The European Union Election Observation Mission has said the Election Commission (EC) fails to ensure adequate transparency in its works despite performing its duty impartially and enjoying public confidence.

In its Final Election Observation Report unveiled on Tuesday, the EU Mission said the EC did not create a mechanism for regular consultations with political parties, civil society and observers at the central level.

The decisions, internal rules of procedure, and voter registration data by administrative unit and constituency were also not publicly available. The mission observed that the poll authority failed to publish critical information on polling centre turnout and invalid votes. The EC had published the turnout district-wise instead of polling centre-wise. The EU Mission argues that polling centre-wise turnout gives a clear picture at the local level.

Domestic observers also agree that lack of transparency had made some of the EC’s decisions controversial. For example, the EC’s decision to hold re-election in Bharatpur Metropolitan City after a few ballot papers were torn up and the decision to de-list the Rastriya Prajatantra Party (Prajatantrik) were widely criticised.

“The EC took the decision based on the letter of law, instead of following its spirit, which resulted in the controversy,” said Gopal Siwakoti, general secretary of the National Election Observation Committee, one of the biggest domestic election observers.

“Transparency in its internal decision would have spared the constitutional body criticism.”

Election Commissioner Sudhir Shah said the EC is not subjected to make public all its decisions before submitting its report to the President, which it plans to do shortly. The EU Mission pointed to the EC’s failure of enforcing the election code of conduct properly despite enjoying extensive powers to punish transgression of the code by fining and disqualifying the candidate.

“Yet, the EC dealt with the complaints in a largely informal manner. This lack of enforcement undermined the integrity of the code,” it said. According to it, despite allegation that gifts both in cash and kind were given to voters, no single instance of vote buying was prosecuted.

According to the Election Commission Act, the poll body can slap a maximum fine of Rs100,000 for code violation. In cases of such offence by candidates, the EC is authorised to revoke their candidacy.

According to Siwakoti, the lack of punitive action created an environment of impunity. The EC worried more about holding the elections, irrespective of standards of the electoral process.

However, the EC maintains that it did not consider punitive action after many code violators did not repeat their acts once they were warned. “We also can’t expect standards as high as those applicable in the UK and the US in Nepal at a time when the EC was forced to hold so many elections in less than a year,” said Shah.

Mission against Khas-Aryas’ proportional representation

The European Union Election Mission has asked Nepal to consider removing Khas-Aryas from the inclusion quota under the proportional representation (PR) electoral system as the community is already well-represented.

Election laws require representation of 31.2 percent Khas-Aryas. It is in line with Article 84 of the constitution, which talks about ensuring representation of Khas-Aryas, along with other communities, in proportion to their population through the PR system.

However, the EU Election Mission said

representation of a well-represented group arguably contravenes international standards of equality, as affirmative action measures are foreseen only as a means to promote equality.

“Review the impact of the quota system on the ethnic composition of the House of Representatives and Provincial Assemblies and ensure the measures of affirmative action apply only to groups that are the subjects of negative discrimination,” the EU report said.

Anne Marlborough, a legal analyst at the EU Mission, said civil society members pointed out that Khas-Aryas are well represented in the first-past-the-post electoral system, raising concerns whether they should share the PR seats too.

The EU Mission’s comment on the quota has irked the poll authority. “It would have been better for the EU to have raised this issue in other forums, instead of the report to be submitted to the EC,” said Election Commissioner Sudhir Shah.

However, Marlborough defended the comment saying they are mandated to speak on the issue as Nepal is a party to the Convention on the Elimination of All Forms of Discrimination against Women and the Conven-tion on the Elimination of All Forms of Racial Discrimination. (PR)