The ruling Nepal Communist Party’s decision to nominate party vice-chair Bamdev Gautam as National Assembly member has once again raised the question: Have Nepali politicians indeed internalised the concept of bicameral legislature, and the essence of the Upper House in its truest sense?

Constitutional experts say the decision to send Gautam to the Upper House is problematic, prima facie, as he lost the 2017 parliamentary elections. Appointing a person who was rejected by the people to the hallowed chambers of the National Assembly is akin to disrespecting the electorate, and by extension democracy, they say.

Purna Man Shakya, a senior constitutional lawyer, said the National Assembly, in principle, is envisaged as a place where people from diverse groups, marginalised communities, intellectuals, experts and representatives of different provinces come together to make laws.

“The government must answer and explain to the people how its decision is in accordance with the spirit of the constitution and the objectives of the National Assembly,” Shakya told the Post. “This is a question of propriety.”

Gautam is the second politician to be appointed to the National Assembly even after losing parliamentary elections. In January , Nepal Communist Party spokesperson Narayan Kaji Shrestha was appointed to the Upper House. While Gautam lost the contest for the Bardiya constituency during the 2017 elections to Sanjay Gautam of the Nepali Congress, Shrestha couldn’t beat Baburam Bhattarai of then Naya Shakti Party for the Gorkha-1 seat .

According to a report by the International Institute for Democracy and Electoral Assistance, an organisation promoting sustainable democracy, members of the Upper House should be picked in such a way that they represent sub-national governments, and act as a body of experts to scrutinise decisions made by the Lower House.

Constitutional and political experts say the electorate for the National Assembly is different from that of the House of Representatives to ensure that people different from those in the Lower House make it to the Upper House.

Article 86 of the Constitution of Nepal authorises the President to nominate three people, including a woman, to the 59-member Upper House. Constitutional and political experts say that such seats should be reserved for people from underrepresented communities or for those who have specialisation in various fields.

The nomination of Yubaraj Khatiwada, who has faced criticism for his policies as finance minister, escaped censure as he is a technocrat who holds a PhD and has served twice at the National Planning Commission as its vice-chair and once at the Nepal Rastra Bank as its governor.

The other two people nominated to the Upper House by the President, along with Khatiwada, are Bimala Poudel Rai and Ram Narayan Bidari.

With the ruling party’s decision to nominate Gautam, the government now has to recommend Gautam’s name to the President for the National Assembly seat.

The presidential nomination in the Upper House, however, has become a tool to “manage” leaders of the Nepal Communist Party, experts say.

“The National Assembly in Nepal is turning into an extension of the House of Representatives to manage leaders who either don’t contest the parliamentary polls or those who lose in the polls,” said Bipin Adhikari, a senior constitutional lawyer and former dean at Kathmandu University School of Law.

Even if Khatiwada were nominated, it would have been wrong this time as he has already completed his tenure, said Adhikari.

Experts say the concept of the National Assembly is derived from the principles laid out by the House of Lords in the United Kingdom. Though its representation and functions vary from country to country its primary role is to conduct informed and intellectual deliberations on the legislation.

The Upper House, also called the “House of Elders”, often has to maintain checks and balances on the Lower House.

As the Upper House is expected to make mature decisions, the age threshold for membership is higher than that of the Lower House. Article 87 (b) of the constitution says that citizens who have completed 25 years of age can run for a seat in the House of Representatives. However, that for the National Assembly is 35.

“In essence, the National Assembly’s place is even higher in a federal country like ours where it is recognised as a Federal House. This House should represent all the provinces and local levels,” said Adhikari.

“Thursday's decision of the ruling party [to nominate Gautam as member of the Upper House] is yet another example of how it [the ruling party] is undermining the value of the Upper House.”

Political analysts say the ruling party might argue that there aren’t any constitutional barriers for the government to nominate Gautam, but in politics, morality and propriety should get equal attention.

“The question is if our parties have anything left in them to be judged on moral grounds,” said Krishna Pokharel, a professor of political science at Tribhuvan University.

According to Pokhrel, Nepali politicians have for long nurtured undemocratic practices. “Madhav Kumar Nepal, a Nepal Communist Party leader, became prime minister of the country despite losing the Constituent Assembly elections in 2008. Gautam also became home minister even though the people rejected him the same year,” said Pokhrel. “This wrong practice has been going on for years. Gautam’s nomination to the Upper House is just another instance.”

Apart from making laws, the Upper House also checks and challenges the actions of the government, while offering a platform for independent expertise. But when the ruling party cherrypicks someone to install them in the Upper House, then they will toe the government's line and not question its actions, critics say.

Chandra Dev Bhatta, a political commentator, said the people are considered sovereign in a democracy, but Thursday's decision of the ruling party shows leaders are the ones enjoying sovereign authority.

“This is a mockery of democratic values and the people’s mandate which clearly says Gautam should stay away from legislation at least for five years,” he told the Post. “When leaders start undermining the people’s mandate, it indicates that our democracy is on a slippery slope."