NITI NOTE: Democracy And Elections Agenda

Niti Note: Placing The Strengthening Of Democracy At The Heart of the Elections Agenda

July 6, 2022, 7:46 a.m.

“The protection and consolidation of democracy in Nepal will require more than what the Elections Commission Nepal (ECN) has been doing since its establishment. Apart from attending to the technical management (during the election period) of elections according to the prevailing Constitution, the ECN should also fulfill its normative role and support the electoral system and accountable government. This will create space for the ECN to, directly and indirectly, work on the issues of better representation of public interest, fairer and more equitable policies, and increased accountability of the government — matters that deeply affect citizens’ commitment to democracy and contribute to Nepal’s democratic consolidation.”

Published by Niti Foundation, a Nepali non-profit organization engaged in strengthening Nepal’s policy process through collaborative research, innovative policy adoption, and enhanced policy choice, above mentioned statements stated on its NITI note Placing the Strengthening of Democracy at the Heart of the Election Commission’s Agenda, is highly relevant at this time of juncture when the preparation for the next two major elections for federal and Provincial Parliaments are underway.

Nepal has been holding elections since the establishment of democracy in Nepal since 1951. However, every election indulged in controversy over the issue of free and fairness issue. Every political party prefers to contest the elections being in power. Similarly, each political party, which contested the elections out of the government, terms the elections partially unfair and always questions the accountability of the Election Commission and elections. While ruling alliance welcomes the recently concluded local elections as historically fair. However, the main opposition party CPN—UML terms the elections partially fair and blamed the elections commission for taking the side of the candidates of the ruling party. Exercising the voting rights in several elections in four different political sets up, conciliation of the vote is yet to reduce. In the recently concluded elections, the cancelation of the ballot is much higher. At a time when Nepal’s elections process, Election Commission, an Election Managed Body, and legal system have a history of over seven decades, Nepal’s elections process is still stuck with the question of accountability, and the issue of fairness in polling, legal systems and credibility of the institution. All these issues have been there for a long. However, for the first time, an effort has been made to analyze and review the entire elections process to see how accountable, independent and capable EC is.

Election Commission has already submitted the date of elections November 16 or November 18.

After successfully conducting the local elections, Elections Commission (EC) is now in the process of reviewing the entire elections process including its role, functions, and shortcomings. Its aim is to overcome the shortcomings to be better prepared for the coming election at the Federal and Provincial levels.

Chief Election Commissioner Dinesh Kumar Thapaliya, in a recently concluded program organized to review the local elections, has announced to hold two major elections: Federal Parliament and Provincial Parliament by Mid-December.

Similarly, Prime Minister Sher Bahadur Deuba also said that the government is committed to holding all periodical elections this year in coordination with EC. The House of Representatives (HoR) and the provincial assembly election are scheduled to be held in December this year which is the reason the Prime Minister expressed commitment to the timely election as critics were expressing suspicion of a fair and timely election.

CPN-UML, the main opposition party, has already constituted a high-level committee to prepare candidate lists and necessary election campaign preparations for forthcoming elections. As it is in opposition, CPN-UML leaders still hold doubt about the fairness of elections.

“We don’t believe that this government will hold the election free and fair. Our party workers and people will carefully watch elections and the performance of the Elections Commission,” said K.P. Sharma Oli, leader of the main opposition party.

Niti Notes has rightly pointed out the shortcomings of the Election Commission. “The success of the ECN is remarkable amidst Nepal’s ongoing democratic challenges. These challenges come from a feeble democratic commitment from political parties, extremism, a declining standard of the rule of law and public accountability, slow social transformation, and corruption. While the election period that occurs every five years constitutes a key aspect of the ECN’s role, the intervening non-election period is also critical for the Commission to expand on its normative role of democratic consolidation. The ECN cannot be expected to only perform mere technical administration of elections. It also has to see itself as playing a wider instrumental role in the continued consolidation of Nepali democracy. This is understood by the ECN, as evidenced by its third five-year strategic plan where the Commission articulates that its organizational goal is to ‘extend to every citizen the opportunity to freely exercise their right to vote during free, fair, impartial, legitimate and efficient elections’ and thereby ‘contribute to the strengthening of democracy and the enhancing of good governance.”

Niti Notes Importance

As there is elections fever, the publication of Niti Notes, which analyze the entire process of elections including the shortcomings of existing laws and regulations and possible way to make the EC’s role effective under the present constitution, is timely.

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Prepared by eminent constitutional lawyer Dr. Bipin Adhikari as a lead author, reviewed and strategy oversight by George Varughese and Mohan Das Manandhar, two prominent policy experts and analytical contribution of Ian Payne, a constitutional expert, the note is a short but detailed analysis and recommendations designed to support EC’s effort to hold free and fair elections and strengthening its institutional capacity.

Along with senior experts, young researchers Sushav Niraula, Sneha Ghimire and Ranju Bista were involved in drafting and editorial support. The note is the first of its kind and specifically analyses the pre-institutional requirement for independent institutions like Elections Commission Nepal to conclude its democratic task.

Published just a few days before the completion of a review of the May 13 local elections, the note analyses the necessity of independent electoral management bodies, and the operation and monitoring roles of the EC, in the protection of democracy. The note also reviews strategy and reform initiatives that the commission, could consider in both the election and non-election period to ensure sustained democracy in Nepal.

Prepared after wild consultations, interviews and meetings with wide stakeholders including Election Commissioners, former elections commissioners, constitutional and legal experts, parliamentarians and civil society members, eminent constitutional lawyer Adhikari extensively review the national and international practices and legal systems, and the note analyzes Nepal’s elections process in all major dimensions including constitutional, legal, institutional, voters, civil society, political parties.

“While the election period that occurs every five years constitutes a key aspect of the ECN’s role, the intervening non-election period is also critical for the Commission to expand on its normative role of democratic consolidation. The ECN, cannot be expected to only perform mere technical administration of elections. It also has to see itself as playing a wider instrumental role in the continued consolidation of Nepali democracy. This is understood by the ECN, as evidenced by its third five-year strategic plan where the Commission articulates that its organizational goal is to ‘extend to every citizen the opportunity to freely exercise their right to vote during free, fair, impartial, legitimate and efficient elections’ and thereby ‘contribute to the strengthening of democracy and the enhancing of good governance,” writes a note.

Periodical Elections

Speaking in a program in Kathmandu on the occasion of the 64th Parliament Day Prime Minister Deuba said that holding the elections free and fair manner is key to strengthening democracy.

“Periodical election was the backbone of democracy and the government was committed for timely election. “Periodical election is the basis and backbone of a democratic system, we will conduct the election in time at any cost,” PM Deuba said.

Chief Election Commission Thapaliya and his team have already started the initiative to bitterly equipped the EC to conduct the forthcoming elections free and fair.

“Learning from our past experiences, EC is taking all necessary steps including new elections law with sweeping power related to the election process,” said CEC Thapaliya.

Experiences have shown that holding a periodical election alone is not enough to strengthen democracy but concerned bodies must ensure that the elections will be free, fair, participatory and credible.

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Niti Notes points out,“elections are the cornerstone of a competitive, plural political system. By exercising adult suffrage, the sovereign people of a democratic country establish their government and institutionalize democratic and accountable governance. It is for this reason that elections are led and conducted in every democratic country by (usually independent) electoral bodies or other such institutions that may accomplish this job independent of the influence of the incumbent government.”

Elections Review

During the recent review workshops conducted in all seven provinces, EC shared best practices and problems identified for future correction. The EC also collected suggestions on how future elections could be made more effective. Given the situation, the suggestions and recommendations made by the note are more relevant to move ahead.

Although it held the local elections free and fair, EC, an election management constitutional body, has many challenges before it. In any democracy holding periodical elections for all the tires of governments free and fair is highly important and Nepal is not an exception. However, EC needs to be institutionally, legally capable and credible postures.

“After conducting the local level successfully, the time has come for us to complete our two major tasks holding the elections for federal and provincial parliament. Given our institutional capability, laws and necessary support from all the political parties, we can repeat our performance in December,” said chief elections Commissioner Thapaliya addressing the elections evaluation meeting in Kathmandu.

As a constitutional body announcing to hold the periodical elections and expressing its commitments to place all the mechanisms, and institutional capability to create conducive environment for the elections, chief election commissioner Thapaliya has assured political parties, civil society organizations and common people that they are alert to fulfill EC’s constitutional duty.

Equipped with constitutional power, laws, regulations, and support of civil society organizations, EC has shown that reforms are possible with the dedicated and strong leadership head of the institution. “ Our one and only job is to ensure free and fair elections periodically and work to create a conducive environment to vote for sovereign people. We now need to focus on voter list updates and make necessary arrangements to provide opportunities for eligible candidates to vote,” said chief commissioner Thapaliya. “I have already requested the government to provide Electric Voting mission to the commission by end of July.”

Chief Election Commissioner Thapaliya said that the Election Commission was holding preparations for the polls as it was the EC's responsibility to conduct the Federal and Province Assembly elections by mid-December. He also demanded the amendment of law giving authority to the EC to decide the election date.

Completing the renewal meetings of the local level polls in all seven provinces, CEC Thapaliya said that the Commission still requires the support and backing of civil society organizations to make the commission more effective. “We need more technical support to review election laws and regulations.

Learning from the local election, EC is now reviewing the entire election process including registration for voting cards to completion of the vote count, and dispute mechanism.

The Election Commission (EC) has also urged the government to make necessary arrangements for the use of electronic voting machines in the upcoming House of Representatives (HoR) and Province Assembly (PA) elections.

“The success of the ECN is remarkable amidst Nepal’s ongoing democratic challenges. These challenges come from the feeble democratic commitment from political parties, extremism, a declining standard of the rule of law and public accountability, slow social transformation, and corruption. While the election period that occurs every five years constitutes a key aspect of the ECN’s role, the intervening non-election period is also critical for the Commission to expand on its normative role of democratic consolidation. The ECN, cannot be expected to only perform mere technical administration of elections. It also has to see itself as playing a wider instrumental role in the continued consolidation of Nepali democracy. This is understood by the ECN, as evidenced by its third five-year strategic plan where the Commission articulates that its organizational goal is to ‘extend to every citizen the opportunity to freely exercise their right to vote during free, fair, impartial, legitimate and efficient elections’ and thereby ‘contribute to the strengthening of democracy and the enhancing of good governance,” says Niti Notes.

EC In Preparations

EC is preparing a draft bill to amend the existing election act aiming to election inclusive and representational. The act will also cover the use of voting machines which can make the elections process free and fair. According to the EC, it has already written to the Council of Ministers, the Nepal Government through the Home Minister, seeking its role to make arrangements for electronic voting.

The EC in a press statement said it seems the management of an electronic voting machine manufactured within the home was not possible for the upcoming polls citing various reasons, and sought the government's facilitating role in managing the import of machines by upcoming mid-July.

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“Election management bodies, such as the ECN, are important actors for the promotion and protection of democracy in any democratic nation. It is, therefore, critical to consider the ways in which the ECN can promote and further strengthen democracy beyond the exercise of a free and fair electoral process. This note was commissioned with this purpose. This note analyses: the necessity of independent electoral management bodies; the operational and normative roles of the ECN in the protection of democracy; and strategies and reform initiatives that the Commission could consider in both the election and non-election period to ensure sustained democracy in Nepal,” writes Niti Notes.

Why Niti Note Matter

Elections Commission is doing periodical reviews on the elections process and laws, shortcomings and corrections and EC will likely hold a number of programs aimed to seek suggestions to reform its system. In this process, the Niti Note can support EC’s objective.

“The objective of this note is to review the status and operations of the ECN beyond the technical management of elections and explore its broader teleological role of contributing to the strengthening of democracy in Nepal. In doing this, the note will explore the following questions: How is the strengthening of democracy — and not simply the execution of elections — contained within the ECN’s operational agenda? How, in its day-to-day operations, has the ECN sought to promote democratic values and commitments? What kinds of resources does it deploy in service of these ideals? Beyond these activities, how may the ECN better foster democratic values and commitments? What kind of activities and modes of operation can the ECN embrace with the state and civil society? What constraints stand in the ECN’s way? The goal of this exploration is to place the strengthening of democracy at the heart of the ECN’s agenda. In maintaining the above focus, this note does not seek to suggest that election management is not the core element of the ECN’s constitutional role. However, by exploring the ECN’s instrumentality beyond mere election management, this note seeks to highlight the greater role that the ECN can embody towards the consolidation of Nepali democracy under the present constitutional legal framework. 2 Nepal Election Commission, ‘Third Five Year Strategic Plan 2076/77 - 2080/81,” writes Niti Note.

“Independent electoral management bodies (EMBs), like the ECN, have increasingly been understood to be important institutions — comprising part of a ‘fourth branch of the state — that can help guarantee and strengthen democratic consolidation, and act as bulwarks against democratic decay. The emphasis placed on independent EMBs is even greater in contexts of ongoing democratic challenge and transition. This is because a politically biased or compromised EMB will struggle to confer credibility on contested electoral matters, which can undermine the legitimacy of the wider political system.”

“It should come as little surprise that the independent model where the Commission has safeguards from the executive’s whims is the most common institutional model for electoral governance worldwide. This is the case in Nepal, where Articles 246 and 247 of the 2015 Constitution require the government to provide the ECN with the necessary assistance to perform its constitutional role.

“The ECN also remains institutionally independent from the executive branch of government. The Constitutional Council, chaired by the Prime Minister with the representation of the leader of the opposition and Chief Justice of the Supreme Court, among others, recommends the appointment of ECN officials.8 These officials are outside the purview of the executive, report to the parliament, and fall under the impeachment proceedings of the HoR.10 Despite the legal commitment to the ECN’s independence, there is still a need to be cautious, as it is an EMB’s de facto independence — not merely independence on paper — that positively affects electoral integrity.”

Minister for Law, Justice and Parliamentary Affairs Govinda Prasad Sharma Koirala said that the government has been providing all kinds of support demanded by the Elections Commission. “We will continue to do so. Once the commission submits its needs through the Ministry of Home Affairs, the government will proceed with it.

Deputy Parliamentary Party Leader of CPN-UML Subas Nembang, however, criticized the government for not doing enough to further strengthen the institutional capacity of the Election Commission. “The government must forward the proposal sent by EC told Nembang to New Spotlight.”

Niti Notes Chapters

Divided into five different chapters, the Niti Note specifically discusses and analyses the matter concerning an election management body like the elections commission to hold free and fair elections.

The notes analyze independent Electoral Management and Democratic Consolidation, functions, duties, and powers of the Election Commission of Nepal. The notes also look at operational or technical roles and formative roles related to protecting and promoting democracy.

Similarly, the note also discusses challenges before the Election Commission, creating a National Election Policy and streamlining Existing Laws and Procedures.

At a time when everyone is talking about the need to make political parties accountable and transparent, the note discusses reforming the Political Parties Act 2017 and ensuring constant coordination between the ECN and political parties.

One of the major issues confronting the post-elections issues is the settlement of mechanism to settle disputes. The notes discuss implementing standard electoral dispute resolution procedures and regulating and monitoring campaign finance.

Educating voter is a key aspect of the elections process and Nepal has also been conducting regular voter education course which is regarded as too technical. This is the reason the Election Commission reported over 5 percent of invalid votes in the last local elections. Thus, the report discussed providing regular civic education beyond technical voter education

Despite the inclusive and representative constitutional and legal provisions in the constitution, Nepal’s electoral process is yet to accept it. The notes also discuss fostering Inclusion and Participation in Electoral Systems and Processes Providing Voting Rights to Non-resident Nepalis Incorporating a NOTA option and other areas for reform.

The election is not a one-time agenda or it is just an event of voting, counting and electing representatives. Elections are a regular process that required persistent effort and reform. For this Elections Management Body like Election Commission Nepal needs regular technical and non-technical support like Niti Notes.

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“Nepal’s new constitution has greatly made the electoral process exclusive and representational. However, challenges remain in building the capacities of local Election Commission to carry its new duties, and in coordinating with federal and provincial-level governments to ensure free and fair elections,” said Manandhar, Executive Director of Niti Foundation.

“To identify, support, and convene present and future policies, laws and regulations and reform, to support Nepali organizations and individuals that work on public electoral reform,” said Manandhar. “This note is one of the parts to achieve the overall objective in these agenda to have a strong Election Management Bodies to ensure free and fair elections.”

“Our approach contributes to the larger discourse on the improvement of the election process. This note is the part of our effort to strengthen the constitutionalism in Nepal.” Niti Note

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