Conclusions and Thoughts for the Future

5.5.6 Side Effects

The main side effect of the system used in 2008 is that marginalised groups had their representation capped. It was not permitted to have more than 13 percent Dalits or fifty percent women on the lists, even if it was clear that those groups would still be under-represented. The complexity of the system was also recognised.

5.6 Conclusions and Thoughts for the Future

Group Quota

Dalits 11.9

Janajatis, excluded only 5.5

Madhesi castes, excluded only 12.4

Total 29.8

In addition, there would need to be at least 50 percent women.

One advantage of not differentiating between Madhesi groups and the corresponding Hill and Mountain groups is that regional parties would be free to choose regional members only on their lists. More specifically, Madhesi parties would not be required to nominate Hill and Mountain candidates. Including the excluded Madhesi castes as a group would still retain an element of asymmetry since the Hill and Mountain based parties would need to include such candidates on the lists. However, this asymmetry was there in 2008 as well by exempting lists of not more than one hundred candidates from the quota requirements, a rule designed in particular for Madhesi parties.

One could also name the third group Caste Excluded and then include the Churaute, which is a very small, excluded Hill Muslim group. It would not change the figures above. The reality would still be that the caste quota would remain asymmetric between Tarai and the hills and mountains, but that would be due to the actual structure of the society, not the rule formally speaking.

In order to make the quotas fully neutral and very simple, one could combine all groups and simply state that at least 29.8 percent need to come from excluded groups and such groups must include Dalits, excluded castes and excluded Janajatis. The parties could choose the balance within the excluded groups as long as they would have at least 29.8 from any of the groups. This would allow parties representing an excluded group to have candidates from their own group(s) only.

To what extent the quotas should apply to the List PR part of a mixed system or to the whole result is a political issue that is being discussed as the time of this writing. Some parties want to apply the quotas on the List PR election but still guarantee women 33 percent, possibly by a compensation mechanism. Similar arrangements may be applied for the other excluded groups that would offer an incentive for parties to nominate candidates from excluded groups also at electable places in the single-member constituencies.

5.6.3 Accountability

The System of Representation is likely even in the future to include a strong element of List PR.²¹⁴ The selection arrangement where the party leadership could choose which candidate on

214 The concept papers presented by the committees of CA by mid-2010 include two main alternatives: NC and UML with support of a number of other parties propose MMP and the Maoists block vote in multi-member

the list was to fill a seat regardless of the placement on list weakened the accountability of the members elected from the List PR considerably. In the CA, it developed two kinds of candidates: those accountable to the voters (elected by FPTP) and those accountable to the party leaders (elected from List PR). The Maoists went as far as stating that a primary requirement to a new electoral system is that there is only one system to the same body. They wanted to avoid the division of status of the future MPs.

The obvious way to improve the accountability of those elected from the List PR race would be to introduce ranked lists. The complexity in designing the lists with requirements to both quotas in percent and to the position on the list would increase but not beyond what would be manageable. Under a mixed system, the List PR seats could be filled from province lists instead of national lists. That would improve the accountability even more since the voters would have a better chance to know the candidates and their performance as MPs. Similarly, if the future system would be a province based List PR system only the affect on

accountability would be similar.

5.6.4 Decision-Making

Nepal has not introduced particular rules for decision-making which should provide particular veto powers or advantages above their regular voting force. The new constitution should, as a main rule, be passed by consensus but after having followed a defined procedure a two-thirds majority suffices.²¹⁵

The Council of Ministers is currently supposed to be formed on the basis of consensus which is defined upon agreement of the parties to the peace agreement.²¹⁶ If that cannot be achieved, the prime minister is elected by the CA with a qualified majority of two-thirds according to the original provisions of the Interim Constitution. The fallback was changed by Amendment No 5 on 12 July 2008 to a majority vote only, not a qualified majority.

The main issue in Nepal is representation. However, the Maoists have proposed a consensus principle for forming government written into the new constitution.²¹⁷ The other main parties favour variants of a parliamentary system. Nobody has proposed particular voting rules to protect defined groups. However, a second chamber of parliament with representation from the provinces making up the future federation has been proposed by NC and UML with support of some other parties. This would possibly be used as a mechanism to protect the rights of the provinces, but these issues have not been worked out in detail.

With the complex situation of Nepal, it is likely that representation will be the main issue even in the future. Special rights of indigenous people and protection of minority groups constituencies. The Maoists do, however, consider List PR in multi-member constituencies as an alternative which they think is more likely to be adopted and with would be much simpler for the voters.

215 Article 70 of the Interim Constitution.

216 Articles 38 and 44 of the Interim Constitution.

217 Members appointed in proportion to their parties strength in the parliament.

could in addition to guaranteed representation at various level of government be implemented by councils or bodies which will have to be consulted on certain issues of particular interest to the groups.