— Ram Manohar
Holding election has been accepted as the best solution to come out from the current impasse of the country. Election commissioner of Nepal is determined to make election happen as per the Government wish. But “will the election happens as per other parties and people’s aspiration”, is a big question.
Constituent Assembly Act, 2064 (2007) has laid down broader rules-regulations and procedure to conduct the CA election. Most of the points, especially later portion after section-7, in the manual are generic and are common in any election.
“First Past The Post Electoral System” is due to elect 240 members, “Proportional Electoral System” is due to elect another 240 members, and 17 members is going to be selected from civil society directly, making the total count of 497 members for CA assembly.
The point specific to CA election this time is the reservation provision based on population ratio based on latest population census 2001 for proportional election. That means party need to make sure that their candidate representation is inclusive as per their ratio for the “Proportional Electoral System”.
The point to note here is proportional representation of candidate is required to be in only 240 seats out of 497 CA members to be selected or elected. Reservation of seats is only pre-election requirement and this in no way guarantees proportional inclusion of reserved group after CA election, even for 240 seats. Rest 240+17 seats are always in open category.
The technical fault in the CA-Act is that it hasn’t defined who qualifies for Madhesi, Dalit, and Oppressed tribes/indigenous tribes groups. Scope of backward region is more clearly defined as “Backward region means Achaham, Kalikot, Jajarkot, Jumla, Dolpa, Bajahang, Bajura, Mugu and Humla Districts.” But again “Other groups” is defined with respect to Madhesi, Dalit, Oppressed tribes/indigenous tribes, Backward region. Thus by nature definition of “Other Groups” is also faulty.
Section-7(2) of CA-Act mandates parties to disclose minimum 10 per cent of the members of the total number to be elected under the Proportional Electoral System. Means, if any party wish they can only disclose 24 candidates out of 240 candidates. This also implies from the above discussion that, disclosure of minimum 8 (i.e 31.2 %) no of Madhesi, 4(i.e 13%) no of dalit, 10 (i.e 37.8%) no of Oppressed tribes/indigenous tribes, and 1 (i.e 4%) no of backward region is only required. Since women is also to considered in the distribution matrix, thus the odd number 1 for backward region can become even number 2 (i.e 1+1). That comes to be around total of minimum 8+4+10+2=24 candidates to be disclosed under reserved categories for proportional election system. But hold on, we have section-7(3) further.
Section-7(3) of CA-Act states “While nominating candidates from Madhesi, the closed list of candidates must be prepared thereby ensuring proportional representation of Dalits, and indigenous tribes including other group on the basis of the per cent of population.” Combining section-7(2) and section-7(3) implies that the minimum 24 candidates’ figures are not necessarily from reserved category. That means, if parties wish, this number can be further reduced. Since Dalit and Oppressed tribes/indigenous tribes are not defined in CA-Act separately, it not clear whether these two groups are overlapping or these two groups are exclusive. Supposing Dalit and Oppressed tribes/indigenous tribes are exclusive, the minimum distribution of candidate to satisfy CA-Act can be like this; 4 candidates who are Madhesi as well as Dalit, and 4 candidates who are Madhesi as well as Oppressed tribes/indigenous tribes. Going with this distribution, one find that 0 candidate left out in Madhesi, 0 candidate left out for under dalit and 6 candidates left out in Oppressed tribes/indigenous tribes to be satisfied under CA-Act. That means minimum candidates in “Madhesi + Dalit + Oppressed tribes/indigenous tribes” categories comes to be 14 (4+4+6). Thus from section-7(2) and section-7(3), minimum number of candidates to be declared for proportional election under reserved category comes out to be 14(Madhesi, dalit, Oppressed tribes/indigenous tribes) + 2(backward region) totaling to 16 candidates.
Section-7(8) of CA-Act states “While examining the candidates, the Commission may recognize an increase or decrease of up to ten per cent of the total number of each group.” This statement doesn’t strengthening the strict follow-up of section-7(2) meant for reservation, rather weaken the whole objective. At the same time, the statement also tries to put upper caps on the total number of candidates on reserved categories for proportional election.
Regarding women’s guaranteed participation, the provision in section-7(4) is in contradiction with the section-7(2). Section-7(4) states that “There must be at least one-third women candidates of the totals number comprising the number of women candidates to be fielded under the Proportional Electoral System”. Where as section-7(3) along with schedule -1, guarantee 50% participation of women candidates.
There are few other issues which fail to get clarification from CA-Act. How will the distribution of seat be done, in case there is fractional percentage of vote secured by any party in proportional election? CA-Act fails to capture, how will party define and decide the distribution of seats under reserved categories. CA-Act also fails to clarify, what action election-commission will take, if parties intentionally ignore to satisfy the candidate distribution under reserved categories (section 7(11))?
From all the above discussion, we found out that parties have liberty to forward only 16 candidates during pre-election from reserved categories for the election/selection which is going to be for 497 members of CA. Election commission don’t have control on after election distribution of CA members, including reserved category. Women are dangling between 33.33% to 50% seats. The mechanism to distribute seats with the fractional percentage of vote secured by any party in Proportional Electoral System is unclear.
The election doesn’t guarantee any percentage of seats in CA-assembly after election for any groups, including Madhesi, Dalit, Oppressed tribes/indigenous tribes, backward region. This leaves a big question on the “Slogan of Inclusive” and “Slogan of Proportional representation”.
In case of any confusion and dispute arising from situation not considered in Constituent Assembly Act 2064, section-72 to section-76 gives power to election authorities to take their own decision. This gives whole lot of discretionary power to bureaucracy, which has chance of manipulation on the hand of people in power.
The need appears to re-evaluate all the rules in the Constituent Assembly Act, 2064 by making consensus among the entire state holders as early as possible. Else it can prove to be “deferred disaster” waiting to happen, given there is hell lot of mistrust between the different political groups. The problem will soon start to appear when Nepal’s political participants start to move from strategic stage to operational execution of the vision of peace restoration.
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