Election Commission : : Elections in Nepal : : Nepal Election Portal

Background Information

Framework for the Election to the Constituent Assembly of Nepal April 2008

The Constituent Assembly is the body of representatives authorized by the Interim Constitution to draft a new Constitution for Nepal. This Constituent Assembly is to be directly elected by the people of Nepal in order to make it representative of Nepali society and ensure that all groups in Nepal can participate in this historic process.

The current Interim Constitution legislates for the creation of a 601 member Constituent Assembly, with 575 of these members being directly elected and 26 being appointed by the Cabinet after the election takes place.

The Constituent Assembly Election was originally expected to take place in June 2007, but as this date approached and the necessary election laws were not in place it was necessary to postpone the election until November 2007. The Constituent Assembly Election again had to be postponed again as November 2007 approached due to political deadlock over a range of issues. Some of the parties in Nepal refused to participate in an election until these issues were resolved and it was felt that an election held under these circumstances would not be legitimate.

With the conclusion of a political agreement in December 2007, Nepal was able to announce a new date for the Constituent Assembly Election. The election is now scheduled to take place on 10 April 2008 which is at the end of the Nepali year 2064.

Electoral System

The Interim Constitution of Nepal utilizes a "mixed system" for elections to the Constituent Assembly. The First Past The Post system is used to elect 240 members of the Constituent Assembly and a Proportional Representation system is used to elect the other 335 directly elected members. Each voter will receive two ballots, one to vote in the First Past The Post election and one to vote in the Proportional Representation election.

First Past The Post Election

For the purpose of the First Past The Post Election, Nepal is divided into 240 geographic electoral constituencies. Each constituency elects one member to the Constituent Assembly.

The ballot for the First Past The Post Election shows the electoral symbols (but not the names) of the candidates registered to stand for election. Candidates can be representatives of political parties, or can be independents.

Each voter casts one vote for their preferred candidate. The votes cast for each candidate are counted and the candidate with the most votes is the winner.

Candidates are allowed to compete in up to two constituencies. Should a candidate win in both constituencies, she/he selects the one she/he wishes to represent, and a by-election is held in the other constituency.

Proportional Representation Election

The 335 proportional representation seats are elected using one ballot which all voters receive, and with Nepal being a single electoral constituency. Only political parties registered with the Election Commission can stand for election under the Proportional Representation system no independents can run. Each party must submit a list of candidates to the Election Commission by 20 February in order to have their political party symbol displayed on the Proportional Representation ballot.

When submitting lists of candidates to the Election Commission, political parties are required to ensure a certain level of representation on these lists for women, dalits, oppressed castes/indigenous ethnic groups, backward regions, Madhesis and Others (see details below). Lists which do not comply with these quotas can be rejected by the Election Commission and must then be corrected by the party within seven days and re-submitted to the Election Commission.

The type of proportional system being used for the Constituent Assembly Election is a 'closed list' system, meaning that voters cast a vote for their party of choice but do not have control over which individuals the party selects to become members of the Constituent Assembly. Each voter can cast one vote for one party on the Proportional Representation ballot.

The votes cast for each party are totaled for the entire country. This determines how many seats out of 335 each party will be allocated. The seats are allocated to the parties according to the proportion of the total votes that each political party receives. For example, if Party A gets 20% of the votes cast under the Proportional Representation system then they will get 20% of the seats i.e. 67 of the 335 seats elected under the Proportional Representation system.

Finally, once a party knows how many seats it has won, it must choose the candidates to be elected from the party list of candidates (the list submitted to the Election Commission on 20 February prior to the election). The political parties can pick from anywhere on their lists. They do not have to select the candidates from the top of their lists in the order in which they were submitted to the Election Commission - as is more normal democratic practice. For example, if a party can choose five candidates, they do not have to choose the first five people on their list. Rather they can select people from the top, middle, end of the list, or anywhere in between - in any order they wish. However, parties do have to ensure that the candidates they choose meet the quota requirements for representation of women, dalits, oppressed castes/indigenous ethnic groups, backward regions, Madhesis and "others".

Proportional Representation Quotas

According to the Constituent Assembly Members Election Act, 2007, candidate lists submitted by political parties for the Proportional Representation election must cover at least 10% of the seats to be elected under the Proportional Representation system i.e. there must be at least 34 candidates submitted on a candidate list. The candidate lists are also required to consist of at least one-third women and to have the following minimum representation from the groups listed;

Sectoral group/region	Female	Male	Total Percentage
Dalit	6.5	6.5	13
Oppressed Caste/Indigenous groups	18.9	18.9	37.8
Backward region	2	2	4
Madhesi	15.6	15.6	31.2
Other groups	15.1	15.1	30.2

It is possible however for candidates to meet more than one of the categories meaning the a party can meet several quotas by having for example a Madhesi Dalit female as their candidate.

The category "Backward region" refers to nine districts in Nepal: Achham, Kalikot, Jajarkot, Jumla, Dolpa, Bajhang, Bajura, Mugu and Humla. These areas were chosen as they are at the bottom of the development index for Nepal's 75 districts.

It should be noted that these quotas (with the exception of the female quota) were originally only applicable to closed lists submitted by political parties covering more than 20% of the seats to be elected under the Proportional Representation election i.e. lists with 67 or more candidates. However, the 1 March agreement between the government and some of the Terai parties saw this percentage being increased to 30%, such that the quotas were only applicable to candidate lists with 101 candidates or more. The requirement for one-third of the candidates to be women is still applicable to all candidate lists under the Proportional Representation election.

Constituent Assembly Duration and Responsibilities

The term of the Constituent Assembly will be for two years from the first meeting of the Assembly. The first meeting of the Constituent Assembly should take place within 21 days of the final election results. The Constituent Assembly can be dissolved before the stipulated time and such a decision can be taken by the Assembly itself.

The Constitution Assembly will have two major roles:

Write a new Constitution for Nepal
Exercise legislative functions until elections are held under the new Constitution

The first meeting of the Constituent Assembly will decide the future of the Nepali Monarchy. This will be the first major decision taken by the Constituent Assembly. A simple majority will be required in this first meeting of the Assembly in order to confirm the decision already taken by the Interim Parliament to dissolve the monarchy and establish a republic in Nepal.

Observer and Stakeholder Comments

The mixed electoral system chosen for the election of members to the Constituent Assembly is used in a number of established democracies and is seen as a very robust electoral system combining the advantages of both first-past-the-post/majoritarian systems and proportional electoral systems. However, observers have raised concerns about some of the practicalities in implementing this system in Nepal.

One of the most significant concerns has been the system of selecting the 335 winning candidates for the Proportional Representation race, an approach which has been called "undemocratic" by some experts. The legal framework allows a small group of party leaders within each political party to select "winners" from anywhere on their party's candidate list, thus ensuring that the party elites maintain a tight control over the party and its candidates. Normally parties must submit their candidate lists in the order in which they will select winners, which means that voters know with some level of certainty which candidates they will be electing with their vote. Under the Nepali system voters have no way of knowing which of the up to 335 candidates on the party list will be selected by the party if that party wins seats.

A second issue that has been raised concerns the "Other group" quota in the electoral law. This 'Other group' is defined as communities not clearly mentioned in the five other listed categories. Some observers believe that when the "Other group" was originally identified in the Interim Constitution it was meant to provide affirmative action for previously oppressed groups not already covered by the previous five groups identified, such as the Muslim community in Nepal. When parliament expanded this constitutional provision into the electoral law legislators chose to define the "Other group" as "everyone else in Nepal", and hence this group could also be used to include the advantaged groups of Nepal such as the Brahmins. This could result in candidates who are elected under this quota being predominantly from already advantaged groups in Nepali society, while other previously disadvantaged groups, not covered by the other five quota definitions, will not obtain the intended representation in the future parliament of Nepal.

A third issue is the system of allowing a candidate to run for election in two separate First Past The Post constituencies, which is not deemed to comply with democratic best practices. It is not unusual for mixed systems to allow candidates to run in both the Proportional Representation election and in one First Past The Post election. Allowing candidates to run on two First Past The Post elections makes the likelihood of by-elections much greater and lengthens the time required to bring closure to the electoral process.

Finally, the decision to only put the electoral symbol of candidates on the First Past The Post ballots and to only put the electoral symbols of political parties on the Proportional Representation ballots has raised concerns from some stakeholders. The rationale for using symbols is sound. A large percentage of the Nepali population is illiterate; therefore it is essential that candidate and political party symbols be used on ballots. However there are many in Nepal who can read and the ballot should be as informative as possible. Providing the names of candidates and political parties on the ballot, as well as the symbols, is more standard democratic practice.