As row over polls deepens, provinces’ case is differentLegal experts and provincial leaders assert that politicians in Kathmandu should not decide on provincial assembly elections as the provinces are empowered to do that.
Amid discussions on postponing local level elections, for which the Election Commission has proposed April 27 and May 5 dates, some ruling party leaders are arguing that it would be better to hold all three tiers of polls together.
There, however, is not one single view on when they should be held if they were to be conducted simultaneously. Communist Party of Nepal (Maoist Centre) chair Pushpa Kamal Dahal first stirred the political pot by proposing federal elections in April-May while delaying local elections.
It was Madhav Kumar Nepal, chairman of the CPN (Unified Socialist), who proposed all the elections at one go during the latest meeting of the coalition partners on January 21. On Wednesday also Nepal, addressing a function at his party office, reiterated that polls of all levels should be held once to cut expenses.
Nepal held its local elections in 20 years in 2017 in three phases—on May 14, June 28 and September 18. Federal and provincial elections were held in two phases—on November 26 and December 7.
As per the electoral law, local elections must be held by May 20 this year so as to elect representatives in all 753 local federal units. According to the laws, the first phase of elections is counted as the cut-off date and that the term of the representatives is deemed to have begun seven days after the voting.
Those seeking to delay local elections are citing Article 225 of the constitution, which says the term of a village assembly and municipal assembly shall be of five years from the date of election and another village assembly and municipal assembly shall be elected no later than six months of the expiration of such a term, the constitution says.
The main opposition CPN-UML has already warned against delaying local elections, saying that such a move would be against the constitution and rule of law. The UML has been demanding local elections on the commission-proposed date(s).
Amid the debate over when the elections must be held, some ruling alliance leaders are proposing all tiers of polls simultaneously.
Experts say as far as provincial elections are concerned, the provinces have the prerogative and that a handful of leaders in Kathmandu cannot dictate on that.
According to constitutional expert Chandra Kanta Gyawali, as far as the House of Representatives is concerned, the prime minister cannot consider holding the elections early instead of waiting until November-December.
The incumbent Sher Bahadur Deuba government was formed as per Article 76 (5) of the constitution, the last of the constitutional provisions after exhausting all provisions. Now if the prime minister thinks he cannot ensure stability, he can call for elections early, said Bipin Adhikari, another constitutional expert.
But the constitution has prescribed a different set of provisions for provincial assemblies.
Provinces hold the prerogative to announce polls to elect new assemblies before they complete their five-year term depending on their own situations.
According to Article 167 (7) which talks about constitution of the State Council of Ministers, in cases where the chief minister appointed under clause (5) fails to obtain a vote of confidence or the chief minister cannot be appointed, the chief of province shall, on recommendation of the chief minister, dissolve the Provincial Assembly and appoint a date of election so that the election to another Provincial Assembly is completed within six months.
Article 167 (5) is the last of options available for electing a chief minister after all other provisions fail, just like Article 76 (5) under which Deuba was appointed prime minister.
“All issues of the elections for provincial assemblies will be locally decided and the federal government can only declare the polling dates as per the constitutional provision,” said Adhikari, the professor and former dean of Kathmandu School of Law.
“Politicians are not basing their statements on facts. They cannot dictate when the elections to provincial assemblies should be held as the seven provinces can conduct their polls on separate dates according to their political situation as they have different combinations in governments.”
Adhikari also said leaders’ statements aimed at serving their political interests cannot be implemented.
Provincial leaders say elections in the provinces should be held as per the need and the situation, rather than the will of the politicians in Kathmandu.
“The constitution has clear provisions regarding provincial polls so there is no need for the political parties to worry,” said Lalbabu Raut, the chief minister of Madhes Province, over telephone. “First of all, the terms of provincial assemblies should end. Only then does the process for provincial elections begin.”
According to Raut, the vested interests of the political parties and their leaders have caused unnecessary problems.
“I was also a member of the second Constituent Assembly and I had lobbied for allowing the Election Commission to decide on election dates but that could not happen due to the leaders’ vested interests,” said Raut. “And now the entire country is suffering.”
“You all know the mentality of our leaders. They have not changed their centralised mindset yet,” said Jeevan Bahadur Shahi, chief minister of Karnali Province. “Different provinces have different issues and situations and the political parties in Kathmandu cannot dictate what the provinces should do.”
According to Shahi, political leaders want the provinces to do what they wish and that was the major problem in efforts to promote federalism.
“They only say we have made you the chief minister but you could not deliver,” Shahi told the Post via telephone. “But they ask us to run with our feet and hands tied up.”
He said the spirit of federalism was not only to appoint a handful of ministers and a chief minister, without allowing them to work as per the constitution.
“If the provinces are not allowed to make decisions, why does the constitution have the same provisions for the provinces as for the federal parliament,” Shahi said.
But another chief minister said that the date of the provincial elections may be decided by the federal government but the parties can only make suggestions.
“Parties can only give suggestions to the government and the federal government has to decide when to conduct the polls but the term of provincial assemblies should be completed,” said Rajendra Pandey, the chief minister of Bagmati Province, who is a CPN (Unified Socialist) leader. “The decision of the federal government should be guided by the constitutional provision.”
Though the federal government has the authority to take decisions on holding the provincial assembly elections, the constitution does not imagine early elections except in the situation when the assembly has been dissolved.
Constitutional experts also say the elections to provincial assemblies cannot be held before their term ends on November 20. Both the federal parliament and provincial assembly polls were held in two phases on November 26 and December 7 in 2017.
“Party leaders cannot override constitutional provisions and decide early elections of either the federal parliament or provincial assemblies,” said Gyawali, the constitutional expert. “The federal government can decide on the provincial assembly elections but they cannot be held early unless any assembly is dissolved.”
Constitutional expert Bhimarjun Acharya, however, said the government can declare the elections to provincial assemblies before their term ends and that could be together with the federal parliamentary elections as was done earlier or separately.