Constitution Study #15: Analysis of the constitutional loopholes and provisions that permit hegemony of political parties
No constitution is perfect. It is an ever-changing, dynamic document. The 2015 Constitution of Nepal envisions “the people’s competitive multiparty democratic system of governance” in its Preamble. There is a dedicated Part in the Constitution regarding the political parties. These provisions and constitutional loopholes, however, allow political parties to exert undue influence over all institutions.
How the Political Parties Gain Superpower…
1. Article 270
Part 29 of the Constitution has provisions relating to the political parties. Article 269 allows their registration with the Election Commission, unless their names, objectives, and insignia “jeopardise the religious and communal unity of the country or fragment the country”. Article 270(1), however, prevents prohibition on political parties. Article 270(2) takes it a step further, preventing a single political ideology, philosophy, or programme from taking over.
(1) Any law, arrangement or decision so made as to impose any restriction on the formation and operation of a political party and on the generation of publicity in order to secure support and cooperation from public-in-general for the ideology, philosophy and programme of the party pursuant to Article 269 shall be deemed to be inconsistent with this Constitution and shall, ipso facto, be void.
(2) Any law, arrangement or decision so made as to allow for participation or involvement of only a single political party or persons having similar political ideology, philosophy or programme in the elections or in the political system of, or in the conduct of governance of the State shall be deemed to be inconsistent with this Constitution and shall, ipso facto, be void.
The proviso is a constitutional safeguard against dictatorship, but it is actually a double-edged sword because the political parties gain absolute power to do anything as long as they claim they are acting within the Constitution. And as Lord Acton said:
Power tends to corrupt, and absolute power corrupts absolutely.
2. Control over Poll Candidates
Article 84(2) mandates a closed-list proportional representation (PR) system for 110 members of the House of Representatives, where voters cast ballots for a party, not an individual. The selection process of the candidates is often opaque. Also, even though the method is supposed to encourage representatives from the marginalised communities, candidates who are in or close to the party leadership get shortlisted. As a result, there is a centralisation of power within the party hierarchy, as the leadership determines the prioritised order of candidates on the list, effectively deciding who will be elected.
But then the 165 candidates for the first-past-the-post (FPTP) are also those who are favoured by the party leadership. Election “tickets” are given to those who can flatter the party leaders with money and obsequies and not the ones who have actually worked at the grassroots level.
3. Forming the Federal and Provincial Executives
The entire constitutional process for forming a government is predicated on the actions, alliances, and numerical strength of political parties. Whether a government is formed by a single majority party, a coalition of parties, or the largest party in a hung parliament, its existence is inherently a product of inter-party and intra-party politics. This makes the executive branch directly dependent on party dynamics, ensuring that partisan considerations remain central to its formation and survival. Moreover, when alliances shift at the federal level, the effect is seen in the provincial government and vice versa.
4. Enforcement of Party Discipline upon the Elected Representatives
A key instrument of party control is found in Article 89(e) and its equivalent, Article 180(e). They stipulate that a member of the Federal or the Provincial parliament loses their seat if their political party provides official notification that they have defected (left the party or voted against the party line in the parliament).
This anti-defection clause grants party leadership immense power over individual legislators. It can compel the MPs to vote strictly along party lines, potentially overriding their personal conscience or the specific interests of their constituents, thus centralising authority within the party structure and diminishing the autonomy of elected representatives.
Party leadership can ensure loyalty post-election through the credible threat of expulsion and subsequent loss of their parliamentary seat.
5. Issuing Ordinances
Under Article 114, the President, on the recommendation of the Council of Ministers, can promulgate an ordinance when Parliament is not in session. While necessary for addressing urgent matters, this power can be used by the executive to bypass legislative debate and scrutiny, particularly if parliamentary sessions are deliberately delayed or prorogued. This constitutional loophole has the potential to be used to further interests of political parties or other groups.
However, the legislative check requires that any ordinance be tabled before Parliament once it convenes and ceases to be effective if not adopted, or automatically after sixty days.
6. Appointment of Non-Elected Ministers
Article 78 permits the appointment of a person who is not a member of the Federal Parliament as a minister, with a six-month deadline to gain membership. While it can be used to bring technocratic expertise into government, it could also be exploited to appoint political allies who have failed to secure an electoral mandate. Non-elected party members have even made budgets and long-term policies undermining the concept of representative governance.
The risk is partially mitigated by Article 78(4), which explicitly bars a person who lost the election to the then House of Representatives from such an appointment, but the provision, overall, creates a potential loophole that could undermine the principle of a legislature-derived executive.
7. The Game of Appointments
The greatest leverage political parties have is the ability to influence appointments of the Judges, including the Chief Justice, the Attorney General, and the members of various constitutional commissions.
Inclusion of the Minister for Law and Justice, a jurist appointed by the Prime Minister, and a senior advocate or an advocate recommended by the highly politicised Nepal Bar Association in the Judicial Council (Article 153) allows firm control of political parties in the judiciary.
The Constitutional Council (Article 284), which recommends the Chief Justice and Chiefs and officials of Constitutional Bodies, consists of the Prime Minister as the Chairperson and key legislative leaders as members. Article 284(1) allows the Minister of Law and Justice to become the member of the Constitutional Council while making a recommendation for the appointment of the Chief Justice. This provision creates a formal channel for executive and legislative influence over appointments in the Election Commission, CIAA, NHRC, and so on.
The structure of these key institutions creates a potential avenue for politicising the judiciary and constitutional commissions, thereby entrenching the role of political parties in a process that is essential to judicial independence and to the impartial functioning of commissioners tasked with holding the executive, the legislature, and political parties accountable.
Conclusion: A System of Potential Party Hegemony
In the interactions managed in the Constitution, political parties emerge as critical fulcrums upon which governance pivots. They act as the primary conduits of political authority, mediating power across all three branches in all three levels through control over electoral lists (Article 84) and the enforcement of party discipline via anti-defection laws (Article 89(e)).
Ultimately, the stability and effectiveness of Nepal’s constitutional framework depend not on the separation of its state organs but on the faithful adherence by all political and institutional actors to the principles of checks and balances, the failure of which has led to the current constitutional crisis.
