State and Government

2.1 Concept and Elements of the State

Concept of the State

• The state is a ubiquitous and all-powerful social institution.
• It is an essential institution.
• A natural institution established to fulfill human needs.
• A sovereign entity within a defined territory.
• The concept of the state is constantly evolving.
• Machiavelli first used the term "state" in political science.

Characteristics of the State

• Endowed with sovereignty.
• Public mechanisms.
• Legitimate exercise of authority.
• Medium of governance.
• Geographical union.

Definitions of the State

• Garner: "The state is a community of a large number of people residing in a defined territory, free from external control, with an organized government whose commands are naturally obeyed by the majority."
• Aristotle: "The state is a union of families and villages aimed at establishing a complete and self-sufficient life."
• Cicero: "The state is a large community organized to benefit from equal rights and mutual participation."
• Woodrow Wilson: "The state is a community organized for law within a defined territory."
• Bluntschli: "The state is a politically organized people within a defined territory."

Elements of the State

The state comprises population, territory, government, and sovereignty.

a) Population

• Primary essential element.
• Dynamic element.
• No fixed population size required.
• Plato: Ideal population of 5,040.
• Rousseau: Ideal population of 10,000.
• Aristotle: Population should be neither too large nor too small.
• Historically, larger populations were considered powerful due to military strength.
• State progress depends on population quality; unskilled populations are a burden.
• Aristotle: "Good citizens make a good state."

b) Territory

• Second essential element.
• Provides practical form to the state.
• Requires a fixed geographical area, size unspecified.
• Includes maritime territory up to 12 miles from borders.
• Bluntschli: "People are the personal basis, land is the physical basis."

c) Government

• Protects the state, maintains peace, organizes society, and coordinates diverse customs and traditions.
• The soul of the state, acting as its agent and operator.

d) Sovereignty

• An invisible power.
• States without sovereignty are colonies.
• Enforces compliance across society.
• Two types:
  1. Internal Sovereignty: Control over individuals and objects within the territory without external assistance.
  2. External Sovereignty: Independent ability to enter treaties and diplomatic agreements.

Philosophical Perspectives

• Eastern (Saptanga Theory): Seven elements (Kautilya, Manu, Yajnavalkya, Shukracharya):
  1. Swami (King).
  2. Amatya (Ministers).
  3. Suhrid (Allies).
  4. Kosha (Treasury).
  5. Rashtra (Territory/People).
  6. Durga (Fort).
  7. Bala (Army).
• Western: Five elements:
  1. Population.
  2. Territory.
  3. Government.
  4. Sovereignty.
  5. Recognition by the UN and foreign governments.

Theories of State Origin

1. Divine Origin Theory.
2. Force Theory.
3. Social Contract Theory.
4. Patriarchal Theory.
5. Matriarchal Theory.
6. Historical or Evolutionary Theory.

Types of States

Based on governance: Unitary and Federal. Based on form: Presidential and Parliamentary.

a) Unitary State

• All powers centralized.
• Central government delegates powers administratively.
• Examples: France, China, UK.
• Central government is all-powerful.
• Advantages:
  1. Administrative uniformity and efficiency.
  2. Quick decision-making.
  3. National unity.
  4. Prevents fragmentation.
  5. Simple and cost-effective.
• Disadvantages:
  1. Centralized power.
  2. Underutilization of local resources.
  3. Uneven development.
  4. Difficulty addressing diverse demands.
  5. Centralized workload.
  6. Bureaucratic dominance.
  7. Lack of public participation.

b) Federal State

• Powers constitutionally divided between center and provinces.
• Center handles foreign affairs, monetary policy, trade, and security; provinces manage other matters.
• Separate legislatures, executives, and judiciaries.
• Examples: India, Australia, Switzerland.
• At least two levels of government.
• Advantages:
  1. Governance at lower levels.
  2. True representation.
  3. Unity for smaller states.
  4. Increased efficiency.
  5. Reduced central administrative burden.
  6. Enhanced self-respect and responsibility.
• Disadvantages:
  1. Dual laws/citizenship weaken national unity.
  2. Weaker government.
  3. Jurisdictional conflicts.
  4. Expensive system.
  5. Risk of fragmentation.

Presidential Government

• Executive head (president) holds all executive powers.
• Not accountable to the legislature.
• Cabinet members chosen at president’s discretion, not required to be legislators.
• President elected directly or via electoral college.
• Examples: France, USA, Sri Lanka (55 countries).
• Advantages:
  1. Government stability.
  2. Division of labor.
  3. Suitable for emergencies.
  4. Ideal for large states.
• Disadvantages:
  1. Risk of deadlock.
  2. Risk of authoritarianism.
  3. Lack of flexibility.

Parliamentary Government

• Close legislature-executive relationship; prime minister is both executive and nominal head.
• Executive accountable to legislature.
• Depends on legislature’s support.
• Head of state and government are separate.
• Formed by majority party leader.
• Examples: UK, Japan, India (66 countries).
• UK’s system is the Westminster Model.
• Advantages:
  1. Close legislature-executive ties.
  2. Prevents authoritarianism.
  3. Elected individuals govern.
• Disadvantages:
  1. Uncertain tenure.
  2. Factionalism and self-interest.
  3. Unsuitable for emergencies.

Forms of Governance

• Monarchy: Rule by one, often authoritarian.
• Aristocracy: Rule by a few, often oligarchic.
• Democracy: Rule by the majority, restrained democracy.

Additional Notes

• Smallest country: Vatican City (0.44 sq. km), followed by Monaco (1.95 sq. km).
• Bilobi: Defines political science as the study of organized societies.
• Vyas: Divided Sruti into four Vedas.
• Kautilya: Developed politics as a tool for empire-building.
• Socrates: Developed the dialectical method.
• Cicero: Rejected slavery, promoted democratic principles.
• Plato: Conceptualized the ideal state.
• Augustine: Proposed the divine state.
• Hobbes: Proposed the absolute state (Leviathan).
• Almond and Powell: Used systems study approach.
• Karl Marx: Compared rich and poor.
• Carl Friedrich: Authored Constitutional Government and Democracy.
• Finer: Authored Theory and Practice of Modern Government.

Concept and Organs of Government

• Generally, the government is the organ exercising executive power.
• Broadly, it is the state’s representative, protecting sovereignty, rights, peace, welfare, and social justice.
• Robert Dahl: "Government is the collective name for the community that makes, implements, interprets, and behaves according to the law."
• Modern government is divided into: Executive, Legislature, and Judiciary.

a) Executive

• Exercises executive authority: daily administration, peace, foreign policy, law enforcement.
• In Nepal, the Council of Ministers holds supreme executive power.
• Can be parliamentary, presidential, or mixed.

b) Legislature

• Elected representatives embodying people’s sovereignty.
• Also called parliament.
• Enacts laws, forms/dissolves governments, appoints ambassadors, approves budgets.
• Executive is accountable to the legislature.
• Examples: UK (House of Commons/Lords), USA (Congress/Senate), India (Lok Sabha/Rajya Sabha).
• Nepal’s Constituent Assembly functions as the Legislature-Parliament.

c) Judiciary

• Protects public interests, enforces laws, and ensures justice.
• Protects fundamental rights, directs the government, punishes offenders.
• Nepal’s three-tier judiciary: Supreme Court, Appellate Court, District Court.

Additional Notes

• In parliamentary systems, the government forms the government.
• Legislatures are typically bicameral.
• In democracies, the executive head is the Prime Minister.
• John Locke: Identified monarchy, aristocracy, and democracy; authored Civil Government.
• Presidential system: Based on separation of powers; USA has a four-year presidential term.
• Switzerland’s federal units: Cantons; Germany/Austria: Länder.
• Countries transitioning to federalism: Bosnia, Herzegovina, Ethiopia, Congo.
• Judicial appointments: By the executive, often through the legislature (USA, UK, India, Switzerland).

Nepal’s Executive and Legislature: Formation and Functions

Formation of the Executive

• Interim Constitution of Nepal 2063, Part 5: Executive provisions.
• Article 37: Executive power in the Council of Ministers.
• Article 38: Council of Ministers’ formation.
• Council of Ministers responsible for governance direction and operation.
• Executive functions in the name of the Government of Nepal.
• Prime Minister and Council formed by political consensus or majority vote in the Legislature-Parliament.
• Ministers appointed from Legislature-Parliament members on party recommendations.
• Collective and individual accountability to the Legislature-Parliament.

Types of Executives

• Hereditary vs. Elected: Hereditary in monarchies (Japan, UK, Bhutan); elected in democracies (USA, India, Nepal).
• Single vs. Plural: Single in parliamentary systems; plural in federal systems.
• Nominal vs. Real: Nominal in Nepal, UK; real in USA.
• Parliamentary vs. Non-Parliamentary: Parliamentary (India); non-parliamentary (USA).

Legislature

• Part 7 of the Interim Constitution 2063.
• Constituent Assembly serves as Legislature-Parliament.
• Formation:
  1. 240 members (First-Past-the-Post).
  2. 335 members (Proportional Representation).
  3. 26 members (nominated by Council of Ministers).
  4. Total: 601 members.

Supreme Court of Nepal: Formation and Jurisdiction

• Article 102: Supreme Court provisions.
• Chief Justice + 14 justices; temporary justices if needed.
• President appoints Chief Justice (Constitutional Council recommendation); Chief Justice appoints other justices (Judicial Council recommendation).
• Chief Justice tenure: 6 years or until age 65.
• Supervises all courts (except Constituent Assembly Court).
• Can declare laws violating fundamental rights or the constitution invalid.
• Issues writs: Habeas Corpus, Mandamus, Certiorari, Prohibition, Quo Warranto.
• Jurisdiction: Original cases, reviews, appeals, retries.

Key Terms

• Habeas Corpus: Orders presentation of illegally detained persons; releases if detention is unlawful.
• Mandamus: Orders performance of neglected duties.
• Certiorari: Annuls unlawful decisions.
• Prohibition: Prevents actions exceeding jurisdiction.
• Quo Warranto: Questions the authority of actions.

Additional Notes

• Supreme Court: Court of Record.
• President convenes Legislature-Parliament on Prime Minister’s recommendation.
• Judicial Council: 5 members.
• State: From Teutonic word Status.
• Interim Constitution 2063: Effective from 2063.10.1 (January 15, 2007).
• Presidential candidate: Constituent Assembly member, at least 35 years old.
• President’s oath: Before Chief Justice.
• Constitutional Council: Chaired by Prime Minister.
• Chief Justice eligibility: 3 years in Supreme Court.
• Supreme Court submits annual report to President.

Prime Minister’s Removal

1. Resignation to President.
2. Death.
3. No-confidence motion passed.
4. Loss of Legislature-Parliament membership.

President’s Removal

1. Resignation to Vice-President.
2. Impeachment by two-thirds majority for constitutional violations.
3. Death.

Other Provisions

• Vice-President’s oath: Before President.
• Prime Minister can appoint non-parliamentarians as ministers.
• Ministers take oath before Prime Minister.
• Legislative quorum: One-fourth of total members.
• No discussion on pending court cases or judicial actions in the House.

Constituent Assembly Member Qualifications

1. Nepali citizen.
2. At least 25 years old.
3. Not convicted of moral turpitude.
4. Not holding a position of profit.
5. Not disqualified by law.

Constituent Assembly Membership Vacancy

1. Written resignation.
2. Disqualification under Article 65.
3. Absence from 10 consecutive meetings without notice.
4. Party notification of defection or loss of membership.
5. Death.

Speaker/Deputy Speaker Vacancy

1. Written resignation.
2. Loss of Constituent Assembly membership.
3. Misconduct resolution by two-thirds majority.
4. Death.

Judicial Council (Article 113)

• Recommends judicial appointments, transfers, disciplinary actions.
• Composition:
  1. Chief Justice (Chair).
  2. Minister of Law and Justice.
  3. Senior advocate (20 years’ experience, Nepal Bar Association recommendation).
  4. Jurist nominated by Prime Minister.
  5. Senior-most Supreme Court Justice.

Judicial Service Commission

• Recommends appointments, transfers, promotions, and disciplinary actions for judicial service posts.
• Composition:
  1. Chief Justice (Chair).
  2. Minister of Justice.
  3. Senior-most Supreme Court Justice.
  4. Public Service Commission Chair.
  5. Attorney General.

Global Context

• USA became federal in 1789.
• 27 federal states worldwide.
• Laski: Proposed the welfare state.