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.

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.

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.)

Guerrillas and Elections in Nepal: Maoists ahead

In the counting for last week’s constituent assembly election in Nepal, the Maoist ex-guerrillas are ahead. They apparently have won a majority or large plurality of the single-seat districts in the parallel/MMM system: 116 of the 212 for which counting is complete. ((There are 240 SSDs in total, and counts from more remote areas may take another week.))

The PR-list votes are not all known, but so far the Maoists are well ahead, though with less than a third of the votes: 32.5%, with the runner-up Nepali Congress at 22.5% and the Communist Party of Nepal at 21.5%. ((Both Congress and Communists are established parties that have ruled before.))

Back to the nominal (SSD) tier: Congress has just 33 wins so far and the Communists have 29. If the party-list votes and nominal-tier seats breakdowns reported so far are close to the final shape of the election, it is quite a remarkable result. The Maosists presumably would have won a lot of districts (and perhaps many close races) around the country, rather than primarily in regional strongholds.

Source for preliminary results: Hindustan Times, 15 April.
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Nepal: Closed list procedures

From eKantipur, in Nepal (full text):

PR system closed list procedures ready

BY BISHNU BUDHATHOKI

KATHMANDU, Feb 11 – The Election Commission has outlined procedures for political parties regarding the naming of the closed list of candidates for 335 seats under the proportional electoral system for Constituent Assembly (CA) election.

It has also invited all 74 recognized political parties at a program on Monday for briefing on the procedures.

To contest election under the proportional electoral system, a party has to submit a list of at least 34 candidates. Of the 34 candidates, at least six candidates may be entered as common candidates representing different groups whereas a party contesting all the 335 seats could have 54 under the common group.

If any political party wants to submit the closed list to contest for minimum seats, it must ensure 11 seats for Madhesis, five for Dalits, 13 for janajatis, one for backward regions, 10 under ‘others’ and 17 for women. Whereas, if any party wants to contest all the 335 seats, it must ensure 104 seats for Madhesis, 44 for Dalits, 127 for indigenous groups, 13 for backwards regions, 101 for others and 168 for women.

As the number of candidates represent more than one group, the sum of the percentage of candidates of all groups appears to be more than one hundred. Citing this complication, the EC has defined the procedures saying that a candidate may belong to more than one group; for example, a dalit woman from Madhes would be counted under several categories — woman, Madhesi, and dalit.

If any party wins at least 25 seats under the PR, it must allocate at least seven seats for Madhesis, three for Dalits, nine for indigenous groups, one for backward regions, seven for others and 12 for women. The proportion would increase with higher wins. The law has also provided ten percent elbow for the central executive committee of political parties.

In case the political party fails to comply with the requirements listed above, the EC will request the concerned party to make necessary amendments within seven days and meet the requirements specified in the legal provisions.

Posted on: 2008-02-10 21:36:59 (Server Time)

Nepal Maoists give up on full PR system

As has been widely reported this week, Nepal’s political parties, including the demobilized Maoist rebels, have signed an accord that will abolish the nation’s monarchy. As part of a 23-point deal, ((Or 22 points, or 20 points, depending on the news sources one wants to believe.)) the Maoists also agreed to drop their demands for full proportional representation, AFP reports.

The pact paves the way for declaring the country a federal democratic republic immediately by amending the interim constitution — but the move will be ratified only after constituent assembly elections set for April…

Elections to the assembly that will shape the impoverished nation’s political future were postponed twice due to wrangling ((I always love how the media refer to political bargaining as “wrangling.”)) over Maoist demands that the electoral system be reformed and the monarchy abolished immediately…

Instead of a 497-member assembly, the country will have 601. Some 335 will be elected by proportional representation and 240 using the first-past-the-post system. The parties will nominate a total of 26 members. ((Other sources say these 26 will be appointed by the Cabinet, or by the Prime Minister; the purpose it to represent “the ethnic and indigenous groups who are not represented in the first-past-the post and the proportional system, according to the proposed bill,” reports The Rising Nepal.))

That is a big assembly for a country of under 30 million. I assume that will not be the size of the permanent legislative assembly; it is not uncommon for countries to have constituent assemblies much larger than their legislatures. ((The Rising Nepal (previous footnote) quotes Amod Prasad Upadhyay of Nepali Congress as saying, “Though the size of the CA will be huge, it will be able to encompass all the underprivileged groups.”))

Left unclear (to me) is whether the system is MMM or MMP. ((Jack, at The Democratic Piece, previously noted the confusion and conflicting reports on such important details of the electoral system being discussed.)) I am guessing the former. The Maoists have wanted PR (preferring no nominal tier, I believe), because of uncertainty about their own political strength and concerns about the ability of the established parties to gerrymander or malapportion in favor of their (more known) areas of strength. The existing parties presumably do not want nationwide PR (with or without a nominal tier) because of fears that the Maoists could inflate their vote in their zones of control, thereby favoring themselves in the total national seat balance. Either MMM or a variant of MMP with a small and/or regionalized list tier would be obvious compromises.

Meanwhile, Hindu News Update Service reports that:

Leaders in Nepal’s Terai plains have dismissed the agreement among the Seven-Party Alliance that paves the way for a new political and electoral system as “nothing but a power-sharing deal”, unlikely to address the problems of the Madhesi community in the region…

Two factions of the Madhesi People’s Rights Forum (MPRF) and the Rajendra Mahato-led Sadbhavana Party said the SPA pact to increase the number of seats under the proportional electoral system and the process for declaring Nepal a federal republic would not address the problems faced by the people living in the Terai plains bordering India.

From a later paragraph it seems that these groups do not object to the PR seats, per se (as the above implies), but to there not being enough of them.

“Key demands of these groups like a fully proportional electoral system and an autonomous Madhesh state with the right to self-determination under a federal structure have been completely ignored,” B P Yadav, the group’s general secretary was quoted as saying by the Kantipur online Monday.

“Turning a blind eye towards the need for addressing the demands of the armed groups operating in the Terai cannot ensure polls,” he said, stressing the agreement was nothing but a power-sharing deal.

If anyone finds any details of the proposed electoral system or the federal structure, please post a comment.
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Nepal’s interim government in crisis

The Nepali Maoists may bring a no-confidence motion against the country’s interim government, formed to prepare the country for post-war constituent assembly elections that were to have been held some months ago.

The news item in the Times of India notes that the Maoists have withdrawn from the government, primarily to try to force the issue of abolishing the country’s monarchy before the constituent assembly is elected. It also notes that a series of demands includes “holding the constituent assembly elections on the basis of proportional representation.” Previously, the electoral system had been tentatively agreed to be a mixed-member majoritarian system.

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Click the country name above, in the “planted in” line, for previous posts on the appointed interim parliament and the proposed electoral system.

A mixed-member system for Nepal

According to the Hindustan Times, the major Nepali political parties and the demobilizing Maoist rebels have agreed to some major structural changes to Nepal’s political system.

The electoral system, until now plurality in single-seat districts (SSD), will be changed to half SSDs and half proportional representation for the “over 400 seats” in the upcoming constituent assembly. No other details are given, except to note there will be changes to the process of constituency boundary delimitation, including “demarcating them on the basis of geography as well as population.” (This implies a tolerance for significant malapportionment, which might perhaps be a demand of the rural-based Maoists and various ethnic minorities. I would also guess that this means the system would be MMM/parallel, not MMP/compensatory.)

The article also notes that this decision comes after:

the Madhes Janadhikar Forum, a socio-political organisation comprising Madhesis, people of Indian origin living in the Terai plains, began a series of shutdowns and blockades in the south from this month.

The Madhes Forum is seeking proportional representation and regional autonomy, possibly including federalism.

Meanwhile, the King has little to do but to watch peacocks.

Previous posts on Nepal:

Nepal: Revolution or democracy? (25 April 2006)

Big steps in Nepal (16 January 2007)

Big steps in Nepal

The “People’s Movement” of last April that forced King Gyanendra to back down from his claimed absolute powers and that led to a cease-fire in the long-running internal war bears significant institutional fruit this week.

The Nepalese House of Representatives is being formally dissolved as the Maoist rebels lay down their arms. An interim constitution will come into effect, and members will take their seats in a 330-member Interim House. The Interim House will consist of 83 delegates appointed by the rebels, 83 by the leftist party CPN-UML and 85 by the Nepali Congress Party. (I wonder how that balance of representation was determined; it also is not clear to me how the remaining 79 seats were distributed, but Nepal has quite a stew of political parties.)

Under the interim constitution, all powers formerly vested in the monarchy will be transferred to the post of Prime Minister.

Elections to a constituent assembly to draft a permanent constitution are scheduled for June.

The United Nations has played a key part in brokering the peace process, which includes the rebels’ locking up their weapons at designated camps, while the army locks up a similar quantity of its weapons. The rebels are to remain in the camps through the elections.

Update: See Jonathan Edelstein’s post of 23 January, in which he notes that the Maoists’ success in recruiting civil-society and Dalit representatives for some of their seats in parliament lends “support to the theory that their organization and discipline will allow them to continue to drive the political process. Given that the Maoists’ long-term democratic credentials are still in considerable doubt, this raises questions about exactly where the transition might lead.”

Nepal: Revolution or democracy?

This post steps outside the specialties of this blog a little bit. One of my academic sidelines is revolution, though I have not published in this area in a while. Recent events in Nepal have looked more like an incipient revolution* than party or electoral politics, with a king having assumed absolute rule a year ago (and having dissolved parliament in 2002) and a Maoist insurgency supposedly controlling much of the countryside.

Shortly before a big opposition demonstration was expected, the king announced he would reinstate parliament. At least for now, this has split the alliance between the parliamentary parties and the Maoists. Those who had been demonstrating are apparently hailing this decision as a victory, while the Maoists are (predictably) calling it a ploy. But I can’t help but feel that the Maoists’ position on this announcement by the king might be the one closer to reality. The parties that accepted a measure well short of what the alliance had been calling for–i.e. an end to the “autocratic monarchy” and elections for a constituent assembly to decide the role of the monarchy and how to deal with the Maoists–need to be careful here. If this is a first step to the constituent assembly, it could be a positive step. But I wonder if the assurances are really there, given this king’s track record.

Then there is the question of how representative these parties that just accepted this offer really are. One can see from a look at the results of the 1991, 1994, and 1999 elections that the party system is fragmented. Nepal uses FPTP, yet many small parties have one or a few seats each. In other words, many of these parties represent small regional constituencies. The largest party in 1999 was the Nepalese Congress Party. It won a manufactured majority of seats on only about 37% of the vote.

One can only infer so much from electoral statistics–though I have been known to infer a lot!–but this is not the look of a party system in which the parties are broadly representative. If all of them are on board with the king’s plan, then, more or less by definition, it implies broad acceptance by the people’s representatives. On the other hand, these party leaders have not been the people’s de-facto representatives for some time–parliament has been dissolved and in the meantime, its constitutional term would have expired–and they have not been tested in an election in an even longer time. In the mean time, “people power” has emerged. The parties have to tread carefully here, or they could find themselves losing ground to the Maoists if the latter’s assessment of the king’s offer as a ploy comes to be seen by masses of Nepalis as accurate.

* The link is to a post at The Head Heeb, in the comments to which, Jonathan and I have discussed the relevance of existing typologies of revolution to Nepal. Jonathan has posted an update.