.
· Since powers are distributed by separating the federation, provinces, and local levels within the constitution itself, there is no possibility of an autocratic government.
· Extensive participation of local citizens in development.
· Federal states function in a parallel manner alongside one another.
· It proves to be a boon for countries with diverse classes, castes, languages, and cultures, leading to respect for their diversity.
Demerits of Federal System (संघीयताका अवगुणहरू)
· Despite talk of power distribution, due to the lack of resources and means, it becomes overly expensive and unsustainable for small and poor countries.
· The tension of civil war can increase between provinces, and between provinces and the federation.
· Since separate executives, judiciaries, legislatures, and other bodies exist even at the local level, it is considered an expensive system.
· There is always a risk that units divided into the federation or states may break away as separate nations in the future.
· Possibility of disputes arising between geographical regions, classes, religions, castes, and ethnicities.
· Disputes can arise right at the beginning regarding the distribution of resources and natural wealth.
Chapter 9: Directive Principles of the State Policy
9.1 Constitutional Status and Techniques of Enforcement
The directive principles of the state refer to the political, social, economic, cultural, and foreign policies of the state. These direct and provide a guideline to the government. The directive principles, policies, and obligations of the state serve as guidance for state operation. Therefore, no question can be raised in any court regarding whether any matter therein has been implemented or not.
Constitutional Status and Techniques of Enforcement
In Part 4, Article 49 of the Constitution, the directive principles, policies, and obligations of the state are arranged as guidance for the operation of the state. Article 50, Clause (1) of the Constitution mentions that the political objective of the state shall be to strengthen the federal democratic republican system to ensure conditions where democratic rights can be enjoyed while embracing proportional principles.
Article 53 contains a provision stating, "The Government of Nepal shall submit an annual report regarding the works performed and achievements obtained in relation to the implementation of the directive principles, policies, and obligations of the state before the President, and the President shall arrange to present such report before the Federal Parliament through the Prime Minister." Article 54 mentions that there shall be a committee in the Federal Parliament in accordance with the law to monitor and evaluate whether the directive principles, policies, and obligations of the state have been progressively implemented or not.
Article 55 provides that no question can be raised in any court regarding whether any matter written in relation to the directive principles, policies, and obligations of the state has been implemented or not.
9.2 Comparison of Directive Principles with Fundamental Rights
A comparison between fundamental rights and directive principles can be made as follows:
|
Directive Principles |
Fundamental Rights |
|
|
1 |
The directive principles of the state refer to the political, social, economic, cultural, and foreign policies of the state. |
Fundamental rights refer to the rights that any citizen is entitled to enjoy from the state in their capacity as a citizen. |
|
2 |
These are included in the constitution merely with the constitutional status of a Code of Conduct. |
These are provided to individuals or citizens in a manner that protects and promotes human rights. |
|
3 |
Policies and directive principles are merely a code of conduct for the state; they direct and provide a guideline to the government. |
Fundamental rights are negative rights acquired by a citizen against the state. |
|
4 |
This serves as guidance for state operation. |
Fundamental rights guarantee the basic rights of citizens. |
|
5 |
No question can be raised in any court regarding whether the directive principles of the state have been implemented or not. (Article 55) |
In case fundamental rights are violated, questions can be raised in court for their remedy. |
|
6 |
Provisions regarding the directive principles, policies, and obligations of the state are made under Part 4, Articles 49 to 55 of the Constitution of Nepal, 2072. |
There are 31 fundamental rights from Article 16 to Article 46 under Part 3 of the Constitution of Nepal, 2072. |
|
7 |
It is not mentioned in the constitution itself that the state's directive principles must be implemented. |
It is explicitly mentioned in Article 47 of the constitution that these fundamental rights shall be implemented within 3 years of the commencement of this constitution. |
Chapter 10: Fundamental Rights
Fundamental rights of Constitution of Nepal, 2072
Fundamental rights mean the basic rights (Basic Rights) of a human being. These rights are essential for human livelihood and development. Fundamental rights are rights that a citizen receives against the state. Since most fundamental rights are a citizen's rights against the state, they are also called negative rights (Negative Rights). Therefore, fundamental rights mean the rights that any citizen is entitled to enjoy from the state in their capacity as a citizen. In countries with a written constitution, these are included within the constitution itself. The fundamental law of the state arranges fundamental rights in the constitution to ensure that a citizen's rights are not infringed upon by state actions carried out in the name of public interest, and to provide a system of constitutional remedies against such infringements.
Made by the Constituent Assembly and enforced from Ashwin 3, 2072 BS, the Constitution of Nepal, 2072 has arranged 31 fundamental rights for Nepali citizens. These fundamental rights are located from Article 16 to Article 46 under Part 3 of the Constitution. It is explicitly mentioned in Article 47 that these fundamental rights shall be implemented within 3 years of the commencement of the constitution. Alongside fundamental rights, the duties to be fulfilled by a citizen (Article 48) are also kept in the constitution.
List of Fundamental Rights
- Right to Live with Dignity (Article 16) — सम्मानपूर्वक बाँच्न पाउने हक
- Right to Freedom (Article 17) — स्वतन्त्रताको हक
- Right to Equality (Article 18) — समानताको हक
- Right to Communication (Article 19) — सञ्चारको हक
- Right Relating to Justice (Article 20) — न्याय सम्बन्धी हक
- Right of Victim of Crime (Article 21) — अपराध पीडितको हक
- Right Against Torture (Article 22) — यातनाविरुद्धको हक
- Right Against Preventive Detention (Article 23) — निवारक नजरबन्द विरुद्धको हक
- Right Against Untouchability and Discrimination (Article 24) — छुवाछूत तथा भेदभाव विरुद्धको हक
- Right Relating to Property (Article 25) — सम्पत्तिको हक
- Right to Freedom of Religion (Article 26) — धार्मिक स्वतन्त्रताको हक
- Right to Information (Article 27) — सूचनाको हक
- Right to Privacy (Article 28) — गोपनीयताको हक
- Right Against Exploitation (Article 29) — शोषण विरुद्धको हक
- Right to a Clean Environment (Article 30) — स्वच्छ वातावरणको हक
- Right Relating to Education (Article 31) — शिक्षा सम्बन्धी हक
- Right Relating to Language and Culture (Article 32) — भाषा तथा संस्कृतिको हक
- Right to Employment (Article 33) — रोजगारीको हक
- Right to Labour (Article 34) — श्रमको हक
- Right Relating to Health (Article 35) — स्वास्थ्य सम्बन्धी हक
- Right Relating to Food (Article 36) — खाद्य सम्बन्धी हक
- Right to Housing (Article 37) — आवासको हक
- Rights of Women (Article 38) — महिलाको हक
- Rights of the Child (Article 39) — बालबालिकाको हक
- Rights of Dalit (Article 40) — दलितको हक
- Rights of Senior Citizens (Article 41) — ज्येष्ठ नागरिकको हक
- Right to Social Justice (Article 42) — सामाजिक न्यायको हक
- Right to Social Security (Article 43) — सामाजिक सुरक्षाको हक
- Right of Consumer (Article 44) — उपभोक्ताको हक
- Right Against Exile (Article 45) — देश निकाला विरुद्धको हक
- Right to Constitutional Remedies (Article 46) — संवैधानिक उपचारको हक
- Implementation of Fundamental Rights (Article 47) — मौलिक हकको कार्यान्वयन
- Duties of Citizens [Article 48] — नागरिकको कर्तव्य
Chapter 11: Legislature-Parliament
The legislature is one among the three important organs of the state. The people, through their representatives, exercise their sovereignty within the legislature to draft, formulate, and manage acts, laws, and rules for themselves. The legislature is structured and operated based on concepts such as: sovereignty must reside in the people, the people govern themselves through laws they make, the people are supreme, and the representatives of the people are directly accountable to the people.
11.1 Constitution of legislature-parliament
According to the provisions of the Constitution of Nepal, the Constituent Assembly transformed into the Legislature-Parliament starting from Ashwin 3, 2072 BS. According to the definition in Rule 2 of the Legislature-Parliament Rules, 2073 BS, "Legislature-Parliament" means the Legislature-Parliament in accordance with Clause (1) of Article 296 of the Constitution of Nepal.
Based on the method of forming the legislature, it can be divided into a unicameral legislature (Unicameral Legislature) and a bicameral legislature (Bi-cameral Legislature).
In Part 8, Article 83 of the Constitution of Nepal, 2072, it is provided under "Federal Legislature" that: "There shall be a Federal Legislature consisting of two Houses, namely the House of Representatives and the National Assembly, which shall be called the Federal Parliament."
Other provisions made in the Constitution of Nepal, 2072:
· Article 84: Composition of House of Representatives (प्रतिनिधि सभाको गठन)
· Article 85: Term of House of Representatives (प्रतिनिधि सभाको कार्यकाल)
· Article 86: Composition of National Assembly and term of office of its members (राष्ट्रिय सभाको गठन र सदस्यहरूको पदावधि)
· Article 87: Qualifications for member (सदस्यका लागि योग्यता)
· Article 88: Oath (शपथ)
· Article 89: Vacation of seat (स्थानको रिक्तता)
· Article 90: Decision as to disqualification of member (सदस्यका लागि अयोग्यता सम्बन्धी निर्णय)
· Article 91: Speaker and Deputy Speaker of House of Representatives (प्रतिनिधि सभाको सभामुख र उपसभामुख)
· Article 92: Chairperson and Vice-Chairperson of National Assembly (राष्ट्रिय सभाको अध्यक्ष र उपाध्यक्ष)
· Article 175: State Legislature (प्रदेश व्यवस्थापिका)
· Article 176: Composition of State Assembly (प्रदेश सभाको गठन)
· Article 177: Term of State Assembly (प्रदेश सभाको कार्यकाल)
· Article 178: Qualifications for member of State Assembly (प्रदेश सभाको सदस्यका लागि योग्यता)
· Article 179: Oath of member of State Assembly (प्रदेश सभा सदस्यको शपथ)
· Article 181: Decision as to disqualification of member of State Assembly (प्रदेश सभा सदस्यको अयोग्यता सम्बन्धी निर्णय)
· Article 182: Speaker and Deputy Speaker of State Assembly (प्रदेश सभाको सभामुख र उपसभामुख)
11.2 Function of Legislature-Parliament
1. Electing the Speaker and Deputy Speaker, and nominating persons to preside over meetings.
2. Electing the President and Vice-President.
3. Preparing the daily agenda.
4. Electing the Prime Minister.
5. Presenting the annual policy and program of the Government of Nepal.
6. Discussing contemporary and topical issues.
7. Discussing motions of urgent public importance.
8. Amending proposals/motions.
9. Introducing ordinances.
10. Introducing bills.
11. Presenting and discussing estimates of revenues and expenditures (the budget).
12. Votes of confidence or no-confidence.
13. Impeachment motions against the President or Vice-President.
14. Impeachment motions against the head or members of constitutional bodies.
11.3 Privileges of Legislature-Parliament
Article 103 of the Constitution of Nepal, 2072, contains provisions regarding the privileges of the Federal Legislature, and Article 187 contains provisions regarding the privileges of the State Assembly. According to these articles:
(1) There shall be full freedom of speech in the House, and no member shall be arrested, detained, or prosecuted in any court for anything said or any vote given in the House.
(2) Subject to this Constitution, each House shall have full power to conduct and regulate its own business and decisions, and the concerned House alone shall have the power to decide whether any proceeding of the House is regular or irregular. No question shall be raised in any court in this regard.
(3) No comment or criticism shall be made against any proceeding of the House by raising doubts about its good faith, and no publication or broadcast of any kind shall be made by willfully giving a wrong or misleading interpretation of anything spoken by any member.
(4) No proceedings shall be initiated in any court against any person in respect of the publication of any document, report, vote, or proceeding under the authority granted by the House.
(5) No member of Parliament shall be arrested during the period from the issuance of the notice of a session until the termination of that session. However, nothing shall prevent the arrest of a member under law for any criminal charge.
(6) A breach of privileges shall be deemed to be contempt of the House, and the concerned House alone shall have the power to decide whether a breach of any privilege has taken place or not.
(7) If anyone commits contempt of the House, the person presiding over the concerned House may, upon a decision of the House, issue a warning, admonish, or sentence that person to imprisonment for a term not exceeding three months, or impose a fine up to ten thousand rupees. Such fine shall be recovered as government dues. However, if that person submits an apology to the satisfaction of the concerned House, the House may grant a pardon, remit, or commute the sentence imposed.
11.4 Committees System in Parliament
Rule 176 of the Legislature-Parliament Rules, 2073 BS, provides that committees can be formed. It contains provisions to form thematic committees and special committees under the Legislature-Parliament to assist in the regular functions of the Legislature-Parliament. In Rule 177, to make the government answerable and accountable to the Legislature-Parliament, and to monitor and evaluate the work and actions carried out by the government to give necessary directives or opinions and advice, provisions regarding thematic committees are made in Article 97 of the Constitution of Nepal, 2072. According to Article 97, the House of Representatives and the National Assembly may form committees in accordance with federal law. To manage the working procedures between the two houses of the Federal Parliament, to resolve differences on any bill, or for any other specific work, a joint committee shall be formed if either house passes a motion requesting it. It is provided that such a joint committee shall have a maximum of twenty-five members on the basis of inclusiveness, in the ratio of five members from the House of Representatives to one member from the National Assembly.
11.5 Dissolution of legislature-parliament
Article 76(1) of the Constitution of Nepal, 2072 provides that the President shall appoint the leader of the parliamentary party commanding a majority in the House of Representatives as the Prime Minister, and a Council of Ministers shall be constituted under his/her chairpersonship.
Article 76(7) of the Constitution of Nepal, 2072 gives the authority to dissolve the House of Representatives. According to Clause (7) of Article 76 of the Constitution, if the Prime Minister fails to obtain a vote of confidence or if a Prime Minister cannot be appointed, there is a legal provision where, upon the recommendation of the Prime Minister, the President shall dissolve the House of Representatives and fix a date for elections so that the election for another House of Representatives is completed within six months.
Article 76(7): "If the Prime Minister appointed under Clause (5) fails to obtain a vote of confidence or if the Prime Minister cannot be appointed, the President shall, on the recommendation of the Prime Minister, dissolve the House of Representatives and fix a date for elections so that the election for another House of Representatives is completed within six months."
11.6 Legislative (parliamentary) control over executive
If the legislature or parliament (the power to make laws) and the executive or government (the power to govern according to laws) happen to reside in the same place, then many legal provisions allowing the exercise of self-discretion can end up in the hands of rulers and administrators. In such a scenario, the government gets the opportunity to become highly autocratic in a legally structured manner. The parliament can maintain control over the executive through the processes mentioned below:
· By not giving a vote of confidence to the Prime Minister appointed under Article 76(4).
· By passing a motion of no confidence under Article 100.
· By not passing bills (parliamentary tasks like votes of confidence and motions of no confidence).
· By not approving ordinances.
· By not approving treaties and agreements.
· By not passing the removal of difficulties under Article 305.
· By not passing the budget, policies, and programs.
· By not giving a two-thirds majority vote for constitutional amendments.
· By keeping the Prime Minister and ministers accountable to the legislature.
Chapter 12: The Executive
12.1 Constitutional Role of the Head of the State
The Constitution of Nepal, 2072 designates the President as the Head of the State (मुलुकको राष्ट्रअध्यक्ष). The functions, duties, and powers of the President are as follows:
a. Powers relating to the Legislature (व्यवस्थापिका सम्बन्धी अधिकार)
b. Powers relating to the Executive (कार्यपालिका सम्बन्धी अधिकार)
c. Powers relating to the Judiciary (न्यायपालिका सम्बन्धी अधिकार)
d. Powers relating to the Military/Army (सेना सम्बन्धी अधिकार)
e. Power to declare a State of Emergency (संकटकाल घोषणा गर्ने अधिकार)
f. Power to remove difficulties (बाँधा अड्काउ फुकाउने अधिकार)
g. Powers relating to Annual Reports (वार्षिक प्रतिवेदन सम्बन्धी अधिकार)
h. Powers relating to making appointments (नियुक्ति दिने सम्बन्धी अधिकार)
i. Power to authenticate bills (विधेयकमा प्रमाणीकरण गर्ने अधिकार)
j. Issuing ordinances (अध्यादेश जारी गर्ने)
k. Power to confer titles, honors, and decorations (उपाधि तथा विभूषण प्रदान गर्ने अधिकार)
12.2 Formation of Council of Ministers
The formation of the Council of Ministers is found to happen in different ways depending on the nature of the executive. In a presidential system, the President chairs the cabinet, whereas in a parliamentary system, the Prime Minister chairs the cabinet. The Council of Ministers is formed based on the governance system of the executive.
Since Nepal's form of governance is a multi-party, competitive, federal, democratic, republican, parliamentary system based on pluralism, provisions exist regarding the formation of the Council of Ministers in the House of Representatives and the State Assembly. This arrangement is made in Article 76 and Article 168 of the Constitution.
12.3 Functions of the Council of Ministers
The Council of Ministers holds executive power in Nepal, with key responsibilities including:
· Ensuring smooth, efficient, and well-regulated national administrative activities.
· Coordinating efforts, fostering cooperation, and maintaining communication across all ministries.
· Monitoring the implementation of policies and providing necessary directives.
· Managing civil and military departments, including key appointments and transfers.
· Maintaining law and order while protecting the nation from external threats.
· Handling fiscal responsibilities, including taxation and development work.
· Managing foreign relations, including diplomatic appointments and treaties.
· Presenting and operating the national budget, and managing parliamentary affairs like sessions and legislation.
12.4 Role of the Prime Minister under the Constitution
The Prime Minister is the chief executive of the Government of Nepal and is elected by the Legislature-Parliament.
In a presidential system, since most of the important executive powers reside with the President, the Prime Minister is addressed as the head of government but is not provided with real and direct powers as in a parliamentary system. Article 74 of the Constitution of Nepal, 2072 mentions that the form of governance of Nepal shall be a multi-party, competitive, federal, democratic, republican, parliamentary system based on pluralism. Therefore, the constitution has accepted the post of Prime Minister as a crucial position.
Regarding the formation of the Council of Ministers in Article 76, it is mentioned that, "The President shall appoint the leader of the parliamentary party commanding a majority in the House of Representatives as the Prime Minister, and a Council of Ministers shall be constituted under his/her chairpersonship."
As the chairperson of the Council of Ministers, the Prime Minister plays a vital role in all works performed by the Council of Ministers. Therefore, the work done by the Council of Ministers is effectively the work of the Prime Minister.
12.5 Responsibility and accountability of the council of ministers
Article 74 of the Constitution of Nepal, 2072 mentions that the form of governance of Nepal shall be a multi-party, competitive, federal, democratic, republican, parliamentary system based on pluralism. Therefore, the constitution has accepted the post of Prime Minister as a crucial position. Since the parliament forms the Council of Ministers through the Prime Minister in a parliamentary system, the Council of Ministers must remain responsible and accountable to the parliament and the people. Article 76(10) of the Constitution of Nepal, 2072 provides that the Council of Ministers of Nepal shall be accountable to the parliament. It states, "The Prime Minister and Ministers shall be collectively responsible to the Federal Parliament, and a Minister shall be individually responsible to the Prime Minister and the Federal Parliament for the work of his/her ministry." Similarly, Article 168(10) provides for the responsibility of the State Council of Ministers, stating, "The Chief Minister and Ministers shall be collectively responsible to the State Assembly, and Ministers shall be individually responsible to the Chief Minister and the State Assembly for the work of his/her ministry."
(क) कानूनी उत्तरदायित्व (Legal Responsibility)
(ख) व्यवस्थापिका (संसद) प्रति सामूहिक उत्तरदायित्व (Collective Responsibility towards Legislature-Parliament)
(ग) व्यवस्थापिकाप्रति व्यक्तिगत वा विभागीय उत्तरदायित्व (Personal or Departmental Responsibility towards Legislature-Parliament)
Chapter 13: Judiciary
13.1 Concept of the Independence of Judiciary and Constitutional provisions
According to Article 126(1) of the Constitution of Nepal, powers relating to justice in Nepal shall be exercised by courts and other judicial bodies in accordance with this Constitution, other laws, and recognized principles of justice.
13.2 Court structure
Clause (1) of Article 127 of the Constitution provides that there shall be a Supreme Court, High Courts, and District Courts in Nepal. According to Clause (2) of Article 127 of the Constitution, in addition to the three levels of courts mentioned above, local judicial bodies may be formed at the local level to hear cases, or alternative dispute resolution mechanisms may be adopted by forming other bodies as necessary according to law. Besides this, Clause (1) of Article 152 provides that other specialized courts, judicial bodies, or tribunals may be established in accordance with federal law to try and settle cases of a specific nature and type.
13.3 Supreme Court
Article 128. Supreme Court:
(1) There shall be a Supreme Court in Nepal.
(2) The Supreme Court shall be a court of record. Except as otherwise provided in this Constitution, all courts and judicial bodies shall be subordinate to the Supreme Court. The Supreme Court shall have the final authority to interpret the Constitution and laws.
(3) The Supreme Court may inspect, supervise, and give necessary directives regarding judicial administration or management to itself and the courts, specialized courts, or other judicial bodies falling within its jurisdiction.
(4) All must abide by the interpretation of the Constitution and laws or the legal principles settled by the Supreme Court in relation to lawsuits. If anyone obstructs the administration of justice by the Supreme Court or its subordinate courts, or intentionally disregards its orders or judgments, the Supreme Court may initiate proceedings for contempt and impose punishment in accordance with law.
13.4 Appointments and qualifications of Judges of the Supreme Court
Article 129. Appointment and qualifications of Chief Justice and Judges of Supreme Court:
(1) In addition to the Chief Justice of Nepal, there shall be a maximum of twenty Judges in the Supreme Court.
(2) The President shall appoint the Chief Justice on the recommendation of the Constitutional Council, and other Judges of the Supreme Court on the recommendation of the Judicial Council.
(3) Any person who has worked as a Judge of the Supreme Court for at least three years shall be eligible for appointment as the Chief Justice.
(4) The term of office of the Chief Justice shall be six years.
(5) A Nepali citizen who holds a bachelor's degree in law and has worked as the Chief Judge or a Judge of a High Court for at least five years, OR has continuously practiced law for at least fifteen years as a Senior Advocate or Advocate, OR is a distinguished jurist who has worked continuously for at least fifteen years in the field of law or justice, OR has worked for at least twelve years in a gazetted first class or higher post of the Judicial Service shall be deemed eligible for appointment as a Judge of the Supreme Court.Explanation: For the purpose of this clause, the period during which a person worked as the Chief Judge or a Judge of an Appellate Court before the commencement of this Constitution shall be counted as the period of work in the capacity of the Chief Judge or a Judge of a High Court.
(6) If the office of the Chief Justice becomes vacant, or if the Chief Justice becomes unable to carry out the duties of his/her office due to any reason, or goes on leave, or is outside Nepal and cannot be present in the Supreme Court, the senior-most Judge of the Supreme Court shall act as the Acting Chief Justice.
13.5 Conditions of service and privileges of the Chief Justice and other Judges
Article 130. Conditions of service and privileges of Chief Justice and Judges:
(1) If the Chief Justice or a Judge of the Supreme Court resigns after serving for at least five years, reaches the age of mandatory retirement, or dies, they or their family shall receive a pension in accordance with federal law.
(2) Except as otherwise provided in this Constitution, the remuneration and other conditions of service of the Chief Justice and Judges of the Supreme Court shall be in accordance with federal law.
(3) Notwithstanding anything contained in Clauses (1) and (2), a Chief Justice or Judge of the Supreme Court who has been removed from office through impeachment or has been convicted by a court of a criminal offense involving moral turpitude shall not receive a gratuity or pension.
(4) The remuneration and other conditions of service of the Chief Justice or a Judge of the Supreme Court shall not be altered to their disadvantage. However, this provision shall not apply in a state of emergency declared due to extreme economic breakdown.
13.6 Removal of the Chief Justice and the Judges of the Supreme Court
Article
131. Vacation of office of Chief Justice or Judge of Supreme Court:
The office of the Chief Justice or a Judge of the Supreme Court shall become
vacant in any of the following circumstances:
(क) If he/she submits a written resignation to the President.
(ख) If he/she attains the age of sixty-five years.
(ग) If a motion of impeachment against him/her is passed under Article 101.
(घ) If the President removes him/her from office on the recommendation of the Constitutional Council (in the case of the Chief Justice) or the Judicial Council (in the case of a Supreme Court Judge) on the ground that he/she is unable to perform his/her duties due to physical or mental illness.
(ङ) If he/she is convicted by a court of a criminal offense involving moral turpitude.
(च) If he/she dies.
13.7 Jurisdiction of the Supreme Court (सर्वोच्च अदालतको अधिकार क्षेत्र)
1. Ordinary Jurisdiction (साधारण अधिकार क्षेत्र)
(क) Original jurisdiction / Right to hear initial cases (शुरु मुद्दा हेर्ने अधिकार)
(ख) Appellate jurisdiction / Right to hear appeals (पुनरावेदन सुन्ने अधिकार)
(ग) Power to review referred/verified cases (साधक जाहेरी हेर्ने अधिकार)
(घ) Power to review and grant permission to revise cases (मुद्दा दोहोऱ्याई हेर्ने अधिकार)
(ङ) Power of judicial review over its own decisions (पुनरावलोकन गर्ने अधिकार)
2. Extra-ordinary Jurisdiction (असाधारण अधिकार क्षेत्र)
(क) Right to Judicial Review (न्यायिक पुनरावलोकनको अधिकार)
(ख) Right to issue Prerogative Writs (विशेषाधिकार सम्पन्न रिटहरू जारी गर्ने अधिकार)
i. Habeas corpus (बन्दीप्रत्यक्षीकरण)
ii. Mandamus (परमादेश)
iii. Certiorari (उत्प्रेषण)
iv. Prohibition (प्रतिषेध)
v. Quo warranto (अधिकारपृच्छा)
13.8 Contempt of court (अदालतको अवहेलना)
Provisions and arrangements regarding the contempt of court in the Constitution of Nepal, 2072:
1. Article 128(4): It contains a provision stating that all must abide by the interpretation of the Constitution and laws or the legal principles settled by the Supreme Court in relation to lawsuits. If anyone obstructs the administration of justice by the Supreme Court or its subordinate courts, or intentionally disregards its orders or judgments, it may initiate proceedings for contempt and impose punishment in accordance with the law.
2. Article 139(2): It provides that if anyone obstructs the administration of justice by a High Court or its subordinate courts or judicial bodies, or intentionally disregards its orders or judgments, the High Court may initiate proceedings for contempt and impose punishment in accordance with federal law.
3. Article 151(1): It provides a provision that a District Court shall have the power to initiate proceedings for contempt and impose punishment in accordance with federal law if anyone obstructs the administration of justice by itself or its subordinate courts, or intentionally disregards its orders or judgments.
Chapter 14: Principles of Constitutional Interpretation
14.1 Theory of direct and inevitable effect of fundamental rights
Among the principles of constitutional interpretation, the theory of the direct and inevitable effect of fundamental rights conceptualizes that no organ of the state should impose restrictions on matters that directly and inevitably relate to fundamental rights. It holds the premise that the rights granted to citizens against the state, which are arranged as fundamental rights in the constitution, must not be infringed upon.
14.2 Doctrine of Fraud on Constitution
The main objective of this doctrine is that when interpreting the constitution, one must not interpret it in favor of one's own self-interest contrary to the meaning, spirit, or intent of the provisions arranged therein. If any article, preamble, or schedule of the constitution is misinterpreted and forcefully implemented, it is called the doctrine of fraud on the constitution.
14.3 Doctrine of Harmonious Construction
The premise of this doctrine is that when interpreting the constitution, it must be interpreted in a way that makes all its parts, articles, and clauses effective. When interpreting the constitution, conflicts regarding all its provisions must be removed, and a harmonious interpretation must be made.
14.4 Doctrine of Severability
If the constitution conflicts with an act made by the legislature-parliament, or a rule made by the executive, the principle of interpreting the act of declaring such conflicting legal clauses invalid and void is called the doctrine of severability. If laws are made in conflict with the constitution, such laws automatically become void. Separating or setting aside these conflicting provisions and interpreting the remaining legal provisions is referred to as the doctrine of severability.
14.5 Doctrine of Colorable Legislation
When a body goes outside the limits of power granted by the constitution, ignores the spirit and essence of the constitution, and commits bad faith fraud in an improper manner, it is called the doctrine of colorable legislation. This refers to fraud committed by making laws contrary to the constitution. Laws made in this manner are considered fraudulent or deceptive laws. The saying of this doctrine is that such fraudulent laws must be declared void through the medium of judicial review.
14.6 Doctrine of Political Questions
By political questions, it is understood as purely political matters. Since courts are fully bound by acts and rules, this doctrine holds the premise that the court must not enter into political subject matters.
Chapter 15: Political Parties
Constitutional provisions governing Political parties
Article 17(2)(ग): In Article 17, Clause 2, Sub-clause (c) of the Constitution of Nepal, 2072, alongside stating that no person shall be deprived of personal liberty except in accordance with law, it contains a provision that every citizen shall have the freedom to form a political party.
Article 269: Provision regarding the formation, registration, and operation of political parties is made in Part 29, Article 269 of the Constitution of Nepal, 2072.
Article 270: It is mentioned that making any law, arrangement, or decision to place a ban on political parties shall be contrary to the constitution, and placing a ban to restrict political parties in the constitution itself shall be contrary to the constitution, and such an arrangement shall automatically be invalid.
Article 271: There is a provision that a party must be registered with the Election Commission to obtain recognition as a political party for the purpose of elections.
Article 272: The constitution makes a provision that the formation, registration, operation, facilities, and other matters relating to political parties under this section shall be in accordance with federal law.
Chapter 16: Provisions regarding Amendment of the Constitution
The constitution must be progressively amended in accordance with the economic, social, and political values and beliefs of society. Through this medium, it helps maintain constitutional supremacy, legal supremacy, the rule of law, and constitutionalism. The articles contained within the constitution must match the sentiments of all citizens. Arrangements are made for the public interest, and for this reason, timely amendments to the constitution become necessary. The constitution is amended by the representatives of the people after completing the required constitutional arrangements or procedures. The act of altering various articles of the constitution is the amendment of the constitution.
Provisions regarding constitutional amendment are made in Part 31, Article 274 of the Constitution of Nepal, 2072.
Chapter 17: Provisions regarding Emergency Power
If a grave emergency arises in the nation due to war, external aggression, armed rebellion, extreme economic breakdown, natural disaster, or pandemic threatening the sovereignty, geographical integrity, or security of any part, such a time is called a state of emergency. This brings a negative impact on the peace, security, law and order, and national unity of the country. To overcome such a state of crisis, the state is granted the power to declare an emergency under the constitution. During an emergency, authority is also given to place restrictions on certain fundamental rights.
Provisions regarding emergency powers are made in Part 30, Article 273 of the Constitution of Nepal, 2072.
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