-This article was originally published by Jai Venaik in The Himalayan Times on February 4, 2018.
February 7 would see the last election that would pave way for the first government formation in Federal Nepal. The National Assembly or the Upper House (or second chamber) is the farthest away from direct voters. Their election is held indirectly through directly elected representatives at state and local levels coming together as an electoral college.
The house forms the second half of the Parliament whose role and purpose is largely understated in the new Constitution. Part 8 of the Constitution informs us of the election and other procedures of members and officials while Part 9 lists the legislative procedures which contain the subtle differences between the functions of the two houses. Given its composition of eight members from each state; it is largely seen as a product of the new federalised setup and is a chamber for raising state issues at the national table. The upper house has limited role when it comes to financial or ‘money’ bills and lacks numbers to display strength in a joint sitting vote. So, the question simply pertains to the role of the second chamber in Nepal’s government architecture.
The second chambers originate in the Westminster Parliamentary System as the House of Lords in the United Kingdom. The aristocratic chamber was representative of the old families and the clergy of England, Wales and, Scotland and were largely seen as houses of continuity. However, David Lloyd George (starting in 1909) made significant changes that decreased the functioning and role of the second chamber. Upper Houses, in contemporary times, usually take a supervisory role and form one of the cogs of the checks-and-balances mechanism. The Senate Generals of the Netherlands are a prime example of the upper house restricted to only a supervisory role. For other countries, both houses in a parliamentary setup may have the same or different powers given the rationale behind its existence. Spain and Canada are examples where the upper house has imperfect bicameral systems, the Spanish Senate does not have the power to pass a vote of no confidence against the government while the Canadian Senate does not have the power to introduce financial bills among other differences. However, in some countries the second house has equal powers to that of the lower house. The Senate in both the United States of America and Italy have equal powers as examples of perfect bicameralism, however, the mode of election of members in both these are vastly different – the US Senate is directly elected with equal numbers, while the Italian Senate is a mixed system, consisting of a direct as well as proportional system.
Of 193 countries in the world, Nepal joins league with 78 other countries with a bicameral legislature. The National Assembly is elected through single-transferable voting system with inclusion of represented classes through reservation of seats for women and marginalised communities. Indirectly elected, the second house tends to be largely an associated body with a largely oversight role. An example of imperfect bicameralism, the National Assembly in Nepal does not have specific roles as seen in examples of other countries. The Indian Rajya Sabha has special powers of initiating central intervention in state legislative fields, creation of public service commissions and approval of proclamation during an emergency imposed in the country. Similarly, the Italian Senate only has powers regarding the dissolution of a regional council. Second chambers are often characterised as embodying a particular measure of wisdom, balance and expertise. Certain chambers have made outstanding contributions to the law-making process and improving the quality of legislation. The Rajya Sabha Bill on transgender rights ushered a new wave of human rights reform in India, passed unanimously by the house even when it was presented by a member of the opposition. In Belgium, special majority laws protect the rights of the two linguistic communities, with further provisions for the evaluation of a bill which a linguistic group considers discriminatory. The cultural communities are also represented in the second chamber.
In federal countries, second chambers act as regional representations at the national level. The German Bunderstat is a prime example of the chamber acting as a regional voice on the federal level. Legislations are first tabled and approved by the Bunderstat only after which they move to the Bunderstag (lower house). Bunderstat has exclusive veto powers over legislation affecting state powers in Germany. Similarly, the Australian and the United States of America’s Senate were founded as federal houses to represent the voice of states in Canberra and Washington respectively. However, both of these bodies soon evolved into national legislative institutions on an equal footing with their respective lower house.
Second chambers have drawn criticism given their role and effectiveness in a thriving economy. For example, media reports have cited how political parties have sold upper house seats to private individuals (India). Delay in passage of legislations (Austria, Germany) and deadlocks in government (US) are other issues associated with second chambers but second chambers effectively serve an important part of a democracy.