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Nepal - Government

A new constitution, drafted by a small group of individuals hand-picked by the king and the leaders of the political parties, was enacted in 1990. The 1990 constitution was a compromise document. It recognized the country’s diversity by acknowledging the country’s multiethnic and multilingual character and, by and large, granted the prerequisite civil and political liberties for a democratic system. More radical calls for the election of a constituent assembly or the demand to declare Nepal a secular state, however, were ignored. The constitution also continued to define the state as a Hindu monarchical kingdom with the king retaining crucial control over the army.

The country made considerable strides since the end of a ten-year Maoist insurgency in 2006. While the Constituent Assembly [CA] had the prime responsibility of drafting a new constitution for Nepal, it also functioned as a regular Parliament. Through the fourth amendment to the interim constitution of Nepal on May 28, 2008, the CA also established, for the first time, a largely ceremonial President as the constitutional head of state, as well as a Vice President. The Prime Minister continued to be the head of the government.

The CA consisted of 601 members, with 240 elected by a first-past-the-post system; 335 by proportional representation; quotas for Dalits, oppressed caste/indigenous ethnic groups, Madhesis, women, and other underrepresented groups; and 26 nominated by the cabinet.

Nepal held free and fair Constituent Assembly elections in 2008 and 2013, completed the integration of former combatants into the Nepalese Army, and promulgated a nw constitution in 2015. However, widespread dissatisfaction with some constitutional provisions led to prolonged protests across much of Nepal’s southern Terai belt, as well as a prolonged blockage of Nepal’s border with India.

In April 2009 several of Nepal's political parties represented in the Constituent Assembly developed concept papers on the new constitution and presented them to the Constitutional Committee. The papers are essentially draft constitutions and represent different ideas for how the country should be governed.

The paper presented by the major opposition party, the Nepali Congress, envisions a multi-party democracy, the Federal Democratic Republic of Nepal. It stresses the supremacy of the constitution, separation of powers, government by popular representatives, and basic human rights, including press freedom. There would be a bicameral legislature, with a prime minister to exercise executive power, at the center of the government and unicameral bodies in the provinces and towns. In addition, a president would be elected indirectly, through electoral colleges, to serve as the ceremonial head of state, to protect the constitution, and to head the army, which would be a professional force. An independent judiciary would constitute a third branch of the government.

The head of the Nepali Congress, Girija Prasad Koirala, when presenting his party's ideas, stated, “[w]e should be careful while adopting federalism as there is always the possibility of the country disintegrating. Therefore, national integration should be the main basis of federalism.” He added that provincial borders should be drawn with fair distribution of natural resources in mind.

The heads of two other political parties, the Rastriya Prajatanta (RPP) and the Communist Party of Nepal, Marxist-Leninist (CPN-ML), also released concept papers, proposing multi-party, parliamentary democracies led by a prime minister, with a ceremonial president. The RPP proposal involves selecting the prime minister by the Westminster system (based on the British model, with the head of the largest party in the legislature as the prime minister), while the CPN-ML favors holding a direct election for that position. Other political parties opposed creating a secular state or supported keeping a monarchy.

The drawn-out debate on the structure of possible future federal sub-division of Nepal continued to absorb significant attention and energies of politicians and government officials, and constrain the ability of political parties to reach consensus on other key issues such as compensation for victims of the insurgency and returning of properties seized to their rightful owners.

Constitution of Nepal 2015

The Constitution of Nepal 2015 (2072) is the seventh constitution of Nepal. This is the first Constitution made and adopted by the Constituent Assembly (CA) which was specifically elected for this purpose. It was proclaimed by the President of Nepal on September 20, 2015 (Asoj 3, 2072). Nepal is a federal democratic republic. The political system is based on the constitution promulgated 20 September 2015, replacing the Interim Constitution of Nepal 2063 (2007). The new constitution [which is an insanely detailed 240 page document - 308 Articles, nine Annexes and Preamble] establishes a framework for a prime minister as the chief executive, a bicameral parliament, and seven provinces. The Constituent Assembly, which had been charged under the interim constitution with bringing Nepal a constitution, transformed into the country’s parliament the moment the constitution was promulgated.

Due to the distrusts among the parties, things were unnecessarily elaborated. Many matters were dealt in the Constitution extensively. They should better have been put into an ordinary law. Therefore, the constitution does not seem to be the Basic Law, which usually only sketch the basic principles of the statehood.

The main structure of the Federal Democratic Republic of Nepal are of three levels, namely the Federation, the State and the Local level. Any law to be made by the State Assembly, Village Assembly or Municipal Assembly shall be so made as not to be inconsistent with the Federal law, and any law made by the State Assembly, Village Assembly or Municipal Assembly which is inconsistent with the Federal law shall be invalid to the extent of such inconsistency. According to legal experts and leaders of religious minorities, the constitutional stipulation to protect the “age-old religion” was interpreted by the drafters of the constitution to mean protection of Hinduism.

The President is the head of state of Nepal. The President is elected by an electoral college composed of the members of the Federal Parliament and of the State Assemblies. The voting weightage of the members of the Federal Parliament and of the State Assemblies shall vary as provided for in the Federal law. The term of office of the President is five years from the date on which he or she is so elected. The form of government of Nepal is multi-party, competitive, federal, democratic, republican, parliamentary form of government based on pluralism. The executive power of Nepal is vested in the Council of Ministers. The President may, on recommendation of the Prime Minister, appoint a person who is not a member of the Federal Parliament as a Minister.

The President appoints the leader of a parliamentary party that commands majority in the House of Representatives as the Prime Minister, and the Council of Ministers shall be constituted under his or her chairpersonship. In cases where no party has a clear majority in the House of Representatives, the President appoints as the Prime Minister a member of the House of Representatives who can command majority with the support of two or more parties representing to the House of Representatives.

The Federal Legislature consists of two Houses to be known as the House of Representatives and the National Assembly, which shall be called the Federal Parliament. The House of Representatives shall consist of a total of two hundred and seventy five members. One hundred and sixty five members to be elected through the first past the post electoral system, with one being elected from each election constituency of one hundred and sixty five election constituencies delimited in the country on the basis of geography and population. One hundred and ten members are o be elected through the proportional electoral system where voters vote for political parties, with the whole country being considered as a single election constituency.

Representation shall be ensured on the basis of a closed list also from women, Dalit, indigenous peoples, Khas Arya, Madhesi, Tharu, Muslims and backward regions, on the basis of population. In so fielding candidacy, regard shall also be had to geography and territorial balance. At least one third of the total number of members elected from each political party representing in the Federal Parliament must be women.

Unless dissolved earlier, the term of the House of Representatives shall be five years. The term of office of the members of the National Assembly shall be six years. The term of office of one third of the members of the National Assembly shall expire in every two years.

Nepal's judiciary is legally separated from the executive and legislative branches and, in practice, has increasingly shown the will to be independent of political influence. However, by asserting executive control over the judiciary, the interim constitution called into question this independence. Under the interim constitution, the Prime Minister appoints the Chief Justice on the recommendation of the Constitutional Council, and the Chief Justice appoints other judges on the recommendation of the Judicial Council. All lower court decisions, including acquittals, were subject to appeal. The Supreme Court was the court of last appeal.

Under teh 2015 Constitution, the Supreme Court specialized on constitutional issues by creating provision for a constitutional bench. Five judges will be assigned to this bench. Further, Constitutional Council will nominate the chief justice and head and members of the constitutional commissions. The Judicial Council will nominate the judges of the Supreme, High, and District Courts; the judicial system is an integrated one. Apart from Supreme Court, Nepal will have High Court in each province and District Courts as necessary.

The new constitution adopted in September 2015 and the law provide for freedom of speech and press, and the government generally respected these rights. In some cases the government failed to enforce the law effectively. Human rights lawyers and some journalists stated that the new constitution expands the ability of the government to restrict freedom of speech and press in ways they considered vague and open to abuse. The government had the authority under the 2007 interim constitution to “reasonably” restrict acts undermining the country’s sovereignty, territorial integrity, or public order; acts jeopardizing the “harmonious relations” among various communities; and acts of defamation and contempt of court. The new constitution provides more circumstances under which laws curtailing freedom of speech and press could be formulated. These include acts that “jeopardize harmonious relations between federal units” and acts that assist a foreign state or organization to jeopardize national security. The new constitution prohibits any acts that are “contrary to public health, decency, and morality” or that “disturb the public law and order situation.” The same provision of the constitution also prohibits persons from converting other persons from one religion to another or disturbing the religion of others.

The demarcation of the provincial borders were to be finalized by the Federal Commission and the provinces will be named through two-third majority in the provincial parliament. [Article 295] As of 2010 The Maoist model proposed 14 provinces and sub-provinces, with 800 to 900 districts so people will have easy access to district headquarters. The UML has proposed 15 provinces on the basis of ethnicity as well as linguistic, cultural, geographical and historical factors. The Madhesi Janadhikar Forum has a one-point agenda of the One Madhes Prades, comprising the Tarai from Jhapa in the east to Kanchanpur in the west, with the Siwalik hills as the northern border. The proposed province comprised 18.5 per cent of the country's total area.

A new Constitution promulgated in Nepal on 20 September 2015 failed to satisfy the Madheshis and Tharus who constitute 70 percent of the Terai population. They regarded the formation of seven federal provinces under the Constitution as grossly unfair to them. Only eight districts in the Terai region, from Saptari in the East to Parsa in the West, were given the status of a province; the remaining 14 districts were joined with the hill districts, with the sole purpose of converting the local people into a minority. The Madheshis and Tharus were sidelined in the entire constitution making process due to prevailing distrust towards them among the mainstream political parties.