Constitutional Law · Chapter 5
Study notes aligned to the official NEB syllabus.
A state (राज्य) is a politically organised community. It occupies a definite territory. It has a permanent population. It has a government. And it has sovereignty. Sovereignty means supreme authority at home and independence abroad. These four elements are population, territory, government and sovereignty. They are what mark a state off from any lesser group. The state is the permanent entity. The government (सरकार) is only one of its elements. The government is the machinery through which the state uses its power and carries out its will.
The difference matters in everyday politics. Governments come and go through elections. But the state continues unbroken. Here is an example. One Council of Ministers in Nepal is replaced by another after an election or a vote of no confidence. The government has changed. But the Nepali state stays exactly the same. Its territory, people and sovereignty remain. In Nepal the Constitution of 2015 declares Nepal an independent, indivisible and sovereign state. It also declares Nepal secular, inclusive, democratic and socialism-oriented. It is a federal democratic republican state. The Constitution sets up governments at three levels to run it.
Every government works through three organs. Each organ has its own function. The legislature (व्यवस्थापिका) makes the law. It debates and enacts the statutes that govern society. It approves taxes and the budget. The executive (कार्यपालिका) implements and administers the law. It runs the day-to-day affairs of the state. This ranges from keeping order to delivering services. The judiciary (न्यायपालिका) interprets the law. It settles disputes. It punishes breaches of the law. It protects the rights of citizens.
In Nepal the federal legislature is the Federal Parliament. The executive is the Council of Ministers headed by the Prime Minister. The judiciary is headed by the Supreme Court. A simple example shows how the three fit together. Parliament may pass a law creating an offence. The executive enforces it, through the police and administration. Then a person may be prosecuted. The judiciary decides, according to law, whether that person is guilty. Each organ has its own function. Yet they depend on one another. They also act as checks upon one another.
A unitary system (एकात्मक व्यवस्था) concentrates all governmental power in a single central government. Any regional or local authority gets its powers from the centre. The centre can change or withdraw those powers. A federal system (संघात्मक व्यवस्था) divides power between two sets of government. One is the central (federal) government. The other is the regional governments. Each draws its authority directly from the constitution within its own sphere. So neither can abolish the other on its own.
The practical difference is real. In a unitary state the centre may reorganise or dissolve a local body at its discretion. In federal Nepal a province exists and uses its listed powers by force of the Constitution itself. It does not depend on the leave of Kathmandu. A unitary system gives uniformity. It gives strong central direction and economy. A federal system gives self-rule to regions. It accommodates diversity. It brings government closer to the people. It prevents too much power gathering in one place. Nepal shifted from a unitary to a federal structure under the Constitution of 2015. The main reason was to answer long-standing demands for regional and group self-governance.
The doctrine of separation of powers (शक्ति पृथकीकरण) is linked to the French thinker Montesquieu. It holds that the three functions of government should be kept apart. These functions are legislative, executive and judicial. Each should be exercised by a separate organ. So no single body holds all power. This protects liberty against tyranny. The reasoning is simple. Concentrated power corrupts and endangers freedom. Suppose the same hands make the law, enforce it, and judge it. Then nothing stops abuse.
A strict, total separation is impossible in practice. So modern constitutions adopt checks and balances. Here the organs are largely separate. But each can restrain the others. In Nepal the Parliament makes law. It can remove ministers by a vote of no confidence. By impeachment it can remove certain high officials. The executive administers the state. It can issue ordinances when Parliament is not in session. The judiciary is headed by an independent Supreme Court. It interprets the law. It can review the acts of the other organs. Suppose Parliament passes a law that violates a fundamental right. The Supreme Court can use judicial review. It can declare the law invalid to the extent of the inconsistency. That is the check in action. The result is separated organs held in balance.
In a federal state the constitution must distribute powers among the levels of government. It does this through lists of powers set out in its schedules. The Constitution of Nepal 2015 provides several lists. There is an exclusive federal list. This covers national matters such as defence and the army, foreign affairs, currency and banking, citizenship and central planning. There is an exclusive provincial list. This covers matters of provincial concern. There is an exclusive local list. This covers matters handled by local governments. There is a concurrent list of the federation and the provinces. Both may legislate on these shared matters. There is also a concurrent list shared by all three levels. These are the federation, the provinces and the local units.
There are clear rules when a shared power produces a conflict. Federal law prevails over provincial law. Provincial law prevails over local law. This is to the extent of the inconsistency. Any residual power not placed on any list rests with the federal level. Here is a concrete example. Suppose a province enacts a law on a concurrent-list subject. That law contradicts a federal law on the same subject. The federal law prevails. The provincial law is void to the extent of the inconsistency. But the rest of the provincial law keeps working. In this way each tier has its own sphere of authority. Clear rules of precedence keep the whole system coherent.