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.