Sher Bahadur Deuba is prime minister because he is a Member of Parliament who has the support of the majority in the House of Representatives (HoR) as per Article 26(5) of the constitution, and not because he is the leader of the Nepali Congress parliamentary party. This is really a unique provision incorporated in the constitution, which cannot be found in any democratic constitution.

Perhaps, the political leaders were scared of hung parliaments, which could lead to mid-term polls due to premature dissolution of the HoR in the future. This apprehension is strengthened by Article 167, which is related to the appointment of the chief minister of a province. It stipulates the same provisions in letter and spirit.

The Constituent Assembly incorporated numbers 17 for the Local Executive and 18 for the Local Legislature to deal with the local level government (LLG) to decentralise governance.

The constitution, vide Articles 125 (6) and 126 (6), provides for a five-year tenure of the executive members of both village and town municipalities (chairman, deputy chairman, ward-chairman and members).

However, Article 225 of the constitution provides for a five-year term for village and town assembly (Sabha) members with a time frame to hold the next election within six months of the expiry of the tenure to ensure that the tenure can neither be curtailed nor extended beyond it.

The stipulation of sixmonth limitation accepts that an election is a long process to be completed within months and perhaps also to meet any emergency.

Surprisingly, the Local Level Election Act 3(1) instructs the Election Commission (EC) to hold local level elections within two months before the terms of the village and town assemblies end. It raises three questions: Why should the election not be conducted within one month or three months? Why was the provision for an early election not incorporated in the constitution itself despite being so vital? Was it left out deliberately? To me, it was left out knowingly to hold free and fair elections. In South Asian countries, misuse of power and money has become a common norm. To check on it, a level playing field should be provided by law and also by the EC.

When candidates in power contest elections, there cannot be a level playing field for all contesters.

Hence, a fair election might have been the pious intention of the CA members, which has been proved by the furor made over the early election to benefit from it.

With regard to the second question, it is well known that no law can contradict or supersede the constitution, and if needed, then the constitution has to be amended accordingly.

However, in Nepal there is a history of such lapses, as no party comes forward for any legal redress as what may not suit it today may suit it tomorrow.

The constitution is always regarded as a political document to be changed as and when required and never as a precious one.

There are examples of violations of the constitutional provisions by the government.

In 1992, the then chief election commissioner Surya Prasad Shrestha was appointed ambassador to Britain after he conducted the local election, which was against Article 103 (7) of the constitution of the Kingdom of Nepal 1990. Article 125 (3) of the Interim Constitution was violated while appointing members of the Public Service Commission (PSC).

The Interim Constitution was put on the backburner to hold the second CA election by the caretaker government under the chairmanship of the then sitting Chief Justice. The new constitution has also been grossly neglected. The constitution's inclusive provisions are not applied to the appointments made by the PSC, and to political appointments made by the government.

Significantly, the EC seems to function above the Supreme Court and the constitution in enrolling the voter's names. The constitution guarantees all Nepali citizens of 18 years of age the right to vote, and those who have obtained citizenship are bona fide citizens and should not be deprived of this right. However, the EC does not enroll those bona fide citizens in the voter's rolls without their photos and thump's impression.

To get enrolled as a voter is one thing and casting votes is another, though these events are correlated.

Voting right has been guaranteed by the constitution but to vote is a matter of choice. One may or may not cast one's vote if a suitable candidate is not found.

Regretfully, despite the instruction by the Apex court, the EC has not changed its course.

There is yet another confusion with regard to the Local Election Act related to phase- wise polling. The aim of Article 3 (2 and 4) is to facilitate the EC in conducting the election. Again, some questions arise: What could be the gap between the two phases? Can an elected representative's constitutionally-mandated right to represent his constituency be curtailed by any law? Yes, it happens, as the election date of his election is counted with the date of the first phase of the election, which deprives him of his constitutional right to represent his constituency for a full term.

The law has taken the right guaranteed by the constitution away.

Though the notion of the constitution adopted by the elected CA was mooted in 1951, it was concretised only in 2015 through the second birth of the CA. The monarchy did not take it kindly. It appears even today some leaders find it as an obstacle in charting out their political course. The present situation reminds us of German philosopher and geometrician Benedict Spinoza's saying, 'every determination is negation'.

Truly, the present constitution has negated absolute powers. The political leaders cannot do what they want to do freely. In order to get a free hand in achieving their goals, they find their hands tied by the constitution.

Since they don't need it at all, it would be better if they discarded it as early as possible.

Mishra is a former election commissioner

A version of this article appears in the print on February 2, 2022, of The Himalayan Times.