Constitutional Law · Chapter 6
Study notes aligned to the official NEB syllabus.
The President (राष्ट्रपति) is the head of state of Nepal. The President is the symbol of national unity. Under the Constitution of Nepal 2015 the President is not elected directly by the people. The President is elected by an electoral college. This college is made up of the members of the Federal Parliament and of the provincial assemblies. Their votes are weighted as the Constitution provides. So both the central and the provincial tiers share in the choice. The President's term of office is five years. A person may hold the office for a maximum of two terms.
The President acts largely on the advice of the Council of Ministers. The office is mainly ceremonial. But the President authenticates laws passed by Parliament. The President appoints key officials on recommendation. The President stands as the guardian and promoter of the Constitution. Here is an example of the ceremonial character. When a bill is passed by Parliament, the President's authentication is the formal step that turns it into law. Yet the President does not decide the policy of the bill. That policy is the work of the elected government. The Vice-President (उपराष्ट्रपति) is elected in the same way. The Vice-President holds office for the same five-year term. The Vice-President does the President's work in the President's absence or inability.
The Federal Council of Ministers (संघीय मन्त्रिपरिषद्) is the executive of Nepal. The executive power of the federation is vested in it. It is headed by the Prime Minister (प्रधानमन्त्री). The Prime Minister is appointed by the President. The Prime Minister is the leader of the party or coalition that commands a majority in the House of Representatives. The other ministers are appointed by the President on the Prime Minister's recommendation. The Council forms and runs national policy. It administers the laws. It conducts foreign relations. It maintains order. It prepares the budget.
Its defining feature is written in the Constitution. The Council is collectively responsible to the House of Representatives. The House can remove it through a vote of no confidence. This responsibility is the heart of the parliamentary system. For example, suppose the House passes a motion of no confidence in the government. Or suppose a new majority forms behind a different leader. Then the Council must give way. So the executive stays answerable to the elected lower house. It is not secure for a fixed term regardless of support.
The Federal Parliament (संघीय संसद) is the federal legislature. It is bicameral, which means it has two houses. The lower house is the House of Representatives (प्रतिनिधि सभा). It has 275 members. Of these, 165 are elected by the first-past-the-post method from constituencies. The other 110 are elected through proportional representation. Its term is five years. The mixed method matters in practice. The first-past-the-post seats give each area a directly chosen member. The proportional seats make the House inclusive. They bring in women, Dalits, indigenous peoples and other groups, as the Constitution requires.
The upper house is the National Assembly (राष्ट्रिय सभा). It has 59 members. It is a permanent house. Its members serve six-year terms. One-third retire every two years. So the house is never dissolved as a whole. It provides continuity and sober second thought. Parliament makes federal law. It approves the budget and taxation. It ratifies treaties as required. It holds the executive accountable through questions, debate and motions of no confidence.
The judiciary (न्यायपालिका) interprets the law. It settles disputes. It protects fundamental rights. It is independent of the other organs. The courts form a three-tier hierarchy. The Supreme Court (सर्वोच्च अदालत) is at the top. The High Courts (उच्च अदालत) sit in the provinces. The District Courts (जिल्ला अदालत) are below them. The Supreme Court is the court of record. It is the final interpreter of the Constitution. It hears appeals. It can issue writs, such as habeas corpus and mandamus, to enforce fundamental rights.
Judges of the Supreme Court are appointed on the recommendation of the Judicial Council. The Chief Justice is appointed by the President on the recommendation of the Constitutional Council. The value of an independent judiciary shows in a simple scenario. Suppose the state violates a citizen's fundamental right. The citizen can move the court. The judge has security of tenure. The judge can be removed only by impeachment. So the judge can decide against the government without fear of losing office. This freedom from pressure is what makes the courts a true guardian of the rule of law.
Impeachment (महाअभियोग) is a constitutional process. Through it the Federal Parliament removes certain high officials for serious misconduct. These officials include the President, the Vice-President, the Chief Justice and other judges of the Supreme Court, and the heads of constitutional bodies. A motion may be brought by a prescribed proportion of the members of the House of Representatives. The grounds include serious violation of the Constitution and the law. They also include incompetence and misconduct. They include failure to discharge the duties of office honestly. They include physical or mental inability. The motion must be passed by a two-thirds majority. After that the official is removed.
The high threshold is deliberate. An official cannot be removed by a bare or hostile majority over a political disagreement. An official can be removed only where a very broad consensus of the House agrees that the conduct is grave. So impeachment is a powerful but carefully guarded check. It holds even the highest officers accountable. At the same time it protects them from casual removal.