Nepal is an Asian country, with China on one side and India on the other. The population of this country is approx 3,06,66,000 with 1,47,516 square kilometers area. The official language is Nepali, although only 44% of people speak Neapli. Nepal is home to 125 ethnic communities including 31.25% Khas, 7.1% Magar, 6.6% Tharu, 5.8% Tamang, 5% Newar, 4% Yadav, 2.3% Rai, 2% Gurung, 1.5% Limbu. Religiously about 81% are Hindus. There are also significant numbers of Buddhists, Muslims, Kirants, Christians, Nature worshippers, and Bons.
Since Nepal is Hindu dominated, constitutional remedies have been ensured to remedy the social and mental illness of untouchability like India. Every consumer has the right to quality food and service. Any victim has a right to redress. There is a constitutional obligation to share collected taxes at national, provincial and local levels. The President and Vice-President shall be of separate biological genders.
These are positive aspects. Now let's discuss the negative aspects.
The constitution provides for special preferences, quotas, constitutional commissions etc. for Dalits, Adibasi, Madhesi, Tharus, Muslims, indigenous nationalities, and Khas Arya - which is in conflict with the spirit of democracy "All citizens shall be equal before law".
A no-confidence motion cannot be moved within two years of the appointment of the Prime Minister. Why? If during this period he has entered the role of dictator - what is the way to remove?
One of the conditions for appointment to the top posts of the 11 commissions mentioned in the constitution is to possess high moral character. However, there is no explanation as to what can be done to develop moral character. If he has no criminal record, will he or she be considered of high moral character? Then it should have directly stated that, there should be no criminal record.
The Constitution of Nepal is large enough, and not to include anything important, but to mention the Commission. Basic issues should be mentioned in the constitution. Provisions relating to commissions could be made by ordinary law.
Admirable Articles of Nepal's Constitution
PART 1. Preliminary
1. Constitution as the fundamental law
1. This constitution is the fundamental law of Nepal. All laws inconsistent with this constitution shall, to the extent of such inconsistency, be void.
2. It shall be the duty of every person to uphold this constitution.
19. Right to communication
1. There shall be no prior censorship of
publications and broadcasting, or information dissemination, or printing
of any news item, editorial, article, feature, or other reading
material, or the use of audio-visual material by any medium, including
electronic publication, broadcasting and printing.
Provided that
nothing shall be deemed to prevent the making of laws to impose
reasonable restriction on any act which may undermine the nationality,
sovereignty, and indivisibility of Nepal, or the good relations between
federal units, or jeopardizes the harmonious relations subsisting among different caste groups and tribes, or communities, or an act of treason,
or defamation of social dignity of individuals through the publication
and dissemination of false material, or contempt of court, or material that incites criminal offence, or an act that is contrary to decent public behavior and morality, or disrespects labor, or incites untouchability or gender discriminations.
2. If there is any broadcasting, publishing or
printing, or dissemination of news, article, editorial, feature, or
other material through the medium of electronic equipment or the use of
visuals or audio-visuals, no radio, television, online publication or
any kind of digital or electronic equipment, or press, or other kind of
media outlet, shall be closed, seized, or their registration cancelled
for publishing, or transmitting, or broadcasting such material.
Provided that nothing in this clause shall be deemed to prevent the
making of Acts to regulate radio, television, online or the use of any
other kind of digital or electronic equipment, printing press or other
medium of communication.
3. No means of communication including the press, electronic broadcasting and telephone shall be obstructed except in accordance with law.
20. Right to Justice
1. No person shall be detained without being informed of the ground for such an arrest.
2. The person who is arrested shall have the right
to consult a legal practitioner of her/his choice and be defended from
the time of arrest. The consultations held with the legal practitioner
and the advice given thereon shall remain confidential.
Provided that this clause shall not apply to a citizen of an enemy state.
Explanation: For the use of this clause “legal practitioner” shall mean
a person who has the legal right to represent any person in any court
or office.
3. Every person who is arrested shall be
produced before a judicial authority within a period of twenty-four
hours after such arrest, excluding the time necessary for the journey
from the time and place of arrest to such authority, and the arrested
person shall not be detained in custody beyond the said period except on
the order of such authority.
Provided that this clause shall not apply to a person in preventive detention or to a citizen of an enemy state.
4. No person shall be punished for an act which was not punishable by law when the act was committed, and no person shall be subjected to a punishment greater than that prescribed by law at the time of the offence.
5. No person accused of any offence shall be assumed to be an offender until proven guilty.
6. No person shall be prosecuted or punished for the same offence in a court of law more than once.
7. No person accused of any offence shall be compelled to be a witness against herself/himself.
8. Every person undergoing trial shall have the right to be informed about the proceedings of the trial.
9. Every person shall be entitled to a fair hearing from an impartial, independent and competent court or judicial authority.
10. An indigent person shall have the right to free legal aid as provided for by law.
21. Right of victim of crime
1. The victim of crime shall have the right to be informed about the investigation and proceedings of the case regarding his/her victimization.
2. The victim of crime shall have the right to social rehabilitation and justice with compensation as provided for by law.
24. Right against untouchability and discrimination
1. No person shall be treated with any kind of untouchability or discrimination in any private or public place on grounds of caste, ethnicity, origin, community, occupation, or physical condition.
2. No person belonging to a particular caste or ethnicity shall be prevented from buying an object or getting services or facilities in the process of production of such objects or in the distribution or delivery of services, or no such objects shall be sold to, or facilities or services distributed or delivered to persons belonging to a particular caste or ethnicity only.
3. Racial discriminations shall not be encouraged in any way, or there shall not be any behavioral attitude to exhibit high or low status on grounds of a particular caste, ethnicity or community, or physical condition of a person, or there shall not be any behavioral attitude that justifies social discrimination based on caste, ethnicity, or untouchability, or encouragement for the propagation of attitudes based on caste superiority and untouchability, or hatred.
4. There shall not be any racial discrimination in the workplace by indulging or not indulging in untouchability.
5. All forms of untouchability or discrimination contrary to this provision shall be punishable by law as a serious social crime, and the victim of such an act shall have the right to compensation as provided for by law.
25. Right to property
1. Every citizen shall, subject to laws, have the right to acquire, enjoy own, sell, have professional gains, and otherwise utilize, or dispose of property.
Explanation: For the purpose of this Article, “property” means all type of movable and immovable property and the word also includes intellectual property.
Provided that the state may impose tax on property and income of a person according to the norms of progressive tax.
2. The State shall not, except in the
public interest, acquire, requisition, or create any encumbrance on the
property of any person.
Provided that this clause shall not be applicable to property acquired through illegal means.
3. In the case when the land of a person is acquisitioned by the State according to clause (2), the basis of compensation and the relevant procedure shall be as prescribed by Act.
4. The provisions of clauses (2) and (3) shall not obstruct the state in carrying out land reforms, management and regulation by law in order to increase the production and productivity of land, modernize the agriculture and make it professional, environment protection and managed housing and urban development.
5. In case the state has acquired property of any person for public interest pursuant to clause (3), there shall be no hindrance to use such property for any other public interest, other than the public interest for which it has been acquired.
31. Right to education (Part of it)
3 The physically impaired and citizens who are financially poor shall have the right to free higher education as provided for in law.
4 The visually impaired person shall have the right to free education with the medium of brail script.
32. Right to language and culture
● Each person and community shall have the right to use their language.
● Every person and community shall have the right to participate in the cultural life of its community.
● Each community living in Nepal shall have the right to preserve and promote its language, script, culture, cultural civilization and heritage.
36. Right to food
● Each citizen shall have the right to food.
● Every citizen shall have the right to be protected from a state of starvation, resulting from lack of food stuffs.
● Every citizen shall have the right to food sovereignty as provided for in law.
39. Right of children (Part of it)
● Each child shall have the right to his/her identity with the family name, and birth registration.
● Every child shall have the right to education, health care nurturing, appropriate upbringing, sports, recreation and overall personality development from family and the State.
● Every child shall have the right to formative child development, and child participation.
● No child shall be employed in factories, mines, or in any other hazardous works.
● No child shall be subjected to recruitment or any kind of use in the army, police or armed groups, neglected, or used immorally, or abused physically, mentally, or sexually, or exploited through any other means, in the name of religious or cultural practices.
● No child shall be subjected to physical, mental, or any other forms of torture at home, in school, or in any other places or situations.
● Every child shall have the right to child friendly justice.
● Children who are helpless, orphaned, physically impaired, victims of conflict and vulnerable, shall have the right to special protection and facilities from the State.
Right to social security
Economically poor, physically incapacitated and helpless person, helpless single women, persons with physical impairment, children, persons who cannot look after themselves and the citizens who belong to communities that are on the verge of extinction, shall have the right to social security as provided for by law.
44. Right of consumers
1. Each consumer shall have the right to quality foodstuffs and services.
2. A person who has suffered from sub-standard object or service shall have the right to be compensated as provided for by law.
51. State policies
The State shall pursue the following policies:
● Policies regarding national unity and national security:
● Management of law and order situation by developing a national security system.
● Guaranteeing an all-round human security system.
● Making citizens capable and ready for national service according to the need of the nation.
● Policies regarding social and cultural transformation:
● Building a society based on harmonious social relations by developing a healthy and civilized culture.
● Conducting studies, research and archaeological excavations and dissemination of Information about them for the protection, maintenance and development of historical, archaeological and cultural heritage.
● Community development by promoting local participation through the promotion and mobilization of creativity of local communities in social, cultural and charitable works.
● Policies regarding finance, industry and commerce:
● Protecting consumer rights by maintaining discipline and business fairness by controlling anomalies and malpractices such as black-marketing, monopoly, artificial scarcity and unhealthy competition and making national economy competitive.
● Development policy:
● Prioritizing under-developed regions while going for balanced, environment-friendly, qualitative and sustainable physical infrastructure development.
● Increasing the participation of local people in development process.
● Promoting investment in scientific studies and research, and inventions in science and technology, and for their progress and development, while protecting scientific, technological and intellectual minds and special talents.
● Policy regarding the conservation, management and use of natural resources:
● The State shall pursue a policy of developing and producing renewable energy, ensuring cheap, easily available and dependable supply of energy, and making an appropriate use of it to meet the basic needs of the citizens.
● Developing a sustainable and dependable irrigation system by controlling water-related natural disasters with the management of the river systems.
● The State shall pursue a policy of making a sustainable use of biodiversity through the conservation and management of forests, fauna and flora, and by minimizing the negative impacts of industrialization and physical development by promoting public awareness on environmental cleanliness and protection.
● The State shall pursue a policy of keeping necessary landmass as forest area in order to strike an environmental balance.
● The State shall formulate and pursue a policy of designing a pre-warning system, disaster preparedness, rescue, relief works and rehabilitation in order to minimize the risks of natural disasters.
● Policies regarding the basic needs of citizens:
● Making education scientific, technical, professional, skill-oriented, and employment and people oriented in order to prepare the human resources to be competent, competitive, moral, and committed to national interest.
● Increasing the investment of the State in the educational sector, and regulating and managing the investment of the private sector in it to make education service oriented.
● Making special provisions of protection, progress, empowerment and development, and the fulfillment of basic needs of the citizens of oppressed and backward regions.
● Giving priority to the very poor within all communities, regions, and gender, while providing social security and social justice.
60. Distribution of sources of revenue
1. The federation, province and the local level
entity shall impose tax on subjects within their fiscal jurisdiction and
collect revenue from such sources.
Provided that with regard to the
source that are not included in the concurrent/shared list or in any
list at any level, it shall be as determined by the Government of Nepal.
2. The Government of Nepal shall make necessary arrangements to equitably distribute the revenue generated by it from its sources, between the federation, province and the local level entities.
3. The amount of the fiscal transfer, the province and the local level entities are to receive shall be as recommended by the National Natural Resources and Fiscal Commission.
4. The Government of Nepal shall distribute fiscal equalization grants to province and local level entity on the basis of their need for expenditure, their capacity in generating revenue and the efforts made by them.
5. The province shall distribute fiscal equalization grants received from the Government of Nepal and the revenue generated from its sources, to the local level entities under it on the basis of need for their expenditures and their capacity to generate revenue, in accordance with provincial law.
6. The Government of Nepal shall make arrangements regarding conditional grants to be provided through the Federal Consolidated Fund, complementary grants, or the special grants for other purposes.
7. The distribution of revenue between the federal, provincial and the local level entity shall be transparent.
8. While enacting the Federal Act regarding revenue distribution, the matters that need to be included are: national policy, national needs, the autonomy of provinces and local level entities, the service delivery of the provinces and local level entities and the fiscal rights given to them; their capacity to generate revenue; feasibility and use of revenues; their contribution to development works; regional imbalance; poverty and inequality; exclusion, emergency works and the support of meet temporary needs.
70. President and Vice-President to belong to different gender or community
While conducting election of the President and Vice-President under this constitution, the election shall be held so as to represent different gender or communities.
229. Local Consolidated Fund (Part of it)
● There shall be a Local Consolidated Fund in every Village Council and Municipality under the local level. All revenues received by the local Village Council or Municipality, grants and loans received from the Government of Nepal and the Provincial Government and any amount received from other sources shall be deposited in such Fund.
Facts of Nepal's Constitution
18. Right to equality (Part of it)
1. All citizens shall be equal before law. No person shall be denied the equal protection of law.
2. There shall be no discrimination in the application of general laws on the grounds of origin, religion, race, caste, tribe, sex, physical conditions, disability, health condition, matrimonial status, pregnancy, economic condition, language or geographical region, or ideology or any other such grounds.
3. The state shall not discriminate among citizens on grounds of origin, religion, race, caste, tribe, sex, economic condition, language or geographical region, ideology and such other matters.
Provided that nothing shall be deemed to bar the making of special provisions by law for the protection, empowerment or advancement of the women lagging behind socially and culturally, Dalits, Adibasi, Madhesi, Tharus, Muslims, oppressed class, backward communities, minorities, marginalized groups, peasants, laborers, youths, children, senior citizens, sexual minorities, persons with disability, pregnant, incapacitated and the helpless persons, and of the citizens who belong to backward regions and financially deprived citizens including the Khas Arya.
40. Right of Dalits
● Dalit shall have the right to participate in all agencies of the state based on the principle of proportional inclusion. There shall be special legal provision of empowerment, representation, and participation of Dalit community for employment in other area also including the public service.
● Provisions of free education with scholarships shall be made for Dalit students from the primary to higher level of education as provided for in law. Special provision shall be made in law for Dalits to pursue higher education in technical and professional subjects.
● In order to provide health care and social security to Dalit community, special arrangements shall be made in accordance with law.
● Dalit community shall have the right to use, preserve and develop their traditional occupation, knowledge, skill and technology. The State shall give priority to modern profession of Dalits in relation to their traditional occupation, by providing them with necessary skill and resources.
● The State shall, according to law, provide land to landless Dalits for one time.
● The State shall, according to law, make housing arrangements for Dalits who do not have housing of their own.
● The facilities provided to the Dalit community according to this Article, shall have to be justly distributed to Dalit women and men and all the Dalit communities living in different parts of the country, ensuring that all Dalits receive the facilities proportionally.
42. Right to social justice
● The economically, socially or educationally backward women, Dalit, indigenous nationalities, Madhesi, Tharu, Muslims, backward classes, minorities, marginalized communities, persons with disabilities, gender and sexual minorities, farmers, labourers, oppressed or citizens of backward regions and indigent Khas Arya shall have the right to participate in the State bodies on the basis of principle of proportional inclusion.
● Citizens who are economically very poor and communities on the verge of extinction, shall have the right to special opportunity and facilities in the areas of education, health, housing, employment, food and social security, for their protection, progress, empowerment and development.
● People with physical impairment shall have the right to a dignified way of life and equal access to social services and facilities, along with their diversity identity.
● Each peasant shall have the right to access to land as provided for in law for agricultural purposes, along with the right to choose and preserve traditionally adopted and used endemic seeds and agricultural species.
● The families of martyrs who sacrificed their lives in the people’s movements, armed conflicts and revolutions for a democratic progressive change in Nepal, the families of those who were disappeared, persons who fought for democracy, victims of conflict and the displaced, persons who were physically maimed, the wounded and the victims, shall have the right with priority, as provided for by law, to education, health, employment, housing and social security, with justice and appropriate respect.
62. Election of the President (Part of it)
● An electoral college, consisting of voting members of the Federal Parliament and the members of Provincial Assembly, shall elect the President. It shall be done as provided for in law with the difference of weightage in voting of the members of the Federal Parliament and the members of Provincial Assembly.
84. Constitution of House of Representatives (Part of it)
● Provision shall be made according to Federal law
for the representation of political parties to file candidacy for the
election of the House of Representatives for proportional representation
system through closed list of women, Dalit, Adibasi Janajati, Khas Arya, Madhesi, Tharu, Muslim, and backward regions. Balance in geography and province shall be considered for such candidacy.
Explanation: For the purpose of this provision, Khas Arya means Chhetri, Brahmin, Thakuri and Sannyasi (Dasnami) community.
● While filing candidacy by political parties pursuant to clause (2), provision of representation of persons with disability shall also be made.
86. Constitution of National Assembly and terms of members (Part of it)
● National Assembly shall be a permanent house.
● There shall be fifty-nine members in the National Assembly as follows:-
● Fifty six members elected from an Electoral College comprising members of Provincial Assembly and chairpersons and vice-chairpersons of Village councils and Mayors and Deputy Mayors of Municipal councils, with different weights of votes for each, with eight members from each province, including at least three women, one Dalit, one person with disability or minority;
100. Provision related to Vote of Confidence and Motion of no-confidence (Part of it)
One-fourth of the total number of members of the House of Representatives may table in writing a no-confidence motion against the Prime Minister:
Provided that a no-confidence motion shall not be presented up to first two years of appointment of the Prime Minister and if a no-confidence motion fails, another motion cannot be tabled within a year of its failure.
176. Formation of the Provincial Assembly (Part of it)
● The representation of women, Dalit, indigenous, indigenous nationalities, Khas Arya, Madhesi, Muslim,
backward region and minorities community on the basis of geography and
population in the nominations filed by the political parties for the
election to be held for the Provincial Assembly through the proportional
representation (PR) election system shall be made on the basis of
closed list in accordance with Federal law.
Explanation: ‘Khas Arya’ shall mean Chettri, Brahman, Thakuri, Sanyasi (Dashanami) community.
215. Provisions related to Head and Deputy Head of Village Executive (Part of it)
● Four women members that are elected by the Village Assembly members from among themselves and two persons elected from the Dalit or minority community with qualifications pursuant to Clause (5) below shall also be members of the Village executive and this election shall be held within 15 days following the final result of the election of Village Assembly as per Article 222.
216. Provisions related to Mayor and Deputy Mayor of Municipality (Part of it)
● Five women members that are elected by the Municipal Assembly members from among themselves and three persons elected from the Dalit or minority community with qualifications pursuant to Clause (5) below shall also be members of the Municipal executive and this election shall be held within 15 days following the final result of the election of Municipal Assembly as per Article 223
238. Commission for the Investigation of Abuse of Authority (Part of it)
● Any person who possesses the following qualifications is eligible to be appointed as the Chief Commissioner or a Commissioner of the Commission for the Investigation of Abuse of Authority:
● holds a bachelor's degree from a recognized university,
● is not a member of any political party immediately before the appointment,
● has at least twenty years of experience in the field of accounting, revenue, engineering, law, development or research and is a distinguished person,
● has attained forty-five years of age, and
● possesses a high moral character.
267. Provision relating to Nepal Army (Part of it)
● The entry of women, Dalit, indigenous community, Khash Arya, Madhesi, Tharu, Muslim, people of backward class and backward region
shall be ensured in Nepal Army, based on the principle of equality and
principles of inclusion as provided for in the Federal law.
