Constitutional Bodies of Nepal: Parts 21 to 27 of the Constitution

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Constitutional bodies are institutions created directly by the Constitution, not by an ordinary Act. Because the Constitution itself protects them, they can watch over the government, audit public money, hold elections and protect rights without day-to-day political pressure. The Constitution of Nepal 2072 places them in Part 21 to Part 27. This note covers their article numbers, composition, appointment, terms and main functions.

1. The thirteen bodies at a glance

So there are six bodies in Parts 21 to 26 and seven commissions in Part 27, a total of thirteen.

2. Common features and the Constitutional Council

Most constitutional bodies share these features:

• Appointment: the President appoints the chief and members on the recommendation of the Constitutional Council.
• Parliamentary hearing: under Article 292, a hearing in the Federal Parliament is held before such appointments.
• Term: six years from the date of appointment.
• No reappointment: a person cannot be appointed again to the same office, though a member may later be made the chief, with the earlier service counted in the six years.
• Age: in most bodies a person must be at least 45 years old when appointed, and the office falls vacant on reaching 65 years.
• Removal: by impeachment under Article 101, or by the President on the Constitutional Council’s recommendation if the person cannot work because of physical or mental illness.
• Pay protection: pay and conditions of service cannot be changed to their disadvantage while in office, except during a severe economic emergency.
• After retirement: they cannot be appointed to other government service, except to political posts or to investigation, inquiry, advisory or research work.
• Annual report (Article 294): each body sends an annual report to the President, who has it laid before the Federal Parliament through the Prime Minister.

Constitutional Council (Article 284) recommends these appointments. It has six members:

3. Commission for the Investigation of Abuse of Authority (Part 21)

• Article 238: a Chief Commissioner and four other Commissioners, so five in all.
• Qualifications: a bachelor’s degree, no political party membership at the time of appointment, at least twenty years of distinguished experience in fields such as accounting, revenue, engineering, law, development or research, at least 45 years of age, and high moral character.
• Article 239 (functions): the CIAA investigates abuse of authority committed through corruption by any person holding public office. If it finds corruption, it can file a case in the competent court. It can also refer a matter to another authority for action. The Constitution makes separate arrangements for certain officials, such as judges and Nepal Army officials covered by army law, so the CIAA’s power over them is limited.

4. Auditor General (Part 22)

• Article 240: a single office, the Auditor General, appointed by the President on the Constitutional Council’s recommendation for six years.
• Qualifications include service in the Special Class of the Government of Nepal or at least twenty years of experience in audit work, along with the required academic degree, no party membership, at least 45 years of age and high moral character.
• Article 241 (functions): audits the accounts of all federal and provincial government offices, including the Office of the President, the Office of the Vice-President, the Supreme Court and the Federal Parliament. The audit checks regularity, economy, efficiency, effectiveness and propriety. The Auditor General must also be consulted on appointing auditors for corporate bodies in which the government owns more than half of the shares.

5. Public Service Commission (Part 23)

• Article 242: a Chairperson and four other members.
• Article 243 (functions): conducts examinations to select suitable candidates for the civil service and gives advice on matters such as principles of appointment, promotion and departmental action.
• Article 244: there shall be a Provincial Public Service Commission in each province, formed under provincial law within the standards set by federal law.

6. Election Commission (Part 24)

• Article 245: a Chief Election Commissioner and four other Election Commissioners.
• Article 246 (functions): conducts, supervises, directs and controls elections of the President, Vice-President, Federal Parliament, Provincial Assemblies and local levels, and prepares the voters’ roll for these elections. It also holds referendums on matters of national importance, and decides questions about a candidate’s eligibility that arise after nomination and before results are declared.
• Article 247: the Government of Nepal, provincial governments and local levels must give the Commission the staff and other help it needs.

7. National Human Rights Commission (Part 25)

• Article 248: a Chairperson and four other members.
• Chairperson: a retired Chief Justice or Supreme Court Judge with an outstanding contribution to human rights, or a well-known person active for at least twenty years in human rights or related national life.
• Article 249 (functions): to respect, protect and promote human rights and ensure they are effectively enforced. It investigates complaints of human rights violations, on its own or on petition, and recommends action against those responsible. While investigating it has powers like a court to summon persons and take evidence, it may order compensation to victims as provided by law, and it may publish the names of officials or bodies that ignore its recommendations. It also reviews laws and monitors international human rights treaties.

8. National Natural Resources and Fiscal Commission (Part 26)

• Article 250: a maximum of five members including the Chairperson.
• Qualifications include twenty years of expertise in natural resources, fiscal management, economics, law or management.
• Article 251 (functions): decides the basis for sharing revenue from the federal Consolidated Fund among the federal, provincial and local governments; recommends equalisation grants and conditional grants; recommends limits of internal loans that governments may raise; and studies how natural resources should be shared and how related disputes between levels of government can be prevented.

9. Other Commissions (Part 27)

• The National Women, Dalit and Inclusion Commissions have their functions written in the Constitution itself, for example making policies for the rights and interests of their groups, and monitoring how related laws are carried out. Articles 254, 257 and 260 allow each of them to set up offices in the provinces.
• The National Inclusion Commission works for groups such as backward classes, persons with disabilities, senior citizens, labourers, farmers, minorities and marginalised communities.
• For the Adibasi Janajati, Madhesi, Tharu and Muslim Commissions (Articles 261 to 264), the term is six years, while their functions and qualifications are left mainly to federal law.
• Article 265: the Federal Parliament must review the commissions formed under Part 27 after ten years from the start of the Constitution.