On Tuesday, the Election Commission decided to seek clarifications from the Communist Party of Nepal (Maoist Centre) chair Pushpa Kamal Dahal and Nepali Congress Central Working Committee member Arzu Rana Deuba. The action by the commission is the latest since the code of conduct for the Friday local elections came into effect.

As of Wednesday, the commission has sought clarifications from 61 parties, individuals and office bearers.

“We have warned 12 of them as of Wednesday afternoon telling them not to commit the same mistakes again,” said Yagya Bhattarai, chief of the legal department of the Election Commission. “Warning them not to repeat such mistakes is the sternest action so far by the commission.”

Dahal and Rana were asked to furnish their clarifications for their statements, which a complainant claimed amounted to threatening voters. But in all likelihood, the commission will “warn” them not to repeat such “mistakes” and let them go off the hook.

That the Election Commission is largely toothless when it comes to taking action against those who violate the code of conduct has become apparent from the past also. The commission’s action has been limited to seeking clarification and issuing warnings.

“The Election Commission is the last hope for democracy as other constitutional bodies have been attacked and therefore it needs to be strengthened so that it can monitor political parties properly,” said Bipin Adhikari, a constitutional expert who is studying ways to make the election body strong enough to punish political parties that violate the code of conduct. “The election body alone cannot accomplish all the monitoring and research given the resources it has. It needs to outsource and mobilise civil society as well.”

Even after the silent period started at midnight on Tuesday, UML deputy general secretary Prithvi Subba Gurung posted a video on his Facebook appealing to people to vote for his party.

Adhikari, who is also a former dean of the Kathmandu University School of Law, said the Election Commission has made substantial progress in controlling wall paintings, and use of campaign materials like large banners and brochures, but the major concern is that the campaign spending has not gone down.

“The election body also has the responsibility to discipline and democratise political parties but they have been showing compliance only on paper,” Adhikari told the Post. “I don’t think the Election Commission can bring the parties to line with its existing institutional capacity.”

One of the major roles of the commission is to control overspending by candidates. The commission has set expenditure ceilings for candidates contesting for different posts. However, various reports and studies have suggested that most of the candidates never stick to the prescribed ceiling and spend much more, an offence that deserves punishment.

As per Section 26 (1) of the Election Commission Act-2017, the poll body can slap a candidate with a fine equivalent to the amount spent by the candidate or the maximum spending limit set by the commission, whichever is more, in case a candidate overspends or he or she fails to submit expenditure details on time. In case the candidate fails to pay the fine, he or she will not be able to contest elections for six years and if the overspender wins the election, his or her election is automatically invalidated, as per Section 26 (3 and 5) of the Election Commission Act-2017.

Commission officials say for them to initiate action against overspenders, they need complaints and evidence. While submitting their spending reports, most candidates, however, make sure the figures mention their expenditure details within the set limit.

According to Adhikari, the commission needs a strong monitoring mechanism and it must bring those who provide prevaricated details of their expenditures to book.

Many in Nepal believe the commission, which is a constitutionally mandated independent body, has been compromised because of its politicisation. Commissioners are appointed through deals among political parties.

According to analysts and observers, when commissioners are handpicked by parties, chances of action against politicians for their shenanigans diminish.

According to Neil Kantha Uprety, former chief election commissioner, there are two reasons behind the election body failing to take action—first temptation and the second fear—although the commission has powers to do so.

The willpower of the officials in the Election Commission to take risk will also matter when it comes to taking action against the political actors as they can even suspend candidates and strip them of elected positions, according to former election commissioners.

That Nepal’s Election Commission is weaker than similar bodies in other democratic countries is also evident from the fact that its status has been constitutionally made lower than the executive.

The poll body in Nepal does not announce election dates, unlike in other democracies. It is the government that announces the dates in “consultation” with the Election Commission as per Section 3(1) of the Election Commission Act 2017.

Some observers say the election code of conduct itself is vague and there should be distinction between morally binding and legally binding issues so that an election tribunal could be formed to take action against those who violate legally binding codes.

“Since the commission has to work closely with politicians, this lessens the capacity of the commission to take action against them and therefore political actors should be made accountable for their actions,” said a chief election commissioner, asking not to be named. “We cannot resolve these problems with the existing mindset we have now.”

According to him, there is a huge gap between the expectations from the commission and its capacity as there are thousands of cases of code violations.

Some commission officials say that the problem is with necessary resources for monitoring and investigations and not the laws.

According to them, the constitutional body depends on the government for its financial and human resources so that there will be some kind of attachment and that could impede the commission from taking necessary action against those in power.

“If there is a certain mechanism to manage necessary resources including human resources, it could be easier for the commission to take action against violator parties and politicians,” said Bhattarai, the chief of the legal department of the Election Commission. “We have legal provisions to slap punishments but it's very difficult to verify and ascertain the complaints against leaders and parties.”

According to Bhattarai, gathering facts and evidence is very difficult for the Election Commission which needs lots of resources and professionals, including a team of experts. He said the Election Commission is preparing an umbrella law so that all the election-related provisions can be streamlined.

Some observers say that just enforcing stringent laws against political parties and their leaders may not necessarily yield desired results.

“We need to motivate the parties and their leaders to understand the spirit of the elections,” said Surya Prasad Shrestha, former chief election commissioner and now an election observer. “We cannot discard the leaders as they are the guards of democracy. So, we all, including the media, should continue questioning them and demoralise those who violate the election codes.”

Chief Election Commissioner Dinesh Thapaliya said he would answer all the queries related to non-action against the code violators only after the polls as he was very busy managing the polls.

“I will explain to you in detail how the commission could be empowered… once the polls are over,” said Thapaliya.