Separation of Powers and Checks and Balances under the Constitution of Nepal & Its Practice

A Thesis Submitted to:

Central Department of Law

Faculty of Law, Tribhuwan University

(For the partial fulfillment of the requirement of LL.M. Degree)

Submitted By:

Bhakti Ram Ghimire

T.U. Registration No: 6-2-50-1394-2004

Exam Roll No: 410004

Nepal Law Campus, Exhibition Road

Kathmandu, Nepal

2016

LETTER OF RECOMMENDATION

Mr. Bhakti Ram Ghimire has prepared the Thesis entitled Separation of Powers and Checks and Balances under the Constitution of Nepal & Its Practice under my supervision. The researcher has tried his best to deal with the subject-matter and prepared the report in a lucid and comprehensive way. I, therefore, recommend the Thesis for its final evaluation.

----------------------------------------

(Supervisor)

Krishna Belbase, Ph.D.

Professor of Law

Nepal Law Campus

Tribhuvan University

Date: December, 2016

Tribhuvan University

Central Department of Law

Nepal Law Campus

Exhibition Road, Kathmandu

Ref. No.Date: ……………..

APPROVAL SHEET

This Thesis entitled Separation of Powers and Checks and Balances under the Constitution of Nepal & Its Practice Submitted by Mr. Bhakti Ram Ghimire has been accepted and approved as per the requirement of the LL.M. Third Year syllabus.

Approval by

Evaluation Committee

------------------------------

Preface

As a student of LL.M. 3 year programme,it is a matter of pleasure for me to prepare a Thesis on the topic Separation of Powers and Checks and Balances under the Constitution of Nepal & Its Practice. There were some issues which inspired me to research on this subject. These issues are whether present Constitution of Nepal is capable to incorporate the provisions regarding Separation of Powers and Checks and Balances? and How the provisions are applied in Nepal?

I hope, this thesis will be helpful to the lawyers, judges, law makers, social activists, law enforcement authorities and others in the performance of their jobs. It is also expected that it will be able to provide guidelines for the researchers in future.

Thank You.

December, 2016

-Bhakti Ram Ghimire

LL.M.3^rd Year

Roll No: 2/2069/070

Nepal Law Campus, Kathmandu

ACKNOWLEDGEMENTS

This research paper entitled Separation of Powers and Checks and Balances under the Constitution of Nepal & Its Practice is prepared for submitting to Central Department of Law, Faculty of Law, Nepal Law Campus, Tribhuvan University in the partial fulfillment of the requirement for LL.M. Degree. This is a moment of great pleasure for me to get an opportunity to extend my gratitude to many persons who helped me heartedly in completing this research work. I would like to express my gratitude to all of them.

I would like to extend my sincere gratitude to the supervisor respected Prof. Dr. Krishna Belbase for his guidance to bring this thesis in present shape.

Date: December, 2016

Bhakti Ram Ghimire

LL.M., 3^rd Year

Roll No: 2/2069/070

Nepal Law Campus, Kathmandu

Abbreviations/Acronyms

Adm : Administration

Art : Article

B.S. : Bikram Sambat

Const. : Constitution

E.g. : Example

Et al. : And others

Etc. : Etcetra

GoN : Government of Nepal

HR : House of Representatives

HM /Hmk: His Majesty/His Majesty the King.

HMG : His Majesty's Government

Hon : Honorable

Ibid : Ibidem, in the same place

P : Page

PM : Prime Minister

UK : United Kingdom

USA : United States of America

V : Versus

Viz. : That is to say; in other words

Vol. : Volume

List of Cases

Cases Page

A.G.of Austria v. Boilermakers'society, 2,All E.R. 45(P.C.) (1957) 27

Hariatd Neatal v. Gireejaatd Koirala et al. 70

Indira v. Rajnarain, A.1975 s.c. 2299(2742,chandrachud.J; 2426.30, 2472,

Beg,J; 2320,Ray,C.J., 43

KilbournV.Thompson , 103 US . 168,190(1881) 27

Khazan Singh v. State of Uttar Pradesh, AIR 1974 SC 669:(1974) 1 SCC 295. 43

Krishna Pd.Lamsal v. HMG council of ministers secretariat et al.NKP (Golden

jubilee Special Edition) (2052) 70

Ravi Raj Bhandari et al. v. Honourable pm Manmohan Adhikarri et al. 70

SarvagyaRatnaTuladhar v. Honourable chairman of Rastria Panchayat et al.

NKP (2035) 70

Letter of Recommendation………..……………………………………….……..I

Approval Sheet……………………………………………………………….…..II

Preface…………………………………………………………………………. III

Acknowledgements…………………………………………………………..….IV

Abbreviations/Acronyms………………………………………………………...V

List of Cases…………..………………………………………………………..…VI

Table of Contents……………………………………………………………….VII

S.N. TOPICS PAGE NO.

Chapter One: Preliminaries 1-18

1.1 Introduction 1

1.2 Statement of the Problems 12

1.3 Objectives of the Study 12

1.4 Limitations of the Study 12

1.5 Research Design 13

1.6 Methodology Used 13

1.6.1 Nature and Sources of Data 13

1.6.2 Primary Source of Data 13

1.6.3 Secondary Source of Data 14

1.6.4 Techniques of Data Collection 14

1.6.5 Presentation and Analysis of Data 14

1.7 Significance of the Study 15

1.8 Review of Literature 15

1.9 Organization of the Study 18

Chapter Two: Concept of Separation of Powers and Checks and Balances 19-30

2.1 Introduction 19

2.2 General Notion 21

2.3 Purpose 27

2.3.1 The problem of factions 27

2.3.2 Individual liberty 28

2.3.3 Efficiency 28

2.3.4 Preventing tyranny 29

2.3.5 Rule of law 29

2.3.6 Rulers versus ruled 29

2.3.7 Limited government 30

Chapter Three: Separation of Powers & Checks and Balances in Various Jurisdictions 31-45

3.1 United States of America 31

3.2 Britain 32

3.3 France 33

3.4 Australia 34

3.5 South Africa 38

3.6 India 42

Chapter Four: Separation of Powers and Checks and Balances in Nepalese Constitutional chronicle 46-60

4.1 Government of Nepal Act, 2004 (B.S.) 46

4.2 The Interim Government of Nepal Act, 2007 (B.S.) 47

4.3 Constitution of the Kingdom of Nepal, 2015 (B.S.) 48

4.4 The Constitution of Nepal , 2019 (B.S.) 50

4.5 The Constitution of the Kingdom of Nepal, 2047 (B.S.) 51

4.5.1 The Legislature 52

4.5.2 The Executive 54

5.5.3 The Judiciary 55

4.6 The Interim Constitution of Nepal, 2063 (B.S.) 58

Chapter Five: Separation of Powers & Checks & Balances in the Constitution of Nepal(2072) 61-79

5.1 Structural Aspect 61

5.1.1 The Judiciary 61

5.1.2 The Legislature 63

5.1.3 The Executive 65

5.2 Functional Aspect 72

5.3 Purposive Aspect 78

Chapter Six: Findings, Conclusion and Suggestions 80-86

6.1 Findings of the Study 80

6.2 Conclusion of the Study 83

6.3 Suggestions of the Study 85

Bibliography 87-89

CHAPTER-ONE

PRELIMINARIES

1.1 Introduction

Government is universally accepted to be a necessity, since men cannot fully realize himself his creativity, his dignity and his whole personality except with an ordered society.[1] Yet the necessity for government creates its own problem of how to limit the arbitrariness inherent in government, and to ensure that these powers are to be used for the good of society.[2] It is the limiting of the arbitrariness of political powers that is expressed in the concept of constitutionalism. Constitutionalism recognizes the necessity for government but insists upon a limitation being placed upon its powers by way of dividing the government powers into their three constituent functions, and under three arms. Thus constitutionalism connotes in essence a limitation of government powers through the doctrine of separation of powers.[3]

The doctrine of separation of powers is indispensable in Nepal's constitutional system and is one of the features of the Nepali Constitution. It is a core characteristic and per requisite of a democracy government though it is important to note that, the mere separation of power of government cannot on its own secure democratic governance.

In modern time, the concept has been expended and has come to mean a number of things to scholars and others interested parties. However, in its original contest as formulated by Montesquieu, the concept meant:

1. That the same person should not form part of more than one of the three organs of government;

2. That one organ of state should not control or interfere with the exercise or functions of other organs;

3. That one organ of state should not exercise the function of another organ of state.

In considering each of these aspects of separation of powers. it is important to make note of the fact that though the separation of power is desirable and important, absolute separation of powers is not possible.

Philosophical Basis of the Doctrine of Separation of Powers

The doctrine of separation of powers was formulated as an alternative to absolution. The doctrine advocates the independent exercise of the three constitutional government functions by different bodies of persons, without interference, control or domination by one or two.[4] Political thinkers such as John Locke and Baron De Montesquieu, who were concerned with securing the liberty of individuals from the tyrannical tendencies of those vested with state power, advocated for the separation of Government functions. Locke felt that the essence of political liberty is that a man shall not be "subjected to the inconsistent, uncertain, unknown, or arbitrary will of another man".[5] He recognized three powers of government. First, the legislative power, whose function is to make laws. Legislation to Locke involved the formulation of rules according to which man's natural rights are to be judged. According to him, natural rights meant the right to life, liberty and property. Secondly, the executive power to him meant the power to enforce laws by penalties. The third power, Locke said, is the power to interpret the law. Concerning the separation of the Executive from the legislature, Locke made the following classical exposition:

" It may be too great a temptation to human frailty; apt to grasp at power for the same persons who have the powers of making laws, to have also in their hands the power to execute them, whereby they may exempt themselves from obedience to the laws they made, and suit the law, both in its making and execution to their own private advantage."

As a result, it was felt necessary to separate the legislative and executive power of the government.

The doctrine was further developed by Baron de Montesquieu who observed that the three powers of government, viz, executive, legislative and judicial powers, be kept separate.[6] Montesquieu was concerned with preservation of political liberty when he wrote that:

"Political liberty is to found only in moderate government: and even in these, it is not always found. It is there only when there is no abuse of power---but constant experience shows that every man vested with power is apt to abuse it and to carry his authority as far as it will go. To prevent this abuse, it is necessary from the very nature of things that power should be a check to power."[7]

According to Montesquieu, the legislative power "enacts temporary or perpetual laws and amends or abrogates those that have been already enacted", the executive power "makes peace and war, sends and receives embassies, establishes the public security and provides against invasions". While the judicial power "punishes criminals or determine the disputes that arise between individuals".[8]

He believed that when the legislative and the executive powers are united in the same person or in the same body of persons, there can be no liberty because apprehensions may arise since the executive and legislative may enact tyrannical laws and execute them in a tyrannical manner.[9] Further, he believed there can be no liberty if the judicial power were not separate from the legislature. In such a situation, the life and liberty of the subject would be exposed to arbitrary control of judges, who would also be legislators. Where the judiciary is joined to the Executive, the judges, he believed, would behave with violence and oppression.[10] Consequently, where the three powers of government are vested in one man or the same body whether of nobles or of men, there would be an end to everything.[11]

While Montesquieu cannot be credited with the invention of the doctrine of the separation of powers, his statement of it has settled the modern classification of the estates of government to what are accustomed to today, viz, the Executive, the legislature, and the Judiciary. The doctrine in summary gives three different components as follows: Firs, no one arm of government should control or interfere with the exercise of function of another arm of government, for example the Executive should not be under the control of the other organs of government; Secondly, no one arm of government should exercise the function of another, for instance, Ministers should not exercise any legislative power; Thirdly, the same persons should not form art of more than one of the three arms of government.[12] For instance, a judge should not be a member of the Executive by holding a ministerial position.

However, Montesquieu did not imply that the legislature, the Executive and the Judiciary should not in any way have influence or control over the actions of each other, but rather neither should exercise the whole functions of the other. As professor Sagney notes:

"The concept of separation of power arose from the need to ensure that government power was restrained by dividing that power, and at the same time, ensuring that its division was not carried to an extreme incompatible with effective government."[13]

The interference which profession sagney envisaged is to the extent that it is only for the purposes of enabling one of government to provide checks and balances to the other arm(s) of government. This type of interference and control is justified and commonly referred to as the concept of checks and balance.

The concept of Checks and Balance

The concept of check and balance aloud to various inbuilt mechanisms in a system of government that prevents an over concentration of decisional authority in any person or branch of government.[14] This idea of checks and balances seeks to make the idea of separation of powers more effective by balancing the powers of one organ of government against those of another through a system of positive mutual checks exercised by the government organs upon one another. The most important function of the concept is to avoid dictatorship and tyranny of each one of the arms of government. It is necessary in a democracy in order to maintain law and order as well as to secure the liberties of the citizenry.

In modern time, Jurists and political scientists have been concerned with how to curtail the ever-rising power of the Executive relative to the other two arms of government. The function of the Executive is the general and detailed carrying out of government according to law. This involves that formulation of police and its implementation, as well as ensuring that the laws are obeyed. With the advent of industrialization in modern nations, the scope of the Executive function has become very wide such that it now involves the provision and regulation of vast system of social services and the finances required thereof.[15] Practically, the government is run by the Executive, with the Legislative playing a legislative and executive role, while the Judiciary plays the role of the protector of the citizenry from the excesses of the other organs of government and stands as a sentinel of the structure of the constitution. In a democracy the legislature and the Judiciary must always be disposed to check the Executive. However, for the legislature and the Judiciary to check the Executive, certain pre requisite conditions in the manner they operate and the caliber of personnel found therein have to exist.

The Legislature: Checks and Balances

It has been noted that the concept of democracy refers to the participation of the citizenry in the political life of a nation. It is based on a consent give freely or through persuasion but not coercion.[16] This was echoed by Locke when he wrote:

---men being---by nature free, equal and independent no one can be put out of this state and subjected to the political power of another without his consent. The only war whereby anyone divests himself of his natural liberty and puts the bonds of civil society is by agreeing with other men to join and unite into a community for their comfortable, safe and peaceful living one amongst another, in a secure enjoyment of their properties and greater security---when any number of men have so consented to make one community or government, they are thereby presently incorporated and make one body polity wherein the majority have a right to act and conclude the rest.[17]

Therefore it would be unrealistic in today's world to envisage a government in which there is direct participation of citizenry in the formulation of policy and in the everyday running of the nation. Modern democracy is not based on participation but on representation. The citizens are given a choice between rival political parties and individuals, from whom the choose their representatives.[18] Therefore, for democracy to function, the Executive has to be accountable to the people's representatives, that is the national Assembly.

Most democratic states have one or another form of National Assembly and Executive. The delineation of the functions of the two cannot be made in absolute terms as these functions vary from one country to another with regards to their history and constitution. However, two models which have been found world-wide spread are the presidential system and the parliamentary system of governments.[19]

The presidential system was first applied in the United States Constitution of 1787 under the wide spread notion, and the influence of James Madison and Alexander Hamilton.[20] The silent feature of this types of government are that Legislature and Executive are considerably more independent of each other as compared to the parliamentary system. Neither the president, who is the heat of the Executive branch nor the Legislature is able to determine the election of the other. They are either directly or indirectly elected by popular vote for definite terms of office. Moreover, one may not be a member of both the legislative and the Executive arms of government at the same time.[21] But even so, Madison and Hamilton also stressed that the separation should be only partial to allow each branch to exercise checks and balances on the other arms of government.[22]

The parliamentary system on the other hand embodies three characteristics: first, the members of the executive, often referred to as the government, may hold office only as long as they possess the support or confidence of a majority of members of the elected Legislature; second, if the government loses the confidence of the legislative Assembly it must either resign or dissolve the Assembly to determine whether it or the Assembly represents the electorate; and third, if the government fails to win a majority in the Assembly after a dissolution, it has no choice but to resign and allow the formation of a new government that has the confidence of the Assembly's majority.[23] This type of government is often said to reject the separation of powers in favor of a "fusion" or "concentration" of legislative and executive power.[24]

In most but not all existing parliamentary systems, member of the executive are also elected voting member of the Legislature to which they are responsible. In most parliamentary system Executive member form a relatively small majority of the total membership of the Legislative Assemblies. In Britain, for example, the law in 1980 limited the number of government ministers who might be members of the House of Commons to ninety-five or 15 % of the total membership.[25] However, the Legislature and the Executive maintain separate existences, and each through withdrawal of confidence or dissolution respectively, is able to check the action of the other.[26] There is thus the separation of the legislative and executive power in the parliamentary system.

However, the question that arises is that of the duty of the elected representatives in the National Assemblies to their constituents. The relationship between the National Assembly and the Executive is clearly one focused on achieving one primary goal, democracy. The people's representatives are duty bound to ensure the accountability of the Executive to the National Assembly to avoid dictatorial rule by the ruling party and at the same time promote transparency in decision-making.[27] For the representatives to carry out their duty they require to be given the mandate by the sovereign people in genuine free and fair elections held at regular intervals on the basis of universal and equal suffrage.

However, with the appearance and domination of political parties on the political stage, the ideas of representative democracy have been eroded. Politics is today associated with political parties as the instruments of democratic systems.[28] A political party has been defined as:

An organization formed by a group of people concerned with the expression of preferences and views regarding the contest, control, consolidation and the use of local, regional and state power to improve the social economic well-being of the people they represent.[29]

The case for political parties as a basic element in the democratic apparatus is that they draw the electorate together into majorities so that people can be governed by their own consent, thereby allowing for existence of government by the will of people and peaceful change of government.[30]

However the above case for political parties is only an ideal case. In practice, political parties are dominated by the interests of their members and not the general citizenry. Since democracy is defined as "government of the people, by the people, and for the people"[31] the emergence of political parties as a tool through which the people can express their myriad interest and opinions of the governed as well as the determination of which one or more of such opinions should find priority expression, has greatly diminished the idea of representative democracy.[32] Government for the people in reality has become rulers of the people. The sovereign is degraded to the position of the ruled.

Through the mechanism of the party discipline, the executive is not controlled by the Legislative Assembly because in most modern Assemblies there are no longer free representatives, but tied up delegates fettered by the promises made before election to which they are forced to adhere by pressure of Parliamentary whips.[33] Some writers are of the view that this is the only way in which Parliamentary government can work efficiently. "Parliamentary government could only function properly with a fair and reasonable party majority, predisposed to think the government right but not ready to find it to be so in the face of the facts and opposition to whatever might occur--- The majority of the Legislature being well disposed to the government would not find against it."[34]

With regards to the British situation."The House of Commons no longer controls the Executive: on the contrary, the Executive controls the House of Commons---. In our modern practice, the cabinet is scarcely ever turned out of office whatever it does---.[35]

Modern Assemblies in the parliamentary system are therefore scarcely legislative chambers but an automation of registering the cabinet's decrees and discussing the Legislative projects of Ministers. Moreover, in no case does a political party capture power on behalf of the people. A party gives priority and prominence to people not so much for their intellectual merit or moral integrity, but to those who can be of greatest help for it to capture power.[36] As a result most political parties serve the purpose of promoting the ambition of individuals either thirsting for power for the sake of power or material benefits.[37] The membership of even the largest party is only a small fraction of the people, thereby making the dangers of party dictatorship ever present.

Any majority party can establish a dictatorial regime. Lastly but not the least, political parties have no legal obligation to translate their manifestos into working reality. The only guarantee is their moral sense.[38]

The conclusion to be drawn is that checks by the Legislature on the Executive in reality are not assured as the current political regimes divert the primary royalties of the peoples' representatives to political parties, which are dominated by their leaders who in most cases head the Executive branch of the government.

1.2 Statement of the Problem

The problems of the study are as follows:

(I) How far the Constitution of Nepal is successful to incorporate the provisions of Separation of Powers and Checks and Balances?

(II) What sort of practice is being followed to implement the Separation of Powers and Checks and Balances?

1.3 Objectives of the study

The objectives of study are as following:

(I) To analyze how far the Constitution of Nepal is capable to incorporate the provisions regarding Separations of Powers and Checks and Balances.

(II) To assess the constitutional practice of Nepal in implementing Separation of Powers and Checks and balances.

1.4 Limitations of the study

This study is concerned only with the doctrine of separation of powers and checks and balances and its implementation in the present constitutions of Nepal. To make the thesis informative it has solidly been tried to draw the evolution of the doctrine in the various constitutions of Nepal together with different coasts of the different nations.

1.5 Research Design

This research is conducted on descriptive as well as analytical research design. The purpose of the design is to describe and analyze the provision and practices of Separation of Powers and Checks and Balances under the Constitution of Nepal. The descriptive research design helps to reveal the existing provision. Similarly, the analytical research design helps to explore and evaluate the practices regarding the Separation of Powers and Checks and Balances under the Constitution of Nepal.

1.6 Methodology Used

The methodologies applied in this study are as follows:

1.6.1 Nature and Sources of Data

In this research both primary and secondary source of data have been used qualitative data are used in this study. The researcher has done best efforts in collecting and reviewing the relevant literatures from different sources.

1.6.2 Primary Authorities

The Constitutions, Judicial decisions and other related data collected from government authority and Supreme Court of Nepal.

1.6.3 Secondary Authorities

The Secondary data is collected from books, literatures, journals and articles on Separation of Powers and Checks and Balances relating to Constitution of Nepal. The articles available in various websites are also taken as secondary source for this study. For the preparation of this dissertation, the researcher has visited different libraries and documentation centre in Kathmandu Valley like; Library of Nepal law Campus, Library of Supreme Court , Library of Nepal Bar Association and Nepal Bar Council, Library of Nepal Law Society , Library of Attorney General Office and Central Law Library.

1.6.4 Technique of Data Collection

This research study requires both primary and secondary data. The necessary data are collected from the Library of Nepal law Campus, Library of Supreme Court, Library of Nepal Bar Association and Nepal Bar Council, Library of Nepal Law Society , Library of Attorney General Office and Central Law Library.

1.6.5 Presentation and Analysis of Data

This is a crucial part of methodology in every research. The purpose of analysis of data is to summarize the collected data and organize in such a manner that they could answer the research problem of the study. In this study, the data and information is presented in the form of description and analysis of provision and practices of Separation of Powers and Checks and Balances under the Constitution of Nepal.

Since all data are collected as qualitative, during the processing, these data are quantified and analyzed by using different techniques. Similarly, the collected data is described and presented thoroughly as required.

1.7 Significance of the study

This study has importance in various aspects. Basically, it has dealt some emerging issues in regards to the doctrine of separation of powers and checks and balances in our context. So, it'll be a complete informative and descriptive diet for a reader of any legal purpose.

1.8 Review of Literature

The purpose of the literature review is to develop some expertise in one’s area, to see what new contributions can be made and to receive some idea for developing a research design.[39] A critical review of the literature helps the researcher to develop a thorough understanding and insight into previous research works that relates to the present study. It is also a way to avoid investing problems that have already been definitely answered.[40] The previous studies can’t be ignored because they provide the foundation to the present study.[41] Review of the literature related to the subject matter is very crucial part of the study which helps to find out previous research studies which have been conducted and what has to be done in the chosen area of the research.

However, there are numbers of National and International literatures related to Separation of Powers and Checks and Balances.

In the context of the study, various literatures which were written and published by various eminent persons and institutions have been consulted. Different books, articles, digest, journals, reports and relevant literatures have also been review for the completion of this study. Researcher has reviewed some books, digests and articles which are mentioned in this chapter.

· I.P. Massey : Administrative Law,(1970) This book has provided information about the doctrine of Separation of Power. The doctrine of Separation of Powers deals with the mutual relations among the three organs of the Government namely legislature, executive and judiciary. The origin of this principle goes back to the period of Plato and Aristotle. It was Aristotle who for the first time classified the functions of the Government into three categories viz., deliberative, magisterial and judicial Locks categorized the powers of the Government into three parts namely: continuous executive power, discontinuous legislative power and federative power. “Continuous executive power” implies the executive and the judicial power„ discontinuous legislative power‟ implies the rule making power. “federative power‟ signifies the power regulating the foreign affairs.

· Montesquieu, De L‟ Espirit des lois,(1748) This book has clearly mentioned about foundation of Separation of Power and Check and Balance. The French Jurist Montesquieu in his book L. Esprit Des Lois (Spirit of Laws) published in 1748, for the first time enunciated the principle of separation of powers. That's why he is known as modern exponent of this theory. Montesquieu doctrine, in essence, signifies the fact that one person or body of persons should not exercise all the three powers of the Government viz. legislative, executive and judiciary. In other words each organ should restrict itself to its own sphere and restrain from transgressing the province of the other. In the view of Montesquieu: “When the legislative and executive powers are united in the same person, or int he same body or Magistrate, there can be no liberty. Again, there is no liberty if the judicial power is not separated from the Legislative and Executive power. Where it joined with the legislative power, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. Where it joined with the executive power, the judge might behave with violence and oppression. There would be an end of every thing were the same man or the same body to exercise these three powers. Montesquieu's “Separation” took the form, not of impassable barriers and unalterable frontiers, but of mutual restraints, or of what afterwards came to be known as “checks and balances”. The three organs much act in concert, not that their respective functions should not ever touch one another. If this limitation is respected and preserved, “it is impossible for that situation to arise which Locke and Monstequieu regarded as the eclipse of liberty- the monopoly, or disproportionate accumulation of power in one sphere In this book, the writer has described the foundation of Separation of Power and Check and Balance.

· Hendel, Charles Evants Hughes and the Supreme Court (1951) This book regarding the separation of power. There is no dispute whatsoever that the executive should be separated from the judiciary. With regard to the separation of the executive from the legislature, it is true that such a separation does exist in the Constitution of United States; but many Americans themselves were quite dissatisfied with the rigid separation embodied in the American Constitution between the executive and legislature... There is not slightest doubt in my mind and in the minds of many students of Political Science, that the work of Parliament is so complicated, so vast that unless and until the members of the Legislature receive direct guidance and initiative from the members of the Executive, sitting in Parliament, it would be very difficult for Members of Parliament to carry on the work of the Legislature. I personally therefore, do not think that there is any very great loss that is likely to occur if we do not adopt the American method of separating the Executive from the Legislature. This book describe some values of Separation of power and Check and balance.

1.9 Organization of the study

This dissertation has been divided in six chapters. The first chapters cover introductory the second deals with the subject-matter. The third chapter is related to the experience of various other Constitution. The fourth chapter deals with separation of powers and checks and balances in Nepalese constitutional chronicle. The fifth chapter, covers the description of the provision of present constitution and Nepalese practice. Lastly, the chapter Six cover the findings, conclusion and suggestions to the study.

CHAPTER- TWO

CONCEPT OF SEPARATION OF POWERS AND CHECKS AND BALANCES

2.1 Introduction

Sovereignty of a state remains in one person, persons or in people according to its political system. In modern democratic states sovereignty is supposed to be vested in people. Sovereignty means a supreme authority, which includes law making, enforcement, punishment, security of the nation and of the people, determination of foreign policy, tax system etc. for the establishment of a welfare state. If all the powers are used by one person or by an agency, in spite of its goodness, they will be corrupted and despotic. Actually, the power itself becomes disloyal and it drags a man towards the way of cruelty, immorality, Corruption and despotism. The world incident also is proving the fact. Probably on this basis justice Acton said" power tends to corrupt and absolute power corrupts absolutely."[42]

There should be rule of law not of a person for consumption and protection of individual rights, liberty and facilities provided by law to the people. To materialize this abstract fundamental formula of modern constitutionalism the rights mentioned above are viewed that they should be used by different institutions. Thus, the notion which says the rights of sovereign is to be used by different independent institutions without any interference is the doctrine of separation of powers.

Separation of powers is a doctrine which is fundamental to the organization of a state and to the concept of Constitutionalism - in so far as it prescribes the appropriate allocation of powers, and the limits of those powers to differing institutions.[43] The great modern formulation of the doctrine was that of montesquieu, in l'Espritdes Lois (1748), who contended that liberty was most effectively safeguarded by the separation of powers namely the division of the legislative, executive and judicial functions of government among separate and independent persons or bodies. Montesquieu's work was widely read and was very influential. It profoundly influenced the framing of the US constitution. The doctrine still has influence over modern constitutions and structure of government, but it is not so rigidly or dogmatically applied.[44]

The essence of the doctrine is that there should be ideally a clear demarcation in function among the legislature, executive and judiciary in order that none should have excessive power and that there should be in place a system of checks and balances among the institutions.[45] `

Black's Law Dictionary defines checks and balances separately and in general sense. It has defined check as to hold within bound and balances as an equality between the sums total of the two sides of an account or the excess on either side.

Checks and balances is also defined as limits imposed on all branches of a government by vesting in each branch the right to amend or void those acts of another that fall within its purview.[46]

In the same way checks and balances is supposed to be the principle of government which distinguishes legislative executive and judicial power and seeks to ensure that any misuse or excessive use of power by any one can and will be checked and balanced by one or both of the other branches of government.[47] The right of one organ over another organ of governing system to interfere in some special conditions is called checks and balances. Hence, all three organs of the state in overlapping each others power in some ways and this overlapping is the checks and balances.[48]

Thus, in glimpse checks and balances is seen like an exception of separation of powers because the separated thing is seen to be joined by the second principle. But this is the condition created by both: political and practical necessity. The first doctrine is major and the second is subsidiary.[49] Without using the second Principle the implementation of the first one, i.e., separation of powers is impossible. That's why Philips and Jackson say that without any interference or mutual coordination, absolute division of power of the three organs is three independent branches be theoretically possible but practically this makes the government static^.[50]Therefore to develop governing system as active, continual and dynamic machinery it is necessary to organize separation of powers and checks and balances.[51]

We can say, at last, that these two doctrines have indivisible relationship , they are rather a paradox one cannot act without others. To move state machinery the necessity of law is often being shown by the executive to the legislature and whether the law is made by legislature have fulfilled the necessity of the state or not is checked by the judiciary. So only by the closest relationship among three organs governing system can be mobilized in a managed and in an organized way.[52]

2.2 General notion

Concept of separation of powers is supposed to be started from the very time of Aristotle. He in his book politica (politics) had mentioned about three branches of governing system, viz, deliberative, the officials and the judicial element.[53] A Roman thinker Polibius also had believed separation of powers to make the Roman reign appreciated.

Nearly in the end of 17^th century John Locke, the apologist of the revolution of 1688, tried to make the doctrine move forward and justified the supremacy of the legislative power, but considered that, because the legislature was not permanently in session, and because legislature might exempt themselves from obedience to their own laws, legislation and the execution of the laws were in distinct hands "in all well moderated monarchies and well-framed governments." By the executive Locke meant primarily what we should call judiciary; but he recognized a third kind of function which he called the "federative" and which involved the carrying of external relations.[54]

Other English writers of the 18^th century extolled the "mixed" or "balanced" English Constitution. It was, however, Montesquieu who raised" to the rank of new and universal constitutional principle" the doctrine of separation of powers "by maintaining that it was to this separation of the powers of government that the English people owed their liberty."[55] That England had far more liberty than most other countries in 1732, when Montesquieu was in England, or in 1748 when L'Esprit des Lois was published, can not be doubted. Montesquieu was concerned to combat despotism of the kind which Louis XIV had established in France. It might be said, of course, that England had overthrown despotism by beheading one incipient despot and dethroning another and by vesting supreme power in a representative assembly (for parliament was more truly representative early in the 18^th century than it was a hundred years later when the Industrial Revolution had profoundly modified both the distribution of population and the distribution of economic power). But Montesquieu carried the analysis much further.[56]

In this way, the doctrine of separation of powers was not invented by Montesquieu but was more scientifically interpreted by him than his predecessors. Plato, Aristotle, Polibius, Cicero, Machiavelli, Harrington, Hunton, Neville and Locke had made fruitful efforts on separation of powers. But, Montesquieu is highly appreciated and he is called 'father of doctrine of separation of powers.' In fact, the 'Eureka' of Montesquieu was not the doctrine of separation of powers but personal liberty.[57]

Now it is obvious that most of the studies on separation of powers begin with Baron de Montesquieu.[58] He, declaring the legislative or executive supremacy inappropriate, said, to achieve political liberty, there should not be abuse of authority and for that the power must be separated among three organs of govt. Viz, legislature, judiciary and executive and every organ should be made free from other's encroachment.[59]

"In every state, there are three kinds of powers, "he said" the legislative power, the powers executing the matters falling within the law of nations, and the power executing the matters which fall within the civil law. Through the first, the prince or magistrate makes the laws for the time being or for all time, and amends or repeals those previously made. Through the second he makes war and peace, sends and receives ambassadors, establishes order, prevents invasion. Through the third he punishes crimes and judges the disputes of private individuals. This last is called the judicial power and the second is known as the executive power.[60] "When the legislative power is united with the executive power in the same person or body of magistrates there is no liberty because it is to be feared that the same monarch or the same senate will make a tyrannical laws in order to execute them tyrannically. There is again no liberty if the judicial power is not separated form the legislative power and from the Executive power If it were joined with the legislative power, the power over the life and liberty of citizens would be arbitrary, because the Judge would be Legislators. If it were joined to the Executive power, the Judge would have the strength of an oppressor. All would be lost if the same man, or the same body of chief citizens, or the nobility, or the people, exercised these three powers , that of making laws, that of executing public decisions, and that of judging the crimes or the disputes of private persons."[61]

It is not quite clear what Montesquieu intended to include within his three groups of functions. He made no nice analysis of governmental powers.[62] And none of his successors has been successful in drawing them.[63] That's why it is hard to find whether Montesquieu's philosophy of separation of powers was intended towards its absolute or rigid form or it was with checks and balances. It should not be assumed that Montesquieu's preferred arrangement of a pure separation of powers is uncontroversial. Throughout history there is seen a tug between the doctrine of separation of powers and the need for balanced govt.[64]

To analyze the concept of separation of powers and checks and balances it is necessary to enter into the actual intention of Montesquieu. There are some important reasons to show that he did not mean to develop on absolute or a rigid doctrine:

1. Montesquieu looked to the English constitutional system to discover constitutional principles of political liberty and separation of powers. But the strange truth is however, that it was not an essential aspect of British constitution.[65]Therefore the basis on which he propounded his doctrine was itself not on appropriate instance of rigid separation of powers.

2. Most of the writers who tried to interpret Montesquieu like, C.K. Allen and sir Ivory Jennings say that Montesquieu was not intended to avoid mutual relationship but he meant to have checks and balances among these three organs.[66] According to Iror Jernnings, Montesquieu argues that within a system of government based upon law, the judicial function should be exercised by a body separate from legislature and the executive. He did not man that legislature and executive ought to have no influence over the acts of each other, but neither should exercise the whole power of the other.[67] Thus it can be said that Montesquieu had more faith upon the separation of the judiciary than that of legislature and executive. And he seems to be in favor of parliamentary system of govt. on this basis. Montesquieu seems to have believed that normally the executive power could not harm a person's life, liberty or property until after a judicial decision. [68]

3. A complete separation of the three institutions could result in legal and constitutional deadlock.[69] The impossibility of having a rigid personal separation of powers has been illustrated by the American constitution,[70] which is supposed to be the first follower of this doctrine. And we can not assume that Montesquieu, such an eminent scholar, did not have this much foresightedness too. Therefore, he did not mean to propound a rigid doctrine which he had seen nowhere.

In this way, what can be said is that the theory of separation of powers, propounded by Montesquieu, does not stress for separation only but the so-called supplement doctrine i.e. checks and balances also is implicit there. It is another matter that the profounder of the second doctrine is said to be John Adams, an American scholar.

In modern practice, the theory of separation of powers has come to mean an organic separation or a separation of functions, Viz., that one organ of government should not usurp[71] or Combine[72]Functions belonging to another organ. But any rigid separation is impracticable under modern conditions when the problems of government are interdependent. Hence, a distinction is made between 'essential' and 'incidental' powers of an organ of govt. One organ cannot claim to exercise the powers essentially belonging to another organ but may, without a violation of the principle of separation of powers, exercise some of the incidental powers of another organ. Moreover, in order to function efficiently, each department must exercise some incidental powers which May be said to be strictly of a different character than its essential functions. For example, the courts must, in order to function efficiently, possess the power of making rules for maintaining discipline or regulating procedure though that power may be of the nature of a legislative powers.[73] The power of making rules of procedure in the courts is not regarded as of the essence of the functions of the legislature.[74] Again, in interpreting laws and in formulating case law the court do, in fact, perform a function analogous to law making. In particular, in dealing with new problems where authority is lacking, the courts have to create the law, even though under color of interpretation of and deduction from the existing law.[75] Thus we can distinguish the essential and incidental powers of all three organs. But it's the matter of assumption. It may be a subjective matter but in some ways, it is objective matter, traditionally moreover, it is a matter of constitutional and legal determination.

Summarizing all the discussion, national powers are distributed among the legislative, executive, and judicial branches of the national government. "Separation of powers" captures the constitutional effort to allocate different sorts of powers among these three governmental entities that are constituted in different ways. "checks and Balances" focus on the constitutional effort to ensure that the system will be able to guard against usurpation of authority by any one branch. Separation suggests three autonomous entities, working independently. The principle of checks and balances suggests overlapping function in which each branch is able to intrude on and thereby to check the power of the others.[76]

2.3 Purpose

There were some defects in the contemporary governing system and the profounder was intended to avoid them through his doctrine achieving these things:[77]

2.3.1 The Problem of Factions: The separation of powers was also partial solution to the problem posed by factions-the risk that the governmental power will be usurped by private groups seeking to obtain distribution of wealth or opportunities in their favor. Such private groups, whether minorities or majorities might use the authority of government to oppress others. The distribution of national powers was intended to reduce that risk. A faction may be able to acquire power over one of the branches, but it was the unlikely that it could do so over all three. In this respect, a goal of the separation of powers was to protect minorities against tyranny.[78]

2.3.2 Individual liberty: Montesquieu denied natural liberty and defined political liberty. Indeed, Montesquieu had looked to the English constitutional system only because to discover constitutional principles of political liberty and separation of powers.[79] But there is not, and never has been, a strict separation of powers in the English constitution.[80] This fact shows that he was intended to achieve that individual liberty through the doctrine, he propounded which was consuming by the contemporary British people and which was not possessed by French people. It has been said that Montesquieu was not concerned to make a precise analysis of the functions of govt. He was rather trying to find the means by which tyranny could be avoided, and, naturally, he turned to the country where the battle against despotism had been fought and won and where liberty existed in a far greater measure than in his own country.[81]

2.3.3 Efficiency: In this view, a sensible division of labor among the various branches makes govt. more efficient.[82] Each organ of state(to say "each organ of govt." is not suitable because govt. indicates executive only and we can never include legislature and judiciary in the executive as its organ. That's why "each organ of state " is better becomes quite efficient in its jurisdiction, if it can work separately and without undue influence. And definitely, it is one among the purposes of separation of powers and checks and balances.

2.3.4 Preventing Tyranny: The federalist no. 47 stresses a different justification for separating govt. powers (It has used" govt. power"): "The accumulation of all powers, legislative executive and judiciary, in the same hands, whether of one a few or many and whether hereditary, self appointed or elective, may justly be pronounced the very definition of tyranny." And the separation of powers diffuses governmental power, diminishing the likelihood that any one branch will be able to use its power against the citizenry.[83]

2.3.5 Rule of Law: The separation of powers ensures that the power to make the law is not in the hands of those who execute it, Law makers cannot enact oppressive laws knowing that they will be exempt from their operation. Under this view, the central safeguard of the separation of powers is that it makes the laws apply to the law makers. This is probably the meaning of Montesquieu statement concerning tyrannical laws tyrannically applied; if the legislators cannot ensure a tyrannical execution; i.e., one which favors themselves, they will be less likely to make tyrannical laws for fear that they themselves will be tyrannically ruled by them [If]a separate executive will enforce the law even against the lawmakers, the law makers will not have a "distinct interest from the rest of the community."[84]

2.3.6 Rulers versus Ruled: If power were concentrated in one branches, there would be an increased risk that that branch would act to increase its own power-the power of govt. at the expense of the governed. The separation of powers was intended to act as a partial remedy, thus safeguarding both liberty and private property against governmental action. If one branch tried to use its power in an oppressive manner "ambition would counteract ambition." and another branch would provide resistance.[85]

2.3.7 Limited Government: A different rationale for the constitutional distribution of powers stresses the goal of limited govt.. Under that distribution, no law can be brought to bear against the citizenry without a broad consensus. The executive and the judiciary must concur with legislature in order for a law to be enforced. In this the respect, there is an intimate connection between the separation of powers and the protection of private ordering.[86]

CHAPTER-THREE

SEPARATION OF POWERS AND CHECKS AND BALANCES IN VARIOUS JURISDICTIONS

3.1 United State of America

Although Montesquieu had propounded his doctrine on the basis of the study of British constitutional system, the fortunate to be the first applier of this doctrine, was America.[87] The framers of the American constitution vested the legislative, executive and judicial powers in three distinct authorities, by the articles 1,2 and 3 of the constitution, besides these one cannot be the member of two organs at the same time. No minister can be the member of congress and neither the president nor cabinet can dissolve any house of the congress, Viz., House of Representatives or Senate. There is an independent judiciary free from president and congress. Thus there, we can say, is separation of powers. But the impossibility of having a rigid personal separation of powers has, however, been illustrated by the American constitution under which the president has got legislative powers in his right to send messages to congress and the right to veto, while congress has the judicial power of trying impeachments.[88] In this process chief justice of American supreme court becomes the chief justice in senate while the whole senate diverts in a court. And the senate participates in the executive power of treaty making and making appointments. Laws, made by congress, are always on supervision of judiciary under judicial review. But at the same time, senate can impeach against any judge. Through this discussion, what can be said is that American placed great faith in the doctrine of the separation of powers together with checks and balances it was embodied in the constitution of several of the states and implicit in the constitution of the United States, though it was not explicitly mentioned.[89] In this way U.S.A. has been an ideal example of the doctrine.

3.2 Britain

It is supposed to be a paradox that the theory of Montesquieu was inspired by the political system as it obtained in England in the 18^thcentury.[90] House of Lords is not only the upper house of legislature but also the supreme court for appellate. The Lord Chancellor, when sits in legislation , becomes the head of it, and when sits in supreme court ,becomes the chief justice. Not only that he also remains as an important person in privy Council which is thought to be the part of cabinet or of the executive. All the judges of supreme court are the members of the upper house legislature, moreover it has been a tradition to be participated only by these judges in the judicial action of legislative. Both houses can make regulations to regulate their own procedure and they can judge, punish and can pardon in their contempt. The power of all three organs is been used on the name of the crown. U.K, in this way, doesn't follow the general condition of the doctrine that the member of one cannot be the member of another at the same time. Concentrating only on the independence of the judiciary, supremacy of parliament has been established here.[91] That's why it is said "except the independence of judiciary nothing is mentionable in Britain regarding the doctrine."[92] "The doctrine of separation of powers has its relic in England, in the shape of independence of the judiciary.[93] Moreover, " mystery of success of the British Constitution is the intimate relation or the unification between the executive and legislature."[94]

3.3 France

Nevertheless, being the state of Montesquieu, France has not led in the implementation of his doctrine. The fifth republican constitution has included the characteristic of both systems, viz. the presidential and the ministerial. The French president is elected by the direct adult franchise and he need not bear the parliamentary responsibility except in impeachment action. He doesn’t take part in parliamentary procedure and cannot reject the bills passed by parliament but can order them for referendum. According to the necessity he can declare emergence and can dissolve the parliament too. Therefore, his status is like of the prime minister in parliamentary system and of the president in American system. Member of council of ministers are not the member of parliament but they have to get the vote of Confidence from parliament and they participate in the parliamentary procedure regarding their proposal. Executive authority is divided between president and council of ministers. As the result, in constitutional appointments, in treaties, in pardons etc. the president uses his power when there be a joint signature of the prime minister, responsible to the parliament, and of the concerning minister. The judiciary has not got the power of judicial review but there is another institution for this purpose, i.e., Constitutional council. The president can examine the constitutionality of any parliamentary Act through this institution. In this way, French ministers can not be the member of parliament shows the intention of individual separation and the responsibility towards the parliament shows checks and balances. Summarizing all, the separation of powers and checks and balances has been extra ordinary and vast their.[95]

Thus, is Britain the separation of powers was maintained and yet enabled parliament to be supreme and the courts, subject to parliament, to give remedies against administrative authorities. In U.S.A. the same doctrine was maintained and therefore separated the executive from the legislature and yet enabled the supreme court to declare invalid acts of the legislature. In France, the legislature has become supreme but has not enabled the civil courts to control the legality either of legislature or of administrative acts.[96]

3.4 Australia

A useful starting point for our investigation of the separation of powers doctrine in the Australian context is of course the federal government. It can serve as a useful guide for the States. Since federation the Commonwealth has taken priority over the States and continues to do so. The chapter establishes the advantages of the Commonwealth model over the States. The main advantage is the separation of powers entrenched in the Commonwealth Constitution. The Commonwealth Constitution cannot be amended without the approval of the people, unlike in the States. The State Constitutions are pieces of legislation that can be amended by State Parliaments and they do not include constitutionally entrenched separation of powers. The High Court has interpreted the Commonwealth Constitution as providing separation of judicial powers and only courts properly constituted under Chapter III of the Constitution could exercise any part of the judicial power of the Commonwealth. The High Court also held that the Parliament could delegate lawmaking powers to the executive. The chapter looks at the advantages and disadvantages of the federal model and also the importance of the Constitution, the SOP and judicial review in protecting citizens from the abuse of government power. A lack of civil rights in the Constitution and the executive legislating away rights may require a remedy in the form of a Bill of Rights.

The High Court has adopted a more limited separation of powers and a preference for British practice and theory over the American practice and theory from the Federalist 1788 understanding of the separation of powers. The High Court has recently announced that it no longer declares the law and that in some sense it now makes the law and had always done so. This dislodged its jurisprudence from casebycase adjudication to jurisprudence that pronounced on general principle. Mason’s view that the court is making not just declaring law is problematic but is backed in the well developed literature in the critical legal studies movement.

The executive interference with the court (Murphy and Kirby JJ) and problems with the separation of legislative and executive powers in a system characterized by responsible government suggest the Commonwealth model has its own problems. Disadvantages of the federal model include examples such as the political attack on the High Court by Rob Borbidge and Tim Fisher after the Wik (1996) Decision and the public battle between Gerard Brennan CJ and Darryl Williams over the role of the executive in defending the judiciary from political attack. The fairly recent conflict between Ruddock and the Federal Court over immigration matters was another critical example of a problem with the separation of powers at the federal level. In 1998, the replacement of Gerard Brennan with Murray Gleeson as CJ of the High Court has endorsed a return to ‘legalism’ rather than the previous Mason and Brennan era of ‘judicial activism.

The Commonwealth of Australian Constitution Act (1900) sets out a type of separation of powers between the legislative power (section 1), executive power (section 61) and judicial powers (section 71). This follows the Constitution of the United States of America (1788) that set out a separation of powers and institutions. The US Constitution sets out the separation of powers (Article I, section 1: the legislative power is vested in Congress (Parliament); Article II, section 1: the executive power is vested in the President; and Article III, section 1: the judicial power is vested in the Supreme Court). The Australian Commonwealth Constitution sets out the SOP and institutions (Chapter I, Section 1: the legislative power is vested in a Federal Parliament; Chapter II, Section 61: the executive power is vested in the Queen and is exercisable by the GovernorGeneral (in practice the PM and Cabinet); Chapter III, Section 71: the judicial power is vested in a Federal Supreme Court (the High Court and other Federal Courts) .

The separation of powers in Australia has been fundamentally shaped and defined by the High Court which chose a Blackstonian common law conception of the separation of judicial powers, in preference to the principles elaborated in Hamilton, Madison & Jay [1788] The Federalist and articulated in the American Constitution. The High Court’s admission that it now ‘makes the law’ as discussed below, has presented unprecedented theoretical and political challenges. The Court has been compelled to reconcile its new role with the rule of law and to explain what lawmaking means for the judiciary. There are now challenges to the concept of the separation of judicial power in Australia. This includes a transformation in the role of the AttorneyGeneral, the creation of new institutions and a move towards an American conception of checks and balances.

The Australian Founding Fathers faced a choice between two major conceptions of the separation of powers: one derived from the American Constitution and The Federalist ; the other from British constitutionalism and Blackstone. The Australian Founding Fathers settled upon an amalgam of British responsible government and American federalism. The result has been described as ‘a hybrid form of government. This amalgamated and mutated Australian system revealed the ambiguity of the terms settled upon in the Australian Constitution. It allowed the High Court to be the pre eminent interpreter of the Constitution and to define the nature of the separation of powers in Australia. The High Court took up this opportunity and defined the separation of powers in Australia principally as a separation of the judicial power from the other powers this had far reaching influence on the development of Australian constitutionalism until the court’s recent admission in 1990 that it not only interprets the law but also ‘makes’ the law. This declaration has exposed the court to political and scholarly criticism and raised profound questions concerning the tension between a lawmaking judiciary and the doctrine of separation of powers. This theoretical tension creates immediate political implications for the separation of powers doctrine in Australia; it makes the judiciary more vulnerable to political attack, it requires a new role for the AttorneyGeneral, and it requires the creation of new mediating institutions. In 1995 AttorneyGeneral Williams argued that there was no longer any reason to treat the High Court as an institution differently to other policymaking bodies. All of these suggest a shift towards an American conception of institutional checks and balances.

A preliminary review of recent Australian literature on the separation of powers in Australia may be seen in the work of authors such as Haig Patapan and Suri Ratnapala. Their recent works on the subject of the separation of powers include: Patapan 1999: 391407; Patapan 2000: 150177; Ratnapala 2002: 88117, 118143. For the history and philosophical dimensions of the separation of powers doctrine: see Ratnapala 1990; Ratnapala 1994; Lumb and Moens 1995; and Zines 1997. At first glance the foundation of the legal and constitutional position of the separation of powers in the Australian Commonwealth Constitution appears clear (s. 1 legislative power; s. 61 executive power; s. 71 judicial power). In regard to the basic constitutional provisions (in the Australian Commonwealth Constitution) effecting the separation of legislative, executive, and judicial powers, the main sections are ss.1, 61, and 71. Yet the High Court has focussed on the separation of the judicial power (s. 71). The following diagram (Figure 2) on the theory and practice of the Australian Separation of Powers, indicates the separation of powers and the separation of institutions that use those powers at the Commonwealth level. The Commonwealth Constitution separates the three powers (legislative, executive and judicial powers) and the institutions that exercise them.

3.5 South Africa

Due to the British colonial flavour, the pre-constitutional dis-pensation in South Africa did not favour the doctrine of the separation of powers to flourish. The text of the South African final Constitutiondoes not explicitly refer to the doctrine of separation of powers. The inception of the doctrine in the current South African constitutional order can be traced back to our Constitutional Principle VI, which is one of the principles that governed the drafting of the final constitution. Schedule 4 of the Interim Constitution provided that: ‘There shall be a separation of powers between the Legislature, Executive and Judiciary, with appropriate checks and balances to ensure accountability, responsiveness and openness’.

Section 8(1) of the final constitution lists all the elements of the structures that are bound by the Bill of Rights namely, the legislature, the executive, the judiciary and all organs of state. The question whether or not the doctrine of separation of powers forms part of the final constitution has been considered and explained in several Constitutional Court cases. It is axiomatic that the doctrine of separation of powers is part of our con-stitutional design.

In Glenister v President of the Republic of South Africa Langa CJ (as he then was) stated that ‘the doctrine of separation of powers is part of our constitutional design.’ Indeed Chapters 4 to 8 provide for a clear separation of powers between three spheres of government. Section 43 vests the legislative authority of the Republic at the national sphere in parliament and at the provincial sphere in the provincial legislatures. Sections 85 and 125 respectively vest the executive authority of the Republic in the president and of the provinces in the premiers. Section 165 vests the judicial authority in the court’.The Constitutional Court in South African Association of Personal Injury Lawyers v Heath Chaskalson P stated as follows: ‘In the first certification judgment this Court held that the provisions of our Constitution are structured in a way that makes provision for a separation of powers. ... There can be no doubt that our Constitution provides for such a separation (of powers), and that laws inconsistent with what the Constitution requires in that regard are invalid’. There is no doubt that the doctrine of separation of powers forms part of our constitutional system. As articulated above the Constitution doesn’t only differentiate three spheres of government i.e. legislative, executive and judiciary function, it vests these functions in different organs of state. The doctrine of separation of powers may be regarded as an unexpressed provision that is implied in or implicit to the Constitution.The doctrine of separation of powers in South Africa took a centre-stage in a number of Constitutional Court cases. In South African Association of Personal Injury Lawyers v Heath Chas-kalson CJ while comparing the constitutional dispensations of South Africa and United States of America and Australia stated that: ‘In all three countries, however, there is a clear though not absolute separation between the legislature and the executive on the one hand, and the courts on the other.’

In most cases the Constitutional Court has held that the doctrine of separation of powers does not always have to be strictly applied. In the first certification judgment, Ex parte Chairperson of the Constitutional Assembly of the Republic of South Africa, the court stated that: ‘There is, however, no universal model of separation of powers and, in democratic system of government in which checks and balances result in the imposition of restraints by one branch of government upon another, there is no separation of powers that is absolute …’ The court continued at para 109 as follows: ‘The principle of separation of powers, on the one hand, re-cognises the functional independence of branches of gov-ernment. On the other hand, the principle of checks and balances focuses on the desirability of ensuring that the constitutional order, as a totality, prevents the branches of government from usurping power from one another. In this sense it anticipates the necessity or unavoidable intrusion of one branch on the terrain of another. No constitutional scheme can reflect a complete separation of powers …’ In a constitutional dispensation, the doctrine of separation of powers is not fixed or rigid. The courts are duty bound to develop a distinctively South African model of separation of powers, one that fits the particular system of government provided for in the Constitution and that reflects a delicate balancing, informed both by South Africa’s history and its new dispensation, between the need, on the one hand, to control government by separating powers and enforcing checks and balances, and on the other, to avoid diffusing power so completely that the government is unable to take timely measures in the public interest.

Example of case law on the doctrine of separation of powers: The doctrine of separation of powers in South Africa since the 1994 election and our new democratic government and the final Constitution has been investigated extensively in various judgment of the Constitutional Court. The judiciary spent time developing the home-grown model of the doctrine as envisaged by the Constitution. I have already articulated earlier that there is no complete separation of powers, and that possibly there cannot be complete separation. It is thus not surprising to find some cases from the Constitutional Court applying the doctrine of separation of powers strictly (usually in those cases that involve the relationship between legislature and the executive).In De Lange v Smuts No and Others the Constitutional Court held that a member of the executive may not be given the power to commit an un-cooperative witness to prison. This is because the courts have such power to send someone to prison. It is a judicial function and not an executive one. In South African Association of Personal Injury Lawyers v Heath the Constitutional Court held that a judicial officer may not be appointed as the head of a criminal investigation unit. This is because the power to investigate and prosecute crimes is an executive function and not judicial function. In S v Dodo the Constitutional court held that while the legislature may determine a minimum sentence for a particular crime, it may not determine the sentence that should be imposed in a particular case. This is because the power to impose a sentence on the offender is a judicial function and not an executive function. In Executive Council Western Cape Legislature v President of Republic of South Africa the Constitutional Court held that while the legislature may not delegate plenary law-making powers to the executive, it may delegate subordinate law-making powers. The court thus confirmed reservation of plenary law making for the legislature and made it non-delegatable. This is because it is necessary for the effective law-making. In re Constitutionality of the Mpumalanga Petitions Bill, 2000, the Constitutional Court held that the legislature may delegatethe power to bring an Act into operation to a member of the executive or to some other appropriate person, for example the speaker of the legislature. The bringing into operation of an Act of parliament seems to have been assessed as not core legislative power.

3.6 India

The major feature of the parliamentary democracy. i.e., the intimate relationship between the legislature and the executive is followed here too like in U.K. Cabinet forms from the legislature and it is responsible to this body. The president is the executive head although he has to work in consent and advice of ministers. It is not obvious whether he is a part of the legislature or not but functionally he takes part in parliamentary activities and approves the bills.[97] He, as an executive head, can promulgate ordinance during recess of legislature and he can also exercise the legislative powers in case of a breakdown of constitutional machinery.[98] He can pardon, reduce ,change, postpone the punishment given by any court. According to art.140 of the Indian constitution legislature can give the right to make law to the judiciary. To Conclude; Indian constitutional, system, through the eyes of separation of powers and checks and balance, is very much close to British system. It is said that though the doctrine of separation of powers in the American sense does not obtain in India, the principle of 'checks and balances' underlying that doctrine does, in the sense that none of the three organs of govt.can usurp the essential functions of the other organs, constitute a part of the 'basic feature' of the constitution or one of its 'basic features which can not be impaired even by amending the constitution, if any such amendment of the const. is made, the court would strike it down as unconstitutional and invalid.[99]

Hon'ble Chief Justice Kania observed: “Although in the Constitution of India there is no express separation of powers, it is clear that a legislature is created by the Constitution and detailed provisions are made for making that legislature pass laws. It is then too much to say that under the Constitution the duty to make laws, the duty to exercise its own wisdom, judgment and patriotism in making law is primarily cast on the legislature? Does it not imply that unless it can be gathered from other provisions of the Constitution, other bodies executive or judicial are not intended to discharge legislative functions?”

Hon'ble Chief Justice B.K. Mukherjea observed: “The Indian Constitution has not indeed recognised the doctrine of separation of powers in the absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption by one organ or part of the State of the functions that essentially belong to another.”

Hon'ble Chief Justice S.R. Das opined that in the absence of specific provision for separation of powers in our Constitution, such as there is under the American Constitution, some such division of powers legislative, executive and judicial- is nevertheless implicit in our Constitution. The judiciary is independent and separate wing of the Government. The executive or legislature has no concern with the day to day functioning of the judiciary. In terms of Biblical apologue, Francis Bacon in his “Essay of Judicature” showing the importance of „Temple of Justice‟ has expressed thus: “Solomon‟s Throne was supported by lions on both sides; Let them be lions, but yet lions under the throne; being circumspect that they do not check or oppose any points of sovereignty.”

Here the expression “Solomon‟s Throne” symbolizes the majesty of our justice system and the word „Lions‟ represents the Legislature and the Executive. Briefly it may be stated as” „Majesty of Justice system‟ is supported by the Legislature and the Executive from both sides, nevertheless, these Legislature and Executive are under the control of Judiciary. Legislature and Executive must not go against any point of Sovereignty. As regards "Sovereignty" it is enough to state that in a democracy it vests in the will of people.

Showing the importance of judiciary, Supreme Court in the same case has also observed: “Under the Constitution, the judiciary is above the administrative executive and any attempt to place it on par with the administrative executive has to be discouraged.”

“The Indian Constitution, though it does not accept the strict doctrine of separation of powers, provides for an independent judiciary in the States....... But at the time the direct control of the executive. Indeed it is common knowledge that in pre-independence India there was a strong agitation that the judiciary should be separated from the executive and that the agitation that the judiciary should be separated from the executive and that the agitation was based upon the assumption that unless they were separated, the independence of the judiciary at the power levels would be a mockery.”

The State in the present day has become the major litigant and the superior courts, particularly the Supreme Court, have become centres for turbulent controversies some of which with a flavor of political repercussions and the courts have to face tempest and storm because their vitality is a national imperative. In such circumstances, therefore, can the Government, namely, the major litigant be justified in enjoying absolute authority in nominating and appointing its arbitrators. The answer would be in the negative. If such a process is allowed to continue, the independence of judiciary in the long run will sink without any trace.

CHAPTER-FOUR

SEPARATION OF POWERS AND CHECKS AND BALANCES IN NEPALESE CONSTITUTIONAL CHRONICLE

4.1. Government of Nepal Act, 2004 B.S.

There was no separation of powers is this constitution. All the executive legislative and judicial powers were exercised and controlled by the Rana Prime ministers. Council of ministers were hired and fired by the Rana prime minister and he could even dissolve the legislature. He was the supreme commander of the armed force of Nepal.[100]

Legislature consisted of Shree Teen, Bhardari Sabha and Rastra Sabha. In Bhardari Sabha all 20to 30 members and in Rastra Sabha 28 among 60 to 70 members were nominated by Rana Prime Minister.[101] The bills passed by the legislature could be rejected by the prime minister without giving any reason.[102]

Judiciary had three hierarchies, i.e. Court of first instance, Appellate court and Pradhan Nyayalaya (High Court) and special courts may, in extraordinary circumstances, be established by His Highness the Maharaja.[103] The high court consisted of a chief justice and such other judges not exceeding 12 in number, as His Highness may from time to time deemed necessary to appoint.[104] Judges of the high court could receive such remuneration as His Highness may fixed. If they once appointed by Shree Teen, could be dismissed only if they were disqualified by legislature or judicial committee. In general every judge could hold office until he attained the age of 65 years.[105] Dismissal of judges on the recommendation of such organ was a good aspect but to say in conclusion the independence of judiciary was mortgage on the hand of Ranas. There were Auditor General, Public service Commission as constitutional agencies but the head of them could be appointed only by His Highness the Maharaja.[106]And the Act did not define the role and position of the King and he remained powerless and unconcerned authority.

In this way as an evaluation our first constitution had, of course, tried to separate state machinery in three organs but there was no separation of power among them. Executive head was all in all. All the powers of the state had directly or indirectly centralized in Rana Prime Minister.

4.2 The Interim Government of Nepal Act, 2007 B.S.

The executive power was vested in the King. He could exercise this power by himself directly or through ministers or other officers subordinate to Him.[107] The King exercised the executive power on the aid and advice of the cabinet. But he was not obliged to follow the aid and advice.[108] Including the Prime Minister ,Ministers could hold office during the pleasure of the king.[109] The legislative powers were vested in the King[110]and King could act on the advice of the cabinet.[111] Later an advisory assembly was introduced through amendment. This body was however nominated body and had only advisory power. Its advice could be ignored by the king in council.[112] He could refuge to give assent to any bill or resolution passed by the assembly or could return it to the assembly for such changes.[113]

The Act established a Pradhan Nyalaya (High Court).[114] Including chief justice, the judges were appointed by the King on advice of cabinet. They could hold office until they attained the age of 65 years. But they could be removed before, if the impeachment proposal passed with two thirds majority in cabinet and king accepted that.[115] HMG had the power to grant pardons, reprieves, respite or remissions of punishment, or to suspend, remit or commute the sentence of any person convicted of any offence by any count of Nepal or Court Martial.[116]

There were Comptroller and Auditor general, public service commission and Election Commission as constitutional agencies. But the chairman or chief could be appointed only by HMG.[117]

In this way this act, i.e., so called constitution too had not separated powers. Since this act was for transitional period, all the executive and legislative powers were conferred to the King. Only the judiciary was tried to kept separate but actually it too was not independent. So we can say the second constitution had not adopted the doctrine. First had vested all the power in prime minister and the second had given it to the king.

4.3 Constitution of the Kingdom of Nepal,2015 B.S.

The executive power of the Kingdom Of Nepal was vested in His Majesty, the power could be used by HMK on his discretion or by ministers or by other officers subordinate to him.[118] Constitution provided a cabinet headed by the prime minister.[119] He was appointed by the king in king's discretion but he had to be a person who commanded confidence of the house of representatives. The king, if he thought that there was no such person to get majority support, could appoint him as PM a person who was not a member of either houses of parliament but only for 4 months.[120] The cabinet was collectively responsible to the HR.[121] It could be removed by the parliament through the vote of no confidence.[122] Cabinet could also be dissolved by the king if he, after consultation with the National council, was satisfied that it had lost the confidence of the HR or had failed to conduct in conformity with the constitution of the Kingdom of Nepal.[123]

The constitution established a bicameral legislature including HMK Maha Sabha, Pratinidhi Sabha.[124] Maha sabha consisted of 36 members: 18 elected by lower house and 18 nominated by the king.[125] Pratinidhi sabha consisted of 109 members elected by the people through secret ballot and universal adult franchise.[126]King could reject the bill passed by both the house of parliament.[127]

The chief justice of high court was appointed by the king in his discretion, after consulting the PM and some other judges of the supreme court as he deemed necessary. Other judges were appointed by the king ,after consulting the chief justice and such other judges of the supreme court as he deemed necessary. The judges could be dismissed by the king in his discretion only on the disqualification by the special commission appointed by the king.[128] The high court had the power to issue writs for the enforcement of the fundamental rights,[129] although the legislature had wide power to limit those rights. It was the final court of appeal and final interpreter of the constitution of the kingdom of Nepal.[130] The major provision of the constitution for judiciary was that the king could not suspend part VI of the constitution even in emergency.[131]

There were the public service commission and Auditor General as constitutional agencies. Head of those agencies were appointed by the king and they could be removed from their office on the like grounds and in the like manner as a judge of the supreme court.[132]

In this way the first democratic constitution also failed to separate the state power, although it had established legislature, executive and judiciary obviously. These bodies were separated but the power was not divided impartially, because king had control over all three organs and to the constitutional organs too. Though the constitution tried to establish constitutional monarchy, there were many provisions which had made room for the king to become extra-ordinarily powerful.

4.4 The Constitution of Nepal, 2019 B.S.

This constitution gave birth to party less panchayat system. All the political parties and organizations were banned. Among these four constitutions this constitution seems to be most indifferent towards separation of powers and checks and balances. It would be better to mention such points which prove that there were not separation of powers and checks and balances instead of mentioning all the legislative judiciary and executive structure. They are:

1. The sovereignty of Nepal was vested in HMK and all executive legislative and judicial powers emanated from him.[133]

2. The executive power was exercised by HMK either directly or through ministers or other officers subordinate to him.[134]

3. The ministers were collectively and severally responsible to HMK.[135]

4. The bill passed by the National Panchayat could be withhold by the King.[136]

5. Judges of supreme court and other judges and heads and members of the constitutional agencies were appointed by HMK.[137]

6. HMK could amend the constitution by proclamation.[138]

7. The judges of supreme court were hired and fired by the King.[139]

8. All the constitutional agencies were accountable to the King.

After having a glimpse over above mentioned points, everyone could easily see that no any organ was independent except the king. But more we can say that the king had been tried to make arbitrator by the constitutional provisions. In such sequence of power no one could find the individual liberty.

4.5 THE CONSTITUTION OF THE KINGDOM OF NEPAL, 2047

As most of the countries of the world, our present democratic constitution also has three organs to drive state in a good track. Besides it has made provision of fine constitutional institutions. These all are to be described in detail. This aspect deals also with who involves how and in which wing.

4.5.1 The Legislature

Constitution has given much more importance on the parliament because parliamentary democracy is one of the basic structures. part-8 of the const. is related with the legislature and part 9&10 also are related. Art 44 reads that "there shall be legislature, to be called parliament, which shall consist of HM and two houses, namely the house of representatives ( hereinafter HR is used to indicate this) and the national assembly." HR includes 205 elected members by the popular election.[140] This house is called lower house too. There is a provision of national assembly consisted or 60 members. Ten of them are nominated by HM, thirty-five are elected by the HR and remaining fifteen members are elected from local authorities of all regions.[141] No one can be the member of both houses simultaneously.[142] The final decision of the question that any parliamentarian is disqualified or has ceased to possess any of the qualifications is made by the chief justice or any other judge of the supreme court designated by him.[143] HM summons the session of parliament and he can prorogue the session of both or either of the houses of parliament. He specifies the date and time for such session which is requester to call by one -fourth of the members of the HR and can dissolve this house on the recommendation of the PM with the date for new election within six months .[144] If either or both the houses of parliament gets the message from him the house must consider it as early as possible and submit its opinion to HM.[145] A minister is entitled to attend and take part in the proceedings and deliberations of either house of parliament and its committee but he can not vote in a house or committee of which he is not a member.[146] No member of parliament can be arrested between the date of issuance of the summons for a session and the date on which that session closes but he can be arrested on a criminal charge. If any member is so arrested the official making such arrest must forthwith inform the chairperson of the concerned house. Any house can punish and can pardon, remit or commute the sentence.[147] The regulation of maintaining the proceedings of each houses comes into effect after the approval by HMK.[148] He can send back the bills except finance fill passed by the house for further deliberations and a bill becomes an Act only after his assent to it.[149]

In this way, what we see in structure is that HM has been given much more duties. He is an integral part of the parliament. He can nominate 10 members of national assembly. Regarding parliament this and this like other works which are preferred to be done by the king, are the discretionary right of him or not? It is a matter of interpretation because to include them in the range of art 35(2) is not seem to be reasonable. If we include them in this article, it will be an interference of executive in parliament. And not to include them itself is a problem because literally these articles don't say that prescribed works are to be done on king's discretion or on the recommendation of any officials. These things help king to play vital role in parliament. Here we must consider that the king is also in the executive. Structurally the executive has major control over parliament with the weapon of dissolution and parliament is having control over the executive with the main arms of impeachment proposal.[150]

4.5.2 The Executive

Part 7 of the constitution has provided the executive. Art 35 reads that "The executive power of the kingdom of Nepal shall, pursuant to this constitution and other laws, be vested in his majesty and the council of ministers.'' HM appoints him as the PM who is leader of the party which commands a majority in the HR and constitutes the council of ministers under his chairmanship. The council of ministers consists of PM deputy PM, if required and such other ministers as it requires. These deputy PM and such other ministers as well are appointed upon the recommendation of the PM, amongst the members of parliament, by HM.[151]If no one party has a clear majority in the HR, HMK. appoints him as a PM who is able to command a majority with the support of two or more parties represented in the house. Thus if no member is able to command a majority in the HR. he appoints him as PM who is the leader of the parliamentary party that holds the largest number of seats in this house. And they have to take a vote of confidence from the HR within thirty days [152]The PM and other ministers are collectively responsible to this house[153] The PM is to be relieved In various circumstances among them one is if he looses the majority support in the lower house, either it may be through the impeachment process[154] or through the provision of art 42 (4) which says if a PM of art.42(1)(2) fails to obtain a vote of confidence from HR, HM dissolves the house. Another provision for the removal of PM is if he ceases to be member of HR. One can not be PM if he is not the member of HR but he can be other ministers even though such ministers are required to be the member of parliament within six months from the date of his appointment [155]`King can promulgate any ordinance (which has the same force and effect as an act) as he deems necessary according to the art.72. In this way the executive and the legislature are closely interlocked, govt. is a part of the executive but it also dominates the legislative body. Accordingly, there is some overlap between part 7 and part 8[156] There are some matter which are to be informed by the PM to HM and HM can make recommendations to, or appreciation of or admonitions to, the council of ministers on matters of national importance.[157] Admonitions show the influence of king on council of ministers because we cannot include this art.i.e.art.43 within the purview of art.35(2).

4.5.3 The Judiciary:

Power relating to justice in the Kingdom of Nepal is exercised by courts and other judicial institutions in accordance with the provisions of this constitution, the laws and the recognized principles of justice. [158] There are three tiers of court, viz., supreme court, appellate court and district court. Besides these, special types of courts or tribunals, for the purpose of hearing special types of cases, can be established by law.[159] Supreme court is the highest court in the judicial hierarchy, it is a court of record.[160] HM appoints the chief justice of Nepal on the recommendation of the constitutional council and other judges of the supreme court, on the recommendation of judicial council. Including the chief justice and any other judges of the supreme court is removed from his office if, for reasons of incompetence, misbehavior or failure to discharge the duties of his office in good faith, the HR, by a two-thirds majority of the total number of its members, passes a resolution for his removal and the resolution is approved by HM. The remuneration, allowance, leave, pension, gratuities and other conditions of service of the chief justice and other judges of the supreme court is regulated by law.[161] Supreme court has the extraordinary power of judicial review and writs' power. But it can not interfere in the proceedings and decisions of the military court and of parliament if they are within their jurisdiction.[162] Any interpretation given to a law or any legal principle laid down by the supreme court in the course of hearing of a suit is binding on HMG and all offices and courts.[163] In the same way there are appellate and district courts place and jurisdiction of appellate court is determined by HM in counsel with the council of ministers.[164] There are two restrictions on parliament regarding the court. One is it cannot discuss on the matter of case which is under consideration in any court. Another is it cannot discuss about the act done by a judge in course of performance of his duty.[165]

In this way from structural point of view, our cons. is very much close to the Montesquieu point of view at least from judiciary point of view. Our judiciary is independent from executive and legislature. Members of the judiciary can neither become member of parliament nor cabinet at a time. All traditional judicial powers are vested in the courts and other judicial institutions. But in more technical and other professional areas, quasi-judicial functions are exercised by the executive authorities. It is due to demand of time, technicality and backlog of the regular courts. This is a system adopted not only by Nepal but by most of the democratic countries of the world. We find here, a separate parliament composed of representatives and noble person of society. The nature of our parliament is quite similar to the view of Montesquieu in this sense as he believed that the legislative functions of a state are to be performed by the representatives of the general public.[166] But monarch, to Montesquieu was a best system of executive. For Montesquieu the people's representatives are not fit to perform executive functions. But now this concept has undergone greater transformation and almost become an obsolete. Dominance of active monarchy is gradually vanishing all over the world. Now, executive in parliamentary system is a product of legislature. In this system ministers are chosen from the legislature and Nepal has adopted the same system. From this standpoint Nepalese constitution is not that much close to Montequieuan thesis. But from functional point of view, law making is a basic business of our parliament which was the notion accepted by Montesquieu. Our parliament also declares the general will of the people[167] as Montesquieu had said.

As we have already mentioned that from executive point of view, our constitution does not regard Montesquieu as an ideal. For him executive powers were to be in the hands of the monarch. But we have given executive power to the crown and council of ministers. Powers which can exclusively be exercised by the crown are few. HMK is bound to exercise most of the executive powers on the advice and consent of the council of ministers and other constitutional institution. From functional point of view the content of executive powers described by Montesquieu is almost similar to the executive power exercised by our executive.[168] Another contradiction with general notion of the doctrine in our parliamentary system is that the members of the legislature use to become the members of the executive. Similarly, delegation of legislative power to the executive and delegation of judicial power to the executive or quasi-judicial body seem to be conflicting with the notion. And it is not a typical case only of Nepal. Rather most of the democratic countries have arranged for delegation of power due to time and technicality constraint of the legislature and judiciary. In fact state system is considered as an organic system. Therefore, all the sub-systems can not be separated from the main system. Harmonic relation and coordination guided through constitutional system is unavoidable. The system really works in separation with checks and balances.[169]

4.6 Interim Constitution of Nepal, 2063 B.S.

The constitution is the supreme law of the country and all other laws are subordinate to it. Any laws inconsistent with the constitution are declared void to the level of their inconsistency. Since a constitution is the most authentic political and legal document of the land, it limits the power of government, protects people's rights and delegated power to different offices. The constitution is formulated with due regards to the people's rights and their will and the need of the nation. It reflects the characteristics and aspirations of the state. The constitution is essential to the preservation of people's rights and justice, to fulfill the wish of the people and to direct the nation to a specific goal. The following are the salient features of the Interim Constitution of Nepal 2063 BS.

Document of Political consensus: The constitution was formulated and promulgated as a political consensus reached between the then Seven Party Alliance (SPA) and the Maoist.

Formulated as per the popular wish: It was formulated as per the mandate expressed by people through the popular movement II for democracy, peace and progress of the nation. It is the first constitution to be promulgated by the people.

State power and sovereignty inherent in people: As laid in the preamble, the state power and sovereignty of Nepal is inherent in people.

The executive power inherent in the Council of Ministers: This constitution authorizes the Prime Minister, chosen by the legislature, as the chief executive. The President remains just a nominal head of state.

Establishment of secularism and republication: According to Article 4 of the constitution, Nepal is an 'independent, indivisible, sovereign, secular, inclusive and fully democratic state.' The fourth amendment of the constitution declared Nepal 'a federal democratic republican state.' The implementation of which was approved by the first meeting of the Constituent Assembly held on 15 Jestha 2065.

Unicameral legislative parliament: Originally, the interim constitution provided for a unicameral legislative parliament consisting of 330 members. The parliament was represented by the parties in the seven Party Alliance, the Maoists as well as some smaller parties. Later at the turn of 2064 BS, it was replaced by the 601-member elected Constituent Assembly that also acted as the legislative parliament.

Recognition of the National Human Rights Commission as a constitutional organ: According to the provision made, part 15 of the constitution, the National Human Rights Commission has been recognized as a constitution organ of Nepal.

Guarantee of more fundamental rights: This constitution of the first time in Nepalese History enshrines the fundamental rights such as Right against Untouchability and Discrimination on Caste, right regarding Environment and Health, Women's right, Right to Social justice, Children Rights and Right to Employment and security. We will Learn about their provisions in the next lesson.

Provision for the election to Constituent Assembly: As stated in the preamble of the constitution, this constitution was to work for until the promulgation of a new constitution and to function towards this specific missionary process of making a new truly democratic constitution.

The multi-party democratic system of government: This constitution provides for the competitive multi-party democratic system of government. In other words, the constitution enshrines the parliamentary democratic system of government in which a parliament member is the head of the Council of Ministers and the council is responsible to the parliament, so directly to the people.

CHAPTER -FIVE

SEPARATION OF POWERS & CHECKS & BALANCES IN THE CONSTITUTION OF NEPAL(2072)

All the discussion in previous chapters are supplement to this major chapter. To see these so-called two doctrines, viz., separation of powers and checks and balances in the present constitutional scenario of Nepal, it is necessary to understand the structural set up of state machinery and the functioning of them or the practice of theirs and the purposive achievement.

5.1 Structural Aspect

As most of the countries of the world our present democratic constitution also has three organs to drive state in a good track. Besides it has made provision of fine constitutional institutions. These all are to be described in detail. This aspect deals also with who involves how and in which wing.

5.1.1 The Legislature

Constitution has given much more importance on the main structure of the Federal Democratic Republic of Nepal shall be of three levels, namely the Federation, the State and the Local level[170] part-8 of the const. is related with the legislature and part 7,8 and 9 also are related. Art 83 reads that " There shall be a Federal Legislature consisting of two Houses to be known as the House of Representatives and the National Assembly, which shall be called as the Federal Parliament." HR includes 275 elected members by One hundred and sixty five members to be elected through the first
past the post electoral system, with one being elected from each
election constituency of one hundred and sixty five election
constituencies delimited in the country on the basis of geography
and population.[171] One hundred and ten members to be elected through the proportional electoral system where voters vote for political parties, with the
whole country being considered as a single election constituency.[172] This house is called lower house too. There is a provision of national assembly consisted or 59 members. Fifty six elected members consisting of at least three women, one Dalit and one from persons with disabilities or minorities, from each State by an electoral college composed of members of the State
Assembly, chairpersons and vice-chairpersons of the Village Bodies,
and Mayors and Deputy-Mayors of the Municipalities, with different
weight age of vote by members of the State Assembly, chairpersons
and vice-chairpersons of the Village Bodies, and Mayors and
Deputy-Mayors of the Municipalities, as provided for in the Federal
law.[173] Three members consisting of at least one woman nominated by the
President on recommendation of the Government of Nepal.[174] No one can be the member of both houses simultaneously.[175] If a question arises as to whether any member of the Federal Parliament is disqualified or has become disqualified under Article 87, the Constitutional Bench of the Supreme Court shall finally decide that question.[176] The President shall summon a
session of the Federal Parliament within thirty days of the declaration of final
results of the election to the House of Representatives. Thereafter, the President shall, from time to time, summon sessions of both or either of the Houses pursuant to this constitution. provided that the interval between the two consecutive sessions shall not exceed six months.[177] The President may prorogue the sessions of both or either of the Houses of the Federal Parliament.[178] If, during the prorogation or recess of the session of the House of Representatives, one-fourth of the total number of its members write a petition that it is desirable to convene a session or meeting, the President shall specify the date and time for such session or meeting. The House of Representatives shall meet or commence its session at the date and time so specified.[179] Except as otherwise provided in this Constitution, no question or resolution shall be presented for decision in a meeting of either House of the Federal Parliament unless one-fourth of the total number of its members are
present.[180] The President may address either a meeting of any House or a joint sitting of both Houses of the Federal Parliament, and summon the members for that purpose.[181] The President shall address the first session after election to the House of Representatives and a joint sitting of both Houses of the Federal Parliament after the commencement of the first session of each year.[182]

5.1.2 The Executive

Part 7 of the constitution has provided the executive. Art 74 reads that " The form of government of Nepal shall be multi-party, competitive, federal, democratic, republican, parliamentary form of government based on pluralism.'' The President appoints him as the PM who is leader of the party which commands a majority in the HR and constitutes the council of ministers under his chairmanship. The council of ministers consists of PM deputy PM, if required and such other ministers as it requires. These deputy PM and such other ministers as well are appointed upon the recommendation of the PM, amongst the members of parliament, by The President.[183] Art 76 (1) The President shall appoint the leader of a parliamentary party that commands majority in the House of Representatives as the Prime Minister, and the Council of Ministers shall be constituted under his or her chairpersonship.
(2) In cases where no party has a clear majority in the House of
Representatives under clause (1), the President shall appoint as the Prime Minister a member of the House of Representatives who can command majority with the support of two or more parties representing to the House of Representatives.(3) In cases where Prime Minister cannot be appointed under clause (2)no later than thirty days after the date of declaration of the final results of election to the House of Representatives or the Prime Minister so appointed fails to secure a vote of confidence under clause (4), the President shall appoint as the Prime Minister the parliamentary party leader of the party which has the highest number of members in the House of Representatives.
(4) The Prime Minister appointed under clause (2) or (3) shall obtain a
vote of confidence from the House of Representatives no later than thirty days
after the date of such appointment. (5) In cases where the Prime Minister appointed under clause (3) fails to obtain a vote of confidence under clause (4) and any member under clause (2) presents a ground on which he or she can obtain a vote of confidence in the House of Representatives, the President shall appoint such member as the Prime Minister. (6) The Prime Minister appointed under clause (5) must obtain a vote of confidence under clause (4). (7) In cases where the Prime Minister appointed under clause (5) fails to obtain a vote of confidence or the Prime Minister cannot be appointed, the President shall, on recommendation of the Prime Minister, dissolve the House of Representatives and appoint a date of election so that the election to another House of Representatives is completed within six months. (8) Procedures on the appointment of the Prime Minister under this Article must be completed no later than thirty five days after the date of declaration of the final results of election to the House of Representatives held under this Constitution or the date on which the office of the Prime Minister has fallen vacant. (9) The President shall, on recommendation of the Prime Minister, constitute the Council of Ministers comprising a maximum of twenty five Ministers including the Prime Minister, in accordance with the inclusive principle, from amongst the members of the Federal Parliament. Explanation: For the purposes of this Article, "Minister" means a Deputy Prime Minister, Minister, Minister of State and Assistant Minister. (10) The Prime Minister and Ministers shall be collectively responsible to the Federal Parliament, and the Ministers shall be individually responsible for the work of their respective Ministries to the Prime Minister and the Federal Parliament.

5.1.3 The Judiciary

Powers relating to justice in Nepal shall be exercised by courts and other judicial bodies in accordance with this Constitution, other laws and the recognized principles of justice.[184] There are three tiers of court, viz., supreme court, high court and district court. Besides these, special types of courts or tribunals, for the purpose of hearing special types of cases, can be established by law.[185] Supreme court is the highest court in the judicial hierarchy, it is a court of record.[186] The president appoints the chief justice of Nepal on the recommendation of the constitutional council and other judges of the supreme court, on the recommendation of judicial council. Including the chief justice and any other judges of the supreme court is removed from his office if, for reasons of incompetence, misbehavior or failure to discharge the duties of his office in good faith, the HR, by a two-thirds majority of the total number of its members, passes a resolution for his removal and the resolution is approved by The president. The remuneration, allowance, leave, pension, gratuities and other conditions of service of the chief justice and other judges of the supreme court is regulated by law.[187] Supreme court has the extraordinary power of judicial review and writs' power. But it can not interfere in the proceedings and decisions of the military court and of parliament if they are within their jurisdiction.[188] Any interpretation given to a law or any legal principle laid down by the supreme court in the course of hearing of a suit is binding on government of Nepal and all offices and courts.[189] In the same way there are High Courts and district courts place and jurisdiction of high court is determined by government of Nepal in counsel with the council of ministers.[190] There are two restrictions on parliament regarding the court. One is it cannot discuss on the matter of case which is under consideration in any court. Another is it cannot discuss about the act done by a judge in course of performance of his duty.[191] There is provisions relating to parliamentary hearings Parliamentary hearings shall be conducted as to appointments to the offices of the Chief Justice and Judge of the Supreme Court, members of the Judicial Council, chiefs and members of Constitutional Bodies, who are appointed on the recommendation of the Constitutional Council under this Constitution, and to the offices of ambassadors, as provided for in the Federal law. There shall be formed a fifteen-member joint committee consisting of members of both Houses of the Federal parliament, in accordance with Federal law. No member of the joint committee under clause shall practice law in the Supreme Court during that term of the Federal Parliament[192].

There is provision relating to vote of confidence and motion of no-confidence, The Prime Minister, while he holds office, may, whenever he is of the opinion that it is necessary or appropriate to obtain a vote of confidence from the members of the House of Representatives, table a resolution to that effect in the House of Representatives. The Prime Minister, if his or her party is fragmented or the coalition partner withdraws its support, to obtain a vote of confidence from the members of the House of Representatives, table a resolution to that effect in the House of Representatives within thirty days. A decision on a resolution tabled pursuant to clauses shall be made by a majority of the total number of members of the House of Representatives. One-fourth of the total number of members of the House of Representatives may table in writing a no-confidence motion against the Prime Minister: Provided that a no-confidence motion shall not be presented up to the first two years of appointment to Prime Minister and if a no-confidence motion fails, another motion cannot be tabled within a year of its failure. The name of the member proposed for Prime Minister should be mentioned when tabling the no-confidence motion according to the Prime Minister shall be deemed to be relieved of his or her office if the no-confidence motion tabled according to sub-article is passed by a majority of the total number of members of the House of Representatives. If the office of Prime Minister is vacant according to sub-article , the President appoints the proposed person as Prime Minister in the motion of no-confidence.[193]

At least one-fourth majority of the total number of the then members of House of Representatives can table motion of impeachment against the President or Vice-President on the charge of serious violation of the Constitution by him or her. If at least two-thirds majority of the total number of the then members of joint session of both Houses of Federal Parliament passes the motion, the President shall ipso facto be relieved of his or her office.

A motion of impeachment against the Chief Justice or any other Judge of Supreme Court, Judge of Constitutional Court, member of Judicial Council and Head or official of Constitutional Bodies may be moved by at least one-fourth majority of the total number of the then members of House of Representatives on the grounds of his or her incompetence, misbehavior or failure to discharge the duties of his or her office in good faith or his or her inability to discharge his or her duties because of physical or mental reason; and if the motion is passed by a two-thirds majority of the total number of the then members of joint session of both Houses of Federal Parliament, he or she shall ipso facto be relieved of his or her office. A motion of impeachment recommendation committee shall be formed in House of Representatives to recommend on charges of impeachment according to sub-article. Eleven members shall comprise of the committee formed according to sub-article. The committee formed according to sub-article shall recommend the motion of impeachment to the House of Representatives when the charges of serious violation of constitution, other the grounds of his or her incompetence, misbehavior or failure to discharge the duties of his or her office in good faith or his or her inability to discharge his or her duties because of physical or mental reason are proven with evidence by at least three members. Any official who has been removed from office by way of impeachment according to sub-articles shall not be entitled to gratuity or pension, and shall be ineligible to be appointed or nominated to any other public position. Other provisions related to impeachment motion shall be as provided by the laws[194].

In this way from structural point of view, our cons. is very much close to the Montesquieu point of view at least from judiciary point of view. Our judiciary is independent from executive and legislature. Members of the judiciary can neither become member of parliament nor cabinet at a time. All traditional judicial powers are vested in the courts and other judicial institutions. But in more technical and other professional areas, quasi-judicial functions are exercised by the executive authorities. It is due to demand of time, technicality and backlog of the regular courts. This is a system adopted not only by Nepal but by most of the democratic countries of the world. We find here, a separate parliament composed of representatives and noble person of society. The nature of our parliament is quite similar to the view of Montesquieu in this sense as he believed that the legislative functions of a state are to be performed by the representatives of the general public.[195] But monarch, to Montesquieu was a best system of executive. For Montesquieu the people's representatives are not fit to perform executive functions. But now this concept has undergone greater transformation and almost become an obsolete. Dominance of active monarchy is gradually vanishing all over the world. Now, executive in parliamentary system is a product of legislature. In this system ministers are chosen from the legislature and Nepal has adopted the same system. From this standpoint Nepalese constitution is not that much close to Montequieuan thesis. But from functional point of view, law making is a basic business of our parliament which was the notion accepted by Montesquieu. Our parliament also declares the general will of the people[196] as Montesquieu had said.

As we have already mentioned that from executive point of view , our constitution does not regard Montesquieu as an ideal. For him executive powers were to be in the hands of the monarch. But we have given executive power to the crown and council of ministers. Powers which can exclusively be exercised by the crown are few. HMK is bound to exercise most of the executive powers on the advice and consent of the council of ministers and other constitutional institution. From functional point of view the content of executive powers described by Montesquieu is almost similar to the executive power exercised by our executive.[197] Another contradiction with general notion of the doctrine in our parliamentary system is that the members of the legislature use to become the members of the executive. Similarly, delegation of legislative power to the executive and delegation of judicial power to the executive or quasi-judicial body seem to be conflicting with the notion. And it is not a typical case only of Nepal. Rather most of the democratic countries have arranged for delegation of power due to time and technicality constraint of the legislature and judiciary. In fact, state system is considered as an organic system. Therefore, all the sub-systems can not be separated from the main system. Harmonic relation and coordination guided through constitutional system is unavoidable. The system really works in separation with checks and balances.[198]

The Supreme Court ruled that Om Prakash Aryal v Office of the President & others Writ No. 073-NF-002, 073-NF-003 cases Lokman Singh Karki was found ineligible to head the Commission for Investigation of Abuse of Authority (CIAA) and annulled his appointment to the post of chief commissioner. Annulling a previous ruling by a division bench on the issue, the full bench of Justices Ishwar Prasad Khatiwada, Dr Aananda Mohan Bhattarai and Anil Kumar Sinha stated that Karki does not have the required experience and the moral standing to hold the position. Article 119 (5) of the Interim Constitution has a provision of appointing as chief commissioner of the CIAA only a person with at least 20 years of experience in the field of either accounting, revenue, engineering, law, development or research and is also a distinguished person, but the Constitutional Council had ignored the article in question. "It is apparent that the Constitutional Council did not bother whether Karki had the required experience and moral standing in line with Clause 5 (C) of Article 119 of the Interim Constitution, his tenure in the Royal Palace Service could not be counted as experience in the field of accounting, revenue, engineering, law, development or research," states the brief court ruling. Likewise, the full bench said that Karki lacks high moral standing and he could not be considered a distinguished person. "On the basis of the Rayamajhi Commission's report and the government's move to seek clarifications from Karki to sack him from his position in the civil service, he could not be considered a person with high moral standing or a distinguished person," reads the court ruling. This is the first time that a head of a constitutional body has been removed by the Supreme Court.

The Supreme Court refused to issue an interim order on advocate Tika Dhwoj Khadka V Office of the Council Priminister & others Writ No. 073-WO-483 cases filed against the registration of the constitution amendment bill. Refusal by the division bench of Chief Justice Sushi Karki and Justice Ishwar Prasad Khatiwada means that there is no legal hurdle if government proceeds with the bill.The SC said the Parliament still had opportunity to reach a logical conclusion after testing whether or not the constitution amendment bill was in conformity with the constitution and whether or not the bill's justification was proven. The parliament has the power to take appropriate decision on the constitution amendment bill after testing its justification. If a law is made in violation of the constitution, such a law cannot get validity. This court will be in situation to declare such a law ultra vires through judicial review but this does not mean that an order should be passed to prevent the Parliament from using its wisdom, the SC observed. "Therefore, on the basis of above mentioned contexts, grounds and reason, it is not appropriate to issue an interim order as demanded by the petitioners," states the SC order. The bench observed that as per Article 274, any bill relating to a revision in the boundaries of the province should be sent to the concerned provincial assembly within 30 days of its registration and if that bill was rejected by the concerned assembly, such a bill would be inactive. It further observed that according to Article 296(1) the CA had been transformed into Legislature Parliament and as per Article 296(3) transformed Parliament would have to function as federal Parliament till Parliamentary elections were held. The SC also stated that as per Article 296(4) The Parliament would have the authority to enact laws relating to Schedule 6 but such acts would be inactive on year after the concerned provincial assembly was formed. The bench observed that since the Legislature Parliament was a transformed structure of former constitution assembly, it could be hoped that the Parliament was sensitive and mindful towards the spirit of the constitution, its values, norms and objectives.

5.2 Functional Aspect:

In articulation of Montesquian intention about to the demarcation of his three groups of functions is already mentioned in second chapter. He made no nice analysis of governmental power.[199] Eventhough we can mention some major functional division on the basis of traditional experience and we can evaluate whether the constitutional division and coordination have achieved the practical success as its anticipation or not.

Montesquieu meant, from legislative function is to discuss the public affairs because the legislative power is activity of declaring the "general will of the state." Another important function is to make laws.[200] Although Nepalese parliament is in the category of strong parliaments of the world for the purpose of law making,[201] it has put some restrictions on parliament. From the separation of powers point of view it may not be improper to mention them, parliament can not make such laws.

By executive power Montesquee meant only the power of executing matter falling within the law of nations i.e., making war and peace, sending and receiving ambassadors, establishing orders and preventing invasion.[202] "Executive Power" he includes both domestic and foreign affair. Executive is that of executing the public resolutions. It (executive power) directs the army and navy.[203]

The judicial power of deciding civil and criminal cases was considered by Montesquieu to be the most frightening governmental action. He seems to have believed that normally executive power couldn't harm a person's life, liberty or property until after a judicial decision.[204] It means the final interpreter of law is not executive but the court.

What are the functions and privileges every organ has? How much right one can use while functioning? The guideline of those things can be found in the constitution but indeed it can not be fully known until it is interpreted. The realistic school of jurisprudence also says the same. Our court too has enlightened the major functional aspect of each organ through the decisions in various cases. It is right to authorize the judiciary in interpreting laws. Because our constitution has intended to establish rule of law.[205]And actually the essence of rule of law is the competency of court and prohibition of the misuse of governmental discretionary power. For the smooth transaction of rule of law court balances two necessities: necessity of fair and competent administration and necessity of protection of citizen from arbitrary govt.[206] Moreover, it also prohibits the misuse of parliamentary discretionary power.

A landmark decision of supreme court is here on the functional debate of legislature and the judiciary. It has been said that supreme court never brings the legislature (Rastria Panchayat) in unnecessary disputes and there is no needfulness to do so. They have there own area of working, fixed by the constitution, both have to follow their duty with self-restrains.[207] A constitutional organ, like Rastriya Panchayat itself has to understand its limitations and perch within it. If it tries to over cross the boundaries, the final interpreter of the constitution must show the right track. The final interpreter of law, no matter whether it is a general law or constitutional law, is supreme court. The function of the legislature is to legislate not to interpret. If we accept the authority to render is the right of Rastria Panchayat, it will render the constitution aggrandizing its privilege.[208] Accentuating court's own jurisdiction it has been said that actually it is not necessary to mention literally in law that the authority to explain law is of the court because it is a tacit and inherent right of the court.[209]

In a previous chapter we have mentioned that the dissolution recommendation power of executive has made it superior than the legislature structurally[210] but functionally, as interpreted by the court, the legislature has been made more powerful. It has been said that PM can recommend for dissolution to receive new mandate[211] or in conclusion[212] but this right is not uncontrolled. There are implicit conditions to control or to hold this right within a parameter.[213] This verdict has expressed condition too saying that PM's right for the recommendation of dissolution may be more important and more specific but it will be against the spirit of constitution to use it escaping from the responsibility to the HR and making the proposal of vote of no confidence vain.[214]Because the purpose of giving such right to PM is not intended to make the right of HR ineffective or to irrespect the spirit of accountable government system.[215]

In its judgements supreme court itself has determined its jurisdiction. If PM recommends for dissolution showing the political reason, the court can not enter there. Because according to the doctrine of separation of powers the court can not penetrate in the sphere of political reason's reasonableness or abundance[216] Constitution has conferred to the executive the right of making the final decision of the dissolution of the HR. Considering the political and economic matters as well as sine qua non and propriety of the dissolution the executive may use this right. Therefore in such matters the interference of court, using its reasoning and decision will be inconsistency with the constitution.[217]

The concept of political question is not the concept defined by the const. or by law to limit court's jurisdiction but it is the theoretical concept developed by the court itself. The only purpose of it is to stop the unnecessary conflict and collision among constitutional organs and to give them independence to consume the right concerning their jurisdiction. It doesn't mean that the court is indifferent towards the considering disputes in court related to the decisions made by the executive or legislature. Supreme court is the final interpreter of the constitution and other laws. Determination of authorities conferred to various constitutional organs by the const., test of the constitutionality of any work done by such organs, institutions or officials and protection of the constitution through stopping every organ from the usurpation in the function and rights of another are the duties of supreme court. Such kind of usurpation must be happened going beyond the legal determination.[218]

Supreme court has defined the power and immunities of government of Nepal which is provided in art 128. Even a single act done by Govt. on recommendation can not consume the privilege of art 128, rather, such kind of work must bring under the jurisdiction of judicial review. Otherwise if any illegal recommendation made by any organ, institution or official, is accepted by Govt., it remains for ever and we never can challenge it. And there will be no use of the constitutional provisions which enforce written const., determinate the jurisdiction and limitation of various constitutional organs by adopting the theory of separation of powers and which examine whether those provisions have been obeyed and which confer accordingly the right to the judiciary to get those provisions obeyed.[219]

Constitutional organs are not succeeded in functional aspect. Abuse of authority investigations commission is strengthening by the supreme court decision[220] but it is not succeeded in controlling the corruption. Auditor general have able to do nothing except to report. And a latest decision of supreme court has made it and to the public account committee lame. In the case of Surya Tobaccos Company, it was obviously seen by public account committee, while discuss sing Auditor General's annual report, that this company's production quantity was not as much as the quantity of raw material (tobaccos) but according to law it had to be. So, public account committee had directed to collect dues of the production tax. But this direction was decided to be straight violation of law by supreme court through the order of certiorari. And this decision compelled these constitutional organs, viz.; public account committee, an integral part of the parliament, and Auditor General, to remain under the production tax department and under the ministry of finance. It has been said that this decision has limited the jurisdiction of the committee and made finance Act 2049, 2050, and 2051 unenforceable without making them void.[221] Public service commission is functioning better than the others. It is conducting examinations for the selection of suitable candidates to be appointed to civil service posts. Election commission has been seen totally unsucceeded in its purpose because when the election comes and goes, this organ can neither have the appreciation nor the ingratitude. Government is thought to complete elections and actually election commission has only become a media but all the manpower is borrowed from the executive or from the judiciary. This commission has existed only in name but the election is being held by the government itself. Attorney General too is not working to uplift personal security. This institution is returning back from criminal or from any cases in which the govt. is the plaintiff in the name of political cases and not only supporting crimes but also advocating for them from the side of the party which is working as an executive. It is an institution having very much prejudice.

5.3 Purposive aspect:

Hitherto we have discussed about the structural and functional implementation of these so called two doctrines. under this title we try to canvass whether our constitution is succeeded to achieve the goal of the doctrine or not. We must inspect this aspect because actually Montesquieu was not in search of separation of powers but he was in search of people's liberty and their happiness. It is another matter that he thought this doctrine to be the expedient. That might be other doctrine like parliamentary democracy, multi party democracy or constitutional monarchy but he thought the doctrine of separation of powers was the device to get his purpose. What we are trying to prove, here, is that the purpose of the doctrine is more important than the doctrine itself.

One objective of separation of powers according to Montesquieu was to enhance rule of law. From this standpoint, Nepalese constitution has no contradictions with Montesquieu. The concept of 'Rule of law 'and "competent and independent judiciary " are some basic spirits (features) of our constitution. These values are even outside the purview of the legislature in the sense that the legislature also can not curtail such values adopted in the constitution.[222] Constitution of the kingdom of Nepal has given high priority to the concept of rule of law. Montesquieu had said "liberty is the right to do all that the law permits" This concept is clearly related to both liberty and rule of law. In this context we can say that no person is above the law and people are able to do everything what the law permits. Furthermore, in Nepal, natural persons are entitled to do everything what the law does not forbid or prohibit. In a system of liberty with rule of law, the govt. must be in such a position that one citizen need not fear of another. This was one of the other objectives of separation of powers to the father of separation of powers. From this point of view Nepalese constitution is liberal. Different rights and liberties are guaranteed by the constitution to the citizens, persons and communities. People can enjoy respectful life exercising those rights. Whether any of the rights of the citizens are infringed by another person or even by the powerful executive they are entitled to give write petition before the supreme court. Right to access to the court itself is a fundamental right. Constitution has provided for competent and independent judiciary to deliver justice so that people could live fearlessly. Liberty, equality and independent and competent system of justice, rule of law and basic human rights are basic values of the const.[223]

Our const. has accepted the theory of limited govt.[224] parliament and the court have played an important role on the process of making the govt. responsible. Mostly works, against people, may be happened by the executive. That's why parliament and judiciary hold control over it through their own process. Sovereignty is vested in the people and the source of all powers are the people. Neither they can be elected nor can they form the govt. who work against the interest of the people. In essence people are governing and being governed themselves through the means of election.

CHAPTER-SIX

FINDINGS, CONCLUSION AND SUGGESTIONS

6.1 Finding of the Study

The principle of separation of powers cannot be applied in strict sense in any modern Government, either in U.K., U.S.A., France, India or Australia. But it does not mean that the principle has no relevance now a days. Government is an organic unity. It cannot be divided into water tight compartments. History proves this fact. If there is a complete separation of powers, the government cannot run smoothly and effectively. Smooth running of government is possible only in co-operation and mutual adjustment of all the three organs of the government. Prof. Garner has rightly said, “the doctrine is impracticable as a working principle of Government.” It is not possible to categorize the functions of all three branches of Government on mathematical basis. The observation of Frankfurter is notable in this connection. According to him “Enforcement of a rigid conception of separation of powers would make Government impossible.”

It is reality that the doctrine of Montesquieu is not merely a myth it also carries a truth, but in the sense that each organ of the Government should exercise its power on the principle of "Checks and Balances” signifying the fact that none of the organs of Government should usurp the essential functions of the other organs. Professor Laski has aptly remarked: “It is necessary to have a separation of functions which need not imply a separation of personnel.”

The separation of powers of the three organs of government is a core characteristic and prerequisite of a democratic government. It should be there if political liberty is to be achieved because if the Legislative and Executive power are united in the same person or body of Magistrates, there could be no liberty in the same way that if the judiciary power was not separated from the Legislative and the Executive, the life and liberty of the subject could be exposed to arbitrary control for the Judge would then be the Legislature and where it joined to the Executive however, the Judge may behave with violence and oppression. However, though the separation of powers is a core characteristic and pre-requisite of democratic government, the mere separation of the powers of government cannot on its own secure democratic governance. It is cardinal that the three arms of government interact in such a way those they through the ideas of checks and balances; prevent each other from abuse of power. From what has been discussed the doctrine of the separation of powers does not seem to be attaining its general application in Nepal. It has been shown that the Executive has steadily risen in authority relative to the other two branches and the others, in such an environment, to effectively and meaningfully check, the Executive have to be manned by people with strength of character, and activist attitude and creative with a strange bias to upholding democratic values, and respect and protection of human rights. However, it is usually the case that such personnel are not found. As a result it is not strange to have representatives and Justice actively safeguarding undemocratic regimes and even clothing them with legitimacy. Therefore, the mere presence of a system of separation of powers in a constitution of a country is not a guarantee that democratic governance would prevail. Though the inference that the doctrine of separation powers has not achieved its general application in Nepal is correct, that is not to say that it has completely not been applied because in some instances, generally speaking, it has been realized.

6.2 Conclusion of the Study

Our present constitution, i.e. The constitution of Nepal is more democratic than the previous were. And this constitution's one, among many, important characteristic is that it has adopted the doctrine of separation of powers.

Structurally our constitution has emphasized on the independence of judiciary because including other Provisions it has provided separate council for the recommendation of the appointment of judges. Provision relating to parliamentary hearings also check the independent of judiciary. Other heads and members of the constitutional institutions too are appointed through the same process but except public service commission other such institutions are not seem to be reliable, but why? This question arises naturally. The main reason to be so is that these institutions themselves are not willing to be free from the executive. Means, structurally they're tried to keep as independent as the court is but functionally they don't want to be independent and the govt. too hasn't created such environment. Except the judiciary, other institutions neither have their own bureaucrats nor the executive furnished adequate economic source to them. Thus they have to be dependent on executive for manpower and finance, the major basic powers to make one (organ) independent. In the same way the legislature also is not being helpful towards them while framing laws (laws for them are not strong). The attorney general itself is the post to be appointed on the basis of political creed.

Economic incompetence of judiciary is taken as a barrier for the independence of the judiciary. But functionally this organ is not dependent upon any other organ. It is so independent that nowadays, it has to face the acquisition of being discretionary which word is for the superlative degree of independence. In the cases Annapurna Rana and Surya Tobacco Company, the decisions were criticized on such basis. In the decision of the second case, there a propose had arisen that the parliament has to create another institution to review the wrong decisions of the supreme court and it has to start working seriously to keep the judges' conduct in record. Again in constitutional council there becomes the preponderance of that party which has the majority seats in the parliament. That's why there can be shown doubt even in the judiciary but as far as the impartiality of the judiciary is concerned except few cases there is more examples which have come in dispute. It meant, this organ has succeeded in keeping its impartiality.

Theoretically the judiciary had to play vital role to achieve the purpose of the doctrine which we're describing here, and our judiciary too is doing so. Putting forward only some exceptions we can't deny the role played by the judiciary for the security of people's life and property declaring unconstitutional laws and unlawful works void. But it's not that reform is not needed.

Except the judiciary other organs, viz., legislature and executive are as they are like a compound. There are same persons at the same time in the legislature and in the executive. So it is obvious that there is not personal separation of powers. Govt. composes as an executive but it has been made obligatory that the member of council of ministers must be the member of parliament. If we examine these organs in their functional perspective we find that our executive and the legislature together are not authorized to make laws and to execute them. what is intended to say is that the same body can not act both functions of law making and of executing. Only the legislature carves the laws and only the executive executes them. The national powers are divided in three bodies legislature to make law judiciary to interpret it and executive to execute. In this way we've applied this doctrine of separation of powers in functional basis.

The judicial works doing by the executive through the quasi-judicial bodies, law making work doing by it through rules, judicial and executive works doing by the legislature through the process of taking action in contempt of parliament, law making work doing by the judiciary through precedent seem to be arrogation in the area of others. But such overlapping are, actually, the incidental powers of the authorized organ and to use such powers by other organ is not thought to be violation of the doctrine of separation of powers.

6.3 Suggestions of the Study

Authority of the executive to dissolve the HR, authority of legislature to dissolve the executive and to impeach judges, authority of the judiciary to declare the works of the legislature and of the executive void seem to be the causes to paralyze those rights of every organ which are given for their independence in working. But the actuality is not like that. These are the special but necessary provisions to limit the monopoly of each organ in some extent and to prevent discretion (of it). And we can not say them to be adverse with the doctrine. As per the philosophy of checks and balances, which is incorporated in our constitution, executive and the legislature have used the check system against each other in practice through dissolution of HR and vote of no confidence motion but the legislature hasn't used such system versus the judiciary. That's why we must presume that the judiciary hasn't need check for the power balance till now, it hasn't gone beyond its jurisdiction.

In this way our present constitution's separation of powers resembles with the above concept. Nepalese people are consuming full liberty through it. But we must have patience for coming days, especially regarding constitutional institutions. Political immorality and culturelessness are going to make such organs dependent instead of self -reliance. As the third parliamentary election is going to be held to discuss about the election commission is relevance. We don't ask this commission for election. It is the commission established only to conduct elections but unfortunately we don't ask it, we don't discuss with it for the election. Every govt. claims that it is going to make the election fair and the opposition always says that it will not be fair because the govt. is not good. We never discuss about the commission. It has remained in the shadow of the executive. These who are in govt. themselves are giving unnecessary and far effective statements. Irresponsible statements of political leaders develop such thing which will definitely be adverse to the doctrine of separation of powers because there always use to be such provisions in the written constitution of the democratic parliamentary system, especially with regards to the governing system which provisions tend to be in accordance with the practice in which they are put. In such provisions the court too cannot interfere. Political constitutionalism should provide them with a definite direction. Political constitutionalism is as much important as legal constitutionalism. If we fail to make the first one balanced and ideal, and keep on mispractising it, it may cause the degeneration of not only the doctrine of separation of powers but also all other theories adopted by the present constitution.

BIBLIOGRAPHY

Constitutions

Constitution of India.

Constitution of Nepal, 2019 B.S.

Constitution of Nepal, 2072.

Constitution of the Kingdom of Nepal, 2015 B.S.

Constitution of the Kingdom of Nepal, 2047 B.S.

Constitution of U.S.A.

Interim Constitution of Nepal, 2063.

The Interim Government of Nepal Act, 2007 B.S.

Books

ARISTOLE, THE POLITICS, (Translated by H. Rockham, The Loeb Classical Library,Cambridge: Harvard University Press (reprint 1990).

AW BRADLEY & KD EWING, CONSTITUTIONAL AND ADMINISTRATIVE LAW (2001).

BAILYN, B, THE IDEOLOGICAL ORIGINS OF THE AMERICAN Trident Press ltd. London,(2008).

BARON DE MONTESQUIEU, THE SPRIT OF THE LAWS. Canadian Heritage Portfolio, (1966).

BARWICK, G, SIR JOHN DID HIS DUTY, Serendip Publications, Sydney, (1984) .

Basu Durga Das, Administrative law. Kamal Law House Calcutta. Globovision (2006).

Dahal, Kashi Raj, Constitutional Law, Ktm:Pairavi publication, (1992).

Dhungel, SP. Adhikari, Bipin, bhandari BPand Murgatroyd Chris, Commentrary on the Nepalese Constitution. Delf Lawyer's inc. Kathmandu(1998).

ECS WADE ET AL, CONSTITUTIONL AND ADMINISTRATIVE LAW (Londo, ELBS and Lougman Group, (1978).

El tema: Commentaries on the Laws of England in Four Books Vol 1 (7 ed 1775).

Freedeal, Nepalese Constitutional law, Kathmandu:jagadamba Press, (2054)

Hamal, Rejesh and Dulal, Tanka, Constitutional Law. Kathmandu: Srijana Printers,(1992).

HARVY AND BARTHER, THE BRITISH CONSTITUTION,(4^th ed.1980).

Hawa Sisay. The Executive: Checks and balances at ( Cambridge: The Belknap Press of Harvard University Press, (1967).

Jennings, Ivor, The law and the Constitution (1992).

JENNINGS,IVOR, THE LAW AND THE CONSTITUTION, (5^thed.1976) . JOHARI,J.C.,COMPARATIVE POLITICS, (1986).

KAGZI ,MANGAL CHANDRA JAIN THE INDIAN ADMINISTRATIVE LAW New Delhi: metropoliton Book Co. P..Ltd. (1982).

LOCKE, JOHN. TWO TREATIES OF GOVERNMENT VOL II,(1690),

MADISON, THE FEDERALIST NO.48(1787)

MONTESQUIEU, L'ESPRIT DES LOIS, Book vi. ch.vi vol. I, (2^nded ; Date).

Mulenga,G.C. The Juristic and Constitutional Implications of Party Membership on the theory of practice of representative Government. 1995.

NWABUEZE B.O., CONSTITUTIONLISM IN EMERGENT IN EMERGENT STATES (1973).

PHILIP AND JACKSON, CONSTITUTIONAL AND ADMINISTRATIVE LAW, (6 ^th ed. 1948).

PHILIPS, O. HOOD & PAUL JACKSON, CONSTITUTIONAL AND ADMINISTRATIVE LAW, 10(6^th ed. 1985).

RAJESH HAMAL & TANKA DUlAL, CONSTITUTIONAL LAW, (1^sted. 2049).

REPORT OF THE COMMITTEE ON MINISTER' POWERS Cmd.4060, (1932),

REVOLUTION(ORIGINS), Cambridge: The Belknap Press of Harvard University Press, (1967).

THE RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE, College WILLIAMS B. GWNYN, THE SEPERATION OF POWER AND MORDERN FORMS FORMS OF DEMOCRATIC GOVERNMENT: SEPRATION OF POWRRS- DOES IT STILL WORK, 72(1986).

W. Bagehot, The English Constitution, Collins London: (Fontana edn). (1963)

WALKER, DAVID M.THE OXFORD COMPANION TO LAW, clarendon press:Oxford (1980) .

Wolff ,H. K. and P.R. Pant (4^thed. 2005). Social Science Research and Thesis Writing. Kathmandu: Budhha Academic Publishers and Distributors Pvt. Ltd. (2005).

Articles

Ahern, M.J., ‘The Machinery of Government in Queensland’, Australian Administration, 3(2) 24-25,(Spring 1988).

PURNA MAN SHAKYA,CONSTITUTIONAL DEVELOPMENT OF NEPAL(Unpublished article) .

BIBLIOGRAPHY

Constitutions:

Constitution of India.

Constitution of Nepal, 2019 B.S.

Constitution of Nepal, 2072

Constitution of the Kingdom of Nepal, 2015 B.S.

Constitution of the Kingdom of Nepal, 2047 B.S.

Constitution of U.S.A.

Government of Nepal Act, 2004 B.S.

Interim Constitution of Nepal, 2063

The Interim Government of Nepal Act, 2007 B.S.

[1] NWABUEZE B.O., CONSTITUTIONLISM IN EMERGENT IN EMERGENT STATES at 10 (1973).

[2] Id.

[3] AW BRADLEY & KD EWING, CONSTITUTIONAL AND ADMINISTRATIVE LAW at 84 (13^thed.2001).

[4] Blackstone, Commentaries on the Laws of England in Four Books 7 ed (1775) Vol 1 at 146.(1775)

[5] JOHN LOCKE, THE SECOND TREATIES OF GOVERNMENT ( J.W. Gough ed.) at 15 (1966)

[6] Id.

[7] BARON DE MONTESQUIEU, THE SPRIT OF THE LAWS at 150 (1966).

[8] M.J. Ahern, ‘The Machinery of Government in Queensland’, Australian Administration, 3(2) 24-25,(Spring 1988).

[9] ARISTOLE, THE POLITICS, at (Translated by H. Rockham, The Loeb Classical Library, Cambridge: Harvard University Press.1944)(reprint 1990).

[10] Bagehot, W. The English Constitution, Collins London: (Fontana edn). at 58(1867)

[11]BAILYN, B, THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION(ORIGINS), ( Cambridge: The Belknap Press of Harvard University Press, at 67 (1967)

[12] BARWICK, G, SIR JOHN DID HIS DUTY, at.34( Serendip Publications, Sydney, 1984) .

[13] Bagehot, The Theory and Practice of Government at 20.(1949)

[14]Hawa Sisay. The Executive: Checks and balances at 41 ( Cambridge: The Belknap Press of Harvard University Press, 1967)

[15] O. HOOD PHILIPS & PAUL JACKSON, CONSTITUTIONAL AND ADMINISTRATIVE LAW, at 10(6^th ed. 1985).

[16] M.C. MUSAMBACHIME, THE ROLE OF POLITICAL PARTIES IN ELECTRICAL SYSTEM IN THE ROAD TO DEMOCRACY, 1(1998).

[17] BARWICK, G, SIR JOHN DID HIS DUTY,Serendip Publications, Sydney, at.34 (1984) .

[18] B.SHIVA TAO, THE FRAMING OF INDIAN CONSTITUTION:SELECT DOCUMENTS, VOL IV, at 944(1994)

[19] WILLIAMS B. GWNYN, THE SEPERATION OF POWER AND MORDERN FORMS FORMS OF DEMOCRATIC GOVERNMENT: SEPRATION OF POWRRS- DOES IT STILL WORK, at 72(1986).

[20] ALLADI K. AYYAR, CONSTITUTION AND THE FUNDAMENTAL RIGHTS,at 835(1992)

[21] Walter Bagehot, English Constitution at (25-27), 1872

[22] Freeman, Growth of the English Constitution, at 109 (1872)

[23] Id.

[24] Id.

[25] Enid Campbell, Parliamentary Privileges in Australia at 9(1966)

[26] Id.

[27] Id.at 23.

[28] G.A.Regulation(herein after regulation), The role of Political Parties in Democracy system in the Road to Democracy. at 756 (1976)

[29] Campbell,Supra note 25 at 4.

[30] Bagehot, Supra note 21 at 16.

[31] D.D. Basu: Introduction of Constitution of India, at 2. (1987)

[32] G.C. Mulenga. The Juristic and Constitutional Implications of Party Membership on the theory of practice of representative Government. at 134 (1995)

[33] Id. at 77.

[34] MCLLWAIN, CONSTITUTIONALISM, ANCIENT & MODERN, AT 146 (1958)

[35] Id.

[36] Basu,Supra note 31 at 15

[37] H. K. WOLFF AND P.R. PANT. SOCIAL SCIENCE RESEARCH AND THESIS WRITING. Kathmandu: Budhha Academic Publishers and Distributors Pvt. Ltd. at 39. (4^thed. 2005).

[38] Id.

[39] BLACK JR, The People and The Court; Judicial Review in a Democracy at (362-365)(1960)

[40] Id.

[41] Id.

[42] HARVY AND BARTHER, THE BRITISH CONSTITUTION, at 5 4(1980).

[43] HILAIRE BARNETT, CONSTITUTIONIONAL AND ADMINISTRATIVE LAW, at. 117. (1991)

[44] DAVID M. WALKER, THE OXFORD COMPANION TO LAW, clarendon press:Oxford at 63(1980).

[45]Id.

[46] THE RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE, College Edition. at 374(1979)

[47] WALKER, supra note 44.

[48] J.C. JOHARI, COMPARATIVE POLITICS, at 526. (1986).

[49] FREEDEAL, NEPALESE CONSTOTUTIONAL LAW, at 214-215 (1987)

[50] PHILIP AND JACKSON, CONSTITUTIONAL AND ADMINISTRATIVE LAW, at 14 (6 ^th ed. 1948).

[51] WOLFF AND PANT, supra note 37 at 2.

[52] Lila Bahadur Basnet, Concept of the doctrine of separation of powers in the context of the constitution of the kingdom of Nepal, 15 ESSAYS ON CONSTITUTIONAL LAW, at 43 (2050).

[53]Id.

[54] JOHN LOCKE,TWO TREATIES OF GOVERNMENT VOLII,Ch XII See also H.RGGREAVES, LOCKE AND THE SEPARATION OF POWERS ; POLITICA, VOL I at .90-112 (1690),

[55] REPORT OF THE COMMITTEE ON MINISTER' POWERS at.8. (1932)

[56] IVOR JENNINGS, THE LAW AND THE CONSTITUTION, at 20-21 (1976) .

[57] Mohan Banjade, Separation of Power:Montesquieu's thesis and Nepalese constitutional persatective, 25 ESSAYS ON CONSTITUTIONAL LAW , at 62(1996 )

[58] Id.

[59] RAJESH HAMAL & TANKA DUlAL, CONSTITUTIONAL LAW, at.30 (1^sted. 2049).

[60]Sisay,Supra note 14, at 21-22.

[61] MONTESQUIEU, L'ESPRIT DES LOIS, Book vi. ch.vi 2^nded ;vol. I,at.220 (1983)

[62]Sisay,Supra note 14, at.22

[63] Id. at 61.

[64]JENNINGS, supra note 56 at 119.

[65]MANGAL CHANDRA JAIN KAGZI ,THE INDIAN ADMINISTRATIVE LAW (1982),New Delhi, metropoliton Book Co. P..Ltd. at.15 (1958)

[66] THE LAW AND THE CONSITUTION, cambridge university press15^th at.217.(1958)

[67] ECS WADE ET AL, CONSTITUTIONL AND ADMINISTRATIVE LAW (London, ELBS and Lougman Group, at 45-6. (1978)

[68] PHILIPS & JACKSON,supra note16, at 59-60.

[69] NWABUEZE supra note 2 ,at 120.

[70] DURGA DAS BASU, ADMINISTRATIVE LAW, 3rd ed. at.3 (1985)

[71] Kilbourn V.Thompson , 103 US . 168,190(1881) & Satinger V.Philipine Islands, 103 US.168,192(1982).

[72] A.G.of Austria v. Boilermakers'society, 2,All E.R. 45(P.C.) (1957)

[73] G.A.Regulation, supra note 28 at 24-25.

[74] Id.

[75] KAGZI ,supra note 65

[76] Regulation, supra note 28 at 25

[77] MADISON, THE FEDERALIST NO. 48. at 387. (1787)

[78] Id.

[79] MUSAMBACHIME, Supra note 16, at 53.

[80] Id.

[81]LOCKE,Supra note 5, at 23

[82] ROSTOW,Supra note 39, at 388

[83] Kilbourn V.Thompson , Supra at 71.

[84] A.G.of Austria v. Boilermakers'society, 2,AllE.R. 45(P.C.) (1957)

[85] Jackson, The supreme Court in The American System of Government at 23 (1965)

[86] Id.

[87] Thayer, The origin and Scope of the American Doctrine of Constitutional law, at 129 (1889)

[88] SCHWARTZ,CONSTITUTION OF THE UNITED STATES VOL.I,at.115, at 23 (1963)

[89]MUSAMBACHIME, Supra note 15, at.27.

[90] BLACKSTONE COMMENTARIES,at 69(1808)

[91] P.N.BHAGWATI, Judicial Activism and Public Interest Litigation at 79 (1985)

[92] GRAY,THE NATURE AND SOURCES OF THE LAW at 84(1931)

[93] Halsbury,4 ^thed. ,Vol 1 para 5,vol.8 para.813,Hood phillips,CONSTITUTIONAL AND ABMINISTRATIVE LAW (1978),at.31,wade and phillips (1970) ,at.32, de Smith at 40(1973)

[94] Id.

[95]ABRHAM, THE JUDICIARY:THE SUPREME COURT IN THE GOVERNMENT PROCESS at 326 (1977)

[96] Policy Making in a Democracy: "The Role of U.S. Supreme Court", JI. of Public Law, 275-508, (1957)

[97] A.K.Jain v. Union of India, AIR 1970 SC 267:(1970)

[98] Khazan Singh v. State of Uttar Pradesh, AIR 1974 SC 669:(1974)

[99] Indira v. Rajnarain, A.1975 SC 2299(1975)

[100] PURNA MAN SHAKYA,CONSTITUTIONAL DEVELOPMENT OF NEPAL(not published article)

[101] GOVERNMENT OF NEPAL ACT. Art.22, 2004(B.S.)

[102] GOVERNMENT OF NEPAL ACT Art.53.2004(B.S.)

[103] GOVERNMENT OF NEPAL ACT Art.49,53,51

[104] GOVERNMENT OF NEPAL ACT Art.53,2004(B.S.)

[105] GOVERNMENT OF NEPAL ACT Art.54,2004(B.S.)

[106] GOVERNMENT OF NEPAL ACT Art.62 &65,(B.S.)

[107]The Interim Government of Nepal Act, Section 22(1) (1951)

[108]The Interim Government of Nepal Act, at art 30 (1951)

[109] Interim Government of Nepal Act, at art.25(1)(2) (1951)

[110] The Interim Government of Nepal Act, at art 30 (1951)

[111]The Interim Government of Nepal Act, at art 31(1951)

[112] The Interim Government of Nepal Act, at art 32 (1951)

[113]The Interim Government of Nepal Act, at art 32 (1951)

[114] The Interim Government of Nepal Act, art.32(1) (1951)

[115] KASHI RAJ DAHAL,CONSTITUTIONAL LAW (Pairavi Publication I^st ed. at72 ( 2049 B.S.).

[116] The Interim Government of Nepal Act, at art.23(1) (1951)

[117] The Interim Government of Nepal Act, at art.60,64,65,69(1) & 69(2) (1951)

[118] The Constitution of Nepal Article 10(1) (1951)

[119] The Interim Government of Nepal Act, at art.12(1) (1951)

[120] Constitution of the Kingdom of Nepal. at art, 13(1)(3),(1951)

[121] Constitution of the Kingdom of Nepal. at art, 12(2),(1951)

[122] Constitution of the Kingdom of Nepal at art, 13(5), (1951)

[123] Constitution of the Kingdom of Nepal. at art, 13(5), (1951)

[124] Constitution of the Kingdom of Nepal. at art, 18, (1951)

[125] Constitution of the Kingdom of Nepal. at art, 19(1), (1951)

[126] Constitution of the Kingdom of Nepal. at art, 22(2)(4),(1951)

[127] Constitution of the Kingdom of Nepal. at art, 42, (1951)

[128] Constitution of the Kingdom of Nepal. at art, 57(1) (2) (4) (b), (1951)

[129] Constitution of the Kingdom of Nepal. at art, 9, (1951)

[130] Constitution of the Kingdom of Nepal. at art, 55, (1951)

[131] Constitution of the Kingdom of Nepal. at art, 55(1) b, (1951)

[132] Constitution of the Kingdom of Nepal. at art,59 & 61, (1951)

[133] Constitution of the Kingdom of Nepal. at art, 20(2), (1951)

[134] Constitution of the Kingdom of Nepal. at art, 24(1), (1951)

[135] Constitution of the Kingdom of Nepal. at art, 26(4), (1951)

[136] Constitution of the Kingdom of Nepal. at art, 56(1), (1951)

[137] Constitution of the Kingdom of Nepal. at art, 56(2), (1951)

[138] Constitution of the Kingdom of Nepal. at art, 82, (1951)

[139] Constitution of the Kingdom of Nepal. at art, 59, (1951)

[140] The Constitution of Kingdom of Nepal, 1990. Art.45(1) (5) (6).

[141] The Constitution of Kingdom of Nepal, 1990. Art.46(1).

[142] The Constitution of Kingdom of Nepal, 1990. Art.47(2).

[143]The Constitution of Kingdom of Nepal, 1990. Art. 48.

[144] The Constitution of Kingdom of Nepal, 1990. Art.53(1)(2)(3)(4).

[145] The Constitution of Kingdom of Nepal, 1990. Art.45(3).

[146] The Constitution of Kingdom of Nepal, 1990. Art. 60.

[147] The Constitution of Kingdom of Nepal, 1990. Art. 62d(2)(6).

[148] The Constitution of Kingdom of Nepal, 1990. Art. 63(1).

[149] The Constitution of Kingdom of Nepal, 1990. Art.71(3)(5).

[150] The Constitution of Kingdom of Nepal, 1990. Art.63.

[151] The Constitution of Kingdom of Nepal, 1990. Art.36(1) (2) (3).

[152] The Constitution of Kingdom of Nepal, 1990. Art.42(1)(2)(3).

[153] The Constitution of Kingdom of Nepal, 1990. Art. art 36(4).

[154] The Constitution of Kingdom of Nepal, 1990. Art.36(5) & 59.

[155] The Constitution of Kingdom of Nepal, 1990. Art.38.

[156] SURYA PD. DHUNGEL ET AL. COMMENTARY ON THE NEPALESE CONSTITUTION, at 225 (1998).

[157] The Constitution of Kingdom of Nepal, 1990. Art.43.

[158] The Constitution of Kingdom of Nepal, 1990. Art.84.

[159] The Constitution of Kingdom of Nepal, 1990. Art.85.

[160] The Constitution of Kingdom of Nepal, 1990. Art.86.

[161] The Constitution of Kingdom of Nepal, 1990. Art.87(1)(7)(10)

[162] The Constitution of Kingdom of Nepal, 1990. Art.88

[163] The Constitution of Kingdom of Nepal, 1990. Art.96(2)

[164] Judicial administration act.2048.Art.3 & 5

[165] The Constitution of Kingdom of Nepal, 1990. Art.56(2)(3),

[166] M.P.Jain, Justice Bhagwati and Indian Constitutional Law at 31 (1959-60)

[167] Id.

[168] Id.

[169] Id.

[170] CONSTITUTION OF NEPAL Article 56,(2015)

[171] CONSTITUTION OF NEPAL, Art.84(1)(a), (2015)

[172] CONSTITUTION OF NEPAL, Art.84(1)(b), (2015)

[173] CONSTITUTION OF NEPAL, Art.86(2)(a), (2015)

[174] CONSTITUTION OF NEPAL, Art.86(2)(b), (2015)

[175] CONSTITUTION OF NEPAL, Art.87(2), (2015)

[176] CONSTITUTION OF NEPAL, Art.90, (2015)

[177] CONSTITUTION OF NEPAL, Art.93(1), (2015)

[178] CONSTITUTION OF NEPAL,Art.93(2), (2015)

[179] CONSTITUTION OF NEPAL, Art. 93(2), (2015)

[180] CONSTITUTION OF NEPAL, Art. 94, (2015)

[181] CONSTITUTION OF NEPAL, Art. 95(1), (2015)

[182] CONSTITUTION OF NEPAL,Art. 95(2),(2015)

[183]CONSTITUTION OF NEPAL, Art.126),(2015)

[184] CONSTITUTION OF NEPAL. Art. 126, (2015)

[185] CONSTITUTION OF NEPAL. Art. 127,(2015)

[186]CONSTITUTION OF NEPAL. Art. 128,(2015)

[187] CONSTITUTION OF NEPAL. Art. 131, (2015)

[188] CONSTITUTION OF NEPAL. Art. 133, (2015)

[189] CONSTITUTION OF NEPAL. Art.128, (2015)

[190] The Judicial Administration Act, 1990. Section 3 & 5 .

[191] CONSTITUTION OF NEPAL. Art 135. (2015)

[192] CONSTITUTION OF NEPAL. Art. 292, (2015)

[193] CONSTITUTION OF NEPAL. Art. 100, (2015)

[194] CONSTITUTION OF NEPAL. Art. 101, (2015)

[195] Barrington Moore Jr., Social Origins of Dictatorship and democracy at 301 (1989).

[196] Ladijinsky,W., in "Farm Tenancy and Japanese Agriculture',foreign Agriculture, Vol.1, No.9, at 441-449(1937)

[197] Id.

[198] Main Shankar Aiyar: Confessions of a Sealar fundamentalist, Penguim, Delhi at 15(2004)

[199] Bhanu Pratap Mehta: The Burden of Democracy, Penguin , Delhi, at 75-77(2003)

[200] Id.

[201] Madhab Poudel, Jurisdiction and Limitation on Parliament regarding law making: in the context of our constitution, some exatlanations, at 13, (1999).

[202] MARSHALL GEOFFREY,CONSTITUTIONAL THEORY(ed)HLA Hart at.103. (1971)

[203] Id.

[204] P.N. Justic Bhagwati,"How the Supreme Court Enforces Citizen's rights" Express Magaxine, Indian Express, New Delhi, January 31,1982

[205] GEOFFREY ,Supra note 199.

[206] Krishna Pd.Lamsal v.HMG council of ministers secretariat et .al.NKP (Golden jubilee Special Edition) at.142.(2052)

[207] Sarvagya Ratna Tuladhar v. Honourable chairman of Rastria Panchayat et. al. NKP at.406. (2035)

[208] Id, at.413.

[209] Id; at.414

[210] Id, at 415

[211] Ravi Raj Bhandari et al. v. Honourable pm Manmohan Adhikarri et.al;

[212] Hari atd Neatal v. Gireeja atd Koirala et al,

[213] Id.

[214] The Indian Constitution: Cornerstone of a Nation at 182-83(1947)

[215]SCHWARTZ and WADE, Legal Control of Government, at 78 (1982)

[216] BROWN and GARNER, French Administrative Law Control at 475 (1968)

[217] HAMSON, Executive Discretion and Judicial Control at 227(1954)

[218] MITCHELL, The Causes and Consequences of the Absence of System of Public Law in the United Kingdom at 167 (1965).

[219] Id.

[220] BROWN and GARNER, Supra note 213

[221] Karodoun rupeean ko rajashwo gumne sthiti utpanna, GORKHAPATRA DAILY, (Bhadra 8, 2055 B.S.)

[222]M.P.JAIN, Administrative Process under the Essential Commodities Act, at Chapter I,(1955)

[223]MITCHELL,Supra note 215.

[224] M.P.JAIN, Supra note219 at.44.

Search This Blog

Bhaktaraj

Separation of Powers and Checks and Balances under the Constitution of Nepal & Its Practice

Bhakti Ram Ghimire

Preface

Table of contents

Table of Contents……………………………………………………………….VII

Chapter One: Preliminaries 1-18

Chapter Two: Concept of Separation of Powers and Checks and Balances 19-30

Chapter Four: Separation of Powers and Checks and Balances in Nepalese Constitutional chronicle 46-60

Chapter Five: Separation of Powers & Checks & Balances in the Constitution of Nepal(2072) 61-79

Chapter Six: Findings, Conclusion and Suggestions 80-86

CHAPTER-ONE

Comments

Post a Comment

Popular posts from this blog

GAP ANALYSIS OF ILO CONVENTION 102 AND NATIONAL LAWS AND REGULATIONS CONCERNING MINIMUM STANDERS OF CONTRIBUTION BASED SOCIAL SECURITY IN NEPAL

Social Security: Theory and Legal Provision in Nepal, By:Bhakti Ram Ghimire