Constitution of Nepal

Nepal
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Nepal

Constitution of Nepal 2015 (Nepali Name:नेपालको संविधान २०७२) is the present governing Constitution of Nepal. 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 90% of the total lawmakers. Out of 598 CA members, 538 voted in favor of the constitution while 60 voted against it, including few Terai based political parties refrained from the voting process.[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:

Preamble

We, the Sovereign People of Nepal, Internalizing the people's sovereign right and right to autonomy and self-rule, while maintaining freedom, sovereignty, territorial integrity, national unity, independence and dignity of Nepal, Recalling the glorious history of historic people's movements, armed conflict, dedication and sacrifice undertaken by the Nepalese people at times for the interest of the nation, democracy and progressive changes, and respecting for the martyrs and disappeared and victim citizens, Ending all forms of discrimination and oppression created by the feudalistic, autocratic, centralized, unitary system of governance, Protecting and promoting social and cultural solidarity, tolerance and harmony, and unity in diversity by recognizing the multi-ethnic, multi-lingual, multi-religious, multi-cultural and diverse regional characteristics, resolving to build an egalitarian society founded on the proportional inclusive and participatory principles in order to ensure economic equality, prosperity and social justice, by eliminating discrimination based on class, caste, region, language, religion and gender and all forms of caste- based untouchability, and Being committed to socialism based on democratic norms and values including the people's competitive multiparty democratic system of governance, civil liberties, fundamental rights, human rights, adult franchise, periodic elections, full freedom of the press, and independent, impartial and competent judiciary and concept of the rule of law, and build a prosperous nation,Do hereby pass and promulgate this Constitution, through the Constituent Assembly, in order to fulfil the aspirations for sustainable peace, good governance, development and prosperity through the federal, democratic, republican, system of governance.

Previous Constitutions

In the 68 years history of constitutional development onto this Constitution, Nepal experienced 7 different constitutions in different time period. Previous constitutions of Nepal were enacted in 1948, 1951, 1959, 1962, 1990 and 2007.[6]

Government of Nepal Act 1948

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]

Interim Government of Nepal Act 1951

The Interim Government of Nepal Act 1951 was promulgated after the Revolution of 1951 at 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]

Constitution of the Kingdom of Nepal, 1959

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]

Constitution of Nepal 1962

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]

Constitution of the Kingdom of Nepal, 1990

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]

Nepal Interim Constitution 2006

Again following the 2007 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]

front view

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

References

  1. ↑ Time Magazine "Nepal Has Finally Passed a New Constitution After Years of Political Turmoil". Retrieved September 2015. Check date values in: |access-date= (help)
  2. ↑ BBC: Constituent Assembly endorses Nepal’s Constitution 2072 with two-thirds majority, to promulgate on Sunday
  3. ↑ CA dissolved after epic failure Archived 2012-09-10 at Archive.is
  4. ↑ BBC: Nepal enters crisis mode as constitution talks fail
  5. ↑ "Nepal takes step towards new constitution. Political leaders had pledged to draw up constitution within a year as new parliament convenes.". Al Jazeera. 23 January 2014. Retrieved 24 January 2014.
  6. ↑ "ICL - Nepal Index". Retrieved 25 May 2016.
  7. ↑ LAXMI PRASAD KHAREL, CONSTITUTIONALISM: GLOBAL & NEPALESE PERSPECTIVE, HISTORICAL ACCOUNT AND MODERN TRENDS 90 (2011); http://countrystudies.us/nepal/47.htm
  8. ↑ http://countrystudies.us/nepal/47.htm; "Archived copy". Archived from the original on 2014-08-16. Retrieved 2014-04-10.
  9. ↑ SHASTRA DUTTA PANT, COMPARATIVE CONSTITUTIONS OF NEPAL (1995).
  10. ↑ "Nepal - The Interim Constitution, 1951". Retrieved 25 May 2016.
  11. ↑ "Nepal - The Royal Constitution of 1959". Retrieved 25 May 2016.
  12. ↑ "Nepal - The Panchayat Constitution, 1962". Retrieved 25 May 2016.
  13. ↑ Krishna Hacchethu, The Second Transformation of Nepali Political Parties, in NEPAL: NEW FRONTIERS OF RESTRUCTURING OF STATE 125 (Lok Raj Baral ed., 2008); Tulsi Ram Pandey, Social Change and Political Participation, in NEPAL: QUEST FOR PARTICIPATORY DEMOCRACY 90 (Lok Raj Baral ed., 2006).
  14. ↑ Mahendra Lawoti, Constitution as Sources of Exclusion: An Overview of the 1990 Constitution, in DEMOCRATIC CONSTITUTION MAKING: EXPERIENCES FROM NEPAL, KENYA, SOUTH AFRICA AND SRI LANKA 11 (Hari P. Bhattarai & Jhalak Subedi eds., 2007)
  15. ↑ "Citizenship provisions discriminate against women - The Himalayan Times". The Himalayan Times. Retrieved 25 May 2016.
  16. ↑ "Nepali Times - The Brief » Blog Archive » Tarai unrest". Retrieved 25 May 2016.
  17. ↑ "The Madhesi Movement: Prospects for Peace in Nepal - Nepal Monitor: The National Online Journal". Retrieved 25 May 2016.
  18. ↑ "Kathmandu Post- Tarai protest killings: HRW urges govt to book culprits". Retrieved 25 May 2016.
  19. ↑ "Like We Are Not Nepali". Human Rights Watch. Retrieved 25 May 2016.
  20. ↑ http://himalaya.socanth.cam.ac.uk/collections/rarebooks/downloads/Nepal_1959_Constitution_English.pdf

Further reading

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