I have no hesitation in saying that constitution implementation will get complicated if elections are conducted in three different timelines
For the past few months, the government and ruling parties are giving false message that the constitution will be implemented on time. Recently, the government unveiled a time-bound action plan outlining promulgation of laws, setting up of federal, state and local level structures, appointment of commissioners in key constitutional bodies and holding three elections—local, provincial and national parliamentary—by November 2017.
The action plan stipulates local election by this December and other elections—provincial and central parliamentary—in May-June and October-November 2017, respectively. Particularly the plan to hold local election in December 2016 has become a matter of controversy. This article aims to assess its probability from technical perspective.
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Constitutional provisions
January 21, 2018 is a crucial date in implementation of the new constitution. According to article 296 (1), the existing parliament expires on the day. Thus Nepal has no other alternatives but to conduct all three elections before this date. Nepal’s climatic condition offers only two windows—spring and autumn—for organizing elections at once throughout the country. And the country has to wait until March/April if poll plans for November fail. For November elections in 2017, candidates will have to file their nominations before September-end, 2017. As per the constitution, tenure of present parliament will end on the last day of such nominations. Thus, a great deal needs to be accomplished within the next 15 months.
The fate of any elections depends on political, legal and technical challenges as well as the behavior of political parties, government and the election management body. Let us see what level of preparedness is called for and where we stand today.
Political understanding is the key. For this, the new constitution must be amended based on an understanding among four major political forces—Nepali Congress, CPN- UML, CPN (Maoist Center) and the Madheshi Front—in order to accommodate the concerns of agitating parties. This political settlement will pave the way for common understanding on key milestones, principles and processes. But recent political climate is not encouraging. Nine months have already passed since the constitution was adopted, but differences over it are yet to be resolved.
In this background, what magic will induce our political leaders to resolve the long-debated issues so soon? Political forces, it seems, are more interested in power games rather than implementation of the new constitution.
On the legal side, out of the 100-plus new legislations to be developed within the present parliament’s tenure, around a dozen and a half are related to election. The Election Commission has already clarified that it requires at least 120 days for technical preparations once electoral laws are in hand. The constitution only deals with macro-level electoral policies; new laws are needed to actually implement these policies. These issues are complex. The devil, they say, is in the detail. The 2007 Interim Constitution fixed that June as CA election date but the process of finalizing key electoral laws was so complicated that it became impossible to hold elections so soon. The 2008 CA elections had to be postponed thrice because of political bickering. This is because political parties in new democracies agree to participate in polls only when they see a chance of winning.
Additionally, Nepali parliament’s law-making capacity is not encouraging. On average, 10-12 laws get parliamentary endorsement in a year.
However, in 2007, nearly three dozen legislations were passed. During that critical time, all major political forces were in government and the whole process was steered by a dominating leader, GP Koirala. Sadly, the situation now is not as encouraging. We needed a full nine months just to finalize the parliamentary regulation.
On technical front, election commission and other external parties have different preparatory roles. Pending technical works include finalization of the numbers and boundaries of the provinces; delimiting boundary of 165 National and 330 State Parliament’s constituencies; reconstituting local bodies (expected to come down to around 1,000 from existing 3,500); fixing the voter cut-off date; and setting exact elections dates. Only with all these done will the election commission be in a position to prepare for elections. The commission to reconstitute local bodies has been given a one-year mandate and it is expected to submit its final report by mid-March, 2017. All these tasks are politically sensitive and demand consultations among key stakeholders.
In 2007, some political parties obstructed parliament for three weeks demanding the review of provincial boundaries finalized by the constituency delimitation commission. The main accusation was that the commission had bypassed consultation and that it was an opaque process. Finally, the dispute was resolved by amending the Interim Constitution.
If not done properly, these exercises may invite fresh political unrest. This cannot be completely ruled out in a deeply polarized political climate.
We have to keep in mind that the fragile Nepali society is still in transition. Managing the fragility demands high level of understanding and strong participative, transparent and consultative approaches among key stakeholders.
Providing required legislations, finalizing numbers and boundaries of local bodies and creating an enabling political climate will not be possible within the government timeframe of this July. Moreover, rumors are rife that local body reconstitution commission is facing tremendous pressure to submit the report six months in advance. We are witnessing the consequences of the fast-track constitution. Let’s not repeat the same mistake.
I don’t see any sense in investing our time and resources on elections of existing local bodies, which will expire once local bodies reconstitution commission submits its report. We must conduct election based on the new constitution. I don’t see any possibility that the government will be able to clear legal, institutional and technical hurdles and bring all forces on board for December 2016 polls. Even if all preparations are complete, we should still not conduct election this December for two reasons.
First, the entire country will have to focus on election once its date is announced. The country will thus be a virtual hostage of electoral process for a minimum 4-5 months. This in turn will spark fresh rivalry among parties. This is thus the time to focus in developing legislations, establishing key institutions and filling major positions. These tasks demand a great deal of understanding among major political forces. Once election process starts, chances of creating such political understanding will be low.
Second, election results will make political parties change their positions. The losers will try to delay the remaining elections until they feel comfortable. For example, first Constituent Assembly elections were postponed thrice mainly due to this factor. I had a bitter and humiliating experience when the election commission was forced to notify candidates lining up to submit their nomination papers that the elections had been cancelled.
Based on my experience I have no hesitation in saying that constitution implementation will get complicated if elections are conducted in three different timelines.
In informal conversations, some political leaders say Article 296 (1) of the new constitution can be amended to extend election date. But the prime minister has categorically ruled out this possibility. Once this Pandora’s Box of election is opened, I fear, the future of the new constitution will be in jeopardy.
In this context, my advice is to focus the whole national energy in creating sound political environment, developing legislations, creating required institutions and completing technical preparations within 2073 BS. With this strategy, more or less by the end of this year we will have all required policies and institutions. Number and boundaries of federal provinces, parliament constituencies and local entities will also be in place.
Then we can make 2074 BS an election year and totally focus ourselves with elections. Without any prejudice, let us discuss the possibility to conduct all these three elections at a single time, by end of 2017. If that is not possible, conduct local level elections in May-June 2017 and conduct provincial and central parliamentary election together in October-November 2017.
The author is former Chief Election Commissioner
