Constitution of Nepal

Nepal
This article is part of a series on the politics and government of Nepal
Constitution
Executive President Bidhya Devi Bhandari Vice President Nanda Kishor Pun Prime Minister Pushpa Kamal Dahal
Legislature Legislature Parliament Chairman: Onsari Gharti Magar Vice-Chairman: Ganga Prasad Yadav
Judiciary Supreme Court Chief Justice: Sushila Karki
Elections Election Commission Political parties Recent elections Assembly: 1999 2008 2013 Presidential: 2008
Administrative divisions Provinces Districts VDCs
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Nepal is governed according to the Constitution which came into effect on Sept 20, 2015, replacing the Interim Constitution of 2007.

The Constitution was drafted by the Second Constituent Assembly following the failure of the First Constituent Assembly to produce a constitution in its mandated period.^[1] The constitution was endorsed by 9% of the total lawmakers. Out of 598 CA members, 57 voted in favor of the constitution while 250 voted against and 660 members of the Constituent Assembly mainly representing political parties based in Terai boycotted the final debates on the constitution as a protest against states delimitation and inclusion of minorities and Madhesi population in the national and public life.^[2]

Nepal Constituent Assembly

The Interim Constitution provides for a Constituent Assembly, which was charged with writing Nepal's permanent constitution. Under the terms of the Interim Constitution, the new constitution was to be promulgated by April 28, 2010, but the Constituent Assembly postponed the promulgation by a year because of disagreements. On May 25, 2011, the Supreme Court of Nepal ruled that the 2010 extension of the Interim Constitution was not right. Since May 29, 2011 the Constituent Assembly repeatedly extended the Interim Constitution.

On May 28, 2012, the Constituent Assembly was dissolved after it failed to finish the constitution after the latest extension, ending four years of constitution drafting and leaving the country in a legal vacuum.^[3][4] New elections were held on November 19, 2013 to the Second Nepalese Constituent Assembly and political leaders pledged to draft a new constitution within a year.^[5]. The new assembly expressly committed that the new constitution would be promulgated on January 22, 2015. However, due to continued differences on key issues including system of governance, judicial system and federation issues like number, name and areas of the states to be carved, the constitution could not be finalized and promulgated in time.

Basic features of the Constitution

The constitution is largely written in gender neutral term. Some of the important aspects of the constitution include the following:

• The Constitution has restructured the Nation into a federal republic. The Constitution has divided the nation into seven states and finalized the march of the Nation towards republicanism from constitutional monarchy and federalism from unitary system.
• Bicameral parliamentary system has been created with two houses at the Center and unicameral parliamentary system in each state.
• Mixed electoral system has been opted for the elections of the lower house at the Center with both first past the post election system and proportional election system are used to elect members of the lower house.
• Rights of gender and sexual minorities are protected by the new constitution with provisions of special laws to protect, empower and develop minority groups as well as allowing them to get citizenship in their chosen gender.
• Recognizing the rights of women, the constitution of Nepal explicitly states that “women shall have equal ancestral right without any gender-based discrimination.”
• Bans any acts leading to conversions from one religion to another. It also prohibits acts that undermine or jeopardize the religion of another. At the same time it declares the nation to be secular and neutral toward all religions.
• Nepal also has continued to abolish the death penalty. Nepal had abolished death penalty in 1990 after the promulgation of the Constitution of the Kingdom of Nepal 1990.
• The Constitution defines wide range human rights as fundamental rights.

Previous Constitutions

Previous constitutions of Nepal were enacted in 1948, 1951, 1959, 1962, 1990 and 2007.^[6]

In 1948, the Government of Nepal Act was enacted. Since the mid-nineteenth century, the country had been a monarchy where the prime ministers, from the Rana dynasty, had sweeping control over the affairs of the state.^[7] The 1948 document introduced limited democratic elements, but the experiment was not successful due to the misgivings of the Rana rulers to give away power.^[8]

The Interim Government of Nepal Act 1951 was promulgated after the Revolution of 1951 that the end of the Rana period.^[9] This text strengthened the authority of the king, and introduced relevant reforms such as the creation of the Supreme Court and the inclusion of fundamental rights and socio-economic goals to be pursued by the state.^[10]

The CONSTITUTION OF THE KINGDOM OF NEPAL, 1959 followed the previously mentioned interim text. Interestingly, despite the establishment of a bicameral parliament, the king continued to hold important powers such as the prerogative to appoint half of the members of the Senate and the suspension of parliament under certain circumstances.^[11]

The democratic experiment was short-lived, as in 1962 a new constitution came in to eliminate political parties, and to introduce the so-called panchayat system. In this model, panchayats were councils organized at the local level, presumably to ensure the representation of citizens. However, the king exercised much stronger authority than in the 1959 regime. and could modify the constitution or suspend it in case of emergency.^[12]

In 1990, the first Jana Andolan, Popular Revolt, brought multi-party democracy back to Nepal. The CONSTITUTION. OF THE KINGDOM OF NEPAL(1990) lifted the ban on political parties, described a democratic representative system where the authority of the king was curtailed, and enshrined fundamental rights.^[13] Although the 1990 constitution substantially increased the democratic character of the state in comparison with the Panchayat Regime, critiques have argued that this text did not adequately represent all sectors of society, even though Nepal is a multi-cultural country where diverse social groups coexist ^[14]

Again following the 2006 democracy movement in Nepal, Interim Constitution was promulgated in 2007.

Controversy over 2015 Constitution

The promulgation of the new constitution was immediately followed by virtual blockade of all checkpoints at Nepal-India border. Various Human Rights Activists and some ethnic groups in lowland Nepal have accused the Constitution of being gender discriminatory especially in regards to citizenship provisions. They allege new constitution makes it difficult for woman to pass on citizenship to their children as compared to men.^[15]

Similarly, Madhesi and indigenous population view that the new constitution fails to address demands of marginalized communities and support status-quo of the ruling groups. They are protesting mainly over the federal delineation of new states as proposed in the constitution fearing existing demarcation could affect their political representation.^[16][17] With the protest ongoing since August 15, 2015 or earlier, at least 45 people, including 8 security personals and one Indian National, have been killed. Human Rights Watch has criticized the Nepal Government as well as the protesters for violation of human rights during the protest.^[18][19] Additionally, there is controversy over Nepalese citizenship rules, which Nepal deems to protect the state from being overwhelmed by Indian immigrants, and which India claims discriminates against Madhesis of Indian origins, the draft constitution and final constitution that passed differ on this issue.

Citizenship Provisions in the Constitution of Nepal 2015

The conditions to be fulfilled to be a Nepalese Citizen are outlined below (Copied from Section 11, Part 2, Constitution of Nepal, 2015)(final) ^[20]

(1) The persons who have acquired citizenship of Nepal at the commencement of this Constitution and the persons who are eligible to acquire citizenship of Nepal under this Part shall be deemed to be the citizens of Nepal.

(2) The following persons who have their permanent domicile in Nepal shall be deemed to be citizens of Nepal by descent:-

(a) A person who has acquired the citizenship of Nepal by descent before the commencement of this constitution.

(b) Any person whose father or mother was a citizen of Nepal at the birth of such a person.

(3) A child of a citizen who has acquired citizenship of Nepal by birth before the commencement of this Constitution shall, if his/her father and mother both are the citizens of Nepal, shall be entitled to Nepali citizenship by descent upon his/her attaining the age of majority.

(4) Every child found in Nepal whereabouts of whose paternity and maternity is not known shall, until the mother or father is traced, be deemed a citizen of Nepal by descent.

(5) A person born to a Nepali citizen mother and having his/her domicile in Nepal but whose father is not traced, shall be conferred the Nepali citizenship by descent.

Provided that in case his/her father is found to be a foreigner, the citizenship of such a person shall be converted to naturalized citizenship according to the Federal law.

(6) If a foreign woman married to a Nepali citizen so wishes, she may acquire naturalized citizenship of Nepal as provided for in a Federal law.

(7) Notwithstanding anything contained elsewhere in this Article, in case of a person born to Nepali woman citizen married to a foreign citizen, he/she may acquire naturalized citizenship of Nepal as provided for by a Federal law if he/she is having the permanent domicile in Nepal and he/she has not acquired citizenship of the foreign country.

Provided that if his/her father and mother both are the citizen of Nepal at the time of acquisition of the citizenship, he/she, if born in Nepal, may acquire citizenship by descent.

(8) Except provided for in this Article, Government of Nepal may confer naturalized citizenship of Nepal according to Federal law.

(9) Government of Nepal may confer honorary citizenship according to Federal law.

(10) In case any area is annexed into Nepal by merger, the persons having domicile in such area shall be citizens of Nepal subject to a Federal law.

See also

• Constitutional economics
• Constitutionalism
• 2015 Nepal fuel crisis (caused by protests against the new constitution)

References

Further reading

• BBC News. Why is Nepal's new constitution controversial?. 19 September 2015.

External links

• Constitution of Nepal, 2015 (2072)
• Constituent Assembly of Nepal
• The Centre for Constitutional Dialogue in Kathmandu has a wide range of news and other information about the constitution-drafting process, in English and Nepali.
• Theology at the heart of Nepal’s constitutional crisis - Lapido Media 26/05/2010
• Concept papers from the Constituent Assembly of Nepal
• Final Interim Constitution of Nepal, 2063 (2007) in English and Nepali at worldstatesmen.org
• (Nepali) Final Interim Constitution of Nepal, 2063 (2007) in Nepali at the Nepalese Supreme Court
• Constitution of the Kingdom of Nepal, 2047 (1990)
• "The Nepal Constitution of 1990: Preliminary Considerations" by Ellingson, T., Himalayan Research Bulletin, the University of Texas, Vol. XI, Nos. 1-3, 1991.