The huge number of laws has meant that the process of election becomes difficult, tedious and confusing from the legal standpoint. So there are calls for integrating these laws into an umbrella Act to simplify the process
Nepal has made big strides in constitutional, electoral and legal reforms in the past several years. Following the promulgation of the new constitution in 2015, Nepal held a series of elections for all three tiers of governments – central, provincial and local level. Nepal follows a mixed model of election system, including First-Past-The-Post, Proportional Representation as well as Single Transferable Voting System. The country is currently experiencing transition to a federal democratic republic and is in the process of formulating hundreds of new laws in line with the new constitution.
At the centre of debate is reform in the electoral laws. Nepal presently has a set of 11 different Acts, 29 different Rules and over 80 Directives related to election.
As such, there are over 100 laws that govern elections. The huge number of laws has meant that the process of election becomes difficult, tedious and confusing from the legal standpoint. Naturally, there are calls for integrating or codifying these laws into an umbrella Act to simplify the process.
In practical terms, the current system in Nepal has also led to several problems that often impede the holding of free, fair and independent elections. Political dominance in the appointment of the Election Commissioners, financial control by the executive, control of human resources by the executive and the power of declaring the election date in the executive have meant that the Election Commission of Nepal (ECN) is not as fully autonomous as is envisaged by the constitution.
Therefore, it is imperative for Nepal to undertake a series of reforms in electoral governance. After the series of elections in 2017, there is a stable government at the centre as well as in the provinces and the local levels.
Before the next round of elections in 2022, there is ample time to discuss and decide upon the new set of reforms. Nepal Law Society (NLS) has been supporting constitutional development, rule of law, an independent judiciary and electoral reforms since the last four decades.
In the past, the NLS was engaged in the observation of 11 elections, including parliamentary as well as local elections.
Against the backdrop of those observations, the NLS and other stakeholders have long felt the need to undertake reforms in election laws. In 2018, the NLS joined hands with the ECN and the IFES/USAID to explore the areas of reforms and identify the needs. The series of programs, interactions and studies have resulted in the following conclusions.
Widespread need has been felt by all the stakeholders – the government, ECN, Federal Parliament and civil society – about the need to reduce the number of election-related laws to make them better managed and simple to understand and execute with the ultimate aim of ensuring free and fair elections. In the elections held in 2017, there were several controversies and disputes regarding the application of election laws – such as in the registration of the electoral rolls, publication of ballot papers, vote counting procedure, delay in declaration of results as well as the implementation of the election code of conduct. In short, we have concluded that in order to overcome the aforementioned obstacles, Nepal should have just two major elections laws – an Act related to the ECN and an Integrated Act on Election.
To integrate the several election-related provisions into a codified law, a group of 10 election and drafting experts are currently working to give final shape to the two laws. The ECN is also closely involved in guiding the team of experts so that the laws are tailor-made.
The proposed reforms in the draft include reforms in all three phases – pre-election, during election and post-election. In the pre-election phase, the draft proposes that election programmes be announced at least three months in advance; that the power to declare the election date as well as administer election officials and control finances be given to the commission; stringent power to the ECN to enforce the code of conduct; and stringent provisions to regulate the political financing of the elections by making transactions through banks compulsory.
Likewise, it proposes reform to ensure that all voters who reach 18 years of age on the election date are included. It proposes reforms in the selection of polling centres and ensuring that they are gender- and disabled-friendly. The draft also proposes providing power to the ECN to strictly enforce the constitutional provision regarding the quotas for women and other minorities.
During election, the draft proposes easing transport and movement during the day; ensuring accessible polling centres; and power to the Returning Officer to declare the polling void in case of any undue activities. In the post-election period, the draft proposes laws allowing immediate vote-counting in the polling centres and declaration of results.
It also proposes the practice of allowing No Vote or None of the Above (NOTA). It also allows for laws permitting voting by eligible Nepalis living overseas. The new proposed reforms
can bring about massive changes in the practice of holding free and fair elections in Nepal, as well as in the whole of the South Asian region, in the coming days.
Pradhan is Executive Director, Nepal Law Society and Secretary General of General Election Observation Committee
A version of this article appears in print on December 06, 2019 of The Himalayan Times.