A check for changeWhy do we need reform in election laws?
2017 was a watershed year in Nepal’s electoral history. In fact, it is a rare and historical global occasion when a nation has to conduct three elections in a single year—the federal, provincial and local levels. Subsequently, the upper house of the federal legislature also had to be elected. For this, the government, political parties, Election Commission of Nepal (ECN) and the voters, all deserve commendation for their role in ensuring that the nation fulfilled its constitutional obligations. The series of elections had an impressive turnout of around 70 percent on average. It resulted in the election of leadership in 753 local levels, 7 provincial assemblies, House of Representatives and the National Assembly. Despite some glitches related to technicalities and some issues related to effectively enforcing electoral code of conduct, these elections were managed quite well and were peaceful even by international standard. Yet, we need an election reforms.
Starting at the heart
First of all, it has been shown through various international experiences that institutions are the vital to the consolidation of democracy. Independent and strong institutions are the key assets of democracy. Periodic elections, being the backbone of any representative democracy, must be managed by institutions with the due independence and strength. The ECN is recognised as a constitutional body by the Constitution of Nepal 2015. So constitutionally speaking, the ECN has been accorded with the autonomy and independence it requires. But do these ideas reflect in practice? There are varying answers to this question; but it largely depends on the constitutional functions and rights enjoyed by the ECN.
The Constitution has listed clear responsibilities for the institution—such as the renewal of party registration and their monitoring. Such rights and responsibilities are provided for in Articles 245, 246, and 247. Article 245 clearly outlines that one chief election commissioner and four election commissioners are appointed for six year terms by the president at the recommendation of the Constitutional Council. Article 246 grants the right to conduct, operate, direct and control the elections of president, vice president, members of federal parliament, of provincial assemblies and local level to the Election Commission as per federal laws. Likewise, the Commission is also responsible for collecting and updating the electoral rolls for this purpose. The Commission can also hold referendum on issues of national importance as per federal laws.
Similarly, Article 247 states that the government of Nepal, provincial governments and local level governments have to provide the Commission with necessary staffs and other support needed to carry out its duties. The Election Commission Act 2015 has detailed provisions related to the procedure as well as other functions and rights. Apart from the constitution there are laws such as the Political Parties Act, and other election-related laws for federal, provincial and local level elections. Then there are numerous guidelines and code of conduct that are clearly outlined as well.
Despite a plethora of legal instruments, confidently witness a fully independent and strong ECN during the elections is somewhat unrealised.The numerous allegations of persistent violations against the standard electoral code of conduct, the executive transgressions on administrative and managerial issues all point to several handicaps that beset the ECN.
The announcement of the election date, for example, should have been the primary responsibility of the ECN. Likewise, it should have the financial and administrative autonomy, the strength to enforce the adherence to Election Code of Conduct, the capacity of smooth and regular registration of voters, and should have provided the right to vote to millions of Nepalese working overseas.
For example, on the eve of elections last year, the ECN was hamstrung because all its human resources had to be borrowed from the government; the staff on-the-ground reflected more loyalty to the government—by nature of their primary affiliation—than the ECN. The ECN’s secretary was transferred just one week before the election. It had to continuously request for laws and budgets from the government. The security personnel were deployed by the Home Ministry and weren’t directly answerable to the ECN. Scores of media reports on the many code of conduct violations went unpunished because the political parties appeared dominant. The ECN was forced to impose only token punishments on violators. In fact, only small fishes were penalised. The process of declaring the election results were also riddled with weaknesses as the ECN had to take all parties into confidence in each step. The incident of disputes in the vote-counting process in Chitwan is a case in point.
Four major issues
As such, there are four major matters that face the ECN: the need for coordination and integration of election-related laws; effective voters’ education to overcome complexities of election system; providing voting rights to Nepalese living overseas; and sticking to election good governance.The first step towards overcoming these challenges requires coordination and integration of election-related
laws. The election system in Nepal is complicated as different systems are typically used to conduct different elections from the presidential to the local level.
The Election Commission’s website shows that there are 10 acts related to the election, seven rules and more than 30 guidelines.The segregated and different laws of election have made it difficult for all stakeholders. It has affected people’s easy access to election. Although there are different laws on election offence and punishment, the provisions related to electoral rolls offence is present in Act related to electoral roll. Issue related to election expenditure is present in both Election Commission act and other election related laws. It is not appropriate that provisions on election code of conduct, election monitoring and observation, and disqualification of candidate is included in Election Commission Act. It shows that timely coordination and integration of election laws is necessary.
But these reforms will be incomplete without demonstrated commitments made by the government in conjunction with political parties and voters. To escape the current situation—where money and muscle dominate many electoral strategies and intentions— the legal reforms that give teeth to the ECN should also accompany corresponding attitudinal changes on part of the political parties, candidates and voters.
Pradhan is the Executive Director of the Nepal Law Society.