Two-phase election is problematic, says Bipin Adhikari

The government has finally introduced the revised Constitution of Nepal (Second Amendment) Bill 2074 to the parliament. The process on the Bill has already started, following discussion on the concept of the Bill last week. Meanwhile, the preparation of the Election Commission for the local elections, slated for May 14, has also reached the final stage. The political parties are crossing swords over the statute amendment and election. Ritu Raj Subedi of The Rising Nepal talked with senior constitutional expert and Dean of the Kathmandu University School of Law (KUSL) Dr Bipin Adhikari on these thorny issues. Excerpts:   


The nation is heading for the local polls amidst deep political discord. Holding the overdue election is good for the federal republic, but the growing crisis of trust seems to hurt the vibrancy of electoral democracy. How do you analyse this scenario?


I think the more you delay the polls, the more discords there will be. There will not be democracy if it does not compel the politicians and their parties to go to the people periodically. The proposed polls will impel them to do so. If they can show their worth and possibilities, they can come back with the necessary electoral strength and popular mandate. Amendment to the Constitution will never be an issue in that case. The problem exists because you want to do things before you go to the people. You fear that the people might not accept your agenda. I do not see any crisis of trust; the crisis is here because the people have been left outside. 


The government has announced the elections will be held in two phases - first in the hills and then in the Terai. Elections are to be held even in those districts with normalcy and peace in the second phase. This decision seems to satisfy the Madhesi forces. But critics argue that this will generate a psychological division among the populace. Do you agree with this line of thought?


It is obvious. The Election Commission is prepared even today to hold the election on May 14 throughout the country as initially announced by the government. It has already completed most of its preparation. The Commission remains a strong organisation. There is no need to doubt its efficiency or commitment. The people, including the Madhesis, are desperate to go to the polls. The law and order situation is under control.  However, the government is hell-bent on holding the elections in two phases for no apparent reason. There will always be some parties that will not be interested in the polls. This should not serve as a ground for the two-phase elections at all. What do you want to prove by this?  Is there any need to look to the hills differently than the Terai? I think the government is interfering in the Election Commission and affecting its autonomous status.   


The government is set to bring the fiscal budget two weeks before the second phase of the polls. The opposition argues this goes against the grain of democracy and parliamentary system of government. What is your take on it?


The local elections must be held on May 14 as announced, and throughout the country, without exception. The government can go through discussion on its policy proposal and budget presentation in the parliament after that. The election code of conduct is already operative. The government is not supposed to take any policy decision before the elections that affects a free and impartial election, not to mention the intended revenue and expenditure of the government. You cannot constitutionally take the budget approval process to post-phase II elections. If the budget is unveiled before it, it will hit the core principles of the electoral code of conduct; doing it later will be a violation of the constitution. You know that Article 119 requires that the Minister for Finance present the estimate of revenues and expenditures on Jestha 15 (mid-May) each year. The new constitution is specific about it because our governments had failed to maintain fiscal discipline in the past. The Election Commission has already instructed the government not to bring the budget before the second phase of the poll.


Is it the only reason that makes you stand against the second phase of the election one month later?


The second phase of the election is problematic on other grounds as well. The one month gap between first polls and second polls as envisaged will create further problems in our typical context. You cannot keep the ballot box for long without counting the votes. Once you count the votes, you will have to declare the results. This will impact the voting behaviours of the voters in the next round. This will not be taken by the losers in good humour. Alternatively, if you just keep these boxes for one long month, nobody will believe that the electoral integrity was not violated. Once the date of the election is announced, the government must not indulge in activities that affect free and fair elections at the cost of the other political parties contesting the election.


The government and agitating Madhesi parties recently struck an agreement on constitution amendment to ensure the latter’s participation in the election.  In view of the strong objection by the main opposition to the pact, do you see the prospect of the revised amendment proposal being passed in the House?


Again, because of the electoral code of conduct, this type of political negotiations cannot be acceptable. The proposed changes involve many political issues on which the parties differ with each other so much. Any deal they make will affect the parties facing the elections in a different way. You should not have announced the elections if you really wanted to open up the negotiation process again. Even then, in the given scenario, it appears the Constitution Amendment Bill might end up in a fiasco. Out of the 594 members in parliament, at present, the ruling coalition, even with the votes of the sympathisers, cannot get the 396 votes required to pass the Bill. The UML, as the main opposition, with 181 members also leads a 9-party coalition, increasing the number of their combined strength to 198 members. Unless money, muscle or threats are used, the Bill might end up in a fiasco.


Is it not a bit strange that the UML is not helping find a resolution to the remaining constitutional controversies?


In fact, I do not find it strange. What they are saying today are the very things they were saying even during the first Constituent Assembly (CA) that failed and the second CA, during which it eventually moderated on its earlier position and led to the passage of the new constitution. That means they remain principled in their orientation even when they helped make a grand compromise. I do not find them unconvincing when they say let’s go to the people with our amendment proposals and come back to the parliament with the proposal that have been voted by the people with renewed strength. The country is casting their ballot at the three levels of elections in the next eight months, and the parties wanting further change beyond the great compromise should seek the consent of the voters first. After all, we believe in democracy, and there is no other way out left. If you believe you are speaking for the people, what is the problem in involving the people in the decision making of this magnitude?      


As a teacher of constitutional law, how do you interpret the contents of the amendment proposal case-by-case?


The constitution that you have in your hand is the constitution that had been adopted after seven years of intense discussions. It was a difficult compromise and was not fully acceptable to all the parties to the compromise. It is high time it was taken to the people. Elections are the most opportune way out for this purpose. It will give an opportunity to all the stakeholders to speak about the constitution, for or against, and come back to the representative institutions with the backing of the voters who exercise political sovereignty. The people will give a verdict on the contents of the Bill. There is no need to bypass them when we need them most to settle our political issues.


That’s fine. But how do you comment on the contents of the Constitution Amendment Bill as a law teacher?


Let me re-emphasise that we don’t need constitutional amendments before the federal elections take place and the representative institutions under the new constitution are in place to plan for the next round of reforms with a fresh mandate.  On the contents, it is good to hold on to the fact that Nepal needs powerful local level within the framework of the three-tier federalism to bring changes in the life of the common people. There is no logic in breaking the direct link that the present local level will have with the National Assembly - the upper house of the feral parliament - though their strong presence in the electoral college. Their power need not be compromised because Province No. 2 is jealous. A permanent federal commission is something that is also unheard of. In a federal system, it is necessary that provinces have say in the constitution amendment process. There is no logic in compromising this norm. I think the present parliament, which has already exhausted its constitution-making power, should not have the temptation to re-open it, and that too just before the national elections.


What about the issue of giving representation to the National Assembly on the basis of population of each province?


We must not minimise the importance of striking a balance between population and geography to devise necessary representation for all. If you keep population as the only basis for representation, then Kathmandu Valley and the most populated Province No 2 will bag too many seats at the expense of districts like Humla, Mugu, Dolpa, Mustang, Manag, etc., which have been historically a deprived region. Moreover, they are also predominantly Janjati districts - desperately in need of representation.     


You already mentioned about the proposal in the Bill to form a powerful federal commission to sort out the boundary of the provinces. How democratic is it to resolve the vexing federal row through the commission? In such a situation, what will be the role of the opposition, parliament and judiciary?


It is not a bad idea to create a commission to work on the given boundary issues under the applicable law of Nepal. However, as I noted, a permanent commission featuring in the constitution and keeping the federal boundary issues open for all time is nonsense. It will be an instrument to destabilise Nepal. Whenever there is a need for such a commission, the parliament can instruct the government to form it. After it submits its report, it dissolves itself. The government can always bring in a proposal for change. One has to understand that the constitution can be amended with the necessary votes in the parliament. Without discussion, and without the participation of the opposition, nobody should think of implementing a report on revision of the boundary straight.   


You commented on the proposed amendment that seeks to deprive the right of the chair and vice-chair of the local units to elect the president, vice president and National Assembly.  The Madhes-based parties visibly want a stronger province and insist that the local bodies should run under its jurisdiction. Is it the province or local units that should have greater autonomy and more rights in line with the federal principle?


The three-tier federalism concept is the creation of the new constitution. This is the first time that the model is being worked out in Nepal. It creates a delicate balance of power between all three levels of government. Many of the parties in Nepal would not have accepted the federal principle had there been no commitment to the three-tier federal system. If you do not create a powerful third-tier government, the grassroots people, the deprived Janajatis, Dalits and Madhesis, for example, will have little role in local politics. The powerful third tier is important also to create a special, protected or autonomous region under Article 56 (5) of the Constitution.  


What can be a practical way out to the demands of the Madhes-based parties on language issues?


I do not think there is any issue on the matter of language. The constitution has necessary enabling provisions. A two or three language policy works for any province. If the idea is to get rid of Nepali as the language of the nation, I think this is a problematic approach.


It has been widely perceived that Nepal has become a ground for experimenting the geopolitical interests of foreign nations and power centres. Has their meddling overstepped the line and posed a threat to national sovereignty and territorial integrity?


This is true. Nobody can deny what is so obvious. You know how recently the country had to face a blockade and the effort to cut off supplies simply because the people adopted a new constitution setting aside foreign pressure. I am glad the people of Nepal are much more informed today than ever before.


The government and the judiciary have locked horns over the appointment of the Nepal Police chief.  Don’t you think that such a turf war between the vital state agencies exacerbates the transition and hampers efforts to ensure the rule of law, constitutionalism and good governance?


You are right. The appointment process of such important functionaries of the state should not be politicised. The courts are there to maintain the supremacy of the constitution and the rule of law. Their intervention should not be a matter of pride or prejudice for the government.


Do you have anything to add?


I think we have talked much already. There are always some issues in a vibrant society. We also have some. However, the efforts to introduce changes in the constitution without letting the people participate in the free and fair elections even after the adoption of a new constitution through an elected Constituent Assembly is not a good idea. 

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