Nepal’s new constitution

After its revolution in 2007 more than seven years of discussion, missed deadlines and constitutional deadlock in two consecutive constituent assemblies, Nepal finally passed a permanent constitution earlier this year, which entered into force on September 20th. A two-thirds majority was required to pass it.

The new constitution establishes the country as a federal parliamentary republic, with marked similarities to India and Pakistan. The president is elected for a five-year term by an ‘electoral college’ consisting of the federal parliament and provincial assemblies. Executive power is vested in the cabinet.

Legislative branch

Parliament is to be bicameral. The cabinet is responsible to the House of Representatives, which, like the Constituent Assembly, will be elected for five years through Mixed-Member Majoritarian: 165 seats by single-seat plurality and 110 by party-list PR, with no districting. The unusually-named (for an upper house) National Assembly have 59 members: 8 members from each of the 7 provinces elected by Provincial Assembly members, joined by local representatives (chairpersons and vice-chairpersons of village councils, and Mayors and Deputy Mayors of Municipal councils) whose votes will be weighted, presumably according to each local authority’s population; the other 3 will be appointed by the government. They are to serve a six-year staggered term, with one-third retiring every two years.

The National Assembly may delay financial bills by 15 days, and delay other bills proposed by the lower house for two months. Only bills that were introduced in the upper house but lack bicameral agreement are to be sent to joint session. Thus, Nepal’s bicameralism is far weaker than in India and Pakistan, where joint session is the deadlock-breaking mechanism for any non-financial bill. And even on bills that make it to joint session, Nepal’s upper house is weaker as it is smaller in relation to the lower house (India is roughly 2:1, Pakistan 7:2 while Nepal will be about 9:2).

With this weak upper house, the constitution enacted has no constitutional ex-ante checks on the power of a majority government to pass legislation. A large number of the proposed drafts contained a more powerful upper house. Sadly, the main parties probably made short shrift of such proposals, preferring not to have their ambitions checked when taking part in future governments.

The constitution can be amended by two-thirds majorities in both houses, with changes to provincial boundaries also requiring the consent of the assemblies of the provinces involved.

Judicial branch

Lastly, the Supreme Court is to be appointed on the recommendation of the Judicial Council, out of which a special Constitutional Bench will be formed including the Chief Justice and four other Justices chosen by the Judicial Council. The Chief Justice is appointed for a six-year term on advice of the Constitutional Council. All Justices serve until mandatory retirement age of 65.

The Judicial Council will consist of:

  1. the Chief Justice, presiding,
  2. the most senior Supreme Court Justice
  3. the Federal Law & Justice Minister,
  4. a senior legal expert appointed by the PM, and
  5. a senior legal advocate appointed by the Nepal Bar Association.

The Constitutional Council will consist of:

  1. the PM, presiding,
  2. the Chief Justice
  3. the chairman of the upper house
  4. the speaker of the lower house
  5. the deputy-speaker of the lower house, and
  6. the Leader of the Opposition

Enduring controversies

Far from settling Nepal’s political quagmire, the new constitution has proven to be very controversial. Its (impending) passage sparked demonstrations and unrest around the country. Protesters have blocked roads and vital supplies and dozens have died in clashes with police over the past few months.

The most contentious issue remains as it was during the years of deadlock in the Constituent Assemblies: the drawing of the boundaries of the new provinces. While the final boundaries are said not to be completely settled yet, the schedule is quite specific, and it provides for largely multi-ethnic provinces. There is therefore a great deal of opposition from groups wanting a linguistic and ethnic delineation providing them with their ‘own’ provinces.

Other disputes include women and minority rights in the new constitution (including in particular the definition of citizenship, which favours the father), its secular nature, the lower proportion of lower house seats to be elected by PR (45%, compared with 58% for the Constituent Assembly), and the federal terms concerning provincial autonomy. There are, of course, also those happy the constitutional deadlock is over, if not with the constitution itself, but

It will be interesting to see whether the final provincial boundary-drawing will be affected, and how the salience of these constitutional issues evolves. The first regular elections will not be held for several years, as the term of the Constituent Assembly, now transformed into ‘Legislature-Parliament’, will end in January 2018.

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Nepal: Waiting on the lists

As of the 9th of December, political parties in Nepal had yet to submit their lists of candidates. The election, for a second-attempt Constituent Assembly, was held on 19 November. Even with all this time to assemble their lists, the Nepali Congress, the country’s oldest party, asked for an extension.

I occasionally read or hear of people believing that under closed party-list systems, parties “appoint” their candidates after the election. Of course, this is a misunderstanding. All closed-list systems that I know of require lists of candidates to be submitted before the election. Except Nepal. Does anyone know of any other exceptions to the rule of pre-election nomination of candidates?

Maybe the parties in Nepal need extra time because of the complexity of the quota rules:

As per the provision on inclusiveness under the PR system, political parties that are allocated up to 30 percent of the total of 335 PR seats should send 50 percent male members and 50 percent female.

Similarly, political parties that are allocated over 30 percent of the PR seats should send 50 percent women members, 31.2 percent Madhesi members (women and men 15.6 percent each), 13 percent Dalits (women, men 6.5 percent each), 37.8 percent indigenous (women, men 18.9 percent each), 4 percent from backward regions (women, men 2 percent each) and 30.2 percent Khas and Aryan (women and men 15.1 percent each).

Party-list PR seats make up 335 of the 575 elected seats. The rest are elected by First Past the Post in single-seat districts (SSDs). Allocation is in parallel, i.e. it is a Mixed-Member Majoritarian system.

The results (per Wikipedia) show the Nepali Congress with 105 SSDs and 91 list seats, the Communists with 91 and 84, and the Maoists with 26 and 54, respectively. Vote percentages, based on list votes are 25.6, 23.7, and 15.2. Each of these big parties did a few percentage points better in the SSD votes than in list votes.

The result for the Maoists is a large decline from their (surprising) performance in the 2008 election, held shortly after the Maoists abandoned their armed struggle. In that election, the Maoists had a plurality of seats, with 229, on around a third of the (list) votes.

That assembly failed to approve a constitution, despite various deadline extensions, and was dissolved. So back to the drawing board, now with an assembly where the older established parties are stronger.

Nepal’s constitutional deadlock

Nepal has been at a deadlock for months in its constitutional process. When yet another of numerous deadlines for a new comnstiution was missed on 27 May, Prime Minister Baburam Bhattarai dissolved the constituent assembly and set new elections for November. However, last week, the Election Commission advised that the elections can not be held, for reasons that include lack of political consensus. The opposition parties had protested the dissolution and announced a boycott of new elections.

Constitution Net published an interview that offers an “insider’s perspective” on the impasse.

Thus Nepal remains in a serious deadlock. Among the contentious issues is a classic one in the debates over federalism. While all the parties agreed early on to define Nepal as a “federal” republic, they disagree on a fundamental question of federal design for ethnically plural societies: should the sub-units be designed to be themselves multi-ethnic, or should their boundaries follow (as much as possible) the regional concentrations of various groups? The latter option, which seems to be what most experts on federalism advise, obviously requires delicate compromises on where new boundaries should be drawn and how many sub-units to have, which in turn shapes the number of minorities that can be local majorities in at least one unit.

Notwithstanding the breakdown–which may yet prove temporary–the assembly had made considerable progress. It apparently had reached a consensus on a semi-presidential system. In fact, Nepal may be one of the few countries ever to have had a full debate over all three major types of executive-legislative structure: parliamentary, presidential, and semi-presidential. Nepal has been previously parliamentary–largely because it was also a monarchy. In most constitutional-design processes that I know of, the debate is either between presidential and semi-presidential or between parliamentary and semi-presidential (if there is any such debate at all).

According to Jan Sharma (who also covers several other aspects of the process and its deadlock), the parties divided over the executive-legislative type. The old parties, the Nepali Congress and the Communist Party of Nepal-Unified Marxist Leninist initially wanted a Westminster parliamentary system, while the Unified Communist Party of Nepal-Maoist favored a strong directly elected presidency (presumably a presidential system). Guess who must be confident about having a popular individual leader who could win a presidential election, and who isn’t?

From various subsequent news items I saw back in May (and which I don’t have immediate access to now) suggest that they had compromised on a semi-presidential system, and evidently of the premier-presidential sub-type.

But federalism? That’s another matter.

Nepal constitution deadline missed–again

Nepal’s constituent assembly, elected in 2007, will miss another deadline to produce a constitution.

It was supposed to be done on the 28th of May, but there was no chance they were going to make it. So yesterday’s announcement just acknowledges the inevitable.

The assembly, by two thirds vote, will simply amend the interim constitution to extend its own term–not for the first time. The previous deadline was 28 May 2010.

I wonder how common it is for constituent assemblies to miss their deadlines. It would make sense to require elections for a new constituent assembly if the current one fails to meet deadlines for its primary function, which is (obviously) to draft a constitution. On the other hand, when you are the constituent body, your word is sovereign (exceptions for some cases that are under international supervision, such as Namibia in 1990) and you can do whatever you want, more or less by definition.

Nepal institutional debate ongoing

Via the Katmandu Post:

During the meeting of the committee held in Singhadurbar on Tuesday morning, the Nepali Congress and CPN-UML submitted a joint proposal and the UCPN (Maoist) and Tarai Madhes Loktantrik Party tabled their separate proposals. NC and UML stood for improved parliamentary system comprising ceremonial president and executive prime minister elected from the House and Mixed Member Proportional Representation electoral system. They also proposed a one-year prohibition on no-confidence motion against the government and demanded alternative prime ministerial candidate prior to moving a no-trust motion. The Maoists proposed a directly elected executive president with consensual government and multi-member proportional direct electoral system while the TMLP floated the idea of executive president elected from parliament and mixed electoral system.

I am going to assume that the “multi-member proportional direct electoral system” means a standard districted PR (as opposed to MMP), but the description is somewhat less than straightforward. I would have to use my imagination a bit further to figure out what a “directly elected executive president with consensual government” is. Presumably some form of semi-presidentialism, but that is not a form of government that is necessarily conducive to consensus government (depending on various other important details).

The article includes greater detail on the voting breakdown.

(Once again, thanks to Rob R. for this tip.)

Premier Prachanda

The transition of the Maoist insurgents into a governing party is now complete in Nepal: Prime Minister Pushpa kamal Dahal ‘Prachanda’ took the oath of office today.

After four months of what Rising Nepal describes as “gruelling power sharing negotiations,” the Constituent Assembly (which will function as an interim parliament until the new constitution is complete and new elections are held) had elected Prachanda to the premiership last week.

The Assembly had previously stunned the Maoists by electing Ram Baran Yadav as president in the newly created republic. Yadav, backed by the established parties from Nepal’s previous electoral periods, the Nepali Congress and the Communist Party of Nepal, had defeated the Maoist presidential candidate by a vote of 308-282.

While the presidency should be mostly ceremonial given the parliamentary form of Nepal’s interim governing arrangements, the non-Maoist parties combined to prevent the Maoist candidate from winning the presidency. The Maoists apparently had expected that their plurality of votes and seats ((Click the country name in the “Planted in” line above, and scroll down for previous entries on the elections and electoral system.)) would ensure them of both the presidency and the prime ministership, but the presidential selection process gave them an immediate lesson in the workings of parliamentary democracy. Nonetheless, now they have the most important post. In fact, the accord that resulted in Prachanda’s premiership was so widely supported–though lacking support of the Nepali Congress–that Prachanda received 80% of the Assembly’s votes in favor of his candidacy. Rising Nepal reports:

Eight political parties including CPN-UML, Madheshi Janaadhikar Forum (MJF), Nepal Sadbhawana Party (Anandidevi), Communist Party of Nepal (Ekata Kendra), Janamukti Party, CPN (United), Nepa: Rastriya Party and Nepali Janata Dal had supported his candidacy.

Delivering their speech during the proposing and seconding the candidacy of Prachanda, leaders of those parties stated that they supported Prachanda as per the people’s mandate.

UML general secretary Jhalanath Khanal said that UML supported Prachanda’s candidacy respecting people’s mandate. “CPN-Maoist has expressed commitment to implement all past agreements reached among the seven parties and follow democratic process in the new government,” he said pleading the reasons for the support to the CPN-Maoist.

Khanal said that the national government could not be formed after NC refused to join a Maoist-led government at the last hour even after it was offered Defence Ministry, which NC had been claiming for. ((The quote comes from the second link above.))

Now comes the hard part: governing, and drafting a full constitution!
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Not everyone likes mixed-member systems

During the standoff over Nepal’s electoral system for the (now complete) constituent assembly elections, we discussed here the controversy over whether to use a mixed-member system or a pure list-PR system.

The controversy was more heated than we realized.

Nepal electoral system protest

The protest banner says:

X – MIXED ELECTORAL SYSTEM
[check] Full Proportionate Electoral System
Madhesi Janadhikar Forum – Madhesh
Janakpur (Nepal)

(Thanks to frequent propagator Bancki for sending me this photo some time ago. The original source is Reuters.)