Constitution and Human Rights

Federal governance system

A federal governance system is a system of government in which the powers of the state are constitutionally divided between one central (federal) government and several constituent units such as provinces/states and local governments. Each tier has its own elected government, its own legislature, and its own defined powers, and no tier can unilaterally abolish or take over the powers of another. In such a system, the constitution itself (not an ordinary law) distributes sovereignty, and disputes over powers are settled by the constitution or the constitutional court. Nepal adopted this system through the Constitution of Nepal, 2072, which created one federal government, 7 provinces and 753 local levels.

Why roles and responsibilities are divided among the tiers

1. To bring the government close to the people (decentralisation): A single central government cannot reach every village and settlement. Dividing responsibilities lets local governments handle local needs directly, so services are delivered quickly and according to local conditions.

2. To ensure effective and efficient service delivery: Some matters (defence, foreign policy, currency, national highways) need uniform treatment and large resources, so they suit the federal government. Others (local roads, drinking water, sanitation, basic health, primary education) are best handled locally. Placing each work at the level where it can be done best increases efficiency.

3. To protect unity in diversity: Nepal is multi-ethnic, multi-lingual and multi-cultural. Federalism gives identity, representation and self-rule to different communities and regions, while shared rule at the centre maintains national unity.

4. To distribute power and prevent its concentration: Concentrating all power in one centre leads to authoritarianism, misuse of authority and neglect of the periphery. Division of power creates checks and balances among the tiers.

5. To promote balanced development: Backward regions are often ignored by the centre. Provinces and local levels can plan and spend for their own backward areas, reducing regional inequality.

6. To increase participation and accountability: People participate in planning, budgeting and decision-making at the local level, and they can hold their nearby representatives accountable. This strengthens democracy and good governance.

7. To manage resources and revenue scientifically: Revenue sources and responsibilities are divided so that each tier has the means to perform its duties, with inter-governmental transfers (fiscal equalisation) filling the gap between rich and poor units.

8. To institutionalise the principle of cooperation, coexistence and coordination: The constitution provides for coordination among the three tiers, so that they work as partners rather than competitors.

Conclusion

Thus, federal governance means constitutionally shared sovereignty among central, provincial and local governments. The division of roles and responsibilities is made so that decisions are taken at the level closest to the people, services become effective, diversity is respected, power is not concentrated, and development becomes balanced and inclusive.

Obligations and Duties of Citizens in the Context of Nepal [5 marks]

The Constitution of Nepal (2072 BS) and various laws prescribe the following obligations and duties of citizens:

1. Loyalty to the nation and constitution — Every citizen must remain loyal to the nation and the Constitution of Nepal, and respect national sovereignty, territorial integrity and national unity.

2. Respect for national symbols — Citizens must respect the national flag, national anthem, coat of arms and other national symbols, and protect national dignity and prestige.

3. Obeying the law — It is the duty of every citizen to abide by the laws of the land, pay taxes honestly and on time, and refrain from activities that harm public order and the interests of society.

4. Protection of public property and national resources — Citizens must protect and conserve public property, national heritage, natural resources and the environment, and use them in the interest of the nation.

5. Defence of the nation — When required by law, citizens must render compulsory service for the defence of the country and assist in times of national emergency, disaster or crisis.

6. Civic and social duties — Citizens should perform duties toward society and the state, such as participating in elections, cooperating with the government in development works, promoting social harmony, and raising children as responsible citizens.

Conclusion: Rights and duties are two sides of the same coin. Along with the fundamental rights guaranteed by the constitution, citizens must sincerely fulfil the above duties for the progress and prosperity of the nation.

Sources of Law

The sources of law refer to the origins from which legal rules derive their authority and content. They are broadly classified as follows:

1. Primary (Formal) Sources

• Constitution: The fundamental law of the land; all other laws derive validity from it.
• Legislation (Statute): Laws made by the legislature (Parliament/Provincial Assemblies), e.g., Muluki Civil Code.
• Precedent (Judicial Decision): Principles laid down by courts in decided cases.
• Custom and Usage: Long-established practices recognized as binding, e.g., customary laws of indigenous communities.
• Agreement/Treaty: International treaties and conventions ratified by the State.

2. Secondary (Material) Sources

• Ordinances and Regulations: Made by the executive under delegated authority.
• Legal writings and opinions of jurists: Works of scholars used for interpretation.
• Equity and natural justice: Principles of fairness and conscience.
• Religion and morality: In some legal systems, religious texts serve as law.

Why Precedent is Important in Law

Precedent (stare decisis) means standing by decided cases. Its importance:

1. Certainty and Predictability: People and lawyers can foresee how similar cases will be decided.
2. Consistency and Equality: Like cases are treated alike, ensuring fairness.
3. Practicality and Time-saving: Courts need not re-decide settled legal questions.
4. Flexibility: Higher courts can overrule or distinguish outdated precedents, allowing law to grow with society.
5. Guidance to Lower Courts: Lower courts are bound by the decisions of superior courts, maintaining judicial discipline.
6. Filling Gaps in Legislation: Where statute is silent or ambiguous, precedent supplies the rule.

Conclusion: Precedent is a vital source of law because it brings stability, uniformity and adaptability to the legal system, while allowing courts to develop law in line with changing social needs.

Concept of Proportional Representation

Proportional representation (PR) is an electoral system in which seats are allocated to political parties in proportion to the share of votes they receive. Unlike the first-past-the-post (FPTP) system, where the candidate with the highest votes in a constituency wins even with a small plurality, PR aims to make the number of seats a party holds roughly equal to its popular vote share. It ensures that even minority parties and marginalized groups get representation according to their strength. PR systems are of two main types: closed-list (voters vote only for the party, and the party decides who fills the seats) and open-list (voters can also choose a particular candidate within the party list).

Implementation in Nepal

Yes, the concept of proportional representation has been implemented in practice in Nepal. The Constitution of Nepal, 2072 (2015) provides for a mixed electoral system for the House of Representatives:

• 165 members are elected through the first-past-the-post (FPTP) system.
• 110 members are elected through the proportional representation (closed-list) system.
• In the PR system, political parties submit a closed list of candidates, and seats are allotted to each party in proportion to the valid votes it secures nationwide. The Constitution also requires that women, Dalits, Janajatis, Madhesis, Tharus and other marginalized groups be represented proportionally in the PR list.

Example: Suppose in a general election a party secures 10% of the total valid votes cast for the PR category. If the total PR seats are 110, that party would be entitled to about 11 seats (10% of 110) from its closed list. Similarly, in the 2079 BS (2022) House of Representatives election, parties such as CPN (UML), Nepali Congress and CPN (Maoist Centre) received PR seats in proportion to their vote shares. In this way, the PR system has been practically implemented in Nepal's federal and provincial elections.

Article 51(m) of the Constitution of Nepal (2072), under the State Policies in Part 4, lays down the policies relating to international relations:

1. Safeguarding national interest: to conduct foreign relations so as to safeguard the sovereignty, independence, territorial integrity, nationality, rights of the Nepali people and national interest of Nepal.
2. Independent foreign policy: to conduct an independent and balanced foreign policy based on the Charter of the United Nations, non-alignment, the principles of Panchsheel (peaceful coexistence), international law and the norms of world peace, taking into account the overall interest of the nation.
3. Treaties and agreements: to review treaties concluded in the past, and to make treaties and agreements on the basis of equality and mutual interest.
4. Just world order: to encourage the establishment of a just world order by supporting world peace, disarmament, collective security, cooperation and mutual understanding, and by opposing aggression and the use of force.
5. Cooperation and welfare: to promote friendly relations with all countries, and regional and international cooperation, including for the protection and welfare of Nepali citizens abroad.

These policies are directive principles: they guide the State but cannot be enforced directly in court.

The functions of the Public Service Commission (Lok Sewa Aayog) of Nepal, as provided mainly by Article 242 of the Constitution of Nepal and the Public Service Commission Act, 2063, are as follows:

1. Conducting examinations for recruitment: It conducts competitive written examinations, interviews and other selection processes for the appointment of qualified candidates to civil service posts of the Government of Nepal.

2. Promotion and departmental examinations: It conducts examinations for promotion, departmental examinations and efficiency tests of civil servants, and recommends eligible employees for promotion.

3. Advising on appointment and transfer: It gives advice and recommendations to the Government of Nepal on matters relating to appointment, promotion, transfer, posting and departmental action against civil servants.

4. Framing recruitment standards: It determines the qualifications, experience, age limit, syllabus, examination system and other standards required for recruitment to public service posts.

5. Advising on service conditions: It tenders advice to the Government of Nepal on laws relating to the conditions of service of civil servants, such as pay, allowances, leave, pension and other facilities.

6. Advising on departmental action: It gives advice on matters of departmental punishment, dismissal, removal or demotion of civil servants, ensuring fairness and impartiality.

7. Conducting examinations of other bodies: On request, it conducts examinations and selection processes for the Nepal Army, Nepal Police, Armed Police Force, Nepal Rastra Bank, corporations, and local levels, and for other public bodies as prescribed by law.

8. Hearing and settling complaints: It examines and settles complaints and grievances relating to recruitment, promotion and conditions of service of civil servants.

9. Maintaining impartiality and merit system: It works as an independent, impartial constitutional body to ensure the merit system in public service and to prevent favouritism, nepotism and corruption in recruitment.

10. Submitting annual report: It submits its annual report to the President, which is laid before the Parliament, mentioning the work done during the year.

Nepal Gazette (Nepal Rajpatra)

The Nepal Gazette is the official publication of the Government of Nepal, in which laws, rules, notices and decisions are published so that they become authentic and known to the public. Publication in the Gazette is the usual condition for a law or notice to take effect. It is published in separate parts, each for a particular kind of subject.

Features

• It is published by the Government of Nepal through the Department of Printing.
• Extra-ordinary issues are published when a law or notice must be made known urgently.
• A document is treated as officially published only after it appears in the Gazette.
• Provincial and local governments publish their own laws in their own gazettes.

Executive power of the local level in Nepal is vested in the Village Executive (Rural Municipality) and the Municipal Executive under Part 17 of the Constitution of Nepal (2072), exercised according to the Local Government Operation Act, 2074.

Composition: The executive is headed by the Chairperson (Rural Municipality) or Mayor (Municipality), assisted by the Vice-Chairperson or Deputy Mayor, the ward chairpersons, and women and Dalit/minority members elected by the Assembly.

Main powers and functions:

• Implement the decisions of the Village/Municipal Assembly and the laws and decisions of the federal and provincial governments.
• Prepare and present the annual policy, programme and budget to the Assembly, and implement them after approval.
• Make and implement local plans and projects in the 22 exclusive areas of Schedule 8 (basic health, basic education, local roads, drinking water, sanitation, local markets, agriculture extension, etc.).
• Levy and collect local taxes, fees and service charges (property tax, house-land registration fee, business tax, etc.) as provided by law.
• Direct, supervise and control the local administration, ward offices and staff.
• Run local services, maintain records of vital events and coordinate with the District Administration Office and Nepal Police for law and order.
• Form and run the three-member Judicial Committee under the Deputy Mayor/Vice-Chairperson (Art. 217) to settle specified local disputes.
• Coordinate with other local, provincial and federal bodies, including through the District Coordination Committee.

Accountability: The executive is accountable to the Assembly and the people, must report to the Assembly, and is subject to audit by the Auditor General.

Why Nepal Adopted the Federal Governance System

Nepal adopted federalism mainly for the following reasons:

1. End of unitary, centralised rule — The 1990 Constitution and the 2006 People's Movement (Jana Andolan II) exposed the weakness of a highly centralised unitary state. The decade-long Maoist insurgency (1996–2006) was largely a revolt against centralised power, exclusion and poverty.
2. Accommodation of diversity — Nepal is multi-ethnic, multi-lingual, multi-religious and multi-cultural. Federalism was seen as the best way to recognise and accommodate this diversity and to protect the identity of marginalised groups (Janajati, Madhesi, Dalit, women, etc.).
3. Bringing government closer to the people — A single Kathmandu-centred government could not deliver services to remote areas. Federalism was expected to make governance accessible, accountable and participatory.
4. Balanced and equitable development — To reduce regional imbalance between the hills, mountains, Terai and Madhes, and to ensure fair distribution of resources and opportunities.
5. Peace and stability — The Comprehensive Peace Agreement (2006) and the Interim Constitution (2007) committed the country to restructuring the state. The Constituent Assembly (2008) declared Nepal a Federal Democratic Republic, and the Constitution of Nepal (2015) gave it legal form.
6. Democratic decentralisation — To share power among the centre, provinces and local levels, and to strengthen democracy from the grassroots.

Features of the Federal System in Nepal

1. Three-tier structure — Federal (union), 7 provinces and 753 local levels (6 metropolitan cities, 11 sub-metropolitan cities, 276 municipalities and 460 rural municipalities).
2. Constitutional recognition — The Constitution of Nepal, 2015 (Part 4, Articles 56–60) provides for the federal structure; Schedule 5, 6, 7, 8 and 9 distribute powers.
3. Division of powers — Powers are divided into exclusive (union), exclusive (province), exclusive (local) and concurrent (concurrent list for union and province) lists. Residual powers rest with the union.
4. Bicameral federal legislature — The Federal Parliament consists of the House of Representatives (lower house) and the National Assembly (upper house), the latter giving representation to provinces.
5. Provincial governments — Each province has a Governor (appointed by the President), a Chief Minister and a Provincial Assembly.
6. Local governments — Each local level has an elected executive (Mayor/Chairperson and Deputy) and a Local Assembly (Village/Municipal Assembly).
7. Independent judiciary — Supreme Court, High Courts in each province and District Courts, plus local judicial committees.
8. Fiscal federalism — Revenue sharing and fiscal grants from the centre to provinces and local levels through the National Natural Resources and Fiscal Commission.
9. Single citizenship with shared sovereignty — Citizens enjoy single Nepali citizenship, but sovereignty is exercised through the three tiers.
10. Cooperation and coordination — Inter-governmental relations are managed through the Inter-Provincial Council and other coordination mechanisms.

Execution of Functions at the Local Level

The local level performs its functions as follows:

1. Legislative function — The Village Assembly/Municipal Assembly makes local laws (rules, regulations, procedures) on matters in Schedule 8 and other local subjects.
2. Executive function — The Mayor/Chairperson and Deputy Mayor/Vice-Chairperson, with the help of the local executive, implement decisions, plans and policies.
3. Development planning — Prepares periodic and annual plans, approves the local budget and implements development projects.
4. Service delivery — Provides basic services such as drinking water, sanitation, local roads, health posts, basic education, agriculture extension and cooperatives.
5. Revenue collection — Levies and collects local taxes (land revenue, property tax, business tax, service charges) and receives grants from the centre and province.
6. Judicial function — The Judicial Committee at the local level settles minor local disputes through mediation.
7. Coordination — Coordinates with provincial and federal agencies, NGOs and community organisations for local development.
8. Accountability — Remains accountable to the local people through the Local Assembly, public hearings, social audits and periodic reports.

Financial interrelationships between Federal, Province and Local Levels in Nepal

The Constitution of Nepal (2072) has distributed financial powers and resources among the three tiers of government through Schedules 5, 6, 7, 8 and 9, and Part 12 (Articles 115–119) deals with financial procedures. The interrelationship rests on four pillars:

1. Constitutional division of financial powers (Schedules 5–9)

• Federal (Schedule 5): currency, banking, insurance, customs duty, excise duty on goods of international trade, income tax, corporate tax, VAT, royalty on natural resources of national importance, loans and foreign aid.
• Province (Schedule 6): provincial taxes such as land revenue, registration fees, vehicle tax, entertainment tax, advertisement tax, tourism fee, and taxes on natural resources within the province.
• Local Level (Schedule 8): local taxes like property tax, house rent tax, land revenue (local), business tax, vehicle parking fee, advertisement tax (local), service charge, and local levies.
• Concurrent (Schedule 7 & 9): taxes on income from cooperatives, service charge, royalty on natural resources, and other areas of shared jurisdiction.

2. Revenue sharing and fiscal transfers (Articles 115–119 and Local Government Operation Act 2074)

• Revenue sharing: The Federal government shares certain revenues (e.g., VAT, excise, royalty) with Provinces and Local Levels as per the recommendations of the National Natural Resources and Fiscal Commission (NNRFC) and the Finance Act.
• Fiscal equalization grants: Provided to Provinces and Local Levels to reduce fiscal imbalance and ensure minimum service delivery.
• Conditional grants: Given for specific projects or sectors (education, health, infrastructure) with conditions attached.
• Special grants: For special regions or projects.
• Complementary grants: For projects of national or provincial importance implemented by Local Levels.

3. Borrowing and debt

• Federal government can borrow domestically and externally (Article 115).
• Provinces and Local Levels can borrow only within the limits set by the Federal government and with prior approval; they cannot borrow externally without federal guarantee.
• Inter-governmental debt and guarantees are regulated by law.

4. Institutional mechanisms

• National Natural Resources and Fiscal Commission (Article 250): Recommends distribution of revenue and grants among the three tiers.
• Inter-Provincial Council (Article 234): Coordinates political and fiscal issues among Provinces.
• Provincial and Local Fiscal Commissions: Recommend fiscal transfers within the province.
• Consolidated Fund at each level: All revenues and loans are credited, and expenditures are made through it as per law.

5. Principles governing the relationship

• Autonomy with accountability: Each level has independent financial powers but is accountable to its legislature and the people.
• Coordination and cooperation: The three tiers coordinate in planning, budgeting and implementation.
• Equity and balanced development: Transfers aim to reduce regional disparity.
• Transparency and accountability: Budgets, audits (OAG) and reports are public.

Conclusion: The financial interrelationship is based on the constitutional division of revenue powers, a system of grants and revenue sharing recommended by the NNRFC, and borrowing controls. This ensures fiscal autonomy of each level while maintaining national unity, fiscal discipline and balanced development across Nepal.

Tax administration under the Constitution: provincial and local taxes

The Constitution of Nepal, 2072 divides power over taxes among the three levels through its Schedules. Federal taxes are in Schedule 5, provincial in Schedule 6, and local in Schedule 8. Schedule 7 lists the concurrent powers of the Federation and Provinces and Schedule 9 those of the Federation, Provinces and Local Levels. Articles 57 to 60 set out the distribution of powers and revenue, and Article 115 says no tax may be levied except by law.

1. Taxes in the Province's list (Schedule 6)

• House and land registration fee.
• Motor vehicle tax.
• Entertainment tax.
• Agricultural income tax.
• Service charges and fees.
• Tourism and advertisement tax.

2. Taxes in the Local Level's list (Schedule 8)

• Property tax and house rent tax.
• Land and building registration fee.
• Business tax.
• Land revenue (Malpot).
• Tax on advertisement and entertainment.
• Tax on small and non-motorised vehicles as law prescribes.
• Service charges, fees, tourism fee and penalties.

Some items such as entertainment, advertisement, vehicle and registration taxes appear in both lists, so provincial and local laws, and coordination, decide how each is divided in practice.

3. Administration

4. Common features

• Residual and shared revenues such as VAT and excise duty are distributed under the Intergovernmental Fiscal Arrangement Act, 2074, on the recommendation of the National Natural Resources and Fiscal Commission.
• The Revenue Consultation Committees coordinate rates and avoid double taxation.
• Taxpayers can appeal under the respective Act.

Conclusion: The Constitution gives provinces and local levels their own tax lists. Each administers them through its own assembly and revenue offices, within the common limits of law and coordination, which supports fiscal federalism.

Legal, Institutional Mechanisms and Potential Challenges for the Protection and Promotion of Human Rights in Nepal

1. Legal Mechanisms

• Constitution of Nepal, 2072 (2015): Part 3 (Articles 16–46) guarantees fundamental rights — right to life and liberty, equality, freedom of expression, right against torture, right to education, health, social justice, and the rights of women, children, Dalits, indigenous peoples, Madhesis, Muslims, and persons with disabilities. Article 46 makes the right to constitutional remedy a fundamental right itself.
• Human Rights Treaties: Nepal is party to the ICCPR, ICESCR, CEDAW, CRC, CERD, CAT, and the Convention on the Rights of Persons with Disabilities. Under Article 51 and the treaty ratification law, ratified treaties are binding and prevail over inconsistent domestic law.
• Specific Legislation: National Human Rights Commission Act, 2068; Human Trafficking and Transportation (Control) Act, 2064; Domestic Violence (Offence and Punishment) Act, 2065; Child Rights Act, 2075; Rights of Persons with Disabilities Act, 2074; Caste-based Discrimination and Untouchability (Offence and Punishment) Act, 2068; Enforced Disappearance Enquiry, Truth and Reconciliation Commission Act, 2071.
• Remedial Forums: Supreme Court (writ jurisdiction under Article 133), High Courts, district courts, and quasi-judicial bodies such as the National Human Rights Commission and National Women's Commission.

2. Institutional Mechanisms

• National Human Rights Commission (NHRC): Constitutional body under Article 249; monitors rights violations, conducts inquiries, recommends action, and reports to the President and Parliament. It holds "A" status accreditation with GANHRI.
• Other Constitutional Commissions: National Women's Commission, National Dalit Commission, National Inclusion Commission, Indigenous Nationalities Commission, Madhesi Commission, Tharu Commission, and Muslim Commission — each mandated to protect and promote the rights of its constituency.
• Attorney General's Office: Prosecutes rights violations and gives legal advice to the government.
• Ministry of Home Affairs and Nepal Police: Maintain law and order and investigate crimes against persons.
• National Human Rights Action Plan and Treaty Reporting: Periodic reports to UN treaty bodies; National Human Rights Action Plan (e.g., 2073–2077) guides implementation.
• Civil Society and INGOs: Advocacy, legal aid, monitoring, and awareness-raising by bodies such as INSEC, Advocacy Forum, and FWLD.

3. Potential Challenges

• Impunity: Past and present violations — conflict-era enforced disappearances, extrajudicial killings, torture in custody — remain largely unpunished; transitional justice laws have faced Supreme Court and victim objections.
• Weak Implementation: Progressive laws exist but enforcement is poor due to weak institutions, politicisation of constitutional commissions, and inadequate budget and manpower.
• Discrimination: Deep-rooted caste, gender, ethnic, and religious discrimination; caste-based untouchability and Chhaupadi persist despite legal bans.
• Poverty and Inequality: Widespread poverty, illiteracy, and unequal access to health, education, and justice undermine effective enjoyment of rights.
• Conflict and Disaster: The decade-long Maoist insurgency and frequent earthquakes, floods, and landslides create displacement and vulnerability.
• Federal Transition: Ambiguity in federal–provincial–local jurisdiction over rights delivery, and slow law-making at provincial level.
• Weak Accountability: Politicisation of law enforcement, corruption in the judiciary, and limited access to justice for marginalised groups.
• Emerging Issues: Labour migration exploitation, trafficking, cybercrime, and climate-induced displacement.

Conclusion: Nepal has a strong legal and institutional framework for human rights, but the gap between commitment and delivery remains wide. Effective protection requires independent and well-resourced institutions, strict enforcement of laws, ending impunity, and inclusive socio-economic development.