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Legal Framework Governing Elections in Nepal

The Constitution of Nepal

The Interim Constitution of Nepal
The Interim Constitution of Nepal was promulgated in Dec 10, 2006 with a view to institutionalize the achievements made by the Comprehensive Peace Agreement, signed between the GoN and the CPN (Maoist) in November 2006. The interim constitution has been made with a political understanding between the 7 parties and the CPN (Maoist) through a resurrection of the 1999 House of Representatives as the interim parliament and a new legislature of 330 members with powers for an interim time period, until a new constitution is framed by the Constituent Assembly. The Interim Constitution has gone through two rounds of amendments thus far.

The Interim Constitution of Nepal of 2006 has 26 parts, 167 sections and 2 annexes. The preamble of the Interim Constitution states that in view of the people's aspirations for democracy, peace and progress expressed through various historical struggles and movements since and before 1951, serious efforts are made to progressively restructure the state for the resolution of the problems of class, ethnic, regional, and gender prevalent in the country. The interim constitution is for a competitive multiparty democratic system, people's liberty, fundamental rights, human rights, adult franchise, periodic elections, complete freedom of press, independent judiciary, rule of law and democratic principles. Signatories declare that the Interim Constitution of Nepal of 2006 has focused on democracy, peace, prosperity, progressive socio-economic transformation and sovereignty of the country, integrity, independence and dignity to institutionalize the results of the struggles and revolutions launched by the people until then.

Highlights of the Interim Constitution of Nepal of 2006 are:
- New National Anthem
- New coat-of-arms (logo)
- Sovereignty with the people;
- Formation of an interim unicameral legislation of 330 members
- Provision of 33 per cent reservation for women in the parliament
- Prime Minister is to call and conclude parliament sessions, and to present annual programs and policy of the government;
- Executive power vested in Council of Ministers;
- Election for a Constituent Assembly of 425 members;
- Two-year tenure for the Constituent Assembly from the date of its first session;
- A Constituent Assembly Court for settling the disputes and complaints about the election for a Constituent Assembly
- Provision for taking human rights as the guiding principle of the state.
- National Human Rights Commission to be upgraded as a constitutional body;
- Formation of interim local governments such as district development committees, municipalities and village development committees Requirement of at least 10, 000 voters' signature for forming a new political party and participating in an election;
- Council of Minister to appoint the Army Chief of Staff;
- Amendment to the Constitution only by two-third majority of parliamentarians;
- Provision for Referendum on any issue of national importance;
- Prime Minister to wield all executive powers of the Head of State;
- Decision on the monarchy by the first session of the Constituent Assembly;
- Transfer of the property of late King Birendra, late Queen Aishwarya and their relatives to a Trust Fund managed by the Government of Nepal for the nation's betterment;
- Nationalization of the property inherited by Gyanendra as a king;
- Fresh oath of office to be taken by justices of Supreme Court, Appellate Courts, and District Courts;
- The current House of Representatives and National Assembly will automatically be dissolved with the promulgation of the interim constitution;
- The Constitution of the Kingdom of Nepal of 1990 will be annulled after the promulgation of the interim constitution.
The Interim constitution signed by the SPA leaders and the Chairman of the CPN-Maoist is the sixth Constitution of Nepal. The first constitution was introduced by hereditary Prime Minister Padma Shumsher Jung Bahadur Rana in 1948 to consolidate the rule of his clan. The second constitution was an interim constitution declared by King Tribhuvan in 1951 after the fall of the Rana regime. The third was a democratic constitution promulgated by King Mahendra in 1958. The fourth constitution was the Panchayat Constitution of 1962
The First Amendment to the Interim Constitution of Nepal
In response to demands made by various groups, especially the Madeshi movement, the parliament proposed amendments to the Interim Constitution, which was promulgated on January 15, 2007. The proposed amendment required a proportional share in all state mechanisms for historically marginalized groups and regions, such as Madhesis, Dalits, indigenous ethnic groups, women, laborers, peasants, and disabled people. This included a revision of the 205 electoral constituencies in existence at the time. Similarly, an amendment to Article 138 proposed a federal structure for the state under the Constitution to be written by the Constituent Assembly, in order to protect these groups in the future.

Article 154 was added to create the Constituency Election Delimitation Commission (CEDC), which was tasked with revising the existing electoral constituencies under the leadership of a retired Supreme Court Justice. A number of constituencies were to be added in the Terai region based on its proportion of population, and in the hill and mountain districts, the account for population growth.

In addition to the elected members of the Constituent Assembly, a further 17 members, people recognized for making significant contribution to the country, were to be nominated by the new Council of Ministers.
The Second Amendment to the Interim Constitution of Nepal
On June 13, 2007, the second amendment came in effect to the Interim Constitution, which empowered the parliament to table a motion for the abolition of the monarchy by a two-third majority if the monarchy was found to be interfering with the Constituent Assembly Election (Article 159). The Prime Minister was required to summon a special session of the interim parliament within 15 days of such a motion being tabled. A new clause was added to allow the removal of the Prime Minister through a parliamentary vote. One fourth of the members in parliament are able to table a motion of no-confidence against the Prime Minister, up to twice a year and summon a special session for this purpose. The amendment also defers the Constituent Assembly Election poll till Mangshir (mid-December, 2007) at the latest.

The amendment also made Supreme Court Justices and ambassadors subject to parliamentary hearings before their appointment (Article 155). The cabinet was also empowered ask the Constituency Delimitation Commission to review its report (for one time) if it found any technical errors (Article 154). Clause (57A) was added to provide for an opposition bench in parliament, however, a separate law is required for the opposition bench to come into existence.
The Third Amendment to the Interim Constitution of Nepal
Based on the 23-point agreement signed by the seven parties, the government presented a bill on the third amendment to the Interim Constitution, which was approved by the Legislative Parliament on December 28, 2007. With this amendment, Nepal has turned into a federal republic (Article 159). However, the creation of the republic needs to be endorsed by the first meeting of Constituent Assembly. A simple majority of the Constituent Assembly will implement the federal republic. The amendment provides for the Prime Minister to bear all responsibilities of the head of the state until the Constituent Assembly election.

The ratio of the Constituent Assembly members elected under the proportional and first-past-the-post electoral systems was also amended. Two hundred and forty members will be elected first-past-the-post electoral system, while three hundred and thirty five members will be elected under the proportional electoral system. A further 26 members will be nominated by the Council of Ministers (Article 63). Therefore, the amendment increased the number of members in the Constituent Assembly to 601 from 497.

Finally, a provision was added in Article 61 to allow the appointment of a Secretary General and Secretary to the parliament by the Prime Minister, upon the recommendation of the Speaker. The new deadline for conduct of the Constituent Assembly Election was also set for mid-April, 2008, the end of the current Nepali calendar year.