fundamental rights

 What are fundamental rights and duties? Describe them based on epal constitution 2015.

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Model Ans:

The Constitution of Nepal (2015) provides a comprehensive framework of fundamental rights and duties, ensuring the democratic, social, and economic rights of its citizens while emphasizing responsibilities to the state and society.

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Fundamental Rights in Nepal

Fundamental rights are enshrined in Part 3 of the Constitution of Nepal (Articles 16–46). They are essential for the well-being of citizens and for ensuring justice, equality, and liberty. Key rights include:

1. Right to Live with Dignity (Article 16):

   • Every person has the right to live with dignity and not be subjected to cruel, inhumane, or degrading treatment.

2. Right to Freedom (Article 17):

   • Citizens have the freedom of opinion, expression, assembly, association, movement, and occupation, with reasonable restrictions to maintain law and order.

3. Right to Equality (Article 18):

   • All citizens are equal before the law and entitled to equal protection of the law. Discrimination on grounds of origin, religion, caste, gender, or economic status is prohibited.

4. Right to Education, Health, and Employment:

   • Education (Article 31): Right to free basic and secondary education.
   • Health (Article 35): Right to free basic health services.
   • Employment (Article 33): Right to employment and unemployment allowances.

5. Right to Social Justice (Article 42):

   • Women, Dalits, Madhesis, Janajatis, and other disadvantaged communities have the right to participate in state mechanisms.

6. Right to Constitutional Remedy (Article 46):

   • Ensures the right to seek remedies for the enforcement of fundamental rights.

Additional rights include:

• Right to property, privacy, information, and clean environment.
• Rights specific to marginalized groups like women, children, and Dalits.

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Fundamental Duties in Nepal

Fundamental duties are outlined in Article 48 of the Constitution of Nepal (2015). These duties complement fundamental rights, emphasizing responsibilities towards the nation and society. Citizens are expected to:

1. Uphold National Integrity:

   • Abide by the constitution and laws.
   • Respect national unity and diversity.

2. Participate in National Development:

   • Work towards building a prosperous and self-reliant Nepal.

3. Protect Public and State Property:

   • Ensure public assets and the environment are preserved for future generations.

4. Respect Democratic Principles:

   • Exercise rights responsibly, ensuring they do not infringe on others’ rights.

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Interrelationship between Rights and Duties

• Rights empower individuals to live freely, ensuring equality and justice, while duties require them to act responsibly toward the nation and society.
• For example, the right to a clean environment (Article 30) requires citizens to fulfill their duty of not polluting the environment (Article 48).

Nepal’s constitution emphasizes that the harmonious balance between rights and duties is essential for democracy, equality, and sustainable development​

Local Level ~ Nepal

Excerpt from News

State - Province Relations [Nepal]

Schedules 5, 6, 7, 8, and 9 list the powers and responsibilities allocated to each level:

Schedule 5: Federal Powers

Schedule 6: Provincial Powers

Schedule 7: Concurrent Powers (shared by both federal and provincial governments)

Schedule 8: Local Powers

Schedule 9: Concurrent Powers (shared by federal, provincial, and local governments)

##Provisions:

A. - Inter Provincial~

Article 234:

There shall be an Inter-Provincial Council to settle disputes of political nature between the Federation and Province and among the Provinces, consisting of a Chairperson and members as follows:

Prime Minister -Chairperson

Home Minister of Government of Nepal -Member

Finance Minister of Government of Nepal -Member

Chief Ministers of respective Provinces -Member

235. Coordination among the Federation, Provinces and local Levels

1. The Federal Parliament shall formulate necessary laws to maintain coordination between the Federation, Provinces and local levels.

2. The Provincial Assembly shall coordinate with District Coordination Committee to establish coordination between the Province and Village Council or Municipality and to settle disputes, if any, of political nature.

3. The method and procedure of settling disputes pursuant to Clause (2) shall be as provided for in the Provincial law.

236. Interprovincial Trade

No obstruction of any kind or levying of taxes or discrimination shall be made in the export and import of goods or services from one Province or local level to another Province or local level and in the transportation of any goods or services through the territory of any province or local level to another province or local level of Nepal.

B - National Resources and Fiscal Commission

251

1. The functions, duties and powers of the National Natural Resources and Fiscal Commission shall be as follows:

a. Determine extensive grounds and measures, regarding the distribution of revenue from the federal consolidated fund to the federal, provincial and local level governments according to the constitution and law,

b. Making recommendations, according to law, on distribution of the equalization grants to provincial and local governments from the federal consolidated fund,

c. Conducting research and studies with regard to making a basis for distribution of conditional grants to provincial and local governments in compliance with national policy and program and standards, and the state of infrastructure there.

d. Determine extensive grounds and measures regarding the distribution of revenue between provincial and local governments from the provincial consolidated fund.

e. Making recommendations regarding the measures of reforms on responsibilities of expenditures and revenue generation for the federal, provincial and local governments.

f. Making recommendations about the internal loans the federal, provincial and local governments may take, by analyzing the macroeconomic indices.

g. Reviewing the bases of revenue distribution between the federal and provincial governments, and making recommendations for reform.

h. Determine base for computing the share of investment and return for federal, provincial and local government while exploiting natural resources, and make necessary recommendations.

i. Making recommendations about coordination and mitigation of disputes likely to arise regarding distribution of natural resources between the federation and province, between the provinces, between a province and local level entity, or between local level entities.

C - Fiscal Federalism: Revenue Sharing, grants and loans, provincial revenue:

60. Distribution of sources of revenue

1. The federation, province and the local level entity shall impose tax on subjects within their fiscal jurisdiction and collect revenue from such sources. Provided that with regard to the source that are not included in the concurrent/shared list or in any list at any level, it shall be as determined by the Government of Nepal.
2. The Government of Nepal shall make necessary arrangements to equitably distribute the revenue generated by it from its sources, between the federation, province and the local level entities.
3. The amount of the fiscal transfer, the province and the local level entities are to receive shall be as recommended by the National Natural Resources and Fiscal Commission.
4. The Government of Nepal shall distribute fiscal equalization grants to province and local level entity on the basis of their need for expenditure, their capacity in generating revenue and the efforts made by them.
5. The province shall distribute fiscal equalization grants received from the Government of Nepal and the revenue generated from its sources, to the local level entities under it on the basis of need for their expenditures and their capacity to generate revenue, in accordance with provincial law.
6. The Government of Nepal shall make arrangements regarding conditional grants to be provided through the Federal Consolidated Fund, complementary grants, or the special grants for other purposes.
7. The distribution of revenue between the federal, provincial and the local level entity shall be transparent.
8. While enacting the Federal Act regarding revenue distribution, the matters that need to be included are: national policy, national needs, the autonomy of provinces and local level entities, the service delivery of the provinces and local level entities and the fiscal rights given to them; their capacity to generate revenue; feasibility and use of revenues; their contribution to development works; regional imbalance; poverty and inequality; exclusion, emergency works and the support of meet temporary needs.

D - Provincial Participation

175. Provincial Legislature

There shall be a unicameral legislature in a province which shall be called the Provincial Assembly.

62. Election of the President

An electoral college, consisting of voting members of the Federal Parliament and the members of Provincial Assembly, shall elect the President. It shall be done as provided for in law with the difference of weightage in voting of the members of the Federal Parliament and the members of Provincial Assembly.

Constitution of Nepal

The Constitution has 35 parts:

1. Preliminary 1-9
2. Citizenship 10-15
3. Fundamental Rights and Duties 16-48
4. Directive Principles, Policies, and Responsibilities of the State 49-55
5. Structure of State and Distribution of State Power 56
6. President and Vice-president 61
7. Federal Executive 74
8. Federal Legislature 83
9. Federal Legislative Procedure 109
10. Federal Financial Procedures 115
11. Judiciary 126
12. Attorney General 157
13. Provincial Executive 162
14. Provincial Legislature 175
15. Provincial Legislative Procedure 197
16. Financial Procedures of Province 203
17. Local Executive 214
18. Local Legislature 221
19. Local Financial Procedure 228
20. Interrelationship between the Federation, Provinces and Local Levels 231
21. Commission for the Investigation of Abuse of Authority 238
22. Auditor General 240
23. Public Service Commission 242
24. Election Commission 245
25. National Human Rights Commission 248
26. National Natural Resources and Fiscal Commission 250
27. Other Commissions 252
28. Provision regarding National Security 266
29. Provision relating to Political Parties 269
30. Emergency Power 273
31. Amendment of the Constitution 274
32. Miscellaneous 275
33. Transitional Provisions 295
34. Definitions and Interpretations 306
35. Short title, Commencement and Repeal 307

The Constitution has 9 schedules:

1. Nepali National Flag
2. National Anthem of Nepal
3. Coat of Arms of Nepal
4. Provinces and Districts within provinces
5. List of Federal Powers/Jurisdiction - 35
6. List of Provincial Powers/Jurisdiction - 21
7. List of Concurrent (federal and provincial) powers/jurisdiction - 25
8. List of Powers/Jurisdiction for Local Level - 22
9. List of Concurrent Powers/Jurisdiction for Federation, Province and Local Level - 15

Writs: Types

Article 133 and144 in Constitution of Nepal:

133. Jurisdiction of the Supreme Court

1. Any Nepali citizen may file a petition in the Supreme Court to have any law or any part thereof declared void on the ground of inconsistency with this Constitution because it imposes an unreasonable restriction on the enjoyment of the fundamental rights conferred by this Constitution or on any other ground, or any law formulated by the Provincial Assembly is inconsistent with the law formulated by Federal Parliament or any law formulated by Municipal Assembly or Village Assembly is inconsistent with the law formulated by Federal Parliament or Provincial Assembly, and extra-ordinary power shall rest with the Supreme Court to declare that law void either ab initio or from the date of its decision if it appears that the law in question is inconsistent.

2. The Supreme Court shall, for the enforcement of the fundamental rights conferred by this Constitution, for the enforcement of any other legal right for which no other remedy has been provided or for which the remedy even though provided appears to be inadequate or ineffective, or for the settlement of any constitutional or legal question involved in any dispute of public interest or concern, have the extraordinary power to issue necessary and appropriate orders to enforce such rights or settle the dispute.

3. For this purpose, the Supreme Court may, with a view to imparting full justice and providing the appropriate remedy, issue appropriate orders and writs including the writs of habeas corpus, mandamus, certiorari, prohibition and quo warranto.

Provided that, except on the ground of absence of jurisdiction, the Supreme Court shall not, under this Clause, interfere with the internal affairs of the Federal Parliament and, the proceedings and decisions of the Federal Parliament concerning violation of its privileges and any penalties imposed thereof.

4. The Supreme Court shall have jurisdiction to hear original and appellate cases, to review its own judgments or interim order, to examine decision referred for confirmation, review cases or hear petitions. Such review shall be done by judge other than the one involved in original verdict.

5. The Supreme Court shall hear appeal of cases that have been initiated and executed by the High Court, a subject of public interest litigation including a question related to the interpretation of the constitution and law or a case referred by the High Court along with its opinion that it would be appropriate for the Supreme Court to decide on it.

6. Other rights and procedural of the Supreme Court shall be as per the Federal law

144. Jurisdiction of the High Court

1. The High Court shall, for the enforcement of the fundamental rights conferred by this Constitution, for the enforcement of any other legal right for which no other remedy has been provided or for which the remedy even though provided appears to be inadequate or ineffective, or for the settlement of any legal question involved in any dispute of public interest or concern, have the right to issue necessary and appropriate orders in the name of governments, office-bearers, institutions or individuals within its provincial jurisdiction.

2. For the purpose of Clause (1), the High Court may issue appropriate orders and writs including the writs of habeas corpus, mandamus, certiorari, prohibition and quo warranto.

Provided that except on the ground of absence of jurisdiction, the High Court shall not, under this Clause, interfere with the internal task and the proceedings and decision of the Provincial Assembly concerning violation of its privileges and any penalties imposed thereof.

3. The High Court shall have jurisdiction to hear original and appellate cases and to examine decisions referred for confirmation, as provided for in law.

4. Other powers and working procedures of the High Court shall be according to the Federal law.

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Habeas Corpus: Ensures against illegal detention and secures release if someone is unlawfully confined.

Mandamus "We command": Orders a public official or government body to perform a legal duty they've neglected.

Certiorari "to be informed": Brings the record of a case from a lower court to a higher court for review to check for errors.

Prohibition "To forbid": Stops a government body or official from taking an action deemed illegal or exceeding their jurisdiction.

Quo Warranto "by what authoroty": Challenges a person's right to hold a public office.

Constituent Assembly of Nepal

The first Nepalese Constituent Assembly:

* unicameral body of 601 members 

* served from May 28, 2008, to May 28, 2012

* formed as a result of the first Constituent Assembly election held on April 10, 2008

* tasked with writing a new constitution, and acting as the interim legislature for a term of two years.

* 240 members were elected in single-seat constituencies, 

**335 were elected through proportional representation, 

**remaining 26 seats were reserved for nominated members.

next Nepalese Constituent Assembly elections initially slated for November 22, 2012 were held a year later on November 19, 2013, after being postponed several times.

The Second Constituent Assembly of Nepal,

* later converted to the Legislature Parliament, 

* unicameral legislature of Nepal. 

* was elected in the 2013 Constituent Assembly elections after the failure of the first Constituent Assembly to promulgate a new constitution. 

* converted into a legislative parliament after the constitution was promulgated in 2015. 

* legislature parliament's term ended on 14 October 2017.

1st Federal Parliament: 4 March 2018 – 18 September 2022

2nd Federal Parliament:  9 January 2023 –