In countries with a bicameral system, the upper house of parliament performs certain distinct duties to those undertaken by the lower house. Nepal has had a bicameral parliament since the 1950s, except for a brief hiatus during the partyless Panchayat regime (1960-1990) and the recent political transition (2006 to 2015).
The 2015 constitution has given continuity to the bicameral setup in the form of the National Assembly (NA) as the upper house and the House of Representatives (HoR) as the lower house of the federal parliament. On its website, the NA lists ‘providing expert service’ as one of its major functions. Except for this single task, the two houses perform similar tasks, such as formulation of laws and holding the government to account.
In many democracies, the functions of two houses are clearly articulated by the law so that they perform distinct tasks. In the United Kingdom, for instance, the main duties of the upper House of Lords are ‘examining bills, questioning government action, and investigating public policy.’ Its roles and responsibilities are clearly distinguished from those of the House of Commons.
In Nepal’s case, however, the upper house is struggling to establish a separate identity and there is growing disenchantment about its performance. The very idea of a bicameral legislature is being questioned, particularly after the recent assembly elections that elected mostly partisan, non-experts.
So do we really need the National Assembly, then? Senior journalist Hari Bahadur Thapa, who also researches Nepal’s parliamentary system, says the core concept behind the assembly is to bring together a mature group of experts with deep knowledge on statecraft. The goal is to get them to offer expert guidance and advice to the government as well as the HoR.
“In a sense, it is a group of senior technocrats who delve into policy and law-making rather than engaging in day-to-day politics,” Thapa says. “But Nepal’s upper house has failed to measure up to its expectation.”
There are various factors behind the NA’s sub-par performance. Chiefly, the major parties are using the assembly to adjust leaders who have lost elections or those who have somehow not gotten respectable positions in the party structures.
For instance, Bam Dev Gautam of CPN-UML and Narayan Kaji Shrestha of CPN (Maoist Center), both of whom lost the 2017 parliamentary elections, are currently assembly members.
Influential political leaders want to be MPs as non-parliamentarians cannot become ministers for more than six months.
In the 59-member NA, an electoral college elects 56 members while the three remaining members are nominated. The three nominated seats have been reserved for experts. But as the government recommends these nominees, they are usually political appointees as well.
Right now, Khim Lal Devkota, Bimala Rai Paudyal, and Ram Narayan Bidari occupy the nominated seats in the NA. Among the trio, only Devkota is not affiliated to any political party.
NA member Prakash Pantha concedes that political parties are abusing the assembly to adjust those who lost the 2017 elections.
“The onus lies on political parties to honor the spirit of the constitution while selecting candidates. They should set the criteria for assembly candidates, emphasizing expertise over political allegiance,” he says.
Daman Nath Dhuganga, former speaker of parliament, agrees that the problem is in candidate-selection.
“The parties are reluctant to follow the constitution and are putting partisan interests above national interests,” Dhuagana says. “But then the National Assembly’s leadership is also struggling to assert its authority to safeguard the independence of the house. It is rather submitting to the wills of political parties and their leaders.”
The NA’s leadership was tested when the country faced a constitutional and political crisis after Prime Minister KP Sharma Oli dissolved the HoR in December 2020.
In the absence of the HoR, the assembly, which is a permanent legislative body, should have held the government to account. But it did no such thing. NA chair Ganesh Prasad Timalsena, who is from the CPN-UML, ran the House only for a few days to avoid criticism. After this instance, criticism of the assembly reached new heights. The upper house was accused of being no more than a government rubber-stamp.
Another reason behind a weak assembly is the constitution itself. The national charter has not given the upper house any exclusive law-making right. As per the constitution, the government can present bills in the two houses of parliament but the assembly can neither approve nor disapprove the HoR-endorsed bills.
The provision of expert assembly members was envisioned to revise flaws and errors in the bills forwarded by the HoR. But then there is a paucity of experts in the NA to analyze the contents of such bills and offer corrections.
The NA must return a bill sent by the HoR within two months, either after endorsing it or recommending changes. When the HoR passed a passport-related bill in 2019, the assembly had pointed out several flaws in it and corrections were duly made. But such corrective measures are not possible without enough experts on board.
The NA’s performance has also been hamstrung by the inadequacies of funds and resources. A recent study report by Democracy Resource Center, an NGO, has pointed to the assembly’s lack of financial, physical and human resources, directly impacting the legislative process. The report titled ‘Legislative Procedures of the National Assembly’ says the assembly is short in computers, high-speed internet and office space.
Despite these inadequacies, the NA members can still work largely unhindered by the larger political upheavals. Unlike in the case of HoR members, assembly members do not have to toe party whip or serve specific electoral constituencies. This freedom allows the NA members to focus on issues of national importance.
Journalist Thapa says it is the assembly’s responsibility to ensure that the bills and decisions emanating from the HoR are not politically motivated, which has not been happening in Nepal.
“The upper house has failed to demonstrate the desired maturity and expertise and has been acting subordinate to the lower house,” Thapa says. “It has been found wanting on crucial tasks such as improving coordination between provincial and local governments.”
But despite the NA’s shortcomings, Thapa is averse to what he calls the radical idea of dissolving the upper house and adopting a unicameral system. “That would be like throwing the baby out with the bathwater,” he says.
Thapa suggests reforming the NA, for instance by tweaking the current appointment system. “But as the custodians of the democratic process, things won’t improve much unless our political parties internalize the importance of a free and independent upper house.”
The Westminster parliamentary government has a long history in Nepal. Even before the establishment of democracy in 1951, the then Rana regime had envisaged a bicameral system in Nepal’s Interim Constitution 1947. The 1959 constitution also provided for a bicameral system. It was only during the Panchayat period that the country was under a unicameral Rashtriya Panchayat. The 1990 constitution again adopted bicameralism.
After the political changes of 2006, the role of the country’s parliament was taken up by a Constituent Assembly elected to draft a new constitution. Between 2006 and 2015, Nepal had another period when it did not have two chambers of parliament with the CA performing the tasks of a legislative body as well. In 2015, the country once again adopted a bicameral system through the new constitution.
Balaram KC, a former Supreme Court judge, believes the bicameral legislature should not be discarded just because the current upper house has not been up to the task.
“Getting rid of the upper house could have bad consequences. The monopoly of a single chamber is never desirable. The idea does not sound democratic,” KC says. “As a democratic society, we should instead build pressure on our leadership to reform the house. Our political parties should also be responsible.”