Part 13 : State Executive | The Constitution of Nepal 2015

Part 13
State Executive

162. Executive power of State:

The executive power of a State shall, pursuant to this Constitution and the State law, be vested in the State Council of Ministers.
Provided that if a State Executive does not exist because of enforcement of Federal governance, the Chief of State shall exercise the executive power of the State as directed by the Government of Nepal.
The responsibility for issuing general directives, controlling and regulating the governance of the State shall, subject to this Constitution and other laws, lie in the State Council of Ministers.
All State executive functions shall be performed in the name of the State Government.
The executive power of the State shall be as mentioned in Schedule-6, Schedule-7 and Schedule-9 subject to this Constitution. Provided that the State Council of Ministers shall exercise the executive powers in coordination with the Government of Nepal, except as explicitly mentioned in this Constitution and in the Federal law in relation to concurrent powers of the Federation and the State.
Any decision or order to be issued in the name of the State Government pursuant to clause (3) and other instruments of authorization pertaining thereto shall be authenticated as provided for in the State law.

163. Provisions relating to Chief of State:

There shall be a Chief of State in each State, as a representative of the Government of Nepal.
The President shall appoint one Chief of State for each State.
The term of office of a Chief of State shall be five years except where the President removes him or her from office prior to the expiration of his or her term of office.
A person may not be the Chief of State for more than once in the same State.

164. Qualification for Chief of State:

A person who has the following qualification shall be qualified to become the Chief of State:

being qualified for being a member of the Federal Parliament,
having completed the age of thirty five years, and
Not being disqualified by any law.

165. Vacation of office of Chief of State:

The office of the Chief of State shall become vacant in any of the following circumstances:
1. if he or she tenders resignation in writing to the President,
2. if his or her term of office expires and he or she is removed from office by the President prior to expiration of the term,
3. if he or she dies.
If the office of the Chief of State of any State falls vacant, the President may so designate the Chief of State of another State to act as such also for such State.

166. Functions, duties and powers of Chief of State:

The Chief of State shall exercise such powers and perform such duties as conferred to him or her pursuant to this Constitution or law.
In exercising the powers or duties under clause (1), the Chief of State shall perform all other functions to be performed by him or her on recommendation and with the consent of the State Council of Ministers than those functions specifically provided to be performed on recommendation of any body or official pursuant to this Constitution or law. Such recommendation and consent shall be submitted through the Chief Minister.
Any decision or order to be issued in the name of the Chief of State under clause (2) and other instrument of authorization pertaining thereto shall be authenticated as provided for in the State law.

167. Oath by Chief of State:

The Chief of State shall, prior to assuming office, take an oath of office and secrecy before the President, as provided for in the Federal law.

168. Constitution of State Council of Ministers:

The Chief of State shall appoint the leader of the parliamentary party commanding a majority in the State Assembly as the Chief Minister, and the State Council of Ministers shall be constituted under his or her chairpersonship.
In cases where no party has a clear majority in the State Assembly under clause (1), the Chief of State shall appoint as the Chief Minister a member of the State Assembly who can command majority with the support of two or more parties representing to the State Assembly.
In cases where the Chief 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 State Assembly or the Chief Minister so appointed fails to secure a vote of confidence under clause (4), the Chief of State shall appoint as the Chief Minister the parliamentary party leader of the party which has the highest number of members in the State Assembly.
The Chief Minister appointed under clause (2) or (3) shall obtain a vote of confidence from the State Assembly no later than thirty days after the date of such appointment.
In cases where the Chief 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 State Assembly, the Chief of State shall appoint such a member as the Chief Minister.
The Chief Minister appointed under clause (5) must obtain a vote of
confidence under clause (4).
In cases where the Chief Minister appointed under clause (5) fails to obtain a vote of confidence or the Chief Minister cannot be appointed, the Chief of State shall, on recommendation of the Chief Minister, dissolve the State Assembly and appoint a date of election so that the election to another State Assembly is completed within six months.
Procedures on the appointment of the Chief 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 State Assembly held under this Constitution or the date on which the office of the Chief Minister has fallen vacant.
The Chief of State shall, on recommendation of the Chief Minister, constitute the State Council of Ministers consisting of a maximum of twenty percent of the total number of members of the State Assembly, including the Chief Minister, in accordance with the inclusive principle, from amongst the members of the State Assembly.
Explanation: For the purposes of this Article, “Minister” means a Minister, Minister of State and Assistant Minister.
The Chief Minister and Ministers shall be collectively responsible to State Assembly, and the Ministers shall be individually responsible for the work of their respective Ministries to the Chief Minister and the State Assembly.

169. Vacation of office of Chief Minister and Minister:

The office of the Chief Minister shall be vacant in any of the following circumstances:
1. if he or she tenders resignation in writing to the Chief of State,
2. if a vote of no-confidence is passed against him or her under Article 188 or a vote of confidence is not passed,
3. if he or she ceases to be a member of the State Assembly
4. if he or she dies.
The office of a Minister shall be vacant in any of the following circumstances:
1. if he or she tenders resignation in writing to the Chief Minister,
2. if the Chief Minister removes him or her from office,
3. if the office of the Chief Minister falls vacant under sub-clause (a), (b) or (c) of clause (1),
4. if he or she dies.
Even though the office of the Chief Minister falls vacant under clause (1), the same Council of Ministers shall continue to act until another State Council of Ministers is constituted.
Provided that if the Chief Minister dies, the senior-most Minister shall act as the Chief Minister until a new Chief Minister is appointed.

170. Appointment of non-member of State Assembly as Minister:

Notwithstanding anything contained in clause (9) of Article 168, the Chief of State may, on the recommendation of the Chief Minister, appoint any person who is not a member of the State Assembly as a Minister.
A Minister appointed under clause (1) must obtain membership of the State Assembly within six months from the date of taking an oath by him or her.
In the event of failure to obtain membership of the State Assembly within the period mentioned in clause (2), he or she shall not be eligible to be reappointed to the office of Minister during the term of the then State Assembly.
Notwithstanding anything contained in clause (1), a person who has been defeated in the election to the then State Assembly shall be not eligible to be appointed to the office of Minister under clause (1) during the term of such State Assembly.

171. Remuneration and other Facilities of Chief Minister and Minister:

The remuneration and other facilities of the Chief Minister and Ministers shall be as provided by a State Act, and until such Act is made, shall be as specified by the State Government.

172. Oath:

The Chief Minister and Ministers shall, before assuming their respective offices, take an oath of office and secrecy before the Chief of State, and Ministers of State and Assistant Ministers, before the Chief Minister, as provided for in the State law.

173. To give information to Chief of State:

The Chief Minister shall inform the Chief of State about the following matters:

resolutions of the State Council of Ministers,
Bills to be introduced in the State Assembly,
such other necessary information as commanded by the Chief of State on matters set forth in clauses (a) and (b), and
current general state of affairs of the State.

174.Transaction of business of State Government:

The allocation and transaction of business of the State Government shall be carried out in accordance with the rules approved by the State Government.
No question shall be raised in any court as to whether or not the rules under clause (1) have been observed.