PDF generated: 17 Jan , Unofficial translation by Nepal Law Society, International IDEA, and UNDP. This complete constitution has. The Constitution of Nepal. Date of Publication in Nepal Gazette. 20 September (). Preamble: We, the Sovereign People of Nepal,. Internalizing the . Unofficial translation. CONSTITUTION OF NEPAL Constituent Assembly Secretariat. Singha Durbar. UNOFFICIAL TRANSLATION BY.

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Constitution of Nepal (official English translation by the Ministry of Law, Justice and Parliamentary Affairs of Nepal). Download PDF. Constitution of Nepal . Adopted on: Entry into force: ISN: NPLC Bibliography: Unofficial English translation, PDF of Constitution in English PDF of. The Constitution of the Kingdom of Nepal, Date of red seal and Gazette Publication: /11/1 (Section 8, additional issue 32). PREAMBLE. Whereas His.

It provides for a parliamentary form of government. The Fundamental Rights have been envisaged in detail. It provides for a bicameral parliament: the House of Representatives and the National Assembly.

The Constitution is federal in structure. The Constitution prohibits its amendments to the extent of altering the principles of self-rule of Nepal, the sovereignty by people and altering its territorial integrity. Accordingly it vests the sovereignty in people.

In the realm of foreign affairs, the right to enter treaty with other nations has been vested in the federal government. Leader of the opposition in the House of Representatives has also been included in the Constitutional Council. The competence of the three tiers of legislature the federal, the provincial and the local has been separately outlined. The list of Fundamental Rights is a long list and it includes the rights regarding mass media, justice, victims of crime, the Dalits, senior citizens, social justice, social security and exile.

Above all, it is said that the new Constitution of Nepal has made it a republic from a kingdom. In the context of policing in Nepal, Article of the Constitution constitutes a national Nepal Police, which will work under a federal law. The provinces have been authorized to have their own provincial police organizations.

For the local government, there is a provision for legislation for municipal police. The two countries witnessed a plethora of constitutional developments. In case of Pakistan, three major constitutions of , and may be equated with the changing constitutional documents of Nepal in the years , and The Constitution of Pakistan provided the legal framework for local government in form of Basic Democracies and the presidential system; likewise, the Constitution of Nepal aimed at introducing the raj by panchayat local government system.

The Fundamental Rights provided by the Constitution of Nepal are similar in nature to the Fundamental Rights as provided by the Constitution of Pakistan, There is only an enabling provision in the form of A provided through the Eighteenth Amendment to the Constitution of Pakistan that caters to this aspect of the government. The Nepal Constitution also provides the textual basis for doctrine of basic structure as propounded in India in Kesavananda Case by specifically providing aspects of the Constitution that cannot be amended.

Another distinguishing feature is that the Constitution of Pakistan, has legalized the religious dictates by codifying the same into its body, whereas, no such attempt has been made in the new Nepalese Constitution. The substantive nature of the Objectives Resolution that was introduced through Article 2-A into the Constitution of Pakistan is another feature unique to it, and obviously different from the Nepalese Constitution. One aspect, which may be of interest, is that the First Constituent Assembly of Nepal did not grant itself a second term when it could not finish the task of constitution writing; the Constituent Assembly of Pakistan on its inability to complete its constitutional task instead of caring to get itself re-elected, opted to continue.

This aspect of the matter has been highlighted just by the way of comparison. An article-by-article comparison of the two constitutions qualifies for a detailed academic project, which should surely be undertaken by the academics. The purpose here was just to outline the characteristics.

The continuity of a Constitution is tested best on the anvil of time. The constitutional developments in South Asia form an important part of its study. The Constitution of Nepal, , in its present form, may be seen as an evolutionary step towards its nation-building, instead of as a culminating end unto itself. To illustrate it more succinctly, the then Rana Prime Minister Padma Shamsher had got enacted the Nepal government Act, in a bid to suppress the rising discontentment among the people against the Ranacracy.

King Mahendra tactfully connived for drafting the Constitution of the Kingdom of Nepal, so as to present it as a mixed document retaining the supremacy of monarchy under the guise of multi-party system.

In fact, this document was prepared as a strategy to salvage the promise made by King Tribhuvan in , on his return from India following the tripartite Delhi Pact, to give to the Nepali people the next Constitution drafted by a Constituent Assembly. But, subsequently, King Tribhuban did not remain true to his promise made to the nation.

Even far more worse was the reason behind the enactment of the Panchayat Constitution of Nepal promulgated by King Mahendra in The Pachayat Constitution was promulgated by the King to further tighten his absolute grip over the system of governance under the guise of so-called partyless Panchyat democracy. However, in the following days the political leaders freely indulged in deliberate abuse and misuse of the multi-party democratic system with a view to promoting their vested political interests.

This gave rise to the 10 year long armed rebellion started by the Maoists followed by the autocratic, authoritarian and unconstitutional rule of King Gyanendra for the last few years.

Finally, the Interim 1 Dr. The Constitution of Nepal: A Critique Constitution of Nepal came as a compromise document between the mainstream political parties and the rebellious Maoist forces following the Comprehensive Peace Accord signed in November The Interim Constitution was solely guided by the twin objectives of managing the peace process and bringing the transitional period to a successful conclusion by enacting a democratic constitution of the Republic through the Constituent Assembly.

This constitution seems to be rather more comprehensive which promises to charter a road map for the creation of a new democratic Nepal through efective social, political and economic transformation by ending or eliminating discriminations, exploitations and feudalism deeply rooted in the socio-political and economic structure of Nepal.

The act of constitution making is a highly complex process, more so in the context of a post-conlict society. It is expected to be capable of facilitating the ongoing dialogues and discussions at the national level so as to achieve coordination among conlicting claims and opinions all through the peace process. Expect constitution making process and participatory Constitution making process are generally the two main models commonly adopted around the world for constitution making.

What marks the diference between those two models is relected in the process of constitution making and its outcomes.

नेपालको संबिधान २०७२

In the expert constitution making process the sovereign authority delegates its power to an expert committee to draft the Constitution which is subsequently adopted and formalized as per the law. On the contrary, in the participatory constitution making process the duly elected representatives of the people and the political leadership together lay down the political philosophy, concepts and guidelines, and provide the political road map for the governance and socio-economic transformation of the State.

Thereafter, may be, sometimes even with the help of some experts the constitutional roadmap is translated into a well-knit constitutional document. All the preceding six constitutions of Nepal were in some way or the other prepared by constitutional experts and intelligentsia, sometimes with limited involvement of also the representatives of some political parties.

However, it is for the irst time that the present Constitution of Nepal has been prepared solely by a Constituent Assembly adopting the participatory process. In this sense, the present Constitution looks unique in itself for being an efective expression of the sovereignty vested in the people.

But the promulgation of the new Constitution of Nepal has passed through a painful process. The irst Constituent Assembly, despite repeated extension of its tenure, could not make the Constitution on account of serious diferences among the conlicting political forces chiely in respect of the issues relating to arms management and integration of the Maoist armed forces in the national army, governance system of the State, federalism, electoral process and the judicial system.

Even the second Constituent Assembly had faced the eminent danger of dissolution without making the Constitution due to the persistent rigid stand of the leading political parties and the mutual bickerings among them.

However, the devastating earthquake of April 25, came as a blessing in disguise which forced NJA LAW Journal the three major political parties, besides one political party self-claiming to represent the voice of Madhesh, to get over their political diferences and execute a Point political understanding on Jyestha 25, It was this political understanding which served as the foundation for enactment and historical promulgation of the new Constitution of Nepal on Sep.

नेपाली संविधान २०७२

This huge number of assenting members has been trumpeted as an indicator of the widest acceptance of the Constitution. Notwithstanding all this, the new Constitution could not acquire unanimous acceptability all through Nepal as its promulgation was unfortunately greeted with boycott, blackout and even violent protests all through the Tarai districts. The Constitution was dubbed in many instances even discriminatory and unjust towards the Madheshi people.

However, even though the Madheshi community expressed widespread dissatisfaction with several provisions of the Constitution relating to proportional representation, inclusion, citizenship and demarcation of the State territories, no agitating group of Madhesh has outright rejected or dismissed the Constitution in its totality.

So let us irst start analyzing briely the salient features of the Constitution. French Constitution of was drafted by the National Assembly with technical support from a Constitutional Committee. Of some other important countries which promulgated their Constitutions through CA, Norway delivered its Constitution in , Russia in , Germany in , Ireland in , India in , Pakistan in , Italy in , Israel in , Turkey in , Namibia in , Colombia in , Ethiopia in , South Africa in , East Timor in , Venezuela in and Lithuania in Source: Republica, July 6, The Constitution of Nepal: A Critique 2.

Salient Features of the New Constitution The measuring rod of the beauty of any Constitution consists of three components, namely, the constitution making process, the contents of the Constitution and the norms and values enshrined in the constitutional document. The present Constitution has been obviously participatory, at least in principle, as it has been prepared by a Constituent Assembly having efective membership of representatives out of a total of members.


Another signiicant aspect of the participatory process is relected by the representation of members belonging to various classes, castes, communities and religions.

However, apart from the participatory process of constitution making, the inherent quality of its contents and wider acceptance of the norms and values enshrined in the Constitution are equally important for the successful functioning of the Constitution. In addition to all this, the new Constitution has imbibed and incorporated some universally accepted ingredients of Constitutionalism such as sovereignty vested in the people, the doctrine of separation of power, adult franchise and periodic elections, independent, impartial and competent judiciary, basic liberties of the people, freedom of press, rule of law and constitutional supremacy.

The Preamble of the Constitution has also forcefully declared that the Constitution has been promulgated with the pious intention of fulilling the aspirations of achieving perpetual peace, good governance, development and prosperity through the medium of federal democratic republican system expressing commitment to and embracing the basic constitutional values.

It appears progressive in its outlook as it seems to have enough space for accommodating changes and new values as per the needs of the changing times. A Constitution is supposed to be a living, dynamic document which should be capable of addressing the future challenges, emerging aspirations of the people and changing context of the times.

Except the provisions relating to self-rule of Nepal, sovereignty, territorial integrity and sovereignty vested in the people4, the new Constitution of Nepal has allowed space for moving amendment to any Article, whatsoever, of the Constitution.

However, such an amendment shall require endorsement by a two-thirds majority of the existing members in both houses of Federal Legislature.

Thus as propounded by the Supreme Court of India in the landmark constitutional case of Keshavanand Bharti vs. State of Kerala,5 the new Constitution has also imbibed the doctrine of basic structure and described 4 Constitution of Nepal , Art.

In this way, the new Constitution has allowed adequate space for introducing amendments to the Constitution so as to address and incorporate necessary changes as and when required. This lexibility of the Constitution promises to make it a living, dynamic document. Whereas the preceding Interim Constitution of Nepal had provided for 21 fundamental rights, the present Constitution has improved the list by guaranteeing ten more basic rights, thereby taking the tally to 31 fundamental rights in all.

Perhaps, our Constitution may compete for the top position among the world constitutions in guaranteeing plethora of fundamental rights of the people. The Constitution has been liberal enough to incorporate and assimilate most of the major social, political, economic and cultural rights of the people as provided in the international human rights law including the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights Article 42 of the Constitution has identiied the people belonging to marginalized classes and communities such as women, Adivasi Janajati, Dalits, Madheshi, Tharu, Muslim etc.

All said and done, there should be no hesitation to point out that, on the whole, the exhaustive list of fundamental rights looks more populist than practical. It will be a Herculean task for the State to create an environment for the realization of some of the fundamental rights which will obviously require huge means and physical resources.

Constitution of Nepal

Despite all sweet music played and presented by the Royal rulers in the past and by the political parties after restoration of democracy in , the overall situation has not made any major improvement. However, the ever increasing awareness among the common people about their rights and interests has exerted considerable pressure on the political maestros to think seriously about addressing those issues.

The ten year long armed conlict raged by the Maoist rebels as well as the Madhesh uprising of were basically triggered by the rising concern for ending systemic discriminations and exploitations embedded in the Nepali society. Besides, the debate regarding the issue of inclusion and participation in the political and administrative structure of the nation has also occupied a central place. No doubt, the present Constitution has tried to address those vital issues to a considerable extent.

Nevertheless, still a lot The Constitution of Nepal: A Critique more needs to be done to make the constitutional arrangements more inclusive and compatible with the concept of proportional inclusion. The First Amendment introduced to Article 42 of the Constitution ensuring proportional representation in the State structure can be taken as a step in the right direction.

This National Inclusion Commission shall be mandated to carry out research and studies for protective rights and welfare of various classes and communities which are less privileged and marginalized, to review and reform the State Policy in regard to more inclusion, to conduct study about the rightful representation of the speciied categories of people in the State mechanisms and for further empowerment, development and protection of those classes and communities of the people.

Some Innovative Provisions in the Constitution Learning by experience is a common practice. The instability introduced by the past Parliamentary practices and sometimes indulgence in horse trading and vested interests by the political players of the system served enough food for our lawmakers to think about creating an inbuilt damage control system in the present Constitution.

With the result, some innovative provisions have been made with a view to strengthening the democratic system of governance, its stability, good governance and inclusion. The following provisions are bound to cast positive impacts in this regard. For example, irstly, no person shall be allowed to become a candidate for election for the House of Representatives in more than one electoral constituency at the same time.

Secondly, a person who has lost election for the House of Representatives shall not be eligible to be a Minister during the tenure of the existing House of Representatives. Secondly, a No- Conidence motion shall not be presented for the irst two years of appointment of the Prime Minister, and if a conidence motion fails, another motion cannot be tabled within a year of its failure.

So far so good! But we should not be oblivious of the fact that such a provision may sometimes engender arbitrariness among the persons running the State afairs, which may prove counterproductive from the viewpoint of good governance.

Constitution of Nepal

Apart from that, in case the party in power, for some reason or the other, fails to get approved by the Parliament the programs and policies of the Government or the national budget for the iscal year, what would be the way out of this political impasse?

In a Parliamentary system, such a situation is deemed as a clear indicator of the fact that the Government has lost the trust of the House and has been reduced to minority. But if the party in power refuses to resign from the seat of political power, and, on the other hand, the opposition is constitutionally restrained from moving a No-Conidence motion within the irst two years of installation of the Government, it is bound to create a state of political chaos and confusion in the day to day governance of the State afairs.

The Constitutional Bench shall have chiely jurisdiction over disputes relating to jurisdiction between the Federation and any Province, among Provinces, between a Province and the local level and among the local governments, disputes relating to the election of members of the Federal Parliament or Provincial Assembly, and ineligibility of any member of the Federal Parliament or Provincial Assembly.

Ninth, the new Constitution has addressed a much debated issue of debarring quasi-judicial bodies from handling serious types of criminal cases involving longer terms of imprisonment.

It has speciically provided that criminal cases involving prison sentence of more than one year shall not fall under the jurisdiction of any institution other than a court or specialized court or Military Court or judicial body.

Following the promulgation of the Constitution thousands of such cases were, in fact, transferred to the respective District Courts. However, in order to dilute the impact of this constitutional provision embedded in Article 2 and evade the jurisdiction of general law courts, the Parliament has recently passed a Bill amending the relevant provisions relating to punishment in some statutes, and has signiicantly reduced the term of imprisonment even in case of some serious criminal ofenses like black marketeering, possession of illegal arms and ammunition etc.

Such a tactical move of the government to re surrender certain serious ofenses to the jurisdiction of quasi-judicial bodies by signiicantly reducing the length of incarnation is obviously mala ide, and is bound to defeat the sense of justice.

In the long run, it shall help promote impunity and undermine the principle of good governance. Last but not the least, the provision made by the present Constitution relating to referendum is unique and innovative.

If a two-third majority of the total members of the Federal Legislature decides that it is necessary to make a decision on any matter of national importance through referendum, a decision may be reached on such matter through referendum.

It is, no doubt, a democratic process to reach a decision on any controversial issue of national importance. However, the common people still wonder why before declaring the new Constitution some sensitive issues like secularism and form of governance of the State were not subjected to the democratic process of referendum for resolution?

Issues of Debate and Dissent in the Constitution Needless to say, a Constitution is supposed to be a collective document of consensus.

The present Constitution is also described as such by the major political partys which were chiely instrumental in its promulgation. It is believed by many that the present constitutional document is capable of addressing the interests and concerns of the people belonging to diferent classes and communities living in the Himal, Hills and Tarai regions.

But everything obviously does not seem to be well with the Constitution. Had it been so, the promulgation of the new Constitution should have been widely acclaimed and greeted with enthusiasm and generous welcome in every nook and corner of the country.

On the contrary, it generated a wave of violent protests all along the Tarai region. Such a scenario is clearly indicative of the bitter reality that notwithstanding its several democratic features, the Constitution sufers from a few marked inirmities and serious drawbacks as well.

Some of those drawbacks are an outcome of faulty drafting technique The Constitution of Nepal: A Critique whereas a good number of them are caused by political rigidity, discriminatory outlook and centralized status quo mentality. It is described as a mirror which relects the intents, basic philosophy and spirit of the Constitution.

But our law makers completely failed to understand the rationale behind keeping the provision of Preamble in the Constitution. In their over enthusiasm of assimilating the concerns of various classes and interest groups vying with one another for establishing their stakes, the lawmakers inally ended in converting the Constitution including its Preamble virtually into a collective declaration of various political parties.

The style of language and certain terminologies and issues incorporated in the Preamble tend to give the impression as if it was a collective election manifesto of various political parties. The Preamble of the American Constitution vividly and forcefully gives expression to the objectives and goals of the American Constitution in one bare sentence containing only 52 words. In a bid to express commitment towards protection of the rights and interests of various classes and communities, the generous use of multiplicity of objectives and jargons seems to have detracted from the main objectives and intent of the Preamble and its overall impact.

The textual composition of the Preamble is so clumsy and verbose that in course of going through the details of the Preamble when one comes to the end part, the reader either tends to forget what had been mentioned in the beginning or becomes confused about its contents.

Such structural composition of the Preamble is not only defective from the viewpoint of legislative drafting rather it also looks ponderous, maladroit and uncouth. A look at some other Federal States of the world shows that Federalism is required to be introduced generally in two circumstances. Firstly, when several small independent States decide to reach an agreement to enter into a Federation, and 19 Preamble to the Constitution of the United States of America : We the People of the United States, in order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

However, neither was the case in the context of Nepal. Of course, the protagonists of Federalism may argue that the concept of Federalism has been introduced in Nepal in a diferent context with some valid reasons behind its introduction.

Although the Local Self Governance Act, envisioned the enjoyment of the fruits of democracy through the utmost participation of the sovereign people in the process of governance by way of decentralization and mobilization and allocation of the means for the development of their own region by taking decisions through local leadership, the statutory provisions were, in fact, never seriously implemented for one reason or the other.

Moreover, Federalism has been hyped as a panacea, once introduced, for ensuring self-rule and equitable distribution of beneits and national means and resources, besides equal opportunities in the structure of the State.The First Amendment introduced to Article 42 of the Constitution ensuring proportional representation in the State structure can be taken as a step in the right direction.

Provincial structures, their demarcation, regional balance, equitable distribution of power and opportunities, provincial autonomy and reasonable and just adjustment of the rights and interests of various sectors of the society are some of the vital issues which require foremost attention for a peaceful transition to the Federal system.

Article 51 which is about state policies focuses on the investments in the public health sector, access to quality health care services, promoting traditional medicine, increasing the health institutions and health care professions and insurance policy. Republica, July 6, French Constitution of was drafted by the National Assembly with technical support from a Constitutional Committee.

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