PART 13 - Provincial Executive

By Nepalko on April 09, 2017

  1. (162) Provincial executive power: 
    1. The executive power of the Province shall, pursuant to this Constitution and laws, be vested in the Council of Ministers of the Province.
      Provided that the executive power of the Province shall be exercised by the Provincial Head in case of absence of the Provincial Executive in a State of Emergency or enforcement of Federal rule.
    2. The responsibility for issuing general directives, controlling and regulating the administration of the Province shall, subject to this Constitution and other laws, lie in the Provincial Council of Ministers.
    3. The executive functions of the Province shall be exercised in the name of the Provincial government.
    4. The provincial executive power, pursuant to this Constitution, shall be as provided in the list of competencies of the Province in Schedule-5 and the list of Concurrent competencies/powers of Federation and Province in Schedule-6.
      Provided that the Provincial Council of Ministers must coordinate with the Government of Nepal while exercising executive powers in areas mentioned in the concurrent list.
    5. Any decision or order or implementation warrant to be issued in the name of Government of Nepal, pursuant to Clause (3) above, shall be authenticated as prescribed by the provincial law.
  2. (163) Provisions related to the Provincial Head: 
    1. Every province shall have a Provincial Head as the representative of the Federal government.
    2. The President shall appoint a Provincial Head for every province.
    3. The term of office of the Provincial Head shall be of five years, except when she/he is removed by the President before the expiry of her/his term of office.
    4. The same person shall not be the Provincial Head for more than one time in the same Province.
  3. (164) Qualifications of Provincial Head: Any person with the following qualifications shall be eligible for the post of the Provincial Head:
    1. has attained 35 years of age,
    2. is eligible to be a member of the Federal Parliament, and
    3. is not ineligible by any law.
  4. (165) Vacation of the post of Provincial Head:
    1. The post of the Provincial Head shall fall vacant under following conditions:
      1. if she/he tenders her/his resignation before the President,
      2. if her/his term comes to an end or is removed by the President before the end of the term, or
      3. if she/he dies.
    2. In case of the post of the Provincial Head of any Province falls vacant, the President may designate Provincial Head of any other Province to officiate until a new Provincial Head is appointed.
  5. (166) Functions, duties and powers of Provincial Head: 
    1. The Provincial Head shall exercise the rights and duties as specified in this constitution or laws
    2. All tasks executed by the Provincial Head as per clause (1) shall be carried out on the recommendation and consent of the Provincial Council of Ministers except where it has been specified to be done on the recommendation of any institution or office-bearers pursuant to this Constitution and law. Such recommendation and consent shall be submit through the Chief Minister.
    3. The decision or order made in the name of the Provincial Head as provided for by clause (2) and the certification of credentials in that regard, shall be done as specified by provincial law
  6. (167) Oath of Provincial Head: The Provincial Head shall take her/his oath of office and secrecy before the President, pursuant to the law.
  7. (168) Constitution of the Provincial Council of Ministers: 
    1. The Provincial Head shall appoint the leader of the parliamentary party with majority in the Provincial Assembly as the Chief Minister and the Provincial Council of Ministers shall be formed under the chairpersonship of the Chief Minister.
    2. If no party carries a clear majority in the Provincial Assembly for purpose of Clause (1), the Provincial Head shall appoint as Chief Minister the member of the Provincial Assembly who can attain majority of two or more than two parties represented in the Provincial Assembly.
    3. If a situation arises whereby the appointment of the Chief Minister according to Clause (2) is not possible within thirty days from the date of announcement of the final result of the election to the Provincial Assembly or if the Chief Minister so appointed is unable to win a vote of confidence according to Clause (4), the Provincial Head shall appoint as Chief Minister the leader of the parliamentary party with the highest number of members in the Provincial Assembly.
    4. The Chief Minister appointed pursuant to Clause (2) or Clause (3) above must obtain a vote of confidence from the Provincial Assembly within thirty days of being appointed the Chief Minister.
    5. If the Chief Minister appointed pursuant to Clause (3) cannot obtain a vote of confidence pursuant to Clause (4), the Provincial Head shall appoint as Chief Minister any other member pursuant to Clause (2) who can win a vote of confidence in the Provincial Assembly.
    6. The Chief Minister appointed pursuant to Clause (5) must obtain a vote of confidence pursuant to Clause (4).
    7. If the Chief Minister appointed pursuant to Clause (3) or (5) fails to obtain a vote of confidence pursuant to Clause (4) and (6) or if appointment of Chief Minister pursuant to Clause (5) is not possible, the Provincial Head shall dissolve the Provincial Assembly and announce the date for another elections to be held within six months.
    8. The appointment process of the Chief Minister in pursuant to this Article shall be completed within thirty-five days of the announcement of the final result of the election held for the Provincial Assembly pursuant to this Constitution or from which the post of the Chief Minister falls vacant.
    9. The Provincial Head shall, on the recommendation of the Chief Minister, constitute from among the members of the Provincial Assembly the Provincial Council of Ministers on the basis of the principles of Inclusion and not exceeding more than twenty per cent of the total number of members of the Provincial Assembly, including the Chief Minister.
      Explanation: For the purpose of this Article the word "Minister" shall mean Minister, State Minister and Assistant Minister.
    10. The Chief Minister and Minister shall be collectively accountable towards the Provincial Assembly, and the Ministers shall be individually responsible to the Chief Minister and the Provincial Assembly for the work of their respective Ministries.
  8. (169) Vacancy of office of Chief Minister and Ministers: 
    1. The Chief Minister shall be deemed to have ceased to hold office in the following situations:
      1. If the Chief Minister submits her/his resignation to the Provincial Head.
      2. If the no-confidence motion against her/him pursuant to Article 187 is passed or vote of confidence fails,
      3. If she/he ceases to be the member of the Provincial Assembly, or
      4. If she/he dies.
    2. The Minister, State Minister or Assistant Minister shall be deemed to have ceased to hold office in the following situations:
      1. If they submit their resignation to the Chief Minister,
      2. If the Chief Minister removes them,
      3. If the Chief Minister ceases to hold office pursuant to Clause (1), or
      4. If she/he dies.
    3. If the Chief Minister ceases to hold office pursuant to Clause (1), the existing Council of Ministers shall continue to function until a new Provincial Council of Ministers is constituted.
      Provided that in the case of the death of the Chief Minister, the senior most Minister shall act as Chief Minister until a new Chief Minister is appointed.
  9. (170) Appointment of non-member of Provincial Assembly as Minister, State Minister or Assistant Minister: 
    1. Not withstanding anything contained in Article 166, the Provincial Head, on the recommendation of the Chief Minister, may appoint any person who is not a member of Provincial Assembly as Minister, State Minister or Assistant Minister.
    2. The Minister, State Minister or Assistant Minister appointed pursuant to Clause (1) shall gain membership of the Provincial Assembly within six months of taking oath.
    3. Failure to attain membership of the Provincial Assembly within the period pursuant to Clause (2) shall make them ineligible to be re-appointed as Minister, State Minister or Assistant Minister during the term of the existing Provincial Assembly.
    4. Notwithstanding anything contained in Clause (1) a person who lost in the elections of the existing Provincial Assembly shall not be eligible for appointment to the post of Minister, State Minister or Assistant Minister pursuant to Clause (1) during the term of the same Provincial Assembly.
  10. (171) Remuneration and other benefits of Chief Minister, Minister, State Minister and Assistant Minister: The remuneration and other benefits of the Chief Minister, Minister, State Minister and Assistant Minister shall be as determined by an Act. Until so determined, they shall be as specified by the Government of Nepal.
  11. (172) Oath: The Chief Minister and Ministers shall take their oath of office and secrecy according to the law before the Provincial Head, and the State Ministers and Assistant Ministers shall take their oath of office and secrecy before the Chief Minister.
  12. (173) Provincial Head to be informed: The Chief Minister shall inform the Provincial Head about the following subjects:
    1. The decision of the Provincial Council of Ministers,
    2. Bills to be presented before the Provincial Assembly,
    3. Other necessary information sought by the Provincial Head in relation to subjects mentions in Section (a) and (b), and
    4. The contemporary situation of the Province.
  13. (174) Conduct of business of the Provincial government:
    1. The allocation and transaction of business of the provincial government shall be carried out as set forth in rules approved by the provincial government.
    2. No question shall be raised in any court as to whether or not rules made pursuant to Clause (1) above have been observed.

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