Nepal
Electoral Laws, Administration and Management Review Report
/fli6«o lgjf{rg ko{j]If0f ;ldlt -lgof]s_ National Election Observation Committee (NEOC)
Disclaimer: “This publication has been produced with the assistance of the European Union. The contents of this publication are sole responsibility of the assessment team and/ or NEOC and can in no way be taken to reflect the views of the European Union.” Electoral Laws, Administration And Management Review Report
Editor : Dr. Gopal Krishna Siwakoti
Advisors : Surya Prasad Shrestha Prof. Kapil Shrestha Bhawani Prasad Kharel
Researchers : Dr. Chandra Kanta Gyawali Shree Krishna Subedi Rana Bahadur Thebe
Special Contribution : Diana Garcia Alcubilla Jakub Smutny
Translator : Rabin Subedi
Assistance : Bikal Shrestha Deepika Naidu Narendra Ghimire Binod Kumar Vishwakarma Gita Bista
Publisher : National Election Observation Committee (NEOC)
Year of Publication : 2013
No. of Copies : 250
Copyright© : NEOC
Financial Assistance : European Union (EU)
Layout/design : Unigraphics, Tel.: 01 691 2152
Printing : Ganga Jamuna Press Pvt. Ltd., Tel.: 01 438 6934 Chairperson’s Note
As credible election is the fundamental prerequisite of democracy and human rights, it is imperative that the elections should be conducted in a free, fair and independent manner. Elections should not be treated merely as a one-day fiesta of selecting the representatives. In the pursuit of ensuring the freedom of elections, it is equally important to conduct the study, investigation, analysis and implementation of different dimensions of the electoral process. Experiences around the world indicate the necessity of setting certain benchmarks to conduct a democratic election. It should also address the main issues like the selection of an appropriate electoral model, constitutional provisions, legal structures, structure of the management body, rights and obligations of the political parties and candidates, code of conduct and its compliance, appropriate mechanism to address claims and objections related to different aspects of electoral process, proper polling and effective counting process, effective election observation etc. In the present context reforms in the country’s election related constitutional and legal provisions have been widely felt which should be initiated by adopting an appropriate electoral model that can address the aforementioned issues of critical concern. In Nepal, because of an exceedingly large structure of the dissolved Constituent Assembly (CA) coupled with the performing of the dual task of legislative assembly the members were found to be more obsessed with the government formation activities than fulfilling their responsibility of constitution making. Although representation in the CA and/or the legislative parliament seemed much more inclusive compared to past ones, a sharp decline in the qualitative competence of the representatives of this body has been identified. Most of the representatives elected through the proportional representation (PR) system were found to be striving for mere recognition in their own respective constituencies. More often, majority of the PR nominated CA members were seen to be cozying up with the senior leaders of their respective political parties. Many feel that the ineffective participation of people’s representatives who were obviously lacking in quality and substance had largely rendered the whole CA and legislative parliament into a ‘prisoner of indecision’. Likewise, as the political parties have started to get polarized on the basis of ethnicity, religion and regionalism and other sectarian issues, its effects are seen in the national politics and legislature as well. This has contributed to the erosion in the leadership capability and influence of the national political parties. Even the functioning of almost all political parties is more focused towards accommodating the regional and ethnic aspirations instead of fulfilling the parties’ objectives and programs. It has, indeed, heightened the possibility of generating negative impacts on the national unity, integrity and social harmony. Such emerging ethnic and regional division could also be the outcome of the particular electoral model Nepal had chosen for the CA election. Many analysts also believe that the electoral model itself was not based on wider representation; instead, it was found to be more constrained by the ethnic and regional considerations. In this situation, now it has become imperative for the constitutional experts, political analysts and academic community to review the current electoral model and explore the possibility of its rectification. Only through such objective analysis Nepal can create the foundation of a better representation model in the new constitution which could promote political stability and democratic culture in the country. In short, some of the challenges in developing the Election Commission (EC) as an independent constitutional institution constitute the task like envisioning a representation model that guarantees direct adult franchise and candidacy, adopting of an impartial and scientific method in the constituency delimitation process, restraining misuse of financial resources and political power during the elections and developing a prompt legal system to address any dissatisfaction over the election process or the results itself etc. Similarly, it should be made mandatory for the government to provide assistance to the EC by making it available the necessary human and financial resources and other materials. As the intense competitiveness among the political parties being a complex aspect of the election, an effective communication system all over the country and a sense of security among everybody should be ensured. There should also be the constitutional and legal provisions which guarantee effective role of the officials of the EC and other government officials who are involved during the election in order to enable them to fulfill the responsibility properly. Hence, it is very important to enhance capacity among the EC and other government officials who are involved in election towards proper accomplishment of responsibilities as entrusted by the constitution and laws of the country. Otherwise, even a small mistake or error committed in course of managing elections can produce adverse reaction, mistrust and cynicism among the participating political parties and the entire electorate over the credibility of the electoral process itself. Therefore, ability to conduct election, which is a significant and sensitive job, is conducive to democratic development in the country. In pursuant with the aforementioned critical issues, NEOC with the help of electoral experts along with generous financial assistance from the European Union (EU), this document titled “Electoral Laws, Administration and Management” has been prepared in both Nepali and English languages. As such, we are highly indebted to all our friends who have contributed their valuable time and expertise to bring out this document. We hope that this document will be able to guide, to some extent, to make the upcoming elections in Nepal free, fair, transparent and credible.
Surya Prasad Shrestha Chairperson Acronyms
ANFREL Asian Network for Free Elections APF Armed Police Force BRIDGE Building Resources in Democracy, Governance and Election CA Constituent Assembly CPN (M) Communist Party of Nepal (Maoist) CPN (ML) Communist Party of Nepal (Marxist-Leninist) CSO Civil Society Organization CPP Combodian People’s Party CEDC Constituency Election Delimitation Commission CDO Chief District Officer CEDAW Convention for the Elimination of all forms of Discrimination against Women DFID Department for International Development DEO District Election Officer DDR Disarmament, Demobilization and Reintegration DRE Direct Record Electronic ECN Election Commission of Nepal EU European Union EU EOM European Union Election Observation Mission EMB Election Monitoring Body EVM Electronic Voting Machine ESP Election Support Programme EDR Electoral Dispute Resolution ECHR European Convention on Human Rights ECOWAS Economic Community of West African States FPTP First-Past-the-Post GIS Geographic Information System GoN Government of Nepal GNDEM Global Network of Domestic Election Monitors IEC Information, Education and Communication IDP Internally Displaced Person IDEA Institute for Democracy and Electoral Assistance ICCPR International Covenant for Civil and Political Rights IFES International Foundation for Electoral Systems IFE Instituto Federal Electoral ICT Information and Communication Technology MP Member of Parliament MJF Madhesi Janadhikar Forum MPRF Madhesi People’s Rights Forum MMP Mixed Member Proportional NA Nepalese Army NEC National Election Commission NGO Non-Governmental Organization NCP Nepali Congress Party NCP-D Nepali Congress Party-Democratic NDI National Democratic Institute for International Affairs NEOC National Election Observation Committee NC Nepali Congress NP Nepal Police NSP (A) Nepal Sadbhavana Party (Anandidevi) NWPP Nepal Workers and Peasants’ Party OHCHR Office of the United Nations High Commissioner for Human Rights OSCE Organization for Security and Cooperation in Europe ODIHR Office of Democratic Institutions and Human Rights OAS Organization of American States ODIHR Office for Democratic Institutions and Human Rights OMR Optical Mark Recognition OCR Optical Character Recognition PLA People’s Liberation Army (Maoist) PR Proportional Representation RRC Regional Resource Centre RPP Rashtriya Prajatantra Party RPP (N) Rashtriya Prajatantra Party (Nepal) SNTVS Single Non-Transferable Voting System SADC Southern African Development Community SMS Short Message Service STAE Staffing of The Electoral Management Body SPA Seven Party Alliance TMDP Tarai Madhes Democratic Party UDHR Universal Declaration of Human Rights UNDP United Nations Development Programme USAID United States Agency for International Development UNEAD United Nations Electoral Assistance Division UML Communist Party of Nepal (Unified Marxist-Leninist) UNMIN United Nations Mission in Nepal VR Voter Registration VIN Voter Information Notice VDC Village Development Committee VSAT Very Small Aperture Terminals YCL Young Communist League Table of Contents
Preface Acronyms Section 1: General Introduction to Electoral Education 1 1. Introduction 1 2. Electoral System in Nepal’s context 11 3. Electoral Administration 12 4. Appointment of Commissioners in Nepal 19 5. Constituency Delineation Commission Nepal 22 6. Electoral Registry in Nepal 22 7. Major Challenges 24 8. Electoral Training in Nepal 26 9. Registration of Political Parties in Nepal 28 10. Voting Process and Counting in Nepal 30 11. Elections and Technology in Nepal 34 12. Conclusion 39
Section 2: Constitutional & Legal Provisions: Review on Nepalese Electoral System 41 1. Constitutional Provisions 41 1.1 Constitutional law-2004 41 1.2 Nepal’s Interim Governance Statute, 2007 41 1.3 Constitution of the Kingdom of Nepal, 2015 41 - First parliamentary Elections, 2015 - The Panchayat Election 1.4 Constitution of Nepal 2019 42 • Popular Movement 2046 1.5 Constitution of the Kingdom of Nepal, 2047 43 • General Elections 2048 • Local Election 2049 • Mid-Term Polls 2051 • Local Election 2053 • General Election 2056 • Municipal Election 2063 • Interim Constitution of Nepal, 2063 (First Amendment) • Interim Constitution of Nepal, 2063 (Third Amendment) 2. Elections Laws, Regulations and Directives 54 3. Election Campaign: Code of Conduct 57 Section 3: International Standards 61 1. Electoral Framework and International Norms 61 2. Election Audit 64 3. Election Management: A Human Rights Lens 64 4. Free Elections: Voter Roll to Voter’s Role 65 5. Election and Democracy at Domestic Context 67
Section 4: electoral Disputes Resolution 73 1. Mechanisms of Electoral Dispute Resolution 73 2. Domestic Mechanism and EDR 78
Section 5: Future Direction 82 1. New CA Election: Status and Intricacies 82 2. Conclusion 84
Reference 88
Annexes: 91 Annex 1 : The Interim Constitution of Nepal: Part 7- Constituent Assembly 91 Annex 2 : Act Relating to Electoral Rolls, 2063 96 Annex 3 : The Election Commission Act, 2063 106 Annex 4 : Election Offences and Punishment Act, 2063 117 Annex 5 : The Constituent Assembly Court Act, 2064 125 Annex 6 : Political Party Registration Rule, 2063 130 Annex 7 : Regulation Relating to Election of the Members of Constituent Assembly, 2064 135 Annex 8 : Rules Relating to Electoral Rolls, 2063 149 Annex 9 : Electoral Systems of the World 159 Annex 10 : The Full Text of the 11-Point Agreement 164
NEOC-Central Executive Committee 166 Section 1
General introduction to Electoral System
1. Introduction Electoral systems convert the vote of people into political decision and representations. One of the fundamental elements of competitive multiparty system and democracy is periodic elections based on adult franchise. As democracy signifies rule of the people, electoral systems are the democratic methods of and from choosing representatives of people, which enables right to elect their representatives by themselves. Elections that are taking place periodically are called periodic elections. As a matter of fact, the electoral system is the foundation as well as strength of democracy. It is obvious that a legal system is always looking for enhancing and maintaining democratic choices1.
The general understanding of democracy is a representative democracy that prevails in almost all the countries around the world, particularly it is more visible in the (so called) democratic countries. As it is well known to all, representative democracy implies in popular authority, which can be expressed through the process of voting through periodic elections. Hence, modern democratic state has to guarantee universal adult suffrage. Moreover, democracy and the authority of the government are derived solely from the consent of people. The principal mechanism for translating that consent into governmental authority is the holding of free and fair elections.2
While the electoral system relies on voting in which various ballot systems and ballot counting systems are adopted, most of such systems may be categorized as either proportional or majoritarian. The proportional system is practiced as party-list proportional representation and additional member system, whereas the majoritarian system is practiced as First-Past-the-Post (FPTP) (relative majority) and absolute majority. Many countries have introduced electoral reform movements, which advocate various systems of conducting elections such as approval voting, single transferable vote, instant runoff voting or a Condorcet method. In some of the countries, these methods of elections are also gaining popularity; however, unfortunately, the counting methods are traditional as sometimes this method deduces the importance of democracy.3 While openness and accountability are usually considered cornerstones of a democratic system, the act of casting a vote and the content of a voter’s ballot are usually an important exception. The secret ballot is a relatively modern development, but it is now considered crucial in most free and fair elections, as it limits the effectiveness of intimidation.
So as to conduct free and fair elections, all the democratic countries have a provision of an independent election commission, which generally does remain as a constitutional body. The major responsibility of such commission is to conduct free and fair elections. The appointment procedures of the Chief Commissioner and other commissioners are independent.
1.1 Definition of Electoral System As stated above, elections are the democratic methods of choosing representatives of the people, and the motive of every kind of election is to assure representation of people. The methods of election can be adopted as direct or indirect. Generally direct or indirect methods may be developed and practiced in accordance with the political culture of a country. However, both means, direct and indirect, are considered as essential part of democracy. In the present context, democracy means representative democracy. Periodic elections are bedrock of any democratic system of government. In any democratic system of government, periodic elections are assured. The participation of people is guaranteed in the function of states by means of right to vote and elected representatives.
Notwithstanding, democracy underlines the rule of majority, it also includes representation of the minority in the proportional representation on the basis of population that comes within the framework of electoral system. Elections should be free, fair and reliable. Hence, the definition of electoral system includes periodic elections on the basis of adult franchise, the right to participate in elections and in the conduct of state affairs. It includes registration
1 Britannica Concise Encyclopedia: www. Answer .com /library-cite 10232584. 2 United States Information Agency, What is Democracy?, 1991, P. 16 3 en.wikipedia.org/wiki/Election_Process_in_the_Philippines
1 Review Report Electoral Laws, Administration and Management of voter list in any constituency, process of voting, counting of votes and declaration of winner. The formation of representative and responsible government, encouragement of political parties and that of opposition and to give political, constitutional and international legitimacy is assured by electoral system.
1.2 Significance of Electoral System As people govern themselves in a democracy, elections are crucial so as to materialize the importance of democracy. International human rights instruments have accepted elections as part of human rights4. “Governments come and go but people remain the same. The sovereignty of people is guaranteed by free and fair elections. Therefore, free and fair elections signify respect for the people”.5
While elections are considered to be the major instrument for measuring democratic rule, as there are various electoral systems practiced in the different democratic system, and the election alone cannot measure the merit of democracy, it is not easy to point out that a particular electoral system is more democratic. In this respect, the crucial point to be noted is whether an electoral system is working in a democratic manner or not. Electoral system has also some allegations that electoral systems have weakened democratic exercise and have contributed corruption widely in the country.
As election is the sovereign rights of the people, it makes contribution on the following issues: a) Protection and Promotion of democracy b) It increases reliability of political institutions, c) It provides alternatives to people for selecting governance, d) It ensures representation of different castes and communities, by means of proportional system, e) It makes the administrative system of the country more stable and effective.
1.3 Development/ History of Electoral System The importance of elections in democracy was realized since 6th century when the people of Athens applied elections system for the first time in the history. The first inscription used relating to election was“Plurality Vote System”.
During the French Revolution, the process of polling became a topic of study. In 1770, Jean Charles de Borda had submitted a proposal about polling in an election for French Election System. His principle was contrary to majority preference principle of Marcuse Condorcet. When there was a controversy between Condorcet and Borda about principle of elections, Ramon Lull developed a system that whosoever gets the largest votes should be the winner. This is called “Plurality Vote System”.6
In the 18th century, an electoral system was developed on the basis of population in the lower house of the American Congress. Those who favored such a system were Alexander Hamilton, Thomas Jefferson and Daniel Webster. On the contrary, in 19th century, Europe developed new method of election, which is known as. “Party List Proportional Representation”.7
Karl Andre of Denmark discovered another system of elections, which was first used in England in 1857. Elections applying this principle were held in Denmark in 1856 and in Tasmania in 1896. The system of proportional representation was used in the 20th century in the European Parliament. Belgium adopted this system for the elections of 1900. Most of the democratic countries other than the countries of former British colony are found to be adopting both proportional and non-proportional system.
In the 19th century, one-seat per constituency system was developed. William Robert Ware proposed single seat per constituency system. Similarly, Nansen electoral system was also developed sometimes later. Charles Dungson published a pamphlet on this system, which preferred Condorcet Electoral System. It was applied in America in the beginning of the 20th century, as several municipalities applied “block voting”. Proportional electoral system was used for the purpose of full representation of all the castes and communities. The application of the system is seen more in
4 Universal Declaration of Human Rights, 1948 (Art. 21) 5 Parliamentary Speech by Fidel Ramos, 12th President of the Philippines, 1994 6 www-history.mcs.st-and.ac.uk/Biographies/Borda.html 7 www.mpi-inf.mpg.de/yago.../wordnet_politician_110451263.html
2 Electoral Laws, Administration and Management Review Report elections for constituent assembly than for parliament as it is a means of proportional representation and accumulates the wastages of votes cast. Parties contesting to elections can secure seats on the basis of votes cast for the parties. In this system, there is a division of closed list and open list. This system is developed and used against “Plurality Voting System”.
1.4 Diverse Electoral Systems 1.4.1 Plurality/Majority System This electoral system is used in one member constituency where there are voters in large numbers. Whoever secures the largest number of votes is declared the winner. Many democratic countries such as the United States, India, Britain, Bangladesh, Canada many European countries and the countries of the Caribbean have adopted this system. . 1.4.2 First-Past-the-Post System Under this system, elections are conducted on the basis of one seat per constituency. The candidate securing the largest number of votes is declared the winner. This system does not require majority of votes to get elected. Even if a candidate gets one vote more than his nearest rival becomes a winner.8 This is also called single member electoral system. In case of multiple candidates’ contesting, voters mark the name of the person whom they like and put it in a ballot box and the candidate getting the largest number of votes in a constituency becomes the winner. This system was used in the elections for the House of Representatives in Nepal. On the other hand, in this system, no record about the votes cast for defeated candidates is maintained. The United Kingdom also has applied this system of election for its election of the House of Commons. In the world, there are 63 countries and territories that have adopted this system.
1) Afghanistan, 2) Samoa, 3) Barbados, 4) Barbuda, 5) Aruba, 6) Bahamas, 7) Bangladesh, 8) Belize, 9) Bhutan, 10) Iceland, 11) Burma, 12) Dominica, 13) Cook Islands, 14) Ethiopia, 15) Botswana, 16) Canada, 17) Iceland, 18) Congo, 19) Ethiopia, 20) Micronesia, 21) Zambia, 22) Ghana, 23) Grenada, 24) Gambia, 25) India, 26) Isle of Man (UK), 27) Jamaica, 28) Jersey, 29) Kazakhstan, 30) Kenya, 31) Korea, 32) Lesotho, 33) Malawi, 34) Malaysia, 35) Marshall Islands, 36) Iceland, 37) Mongolia, 38) Nepal, 39) Nigeria, 40) Northern Ireland, 41) St. Kitts and Nevis, 42) Saint Lucia, 43) Papua New Guinea, 44) Puerto Rico, 45) Rwanda, 46) Solomon Islands, 47) Iceland, 48) St. Lucia, 49) St. Vincent, 50) Sudan, 51)Switzerland, 52) Syria, 53) Tanzania, 54) Tonga, 55) Trinidad and Tobago, 56)Turks Tuvalu, 57) Uganda, 58) Britain, 59) USA, 60) Virgin Islands, 61) Yemen, 62) Zambia, 63) Zimbabwe
At least twenty-two countries, including Bosnia and Herzegovina, Cameron, Malawi, Mexico, Palestine, Panama, Paraguay, Philippines, Rwanda, Singapore, Taiwan, Tunisia, Venezuela and Zambia, have adopted this elections system in the election of their President in which the President of the respective countries is elected on the basis of majority voting. Hence, the candidate who secures the largest number of votes is declared as the winner even if he/she has not secured the majority of votes.9 This system is considered as a simple, inexpensive and effective system of election. Since the victory of a candidate is on the basis of majority voting, a disadvantage can be noticed with the system that a winner might have a change to win with minority voting as the total number of votes secured by his/her opponents in the election might be higher than his/her.
The electoral system in the US is different. According to the system followed in forty-eight states out of fifty states (the only exceptions being Maine and Nebraska) all the electoral votes for President (calculated on the basis of number of members of Congress from the state) go to the winner of votes in at hatchet state. This system is also known as Simple Majority Voting, Plurality Voting and Majority Voting.10 Merits and demerits of First-Past-the-Post Electoral System are stated below:
Merits 1) Easier for the voters to choose and elect candidates, 2) Ensures independency to contest elections,
8 www.bbc.co.uk/bitesize/higher/modern/uk_gov_politics/...vote/.../1/ 9 www.idea.int/publications/esd/upload/esd_chapter4.pdf (Extracted from Electoral System Design: the New International IDEA Handbook © International Institute for Democracy and Electoral Assistance 2005) 10 digitalcommons.conncoll.edu/cgi/viewcontent.cgi?article=1002..
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3) Possibility to be elected an impressive and talented persons, 4) Independent persons may be elected 5) Possibility to vote for candidate of one’s choice, 6) Ensures geographical and regional representation, 7) Competent candidates may be elected 8) Simple and easier system
Demerits 1) Person-oriented elections, 2) No representation of majority of people, 3) Election process becomes expensive as the candidates try to get elected by hook and crock, 4) Wastage of votes as the minority votes are not accumulated to another , 5) No equitable representation of minorities, 6) Difficult to make it inclusive, 7) Difficult for women, Dalits, indigenous people and backward class to win elections, particularly in the case of a country like Nepal 8) May lead to regional disparity, 9) As bureaucracy may support the bigger parties, possibility of irregularities.
1.4.3 Runoff Voting System There could be either i) Two Round Voting System or ii) Instant Runoff under this system a) Two Round Voting System This system is completed in two phases. There is no need for second phase if a candidate secures at least 50% of votes in the first phase. If no candidate gets a majority of votes, the two candidates who secure the largest number of votes run again for a run- off elections to be held immediately and 11whoever secures more than 50% of votes in the runoff election will be declared as winner. This system is also called the Two Round System. This system is adopted in the Presidential elections in France. This system may be suitable if Nepal adopts provisions of direct elections for the President or the Prime Minister. Countries that have adopted this system are: 1)Belarus 2) Central African Republic 3) Chad 4) Comoros 5) Iceland 6) Congo 7) Cuba 8 (Egypt 9) French Guyana 10) Gabon 11) Guadalupe 12) Haiti 13) Iran 14) Iraq 15) Kiribati 16) Kyrgyzstan 17) Macedonia 18) Martinique 19) Mali 20) Mauritania 21) Maori 22) Moldova 23) Monaco 24) Reunion 25) St. Pierre (France) 26) Tajikistani 27) Togo 28) Turkmenistan 29) Uzbekistan 30) Vietnam
Merits and demerits of Two Round Electoral System are stated below:
Merits 1) Election completed in two phases, 2) No need for a runoff elections in case one candidate gets at least 50 percent of votes, 3) In case no candidate gets 50% of votes, there is possibility of two candidates running again for the second phase, 4) Any candidate getting 50% of votes in the second phase is declared winner, 5) Possibility of a second alternative, 6) Easier to use in an illiterate society.
Demerits 1) Chances of less participation in the second phase elections, 2) Election Process is more expensive, 3) Time consuming
11 www.ssc.wisc.edu/.../ContemporaryAmericanSociety/Chapter%2017... Elections and Voting, Final Draft, August 2009
4 Electoral Laws, Administration and Management Review Report b) Instant Runoff under this system There is no need for two-phase elections if a candidate gets a certain percentage of votes. Voters declare their priority in the ballot for as many as five or six candidates. Even if no candidate gets more than fifty percent of votes, only two candidates remain as the final contestants. The winner is decided on the basis of the priority that each of the two candidates. The merits and demerits of Instant Runoff Voting System are stated below:12
Merits 1) Less Expensive 2) No need of two elections 3) Candidate is elected on the basis of priority of voters
Demerits 1) Possibility of winning of a less popular candidate if voters are not careful 2) Possibility of not wining of a competent candidate
1.5 Proportional Representation Electoral System Proportional Representation System is considered to be a system of full representation. Representation in this system is assured in a proportional manner.13 Since this system does not provide space for wasting of votes casted, many countries in the world have adopted in their elections of constituent assembly. Parties are provided an allocation of seats on the basis of total percentage of votes cast in their favor and the percentage of seats. This system is used against Plurality Voting System. Different countries in the world have experiences of adopting different types of Proportional Representation System: 1) Closed and open system in the list presented by political parties. 2) Transitional voting system that is not dependent upon parties. Even if some of the proportional systems are less reliable, but these definitely lead to representation of minorities.
1.6 The Practice of Proportional Representation System Victor de Hondit of Belgium propounded Proportional Representation System in the final decade of the 19th century. Victor de Hondit had written a book on this topic in 1892. Belgium applied this system of representation for the first time in the world.14 a) Belgium Belgium is the first country in the world to follow proportional representation system. Belgium implemented this system in the elections to its National Parliament in 1900. This system remained popular in many countries particularly after the First World War and before and during the Second World War.
Denmark followed (Ekal Sankramaniya Mat Pranali) in 1857, which is the oldest electoral system in the context of proportional elections. However, (Ekal Sankramaniya Mat Pranali) was a topic for research in the UK, it could not bring this system into practice. Tasmania adopted it in 1907. Ireland is still practicing
At the present context, many countries in the world have adopted the proportional system. The representatives to the European Parliament from the UK are elected through this system. There are approximately 97 countries in the world that have adopted proportional and semi-proportional system. The number of countries applying this system is increasing day by day.
First Past the Post System has been more popular in those countries that have adopted British Parliamentary system and Westminster style of government. In the UK, elections applying proportional system is being used in the upper house of Scottish and Welch Parliament.15 Although, this system seems little bit difficult to understand, it has been poplar around the world. It also has been popular in Canadian provinces like Ontario, British Columbia, New Brunswick and Prince Edward Island. There was a debate in parliamentary committee of New Brunswick to end the First Past the
12 archive.fairvote.org/factshts/irv.htm 13 www.eca.gov.au › Electoral systems 14 allotpedia.org/wiki/index.php/Proportional_representation 15 Electoral Reform and Voting Systems - Politics.co.uk, www.politics.co.uk › Reference › Issue Brief
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Post system till 2005. In New Zealand it was decided to follow a mixed proportional system. It was realized in Canada that proportional system is a system having representation for all the people. b) United States Proportional representation has also been applied in the US. Some cities of the US like New York applied in the elections of city assembly. The main objective of implementing this system was to end monopoly of certain political parties. The city of Cincinnati in the state of Ohio accepted proportional representation system in 1925.16 The objective of it was to end the party ruled by the Republicans. However, the Republicans succeeded in ending proportional representation electoral system in 1957. They raised the voice that social and political minorities were getting elected. The state of Illinois had followed semi-proportional system for elections to its House of Representatives. Both Republicans and Democrats had accepted this system. It is still being used in Cambridge, Massachusetts and Peoria, Illinois. In San Francisco, people can vote for five or six candidates and are aware of its advantages. There are certain systems that assure representation of minorities and indigenous groups. c) Europe Proportional representation was adopted in many countries of Europe including Germany. It was used in elections to the European Parliament and also in some eastern European countries. It was also used once in the parliamentary elections of France in 1986.17
1.7 Methods of Proportional Representation
Mainly the democratic countries of the west use this system. Representatives of political parties are assured of proportional representation in Parliament. The following are the existed electoral systems: a) Party List System, b) Mixed Member Proportional Representation System, c) Single Transferable Voting System. a) Party List System Party List System is a crucial system implemented by the various countries in the world. Under this system, political parties who contest in the elections, make a list of its candidates. In this way, each party makes a list of its candidates for each of its constituency. Voters have to select only political parties not the candidates of the list. Candidates in the list of political parties send those in the list based upon their total vote, which determines the number of seats that they win. This is called Hare System.
For example, if there is a list of three political parties, a) Nepali Congress, b) Nepal Communist Party (United Marxist and Leninist) and the United Nepal Communist Party (Maoist), they mark the names of the party and photograph of the chairperson of the parties so that voters can vote to the political party they wish. For instance, there are 50,000 votes casted for Nepali Congress and 20,500 votes for UML and the Maoist obtains 9000 votes. At first they have to check the minimum quota. If 10,000 votes is the minimum quota, both Nepali Congress and UML will obtain two seats. Now both of them will make 4 seats. There are votes for one seat in all three parties. As the Maoist has 9,000 votes, it proposes that Nepali Congress and UML transfer 500 votes each to enable it to get 10,000 votes and win one seat. If NC and UML would decline to give Maoists the votes they have received and if the Maoist is to transfer their votes to UML, it will need 500 more votes to win the seat. If NCC is to transfer its votes to UML, the UML will win the seat and will win 3 seats. The final tally will be UML-3, NC-2 and the Maoists-0. Some advantages and disadvantages of Party List System are as follows:
Merits 1) Representation of small parties assured in Parliament 2) Votes which would otherwise be wasted could be used 3) Encouragement to Inclusiveness
16 Who_Rules_CincinnatI?, anlabotz.com/wp-content/.../ 17 ballotpedia.org/wiki/index.php/Proportional_representation
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4) Representation of the minorities 5) End of nepotism 6) Helpful in setting up an inclusive government
Demerits 1) Danger of formation of only coalition government 2) Possibility of division in political parties 3) There is no recognition of people’s representative 4) No need to contest in elections
There are two kinds of Party List systems
1) Open List System Parties submit a list of candidates during elections under this system. Voters list their choice for one or two persons on the basis of priority by marking 1,2,3 or 4. Whoever gets more priority votes wins the seat based upon the number of seats won.18
2) Closed List System The vote of voters is given to the list of parties and not to an individual candidate. Each party divides seats on the basis of votes it has received in a proportional manner. In the List, the list of candidates is given to the Election Commission on the basis of priority. The priority votes given to a party determines the number of seats it receives and the candidates who are elected. This system is used in Israel to a large extent as the entire country is treated as a Closed List. It is also used also for elections to the European Parliament and European Union. Countries using Closed List System are as follows: 19
1) Algeria 2)Angola 3) Austria 4) Belgium 5) Benin 6) Bosnia and Herzegovina 7) Brazil 8) Burkina Faso 9) Cambodia 10) Cape Verde, Iceland 11) Chile 12) Colombia 13) Costa Rica 14) Czech Republic 15) Denmark 16) Dominican Republic 17) El Salvador 19 ) Equatorial Guinea 20) Turitrea 21) Siena 22) Finland 23) French Polynesia 24) Greece 25) Guinea Bissau 26) Honduras 27) Iceland 28) Indonesia 29) Israel 30) Liberia 31) Latvia 32) Liechtenstein 33) Luxembourg 34) Mozambique 35) Namibia 36) Netherlands 37) Netherlands Antilles 38) New Caledonia 39) Nicaragua 40) Norway 41) Panama 42) Paraguay 43) Poland 44) Portugal 45) Rumania 46) San Marino 47) Sao Tome and Principia 48) Sierra Leone 49) Slovakia 50) Slovenia 51) South Africa 52) Spain 53) Sri Lanka 54) Surinam 55) Sweden 56) Switzerland 57) Turkey 58) Uruguay 59) Belize 60) Yugoslavia b) Mixed Member Proportional Representation System This system is based on two-vote system. Out of two votes by a voter, one vote is given to the party considering the whole country as a single jurisdiction whereas another vote is given to a candidate at the local level.20 In this system, advantages of both plurality system and proportional system are combined. In the case of Nepal, the Election Commission had divided 240 seats based upon geographical and population. If a mixed system was followed in Nepal 120 seats would be allocated to the plurality system and 120 for proportional system. Voters in 120 constituencies cast one vote for the candidate of their choice in their own constituency. For another 120 seats, voters cast vote for the party of their choice where candidates are listed from a list prepared by the party and include women, Dalits, indigenous people and Madheshi. This system is called Mixed Member Proportional System. However, the Third Amendment to the Interim Constitution gave 240 seats to the Plurality System and 240 seats to Proportional System and 26 seats to be nominated members by the Cabinet making a total of 601 CA seats. This is called Mixed Member Proportional System. Some merits and demerits of Mixed Member Proportional Representation System are stated as follows:
18 en.wikipedia.org/wiki/Instant-runoff_voting 19 Electoral Reform and Voting System, www.politics.co.uk › Reference › Issue Brief 20 Ibid
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Merits 1) This electoral system is based on two vote system, 2) Voting for national level and local level candidates, 3) Merits of both Plurality system and Proportional System.
Demerits 1) Danger of local level candidate getting more votes than national level. c) Single Transferable Voting System Thomas Here and Karl Here discovered this system in the end of nineteenth century. Under this system, voters express their choice on the basis of their priority. After taking into account what percentage of voters have selected first, second and third priority, a threshold that has to be crossed. However, results of elections held so far have not shown to be proportional and inclusive.
Counting under this system is continued till quota is reached. If a quota exceeds then the candidate is declared elected. If another candidate crosses the quota, that candidate could be declared elected by transferring the vote. There is no wastage of votes cast under this system. If no quota is reached, remaining votes may be wasted. This system is used in the Australian Senate, Ireland and in Malta. Once,it was also practiced in Rastriya Sabha in Nepal. Some merits and demerits of Single Transferable Voting System are listed below:
Merits 1. Representation in Parliament on the basis of votes casted, 2. All communities belonging to different castes, tribes, religion and culture are represented, 3. Voters are related to the party than to individuals for whom they vote, 4. Votes are not wasted, 5. Representation of all political parties are on the basis of social justice and votes cast, 6. Possibility of representation of backward groups, 7. Parties could receive their votes on the basis of their manifesto, 8. Ministries or who represent the government remain attentive toward the entire nation rather than the respective election constituency from where he/she was elected. 9. Existence of small parties may be possible.
Demerits 1. Priority voting is difficult to understand by illiterates, 2. Possibilities of mushrooming of small and new political parties, which paves the way for formation of minority and coalition governments, a symbol of instable government. 3. Political parties may have secret understanding for election strategy which is undemocratic , 4. Chances for formation of regional and ethnicity based political parties, 5. Possibility of political upheavals, 6. Practice of Hung parliament may be appeared 7. In the coalition government, as the political parties have their own agenda, feel less responsibility and accountability to the people. 8. There is less interaction and contact between the dictatorial attitude of leaders, voters and elected representatives. 9. Undemocratic culture may be institutionalized so as to form a coalition government. 10. Possibility of less competent government, 11. This system may encourage division among political parties. It may also support to make unnecessary loud voice of small political parties as they may be key in terms of forming a government 12. A hung Parliament may encourage division of parties, 13. Less possibility of election of a competent person as no independent person could stand for elections, 14. Less possibility of election of a competent person, consequently high chances of corruption and immorality.
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The proportional system is also advantageous for possible representation of backward classes, indigenous groups and small parties. However, in practice, there are possibilities of formation of coalition governments, which leads party system towards instability and division. This system also has a criticism that it is difficult to implement in an illiterate society. It was said that the government of Israel became often weaker as the religious parties often became part of coalition government.
1.8 Semi-Proportional System This electoral system is applied relatively less in the world. Like in plurality system, this system also involves less wastage of votes. It is not a full proportional system. Therefore, it is called Semi-proportional System. 21 There are three kinds of systems, which are as follows: a) Mixed Voting System b) Single Non-Transferable Vote System c) Cumulative Voting a) Mixed Voting System This system is the combination of proportional system and one constituency plurality system. 22. The third amendment of the Interim Constitution of Nepal had provisioned for this system. Accordingly, 240 seats were reserved for plurality system and 335 seats for proportional system. When 26 seats were allocated for the cabinet to nominate, the total seats of the Constituent Assembly became 601. Other countries adopting this system are 1) Albania, 2) Angola 3) Armenia 4) Azerbaijan 5) Cameron 6) Guatemala 7) Guinea 8) Lithuania 9) Niger 10) Somalia 11) Seychelles 12) Tunisia 13) Ukraine. Some advantages and disadvantages of Single Transferable Voting System are listed below:
Merits 1) There are two ballots under this system 2) The list of this system could also be called proportional system 3) It is easier to vote because it is more similar to plurality system
Demerits 1) There is no official constituency of representative determined 2) Voters are not contracted directly 3) This system revolves around top leaders 4) Voters cannot identify their own representative 5) Representatives are not responsible to voters b) Single Non-Transferable Voting System This system is also under the proportional system in which there is no division of remaining votes of the winning candidate. Voters cast only one vote for a candidate. If there is more than one seat in one area, it is possible for 4 or 5 candidates to be elected. Those receiving fewer votes are defeated. This System was introduced in 1) Taiwan 2) Jordan 3) Japan 4) Vanuatu.
Voters cast only one vote under this system but there could be elections for more than one seat. This is also called Multiple Member Regional Vote System. The boundaries of each constituency are not delineated under this system. Parties present their own list of candidates and voters vote after selecting their candidates of choice. Those receiving largest number of votes are elected. In other words, in Single Non-Transferable Vote System voters cast their votes for one candidate in the party list. Candidates getting largest number of votes get elected. Actually, voters cast their votes for candidates not for political parties. For example, in any four-member election constituency, any candidate receiving more than 20 percent votes is certain to win and a party getting more than 50 percent votes could be expected to win two seats. Every candidate getting more than 25% of votes can win but if one candidate of a party gets 40 percent votes and another gets 10% only one candidate wins and the second one loses. If there are three candidates, it is possible that a party that would have won two seats normally may fail to win even a single seat. This
21 Major Election Systems - League of Women Voters of Utah, www.lwvutah.org/.../Election%20System%20Reform%20Part%20II.... 22 Electoral systems - Europa , www.europarl.europa.eu/pdf/.../Electoral-systems-LR-for-WEB.pdf
9 Review Report Electoral Laws, Administration and Management system is used for parliamentary elections in Afghanistan, Jordan, Pitcairn Islands and Vanuatu. It is also used for elections to the upper house in Indonesia and Thailand and for 176 seats out of 225 seats as a parallel system in the Taiwanese legislature. This system was also used in the elections to the lower house of parliament in Japan from 1948 to 1993 in the upper house of parliament in Nepal during Panchayat period. Some advantages and disadvantages of Single Non-Transferable Voting System are as follows:
Merits 1) This system is more proportionate 2) No need to go to elections and there is a coalition government continuously 3) Popular candidate could get elected 4) Less expensive
Demerits 1) Small parties will play a major role 2) It is useful only for the educated voters 3) As it is more technical, 4) Difficult to understand 5) Vote Counting is also a difficult process c) Cumulative Vote System Voters have a right to vote for more than one, even all candidates under this system. If five candidates need to be elected from a constituency then they have the right to vote for all five. However, a voter could vote only for one candidate or one vote for five candidates. There is a possibility of getting representation from small parties, indigenous people or minorities under this system.23
1.9 Non-Proportional Multi -Seat System24 Unlike proportional system, under this system it is possible to get several seats. There are two systems under this, which are as follows: a) Block Voting System b) Limited Voting System a) Block Voting System It is possible to have one seat in one constituency. This system allows voters to vote for all candidates in the constituency. A voter can vote for one candidate and the party makes a list. Voters do not cast their vote for the list but can vote personally. Whichever party gets the largest number of votes, all candidates from the list win. The votes for candidates getting less number of votes are wasted. Even if a candidate gets more votes he may not be elected unless his party gets more votes than the rival party. This system is used in 1) Bermuda 2) Fiji 3) Kuwait 4) Laos 5) Lebanon 6) Maldives 7) Mauritius 8) Palestine 9) Philippines 10) Thailand and 11) Virgin Islands.
Merits 1) As one constituency has one seat it is less expensive 2) Voters can vote for all candidates 3) Voters have the right for one vote 4) It is the party which makes the list 5) There is a possibility of casting a personal ballot
Demerits 1) The votes received by parties receiving less votes is wasted 2) Any candidate getting more votes than his rival will lose if his party loses 3) Any candidate getting more votes will not be declared elected unless the party under which the candidate contests is not a winner
23 FairVote - Choice Voting vs. Cumulative Voting, archive.fairvote.org/?page=533 24 First-past-the-post (Plurality) electoral systems have gross defects
10 Electoral Laws, Administration and Management Review Report b) Limited Voting System This system helps ensure the representation of the minorities. Under this system, there is a multi member seat in a constituency. 25There may be a minimum of five seats. However, the voter has the right to use only one vote. Although the voter votes for only one person, all five candidates will get elected. If there are more than five candidates, all are defeated. This system was used during elections of lower house in Japan, Britain and Italy. Like in case of Nepal if there is a constituency having many minority populations such as Bote, Majhi, Danuwar, Raute, Kusunda, Pode and Chyame, it can be made a multi-seat constituency and the voter may be entitled only for one vote and all of the candidates can be elected on the basis of one vote. This system can be useful in some areas of Nepal. This system is like single Non Transferable Vote System (SNTVS). Counting of votes is similar to SNTVS. Whoever receives the largest number of votes is declared elected. This system is limited only in Gibralter and Spain. It is being used for elections of upper house or Senate in Spain.
Merits 1) Representation is proportional in actual sense 2) The process of formation of government is simple and easy 3) It contributes for stable government 4) More possibility of forming a coalition government 5) Multiple seats in one constituency 6) Plurality Voting System (If there are five candidates, voting only for one candidate and all five will get elected on the basis of plurality)
Demerits - If there are more than five candidates, all will be defeated
2. Electoral System in Nepal’s Context It has already been discussed that the electoral system is an important element of democratic state and government. The electoral system maintains relationship between state, government and constitution and its institutional development. The priority and requirements of voters are determined by number of seats obtained by parties on the basis of votes casted. Electoral system also determines the way for development of political system based on representation. Electoral system and elections are the only means in which people mandate political parties or individuals to exercise the sovereign power vested up on them. Furthermore, the electoral system marks an important link to assert the constitutional and political legitimacy in the country.
The first-past-the-post plurality system has certain peculiarities. For example, Nepali Congress (NC) party, which had comfortable majority of seats in the parliament in 1991 elections (110 seats), had only 39.5 percent of popular votes. But it formed the government. In 1994 mid-term elections, NC had lesser number of seats (83) than the Communist Party of Nepal Unified-Marxist-Leninist (CPN-UML) (88) but it garnered higher percentage in popular votes- 33.4 percent more than the CPN-UML 30.92 percent but the latter formed the government. In 1999 election, two national political parties, Communist Party of Nepal (Marxist-Leninist) and Rastriya Prajatantra Party (Chand) could not send any member in the parliament. This suggests that representation in parliament does not always accurately reflect the popular support, which a party may enjoy.
The first-past-the-post system also acts against the representation of smaller parties, such as Rastriya Prajatantra Party (RPP), which in 1994 election scored 17. 93 percent of votes had only 20 MPs, just 9.76 percent of the total. 26The same holds true to Nepal Sadbhavana Party (NSP). Evidently, one can see a gap and inconsistency between the percentage of seats scored by parties and the percentage of popular votes. One implausible consequence of this system for Nepal is that political parties have more preference for pooling seats rather than pooling votes. How can this system then accommodate minority concerns and protect the system from the hegemony of dominant parties? Obviously, this cannot be answered right away. Certain weaknesses of this system can be rectified by proportional representation, which has worked best in Sweden, Norway and the Netherlands.27
25 Electoral Systems — ACE Electoral Knowledge Network, aceproject.org › ... › dministration and Cost of Elections Project 26 BBC - Higher Bitesize Modern Studies - Electoral systems, voting ..., www.bbc.co.uk/bitesize/higher/modern/uk_gov_politics/elect.../1/ 27 Electoral System and Election Management in Nepal, aceproject.org/.../..by DR Dahal
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If political competition is not meant to press the minority and the weaker sections of society into margin, all those who participate in the elections, whether they win or lose, must respect each other and share each other’s concern. This way the democratic regime accords space for legitimate political opposition as a natural element in the political life of the nation. But, in Nepal, as parliamentary opposition received less respect, there are extra-parliamentary, extra- constitutional and anti-systemic oppositions that represent a serious challenge to the integrity of the power of current establishment, even besetting convulsion to multi-party dispensation itself.28
The majoritarian electoral system has multiple handicaps in political representation, such as under-representation of minorities and inadequate representation of women and social groups in the parliament. Political parties barely meet the quota seat constitutionally allocated for women candidates. Only proportional representation can constitute a model of personal representation between the voters and their representatives. For the consolidation of participatory democracy, a proportional system of representation is more appropriate. The system of proportional representation operates by giving parties seats in the parliament on the basis of proportion of the total popular vote each political party has received. Proportional representation system is equally desirable because it brings more voices to the parliament and puts greater reward on consensual politics.
One paradox of Nepal’s electoral system, however, is this: plurality system works best where there are only two dominant parties crystallized on the basis of class and party competition basically represents a democratic version of class struggle. Nepali political parties can be conveniently labeled as “catch-all” parties originated from political movement. In a multi-party politics proportional representation is the best as it provides guarantee to minority representation. However, it would most likely produce legislative fragmentation and weak, unstable and often shifting coalition governments. The segmented political culture of Nepal has so far served as both cause and consequence of political instability.
3. Electoral Administration Good management of the elections by a credible election management body is a critical element of election integrity. To be credible, the election management body has to be respected by all, impartial and has to have institutional capacity to be able to implement free and fair elections. In many countries, the electoral management body is part of the Government, either in the Ministry of Interior or in the local government structure and election managers are civil servants.
The election management bodies may still be developing and can be the subject of intense criticism and scrutiny. In addition to the problems inherent in organizing an election, the body may have institutional problems with inadequate staffing, funding or experience. In a free and fair election, an independent and impartially administered electoral process is essential. Mexican observers of the United States system in 1992 remarked on the absence of government and parties from the process, and on the degree of decentralization. They also noted the degree of trust in the system, which they attributed to a combination of history, active media, fear of publicity, and effective judicial remedies. Countries in transition often also suffer a lack of trust among the political players; ‘for a democratic election to occur, all major parties... must accept the process and respect the results.’Experience shows that confidence is only likely where the election machinery is and appears to be impartial.29
Frequently, and particularly in established democracies, administration is handled by national and local government officials and disputes are settled by ordinary courts having a tradition of fairness and neutrality, all of whom enjoy the confidence of the electorate on that account alone. In France, for example, the localbureau de vote comprises of a president, generally the mayor, deputy mayor or a municipal counsellor, and four assessors and a secretary, chosen from among the electors of the commune. Local electoral committees in Norway are drawn from municipal executive boards; those in Sweden are appointed by the municipal council; the electoral registration officials in England and Wales are either the chief executive officers or other senior officers of local government authorities, while the returning officer responsible for administering the election will again be a senior local official, with election staff usually local government employees on temporary transfer.30
28 Electoral System and Election Management in Nepal, aceproject.org/.../..by DR Dahal 29 Free and Fair Elections: By Guy S. Goodwin-Gill - Page 120 -, books.google.com/books?isbn=9291422770, By Guy S. Goodwin-Gill - 2006 - Law 30 Free and Fair Elections: By Guy S. Goodwin-Gill - Page 120 -, books.google.com/books?isbn=9291422770, By Guy S. Goodwin-Gill - 2006 - Law
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In very exceptional cases, like in Bangladesh in 1991, the responsibility for conducting election was delegated to a caretaker government having no inclination to any particular political party. In other situations of transition, either from conflict to peace or from a single-party to a multi-party system, positive steps will be required to generate a credible electoral process and instill the necessary confidence in all the parties. At a practical administrative and oversight level, the institution of an independent Electoral Commission is now widely adopted as an important step in building traditions of independence and impartiality, and the confidence of the electorate and parties alike. Eastern European countries, including Hungary, Slovenia, Romania, Poland, Czechoslovakia and Bulgaria all established central commissions for the crucial elections of 1989-90. Different systems were employed, commissions were made of an equal number of representatives of parties contesting the election; party commissions with the addition of government-selected members; party representatives in proportion to the numbers of candidates filed, plus judges or jurists selected by the majority; and commissions with members designated by parties involved in pre-election negotiations.31
In practice, the election machinery can either be impartial, or in balance; if impartial members who enjoy the confidence of all parties cannot be found, then balance must be created by the appointment of party representatives. In East Germany, election administration for the re-unification vote was handled by the forty-eight members National Election Commission, comprising two representatives from each of the twenty-four parties on the ballot; below it were district and local election commissions. 32The institution of an electoral commission was not new, but its commitment to free elections was. It rapidly established a reputation as fully independent and non-partisan, enjoyed ready access to the media, which it used in the interests of voter education, and supervised the reporting of both preliminary and final results.33
In Hungary, four levels of election committee operated: national, county, constituency and polling place. Their membership comprised of three non-party members appointed either by the national legislature or municipal council, together with representatives from each party with a candidate standing in the jurisdiction. The process was reported as having worked smoothly, and all parties appeared to trust the integrity of the election officials.
In Romania, for example, twenty-four members Central Election Commission was headed by a well respected law professor not affiliated with any party. Three parties each designated one of the other three principal officers, and apportioned the 20 remaining seats among themselves. The electoral law in Romania provided that the Central Electoral Bureau administers the elections, with authority delegated to provincial electoral bureaux. Both levels were composed of judges and party representatives, but the latter came in late. The political independence of the judges was doubtful, although the partiality of the bureaux finally was not a major issue. In complete contrast was the situation in Czechoslovakia, where the Communist Party was already out of power and election administration fell to a coalition of dissidents whose commitment to free and fair election inspired public confidence.34
Perhaps the most striking exercise in confidence building occurred in South Africa, where the government appointed several international members of the Independent Electoral Commission, including individuals from Canada, Zimbabwe and Eritrea.35
The ideal or most effective model will depend on the relative maturity of the national system. Where election administration previously was in government hands within a one-party or other authoritarian system with no opposition, voter confidence will only likely be inspired if opposition party representatives are co-opted into election administration. They may not be ‘independent’, and indeed will usually remain partisan, though ideally in balance with competing interests; at such moments, the issue is not so much independence as transparency and non-governmental involvement at national and polling district levels. Later, when other government institutions acquire a reputation for impartiality and integrity, for example, when judges are seen to stand for the rule of law and not the party line, then independence alone may be a credible criterion for electoral commission membership.
31 Ibid 32 Ibid 33 Ibid 34 Ibid 35 Ibid
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3.1 A credible and depoliticized management body Election administration is a technical task. The administrative system adopted and the institution that develops to manage the administration should be technical. This is true whether the electoral management body is part of the government apparatus and the electoral workers are civil servants or if it is a separate, independent agency with its own personnel and policies. 36
Politics and policy-making are supposed to belong to the policy-making body. However, in reality, it can be very difficult to separate politics from technical administration. In many systems, the election policy body creates the electoral management body and hires its staff. While in some systems, a decision has been made to have politically balanced electoral policy and management bodies. In these cases, both bodies are staffed on the basis of political affiliation and ability to protect the interests of their party. For instance, this was done in the 1999 elections in Indonesia where the policy body of 53 members were from every political party plus the government, and the implementation body had the same structure of 53 members.
Having a politically balanced policy and management body can politicize election management, even if the intention is to have a neutral administration. This politicization can turn technical administration and problems into political issues. As political issues require political compromises and negotiations, decision-making can be slow, making it impossible to keep up with the electoral calendar. It encourages centralized control over the process and discourages delegating authority to the operational or regional levels. It can also mean that issues, such as sustainability and cost- effectiveness, may not play an important role in decision-making. In extreme cases, politicization in decision-making can paralyze the entire process. 37
An example of this is from the peacekeeping elections in Mozambique (1994). The draft electoral legislation was held up for almost a year in Parliament while the parties argued over Article 16. This was the article that contained the formula for the division of seats for the electoral commission (ECN). The two parties to the Peace Accords, Renamo and Frelimo, finally agreed on a formula, which they carried through to the Staffing of The Electoral Management Body (STAE) at every level. The end result was a politicized management body and commission that centralized and politicized decision-making, turning routine technical issues into political footballs, making a rational, timely implementation of the process extremely difficult.38
Election integrity is facilitated by a neutral and nonpartisan election administration. Even when election managers are selected for their political affiliation, they are still expected to fulfill their duties in a nonpartisan and politically neutral manner. Almost every electoral law calls for this neutral administration of elections. For example, the South African electoral law requires all officers to ‘be impartial and exercise their powers and perform their duties independently and without fear, favor or prejudice.
Even in the cases discussed above of Mozambique and Cambodia, on-the-job experience led to increased professionalism and efforts to do the jobs right. According to the Vice Chairman of the ECN in Cambodia, ‘given their CPP origins, what astonished me was that at all levels of the electoral process, most ECN employees rose above their party affiliation to do their jobs honorably’.
Independence of the electoral administration is another important factor, even if the elections commission is based on a politically balanced model. Financial and institutional independence allows electoral policy and management bodies to be able to work without political interference or ending up beholden to special interest contributors. This can be especially true of the lower levels of election management, where entrenched local government officials tend to consider local electoral workers as part of their staff.
This occurred after the electoral reform in Mexico, where ‘it is impressive to note how quickly the idea of nonpartisan election officials established its superior legitimacy over competing conceptions; how quickly actors transited from discussing alternatives to discussing improvements, how quickly electoral reforms were set on a track of self- reinforcing path-dependency.
36 Election Management — ACE Electoral Knowledge Network, aceproject.org › ... › Election Integrity 37 Integrity in Election Administration, http://aceproject.org/ace-en/topics/ei/eif/ 38 Election Management — ACE Electoral Knowledge Network, aceproject.org › ... › E lection Integrity
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3.2 Good management and financial system There is consensus that good management is one of the best protections of election integrity. Good management creates good systems, ensures good planning, hires qualified personnel and provides adequate supervision and oversight. It also ensures the accurate collection of data and information so that the electoral management body knows what is going on and is able to address problems before they become an issue.
Insecurity, fraud and corruption can flourish in an atmosphere of chaos. Good management can remove many of the opportunities for subversion or graft. Good management also means good financial and asset management. The development of good internal financial management systems, with oversight and routine audits, can help maintain financial integrity and deter the problems resulting from bad financial management. This can include labour strikes by staff, shortage of operating expenses and graft Asset management and good Procurement is also important parts of maintaining integrity in operations where valuable assets and resources are purchased and used. 39
Bad or sloppy management can leave the door open to misuse of the resources and the process for political or personal purposes. Public resources provided for election administration can be diverted for political uses or to ensure the win of a certain candidate or party.
3.3 Good operations system and integrity mechanisms The same problems caused by bad management can be found in bad operational systems. Good systems facilitate work and make it easier to avoid problems. A good logistical system, for example, can avoid the problem of having ballots arrive in country and sit at the port or airport because of lack of transportation or storage. Bad systems can make it difficult to track sensitive materials, such as voter registration cards or ballots. The lack of tracking can make it difficult to know if ballots have been diverted or tampered.40
Operational systems usually include systems to disseminate information to participants in a timely and systematic manner. Parties and candidates have to know when and how to register to compete in the elections, and how to apply for public resources that might be available for their campaign. They also need to know what quantities of materials have been ordered, when they are delivered and where they will go so their monitors can track them. Feedback systems, whereby problems identified, and complaints made by candidates and others, can be systematically received and addressed, can facilitate the development of good procedures.
39 Ibid 40 Ibid
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Election Commission of Nepal: Department and Functions1 Employees Administration Sub-Branch • Attend to facilities provided to the office bearers of the commission • Oversee functions related to employee transfer, promotion, retirement, attendance and leave. • Preliminary activities related to assessment of employees on the basis of their academic qualification • Inter-departmental action and incentive to employees • Maintain record of personal detail of the employees • Selection of employees for external or internal trainings. • Preparation and supervision of foreign visits of the higher level office bearers, as per the decision of the Nepal government • Make arrangements for representation of Election Commission representatives at programs, where required • Take full responsibility of establishment of new office, its operation and other managerial activities • To maintain record of and initiate action regarding assessment of temporary employees as per the Election commission Act • To follow and help follow directive of the Nepal government regarding employees administration
General Administration Sub-Branch • Purchase, store and distribution of goods required by the commission on a regular basis • Repair, rebate, hand over and auction of the goods • Import, store or call for tender for the purchase of election related items • Management of all kinds of printing jobs • Registration related work • Manage the library • Distribution of newspapers and other reading material • Organize job shifts and guards for office security • Assign duty to drivers • Management of electricity, water and cleanliness • Photocopy or printing of forms and voters list and their distribution in correct time • Printing of ballot paper managing its security and making it available at the polling centers • Estimation of the number of ballot stamps, ballot boxes and their import according to the requirement • Purchase of election related stationery articles and their packing to transport to the polling centres • Manage fuel and maintenance of the government vehicles • Prepare approval letters of the staff and security personnel to be deployed at polling centres and make arrangements for insurance and financial assistance to them • Fulfill demands of compensation for damage of goods at polling centres • Supervision of office owned goods at a periodic basis • Manage other needful administrative jobs • Prepare and verify the main voters list, update them and make required number of copies • Maintain correct record of voters statistics • Compile and send copies of voters list to the district • Make corrections on forms and voters list • Place request with the training department if experiments or seminars are to be conducted on the voters list • Distribution of voters identity card, and implement policy and programs at the election constituencies, as directed by the Commission
1 www.election.gov.np
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• Make arrangements for the involvement of district Election Offices in the collection and update of voters list and voters card distribution • Maintain archive of voters list and voters card • Resolve any imminent dispute over the voters list and voters card • Undertake any other activities related to the voters list and card Financial Administration Department • Prepare estimated budget of the Commission and its affiliated offices • Prepare budget for the local election and Constituent assembly election • Allocation and distribution of budget to commission offices • Operate accounts relative to the commission, update the archive and present reports • Maintain and update archive of revenue and present report • Auditing of internal and final budget sheet, according to the rules. • Revise and make clearances of all the mistakes verified by auditing of all the departments under the commission. • Prepare financial directives on election and present them • Maintain record of the amount spent by candidates on election campaigns. • Make requests with the training department in case of need for training related to financial administration. Election Department • Maintain list of polling centres • Supervision of polling centres and to carry out all the preliminary functions related to it according to decisions on the changes and suggestions received. • Maintain record of positions for which election is to be held. • Maintain record of the status of the positions for which election is to take place • Maintain commission correspondence after the declaration of election dates by Nepal government • Preliminary work on preparing election programs • Carry out all the preliminary duties regarding the appointment of election officers • Fix dates for establishment of office for the election officers and manage groundwork on their allocation. • Prepare list of district employees to undertake election or election related jobs and take up groundwork to make required changes. • Maintain list of VDCs, municipalities and wards around the country and work out amendments if required • Resolve election related problems at the introductory level and present them to the commission for action • Undertake initial proceedings for selection and decision on the election symbols and execute the decisions • Place requests with the training department for election-related trainings if required. • Form policy on design, estimation and printing of the ballot paper and present the proposal to the commission for approval • Pay attention to maintaining the quality of ballot paper and assist in taking them to election constituencies • Make arrangements for media campaign • Prepare programs that maintain coordination between offices of the Chief Election Commission, election officers and the district election office. • Begin preliminary efforts on election dates and process • Prepare campaign material for both print and electronic media • Arrange for an official media to disseminate information on polling and its results as it happens • Update the vote count of the election candidates or those already elected • Prepare list of ballot papers • Undertake any other assignments related to elections2
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Electoral operations are massive logistical exercises, and a good operating system based on strategic planning can help ensure that the timetable is respected with the least amount of problems. India, for example, has a large electoral operation, which if not organized effectively and efficiently could create many problems:
Conduct of General Elections in India for electing a new Lower House of Parliament involves management of the largest event in the world. The electorate exceeds 600 million voting in 800,000 polling stations spread across widely varying geographic and climatic zones. Polling stations are located in the snow-clad mountains in the Himalayas, the deserts of the Rajasthan and in sparsely populated islands in the Indian Ocean.
More than 2,525,595 ballot boxes were used during General Elections in 1996. The paper used only for the printing of ballot papers exceeded 8,000 metric tons. There were more than 4 million electoral employees, including the civil police forces. This huge election machinery was deemed to be on deputation to the Election Commission and was subject to its control, superintendence and discipline during the election period, extending over a period of one and half to two months.
For an operation of this size to succeed, it must be organized. The problems of bad management and the lack of organizational systems were evident, for example, in the 1995 legislative elections in Haiti. Implementation began without standardized systems and procedures in place. Tracking voter registration cards was difficult because they were distributed without first noting which office got what serial numbers. Candidates were added to the ballots after the deadline for printing, forcing a delay in the calendar. There was no system to receive ballot boxes at the counting centres and many poll workers ended up dumping their ballot boxes on the sidewalks in front of the counting centres and counting their ballots in the street.
This disorganization adversely affected the integrity of the process and the credibility of the results. Although the consensus of most international observers was that the end result reflected the will of the majority of voters, the losing candidates and parties used the organizational problems as grounds to reject the results, and boycotted the reruns and subsequent presidential elections.
3.4 Adequate integrity controls and supervision Election managers are entrusted with public resources, and are responsible for using those resources efficiently, economically and effectively to achieve free and fair elections. These resources are expected to be used in compliance with the laws and regulations on the use of public assets as well as the provisions of the electoral law. 41
The electoral management body has to ensure that adequate control systems are put into place to safeguard their resources (both financial and material), that laws and regulations are followed, and that reliable reports are kept and disclosed as required. Public disclosure of the election budget and expenditures can help increase transparency of the process, and in turn, helps the integrity of the administrative process by making it easier to ensure accountability for the use of these funds.
This can be as simple as ensuring that there are proper inventory controls on assets, that financial records are accurate and up to date, and that an office or person is delegated the responsibility to ensure compliance with the rules and regulations. Holding managers responsible for the actions of their staff and requiring supervisors to verify and certify their office’s compliance with all rules and regulations can also be effective.
One of the safeguards against partisan and illegal actions recommended by the Independent Commission Against Corruption in Australia includes installing a checking mechanism on electronic databases. ‘Computer systems should include a programme that allows management to check which staff are reading and/or removing confidential information from the organization’s data base without permission or a valid reason.’ This control mechanism has also been used in other systems, such as Elections Canada. 42
Supervisory mechanisms also require a system to receive and address complaints, both internally and externally to the Official Oversight agency. The electoral management body is usually given the responsibility to ensure that the
41 aceproject.org › ... › E lection Integrity 42 Election Management — ACE Electoral Knowledge Network, aceproject.org › ... › Election Integrity
18 Electoral Laws, Administration and Management Review Report electoral laws and other related laws are enforced and that those accused of breaking the law are reported to the proper authorities for investigation and prosecution if warranted.
3.5 Transparency and Accountablity Transparency of the election institutions, as well as their activities, is essential to build its institutional credibility and legitimacy for the elections it administers. The electoral management body can achieve transparency in several ways. These can include: regular reporting to the public through the media, holding press conferences, releasing factual information, identifying problems encountered and the decisions taken to resolve those problems; regular reporting to the official oversight body, congressional or parliamentary oversight committees, on progress made, difficulties encountered and areas requiring additional support. Making these reports available to the public is also a useful mechanism along with regular meetings with political parties and candidates. These can be done to disseminate information, answer procedural and other questions, and ask for input on draft protocols or regulations and allow observers into the election decision-making process. These could be political party representatives, civil society observers or the press. In Mexico, electoral reforms resulted in nonvoting party representatives and nonpartisan voting members, appointed in consensus with the major parties, being included in the election management body.
Transparency aids with accountability developed will clarify everyone person’s responsibility. Public officials, and others entrusted with public resources, must be accountable to the public and to other levels and branches of government for their actions and for the public resources they use to carry out the elections.
3.6 Effective use of information management systems New technology can provide management tools and control mechanisms that can help electoral managers develop and implement good working systems and protect election integrity. The use of a computerized voter registration list can identify duplicate registrations (assuming the same voter information is used) and identify under-aged voters. The use of a printed voters list can eliminate the problems created by illegible handwriting and can be easily printed out to be posted at sites or given to political parties and observers.
In a number of countries, computerized lists of registration and polling sites, with the numbers of registered voters per site, are used in the logistical planning for distribution of electoral materials. This helps ensure all aspects of electoral operations have the same accurate information on numbers and sites. Monitors and observers in their monitoring can also use these lists. Computerized lists of personnel and temporary employees (registrars and poll workers) are also used in many systems for training as well as payroll purposes.
The easy availability of basic information increases the transparency of the process, which in turn increases political party and voter confidence in the system. For computers and other technology to be an effective management tool, the proper equipment and training must be available.
4. Appointment of Commissioners in Nepal The first Election Commission Nepal was established in 1950. After the end of 104 years of the autocratic Rana regime in 1950, the Nepal Interim Governance Bill was introduced. It was Nepal’s second constitution in writing, prepared by the erstwhile ministerial cabinet. (The populist document, Government of Nepal Act, 1994 promulgated by Rana Prime Minister Padhma Shamsher, may be called the first constitution of Nepal.) It was the responsibility of the 1950 interim government to hold the parliamentary election at the earliest and in a conducive atmosphere. To fulfill the objective, the Election Commission was formed, vesting it with the rights to carry out certain responsibilities: 1. Preparing the voters’ list 2. Control and supervision of the election related activities 3. Conduction of Elections 4. Settle Election related disputes 5. Run Election Court
The Chief Election Commissioner and other office bearers, whose appointment and tenure were likely to be affected by the decision of the King and or of the cabinet, headed the Election Commission. The voters’ list was directed
19 Review Report Electoral Laws, Administration and Management to be free from any caste, religious or gender discrimination. One had to be at least 21 years of age to be eligible to vote.
1958 saw the establishment of multi-party democracy and constitutional monarchy in the country. Prime Minister BP Koirala was arrested from a meeting where he was addressing the crowd. King Mahendra charged the leaders of being incompetent and took over, holding complete sway for two years and ruled without a constitution. With the changes in the political scenario, a new constitution draft commission was formed in 1962, which came in the wake of the dissolution of the multiparty system in 1960. The constitution was amended in 1966 through a royal decree. For the first time, certain offices were brought under the constitution, while the Election Commission was declared an independent body. It was decided that Nepal would have a single election commission. Appointments could be determined according to the King’s directive, which clearly vested the decisions of the commission, with the King.
The political scenario in Nepal saw another change in 1989. 30 years of party-less Panchayat system formed by King Mahendra ended with the people’s movement that called for democracy. In 1990, under a multi-party system, a cabinet headed by Prime Minister Krishna Prasad Bhattarai was formed. On November 19, 1990, King Birendra declared the Constitution of Nepal 2019. According to it, certain constitutional bodies were restructured, the Election Commission being among them. However, the Chief election Commissioner would continue to be appointed by the King, upon recommendation of the Constitutional bodies.
Nepal was to see rampant political changes in the decade that followed. The reign of King Birendra was eclipsed with the beginning of the Maoist insurgency. The King refused to deploy the national army against the rebels. On June 1, 2001, the Royal Family massacre took place. None of the members of King Birendra’s family survived the shoot out, which automatically made King Birendra’s younger brother Gyanendra, the new King of Nepal. On May 22, 2002, King Gyanendra dissolved the House of Representatives, and declared mid-term elections. The election however, did not materialize and on October 4, 2002, King Gyanendra sacked then Prime Minister Sher Bahadur Deuba, alleging him of ‘incompetence’.
Without a parliament or a Prime Minister, King Gyanendra held full sway in appointing or displacing the members of his own formed cabinet. On February 1, 2005, King Gyanendra assumed powers of the state in a bloodless coup. To overthrow the King’s grip, the 7 political parties’ alliance, which had earlier been vocal against the Maoists, joined hands as 8 parties and declared People’s movement II. After weeks of protests and bloodshed, on April 24, 2006, King relinquished power to the people. According to the 16 point and 8 point understanding between the 7 parties and the Maoists, the interim constitution was drafted on August 25, 2006. • The commission will have one Chief Election Commissioner and four other Election Commissioners • The Prime Minister will appoint the Commissioners on the basis of recommendations made by Constitu- tional Council/ Cabinet • Their tenure will be of 6 years from the date of appointment • Abiding by the Interim Constitution and other legal boundaries, the Election Commission will be respon- sible for conducting, supervising, directing and controlling Constituent Assembly Election and the Local bodies election. • The election commission will prepare the voter’s list for the Elections. • The Interim Constitution of Nepal 2063 (2006-07) recommends the Election commission as an indepen- dent body, responsible for holding free and fair elections.43
In Nepal, as per the Interim Constitution - 2063, there shall be an Election Commission of Nepal consisting of a Chief Election Commissioner and the number of other commissioners will be up to four. If apart from the Chief Election Commissioner other elections commissioner appointed, the Chief Election Commissioner shall act as a chairman of the Election Commission. The Prime Minister shall, on the recommendation of the Constitutional Council, appoint the Chief Election Commissioner and other Election Commissioners.
43 Article 133 of section 15 of the Interim Constitution of Nepal 2063 is devoted to the Election Commission
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The term of office of the Chief Election Commissioner and other Election Commissioner shall be six years from the date of appointment. But, if his/her term gets expired, the Chief Election Commissioner or an Election Commissioner shall be deemed vacant in the following circumstances. 1. If he/she submits resignation to the Prime Minister or 2. If his/her term expires or he is removed from his office or 3. If he/she dies
No person shall be eligible to be appointed as the Chief Election Commissioner or an Election Commissioner unless he/she 1. Hold a Bachelor’s degree from a University recognized by Nepal government 2. Is not a member of any political party immediately before the appointment and 3. Has attained the age of 45 4. Has a high morale
A person once appointed to the office of Chief Election Commissioner shall not be eligible for the appointment in other government service. However, nothing shall bar the appointment of an Election Commissioner and his terms of office shall be computed including his term a Commissioner.
The composition of the EMB may be built on two different principles: partisan basis and professional and experts basis. A partisan commission will work with in built checks and balances. The parties of the parliament would nominate or appoint members according to a formula (e.g. in proportion their strength in parliament). The persons may either be active or retired politicians or they may be professionals without a very direct political annotation but where the nominating party has confidence in their professionalism. Nepal has applied professional based model, with no party representatives. Once appointed, the commissioners must be protected against being withdrawn by the executive powers. The commissioners are appointed for a certain time and only a court should be able to remove a person and only upon serious break of conduct. Another element of securing independence is by requiring certain skills of the commissioners. It is common to require either legal skills or a higher university degree and proven ethical records. Tenure is an indicator of independence. Nepal has applied the practice of appointment by executive on the recommendation of Constitutional Council, a recommending body for chiefs and members of constitutional bodies, consisting of Prime Minister as the chair person, Chief Justice of Supreme Court, Leader of Opposition party in Parliament and Speaker of Parliament as well, but subject to clearance by public hearing by Parliament. Under the Interim Constitution, 2007, up to five commissioners including chief election commissioner may be appointed. As of now, the commission comprises of three commissioners including chief election commissioner. Their tenure is for six years and up to the age of sixty five years whichever is earlier. Commissioner can be relieved from his/ her post by impeachment by parliament. Finally, establishing credibility of the ECN is vital. Indeed the Constitution has established a system with the representation of all the three organs of the government for the selection and appointment to positions in the constitutional bodies so that they would perform their responsibility in an independent and fair manner. Furthermore, the system has been designed with a view that officials of these bodies enjoy the confidence of all the organs of the government. To translate these into practice, the members of the Constitutional Council should have worked out and adopted a transparent basis on the basis of the Constitution for the selection of the candidates to recommend for the appointment to constitutional bodies including the EC. Despite such provision, the Prime Minister usually takes out the name from his pocket for recommendation to the appointment of the chief of the constitutional bodies and other positions are divided by the members of the Constitutional Council. So the basis for the appointment to the constitutional positions has been ‘whom the Prime Minister or the members of the council know personally’. As such as in the past, often EC, it’s Chief Election Commissioner and Commissioners tend not to enjoy unqualified credibility (due to not fault of their own ) issue before the stakeholders and ensuring full credibility of the body especially that of its officials still remains an issue.
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5. Constituency Delineation Commission in Nepal During the CA election in 2008, a six member Constituency Delineation Commission was formed under the chairmanship of former Justice of the Supreme Court. It was given a fifteen-day mandate in accordance with the mandate given by the First Amendment of the Interim Constitution. The Commission gave its recommendation delineating 240 constituencies. 240 proportionate seats were provisioned with 17 to be nominated, a total of 497 members for the constituent assembly was proposed. There was an increase of 35 seats including 28 seats from the Terai and 7 from the Hills. There was no increase in the Mountain region. 44
There are now 116 seats in the 20 districts of the Terai and 102 seats in 39 districts of the hills in First Past the Post system. The Commission has delineated constituencies on the basis of population, geographic accessibility and density of population only. It didn’t pay attention to language, region, and regions of minorities, indigenous people, Dalits, women class and occupations. It completed its work in accordance with the limits put under by the constitution. There was increase in representation of the Terai as the constituencies were delineated on the basis of 2001 population census. There was an increase of two seats each in Morang, Dhanusha, Rupandehi, Kailali, Nawal Parasi, Bara, Rautahat and Mahottari. On the other hand, one seat each was increased in other districts of the Terai. There was an increase of two seats in Kathmandu and one each in Kaski, Kavre, Makwanpur and Udayapur. The total number of seats from Kathmandu was ten. The next largest number of seats nine was from Morang. According to the Commission, there is one seat dedicated for 96,000 people. The Terai had only 43 percent of seats although it constituted 48 percent of population previously. On the other hand, the hilly and mountain regions had 52 percent of seats although the percentage of population was only 57.
6. Electoral Registry in Nepal The ECN has developed the new Voter Registration (VR) system, a modern registration process with photographs and biometric information in order to make the voter list more accurate by removing any duplication. The system allows all eligible Nepali citizens to be registered by digitally capturing their photo, fingerprints and signature.
For the first phase of the programme, the ECN established 798 registration centres equipped with voter registration kits. The kit included all the hardware (laptops, finger print scanner, and web camera) and software (biometric based voters’ registration system). The nation-wide registration is being carried out in three phases and is expected to be completed by June 2011. Nevertheless, the ECN is likely to expand the process due to the current delicate and unpredictable political transition full of painful hiccups. This would be the first time in ECN´s history that officials would meet every adult citizen before registering them as voters. The registration process had been obstructed on a number of occasions in the previous months after Madhes-based parties and Limbuwan Mukti Morcha objected to registration in the voter list on the basis of citizenship.
The fresh enumeration approach “VR with Photograph” has been followed to prepare the voter roll for the upcoming elections after the major political change in the country. In the past, required institutional mechanisms and systems were not in place to successfully update an existing electoral roll without creating duplicate enrolments. The traditional method of manual VR list was full of errors resulting in an unacceptable electoral roll thereby creating an environment for multiple, flying and proxy voting.
Starting September 2010, UNDP and other donors such as DFID, Norway and Denmark have supported the ECN’s voter registration process, which supports developing of a voter list with photograph and fingerprints. The introduction of this new voter registration process is a major reform in the election process carried out in Nepal. This supports clear identification of voters on the election day, deterrence of false voting, ability to detect and remove duplicate registrations, and enable accurate internal migration of voters between locations. This system will prevent the possibility of multiple and proxy voting. The second round of voter registration process is still ongoing for the citizens in different parts of the country who have missed the first round of registration.
Many stakeholders including political parties agreed on the requirement for improved voter identification through either voter ID cards or a voter list incorporating photographs. It was decided to prepare an electoral roll with photograph as the initial step towards a future national ID card system. This project has been designed through the
44 en.wikipedia.org/wiki/Nepal
22 Electoral Laws, Administration and Management Review Report review of international practices in voter registration with photograph. The experiences of other nations are reflected in the specification of equipment and outline of methodologies for this project with appropriate modifications as required for the local context.
The voter registration process is expected to assist in providing data for other national priorities such as national ID card and birth and death registration processes. Following the completion of this project required information could be made available in electronic format to facilitate other processes and therefore saving the need for additional nationwide data collection programs.
A biometric voter identification card offers a number of advantages: • It is a reliable form of identification. • It serves as acknowledgement that the voter is duly registered. • It may include several identifying features (e.g. photograph, signature, fingerprints) to provide greater as- surance that the voter is who he or she claims to be. • It may be marked when the voter has obtained a ballot, preventing multiple voting. • It can be designed to be suitable for an electorate with a low literacy rate. • It can be an effective form of identification where many voters have no fixed address. • It facilitates voting in areas where a voter may not be known personally. • It can be issued together with voter education material.
In addition, there may be other, less tangible reasons for favouring voter identification cards. For example, the cards were said to convey to voters a feeling of pride in their right to participate in the electoral process. The voter identification card has a number of disadvantages: • It may be very costly to produce and update. This is not always the case, but costs rise as security features are added and the card comes to be regarded as the primary piece of identification held by citizens. • It can be lost or stolen. • A significant administrative structure must be in place to produce the cards. • It must be produced with appropriate technology. If there is no electricity at the registration and card- issuing sites, cards may be sealed with a cold laminate or may be unsealed. • Some voters will arrive at the polling station without their card. Procedures must be developed to deal with this situation. • It must be updated periodically. Cards wear out over time and the pictures on them become dated. Hence the need for a system to replace cards regularly. • The election authority must have a reliable system for delivering cards. Ideally the card should be pro- duced when the voter registers, but this may not be practical or feasible.
The Rules Relating to Electoral Rolls, 2063 (2007): In exercising the powers conferred by Section 44 of the Act Relating to Electoral Rolls, 2063 (2007), the ECN has framed detail provisions and procedures to collection and updating of Electoral Rolls, including publication of programs relating to Electoral Rolls, designation of employees (Name Registration Officers, Enumerators) for the tasks, the process of collecting names, verification of qualified and non qualified voters and subsequent corrections and decision making by Election Commission officials in finalizing the Electoral Rolls.
Similarly, the document lays out details on transparency of the electoral roll to ensure voters to enable their rights to vote, including the process of publication of updated Electoral Rolls in the respective Village District Council/ Municipality, the application process for voters to correct or add their names and remove names from the Electoral Roll of a particular constituency, and the process to be adopted by the Election Commission in ensuring appropriate amendments are made to the Electoral Roll. Information on Temporary voters and the processes to ensure their voting rights are also explained in detail in this document.
Details of the functions, duties and power of Registration Officers, including preparation of required copies of Electoral Rolls, inspection of Electoral Rolls and issuance of duplicate copies thereof, settlement of disputes, provision for certification of voters, required documentation and correspondence of EC work are provided in the Rules.
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7. Major Challenges45
7.1 Role of political parties and civil society In general the role played of the political parties and civil society organizations regarding the ongoing VR process seems unsatisfactory. No visible move for the dissemination of the information and mobilization of personnel regarding voter education and awareness were observed except in few places. Likewise, there have been no directions and circulars from the political parties to their cadres in this regard. Similarly, there seems almost no pro-action from the local media and nongovernmental organizations of the districts.
7.2 Equality and Access In most districts, registration points being at far distance, elderly population, people with disabilities were found deprived of registration. On the other hand, most of the youth who are abroad for factors were deprived from the registration process. Here it’s worth mentioning that some people have reported language is causing a barrier in registration process, which is associated with ECN’s ineffectiveness. Nepali is taught in Maitheli, e.g. in Hampur/ Shreepur VDCs and so, it is hard to make the local people aware in this context as communication (language) gap is making barrier in information flow.
7.3 Registration postponement and other intricacies The issue of citizenship raised by the Madhesh-based political parties has disrupted the VR process in some of the terai-madesh based districts like Kapilvastu and Banke and till date the problem persists although the ECN has been able to re-initiate the program recently. Though the dialogues are taking place in the local and regional level along with several group discussions, the acute problem of citizenship is yet to be resolved. Earlier, the disruption by the parties and their affiliates began once the Supreme Court and the ECN made citizenship mandatory for the VR process.
7.4 Geographical Remoteness and Access As a mountainous country, most of the district’s inhabitants faced mobility challenges due to geographical remoteness. The same is the case for the ECN officials to get them to the registration points. In several districts due to adverse topography, many voters were found devoid of registration. In this regard, mostly dalits, ethnic communities, janajatis and other minority groups are found lurking behind. Some residents of far-flung VDCs needed to make a whole day journey just to reach the registration centres; and this also adds a more financial burden besides physical pain and loss of time. Although ECN had done its best to make easy access for such distant dwellers, the task will not be accomplished unless more mobile teams are sent for the registration.
7.5 Political/peace process There has been severe public disappointment involving political parties and politics in general due to all previous promises of the constitution-making process not being kept, discourages the individuals from being involved in the voter registration process. Similarly, public frustration is also surfaced involving the key actors of the peace process for not leading the peace deal to the logical conclusion and leaving the nation in the vacuum of the rule of law, security and social harmony.
7.6 Migratory mobility International migration in the forms of family migration high-skill professions, and opportunities for abroad studies and contractual laborers is on the rise. Similarly, conflict-induced internal displacement due to 10 year armed conflict as well as post-conflict incidences of violence and organized crimes have also caused urban-centric mobility. The rapid urbanization and associated magnetic factors such as education, employment, better living options, public health services, etc. has served as a magnetic factor to allure potential voters in the form of floating population in the cities without permanent residency.
45 Synopsis cited from "Universal Suffrage", a VR Observation Report by National Election Observation Committee, 2012
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7.7 Lack of adequate education46 Many voters/potential voters express their indifference to the significance of the voter registration process due to a lack of proper education and informed preparedness regarding the electoral process. It’s understood that the ECN lacks resources to produce IEC materials in multiple languages and in the given linguistic diversity, the production of such material demands huge resource, time and expertise. Many voters are yet to realize the objective of the “Voter Registration with Photograph” in terms of developing the VR information as a national ID card in the future.
Some major successes and lessons that can be derived from the introduction of the digitalized system in the country have broad applicability for VR systems in general. Part of the success is due to the ethos developed within the ECN of professionalism and integrity that builds public trust and respect for the institution in general. This is something that can depend as much on leadership and a favourable political environment, as on learning. It is a philosophy that has to be careful not to veer towards over-confidence based on past successes.
Stakeholders’ views of the VR process are in general positive. In the beginning and some instances until recently, a small minority was critical of the ECN’s attitude toward stakeholders (insufficiently consultative) and of the integrity of the VR system. The problems generally are not problems with the overall integrity of the system or its basic methodology, but are rather specific issues that are found to be annoying such as citizenship and federalism, including the aspiration for right to self-determination. Stakeholders in general feel that VR would be improved if the ECN considered a more continuous training regime for staff and meticulous electoral education. At the initial stage, they have been somehow concerned about potential lapses in voters’ roll integrity related to the treatment of deceased voters and the out- migrants.
While the ECN maintains strict adherence to the law, some believe it could assist innovation by supporting changes to laws for citizenship. Other specific issues in this regard are the requirement for personal attendance for any voters’ register transaction, and the unavailability of up-to-date address data on the voter registers distributed to political parties prior to an election.
It is noteworthy to learn that here is no any evidence of external stakeholders on the process. The ECN has jealously guarded its independence, and its decisions regarding the VR process are no exception. The concept is being implemented totally in-house with technical support from some entrusted external agencies. Enough space has been provided for political parties to communicate their views with the ECN on a range of issues including the VR system. But some political parties and CSO representatives interviewed did not believe they could have any significant influence on the registration process, and identified a number of issues they would want to see changed especially in terms of information, education and communication materials and the dissemination in local languages.
The overall success of the registration and thereafter the elections has been attributed to the transparent arrangements, thought-out plans, high level of communication, determination and commitment as shown by the Commission and its officers. The level of devotion displayed by Nepali voters who decided not to be deterred by the initial and recurrent challenges during the exercise played a great role in ensuring that the process was not wasted. According to The Carter Centre, ECN continues to make progress toward finalizing a new voter register but faces challenges related to registration turnout, access to eligibility documents such as citizenship certificates, and data quality.
Positively, the ECN has successfully compiled the registration data from all districts and has created the beginning of a unified electronic register with biometric data for approximately 10.8 million registrants. The public was recently given the opportunity to review the new voter rolls and to correct errors found. In areas observed, Carter Center teams found no significant indications thus far of people incorrectly being on the voter rolls. However, the display of the voter rolls also revealed that an unknown number of registration records were affected by potentially avoidable errors. The ECN is currently in the process of correcting these mistakes. Allocation of some voters to incorrect wards appeared to be the most common mistake, but other types of errors were also discovered.47
46 Synopsis cited from "Universal Suffrage", a VR Observation Report by National Election Observation Committee, 2012 47 (http://reliefweb.int/report/nepal/carter-center-urges-election-commission-nepal-continue-efforts-increase-turnout-improve)
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8. Electoral Training in Nepal
8.1 Training of Election Officials A lack of adequate training for election officials and polling station workers can create problems at every stage of the electoral cycle, from poorly prepared voter lists to mistakes in the vote counting process. EMBs must ensure that election staff is provided with appropriate, updated training that is thorough and of high quality. The training provided to election officials and polling station workers should cultivate a culture of integrity, transparency and accountability and equip them with a thorough understanding of election rules and procedures, inform them of their roles and responsibilities, and nurture an attitude of professionalism and civic responsibility. Although election technology can be highly beneficial, it can also lead to unintentional errors or vote manipulation when not properly understood and used by election staff. Especially when new election technology is introduced, EMBs must ensure that staff is fully trained and knowledgeable about how to operate it properly.
Provisions of the law should ensure that an objective, unbiased, independent, and effective administrative structure is in place. Observer groups should pay careful attention to provisions for appointment, remuneration, duties, powers, qualifications, and reporting structure of electoral staff. We might have observed a clean process on the day, but what about what came before, how transparent and accountable was that process. How about party funding? How about the electoral laws in place? How about broader questions concerning access to ballot boxes and, significantly, unrestricted information? And what about what comes afterwards? How accountable are the newly elected politicians going to be, once the excitement and uproar of the elections is over? At all levels, staff must have the necessary qualifications to perform well; staff should also be insulated from bias and political pressure. Adequate advance training is imperative for all election officials. All electoral activities, including the decision-making process, the legal process, and the organization of events, should be conducted in a wholly transparent manner. In addition, public consensus should exist on the administrative structure.
ESTABLISHMENT OF EEIC The newly constructed Electoral Education and Information Center (EEIC) has been recently inaugurated at the Election Commission Nepal. The EEIC is expected to serve as a centre of excellence towards making the citizens fully aware about democracy, elections and good-governance. Nepal is privileged to have one for imparting electoral education to the public which is most essential for deepening of democratic development. The modern Centre has been instituted with the financial and technical assistance from the AusAid and UNDP. The ECN in the days to come is planning to adopt effective ways to impart electoral education to the public, improve policies and laws to make the electoral system more transparent and would become a vibrant institution which would educate people about the evolution of democratic governance in Nepal. With EEIC’s technologically advanced facilities such as the mini-theatre, interactive area, mock election room, museum, e-library and space for research, training and public outreach, it is expected that the Center will enable interaction with a variety of electoral stakeholders on electoral issues and promote free and fair elections.
The ECN has often organized specialised training for it officials. Projects were designed to provide necessary trainings to the electoral officers and all others who took part in organizing and conducting of the CA election. The trainings were organized in Kathmandu and other appropriate locations.
Some of the achievements are noted as under: • Master Training of Trainers for senior election experts (18 against target of 25) • Training on electoral process of the CA for 240 Returning Officers (ROs), 75 District Election Officers and 75 training focal points in the districts (persons) • ToT on Electronic Voting Machine (EVM) (15 persons) • Training for the Computer Operators of 75 DEOs and 5 Regional Resource Centres (RRC) to operate electronic and other CA-election related equipment in the Districts (76 Persons) • Training on the election expenditure management for the accountants of 75 DEOs and RRCs (73 persons)
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Similarly in February 2008, under peace fund support, a capacity bulding exercise for the ECN staff was organized with the following objectives of conducting a free, fair, and credible Constituent Assembly Election so that all election officials and support staffs: • Perform professionally, accurately and impartially during the entire electoral process including prepara- tion phases, E-day and counting, • Ensure that all Nepali registered voters are able to exercise their right to vote in a free and fair manner.
The capacity building training concluded with the following achievements: • 249,690 Election officials and support staffs were trained to manage the CA election at various levels. • 3,750 stakeholders received orientation on various aspects of the CA elections. • Enhanced capacity of Election officials to conduct CA election.48
Institutional Strengthening and Professional Development Support for the Election Commission of Nepal is another major ongoing program which is being implemented by UNDP (ESP) in partnership with the Election Commission aims to build up the capacity of the Election Commission to efficiently hold participatory, peaceful and credible elections. It is a new kind of initiative developed to provide the Election Commission sustainable and enduring institutional and professional support in line with the electoral cycle approach.
Although the commission was widely praised for the way it ran the April 2008 CA elections, a review identified a number of ways in which the commission and the overall system for holding elections could be strengthened. The main need is for the commission to move from working in a reactive way around individual elections to more proactively addressing the challenges it faces over the medium term. Another need is for the Election Commission to develop an institutional memory based on its experiences of running previous elections — as experienced staff often move on to other government agencies. The project will address both of these challenges towards the improved management of elections alongside initiatives to increase democratic awareness and voters’ participation.
Following the UN electoral needs assessment and the mid-term review of the Election Commission’s five year strategic plan (2009-2013), the need increased to revise and extend project further in order to respond to the current requirements of the Election Commission. With these revisions, the Phase II of the Electoral Support Project is designed to extend support to the ECN till 2016 providing technical assistance with electoral preparations during the series of upcoming national and local elections and continuing to strengthen capacity of ECN in other areas.49
8.2 Project objectives and activities Institutional strengthening — Strengthening the capacity of the Election Commission to administer elections by supporting it to: • produce a strategic plan for its development; • modernise the voter registration system; • produce a GIS-based mapping system for showing polling stations and other key locations to enable elec- tion logistics and planning; • develop the system for dealing with election-related disputes; and • learn from experiences in other countries with relevant electoral processes and systems
Professional development — Build up the skills of Election Commission staff by running a BRIDGE (Building Resources in Democracy Governance and Elections) training programme and other professional development initiatives for them. Democratic participation — Improve the understanding amongst the general public about the importance of participating in the democratic process — especially amongst women and marginalized groups — by supporting the commission to: • run a continuous voter education and outreach programme; and • set up an electoral education and information centre for the general public on the commission’s premises
48 www.nptf.gov.np/userfiles/NPTF%20-%20Cluster%204%20Project%20Sheets%20(21%20May%2012)_4.pdf 49 The Electoral Support Project - United Nations Development, www.undp.org/content/nepal/en/home/operations/projects/.../esp/
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8.3 Major Achievements • Supported the ECN in implementation of ESN’s five – year strategic plan (2009-2013) • Registration of 10.2 million ( 16 years and above) voters as of February 2012 using photographs and biometric profiling • Establishment of the Electoral Education and Information Center at the premises of ECN for public outreach, voters and civic education • Strengthened capacity of ECN staff and electoral stakeholders at central and local level through customized BRIDGE trainings and on-site technical and advisory support • Draft gender Policy undergoing stakeholder consultations • GIS facilities established within ECN, equipped with essential hardware, software and database50
BRIDGE Developed in 2000, the comprehensive BRIDGE training curriculum with its 24 modules and coupled with a facilitator accreditation programme, is the result of partnership between five organizations: the Australian Electoral Commission, the UN Electoral Assistance Division, the UN Development Programme, the International Foundation of Electoral Systems (IFES), and International IDEA. BRIDGE is not only a skills development programme, but also increases knowledge and seeks to address attitudes in order to improve the quality of elections administration and management.
The course is broken up into modules, which were developed by practitioners and experts across the globe. It is therefore highly adaptable to any political and cultural setting. It emphasizes the principles underlying all properly run elections, while drawing practical examples from different countries. An interactive approach is used for learning since peer-learning and sharing experiences with other participants is an essential part of the training. BRIDGE does not only focus on elections but also on democracy and governance (DG BRIDGE), which can be used to complement the elections curriculum and cater for more varied audiences through dialogue on democracy or governance issues at a local level. In this case, IDEA has cooperated closely with the Australian Electoral Commission to assist in rolling out DG BRIDGE in Asia-Pacific and now in Africa.
In order to make the election procedures more independent, impartial, transparent and professional, the Institute for Democracy and Electoral Assistance (IDEA) and the International Foundation for Electoral Systems (IFES) have come on board to conduct trainings on Building Resources in Democracy, Governance and Election (BRIDGE) to make the election procedures. As of now, the political party members who won the seat in the first past the post (FPTP) system in the Constituent Assembly election have received the training along with members of the civil society, media and Election Commission staff. Source: www.bridge-project.org
9. Registration of Political Parties in Nepal Political parties are the pivots of multi-party democracy and, therefore, Nepali constitution has made them “inviolable,” mandated them for registration with the EC, sought for their transparency and democratic behavior. Ironically, however, “politics in Nepal is still based on personality than institutions; the leadership roles within the government and parties are personalized and lack accountability, and when crises accumulate due to the failure of institutions and leaders, the elected representatives including the leaders of government find themselves stuck with the environment. Such functional and behavioral crises severely hinder the process of institutionalization and legitimization in the country.” (Baral and Rose, 1998:213).51
The EC demands some conditions to be fulfilled by the national political parties for registration: they must be democratic; there should be periodic election of office bearers within five years; provide thirty-three percent of women candidates for the election of the CA but does not restrict any threshold so far of popular votes in the election.
50 (Source: http://www.undp.org.np/democratic-governance/program/esp-88.html) 51 Electoral System and Election Management in Nepal aceproject.org, by DR Dahal
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In order to enhance a healthy environment for competitive and wide participatory opportunities, the Constitution prohibits the imposition of any restrictions on political organizations or parties. People are free to form and operate political organizations or parties of their choice in the competitive free market of political process. Parties are entitled to generate or cause to generate publicity in order to secure support and cooperation from the general public for their objectives or programmes, and to carry out any other activity for this purpose. Any law, arrangement or decision, which restricts any of such activities, shall be inconsistent with this Constitution and shall be void. 52
The basis of religion, community, caste, tribe or region cannot be applied in forming any party or community organization. Every political organization or party must secure the recognition from the Election Commission before elections. The citizen is discriminated on the basis of religion, caste, tribe, language, sex etc. that tends to fragment the country. Nevertheless, political organizations and parties do not require securing a minimum threshold of the total votes cast in the election. For the purposes of elections to the CA, at least 33 percent of the total number of candidates contesting in election from any organization or party must be women.
Even if the partial quota system introduced to increase gender participation to a more equity level is positively debated, some fear, it may however, adversely ignite the issue of ethnic representation challenging the very basis of national integration although there’s no alternative to inclusion of the traditionally marginalized section of the society.
Political Party Registration Rules
In exercise of the power conferred by Section 44 of the Election Commission Act, 2063 (2007), the Election Commission has framed detail procedures relating to registration of parties, including information on notice, application process, list of required documents to be submitted, evidence of voters support, conditions for party registration followed by verification process and overall examination and decision by the commission to recognize the party. Similarly, conditions and procedures relating to non-applicability, disqualification and cancellation in registration are also described in the Rules.
Moreover, what is still required in the political parties is their democratic approach in candidate selection process, which helps devolve choices to the local people to select their representatives. Although constitution bars those parties formed on the basis of regional, ethnic, religious and communal consideration but some of such parties are registered within the EC and there are many small ideologically radical and single issue parties which are not registered but are operating in the national scene. The problem for the EC is how to bring them to constitutional domain. Alternatively, can Nepal emulate democratic sentiment of German Basic Law that outlaws the registration of anti-democratic parties?
Stability of democracy needs a strong sense of social contract among all the stakeholders, something, on which the society sticks to strongly and less equivocally. On one hand the mass political parties who run by professional machines have exonerated their cadres from all forms of personal responsibility. On the other hand, the emergence of cacophonous multiplicity of smaller parties and candidates with their own identities and interests in holding power by making and breaking the governments will continue to inspire governmental instability in the future. Political parties are vertical institutions, which provide regular mediation and communication between bottom and top of society, between elite and the mass and regular contact between political parties and electorates. In Nepal, due to a lack of well-developed physical infrastructure and accountable leadership, such contacts are limited. As the saying goes, yatha raja, tatha praja-as is the king, so are the people.
52 Representative Democracy and Challenges of Electoral Law Reform in Nepal, 1994
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Challenges of Political Parties in Nepal
Tendency to Break Up: The tendency of the Nepali political parties, including the major political parties since 1990 to break-up has become one of the obstacles to the institutionalization of the political parties Even after half a century of existence the major political parties remain uninstitutionalized. Even the CPN/Maoist is a breakaway party. All major political parties have suffered from the problem of splits and mergers at will. Therefore one of the challenges is to stop this process, and initiate dialogue with the political parties to realize the importance of being institutionalized organizations and assist them in this process.
Intra-Party rivalries: Parties in government have also been involved in hijacking the members of the HoR with the aim of pulling down the government. Several governments have been pulled down by intra-party conspiracy through the use of this means. As a consequence, the country witnessed much experimentation to form coalition governments of various combinations. Furthermore the parties suffer from the problem of personality clashes and group factionalisms within the party. Thus another important challenge before the parties is how to maintain discipline and patience among the party members.
Inability to develop consensus politics: Another problem encountered by the political parties since 1990 restoration of democracy was their inability to arrive at or create a general national consensus on fundamental governance issues. The constant suspicions and bickering among and between themselves undermined their abilities to govern. The consequences of this were the frequent dissolution of parliament and the general instability it created in the country. Consequent to which the country witnessed the formation and fall of fifteen governments within the last 21 years.
Minimization of the Role of the Political Party: The current political developments especially after the dissolution of the CA without any product have minimized, even marginalized the constitutional and effective role of the political parties. According to the constitution, elections must be held within 6 months of the dissolution of HoR, which was on November 2012. The framers of the Constitution had not visualized and therefore made no provision for situations where elections were not possible. The politics of appeasement and deception and negation to the clause of the constitution (Art…..) and inability to promulgate the consensus-based new date for the election, has created a situation, which has badly tarnished the role of the political parties in the eyes of the public.
Leadership Domination: On the whole the political parties are leadership- dominated in terms of their functioning and decision making process including the selection of party candidates for the different positions. This restricted full participation of the cadres and the development of their leadership capacities. It is discerned that even the dominant parties are not completely institutionalized. Therefore, an important challenge for the parties in general is to address the issue of democratizing their decision making processes, encouraging greater participation among the cadres and greater transparency of their decision making processes. Crating a greater ownership of the party would minimize internal splits, and strengthen the parties’ capacities to be effective actors in the democratic process.
Absence of Transparency in Financial Transactions: Parties are not fully transparent in relation to their sources income and expenses. Instead of a single Act, two Acts under which parties could be registered with the EC, seems to have enabled the political parties to retain secrecy on financial matters including the financial management of party funds and in the maintenance of the financial records.
(Source: A Study of Political Parties of Nepal: In the Context or Regulatory Framework and Internal Functioning – By D N Dhungel)
10. Voting Process and Counting in Nepal In order to understand whether the political system is in harmony with representativeness or does the electoral system make citizens approach the political system. It is also important to analyze whether both systems do provide the voters self-constitution and self-organization or just mean to subject them to the realities of power struggle. According to Dr. Dev Raj Dahal, a senior political and electoral analyst in his article “Electoral System and Election
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Management in Nepal”, 2001 Friedrich Ebert Stiftung (FES),53 reiterates that one can safely assert that voting rights are not something hopelessly legalistic, it is civic, political and practical whose awareness among the Nepali voters is wretchedly superficial and low. Mere formalization of rights makes voters bitter, skeptical, passive and ultimately apathetic. In other words, they end up precisely, which the democratic regime does not want them to be. Voter education should constitute a big part of Nepal’s elections as the bulk of the youth electorate is participating for the first time and many simply do not know the meaning of voting at all. How is the message of election put forward? How do people know their choices? Manifesto’s of political parties, gluttonous speeches of candidates, directives, norms and orders reflect only one aspect of the world of politics. The web of civic life consists of dense network of citizens.
Dr. Dahal further states that this does not prevent vote buying and selling, character assassination of candidates, belittling national sensitiveness, social harmony and decent voting behavior which indicates the abdication of one’s own reason, conscience and civic responsibility unless voters themselves participate in defining and creating world- views. Their ability in doing so places them in a position to make political decisions with sufficient bearing for the nation and people. What are the foundations of civic obedience? Civic knowledge and skills. The educational process should lead to discovery, not indoctrination; insight, not facts and data; and engagements, not just interest. It should help challenge outmoded values and assumptions and consciously induce them to involve in the political process.
In the experience of FES, preparation of youth for participatory democracy requires continuous discourses focusing on the acquisition of civic knowledge and voting skills to engage and act on important public issues and challenge the fundamental problems in Nepali political and economic system, such as corruption, cronyism, opaque politics and economics and squandering of development funds in unproductive activities. Civic competence of citizens sets out what are the rights of citizens, what they should do and what they should not do as well as to move into the sphere of imagination, self-experience, reflection and will to sovereignty. It is here citizens develop a sense of trust in political authority and facilitate their engagements in politics.
As Dr. Dahal rightly puts “The basic objective of civic education is to bring activities of parliament closer to the people. Nepalese must establish the habit of active citizenship through educative means, that is, being players, not spectators, and assume personal commitment and responsibility for what is going on in their communities, localities and the nation-state. Unfortunately, there is woeful absence of civic education by schools, by the press and perhaps by parents, which speaks a lot about “non-voting” behavior of citizens. In this sense, adequate civic competence is essential because it helps to revolt against the normalizing function of traditional politics and stages a dialectical play between democratic theory and real-politics.”
10.1 Significance of Voting Process Electoral Process means registration for voting to declaration of results in a free and fearless manner. It is essential to draw attention of voters, political parties, Election Commission or concerned government authorities, for strengthening some aspects of democratic system and do necessary work in this regard. Likewise, if it is necessary to provide training to voters in a specific aspect of election, attention of concerned NGOs will be drawn. It includes the following phases:
a) Pre- Election Phase54 • Working with concerned stakeholders to promote people’s participation in Electoral Process by the Election Commission. • Coordinating and co-working with national and international agencies to ensure monitoring of free and fair elections in accordance with national laws and international norms of the Election Commission. • Monitoring publicity campaigns during the period of elections by political parties and to draw attention of concerned authorities if any activities occur against free and fair elections. • Informing concerned authorities after identifying constituencies where unfair election practices are seen due to geographical distance, lack of accessibility, low literacy and to inform concerned authorities about it and form special monitoring teams for these by Election Commission. • Contacting civil society, human rights organizations and NGOs involved in raising consciousness of voters in different aspects of free and fair voting by the Election Commission.
53 “Electoral System and Election Management in Nepal”, 2001 Friedrich Ebert Stiftung, DR Dahal 54 www.neocelection.org
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• Monitoring activities of such government offices, which can impact elections. Drawing attention of authorities if their activities are cause of concern. • To mobilize necessary public opinion and monitor against any attempt to use government resources, administrative machinery or media network for party, ethnic or regional interests. To draw attention of concerned authorities in such cases. • To organize Election Observation Committee in each development region, district and constituencies. • To invite prominent persons as international observers interested in democracy and its strengthening in collaboration with human rights organizations and NGOs by Election Commission. • To prepare directory and code of conduct for national and international observers by Election Commission.
b) During Voting/ Election Phase55 • Make arrangements for observation to national and international observer teams. • To monitor whether polling booths are well organized and check their safety and security. • To monitor whether necessary inputs have reached polling booths. • To monitor whether the security arrangement for poll personnel is adequate. • To monitor whether there are enough personnel and volunteers in polling booths. • To monitor whether necessary regulations are followed in giving ballot papers or polling. • To see whether regulations are followed in opening and closing ballot boxes.
c) Post Election Phase56 • To monitor security situation during transport of ballot boxes. • To examine ballot boxes brought from polling booths. • To examine ballot papers about their numbers. • To ensure presence of representatives of candidates during counting of votes. • To prepare interim report on the basis of report prepared by Observation Teams and to publish it. • To form an editing sub-committee after preparation of a report made by national and international observer teams in order to prepare final report on Election Observation and Monitoring.
10.2 Status, Role, Right and Duties of Voters Role and Status of Voter • To inform other voters about right to vote and importance of voting • To get information about respective polling centre and position of the voter in the voting list • Not encouraging voters in queue to vote for any candidate • To take identification documents while going for voting • To behave during voting and not creating disturbances • To give priority to pregnant women, elderly and disabled during election • To inform Election Commission and officials about those violating the code of conduct • To cooperate with officials and security persons • To refrain from voting in other’s name
Right of Voters • To vote for political parties and candidates • To be informed about political parties and candidates • To be informed about electoral system and polling procedure • To be informed about programmes and manifestos of political parties
Duty of Voters • To vote only in one’s own name • To reach polling booth in time • To refrain from voting due to financial incentive • To vote only during one’s own turn57
55 Ibid 56 Ibid 57 Electoral System and Voting Process, Study Report, 2012, Dr. CK Gyanwali
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In addition, voter’s participation in an election is crucially important. Electoral System and voters are closely connected. In order to make participation active and useful, it is essential to give citizen education on rule of law, democracy, and development, economic and social issues. Every citizen should be given input and information on role, status, rights and duties of the voter. Voter participation is essential after giving basic knowledge and information to the voter. Answers to such questions as what is meant by participation? What are the basic factors about participation? Are presence and participation the same or different? What is the difference between involvement and participation? To be involved with an organization or party and to form own thought is called involvement, which is not the same thing as participation. The leadership of political parties takes itself to be the mother of thought and opinion. It makes its own definite ideas and point of view, which are taken by the leaders and members of party before the voters.58
Voters should be present to listen to their thoughts but the involvement of citizens is not sought in order to evaluate their thoughts but role of citizens is not sought in improving or changing them. Citizens are thought to be just an audience. However, popular participation is just the opposite. Listening to the thoughts of citizens and to form impressions and point of view on its basis is citizen’s participation. This is also the real meaning of participation. Democracy can also be really institutionalized because of this. However, participation is sometimes considered mere presence. To call mere presence as participation is another name for imposing one’s own thoughts and point of view to others. Today’s citizens, therefore, look for not merely presence but also participation. Such participation doesn’t merely mean voting in the elections. What is needed is to have independent views on political, social, economic and social issues and to take independent participation on discussions. Therefore, participation in voting and having independent views in political, social, economic and cultural issues and participation in discussions are essential. In exercise of the powers conferred by Section 74 of the Election to Members of the Constituent Assembly Act, 2064 (2007), the Election Commission has framed a regulation, which is to be valid till the Constituent Assembly.
The Regulation provides information on programs and procedures relating to election date, polling, candidate nomination, registration and publication of both first-past-the-post and proportional electoral system. It outlines the Commission’s role and procedures involved in providing election symbols to political parties and individual candidates in the final list and publicizing it. Details on specifying polling stations and polling zones and the responsibilities of EC officials in the act are also explained in the Regulation. Similarly, information on the types of ballot papers for the two types of electoral systems and the procedures and responsibilities involved in ensuring the safety of ballot papers, dealing with destroyed or damaged ballot papers, examining the ballot box, and providing ballot papers to voters to cast votes are explained in the Regulation. Details of the method of casting vote, impressing seal in ballot paper, ensuring safety and security of ballot box with votes, preparing inventories and retaining remaining ballot papers and documents are clearly explained in the Regulation. In the case of special circumstances, the responsibilities of EC officials in postponing polling are also outlined in the document. Procedures relating to counting of votes, the responsibilities of officials and vote counting methodologies and declaration of counting results for the two electoral systems are explained in the Regulation. Similarly, information on the presence of representatives of political parties or candidates at polling and counting activities are explained in the document. The case study of the results of the CA election shows that after the E-day, the ECN had to order re-poling in 106 polling stations in 21 constituencies. Ballot boxes were brought from the polling locations to district headquarters and counted over a two – week period in large counting centers, under the watchful eye of political representatives and observers. An unfortunate rise in invalid votes from the previous 2.8% to around 5% was seen, which can be attributed to the complexity of the election system (particularly the use of two ballots for one election) and the constantly changing and challenging environment, which affected voter education in some areas. Results were released gradually at the counting centers and then transmitted to Election Commission headquarters, where they were tallied and immediately posted on the Election Commission’s website.59
58 Ibid 59 newmediaauthority.com/anfrel/wp-content/.../02/2008_nepal.pdf
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It is especially important for observers to be present at the closing of the polls and the counting of the ballots. Counting should be open to official observation by concerned parties, including national and international observers. All issued, unissued, or damaged ballot papers must be systematically accounted for. The processes for counting votes, verification, reporting of results, and retention of official materials must be secure and fair. Recount procedures should be available in case of questionable results. Ideally, alternative, independent verification procedures such as parallel vote tabulation will be in place.60
Counting: What to Audit?61 Accounting of unused Ballots and Number of Persons Voted Status of Ballot Box in Terms of Intact Seals Determination of the Fairness and Impartiality of the Count Reconciliation of Valid and Invalid Votes Filling of Protocols and Attachment of Complaints Technical Shortcomings and Serious/deliberate Irregularities Integrity and Accuracy of Counting Transparent of Tabulation Easy Availability of Results to interested members of the public Prevention of Undue Delay Observation by Party Agents and Candidates
Observers should determine whether individuals who are denied voting rights have access to substantive redress. The right to challenge election results and for aggrieved parties to seek redress should be provided by law. The petition process should set out the scope of available review, procedures for its initiation, and the powers of the independent judicial body charged with such review. 11. Elections and Technology in Nepal The use of modern technology in elections is a rapidly emerging trend. Meanwhile, it is also quite a sensitive issue both in terms of non-familiarization of voters with the technology and the question of transparency associated with it. Cost is another crucial factor especially for economically challenged countries like Nepal. When procuring Information, Communication and Technology (ICT) systems, the choice of the technology to use depends largely on the appropriateness of the technology in respect to specific environments, infrastructure development, social and political factors and cost of implementation and sustainability. The use of ICTs can positively impact electoral management, especially in making some processes quicker and more efficient.62 But according to a new study from the European Commission, UNDP and International IDEA, ICT solutions also carry numerous risks. Strategic, operational and procurement planning is therefore central to the successful introduction and use of ICTs in elections.63
It is perceived that public acceptance of the use of modern ICT relates closely to the degree of public confidence in the implementing of EMB and other concerned agencies. The proper ICT usage can greatly improve the public image of the EMB. However, if the vested interest groups push the technology without judging the capability of the EMB and the level of public awareness, it will certainly be a counterproductive move; therefore the risks of failures may run high. Inclusiveness of the pubic and all stakeholders in the process of choosing and using the system and ownership of the electoral process together with appropriateness in terms of ability for the new technology to address the very problems for which it is being acquired is essential. Similarly, transparency of the decision making process in regards to the technology acquisition and transparency of the technology (e.g. voter registration, tallying and transmission of results, and e-voting) to promote public trust in the integrity of the system is also key to hold a credible election.64 Accountability towards understanding the impact of the technology on the integrity of the electoral process by average voter and accuracy and speed in vote counting, transmission and broadcasting as well as ensuring security of the election system as a whole is vital to secure trust among the voters and the public at large.
60 Training Manual for Human Rights Monitoring - Chapter 14, www1.umn.edu/humanrts/monitoring/chapter14.html 61 freedom of elections, Citizens' rights and duties, 2012, Election Commission of Nepal 62 http://www.undp.org/content/undp/en/home/ourwork/democraticgovernance/global_programmes/global_programmeforelectoralcyclesupport/highlights/ procuring_and_usingtechnologyinelectoralmanagement0.html2. ibis 63 Ibid 64 http://anfrel.org/election-management-in-a-digitalized-era/, Gopal Krishna Siwakoti, PhD
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11.1 Public Confidence The public should have full confidence in the accuracy of the voter register created through the use of such technology. For this, the authorities should ensure that the preliminary and final voter registers are published, and that copies are available for public inspection to allow checks for inaccuracies and omissions. Political parties, in particular, should have an opportunity to access the full voter registration process and where there are strong allegations or evidence of exclusion, inconsistencies and inaccuracies in the voter registration, the authorities should take constructive and transparent steps to improve its quality, including opportunities for claims and objections.65 It is but natural for general public to cast suspicion on the hi-tech strange machines used in the elections. Public confidence on technology largely depends on the existing political atmosphere of a given country together with the perceived independence of the EMB and other state machineries. Modern technology is undoubtedly an enabling tool and therefore serves to enhance the existing processes for efficiency and speedy delivery of elections. If carefully planned and managed, it can be cost effective and saves money in the long run. The issue of sustainability and cost effectiveness is critical to effectively implement the systems in the long run and with minimum reliance on external technical and financial support.66
11.2 Effective use of information management systems New technology can provide management tools and control mechanisms that can help electoral managers develop and implement good working systems and protect election integrity. The use of a computerized voter registration list can identify duplicate registrations (assuming the same voter information is used) and identify under-aged voters. The use of a printed voters list can eliminate the problems created by illegible handwriting and can be easily printed out to be posted at sites or given to political parties and observers. In a number of countries, computerized lists of registration and polling sites, with the numbers of registered voters per site, are used in the logistical planning for distribution of electoral materials. This helps ensure all aspects of electoral operations have the same accurate information on numbers and sites. Monitors and observers in their monitoring can also use these lists. Computerized lists of personnel and temporary employees (registrars and poll workers) are also used in many systems for training as well as payroll purposes.67
The easy availability of basic information increases the transparency of the process, which in turn increases political party and voter confidence in the system. For computers and other technology to be an effective management tool, the proper equipment and training must be available.
The conduct of elections has changed in many ways over the past twenty years with the introduction of modern technologies in electoral processes. There are three main aspects of elections affected by modern technology: • boundary delimitation, mapping systems, and public outreach; • voter’s registration; and • electronic voting and publication of results
Without doubt, these technologies will be used even more broadly in future elections and all electoral management bodies, including those in post-conflict countries, will have to deal with them. This development leads to two questions: What are the possible benefits arising from the use of modern technology in the electoral context? And what are the particular challenges and risks posed by the application of modern technologies in elections? Before trying to answer these questions it is important to familiarize ourselves with the modern technologies introduced in the electoral processes during the last two decades. We must also understand in what context these modern technologies are being employed. This will then allow us to form a clearer impression of possible risks and benefits. The following list contains some examples of technologies but is by no means exhaustive:68
Geographic Information System (GIS); GIS allows the combining and analyzing of geographically referenced information. It is used in many electoral processes nowadays, for example together with the Global Positioning System (GPS) and other satellite based information (e.g. photographs) for mapping.
65 Reflection, NEOC Position Paper, Observation of Voter Registration with Photograph, January 2012 66 http://anfrel.org/election-management-in-a-digitalized-era/, Gopal Krishna Siwakoti, PhD 67 Election Management — ACE Electoral Knowledge Network, aceproject.org › ... › Election Integrity 68 Center for International Peace Operations (ZIF), Kofi Annan International Peacekeeping Training Centre (KAIPTC), Elections in Post Conflict Countries– Lessons Learned from Liberia, Sierra Leone, DR Congo, and Kosovo –Report of a ZIF/KAIPTC Seminar, June 12–14, 2008, Accra/Ghana
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Data recognition; data recognition via Optical Mark Recognition (OMR) allows detecting the marks of the voters, e.g. on ballot papers and during voter registration. Optical Character Recognition (OCR) enables the computer to read handwritten characters. Punch Card Systems store data by using hole-codes punched on cards. Computers in combination with scanners are afterwards able to recognize the information automatically.
Data recording; many technologies are available for data recording, from paper records to provide printed records of the voter’s action to Direct Record Electronic (DRE) systems where the voter uses a keyboard, touch screen, or digital pen to record the voting action.
Data collection and transfer; the collection, entry and transfer of data is a key field of technology use in elections. Computers are of course used to collect and compile data. The internet is used both for voting (“online voting”) and to transfer data. Websites are used to post all kind of relevant information, from voters’ lists to election results. Landlines, cell phones, short message service (SMS), and Very Small Aperture Terminals (VSAT) are used for the collection and quick transfer of data.
11.3 Benefits and Challenges Regarding the benefits of modern technologies in the electoral contexts, it has been argued that in post-conflict situations their introduction can serve to build confidence among national and international stakeholders. Examples from the field show that often the opposition advocates the use of technology in order to guarantee a transparent process. Another possible benefit from the use of technology is efficiency gains, especially in large countries without transport infrastructure like the DRC. It can also increase electoral turn-out as it is quicker than manual and paper based processes and reduce the possibilities of fraud because of the quicker announcement of results.
In certain situations modern technology makes it possible to execute several operations simultaneously, such as personal data capture and ID card delivery. Sometimes the use of modern technology can actually decrease the cost of the elections. For example, the highly complex DRC elections only cost US$ 2.5 per voter. With regard to the challenges, one must never forget that new technologies alone are no guarantee for free and fair elections. Transparent ballot boxes do not necessarily mean transparent elections.
Though a process is be computerized, it is still vulnerable to manipulation by experts, and the manipulation might actually be less visible than before. Technology can become a barrier if the general population is unfamiliar with the new tools. In certain cases, technology undoubtedly increases the cost of elections: Côte d’Ivoire is one example where costs for voters’ registration for the current electoral cycle are exploding.
Another danger is that donors might be tempted into quick and visible projects that might not be sustainable in post conflict countries. What happens with the next elections? Will the technology still be there? Problems with technical assistance for the following elections arise if there is no knowledge transfer through training measures for local staff. There have also already been cases of pressure by donors and vendors on local electoral management bodies to buy election-related technologies from specific companies, usually from the same country as the donor agency.69
The ECN’s Strategic Plan on Information Technology Advancement drafted in March 2009 has the following components:
• Make information technology accessible to all employees in the Commission and its field offices. • Link the Commission and its field offices through an Information and Communication Technology • (ICT) network. • Install management information systems in the Commission and its field offices. • Provide updated election information on the Internet. • Replace the existing voter registration system with a new Registration System.
69 Center for International Peace Operations (ZIF), Kofi Annan International Peacekeeping Training Centre (KAIPTC), Elections in Post Conflict Countries– Lessons Learned from Liberia, Sierra Leone, DR Congo, and Kosovo –Report of a ZIF/KAIPTC Seminar, June 12–14, 2008, Accra/Ghana, Tajoudine Ali-Diabacté Deputy Director, Electoral Assistance Division, UN-DPA
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11.4 The Applicability The use of ICT is not limited to voter registration only. In many countries, ICT is in rapid adoption in the form of e-voting and the subsequent process. The use of ICT has important benefits directly related to the elimination of human intervention in the counting and in some cases also the tabulation phase. Automation of counting and tabulation leads to a speeding up of this process and faster availability of results. This is particularly useful if manual counting procedures are inefficient due to multiple contests and complicated electoral formulae. Less human intervention also leads to less opportunities of fraud by manipulation during count and tabulation. Some e-voting systems can warn voters that are about to cast invalid votes. By giving them a chance to correct this they reduce the number of spoilt and invalid votes. Especially e-voting in the form of Internet voting that allows voters to cast their ballot from anywhere without the time and locational constraints of voting polling stations can lead to another advantage.70
The use of technology in elections is as old as the history of elections themselves. ICT has over the last few decades, changed the way elections are conducted across the globe. The increase in the use of election technology has also increased the challenges, including errors of judgment, on what technology to use, where, when, how and why.71 While in some contexts technology has contributed to enhanced trust and confidence in elections, in others it has failed to solve existing challenges and even created new ones.72
The use of ICT is not limited to voter registration only. In many countries, ICT is in rapid adoption in the form of e-voting and the subsequent process. The use of ICT has important benefits directly related to the elimination of human intervention in the counting and in some cases also the tabulation phase. Automation of counting and tabulation leads to a speeding up of this process and faster availability of results. This is particularly useful if manual counting procedures are inefficient due to multiple contests and complicated electoral formulae. Less human intervention also leads to less opportunities of fraud by manipulation during count and tabulation. Some e-voting systems can warn voters that are about to cast invalid votes. By giving them a chance to correct this they reduce the number of spoilt and invalid votes. Especially e-voting in the form of Internet voting that allows voters to cast their ballot from anywhere without the time and locational constraints of voting polling stations can lead to another advantage.
Providing better services to citizens and more convenience for voters can potentially lead to increased participation and turnout, or simply fulfilling an expectation of the citizenary used to more and more governmental services being provided online. Internet voting is also one example of e-voting systems that can make elections more accessible for some citizens through the following manners: • home bound or institutionalized voters can be reached more easily • some voting machines have audio interfaces for visually impaired voters • there may even be options for providing ballots in more languages than what is logistically feasible in paper based elections73
11.5 E-voting: Possible Disadvantage The first important distinction is whether electronic voting is conducted in controlled or in uncontrolled environments. E-voting in controlled environments happens when the casting of votes takes place in polling stations, polling kiosks or other locations under the supervision of staff appointed by the electoral management body (EMB). By that means the election administration can to a great extent control the voting technology as well as the procedures and conditions under which voters are casting their ballots. E-voting in controlled environments can be seen as the electronic equivalent of traditional paper-based voting in polling stations or embassies. E-voting in uncontrolled environments happens without any supervision and from voting devices that cannot be controlled by the election administration. This can be from home, on the voter’s personal computer, or potentially anywhere on mobile or public devices. With voting in uncontrolled environments, concerns about the secrecy of the vote, family voting, intimidation, vote-buying, the loss of the Election Day ritual, the impact of the digital divide and the technical separation of voter identity and ballot paper, as well as the technical integrity of the device from which the votes are cast, all need specific consideration.
70 Electoral System and Election Management in Nepal, aceproject.org, by DR Daha 71 www.ec-undp-electoralassistance.org/index.php 72 Guiding principles and operational tasks in the use of technology in voter registration, Joram Rukambe, UNDP, 2012 73 Information Technology and Elections Management Thematic Workshop, Nairobi, March 5-9, 2012, Electronic Voting: Theories and Typologies, Peter Wolf, International IDEA
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11.6 Technology and Data Protection Protection of data and privacy are the issues of critical concern in the biometric voter registration and subsequent ICT protocol in the election regime. This is so especially when rapid global technological advancement and social media networks have, to some extent, obliterated the notion of indigenousness and the scope of the conventional national sovereignty. There are several international agreements and recommendations determining requirements of protection of personal data in terms of legislation and practice of authorities and institutions. The Universal Declaration of Human Rights (UDHR)-1948 and the International Covenant on Civil and Political Rights (ICCPR)-1966 have ensured the right to privacy of the citizens in all spheres and categorically the ‘secrecy of ballot’ is the key provision enshrined in both the instruments. Provision of the right to privacy is also the part of the European Convention on Human Rights (ECHR) and the Economic Community of West African States (ECOWAS).74
11.7 Legislating Data Protection While using ICT in elections, it is vital to determine which type of personal data is necessary to register to vote and how the data will be managed to provide the necessary protection to maintain confidentiality. Establishment of data protection commissions with the authority to safeguard against potential abuse of personal data is also essential together with the instituting a data protection register where all registers and databases containing personal data must be registered. Such registers are to be maintained by an authorized data protection commission. And most importantly, the determination of the ways of enforcing citizens’ rights under the data protection legal framework is the key to safeguard the sanctity of the election by engendering public confidence in the entire process.75
11.8 Safeguarding Voters’ Rights Developing and maintaining an accurate voter register and producing reliable voter lists can be extremely complex. The accuracy and completeness of the voter register is of critical importance, as non-registration prevents citizens from enjoying their right to vote and therefore inhibits universality of suffrage. Personal data of voter registers and voter lists can be used only for purposes of elections and – within this framework – for the purposes provided for by law. Sensitive data such as persons deprived of the right to vote and personal identification codes of voters shall not be publicized. In other words, the voter register does not need to include personal data other than that which is required to identify a voter and establish eligibility. Any requirement for additional information, such as ethnicity in certain societies may create scope for discrimination. 76
Similarly, only officials who maintain civil registers and voter registers may access this data for completion of tasks related to the population register and the voter register. Citizens have the right to access their data and be informed about when, where, and which agencies and for what purpose their data is being used. Citizens also have the right to initiate legal remedy procedures in the case of any inaccuracy, deficiency, or misuse of their data. Officials and institutions such as data protection commissioners, data protection committees, or human rights commissioners have the responsibility to safeguard information contained in the population register and the voter register; they have the responsibility to initiate action if they believe any unlawful use of data is occurring. Similarly, authorities and other concerned bodies processing the data of voter registers and voter lists should take necessary safety and security measures to prevent abuse or damage of the data.
11.9 Ensuring Domestic Entitlement Elections are a sovereign process. Each country is independent to determine their electoral model and the technicalities of the electoral cycle. To the degree permitted, the security of an election should fall within the ownership and control of a national authority to reflect sovereignty and avoid allegations of international interference. However, in some circumstances such as, post-conflict or transitional elections, international technical expertise may be needed to support the EMBs in order to attain the credibility of elections with a swift, reliable and transparent process.
74 http://anfrel.org/election-management-in-a-digitalized-era/, Gopal Krishna Siwakoti, PhD 75 Data Protection and Legislation, Mouhamadou Lo, Président de la Commission de protection des données personnelles du Sénégal,May 2012 76 http://anfrel.org/election-management-in-a-digitalized-era
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Biometric Voter Registration: Use of Advanced Technology in Nepal The Election Commission of Nepal (ECN) has commenced implementation of voter registration (VR) programme with photographs and biometrics in 2009 in order to establish a reliable voters list acceptable to the main electoral stakeholders which can be further used for National ID. The ECN completed the voter registration (VR) in all 75 Districts in March 2012, registering over 10.5 million eligible citizens age 16 and above. The registration began with a pilot in April 2010 followed by municipality registration in September 2010 and national wide registration in March 2011. There were more than 9,000 registration sites and 15,000 registration centres established during this period.
In April 2012, ECN displayed its initial voter list in all 75 districts at the VDC level for claim and objection process. In parallel, ECN conducted missed voter registration process which successfully registered 350,000 citizens. Following the display of voter list, ECN is currently re-verifying specific categories of captured voter’s data in the database on basis of enumeration forms. ECN has opened voter registration centres in all 75 District Election Offices (DEO), and is currently establishing registration centres in all District Administration Offices (DAO) and Sub district administration offices where citizenship certificates are distributed. As this is a new registration process in Nepal, continuous technical advice and the assistance of international experts is required to plan and implement the new processes effectively. In such context, the Consultant will provide guidance and advice to ECN officials for the implementation of continuous voter registration and will advise the Project Manager and ECN on an on-going process, as required.
Source: http://www.undp.org/
When procuring ICT systems, the choice of the technology to use depends largely on the appropriateness of the technology in respect to specific environments, infrastructure development, social and political factors and cost of implementation and sustainability. General acceptance of the ICT in the electoral process must begin at the inception stage within the EMB’s (user “buy-In”) and early involvement and participation of the stakeholders.77 It is perceived that public acceptance of the use of ICT relates closely to the degree of public confidence in the implementing EMB. This is true to some extent; however, on the contrary, the ICT usage can greatly improve the public image of the EMBs. Some of the IT innovations are actually pushed by the opposition, the legislators, donors, international community or a combination, thereof, given the technological advancements. In this stance, EMBs are ill prepared for the implementation of such innovations in the usually short time frames, and therefore the risks are high. Thus, EMBs should proactively predicate their technological need and plan accordingly as opposed to shying away.78
Inclusiveness, appropriateness, transparency, accountability, accuracy and speed, security and auditability, sustainability and cost effectiveness are the key components to facilitate EMBs to enable them to effectively implement the systems in the long run and with minimum reliance on external technical support from vendors, external financial support, etc. Additionally, the public should have full confidence in the accuracy of the voter register created through the use of ICT. For this, the authorities should ensure that the preliminary and final voter registers are published, and that copies are available for public inspection to allow checks for inaccuracies and omissions. Political parties, in particular, should have an opportunity to access the full voter register and where there are strong allegations or evidence of exclusion, inconsistencies and inaccuracies in the voter register, the authorities should take constructive and transparent steps to improve its quality, including opportunities for claims and objections. 12. Conclusion The use of technology in elections is bound to increase with time and there is need for increased expertise in the planning and management of election technology. There is a need to use a holistic approach to the application of technology in the management of elections: from the EMB institutional re-engineering (strategic planning and organizational development) to its operational responsibilities such as boundary delimitation; voter registration; voter and civic education; staff training; campaign monitoring; balloting; vote count and results announcement; and even stakeholder liaison and public outreach. 79
77 ec-undp-electoralassistance.org/index.php 78 Does technology mean the end of national ownership? Pontius Namugera, Director Technical Services Electoral Commission of Uganda, May 2012 79 Guiding principles and operational tasks in the use of technology in voter registration, Joram Rukambe, UNDP, 2012 www.ec-undp electoralassistance.org/ index.php?...task...
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During the CA by-elections held in 2009 in six constituencies, Nepal successfully used Electronic Voting Machines although one of them dysfunctioned in a constituency in Kaski district which was replaced after several hours since a helicopter had to be used to ferry it from the capital. The machines were offered by Indian government and the move to give EVMs worth $1,50,000 by India comes after Nepal successfully conducted election in Kathmandu-1 constituency with the help of such machines as part of a pilot project for the first time in its history. (PTI Apr 2, 2009). The ECN is currently in discussion with the government and other concerned stakeholders for the purchase and use of the EVMs across the country in the upcoming elections.
The biggest challenge in the use of ICT in elections is how to ensure a sustainable, appropriate, cost-effective and transparent use of technology, particularly in post-conflict elections and in fragile and emerging democracies. As a general rule, the level of technological upgrades suitable for a given partner country should always be directly related not only to its capacity, but also to the trust and independence enjoyed by its EMB. Such elements are decisive to the acceptance of the use of ICT by the public and, as a consequence, influence the level of trust in the electoral process.80
It is vital to enhance EMB capacities to synergize with other national institutions and also cross-nationally in the use of technology – this can be an invaluable cost recovery measure. The adoption of new technological solutions should be guided by procurement strategy that is based on integrity, effectiveness and sustainability. Transparent and timely procurement of election technology is critical for mitigating any risks associated with delays, non-performances or rushed processes leading to undesirable election outcomes. ICTS should be legally supported, operationally appropriate, cost-effective and sustainable. The core essence of the use of ICT in elections is that it must adhere to transparency and the entire process needs to be designed to add to integrity and legitimacy of the election. On the other hand, technology should not be driven by vendor or donor interests to suppress other more important needs. Public confidence on ICT largely depends on the existing political atmosphere of a given country together with the perceived independence of the EMB and other state machineries. If carefully planned and managed, it can be cost effective and saves money in the long run. ICT itself cannot serve as a foolproof resolution or a magical instrument in the electioneering process.
The introduction of modern technology in elections can be useful to address specific problems. However, modern technologies are clearly not a panacea and should strictly be considered on a case-by-case basis. Modern technologies must not undermine the local culture. One also should not introduce them as international standard. The context in which the elections take place has to be taken into consideration. As a general principle, the new technologies should be introduced in cases where they will increase public and political confidence in the electoral process or at the very least not undermines it.81
80 http://www.ec-undp electoralassistance.org/ index.php?option=com_content&view=article&id 81 Center for International Peace Operations (ZIF), Kofi Annan International Peacekeeping Training Centre (KAIPTC), Elections in Post-Conflict Countries– Lessons Learned from Liberia, Sierra Leone, DR Congo, and Kosovo –Report of a ZIF/KAIPTC Seminar, June 12–14, 2008, Accra/Ghana, Tobias, www.zif-berlin.org/.../ ZIF_KAIPTC_Elections__Report_02_09.pdf
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Section 2 Constitutional & Legal Provisions
1. Constitutional Provisions 1.1 Constitutional Law, BS 2004 (1947) Rana Prime Minister Padma Shamsher promulgated the first constitution in 1947, although it was never implemented. The lower house called Rastra Sabha was envisaged to have 42 elected members and 28 nominated by the Rana Prime Minister. There was a provision to have 20 to 30 members in the upper house called Bhardari Sabha. The cabinet was to contain members including those elected. There was also a provision for Village Panchayat including 10 to 15 elected members and Town Panchayat having 10 to 20 elected members and District Panchayat. Although there was no provision for an electoral system, the Rana Prime Minister was given the right to remove any difficulties in this regard. However, it was said that elections would be held using adult franchise.82
1.2 Interim Administration Act of Nepal, BS 2007 (AD 1951) This is called the second written constitution of Nepal and the first written one to be implemented. It was promulgated by King Tribhuwan after the end of the Rana regime in 1951 and is known as the constitution in which the monarch enjoyed considerable powers. It had made a provision for an Election Commission for the first time. It envisaged one voter list for each constituency, right to become a candidate irrespective of religion, caste or gender on the basis of adult franchise and all above the age of 21 entitled to vote. It also provided for power to make laws for this purpose.83
1.3 Constitution of Nepal, BS 2015 (1958) It was prepared under advice of Sir Ivor Jennings from Britain. It envisaged 109 constituencies in the country which would elect one representative each by secret ballot. Due attention was paid to geographic area, population and administrative accessibility in delineating constituencies. Provision was also made for adult franchise for all above the age of 21, Election Commission and electoral process as determined by law. Any dispute regarding elections was to be decided by a Special Court appointed by the Chief Justice. 84
• First Parliamentary Election, 2015 Nepal doesn’t have a long history of elections. The first ever election held in Nepal was the 1948 municipal election. During the first phase of democracy in the country from 1951 to 1960, elections to the Local Village Administration Body or the Gaun Panchayat were held.
Nepal’s first parliamentary election took place in 1958 to elect the 109 members of the parliament. It was Nepal’s first experiment with general elections. The People’s Representative Act of 1958 was promulgated to govern the election. The act defined the electoral process, candidates’ qualification and criteria as well as the constituencies. Nepali citizens who had attained 21 years of age were given the right to vote. The total number of voters was 4,246,468 at that time. There were 11 to 54 polling booths used for one constituency in the 1958 parliamentary election. The number of voters in a constituency ranged from 52,037 to 23,467.85
Nine political parties participated in the election. Altogether 786 candidates contested the election, among them 268 were independent. In this election, Nepali Congress won the majority with 74 seats in parliament whereas Nepal Rastriya Gorkha Parishad, the main opposition party in the parliament, got 19 seats. Samuykta Communist Party- Nepal got 5 seats and Nepal Communist Party had 4 members in the first elected parliament of Nepal. Nepal Praja Parisad (Acharya) had won 2 seats and Nepal Praja Parisad (Mishra) had 1 seats and 4 independent candidates were elected. Only one among all these elected names was a woman: Dwarika Devi Thakurani.
82 Nepal - CONSTITUTIONAL DEVELOPMENT, countrystudies.us/nepal/47.htm 83 Ibid 84 Ibid 85 Ibid
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• The Panchayat Elections With the promulgation of a new Constitution in 1962, King Mahendra wielded absolute power through village, district and national councils. Political parties and organizations were outlawed. In March 1963, an indirect election for parliament was held, which was called the Rastriya Panchayat. Few people voted in the election in which the general public had almost no say.
This parliament was dissolved by King Mahendra after two years and it took more that 30 years for the next parliamentary election with the participation of political parties, to be held in Nepal. During the Party-less Panchyat System elections to Local bodies and Rastriya Panchyat were held, in which only independent candidates were allowed to contest. Those who cast the ballot were the affluent class.
In 1979, following student’s revolt against Panchayat’s repressive measures, King Birendra announced a National Referendum to decide on a continuation of the Panchayat system or a return to multi-party democracy. The referendum was held in 1980. In the choice between the forms of governance, the results went in favour of retaining the partly-less Panchayat system, with certain modifications. The referendum, the first nationwide vote in twenty-two years, was held on May 2, 1980. The voters turnout was 67 %. The Panchayat system was chosen with a majority of 54.7 percent of the votes.
On May 21, 1980, the King formed a Constitution Reform Commission. 11 members were appointed to the commission, chaired by the acting Chief Justice of the Supreme Court. On December 15, the king promulgated three constitutional amendments: direct elections to the Rastriya Panchayat would be held every five years for 112 seats with 28 additional seats filled by the King’s personal nomination; the Prime Minister would be elected by the Rastriya Panchayat; and the cabinet would be appointed by the King on the recommendation of the Prime Minister and would be accountable to the Rastirya Panchayat
It was Nepali people’s first experience of a referendum. The changes introduced in the constitution, as a result of the referendum, established the general public’s right to suffrage, enabling all Nepalese to vote in the general elections of 1981 and 1986. Elections under the amended Constitution were held in 1981 and in 1986 for the Rastriya Panchyat. There were 1,096 candidates contesting 112 seats in the 1981 election. Voters turnout was 63 percent. As the political parties were banned in that period, even those affiliated with different parties contested the election as independent candidates. Out of the 75 districts, the Rastriya Panchayat members were elected on the bases of the population size of the districts. Every district was considered a constituency. For the 112 seats in the Rastriya Panchayat, one or two members were elected from every district, depending on its population size.
The Rastriya Panchayat election for 1986 was conducted in a similar manner. A little more than 9 million voters cast their ballots for 1,584 candidates running for 112 seats. 60% voter’s turnout was recorded. The General Election of 1986 led to nine Leftists being elected to the House. Only 40% of the previously elected members retained their seats. Nepali Congress boycotted the election. Some NC members participated in the 1981 election as independent candidates. Several members of the then outlawed parties were elected. 3 women were elected to the Rastirya Panchayat from the Terai region.
Local elections were also held under the Panchayat system in 1987.
1.4 Constitution of Nepal, BS 2019 (1962) There was a provision for indirect elections 112 members in National Panchayat, the supreme legislature and a quarter of membership nominated by the King. Each district was considered a constituency and the members were elected for five years on the basis of adult franchise. Sovereignty under this constitution was with the monarch who was most powerful under this system. Political parties were banned in this system, which called itself “partyless democracy”. An election commission had been provided under this constitution and a Special Court on the basis of recommendation of election commission.
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• Popular Movement 2046 The popular uprising (Jana Andolan) was a multiparty movement in Nepal that brought an end to absolute monarchy and the beginning of constitutional democracy. It also eliminated the Panchayat system. The movement was marked by a unity between the various political parties. Not only did various Communist parties grouped together in the United Left Front, but they also cooperated with parties such as Nepali Congress. One result of this unity was the formation of the Communist Party of Nepal (Unified Marxist-Leninist). In 2006, following the restoration of absolutism in Nepal, the Loktantra Andolan was launched which once again illustrated a unity between various political parties leading some to brand it Jana Andolan-II.86
The 1990s People’s Movement drafted the constitution into effect in November 1990. This constitution forced the monarchy of late King Birendra Bir Bikram Shah Dev to hand over decisions of government to the Nepali people. Through rallies and protest King Birendra was convinced to enforce a new constitution of the people, and “identifies the people as the source of political legitimacy . . . and guarantees of basic rights” (Baral). Now Nepalese citizens 18 years of age and up are eligible to vote. Due to the high illiteracy rates, nearly 40% of the population, political parties are related or associated with symbols. For instance, the Tree represents the Nepali Congress Party, and the Sun represents the Unified Marxist Party.
However, the construction of the constitution faced many difficulties because of the chasm between elites and the typical voter. The leaders of the most prominent parties are typically upper class citizens who are rarely concerned or associate with the larger section of the Nepal population, in which the typical voter had a high probability of being illiterate and high ethnic attachment. This large disparity increased the difficulty of creating a usable system that allowed electoral officials and Nepali citizens create a new system, yet still embrace traditions and beliefs about caste.87 1.5 Constitution of the Kingdom of Nepal, 2047 BS (1990) This constitution was promulgated after Jana Andolan-1 (Popular Movement) of April 1990, which resulted in restoration of multiparty system. Sovereignty rested with the people. There was a provision for two houses- House of Representatives (Pratinidhi Sabha) and National Assembly (Rastriya Sabha). Election to the membership of both houses was followed in different manner. The entire country was divided into 205 constituencies for elections to the lower house and voting was on the basis of adult franchise for all above 18 years of age under first past the post system. In the upper house, 35 members were elected from the electoral college of the lower house, a total of 15 members (3 from each of development regions) elected from electoral college of village, town and district level and ten to be nominated by the King. There was a provision for an Election Commission for holding fair and impartial elections and electoral disputes to be decided by a court as designated by law.88
• General Elections 1991 (2048) After the people’s movement in 1990, democracy was restored to the country. Within a year a new constitution was crafted, which guaranteed freedom to form political parties. The following year in 1991 Nepal held another general election for 205 Parliamentary members. The country was divided into 205 electoral areas. 44 out of a total of 47 political parties that had applied, were registered with the Election Commission for participation. Although 44 parties were recognized by the Election Commission, only twenty parties actually contested the elections. The twenty parties ranged from radical right to leftists. 12 parties did not win a single seat and obtained a total of only about 82,500 votes, slightly more than 1 percent of the total valid votes.
The Nepali Congress Party won the first multiparty election in thirty-two years, taking 110 seats in the 205-member House of Representatives. The results of the elections showed that a coalition of various Communist parties was a major political force in Nepalese politics. The Communist Party of Nepal (United Marxist-Leninist), a constituent of the United Left Front, won 69 seats. The Rastriya Prajatantrik Party headed by Lokendra Bahadur Chand won three 3 and the Rastriya Prajatantra Party headed by Surya Bahadur Thapa won only 1 seat. Nepal Sadbhavna Party won 6 seats. Nepal Majdoor Kisan Party won 2 seats. Samyukta Janamorch won 9. Communist Party of Nepal Democratic won 2. Independent candidates took the remaining 3 seats.
86 http://www.helsinki.fi/developmentstudies/research/Democratization.pdf 87 Bullets to Ballots: Participation of Maoist Women in the Parliament and the Government of Nepal after the People’s Movement 2006, A Research Paper presented by: Archana Aryal 88 Ibid
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The election witnessed a heavy voter turnout. Of a total of more than 11 million voters, about 7 million (65,15 %) cast ballots. More than 4 percent of the total votes were declared invalid on technical grounds. The election results made it clear that the monarchists and those in favor of the panchayat system lacked national support. Communist parties won in the Kathmandu Valley and some parts of the eastern Tarai Region. The Nepali Congress Party won in other parts of the Tarai Region and in western Nepal.
The new House of Representatives included 13 members of the dissolved Rashtriya Panchayat, five Muslims, seven women, and six members of the Parliament that had been dissolved in 1960. Out of the five seats in Kathmandu, the Nepali Congress Party won one seat; the rest were swept by the Communist Party of Nepal (United Marxist-Leninist). In the contest for a seat in Kathmandu, the Communist Party of Nepal (United Marxist-Leninist) General Secretary, Madan Bhandari, defeated interim Prime Minister K.P. Bhattarai. Girija Prasad Koirala from Nepali Congresss became the new Prime MInister.
6 deaths in pre-election violence were reported, but no election-related deaths were confirmed on the polling day. Police enforced a curfew during the long wait for election results. Because of election irregularities and violence, the Election Commission, ordered re-polling at 44 of 8,225 polling centers, affecting 31 constituencies.
A host of foreign observers, representing twenty-two countries, came to Nepal on the invitation of the interim government. The coordination and deployment of the international observers was assigned to National Election Observation Committee (NEOC). The international delegation concluded that the elections generally were conducted in a fair and free manner. The observation teams also concluded that from 5 to 10 percent of eligible voters were not registered and that there were some inaccuracies in the voter lists, which was also confirmed by the Election Commission.
• Local Elections 1992 (2049) In the 1992 Local Elections, Nepal Congress again won the majority of seats. The party won 50,614 seats, which represents 50.14% of the total number of seats. The local bodies were divided into 3 sections. District Development Committees comprise 1,077 members, including 75 District Development Chairpersons. There are altogether 58 municipalities (Kathmandu among them is the only Metropolitan city) then, from which, 4,147 members should be elected. Likewise, there are 3,913 VDCs, out of which 183,911 should be elected.
• Mid-term Poll, 1994 (2051) In 1994, mid-term elections were held, following a no- confidence motion in the parliament against the Nepali Congress. 11 million voters turned out in 14 thousand polling centres. Altogether 24 political parties contested the election. There were 1,442 candidates, among them 385 were independent. Out of a total of 205 seats, UML secured 88 seats while Nepali Congress secured 83 seats. Rastriya Prajatantra Party secured 20 seats, Nepal Sadbhavna 3 and Majdoor Kisan Party secured 4. Independent candidates secured 7 seats.
The coalition government of CPN-UML and RPP conducted the election for Village Development Committee, municipalities and District Development Committees in 1997. UML won 51.02 % seats at the VDC level, 56% at the municipalities and over 80% at the DDC level. The UML won 93,899 seats out of a total of 188,018 seats. Nepali Congress won 54, 317 seats, which represents 30. 01% seats and Rastriya Prajatantra Party won 12.6%, while Nepal Sadbhavna Party won just 5.09% of the total seats.
• Local Elections, 1997 (2053) One of the major accomplishments of the then coalition government was to hold the local elections in 3952 VDCs and 55 municipalities, two sub-metropolitan cities and one metropolitan city for more than 188000 seats in May 1997. Some of the VDCs in the far-west could not hold the elections due to Maoist disruption and intimidation. In the elections, UML secured 93396, NC 54397, NDP 22809, NSP 2228 and independents 9219. The local level elections showed a major shift in support of the UML, which captured 51.22 percentages of the seats. From 2001 local bodies have remained without elected representatives. Since then, several mechanisms have been put forward to overcome the transition period, with a very little commitment to conduct local election in near future. Even an optimistic scenario
44 Electoral Laws, Administration and Management Review Report for Nepal’s political transition in the next several years would recognize that significant changes to local governance structures on the ground remain years away.
• General Elections 1999 (2056) The third general election since the democratic movement of 1990, took place in 1999. For the first time, elections were held on two days. The ECN had decided to hold the elections in 93 of the 205 constituencies on 3 May and in 112 constituencies on 17 May 1999. It came after a 5-year term of the elected parliament. The election witnessed a voters’ turnout of 13,518,839. Thirty-nine parties contested the election. There were altogether 2, 238 candidates, among them 143 were female. Turnout was recorded at 65.79%. Nepali Congress secured 113 seats, while UML won 68 seats. Rastriya Prajatantra Party won 12 and Nepal Sadbhavna Party got 5 seats. Majdoor Kisan Party and Samyukta Janamorcha won only one seat each. Rastriya Janmorcha won 5 seats. Out of the total seats secured, female candidates won 12. No elections were recorded between 1999 and 2006, until the controversial municipal election conducted in the King Gyanendra’s regime. Local elections that should have been conducted in 2002 and the parliamentary election slated for 2004 failed to take place as the political stalemate heightened. • Municipal Elections 2006 The municipal Election under the Royal regime was held on 8, February 2006. The election witnessed a record low turnout of just 20 percent. The voters were mainly royal regime supporters or the government officials who voted under the fear of dismissal from their positions. The seven main parties, which controlled 90 percent of seats in the parliament before its dissolution, denounced the poll as a farce and boycotted it.89 More than half of the positions out of the total of 4,146 positions for election had no candidates. Some had just one candidate, making them automatic winners. Only 15% of the posts were contested. 3,255 candidates filed nominations for elections, out of which 600 withdrew in a period of just 2 days. Some complained that their names had been put on the election list, under duress. The election took place under heavy security. Journalists were banned from observing the polls. Pro-monarchists parties swept the polls. • Interim Constitution of Nepal, 2007 (2063) The Interim Constitution was promulgated as a result of Jana Andolan-2 (Popular Movement) and marked the beginning of peace process after the end of Maoist insurgency. It is a constitution for only a limited period of time before one drafted by constituent assembly is approved. It envisages to complete the task of restructuring of state after elections to the constitutional assembly was held in April 2008. The Interim Constitution elected a President on the basis of political consensus. The following provision was made for the election of members of constituent assembly. • First-Past-the-Post System • Proportional System 240 members were elected under First Past the Post system and 335 seats were selected under proportional representation system. 26 members were also appointed by nomination. The total membership of constituent assembly is 601. A mixed system of First Past the Post and Proportional was used in electing the members. Population has been made the main criteria along with inclusivity.90 Nepal did not have a history of elections under a proportional system. During elections under constitutions promulgated in 1958, 1962 and 1990, first past the post system was used. A proportional system was used only for elections to the upper house under 1990 constitution which was in use for twelve years. It was initially envisaged to elect 409 members and nominate 16 members for a total of 425 members. This included 205 members under first past the post system and 204 under proportional system taking the entire country as a single constituency. There was also a provision for making the system inclusive for proportional seats when lists were being prepared by political parties for women, Dalits, Indigenous people, Madhesis, the marginalized and backward areas. Regarding women, it was decided to give them representation in a third of the total membership including those winning from First-past-the-post system. However, the first amendment to the Interim Constitution made changes in the total number of seats.
89 np-caelection.blogspot.com/ 90 www.election.gov.np/
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Interim Constitution (First Amendment) B.S. 2063 (2007) It is mentioned in the First Amendment the following changes will be made in constituencies on the basis of similar population and geographic accessibility and how many seats will there be on the basis of plurality system and proportionate system. It was also mentioned that size of constituency would be increased in view of increase of population. A Constituency Delineation Commission was also formed for this purpose.
Interim Constitution (Third Amendment) BS 2064 (2008) The Third Amendment to the Interim Constitution has adopted a mixed system of representation. The First Past the Post seats remain 240. On the other hand, the entire country has been designated as one constituency and 335 seats were given to be elected under the proportional system.
The Third Amendment of Interim Constitution decided to have 601 seats in the constituent assembly including 240 seats from plurality system, 335 seats from proportional system and 26 nominated by the cabinet. The number of seats in other countries shows 687 in Korea, 659 in Britain, 630 in Italy, 630 in Italy and 601 in Nepal indicates that Nepal is included as one of the countries having more than 600 members. On the other hand, there are 435 (USA), 450 (Russia), 460(Poland), 400(South Africa) and India (538), which are larger than Nepal in area and population and are more developed. A small country like Nepal has to spend billions of rupees for its constituent assembly. The following acts were enacted in order to conduct elections in the country.
• Election to the Constituent Assembly Constituent Assembly Member Election Act, BS 2064 (2007) This Act has amended some acts related to elections of members of Parliament. This Act also amended the total number of seats in proportional system from 240 to 335, Fist Past the Post to be 240 and 26 nominated members adding a total of 601 members.
Mixed Election System The following system was applied for elections to the constituent assembly. a) First Past the Post- 240 seats b) Proportional System- 335 seats c) Persons making an important contribution to national life- 26 Total---- 601 members
First Past the Post Electoral System Under First Past the Post System, there is one seat per constituency and the person getting the largest number of votes for the seat gets elected. One person can run for elections from two constituencies under this system. i) Under this system one person could be a candidate for up to two constituencies. If a person gets elected in both seats, one seat would have to be given within thirty days of declaration of election results by submit- ting resignation of the seat to the Speaker. By-elections would be held to fulfill the vacant seat. ii) While naming candidate under this system, political parties would be required to give attention to the principle of inclusivity.
Proportional System In accordance with the proportional system, the entire country is considered one constituency. Elections would be held for 335 seats under this system taking into account the percentage of votes received by political parties. It will not be permitted to include the name of a person already named in First Past the Post to proportional system
Closed List of candidates Those political parties intending to participate in proportional elections would be required to submit a closed list of candidates. While preparing a closed list, the political parties would be required to give ten percent of candidates to such closed list.
While preparing a closed list would be required to be inclusive by giving representation to women, Dalits, oppressed castes, indigenous people, Madheshi and others in order to make proportional representation as given in Annex-1. While preparing women’s representation, it should be done in an inclusive manner assuring that Dalits, depressed
46 Electoral Laws, Administration and Management Review Report classes, Madhesis, backward areas are represented. A list of candidates among the Madheshi should include Dalits, indigenous people and others in an inclusive manner according to their percentage in population. The political parties should submit to the Election Commission as given in Annex 2 and should show male and females.
The percentage in population means percentage as shown in the national population census held before elections to the constituent assembly. Although political parties are required to include representation of poor farmers, workers, the oppressed and the disabled according to law, these have not been shown in the list. The list of women candidates in the proportional system includes women candidates in the First Past the Post system in order that it is not less than one third.
When the Closed List is submitted to the Election Commission, the political parties will be informed within one week whether representation on a proportional and inclusive manner has been assured and if any correction needs to be made. The concerned political parties would need to correct the Closed List within a week and resubmit it to the Commission, which could be the Final List.
The number of votes received by a political party in elections for proportional system would need to be translated into the candidates in the Closed List assuring representation to the Election Commission selected by Central Working Committee. The Election Commission will announce the names of candidates elected from the Closed List.
The Election Commission will investigate if the list submitted List of candidates assures proportional representation. However, it will accept variation up to 10 percent from the list. If it is found that the list of candidates presented by political parties after investigation is not in accordance with proportional representation, the Election Commission will write to concerned political parties to re-submit the list after making corrections. The political parties would be required to submit the corrected list within three days.
If it is found that there is no proportional representation the number of candidates declared by the political parties, declaration of elected candidates will be made in the same proportion. The Election Commission will make the list of candidates declared elected public and the political parties would be informed in this respect. The Closed List prepared according to this Act the number of candidates exceeding total number in the proportional system.
Irrespective of what is written elsewhere, during preparation of Closed List under proportional election system if a political party were to list less than 20 percent of candidates would need to prepare a list giving equal representation to men and women from other groups. If a political party selects a candidate other than those from the Closed List, approval of Election Commission would be needed.
Closed List to be valid only during the tenure of Constitutional Assembly The Closed List submitted by political parties will only be valid during the tenure of constitutional assembly for which the elections were held. If the seat of a member elected under the proportional system becomes vacant because of resignation, death, leaving the party or other reasons, candidates from the Closed List selected by the central committee of a political party would be declared elected.
Candidature to be declared invalid If there’re any questions about eligibility of a candidate according to Section 65, from Closed List in a Proportional System, Election Commission would investigate and if found not to be eligible, his candidature will be declared invalid. However, the candidate would not be denied the chance to present his defense.
It was on the basis of recommendation of Constituency Delineation Committee that 240 seats on First-Past-the-Post was required to follow an inclusive system for representing women, Dalits, Indigenous People, minorities, peasants was replaced by a mixed system consisting of First Past the Post and Proportional System by the Third Amendment of the Interim Constitution which gave 240 seats to First Past the Post, 335 seats to Proportional and 26 to nominated to make a total of 601 seats. The Constituent Assembly Act, 2064 B.S. was amended. According to the approved law, the following will be the percentage representation of different groups: Janjati 37.8 percent Dalits 13 percent Backward area 4 percent Others 31 percent
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On the other hand, Constituent Assembly Act 2064 was also amended. Actually, Constitutional Law (Sambaidhanik Kanoon) 2064 has also been amended, replacing it with a new Act. It is said that 50 percent of seats will be reserved for women. Actually it was envisaged to be included in the Third Amendment but was actually amended in the Second Amendment.
Election of Constituent Assembly: Statistics and Facts The First Constituent Assembly Election on 2008 Despite the various challenges and postponement of election for two times, the Nepalese people were finally able to cast their ballot in a peaceful manner on April 10, 2008. The CA election was an integral part of the peace process and played a crucial role in concluding the country’s decade- long conflict. For the CA election, a parallel mixed electoral system was used consisting of a First –Past –The-Post (FPTP) race and Proportional Representation (PR) race.
Composition of the CA a) First past the Post System b) Proportional Electoral System
Constitutionally the CA has 601 members, of whom 240 are elected from single –member constituencies based on the FPTP system, 335 through PR system with the country being the a single constituency, and 26 nominated by the cabinet. To make the CA inclusive as well as representative of all communities and groups, the following quotas were set for the closed list of candidates in the PR race.
Closed list of Candidates in the PR Race, 2008 Every group must include 50% women, an Groups Representation % overlap within some groups has made the total more than 100% Madheshi 31.2 Janjati 37.8 Dalit 13.0 Backward Region 4.0 Others 30.2 Source: Election Commission of Nepal, 2008 Fixing an Election Date The peace process clearly defined the need for the election of a Constituent Assembly, which would also function as a legislature. The Interim Constitution allows this body two years to draft and promulgate a new full-fledged constitution for Nepal, with the possibility of a six- month extension in case of emergency. The government in June 2007 initially called for the election for the Constituent Assembly. However, the country was not ready for this early date; electoral legislation was yet to be drafted and promulgated, the new boundaries of the constituencies had to be drawn, and understanding amongst the parties had not progressed far enough to provide a conducive environment for the election. In April 2007, in the absence of the required legislation as well as technical infrastructure, the Election Commission was forced to postpone the election. On this occasion, the Election Commission also clarified that in order to prepare effectively for election it needed a minimum of 110 days from when a complete legal framework was in place to the actual Election Day itself. In June 2007, the main electoral laws were finally promulgated and subsequently the government declared that the election would take place in November 2007. Determinedly, the Election Commission progressed with all preparations for a November election. Only to find that new obstacles had emerged, which made this timeline impossible? These obstacles included the absence of broad agreement on the newly defined electoral boundaries, demands by indigenous groups and Dalits for more inclusion, and the CPN (Maoist) demand for greater proportional representation than provided for in the previously agreed formula for a parallel election system. On the final day of party nomination, 5 October 2007, it became clear that there was no consensus among the major parties and consequently the government requested that the Election Commission to postpone the election again. This postponement was a significant disappointment to most stakeholders, especially the public. It also represented a major setback for the
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Election Commission and other electoral actors, such as observer groups. All had invested a substantial amount of time and resources in preparing for the November election; the Election Commission had trained and deployed their Returning officers. The political crisis continued through October 2007 to January 2008, exacerbated by an additional uprising in the Terai where the Madhesi objected to the government demanding their greater representation and autonomy. With the Interim Constitution requiring that the election be held before the end of the Nepali year, the new election date was finally declared on 11 January 2008 for a 10 April 2008 election. The Election Commission then faced a repeat of all the technical preparations as well as the additional challenge of rebuilding the trust of the people in the election process. Electoral Registration A Nepali citizen aged 18 years and over on December 15, 2006 was eligible to vote in the CA election. The total number of registered voters for the CA election was 17.6 million, consisting of 49.6% female and 50.4% male voters. Voters were categorized as either permanent or temporary, with temporary voters only being eligible to vote in the PR race. Registration of Political Parties 74 political parties were registered for the CA election. Of this total, only 54 parties contested both the race. Registration of Candidacy A total of 9,647 candidates participated in the CA election, of which 3,946 candidates, including 368 women, contested the FPTP race. For the PR race, a closed list of 5,701 candidates which included 2,837 female candidates was submitted by 54 political parties. Poling Centers 20,890 polling centers were spread out across the country in 9,824 locations. The number of voters per polling centre was fixed at a maximum of 1,150 voters. However, in one remote polling centre, only 23 voters were on the list. Capacity Building Between the period of voter registration and implementation of the election, over 275,000 election officials were trained in nine different programmes conducted at various levels through cascading methods, and deployed to manage the election. In order to generate maximum voter participation, the Election commission implemented a countrywide house to house campaign. Nearly 10,000 voter education volunteers were trained and mobilized to conduct public outreach programmes. Working in a two –member male/female team, these volunteers were provided with education materials, including flip charts, posters, pamphlets, stickers in 17 different languages and most importantly, an invitation card for each household to participate in the polling. In addition to this outreach work, the Election Commission launched an extensive voter education programme through electronic and print media. Election Observations The Election Commission knew that for the election to be a success scrutiny and validation by independent observation institutions was of pivotal importance. Election day itself was observed by 148 national civil society organizations with over 60,000 observers and 32 international organizations with over 900 observers, all deployed throughout Nepal. These observers not only provided comprehensive reporting during and after the election, but also assisted in claiming the general environment. Their presence held stakeholders responsible for their behavior and in doing so made a significant contribution to the credibility of the vote. In that election Mr. and Mrs. Jimmy Carter observed the election from the Carter center. It was a great opportunity for Nepalese people to meet Mr. and Mrs. Carter. Electronic Voting Electronic voting took place successfully for the first time in Nepal in constituency 1 of Kathmandu district. The Election commission will expand the use of electronic voting to the six constituencies whereby elections will take place. Election Day Until the actual morning of the election, widespread doubt remained throughout Nepal whether the election would take place at all. However, before polling began at 7 am, long queues formed outside many of the 20,890 polling stations with enthusiastic voters awaiting their right to determine the political process. The most shortcomings were related to the voters’ lists and the identification of voters at the polling stations. The voter registry was not precise enough and had led to a number of issues such as eligible voters being omitted; officials, political party representatives
49 Review Report Electoral Laws, Administration and Management and voters not respecting the registry entries; and, in some cases, votes being cast without correct identification of the individual, leading to impersonation, double voting and underage voting.
When the polls closed at 5 p.m., 63% of the registered electorates had voted, which by both international and Nepali standards was a good turnout. Overall, Election Day was a monumental triumph for Nepal, as a result of diligent preparations by the Election Commission and the Nepalese people’s commitment to peace and democracy. During this election, the Election Commission was already looking to the future and had decided to test electronic voting machines in one of the 240 constituencies. This pilot project was a success; users found it easy to use the machines and the result from this constituency was counted, tabulated and announced faster than any other constituency.
Constituent Assembly Court The Interim Constitution has established a especial CA court, with three sitting judges from the Supreme Court, to adjudicate the complaints received after the polling results. A total of 16 cases were filed in the court, of which 5 cases were finalized at the end of August 2008. In all of these initial five cases, the judges ruled in favor of the Election Commission’s decision.91
Results of the Constituent Assembly Seats 335 PR Total of Party % of seats 240 FPTP % of seats % of seats seats 575 CPN- Maoist 100 29.9 120 50 220 38.3 Nepali Congress 73 21.8 37 15.4 110 19.1 CPN-UML 70 20.9 33 13.8 103 17.9 Madhesi People's Rights Forum 22 6.6 30 12.5 52 9 Other 21 winning parties and 70 20.8 20 8.3 90 15.7 Independent Candidates Source; Election Commission, Nepal, 2008
Figure 6 The Result of the Constituent Assembly Seats92
91 www.election.gov.np, Constituent Assembly Election At A Glance, 2008, Election Commission , Kathmandu , Nepal. 92 Electoral System and Voting Process, Study Report, 2012, Dr. CK Gyanwali
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Analyzing the CA Poll Results It is assumed that the alliance scenario would have affected only the FPTP seats and not the PR seats. The following table summarizes the distribution of current FPTP and PR seats and potential number of seats the Nepali Congress, the left alliance of Maoists and UML, and the Madhesi alliance would have won. If the left alliance and the Madhesi alliance had materialized before the CA election, the Congress would have lost additional 32 seats; 29 to the leftist alliance and 3 to the Madhesi front alliance.
The data shows that the UML lost in the CA election. By forming an alliance with the Maoists, they would have easily gained an equal share of the majority seats in the CA and the ministerial portfolios in the new government. Together, the leftist alliance would have obtained 353 seats – a clear majority in the house of 601 CA delegates. The lack of alliance of the leftist parties and the Madhesi parties helped the Nepali Congress survive this CA tsunami. The NC would have been left only with 78 seats coming as a third party behind the Madhesi alliance with 85 seats.
A representation of women in the CA and its inclusive representation of specified groups is one of the major achievements of this election. As First–past–the-post candidates were allowed to compete in two constituencies, five candidates succeeded in winning in both the constituencies they were running in, and hence had to choose in which they wanted to take their seat. The 575 elected seats (including the five seats where one candidate won both) were won as shown in the table above.
On 25 April 2008, the political parties were informed how many of the 335 proportional seats they have respectively won. Complicated and at times controversial negotiations proceeded within the parties to determine which of their nominated candidates should take their respective seats. By 8 May 2008, the Election Commission had received and verified the selected candidates and could finally declare the names of winning candidates from the proportional race. The most remarkable feature of the result was that for in the quotas, as called electoral law, were largely implemented and have resulted in a much higher representation of minorities than ever before in Nepal’s history.
Representations of Minorities, 2008 Minorities Seats % Total Seats Janjatis 192 33 192 Dalits 47 8 47 Backwards regions 22 4 22 Women 191 33 191 Madhesi 196 34 196 Source, Election Commission, Nepal, 2008
Representations of Minorities, 2008
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It is estimated that out of the current 575 elected seats 34% or 196 candidates are Madhesi, 33% or 192 are Janajatis, 8% or 47 are Dalits, 4% or 22 are from backwards regions and, may be the most impressive figure of all, 33% or 191 are women, making Nepal one of the countries in the world with the highest percentage of women in Parliament or Constituent Assembly. The Cabinet has appointed the remaining 26 Constituent Assembly members, out of which six are women.
Complaints, Adjudication and Sanctions The election process in some areas saw a high number of breaches of the code of conduct, most problematically in the form of violence and intimidation by political contenders and their supporters. The Election Commission had received 368 complaints, which were adjudicated. Stakeholders especially national and international observers, had stated that violation should have been more aggressively pursued and a significant amount of strong sanctions imposed by the Election Commission. Aside from the jurisdiction of the Election Commission, 16 cases have also been filed in the Constituent Assembly court- a constitutional body with three sitting judges from the Supreme Court. As of the end of March of 2009 above 16 cases were finalized. In all of these initial cases, the judges ruled in favor of the Election Commission’s decision.
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Electoral System in the Reports of CA Committee
The draft reports of different thematic committees of the constituent assembly are as follows: Electoral System and voting process (local, provincial and central) President (18 votes) Election to take place on the basis of adult franchise and direct voting, term of office to be for five years and tenure to be limited to two terms. The entire country will be a single constituency and only full majority receiving candidate to be elected President. A runoff election to be held between two candidates getting the largest number of votes in case no candidate gets absolute majority of votes. Runoff election will take place within fifteen days of the first elections. If a person elected to be President is holding a political office, his post will be automatically declared vacant after election to the post of President. Legislation will be made in this respect. Vice President The candidate for President will propose a candidate from a different nationality, region and gender. The candidate proposed by the President who wins will become Vice President. President (16 votes) An electoral college consisting of members of both houses of central legislature and the provincial legislature will elect the President who gets the majority of votes on the basis of one-man one-vote. If no candidate gets a majority of votes a runoff election will be held between two candidates getting the largest number of votes. The candidate getting more than 50% of votes in the runoff election is to be declared the winner. If both the candidates get the same number of votes, the winner will be decided by “goal” system. President (3 votes) The lower house of central legislature will elect a President by two thirds majority of total number of members. There will be contest between two candidates getting the largest number of votes and the one getting larger number of votes will get elected. House of Representatives There will be 151 members in the House of Representatives. There will be 75 members elected directly from First Past the Post system and 75 from proportional system. Each constituency for direct elections will elect one candidate. Political parties contesting seats on the proportional system will be required to nominate candidates on the basis of class, region, etc. as required by law. A minimum of a third of candidates will have to be women. If the total membership of the House of Representative elected under both the systems is less than a third, the number of women from the proportional system would be increased to make it a third of the total. Provincial Legislature Provincial legislature will be unicameral. There will be a maximum of 35 members in the provincial legislature. There will be 18 from direct elections and 17 from proportional elections (similar to 51 percent and 49 percent in the central legislature). Political parties nominating candidates should take into account groups, class and regions which will be required by legislation for this purpose. A third of membership should consist of women. If the elected members from direct and proportional systems are less than a third, the number of women elected from proportional elections would be increased to make it a third. The right of voting will be given to those over eighteen years of age and residents in the Province. The requirement for candidature will include resident of province, more than twenty-five years of age and not declared unfit by law and not have assumed a position of profit. Local Self Government There is a provision for 70 percent multi-member and 30 percent for political parties in order to assure inclusiveness and proportionality. The executive of local governments for village, town and sub metropolis will contain from 7, 5 to 9 and 11 members respectively and if the chairman is a man the vice-chairman has to be a woman. The executive Chief will be elected in First Past the Post system and the eligibility will be for up to two terms. Deputy Chief and other members will be elected on the proportion of the presence of political parties. (Source: The Framework for Future Constitution in Nepal, INHURED International, February 2012)
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2. Election Laws, Regulations and Directives
The Comprehensive Peace Agreement (2006) On the basis of the historical agreement between the Seven Political Parties and the CPN (Maoists) on November 8, 2006, the Comprehensive Peace Agreement (CPA) was signed between the Government of Nepal (GoN) and the CPN (Maoist) on 21 November 2006. In short, the CPA is called the Peace Agreement, which declared the end of the ten-year armed conflict and a beginning of a new chapter of peaceful collaboration through political consensus between the GoN and the CPN (Maoist) towards ensuring the sovereignty of the Nepali people through forward looking political resolution, democratic restructuring of the state and economic, social and cultural transformation.
The deal has its origins in the November 2005 SPA-Maoist agreement signed in New Delhi, which provided a basis for the April movement and a guiding framework for subsequent compromises. The peace agreement charts a course towards elections for a CA following formation of an interim legislature and government including the Maoists. In a detailed agreement on arms management, the Maoists have committed to cantonment of their fighters and locking up their weapons under UN supervision; the Nepalese Army (NA) will be largely confined to barracks. The CA to be elected through a mixed first-past-the-post and proportional system will also decide the future of the monarchy.
The Interim Constitution of Nepal The Interim Constitution of Nepal was promulgated in Dec. 10, 2006 with a view to institutionalize the achievements made by the Comprehensive Peace Agreement, signed between the GoN and the CPN (Maoist) in November 2006. The interim constitution has been made with a political understanding between the 7 parties and the CPN (Maoist) through a resurrection of the 1999 House of Representatives as the interim parliament and a new legislature of 330 members with powers for an interim time period, until a new constitution is framed by the Constituent Assembly. The Interim Constitution has gone through two rounds of amendments.
The Interim Constitution of Nepal of 2006 has 26 parts, 167 sections and 2 annexes. The preamble of the Interim Constitution states that in view of the people’s aspirations for democracy, peace and progress expressed through various historical struggles and movements since and before 1951, serious efforts are made to progressively restructure the state for the resolution of the problems of class, ethnic, regional, and gender prevalent in the country. The interim constitution is for a competitive multiparty democratic system, people’s liberty, fundamental rights, human rights, adult franchise, periodic elections, complete freedom of press, independent judiciary, rule of law and democratic principles. Signatories declare that the Interim Constitution of Nepal of 2006 has focused on democracy, peace, prosperity, progressive socio-economic transformation and sovereignty of the country, integrity, independence and dignity to institutionalize the results of the struggles and revolutions launched by the people until then.
The First Amendment to the Interim Constitution of Nepal In response to demands made by various groups, especially the Madeshi movement, the parliament proposed amendments to the Interim Constitution, which was promulgated on January 15, 2007. The proposed amendment required a proportional share in all state mechanisms for historically marginalized groups and regions, such as Madhesis, Dalits, indigenous ethnic groups, women, laborers, peasants, and disabled people. This included a revision of the 205 electoral constituencies in existence at the time. Similarly, an amendment to Article 138 proposed a federal structure for the state under the Constitution to be written by the Constituent Assembly, in order to protect these groups in the future. Article 154 was added to create the Constituency Election Delimitation Commission (CEDC), which was tasked with revising the existing electoral constituencies under the leadership of a retired Supreme Court Justice. A number of constituencies were to be added in the Terai region based on its proportion of population, and in the hill and mountain districts, the account for population growth.
In addition to the elected members of the Constituent Assembly, a further 17 members who are people recognized for making significant contribution to the country, were to be nominated by the new Council of Ministers.
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Second Amendment to the Interim Constitution of Nepal On June 13, 2007, the second amendment came in effect to the Interim Constitution, which empowered the parliament to table a motion for the abolition of the monarchy by a two-third majority if the monarchy was found to be interfering with the Constituent Assembly Election (Article 159). The Prime Minister was required to summon a special session of the interim parliament within 15 days of such a motion being tabled. A new clause was added to allow the removal of the Prime Minister through a parliamentary vote. One fourth of the members in parliament are able to table a motion of no confidence against the Prime Minister, up to twice a year and summon a special session for this purpose. The amendment also defers the Constituent Assembly Election poll till Mangshir (mid-December, 2007) at the latest.
The amendment also made Supreme Court Justices and ambassadors subject to parliamentary hearings before their appointment (Article 155). The cabinet also asked the Constituency Delimitation Commission to review its report (for one time) if it found any technical errors (Article 154). Clause (57A) was added to provide for an opposition bench in parliament, however, a separate law is required for the opposition bench to come into existence.
Third Amendment to the Interim Constitution of Nepal Based on the 23-point agreement signed by the seven parties, the government presented a bill on the third amendment to the Interim Constitution, which was approved by the Legislative Parliament on December 28, 2007. With this amendment, Nepal has turned into a federal republic (Article 159). However, the creation of the republic needs to be endorsed by the first meeting of Constituent Assembly. A simple majority of the Constituent Assembly will implement the federal republic. The amendment provides for the Prime Minister to bear all responsibilities of the head of the state until the Constituent Assembly election.
The ratio of the Constituent Assembly members elected under the proportional and first-past-the-post electoral systems was also amended. Two hundred and forty members will be elected from first-past-the-post electoral system, while three hundred and thirty five members will be elected under the proportional electoral system. A further 26 members will be nominated by the Council of Ministers (Article 63). Therefore, the amendment increased the number of members in the Constituent Assembly to 601 from 497.
Finally, a provision was added in Article 61 to allow the appointment of a Secretary General and Secretary to the parliament by the Prime Minister, upon the recommendation of the Speaker. The new deadline to conduct the Constituent Assembly Election was also set for mid-April, 2008, the end of the current Nepali calendar year.
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Major Election Related Laws and Regulations 1. Election to Members of the Constituent Assembly Act, 2064 An Act Made to Provide for the Election to the Members of the Constituent Assembly 2. Regulation to the Election of Members of Constituent Assembly In exercise of the powers conferred by Section 74 of the Election to Members of the Constituent Assembly Act, 2064 (2007), the Election Commission has framed the following rules. 3. Election Commission Act, 2063 A Bill Made to Amend and Consolidate Laws relating to Functions, Duties and Powers of the Election Commission. Certification date: 2063/12/12 (March 26, 2007). An Act No. 1 of the Year 2063 (2007) enacted by the Legislative-Parliament. 4. Political Party Registration Rules, 2063 In exercise of the power conferred by Section 44 of the Election Commission Act, 2063(2007), the Election Commission has framed the following Rules. 5. Electoral Roll Act, 2063 The Act Relating to Electoral Rolls, 2063 (2006). Date of Certification: 2063.9.14 (Dec. 29, 2006) 6. Electoral Roll Rules, 2063 The Rules Relating to Electoral Rolls, 2063 (2007). In exercise of the powers conferred by Section 44 of the Act Relating to Electoral Rolls, 2063 (2007), the Election Commission has framed the following Rules. 7. Election (Offence and Punishment) Act, 2063 The Act Made to Amend and Consolidate Prevailing Laws relating to Election Offences and Punishment. Certification date: 2063/12/12 (March 26, 2007)
According to NDI’s Guide for Developing Election Laws, 2008, it is important to recognize that the process of developing the legal framework is not simply a matter of reaching an agreement among those parties that hold power at a given moment, or even among a broader circle of those who would like to compete for it through elections. Political parties should engage in dialogue about the elements of the legal framework for elections and, at a minimum, must convince a legislative majority to enact or amend electoral related laws. However, democratic elections are not likely to be achieved where one party holding a majority of seats in parliament decides behind closed doors what the legal framework for elections will be, nor are democratic elections likely where two parties holding a required majority collaborate privately.
The Guide further stresses that the interests of all those who would seek to be elected, as well as the electorate’s interests in ensuring genuine elections, must be reflected in a legal framework, if genuinely democratic elections are to be achieved. Practice demonstrates that the process for developing the legal framework must provide an opportunity for all prospective electoral contestants and the public to participate and directly express their interests, so that the framework may be based on open dialogue and broad agreement. There are a variety of mechanisms for reaching agreements on the rules for electoral competition. Legislative caucuses of the political party groups and independent legislators negotiate about the elements of the legal framework for elections. Parties negotiate outside the legislature on an ad hoc basis or as part of formal negotiations, such as a peace or reconciliation process, national roundtables or conferences and other form. Extra-parliamentary parties can be brought into such negotiations as can representatives of civil society, and community forums can be organized to inform and involve interested citizens. Such steps can be particularly important when rules for elections are to be addressed.
It is possible to make significant changes to an electoral system through a carefully constructed democratic process. A high degree of commitment on the part of those in government as well as in Opposition is necessary to introduce
56 Electoral Laws, Administration and Management Review Report and promote changes. In fact, as one New Zealand scholar has pointed out, “electoral reform must be seen as only a partial remedy to the wider public disillusionment with politics and politicians.
It is high time that we review the past performances and problems regarding the electoral process in the light of what we have observed above regarding the methods of election, identification of voters, ‘functionalization’ of constitutional functionaries, and in-party democratization before a party goes for contesting in election. The government should be prepared to enact a Political Financing Act specifying the ways by which political funds can be legitimately raised by political parties, including state subsidies. The law should also place statutory limitation on the amount of campaign expenses. All the money for the campaign uses has to be deposited in the bank accounts and drawn out of them, and after the election all the details of what amounts of money were disbursed to whom of what address and identification number, when, and where for campaign purposes have to be reported to the election commission.
Although problems related with defection have not cropped up in our fragile democracy, the experience of neighboring countries, especially India, should educate us to introduce as early as possible anti-defection laws in the country, as prescribed under Article 49 (1) (f) of the Constitution. In many cases defections have mostly occurred not because of any conscientious change of opinion of the elected members of parliament, but because political support was sold for money or for the promise of a Minister’s post or any high public office. This situation terribly minimizes the representative functions of parliamentary elections. Although one may argue that such a law contravenes the freedom of association, there is a growing liberal judicial trend around the world in this regard.
In new democracies of developing nations, underprivileged people, who still lack adequate educational and economic opportunities, naturally tend to link the quality of representative democracy with the performance of government in the economic front and delivery of basic services to the needy people. Unless the elected representatives are able to project the interest of their constituents in their actions and gradually help develop a mechanism of delivery of the fruits of democracy to the common people, the task of consolidation of democratic institutions as envisaged under “creative democracy” will be just a hue and cry.
In the end, it may be appropriate to conclude with some observations made by Przewoski. According to him, “democratic struggle over political power is necessary, for without this ability, attempts to transform the society are vulnerable to brutal repression. As a result freedom from physical violence is as essential a value as freedom from hunger.” Przewoski pointed out the following classical questions which are the eternal problems of democracy and development and whose answers still need to be found.
3. Election Campaign: Code of Conduct Codes of conduct are valuable tools in promoting fair and transparent electoral campaigns. They can take the form of broad guidelines for all electoral stakeholders to follow, or they can be focused on the activities of a particular group such as the media, political parties, or election observers. Codes of conduct should be used to demonstrate the appropriate roles and responsibilities of the various election stakeholders in a free and fair election. Without proper awareness and adherence, codes of conduct are of no use. Thorough measures should be employed to educate election stakeholders about codes of conduct and persuade them of the need to follow them. Compliance with codes of conduct should be monitored and unethical behavior should be exposed. Where a violation of a code of conduct constitutes a breach of electoral law, it must be prosecuted to the full extent of the law.
The Election Offences Punishment Act bans the use of state resources for campaigning, as does the Code of Conduct that prohibits the use of state resources for campaign purposes in Articles 50-53. Throughout the election campaign several political parties accused the three larger political parties of misusing state resources such as the state owned media, governmental transport and security personnel. As was the case in other areas the ECN failed to take adequate action. It reacted to formal complaints by requesting political parties to abide by the Code of Conduct.
The legal framework regulating financing of political parties and their campaigns is comprehensive and detailed. The Constituent Assembly Members Election Act and the Election Commission Act stipulate that the Election Commission shall establish ceilings for campaign expenditures as well as enforce these limits. The Interim Constitution prescribes that a political party registering for elections shall provide details and sources of funding to the Election Commission when applying for registration. This reinforces the provisions contained in the Political Parties Act that
57 Review Report Electoral Laws, Administration and Management requires registered political parties to maintain accounts of income and expenditure and report these to the Election Commission. The Code of Conduct also establishes ceilings related expenses in a number of its provisions.
The ceilings for campaign expenditures were set at 459,500 NPR per candidate contesting the single member constituencies and 50,000 NPR per candidate fielded by political parties for the proportional representation election. Candidates and political parties have to submit statements of expenses to the relevant District Election Officer within 35 days of the declaration of the final election results. The District Election Officer forwards the reports to the Election Commission. Overall, the legal provisions concerning political party financing are detailed, however, there is little tradition of enforcing the law related to party or campaign financing.
All political parties registered with the Election Commission hold an official bank account but political parties do not generally submit annual financial reports to the Election Commission as required. Also the funding of political parties is not transparent and there are accusations that some parties use extortion as a means to raise funding. Political parties have consistently complained to the EU EOM about breaches of the Code of Conduct by other political parties on financing issues ranging from vote buying (distributing money, goods and food), making donations to local sports clubs, use of party finance to restore cultural and religious sites. Although there have been no formal complaints related to finances, the scope and content of the election campaign of larger political parties suggest that they may have breached upper ceilings. In this respect, political parties and the regulatory structures lack adequate support to ensure these legal provisions are met. In addition, the political parties have not taken a proactive role in making their finances transparent and it is unclear how revenues are distributed within the parties themselves.
The Constituency Development Fund that grants each political party 1 million NPR annually for each member of parliament for investment in constituencies is also a source of inequality between candidates. A Supreme Court ruling on 23 March 2008 suspended the transfer of these funds after concluding that any use of these revenues for campaigning would be a violation of the Code of Conduct.
From the foregoing discussion it became evident that despite the fact that all the candidates including those of the parties were to abide by all the elements of the Code of Conduct including that of submitting the election within the stipulated time, neither the parties nor all the candidates have submitted or fully and transparently disclosed their election expenses made during elections to the EC. Not it was found that the EC has ‘taken this matter seriously’. Thus another challenge before the EC and other stakeholders is ensuring that ‘all participating in the forthcoming elections abide by the provisions of the Election Code of Conduct’. 93
In this context, adherence to the Code of Conduct is fundamental to ensure freedom of elections by creating an equal level playing field for all candidates. Thus, as a future course of direction, the following recommendations are put forward towards the full compliance with the code of conduct by all concerned stakeholders.
All political parties and independent groups • Strictly observe the rule of law and fully abjure the use of violence, physical force and intimidation in any form during the election, on Election Day and in the aftermath of the election. • Firmly maintain discipline among their members and supporters to prevent violence, intimidation and breaches of election law; take prompt disciplinary action against any members who commit such violations and where necessary withdraw such persons from active participation in the election campaign. • Ensure that the candidates that seek to represent the people are individuals of high integrity and ability, and will take special care to exclude persons who have committed or condoned acts of violence, thuggery or intimidation in their political career and election campaigns. • Respect the rights of all contesting parties and groups and refrain from any action that may hinder them from campaigning freely in accordance with election law. • Respect the rights of the polling agents of rival parties and refrain from any action that obstructs them from performing their legitimate duties. • Conduct the election campaign in a peaceful orderly manner, focusing attention on public issues and avoiding personal recrimination and abuse.
93 http://www.iids.org.np/dn3.pdf
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• Refrain from speech and action which incites violence, hatred and anger, ethnic and religious discord. • Comply strictly with the election laws on all matters relating to display of posters and banners, conduct of meetings and processions. • Ensure that all forms of election propaganda such as display of posters and banners, processions, canvassing and meetings do not violate the rights of citizens by encroaching on private property or causing a nuisance which is disruptive of the normal life. • Respect and protect the rights of all voters by eliminating impersonation and the use of undue influence and corrupt practices. • Prohibit party supporters from congregating near polling stations on Election Day or engaging in any action which has the effect of intimidating voters or restricting their freedom of access to the polling station. • Extend the fullest co-operation to the police and election staff to deal with all election-related incidents of violence and other breaches of the law and enable them to take the action necessary to ensure a free and fair election. • Partake in regular consultation and dialogue with contesting parties for peaceful settlement of all election- related problems and disputes that may arise.
Voters and Supporters • Act individually and collectively to protect their democratic rights • Take necessary action to ensure that they are duly registered as voters, fully inform themselves of all matters related to voting and cast their vote on the Election Day. • Express their explicit condemnation of acts of violence intimidation, impersonation and other malpractices, regardless of their support for any party and make every effort to prevent such acts. • Firmly resolve to reject candidates who have committed or condoned acts of violence even if such candidates belong to the party of the voter’s choice and exclude them from their preference vote at the election. • Promote public awareness and create public opinion against political violence in any form by any party and help to develop a genuine democratic political culture. • Participate in and support efforts made by community leaders at reconciliation and mediation of conflicts between political parties for the purpose of eliminating violence and creating the conditions for a free and air election. • Participate and assist in the efforts of non- partisan civil society organizations to monitor elections.
Election Monitors • Maintain the highest standards of integrity and impartiality in monitoring and reporting on the elections. • Inform the public of their activities and help to promote public awareness and civic participation to prevent election-related violence and malpractices. • Monitor the conduct of all the contesting political parties and independent groups without any partisan bias. • Coordinate where necessary with the state authorities administering the elections as well as all the contesting political parties and groups to promote the conditions essential for a free and fair election. • Assist voters in every way possible to protect and exercise their rights freely. • Promptly report all violations that they observe to the relevant authorities and take necessary follow up action to ensure that these complaints receive adequate attention. • Make every effort to verify the authenticity of complaints they receive and make all relevant information on election- related violence and malpractices available to the media and the public as early as possible.
The Parties in Power • Ensure that the resources of the state - equipment, vehicles, and personnel and media- are not used for the ruling party’s election campaign. • Refrain from organizing official ceremonies, inauguration of government projects and similar events during the election campaign which can provide an opportunity for election propaganda for the ruling party.
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• Ensure that all contesting parties have fair and equal access to the mass media owned by the state for the purpose of the election. • Refrain from any administrative or executive action such as transfer and deployment of staff for political purposes that can prevent public servants from performing their duties impartially and efficiently. • Provide all the resources necessary to the Police and the Commissioner of Elections to maintain the conditions essential for a free and fair election.
Public Servants on Election duty • Perform their duties and enforce the law without favour or bias to any one political party or group contesting the elections. • Protect the rights of the legitimate voters and take all action possible to maintain conditions within and outside polling stations that enable them to vote freely. • Deal promptly with acts of violence and other election-related breaches of the law and prosecute offenders without delay.
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Section 3
International Standards
1. Electoral Framework and International Norms The individual’s right to take part in government, either directly or through freely chosen representatives, and the principle that the will of the people shall be expressed in periodic and genuine elections, reflect a combination of what are called ‘obligations of conduct’ and ‘obligations of result’. With regard to the former, States undertake to achieve a specific goal, but enjoy substantial choice of means in determining which path they will follow to reach the internationally required objective. Whether a State has fulfilled an obligation of conduct depends on the means chosen for implementation, but also on what actually happens in practice; hence the critical importance of election monitoring. The standard of achievement remains an international one, however, while the choice of means in the electoral field is significantly structured by the specific reference in the key human rights instruments to underlying principles of non-discrimination, universal and equal suffrage and secret ballot. In recent years there has been a dramatic growth in the development and application of international and regional norms on election standards and administration, together with a look at how reference and implementation of these norms—especially together with regional and intergovernmental organizations—assists in conflict prevention activities. These new norms build on the longstanding global norms such as the 1966 International Covenant on Civil and Political Rights (ICCPR). From Africa to the Americas, and from European states to nascent efforts in Southeast Asia, regional and sub-regional organizations have taken the lead in developing cross-border professional organizations that have developed extensive technical and normative principles and guidelines that link the procedural and technical aspects of holding elections to collective monitoring and observation. In addition to the Southern African Development Community (SADC) Parliamentary Forum’s work at the forefront of the development of such regional codes are the Organization for Security and Cooperation in Europe’s Office of Democratic Institutions and Human Rights (OSCE ODIHR) and the Organization of American States through its Department of Sustainable Democracy and Special Missions. The work of the OAS, for example, is guided by the landmark 2001 Inter-American Democratic Charter, and it has conducted electoral assistance missions in dozens of countries in recent years.94 These principles or norms have emerged as a way for regional organizations to play constructive roles providing a set of professional standards and common principles for what constitute free and fair elections and that address key issues of conflict prevention—deterring fraud, improving access to electoral processes for potentially marginalized groups, and providing the ‘eyes and ears’ of the international community to ensure processes are free and outcomes fair. In strategically planning electoral assistance, awareness of and the development of programming (such as training) in reference to these norms are often a salutary way for UNDP and other international actors to engage, precisely because they provide a common, collectively accepted set of principles, values, and procedures. One of the most critical ways that individuals can influence governmental decision-making is through voting. Voting is a formal expression of preference for a candidate for office or for a proposed resolution of an issue. Voting generally takes place in the context of a large-scale national or regional election; however, local and small-scale community elections can be just as critical to individual participation in government.
The Universal Declaration of Human Rights, adopted unanimously by the UN General Assembly in 1948, recognizes the integral role that transparent and open elections play in ensuring the fundamental right to participatory government.
• Everyone has the right to take part in the government of his/her country, directly or through freely chosen representatives. • Everyone has the right of equal access to public service in his country.
94 Freedom of elections, Citizens' rights and duties, 2012, Election Commission of Nepal
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• The will of the people shall be the basis of the authority of government; this shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret ballot or by equivalent free voting procedures. • The role that periodic, free elections play in ensuring respect for political rights also is enshrined in the International Covenant on Civil and Political Rights, the European Convention for the Protection of Human Rights, the Charter of the Organization of American States, the African (Banjul) Charter on Human and Peoples’ Rights and many other international human rights documents.95
While the right to vote is widely recognized as a fundamental human right, this right is not fully enforced for millions of individuals around the world. Consistently disenfranchised groups include non-citizens, young people, and minorities, those who commit crimes, the homeless, disabled persons, and many others who lack access to the vote for a variety of reasons including poverty, illiteracy, intimidation, or unfair election processes. An important force in combating disenfranchisement is the growth of organizations engaged in election monitoring. Around the world, governments struggle to meet the challenge of the Universal Declaration related to free and fair elections. Election monitoring groups, ranging from local or party monitors to UN teams, assist governments and local groups to hold free and fair elections by observing the process from the beginning (voter education, candidate campaigns, planning for the ballot) to the end vote count. By declaring an election ‘free and fair’ monitors can legitimize the outcome of that election. Conversely, by not doing so, legitimacy is withheld. The question of whether or not to grant legitimacy to election results is complicated by political considerations, as the results of declaring elections ‘not free nor fair’ can be serious. Riots and even civil war can break out. Article 20 of the American Declaration of the Rights and Duties of Man and Article 23(b) of the American Convention on Human Rights guarantee the right of citizens to vote and be elected in genuine periodic elections. In addition, Article 13(1) of the African (Banjul) Charter on Human and Peoples’ Rights provides that every citizen shall have the right to participate freely in Government. Further, the right to participate in free and fair elections is to be applied universally and without discrimination. Article- 1 of the Convention on the Political Rights of Women and Article 7(a) of the Convention on the Elimination of All Forms of Discrimination against Women state that women are entitled to vote in all elections on equal terms with men. Pursuant to Article 5 (c) of the Convention on the Elimination of All Forms of Racial Discrimination, “States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, color, or national or ethnic origin, to equality before the law, notably in the enjoyment of political rights, in particular the rights to participate in elections -- to vote and to stand for election -- on the basis of universal and equal suffrage, to take part in the Government as well as in the conduct of public affairs at any level and to have equal access to public service . . ..” i. Pillars of Rights International human rights instruments also protect a number of basic rights, the enjoyment of which is crucial to a meaningful electoral process. The right to participate in free and fair elections implicates these rights, including: • The right to freedom of expression - The electoral process is a mechanism whose very purpose is the expression of the political will of the people. The right to express partisan ideas must, therefore, be firmly guarded during electoral periods. • The right to freedom of opinion - The unconditional freedom to hold a political opinion is imperative in the context of elections, since the authentic assertion of popular will is impossible in an environment where such freedom is absent or restricted in any way. • The right to peaceful assembly - The right of assembly must be respected, since public demonstrations and political rallies are an integral part of the election process and provide an effective mechanism for the public dissemination of political information. • The right to freedom of association - This right clearly includes the right to form and participate in political organizations. Respect for this right is vital during the electoral process, as the ability to form and join political parties is one of the most important means by which people can participate in the democratic process. 96
95 Universal Declaration of Human Rights, Article 21 96 Freedom of elections, Citizens' rights and duties, 2012, Election Commission of Nepal
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Other rights relevant to the electoral process include the rights to freedom of movement, to organize trade unions, to participate in one’s Government, to be free from discrimination on political grounds, and -- in particularly difficult circumstances -- the right to be free from arbitrary killing. ii. Rights at Stake Article 25 of the International Covenant on Civil and Political Rights (ICCPR) is the key international guarantee of voting rights and free elections, but its provisions are strongly related to other articles, specifically Article 2. The ICCPR also includes guarantees of freedom of expression (Article 19), assembly (Article 21), association (Article 22), and non- discrimination (Article 26).
ICCPR, Article 25: Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in Article 2 and without unreasonable restrictions: • To take part in the conduct of public affairs, directly or through freely chosen representatives; • To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; and • To have access, on general terms of equality, to public service in his country. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.97
Voting and participation in elections is a universal right not to be denied because of any “status” individuals around the world are systematically or inadvertently disenfranchised based on their status as a member of a certain group.98 For example, many nations deal with a gender gap in voting, a phenomenon where one gender is more likely to vote in elections than the other. “Traditional theories in participation pointed to a ‘gender gap’ between men and women, where typically more men than women were interested in politics, and would turn out to vote on polling day. However, recent research seems to point to an ‘inverting’ of the gender gap, where women are demonstrating increasing interest in political and electoral processes.” Many nations have attempted to deal with gender gaps in voting and political participation through legislative quotas. Quota systems operate in different ways, but in general they reserve a certain number or percentage of candidacy spots or actual seats in a legislative body for women. While quotas can be a very quick and effective way to address the problem of under-representation of women in government, they are controversial and often raise as many issues about the right to vote as they solve. Legislated quota systems of various forms currently are in effect in France, Argentina, South Africa, Namibia, Tanzania, and India.
Another example is the disenfranchisement of those who have been convicted of certain crimes. Today, in the United States, all mentally competent adults have the right to vote with only one exception: convicted criminal offenders. In forty-six states and the District of Columbia, criminal disenfranchisement laws deny the vote to all convicted adults in prison. Thirty-two states also disenfranchise felons on parole; twenty-nine disenfranchise those on probation. And, due to laws that may be unique in the world, in fourteen states even ex-offenders who have fully served their sentences remain barred for life from voting. The scale of disenfranchisement laws in the United States is unparalleled: an estimated 3.9 million U.S. citizens are disenfranchised, including over one million who have fully completed their sentences. The racial impact of disenfranchisement laws is particularly egregious. Thirteen percent of African American men—1.4 million—are disenfranchised, representing just over one-third (36 percent) of the total disenfranchised population. Individuals around the world continue to struggle for full enforcement of the ICCPR’s Article 25. Central to this struggle are the many international human rights documents that mirror the principles of Article 25.99 iii. The Human Right to Vote Political participation is the basis of democracy and a vital part of the enjoyment of all human rights. The right of all people to vote in elections, without any discrimination, is one of the most fundamental of all human rights and civil
97 ICCPR, Article 2, paragraph 1 98 ICCPR, Article 2 99 Human Rights Watch’s Sentencing Project, 1998
63 Review Report Electoral Laws, Administration and Management liberties. The right to vote, without discrimination, is set out in the ICCPR (article 25) and the International Covenant on the Elimination of Racial Discrimination [(article 5(c)]. 100 iv. Denial on the Right to Vote Human rights law says that there can be restrictions on who can vote in an election, as long as those restrictions are based on objective and reasonable criteria. For example, it is reasonable to restrict the right to vote to the citizens of a country. It is also reasonable to restrict the right to vote to people who are over 18 years old. On the other hand, it would be unreasonable to restrict the right to vote ‘on the ground of physical disability, literacy standards, educational standards or property requirements’. It may also be unreasonable to exclude convicted criminals from the right to vote in certain circumstances. Human rights law suggests that any exclusion of prisoners must be ‘objective’, ‘reasonable’ and ‘proportionate’ to the offence and the sentence.101
In addition to these universally applicable international standards, the freedom of election also draws on a wide-range of regional instruments that form part of states’ commitments at the regional level and are central to the development of broad and inclusive criteria for observing elections. Examples of such instruments include The Inter-American Democratic Charter, The African Charter on Democracy, Elections, and Governance, The Council Governance of Europe Convention for the Protection of Human Rights, and The Revised Arab Charter on Human Rights.
2. Election Audit Election observation is important because elections are the cornerstone of creating a democratic political system. As such, observation can assist democratic consolidation by instilling domestic and international legitimacy. Peaceful elections may also promote reconciliation between former adversaries. Post-conflict society like Nepal, however, is often poorly equipped to conduct elections in a conducive atmosphere due to residue of violence and other factors. Despite a formal end to the fighting, instability often persists and there are several instances where the might of gun power is still pervasive. A continued lack of security makes campaigning difficult, to say nothing of actually conducting a vote. Institutions needed to conduct elections are often nonexistent, or damaged by the conflict. Where contentious elections present fears of vote tampering and other irregularities, the presence of election monitors may serve to prevent shenanigans and give parties greater confidence that the vote was free and fair. The key to achieving this outcome is monitors who are seen by all sides as neutral, professional and impartial. Observation can enhance the credibility and legitimacy of elections, thereby helping to reduce electoral violence. It can help maintain a working peace agreement because losers lack the ability to shout “fraud!” and disrupt a country’s democratization. One way in which monitors do this is by taking independent vote tallies, which prevents governments from manipulating the vote. Even before this, some international monitors are expected to arrive long before the vote to observe campaigning and voter registration efforts. As such, in the long-term, observation can assist in building and strengthening domestic electoral institutions.
3. Election Management: A Human Rights Lens i. Legal Framework • Easy availability of a consolidated legal framework • Availability of a comprehensive electoral timetable • Holding of election without extra-legislative delay • Implementability of the electoral legislation • Broader legitimacy perceived to the legal framework around electoral process
100 Both of those human rights treaties bind the Nepal government. 101 Development of criteria for assessing democratic elections utilizes a wide-range of international legal documents such as: The Universal Declaration of Human Rights (UDHR),The International Convention for the Elimination of all forms of Discrimination against Women (CEDAW), and The International Covenant on Civil and Political Rights (ICCPR).These examples of public international law, particularly the International Covenant on Civil and Political Rights (ICCPR) and subsequent international and regional treaties, establish an obligation for states to hold genuine elections. This obligation, when considered with a number of other obligations such as the right to vote and to be elected, the right to participate in the public affairs of your country, freedom of expression, freedom of assembly and association, and freedom of movement, form the basis of the criteria for assessing democratic elections.
64 Electoral Laws, Administration and Management Review Report ii. Electoral Management • Perceived degree of legitimacy/ acceptance of the EMB by parties and voters • Perceived degree of EBM impartiality • Perceived quality of the EMB’s delivery of services in these elections • Perceived degree of the EMB’s transparency iii. Constituency Demarcation • Reasonable and broadly accepted of constituency structure • Easy availability of information about constituencies and lower level districts (demarcation, size, number of seats) • Fair and effective systems for boundary limitation and seat allocation in place and used according to rules • Unhindered access of concerned stakeholders to and design of ballot paper iv. Voter Education • Percentage of first time voters exposed to voter education which facilitates their active participation • Recognition of historically marginalized groups and addressing of their identified needs • Percentage of ballots cast is invalid (or spoilt) • In terms of voting age population, percentage of those eligible to vote for the first time in this election did actually vote v. Voter Registration • Proportion of the voting age population is registered to vote • Freedom of VR from serious bias based on gender, age, ethnic or religious affiliation, or region • Opportunity for qualified people to be registered with a minimum of inconvenience • Existence of appropriate mechanisms for ensuring that information in the register is accurate • Availability of appropriate mechanisms for ensuring that the public can have confidence in the register • Fair and reasonable criteria for registration and compliant with accepted int’l standards vi. Party and Candidate Nomination Registration • Permission to parties and candidates to register without who fulfill the requirements of registration • Permission to registration of independent candidates if they fulfill legal requirements • Non-discriminatory method of voting or the design of the ballot paper vii. Campaign Regulations • Availability of a system to provide access to state-owned media, and equitable implementation • System for allocation of public funds to political parties, and its judicious implementation • Independent mechanism for identifying bias in the state media and swift correction of the identified bias • Proper use of the state resources by political parties and candidates 4. Free Elections: Voter Roll to Voter’s Role 102 i). Principle of Equal Access (Justice) • The right to vote at elections and referendums must be established by law. • The grounds for deprivation of suffrage should be objective and reasonable. • A minimum age limit is a reasonable restriction. • Independently established mental incapacity is a ground for denying a person the right to vote.
102 Adult Franchise, VR Registration Observation Report, NEOC, 2012
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• It is unreasonable to restrict the right to vote on the ground of physical disability or to impose literacy, educational or property requirements. • Party membership should neither be a condition of eligibility to vote nor a ground of disqualification. • If conviction for an offence is a basis for suspending the right to vote, the period of such suspension should be proportionate to the offence and the sentence. • Persons who are deprived of liberty but who have not been convicted should not be excluded from exercising the right to vote. ii). Principle of Equal Opportunity (Fairness) • Civil and political rights are to be respected without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. • There are consistent legal provisions governing eligibility with respect to citizenship, age residence and temporary absence. • The established age of majority (usually 18) is the minimum age for voting. • Suspension of the right to vote for persons convicted of an offence should occur on exceptional grounds only and in proportion to the nature or gravity of the offence. iii). Significance of the Voter Register • Developing and maintaining an accurate voter register and producing reliable voter lists for each polling station can be extremely complex. • The registration of voters should enable eligible citizens to exercise their right to vote on Election Day. • The accuracy and completeness of the voter register is of critical importance, as non-registration prevents citizens from enjoying their right to vote and therefore inhibits universality of suffrage. iv). Creating the Voter Register • The procedures in place should ensure that all eligible electors are able to vote. • It must be ensured that only eligible electors are able to vote. • Adequate measures are taken to prevent multiple registrations that could lead to multiple voting. • Procedures should also be in place to ensure the removal of the names of deceased persons and the inclusion of newly eligible voters. v). Procedures for Voter Registration • Voter registration procedures should be clearly stipulated in law. • The registration process should be secure and reliable. • Where citizens are registered to vote in their place of current residence, definitions of residence (such as a distinction between permanent and temporary residence) need to be clear. • The voter register does not need to include personal data other than that which is required to identify a voter and establish eligibility. • Any requirement for additional information, such as ethnicity, creates scope for discrimination. • Suffrage for minorities and internally displaced persons (IDPs) should be guaranteed. • Issues related to the legal status of non-citizens should be considered, if significant sections of the resident population are excluded from citizenship and therefore from voting. • Where suffrage is permitted to citizens who reside outside of the country, opportunities should be provided to them to enable them to vote, especially in the case of refugees from that country. vi). Ensuring Public Confidence • The public should have confidence in the accuracy of the voter register. • The authorities should ensure that the preliminary and final voter registers are published, and that copies are available for public inspection to allow checks for inaccuracies and omissions.
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• Political parties, in particular, should have an opportunity to access the full voter register. • Where there are strong allegations or evidence of exclusion, inconsistencies and inaccuracies in the voter register, the authorities should take constructive and transparent steps to improve its quality. vii). Challenges to the Voter Register • There should be effective administrative or judicial procedures that provide stakeholders with the opportunity to challenge irregularities in the voter register • This also includes the exclusion of eligible electors, to correct errors in the register or to seek the removal of any ineligible persons. • All complaints relating to voter registration should be resolved within a reasonable timeframe prior to Election Day. viii). Ensuring Universal Suffrage • States must take effective measures to ensure that all persons entitled to vote are able to exercise that right. • Where registration of voters is required, it should be facilitated and obstacles to such registration should not be imposed. If residence requirements apply to registration, they must be reasonable, and should not be imposed in such a way as to exclude the homeless from the right to vote. • There should be no fees, taxes or other costs related to citizens being registered to vote. • Persons must not be registered more than once or in more than one location (the principle of one person, one vote). • There should be consistent legal provisions for the method of registration, registration timetable, and documentation to prove eligibility, registration forms and the format of the register. • The voter register should be sufficiently recent to allow for newly eligible voters to be included and recently deceased persons to have been removed. • Where there is active registration, there is an effective voter education campaign and the method of registration is simple and accessible. • A preliminary voter register is made available for public inspection to ensure voters can confirm their inclusion and its accuracy can be assessed before it is finalized. • Relevant extracts from the preliminary voter register are posted at polling stations or other convenient locations. • The voter register is computerized to avoid duplicate entries. • Political parties are able to access copies of the voter register. • The number of registered voters is published in advance of the election and that number is broken down to different levels, including by polling station. • There is a right to challenge any inaccuracies or omissions in the voter register. • Corrections should be made through a simple but secure procedure. • Voter registration should be intensified for groups less likely to be registered (e.g., first-time voters, women, minorities, etc).103
5. Elections and Democracy at Domestic Context With regards to the high voltage conflict followed by a painful transition, dreams are fading fast for the consolidation of inclusive democracy and lasting peace in Nepal. Despite several agreements among the political parties for enhancing peace process, the reconciliation effort is not producing any tangible result. The possibility of long-term political truce over the shattered nation remains cracked. Keeping a worried eye on the calendar, the nation of victims is teaching the body to heal itself; those who are resourceful to kill and unfortunate to be killed do not care what meaning the rest of the society is ascribing to them. Despite cultural, social, political and economic differences, the
103 Reflection, VR Registration Observation Report, NEOC, 2012
67 Review Report Electoral Laws, Administration and Management inherent dignity in being human - and the equality of that dignity - binds us all. With this high spirit in mind, the world is marching ahead, and Nepal is sinking deep with the deeply entrenched conflict sustained by unhappiness among the majority of Nepalese in the countryside who live below the poverty line in conditions that all parties agree are deplorable. In ten years, the Maoists have formed the army, a paramilitary, a sophisticated political education system led by a formidable intellectuals and dreadful figures. In the same period, democracy raised several question marks on the capacity and potential of the leaders to lead the people, their integrity, their drive towards development of the national economy, justice and human rights. The fight which erupted has taken more than 16,000 lives, caused burning of houses and property, taking of hostages, multiplicity of arbitrary detentions, cruel treatment and torture, killing in self-defense, midnight knocks by the state security forces, and finally an incalculable moral and emotional loss to the people. The number of reported lynching of suspects immediately after capture increased considerably and the members of the security forces are not less culprit. The questions regarding disruption of accountability process, and impunity for the gross and flagrant human rights violations have remained unprocessed. The country precipitously descended into bloody chaos since the anointment of Gyanendra as the king following the inexplicable massacre of the royal clan on 1 June 2001. The deposed king justified the proclamation by citing the failure of the political parties in taking a unified approach against terrorism, their inability to hold elections in time and also their betrayal of the people’s aspirations for social, political and economic justice. The accusations were uncanny for the reason that the monarchical manipulations directly contributed to these failures of the multiparty system in Nepal. The reversal of democracy in Nepal, displayed fully in a state of emergency, arrests of party leaders, suspension of fundamental constitutional rights, censorship of media and the return of an absolute monarchy, could not but became a cause of concern for the free world, who played an instrumental role in bringing the popular rule to the country in 1990. Even so, the events in Nepal suggested that without a strong culture of a practice of democratic attitudes and values, formal structures of democracy alone cannot always sustain democracy.
Tracking the Uneven Past with Pride Nepal’s shadowy feudal past collides with the vibrant spirit of the new millennium. It’s a country that was born in— and is still hobbled by—an archaic caste system that traditionally supported ethnic marginalization, gender injustice, and absolute rule with no room for liberty and open society. Nepal had an autocratic monarchy that managed to cling to its throne—with varying degrees of success—for 240 years: And yet a violent Maoist insurrection blended with peaceful popular uprising of 2006 has all but dashed the majestic institution. Though projected as peace-loving people, Nepalese have been beleaguered by a decade-long civil conflict and excruciating political transition. In Nepal, there were numerous sparsely populated tribal chiefdoms before 1743. A relatively simple social structure, with the division of labor and status being largely organized along the lines of age, gender and military performance was in existence. Gradually Indo-Aryan communities, especially the Hindus from the northern part of the present day India, entered the hills of Nepal and introduced a complex form of social divisions based on caste systems. By the end of seventeenth century, most of the petty states were already under the firm control of Hindu Princes (Rose and Fisher, 1970; Bista, 1991). Around the middle of the eighteenth century, Prithivi Narayan Shah, an ambitious king of one hill state, called Gorkha, and his successors extended the territory of the Gorkha kingdom and founded the present day Nepal. The annexation and political control over large areas resulted into a situation whereby increased amounts of land tax could be spent on invading the neighboring states. Land tax revenues were the major source of income for the Nepalese ruling classes after the unification of the petty states (Regmi, 1978). In 1846, Janga Bahadur Rana became the Prime Minister of Nepal, who gradually took control of power, making the King merely a figurehead. In order to avoid outside invasion, they developed close relationships with the British East India Company.104 Their policy towards British-India was that of reconciliation and survival. The Ranas agreed to supply Nepalese manpower as soldiers for the British army. In turn, the British guaranteed them political support and non-interference in Nepal’s internal affairs (Stiller, 1975). The Ranas ruled the country for over a century and in they established a highly oppressive structure of state bureaucracy that suppressed the concerns of other social groups in the country (Rose and Fisher, 1970).
104 South Asian Allaince for Poverty Eradication (SAAPE), People's struggle for democracy and just governance in Nepal, Position Paper 2008
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By the 1950s, popular opposition to the Rana regime had steadily grown and different political parties and organizations were established. Despite the emergence of different political parties coupled with the bureaucracy taking the form of a modern institution, the political power structure and class relations did not undergo any radical changes (Blaikie et al., 1980). As Panday (1999: 239) mentions, this period remained unstable as the new political systems did not provide any clear strategies guiding future actions, ultimately leading to political chaos in the country. In 1960, the King decided to ban all the political parties and introduced the partyless Panchayat political system, accusing the ruling party, the Nepali Congress, of abuse of authority, corruption, failing to maintain law and order, among others (Rose and Fisher, 1970; Burghart, 1994). The introduction of the partyless Panchayat political system encouraged the King to control civil administration, the military, the legislative and the judiciary with high castes and land owning people acting as subordinates. The people of Nepal lost their voice in this political climate, the people’s rights established by the 1950s’ democracy were abolished by the King. 105This environment led to growing unrest amongst the disillusioned populace who saw the Panchayat System of misusing power and failing to tackle poverty despite three decades of planned development and the influx of foreign aid (Panday, 1999). Moreover, the system denied freedom of expression, and political dissidents were treated with cruelty and were held in detention without trial.
Advancing for Future with Greater Drive The unitary and centralized Nepali state making process began 242 years back in the name of unification and nation building. Nepali people have challenged the oppressive mode of state several times in its history. In 1990, the banned Nepali Congress and several Communist parties launched a joint movement demanding the restoration of democracy. Following a period of civil unrest, the King agreed to disband the partyless Panchayat system, and remained as the constitutional monarch. Following the restoration of democracy based on a multi-party system, several organizations and political parties emerged. In addition to this, changes in bureaucracy and state apparatus were made. Foreign assistance and the growth of the private sector increased significantly in a short period of time. The government’s policy to encourage local NGOs in the development sector has had an enormous impact and enabled them to play an important role in Nepal in the early 1990s (Seddon, 1994). Despite all these positive changes, Nepal did not experience political stability after more than a decade of restoration of the multi-party political system. Pandy (1999) explains, “one can see a political fault line expanding and threatening to have the whole facade crumble under the weight of Nepal’s history of authoritarian rule and traditional, hierarchical and semi feudal social structure”. With the restoration of the democracy, people expectation from their elected government grew. But their expectations were dampened as the political parties were marred by disunity and divisions, thus failing to maintain the democratic commitment. Additionally, this period was characterized by intensified corruption cases, contributing to the crisis of values and leadership (Seddon, 1994). In the past, the degree of exclusion in Nepal’s governance has been startlingly represented in the fact that under the electoral process mandated by the constitution, more than 60 per cent of the votes were excluded from the government formation process.106 The 1991 constitution had no provision for the devolution of power from the centre to the regional to the grass roots level, which is reflected in the fact that only 40 per cent of the national budget was allocated outside the centre. Nepal has had the peculiar situation of parliament being elected thrice but dismissed four times in 12 years. This is a reflection of how governance has been at the mercy of the whims of the ruling elites, such that the prime minister of a highly unrepresentative system, one in which power is concentrated at the centre, enjoyed the authority to dissolve parliament at will. In the past, 41 per cent of the population occupied 84.9 per cent of the seats in parliament, while over 58 per cent had only 15 per cent of the seats. These figures show that the then political system was structurally flawed. Had the judiciary been stronger, it may have acted as a check and balance. But its weakness has been well reflected in the fact that for each of the dismissals that have been challenged in court, it has returned a verdict that conflict with the previous verdicts.107 In some other countries that have suffered a democratic deficit, governments have been known to take ameliorative measures, but this did not happen in Nepal. Since the structure itself was flawed, with corruption, nepotism and series of “horse-trading” in the parliament, then it came to no surprise that in such a climate,
105 Blaikie, P., Cameron, J. and Seddon, D. (1980) Nepal in Crisis: Growth and Stagnation at the Periphery, New Delhi: Oxford University Press 106 National Election Observation Committee (NEOC), Observation Report, Constituent Assembly Elections, 2008 107 Constitution and electoral reform, a working paper by Bharat Raj Upreti, organised by Social Science Baha, Kathmandu, 24-26 April, 2003
69 Review Report Electoral Laws, Administration and Management the people gradually lost their faith in the political parties and their leaders. To save the culture of democratic values and human rights safeguards, a massive overhauling of the system was inescapable beyond the piecemeal approach.
Firearms to Fight On 13 February 1996, six years after the restoration of democracy, the Unified Communist Party of Nepal (Maoist) -- began its armed rebellion in the name of the ‘People’s War’ in the remote hills of the mid-west. Their aim was to establish a new democratic state by overthrowing the feudal system and establishing a rule of the proletariat in the country. In spite of its rhetoric, the Nepalese People’s War was not a class war, and contrary to the Mozambican case, it did not polorise the population on the basis of ancient, ethnic difference. It rather mobilized young people individually, offering them a career, which in many aspects appeared as a (noble) alternative to migration.108 Poverty, along with a weak government, no real transition from autocratic to democratic rule, and the absence of efforts to address caste and ethnic problems, resulted into a period of instability, which overtime provided breeding ground for the rise of the Maoist insurgency. No one could foresee the gravity of the rebellion at the time it began. The rebellion fanned fast, pushing the country into a national crisis and a long-drawn civil war with no end at immediate sight. The war did not draw much attention of the state and the international community in its initial years. The Maoists were very successful in attracting frustrated and disillusioned youths and the discriminated poor to its rebellion. Those who hoped that the conflict would produce a better, more equitable society were soon disappointed. Consequently, the country fell into a maelstrom of illegal detention, torture, extortion, abductions, disappearance, extra-judicial executions, compounded by the already widespread poverty and misery. 109
In the meantime, the then King Gyanendra took power and imposed an autocratic rule in 2005, with virtual ban on the activities of political parties and civil society organizations in place in the name of curbing the state-declared “terrorism” of the Maoists. Human rights groups--the cushioning force of conflict--were also pushed up to the edge! As time passed by, the insurgency intensified and became uncontrollable, with no chance of winning it by either warring sides. The Maoists claimed control of almost 80 per cent of the rural areas, the state administrative and security mechanism remained limited to urban areas, district headquarters and selected security bases of rural areas. This situation led the country to two governments, with most rural areas remaining without state’s administrative, judicial and security wings, were subjected to dual governance from the Maoists and, to a lesser degree, from the state.
The conflict affected all spheres of Nepalese society. Human rights abuses were rampant, with the country witnessing extra-judicial killings, maiming, threats, humiliation, social isolation, gender-based violence, abductions and forced conscription of children. Over 16,000 people lost their lives to the conflict (Ministry of Peace and Reconstruction). The conflict forced thousand of families and individuals flee from their homes to relatively secured district headquarters and urban areas out of insecurity. The government estimated that around 18,000 people were displaced but the Norwegian Refugee Council estimation puts this figure at between 10,0000 and 200,000. Caritas Nepal estimated the number of internally displaced persons between 214,000 to 2,72,000. 110
Nonviolent Arms to Protect After months of slow negotiations following the success of the mass movement that forced the King to give up his direct rule in April 2006, the then seven party alliance (SPA) and the Maoists signed a historic Comprehensive Peace Agreement (CPA), which ended the decade-long conflict, in November 2006. The agreement had its root to an understanding between then SPA and the Maoists in New Delhi in 2005. However, it represents a temporary convergence of interests more than a permanent shift in the underlying outlooks and interests of the sides. The SPA and the Maoists retained different visions for Nepal’s future institutions, and individual parties’ electoral interests came increasingly to the fore. The CPA will not in itself alter the exclusionary characteristics of public life or deliver urgently needed economic progress and human security.111 The agreement paved way for the formation of an interim legislature and a government and for the elections of a constituent assembly (CA). In a detailed agreement on arms management, the Maoists committed to cantonment of their fighters and locking up their weapons under UN supervision; the Nepalese Army largely confined to barracks.
108 Armed Militias of South Asia, Fundamentalists, Maoists and Separatists, Laurent Gayer and Christophe Jaffrelo, Foundation Books, C. Hurst & Co. UK, 2009 109 Nepal: Human Rights in Political-economic perspective, Social Watch report, 2008, Instituto Del Tercer Mundo, Uruguay 110 Caritas Nepal, Caravan of Conflict, Study on the Dynamics of Conflict-induced Internal Displacement in Nepal, Gopal Krishna Siwakoti & Shreejana Pokhrel, 2006 111 Prospects for a Successful Peace Process in Nepal: Internal and External Factors, www.ciaonet.org/pbei/usip/usip
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The election of the long-cherished CA, which was ultimately held on April 10, 2008, adopted a mixed electoral system: first-past-the-post and proportional system. The world’s last Hindu kingdom, then a secular state, has now been declared a republic, after the Maoist-led new parliament decided to abolish the 240-year old monarchy in May 2008. 112 The CA, unfortunately, has failed to deliver significant results. Some of the problems that characterized it since its formation in April 2008 are manifested in primarily a lack of solid dialogue mechanisms, poor facilitation, little attention to confidence building and an opaque, elite-driven approach.113 The sheer rift among the key political actors in relation to exploring a compromised solution on the contentious issues including the determination of the federal structure of the state, setting human rights benchmarks, determining the form of the government, electoral representation characters, self-determination and autonomy may continue to dog the next stages. The deadline for the promulgation of the new constitution on May 28, 2010 as mandated in the interim constitution is almost sure to be overshot
The activities of the parties in Nepal are characterized by suspicion, partisan interests, lack of faith in the electorate, primarily closed door decision making by leadership and elites. The weakness in forging party consensuses has been exacerbated by poor discipline within most parties, with individual politicians, making provocative statements and pursuing personal agendas in public.
The major challenges remains with how the state and political parties will respond to the demand of the Madhesis, ethnic groups, women, dalit and other marginalized groups. A number of marginalized and regional groups have emerged with their demands to be included in the mainstream of political process and in the new constitution. For instance, the Madhesis have been expressing their dissatisfaction of not being included in the decision-making processes of political governance in Nepal since its establishment so is the case with indigenous, dalits, the disabled and other traditionally marginalized section of the society.
Road to the Republic Nepal’s CA elections marked a major step forward in the peace process, paving the way for the declaration of a federal democratic republic and the start of the constitution-writing process. The elections delivered a clear and, to many, surprising result. The then Communist Party of Nepal (Maoist, CPN Maoist), (now Unified Communist Party of Nepal.. CPN Maoist) emerged as the largest party by a wide margin, winning more than one-third of CA seats. The largest established parties, the Nepali Congress (NC) and Communist Party of Nepal (Unified Marxist-Leninist, UML), were not wiped out but have had difficulty coping with their relatively weak showing – their combined seats are less than those of the Maoists. Royalist parties failed to win a single first-past-the-post seat, only saving a toehold in the new assembly through the parallel proportional representation contest.
The election for a CA was carried out in relative peace despite fears of extensive violence. Power sharing negotiations continued for months following the elections until July when Nepal’s governing assembly elected Dr. Ram Baran Yadav as the first president while Pushpa Kamal Dahal was named Nepal’s first Maoist Prime Minister and took office in August 2008. The Maoist’s struck a chord with popular aspirations that the old parties had not even woken up to. In this, as in their more dubious techniques, they made full use of the fact that they had stayed in close touch with ordinary people and not lost their heads in Kathmandu politicking. 114The elections gave the people of Nepal a chance to have their say, whose voices had been silenced for so long. Despite cases of disruption and intimidation, people turned out in large numbers to have their votes counted. Although falling short of an outright majority, the Maoists won a decisive victory at the April polls, securing a fresh mandate for leading the fragile peace process to a logical end.
The first meeting of the CA unanimously abolished nearly a 242 years old monarchy and Nepal became a secular, federal democratic republic.115 The emergence of regional parties particularly in Tarai region has also been a feature of the new political landscape. The Madhesi parties performed well in the CA elections and that has been established by the CA election as Madhesi parties have significant representation in the CA. The CA is a remarkably inclusive body and has more representatives of Nepal’s caste, ethnic, religious and regional diversity than any past parliaments. One third of its members are women, catapulting the country into regional
112 http://www.sajaforum.org/2008/05/nepal-maoist-le 113 Concept Paper for Monitoring Comprehensive peace Agreement in Nepal, INHURED International, 2007 114 Nepal’s Election: A Peaceful Revolution?, International Crisis Group, Asia Report N°155 3, July 2008 (http://www.crisisgroup.org/home/index.cfm?id=5551&l=1) 115 http://www.rediff.com/news/2008/may/28nepal1.htm
71 Review Report Electoral Laws, Administration and Management leadership on gender representation. The Madheshi Janadhikar Forum (MJF) proved that it was more than just a brand name for a vague sense of Madhesi grievance but a viable political machine able to mobilize votes and put identity politics on the map – probably for the foreseeable future.
Survival of the Fittest Political exclusion is mainly a problem of the past. The bigger problem is the political vacuum one sees in the districts, a vacuum born of mal-development, a vacuum that came from the leadership at the national and local level getting no legitimacy. Over these turbulent years, the Maoists have understood the weakest links of the Nepali electoral democracy, the regional margins, ethnic-state margins, caste margins and ethnic margins. And this is precisely where the insurgency burnt at its hottest. There is also evidence that a large part of the population mobilized by the Maoists was never successfully brought under the fold of any major political party. The last two decades also show that elections alone are not enough for democracy and inclusion.
During the past six decades of Nepal’s tenuous body politics, in which autocratic rule was twice punctuated by constitutional monarchy and multi-party democracy, freedom often gave way to political anarchy and public disenchantment rather than contentment. That happened because of a perpetual power tussle among political parties and the monarchy and the continued neglect of social and economic development. A compromise between King Birendra and parties in 1990 helped formalize a British-style constitutional monarchy and parliamentary democracy. Many hoped, including freedom-lovers in the west, that Nepal had finally crossed the democratic threshold. It was not to be. The developments on February 1, 2005 in Nepal, in which King Gyanendra seized power much in the way his father had done in 1960, shocked any freedom-lover, especially at that time when the western world was pursuing a vigorous policy of spreading freedom abroad.
Current institutions are fundamentally shaped by their exclusionary orientation. Majoritarian institutions, such as those adopted by Nepal, work in majority societies, not in multicultural ones. Majoritarian institutions worsen class cleavages, and in Nepal they are imbued with caste-Hindu values, which have the effect of limiting individual rights. 116 As the constitution is geared towards certain groups, individuals from those groups enjoy protection under the law not afforded to all citizens. There are any number of objections one could raise against the present political structure, from its racist and sexist assumptions to its unfair dismissal of multilingualism and restrictions on rights of association.
In order to achieve these aims, many believe that one practical model is federalism. Such a system could provide the right balance of state action and decentralization, allowing inclusion through fair and just representation, cultural autonomy, empowering marginalized groups, and molding public policy to better reflect the interests of the entire public. There are also opportunities for better management of ethnic conflict, for more efficient and responsive administration, for regionally balanced economic development, and for more decentralization and local-level experimentation.
Conclusion The promulgation of a smart and forward-looking new constitution is the foundation of the future of democracy in Nepal. It should pave the way for future direction to secure proper democratic order, electoral freedom, pluralism, independence of the judiciary and the total compliance with the international human rights instruments. A speedy and vigorous effort will require to gracefully accomplishing this taxing task. In this context, if the constitution-making process is stretched for a prolonged period even with good faith and intention, there is a possible risk that the clique of repressive regime will regroup and consolidate themselves to ill-attempt towards foiling the entire process. With the dissolution of the CA without producing the long-cherished new constitution, the path to democracy is now full of roadblocks, apprehensions and uncertainties. Amidst all these challenges, there are still some hopes, aspirations and convictions to build “New Nepal”.
116 Inclusive Democratic Institutions in Nepal, Mahendra Lawoti, SAGE Publications, New Delhi, 2005
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Section 4
Electoral Dispute Resolution 1. Mechanisms of Electoral Dispute Resolution A free and fair electoral system depends not only on voter registration, free campaigning, monitors and secret ballots; it must also be able to deal promptly and effectively with the different types of complaints that will inevitably arise. These might include refusal of the right to stand as a candidate or to vote, attempts to suppress voter turn-out, alleged misinterpretation of the electoral laws or procedures, alleged violations of the criminal law, disputes regarding the accuracy of the count, or claims that the cumulative effect of such irregularities is so extensive as to invalidate the elections. Generally, what is at issue is either the validity of the result, or the penalization of those who have violated electoral laws. The right to a remedy for violation of human rights is itself a human right, 298 while sanctions against those who infringe the provisions of the electoral law are implicitly required in any effective system of implementation.
The integrity of the system requires not only that an independent and impartial authority, such as the electoral commission or the courts, deal with such issues but also that decisions be reached in a timely manner, in order that the outcome of elections not be delayed. As with other aspects of the electoral process, the availability of such procedures must be open and known to the electorate and the parties. Part of the process for anticipating and dealing with complaints includes much of what has been said above, including such practices as monitors and parallel vote tabulations. At the formal level, what is important is not so much the sanction, as the timeliness of the response. In cases of violence or intimidation, for example, what is needed is a prompt reaction, in order that continuing disturbances not interfere with the elector’s essential freedom to choose. The tendency is for national systems also to try to deal expeditiously with errors of form, however. The ultimate objective remains that of establishing representative government, and the national interest is generally perceived as best met by the speedy resolution of potentially divisive issues.
Judicial processes are often the most important formal method for resolving election-violence related disputes. Procedures for handling electoral disputes through impartial, efficient, and legally valid and widely accepted mechanisms are crucial even in the most advanced democracies. The timeliness of dispute resolution is an especially important factor in election cases, since a delayed judicial decision can be largely meaningless (for example, if a disqualified candidate is reinstated too late to campaign effectively). Accidents happen, mistakes are made, and trust is low: the institutions and procedures for dispute resolution need to be established and tested early in the electoral process so that by the time voting day arrives there is trust in the fairness of the mediation and arbitration process. Without such institutions and mechanisms for dispute resolution, parties may well turn to violent means to press their interests in an election dispute. There is a burgeoning literature available on electoral dispute resolution that is of direct relevance to the users of this Guide, cataloguing a wide variety of processes, institutions, and case studies on the critical topic of electoral dispute resolution. Such processes generally distinguish between formal institutions, such as special election courts or judicial processes, and informal processes, such as dialogue series. It has become increasingly clear that effective conflict prevention is achieved through a holistic system of formal and informal processes. Some options include the following:
Special election courts may offer clear and well-articulated processes for the lodging, investigation, adjudication of complaints of fraud, intimidation, or instances of violence. Their independence and autonomy are essential, particularly if the allegations are lodged against government officials, electoral management bodies, or security services.
EMBs also require well-developed processes for monitoring, investigating, and responding to election violence. They should also develop broadly accepted processes for sensitive matters such as declaring void ballots or results in areas where election-related violence may have directly influenced results.
Fundamentals of EDR • Clear definition of the types of offences • Opportunity to make a complaint and decision to investigate
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• Decision to initiate proceedings to determine facts and obtain evidence • Prosecution and judicial proceedings that make offenders accountable for their actions, and provide for a ruling and the opportunity to appeal • Penalties and sanctions for those found guilty • Effective, active, impartial and timely enforcement
Other Issues of Critical Concern • Investigative agencies and their investigators must have enough independence to examine allegations of election fraud or other illegal activities, and to initiate legal proceedings. • Investigators must be objective and professional, and shielded from any political interference with their work. • Integrity also requires that the rights of whistle-blowers, witnesses and the accused be protected • Defendants must have access to legal representation and to the information that has been gathered against them. • They must also be able to present an adequate defense. • Usually an independent judiciary is required for a hearing to be fair. • The enforcement process may be subject to internal and external pressure and difficulties. • A transparent system with checks and balances can protect the integrity of the enforcement process.
Electoral Justice: Prerequisites Electoral justice systems must ensure that every action, procedure and decision pertaining to an election complies with the law. Such systems must also safeguard that all citizens can exercise their democratic right to vote. For this purpose, the procedures of an election must be spelled out clearly and enforced either by a specialized independent electoral management body or by administrative and judicial officials that act on the basis of clear laws, possibly with international assistance (such as from the European Court of Human Rights). Electoral justice systems must fulfill the following requirements: • Democratic governments, human rights, and electoral processes must be based on a proper constitutional and legal foundation. • Key actors from society and political parties should have input into the legal framework for these processes. • The political culture has to help inform citizens, for instance about democratic rules, the rule of law and human rights. • Several parties must be able to run for office (pluralism). • Equal criteria must apply to all candidates in terms of campaign funds and media support. • Civil society must be allowed an active role. • Everyone involved must comply with a code of conduct based on the rule of law, objectivity, independence, transparency and impartiality.
Legal frameworks that fulfill these conditions help to prevent improper conduct during elections, such as the purchasing of votes, voter harassment, confiscation of voter registrations or illegal campaign funding. Options include nullification of an election and penalties for wrongdoers. Various sanctions are possible, for instance the suspension or termination of political office, party registration or candidacy, discontinuation of financial funding, loss of media coverage and financial penalties.
The first parliamentary elections in Bhutan in 2008 are cited as an example of good election management. At the outset, Bhutan’s election commission distributed an informational brochure, thus spreading the word about which methods are admissible – and which is not – during the campaign and raising awareness about election rules in general. The paper was sent to administrations in all 20 districts and their 205 subdivisions. It was also used for public presentations.
Electoral Justice and Freedom of Elections • Existence of an appropriate dispute resolution mechanism, which operates in an impartial and non-partisan manner • Existence of a transparent mechanism for verification of final results and certification • Settlement of court disputes without undue delay
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• Confirmation by election observation organizations that the elections were without serious problems • Meeting of timeframe to constitute a parliament as prescribed legislation • Opportunity to pursue a reasonable case without unreasonable personal or financial risk • Possession of seats only by those persons properly elected
Revision of legal/regulatory framework Election management activities are governed by the legislation and regulations made by a responsible legislative body or by the election management body (EMB) itself. The opportunity to review and revise the legislation should, wherever possible, be formalized to ensure, in line with good management practice, that regular debriefings and objective analysis of actions and outcomes are undertaken. It is also critical that changes in the relevant legislation and regulations be made far enough in advance of an election so that they do not unfairly influence the outcome of the election.
The opportunity to amend legislation and regulations will vary from country to country. It may rest with the national government or with an election commission. The election manager may have the opportunity to make recommendations for changes to the law. This opportunity arises in Canada, Australia, and New Zealand, where there are national commissions that can put forward recommendations for improvement on an objective and impartial basis. In the United Kingdom, by contrast, there is no national election body, and parliamentary time is seldom found for changes to electoral legislation.
The law will cover all aspects of the electoral process to, possibly, differing degrees. In some countries, the interpretation of some of the detailed points is left to the discretion of the election official, whilst in other countries the election code will be very detailed, seeking to minimise the risk of individual discretion and interpretation. Many of the state electoral laws in the U.S.A. prescribe actions to a very great extent.
The electoral law should be kept under constant review. Three distinct opportunities for implementing changes to the law appear: • immediately after an election, • midterm review, • immediately prior to the next election
These three opportunities present all participants in the process with the chance to seek to influence the legislature to improve the process.
In determining the process for review, consideration should be given to the problems that can arise if only the third option above was followed. Making changes close to an election could result in administrators and candidates being placed at a disadvantage. Any changes to legislation or regulations should be made with sufficient time to allow for their introduction at the next election. The credibility of the electoral process could be jeopardized by the attempted introduction of hurried changes that have not been the subject of wide consultation and debate. In Brazil, for example, Article 16 of the constitution requires that changes be in place no less than one year before an election so that everyone has an adequate opportunity to adjust to the new provisions. Changes must also be widely publicized to the population at large.
In formulating proposals for change in the legislation, it is necessary to consult widely with political parties, agents, NGOs, and the public at large, to seek to obtain a consensus on any proposals. Achieving consensus on such issues reduces the criticism that could be levied at the entire process by an imposed change not agreed by all the key players.
Those responsible for proposing changes to election legislation and regulations should seek feedback from the EMB’s workforce, including those who have worked in polling places, to find out how they would improve arrangements. Consideration should also be given to formalizing arrangements for obtaining feedback from voters themselves. Turnout statistics, on their own, are too crude a measure of the success or shortcomings of election administration. The EMB should seek to ascertain what voters feel about the process they have experienced.
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According to The Carter centre, election related disputes are an intrinsic part of the electoral process and the credibility of that process is determined to a large degree by the capacity of the State to effectively resolve these disputes. As noted by authors on the subject, challenges to election results, or the conduct of elections, should not be considered a weakness of the electoral system, but a sign of its resilience. In addition, electoral dispute resolution mechanisms vary greatly country-by-country, based largely on historical and political context.
International obligations related to dispute resolution have not necessarily been tied explicitly to the electoral process. Public international law appears to provide only the highest level guidance regarding the resolution of disputes. The International Covenant on Civil and Political Rights (ICCPR) and regional treaties stipulate a number of obligations upon States Parties which provide a broad framework for the resolution of disputes. However, these obligations are not explicitly linked to the resolution of electoral disputes. In fact, even at the level of handbooks and practitioner led efforts to document guidelines for EDR, there are very few sources upon which we can rely that address the resolution of electoral disputes directly. It is therefore necessary to extrapolate obligations for the resolution of electoral disputes from these more general obligations.
In addition, it is necessary to distinguish between obligations (binding legal commitments) related to EDR mechanisms and best practices, or agreed upon techniques or practices which are most effective at ensuring that international obligations are met. Because standards for electoral dispute resolution have not, as yet, been clearly articulated in international law, we see a burgeoning body of best practices that are used by international observers and electoral assistance practitioners as guideposts to help countries implement better EDR systems. 117
Similarly, IFES has identified seven principle standards that serve as guidelines for the implementation of an effective electoral dispute resolution (EDR). And, adhering to these standards help to ensure that their specific post-election remedy systems comply with their obligations under relevant international and domestic law. Regardless of whether they are solved by a constitutional court, an independent tribunal, or an electoral complaints commission.
The first principle is the existence of a transparent right of redress for election irregularities. Providing the public with a clear legal mechanism to obtain a remedy for election irregularities is essential to a well-functioning EDR system. Comprehensive materials should be made available to the general public concerning access to the judicial process, the filing of a claim, the chronology of the process, and the publication of decisions. The right to bring claims should also be clearly defined and as inclusive as possible to best ensure a right of post-election redress to protect the interests of all voters. Trust in the process is essential to building, restoring and maintaining a democracy. A successful EDR system must provide the legal right to dispute election irregularities in a transparent manner in order to best support universal public participation in government and this support will give the victor the necessary legitimacy to govern.
The second standard requires that appropriate administrative and legislative measures be taken in order to adequately implement the right to periodic, free and fair elections. These measures must be clearly written and accessible, providing adequate notice and process to individuals, political parties, and civil society. Finally, stability of the law is crucial to a credible electoral process; as such, changes in standards and procedures must be made carefully so as to avoid frequent or erratic alterations that confuse both the electors and the officials charged with conducting free and fair elections.
The third standard is that every EDR mechanism should ensure that the arbiter be both impartial and informed. This requirement echoes the fair trial standard demanded by all major human rights conventions. The appointment and removal process, length and security of tenure and fair remuneration of the judges or arbiters are elements that support the goal of an impartial EDR mechanism. Moreover, all EDR staff must be aware of the existing body of law. They should be equipped with the necessary skills to assess, investigate and settle disputes.
EDR is unique in its extreme reliance on timely adjudication because the legitimacy of entire government rest of the validity of election results. The fourth standard requires that dispute proceedings take place “within a reasonable time” and “without undue delay.” Avoiding delays requires clear, streamlined procedures implemented far in advance of elections, as well as judicial power to enforce an expedited timeline. Additionally, an expedited decision cannot put
117 Electoral Dispute Resolution Discussion PaperExperts Meeting, Atlanta GA – February 2009
76 Electoral Laws, Administration and Management Review Report in jeopardy the more general principles of the proper administration of justice, such as the right to an adequate time to prepare a defense. This principle requires a careful balance of speedy justice and adequate due process.
A fifth important principle in complaint adjudication is the establishment of sensible standards of evidence and burdens of proof. Due process considerations require that these be determined in advance of a hearing so that the parties involved will have a reasonable understanding of what will be expected of each side in order to resolve the matter. Burdens of proof generally fall upon the party alleging misconduct; to hold otherwise would subject EDR bodies to harassing suits that would result in multiple hearings on the validity of an election that hold little merit, yet force a perhaps fledgling democracy to repeatedly defend its own legitimacy. In general, an EDR body should employ a heightened standard of evidence such as “clear and convincing” in order to discourage frivolous complaints while still allowing challengers a reasonable chance of proving their case. Other standards such as “beyond a reasonable doubt” or “preponderance of the evidence” should be used only in unusual circumstances. When choosing the adequate burden of proof, the protection of victims, the complexities of the adjudicated claim and the remedies that may follow are key elements to take into account.
Under the sixth standard, an EDR mechanism should also provide for effective, timely and enforceable remedies that offer true redress to an injured party. The “right to an effective remedy by the competent national tribunals” appears in most major international legal documents, as well as in many regional human rights systems. This right implicitly includes the rights of appeal, quick and effective examination of a claim, legal justification for each decision, restoration of the infringed rights, and appropriate sanctions and penalties.
The final standard stresses that all actors who take part in an election should participate in implementing these international standards in the EDR process. As a result, states should set up national civic education programs that enable the population to become familiar with election procedures and issues. Political parties, candidates, human rights and other civil society organizations, electoral management bodies and the media should also understand the powers and limitations of the complaints system in order to help implement these principles.
An effective resolution of electoral complaints is crucial to guarantee the integrity and legitimacy of an electoral system. Inadequate implementation of the enumerated standards will leave a dispute resolution system open to fraud or corruption, and will deny voters the fundamental right to participate in their government. It also leaves the electorate with insufficient confidence resulting from lack of education, legal remedies, and inadequate due process. As experience has shown, public confidence is essential to maintaining a well-functioning election system and a stable democratic regime. 118
Case Examples While in the first stage of European and American democratic constitutionalism the EDR function was the domain of the legislative organs, through the electoral colleges, a gradual reorientation ensued whereby this came to be seen more as a judicial function.
To cite some examples, in Latin America, the Electoral Court (Corte Electoral) of Uruguay and the Tribunal for Qualifying Elections (Tribunal Calificador de Elecciones) of Chile were established in 1924 and 1925, respectively, whereas their counterpart entities in the various countries of the region became common in subsequent decades, especially in the second half of the 20th century, and, in the context of the “third wave,” in the last quarter.
In Europe, that function was taken up in England as of 1879 by two judges of the King’s (Queen’s) Bench Division of the High Court of Justice; whereas in Austria, under the Weimar Constitution of 1919, that authority was vested in the Constitutional Court of Justice; in France, it was vested in the Constitutional Council as of 1958; and in Spain, in the Constitutional Court in 1978. In Mexico, the Electoral Tribunal of the Judicial Branch of the Federation was established in 1996 (Orozco Henríquez, 2000), and in Indonesia the Constitutional Court assumed that function in 2003.
The central role that these entities – in charge of constitutional and statutory review of elections – have played since the year 2000 is illustrated by the importance of some of the disputes they have resolved:
118 http://www.mundoelectoral.com/html/index.php?id=423
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They voided elections for governor (in Tabasco in 2001, and in Colima in 2003), and imposed historical sanctions on the leading political parties (2003), the first decreed by and the second ratified by the TEPJF/Mexico, in recent years; the resolution of the Supreme Court of Justice of Argentina voiding the primary elections in the Partido Justicialista (2003); and the judgment of the Electoral Tribunal of Paraguay adjusting the percentage and placement of electronic polling places to be used in the general elections (2003). Also relevant in this vein are the judgments of the electoral- judicial bodies of Guatemala regarding the presidential candidacy of Efraín Ríos Montt (2003), and those handed down by the electoraljudicial entities of the Bolivarian Republic of Venezuela around the referendum to recall the president, still under way (2003-2004).
In other contexts, special mention should be made of the decisive role of the United States Supreme Court in the last presidential election (2000); the decisions of the Supreme Court (Tribunal Supremo) and the Constitutional Court (Tribunal Constitucional) of Spain in relation to the illegality and unconstitutionality of political parties with possible ties to terrorism (2003), as well as the role of the Central Elections Board (Junta Electoral Central) of Spain from March 11 until election day, three days later (2004); and the judgment of the Supreme Court of Justice of the Russian Federation drawing a distinction between general information disseminated by television and election publicity (2003-2004). These precedents clearly underline the legal and political significance that has been attained through the constitutional jurisdiction of electoral oversight authority, and guarantees of electoral legality in the context of the new democracies of the 21st century.
While electoral democracy and election systems in general, and the entities entrusted with organizing the elections, in particular, have been studied and documented in a broad, profound, specialized, and professional international and even global bibliography (e.g. IDEA, 1999; López Pintor, 2000), the same cannot be said of the EDR systems.
The information available on the EDR systems shows three main lines of research: in the European context, in 1997 IDEA initiated a project to pull together a handbook on EDR systems, with a global perspective. Second, in the inter American context, the multi-institutional efforts of IDEA, IFES, UNDP, and the Mexican institutions Instituto de Investigaciones Jurídicas, IFE, and TEPJF – which organized a seminar in Mexico City in 1999 – yielded a first volume that classified various electoral justice systems in Central, Eastern, and Western Europe, as well as the Americas (see Orozco Henríquez, 2001, based on a conceptualization and typology by Héctor Fix-Zamudio and Judge José de Jesús Orozco Henríquez, 2001).
In addition, a second seminar was held in San José, Costa Rica, in 2000, with additional support from the Tribunal Supremo de Elecciones of Costa Rica, and the Inter-American Institute of Human Rights, which looked further into specific experiences of EDR systems in Central America, Mexico, and the Dominican Republic, and which produced a second volume (2000). Secondly, the compendium Administration and Cost of Elections (1999 and 2003), and the project Electoral Process Information Collection (EPIC) (2002) contain only brief indicative references to EDR.
Thirdly, some EDR-related work has been done by the Office for Democratic Institutions and Human Rights (ODIHR) during 2000 in central and Eastern Europe and culminated in the production of “Handbook on Resolving Disputes in the OSCE Area” (ODIHR, 2000). Apart from these pioneer efforts in the literature, there is clearly no work that sets forth the principles, structures, characteristics and performance of EDR systems, with a theoretical and comparative framework, in context and a global perspective. And we are farther still from having a work that records, in comparative and contextual terms, in a global perspective, the principles, structures, characteristics, and performance related to the EDR systems. Certainly, there is no theoretical and practical handbook to multiply and make available relevant knowledge on the contemporary EDR to several audiences. 2. Domestic Mechanism and EDR Nepal is currently reforming its electoral dispute resolution (EDR) mechanism as part of the development of its new electoral law. The aim is to have these arrangements included in the new constitution. The ECN is in the process of drafting a proposal for a new electoral dispute resolution mechanism. In September 2010, the ECN organized a BRIDGE workshop on this subject together with IDEA, IFES and UNDP to obtain input into the proposal. Political parties, government ministries, election observer organizations and the media were all invited to contribute and the proceedings were followed up by the release of a concept paper on electoral dispute mechanisms in November.
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Participants discussed the various electoral justice mechanisms, electoral rights and principal international instruments, as well as the risks of disputes at different stages of the electoral cycle and means of preventing them. The next steps in the process are to prepare the draft law and then share it again with stakeholders - including through regional consultations - with a view to finalizing the proposal. Ultimately the draft law will be discussed and decided by Parliament though. The shape of the electoral dispute mechanism will yet depend on decisions to be made by the Constituent Assembly relating to the mandate and status of the ECN, the nature of the judiciary and the proposed role of the Constitutional Court in electoral dispute resolution. There has been some progress in the field of devising an appropriate EDR model in the upcoming elections. It is generally comprehended by the concerned stakeholders that a robust mechanism on EDR is the need of the hour to tackle with emerging disputes around elections in various cycles and stages. In this connection, earlier in 2011, a concept was developed to assist the ECN in revision of electoral dispute resolution (EDR) system and a consultation workshop was organized with key stakeholders (judiciary, political and civil society representatives) on the revised EDR system.
There are enormous challenges concerning EDR and proper adjustment procedures are also vital. This is a very specific area in which the ECN is expected to continue to require both, technical and legal, support. The ESP and ECN should coordinate the action in close consultation with political parties, legal community and election monitoring groups to bring out a tangible document on EDR that is upto the mark (meeting international standards).
Salient Features of Election Crime and Punishment Act, 2063 Electoral offences: 1. Voting by an unauthorized person. 2. Tarnish the reputation of a candidate or the candidate’s family, use intimidation or fear and offer incentives to influence the voter’s ballot. 3. Selling or buying of votes through exchange of cash or commodity. 4. Employees carry out an action in favour of or against a particular candidate. 5. Possession of, display or use of explosives, chemicals, poisonous substance or weapons at the polling booths or at the time of vote counting. 6. Seizing, looting or stealing of election material. 7. Use of mikes or loudspeakers for other than the purpose of sharing information during General assembly. 8. Sticking of bills, posters, graffiti, banners, etc for campaigns, apart from the campaign methods recommended by the Commission.
Provisions for Action: 1. Election Officer, Returning officer and monitoring teams may order the security personnel the arrest of anyone who acts against the constitution or order them to leave the place. 2. Election Officer, Returning officer and Polling officer may charge a fine of 5 hundred to 10 thousand rupees for electoral offences. The penalty for such offences must be made public through newspapers or other means of mass communication. 3. Serious nature of offences regarding the Constituent Assembly Election and action and settlement on Election annulment issues will be taken care of by the constituent assembly court.
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Findings of the EU EOM-2008 CA Election
Given the lack of regulations regarding procedures for complaints in the electoral laws, the Election Commission of Nepal adopted its own procedures for lodging and handling complaints within its jurisdiction. These procedures are generally adequate and broadly meet international standards. It is generally understood that any person, candidate or political party can submit a complaint in the absence of clear rules on this matter within a limited period of 24 hours. The regulation sets out which types of complaints should be dealt with by the respective election officials. A record of these complaints should be kept and a report published three months after the election. However, the regulation lacks precise timelines within which the Election Commission should deal with cases. The Election Commission also established a complaints and dispute management committee, which inter alia, held responsibility for dealing with complaints and disputes as well as overseeing compliance to the Code of Conduct. At district levels, Chief Returning Officers set up Code of Conduct District Coordination Committees to deal with violations of the Code of Conduct. The legal framework establishes that the decisions of the Election Commission on voter registration and registration of political parties and candidates are final and may not be subject to any appeal procedure that falls short of international standards.
As the Supreme Court has responsibility for constitutional matters and issues related to fundamental rights; as well offering legal recourse for issues not covered in specific laws it should act as a key mechanism of redress according to Article 107 (2) of the Interim Constitution. In this context, given the lack of an appeal mechanism for decisions of the Election Commission complainants had the possibility to submit challenges to this court. Prior to Election Day two appeals against decisions of the Election Commission were submitted to the courts: one to the Constituent Assembly Court and another to the Supreme Court. In both cases the two courts concluded that they did not have jurisdiction to assess the complaints. The Constituent Assembly Court because it had no right to make a judgment on the disqualification of candidates. The Supreme Court rejected a petition referring to Article 118 (4) of the Interim Constitution that forbids raising any case in court, with the intention to disrupt, the Constituent Assembly election. The judgement of the Supreme Court and its refusal to acknowledge jurisdiction is based on Article 118 (4) of the Interim Constitution but contradicts other provisions of the Interim Constitution including Article 107 (2) resulting in the lack of redress for possible violations of fundamental rights in the Supreme Court. A relatively small number of formal complaints were lodged as compared to the numerous informal complaints about breaches of the Code of Conduct that have been brought to the attention of the EU EOM. Election officials have kept records but no evidence could be found of an official response to complaints. The Election Commission, in most of these cases, limited itself to calling for candidates and political parties to respect the regulations in order to avoid applying sanctions. It also requested the Home Ministry to respond to numerous violations to the Code of Conduct related to violence. At district level the degree of satisfaction of stakeholders regarding the handling of complaints varied depending mainly on the personal skills and degree of commitment of election officials. Returning Officers also failed to refer election related criminal cases to the district courts.
Among the reasons given for the low number of formal complaints were the absence of trust in legal mechanisms and a lack of confidence that individual complaints would be processed in an appropriate manner. Further reasons for the relatively few complaints included fear of reprisals, the difficulty in obtaining evidence and insufficient legal knowledge about how to lodge a complaint. Subsequently the majority of complaints were addressed and resolved in an informal manner by ad hoc committees involving political parties, election authorities, security forces and the civil administration. Most of the complaints were resolved through discussions between political parties and mediated by election officials. In some cases, the parties agreed on compensation payments and apologies. Although this dispute resolution mechanism was in general positively assessed by stakeholders, the lack of a culture of complaining via formal legal channels left some individuals without redress.
During the campaign period 229 formal and 74 informal complaints were submitted to the Election Commission. The majority of complaints related to breaches to the rules governing governmental employees, misuse of state resources, violations to the rules for media coverage and electoral violence. Ninety-eight of these complaints were submitted by CPN-UML, 72 by NC and 59 CPN-M. The Election Commission addressed most of these cases by requesting the
80 Electoral Laws, Administration and Management Review Report competent state authorities take appropriate action or by calling on the candidates and parties to respect the rules. The Election Commission did receive four complaints against three NC nominated candidates who had not resigned as governmental employees and were therefore not entitled to stand in the election. The three candidates were disqualified. Where infringements of the Code of Conduct were confirmed the Election Commission did not apply any sanctions against offenders and at district level complaints were not properly investigated before being dismissed.
There were approximately 50 complaints referred by Returning Officers relating to Election Day to the Election Commission. These complaints sought annulment of the election in some or all polling stations in specific constituencies. The majority (27), of these complaints were lodged jointly by a number of political parties. Maingrounds for complaints were violence, booth capturing and impersonation. More specifically, these complaints related to the use of violence to attempt to force people to vote for a particular political party, intimidation and harassment of party agents and voters by supporters of political parties as well as abduction. They also included complaints about campaigning in polling stations, unlawful conduct of polling officials, fraudulent thumb printing of ballot papers, and broken seals on ballot boxes or forgery of results. Some of these complaints led to the cancellation of polling in 106 polling stations where re-polling was ordered. The nullification of an election in a specific constituency was only granted in cases where reports from election officials endorsed the grounds for the complaint and there was no adequate investigation and formal process behind these decisions.
These were also very few complaints involving criminal activities related to elections reported to the police. In some cases the police informed EU EOM observers that an investigation had been initiated but these were limited to the most serious cases of killings and in other cases they failed to open up case files. At times the police denied having received complaints. At the time of writing very few cases involving criminal charges and election offences were reported to have been prosecuted and perpetrators held accountable. In general, stakeholders complained about the passiveness and ineffectiveness of the police.
Pursuant to the Constituent Assembly Election Act, the Constituent Assembly Court has jurisdiction for issues related to the disqualification of members of the Constituent Assembly, invalidation of the election of a member of the Constituent Assembly and offences relating to members of the Constituent Assembly. It has the power to declare the election null and void when serious electoral offences have been committed that have undermined the impartiality of the election. The decisions of the court are final. A petition can be submitted to the Constituent Assembly Court directly or through the District Election Officers. The Election Offences and Punishment Act establishes that only aggrieved candidates can file election petitions seeking the annulment of an election within 15 days of the date of the alleged offence. However, the law does not specifically regulate who can file petitions related to the disqualification of members or offences committed by members of the neither Constituent Assembly nor timelines for these petitions. It is, therefore, understood that any person, interested organization, political party or candidate can file a petition and it can be submitted during the entire lifetime of the Constituent Assembly. 119
119 http://www.eeas.europa.eu/eueom/pdf/missions/eu_eom_final_report.pdf
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Section 5 Future Direction 1. New CA Election: Status and Intricacies Article 1.7 of the 11-point agreement the four parties had reached on March 13, 2013 says, “If the elections could not be held by June 21, 2013 for the reasons beyond control or for the technical reason; then the elections would be held in November; the council of ministers would set the date for the elections with the approval of the High Level Political Committee.” (Source: Gorkhapatra of March 14, 2013). The 11-point agreement the four parties had reached on March 13, 2013 was the agreement among UCPN-Maoist, NC, CPN-UML and UDMF. Other parties would not need to follow it but the amendments to the constitution were binding to all the citizens of Nepal.
The situation for holding the new elections seems quite unpredictable. Political leaders have now started telling their cadres that the chance of holding elections in June has been now nil; let us prepare for the elections in November or December. The main reason is the obstruction of updating voters’ list in districts. The CPN-Maoist-Vaidhya has unleashed its cadres to break the equipment and burn the documents of the officials of the District Election Commission updating voters’ list in districts. The CPN-Maoist-Vaidhya neither wanted to talk to the Interim Election Council nor to the four major parties but it is willing to talk to the head of state on conditions. Another reason is the citizenship certificates, as voters’ lists are based on the citizenship certificates. Members of the international community have been concerned with the possible delay in elections.
A total of eight Acts related to elections, the Constitutional Council, citizenship and the Constituent Assembly are to be amended to clear the decks for the elections and appointments to the ECN. The ECN has drafted the amendment bills on Election Commission Act of 2063 (2007), Constitution Election Act of 2064 (2007), and Voters’ List Act of 2063 (2007), and submitted these draft bills to the Interim Election Council (IECM) on April 1, 2013. The IECM needs to submit these bills to the president for passing them to ordinances. The Chief Election Commissioner is of the opinion that once those bills become laws then, the date for elections could be set. One of the bills has included an article that makes a person indicted for felony, misuse of diplomatic passports, murder, money laundering, rape, kidnapping, stealing, looting, drug, spying, and smuggling ineligible for being a candidate.
The IECM has been discussing the draft amendment bills. Small political parties have opposed the provisions made in the amendment bills such as political parties receiving less than one percent of votes would not considered as national parties. Some ethnic groups feared for the small communities of different ethnic groups might lose the representation in the Constituent Assembly (CA). They could not get their voices heard in the nation. The IECM and the political parties have been discussing the amendment bills before presenting them to the head of state for passing them into laws.
The most important task the chief justice transformed into the chairman of IECMM has overlooked was the delineation of the new areas of constituencies. Political leaders overlooked it on purpose or unknowingly but the person of the stature of the chief justice should not overlook the need for following the interim constitution to delineate the areas of constituencies after every population census done every 10-year. The latest population census was held in 2010. Consequently, the IECMM could not hold elections without delineating the areas of constituencies. The current constituencies were delineated following the population census of 2001. Some of the Madheshi parties have been demanding the fresh delineation of constituencies, and increasing the number of members of the CA. They have demanded to delineate the constituencies based on the population census of 2010. The four major political parties had agreed on reducing the number of CA members from 601 set in 2008 to 491: 240 directly elected from 240 constituencies, and 240 nominated by political parties proportional to the votes they received, and 11 to be nominated. A lot of people have complained that 601 members of the CA have been too high for the small country like Nepal.
The 33 political parties headed by the CPN-Maoist-Vaidhya have submitted a memo to the ECN on April 1, 2013 demanding to stop all the election-related activities. They stated in the memo that the formation of the IECM, and amendment to 25 articles are unconstitutional. President Dr. Ram Baran Yadav had approved them unconstitutionally.
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According to them, the ECN must not hold elections following the unconstitutional approval of the amendment to 25 articles of the constitution or even warned the Election Commission to face the grave consequences if the electoral activities were not to stop immediately.
In March, the ECN suspended the updating of the voters’ lists. One reason was certainly the opposition of the CPN- Maoist-Vaidhya. Another reason was the distribution of the citizenship certificates. The ECN could not distribute voters’ cards without citizenship certificates. The Home Ministry has recently authorized the Secretariat of Peace Fund to release more than NRs 90 millions to the local administration for running the campaigns of distribution of citizenship certificates to the Nepalese completing 16 years of age. The district administrations would send mobile teams to the villages across the 75 districts of the country to distribute citizenship certificates to the eligible persons. The Election Commission would update the voters’ lists based on the citizenship certificates. Nepalese of 18 years and above are eligible to vote. Some of the teenagers even having citizenship certificates would not be eligible for voting.
In another development, a single bench of Justice Girishchandra Lal has issued an order to the concerned agencies including the Constitutional Council (CC) to explain the reasons within 15 days for reappointing election commissioners. Earlier, a petition the Supreme Court of Nepal for annulling the reappointment of the former election commissioners was lodged, as it was unconstitutional pursuant to the Article 128 of the Interim Constitution of Nepal of 2007. The president had reappointed three commissioners including the chief commissioner to the EC on the recommendations of the CC. HLPC in turn had recommended the CC the names of five election commissioners including the three former election commissioners for appointment. (Source: ‘gorkhapatra’ of April 17, 2013)
IECMM is not constitutional; the Nepal Bar Association takes its stand on it. The Bar has declared the day of March 14, 2013 when the Chairman of IECM was sworn in as a black day in the history of judiciary. Legal practitioners have petitioned at the Supreme Court of Nepal for annulling the formation of the IECM, and annulling the amendment to the 25 articles of the Interim Constitution done by the president for forming the IECM, and for forming an all-party government of all political parties represented in the dissolved CA.
A write petition has been lodged in the Supreme Court for the resignation of the Chief Justice after he took office of the Chairman of IECMM, stating it went against the principles of the separation of power, and the advocates also stated in their petition that appointing the Chief Justice to the Chairman of the IECMM following the ‘Removable of Constitutional Hurdles Ordinance” was unconstitutional. (Source: ‘gorkhapatra’ of April 19, 2013)
In reply to the show cause notice of the Supreme Court of Nepal on Thursday, April 18, 2013, Chairman of IECMM Khil Raj Regmi in his written answer stated that if he were to resign from the office of the Chief Justice of the Supreme Court of Nepal, it would cause the constitutional crisis, as he had been appointed to the office of the Chairman of IECMM following the ‘Removable of Constitutional Hurdles Ordinance.” The Chairman further stated that while working as the Chairman of the IECMM, he would be entirely separated from the judicial functions; so, he working as the Chairman of the IECMM would not have influence on the independence of the judiciary, and would not undermine the principles and values of the judiciary, and the separation of power. So, he urged the Supreme Court of Nepal to quash the petition filed at the Supreme Court of Nepal demanding his resignation from the office of the Chief Justice of the Supreme Court of Nepal. (Source: ‘gorkhapatra of April 19, 2013) The rulings of the Supreme Court of Nepal on the petitions against the formation of the IECM, and against the amendment to the 25 articles of the constitution the president had made following the recommendations of the four major political parties is much awaited.
Elections: Progress and Challenges The recently published one-month progress of the Interim Election Council of Ministers (IECMM) on April 16, 2013 is as follows: 1) Amendments to three election-related laws: Voters’ Lists Act of 2063 (2007), Election commission Act of 2063 (2007), and Nepal Citizenship Act of 2063 (2007). The Election Commission (EC) distributes voters’ cards to the citizens of 18 years of age and above based on the citizenship certificates. The Constituent Assembly Member Election Act of 2064 (2007) is in the process of discussion. Practically, the progress was only passing the three amendment bills. 2) The chairman of IECMM has set up a three-member ministerial consultation and coordination committee headed by the Home Minister. Its terms of reference were to talk to the political parties opposing the elections
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to a new CA. The so-called 33-opposing political parties including the CPN-Maoist-Vaidhya had refused to talk to the committee stating the IECMM was unconstitutional and they would not talk to any committee set up by such an unconstitutional government. 3) Initiation of an election-centered-special-security plan has been another progress mentioned in the news reports. In addition, election units have been set up at the Home Ministry, and at the security agencies, and these units have been working. An unified security plan has been made at the center, and instructed the security agency to make a district security plan at each district for holding elections safely. 4) The Supreme Court of Nepal has ordered the IECMM to set up a Commission on Election Area Delineation following the Article 154 (a) of the Interim Constitution of Nepal of 2007 to delineate the new areas of constituencies based on the latest population consensus, and set the number of members of the CA. Hearing on the petition filed by former Minister Jayaprakash Prasad Gupta, a single bench of Justice Girishchandra Lal has issued such order to the government, and to the office of the president. The Article 63 (3) (a) has the provision for delineating constituencies maintaining the administrative districts as the election districts based on the latest population census, and then setting the number of members of a CA before holding elections to a CA (Source: Gorkhapatra of April 17, 2013) (Based on the synopsis of the analysis of Siddhi B. Ranjuitkar, available at http://66.7.193.115/news-analysis-and-views/cj-led-government-03)
2. Conclusion Election management activities are governed by the legislation and regulations made by a responsible legislative body or by the EMB itself. The opportunity to review and revise the legislation should, wherever possible, be formalized to ensure, in line with good management practice, that regular debriefings and objective analysis of actions and outcomes are undertaken. It is also critical that changes in the relevant legislation and regulations be made far enough in advance of an election so that they do not unfairly influence the outcome of the election.
The opportunity to amend legislation and regulations will vary from country to country. It may rest with the national government or with an election commission. The election manager may have the opportunity to make recommendations for changes to the law. This opportunity arises in Canada, Australia, and New Zealand, where there are national commissions that can put forward recommendations for improvement on an objective and impartial basis. In the United Kingdom, by contrast, there is no national election body, and parliamentary time is seldom found for changes to electoral legislation.
The law will cover all aspects of the electoral process to, possibly, differing degrees. In some countries, the interpretation of some of the detailed points is left to the discretion of the election official, whilst in other countries the election code will be very detailed, seeking to minimise the risk of individual discretion and interpretation. Many of the state electoral laws in the U.S.A. prescribe actions to a very great extent.
The electoral law should be kept under constant review. Three distinct opportunities for implementing changes to the law appear: • immediately after an election, • midterm review, • immediately prior to the next election
These three opportunities present all participants in the process with the chance to seek to influence the legislature to improve the process.
In determining the process for review, consideration should be given to the problems that can arise if only the third option above was followed. Making changes close to an election could result in administrators and candidates being placed at a disadvantage. Any changes to legislation or regulations should be made with sufficient time to allow for their introduction at the next election. The credibility of the electoral process could be jeopardized by the attempted introduction of hurried changes that have not been the subject of wide consultation and debate. In Brazil, for example, Article 16 of the constitution requires that changes be in place no less than one year before an election so that everyone has an adequate opportunity to adjust to the new provisions. Changes must also be widely publicized to the population at large. In formulating proposals for change in the legislation, it is necessary to consult widely with political parties, agents,
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NGOs, and the public at large, to seek to obtain a consensus on any proposals. Achieving consensus on such issues reduces the criticism that could be levied at the entire process by an imposed change not agreed by all the key players.
Those responsible for proposing changes to election legislation and regulations should seek feedback from the EMB’s workforce, including those who have worked in polling places, to find out how they would improve arrangements. Consideration should also be given to formalizing arrangements for obtaining feedback from voters themselves. Turnout statistics, on their own, are too crude a measure of the success or shortcomings of election administration. The EMB should seek to ascertain what voters feel about the process they have experienced.
A free and fair election brings the micro-institutions of governance closer to the people. People as stakeholders of democracy are subject to the authority of elected leadership and, therefore, can claim to share direct control over them. Law, administration and punishment pale into insignificance if civic education of citizens, their awareness about fundamental rights and duties and participation that set the context for fair elections go amiss. Certain principles, such as freedom of speech, organization, press and the secret ballot, might be considered essential at universal level, but the details of the electoral process must incorporate native reality. Each country has its own mechanism of elections reflecting the functional requirement of that nation-state and people.
Election basically reflects three things: weight of public opinion, consideration of popular interest and broad-based representation of social, economic and political concerns of citizens. Election has other vital purposes too, such as selecting leaders, providing legitimacy to governance and making the government accountable to the electorates. Has the Nepali election system provided the people a sense of citizenship that transcend all sort of primordial considerations, for example, age, caste, class, gender, ethnic and geographic origins? Or, does it constitute the reinforcement of these considerations? Does it serve an inclusive process or excite exclusionary aspirations? Dr. Dev Raj Dahal, a senior political and electoral analyst in his article “Electoral System and Election Management in Nepal”, 2001 Friedrich Ebert Stiftung, Nepal Office asserts the following components in ensuring the freedom of elections:
Autonomy of Election Commission Like judiciary, constitution provides certain level of autonomy to the EC from the executive. But, in matters of personnel and finance it is dependent on the government. As the unprecedented electoral operation is entrusted with the ECN, supported by the whole machinery of administration throughout constituencies, maintaining the autonomy and effectiveness of election commission for the fairness of election is no small feat. The Chief Election Commissioner including all the five election commissioners is appointed by the Constitutional Council with the mandate to “conduct, supervise, direct and control the elections to parliament and local bodies.” These Commissioners may be removed from their office by an impeachment of two-thirds member of the parliament which, in fact, is cumbersome process. Integrity of the professionalism of the persons involved in conducting elections can help muster trust and confidence of electorates on the ECN.
In this context, the ECN requires full authority and control of the security forces and election officers on election duty. Likewise, the election management process, including the functioning of election commissioners, must be transparent to the political parties and closely monitored by media and civil society. Nepali election commissioners, however, argue for multi-disciplinary team within the ECN so that they can address every electoral issue coming to the fore. Other area is the financial autonomy and the authority to recruit election officials at the ECN secretariat, especially to discourage the government’s tendency to transfer skilled personnel to other department and offices. Public confidence in the fairness of EC leads the public to abandon radical aspirations and acquiesce to the maintenance of the system. The edifice of the autonomy of EC rests on the foundations of the constitutional arrangements and its operation can be understood only within the context of the larger political culture.
Reflection of socio-economic and geographical realities The main goals of election must be to ensure the entire franchise workable which means paying attention to all the strata of people. One has to ponder what Nepal’s legal system looks like to the deprived minorities especially Dalits, women, bonded labor, illiterate, poor and powerless sections of society in terms of their rights. This is especially important in Nepal where caste and class system is still encrusted with hereditary privilege, custom and legal rights- all are derived from the earlier tradition of feudalism. As this is less immune from political influence and pressure
85 Review Report Electoral Laws, Administration and Management because of intractable barriers-political, economic and social-embedded in the structure of society it, by implication, de constructs their modern visions of progress, inclusion and identity. How to make them critical constituencies in the dynamism of democratic process? Does entrenched gender inequalities help the male domination of political representation? With the introduction of local governance act, female representation to grassroots institutions increased to about 19 percent and gender movement has helped to improve their position in the subsequently held national election as 12 women were elected for the House of Representatives. The question is: How many ethnic groups are represented in the House and how many of them are aware of their responsibilities for the fate of the nation? At a time when attractiveness to Upper House is declining, the Lower House must reflect the mosaic of national society.
Marxist and ethnic-based parties generally believe that the national legal system is inherently biased in favor of the dominant classes of society and demand for the distribution of power and wealth. The painful question is: how political authority is expanded to enable electoral system to create a competitive arena for the distribution of national resources and access to education, employment, health, land and credit in a condition of national economic inertia? Uneven representation of social strata of people leads to an uneven level of attachment to the symbols of national identity and political community.
The other matter of concern is geographical diversity, scattered settlement in the high hills, the mountain and remote areas with little access to transportation and communication thus making voters’ access to registration and then to polling centers difficult. Likewise, voter registration should be a door to door census. This is the way to maximize voter’s efficacy and minimize invalid voting turn out which hovers around 5 percent on average. Role of political parties in nominating appropriate candidates is positively correlated with representativeness of people and consolidating the social base of democracy.
One positive point of Nepal’s social mosaic is the very multiplicity of its 62 distinct ethnic groups that provides certain deterrence against civilian strife. It has some weaknesses, too, for example, in reconciling the rule of majority with the rights of social and ethnic minorities. Will it lead to democratic distemper reflecting sharply the problems of governability? Or, will there be the return to the stability of authoritarian leadership which the people rejected in 1990? After bowling along 20 years of increasing euphoria, political situating is overheating the ethnic and political minorities, Dalits, and radical parties who are demanding the participatory politics, whose consequences seem deep and certain. How can anyone claiming to believe in democratic values fail to ask why national political order has not been arranged so as to ensure equity for all?
Civic culture that slumbered in the society under the enforced culture of silence found amazing amount of strength in social movement providing critical knowledge for social self-awareness and rational behavior: critical in the ordinary sense that voters are not taken for granted and rational because they are seeking rationality from the candidates why do they vote for a particular candidate. Conception of parliamentary election is historically rooted in commitments to legislate social transformation through collective action rather than just composing “governmental power” for sustaining the status quo.
Neutrality of electoral officers and security personnel Security is the supreme social concept of political community, the link of individual citizens to a sphere in which they realize their political life with other members of civil society. There is a need to reconsider over election program, constitutional and legal provisions and Acts regarding People’s Representatives, Regulations and Procedures. Constitutional and institutional arrangements backed by “right to information” affect the ability of majority of citizens to ensure effective representation. The great test of democracy is the greatest test of Nepali bureaucracy and the EC in management, registration, voting and counting the results. The notion of neutrality requires attention to established knowledge-knowledge in the context of power relations and cultural values. The EC appoints judge or official from judicial service as Election Officer in each constituency to conduct national election. A government or semi-government officer is appointed as the returning officer for each constituency and polling officer for a polling station. While local election is conducted by Chief District Officer (CDO). The Chief Election Commissioner asserts that “compared to previous elections there has been an erosion in the capability of administrative machinery, sense of accountability and discipline in this election.” (Shah, 1999: 4)
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Absolute transparency of election process In order to attract public confidence, the EC’s activities must be transparent. One way of maintaining transparency is by developing the access of media, civil society and election observation groups to its activities while the other is developing all party consensus to its initiatives and still the other is deputing polling agents of the parties in overseeing the impartiality of voting, counting and declaring results. Unofficial channels often reveal the views of disturbances in polling stations, voters disenfranchisement and frustration striking grievously at the democratic process. Can this election provide sufficient credibility to the polity? Will the new parliament have sufficient integrity as a separate branch of the government for the checks and balances role? Will it be able to address and articulate public grievances?
Cutting the costs of elections must be done in such a way that it would not affect the credibility and efficiency of election management bodies. Election expenses incurred by candidates are also closely related to the transparency of election. Declining per capita income of citizens while rising cost of election expenditure have made the poor not only difficult to contest but also became onerous political exercise to those without the necessities of life and starving themselves. How can election become competitive when there are uneven natural endowments among candidates and economic liberalization of successive governments having benefited the rich ran counter to democratization process? By trespassing any consideration of constitutional context within which economic policies have to operate and putting such consideration out of court’s decision, liberalization only expected to protect the rich against the poor. And, in the process, it is more concretely threatening multiparty dispensation. How many times Nepali citizens have to vote to live as citizens in a state that evokes restless aspirations yet denies majority of them their right to live with pride and dignity?
Declaration of assets by elected representatives, audit of party funds and campaign financing of candidates must be sought so that candidates do not seek the assistance of private interest groups and allow them to influence public policy. Whether the state funding of election help establish the integrity of public life by minimizing corruption and malpractice? -Surely not. The cost of politics outstrips election expenses. The implications of this are: representatives will be elected on the basis of spending more than stipulated ceiling and those elected on the basis of heavy monetary investment will tend to indulge on corruption, criminalization, party defection and ultimately serve a cause for governmental instability.
Cost reduction in election, therefore, needs to be considered in Nepal to make electoral democracy sustainable as majority of the people live below absolute poverty line. Likewise, state funding of elections is a required reform to neutralize the rich candidates win over their financially poor contestants as well as to place all candidates on a par with regard to legitimate means of expenditure. This calls for the abrogation of constituency development fund given to all the members of parliament as it fosters patronage politics. The fund should flow through local government agencies.
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References
A) Publications • Bhagat, Ajana Kaw, 1996, “Election and Electoral Reforms in India.” • Baral, Lok Raj and Leo E. Rose. 1998. “Democratization and the Crisis of Governance in Nepal,” eds. Subrata K. Mitra and Dietmar Rothermund. Legitimacy and Conflict in South Asia. New Delhi: Manohar Publishers. • Carl J. Friedrich’s “Constitutional Government and Democracy.” • Commons, J.R., “Proportional Representation.” • Comparative perspective on Central America, Mexico, and the Dominican Republic; IFES, TEPJF, TSCR, IIDH, IFE; San José, 2000. • Cooper, Robert. 1999. “Integration and Disintegration,” Journal of Democracy, Vol. 10, No.1, January. • Chandra Kanta Gyawali and Prakash A Raj. Federalism in the World, Jan Sewa Printers, First Edition, 2010 • Chandra Kanta Gyawali and Birendra Mishra Forms of Government, HUDEP Nepal, 2009 • Cowen, Michael and Liisa Laakso, “An Overview of Election Studies in Africa,” The Journal of Modern African Studies, vol 35.4. 1997 • Dahal, Dev Raj 1997. Challenges to Good Governance in Nepal a report submitted to International Institute for Electoral and Democratic Assistance, Stockholm, Sweden, October 2. • Electoral Commission of South Africa, “Code of Conduct for Political Parties,” Election Administration Manual of South Africa, Chapter 5, 1997 • Elklit, Jorgen and Palle Svensson, “What Makes Elections Free and Fair?” Journal of Democracy, vol. 8.3. 1997 • Goodwin-Gill, Guy S. Free and Fair Elections. International Law and Practice. Inter-Parliamentary Union, Geneva. 1994 • Election Commission, 1995. Electoral Process in Nepal, Kathmandu: EC. International IDEA, 1997. Consolidating Democracy in Nepal. Stockholm: International IDEA. • Electoral: Evaluación y perspectivas; IFE, PNUD, IIJ/UNAM, IFES, IDEA, TEPJF, Mexico City, 2001. • El contencioso electoral/la calificación electoral, in: Dieter Nohlen, Sonia Picado, and Daniel Zovatto (eds.), Tratado de derecho electoral comparado de América Latina (Treatise on comparative electoral law of Latin America); IIDH, University of Heidelberg, TEPJF, IFE, FCE, Mexico City, 1998. • Gyawali, Chandra Kanta, 2006, “Constitution, Constitutionalism, Constituent Assembly and Restructuring of the State,” Kathmandu, Nepal • Gyawali, Chandra Kanta -2068, Nepalese Constitutional Law, Pairavi Prakashan, Kathmandu,Nepal • Gyawali, Chandra Kanta -2008, Federal System and Electoral System, Kathmandu, Nepal. • Gyawali, Chandra Kanta-2009, Electoral System in Federation, Kathamandu, Nepal. • INHURED International, sub-committee on ICCPR, HRTMCC, Assessment on Implementation of Core Human Rights Treaties, with special focus on ICCPR, Kathmandu. 2010 • International Institute for Democracy and Electoral Assistance, Evaluating Election Observation Missions: Lessons Learned from the Russian Elections of 1996 (1996). • International Institute for Democracy and Electoral Assistance (1997). • International Institute for Democracy and Electoral Assistance. Lessons Learnt, International Election Observation. Stockholm, 1995 • Jardim, Torquato. “Equality of Opportunities Essential”. Elections Today, IFES, vol. 8.3, September 1999 • Kingsley, Jean-Pierre, “Campaign Finance Reform an Ongoing Task,” Elections Today, IFES vol. 8,3, September 1999 • Kumar, Krishna, International Assistance for Post Conflict Elections, draft 1999.
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• Kumar, Krishna ed., Post Conflict Elections, Democratization and International Assistance, Lynne Rienner Publishers, Boulder. 1998. • LÓPEZ Pintor, Rafael, Electoral Management Bodies as Institutions of Governance, UNDP, September 2000. • Managing Elections in Fragile States: A Comparative Analysis of Post-Conflict Electoral System Design in Nepal and Kosovo, January 2007 • Mishra, Birendra P. 1999. “Elections ‘99: Yet Another Milestone,” The Kathmandu Post, June 29. • National Democratic Institute, Asian Monitoring Conference, Washington, DC, 1999. • NESAC. 1998. Nepal: Human Development Report 1998. Kathmandu: Nepal South Asian Center. • Nohlen, Dieter. 1996. Elections and Electoral System. Delhi: Macmillan, India Ltd. • Narayana’s, P.S., 2004, “Law of Elections in India”, Alt Publications, Hyderabad, First Edition, India. • OROZCO Henríquez, José de Jesús, Sistemas de justicia electoral en el Derecho Comparado, in: J. Jesús Orozco Henríquez (ed.), Sistemas de Justicia • Organization of American States, Manual for the Organization of Election Observation Missions, Washington, 1998 • Pandey, Devendra Raj, 1999, “Comparative Electroral Processes in South Asia,” Nepal South Asia Centre. • Petit, Denis. Resolving Disputes in the OSCE area: Towards a Standard Electoral Dispute Monitoring System, Warsaw, 2000. • Peters, Werner. 1991. Society on the Run. New York: M. E. Sharpe. • “Sambaidhanik Nikayaharuko Sudridhikaran, Samasys Ra Samadhan,” (Consolidation of Constitutional Organs: Problems and Solutions), paper presented at a seminar organized by National Democratic Institute, Kathmandu, November 29, 1999. • Sanderson, John and Michael Maley, “Elections and Liberal Democracy in Cambodia,” Australian Journal of International Affairs, vol. 42.3. Canberra, 1998 • Shaha, Bishnu Pratap. 1998. “Nirbachan Pranali Ra Loktantrako Sudridhikaran,” (Electoral System and the Consolidation of Democracy) paper presented at a seminar on Politics of Consensus and Implementation of Constitution, organized by NCCS in cooperation with FES, November 12, 1998, Kathmandu. • UN, Human Rights and Law Enforcement, a Manual on Human Training for the Police (High Commissioner/Centre for Human Rights Professional Training Series No. 5, 1997). • UN High Commissioner for Human Rights, Human Rights and Law Enforcement, International Standards and Guidelines for Monitoring, Training and Advice, U.N. Doc. HR/PUB/96/1 (1996) • UN, Human Rights in the Administration of Justice, a Manual on Human Rights for Judges and Lawyers (High Commissioner/Centre for Human Rights Professional Training Series No. 6, 1997). • United Nations, A Compilation of International Instruments Volume II, Regional Instruments, , New York and Geneva. • UN Centre for Human Rights, Human Rights and Elections, U.N. Doc. HR/P/PT/2 (1994). • “Yo Patak Prashan Yantrama Dachhata, Jimmebariko Bhavana Ra Anushashanko Rhash Bhayeko Payiyo” (An erosion in the administrative capacity, sense of accountability and discipline was found this time.”Ghatana Ra Bichar, May 26,1998. B) Electronic Information Resources • www.anfrel.org • Arkansas Secretary of State. Proposals to tighten verification of voter identity. http://www.sosweb. state.ar.us • Article 19. http://www.article19.org (An NGO that monitors, lobbies and ligates on behalf of freedom of expression). • Associated Press Managing Editors, Code of Ethics, 1995 http://www.asne.org/ideas/codes/apme.htm
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• Association of African Election Authorities. Charter http://www.ifes.org/afrassoc1/afrassoc/index.htm • Association of Asian Election Authorities. http://www.ifes.org/AsiaAssocSite/a_asia_ea/s_gray.htm • Australia. Code of Conduct for Public Employees in Southern Australia http://www.transparency.org/ documents/source-book/c/cvC/c3.html • Australian Electoral Commission. Http://www.aec.gov.au • www.cartercentre.org • Connolly, Stephen and Bruce Hatch, Election Procurement, Open and Free 1999. Http://Www. electionbuyersguide.org/procurement.html • Context and Objectives of UN Electoral Assistance, Department of Political Affairs, Electoral Assistance Division. http://www.un.org/Depts/dpa/ead/website5.htm • Center for Civic Education: CIVITAS, A Framework for Civic Education, http://www.civnet.org/ resources/teach/basic/civitas/exe.htm • Campaigning in Democratic Elections, Code of Conduct for Political Parties, http://www.idea.int/ publications/conduct/polparties.pdf • www.electioncommission.gov.np • Electoral Commission of India. Site contains factual information, policy guidelines and handbooks for the Indian Elections. http://www.eci.gov.in • Guidelines for Election Broadcasting in Transitional Democracies. 1994 http://www.article19.org • Guidelines for Determining Involvement in International Electoral Observation. http://www.idea.int/ publications/guidelines_for_determining.pdf • Gray, Bill. Conducting a Non-Partisan Civic Education Program, Australian Elections Commission. Paper reprinted at the Association of Asian Election Authorities site: http://www.ifes.org/AsiaAssocSite/a_ asia_ea/s_gray.htm • Grolier Online. Women’s Suffrage, 1996 http://gi.grolier.com/presidents/ea/side/wsffrg.html • Handbook for Electoral System Design, http://www.idea.int/publications/system-design.html • International Institute for Democracy and Electoral Assistance. Code of Conduct for the Ethical and Professional Administration of Elections. http://www.idea.int/publications/conduct/admin/intro.htm • International Covenant on Civil and Political Rights. http://www.amnesty.org/ • International Foundation for Electoral Systems. Http://www.ifes.org • International Republican Institute. Http://www.iri.org • Lessons Learned and Challenges Facing International Election Monitoring, 1999 http://www.ndi.org/ ndi/programs/electionprocesses/publications/electionlessons.htm • Maabong, Regaldo. New Technologies of Modernization in Electoral Administration. The Philippine Experience. http://www.ifes.org/AsiaAssocSite/a_asia_ea/s_maam.htm • Mishra, Dr. Birenda Prasad, Campaign Finance and Disclosure in Nepal http://www.ifes.org/ AsiaAssocSite/a_asia_ea/s_mishra.htm • NAMFREL. (Philippines) Monitoring NGO. List of what to watch out for during voting. http://www. kababaihan.org/wewatch98/fraud/fraud-tips.htm • National Democratic Institute, http://www.ndi.org • ODIHR, The ODIHR Election Observation Handbook, http://www.osce.org/odihr/election/hanbook/ index.htm. • Resolution Adopted by the General Assembly on the Role of the UN in Enhancing the Effectiveness of the Principles of Periodic and Genuine Elections and the Promotion of Democracy, http://www. un.org/depts/dpa/ead/2res96.htm • Society of Professional Journalists, Code of Ethics, 1999 http://spj.org/ethics/code.htm • South Africa Electoral Institute. http://www.eisa.org.za
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Annexes
Annex- 1
The Interim Constitution of Nepal : Part 7 Constituent Assembly
63. Formation of the Constituent Assembly: (1 A Constituent Assembly shall be constituted to formulate a new Constitution by the Nepalese people themselves, subject to the provisions of this Constitution. (2) The election of the Constituent Assembly shall be held on a date to be specified by the Government of Nepal after the commencement of this Constitution1 (3) In accordance with the law, there will be the following members of the CA, either elected according to the mixed electoral system, taking account of the equality of population, geographical convenience and special characteristics, (and in the case of Madhesh on the basis of percentage of the population)2 or, nominated: (a) One member elected, under the first-past-the-post system, from each geographical constituency, the number of such constituencies being determined by the Constituency Delimitation Commission under Article 154(a), based on the national census preceding the Constituent Assembly elections, and as far as possible maintaining the same relationship between number of members and population for all the administrative districts, while retaining the same administrative districts as hitherto.3 (b) A number of members, equal to the number elected under sub- clause (a), elected according to the proportional representation system, voting being for political parties, and considering the whole country as a single constituency. (c) Seventeen members nominated by the Council of Ministers on the basis of consensus from among distinguished personalities who have made significant contributions to national life.
4(3a). Notwithstanding anything contained in Sub-clause (a), while determining the number of constituencies according to this Clause, the number of constituencies in each administrative district prescribed by the laws prevailing during the elections for the then House of Representatives in 2056 (1999), shall not be reduced, but the number of constituencies in the hilly and mountainous areas shall be increased on the basis of percentage of population growth, and, then in determining the constituencies in Madhesh, the number of constituencies in the administrative districts in Madhesh shall be increased in order to ensure that those constituencies are in proportion to the percentage of population. (4) The principle of inclusiveness shall be taken into consideration by political parties while selecting candidates pursuant to sub-clause (a) of clause (3), and, while making the lists of the candidates pursuant to sub-clause (b), the political parties shall ensure the proportional representation of women, Dalits, oppressed community/ indigenous groups, backward regions, Madhesi and other groups, in accordance with the law. (5) Notwithstanding anything in clause 4, a minimum of one-third of the total number of candidates nominated shall be women, taking together the number of candidates on the basis of proportional representation pursuant to sub-clause (b) of clause (3) and the number of candidates pursuant to sub-clause (a) of the clause. (6) The election of the members of the Constituent Assembly shall be held through secret ballot, as provided for in the law. (7) For the purpose of election to the Constituent Assembly, every Nepali citizen who has attained the age of eighteen years by the end of Mangshir, 2063 (15th December 2006) shall be entitled to vote, as provided for in the law. (8) Subject to the provisions of this Article, elections to the Constituent Assembly and other matters pertaining thereto shall be regulated as provided for in the law.
1 Revised on 2063 Chaitra 30 (April 13, 2007) by the Interim Constitution of Nepal (First Amendment), 2063. As originally passed it read: 2 The brackets are not in the original but make it clearer that the point about Madhesh is something additional to the rest that applies to the whole country 3 This is not quite a literal translation, but we believe it reflects the meaning of the very complex Nepali original. 4 Added on 2063 Chaitra 30 (April 13, 2007) by the Interim Constitution of Nepal (First Amendment), 2063.
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64. Term of the Constituent Assembly: Unless otherwise dissolved earlier by a resolution passed by the Constituent Assembly, the term of the Constituent Assembly shall be two years from the date of its first meeting. Provided that the term of the Constituent Assembly may be extended for up to six months by a resolution of the Constituent Assembly, in the event that the task of drafting the Constitution is not completed due to the proclamation of a State of Emergency in the country.
65. Qualifications of the Members: In order to be a member of Constituent Assembly a person must have the following qualifications: (a) be a Nepali citizen, (b) have attained at least twenty-five years of age, (c) not have been punished for any criminal offence involving moral turpitude, 5(c1) not be ineligible under any law (d) not be holding an office of profit. Explanation: For the purpose of this sub-clause (d), “office of profit” means any position, other than a political position, filled by election or nomination for which remuneration or economic benefit is paid out of a Government Fund.
66. Decision about Disqualification of Members : If a question arises as to whether any member of the Constituent Assembly is disqualified or has ceased to possess any of the qualifications pursuant to Article 65, the final decision shall be made by the Constituent Assembly Court.
67. Vacation of Seat of the Member: The seat of a member of the Constituent Assembly shall be deemed to be vacant in the following circumstances: (a) If he/she resigns in writing, (b) If he/she does not, or has ceased to, possess the qualifications pursuant to in Article 65, (c) If he/she, remains absent in ten consecutive meetings without notification to the constituent Assembly, (d) If the party of which he/she was a member when elected provides notification in the manner set forth by law that he/she has left the party, or notifies that he/she no longer holds the membership of the party , (e) If he/she dies. Explanation: The provision contained in sub-clause (d) shall not be applicable to the Chairperson or Vice Chairperson of the Constituent Assembly.
68. Oath of Members: Every member of the Constituent Assembly shall take the oath as provided for in the law before taking part for the first time in a meeting of that Assembly or any meeting of its committee
69. Meeting of the Constituent Assembly: (1) The first meeting of the Constituent Assembly shall be held, as summoned by the Prime Minister, within twenty- one days after the final results of the election of members of the Constituent Assembly has been made public by the election commission, and the subsequent meetings shall be held on such a date and place as prescribed by the person presiding over the Constituent Assembly. (2) Notwithstanding anything contained in clause (1), if one-fourth of the members of the Constituent Assembly make an application, with reasons, to the Chairperson of the Constituent Assembly stating that it is appropriate to convene a meeting of the Constituent Assembly, the Chairperson shall convene such meeting within fifteen days. 70. Procedure for Passing a Bill Relating to the Constitution: (1) The Constituent Assembly shall, in order to pass a Bill relating to the Constitution, vote on the Preamble and each Article of such a Bill introduced before it. (2) To vote according to clause (1), at least two-thirds of the total members of the Constituent Assembly must be present and must pass the motion unanimously.
5 Added on 2064 Jestha 30 (June 13, 2007) by the Interim Constitution of Nepal (Second Amendment), 2064.
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(3) If a unanimous decision pursuant to clause (2) above, regarding the Preamble or any Article of the Bill relating to the Constitution is not reached the leaders of the Parliamentary Party of the political parties represented in the Constituent Assembly shall consult each other to achieve consensus in such matters. (4) The consultation to be carried out pursuant to clause (3), must be completed within a maximum of fifteen days from the date on which the unanimous decision could not be reached. (5) If consultation is carried out pursuant to clause (4), fresh voting on the Preamble or any Article of such Bill shall be carried out within seven days from the date of the completion of such consultation. (6) If a unanimous decision is not reached as provided in clause (2) even after carrying out the voting pursuant to clause (5), there shall be a further vote on such Preamble or Article on which a unanimous decision could not be reached, and if at least two-thirds of the total members of the Constituent Assembly for the time being were present in the meeting, and at least two-thirds of the members present voted in favour, such Preamble or Article shall be deemed to have been passed. (7) For the purpose of this Article a decision made during voting on the Preamble or any Article of the Bill relating to the Constitution introduced in the Constituent Assembly shall be deemed to be unanimous if none of the members voted against the Preamble or Article that is the subject of the vote
71. Chairperson and Vice Chairperson of the Constituent Assembly: (1) The Constituent Assembly shall elect a Chairperson and a Vice Chairperson from among its members before the commencement of its work of formulating the Constitution. (2) In the elections pursuant to clause (1) the Chairperson and Vice Chairperson shall be from different political parties represented in the Constituent Assembly. (3) If the election of the Chairperson and Vice Chairperson has not taken place pursuant to clause (1), the senior- most member of the Constituent Assembly by age shall preside over the meeting of the Assembly. (4) The Chairperson and Vice Chairperson shall act as neutral persons and not favour any political party or parties while performing their duties in accordance with this Constitution.
72. Vacation of the Office of Chairperson and Vice Chairperson: (1) The office of the Chairperson and Vice Chairperson shall become vacant in the following circumstances: a) if he/she submits a written resignation, b) if he/she ceases to be a member of the Constituent Assembly, c) if a resolution is passed by a majority of at least two-thirds of the total number of the members in the Constituent Assembly to the effect that his or her conduct is not compatible with his or her position, or d) if he/she dies.
(2) The Vice Chairperson or any other member shall preside over a meeting at which deliberations are to be held on a resolution that the conduct of the Chairperson of the Constituent Assembly is not compatible with his/her position, and the Chairperson can take part and vote in the deliberations on such a resolution.
73. Quorum: Except as otherwise provided in this Part, no quorum shall deemed to be achieved and no question or resolution shall be presented for decision unless at least one- fourth of the total number of members are present.
74. Transaction of Business of the Constituent Assembly in the case of vacancy of Members: The Constituent Assembly may conduct its proceedings notwithstanding any vacancies in its membership, and no proceedings shall become invalid even if it is subsequently found that a person not entitled to take part in the proceedings participated.
75. Voting: Except as otherwise provided in this Part, all questions submitted for decision in the Constituent Assembly shall be decided by a majority vote of the members present and voting. Normally the member presiding shall not have the right to vote. Provided that in case of a tie, he/she may exercise a casting vote.
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76. Penalty for Unauthorized Presence or Voting: If a person is present or votes in the meetings of Constituent Assembly or any of its committees as a member without taking an oath pursuant to Article 67, or knowing that he/she is not qualified for membership of the Constituent Assembly, he/she shall, on the ruling of the person chairing the meeting, be liable to a fine of five thousand rupees for every such presence or voting. The fine shall be recovered as government dues.
77. Privileges: (1) There shall be full freedom of speech in the meetings of the Constituent Assembly and no member shall be arrested, detained or prosecuted in any court for anything expressed or for any vote cast in such a meeting. (2) The meeting of Constituent Assembly shall have full power to regulate its internal business, and it shall have the exclusive right to decide whether any proceeding of the Constituent Assembly is regular or not. No question shall be raised in any court in this regard. (3) No comment shall be made about the good faith of any proceedings of the Legislature-Parliament, and no person shall, when broadcasting or publishing anything about comments or suggestions made by any member, deliberately wrongfully interpret or distort their meaning. (4) No proceedings shall be initiated against any person in any court for publishing any document, report, vote or proceeding which is carried out under the authority given by the Constituent Assembly. Explanation: The words “Constituent Assembly” shall mean the meeting of the Constituent Assembly or any of its committees for the purposes of clauses (1), (2), (3) and (4). (5) No member of the Constituent Assembly shall be arrested during the session of the Constituent Assembly. Provided that nothing in this clause shall be deemed to prevent the arrest under any law of any member on a criminal charge. If any member is so arrested, the official making such arrest shall immediately inform the person chairing the Constituent Assembly. (6) Any breach of privilege stated in this Article shall be deemed to constitute contempt of the Constituent Assembly and the breach of privilege of Constituent Assembly shall be considered as the contempt of the Constituent Assembly. The Constituent Assembly shall have the exclusive right to decide whether or not any breach of privilege has taken place. (7) If a person is in contempt of the Constituent Assembly, the person who is chairing the meeting to that effect may, after a decision by the meeting, admonish, warn, or impose a sentence of imprisonment not exceeding three months or impose a fine of up to ten thousand rupees on, such a person. If the fine is not paid by such a person, it shall be recovered as government dues. Provided that if the person so accused submits an apology to the satisfaction of the Constituent Assembly, it may either pardon him/her or remit or commute the sentence imposed on him/her. (8) Other matters relating to privileges not mentioned in this Constitution shall be as determined by law.
78. Procedure Relating to the Conduct of Business: The Constituent Assembly shall, subject to the provisions of this Constitution, frame rules for conducting its business, maintaining order during its meetings and regulating the constitution, functions, procedures and any other matters relating to its committees. Until such time as rules are made, the Constituent Assembly shall establish its own rules of procedures.
79. Committee: There shall be Committees and Sub-Committees in the Constituent Assembly as provided for in the law. Services of experts may be obtained as required.
80. Secretariat of the Constituent Assembly: (1) There shall be a secretariat to conduct the business of the Constituent Assembly. The establishment of the Secretariat and other matters related thereto shall be as determined by law. (2) The Government of Nepal shall make available the necessary personnel required to conduct and manage the business of the Constituent Assembly.
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81. Remuneration: The remuneration and privileges of the Chairperson, Vice Chairperson, Members and the Chairperson of the Committees of the Constituent Assembly shall be as provided for in the law, and, until so provided, shall be as determined by the Government of Nepal.
82. Dissolution of the Constituent Assembly: On the day of the commencement of the Constitution promulgated by the Constituent Assembly, the task given to the Constituent Assembly shall come to an end.
Provided that until the election of the Legislature-Parliament held in accordance with the Constitution promulgated by the Constituent Assembly, the proceedings of the Legislature-Parliament shall be conducted as specified in the Constitution promulgated by the Constituent Assembly.
83. Acting in the Capacity of the Legislature-Parliament: (1) Notwithstanding anything contained elsewhere in this Part, the Constituent Assembly shall also act as Legislature-Parliament as long as the Constituent Assembly remains in existence, and the Constituent Assembly may constitute a separate committee to conduct necessary regular legislative functions. (2) The Chairperson and Vice Chairperson of the Constituent Assembly shall be respectively the Speaker and Deputy Speaker of the Legislature-Parliament. (3) The Secretariat of the Constituent Assembly and its personnel shall also be the Secretariat and its personnel of the Legislature-Parliament. (4) When the Constituent Assembly is acting in the capacity of the Legislature- Parliament, the provisions contained in Part 8, with necessary modifications, shall be applicable to the Assembly.
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Annex: 2 The Act Relating to Electoral Rolls, 2063 (2006) Date of Certification 2063.9.14 (Dec. 29, 2006) Act No. 32 of the Year 2063 (2007) An Act Made to Amend and Consolidate Laws Relating to Electoral Rolls
Preamble: Whereas, it is expedient to amend and consolidate the laws relating to Electoral Rolls for the election to be held pursuant to the laws in force; Now, therefore, be it enacted by the House of Representatives in the First Year of the Proclamation of the House of Representatives, 2063 (2006).
Chapter -1 Preliminary
1. Short title and commencement: (1) This Act may be cited as “the Act relating to Electoral Rolls, 2063 (2006)”. (2) This Act shall come into force forthwith.
2. Definitions: Unless the subject or the context otherwise requires, in this Act, - 1 (a) “Commission” means the Election Commission. (b) “Election” means the election to the members of the Constituent Assembly or such other election as to be held pursuant to laws, and this expression also includes bye-election. (c) “Election constituency” means any election constituency prescribed by the laws in force for election. (d) “District Election Officer” means the Chief of the District Election Office. (e) “Name Registration Officer” means the Chief Name Registration Officer appointed or designated pursuant to Section 4 and this expression also includes the Name Registration Officer and Assistant Name Registration Officer. (f) “Voter” means a voter whose name has been registered in the Electoral Rolls pursuant to Section 5, (g) “Electoral Rolls” means the Electoral Rolls prepared pursuant to this Act. (h) “Temporary Electoral Rolls” means the temporary Electoral Rolls prepared pursuant to Section 26, (i) “Prescribed” or “as prescribed” means prescribed or as prescribed in this Act or the rules framed under this Act. 2
Chapter - 2 Voters and Electoral Rolls 3. To collect and update Electoral Rolls: (1) The Commission shall, under its direct inspection, control, supervision and direction, carry out the act of collection and updating of the Electoral Rolls of the voters in the Wards of the Village Development Committees and Municipalities of every election constituency as prescribed. (2) While collecting or updating the Electoral Rolls pursuant to sub-section (1), the then Electoral Rolls shall be published in the concerned Ward of the concerned Village Development Committee or the Municipality. (3) While collecting or updating the Electoral Rolls pursuant to sub-section (1), the Commission shall publish a notice on the matter pertaining to program of the same in the Nepal Gazette for information of the general public. (4) While collecting or updating the Electoral Rolls pursuant to sub-section (1), the Commission may fix the time in a manner that such collection or updating shall be made at the same time or at several times or at one time or at different times.
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Provided that while collecting or updating the Electoral Rolls of one Village Development Committee or one particular Ward of a Municipality, it shall be done at the same time.
4. Name Registration Officer: (1) The Commission may appoint or designate one Chief Name Registration Officer and Name Registration Officer and Assistant Name Registration Officer as required in each district to collect names and other necessary details of voters, to prepare and update Electoral Rolls and carry out all other acts as required in that respect. (2) The Commission may depute or engage a required number of employees of the Government of Nepal or of the bodies owned or controlled by, or operated with the grants of, the Government of Nepal or of the Local Bodies and teachers of community schools in work so as to assist the Name Registration Officer in the performance of the functions as referred to in sub-section (1). (3) The Commission may assign District Election Officer to perform the functions required to be performed by the Chief Name Registration Officer pursuant to this Act. (4) The Office of the Name Registration Officer shall be located at the concerned Ward of the concerned Municipality or at the Office of the concerned Village Development Committee, as the case may be.
5. Voters: (1) The following person shall be eligible to be voters in an election: (a) Nepalese citizen; (b) Who has completed the age of 18 years on or before the last day of the month of Chaitra (13 April) of the year immediately preceding the year in which Electoral Rolls are collected; Provided that in the case of the Election to the Members of the Constituent Assembly, one who has completed 18 years of age on or before the last day of Mangshir of the year 2063 (Dec. 15, 2006), (c) Who has permanent residence in the concerned Ward of any Village Development Committee or Municipality in any election constituency. (2) The name of a voter as referred to in sub-section (1) shall be included in the Electoral Rolls of the election constituency where the voter is permanently residing, and the name of the person so included shall be considered to be registered in the Electoral Rolls.
6. To cast vote: Any person whose name has been registered in the Electoral Rolls pursuant to Section 5 may cast a vote in election. Provided that any of the following voters shall not be entitled to cast vote: (a) a person of unsound mind, (b) a person who, having been sentenced to imprisonment pursuant to the laws in force relating to election offences and punishment, is serving such sentence or where a person has been sentenced to imprisonment for a term of one year or more than one year, a period of one year has not lapsed from the date of completion of the service of such punishment.
7. Deemed to be residing permanently: (1) For the purposes of part (c) of sub-section (1) of Section 5, a person who is habitually residing in the concerned Ward of a Village Development Committee or a Municipality shall be deemed to have permanently resided there. (2) Notwithstanding anything contained in sub-section (1), a residence in any of the following situations shall also be deemed to have resided permanently: (a) Situation where a person, whose name is registered in the Electoral Rolls of a Ward of a Village Development Committee or Municipality in an election constituency and who has been elected as a people’s representative, remains absent from the election constituency during his or her tenure; (b) Situation where a person remains absent from a Ward of a Village Development Committee or Municipality in an election constituency where his or her name has been registered, owing to trade, business, study, teaching, governmental or non- governmental service, medical treatment or any other special work or reason or owing to being detained or imprisoned according to the law.
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8. Persons not be deemed as residing permanently: For the purposes of part (c) of sub-section (1) of Section 5, the persons in the following situations shall not be deemed to have resided permanently in the concerned Ward of a Village Development Committee or Municipality in the concerned election constituency: (a) Where a house belonging to any one is rented for the purpose of operating any industry, trade or business or keeping an office, the tenant of the house and his or her family on that mere ground; (b) Employees serving in offices of governmental, semi- governmental and non-governmental organizations, and quarters made for the employees of such organizations, army or police barracks, cantonments and quarters, industrial enterprises, residential quarters for employees and workers working in such enterprises and persons taking shelter in hospitals, clinics, nursing homes, schools, colleges and hostels, orphanages, homes for elderly people, prisons and similar other places.
9. Registration of voters of another election constituency: (1) Where a voter whose name has been registered in the Electoral Rolls of any Ward of a Village Development Committee or Municipality of an election constituency has migrated, because of marital or other reason, to any Ward of a Village Development Committee or Municipality in another election constituency and resided there, the name of such person may be registered in the concerned Ward of the Village Development Committee or Municipality of the election constituency where he or she has been so residing. (2) While getting registered his or her name pursuant to sub- section (1), such person shall submit evidence proving the marriage or migration to the Name Registration Officer. (3) In the event of failure to submit the evidence referred to in sub-section (2), the name of such person shall not be registered.
10. Prohibition on registration of name in two places: Except in the situation mentioned in Chapter 3, no person shall register or get registered his or her name in the Electoral Rolls of the concerned Ward of a Village Development Committee or Municipality in more than one election constituency. 11. Seeking evidence for registration of name: (1) Where it is so required, while registering the name of a person in the Electoral Rolls pursuant to this Act, the Name Registration Officer may ask the concerned person or his or her family to submit the citizenship certificate, land ownership certificate or any identity card issued by a government office, local body, government owned organization or educational institute, setting out his or her date of birth or age or place of his or her residence. (2) In the event of failure to submit the evidence sought pursuant to sub-section (1), the Name Registration Officer may ask such person to submit a recommendation of the concerned Ward of the concerned Village Development Committee or Municipality. (3) The name of a person who fails to submit even the recommendation referred to in sub-section (2) shall not be registered in the Electoral Rolls. Provided that nothing shall be deemed to bar the registering of the name of a citizen of Nepal in the Electoral Rolls merely by the reason of his or her failure to submit the Nepalese citizenship certificate.
12. Duty to register name and provide details: (1) It shall be the duty of each Nepalese citizen who has possessed the qualification for being a voter pursuant to this Act to get his or her name registered in the Electoral Rolls of the concerned Ward of the Village Development Committee or Municipality in the election constituency where he or she has been residing permanently. (2) It shall be the duty of the main person or other members of the concerned family to provide the details of each voter residing in each house to the name Enumerator for the purposes of collecting the names pursuant to this Act.
13. Publication of Electoral Rolls: The Name Registration Officer shall publish the collected and updated Electoral Rolls pursuant to sub-section (1) of Section 3 in the Office of the concerned Ward of the concerned Village Development Committee or Municipality within the time as fixed by the Commission.
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14. Application for inclusion of name: Where the name of any person is omitted from the Electoral Rolls published pursuant to sub-section (2) of Section 3 or Section 13, and where such person desires to get his or her name included therein, he or she may make an application, along with the evidence, to the Name Registration Officer in the time as fixed by the Commission.
15. Application for correction of name or details: Where there is any error in the name or details of any voter included in the Electoral Rolls published pursuant to sub-section (2) of Section 3 or Section 13, the concerned voter or any of his or her family members may make an application to the concerned Name Registration Officer for the correction of the same within the time as fixed by the Commission.
16. Publication of amended Electoral Rolls: Where any application is made pursuant to Section 14 or Section 15, the Name Registration Officer shall inquire into such application as prescribed and where he or she finds that the name of the applicant has been omitted from the Electoral Rolls or there is any error in the details, he or she shall prepare the amended Electoral Rolls as prescribed by including the name of such voter or correcting the details as prescribed and publish the same within the time as fixed by the Commission.
17. Objection to Electoral Rolls: (1) Where any voter of the same election constituency of the concerned Ward of the Village Development Committee or Municipality considers that the name of any person cannot be included under this Act in the Electoral Rolls published pursuant to sub-section (2) of Section 3, Section 13 or Section 16, such voter may make an application objecting thereto, accompanied by the reason for such objection, to the Name Registration Officer within the time as fixed by the Commission. (2) Where an application is received pursuant to sub-section (1), the Name Registration Officer may, where the matter is found reasonable upon making inquiry into the matter as prescribed, remove the name of such person from the Electoral Rolls.
18. To give information for removal of repeated name: (1) In cases where the name of a voter has been registered in the Electoral Rolls of the concerned Ward of the Village Development Committee or Municipality within one or more than one election constituency, it shall be the duty of the concerned voter to give information to the Assistant Name Registration Officer, where it is within the concerned Ward of the Village Development or Municipality, to the Chief Name Registration Officer of the concerned district, where it is within the district, and to the Commission by himself or herself or through the Name Registration Officer, where it involves more than one district, to maintain his or her name only in the Electoral Rolls of the Ward of the Village Development Committee or Municipality in one election constituency of his or her choice and remove his or her name from the Electoral Rolls of the Ward of the Village Development Committee or Municipality in another election constituency. (2) Notwithstanding anything contained in sub-section (1), where the name of any voter has been registered in the Electoral Rolls of the concerned Ward of the Village Development Committee or the Municipality within one or more than one election constituency, any voter of the concerned Ward of the same Village Development Committee or Municipality shall make an application as prescribed, accompanied by the reason for the same, to the Name Registration Officer to remove the repetition of name and maintain his or her name only in one electoral roll.
19. Removal of repeated name: (1) Where information is given for the removal of a name from the Electoral Rolls pursuant to Section 18, such repeated name shall be removed by the Assistant Name Registration Officer, in the case of repetition of name in any Village Development Committee or Municipality, by the concerned Chief Name Registration Officer, in the case of repetition of name within the district of any Village Development Committees or Municipalities, and by the Chief Name Registration Officer designated by the Commission, in the case of repetition of name in the Electoral Rolls of more than one district.
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(2) Even though no application is made pursuant to Section 18, where the Commission receives information that the name of any voter has been repeated, the Commission may order the concerned Name Registration Officer to maintain the name of such voter in the Electoral Rolls of the concerned Ward of the Village Development Committee or Municipality where he or she is permanently residing, by removing his or her name from the Electoral Rolls of the Ward of other Village Development Committee or Municipality; and where the Name Registration Officer himself or herself, the name of such voter shall be removed from the Electoral Rolls of the Ward of the Village Development Committee or Municipality, other than the Ward of the Village Development Committee or Municipality where he or she resides permanently, by the Assistant Name Registration Officer, in the case of repetition of name within Wards of any Village Development Committee or Municipality and by the concerned Chief Name Registration Officer, in the case of repetition of name within any Village Development Committees or Municipalities within the district. (3) Where an application is made pursuant to sub-section (2) of Section 18, the Name Registration Officer shall, upon making necessary inquiry into the matter, maintain only one by removing the repeated name as prescribed. (4) Where the repeated name is removed pursuant to this Section, the Name Registration Officer shall post a notice thereof at the concerned Ward Office of the concerned Village Development Committee or Municipality.
20. Removal of name from the Electoral Rolls: (1) Where a voter whose name is included in the Electoral Rolls dies or migrated permanently from the concerned election constituency or renounces the citizenship of Nepalese or ceases to possess the qualification for maintaining his or her name in the Electoral Rolls, any voter may give a notice indicating that matter to the Name Registration Officer within the time as fixed by the Commission. (2) Where, while inquiring into the matter as prescribed, upon receipt of the notice referred to in sub-section (1), such matter appears to be reasonable, the name of that voter shall be removed from the Electoral Rolls, as prescribed. (3) Even though any notice is not received pursuant to sub- section (1), where it appears from the records of the Local Registrar’s Office that any voter has migrated to elsewhere because of marriage or any other reason or has died, the Name Registration Officer may remove the name of such voter from the Electoral Rolls. (4) Where a name is removed from the Electoral Rolls pursuant to this Section, the Name Registration Officer shall post a notice thereof at the concerned Ward Office of the concerned Village Development Committee or Municipality.
21. Publication of final Electoral Rolls: (1) After completing the process of making claim, objection, holding inquires and making amendment pursuant to this Chapter, the Name Registration Officer shall prepare the final Electoral Rolls of the concerned election constituency and publish the same as prescribed within the time as fixed by the Commission. (2) While publishing the Electoral Rolls pursuant to sub- section (1), the names of one family shall, to the extent possible, be published together at the same place. (3) The Name Registration Officer shall send the final Electoral Rolls published pursuant to sub-section (1) to the Commission within the time as fixed by the Commission.
22. Review of Electoral Rolls: (1) The Commission may review the final Electoral Rolls that it has received pursuant to sub-section (3) of Section 21 within thirty-five days after the receipt of such rolls. (2) Where, in reviewing the final Electoral Rolls pursuant to sub-section (1), it appears that there is any substantial error in such Electoral Rolls, the Commission may give necessary direction to the concerned Name Registration Officer to correct such error; and where such direction has been given, the concerned Name Registration Officer shall make necessary rectification in the Electoral Rolls as per the direction. Explanation: For the purposes of this sub-section, “substantial error” means such a situation as may give rise to a question about the validity of the Electoral Rolls owing to the fact that the names of the persons whose names have to be included in the Electoral Rolls pursuant to this Act have not been included therein or the name of the persons whose names have not to be included in the Electoral Rolls have been included therein. (3) The Electoral Rolls rectified pursuant to sub-section (2) shall be published, after completing the procedures as referred to in this Act.
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23. Special provision on inclusion of name: (1) Notwithstanding anything contained elsewhere in this Act, where the name of a person who possesses the qualification to become a voter pursuant to this Act, and has obtained citizenship after the publication of the Electoral Rolls pursuant to sub-section (1) of Section 21 or sub-section (3) of Section 22 is not registered in the Electoral Rolls, such person may make an application to the Chief Name Registration Officer within the period fixed by the Commission, for the inclusion of his or her name in the Electoral Rolls. (2) Where an application referred to in sub-section (1) is received, the Chief Name Registration Officer shall make necessary inquiry into the matter include the name of such person in the Electoral Rolls, by fulfilling the procedures as prescribed.
24. Prohibition on making alteration or change in final Electoral Rolls: No alteration, change or correction of any kind shall be made in the final Electoral Rolls published pursuant to sub- section (1) of Section 21 other than the condition as set forth in Section 22 and 23.
25. Not to raise question in court: No question may be raised in any court about the following matters: (a) As to whether or not the name of any person has been registered in, or may or may not be registered in, the Electoral Rolls of any election constituency; (b) As to the preparation of the Electoral Rolls by the Name Registration Officer or the authorized person deputed by him or her or the alteration made by the concerned Official in the Electoral Rolls pursuant to this Chapter.
Chapter-3 Special Provisions Relating to Temporary Electoral Rolls
26. Preparation of temporary Electoral Rolls: (1) Notwithstanding anything contained elsewhere in this Act, the Commission shall cause to be prepared separate temporary Electoral Rolls under its direct inspection, control, supervision and direction. (2) The names of the following persons shall be included in the temporary Electoral Rolls referred to in sub-section (1): (a) Employees serving in government offices, local bodies or organizations owned or controlled by the Government of Nepal; (b) Persons staying in army or police barracks or combatants of Maoist army in cantonments; (c) Prisoners or detainees in prisons; (d) Employees and security personnel deputed in election or polling centers.
27. Name not to be included in temporary Electoral Rolls: The name of a person who has not possessed the qualification referred to in clauses (a) and (b) of sub-section (1) of Section 5 shall not be included in the temporary Electoral Rolls.
28. Preparation of temporary Electoral Rolls of employees serving in government offices, local bodies or organizations owned or controlled by Government of Nepal: (1) The Name Registration Officer shall prepare or update, or perform all other necessary functions pertaining to, the temporary Electoral Rolls of the employees serving in government offices, local bodies or organizations owned or controlled by the Government of Nepal. (2) The names of the employees serving in government offices, local bodies or organizations owned or controlled by the Government of Nepal shall be included in the separate temporary Electoral Rolls of the Ward of the Village Development Committee or Municipality where the offices in which they are serving are situated. The names of the persons whose names are included in the Electoral Rolls so prepared shall be considered to be registered as temporary voters. (3) The names of the employees serving in government offices, local bodies or organizations owned or controlled by the Government of Nepal shall be registered based on the name-lists certified by the offices concerned.
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(4) Notwithstanding anything contained elsewhere in this Section, where the name of an employee serving in any office has been registered, by the reason of his or her residence, in the Electoral Rolls of the Village Development Committee or Municipality where his or her office is situated, the name of such employee shall not be registered in the temporary Electoral Rolls pursuant to this Section.
29. Preparation of temporary Electoral Rolls of persons staying in army or police barracks or combatants of Maoist army in cantonments: (1) The Name Registration Officer shall prepare or update, and perform all other necessary functions pertaining to, the temporary Electoral Rolls of the persons staying in army or police barracks or combatants of Maoist army in cantonments. (2) The names of the persons staying in army or police barracks or combatants of Maoist army in cantonments shall be included in the separate temporary Electoral Rolls of the Ward of the Village Development Committee or Municipality where the army or police barracks or cantonments are situated. The names of the persons whose names are included in the Electoral Rolls so prepared shall be considered to be registered as temporary voters. (3) The names of the persons staying in army or police barracks or combatants of Maoist army in cantonments shall be registered based on the name-lists certified by the officials responsible for the management of the concerned army or police barracks or cantonments.
30. Preparation of temporary Electoral Rolls of prisoners or detainees in prisons: (1) The Name Registration Officer shall prepare or update, and perform all other necessary functions pertaining to, the temporary Electoral Rolls of the prisoners or detainees in prisons. (2) The names of the prisoners or detainees in prisons shall be included in the separate temporary Electoral Rolls of the Ward of the Village Development Committee or Municipality where such are situated. The names of the persons whose names are included in the Electoral Rolls so prepared shall be considered to be registered as temporary voters. (3) The names of the prisoners or detainees in prisons shall be registered based on the name-lists certified by the jailer of the concerned prison.
31. Preparation of temporary Electoral Rolls of employees and security personnel deputed in election or polling centers: The Commission shall prepare the temporary Electoral Rolls of the employees and security personnel deputed in election or polling centers at the time of their deputation in polling centers and provide such rolls to the concerned polling officers.
32. Publication of and objection to temporary Electoral Rolls: (1) The Electoral Rolls collected pursuant to this Chapter shall be published in such place and time as fixed by the Commission. (2) Where the name of any person is omitted from the Electoral Rolls published pursuant to sub-section (1), and where such person desires to get his or her name included therein, he or she may make an application, along with the evidence, to the Name Registration Officer in such time as fixed by the Commission. (3) Where there is any error in the name or details of any voter included in the Electoral Rolls published pursuant to sub-section (1), the concerned voter or any of his or her family members may make an application for the correction the same within such time as fixed by the Commission. (4) Where any application is made pursuant to sub-section (2) or (3), the Name Registration Officer shall inquire into such application as prescribed and where he or she finds that the name of the applicant has been omitted from the Electoral Rolls or there is any error in the details, he or she shall prepare the amended Electoral Rolls as prescribed by including the name of such voter or correcting the details as prescribed and publish the same within such time as fixed by the Commission. (5) Where any voter considers that the name of any person cannot be included under this Chapter in the Electoral Rolls published pursuant to sub-section (1), such voter may make an application objecting thereto, accompanied by the reason for such objection, to the Name Registration Officer within such time as fixed by the Commission.
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(6) Where an application is received pursuant to sub-section (5), the Name Registration Officer may, where the matter is found reasonable upon making inquiry into the matter as prescribed, remove the name of such person from the Electoral Rolls. (7) After completing the process of making claim, objection, holding inquires and making amendment pursuant to this Chapter, the Name Registration Officer shall prepare the final Electoral Rolls of the concerned election constituency and publish the same as prescribed within such time as fixed by the Commission. (8) The Name Registration Officer shall send the final Electoral Rolls published pursuant to sub-section (7) to the Commission within such time as fixed by the Commission. (9) The Commission may review the final Electoral Rolls that it has received pursuant to sub-section (8). (10) The Electoral Rolls reviewed pursuant to sub-section (9) shall be published finally, after completing the procedures as referred to in this Act. (11) No alteration, change or correction of any kind shall be made in the final Electoral Rolls published pursuant to sub-section (10).
33. Use of temporary Electoral Rolls: (1) The temporary Electoral Rolls prepared pursuant to this Chapter shall be used only for the purpose of voting in the election for 204 seats of in the Constituent Assembly to be held on the basis of proportional election system. (2) A voter who is registered in the temporary Electoral Rolls referred to in this Chapter may, for the purpose of sub- section (1), cast vote in such polling center as designated by the Commission.
Chapter-4 Offences and Punishment
34. Offences and punishment: (1) Where one commits any of the following acts, one shall be deemed to have committed an offense referred to in this Act: (a) Getting his or her name registered in the Electoral Rolls by a person who is not a citizen of Nepal by impersonating that he or she is a citizen of Nepal; (b) While collecting the necessary details in the course of the preparation of Electoral Rolls pursuant to this Act, getting one’s name registered or making application by one for the registration of one’s name by lying one’s name, surname, address, age or other details or making objection by one by making such a lie; (c) Intentionally inserting any matter to, over writing, correcting any matter in the Electoral Rolls published pursuant to this Act or otherwise defacing, tearing or spoiling such Electoral Rolls; (d) Intimidating, threatening or luring in any manner any employee deputed for the preparation of Electoral Rolls or forcefully deviating such employee from carrying out his or her duty; (e) Divulging secrecy of those documents or details of which secrecy is required to be maintained. (2) A person who commits the offense referred to in clause (a) of sub-section (1) shall be punished with a fine not exceeding fifty thousand rupees or imprisonment for a term not exceeding six months or with both; and a person who commits any offense referred to in clauses (b), (c), (d) and (e) of sub-section (1) shall be punished with a fine not exceeding ten thousand rupees or imprisonment for a term not exceeding one month or with both. (3) A person who attempts to commit or aids or abets the commission of any offense referred to in this Act shall be punished with half the punishment to be imposed on the principal offender. (4) Notwithstanding anything contained in the laws in force, the Commission may, in accordance with the laws in force, take departmental action against any Name Registration Officer, Name Enumerator or other employee involved in election who, with ulterior motive, does not include the name of any person required to be included pursuant to this Act in the Electoral Rolls or includes the name of any person whose name has not to be included or makes any alteration or correction in the final Electoral Rolls.
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35. To be state case: Any case to be instituted under this Act shall be a state case.
36. Inquiry and investigation: The concerned District Election Officer of the concerned District shall carry out investigations and inquiries about any cases related to any offenses referred to in this Act.
Chapter-5 Miscellaneous
37. Not to affect matters relating to citizenship: By the reason only that the name of any person has been included or has not been included in the Electoral Rolls or temporary Electoral Rolls pursuant to this Act shall have no effect on any matter pertaining to his or her citizenship in accordance with the laws in force.
38. Not to be admissible as evidence for other purposes: The Electoral Rolls or temporary Electoral Rolls prepared pursuant to this Act shall not be admissible as evidence for other purposes except for the purpose of polling and except where the laws in force contain special provisions.
39. To certify as voter: Where a voter whose name is registered in the Electoral Rolls of any election constituency makes an application, as prescribed, for the certification of that matter, the Commission or the Official authorized by the Commission shall certify the same as prescribed.
40. To render assistance: It shall be the duty of all the concerned to render necessary assistance as required by the Name Registration Officer while preparing the Electoral Rolls or temporary Electoral Rolls in accordance with this Act.
41. Assisting committee: The Commission may form an Assisting Committee consisting of representatives of political parties at the local level to render assistance in collecting names and updating the Electoral Rolls or temporary Electoral Rolls in accordance with this Act.
42. Power to enforce provision relating to Voter Identity Card: (1) he commission may, by a notification in the Nepal Gazette, make provision that the voters in any such election constituency as may be specified in the same notification or all election constituencies have to obtain a voter identity card to cast vote. (2) Where provision is made pursuant to sub-section (1), the voters in such election constituency shall produce the voter identity card to cast vote. (3) Other provisions relating to the voter identity card shall be as prescribed.
43. Validity of Electoral Rolls: (1) The Electoral Rolls prepared in accordance with the laws prevailing prior to the commencement of this Act may be taken as the basis pending the preparation of Electoral Rolls in accordance with this Act. (2) Notwithstanding anything contained elsewhere in this Act, the Electoral Rolls collected or updated after the commencement of this Act shall be valid for the purposes of any election to be held pursuant to the laws in force.
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44. Power to frame rules: The Commission may frame necessary rules in order to carry out the objective of this Act.
45. Power to prepare manuals: The Commission may prepare and enforce manuals, as required, subject to this Act and rules framed under this Act.
46. Power to issue orders: (1) The Commission may issue orders, as required, for the implementation of this Act and the rules and manuals made under this Act. (2) It shall be the duty of all the concerned to abide by the orders issued pursuant to sub-section (1).
47. Repeal and saving: (1) The Act relating to Electoral Rolls, 2052 (1995) is hereby repealed. (2) All acts and actions done and taken under the Act relating to Electoral Rolls, 2052 (1995) shall be deemed to have been done and taken under this Act.
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Annex: 3 A Bill Made to Amend and Consolidate Laws relating to Functions, Duties and Powers of the Election Commission
Certification date: 2063/12/12(March 26, 2007) An Act No. 1 of the Year 2063 (2007) enacted by the Legislative -Parliament
Preamble: Whereas, it is expedient to amend and consolidate laws relating to the functions, duties and powers of the Election Commission; The Legislative-Parliament has enacted this Act.
Chapter-1 Preliminary
1. Short title and commencement: (1) This Act may be cited as the “Election Commission Act, 2063 (2007)”. (2) This Act shall come into force at once.
2. Definitions: Unless the subject or the context otherwise requires, in this Act,- (a) “Constitution” means the Interim Constitution of Nepal, 2063 (2007); (b) “Commission” means the Election Commission referred to in Article 128 of the Constitution; (c) ”Commissioner” means an Election Commissioner of the Commission, and this expression also includes the Chief Election Commissioner; (d) “Election” means an election to the members of the Constituent Assembly to be constituted pursuant to Article 63 of the Constitution or such other elections as to be held by the Commission pursuant to the laws in force, and this expression also includes by-elections; (e) ”Voter” means a person whose name is registered in the Electoral Rolls pursuant to the laws in force; (f) ”Returning Officer” mans the Chief Returning Officer or Returning Officer appointed by the Commission, and this expression also includes the Assistant Returning Officer; (g) ”Political party” means a political party registered for the purpose of election pursuant to Article 142 of the Constitution; (h) ”Prescribed” or “as prescribed” means prescribed or as prescribed in the rules framed under this Act or in the order issued by the Commission by a notification in the Nepal Gazette.
Chapter- 2 Functions, Duties and Powers of Commission
3. Establishment of Central Secretariat and Local Offices of Commission: (1) There shall be a Secretariat of the Commission at the central level for the functions to be carried out by the Commission. (2) The Commission may, as per necessity, establish its offices at the local level for the functions to be carried out by the Commission.
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4. Meeting and decision of Commission: (1) All functions required to be carried out by the Commission pursuant to the Constitution and the laws in force shall be carried out by the Chief Election Commissioner in the case where he or she alone exist in the Commission and by a decision of a meeting of Commissioners where they also exist. (2) The Secretary at the Commission shall duly maintain the records of the decisions of the Commission. (3) The Secretary at the Commission shall authenticate, and implement, or cause to be implemented, the decisions of the Commission. (4) The rules of procedures on the meeting of the Commission shall be as determined by the Commission.
5. Provisions relating to employees: (1) The Commission may create such positions of Chief Name Registration Officer, Name Registration Officer, Assistant Name Registration Officer and Electoral Rolls Enumerator for the preparation of voters lists, such positions of Chief Returning Officer, Returning Officer, Assistant Returning Officer, Polling Officer and Assistant Polling Officer for any act of election as deemed necessary and may appoint or designate other positions in such number as may be required. (2 )The Commission may depute or engage any employees of the Government of Nepal or of institutions owned or controlled by, or operated with the grants of, Government of Nepal or of Local Authorities or any teachers of community schools in any electoral acts. (3) Any employee engaged in any act of election pursuant to sub-section (1) or (2) shall be deemed to be an employee of the Commission until the completion of the act of election; and notwithstanding anything contained in the laws in force, no competent authority shall, without the consent of the Commission, do anything adversely affecting the terms and conditions of service of such employee or disallow such employee to carry out the functions of the Commission or transfer him or her.
6. Power to seek assistance: (1) The Commission may make direct contact with any Ministry, Department or Office of the Government of Nepal or any Constitutional Body or any body owned or controlled by, or operated with the grants of, the Government of Nepal or any Local Authority and seek any kind of assistance from such body or authority for act of election. (2) The Commission may seek necessary assistance from any private or public body or organization for act of election or get any act of election performed by such body or organization. (3) The concerned body or organization or authority shall have the duty to prove the assistance as sought by the Commission pursuant to sub- section (1) or (2).
7. Monitoring: (1) The Commission may form teams, as prescribed, consisting of officials or employees of the Commission, employees of the Government of Nepal or experts, and monitor, or cause to be monitored, any polling related to election or vote counting or any other acts and actions pertaining to act of election. (2) In forming a team pursuant to sub-section (1), the Commission shall, based on the prescribed grounds, determine, inter alia, the election constituency to be monitored, procedures to be followed in monitoring and the time within which such team has to complete monitoring.
8. Permission for observation: (1) The Commission may give permission, based on experience in this field, reliability and the prescribed grounds, to any native or foreign person or organization to observe any polling related to election or vote counting or any other acts and actions pertaining to act of election. (2) Any person or organization who has obtained permission pursuant to sub-section (1) shall make observation by fulfilling the procedures specified by the Commission for monitoring; and the Commission may cancel the permission of any person or organization who makes observation without fulfilling such procedures. (3) Every person or organization who has obtained permission pursuant to sub-section (1) shall, on completion of the monitoring, submit a report thereof to the Commission. (4) Every native or foreign person or organization having obtained permission for observation pursuant to this Section shall, in making observation, observe the code of conduct made by the Commission.
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9. Power to use physical facilities: (1) The Commission may, as per necessity, and by giving a prior notice, obtain and use any land, building, conveyance, furniture or any other physical means and facilities belonging to the Government of Nepal or any body or organization owned or controlled by the Government of Nepal or Local Authority, for the purpose of carrying out act of election. (2) The Commission may, as per necessity, and by giving a prior notice, obtain and use any land, building, furniture or any other physical means and facilities belonging to any public organization or body or public or private school or college, for the purpose of carrying out act of election. (3) The Commission may hire and use any land, building, conveyance, furniture or other physical means and facilities belonging to any person, non-governmental organization or body, for the purpose of carrying out act of election.
10. Power to remove from work: (1) If any employee who has been appointed or designated or deputed by the Commission to carry out an act of election pursuant to Section 5 commits any act prejudicial to the impartiality of election, the Commission may, assigning the reason for the same, remove such employee from the responsibility of carrying out such act. (2) The Commission may give order to the security personnel deputed for security in connection with an election to do or refrain from doing any act, which is directly or indirectly related with the election. If the security personnel who have been so deputed in the act of election commit any act prejudicial to the impartiality of election, the Commission may, assigning the reason for the same, remove such personnel from the responsibility of carrying out such act.
11. Temporary positions and appointment of employees: (1) The Commission may, in order to conduct and complete an act of election, create temporary positions giving facilities receivable by up to the gazetted first class, in the required number for a period not exceeding six months. (2) The Commission may extend the term of a position created pursuant to sub-section (1) for another period of up to six months at one time or at several times. (3) The Commission may make appointment to any position created pursuant to sub-section (1) on permanent or contract or wages basis.
12. Power to procure service of expert: (1) The Commission may, as per necessity, procure the service of an expert in respect of an act of election. (2) The terms of reference of, and remuneration for, the service of an expert procured pursuant to sub-section (1) shall be as determined by the Commission.
13. Power to provide facilities: (1) The Commission may provide the officials or employees involved in any act of election with such amount as may be determined by the Commission and also with such Tiffin and food allowance as well as overtime allowance in the event of getting them to work overtime. (2) The Commission may, as per necessity, add such amount as may be determined by the Commission to the daily and traveling allowances receivable by the officials or employees engaged in any act of election, pursuant to the laws in force. (3) The Commission may provide an addition allowance in such amount as may be determined by the Commission to the officials or employees engaged in any act of election until they are engaged in such act. (4) The Commission shall procure insurance of such amount as specified by the Commission against accident of the officials, employees and security personnel engaged in any act of election during the election period. Explanation: For the purposes of this sub-section, “election period” means the period from the date of filing of nomination papers by candidates to the date of declaration of election results.
14. Power to provide rent or compensation: (1) In cases where any land, building, conveyance, furniture or other physical means or facilities belonging to any person, organization or body has been used on hire basis pursuant to Section 9 by, or with the order of, the Commission in the course of any act of election, the Commission shall provide the rent of the land, building, conveyance, furniture or other physical means or facilities so used for that period.
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(2) In cases where any land, building, conveyance, furniture or other physical means or facilities used by, or with the order of, the Commission in the course of any act of election has to be repaired due to wear and tear or compensation has to be provided for the same, the Commission may provide compensation in a reasonable amount according to the actual loss upon considering the amount that may be required for or has been incurred in doing such repair or required to be paid for compensation.
15. Power to make expenditure in election: (1) The daily allowances, traveling allowances, other allowances and facilities receivable under the laws in force by any employee deputed in any act of election may be credited and paid out at the very time of the deputation of such employee. (2) Notwithstanding anything contained in the laws in force, the concerned employee shall not be required to submit bills and receipts showing expenditure of the amount which he or she has received pursuant to sub-Section (1). (3) The expenditure required for the conduct of election shall be so credited as per the rate fixed by the Commission that the employee deputed in election may expend it. (4) In respect of such amount, out of the amount referred to in sub- section (3), as may be specified by the Commission, the employee deputed in election shall not be required to submit bills and receipts, after his or her return upon the completion of the act for which he or she has been so deputed.
16. Power to procure goods: (1) Notwithstanding anything contained in the laws in force, if, while procuring goods in-kind or services required for an act of election, it is not possible to invite a tender in accordance with the laws in force, the Commission may procure the goods in-kind or services, through quotations and even directly from the market if it is not possible even to obtain quotations. (2) Notwithstanding anything contained in the laws in force, if the Commission decides that it is not possible or practicable to invite tenders or quotations pursuant to the laws in force to procure the goods required for preparing Electoral Rolls, printing ballot papers required for the election or operating computers, printers or photocopy machines or spare parts thereof or software materials to be used therein and papers of special type, it shall not be required to invite such tenders or quotations.
17. Power to cancel election: (1) If a complaint is filed in the Commission claiming that any one has, by way of any kind of threat, intimidation, fear or terror or otherwise exercising undue influence, done any such act as to prejudice the freedom and impartiality of an act of election or polling in any election constituency or polling center or if the Commission receives information thereof from any source, the Commission may cause any Commissioner, Secretary or any other official authorized to inquire into the matter immediately. (2) If the Commission is satisfied, from the report of inquiry held by the Commission pursuant to sub-section (1), that any act of election has not been free and impartial, it may, setting out the reasons for the same, cancel the election of that election constituency or the polling of any of or all polling stations of that election constituency.
18. To make decision as to disqualification of candidate: (1) After the filing of nomination papers of candidates for an election but prior to the completion of the election, a complaint, accompanied by clear evidence, may be made with the Commission through the concerned Returning Officer that any candidate is disqualified or has become disqualified under Article 65 of the Constitution. (2) If a complaint is received pursuant to sub-section (1), the concerned Returning Officer shall seek an explanation from such candidate in that respect, within a time limit of seven days. (3) On receipt of an explanation pursuant to sub-section (2), or where no explanation is received within the time limit, mentioning the same content, the concerned Returning Officer shall promptly send the complaint made pursuant to sub-section (1) and the documents pertaining thereto to the Commission. (4) On receipt of the complaint and the documents pertaining thereto pursuant to sub-section (3), the Commission may, inquire the concerned candidates into any matter or require additional evidence from such candidate. (5) The Commission shall hold necessary inquiries into a complaint and the attached documents received pursuant to this Section and make its decision as to the disqualification of a candidate no later than seven days from the date on which it receives the complaint from the Returning Officer pursuant to sub-section (3).
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(6) Notwithstanding anything contained elsewhere in this Section, no proceedings of such election shall, in any case, be affected merely by the reason that the Commission has not made a decision as to the disqualification of any candidate pursuant to this Section.
Chapter-3 Provision for Registration of Political Party for Purposes of Election
19. Application required to be made for registration of political party for purposes of election: (1) Notwithstanding anything contained in the laws in force, any political party wishing to register its name for the purpose of election shall be required to submit to the Election Commission an application in fulfillment of the procedures specified by the Election Commission by a notification in the Nepal Gazette within the time limit specified in that notification. (2) A political party making application pursuant to sub-section (1) shall also mention in the application that it has fulfilled or undertaken to fulfill the terms and conditions contained in the Constitution. (3) While fulfilling the terms and conditions referred to in sub-section (2), a political party shall submit,inter alia, a memorandum bearing the signatures of at least ten thousand voters pursuant to clause (5) of Article 142 of the Constitution, and the Commission shall make verification of such signatures as prescribed. Provided that this provision shall not apply to the parties representing to the Interim Legislative-Parliament. (4) Notwithstanding anything contained elsewhere in this Section, a political party, which has been registered once after the commencement of this Act, shall not be required to get registered again for the purpose of an election to be held thereafter so long as its registration remains valid under this Act.
20. Registration of party: (1) On receipt of an application pursuant to sub-Section (1) of Section 19, the Commission shall, if it considers necessary to inquire into other matters about the political party, inquire into such matters and examine whether the procedures as referred to in the Constitution and this Act has been met or not, and register that political party if such procedures are found to have been met; and the political party so registered shall be considered to have obtained recognition for the purposes of election. (2) If there is any reason for not registering any political party pursuant to sub-section (1), the Commission shall, setting out such reason, provide the concerned political party with a reasonable opportunity to submit its statements. Also taking into account the statements submitted by such party where such opportunity has been given, the Commission shall decide whether or not to register that party; and the decision made by the Commission shall be final. (3) If the Commission decides not to register any political party pursuant to sub-section (3), the Commission shall give information to the concerned applicant. (4) If it appears that the name of two or more political parties making application pursuant to sub-section (1) of Section 19 is the same, the Commission may, in consultation with the concerned political parties, and in consonance with the opinion and advice of such political parties, to the extent possible, so register such political parties that they can have distinct identification. (5) If, failing a consensus between any political parties, the party cannot be registered in consonance with the opinion and advice of such political parties pursuant to sub-section (4), the Commission may so register such political parties that they can have distinct identification. (6) After registering the name of any political party pursuant to this Section, no other political party shall be registered by the same name.
21. Application by split political party for registration: If any political party registered pursuant to this Article is divided or split and at least forty per cent of the members of the Central Executive Committee of main party make an application, accompanied by an evidence showing the status of their membership, to the Commission for registration by the name of a separate party or for registration in a manner that the name of the same party can be identified as a separate group, the Commission may hold necessary inquiry into the matter and register such political party as a separate party. 22. Amalgamation of political parties:
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(1) If any two or more political parties registered pursuant to this Chapter shall, by consent, be united or amalgamated in the name of any already registered party or in a new name, and the members of the Central Executive Committee of the parties to be so united or merged make an application, setting out that matter, to the Commission, the Commission shall hold necessary inquiries into the matter register the form/structure of such unification or amalgamation as a separate political party or cancel the registration of the other political party by confirming any one political party. (2) If at least forty per cent members of the Central Executive Committee of any party out of the parties to be united or amalgamated pursuant to sub-section (1), disagreeing to such unification or amalgamation, make a decision to keep on the then party and make an application objecting to the action as referred to in sub-section (1) prior to the date of declaration of the date of election, the Commission may, if it thinks appropriate or reasonable upon making necessary inquiry into the matter, retain the registration of such party, subject to Section 21. (3) Where the registration of the political party is retained pursuant to sub-section (1) or (2), the Commission shall maintain records of the office-bearers of the Central Executive Committee of such parties. (4) While confirming the members of the Central Executive Committee of any political party for the purposes of sub- section (1) and (2), the central committee existing immediately before the division of such party shall be taken into basis.
23. Publication of name-list of political party: The Commission shall publish in the Nepal Gazette a name-list of the political parties registered pursuant to this Chapter.
24. Provisions relating to cancellation of registration of political party: (1) The Commission may, in any of the following circumstances, cancel the registration of any political party registered pursuant to this Chapter: (a) If the concerned political party itself makes an application to the Commission for the cancellation of its registration; (b) If it fails to furnish such details as required to be presented under the laws in force to the Commission for three consecutive years; or (c) If it fails to fulfill such requirements as required to be fulfilled under the Constitution or the laws in force for the registration of a political party. (2) Prior to the cancellation of registration in any other circumstance except those referred to in clauses (a) of sub- section (1), the Commission shall provide the concerned political party with a reasonable opportunity to furnish its statements. (3) If such party does not furnish its statements within the time of opportunity provided pursuant to sub-section (2) or if the furnished statements do not appear reasonable, the Commission may cancel such registration. (4) The Commission shall publish a notice of the cancellation of registration pursuant to sub-section (1) in the Nepal Gazette. (5) The registration of such political party shall be deemed to have been canceled after the publication of the notice pursuant to sub-section (3).
25. Restriction on taking part in election without being registered: A Any political party which is not registered under this Act shall not be allowed to take part in an election in capacity of such party.
Chapter – 4 Disputes Relating to Recognition of Political Party
26. Decision by Commission: (1) If any two or more than two groups related with any political party once registered with the Commission, claiming the name, constitution, election symbol or flag of that political party, makes an application to the Commission for having recognition pursuant to this Act; the Commission shall settle such dispute.
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(2) While settling the dispute pursuant to sub-section (1), the Commission shall send a notice to the parties to such dispute to furnish their respective views within a time limit of fifteen days. (3) The concerned parties to such dispute shall furnish their views with the time limit of the notice received pursuant to sub-section (2). (4) While settling a dispute relating to any political party pursuant to this Section, the Commission may, in the event of an understanding reached following consultations with the parties to dispute, decide to give recognition to any party pursuant to such understanding and register the other party as a separate political party. (5) If the parties to dispute fail to reach an understanding pursuant to sub-section (4), the Commission shall order such parties to submit to the Commission the grounds and evidence showing that they have been using or are entitled to use the name, constitution, election symbol or flag as claimed by them. (6) If, based on the grounds and evidence, if any, submitted pursuant to sub-section (5), there is adequate ground for giving recognition to any party, the Commission may decide accordingly; and if no such ground and evidence are submitted or if that matter cannot be ascertained from the grounds or evidence submitted, the Commission may give recognition to that party of dispute which has majority of office bearers and members out of the office- bearers and members of the Central Executive Committee whose names were submitted by such political party prior to making application pursuant to sub-section (1) and register the other party either as a separate political party or as a separate group of the same political party. Provided that if there appears that none of the parties to dispute commands majority, no party shall be recognized.
27. Commission to make hearing: (1) Prior to settling a dispute relating to any political party pursuant to sub-section (6) of Section 26, the Commission shall establish a bench comprising the sitting Chief Commissioner and Commissioner of the Commission and hear the parties. Provided that no act of hearing shall be deemed to be barred by the reason only that any Commissioner is not able to be present because of a reason beyond his or her control. (2) The claiming party or opposite party may appoint its legal practitioner and make pleadings by such practitioner before the bench referred to in sub-section (1). (3) In the course of conducting hearing pursuant to this Section, the Commission shall give a notice to the parties related with the dispute in advance of at least three days before the day for hearing. Where a notice is so given, representatives of the concerned parties can appear during hearing. Provided that the act of hearing shall not be barred by the reason that no representative of the parties concerned is present. (4) The Commission may procure such evidence as it considers necessary in the course of hearing pursuant to this Section. (5) The Commission shall settle a dispute submitted to it within fifteen days after the date on which the concerned parties have furnished with the Commission their respective views pursuant to sub-section (3) of Section 26 or, where such views are not submitted, after the date on which the time limit for furnishing such views has expired. (6) In hearing a dispute pursuant to this Chapter, the Commission shall exercise such powers as may be exercisable by a court. (7) A decision made by the Commission pursuant to this Chapter shall be final.
Chapter – 5 Code of Conduct
28. Code of Conduct: (1) In order to maintain fairness, impartiality, transparency, and fearless environment, in any election, the Commission may make codes of conduct required to be abided by the Government of Nepal, offices and employees of governmental and semi-governmental bodies, employees engaged in the act of election, political parties, candidates and persons related with them and the mass media at the governmental and private sectors. The Commission shall, while making such codes of conduct, make consultation with the concerned stakeholders. (2) In making the codes of conduct under sub-section (1), the Commission may make such codes of conduct particularly on the matters restraining the Government of Nepal from declaring any new policy, plan and program, mobilizing human resources, means and resources and using governmental media for election canvassing in such a manner as to affect the fairness and impartiality of the election.
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(3) The codes of conduct made by the Commission pursuant to sub- section (2) shall be published in the Nepal Gazette; and it shall be the duty of all the concerned to abide by such codes of conduct. 29. Implementation and monitoring of codes of conduct: (1) The Commission shall make appropriate mechanism as prescribed at the district and election constituency levels, as required, and inquire into and monitor as to whether the codes of conduct to be made pursuant to Section 28 have been abided by or not. (2) If, in the course of carrying out inquiry or monitoring pursuant to sub-section (1), it appears that any one has not abided by or has violated the code of conduct, the Commission shall order the concerned political party, candidate, person, organization, official or body to stop or invalidate such act immediately. (3) The Commission may punish any political party, candidate, person, organization, official or body failing to stop or invalidate the act in pursuance of the order issued by the Commission pursuant to sub- section (2) with a fine not exceeding one hundred thousand rupees. (4) If the Commission is satisfied that the election cannot be held in a free, fair and impartial manner by the reason that a candidate has frequently violated the code of conduct made by the Commission, the Commission may, assigning the clear reason and ground therefor, cancel the candidacy of such candidate. Prior to cancelling the candidacy, the concerned candidate shall be provided with a reasonable opportunity for defense.
Chapter - 6 Provisions Relating to Election Expenses
30. Power to specify ceiling of election expenses: (1) The Commission may specify the ceiling of expenses allowed to be incurred by political parties or candidates. (2) The Commission shall publish in the Nepal Gazette the ceiling of expenses specified pursuant to sub-section (1). (3) No political party or candidate taking part in the election shall make, or cause to be made, expenses in excess of the ceiling specified by the Commission. (4) A person who has the obligation to submit returns of election expenses referred to in sub-section (1) shall submit the returns of election expenses to the concerned District Election Office, in the format prescribed by the Commission, within thirty-five days after the date of publication of the final results of election. (5) The returns of election expenses submitted pursuant to sub-section (4) may be got audited by a recognized auditor on such conditions as specified by the Commission.
31. Punishment for making expenses in excess of specified ceiling: (1) If any person makes expenses in excess of the ceiling specified by the Commission pursuant to sub-section (1) of Section 30 or fails to submit the returns of expenses within the period prescribed pursuant to sub-section (4) of the same Section, the Commission may punish such person with a fine of a sum which is equal to the election expenses made by such person or the ceiling of expenses specified by the Commission, whichever is the higher. (2) If it appears from the audit report of the auditing, under sub-section (5) of Section 30, of the returns submitted pursuant to sub-section (4) of that Section, that the concerned person has made expenses in an unsuitable manner or in such a manner to prejudice the fairness of the election or in an undue or illegal manner for illegal purposes, the Commission may make a decision to disqualify such person for being a candidate in any election for a maximum period of six years with immediate effect. (3) Prior to imposing a fine pursuant to sub-section (1) or making a decision pursuant to sub-section (2), the Commission shall provide the concerned person with a reasonable opportunity to defend him or herself. (4) If the Commission makes a decision pursuant to sub-section (2), the election of such person, if he or she is an elected member, shall ipso facto be canceled. (5) An appeal may be made to the Supreme Court against a decision made by the Commission pursuant to sub- sections (1), (2) and (4) within thirty five days after the making of such decision.
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Chapter-7 Budget Management and Auditing
32. Approval not required: (1) Notwithstanding anything contained in the laws in force, while making expenditures chargeable on the amount under the budget heading of casual expenses allocated by the Government of Nepal for the Commission, pursuant to this Act, the Commission shall not be required to obtain approval of the Ministry of Finance, Government of Nepal. (2) While making expenditures of the amount as referred to in sub- section (1), such expenditures shall be made as prescribed in the manual and as decided by the Commission.
33. Power to collect financial resources: For the purpose of completing the act of election, the Commission may, with the consent of the Government of Nepal, collect separate financial resources or receive assistance, in addition to the amount allocated under the regular budget heading.
34. Accounts and audit: (1) The accounts of the expenses made by the Commission in the act relating to election shall be maintained in accordance with the laws in force. (2) The accounts maintained by the Commission pursuant to sub-section (1) shall be audited in accordance with the laws in force.
Chapter- 8 Miscellaneous
35. Power to seek advice and make consultation: (1) If the Commission considers it appropriate to seek advice prior to making decision on any constitutional or legal question regarding the act of election, it may seek advice of the Attorney General, government attorney, legal practitioner or any other expert. (2) The Commission may, in relation to its functions and duties, make direct contact and consultation with, or seek advice of, any constitutional body or any Ministry, Department, Office of the Government of Nepal, political party or governmental or non-governmental organization or any other body.
36. Power to hold discussion or consultation: In the course of holding an election in a free, fair and rigging less manner, the Commission or Official of the Commission may hold discussion or consultation with any political party or representatives of the civil society, election experts or other related persons or organizations.
37. Voter awareness program: In order to provide voters with information about the collection and updating of Electoral Rolls, method of polling in an election and the rights of voters, the Commission may operate, or cause to be operated, voter awareness program, as per necessity.
38. Delegation of powers: The Commission may, as per necessity, delegate any of its powers to the Chief Election Commissioner, Election Commissioner, Secretary, District Election Officer, Chief Name Registration Officer, Name Registration Officer, Assistant Name Registration Officer, Chief Returning Officer, Returning Officer, Official deputed in monitoring, Polling Officer, Assistant Polling Officer or official or employee or person engaged in the act of election.
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39. Power to give direction: (1) The Commission may give necessary direction to the Chief Returning Officer, Returning Officer, District Election Officer, Polling Officer, Assistant Polling Officer, Official deputed in monitoring or Voters Name Registration Officer or any other official or employee deputed in election in respect of the functions to be performed by him or her. (2) It shall be the duty of the all the concerned to abide by the direction given by the Commission pursuant to sub- section (1).
40. Pleading: (1) If the Commission has to make a petition to, or institute a case being as a plaintiff in, any office or court with respect to any legal right or dispute, it may, on the basis of necessity or propriety, cause the government attorney or a legal practitioner or both to prepare such a petition, file such case and make pleading therein or to prepare and file an affidavit, statement of defense, or plead and defend, in cases where anyone has instituted any proceedings, or filed any case against the Commission. (2) In any case or legal action filed or instituted against any officials and employees as well persons appointed, deputed, designated or engaged by the Commission for or in any or all of the acts of election including the preparation of Electoral Rolls, in the course of their discharging such functions as required to be discharged by them under the laws in force in good faith, the Commission shall, on the basis of necessity and propriety, arrange for their defense through any governmental attorney or legal practitioner.
41. Departmental action and punishment: (1) If any civil employee or security personnel or any employee of an organization or body owned or controlled by, or operated with the grant of, the Government of Nepal, who has been appointed, deputed or designated in the act of election, including the preparation of Electoral Rolls, or who has the duty to abide by the orders and directions of the Commission does any act deliberately violating the laws in force or orders or directions of the Commission or with any intention or does any act prejudicial to the impartiality of election in the course of discharging such act, the Commission may, in exercise of the powers of the competent authority under the laws in force relating to the conditions of service of such employee or security personnel take departmental action against, and impose punishment on him or her in accordance with that law. (2) If any employee or official other than that mentioned in sub-section (1) does any act in regard to the act of election contrary to the laws in force or directions given by the Commission, the Commission shall write to the concerned body for departmental action against such an employee or official in accordance with the laws in force relating to the conditions of his or her service. (3) The concerned body shall, if so written to it by the Commission pursuant to sub-section (2), take departmental action against such employee or official and give information thereof to the Commission. (4) Any employee who is not satisfied with a decision on departmental action and punishment made by the Commission pursuant to sub- section (1) may make an appeal to the Appellate Court located in the area where the concerned employee is in service within thirty five days after the date or receipt of the time-limit for appeal against the decision or information of such decision.
42. Publication of annual report: The Commission shall publish details of the activities done by it, in the form of an annual report each year.
43. Liaison with Government of Nepal: While making contact with the Government of Nepal, the Commission shall make such contact through the Ministry of Home Affairs.
44. Powers to frame rules: The Commission may frame necessary rules in order to carry out the objective of this Act.
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45. Issuance of orders: (1) The Commission may issue necessary orders for the purpose of conducting, monitoring, directing and controlling elections pursuant to the Constitution and the laws in force; and such orders shall be published in the Nepal Gazette. (2) It shall be the duty of the following bodies, institutions, organizations or persons to abide by the orders referred to in sub-section (1): (a) governmental, semi-governmental or non-governmental institutions; (b) political parties and office bearers thereof; (c) voters; (d) candidates and their agents; (e) persons who are involved in the canvassing, and monitoring of election. (3) The Commission may punish any political party, candidate or any other concerned body, institution, organization or person violating any order issued by the Commission pursuant to this Act with a fine not exceeding one hundred thousand rupees. 46. Power to prepare manuals: The Commission may prepare and enforce manuals for the purpose of conducting, or causing to be conducted, the act of election in a smooth manner; and it shall be the duty of all the concerned to abide by such manuals.
47. Repeal and saving: (1) The Election Commission Act, 2047(1991) is hereby repealed. (2) All acts done and actions taken under the Act referred to in sub- section (1) shall be deemed to have been done and taken by this Act.
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Annex 4
Act number 2 of 2063 enacted by the Legislative- Parliament The Act Made to Amend and Consolidate Prevailing Laws Relating to Election Offences and Punishment Certification date: 2063/12/12 (March 26, 2007)
Preamble: Whereas, it is expedient to amend and consolidate the laws in force relating to election offences and punishment; Now, therefore, The Legislative-Parliament has enacted this Act.
Chapter-1 Preliminary
1. Short title and commencement: (1) This Act may be cited as the “Election (Offences and Punishment) Act, 2063 (2007).” (2) This Act shall come into force at once.
2. Definitions: Unless the subject or the context otherwise requires, in this Act,- (a) “Constitution” means the Interim Constitution of Nepal, 2063 (2007). (b) “Election” means an election to the members of the Constituent Assembly or such other elections as to be held pursuant to the laws in force, and this expression also includes by-elections. (c) “Period of election” means the period from the date for filing of nomination papers by candidates to the date of declaration of election results. (d) “Candidate” means a person whose name is included in the list of candidates. (e) “Political party” means a political party registered pursuant to the laws in force for the purpose of election. (f) “Voter” means a person whose name is registered in the Electoral Rolls for election pursuant to the laws in force. (g) “Voting right” means the right of any person to vote in the concerned election pursuant to the laws in force. (h) “Commission” means the Election Commission referred to in Article 128 of the Constitution. (i) “Election constituency” means the election constituency delimited for election pursuant to the laws in force. (j) “Polling station” means a polling station established for the purpose of casting votes in election pursuant to the laws in force, and this expression also includes a sub- station. (k) “Returning Officer” means the Chief Returning Officer or Returning Officer appointed by the Commission, and this expression also includes the Assistant Returning Officer. (l) “Polling Officer” means the Polling Officer appointed by the Commission, and this expression also includes the Assistant Polling Officer. (m) “Electoral Rolls” means the Electoral Rolls, along with the details of voters, prepared in accordance with the laws in force. (n) “Ballot paper” means the ballot paper in the format as specified by the Commission to be used by the voter to vote in an election, and this expression also includes any electronic device that safely retains the expres- sion of vote, if any, cast through electronic device. (o) “Ballot box” means such ballot box used to contain ballot papers expressing votes as managed by the Commission for containing the ballot papers, and this expression also includes any electronic device that safely retains the expression of vote, if any, cast through electronic device. (p) “Court” means the court specified by the Government of Nepal, in consultation with the Supreme Court, and by a notification in the Nepal Gazette so as to try and settle cases related with election, and, in the case
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of the election to the Constituent Assembly, this expression also includes the Constituent Assembly Court to be constituted pursuant to Article 118 of the Constitution. (q) “Investigating Officer” means such officer as designated by the Commission by a notification in the Nepal Gazette pursuant to sub-section (1) of Section 23 so as to investigate and enquire into the offences punish- able under this Act. (r) “Monitoring Team” means a Monitoring Team formed by the Commission under the laws in force so as to monitor election activities.
Chapter - 2 Electoral Offences
3. Prohibition on voting by impersonation: No person shall, by impersonation, obtain a ballot paper for polling or cast vote, or cause to be caste vote.
4. Prohibition on making influence: No person acting on behalf of any political party or candidate or his or her agent or other person shall, in the course of election, influence, in any manner, any candidate or voter or any person with whom any of them has concern or interest in an election by committing any of the following acts: (a) Making obstruction, obstacle or intimidation, or causing such act to be made, with intent to prevent any person from making candidacy in an election or canvassing election or exercising the right to vote; (b) Demonstrating or using weapons or explosive substances of any kind; (c) Causing any kind of damage; (d) Showing any kind of fear, threat, terror or menace; (e) Threatening to boycott socially; (f) Showing gratification or greed or economic benefit in any manner; (g) Causing to swear or promise.
5. Prohibition on damaging character: No person acting on behalf of any political party or candidate or his or her agent or other person shall, with intent prejudice the results of election, damage, in any manner, the character of any candidate or his or her family member, by making false accusation of any matter which relates to the character or conduct of the candidate or his or her family member.
6. Prohibition on propagation: No person acting on behalf of any political party or candidate or his or her agent or other person shall, while propagating, or causing to be propagated, the policies and programs of such political party or candidate in the course of election, propagate, or cause to be propagated, with any of the following intentions: (a) Undermining the independency, sovereignty, territorial or national integrity of Nepal; (b) Prejudicing the state authority vested in the people or competitive multi party democracy; (c) Jeopardizing the harmonious relations subsisting among various religions, castes, tribes or communities or enticing the commission of any violent act or creating hatred or enmity on the basis of any language, religion, community or region; (d) Inciting others to commit any act that is considered to be an offence pursuant to the laws in force.
7. Prohibition on exchange of cash or kind: No person acting on behalf of any political party or candidate or his or her agent or other person shall, during the period of election, give or agree to give any voter cash or kind as a present, reward, gratification, donation or gift to exercise or refrain from exercising his or her right to vote or for the exercise of or refraining from exercising his or her right to vote; and even the voter shall not receive or agree to receive such cash or kind for himself or herself or any other person for that purpose.
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8. Employee not to influence election: No Returning Officer, Polling Officer or other officer, employee or officer or security personnel deputed at any polling station or observer deputed by the Commission shall, in the course of performing any act of election, perform, or cause to be performed, any act in favor of or against any candidate in an election, except the act of giving his or her vote for any candidate pursuant to laws.
9. Prohibition on disturbing peace: No person shall, from three hours prior to the commencement of the polling to the completion of the polling on the day for polling for any election, disturb, or cause to be disturbed, peace by doing any of the following acts in the house, building or place where the polling station is located or in any private or public house, building or land situated within two hundred meters from such house, building or place in such a manner as to cause obstruction in the act of polling or to the voters or the persons or employees engaged in the act of polling at the polling station: (a) Using loudspeakers, megaphones or similar other devices, or (b) Playing musical instruments, singing and dancing, holding public parties, demonstrating rallies or organiz- ing assembly or function of any kind whatsoever or making or, causing to be made, commotion or man- handling or shouting.
10. Prohibition on going armed or using arms: No person other than the employee deputed in the act of security shall make movement taking arms, poisonous or explosive substances or stick, spear, Khukuri, gun, pistol or any other arms of a similar nature, exhibit or use or explode, or cause to be exhibited or used or exploded, such substances.
11. Prohibited acts: No person shall commit, or cause to be committed, any of the following acts: (a) To insert any matter in, deface, correct, remove any matter from, any list, notice or any other document relating to election affixed by, or caused to affixed by, any person or employee engaged in the acts relating to election or tear or destroy or damage or mutilate such list, notice or other document in any other man- ner; (b) To delete, deface, correct, forge, damage or tear the signature or seal of the Returning Officer or the Polling Officer affixed to any ballot paper or any mark or sign affixed to the ballot paper; (c) To supply a ballot paper obtained by any voter in accordance with the law to cast vote to any other person in any manner or put into any ballot box anything other than the ballot paper which he or she is authorized to put into; (d) To grab, loot, steal, tear or otherwise damage, destroy or mutilate the ballot paper or any other document that is to be used or has been used in the act of election, with or without the use of force of any kind; (e) To grab, loot, steal, damage or otherwise mutilate any ballot box to be used or used in the act of election, to break seal of such ballot box or to open it in an unauthorized manner with or without the use of force of any kind; (f) To take any ballot box, ballot paper, vote marking seal, stamp pad, ink or any other material to be used or used for the polling out of a polling station or to anywhere else during the period of polling, without the permission of the Polling Officer; (g) To show or exhibit the ballot paper after ascribing the symbol on it, (h) To cause obstruction of any kind in any manner to the employees engaged in the act of election in the performance of their functions.
12. Prohibition on receiving or giving ballot paper illegally: (1) No person shall, for the purpose of casting votes illegally, acquire, or cause to be acquired, any ballot paper from any other person, by giving or agreeing to give cash, kind, service or any kind of gratification to anyone by coercing, intimidating or threatening or by using or not using any kind of force. (2) The authorized officer taking custody of ballot papers shall not supply such ballot papers to any unauthorized person by receiving or not receiving or by agreeing or not agreeing to receive cash, kind, service or any other kind of benefit.
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13. Restriction on election Propagation: (1) For the purpose of canvassing election, no poster, wall painting, Tul or other banner shall be used, or caused to be used, or printed or caused to be printed, except for the distribution of simple pamphlets in such size, shape and color as specified by the Commission. (2) For the purpose of canvassing election, no mike and loud speaker shall be used in other places, except for the purpose of a public assembly or disseminating information of such assembly. (3) Any pamphlets prepared pursuant to sub-section (1) for the purpose of election canvassing shall have to bear the name and address of the press and the political party or person getting them printed. (4) No person shall affix, or cause to be affixed, any posters, pamphlets to, or write, or cause to be written on, any religious, archaeological or historical or government owned or controlled buildings, monuments, walls or structures for election canvassing. (5) No person shall affix, or cause to be affixed, any posters, to any private house, shop, wall or other structure without the permission of the owner thereof, for election canvassing. (6) No person shall, with the object of soliciting or giving votes for or against any candidate, convene or organize meetings, processions or raise slogans and canvass in any other manner within the election area during the period from forty-eight hours prior to the day for polling to the completion of the act of polling.
14. Prohibition on making entry in unauthorized manner or causing obstruction to counting of votes or other acts of election: (1) Except for the candidate or his or her agent or person permitted by the Commission, no other person shall be allowed to enter the vote counting place. (2) No person shall grab, loot, damage or destroy in any manner any ballot boxes or ballot papers or any other documents relating to the election during the counting of votes in any election with or without the use of force or take them elsewhere from the place for counting of votes without the permission of the Returning Officer or cause obstruction of any kind in any manner to any other acts relating to election.
15. Prohibition on divulgence of secrecy: No Returning Officer, Polling Officer, any other employee or security personnel deputed by the Commission and involved in the act of election or any observer or monitor deputed by the Commission or any candidate or any of his or her agents or any voter or any other person shall, in any election, divulge to anybody or write or disclose in any manner the matter as to whether any voter has voted or not or for which candidate he or she has voted or who has secured how many votes or other matter pertaining to the counting of votes as well as any kind of symbol or sign or any other matters in a manner to identify the voter from the ballot paper.
Provided that this Section shall not be deemed to bar the publicly announcing by the Returning Officer or the officer authorized by him or her of the number of votes received by candidates, in the course of counting of votes or the making of statements, writing or publishing any thing on the basis of such information.
16. Use of vehicles: (1) No political party or candidate or his or her agent or any other person shall, in the course of election canvassing, use, or cause to be used, vehicles exceeding the number as permitted by the Commission. (2) No political party or candidate or his or her agent or any other person shall, in the course of election canvassing, use or cause to be used any vehicles belonging to the government or organizations owned by the government or the local body. (3) Not with standing anything contained elsewhere in this Section, any political party or candidate or his or her agent or observer related to the act of election, human right activist, journalist or similar other person may use a vehicle on the election day only if the Commission so permits.
17. Prohibition on attempt, aid or incitement: No person shall attempt to commit, aid in the commission of, or entice the commission of, any offence referred to in this Chapter.
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18. Power to arrest: (1) The Returning Officer or Polling Officer or Monitoring Team may order any person whoever causes obstruction or attempts to or aids or abets to cause obstruction to the polling or counting of votes or any other act of election to refrain from doing such act and to go out of that place. (2) The Returning Officer, Polling Officer or Monitoring Team may order the concerned security personnel to arrest any person who commits any act prohibited under Sections 3, 9, 10, 11, 12 or Section 14 and who does not carry out the order issued by the Returning Officer or Polling Officer or Monitoring Team pursuant to sub-section (1). (3) The security personnel shall carry out the order issued by the Returning Officer, Polling Officer or Monitoring Team pursuant to sub-section (2). (4) If the security personnel fails to carry out the order issued pursuant to sub-section (2), the Returning Officer, Polling Officer or Monitoring Team shall write to the Commission for departmental action against such security personnel.
Chapter - 3 Punishments
19. To impose fine immediately: (1) The following officer shall punish any person who commits the following act with a fine ranging from five hundred rupees to ten thousand rupees, depending on the gravity of offence: (a) Except for voting by a person who is not a citizen of Nepal, in the case of commission of any act in contravention of Section 3 or clauses (b), (c), (f) and (g) of Section 11, the Polling Officer; (b) In the case of commission of any act in contravention of Section 9 or clauses (d) and (e) of Section 11, the Polling Officer or Monitoring Team; (c) In the case of commission of any act in contravention of Section 10 or clauses (a) and (h) of Section 11 or Section 13 or Section 14 or Section 16, the Returning Officer, Polling Officer or Monitoring Team. (2) Upon receipt of the amount of fine imposed pursuant to sub-section (1), the fine imposing officer shall immediately give a receipt of payment of such fine to the concerned person. (3) A person who is not satisfied with the decision of the fine imposing officer pursuant to sub-section (1) may make an appeal to the concerned Appellate Court within thirty five days. (4) The fine imposing officer may hand over any person who does not pay the fine pursuant to sub-section (1) to the concerned police office to imprison such person for the amount of fine in accordance with the laws in force. (5) Where any person acting on behalf of a political party or candidate or his or her agent or any other person uses any vehicle in contravention of Section 16, the fine imposing officer referred to in clause (c) of sub- section (1) shall seize the vehicle for the period of election, and where such vehicle belongs to any governmental or government owned body or local body, shall write to the Commission for departmental action against the officer who has provided such vehicle. (6) Where any person acting on behalf of a political party or candidate or his or her agent or any other person uses pamphlets or posters, wall painting, Tul or other banners in contravention of Section 13, the fine imposing officer referred to in clause (c) of sub-section (1) may seize such pamphlets, posters, Tuls or banners and issue an order to maintain the place where such posters, wall painting, Tuls or other banners have been used as it was before. (7) The fine imposing officer referred to in clause (c) of sub- section (1) may fine a candidate who does not carry out the order issued pursuant to sub-section (6) with additional sum not exceeding ten thousand rupees and recover from such candidate the expenditures incurred in making the place where such pamphlets, posters, wall painting, Tul or other banners have been used as it was before. (8) Where any person, after marking vote on a ballot paper, shows or exhibits the ballot paper to any one, the fine imposing officer referred to in clause (a) of sub-section (1) shall, while imposing fine, put the ballot in a separate sealed envelope, containing such details, and execute a recognizance deed, and such a ballot paper shall not be counted in a case where such ballot paper has not yet been inserted to the ballot box. (9) Notwithstanding anything contained elsewhere in this Section, once a person has been fined for any offence by the fine imposing officer pursuant to this Section, the other fine imposing officer referred to in this Section shall not fine such person again for the same offence.
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20. To be publicized: The fine imposing officer referred to in Section 19 shall, while imposing a fine on any person, immediately publicize the matter pertaining to the offence committed by such person and the fine imposed on such person in any newspaper or any other communication media for the information of the general public. 21. Punishment: (1) Where any person commits any act in contravention of Section 4, 5, 6, 7, 8, 12 or Section 15, such person shall be punished with a fine from ten thousand rupees to fifty thousand rupees or with imprisonment for a term not exceeding two years or with both, depending on the gravity of offence. (2) Where any person who is not a citizen of Nepal cast vote, such person shall be punished with a fine not exceeding fifty thousand rupees or with imprisonment for a term not exceeding one year or with both. (3) Any person who makes attempt to commit or aids or entices the commission of the offence referred to in Section 4, 5, 6, 7, 8, 12 or Section 15 shall be punished with half the punishment to be imposed on the principal offender. 22. Punishment under other laws in force: Where any act, which is considered as an offence under this Chapter, is also considered as an offence under any other laws in force, this Act shall not be deemed to bar the imposing of punishment under the laws for such offence.
Chapter-4 Proceeding and Settlement of Cases
23. Investigation and filing of case: (1) The officer designated by the Commission by a notification in the Nepal Gazette shall investigate and inquire into the offenses punishable under Section 21. (2) In the course of the enquiry into and investigation of a case pursuant to sub-section (1), the investigating officer may order the concerned police office to arrest the person who, based on sufficient proofs and evidence, is suspected of being involved in the offense, in accordance with the laws in force. (3) Where investigation and inquiry cannot be completed within twenty four hours in relation to a person arrested pursuant to sub-section (2) and there are sufficient grounds for keeping on investigation and inquiry by holding such person in detention, the investigating officer shall produce such person before the Court and detain such person for investigation only with the permission of the Court. (4) Where a permission for detention is requested pursuant to sub-section (3), the Court shall consider whether or not the inquiry as well as investigation has been carried out satisfactorily and the reasons for holding the person in custody; and where it appears that inquiry as well as investigation is being carried out satisfactorily and there are sufficient ground for holding such person in detention, the Court may give permission for holding the person in detention for a maximum period of fifteen days at one time or at several times. (5) It shall be the duty of the concerned police office to carry out the order issued by the investigating officer pursuant to this Section. If the order so issued is not carried out, the investigating officer shall write to the Commission for departmental action against such police personnel. (6) Where it appears to institute a case against any person pursuant to this Section, the investigating officer shall file a charge-sheet in the Court within sixty days of the commission of the offence. Provided that where the defendant is in detention and it appears that case is to be instituted, the officer shall file a charge-sheet within a maximum period of fifteen days. (7) After the completion of enquiry and investigation process, the investigating officer shall, well in advance of the expiration of the time-limit set for the filing of charge- sheet in the Court, submit the case-file, accompanied by his or her opinion and the evidences and proofs, as well, to the concerned government attorney for decision whether or not the case can be instituted. (8) Upon receipt of the case-file pursuant to sub-section (7), the government attorney shall decide whether or not to institute the case and return the received case-file well in advance of the expiration of the time-limit for filing the case where the case is to be instituted; and upon receipt of the decision of the government attorney to institute the case, the investigating officer shall prepare a charge sheet and file it in the Court. (9) The government attorney shall defend the case filed by the investigating officer under this Act.
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24. To be state case: The Government shall be plaintiff in any cases related with the offences referred to in Section 21.
25. Trial and settlement of cases: (1) The Constituent Assembly Court shall try and settle cases related with any offence punishable under Section 21 in relation to the election to the Constituent Assembly and with the election to be voided pursuant to Chapter-5. (2) The Court designated under this Act, other than the Constituent Assembly Court, shall try and settle cases related with any offence punishable under Section 21 in relation to any election, other than the election to the Constituent Assembly and with the election to be voided pursuant to Chapter-5. (3) An appeal may be made to the court designated by the Government of Nepal by a notification in the Nepal Gazette against the decision made by the court as referred to in sub-section (2); and the decision made by the court so designated shall be final.
26. Procedures for settlement of cases: Notwithstanding any thing contained in sub-section (1) of Section 3 of the Summary Procedures Act, 2028 (1972), the procedures set forth in the said Act shall be followed while trying and settling cases under this Act.
Chapter – 5 Provisions Relating to Invalidation of Election
27. Petition for voiding election: (1) Any concerned candidate may, in any of the following circumstances, file a petition in the Court directly or through the District Election Officer designated by the Commission to have the election declared void within thirty five days of the date of cause of action: (a) the election has not been fair due to the commission of acts in contravention of Sections 3,4, 5, 6, 7, 8, 10 or clauses (b), (c), (d), (e) or (h) of Section 11, Section 12 or 14 extensively in the election; (b) the result of election has been affected owing to the fact that the nomination paper filed by any person to be a candidate in the election has not been validated which should have been validated or has not been voided or cancelled which should have been voided or cancelled; (c) the elected candidate has made expenses in the election, in excess of the ceiling specified pursuant to the laws in force or made expenses unusually or illegally or improperly for unlawful purposes. (2) Where a petition filed pursuant to sub-section (1) is proved, the Court shall void the election of the elected candidate. (3) Notwithstanding any thing contained in sub-sections (1) and (2), the whole election or the election of the elected candidate shall not be voided if the following matter is proved: (a) that any activity set forth in clause (a) of sub- section (1) or Section 4, 5, 6 or 7 has been done without infor- mation or consent of the elected candidate or his or her agent or he or she has made an attempt to prevent such activity in the election; or (b) that the result of election has not been actually affected by any activity set forth in clause (a) of sub-section (1).
28. Recounting of votes: (1) The concerned candidate in any election may, in any of the following circumstances, file a petition in the Court directly or through the District Election Officer designated by the Commission to have the counting of votes declared void within fifteen days of the date of cause of action: (a) another candidate has won the election by illegally securing votes despite that he or she or any other candidate has secured majority; (b) the ballot papers to be invalid have not been invalidated or the ballot papers to be valid in accordance with laws have not been validated; (c) the counting of votes has not been done in accordance with laws. (2) Where a petition filed pursuant to sub-section (1) is proved, the Court may void such counting of votes and recount the votes.
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(3) Where, in recounting the votes pursuant to sub-section (2), the petitioner candidate or any other candidate is proved to have secured majority of votes and the election result appears to have been affected by that reason, the election result of the elected candidate shall be void; and the Court shall declare the petitioner candidate or any other candidate to have been elected in accordance with the laws.
29. Procedures to be followed in the event of equality of votes: (1) The Court shall, while recounting the votes in the course of trying a petition referred to in Section 27 or 28, count the votes secured by all candidates of the concerned election constituency. (2) The counting of the votes pursuant to sub-section (1) shall be done in the presence of the candidate or his or her agent. Provided that where information on the counting of votes has been duly given, nothing shall bar the counting of votes by the reason of the absence of the candidate or his or her agent. (3) Where, in counting the votes pursuant to sub-section (1), two or more than two candidates secure an equal number of votes, the Court shall make decide by lot between the candidates who secure the equal number of votes; and the candidate selected as per that decision shall be deemed to have been elected by securing one additional vote.
30. Inadmissible as evidence: Any reply made by any witness to any question asked by the Court in the course of trying a case referred to in this Act shall neither be admissible as evidence in any case instituted against him or her nor be permitted to be furnished as evidence.
31. Withdrawal of petition: Any petitioner may, with the permission of the Court, withdraw the petition filed by him or her pursuant to Section 27 or 28. Provided that where the Court is considers that the petitioner has made an application to withdraw the petition for any undue benefit, it shall not grant the permission for the withdrawal of such petition.
Chapter – 6 Miscellaneous
32. Question not to be asked about voting: Notwithstanding any thing contained in this Act or the laws in force, in any case or legal proceeding instituted under this Act, any witness or any other person shall not be asked whom he or she has voted for.
33. Deposit to be furnished: (1) While filing a petition pursuant to Section 27 or 28, a deposit of ten thousand rupees has to be furnished. (2) Where the petition is held to be false, the deposit referred to in sub-section (1) shall be forfeited.
34. Repeal: The Election (Offence and Punishment) Act, 2047 (1990) is hereby repealed.
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Annex: 5
The Constituent Assembly Court Act, 2064 (2007)
Date of Authentications and publication: Bhadra 2 2064 (August 19, 2007)
An Act No. 11 of the Year 2064 (2007) An Act Made to Provide for the constitution, Jurisdiction and procedures of the Constituent Assembly Court
Preamble: Whereas, it is expedient to make legal provisions for the constitution, jurisdiction and procedures of the Constituent Assembly Court to hear and settle petitions relating to the election of members of the Constituent Assembly; Now, therefore, be it enacted by the Legislature -Parliament.
Chapter – 1 Preliminary
1. Short title and commencement: (1) This Act may be called as “the Constituent Assembly Court Act, 2063 (2006)”. (2) This Act shall come into force immediately.
2. Definitions: Unless the subject or the context requires otherwise, in this Act,- (a) “Court” means the Constituent Assembly Court constituted pursuant to Section 3. (b) “Chairperson” means the Chairperson of the Constituent Assembly Court. (c) “Member” means a member of the Constituent Assembly Court, and this expression also includes the Chairperson. (d) “Registrar” means the Registrar designated pursuant to Section 16.
Chapter - 2 Formation of the Court, Jurisdiction and exercise thereof
3. Formation of the Court: (1) The Government of Nepal shall, in consultation with the Judicial Council, and by a notification in the Nepal Gazette, constitute a Constituent Assembly Court to hear and settle petitions relating to the election of members of the Constituent Assembly. (2) The Government of Nepal shall, on the recommendation of the Judicial Council, designate a Chairperson and two members of the Court from amongst the sitting Judges of the Supreme Court. (3) A notice on the designation of the Chairperson and members pursuant to Sub-section (2) shall be published in the Nepal Gazette.
4. Jurisdiction of Court and exercise thereof: (1) The Court shall hear and settle petitions relating to the election to members of the Constituent Assembly.
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(2) Without prejudice to the generality of Sub-section (1), the Court may, in the course of hearing and settling cases pursuant to this Act, also hear and settle the following matters: (a) Disqualification of a member of the Constituent Assembly; (b) Invalidation of the election of a member of the Constituent Assembly; (c) Offences relating to the election of the members of the Constituent Assembly. (3) The jurisdiction of the Court shall be exercised collectively by the three members. Provided that, one member present bench may carry out proceedings in a case, and that a two-member present bench may hear and settle a case. (4) If the three members of a three-member present bench hold a unanimous opinion, or if there is a majority of two members, such opinion shall be deemed to be the verdict of the Court. (5) If a two-member present bench fails to reach a consensus, action shall be taken according to the opinion of the Chairperson, in the case of proceedings, if it is a bench including the Chairperson, and according to the opinion of the senior member, if it is a bench excluding the Chairperson. If, in the case of the judgment of a case or final order, there is no majority, the matter shall be referred to the member who was absent earlier and the opinion supported by him/her shall be deemed to be the verdict of the Court. The verdict given by the Constituent Assembly Court shall be final.
5. No petition to lie in other court: Notwithstanding anything contained in the laws in force, no question may be raised in any court in respect of any matter falling under the jurisdiction of this court.
Chapter - 3 Powers and Procedures of Court 6. Powers of Court: The Court shall have the following powers: (a) To question such other persons or examine such other evidence related to the case as may be deemed necessary, in addition to the witnesses of the petitioner and the respondent; (b) To issue summon in the name of respondent and to arrest the respondent who does not appear before the Court within the time-limit of the summons, and take his or her deposition; (c) To issue the summons in the name of a witness and take his or her testimony; (d) To try a case by releasing a party on the condition that the party shall appear on the appointed date or to try a case by releasing the party without requiring him or her to appear on the appointed date on the condition that he or she can be summonsed as and when required or that he or she shall appear at a specified time.
7. Power to issue interlocutory and stay order: (1) The Court may, if it deems necessary and appropriate, issue any necessary and appropriate order with regard to a petition filed under this Act pending the filing of the Statement of Defense by the respondent or pending the settlement of the petition. (2) If the bench deems it appropriate to give verdict on a petition, the bench may give verdict on the petition even though it is submitted for an interlocutory order pursuant to Sub-section (1). (3) The Court may, in the course of settling a question that any member of the Constituent Assembly is disqualified or is no longer qualified to be a member of the Constituent Assembly by the reason that he or she has not any qualification as referred to in Article 65 of the Interim Constitution of Nepal, 2063 (2007), issue a stay order thereby restraining such member of the Constituent Assembly from participating in the meetings of the Constituent Assembly or performing any activity in the capacity of a member of the Constituent Assembly or being involved in any activity on behalf of the Constituent Assembly, if there is sufficient ground to hold him or her to be disqualified on the basis of the immediately available evidence.
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8. Procedures relating to service of summon notice: (1) While issuing the summon notice in the name of a respondent named in a petition filed with the Court, the summon notice shall be issued by specifying a time limit not exceeding seven days, excluding the time required for travel. (2) If the summon notice issued in the name of a respondent pursuant to subsection (1) could not be served, such summon notice may be issued through telex or telefax number being used by the respondent or any other means of electronic media that can be recorded or by registered mail; and the summons so issued shall be deemed to be duly served. (3) While issuing the summon notice in the name of a witness in a case filed with the Court, the Court may issue the summons by specifying a time limit not exceeding seven days, excluding the time required for travel. (4) The summon notice to be issued pursuant to this Section can be issued by any employee of the Court or through a district court or any other government office situated nearby. It shall be the duty of the registrar (Shrestedar) of the concerned district court or the chief of the government office to serve the summon notice of the Court to be issued with a priority. (5) Any employee who goes to serve the summons issued by the Court shall complete the service of summon notice no later than two days, excluding the time required for journey. If such an employee is found to have delayed the service of summon notice without any reasonable ground, the Court may punish him or her with a fine not exceeding five hundred rupees. (6) Notwithstanding anything contained in Sub-section (5), the Court may order to take departmental action against an employee who has not served the summon notice intentionally with mala fide intention or recklessness. (7) If a person, knowing that the Court has issued the summon notice in his/her name, makes an application to the Court or any court or office to which the summons has been sent for its service to receive the summon notice, such summon notice may be served on him or her. No fees shall be charged for such application. (8) If a report is submitted indicating that the summon notice issued in the name of any person could not be served by the reason that the address of such person could not be traced or for any other reason, while serving the summons in accordance with the procedures referred to in this Section, the Court may publish a public notice in a newspaper of national circulation, setting out a short description of the case filed in the Court, ordering such person to be present before the Court within a time limit not exceeding 7 days; and if a notice is so published, the summon notice shall be deemed to have been duly served on such person. (9) Notwithstanding anything contained elsewhere in this Section, if any summon notice has to be issued in the name of a member of the Constituent Assembly, the Court shall ask the secretary-general or secretary of the Constituent Assembly to serve the summon notice and when so asked, the secretary-general or secretary of the Constituent Assembly shall serve the summon notice in the name of concerned member of the Constituent Assembly, and send information thereof to the Court. Where the summon notice is so served, the summon notice shall be deemed to have been duly served. (10) Other provisions relating to the service of summon notice, other than those mentioned in this Section shall be as per the laws in force.
9. Provision relating to extension of time limit, appointed date for presence: If a party named in a case filed in the Court makes an application for an extension of the time limit appointed date for presence, setting out the reasons and grounds beyond his or her control, and if such statement appears to be reasonable, the Court may, for one time, extend the time, appointed date for presence, for up to seven days.
10. Other powers and procedures: (1) While hearing and settling a petition filed under this Act, the Court shall exercise and apply the powers and procedures referred to in this Act, to the extent so referred in this Act; and the Court shall, in respect of other matters, apply the procedures as referred to in Summery Trial Act, 2028 (1971). (2) The Court may exercise and apply the same powers and the same procedures as the district court may have in accordance with the laws in force on the matters other than those as referred to in Sub-section (1).
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Chapter – 4 Miscellaneous 11. Oath: The Chairperson and member shall have to take oath of office with the Chief Justice in the format as referred to in Schedule prior to assuming his or her office.
12. Contempt of court: (1) The Court may institute action against a person in contempt of the Court; and if the Court holds that the contempt of court has been committed, it may punish such person with imprisonment for a term not exceeding one year or with a fine not exceeding ten thousand rupees or with both. (2) Notwithstanding anything contained in Sub-section (1), if the accused or offender submits an apology to the satisfaction of the Court, it may either pardon him or her, or remit or commute the sentence imposed on him or her, in cases where the sentence has already been specified, or postpone the sentence on such conditions as specified by the Court, and order not to carry out the sentence if such conditions are complied with. 13. Obligation to produce such deed, evidence, document or reply as required by Court in relation to case: (1) If the Court orders any office to produce any deed, evidence, document or any other matter required for evidence in a case or if the Court asks for clarification or reply in respect of any other matters, the concerned office shall comply with such an order within the time as specified by the Court. (2) If the hearing and settlement of a case is impeded or any party is unduly harassed or affected by the reason of the failure of any office to comply with an order of the Court referred to in Sub-section (1), the Court may punish the chief of the concerned office or its employee with a fine not exceeding five hundred rupees for very instance of such failure. (3) Notwithstanding anything contained in Sub-section (2), if the chief or the concerned office or its employee submits an application, accompanied by the reason for such failure to comply with the order of the Court, stating that such fine should not be imposed, and the reason seems to be satisfactory, the Court may cancel the order of such a fine.
14. Period for completion of hearing and settlement of cases: (1) The Court shall complete the final hearing and settlement of a case within three months from the date on which the statement of defense, if any, is filed or from the date on which the time limit specified for the submission of the statement of defense expires in cases where the statement of defense is not submitted. Provided that, no case shall be finally heard and settled prior to the lapse of the time limit allowed for the extension of the expired time limit pursuant to Section 9. (2) Notwithstanding anything contained in Sub-section (1), a case which has become matured for settlement after procuring and examining the required evidence from and on behalf of the petitioner and the respondent shall be settled by the Court no later than seven days from the date on which the case gets such maturity. (3) The verdict given by the court in accordance with this Act shall be final.
15. Execution of judgment: If the Court indicates in its judgment or final order that it has to be executed by any body, such body shall, and, if no such body is indicated, the concerned district court shall, execute the judgment or final order.
16. Registrar: (1) The Government of Nepal may, by a notification in the Nepal Gazette, designate a gazette first class officer of the Nepal Judicial Service as the Registrar. (2) The functions, duties and powers of the Registrar shall be as follows: (a) To verify and examine petitions, statements of defense and other deeds, as well, intended to be filed in the Court and register the same if they meet the requirements or refuse to register them setting out the reason for such refusal, if they cannot be registered; (b) To verify the duplicates produced in a case with the originals and attest the same if they verify;
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(c) To issue and serve, or cause to be issued and served, the summons to be served on a person or witness who is ordered to appear, and examine whether the summons served has been duly served or not, and if it does not appear that such summons has been duly served, to cancel the summons and get the summons served again in a due manner; (d) To issue order in accordance with law if an application is made an extension of the time limit or, date ap- pointed for presence as allowed under the law; (e) To implement, or cause to be implemented, all the activities as indicated in the orders issued by the bench.
17. Provision of employees: The Government of Nepal shall provide all other employees as required for the Court.
18. Dissolution of Court: (1) The Government of Nepal may, by a notification in the Nepal Gazette, dissolve the Court after the completion of the purpose for which this Court has been formed pursuant to this Act. (2) After the dissolution of the Court pursuant to Sub-section (1), the Government of Nepal shall so transfer all case-files, documents and movable and immovable properties in custody of the Court that the custody thereof devolves on the Supreme Court.
19. Liaison with Government of Nepal: While making contact with the Government of Nepal, the Court shall make such contact through the Ministry of Law, Justice and Parliamentary Affairs.
20. Power to frame Rules: The Government of Nepal may, in consultation with the court, frame necessary Rules to carry out the objectives of this Act.
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Annex: 6
The Political Party Registration (for the purpose of Election) Rule, 2063 (2007)
In exercise of the power conferred by Section 44 of the Election Commission Act, 2063(2007), the Election Commission has framed the following Rules.
Chapter -1 Preliminary
1. Short title and commencement: (1) These Rules may be cited as the “Political Party Registration (for the purpose of Election) Rule, 2063(2007). (2) This Rule shall come into force at once.
2. Definitions: Unless the subject or the context otherwise requires, in this Rule,- (a) “Constitution” means the Interim Constitution of Nepal, 2063 (2007). (b) “Act” means the Election Commission Act, 2063(2007). (c) “Commission” means the Election Commission referred to in Article 128 of the Constitution. (d) “Authorized person” means any person who is authorized pursuant to Rule 6 to get a political party regis- tered pursuant to this Rule.
3. Objective of registration of political party: The objectives of registration of a political party for the purpose of election shall be as follows: (a) Getting itself registered with the Election Commission by a political party which intends to obtain recog- nition from the Commission for the purposes of election pursuant to Article 142 of the Constitution and Section 19 of the Act; (b) Gaining public support by each political party which intends to take part in an election, by getting itself registered with the Commission for the purpose of election and making it public that it is taking part in the election; (c) Recognizing political parties in order to systematize the election procedures, and contact between politi- cal parties and the Election Commission in the course of election.
Chapter -2 Procedures Relating to Registration of Parties
4. Notice for registration of parties: (1) Prior to holding an election, the Commission shall publish a notice in the Nepal Gazette, inviting each political party, which wishes to get it registered for the purpose of election, to get registered within a maximum period of one month. (2) The Commission shall also publish and broadcast such notice in a newspaper of national circulation and communication media.
5. Application for registration of party: (1) A political party which wishes to get registered for the purpose of election shall make an application, in the format referred to in Schedule-1, and accompanied by the details specified in that Schedule, to the Commission
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for the registration of party within the time specified in the notice published by the Commission in the Nepal Gazette pursuant to Rule 4. (2) Any political party which fails to make an application for the registration of party within the time specified in the notice published pursuant to Rule 4 shall not be allowed to make application subsequently for the registration of party.
6. Application by authorized person: A person who is authorized by the chairperson or secretary general or equivalent office-bearer of the Central Executive Committee or equivalent committee of a political party in the format referred to in Schedule-2, for the purpose of making an application to the Commission for the purpose of registration of the party pursuant to Rule 5, shall, on behalf of such party, make an application to the Commission for the registration of such party. An application so made by an authorized person, on behalf of a political party, to the Commission for the registration of the political party shall be deemed to have been made by the political party.
7. Document to be attached with application for registration of party: An application to be made by any political party for the registration of the party pursuant to Rule 5 shall be accompanied by the following documents and details:- (a) The constitution of the political party. (b) The manifesto of the political party; (c) The Rules of the political party; (d) The flag and logo of the political party; (e) A specimen of the formal logo of the political party; (f) Photocopies of the Nepalese citizenship certificates of the office-bearers of the Central Executive Commit- tee or equivalent committee at the central level; (g) In the event of representation to the Interim Legislature- Parliament, a document proving the same; (h) Letter of authorization received by the authorized person for the registration of the political party; (i) An application bearing signatures, with support, of at least ten thousand voters.
Provided that this provision shall not apply to any political party that is represented to the Interim Legislature- Parliament.
8. Matters to be set out in application: Any application to be made by a political party pursuant to Rule 5 shall set out the following matters: (a) Name of the political party and address of its headquarters; (b) The names and addresses of the members and other office bearers of the Central Executive Committee or of similar other Committee of the political party; (c) Details of funds of income source of the political party and resources for bringing about such funds.
9. Conditions for registration of party: In making an application for the registration of the party pursuant to Rule 5, a political party shall have fulfilled or undertake to fulfill the following conditions specified by clause (3) of Article 142 of the Constitution: (a) Democratic provision made in the constitution and rule or democratic provision to be made in the Consti- tution and rule; (b) The constitution or rules of the political party must provide for election of office-bearers of the party at all levels at least once in every five years; (c) There must be an inclusive provision that the Executive Committees at various levels include the members from women, Dalit and the deprived and oppressed sectors; and (d) The constitution of the party must have an effective provision to maintain discipline of its members.
10. Submission of application bearing signature: (1) A political party which makes an application for the registration of the party pursuant to this Rule shall submit such application in the format as referred to in Schedule-3, bearing signatures, with support, of ten thousand voters pursuant to clause (i) of Rule 7, along with the details of the name, surname, district, election constituency,
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Village Development Committee/Municipality, Ward No, name and surname of the mother or father/husband of each voter, in the format referred to in Schedule-4. (2) The authorized person shall certify that the application bearing signatures, with support, of the voters and the details of voters attached therewith are true and correct.
11. Verification of application bearing signatures: (1) In the course of verifying the details accompanied with an application bearing the signatures, with support, of the voters, made pursuant to Rule 10, the Commission may verify such details with the details of the Electoral Rolls containing the names of such voters. (2) Where, upon verifying the details mentioned in the application made pursuant to Rule 10 with the details contained in the electoral rolls, the Commission confident as to the voters mentioned in the application bearing signatures, the Commission shall recognize the details accompanied with such application bearing signatures in support. (3) Where, in making verification under this Rule of the details accompanied with an application bearing signatures in support made by any political party to the Commission pursuant to Rule 10, the Commission finds such details to be incomplete since such details have any deficiency or error, the Commission may give a period of not more than seven days to the concerned political party to correct such details or complete the same. Where such party corrects such details or complete and submit the same within the period so given, the Commission shall recognize such details for the purpose of registration of party for election. A political party that fails to correct or complete and submit the details to the Commission within that period shall not be registered.
12. Conditions where party cannot be registered: No political party on the following conditions shall be eligible for registration for the purposes of election: (a) which has objectives prejudicial to the basic spirit and essence of the Preamble of the Constitution; (b) which discriminates against any citizen of Nepal in becoming its member on the basis merely of religion, caste, tribe, language or sex; (c) the name, objective, insignia or flag of which is of such a nature as to jeopardize the religious and com- munal unity of the country or to fragment the country; (d) the constitution or rules of the political party which have the objective of protecting and promoting party- less or single party system.
13. Examination and decision: (1) The Commission shall examine an application made by a political party in accordance with the following and make decision on registration of party:- (a) Whether the matters to be set out in the application have been set out or not; (b) Whether the requirements for the registration of party have been completed or not; (c) Whether the application made by the political party for the registration of party and the details and docu- ments attached therewith are complete or not. (2) Where, following an examination pursuant to sub-rule (1), it appears appropriate to register such political party, the Commission shall register it for the purposes of election. (3) Where the Commission finds that the application, documents and details submitted for registration are incomplete, it may further inquire the political party submitting application into such matters as it deems necessary or into any matters it deems expedient. (4) Where the Commission sees any reason and ground that the political party submitting application cannot be registered, it shall give a period of not more than seven days to such party to submit its statements accompanied by evidence. (5) The Commission shall, based on inter alia, the statements and accompanying evidence submitted by the political party with the period given by the Commission for the submission of such statements, make decision to or not to register such party. (6) A political party which fails to submit its statements within the period given by the Commission shall not be allowed to submit its statements subsequently. (7) Nothing shall be deemed to prevent the Commission from making decision to or not to register a political party for the purposes of election by the reason of the failure of such political party to submit its statements within the period given by the Commission.
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(8) The Commission shall publish the names of the political parties registered for the purposes of election in the Nepal Gazette. (9) Where the Commission does not register any political party submitting application, it shall give information thereof to the concerned political party within seven days. (10) Any decision made by the Commission to register or not to register a political party shall be final.
14. Not to register more than one party by one name: (1) More than one political party shall not be registered by one name for the purposes of election. (2) Where it appears that the name of two or more than two political parties submitting application for registration of party is the same, the Commission shall make consultation with the concerned political parties and seek to have understanding for the registration of such political parties so that they can have distinct identification. (3) Where, in the course of consultation with the political parties pursuant to clause (2), an understanding is reached between the concerned political parties for the registration of such political parties so that they can have distinct identification, the Commission shall accordingly register such parties. (4) Where, upon the consultation with the political parties an understanding cannot be reached, the Commission shall make decision to register such political parties so that they can have distinct identification.
Chapter -3 Cancellation of Registration
15. Conditions for cancellation of the party registered for purposes of election: The registration of any political party registered for the purposes of election shall be cancelled on any of the following conditions: (a) If the concerned political party itself makes an application to the Commission for the cancellation of its registration; (b) If it fails to furnish such details as required to be presented under the laws in force to the Commission for three consecutive years; (c) If it fails to fulfill such requirements as required to be fulfilled under the Constitution or the laws in force for the registration of a political party.
16. Procedures for cancellation of registration: (1) Prior to the cancellation of registration of a political party registered with the Commission pursuant to Rule 15 on any other circumstance except where the party itself makes an application to the Commission for the cancellation of its registration or where it fails to furnish such details as required to be presented under the laws in force to the Commission for three consecutive years, the Commission shall give a period of one month to the political party to furnish its statements. (2) Where the party does not furnish its statements within such period or where the furnished statements do not appear reasonable, the Commission shall cancel such registration. (3) The Commission shall publish a notice of the cancellation of registration of a political party pursuant to this Rule in the Nepal Gazette.
17. Name, flag and logo of party of which registration is canceled: The use of the name, flag and logo of a political party of which registration has been canceled pursuant to this Rule shall be as decided by the Commission.
18. Appeal: Where a political party of which registration has been canceled by the Commission pursuant to this Rule is not satisfied with the decision of cancellation of registration may make an appeal to the Supreme Court within thirty-five days after the date of receipt of information of such decision.
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Chapter-4 Miscellaneous
19. Recognition of political party: (1) Where any political party which wishes to take part in an election after the commencement of this Act is registered with the Commission by fulfilling the procedures set forth in the Act and this Rule, such political party shall be deemed to have got recognition for the purposes of election. (2) Where any political party which was registered with the Commission prior to the commencement of this Act for the purposes of election wishes to get recognition from the Commission to take part in an election after the commencement of this Act and is registered with the Commission by fulfilling the procedures set forth in the Act and this Rule, such political party shall be deemed to have got recognition for the purposes of election. (3) Any political party once registered with the Commission by fulfilling the procedures set forth in the Act and this Rule shall not be required to be registered again to take part in any election. Any political party so registered shall be deemed to have got recognition for each election. Provided that such political party shall give information of its taking part in the election to the Commission within the time of the notice published by the Commission for the registration of political parties pursuant to Rule 4.
20. Power to make alteration in Schedules: The Commission may make necessary alteration in the Schedules.
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Annex 7
Regulation Relating to Election of the Members of Constituent Assembly, 2064 (2007)
In exercise of the powers conferred by Section 74 of the Election to Members of the Constituent Assembly Act, 2064 (2007), the Election Commission has framed the following rules.
Chapter-1 Preliminary
1. Short title and commencement: (1) These Rules may be cited as the “Regulation Relating to the Election of the Members of Constituent Assembly, 2064 (2007)”. (2) This Regulation shall come into force immediately. (3) This Regulation shall remain valid for the period till the Constituent Assembly.
2. Definitions: Unless the subject or the context otherwise requires, in this Regulation,- (a) “Act” means the Election to Members of the Constituent Assembly Act, 2064(2007). (b) “Election program” means the election program determined by the Commission pursuant to Rule 4. (c) “Election symbol” means the election symbol determined by the Commission pursuant to Section 31 of the Act. (d) “Polling station” means any polling station specified by the Commission pursuant to Section 34 of the Act, for the purposes of polling in the election.
Chapter-2 Notice on Election and Election Program 3. Notice on election: (1) After the Government of Nepal has specified the date for election to the members of the Constituent Assembly, the Commission shall specify the time for conducting polling on that date and issue a notice for information to the general public and publish such notice in the Nepal Gazette. (2) The Commission may, as required, also cause the notice on election as referred to in sub-rule (1) to be published and broadcast through communication media.
4. Fixation of election program: (1) After the publication of the notice on election pursuant to Rule 3, the Commission shall, in relation to the election under the First Past The Post Electoral System, determine the election program indicating the venue, time and date for the registration of nomination papers of candidates, publication of the list of candidates whose nomination papers have been filed, making complaints against candidates, scrutinizing nomination papers and examining complaints, publication of a name-list of the candidates whose nomination papers meeting requirements have been registered, withdrawal of names of candidates from their candidacy, publication of the final name-list of the candidates, giving election symbols to candidates and conducting polling. (2) The Commission shall, in relation to the election under the Proportional Electoral System, determine the election program indicating the submission of closed list of candidates, time for correction in the closed list of candidates, if such correction is required to be made following the examination of the closed list of candidates, publication of the closed list of candidates accordingly if such correction is not required and that of candidates as corrected and submitted after making such correction if required, making complaints against the closed list of candidates,
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scrutinizing and examining the closed list of candidates, withdrawal of names of candidates from the closed list of candidates and final publication of the closed lists of candidate. (3) The Commission shall publish a notice on election program in the Nepal Gazette and may also cause such notice to be published and broadcast through communication media, as required. 5. Notice on election program to be posted: (1) The Returning Officer shall post a notice on the election program relating to the First Past The Post Electoral System, as referred to in Schedule-1, at his or her office. (2) The Commission shall post a notice on the election program relating to the Proportional Electoral System, as referred to in Schedule-2, at his or her office. (3) A recognizance deed (Muchulka) shall be executed on the publication of the election programs pursuant to sub- rules (1) and (2). (4) The Returning Officer and the Commission shall, to the extent possible, publish and broadcast or cause to be published and broadcast, the notice on election program referred to in sub-rules (1) and (2), respectively, through the communication media. (5) The Returning Officer shall give information on the post of the election program pursuant to sub-rule (1) to the district based offices of political parties, to the extent of availability.
Chapter-3 Nomination of Candidates
6. Filing of nomination papers for First Past The Post Electoral System: (1) A person who has possessed the qualification set forth in the Constitution and the Act and intends to become a candidate in the election to be held under the First Past The Post Electoral System may, himself or herself or through his or her representative, proposer or seconder, file, or cause to be filed, the nomination paper in the format as referred to in Schedule-3 to the Office of Returning Officer at the date and time set forth in the notice on election program. In so filing, or causing to be filed, the nomination paper, one person may file, or cause to be filed, the nomination paper for candidate in a maximum of two election constituencies. (2) In the case of a person who becomes a candidate fielded by a political party, in filing a nomination paper pursuant to sub-rule (1), a formal letter, in the format as referred to in Schedule-4, provided by that political party shall also be submitted, and the office-bearer of that party who is authorized to provide such formal letter shall send a copy of such formal letter to the Returning Officer. (3) In filing, or causing to be filed a nomination paper pursuant to sub-rule (1), any one has to propose and another person has to second the proposal, and the proposer and the seconder have to sign the nomination paper. The nomination paper shall be accompanied by evidence indicating such proposer and seconder are voters whose names are registered in the Electoral Rolls of the same election constituency. (4) Any person may be nominated by a maximum of three nomination papers containing different proposers and seconders for the election in the same election constituency. (5) The person nominated as a candidate shall have to express his or her consent as well by signing it. (6) In order for a nomination paper to be registered pursuant to this Rule, it has to be accompanied by a bank voucher of the deposit of three thousand rupees or by a cash receipt thereof. Provided that a person who intends to get more than one nomination paper filed in one election constituency pursuant to sub-rule (4) shall not be required to furnish a deposit exceeding three thousand rupees. (7) A person who intends to file a nomination paper pursuant to sub-rule (1) to be a candidate in an election constituency other than the election constituency where his or her name is included in the Electoral Rolls, such person shall get it certified by the Commission or the concerned District Election Officer that his or her name is included in the Electoral Rolls and also submit a transcript of the Electoral Rolls along with the nomination paper. (8) If, in scrutinizing a nomination paper filed pursuant to sub-rule (1), it appears to have fulfilled the requirements, the Returning Officer shall register such nomination paper and give a receipt thereof to the person getting the nomination paper registered. (9) If, in making scrutiny pursuant to sub-rule (8), it appears that a nomination paper does not have the proposer or seconder or that the proposer or the seconder is repeated or that it does not contain a receipt of the
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furnished deposit or that it does not contain the signature of the proposer or the seconder or the candidate or does not fulfill the other requirements, the Returning Officer shall get the requirements fulfilled and register the nomination paper. If one intends to get a nomination paper registered without fulfilling the requirements, the nomination paper shall be registered by mentioning the fact of non-fulfillment of the requirements in that nomination paper, and a receipt thereof shall be given.
7. To provide specimen of signature: (1) The office-bearer specified by the Central Executive Committee of a political party registered with the Commission for the purposes of election shall certify the name, surname, post and specimen of signature of the office- bearer who is authorized to provide a person who becomes a candidate on behalf of that party in the election under the First Past The Post Electoral System with a formal letter on the registration of nomination paper and provide the same to the Commission in advance of at least seven days prior to the last date for the filing of nomination papers by candidates. (2) The Commission shall provide a photocopy of such specimen of signature to the Returning Officer in order to verify the signature of the office-bearer providing the formal letter pursuant to sub-rule (1).
8. Nomination papers for proportional election: (1) Notwithstanding anything contained elsewhere in this Regulation, the closed lists of candidates submitted by political parties to the Commission for the election to be held under the Proportional Electoral System shall be set as the nomination papers of candidates. (2) While submitting a closed list to the Commission for the purposes of nominating candidates in the election to be held under the Proportional Electoral System, a political party shall mention the place of which Electoral Rolls contain the name of every candidate included in such closed list, and submit a certified copy of the citizenship certificate of every candidate, as well as his or her address.
9. Procedures relating to closed list of candidates: (1) After the publication of the election program pursuant to Rule 4, a political party which intends to take part in the election to be held under the Proportional Electoral System shall submit a closed list of candidates prepared pursuant to Section 7 of the Act to the Commission within the date and time set forth in the election program. (2) Out of the closed lists of candidate to be submitted to the Commission pursuant to sub-rule (1), the Commission shall not register a closed list of candidates which has not been so prepared that candidates are filed for at least ten percent members of the total number of members to be elected under the Proportional Electoral System. (3) After the submission to it of the closed list of candidates received from a political party, the Commission shall ascertain whether representation is made on the basis of proportional and inclusive principle set forth in sub- section (3) of Section 7 of the Act and, if it is not so representative, notify the concerned political party to make correction in the closed list of the candidates so that proportional and inclusive representation is made and submit it within seven day of the candidates. The Commission may publish for information to the general public the details of such notification. (4) If the concerned political party corrects the closed list of candidates and sends it to the Commission within the time limit referred to in sub-rule (3), the Commission shall set such closed list as the final list. The Commission may publish such list for information to the general public. (5) Other procedures and processes relating to the examination of closed lists of candidates shall be as determined by the Commission.
10. Publication of list of name-list of candidates: After the expiry of the time specified for the registration of nomination papers in relation to the election under the First Past The Post Electoral System, the Returning Officer shall publish, in the format as referred to in Schedule-5, a list of candidates whose nomination papers have been registered pursuant to Rule 6 in his or her Office and send one copy thereof to the Commission.
11. Making complaint objecting to candidate: Where a candidate or his or her election representative intends to make a complaint in relation to the qualification of a candidate whose name is included in the list of candidates published pursuant to Rule 10, such candidate or
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12. Scrutiny of nomination papers : (1) The Returning Officer shall scrutinize the nomination papers registered pursuant to Rule 6 at such date, time and place as specified in the election program. (2) The Returning Office shall scrutinize the nomination papers under sub-rule (1) in presence of the proposer, seconder or candidate himself or herself or one representative authorized in writing by each nominated candidate. Provided that even where the proposer or seconder or candidate himself or herself or his or her representative is not present, nothing shall be deemed to prevent the making of decision in that respect. (3) Where a complaint has been made against any candidate pursuant to Rule 11, the Returning Officer shall, in scrutinizing the nomination papers pursuant to sub-rule (1), also inquire into such objection as well, and make decision thereon. (4) If, in scrutinizing the nomination papers pursuant to sub-rule (1), more than one nomination paper of one person has been filed in any election constituency and such nomination papers are due, the Returning Officer shall set any one nomination paper only according to the will of the concerned candidate or his or her representative.
13. To prepare list of candidates: After the nomination papers have been scrutinized pursuant to Rule 12, the Returning Officer shall prepare, in the format as referred to in Schedule-7, a list of candidates whose nomination papers have met the requirements under the law, publish a copy of the list in his or her Office and send one copy to the Commission forthwith.
14. Withdrawal of name: (1) If any candidate whose name is included in the list of candidates published pursuant to Rule 13 intends to withdraw his or her name, the candidate himself or herself or through his or her representative may give a notice on the withdrawal of name in the format as referred to in Schedule-8, to the Returning Officer at the date and time mentioned in the election program. (2) A notice on withdrawal of name as referred to in sub-rule (1) shall be registered in the Office of Returning Officer, and the notice so registered shall not be subject to withdrawal or cancellation. (3) The Returning Officer shall, if he or she is satisfied with the genuineness of the notice registered pursuant to sub- rule (2), remove the name of the candidate who has withdrawn his or her name from the list of candidates. (4) If, in relation to a candidate fielded by a political party, the office-bearer authorized pursuant to Rule 7 to file the nomination of the candidate on behalf of that party sends an intimation of withdrawing the name of that candidate to the Returning Officer within the date and time set forth in the election program, such candidate shall not be set as a candidate of that party. (5) The Returning Officer shall publish in his or her Office a notice on the removal of name pursuant to sub-rule (3) or (4), in the format as referred to in Schedule-9. (6) Notwithstanding anything contained elsewhere in this Regulation, if any candidate enlisted in the closed list of candidates makes an application to the Commission for the removal of his or her name from the closed list of candidates within the date and time set forth in the election program specified for the proportional election, the Commission shall remove the name of such candidate from the closed list of candidates and give information thereof to the concerned political party.
15. Publication of final name-list of candidates: (1) After the time as specified in the election program under the First Past The Post Electoral System for withdrawing name by the candidate has expired, the Returning Officer shall prepare a final name-list of remaining candidates, in the format as referred to in Schedule-10, and publish one copy of that name-list in his or her Office, send one copy thereof to the Commission immediately. (2) The final name-list of candidates to be prepared pursuant to sub-rule (1) shall be set down according to the alphabetical order of candidates; and in the case of candidates nominated by political parties, the addresses set down in their nomination papers shall also contain the name of the political party concerned.
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16. Final publication of closed list of candidates: (1) After the publication by the Commission of a closed list of candidates received by the Commission after holding inquiry pursuant to the Act and this Regulation, any political party or any person whose name is included in the closed list for the proportional election may, pursuant to Section 29, make a complaint to the Commission, in the format as referred to in Schedule- 11, claiming that any candidate whose name is included in such list does not possess the qualification set forth in the Constitution and the Act. (2) Where a complaint making objection is received pursuant to sub-section (1), the Commission shall make necessary inquiry into the matter; and if any candidate does not appear to have the qualification upon such inquiry, the Commission shall remove the name of such candidate from the closed list of the candidates and publish the final list of the closed list of candidates. Provided that prior to removing the name of any candidate from the closed list of the candidates, he or she shall be provided with an opportunity to furnish his or her statements. (3) The Commission shall send the closed list of candidates finally published pursuant to sub-rule (2) to the concerned political parties for their information.
17. Declaration of elected unopposed: (1) A candidate is elected unopposed in the following circumstance, under the First Past The Post Electoral System: (a) If the nomination paper of only one candidate has been filed in any election constituency and that nomi- nation paper has been found due; or (b) If the nomination papers of more than one candidate have been filed in any election constituency, and while scrutinizing the nomination papers, only one nomination paper has been found due under law and the other nomination papers have not been found due or the nominated candidates have not possessed the qualification; or (c) If the name of only one candidate remains in the final name-list of candidates after removing from that list the names of the candidates having withdrawn their names. (2) The candidate shall be declared elected unopposed, in the case as referred to in clause (a) or (b) of sub-rule (1), after the publication of the final name-list of candidates pursuant to Rule 13, and, in the case as referred to in clause (c) of the said sub-rule, after the publication of the final name-list of candidates pursuant to Rule 15. (3) Where a candidate elected unopposed pursuant to sub-rule (2), the Returning Officer shall make declaration thereof in the format as referred to in Schedule-12 and give information thereof to the Commission immediately.
18. To give identity card to candidate: The Returning Officer shall give an identity card in the format as referred to in Schedule-13 to each candidate included in the final list of candidates published pursuant to Rule 15.
Chapter-4 Election Symbols
19. Election symbols: (1) The Commission shall, in fixing the election symbol to be distributed to any political party or a person who becomes a candidate on behalf of that party in the election to be held under the First Past The Post Electoral System and under the Proportional Electoral System and distributing such symbol pursuant to sub-section (6) of Section 36 of the Act, provide the election symbol obtained by a political party representing to the Legislature- Parliament from the Commission for the purposes of election prior to the commencement of the Act to that political party in having registration for the purposes of election in accordance with the laws in force. (2) In relation to any political party other than any political party set forth in sub-rule (1) or a candidate who becomes a candidate on behalf of that political party, the Commission shall, in fixing an election symbol for the election to be held under the First Past The Post Electoral System and under the Proportional Electoral System and distributing the election symbol, provide such election symbol in order of priority as that political party has requested in the application made by it to the Commission of the registration of political party for the purposes of election at the time of having registration for the purposes of election, in such a manner that there is no disagreement with any other political party.
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(3) If, in distributing the election symbols pursuant to sub-rule (2) more than one political party demands for the same or similar election symbol, the Commission shall hold discussions among these political parties and seek understanding and distribute the election symbols as per such understanding. (4) Notwithstanding anything contained in sub-rule (2), where no understanding is reached upon the discussions pursuant to sub-rule (3), the election symbol shall be determined in a manner to accord priority to the political party which makes application first based on the application made by such political party to the Commission for the registration of party and provided to that political party. (5) No independent candidate other than the candidate of a political party registered with the Commission for the purposes of election shall make a request to use the election symbol as referred to in this Rule in more than one election constituency. (6) The Returning Officer shall provide the election symbol obtained from the Commission by a political party registered with the Commission for the purposes of election to be held under the First Past The Post Electoral System to the candidate of that political party. (7) In providing the election symbols pursuant to sub-rule (6), the Returning Officer shall execute a recognizance deed to that effect. (8) The Returning Officer shall publish a notice on the provision of election symbols pursuant to sub-rule (6), in the format as referred to in Schedule-14, in his or her office and send a copy of the notice to the Commission immediately. (9) A notice on the provision of election symbols by the Commission to political parties pursuant to this Rule shall be published in the format as referred to in Schedule-15. (10) A political party shall remain entitled to an election symbol once provided to that political party unless and until the registration of that party remain valid. (11) The Commission shall, pursuant to this Rule, fix election symbols for the election to be held under the First Past The Post Electoral System and the election to be held under the Proportional Electoral System and groups of election symbols which political parties and independent candidates can use, respectively, and publish the same in the Nepal Gazette.
20. Distribution of election symbols to independent candidates: (1) Each independent candidate shall be asked to choose one election symbol, according to the alphabetical letter of his or her name, from the group of election symbols specified by the Commission for independent candidates pursuant to sub-section (7) of Section 31 of the Act. (2) If, while getting them to choose election symbols pursuant to sub-rule (1), more than one candidate choose the same election symbol, the Returning Officer shall hold discussions with and between them and distribute the election symbols as per the understanding reached consequent upon such discussions. (3) In distributing election symbols by asking independent candidates to choose election symbols pursuant to this Rule, election symbols shall be distributed in presence of candidates or their representatives, as far as possible. Provided that the absence of any candidate or his or her representative at the time of distribution of election symbols shall not be deemed to bar the distributing of election symbols pursuant to this Rule. (4) Notwithstanding anything contained in sub-rule (1), where no understanding is reached upon the discussions pursuant to sub-rule (2), the election symbol shall be determined in a manner to accord priority to the candidate who makes application first based on the registration of the nomination paper filed by such candidate with the Returning Officer and provided to that candidate, accordingly. (5) In providing the election symbols to independent candidates pursuant to this Rule, the Returning Officer shall execute a recognizance deed to that effect. (6) The Returning Officer shall publish a notice on the provision of election symbols pursuant to sub-rule (1) or (2), in the format as referred to in Schedule-16, in his or her office and send a copy of the notice to the Commission immediately.
21. Publication of election symbols: The Commission shall make arrangement for making public the election symbols provided to the political parties pursuant to this Regulation.
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Chapter-5 Polling Stations, Polling and Ballot Boxes
22. Specification of polling stations: (1) The Commission may specify polling stations in a required number in an election constituency. (2) The Returning Officer shall publish in his or her Office a list of polling stations specified pursuant to sub-rule (1) in the format as referred to in Schedule-17. (3) In publishing a list of polling stations pursuant to sub-rule (2), it shall also clearly indicate the polling station where the voters of which village or Tole can cast their votes. (4) In specifying polling stations pursuant to sub-rule (1), they shall, as far as possible, be so specified in such a public place that is convenient to the voters. (5) Where another separate polling station has to be specified because the number of voters who vote at any polling station is more than the number specified by the Commission or due to the occurrence of any other special circumstance, the Returning Officer may, with the approval of the Commission, specify a separate polling station for such overrunning voters or due to such special circumstance. (6) Other grounds to be followed while specifying polling stations from security and convenience viewpoints shall be as determined by the Commission. 23. Specification of the zone of polling station: The Polling Officer has to specify the zone with an area in maximum of 100 meters around the polling station to be the area of polling station in the place where the polling station has been set up by setting out the boundaries thereof. A notice of such specification of the polling station has to be published at the polling station in a manner conspicuous to all. No canvassing of any kind can be made in favor of or against any candidate within such area or zone until the polling gets completed. 24. Power to prohibit entry into polling station: (1) The Polling Officer shall make arrangements to prohibit the entry of voters in order to avoid crowd or undesirable assembly or event at the polling station. (2) While giving permission to any person to enter into the polling station pursuant to clause (d) of sub-section (1) of Section 44 of the Act, he or she shall give such permission only after ascertaining whether that person is an essential person for voting. 25. Ballot papers: (1) Ballot papers for the election to be held under the first-past-the post electoral system shall be in light blue color and those for the election to be held under the Proportional Electoral System shall be in light red color. (2) The ballot papers to be used for the first-past-the post electoral system shall contain the election symbols of candidates and those to be used for the Proportional Electoral System shall contain the election symbols of political parties printed therein. (3) The counter foil of each ballot paper has serial number printed in it. (4) Only those ballot papers of the serial number fixed by the Commission shall be used in each polling station. While holding re-polling, the Returning Officer shall, with the approval of the Commission, fix the ballot papers of another serial number and provide the same to the Polling Officer. (5) Other provisions relating to ballot papers shall be as specified by the Commission. 26. Where ballot boxes are damaged or destroyed: If any ballot box is damaged or destroyed, the polling officer shall have to execute a recognizance deed (Muchulka) to that effect and put his or her signature on the deed and also cause the representatives of political parties and candidates or their election or polling agents present in the polling station to put their signatures thereon. If they do not sign the deed, the polling officer shall set down that matter and get any other two persons present at the polling station to sign it and give information thereof to the Returning Officer. 27. To open sealed packet of ballot papers: The Polling Officer has to execute a recognizance deed on the opening of sealed packet of the ballot papers to be signed by him or her and the political parties and candidates or their agents present at the polling station prior to the
141 Review Report Electoral Laws, Administration and Management commencement of polling on the day for polling. If they do not sign the deed, the Polling Officer shall set down that matter and get any other two persons present at the polling station to sign it.
28. Procedures for examining and closing ballot boxes: (1) The Polling Officer shall, prior to the commencement of polling, open and show ballot boxes to the political parties or candidates or their agents and examine whether the ballot boxes are in order and empty. (2) After examining the ballot boxes pursuant to sub-rule (1), the Polling Officer shall close in their presence the mouth of the ballot boxes with the lids in a manner that only the slits of the ballot boxes for dropping the ballot paper are open. Every ballot box shall be closed with the security seal, and the Polling Officer shall execute a recognizance deed to be signed by the political parties and candidates or their agents present at the polling station. If they do not sign the deed, the Polling Officer shall set down that matter and get any other two persons present at the polling station to sign it. (3) While commencing polling after closing the ballot boxes pursuant to sub-rule (2), the Polling Officer shall execute a recognizance deed to be signed by him or her and the political parties and candidates or their agents present at the polling station. If they do not sign the deed, the Polling Officer shall set down that matter and get any other two persons present at the polling station to sign it. 29. Procedures for providing ballot papers: (1) The polling officer or the employee deputed by the polling officer shall verify the details of a voter having entered into the polling station to cast vote with the electoral rolls, asking him or her his or her name, surname, address and age, as well. In the course of such verification, the polling officer may require the concerned voter to produce any kind of document, instrument or identity card setting out the identity of that voter. (2) Even though, in making verification pursuant to sub-rule (1), it appears that there is a minor error owing to the writing or printing in the details of any voter in the Electoral Rolls, the Polling Officer shall allow such voter to cast vote if he or she is satisfied that such voter is the person set down in the Electoral Rolls. (3) The Polling Officer or the employee deputed by him or her shall indicate a mark with indelible ink in the joint of nail and flesh on thumb of the left hand of the voter prior to providing a ballot paper to the voter for voting. The mark should be indicated in the index finger, if the voter does not have the thumb of the left hand and in the finger of the right hand likewise in the case of the left hand if the voter does not have such finger of the left hand. If the voter does not have any finger of both hands, provision shall be made that he or she can vote through any person whom he or she chooses. (4) After indicating the mark pursuant to sub-rule (3), the voter shall be required to sign the counterfoil of the ballot paper and given the ballot paper. In so providing the ballot paper, the ballot paper to be used under the First Past The Post Electoral System shall be provided first. Provided that no sign, symbol or content except the tick mark shall be indicated or written in the Electoral Rolls. (5) After the ballot paper to be used for the First Past The Post Electoral System is dropped into the ballot box pursuant to sub-rule (3), the Polling Officer or the employee deputed by him or her shall give such voter the ballot paper to be used under the Proportional Electoral System before such voter comes out of the polling station. 30. Method for casting vote: (1) A voter who has received a ballot paper shall proceed to the secret voting compartment to indicate vote and he or she shall indicate his or her vote with the vote indicating seal in the box containing the symbol of the political party or candidate whom she or she chooses as set forth in Rule 31 and then shall fold the ballot paper and drop it into the ballot box. (2) Only one voter shall be allowed to enter into the secret voting compartment for voting at a time. (3) If the Polling Officer thinks that any voter has stayed in the secret voting compartment for more time than is required to impress the vote indicating seal and fold the ballot paper, he or she may inspect the secret compartment and cause the voter staying there to go out. (4) Where any voter after having received a ballot paper determines not to cast vote, the voter has to return the ballot paper to the Polling Officer.
31. To impress seal in ballot paper: (1) A voter shall, while casting vote for the election to be held under the First Past The Post Electoral System, indicate vote by impressing the swastika mark on the ballot paper in the box of any one candidate whom he or she
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chooses and, shall, while casting vote for the election to be held under the Proportional Electoral System, in the box set aside for any one political party whom he or she chooses. (2) While indicating vote pursuant to sub-rule (2), a voter shall go to the secret compartment specified for indicating vote so that no body can see voting and indicate his or her vote by impressing the swastika mark. (3) After indicating vote pursuant to sub-rule (2), a voter shall so fold the ballot paper that the vote indicating mark pressed cannot be seen and drop it into the ballot paper. 32. Complaint against a person voting by impersonation: (1) Where any person is appearing to receive a ballot paper to vote by impersonating any other voter, any political party or candidate or his or her representative may make an objection by making an application in the format as referred to in Schedule-18, accompanied by the deposit of fifty rupees, to the Polling Officer. (2) Where an objection is made pursuant to sub-rule (1), the Polling Officer shall make decision thereon by procuring necessary evidence and immediately set down such objection and decision thereon in the decision book. (3) If, while making such decision pursuant to sub-rule (2), the objection made is held to be correct, the sum of deposit shall be returned by the Polling Officer to the concerned person. If the objection is not held to be correct, the sum of deposit shall be forfeited. 33. Use of electronic device : (1) Notwithstanding anything contained elsewhere in this Regulation, the Commission may provide for the use of any electronic device in any election constituency or election for the purposes of casting vote. (2) In casting vote in the election constituency or election where the Commission has provided for the use of any electronic device pursuant to sub-rule (1), the voter shall use such electronic device for the purposes of casting vote. (3) The procedures for using such electronic device shall be as determined by the Commission. 34. To close the slit of ballot box with security seal for inserting ballot paper there into: After the completion of the act of polling at the polling station, the Polling Officer shall close the slit for inserting into the ballot paper with the security seal in accordance with the procedures prescribed by the Commission for closing the ballot box and execute a recognizance deed to be signed by the political parties or candidates or their representatives present at the polling station. If they do not sign the deed, the Polling Officer shall set down that matter in the deed and get any other two persons present at the polling station to sign it. 35. To prepare inventories of ballot papers: Upon the completion of the act of polling, the Polling Officer shall prepare inventories of ballot papers in the format as specified by the Commission. 36. To safely retain remaining ballot papers and documents: Upon the completion of the act of polling, the Polling Officer shall put the following ballot papers remaining after being used in voting and documents used in polling in separate envelopes sealed with wax-seal, with indicating the type and number of ballot papers contained therein and execute a recognizance deed to be signed by himself or herself and candidates or their representatives present at the polling station, if they so desire; and if they do not sign the deed, the Polling Officer shall set down that matter in the deed and get any other two persons present at the polling station to sign it: (a) Ballot papers not used; (b) Ballot papers canceled; (c) Ballot papers lying outside ballot boxes; (d) Ballot papers returned by voters to the Polling Officer after deciding not to cast vote; (e) Such other documents required by the direction of the Commission or the Returning Officer to be put in sealed envelopes. 37. To hand over ballot boxes and documents to the Returning Officer: (1) The Polling Officer shall safely take and immediately hand over all electoral materials including the ballot boxes bearing the security seal put in accordance with Rule 34, the sealed envelopes containing the ballot papers and documents as referred to in Rule 36 as well as other documents to the Returning Officer.
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(2) Upon receipt of ballot boxes and documents pursuant to sub-rule (1), the Returning Officer shall give a receipt thereof to the Polling Officer. 38. To postpone polling in special circumstances: (1) Where the Polling Officer appointed to a polling station or the Returning Officer of that election constituency is satisfied that the act of polling cannot be conducted owing to any commotion as well as other extra-ordinary situation at the polling station or failure of operation of electronic device owing to any reason or owing to any riot or natural calamity or any act beyond control as referred to in sub-section (1) of Section 40 of the Act, and the polling at that polling station has to be postponed, the Polling Officer or the Returning Officer shall execute a recognizance deed indicating the reason for such postponement of polling, to be signed by himself or herself and candidates or their representatives present at the polling station; and if they do not sign the deed, the Polling Officer shall set down that matter in the deed and get any other two persons present at the polling station to sign it. (2) After executing the recognizance deed on the postponement of polling pursuant to sub-rule (1), the Polling Officer or Returning Officer shall publish a notice on the postponement of polling, also clearly indicating the reason for the postponement of polling.
Chapter-6 Vote Counting and Election Results
39. Publication of notice on commencement of counting of votes: (1) After all ballot boxes used for polling at all polling stations of the election constituency have been received from the Polling Officers, the Returning Officer shall publish in his or her office a notice in the format as referred to in Schedule-19 for information to political parties and candidates, setting out the date, time and place for counting votes. (2) The notice referred to in sub-rule (1) shall also state that any political parties or candidates may, if they so wish, appoint and send their vote counting agents in the place for counting of votes.
40. To commence counting of votes at specified time: (1) The Returning Officer shall commence the counting of votes at the place date and time specified in the notice published pursuant to sub-rule (1) of Rule 39 for the commencement of counting of votes in presence of political parties and candidates or their vote counting agents present thereat. Provided that the absence of any political party or candidate or their representative shall not be deemed to bar the act of counting of votes. (2) The Returning Officer shall execute a recognizance deed on the commencement of counting of votes. (3) The Returning Officer shall give information on the commencement of counting of votes to the Commission immediately.
41. Examination of ballot boxes: (1) After executing the recognizance deed on the commencement of counting of votes, the Returning Officer shall scrutinize as follows the ballot boxes containing the ballot papers in presence of the political parties or candidates or their election agents or vote counting agents present thereat: (a) Whether the ballot box of each polling station has been opened or broken or not. (b) Whether the name of the polling station, code number, serial number of the ballot box has been men- tioned or not. (c) Whether the security seal affixed on the closing point of the ballot box is in order or not. (2) The Returning Officer shall execute a recognizance deed on the examination of ballot boxes pursuant to sub- rule (1). (3) Where there appears any disorder or deficiency in examining the ballot boxes pursuant to sub-rule (1), the Returning Officer shall execute a recognizance deed setting out that matter, to be signed by the political parties, candidates or their representatives present thereat. After the execution of such deed, such ballot boxes shall be kept in a safe place and the counting of ballot papers contained in the other ballot boxes shall commence. After
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the completion of such vote counting, counting of votes shall commence after making an understanding in relation to the ballot boxes in which such disorder or deficiency has been noticed. In the event of failure to reach understanding, information shall be given to the Commission and it shall be done as per the law.
42. Counting of votes: (1) The Returning Officer shall, as far as possible, commence the counting of votes under both electoral systems system at the same time at the place, date and time set forth in the notice as referred to in Rule 39. (2) Where it is not possible to so count votes at the same time pursuant to sub-rule (1), the votes secured by candidates in the election held under the First Past The Post Electoral System shall be counted first; and only after the completion of the counting of such votes, the votes secured by political parties in the election held under the Proportional Electoral System shall be counted. 43. Counting of votes under the First Past The Post Electoral System: (1) After the deed on examination of ballot boxes has been executed pursuant to Rule 41, the security seal affixed on the ballot boxes used for the purpose of the election held under the first- past-the post electoral system shall be broken and the lid of the ballot boxes opened. All ballot papers contained in those ballot boxes shall be poured out in the place of counting of votes. While so pouring ballot papers, the ballot papers of more than one polling station shall be mixed in the same place and votes counted accordingly. Provided that prior to mixing the ballot papers of more than one polling station in the same place and starting counting of votes, the ballot papers of each polling station shall be counted in accordance with the provisions as set forth in the Manual on Election to the Members of the Constituent Assembly, 2064 (2007), and the counting shall be verified with the total number of votes cast at that polling station, and details thereof shall be recorded separately and retained safely. (2) After the counting of votes of all polling stating in any election constituency under the First Past The Post Electoral System has been completed, the Returning Officer shall execute a recognizance deed on the completion of counting of votes and prepare a vote counting chart in the format as specified by the Manual on Election to Members of the Constituent Assembly, 2064 (2007). (3) Where, upon the preparation of the vote counting chart pursuant to sub-rule (2), two or more than two candidates secure an equal number of total valid votes, the Returning Officer shall make decision by lot to be drawn between those candidates who have secured the highest number of valid votes. (4) After having prepared the vote counting chart pursuant to sub-rule (2), the Returning Officer shall, on the basis of that chart, prepare the election results in the format as referred to in Schedule-20 and declare election results by publishing a copy thereof as a declaration of election results. (5) The Returning Officer shall send one copy of the election results pursuant to sub-rule (4) to the Commission immediately. (6) While declaring the election results pursuant to sub-rule (4), the Returning Officer shall declare the candidate who secures the highest number of valid votes as elected. (7) After the declaration of the election results, the Returning Officer shall give a certificate as referred to in Schedule-21 to the elected candidate. (8) After the publication of the election results, the Returning Officer shall prepare an election report in the format as specified by the Manual on Election to Members of the Constituent Assembly, 2064(2007) and send it to the Commission immediately. 44. Counting of votes under the Proportional Electoral System: (1) After the deed on the examination of ballot boxes has been executed pursuant to Rule 41, the security seal affixed on the ballot boxes used for the purpose of the election held under the Proportional Electoral System shall be broken and the lid of the ballot boxes opened. All ballot papers contained in those ballot boxes shall be poured out in the place of counting of votes. While so pouring ballot papers, the ballot papers of more than one polling station shall be mixed in the same place and votes counted accordingly. Provided that prior to mixing the ballot papers of more than one polling station in the same place and starting counting of votes, the ballot papers of each polling station shall be counted in accordance with the provisions as set forth in the Manual on Election to the Members of the Constituent Assembly, 2064 (2007), and the counting shall be verified with the total number of votes cast at that polling station, and details thereof shall be recorded separately and retained safely.
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(2) While counting ballot papers pursuant to sub-rule (1), the ballot papers appearing to be invalid shall be set aside, and then, the valid ballot papers shall be set aside according to the symbols of political parties. A bundle of such set aside ballot papers shall be made, and a recognizance deed shall be executed indicating the total number of ballot papers polled at each polling station. (3) The Returning Officer or the employee deputed by him or her shall, while counting votes, show valid and invalid ballot papers to the election representatives of political parties or their vote counting agents. Provided that they shall not be allowed to touch or correct ballot papers. (4) Out of the ballot papers set aside pursuant to sub-rule (2), the invalid ballot papers shall be counted first. Only then, the valid votes secured by political parties shall be counted. (5) Out of the ballot papers counted, the valid ballot papers and invalid ballot papers shall be sealed in different envelopes to be wax-sealed by the Returning Officers as well as by election representatives of political parties or their agents. (6) After the counting of votes of the election held under the Proportional Electoral System has been completed, the Returning Officer shall execute a recognizance deed on the completion of counting of votes, and shall sign that deed and also seek the election representatives or vote counting agents of political parties present at the place for counting of votes to sign the same. (7) Upon the execution of the deed as referred to in sub-rule (6), the Returning Officer shall set out the total number of valid votes secured by each political party in the chart as specified by the Manual on Election to the Members of the Constituent Assembly, 2064(2007) and also seek the election representatives or vote counting agents of political to sign the same. (8) If election representatives or vote counting agents of political parties do not sign the deed or chart to be executed or prepared pursuant to this Rule, the Returning Officer shall set down that matter in the deed and get any other two persons present at the place for counting of votes to sign it. (9) The Returning Officer shall send one copy of the vote counting chart as referred to in sub-rule (7) to the Commission immediately.
45. Declaration of results of proportional election: (1) After the vote counting charts have been received from all Returning Officers pursuant to sub-rule (9) of Rule 44, the Commission shall prepare the chart of total valid votes secured by each political party, in the format as referred to in Schedule-22. (2) The Commission shall declare as elected the candidates whose names are included in the name-list of candidates selected by the decision of the Central Executive Committee of the concerned political party in a manner to have proportional representation, out of the candidates whose names are included in the closed list of candidates submitted by the political party to the Commission pursuant to sub-section (3) of Section 7 of the Act, in proportion to the votes secured by that party under the Proportional Electoral System. The Commission shall so declare candidates as elected, subject to Section 7 of the Act. (3) Where it appears that any political party has not selected the candidates pursuant to Section 7 of the Act out of the candidates enlisted in the closed list of candidates submitted by the party to the Commission in proportion to the votes secured by that party under the Proportional Electoral System as mentioned in sub-rule (2), the Commission shall give a period of three days to the political party to make correction accordingly. Where the concerned political party fails to make correction accordingly and does not submit an amended list of candidates, the Commission shall declare elected the candidates of the concerned political party to the percentage of seats proportionately from the received lists of candidates in a manner to have proportional representation of the group pursuant to sub-section (3) of Section 7 of the Act. The other procedures on the examination whether candidates have been selected proportionately or not shall be as determined by the Commission. (4) The number of seats to be secured by a political party in proportion to the total number of valid votes secured by that political party in the election held under the Proportional Electoral System shall be determined by using Result Divisor Method as referred to in the Act. (5) While making allocation of the number of seats pursuant to this Rule, the quotient of more than one political party is equal in relation to any seat, it shall be decided by lot as to which of the political parties is to secure that seat. (6) After the declaration of the election results, the Commission shall give a certificate as referred to in Schedule-23 to the elected candidate. (7) The other procedures on the allocation of number of seats in proportion to the votes secured by political parties in the election under the Proportional Electoral System shall be as determined by the Commission.
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Chapter-7 Representatives of Political Parties or Candidates
46.Election representative: (1) A candidate may appoint one election agent in one election constituency where he or she is a candidate in order to do electoral acts on his or her behalf. (2) A political party may appoint one election agent in one election constituency in order to do all electoral acts on its behalf in the election to be held under the Proportional Electoral System. (3) One whose name is included in the Electoral Rolls of the concerned election constituency and is literate can become an election agent. (4) The duties of the election agent shall be as follows: (a) To represent as an agent of the political party or candidate in polling, vote counting or other acts relating to election; (b) To sign as an agent of the political party or candidate in various recognizance deeds to be executed in the course of conducting polling, vote counting or other acts relating to election; (c) To render assistance in the completion of election in a peaceful manner. (5) In the event of appointment of an election agent pursuant to sub-rule (1), a notice vide the appointment letter in the format as referred to in Schedule-24 shall be given to the Returning Officer no later than seven days after the date of publication of the final list of candidates. (6) The Returning Officer shall issue an identity card in the format as referred to in Schedule-25 to an election agent.
47.Polling agent: (1) Any political party or candidate or his or her election representative may appoint a polling agent to do acts relating to polling in the election on its or his or her behalf, in the format as referred to in Schedule-26. (2) One whose name is included in the Electoral Rolls of the concerned election constituency and is literate can be appointed as an election agent. (3) A political party or candidate or its or his or her election representative may appoint one polling agent as referred to in sub-rule(1) at each polling station in order to do all polling related acts on its or his or her behalf. (4) Information on the appointment of the polling agent pursuant to sub-rule (3) shall be given to the Polling Officer of the concerned polling station. (5) The Polling Officer shall issue an identity card in the format as referred to in Schedule-27 to an election agent. (6) It shall be the duty of the polling agent to assist in the completion of polling in a peaceful manner and sign the recognizance deeds required to be executed in relation to polling.
48. Vote counting agent: (1) Any political party or candidate or his or her election representative may appoint vote counting agents in such number as specified by the Returning Officer to do acts relating to vote counting. (2) One whose name is included in the Electoral Rolls of the concerned election constituency and is literate can be appointed as a vote counting agent. (3) The term of the vote counting agent shall, unless earlier terminated by the political party or candidate or his or her election representative, be until the declaration of election results. (4) The Returning Officer shall issue an identity card in the format referred to in Schedule-28 to a vote counting agent. (5) It shall be the duty of the vote counting agent to assist in the completion of vote counting in a peaceful manner and sign the recognizance deeds required to be executed in relation to vote counting.
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Chapter-8 Miscellaneous
49. Procedures for providing tendered ballot papers: (1) Where any person representing himself or herself to be a real voter, after anyone has, by impersonation, already received the ballot paper or voted in the name of that voter, desires to claim that he or she who has come afterwards to vote is the real voter, he or she may make a claim, accompanied by evidence showing his or her identity, before the polling officer that he or she is the real voter, in the format as referred to in Schedule-29. (2) Where a claim is made pursuant to sub-rule (1), the Polling Officer shall enquire as to whether the claimant is the real voter or not. Where the claimant submits an evidence of his or her written identity, identity card, citizenship certificate or other evidence, the Polling Officer shall obtain duplicates thereof. (3) Where, on the basis of the evidence submitted pursuant to sub-rule (2), the Polling Officer is confident that the claimant is the real voter; the Polling Officer shall make a decision on it and record it in the decision book. (4) After making decision pursuant to sub-rule (3), the Polling Officer shall mention it in the inventory of ballot papers as referred to in Schedule-30, require the claimant to put his or her signature on the inventory, and write “a tendered ballot paper” in the blank space on the left side of the space to be signed by the Polling Officer in the ballot paper and provide the ballot paper to the claimant voter. (5) The ballot paper as referred to in sub-rule (4) shall not be inserted into the ballot box but shall be put into a separate envelope kept for “tendered ballot papers”; and the Polling Officer shall keep such envelope in his or her own custody. (6) The Polling Officer shall also maintain a separate diary containing the details of claimants, nature of evidence of claimants and decisions, as well.
50. Electoral expenses: (1) The Commission shall, pursuant to Section 69 of the Act, specify the ceiling of expenses which can be made by a candidate, in the case of the election to be held under the First Past The Post Electoral System, and by a political party, in the case of the election to be held under the Proportional Electoral System. (2) A political party, candidate or their election representatives shall furnish the details of all expenses incurred in the election during the period of election to the District Election Office of the concerned district in the format as referred to in Schedule-31 in relation to the details of expenses incurred by the candidate in the election held under the First Past The Post Electoral System, and to the Commission in the format as referred to in Schedule-32 in relation to the details of expenses incurred by the political party in the case of the election held under the Proportional Electoral System.
51. Format of recognizance deeds: The formats of the recognizance deeds to be executed pursuant to this Regulation shall be as determined in the Manual on Election to Members of the Constituent Assembly, 2064(2007).
52. Alteration in and amendment to Schedules: The Commission may, as required, alter or amend the Schedules attached with this Regulation.
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Annex 8
The Rules Relating to Electoral Rolls, 2063 (2007) In exercise of the powers conferred by Section 44 of the Act Relating to Electoral Rolls, 2063 (2007), the Election Commission has framed the following Rules.
Chapter-1 Preliminary
1. Short title and commencement: (1) These Rules may be cited as the Rules Relating to Electoral Rolls, 2063(2007). (2) This Rule shall come into force forthwith.
2. Definitions: Unless the subject or the context otherwise requires, in this Rule,- (a) “Act” means the Act Relating to Electoral Rolls, 2063 (2007). (b) “Program” means a program published by the Commission pursuant to this Rule to carry out acts, in the course of collecting and updating the Electoral Rolls, including to publish the Electoral Rolls existing for the time being, insert, correct names in the Electoral Rolls, remove names therefrom and make claims and objections, within the period as specified by the Commission. (c) “Enumerator” means a person designated or engaged pursuant to Rule 6 to assist the Assistant Name Reg- istration Officer in collecting and updating Electoral Rolls. (d) “Family” means an individual who lives in an undivided family and possesses the qualification to be a voter.
Chapter-2 Provisions Relating to Collection and Updating of Electoral Rolls
3. Publication of program for collecting and updating Electoral Rolls: (1) The Commission shall, pursuant to sub- section (1) of Section 3 of the Act, publish in the Nepal Gazette a program for collecting and updating the Electoral Rolls of the Wards of Village Development Committees and Municipalities within each Election Constituency. (2) The Commission may, as per necessity, publish and broadcast the program published pursuant to sub-rule (1) through any communication media of national level.
4. Designation of Chief Name Registration Officer: (1) The Commission may designate the District Election Officer as the Chief Name Registration Officer in each District for collecting and updating Electoral Rolls and doing all other necessary acts pertaining thereto. (2) The office of Chief Name Registration Officer shall be situated in the District Election Office.
5. Appointment or designation of Assistant Name Registration Officer: (1) The Commission may appoint or designate a required number of Assistant Name Registration Officers in Wards of each Village Development Committee and Municipality for collecting and updating Electoral Rolls and doing all other necessary acts pertaining thereto. (2) The office of Assistant Name Registration Officer shall be situated in the concerned Village Development Committee or concerned Ward of Municipality. Provided that where there is no Ward Office of any Municipality, the office of Assistant Name Registration Officer shall be situated in the Office of Municipality.
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6. Power to depute or engage Enumerator: The Commission may depute, to the extent of availability, any employees of the Government of Nepal or organizations owned or controlled by the Government of Nepal or organizations operated with grants of the Government of Nepal or local bodies as Enumerators to assist the Assistant Name Registration Officer in collecting and updating Electoral Rolls. Where, in making such deputation, a required number of employees are not available, the Commission may, in consultation with the Assisting Committee referred to in Section 41 of the Act, also depute any teachers of community schools as Enumerators. 7. Program to be posted: (1) Following the publication of a program pursuant to Rule 3, the program shall be published, in the format referred to in Schedule-1, by the Chief Name Registration Officer in the District Election Office, District Administration Office and Office of District Development Committee, and by the Assistant Name Registration Officer in the concerned Ward Office of the concerned Village Development Committee or Municipality. (2) Following the posting of the program pursuant to sub-rule (1), the Assistant Name Registration Officer shall, for the purpose of collecting and updating the Electoral Rolls, also publish the then existing Electoral Rolls in the concerned Ward Office of the concerned Village Development Committee or Municipality. (3) The Chief Name Registration Officer or the Assistant Name Registration Officer shall prepare a recognizance deed on the posting or publication made pursuant to sub-rule (1) or (2), in the format as referred to in Schedule-2. (4) The Chief Name Registration Officer or the Assistant Name Registration Officer shall, as far as possible, publish and broadcast the program through any means of communication at the local level. (5) The Chief Name Registration Officer shall forward information on the posting of the program pursuant to sub- rule (1) and a copy of the program to the offices of all political parties available in the District. Explanation: For the purposes of this sub-rule, “political parties” means the political parties representing to the Legislature-Parliament, and this term also includes such other political parties as specified by the Commission. (6) The Assistant Name Registration Officer shall forward information on the posting of the program pursuant to sub- rule (1) and a copy of the program to the members of the Assisting Committee formed in the ward of Village Development Committee or Municipality pursuant to Section 41 of the Act. 8. Collection of names: After a program has been posted pursuant to rule 7, the Name Enumerator shall, in accordance with the program, shall collect details in the format as referred to in Schedule-3 for the purpose of including the names and other details of those persons who possess the qualification to become voters pursuant to Section 5 of the Act but whose names are not included in the then existing Electoral Rolls in the Electoral Rolls of the concerned Ward of the concerned Village Development Committee or Municipality.
9. To collect details to remove names: (1) While collecting and updating the Electoral Rolls pursuant to this Rules, where the name of a voter has to be removed from the then existing Electoral Rolls by the reason that any member of the family of the voter has died or has permanently migrated or has migrated after getting married or ceased to possess the qualification to retain his or her name in the Electoral Rolls, the Enumerator shall collect details thereof in the format as referred to in Schedule-4 within the time mentioned in the program. (2) While collecting details in order to remove names pursuant to sub-rule (1), details shall be collected in the format as referred to in Schedule-6.
10. Collection of details in order to correct errors: While collecting and updating the Electoral Rolls pursuant to this Rule, if there appears any error in the name, surname, date of birth or similar other details of any voter as contained in the then existing Electoral Rolls, the Enumerator shall, in order to correct such error, collect details in the format as referred to in Schedule-5 within the time mentioned in the program.
11. Basis for collection of details: While collecting details pursuant to Rules 8, 9 and 10, the Enumerator shall collect the same based on the details provided by the concerned voter or his or her family member.
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12. Power to seek evidence: (1) While collecting details pursuant to Rules 8, 9 and 10, the Enumerator may, it appears necessary in relation to permanent residence, ask the person providing details to submit the citizenship certificate or land ownership registration certificate in the name of any member of his or her undivided family, an identity card issued by a government office, local body or an organization under governmental ownership, a recommendation or evidence of migration or marriage issued by the concerned Ward of Village Development Committee or Municipality, which sets out the place of residence. (2) While collecting details pursuant to Rules 8, 9 and 10, the Enumerator may, it appears necessary in relation to birth or age, ask the person providing details to submit the citizenship certificate, a certificate issued by an educational institute or birth registration certificate. (3) It shall be the duty of the person providing details to submit evidence as sought by the Enumerator pursuant to sub-rule (1) or (2). (4) The Enumerator shall not collect the details if the evidence is not provided pursuant to sub-rule (3). 13. Publication of updated Electoral Rolls: (1) The Enumerator shall deliver the details that he or she has collected pursuant to Rules 8, 9 and 10 to the Assistant Name Registration Officer. (2) On receipt of the details pursuant to sub-rule (1), the Assistant Name Registration Officer shall hold necessary inquiry into such details. (3) Based on the inquiry held pursuant to sub-rule (2), the Assistant Name Registration Officer shall update the Electoral Rolls by correcting or removing the details required to be corrected or removed in or from the then existing Electoral Rolls, accompanied by the reason for the same to be mentioned in the said Electoral Rolls and mentioning the name, if any included, in the format referred to in Schedule-7. The Electoral Rolls so updated shall be published, along with a notice, in the concerned Ward of the concerned Village Development Committee or Municipality within the time mentioned in the program. (4) A recognizance deed on the publication of Electoral Rolls made pursuant to sub-rule (3) shall be prepared in the format as referred to in Schedule-2. 14. Application by person whose name is omitted from Electoral Rolls: (1) Where the name of any person who has the qualification to be a voter is omitted from the Electoral Rolls published pursuant to sub-rule (2) of Rule 7 or Rule 13, such person or any of his or her family members shall, within the time mentioned in the program, make an application to the Assistant Name Registration Officer in the format as referred to in Schedule-3, for the inclusion of his or her name. Such application should be accompanied by the citizenship certificate, land ownership registration certificate, a certificate issued by a governmental office, local body, organization under governmental ownership or educational institute or a recommendation of the Village Development Committee or Municipality, evidence of migration or marriage if he or she is migrated or resided upon concluding marriage, setting out birth or age, residence. (2) If an application referred to in sub-rule (1) is not accompanied by the evidence required to be submitted, such application shall not be entertained. 15. Application for correction of details such as name, surname, date of birth, age: Where there is any error in the name, surname, date of birth, age or similar other details of a voter whose name is included in the Electoral Rolls published pursuant to sub-rule (2) of Rule 7 and Rule 13 or where any of such details has to be altered, the voter himself or herself or any of his or her family members shall, within the time mentioned in the program, make an application, accompanied by the necessary evidence, to the Assistant Name Registration Officer in the format as referred to in Schedule-5, for making correction in such details.
16. To give notice for removing name: Where a voter whose name is included in the Electoral Rolls published pursuant to sub- rule (2) of Rule 7 or Rule 13 has died or has migrated permanently from the concerned Village Development Committee or Municipality or has gone elsewhere after getting married or has renounced the citizenship of Nepal or has ceased to possess the qualification to keep on being included in the Electoral Rolls, the voter himself or herself or any of his or her family members shall, within the time mentioned in the program, make an application, setting out such details, to the Assistant Name Registration Officer in the format as referred to in Schedule-4.
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17. To include name, correct details or remove name upon holding inquiry: (1) The Assistant Name Registration Officer shall hold necessary inquiries into any applications made to include names pursuant to Rule 14, to correct names or details pursuant to Rule 15 or to remove names pursuant to Rule 16 and the evidence accompanied therewith. (2) The Assistant Name Registration Officer may, while holding inquiries pursuant to sub-rule (1), seek any matter or other evidence from the applicants. (3) Where, while holding inquiries pursuant to this Rule, it appears that the Electoral Rolls omit any names or contain any errors in details or that any names should be removed from the rolls, the Assistant Name Registration Officer shall, as requested by the applicants or persons giving notice, include the names and others details in the Electoral Rolls or correct the names and other details mentioned in the Electoral Rolls or remove names from the Electoral Rolls.
18. Publication of amended Electoral Rolls: (1) The Assistant Name Registration Officer shall prepare the amended Electoral Rolls by making removal of names from or correction in the updated Electoral Rolls, assigning the reason for the same, where such removal or correction has to be made pursuant to Rule 17, and where names are included, mentioning the same in the format as referred to in Schedule-7. The amended Electoral Rolls so prepared shall be published, along with a notice in the format as referred to in Schedule-8, in the Ward Office of the concerned Village Development Committee or Municipality within the time mentioned in the program. (2) A recognizance deed on the publication of the amended Electoral Rolls made pursuant to sub-rule (1) shall be prepared in the format as referred to in Schedule-2.
19. Application made objecting to Electoral Rolls: Any voter of the concerned Ward of the concerned Village Development Committee or Municipality in the Election Constituency may make an application, accompanied by the reason for his or her objection, to the Assistant Name Registration Officer in the format as referred to in Schedule-9 within the time mentioned in the program, claiming and objecting that the name of any voter whose name is included in the Electoral Rolls published pursuant to sub-rule (2) of Rule 7, Rule 13 or Rule 18 is not eligible to be included pursuant to the Act.
20. To make decision upon inquiring into application making objection: (1) The Assistant Name Registration Officer shall, upon the expiry of the time for making application as referred to in Rule 19, prepare a short description of such application and publish a notice asking the concerned voter to make presence, along with his or her evidence, before the Office within the time for inquiry mentioned in the program to furnish his or her statements, in the concerned Ward of the concerned Village Development Committee or Municipality in the format as referred to in Schedule-10. (2) Where the concerned voter or any of his or her family members is present within the time referred to in sub-rule (1), the Assistant Name Registration Officer may inquiry him or her and seek necessary evidence from him or her. (3) Even in cases where the concerned parties are not present or the evidence as sought is not produced pursuant to sub-rule (2), if, while inquiring into the evidence submitted along with application, finds that the name of such voter has to be removed, the Assistant Name Registration Officer shall make a decision to remove the name in the format as referred to in Schedule-11, setting out the reasons and grounds for the same. (4) The Assistant Name Registration Officer shall prepare a notice of the decision made pursuant to sub-rule (3) in the format as referred to in Schedule-12 and publish the notice in his or her office for information of all the concerned. (5) A recognizance deed on the publication of notice made pursuant to sub-rule (4) shall be prepared in the format as referred to in Schedule-2.
21. To give information to remove repeated name: (1) A voter whose name is registered in the Electoral Rolls of more than one Election Constituency or of more than one place in the same Election Constituency shall, for the purpose of maintaining his or her name only in the Electoral Rolls of one Election Constituency or place of his or her choice and removing his or her name from the Electoral Rolls of the other places, give information to the Assistant Name Registration Officer where his or her name is so repeated in the wards of the same Village Development Committee or Municipality, to the
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Chief Name Registration Officer, directly or through the Assistant Name Registration Officer where his or her name is so repeated in the wards of more than one Village Development Committee or Municipality, and to the Commission, directly or through the Chief Name Registration Officer in respect of inter-district, in the format as referred to in Schedule-6, within the time mentioned in the program. (2) Where the name of any voter is included in the Electoral Rolls of the concerned Ward of any Village Development Committee or Municipality in one or more than one Election Constituency, any voter of the concerned Ward of the same Village Development Committee or Municipality may, for the purpose of removing repetition of name and maintaining only one name in the Electoral Rolls, make an application, accompanied by the reason for the same, to the Assistant Name Registration Officer where the name is so repeated in the wards of the same Village Development Committee or Municipality and to the Chief Name Registration Officer, where the name is so repeated in the wards of more than one Village Development Committee or Municipality, in the format as referred to in Schedule-9, within the time mentioned in the program. (3) Even though any information or application is not received pursuant to sub-rule (1) or (2), where the Commission receives information that the name of any voter is included in the Electoral Rolls of more than one Election Constituency or place, the Commission may give order to the concerned Name Registration Official to maintain the name of such voter in the Electoral Rolls of the Election Constituency or place where he or she resides permanently and remove the name of such voter from the Electoral Rolls of the other Election Constituency or place.
22. Removal of repeated name: (1) On receipt of information pursuant to sub-rule (1) of Rule 21, the concerned Assistant Name Registration Officer or Chief Name Registration Officer shall remove repeated name pursuant to sub-section (1) of Section 19 of the Act. (2) Where an application is received in relation to the repetition of name of a voter pursuant to sub-rule (2) of Rule 21, the Assistant Name Registration Officer or Chief Name Registration Officer may inquire, or seek necessary evidence from, the concerned voter or any of his or her family members or the Ward Office of the Village Development Committee or Municipality where the concerned voter is residing. (3) If, while holding inquiry pursuant to this Rule, it appears that the repeated name should be removed from the Electoral Rolls, the concerned Assistant Name Registration Officer or Chief Name Registration Officer shall publish a notice, in the format as referred to in Schedule-10, in his or her Office, thereby asking the concerned voter to furnish his or her statements within the time for inquiry mentioned in the program. (4) Where the statement made by the voter pursuant to the notice published under sub-rule (3) is not convincing or the concerned voter fails to make his or her statement, and it appears from the available evidence that the name of the concerned voter should be removed, the concerned Assistant Name Registration Officer or Chief Name Registration Officer shall make a decision to remove such repeated name, in the format as referred to in Schedule-11, setting out the reason and ground for the removal of such repeated name. (5) The concerned Assistant Name Registration Officer or Chief Name Registration Officer shall post in his or her Office a notice on the removal of repeated name pursuant to sub-rule (4), in the format as referred to in Schedule-12. (6) On receipt of an order from the Commission pursuant to sub- rule (3) of Rule 21, the Chief Name Registration Officer shall maintain the name of the voter in the Electoral Rolls of any one place where he or she has permanent residence and remove his name from the Electoral Rolls of the other places. Where the name is so removed, a public notice shall be posted for the information of the concerned voter. (7) Notwithstanding anything contained elsewhere in this Rule, where the Assistant Name Registration Officer or Chief Name Registration Officer receives information about the repetition of the name of any voter pursuant to sub-section (2) of Section 19, the concerned Assistant Name Registration Officer, in the case of repetition within the Village Development Committee or Municipality, and the concerned Chief Name Registration Officer, in the case of repetition in any Village Development Committee or Municipality within the District, shall remove the name of such voter from the Electoral Rolls of the Ward of the other Village Development Committee or Municipality, except the Electoral Rolls of the Ward of the Village Development Committee or Municipality where such voter has permanent residence. Where the name is so removed, a public notice shall be posted for the information of the concerned voter. (8) A recognizance deed on the publication or postage of any notice made pursuant to sub-rules (3), (5), (6) or (7) shall be prepared in the format as referred to in Schedule-2.
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23. Removal of name from Electoral Rolls on the basis of death or migration, etc.: (1) Any voter may give a notice to the Assistant Name Registration Officer within the time mentioned in the program, that any voter whose name is included in the Electoral Rolls published pursuant to sub-rule (2) of Rule 7, Rule 13 or 18 has died or has permanently migrated from the concerned Election Constituency or has renounced the citizenship of Nepal or has ceased to possess the qualification to keep on his or her name in the Electoral Rolls. (2) On receipt of a notice pursuant to sub-rule (1), the Assistant Name Registration Officer may, as per necessity, inquire the Local Registrar’s Office, any office of local body or District Administration Office as to whether the person whose name is included in the Electoral Rolls has died or has migrated to elsewhere or has renounced the citizenship of Nepal or has ceased to possess the qualification to be a voter. (3) In the course of inquiring into the notice received pursuant to sub-rule (1), the Assistant Name Registration Officer shall publish in his or her Office a notice, in the format as referred to in Schedule-10, asking the concerned person to furnish his or her statements supported by evidence if his or her name should not be removed from the Electoral Rolls. (4) Where, in examining the evidence received pursuant to sub- rule (2) or (3), it appears that the name of any voter should be removed from the Electoral Rolls, the Assistant Name Registration Officer may remove the name of that voter from the Electoral Rolls. (5) Notwithstanding anything contained elsewhere in this Rule, if it appears from the records maintained in the Local Registrar’s Office that any voter has migrated to elsewhere because of being married or other reason or has died, the Assistant Name Registration Officer may remove the name of such voter from the Electoral Rolls. (6) Where the name of any voter is removed from the Electoral Rolls pursuant to this Rule, the Assistant Name Registration Officer shall publish a notice thereof in his or her Office in the format as referred to in Schedule-12. (7) A recognizance deed on the publication of a notice made pursuant to sub-rule (3) or (6) shall be prepared in the format as referred to in Schedule-2.
24. Preparation of final Electoral Rolls: (1) After having completed the other procedures required to be completed pursuant to this Chapter including the procedures of claim, objection, inquiry and amendment, the Assistant Name Registration Officer shall prepare rolls in the then existing Electoral Rolls in the case of those voters who are enlisted in such rolls and in the Electoral Rolls in the format as referred to in Schedule-7 in the case of those voters who are added in this year. (2) The Assistant Name Registration Officer shall sign each page of the Electoral Rolls prepared pursuant to sub-rule (1). (3) The Assistant Name Registration Officer shall forward the Electoral Rolls prepared pursuant to sub-rule (1), accompanied by the related documents, to the Office of Chief Name Registration Officer within the period mentioned in the program.
25. Publication of final Electoral Rolls: (1) The Chief Name Registration Officer shall publish the final Electoral Rolls received from the Assistant Name Registration Officer in the format as referred to in Schedule-7 pursuant to sub-rule (3) of Rule 24 in his or her Office along with a notice in the format as referred to in Schedule-8 within the time mentioned in the program. (2) Prior to publishing the final Electoral Rolls as referred to in sub-rule (1), the Chief Name Registration Officer shall sign each page of such final Electoral Rolls. (3) A recognizance deed on the publication of final Electoral Rolls pursuant to this Rule shall be prepared in the format as referred to in Schedule-2.
26. To forward final Electoral Rolls to Commission: The Chief Name Registration Officer shall authenticate and send a copy of the final Electoral Rolls published pursuant to Rule 25 to the Commission.
27. Special provisions relating to inclusion of name: (1) Notwithstanding anything contained elsewhere in this Rules, a person who obtains citizenship after the publication of the final Electoral Rolls upon completion of the procedures including the time for making application for correction of name or details pursuant to Section 15 of the Act shall, for the purpose of getting his or her name included in the Electoral Rolls, make an application, accompanied by the citizenship certificate
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which he or she has obtained, and in the format as referred to in Schedule-13, to the Chief Name Registration Officer, within the period specified by the Commission pursuant to Section 23 for the purpose of including the name of such person in the Electoral Rolls, to get his or her name included in the Electoral Rolls. (2) While making inquiry into whether the procedures including the time of making application for correction of name or details pursuant to Section 15 of the Act were completed prior to the obtaining of the citizenship certificate by the person making application for getting his or her name included in the Electoral Rolls referred to in sub-rule (1) and whether he or she has obtained such certificate within the period specified by the Commission and whether such person has possessed the qualification to become a voter pursuant to this Act, the application appears to be reasonable, the name of such person shall be included in the Electoral Rolls. (3) The Electoral Rolls prepared by including names pursuant to this Rule shall be published in the format as referred to in Schedule-7. (4) The procedures of claim and objection shall be fulfilled pursuant to this Rule in respect of the Electoral Rolls published pursuant to sub-rule (3). (5) A recognizance deed on the publication of Electoral Rolls pursuant to sub-rule (3) shall be prepared in the format as referred to in Schedule-2.
Chapter-3 Provisions Relating to Temporary Electoral Rolls
28. Publication of program for collecting temporary Electoral Rolls: (1) While publishing a program for collecting and updating the names of voters pursuant to Rule 3, the Commission shall also publish a program for collecting temporary Electoral Rolls. (2) After the publication of the program pursuant to sub-rule (1), the Chief Name Registration Officer shall post a program on collecting names of temporary voters in the District Election Office, in the format as referred to in Schedule-1. (3) A recognizance deed on the posting of the program by the Chief Name Registration Officer pursuant to sub-rule (2) shall be prepared in the format as referred to in Schedule-2. 29. Collection of names of temporary voters: (1) After publishing the program pursuant to Rule 28 and within the period mentioned in the program, the concerned office, in the case of employees serving in a governmental office, local body or body or organization owned or controlled by Nepal, the authority responsible for managing the concerned military or police barrack or cantonment, in the case of persons staying in such military or police barracks or combatants of Maoist army staying in such cantonment, and the concerned Jailer, in the case of prisoners or detainees in a prison, shall forward the names and details of temporary voters who possesses the qualification as referred to in the Act to the concerned Chief Name Registration Officer in the format as referred to in Schedule-14. (2) The Chief Name Registration Officer shall prepare the temporary Electoral Rolls, based on the names and details received pursuant to sub-rule (1). 30. Publication of temporary Electoral Rolls: (1) The Chief Name Registration Officer shall publish in his or her Office the temporary Electoral Rolls prepared pursuant to Rule 29 in the format as referred to in Schedule-15, within the time mentioned in the program. (2) A recognizance deed on the publication of temporary Electoral Rolls pursuant to this Rule shall be prepared in the format as referred to in Schedule-2. 31. Application for inclusion of name in temporary Electoral Rolls: (1) Where the name of any person who has the qualification to be a voter is omitted from the temporary Electoral Rolls published pursuant to Rule 30, such person shall, within the time mentioned in the program, make an application to the Chief Name Registration Officer in the format as referred to in clause (a) of Schedule-16, for the inclusion of his or her name. (2) In making an application for the inclusion of name pursuant to sub-rule (1), such application shall also be accompanied by an evidence given by the competent authority or office referred to in sub-rule (1) of Rule 29 in substantiation of his or her claim.
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32. Examination of application: (1) The Chief Name Registration Officer shall hold necessary inquiry into any applications and accompanying evidence received pursuant to Rule 31, and may, while holding such inquiry pursuant to sub-rule (1), seek any matter or other evidence from the applicants. (2) Where, while holding inquiry pursuant to sub-rule (1), it appears that the Electoral Rolls omit any name, the Chief Name Registration Officer shall include the name and others details of applicant in the temporary Electoral Rolls.
33. Publication of amended temporary Electoral Rolls: (1) Where any name is included in the temporary Electoral Rolls pursuant to sub-rule (2) of Rule 32, the Chief Name Registration Officer shall, within the time mentioned in the program, publish in his or her Office the amended temporary Electoral Rolls in the format as referred to in Schedule-15. (2) A recognizance deed on the publication of the amended temporary Electoral Rolls made pursuant to sub-rule (1) shall be prepared in the format as referred to in Schedule-2.
34. Application for objection: Any voter may make an application to the Chief Name Registration Officer in the format as referred to in clause (b) of Schedule-16 within the time mentioned in the program, claiming and objecting that the name of any voter whose name is included in the amended temporary Electoral Rolls published pursuant to Rule 33 is not eligible to be included pursuant to the Act.
35. To make decision upon inquiring into application making objection: (1) While inquiring into an application and the evidence submitted along with application received pursuant to Rule 34, the Chief Name Registration Officer finds that the name of such voter has to be removed from the temporary Electoral Rolls, he or she shall make a decision to remove such name from the temporary Electoral Rolls. (2) Prior to making decision to remove the name of any voter from the temporary Electoral Rolls pursuant to sub- rule (1), the Chief Name Registration Officer shall publish a notice in the format as referred to in Schedule-17, asking such voter to submit his or her statement, if any, why his or her name should not be removed from the temporary Electoral Rolls. (3) The Chief Name Registration Officer shall prepare a notice of the decision made pursuant to sub-rule (1) in the format as referred to in Schedule-18 and publish the notice in his or her office. (4) A recognizance deed on the posting of notice made pursuant to sub-rule (3) shall be prepared in the format as referred to in Schedule-2.
36. Preparation of final temporary Electoral Rolls: (1) After having completed the other procedures required to be completed pursuant to this Chapter including the procedures of claim, objection, inquiry and amendment, the Chief Name Registration Officer shall prepare the temporary Electoral Rolls in the format as referred to in Schedule-15. (2) The Chief Name Registration Officer shall sign each page of the temporary Electoral Rolls prepared pursuant to sub-rule (1).
37. Publication of final temporary Electoral Rolls: (1) The Chief Name Registration Officer shall publish the final temporary Electoral Rolls referred to in Rule 36 in his or her Office, within the time mentioned in the program. (2) A recognizance deed on the publication of final temporary Electoral Rolls pursuant to sub-rule (1) shall be prepared in the format as referred to in Schedule-2.
38. To forward final temporary Electoral Rolls to Commission: The Chief Name Registration Officer shall authenticate and send a copy of the final temporary Electoral Rolls published pursuant to Rule 37 to the Commission.
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39. To forward temporary Electoral Rolls of employees and security personnel deputed in election or polling center: The Returning Officer shall provide the temporary Electoral Rolls of the employees and security personnel to be deputed in election or polling center to the concerned polling officer when he or she is deputed to the polling center.
Chapter-4 Miscellaneous
40. To forward notice of publication of final Electoral Rolls: (1) The Chief Name Registration Officer shall forward a notice on the publication of the final Electoral Rolls or temporary Electoral Rolls pursuant to Rule 25 or Rule 37 to the District Administration Office and the Office of District Development Committee. (2) The information of the notice referred to in sub-rule (1) shall also be forwarded to the district based offices of political parties as referred to in sub-rule (5) of Rule 7. (3) Chief Name Registration Officer may also publish or broadcast through local level communication means the information on the publication of the final Electoral Rolls or temporary Electoral Rolls pursuant to this Rule. 41. Functions, duties and powers of Chief Name Registration Officer: In addition to the functions, duties and powers mentioned in the Act and elsewhere in this Rules, the functions, duties and powers of the Chief Name Registration Officer shall be as follows: (a) To coordinate, inspect and monitor the functions to be performed by the Assistant Name Registration Of- ficer pursuant to the Act and this Rule; (b) To settle problems if any arising in the course of preparing the Electoral Rolls and other details; (c) To make recommendation to the Commission for reward to the employee who has shown excellent perfor- mance, out of the employees involved in the collection and updating of Electoral Rolls; (d) To examine the complaints received in respect of the activities of the employees involved in the collection and updating of Electoral Rolls and make a request to the Commission for necessary action; (e) If it appears that any employee involved in the collection and updating of Electoral Rolls and other details of voters appears to have done act contrary to the Act and this Rules or acted recklessly, to make a request to the Commission to take departmental action against such employee; (f) To give instruction or direction in respect of the functions and duties to be performed by the Assistant Name Registration Officer pursuant to the Act, these Rules and manuals framed thereunder; (g) To prepare annual plans and programs for the collection and updating of Electoral Rolls pursuant to the Act and these Rules and forward the same to the Commission; (h) To perform such other functions as may be prescribed by the Commission. 42. Preparation of required copies of Electoral Rolls: The Commission shall, treating the final Electoral Rolls and final temporary Electoral Rolls provided by the Chief Name Registration Officer as master copies of Electoral Rolls, prepare a required number of copies of the Electoral Rolls. 43. Inspection of Electoral Rolls and issuance of duplicate copies thereof: If any voter or candidate intends to inspect or obtain duplicate copies of the Electoral Rolls and temporary Electoral Rolls, the Commission, District Election Office or office specified by the Commission may so allow such voter or candidate to inspect such rolls that the same is not torn, defaced or overwritten or issue duplicate copies thereof. 44. Settlement of disputes: If there arises any dispute in respect of the Electoral Rolls or final temporary Electoral Rolls, such dispute shall be settled, taking the Electoral Rolls published pursuant to Rule 26 and Rule 38, respectively, as the basis. 45. Sale of copies of Electoral Rolls: Where any person or organization intends to purchase the Electoral Rolls, the Commission, District Election Office or office specified by the Commission may, to the extent of availability, sell copies of the Electoral Rolls or compact discs thereof, by collecting such fees as may be prescribed by the Commission.
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46. To place Electoral Rolls in website: The Commission shall establish its own website for public information of and access to the final Electoral Rolls collected, updated and prepared pursuant to the Act and this Rules and put such Electoral Rolls in such website.
47. Special provision on inclusion of name in and correction of errors in Electoral Rolls: (1) Notwithstanding anything contained elsewhere in these Rules, the Commission may issue an order so that any person who has the qualification to be a voter pursuant to the Act but whose name is not included in the then existing Electoral Rolls may, and a voter whose name is included in the Electoral Rolls but the rolls contain any error in the details of that voter may, at any time, make application, accompanied by evidence, to the concerned District Election Office for the inclusion of his or her name or the correction of such error in the Electoral Rolls. (2) The District Election Officer shall provide the applications received pursuant to sub-rule (1) to the Assistant Name Registration Officer at the time of collecting and updating the Electoral Rolls pursuant to the Act and this Rule. (3) The Assistant Name Registration Officer shall, under Rule 17, take action on the applications received pursuant to sub-rule (2).
48. Certification of voter: (1) Where any voter whose name is included in the Electoral Rolls of any Election Constituency intends to get the matter certified that he or she is a voter of that Election Constituency, he or she shall make an application, accompanied by the fee of ten rupees or postal stamp worth equivalent thereto to the Commission, District Election Office or authority authorized by the Commission. (2) Where an application referred to in sub-rule (1) is received, the Commission, District Election Office or authority authorized by the Commission shall certify the matter contained in the Electoral Rolls if the name of such voter is included in the Electoral Rolls.
49. To retain documents safely: The Electoral Rolls and all documents related with the Electoral Rolls shall be safely retained in the office until such period as determined by the Commission.
50. Power to seek assistance: In the course of preparation of the Electoral Rolls, the Commission, Chief Name Registration Officer, Name Registration Official and Assistant Name Registration Officer may, as per necessity, seek assistance of the Government of Nepal or any organization owned or controlled by, or operated with grants of, the Government of Nepal, local bodies, political parties, social organizations and other bodies. It shall be the duty of all the concerned to render assistance so sought.
51. Correspondences: For the purposes of collecting and updating the Electoral Rolls pursuant to this Rules, the Chief Name Registration Officer and Assistant Name Registration Officer shall, while making correspondence with any person, office, organization or body shall establish a registration book in the format as referred to in Schedule-19 and a dispatch book in the format as referred to in Schedule-20 and maintain records of letters received and dispatched.
52. Alteration or amendment in Schedules: The Commission may, by publication of a notification in the Nepal Gazette, make necessary alteration or amendment in Schedules.
53. Repeal and saving: (1) The Rules Relating to Electoral Rolls, 2052 (1995) is hereby repealed. (2) The acts and actions done and taken under the Rule mentioned in sub-rule (1) shall be deemed to have been done and taken under this Rule.
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Annex- 9 Electoral Systems of the World Method of election of unicameral legislature or lower house of bicameral legislature
Country Electoral System Type # Reps Afghanistan first-past-the-post plurality 205 Albania parallel: two-round system semi-proportional 140 Algeria party list proportional 430 American Samoa (USA) first-past-the-post plurality 20 Andorra parallel: block semi-proportional 28 Angola party list pr oportional 220 Antigua and Barbuda first-past-the-post plurality 17 Argentina party list proportional 257 Armenia parallel: first-past-the-post semi-proportional 189 Aruba (Netherlands) first-past-the-post plurality 21 Australia alternative vote majority 148 Austria party list proportional 183 Azerbaijan parallel: two-round system semi-proportional 125 Bahamas first-past-the-post plurality 49 Bahrain first-past-the-post-block plurality 30 Bangladesh first-past-the-post plurality 300 Barbados first-past-the-post plurality 28 Belarus two-round system majority 260 Belgium party list proportional 150 Belize first-past-the-post plurality 29 Benin party list proportional 83 Bermuda block plurality 40 Bhutan first-past-the-post plurality 150 Bolivia mixed member proportional 130 Bosnia and Herzegovina party list proportional 240 Botswana first-past-the-post plurality 47 Brazil party list proportional 513 Brunei no direct election -- -- Bulgaria party list proportional 240 Burkina Faso party list proportional 111 Burma first-past-the-post plurality 485 Burundi party list proportional 81 Cambodia party list proportional 120 Cameroon parallel: first-past-the-post semi-proportional 180 Canada first-past-the-post plurality 295 Cape Verde Islands party list proportional 79 Cayman Islands first-past-the-post plurality 19 Central African Republic two-round system majority 85 Chad two-round system majority 125
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Chile party list proportional 120 China no direct election -- -- Colombia party list proportional 168 Comoros Islands two-round system majority 42 Congo (Brazzaville) two-round system majority 125 Congo (Democratic Republic) first-past-the-post plurality 210 Cook Islands (NZ) first-past-the-post plurality 25 Costa Rica party list proportional 57 Cuba two-round system majority 589 Cyprus party list proportional 80 Czech Republic party list proportional 200 Denmark party list proportional 179 Djibouti party block plurality 65 Dominica first-past-the-post plurality 31 Dominican Republic party list proportional 120 Ecuador parallel: party block semi-proportional 77 Egypt two-round system majority 444 El Salvador party list proportional 84 Equatorial Guinea party list proportional 80 Eritrea party list proportional 130 Estonia party list proportional 101 Ethiopia first-past-the-post plurality 547 Federated States of Micronesia first-past-the-post plurality 14 Fiji block-first-past-the-post plurality 70 Finland party list proportional 200 France two-round system majority 577 French Guiana two-round system majority 19 French Polynesia party list proportional 41 Gabon two-round system majority 120 Gambia first-past-the-post plurality 36 Georgia parallel: two-round system semi-proportional 235 Germany mixed member proportional 656 Ghana first-past-the-post plurality 200 Greece party list proportional 300 Grenada first-past-the-post plurality 15 Guadeloupe (France) two-round system majority 42 Guam (USA) first-past-the-post plurality 21 Guatemala parallel: first-past-the-post semi-proportional 80 Guernsey (UK) first-past-the-post plurality 33 Guinea parallel: first-past-the-post semi-proportional 114 Guinea-Bissau party list proportional 100 Guyana party list proportional 53 Haiti two-round system majority 83 Honduras party list proportional 128 Hungary mixed member proportional 386
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Iceland party list proportional 63 India first-past-the-post plurality 543 Indonesia party list proportional 425 Iran two-round system majority 270 Iraq two-round system majority 250 Ireland single transferable vote proportional 166 Isle of Man (UK) first-past-the-post plurality 24 Israel party list proportional 120 Italy mixed member proportional 630 Ivory Coast first-past-the-post-block plurality 175 Jamaica first-past-the-post plurality 60 Japan parallel: first-past-the-post semi-proportional 500 Jersey (UK) first-past-the-post plurality 53 Jordan single non-transferable vote semi-proportional 80 Kazakhstan first-past-the-post plurality 67 Kenya first-past-the-post plurality 188 Kiribati two-round system majority 39 Korea (North) first-past-the-post plurality 687 Korea (South) parallel: first-past-the-post semi-proportional 299 Kuwait block plurality 50 Kyrgyzstan two-round system majority 35 Laos block plurality 85 Latvia party list proportional 100 Lebanon party block plurality 128 Lesotho first-past-the-post plurality 65 Liberia party list proportional 64 Lybia no direct election -- -- Liechtenstein party list proportional 25 Lithuania parallel: two-round system semi-proportional 141 Luxembourg party list proportional 60 Macedonia two-round system majority 120 Madagascar party list proportional 138 Malawi first-past-the-post plurality 177 Malaysia first-past-the-post plurality 192 Maldives block plurality 40 Mali two-round system majority 147 Malta single transferable vote proportional 65 Marshall Islands first-past-the-post plurality 33 Martinique (France) two-round system majority 45 Mauritania two-round system majority 79 Mauritius block plurality 70 Mayotte (France) two-round system-first-past-the-post majority 17 Mexico mixed member proportional 500 Moldova two-round system majority 104 Monaco two-round system majority 18
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Mongolia first-past-the-post plurality 76 Montserrat first-past-the-post plurality 7 Morocco first-past-the-post plurality 222 Mozambique party list proportional 250 Namibia party list proportional 72 Nauru alternative vote majority 18 Nepal first-past-the-post plurality 205 Netherlands party list proportional 150 Netherlands Antilles party list proportional 27 New Caledonia (France) party list proportional 54 New Zealand mixed member proportional 120 Nicaragua party list proportional 92 Niger parallel: first-past-the-post semi-proportional 83 Nigeria first-past-the-post plurality 593 Niue (NZ) first-past-the-post-block plurality 20 Northern Mariana Islands (USA) first-past-the-post plurality 18 Norway party list proportional 165 Oman no direct election -- -- Pakistan first-past-the-post plurality 217 Palau first-past-the-post plurality 30 Palestinian Authority block plurality 88 Panama party list proportional 72 Papua New Guinea first-past-the-post plurality 109 Paraguay party list proportional 80 Peru party list proportional 120 Philippines block plurality 204 Poland party list proportional 460 Portugal party list proportional 230 Puerto Rico (USA) first-past-the-post plurality 53 Qatar no direct election -- -- Reunion (France) two-round system majority 44 Romania party list proportional 328 Russia parallel: first-past-the-post semi-proportional 450 Rwanda first-past-the-post plurality 70 San Marino party list proportional 60 Sao Tomé and Principe party list proportional 55 Saudi Arabia no direct election -- -- Senegal parallel: party block semi-proportional 120 Seychelles parallel: first-past-the-post semi-proportional 33 Sierra Leone party list proportional 68 Singapore party block-first-past-the-post plurality 83 Slovakia party list proportional 150 Slovenia party list proportional 90 Solomon Islands first-past-the-post plurality 47 Somalia parallel: first-past-the-post semi-proportional 123
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South Africa party list proportional 400 Spain party list proportional 350 Sri Lanka party list proportional 225 St. Kitts and Nevis first-past-the-post plurality 11 St. Lucia first-past-the-post plurality 17 St. Pierre and Miquelon (France) two-round system-first-past-the-post majority 19 St. Vincent and the Grenadines first-past-the-post plurality 15 Sudan first-past-the-post plurality 275 Suriname party list proportional 51 Swaziland first-past-the-post plurality 55 Sweden party list proportional 349 Switzerland party list proportional 200 Syria first-past-the-post plurality 250 Taiwan parallel: single non-transferable vote semi-proportional 164 Tajikistan two-round system majority 181 Tanzania first-past-the-post plurality 232 Thailand block plurality 391 Togo two-round system majority 81 Tonga first-past-the-post plurality 9 Trinidad and Tobago first-past-the-post plurality 36 Tunisia parallel: party block semi-proportional 163 Turkey party list proportional 550 Turkmenistan two-round system majority 50 Turks and Caicos Islands first-past-the-post plurality 13 Tuvalu first-past-the-post plurality 12 Uganda first-past-the-post plurality 214 Ukraine half plurality; half nationwide party-list PR semi-proportional 450 United Arab Emirates no direct election -- -- United Kingdom first-past-the-post plurality 659 United States of America first-past-the-post plurality 435 Uruguay party list proportional 99 Uzbekistan two-round system majority 250 Vanuatu single non-transferable vote semi-proportional 50 Venezuela mixed member proportional 203 Vietnam two-round system majority 393 Virgin Islands (UK) first-past-the-post plurality 9 Virgin Islands (USA) block plurality 15 Wallis and Futuna (France) party list proportional 20 Western Samoa first-past-the-post-block plurality 47 Yemen first-past-the-post plurality 301 Yugoslavia (Serbia-Montenegro) party list proportional 138 Zambia first-past-the-post plurality 150 Zimbabwe first-past-the-post plurality 120
Sources: Handbook of Electoral System Design (Stockholm, Sweden: International Institute for Democracy and Electoral Assistanc e, 1997); Ukraine from Article 1(2) of Law on Parliamentary Elections (1997)
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Annex- 10 The Order of the President of Nepal to remove Difficulties under Article 158 of the Interim Constitution, 2013 (2069) By - President of Nepal
Whereas, grave political and constitutional difficulties emerged in the functioning of the state affairs despite various efforts made to bring the constitutional process back in track following the expiry of the term of the Constituent Assembly on May 27, 2012 without completion of the task of making the new Constitution and the Legislature-Parliament as well is not in existence, thus, in order to end the political stalemate by ensuring the election of the Constituent Assembly having considered the principle of necessity as well;
Whereas, it is essential to complete the process of Constitution-making having formed the Constituent Assembly through new election of the Constituent Assembly and for that purpose, it is necessary to hold the next election of the Constituent Assembly as soon as possible having formed an interim Council of Ministers under the chairpersonship of the Chief Justice of the Supreme Court based on consensus of political parties;
Whereas, there are difficulties emerged in the functioning of the state as there is constitutional provision that appointment to the vacant positions in the Supreme Court, constitutional bodies and to Ambassadors shall be made only after parliamentary hearing thereby no appointment could be made in those positions and there is no Legislature-Parliament at present, thus, in order to make such appointment without the parliamentary hearing;
Whereas, the constitutional provisions made in various Articles of the Interim Constitution of Nepal, 2006 has created hurdles and difficulties;
Now, therefore, the President has, on the basis of the eleven-point consensus concluded among political parties on March 13, 2012 to remove such hurdles and difficulties and on the recommendation of the Government of Nepal Council of Ministers, issued the following Order to remove such hurdles and difficulties pursuant to Article 158 of the Interim Constitution of Nepal, 2006:
1. Since clause (a) of Article 33 of the Interim Constitution of Nepal, 2006 (hereinafter referred to as the “Constitution” in this Order) contains a provision that the election of the Constituent Assembly will be held within the year 2064 BS (12 April 2008) and the said clause has created hurdle for holding election to another Constituent Assembly, to the effect of holding the election to the Constituent Assembly within the month of Mangshir of the year 2070 (15 December 2013); 2. Clause (1) of Article 38 of the Constitution provides that the Prime Minister shall be appointed and the Council of Ministers shall be formed under his/her chairpersonship, however, in order to implement the political consensus to form the Council of Ministers under the chairpersonship of the Chief Justice of the Supreme Court, there is hurdle created by sub-clause (b) of clause (7) of Article 38 of the Constitution providing that the Prime Minister will be relieved from the office if he/she is not a member of the Legislature-Parliament, to the effect of forming the Council of Ministers under the chairpersonship of the Chief Justice of the Supreme Court; 3. Clause (3) of Article 38 of the Constitution provides that the structure of the Interim Council of Ministers and allocation of the portfolio shall be determined by mutual consent, however, in case of the Council of Ministers to be formed for the purpose of holding the next election of the Constituent Assembly, there is hurdle to form the Council of Ministers having determined the structure of the Interim Council of Ministers and allocation of the portfolio by mutual consensus, to the effect of forming the Council of Ministers under the chairpersonship of the Chief Justice of the Supreme Court and the Chairperson of the Council of Ministers to form the Council of Ministers comprising of Ministers from amongst the persons retired from special class of the civil service with a view to maintain impartiality of the Council of Ministers to hold election; 4. Clause (5) of Article 38 of the Constitution provides that while appointing Ministers by the Prime Minister, he/she has to appoint minister from amongst members of the Legislature-Parliament on the recommendation of the concerned party, however, as there is no Legislature-Parliament at present and it has created hurdle to appoint ministers, to the effect of appointing ministers by the chairperson of the Council of Ministers in case of the Council of Ministers to be formed for the purpose of holding election to the next Constituent Assembly; 5. Sub-clause (c) of Clause (8) of Article 38 of the Constitution provides that the Prime Minister shall relieve a Deputy Prime Minister, Minister, State Minister and Assistant Minister from the office on the recommendation of the concerned party or in consultation with such party, to the effect of removal of such ministers by the chairperson of the Council of Ministers in case of the Council of Ministers to be formed for the purpose of holding election to the next Constituent Assembly; 6. Article 40 of the Constitution provides that the any person who is not a member of the Legislature-Parliament may be appointed to the position of Deputy Prime Minister, Minister, State Minister and Assistant Minister on the basis of political consensus, however, such a clause has created hurdle by requiring political consensus for such appointment, to the effect of
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making a provision that the chairperson of the Council of Ministers may make such appointment; 7. To the effect that the word “Prime Minister” appearing in the Constitution and other laws in force for the time being also means the chairperson of the Council of Ministers to be formed for holding election to the Constituent Assembly; 8. Since Chapter 7 of the Constitution does not envisage next election to the Constituent Assembly and there is no situation of formation of another Constituent Assembly, to the effect of holding election for the next Constituent Assembly according to the main purpose and spirit of the Constitution; 9. Sub-clause (a) of Clause (3) of Article 63 of the Constitution provides that the Constituent Assembly shall be formed in such a manner that one member elected, under the first-past-the-post system, from each geographical constituency, by the Constituency Delimitation Commission under Article 154A, based on the national census preceding the Constituent Assembly elections, and as far as possible maintaining the same relationship between number of members and population for all the administrative districts, however, in the present context of the new census conducted in 2011 and its result has been already made public, there is hurdle to delineate the election constituency again and hold the election by June 21, 2013, to the effect that the 240 election constituencies will remain as they are for the election to be held by June 21, 2013 as it was in the 2008 election; 10. Sub-clause (b) of Clause (3) of Article 63 of the Constitution provides that three hundred thirty five members to the Constituent Assembly shall be elected according to the proportional election system, to the effect of electing two hundred forty members according to the proportional election system for the purpose of the next Constituent Assembly; 11. Sub-clause (c) of Clause (3) of Article 63 of the Constitution provides that the Council of Ministers shall nominate twenty six persons from among distinguished persons making significant contribution in national life, to the effect of nominating eleven persons for the purpose of the next Constituent Assembly; 12. Clause (7) of Article 63 of the Constitution provides that for the purpose of election to the Constituent Assembly, every Nepali citizen who has attained the age of eighteen years by the end of Mangshir, 2063 (15th December 2006) shall be entitled to vote, thus, there emerges constitutional hurdle to confer voting right to the Nepali citizens having attained the age of 18 years thereafter, therefore, to the effect of holding the election having incorporated names of the citizens having attained the age of 18 years on the date specified by the Election Commission in the electoral rolls and giving recognition to the electoral rolls prepared by the Election Commission pursuant to section 11 of the Electoral Rolls Act, 2006 and the Electoral Rules, 2007 and on the basis of citizenship; 13. Part 9 of the Constitution provides for introducing to the Legislature-Parliament estimates of revenues and expenditures, however, there is hurdle to implement this constitutional provision as there is no Legislature-Parliament as present, to the effect of preparing the estimates of revenues and expenditures by the Council of Ministers to be formed under the chairpersonship of the Chief Justice as may be necessary and to submit it for approval pursuant to Article 88 of the Constitution; 14. Clause (1) of Article 106 of the Constitution provides that the Chief Justice or a Justice shall not be engaged in any work other than the position of a justice or deputed elsewhere, however, the said clause has created hurdle to assign the Chief Justice other responsibility, to the effect of forming a Council of Ministers under his/her chairpersonship for the purpose of holding election to the Constituent Assembly; 15. Since the Council of Ministers to be formed under the chairpersonship of the Chief Justice of the Supreme Court will hold the next election of the Constituent Assembly and to provide for the Chairperson shall no longer continue as the Chairperson of the Council of Ministers after formation of the next Council of Ministers, to the effect of continuing the position of the Chief Justice in lien until he serves as in the office of the Chairperson and to pave the way for the senior most justice of the Supreme Court to be the Acting Chief Justice pursuant to clause (4) of Article 103 of the Constitution, having expressed full commitment to independent judiciary and rule of law; 16. To the effect that the word “Chief Justice” appearing in the Constitution and other laws in force for the time being also means the Acting Chief Justice as well; 17. Since the senior most Justice of the Supreme Court will also work as the Acting Chief and also preside over the Judicial council and Judicial Services Commission as well, he/she may not represent as a member thereof, to the effect of allowing the senior most justice of the Supreme Court after him/her to become a member of the Judicial council and Judicial Services Commission for the time being the Senior most justice of the Supreme Court also acts as the Acting Chief Justice pursuant to clause (1) of Article 113 and clause (2) of Article 114 of the Constitution; 18. The proviso to clause (5) of Article 142 provides that the support and signature of at least ten thousand voters shall not be necessary in the case of the parties represented in the Interim Legislature-Parliament, however, there is hurdle in the implementation of this constitutional provision as there is no Legislature-Parliament at present, therefore, to the effect of not requiring the signature of at least ten thousand voters in the case of the parties represented in the Interim Legislature- Parliament elected during the election of the 2008; 19. Sub-clause (d) of Clause (1) of Article 145 of the Constitution provides that three ministers representing three different parties amongst the parties represented to the Council of Ministers as selected by the Prime Minister shall be members, however, as there is no provision of appointment of ministers from political parties in the Council of Ministers to be formed for the purpose of holding the election to the Constituent Assembly, to the effect that the ministers selected by the Chairperson of the Council of Ministers shall be the members; 20. Since there is no Legislature-Parliament, there are no Speaker of the Legislature-Parliament and the Leader of Opposition
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Party in the Legislature-Parliament, who are ex-officio member of the Constitutional Council pursuant to sub-clauses (c) and (d) of clause (1) of Article 149, thereby the Constitutional Council is remaining incomplete and it has cause hurdle to the appointment of constitutional positions, to the effect of three ministers specified by the Chairperson of the Council of Ministers to become members in sub-clause (d) of clause (1) and also to the effect that appointment of the constitutional positions to be made on the basis of political consensus; 21. According to the provision made in the proviso to clause (5) of Article 8 of the Constitution, there is hurdle to confer citizenship to the children born to the persons who have acquired citizenship by birth according to the prevailing law before the time of their acquisition of the citizenship by virtue of the provision made in sub-clause (b) of clause (2) [of the same Article], to the effect of conferring citizenship by descent to those of the children of the persons acquiring citizenship by birth in such a manner; 22. Since clause (1) of Article 155 of the Constitution provides that prior to appointment to constitutional posts on the recommendation of the Constitutional Council according to this Constitution, and to the appointment of the Justices of the Supreme Court and ambassadors, there shall be a parliamentary hearing in accordance with the provisions of the law, however, as there is no Legislature-Parliament at present and it has created hurdle to appoint in such positions according to the Constitution, to the effect of making appointment to such positions according to the Constitution and to submit such appointments to the Legislature-Parliament to be formed after the election of the Constituent Assembly is held within one month from the date of commencement of the session of the Legislature-Parliament; 23. Article 158 of the Constitution provides that if any difficulty arises in connection with the implementation of the Constitution, the President may issue an order to remove such difficulties on the recommendation of the Council of Ministers, and such Order shall have to be got endorsed by the Legislature-Parliament within one month, however, as there is no Legislature- Parliament at present and there is constitutional hurdle to get such order to be endorsed by the Legislature-Parliament as required by Article 158, to the effect of getting this Order to be endorsed within one month from the date of commencement of the session of the Legislature-Parliament after the next election of the Constituent Assembly; 24. In case the office of the Chairperson falls vacant for any reason whatsoever or the election could not be held within the said timeframe for emergence of any situation beyond one’s control, to the effect of making necessary provisions on the basis of political consensus; 25. To the effect of ipso facto termination of this Order after completion of the tasks implemented by removing the hurdles and difficulties according to this Order.”
This Press release has been issued since the President Mr. RAM BARAN YADAV has issued the aforesaid Order pursuant to Article 158 of the Interim Constitution of Nepal, 2006 on the recommendation of the Council of Ministers.
By Order of, (Hari Kumar Shrestha) Spokesperson March 14, 2013 NEOC-Central Executive Committee S.N. Name Designation 1 Surya Prasad Shrestha Chairperson 2 Prof. Kapil Shrestha Co-chairperson 3 Dr. Netra Timsina Co-chairperson 4 Ganga Kasaju Co-chairperson 5 Bishnu Pukar Shrestha Co-chairperson 6 Kedar Khadka Co-chairperson 7 Dr. Gopal Krishna Siwakoti Secretary General 8 Shobha Gautam Dty. Secretary General 9 Bhawani Prasad Kharel Treasurer 10 Dr. Gauri Shankar Lal Das Member 11 Charan Prasai Member 12 Shanta Lal Mulmi Member 13 Sudarshan Subedi Member 14 Tej Sunar Member 15 Rana Bahadur Thebe Member 16 Stella Tamang Member 17 Durga Sob Member
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