Posted by: dimag kharab April 11, 2011
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PART 12
AUDITOR GENERAL
122. Auditor General: (1) There shall be an Auditor General of Nepal. (2) The Auditor General shall be appointed by the Prime Minister
on the recommendation of the Constitutional Council
(3) Subject to the proviso under sub-clause (a) of clause (7), the term of office of the Auditor General shall be six years from the date of appointment.
Provided that:
a) if before the expiry of his/her term, the Auditor General attains the age of sixty five, he/she shall be retired.
(b) the Auditor General may be removed from his/her office on the same grounds and in the same manner as has been set forth for the removal of a Judge of the Supreme Court.
(4) The office of the Auditor General shall be deemed vacant in the following circumstances:
(a) if he/she submits a written resignation to the Prime Minister,
(b) if pursuant to clause (3) his/her term expires or he/she is removed from his/her office,
(c) if he/she dies.
(5) No person shall be eligible to be appointed as the Auditor General unless he/she possesses the following qualifications:
(a) holds a Bachelor's Degree in Management, Commerce or Accounts from a university recognized by the Government of Nepal, or has worked as a Special Class Officer of the Government of Nepal after successfully completing the Chartered Accountants examination, or has experience in the field of auditing of not less than twenty years;
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(b)
(c) (d)
is not a member of any political party immediately before the appointment;
has attained forty five years of age, and has possessed high moral character
(6) The remuneration and other conditions of service of the Auditor General shall be as determined by law. The remuneration and other conditions of service of the Auditor General shall not, so long as he/she holds office, be altered to his/her disadvantage.
(7) A person once appointed as the Auditor General shall not be eligible for appointment in other Government services.
Provided that nothing in this clause shall be a bar to appointment to any position of a political nature, or to any position which has the responsibility of making investigations, inquiries or findings on any subject, or to any position which has the responsibility of submitting advice, opinions or recommendations after carrying out studies or research on any subject.
123. Functions, Duties and Powers of the Auditor General: (1) The accounts of the Supreme Court, Legislature-Parliament, Constituent Assembly, Commission for the Investigation of Abuse of Authority, Auditor General, Public Service Commission, Election Commission, National Human Rights Commission, Office of Attorney General and other offices of Constitutional Bodies, the Nepal Army and Armed Police or the Nepal Police as well as of all other government offices and courts shall be audited by the Auditor General in the manner determined by law, with due considerations given to the regularity, economy, efficiency, effectiveness and the propriety thereof.
(2) The Auditor General shall be consulted in the matter of the appointment of auditors for carrying out the audit of any corporate body of which the Government of Nepal owns more than fifty percent of the shares or the assets. The Auditor General may also issue necessary directives setting forth the principles for carrying out the audit of such corporate bodies.
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(3) The Auditor General shall, at all times, have access to documents concerning the accounts for the purpose of carrying out the functions stipulated in clause (1) above. It shall be the duty of the head of the concerned office to provide all such documents or information which may be demanded by the Auditor General or his/her employees.
(4) The accounts to be audited pursuant to clause (1) above shall, subject to the relevant law, be maintained in such form as prescribed by the Auditor General.
(5) In addition to the accounts of the offices referred to in clause (1) above, the law may also require that the accounts of any other office or institution be audited by the Auditor General.
124. Annual Report: 1) The Auditor General shall submit to the Prime Minister an annual report on the works it has performed, and the Prime Minister shall make arrangement to submit such reports before Legislature-Parliament.
(2) The annual report to be submitted in accordance with clause (1) above shall contain, inter alia, the offices wherein the Auditor General has carried out audits in that year, the situation of irregularities find out by the audit; the efforts made to settle irregularities and the achievements obtained therein; details of the cases seemed as corrupt in nature and required to be further investigation, forwarded to the Commission for Investigation of Abuse of Authority in writing; and the reforms to be carried out in future regarding the audit.
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Part 13
PUBLIC SERVICE COMMISSION
125. Public Service Commission: (1) There shall be a Public Service Commission of Nepal consisting of a Chairperson and a number of other members as may be required.
(2) The Prime Minister on the recommendation of the Constitutional Council shall appoint the Chairperson and other members of the Public Service Commission.
(3) At least fifty percent of the total number of members of the Public Service Commission shall be appointed from persons who have worked for twenty or more than twenty years in any government service, and the rest of the members shall be appointed from persons, who have done research, investigation, teaching or any other significant work in fields such as science, technology, art, literature, law, public administration, sociology or any other sphere of national life and who hold a high reputation.
(4) Subject to the proviso under sub-clause (a) of clause (8), the term of office of the Chairperson and other members of the Public Service Commission shall be six years from the date of appointment.
Provided that:
(a) if before the expiry of his/her term, the Chairperson and other members of the Public Service Commission attains the age of sixty five, he/she shall be retired.
(b) the Chairperson and other members of the Public Service Commission may be removed from his/her office on the same grounds and in the same manner as has been set forth for the removal of a Judge of the Supreme Court.
(5) The office of the Chairperson or other members of the Public Service Commission shall be deemed vacant in the following circumstances:
(a) if he/she submits a written resignation to the Prime Minister,
(b)if pursuant to clause (4) his/her term expires or he/she is removed from his/her office,
(c) if he/she dies.
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(6) No person shall be eligible to be appointed as Chairperson or member of the Public Service Commission unless he/she:
a) holds a Post Graduate degree from a university recognized by the Government of Nepal,
b) is not a member of any political party immediately before the appointment;
c) has attained the age of forty five years, and
d) has possessed high moral character.
(7) The remuneration and other conditions of service of the Chairperson and the member of the Public Service Commission shall be as determined by law. The remuneration and other conditions of service of the Chairperson and the members of the Public Service Commission shall not, so long as they hold office, be altered to their disadvantage.
(8) A person once appointed to the office of the Chairperson and the member of the Public Service Commission shall not be eligible for appointment in other Government services.
Provided that:
(a) nothing in this Clause shall be deemed to be a bar to appointment of a member of the Public Service Commission as Chairperson thereof, and when a member is so appointed as the Chairperson, his/her term of office shall be computed as to include his/her tenure as member as well, and
(b) nothing in this clause shall be deemed to be a bar to appointment to any position of a political nature, or to any position which has the responsibility of making investigations, inquiries or findings on any subject, or to any position which has the responsibility of submitting advice, opinions or recommendations after carrying out studies or research on any subject.
126. Functions, Duties and Powers of the Public Service Commission: (1) It shall be the duty of the Public Service Commission to conduct examinations for the selection of suitable candidates to be appointed to Civil Service posts.
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Explanation: For the purposes of this Article, all services and positions in the Government of Nepal shall be deemed included within the Civil Service, except Army Officers or Soldiers and the service and positions of Armed Police or Police personnel, and such other services and positions as are excluded from the Civil Service or positions by any law.
(2) Permanent appointment to any position in the Civil Service which carries the benefit of pension shall not be made except in consultation with the Public Service Commission.
(3) The Public Service Commission shall be consulted on the following subjects:
a) matters concerning the law relating to the conditions of service of the Civil Service,
b) the general principles to be followed in the course of appointment to, promotion to, and departmental action of the Civil Service or positions,
c) matters concerning the suitability of any candidate for appointment to a Civil Service position for a period of more than six months,
d) matters concerning the suitability of any candidate for transfer or promotion from one service to another within the Civil Service or from any other Government service to the Civil Service,
e) matters concerning the permanent transfer or promotion of any employee, working in any position of an organization which is not required to consult with the Public Service Commission on matters of appointment, to any position for which consultation with the Public Service Commission is required, and
f) Matters relating to departmental actions proposed against any Civil servant.
(4) Notwithstanding anything contained in clause (3) above, matters falling within the purview of the Judicial Service Commission pursuant to Article 144 shall be governed by that Article.
(5) The Public Service Commission shall be consulted for the general principles to be followed in the course of appointment to and promotion of the Military Service, Armed Police Service or Police Service.
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(6) The Public Service Commission may provide an advice, if requested by any Public Enterprises, with regard to the prevailing regulations relating to the terms and conditions of service of their employee, and with regard to the general principles to be followed in the course of appointment to, promotion to, and departmental action of such Services.
Explanation: For the purpose of this Article the word “Public Enterprises” means any corporate body in which the Government of Nepal owns and control more than fifty percent of the shares or the assets.
(7) The Public Service Commission may delegate any of its functions, duties and powers to any of its members, a committee of such members or any employee of the Government of Nepal, to be exercised and complied with the conditions as specified.
(8) Subject to this Constitution, other functions, duties and working procedures of the Public Service Commission shall be as determined by law.
127. Annual Report: (1) Each year, the Public Service Commission shall submit to the Prime Minister an annual report on the works it has performed, and the Prime Minister shall make arrangement to submit such reports before Legislature-Parliament.
(2) The annual report to be submitted in accordance with clause (1) above, shall contain, inter alia, the description on the examinations conducted by the Public Service Commission throughout the year for selecting candidates, candidates succeeded in such examinations, advice provided to various agencies, consultation rendered with regard to departmental action and punishment to Civil Servant and the follow-up thereto, consultation provided, if any, for the application of the general principles to be followed in the course of appointment to, promotion to, and departmental action concerning the Government Service, and the matters relating to the reforms of the Civil Service in the future.
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PART 14
ELECTION COMMISSION
128. Election Commission: (1) There shall be an Election Commission in Nepal consisting of a Chief Election Commissioner and up to four other Commissioners. If apart from the Chief Election Commissioner other Election Commissioners are appointed, the Chief Election Commissioner shall act as the Chairperson of the Election Commission.
(2) The Prime Minister shall, on the recommendation of the Constitutional Council, appoint the Chief Election Commissioner and the Election Commissioners.
(3) Subject to the proviso under sub-clause (a) of clause (7), the term of office of the Chief Election Commissioner and the Election Commissioners shall be six years from the date of appointment.
Provided that:
(a) if before the expiry of his/her term, the Chief Election Commissioner and the Election Commissioner attains the age of sixty five, he/she shall be retired.
(b) the Chief Election Commissioner and the Election Commissioner may be removed from his/her office on the same grounds and in the same manner as has been set forth for the removal of a Judge of the Supreme Court.
(4) The office of the Chief Election Commissioner or an Election Commissioner shall be deemed vacant in the following circumstances:
(a) if he/she submits a written resignation to the Prime Minister,
(b) if pursuant to clause (3) his/her term expires or he/she is removed from his/her office,
(c) if he/she dies.
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(5) No person shall be eligible to be appointed as the Chief Election Commissioner or an Election Commissioner unless he/she:
(a) holds a Bachelor's Degree from a university recognized by the Government of Nepal,
(b) is not a member of any political party immediately before the appointment,
(c) has attained the age of forty five years and (d) has possessed high moral character.
(6) The remuneration and other conditions of service of the Chief Election Commissioner and the Election Commissioners shall be as determined by law. The remuneration and other conditions of service of the Chief Election Commissioner and the Election Commissioners shall not, so long as they hold office, be altered to their disadvantage.
(7) A person once appointed to the office of the Chief Election Commissioner or an Election Commissioner shall not be eligible for appointment in other Government Services.
Provided that :
(a)
nothing in this clause shall be deemed to be a bar to the appointment of an Election Commissioner as Chief Commissioner, and when a Commissioner is so appointed as the Chief Commissioner, and when a Commissioner is so appointed as the Chief Commissioner, his/her term of office shall be computed as to include his/her term as Commissioner as well;
(b) nothing in this clause shall be deemed to a bar to appointment to any position of a political nature, or to any position which has the responsibility of making investigations, inquiries or findings on any subject, or to any position which has the responsibility of submitting advice, opinions or recommendations after carrying out studies or research on any subject.
129. Functions, Duties and Powers of the Election Commission: (1) The Election Commission shall, subject to the provisions of this Constitution and other laws, conduct, supervise, direct and control the elections to Constituent Assembly, Referendum to be held
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pursuant to Article 157 of this Constitution, and the Local Authorities. For these purposes, the Election Commission shall prepare the electoral rolls of voters.
(2) If, after nominations for election to Constituent Assembly have been filed but before the election is completed, a question arises as to whether a candidate is disqualified or has ceased to possess the qualifications set forth in Article 65, final decision thereon shall be made by the Election Commission.
(3) The Election Commission may delegate any of its functions, duties and powers to the Chief Election Commissioner, a Commissioner or any employee of the Government of Nepal to be exercised and complied with subject to the conditions as specified.
(4) Subject to this Constitution, other functions, duties and working procedures of the Election Commission shall be as regulated by law.
130. The Government of Nepal to Provide Necessary Employees to the
Election Commission: The Government of Nepal shall provide necessary employees and other things as may be required to perform the functions of the Election Commission in accordance with this Constitution.
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PART 15
NATIONAL HUMAN RIGHTS COMMISSION
131. National Human Rights Commission: (1) There shall be a National Human Rights Commission in Nepal consisting of the following Chairperson and the members:
(a) One person from amongst the retired Chief Justices or Judges of the Supreme Court who have made an outstanding contribution for the protection and promotion of human rights, or a person who hold a high reputation and has rendered outstanding contribution being actively involved in the field of protection and promotion of human rights or social work. - Chairperson
(b) Four persons from amongst the persons who have provided outstanding contribution, being actively involved in the field of protection and promotion of human rights or social work - Members
(2) In the appointment of Chairperson and the members in the National Human Rights Commission shall maintain representation from all fields including the woman.
(3) The Prime Minister shall, on the recommendation of the Constitutional Council, appoint the Chairperson and the Members of the National Human Rights Commission.
(4) The term of the office of the Chairperson and the members of the National Human Rights Commission shall be six years from the date of appointment.
Provided that the Chairperson and the members of the National Human Rights Commission may be removed from his/her offices on the same ground and in the same manner as has been set forth for removal of a Judge of the Supreme Court.
(5) The office of the Chairperson and the members of the National Human Rights Commission shall be deemed vacant in the following circumstances:
(a) if he/she submits a written resignation to the Prime Minister,
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(b) if pursuant to clause (4) his/her term expires or he/she is removed from his/her office,
(c) if he/she dies.
(6) No person shall be eligible to be appointed as the Chairperson or a member of the National Human Rights Commission unless he/she possess the following qualifications:
(a) a Bachelor's Degree from a university recognized by the Government of Nepal,
(b) maintains high moral character.
(7) The remuneration and other conditions of service of the Chairperson and the members of the National Human Rights Commission shall be as determined by law. The remuneration and other conditions of service of the Chairperson and the members of the National Human Rights Commission shall not, so long as they hold office, be altered to their disadvantage.
(8) A person once appointed as the Chairperson or the Members of National Human Rights Commission shall not be eligible for appointment in any other government service.
Provided that nothing in this clause shall be deemed to be a bar to appointment to any position of a political nature, or to any position which has the responsibility of making investigations, inquiries or findings on any subject, or to any position which has the responsibility of submitting advice, opinions or recommendations after carrying out studies or research on any subject.
132. Functions, Duties and Power of the National Human Rights Commission : (1) It shall be the duty of the National Human Rights Commission to ensure the respect, protection and promotion of the human rights and its effective implementation.
(2) In order to perform the duty referred to in clause (1) above, the Commission may carry out the following functions:
(a) to conduct inquiries into, investigations of, and recommendation for action against the perpetrator, on the matters of violation or abetment of human rights of a person or a group of persons, upon a
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petition or complaint presented to the Commission by the victim himself or herself or any person on his/her behalf or upon information received from any source, or on its own initiative,
(b)to forward a recommendation to the concerned authority for taking departmental action against the authority, who has the duty or responsibility to prevent the violations of the human rights, failed to perform such duty or responsibility or show recklessness or negligence in performing his/her duty,
(c) to make recommendation to lodge a petition in the court, if necessary, in accordance with the law against the person who has violated human rights,
(d) to work jointly and in a coordinated manner with the civil society to enhance awareness on human rights,
(e) to forward a recommendation to the concerned authority for taking departmental action or imposing punishment against the violators of human rights, mentioning clear reason and basis thereof.
(f) to review prevailing laws relating to human rights in a periodic basis and to recommend the Government of Nepal for necessary reforms and amendment thereto,
(g) to recommend with reasons to the Government of Nepal to become a party to any international treaties and instruments on human rights, if it is required to do so, and to monitor the implementation of the international treaties and instruments of human rights to which Nepal is a Party and if found not being implemented, forward recommendations to the Government of Nepal for effective implementation of such instruments,
(h)
to publicize the names of the official, person or bodies not following or implementing the recommendations and directions furnished by the National Human Rights Commission regarding the violations of human rights in accordance with law, and to record them as human right violators.
(3) The National Human Rights Commission in performing its functions and duties may use the following power:-
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(i) exercise the same powers as the court has in requiring any person to appear before the Commission for recording his/her statement and information or examining them, receiving and examining evidence, ordering for the production of any physical proof,
(j) enter, without prior notice, in case the Commission has received the information by any source that the incidents of the violation of human rights is occurred or going to be occurred, into any person or their residence or office, conduct search and seize any documents and evidences relating to human rights violations thereon,
(k) enter any government premises or other places, without prior notice, in case the Commission has received information that violation of human rights of a person is happening thereon and immediate action is required, to provide rescue,
(l) (m)
order for the compensation, in accordance with law, to the victims of human rights violations,
exercise or cause to be exercised other power and abide its duties as prescribed by law.
(4) Notwithstanding anything contained in this Article, the National Human Rights Commission shall not have its jurisdiction on any matter which falls within the jurisdiction of the Army Act.
Provided that nothing shall be a bar to proceedings in respect to the cases of violation of human rights and humanitarian laws.
133. Annual Report : (1) The National Human Rights Commission shall submit to the Prime Minister an annual report on the works it has performed in accordance with this Constitution, and the Prime Minister shall make arrangement to submit such reports before Legislature- Parliament.
(2) The annual report to be submitted in accordance with clause (1) above, shall contain inter alia, the complaints received by the National Human Rights Commission throughout the year and the description of inquires and investigations thereon, recommendations made to the Government of Nepal for various matters, numbers of cases lodged in the court, if any, against human rights violator, particulars for the improvement in future regarding the protection and promotion of human rights.
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PART 16
ATTORNEY GENERAL
134 Appointment of the Attorney General: (1) There shall be an Attorney General in Nepal who shall be appointed by the Prime Minister. The Attorney General shall hold office during the pleasure of the Prime Minister.
(2) No person without the qualifications of a Supreme Court Judge shall be eligible to be appointed as the Attorney General.
(3) The office of the Attorney General shall be deemed vacant under the following circumstances:
(a) if he/she submits a resignation in writing to the Prime Minister, (b) if the Prime Minister releases him/her from the office. (c) if he/she dies.
(4) The remuneration and other facilities of the Attorney General shall be at par with that of a judge of the Supreme Court. The other conditions of service of the Attorney General shall be as determined by law.
135. Functions, Duties and Rights of the Attorney General: (1) The Attorney General shall be the Chief Legal Advisor to the Government of Nepal. It shall be the duty of the Attorney General to give opinions and advice on constitutional and legal maters to the Government of Nepal and to such other authorities as the Government of Nepal may specify.
(2) The Attorney General or officers subordinate to him/her shall represent the Government of Nepal in suits wherein the rights, interests or concerns of the Government of Nepal are involved. Unless this Constitution otherwise requires, the Attorney General shall have the right to make final decision to initiate proceedings in any case on behalf of the Government of Nepal in any court or judicial authority.
(3) While discharging duties in accordance with clause (2) above, the Attorney General shall have the authority to work as follows:-
(a) to defend on behalf of the Government of Nepal either as plaintiff or defendant in litigation on field.
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(b) to monitor or cause to monitor the interpretation of law or implementation of the legal principles propounded by the Supreme Court in the light of litigations.
(c) to investigate on the complaints or the information so received to him by any means that their was not humanlike treatment to any person in custody, under this constitution, or was not allowed such person to meet his/her relatives directly in person or through legal practitioners, and give necessary directions to the concerned authorities to prevent from such situation.
(4) In addition to the function, duties and rights as expressed in this Article, the other functions, duties and rights of the Attorney General shall be as determined by this constitution and other laws.
(5) In the course of discharging his/her official duties, the Attorney General shall have the right to appear in any court, office or authority of Nepal.
(6) The Attorney General may delegate his functions, duties and power under this Article to his/her subordinates, to be expressed and complied with, subject to the specified conditions.
136. Annual Report: (1) The Attorney General shall, every year, prepare an annual report on the works he/she has performed in accordance with this constitution and other laws, and submit it to the Prime Minister, and the Prime Minister make arrangements to present the same to the Legislature Parliament.
(2) The report as per clause (1) in addition to other subject matters shall include the number of constitutional and legal advises given in the year by the Attorney General, a summary of the litigations with the government as plaintiff, summary of the cases both with government as the plaintiff and the defendant, a summary of crime and improvements to be made in the future in cases where the government is the defendant.
137. Power to Appear in the legislature Parliament: The Attorney General shall have the power to appear and express his/her Constitutional Assembly opinion on any legal questions in the legislative Parliament, or any of their committees' meetings. Provided that he/she shall not have the right to vote.
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PART 17
FORM OF STATE AND LOCAL SELF GOVERNANCE
138. Progressive Restructuring of the State: (1) Inclusive, democratic and progressive restructuring of the state shall be made to bring about an end of the discrimination based on class, caste, language, sex, culture, religion and region by eliminating the centralized and unitary form of the state.
(2) A High Level Commission shall be constituted to recommend for the restructuring of the State in accordance with clause (1) above. The composition, function, duty, power and terms of service of such Commission shall be as determined by the Government of Nepal.
(3) Final decision of restructuring of the State shall be as determined by the Constituent Assembly.
139. Provision for Local Self Governance: (1) Arrangements shall be made to set up local self governance bodies to ensure the people's exercise of their sovereignty by creating congenial atmosphere and thereby ensuring maximum peoples' participation in the country's governance, and also by providing services to the people at the local level and for the institutional development of democracy, based on the principle of decentralization and devolution of power.
(2) Interim local bodies at the District, Municipality and Village level shall be constituted through the understanding of all consenting parties to the agreement reached on the 22nd day of Kartik 2063 BS (November 7, 2006) between Nepali Congress, Nepal Communist Party (UML), Nepali Congress (Democratic), Jana Morcha Nepal, Nepal Sadhbhavana party (Anandidevi), Nepal Majdur Kishan party and United Left Front along with the Nepal Communist Party (Maoist).
(3) The organizational structure, its forms and geographical area as well as the formation process of the local self governance bodies shall be as provided for in the law.
140. Mobilization and Management of Revenue: (1) Responsibilities and distribution and mobilization of resources shall be shared between the government of Nepal and the local self governance bodies as provided for in the law to strengthen them for local development and to make responsible to the local bodies themselves on identification, formulation and execution of local level programmes, by maintaining equality with a
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balanced and judicious distribution of the outcomes form the mobilization of resources and means, and allotment as well as the development thereof.
(2) Mobilization and distribution of the revenue under clause (1) above should be aimed at overall development of the socially and economically backward classes and communities with the ambit of balanced and equitable development of the nation.
AUDITOR GENERAL
122. Auditor General: (1) There shall be an Auditor General of Nepal. (2) The Auditor General shall be appointed by the Prime Minister
on the recommendation of the Constitutional Council
(3) Subject to the proviso under sub-clause (a) of clause (7), the term of office of the Auditor General shall be six years from the date of appointment.
Provided that:
a) if before the expiry of his/her term, the Auditor General attains the age of sixty five, he/she shall be retired.
(b) the Auditor General may be removed from his/her office on the same grounds and in the same manner as has been set forth for the removal of a Judge of the Supreme Court.
(4) The office of the Auditor General shall be deemed vacant in the following circumstances:
(a) if he/she submits a written resignation to the Prime Minister,
(b) if pursuant to clause (3) his/her term expires or he/she is removed from his/her office,
(c) if he/she dies.
(5) No person shall be eligible to be appointed as the Auditor General unless he/she possesses the following qualifications:
(a) holds a Bachelor's Degree in Management, Commerce or Accounts from a university recognized by the Government of Nepal, or has worked as a Special Class Officer of the Government of Nepal after successfully completing the Chartered Accountants examination, or has experience in the field of auditing of not less than twenty years;
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(b)
(c) (d)
is not a member of any political party immediately before the appointment;
has attained forty five years of age, and has possessed high moral character
(6) The remuneration and other conditions of service of the Auditor General shall be as determined by law. The remuneration and other conditions of service of the Auditor General shall not, so long as he/she holds office, be altered to his/her disadvantage.
(7) A person once appointed as the Auditor General shall not be eligible for appointment in other Government services.
Provided that nothing in this clause shall be a bar to appointment to any position of a political nature, or to any position which has the responsibility of making investigations, inquiries or findings on any subject, or to any position which has the responsibility of submitting advice, opinions or recommendations after carrying out studies or research on any subject.
123. Functions, Duties and Powers of the Auditor General: (1) The accounts of the Supreme Court, Legislature-Parliament, Constituent Assembly, Commission for the Investigation of Abuse of Authority, Auditor General, Public Service Commission, Election Commission, National Human Rights Commission, Office of Attorney General and other offices of Constitutional Bodies, the Nepal Army and Armed Police or the Nepal Police as well as of all other government offices and courts shall be audited by the Auditor General in the manner determined by law, with due considerations given to the regularity, economy, efficiency, effectiveness and the propriety thereof.
(2) The Auditor General shall be consulted in the matter of the appointment of auditors for carrying out the audit of any corporate body of which the Government of Nepal owns more than fifty percent of the shares or the assets. The Auditor General may also issue necessary directives setting forth the principles for carrying out the audit of such corporate bodies.
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(3) The Auditor General shall, at all times, have access to documents concerning the accounts for the purpose of carrying out the functions stipulated in clause (1) above. It shall be the duty of the head of the concerned office to provide all such documents or information which may be demanded by the Auditor General or his/her employees.
(4) The accounts to be audited pursuant to clause (1) above shall, subject to the relevant law, be maintained in such form as prescribed by the Auditor General.
(5) In addition to the accounts of the offices referred to in clause (1) above, the law may also require that the accounts of any other office or institution be audited by the Auditor General.
124. Annual Report: 1) The Auditor General shall submit to the Prime Minister an annual report on the works it has performed, and the Prime Minister shall make arrangement to submit such reports before Legislature-Parliament.
(2) The annual report to be submitted in accordance with clause (1) above shall contain, inter alia, the offices wherein the Auditor General has carried out audits in that year, the situation of irregularities find out by the audit; the efforts made to settle irregularities and the achievements obtained therein; details of the cases seemed as corrupt in nature and required to be further investigation, forwarded to the Commission for Investigation of Abuse of Authority in writing; and the reforms to be carried out in future regarding the audit.
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Part 13
PUBLIC SERVICE COMMISSION
125. Public Service Commission: (1) There shall be a Public Service Commission of Nepal consisting of a Chairperson and a number of other members as may be required.
(2) The Prime Minister on the recommendation of the Constitutional Council shall appoint the Chairperson and other members of the Public Service Commission.
(3) At least fifty percent of the total number of members of the Public Service Commission shall be appointed from persons who have worked for twenty or more than twenty years in any government service, and the rest of the members shall be appointed from persons, who have done research, investigation, teaching or any other significant work in fields such as science, technology, art, literature, law, public administration, sociology or any other sphere of national life and who hold a high reputation.
(4) Subject to the proviso under sub-clause (a) of clause (8), the term of office of the Chairperson and other members of the Public Service Commission shall be six years from the date of appointment.
Provided that:
(a) if before the expiry of his/her term, the Chairperson and other members of the Public Service Commission attains the age of sixty five, he/she shall be retired.
(b) the Chairperson and other members of the Public Service Commission may be removed from his/her office on the same grounds and in the same manner as has been set forth for the removal of a Judge of the Supreme Court.
(5) The office of the Chairperson or other members of the Public Service Commission shall be deemed vacant in the following circumstances:
(a) if he/she submits a written resignation to the Prime Minister,
(b)if pursuant to clause (4) his/her term expires or he/she is removed from his/her office,
(c) if he/she dies.
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(6) No person shall be eligible to be appointed as Chairperson or member of the Public Service Commission unless he/she:
a) holds a Post Graduate degree from a university recognized by the Government of Nepal,
b) is not a member of any political party immediately before the appointment;
c) has attained the age of forty five years, and
d) has possessed high moral character.
(7) The remuneration and other conditions of service of the Chairperson and the member of the Public Service Commission shall be as determined by law. The remuneration and other conditions of service of the Chairperson and the members of the Public Service Commission shall not, so long as they hold office, be altered to their disadvantage.
(8) A person once appointed to the office of the Chairperson and the member of the Public Service Commission shall not be eligible for appointment in other Government services.
Provided that:
(a) nothing in this Clause shall be deemed to be a bar to appointment of a member of the Public Service Commission as Chairperson thereof, and when a member is so appointed as the Chairperson, his/her term of office shall be computed as to include his/her tenure as member as well, and
(b) nothing in this clause shall be deemed to be a bar to appointment to any position of a political nature, or to any position which has the responsibility of making investigations, inquiries or findings on any subject, or to any position which has the responsibility of submitting advice, opinions or recommendations after carrying out studies or research on any subject.
126. Functions, Duties and Powers of the Public Service Commission: (1) It shall be the duty of the Public Service Commission to conduct examinations for the selection of suitable candidates to be appointed to Civil Service posts.
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Explanation: For the purposes of this Article, all services and positions in the Government of Nepal shall be deemed included within the Civil Service, except Army Officers or Soldiers and the service and positions of Armed Police or Police personnel, and such other services and positions as are excluded from the Civil Service or positions by any law.
(2) Permanent appointment to any position in the Civil Service which carries the benefit of pension shall not be made except in consultation with the Public Service Commission.
(3) The Public Service Commission shall be consulted on the following subjects:
a) matters concerning the law relating to the conditions of service of the Civil Service,
b) the general principles to be followed in the course of appointment to, promotion to, and departmental action of the Civil Service or positions,
c) matters concerning the suitability of any candidate for appointment to a Civil Service position for a period of more than six months,
d) matters concerning the suitability of any candidate for transfer or promotion from one service to another within the Civil Service or from any other Government service to the Civil Service,
e) matters concerning the permanent transfer or promotion of any employee, working in any position of an organization which is not required to consult with the Public Service Commission on matters of appointment, to any position for which consultation with the Public Service Commission is required, and
f) Matters relating to departmental actions proposed against any Civil servant.
(4) Notwithstanding anything contained in clause (3) above, matters falling within the purview of the Judicial Service Commission pursuant to Article 144 shall be governed by that Article.
(5) The Public Service Commission shall be consulted for the general principles to be followed in the course of appointment to and promotion of the Military Service, Armed Police Service or Police Service.
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(6) The Public Service Commission may provide an advice, if requested by any Public Enterprises, with regard to the prevailing regulations relating to the terms and conditions of service of their employee, and with regard to the general principles to be followed in the course of appointment to, promotion to, and departmental action of such Services.
Explanation: For the purpose of this Article the word “Public Enterprises” means any corporate body in which the Government of Nepal owns and control more than fifty percent of the shares or the assets.
(7) The Public Service Commission may delegate any of its functions, duties and powers to any of its members, a committee of such members or any employee of the Government of Nepal, to be exercised and complied with the conditions as specified.
(8) Subject to this Constitution, other functions, duties and working procedures of the Public Service Commission shall be as determined by law.
127. Annual Report: (1) Each year, the Public Service Commission shall submit to the Prime Minister an annual report on the works it has performed, and the Prime Minister shall make arrangement to submit such reports before Legislature-Parliament.
(2) The annual report to be submitted in accordance with clause (1) above, shall contain, inter alia, the description on the examinations conducted by the Public Service Commission throughout the year for selecting candidates, candidates succeeded in such examinations, advice provided to various agencies, consultation rendered with regard to departmental action and punishment to Civil Servant and the follow-up thereto, consultation provided, if any, for the application of the general principles to be followed in the course of appointment to, promotion to, and departmental action concerning the Government Service, and the matters relating to the reforms of the Civil Service in the future.
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PART 14
ELECTION COMMISSION
128. Election Commission: (1) There shall be an Election Commission in Nepal consisting of a Chief Election Commissioner and up to four other Commissioners. If apart from the Chief Election Commissioner other Election Commissioners are appointed, the Chief Election Commissioner shall act as the Chairperson of the Election Commission.
(2) The Prime Minister shall, on the recommendation of the Constitutional Council, appoint the Chief Election Commissioner and the Election Commissioners.
(3) Subject to the proviso under sub-clause (a) of clause (7), the term of office of the Chief Election Commissioner and the Election Commissioners shall be six years from the date of appointment.
Provided that:
(a) if before the expiry of his/her term, the Chief Election Commissioner and the Election Commissioner attains the age of sixty five, he/she shall be retired.
(b) the Chief Election Commissioner and the Election Commissioner may be removed from his/her office on the same grounds and in the same manner as has been set forth for the removal of a Judge of the Supreme Court.
(4) The office of the Chief Election Commissioner or an Election Commissioner shall be deemed vacant in the following circumstances:
(a) if he/she submits a written resignation to the Prime Minister,
(b) if pursuant to clause (3) his/her term expires or he/she is removed from his/her office,
(c) if he/she dies.
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(5) No person shall be eligible to be appointed as the Chief Election Commissioner or an Election Commissioner unless he/she:
(a) holds a Bachelor's Degree from a university recognized by the Government of Nepal,
(b) is not a member of any political party immediately before the appointment,
(c) has attained the age of forty five years and (d) has possessed high moral character.
(6) The remuneration and other conditions of service of the Chief Election Commissioner and the Election Commissioners shall be as determined by law. The remuneration and other conditions of service of the Chief Election Commissioner and the Election Commissioners shall not, so long as they hold office, be altered to their disadvantage.
(7) A person once appointed to the office of the Chief Election Commissioner or an Election Commissioner shall not be eligible for appointment in other Government Services.
Provided that :
(a)
nothing in this clause shall be deemed to be a bar to the appointment of an Election Commissioner as Chief Commissioner, and when a Commissioner is so appointed as the Chief Commissioner, and when a Commissioner is so appointed as the Chief Commissioner, his/her term of office shall be computed as to include his/her term as Commissioner as well;
(b) nothing in this clause shall be deemed to a bar to appointment to any position of a political nature, or to any position which has the responsibility of making investigations, inquiries or findings on any subject, or to any position which has the responsibility of submitting advice, opinions or recommendations after carrying out studies or research on any subject.
129. Functions, Duties and Powers of the Election Commission: (1) The Election Commission shall, subject to the provisions of this Constitution and other laws, conduct, supervise, direct and control the elections to Constituent Assembly, Referendum to be held
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pursuant to Article 157 of this Constitution, and the Local Authorities. For these purposes, the Election Commission shall prepare the electoral rolls of voters.
(2) If, after nominations for election to Constituent Assembly have been filed but before the election is completed, a question arises as to whether a candidate is disqualified or has ceased to possess the qualifications set forth in Article 65, final decision thereon shall be made by the Election Commission.
(3) The Election Commission may delegate any of its functions, duties and powers to the Chief Election Commissioner, a Commissioner or any employee of the Government of Nepal to be exercised and complied with subject to the conditions as specified.
(4) Subject to this Constitution, other functions, duties and working procedures of the Election Commission shall be as regulated by law.
130. The Government of Nepal to Provide Necessary Employees to the
Election Commission: The Government of Nepal shall provide necessary employees and other things as may be required to perform the functions of the Election Commission in accordance with this Constitution.
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PART 15
NATIONAL HUMAN RIGHTS COMMISSION
131. National Human Rights Commission: (1) There shall be a National Human Rights Commission in Nepal consisting of the following Chairperson and the members:
(a) One person from amongst the retired Chief Justices or Judges of the Supreme Court who have made an outstanding contribution for the protection and promotion of human rights, or a person who hold a high reputation and has rendered outstanding contribution being actively involved in the field of protection and promotion of human rights or social work. - Chairperson
(b) Four persons from amongst the persons who have provided outstanding contribution, being actively involved in the field of protection and promotion of human rights or social work - Members
(2) In the appointment of Chairperson and the members in the National Human Rights Commission shall maintain representation from all fields including the woman.
(3) The Prime Minister shall, on the recommendation of the Constitutional Council, appoint the Chairperson and the Members of the National Human Rights Commission.
(4) The term of the office of the Chairperson and the members of the National Human Rights Commission shall be six years from the date of appointment.
Provided that the Chairperson and the members of the National Human Rights Commission may be removed from his/her offices on the same ground and in the same manner as has been set forth for removal of a Judge of the Supreme Court.
(5) The office of the Chairperson and the members of the National Human Rights Commission shall be deemed vacant in the following circumstances:
(a) if he/she submits a written resignation to the Prime Minister,
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(b) if pursuant to clause (4) his/her term expires or he/she is removed from his/her office,
(c) if he/she dies.
(6) No person shall be eligible to be appointed as the Chairperson or a member of the National Human Rights Commission unless he/she possess the following qualifications:
(a) a Bachelor's Degree from a university recognized by the Government of Nepal,
(b) maintains high moral character.
(7) The remuneration and other conditions of service of the Chairperson and the members of the National Human Rights Commission shall be as determined by law. The remuneration and other conditions of service of the Chairperson and the members of the National Human Rights Commission shall not, so long as they hold office, be altered to their disadvantage.
(8) A person once appointed as the Chairperson or the Members of National Human Rights Commission shall not be eligible for appointment in any other government service.
Provided that nothing in this clause shall be deemed to be a bar to appointment to any position of a political nature, or to any position which has the responsibility of making investigations, inquiries or findings on any subject, or to any position which has the responsibility of submitting advice, opinions or recommendations after carrying out studies or research on any subject.
132. Functions, Duties and Power of the National Human Rights Commission : (1) It shall be the duty of the National Human Rights Commission to ensure the respect, protection and promotion of the human rights and its effective implementation.
(2) In order to perform the duty referred to in clause (1) above, the Commission may carry out the following functions:
(a) to conduct inquiries into, investigations of, and recommendation for action against the perpetrator, on the matters of violation or abetment of human rights of a person or a group of persons, upon a
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petition or complaint presented to the Commission by the victim himself or herself or any person on his/her behalf or upon information received from any source, or on its own initiative,
(b)to forward a recommendation to the concerned authority for taking departmental action against the authority, who has the duty or responsibility to prevent the violations of the human rights, failed to perform such duty or responsibility or show recklessness or negligence in performing his/her duty,
(c) to make recommendation to lodge a petition in the court, if necessary, in accordance with the law against the person who has violated human rights,
(d) to work jointly and in a coordinated manner with the civil society to enhance awareness on human rights,
(e) to forward a recommendation to the concerned authority for taking departmental action or imposing punishment against the violators of human rights, mentioning clear reason and basis thereof.
(f) to review prevailing laws relating to human rights in a periodic basis and to recommend the Government of Nepal for necessary reforms and amendment thereto,
(g) to recommend with reasons to the Government of Nepal to become a party to any international treaties and instruments on human rights, if it is required to do so, and to monitor the implementation of the international treaties and instruments of human rights to which Nepal is a Party and if found not being implemented, forward recommendations to the Government of Nepal for effective implementation of such instruments,
(h)
to publicize the names of the official, person or bodies not following or implementing the recommendations and directions furnished by the National Human Rights Commission regarding the violations of human rights in accordance with law, and to record them as human right violators.
(3) The National Human Rights Commission in performing its functions and duties may use the following power:-
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(i) exercise the same powers as the court has in requiring any person to appear before the Commission for recording his/her statement and information or examining them, receiving and examining evidence, ordering for the production of any physical proof,
(j) enter, without prior notice, in case the Commission has received the information by any source that the incidents of the violation of human rights is occurred or going to be occurred, into any person or their residence or office, conduct search and seize any documents and evidences relating to human rights violations thereon,
(k) enter any government premises or other places, without prior notice, in case the Commission has received information that violation of human rights of a person is happening thereon and immediate action is required, to provide rescue,
(l) (m)
order for the compensation, in accordance with law, to the victims of human rights violations,
exercise or cause to be exercised other power and abide its duties as prescribed by law.
(4) Notwithstanding anything contained in this Article, the National Human Rights Commission shall not have its jurisdiction on any matter which falls within the jurisdiction of the Army Act.
Provided that nothing shall be a bar to proceedings in respect to the cases of violation of human rights and humanitarian laws.
133. Annual Report : (1) The National Human Rights Commission shall submit to the Prime Minister an annual report on the works it has performed in accordance with this Constitution, and the Prime Minister shall make arrangement to submit such reports before Legislature- Parliament.
(2) The annual report to be submitted in accordance with clause (1) above, shall contain inter alia, the complaints received by the National Human Rights Commission throughout the year and the description of inquires and investigations thereon, recommendations made to the Government of Nepal for various matters, numbers of cases lodged in the court, if any, against human rights violator, particulars for the improvement in future regarding the protection and promotion of human rights.
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PART 16
ATTORNEY GENERAL
134 Appointment of the Attorney General: (1) There shall be an Attorney General in Nepal who shall be appointed by the Prime Minister. The Attorney General shall hold office during the pleasure of the Prime Minister.
(2) No person without the qualifications of a Supreme Court Judge shall be eligible to be appointed as the Attorney General.
(3) The office of the Attorney General shall be deemed vacant under the following circumstances:
(a) if he/she submits a resignation in writing to the Prime Minister, (b) if the Prime Minister releases him/her from the office. (c) if he/she dies.
(4) The remuneration and other facilities of the Attorney General shall be at par with that of a judge of the Supreme Court. The other conditions of service of the Attorney General shall be as determined by law.
135. Functions, Duties and Rights of the Attorney General: (1) The Attorney General shall be the Chief Legal Advisor to the Government of Nepal. It shall be the duty of the Attorney General to give opinions and advice on constitutional and legal maters to the Government of Nepal and to such other authorities as the Government of Nepal may specify.
(2) The Attorney General or officers subordinate to him/her shall represent the Government of Nepal in suits wherein the rights, interests or concerns of the Government of Nepal are involved. Unless this Constitution otherwise requires, the Attorney General shall have the right to make final decision to initiate proceedings in any case on behalf of the Government of Nepal in any court or judicial authority.
(3) While discharging duties in accordance with clause (2) above, the Attorney General shall have the authority to work as follows:-
(a) to defend on behalf of the Government of Nepal either as plaintiff or defendant in litigation on field.
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(b) to monitor or cause to monitor the interpretation of law or implementation of the legal principles propounded by the Supreme Court in the light of litigations.
(c) to investigate on the complaints or the information so received to him by any means that their was not humanlike treatment to any person in custody, under this constitution, or was not allowed such person to meet his/her relatives directly in person or through legal practitioners, and give necessary directions to the concerned authorities to prevent from such situation.
(4) In addition to the function, duties and rights as expressed in this Article, the other functions, duties and rights of the Attorney General shall be as determined by this constitution and other laws.
(5) In the course of discharging his/her official duties, the Attorney General shall have the right to appear in any court, office or authority of Nepal.
(6) The Attorney General may delegate his functions, duties and power under this Article to his/her subordinates, to be expressed and complied with, subject to the specified conditions.
136. Annual Report: (1) The Attorney General shall, every year, prepare an annual report on the works he/she has performed in accordance with this constitution and other laws, and submit it to the Prime Minister, and the Prime Minister make arrangements to present the same to the Legislature Parliament.
(2) The report as per clause (1) in addition to other subject matters shall include the number of constitutional and legal advises given in the year by the Attorney General, a summary of the litigations with the government as plaintiff, summary of the cases both with government as the plaintiff and the defendant, a summary of crime and improvements to be made in the future in cases where the government is the defendant.
137. Power to Appear in the legislature Parliament: The Attorney General shall have the power to appear and express his/her Constitutional Assembly opinion on any legal questions in the legislative Parliament, or any of their committees' meetings. Provided that he/she shall not have the right to vote.
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PART 17
FORM OF STATE AND LOCAL SELF GOVERNANCE
138. Progressive Restructuring of the State: (1) Inclusive, democratic and progressive restructuring of the state shall be made to bring about an end of the discrimination based on class, caste, language, sex, culture, religion and region by eliminating the centralized and unitary form of the state.
(2) A High Level Commission shall be constituted to recommend for the restructuring of the State in accordance with clause (1) above. The composition, function, duty, power and terms of service of such Commission shall be as determined by the Government of Nepal.
(3) Final decision of restructuring of the State shall be as determined by the Constituent Assembly.
139. Provision for Local Self Governance: (1) Arrangements shall be made to set up local self governance bodies to ensure the people's exercise of their sovereignty by creating congenial atmosphere and thereby ensuring maximum peoples' participation in the country's governance, and also by providing services to the people at the local level and for the institutional development of democracy, based on the principle of decentralization and devolution of power.
(2) Interim local bodies at the District, Municipality and Village level shall be constituted through the understanding of all consenting parties to the agreement reached on the 22nd day of Kartik 2063 BS (November 7, 2006) between Nepali Congress, Nepal Communist Party (UML), Nepali Congress (Democratic), Jana Morcha Nepal, Nepal Sadhbhavana party (Anandidevi), Nepal Majdur Kishan party and United Left Front along with the Nepal Communist Party (Maoist).
(3) The organizational structure, its forms and geographical area as well as the formation process of the local self governance bodies shall be as provided for in the law.
140. Mobilization and Management of Revenue: (1) Responsibilities and distribution and mobilization of resources shall be shared between the government of Nepal and the local self governance bodies as provided for in the law to strengthen them for local development and to make responsible to the local bodies themselves on identification, formulation and execution of local level programmes, by maintaining equality with a
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balanced and judicious distribution of the outcomes form the mobilization of resources and means, and allotment as well as the development thereof.
(2) Mobilization and distribution of the revenue under clause (1) above should be aimed at overall development of the socially and economically backward classes and communities with the ambit of balanced and equitable development of the nation.