PART 35 - Transitional Provisions
By Nepalko
on April 09, 2017
- (289) Formation of Federal Commission:
- In order to furnish suggestions with regard to the borders of the provinces, Government of Nepal may form a Federal Commission.
- Naming of province shall be made by a decision of two third majority of the provincial legislature pursuant to clause (3) of Article 56.
- Government of Nepal shall form a commission for determination of number and borders of the Village Council, Municipal Council and Special, protected, or autonomous regions to be formed pursuant to clauses (4) and (5) of Article 56. The number and borders of the Village Council, Municipal Council and Special, protected, or autonomous region shall be determined according to the norms determined by Government of Nepal.
- The commission to be formed pursuant to clause (3) shall be formed within six months from the date of commencement of this constitution and the term of office of such commission shall be of one year.
- (290) Constituent Assembly to be transformed into Legislature-parliament:
- After the commencement of this constitution, the Constituent Assembly shall be transformed into a Legislature-parliament, and the term of such Legislature-Parliament shall be up to the term of the Constituent Assembly as prescribed in Interim Constitution (2007).
Provided that, if the elections for the House of Representatives are to happen pursuant to this Constitution, the term of the transformed Legislature-parliament shall be until one day before the nominations are filed for the elections of House of Representatives.
- The Bills that were under consideration in the House of Representatives at the time of the commencement of this Constitution shall be transferred to the legislature parliament under clause (1).
- Pursuant to this Constitution, the Legislature Parliament as per clause (1) shall conduct all the activities under the prerogative of the Federal Legislature until the elections for House of Representatives are conducted.
- Until the time the elections for Provincial Assembly are not conducted after this constitution comes into effect, the responsibility to formulate laws according to Schedule 5 shall fall under the prerogative of the Legislature-Parliament pursuant to Clause (1). The laws thus formulated shall be, ipso facto, void in the province a year after provincial assembly is constituted according to this constitution.
- The Legislature Parliament Secretariat, its General Secretary, Secretary, and its employees from the inception of this constitution, shall be under the Federal Legislature Secretariat according to this constitution, and their conditions of services will be the same as those during their time of appointment.
- If a session of the Legislature-Parliament is not active when this constitution comes into effect, then the President shall summon a session of the Legislature Parliament within seven days of this constitution coming into effect. Thereafter, the president shall summon the session of the Legislature Parliament from time to time.
- (291) Provisions relating to the President and Vice-president:
- The President and Vice President in office during the time of this constitution coming into effect shall continue to hold office till the time new elections for their posts are conducted pursuant to this Article.
- If the session of the Legislature Parliament is ongoing at the time of commencement of this constitution, then from the date of the commencement of the constitution; and if the parliament is not in session, then from the date of the summoning of the session under Article 290 (6); within one month, the President and Vice President shall be elected as per the political understanding.
- If political understanding cannot be reached as per clause (2), the president and vice president shall be elected by simple majority of the Legislature Parliament.
- If the post of either President or Vice President falls vacant after being elected pursuant to Clause (2) and (3), re-elections shall be conducted by the Legislature Parliament pursuant to this Article, until the formation of the Federal Legislature.
- The term of office of the President and Vice-president elected under this Article, shall be until new President and Vice-president are elected from the Electoral College as mentioned in Article 62, and assume office.
- The position of President or Vice President elected under this Article may fall vacant in following situations:
- If President tenders his/her resignation to Vice President; or if Vice President tenders his/her resignation to President,
- If impeachment motion against him/her is passed as per Clause (7) below
- If new President or Vice-president is elected from the Electoral College as mentioned in Article 62 and assume office,
- if he/she dies
- If at least one fourth of the current members of the Legislature Parliament agree, a motion of impeachment for grave violation of this constitution or law shall be moved against President or Vice President in the Legislature Parliament under the Article 290 (1). If the motion is passed by at least two-third majority of the present number of the Legislature Parliament, then he/she shall be relieved off the office
- (292) Provision relating to Constitution of Council of Ministers:
- The Council of Ministers existing at the time of commencement of this Constitution shall remain until the transformed Legislature-parliament, in accordance with Clause (2), constitutes a new Council of Ministers.
- If the session of the Legislature Parliament is ongoing at the time of commencement of this constitution, then from the date of the commencement of the constitution; and if the parliament is not in session, then from the date of the summoning of the session under Article 290 (6); within seven days the Prime Minister shall be elected as per the political understanding.
- If political understanding cannot be reached as per clause (2), the Prime Minister shall be elected by simple majority of the Legislature Parliament.
- Structure and division of portfolio in the Council of Ministers to be formed as per this Article shall be conducted as per mutual understanding
- There shall be deputy prime minister and other ministers, as required, in the Council of Ministers to be formed as per this Article.
- When appointing Minister as per clause 5, the Prime Minister, at the recommendation of related political party, shall choose from among the members of the Legislature Parliament
- The Prime Minister and Ministers appointed as per this Article, shall be collectively accountable to the Legislature Parliament and Ministers shall be individually accountable to the Prime Minister and the Legislature Parliament regarding their work performance in respective Ministries
- The Prime Minister elected under this Article shall be relieved off his/her office in following situation:
- If he/she tenders written resignation to the president
- If vote of no confidence as per Clause 14 is passed or if he/she is unable to pass vote of confidence
- If he/she is no longer a member of Legislature Parliament
- If he/she dies
- The Deputy Prime Minister, Minister, State Minister, Assistant Minister appointed under this Article shall be relieved off his/her office in following situation:
- If he/she tenders written resignation to the Prime Minister
- If the Prime Minister loses his/her office as per Clause 8
- If the Prime Minister relieves him/her off the office at the recommendation or consent of the respective political party
- If he/she dies
- If the Prime Minister is relieved off his/her office as per clause 8, the same Council Ministers shall continue to discharge its duty till a new Council of Ministers is formed
- If the Prime Minister appointed under this article dies, the deputy prime minister or senior most minister shall take charge of prime minister until a new prime minister is elected
- The Prime Minister appointed under this Article can, at any time of his/her term, move a motion of vote of confidence at the Legislature Parliament, in order to clarify that he/she enjoys majority
- At least one fourth member of Legislature Parliament can move a motion of vote of no confidence against the Prime Minister at the Legislature Parliament
Provided that no more than one such motion of vote of no confidence shall be moved to the Legislature Parliament against the same prime minister within six months
- The motions moved as per Clause 12 or 13 shall be decided upon by the simple majority of the current members of the Legislature Parliament.
- After the commencement of this Constitution and until the provincial council of ministers is constituted, in accordance with this constitution, the executive power of the provincial government shall be exercised by the Government of Nepal.
- (293) Interim provision regarding Speaker and Deputy-speaker:
- The Speaker and Deputy of the Legislature-Parliament during the time of commencement of this constitution shall continue to hold office till the time new elections for their posts are conducted pursuant to this Article.
- If the session of the Legislature Parliament is ongoing at the time of commencement of this constitution, then from the date of the commencement of the constitution; and if the parliament is not in session, then from the date of the summoning of the session under Article 290 (6); within twenty days the Speaker and Deputy Speaker shall be elected as per the political understanding by the members of the Legislature Parliament from amongst themselves.
- If political understanding cannot be reached as per clause (2), the Speaker and the Deputy Speaker shall be elected by simple majority of the current members of the Legislature Parliament.
- While electing Speaker and Deputy Speaker as per clause (2) and (3), the Speaker and Deputy Speaker shall belong to different political parties representing at the Legislature Parliament.
- Speaker or Deputy Speaker shall discharge his/her duty in a neutral manner and without taking sides to any political party
- The Speaker or Deputy Speaker shall be relieved off his/her office in following situation:
- If he/she tenders written resignation
- If he/she loses membership of Legislature Parliament
- If a motion against his/her conduct is passed by at least two third majority of the Legislature Parliament
- If he/she dies
- Meeting of the Legislature Parliament where a motion against Speaker‟s conduct is discussed shall be presided by Deputy Speaker or another member. But the Speaker can take part in the discussion and vote
- Other processes related to election of Speaker and Deputy Speaker and other processes related to the passage of motion against his/her conduct, shall be as specified by the existing Legislature Parliament.
- (294) Provision relating to the Judiciary:
- The Supreme Court, Constituent Assembly Court, Appellate Court, and District Courts subsisting at the time of the commencement of this constitution shall continue until the structure of the judiciary is constituted under this constitution. And this constitution shall not be meant to hinder the making of the decision by the concerned courts on cases filed prior to and after the commencement of this Constitution.
- The Chief justice and justices of the Supreme Court, judges of the Appellate courts and District courts shall be deemed to have been appointed under this Constitution.
- Within six months of the commencement of this constitution, High Courts as per Article 139 shall be established as per federal law. After their establishment, the Appellate Courts subsisting at the time of the commencement of this constitution shall be dissolved.
- After the High Courts are formed as per clause (3), the cases under consideration in the Appellate Courts shall be transferred to the High Courts by the government of Nepal with the consent of Judicial Council and by publishing notice to that effect in the Nepal Gazette.
- After the High Courts are formed as per clause (3), the Chief Justice shall, with the recommendation of the Judicial Council, transfer the chief judge and judges of the Appellate Courts as the chief judge and judges of the High Courts
- The additional judges engaged at Appellate Courts during the commencement of this constitution, shall continue to remain in their offices till the term specified during their appointment.
- The cases under consideration at the Constituent Assembly Court shall be transferred to Constitutional Court after the latter is constituted according to this Constitution.
- The criminal cases, that demand more than six months of imprisonment, lying sub-judice at other bodies except the courts, shall be transferred to the District Courts of the respective districts after the commencement of this Constitution.
- (295) Provisions regarding Constitutional Bodies and Officials thereof:
- The constitutional bodies subsisting at the time of the commencement of this Constitution shall be deemed to have been constituted under this Constitution, and this Constitution shall not hinder such bodies in dealing with matters under consideration according to the existing laws.
- The Chief or officials of the constitutional bodies engaged at the time of commencement of this constitution shall be deemed to have been appointed under this Constitution and he/she shall remain in his/her office subject to the terms and conditions stated at the time of appointment.
- If during the commencement of this constitution, there are additional number of office-bearers in the Commission for Investigation of Abuse of Authority and Public Service Commission than what is specified in this constitution, then they shall continue to remain in their office subject to the terms and conditions stated at the time of their appointment.
- (296) Formation of Operation of Government Services in Provincial and Local Level:
- Until the formation and operation of government services in the provincial and local level, the Government of Nepal shall make necessary provisions for making available services to the citizens at provincial and local levels.
- (297) Provision regarding the Local Bodies:
- The local bodies existing at the time of the commencement of this Constitution shall exist until the number and constituency is determined, in accordance with this constitution.
- The election of the local bodies existing pursuant to clause (1) shall be as determined by law.
- The officials of the local bodies elected pursuant to clause (2) shall remain in their office until the election of local level is held according to this constitution.
- (298) Existing laws to remain in operation:
- All the laws in the force at the time of commencement of this Constitution shall remain in operation until repealed or amended.
Provided that laws inconsistent with this Constitution shall, to the extent of inconsistency, ipso facto, cease to operate, one year after first session of federal legislature, in accordance with this constitution.
- The activities under peace process conducted according to the Interim Constitution 2007 shall be considered to be conducted according to this constitution.
- (299) Power to remove difficulties: If any difficulty arises in connection with the implementation of this Constitution, until election of the federal parliament has been held (in accordance with this constitution) its session started and the session of the transformed legislature parliament is not underway, the President, on the recommendation of the Council of Ministers, Government of Nepal, may issue necessary orders to remove such difficulties. Such orders shall be required to be presented immediately to the meeting of the Legislature parliament or Federal legislature for endorsement.