Chapter-I: Introduction

1.1 General Background

It would be right to say that election is the heart of democracy. As we all know that periodic

election is the most important component of democracy. In other words the election reflects

the democracy in the democratic countries. The democracy is became the most and

necessary system all around the world. Most of the countries favor the democracy and even

there are many movements, revolutions and wars for the sake of democracy. And the

democracy can not be imagined without election. Nepal is also one of the country which has

adopted democracy constitutionally stating on the preamble of the ICON,2063 “Declaring

Nepal as a federal, democratic republican state upon duly abolishing the monarchy.”

As democracy signifies the rule of people which electoral systems are the democratic

methods of and from choosing representatives of people which enables right to elect their

representatives by themselves. 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 choices.1So as to conduct the 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 that commission

is to conduct the free and fair elections.

Choosing the electoral system is totally the political matter. Therefore it depends upon the

political parties and their decisions. But one thing is that, To determine an election system,

the administrative aspect of election e.g. determination of voting center, nomination of

candidates, registration of voters, regulation of election should be taken into consideration.

So that, due to lacking of this sort of research regarding electoral system of Nepal, and

analysis of problems and challenges is became the major part of my study.

1 DR. G.K. GYAWALI ET AL, ELECTORAL LAWS, ADMINISTRATION AND MANAGEMENT,(NEOC),2013.

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1.2 Statement of problems

Under this paper some of the major questions are trying to solve or find out. On the other

words this paper basically focusing on the following problems.;

a) Is the electoral system adopted by Nepal appropriate?

b) Whether the laws regarding election are adequate;

c) Being a social diversity, what kind of problems and challenges are there to implement

the system effectively?

1.3 - Objectives of the study

There are some important reasons for conducting this seminar. In other words, why this

study regarding electoral system is done? Some objectives of the study are viz:

a) To identify the basic concept of electoral system and its various types.

b) To analyze the practicing electoral system and their laws of Nepal.

c) To find out the problems in implementation of election laws of Nepal.

d) To analyze the adequacy of laws.

e) To find out the problems and solutions of electoral system in politics of Nepal.

1.4 - Significance of the study

As accordance with the objectives of this study, this study has great importance and

significance to know about the hidden causes and effects of the problems in existing

electoral system of Nepal. On the other hand, this study will also help the upcoming

generation to be updated about the laws of election and its adequacy.

1.5 - Limitation of the study

This study mostly limited on the Electoral system of Nepal. It is fact that a single paper of

seminar can not cover all the significance knowledge about the concern topic. Though, the

general concepts, kinds, importance, some merits and demerits, and a brief history of

concerned topic are covered. Despite that, this study also covers the analytical view of the

existing election system and their laws of Nepal. Furthermore some suggestions are given

but not given the final solution. This study has not covered the following:

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- The detail process of each election and sub election system.

- Detail History of election around world.

- Which electoral system is followed mostly around world,

- Which system will be best for Nepal,

1.6 - Methodology of the study

This is a doctrinal based research. The field visit, interview and empirical study are not

conducted for this paper. The information and data supplied here are obtained from library

sources and internet. I used the books, journals and news articles, review reports, as the

sources of study. The existing laws (Constitution, Acts, Rules and Regulations etc) of Nepal

are taken as the reference documents.

1.7 - Organization of the study

This seminar paper has been divided into five chapters. Each chapter carries different

significance as the description of different topics. The first chapter deals with the

introduction to the topic, background and briefing to the seminar paper including

significance of this paper. The second chapter is concerning about conceptual framework

meaning, history and kinds of the election and electoral system. Third chapter deals with

various kinds of electoral system practicing around the world. Chapter four gives short notes

on existing laws and practice in Nepal regarding electoral system. Lastly, the chapter five

deals with the problems and challenges and suggestions including analytical view of the

paper presenter.

1.8 – Review of the Literature

First of all it is obvious that there are lots of researches (in respect to electoral system)

previously done by individuals and some institutions. Despite that, this paper carries the very

aspects of the Nepalese electoral system. Basically, to answer the question that what really

motivated to carry this research, it is all about the impacts of election system in Legislature-

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parliament and the unstable government. On the other hand, the issue of inclusive

government is always dealing with respect to the election but its practice and implication is

being not so effective and not working properly.

In this ground the paper had to deal with some basic information about electoral system with

view point of Nepalese context. While preparing this paper, I basically considered the

Nepalese laws, Books, Journals, articles and some reports of governmental and non-

governmental institutions. Some of them are as follows:

1. Electoral Laws, Administration and Management, written by Dr. G.K. Gyawali under (NEOC), 2013.

2. Election law (Book) written by Adv. Lila Bahadur. Basnet,3. An article on ‘Electoral System and Election management in Nepal’ written by Dev Raj

Dahal, (unpublished article)4. An article on ‘The Constituent Assembly Election and Challenges Ahead’ written by Dev

Raj Dahal,Nepal, (2008)5. International Idea Handbook Of Electoral System Design Draft November 2004,

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6. Chapter- II: Concept, Meaning and Kinds

2.1- Concept of Representation

The basic concept of representation is that people cannot rule by themselves. Due to

different reasons people as a whole cannot perform the functions related to the governance.

Therefore, they send their representative to rule on behalf of them. When their representative

rule it is regarded that the people themselves have ruled. Representation, in government, is a

method or process of enabling the citizenry, or some of them, to participate in the shaping of

legislation and governmental policy through deputies chosen by them. The rationale of

representative government is that in large modern countries the people cannot all assemble

and if, therefore, the people are to participate in government, they must select and elect a

small number from among themselves to represent and to act for them. The election is that

democratic method by which the people themselves choose their representatives to rule over

themselves. In other words, the problems of representation are solved by the election

conducting in various ways.

Forms of Representation

Representation is an act which is done on the capacity of other. There are some forms or way

of representing people. According to Hanna Fenichel Pitkin there are four theories of

representation:2 also refers the forms of representation.

1. Formalistic Representation: This theory includes Authorization and Accountability.

First of all, people authorize their representatives through the election. The one who wins

the election is authorized to rule over a country. Without transfer of authority from

people to their representatives, there can be no rule due to the lack of legitimacy.

Secondly, such authorization demands accountability on the part of the governed. The

governors must be accountable to the people and the power must be exercised to appease

the demands of the people.

2 Hanna Fenichel Pitkin, The Concept of Representation, at 174,(1972) available at http://en.m.wikipedia.org/wiki/Representation_(Politics) visited on 20th Jan 2015

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2. Representation by population: this theory demands that the representation in the

political process must be made on the basis of the size of the population. For example

there are ten thousand people in a village and five thousand in another. The former must

get representation of 66% and the latter of 33%.

3. Representation by area: it is not always possible to make representation on the basis of

the number of population. The area or region must also be taken into consideration.

Whether the population is less or more in some areas there also must have the

representation. There are many states which have adopted the representation by area

principle. The senate of USA represents all fifty states equally.

4. Descriptive Representation: this represents various details available in a country. This

is ideological representation as well. Gender, race, religion etc come under this

representation. For example representation from female, Dalits, Indegenious, Brahmins

etc.

Some other writers mention the other forms of representation including them, such as

Representation by Ideology, Collective representation, Dyadic representation and so on.

2.2- Meaning of Election

Election in simple sense is a process of choosing or selecting one or more out of many

people or alternatives; the work of selecting by vote or body of electoral of people.

Election basically means the way of choosing representatives for the formation of

government. The concept of exercising sovereignty by people will come into practice

only when the election is held. So that, without election the sovereignty of people

becomes meaningless. The people’s desires, interests are reflected by the election.

Without proper and fair election be held periodically, no democracy can be established.

According to Oxford Dictionary:“Choosing or selection of candidates for an office is

known as election”.

Websters Dictionary: “Election is the act or process of choosing a person for an office,

position or membership by voting”.

In Nepalese law the election means: "Election" means an election or by-election of the

Members to the House of Representatives to be constituted pursuant to Article 45 or

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National Assembly to be constituted pursuant to Article 46 of the Constitution or the

Village Development Committee or Municipality or District Development Committee to

be constituted pursuant to the prevailing law.3

“Election” means election of members to constituent assembly conducted according to

this ordinance and this also includes the sub-election for the vacant post of previously

elected through first post the past system of election.”4

“Election is an established method of a society to make the formal decision in any

particular subject. It is a process which consist the majority of will.”5

“The act of a party casting votes to elect an individual for some type of position.

Elections may involve a public or private vote depending on a position. Most positions in

the local, state, and federal governments are voting on in some type of election.”6

2.3- Importance of Election

The best standard to check the democracy is election for every country. Election is such a

pure process which carries the agreement of all people. The election creates the ‘choice

of alternatives’.7Election is the means to exercise the sovereignty. The sovereign power

of Nepal is vested in the people of Nepal. As constitution says, “Sovereignty and State

Authority: The sovereignty and the state authority of Nepal shall be vested in the

people of Nepal.”8 Hence, Election is one of the most necessary tasks to exercise this

provision of constitution.

The importance of the election can be stated as follows:

• Election is necessary to guarantee the sovereignty and people’s representation.

• It belongs to the period, process and declaration of the result of election.

• Democratic process depends on the election. Therefore, the more election, the more

democratic exercise.

3Election (Offences and Punishment) Act,2047 sec.2(b).4 Election to Constituent Assembly Members Ordinance, 2070 , sec.2(f).5 Supranote 1, at 1.6 Web dictionary, http://www.businessdictionary.com/definition/election.html (20 Jan 2015 at 09:30pm)7 Supra,8 The Interim Constitution of Nepal, 2063. art. 2

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• Protection and exercise of sovereign power.

• Regulation of democratic process: Women’s participation.

• Enhancement of political freedom: Personal political consciousness, relationship

building, criticism of government.

• Establishment of the rule of law: strengthens the parliament.

• Development of election system: problems and solutions. The more elections make the

system more strong.

• Establishment of peace and security.

• Election recruits the public offices. It means, through the election, the political posts are

fulfilled by the elected representatives.

• The political interest and the hidden desires of the people are expressed and fulfilled only

through the election.

2.4-Historical Development of Election

The election system is started from the England first. The Myagna Carta,1215 can be

considered as the first law of election which was the law of England.9 The election system is

developed from the western European countries. The colonial countries mostly had various

movements for the independence. Therefore, election is the product of such political

struggle. The development of election has taken place in different time periods in different

countries. The French Revolution (1789-1799) which abolished the French Monarchy and

American Revolution (1765-1783) which rejected the British authority, these two

revolutions has played vital role to develop the ‘Adult Franchise.’ On the other hand, the

Bolshevik revolution (1917) and the Indian Independency(August 15, 1947) had made

noteworthy contributions to the Adult Franchise.

9 Supra, note 6.

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Development of Election in Nepal:

A constituent assembly election to draft a permanent constitution for the people of Nepal

was first proposed after the Rana oligarchy was toppled in 1950 by a movement led by the

Nepali Congress party, supported by then-King Tribhuvan. However, political turmoil and

instability occurred between 1950 and 1959, and the election was not held. A constitution

was finally drafted by a group of people handpicked by the late King Tribhuvan’s son, King

Mahendra, and a general election was held in 1959. Although the Nepali Congress won a

majority in this election, King Mahendra staged a coup soon thereafter and took direct

control over the government in 1960. The system of direct governance by the monarch and a

number of advisory councils was called the Panchayat system and continued until 1990.10

In the legal point of view, the historical development of Election of Nepal can be studied by

following time periods:

Kirat Period (800BC-300AD):

This era is known as the ‘Dark Era’. The law of election was not developed form the ancient

time but the system of having ruling people was there from the Kirat period. The

‘Mundhum’ was the religious as well as legal document under which they were ruled.

‘Chumlung’ was the leader person who could be selected as the selection of 5 ‘Panchas’ in

Panchayat System.

Lichchavi Period (360BS-1100BS):

(During this period, there were other rulers as well known as the Thakuri Dynasty, Surya

Dynasty etc. Their detail is not mentioned here.) There were elected group of people such as,

‘Mahasamanta,’ ‘Dandanayak,’ ‘Mahadandanayak.’ There were special committees and

‘Panchas’ for the Local and other administration.11

10 The Carter Center, Observing The Nepal CA election 2008, At. 1611 Supranote 1 at 12.

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Malla Period (12th to 14th Centuries BS):

The ‘Panchas’ were categorized into three level i.e. ‘Gram’, ‘Tala’, and ‘Dranga’. In which

the representatives were selected through election. And their tenure was two years.12

Shah Period (1500-1903BS):

This period was also favored the people’s will. King Prithivinarayan Shah has said “Give the

leadership to whom the people will be agreed.”13The ‘Panchayats’ were selected for the

settlement of the local disputes. The votes of people were respected even in this period.

Rana Period (1903BS-2007BS):

The Rana rule was not democratic and they even do not allow people to criticize the

government. The rule was so autocratic and despotic. Therefore the electing people for

ruling were not in practice. Despite that, The ‘Panchayats’ were selected in some places.

Some of the Ranas were democratic. Among them, Prime Minister Padma Samser has

concluded the “Government of Nepal Act, 2004.” Actually, the election was accepted legally

for the first time by this Act. It had the provision of bicameral legislator which was

‘Bhardari Sabha’ which constituted of 20-30 nominated members and ‘RastriyaSabha’

which constituted 60-70 elected members from people.14 But this Act did not come into

force.

After the establishment of Democracy (2007 BS):

After the end of Rana regime, the democracy is declared and constitutional monarchy

established. King Tribhuvan promulgated ‘Interim Government of Nepal Act, 2007’. This

Act has given the special contribution to the practice of election in Nepal. It had the

provision (by amendment of 2009) of ‘Sallahakar Sabha’ in which the members were elected

form different places. The candidate were required to the age of at least 25 and not

disqualified by law. The voters should be attained the age of 22. On the other hand, this Act

also established the Law commission to conduct the election.15

12Id. at 12.13Dibyopadesh of King Prithivinarayan Shah, at 3. Nepal Law Commission ( www.lawcommission.gov.np) 14 Supra note 5 at 14.15 id. at 14-15.

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The Constitution of Kingdom of Nepal, 2015BS:

A constituent assembly election to draft a permanent constitution for the people of Nepal

was first proposed after the Rana oligarchy was toppled in 1950AD by a movement led by

the Nepali Congress party, supported by then-King Tribhuvan. However, political turmoil

and instability occurred between 1950 AD and 1959, and the election was not held. A

constitution was finally drafted by a group of people handpicked by the late King

Tribhuvan’s son, King Mahendra, and a general election was held in 1959AD. Although the

Nepali Congress won a majority in this election, King Mahendra staged a coup soon

thereafter and took direct control over the government in 1960. The system of direct

governance by the monarch and a number of advisory councils was called the Panchayat

system and continued until 1990.16

The constitution promulgated by the then King Mahendra of 2015BS had special

contribution to the election which had created the bicameral legislation (Maha Sabha and

Pratinidhi Sabha). The members to the Pratinidhi Sabha were elected form 109 electoral

constituencies (109 members) and 36 members of Maha Sabha were nominated by King.17

But In 2017 BS, the parliament is dissolved and the election for Rastriya Panchayat is held

then Panchayat system is established. To establish this system, The Constitution of Nepal,

2019 (a.k.a. Panchayat Constitution) is promulgated. Though, the democratic language was

used in the preamble of the constitution but the real democracy was not existed which can

only be exercised through the elected government.

Despite that, not exactly election but referendum (Multiparty system Vs. Reformed

Panchayt) was held in 2037 by the then King Birendra. The votes were 54.79% for

Reformed Panchayat and 45.21% for Multiparty system. Although there were some

criticisms saying that ‘the referendum was not impartial,’ but winning system is continued.18

16 Waging. Peace, et al, Observing the 2008 Nepal Constituent Assembly Election, The Carter Center, (2009) at http//www.google.com/search?q=nepalese+constitutent+assembly+election+2008+pdf

17 id. at 16.18id. at 17.

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After 2047 BS:

The mass movement of 2046 resulted in multiparty system of government in the constitution

of 2047. General elections were subsequently held, first in 2048, then in 2051 and 2055. For most of this decade, the Nepali Congress led the government. These elections were the parliamentary elections unlike the latest two (2064 and 2070) are CA elections. In 2062/63, a revolution took place in Nepal from which the monarchy is terminated and state declared as the ‘Federal Democratic Republican Country by adopting the Interim Constitution of Nepal, 2063.

Election of 2064 and 2070:

After the termination of monarchy, the state was ruling by the Interim Constitution which

was not a permanent one. There is the provision of holding election of CA.19Under which

provision, the election was held for the one and only purpose of making Constitution. After

that, the duty of CA would be finished.20But unfortunately, the CA is dissolved without

making new constitution even in four years (by various amendments but originally 2 years).

Then after the new CA election is held on Mangsir, 2070. These elections were held

according to mixed system (Majority/Direct+ PR+Nomination) which will be discussed in

detail on next chapter.

19 ICON,2063. Art, 63(2)20 ICON,2063. Art, 82

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Chapter- III: Meaning and Kinds of Electoral System

3.1- Meaning of Electoral System

There is already mentioned about meaning of election. An electoral system means that which

includes some particular methods of election which transfers the vote of people into seats.

Conducting the system there can be adopted various types such as Majority/plurality,

Proportional Representation and Mixed system.

At the most basic level, electoral systems translate the votes cast in a general election into

seats won by parties and candidates. The key variables are the electoral formula used (i.e.,

whether the system is majority or proportional, and what mathematical formula is used to

calculate the seat allocation) and the district magnitude (not how many voters live in a

district, but how many members of parliament that district elects).21

To select an electoral system is very important institutional decision. It affects the future of a

nation as it remains for a long time in the system of the nation. We should be very cautious

to select this system. The political leaders and parties are responsible for this. If they have

sufficient information regarding to the system and they do not make biased decision, it is

fruitful for the nation. If they use their knowledge and skill for their political benefit it is

dangerous for the nation.

Political institutions shape the rules of the game under which democracy is practiced, and it

is often argued that the easiest political institution to be manipulated, for good or for bad, is

the electoral system, because in translating the votes cast in a general election into seats in

the legislature, the choice of electoral system can effectively determine who is elected and

which party gains power.22 Electoral systems can be seen not only as ways to constitute

governing bodies, but also as a tool of conflict management within a society. Elections are

all well and good, but they may mean little to people if it is difficult to vote or if, at the end 21Andrew. Reynolds, Ben. Reilly, The International IDEA Handbook

of Electoral System Design (IDEA), at 7. (2002 Reprinted) http://www.idea.int/publications/emd/loader.cfm?csModule=security/getfile&pageID=66788

22id. at.7

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of the day, their vote makes no difference to the way the nation is governed. The “ease of

voting” is determined by factors such as how complex the ballot paper is, how easy it is for

the voter to get to a polling place, how up to date the electoral roll is, and how confident the

voter will be that his or her ballot is secret.23

3.2- Kinds of Electoral System/Family

There are basically three categories of electoral systems which are worldwide followed

which are Majority/Plurality, Proportional and Mixed system. These broad categories have

other sub-types which can be shown in following figure.

Electoral System Family24

A) Plurality/ majority system: There is a single difference between two words. The

plurality is that system in which the candidate obtaining maximum or highest vote is

elected. But in Majority system the candidate must have to obtain the simple majority

(50%+1) vote to be elected. There are some systems under plurality/majority systems

which are as follows.

1) First Past The Post (FPTP)

23 id. at.1024 Source: International Idea Handbook Of Electoral System Design (Draft) November 2004, p.20

14

This is one of the simple plurality/majority systems of election. The voters give only

one vote. There are many candidates in a District representing different parties. The

candidate obtaining highest votes is elected. In a First Past the Post system,

sometimes known as a plurality single-member district system, the winner is the

candidate with the most votes, but not necessarily an absolute majority of the votes.

To date, pure First Past the Post systems are found primarily in the United Kingdom

and those countries historically influenced by Britain. Along with the United

Kingdom, the most analyzed cases are Canada, India and the United States of

America, FPTP is also used by a number of Caribbean countries; in Latin America by

Belize; by five Asian countries, Bangladesh, Burma, India, Malaysia and Nepal; and

by many of the small island countries of the South Pacific.25

2) Double Round System (DRS)

If the system is set to obtain majority (50%+1) to be elected, then anyone candidate

may not attain the majority in the first round of election. Therefore, the second round

is held. In the second round, some of the candidates having lesser votes will no

longer fight again.

This type of plurality-majority system used for parliamentary elections is the Two-

Round System (TRS), also known as the run-off or double-ballot system. Each name

indicates the central feature of the system: that it is not one election but takes place in

two rounds, often a week or a fortnight apart. The first round is conducted in the

same way as a normal FPTP election. If a candidate receives an absolute majority of

the vote, then he or she is elected outright, with no need for a second ballot. If,

however, no candidate received an absolute majority, then a second round of voting

is conducted, and the winner of this round is declared elected.26

Central African Republic, Mali, Togo, Chad, Gabon, Mauritania, and the Congo, and

in North Africa by Egypt use this system. Cuba, Haiti, Iran, Kiribati and the Comoros

Islands also use Two-Round Systems for their legislative elections.25 Id. at. 2126 Id at. 43.

15

3) Alternative Vote (AV)

This is also a majority system in which the voters gives their votes to all the

candidates but on the basis of preference. The voters order the candidates on their

ballot paper. For Example: under AV, electors rank the candidates in the order of

their choice, by marking a “1” for their favorite candidate, “2” for their second

choice, “3” for their third choice, and so on. The system thus enables voters to

express their preferences between candidates, rather than simply their first choice. In

this system, the candidate with the lowest number of first preferences is “eliminated”

from the count, and his or her ballots are examined for their second preferences.

These are then assigned to the remaining candidates in the order as marked on the

ballot. This process is repeated until one candidate has an absolute majority, and is

declared duly elected. It is not so much usual, used in Australia and Nauru.

4) Block Vote (BV)

The block vote is a voting system used in multimember constituencies where voters

can elect more than one representative in each constituency. Voters can cast as many

votes as there are available seats and the candidates with the most votes win, even if

they have not managed to secure a majority of the votes.27 In other words it is simply

the FPTP system used in multimember constituencies (District). Unlike in PBV,

Voters give the vote to the individuals in the block vote system.

Some scholars give arguments against the block vote saying, it is very

disproportional and enables the strongest party with a comfortable or narrow majority

to take all the seats in the constituency.

As of June 1997 the Palestinian Authority, Bermuda, Fiji, Laos, the US Virgin

Islands, Thailand, the Maldives, Kuwait, the Philippines and Mauritius all use Block

Vote electoral systems.28

27 Electoral Reform Society, www.electoral-reform.org.uk/block-vote (march 10, 2015)28Supra note 21 (IDEA), at 36.

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5) Party Block Vote (PBV)

Party block vote is not so much different than the BV. As in FPTP, voters usually

have a single vote but unlike FPTP there are multi-member districts and voters

choose between party lists of candidates rather than individuals. The party which

wins most votes takes all the seats in the district, and its entire list of candidates is

duly elected. As in FPTP, there is no requirement to win an absolute majority of the

votes.29 As of 2004, this system was used as the only system in Cameroon, Chad,

Djibouti, and Singapore.30

The advantage of this system is that, it is a simple one and a voter choose all

candidates by a single vote. On the other hand this system represents the minority

class of the people for there is the inclusion of such candidates in the list. One

demerits of this system is, the winner party can take almost all of the seats of

parliament by the simple majority. In the Singaporean elections of 1991, for example,

a 61% vote for the ruling People’s Action Party gave it 95% of all seats in

parliament.31

A) Proportional representation system

The concept of proportional representation broadly refers the representation from the

whole nation. As the entire nation is regarded as the one single constituency and the

votes are counted collectively. The candidates are elected proportionately as their party

gets the votes. If a party wins 35% of the entire vote of nation then that party fairly

represents the 35% seats of the parliament. For this reason, PR is quite beneficial for

those parties which have minimum chance to win through the majority system. On the

other hand this system is also used for having the inclusive representation. But sometime

the threshold can be established which requires the minimum number or percent of the

vote to enjoy the seat. The voters give the vote to the political parties not to the

individual. So the party themselves choose the candidates on the basis of their list. For

29 Id.30Electoral Knowledge network, http://aceproject.org/ace-en31 Supra note 21, (IDEA) at. 37

17

this reason, this system is a Indirect one. There are basically two types of this system, list

proportional and single transferable vote. Besides that, mixed member proportional is

also listed sometime but it is also listed in the mixed system because it has combination

of majority and list PR. So, that it is described on the mixed system.

1) List proportional representation (List PR)

Basically, in this system the parties present their list of candidates and seats are

awarded according to their share of the vote. This system has two methods viz.32

i) Open list: The list of the candidate is open i.e. orderly listed. The political

party already decides or declares the winning candidate duly before the

election is held. Individual candidates are elected accordingly with the list.

ii) Closed list: The names of the candidates are not orderly listed. Voters vote for

the party in list as a whole. The party itself decides the candidate to win after

the election is held.

The majority of List PR systems in the world are closed, meaning that the order of

candidates elected by that list is fixed by the party itself, and voters are not able to

express a preference for a particular candidate. The party list system mostly gives

more opportunities for the women and minority groups to gain representation. But it

has some demerits like, it could not be a simpler neither it creates direct relation with

the voters and representatives and the regional area.

2) Single transferable vote (STV)

This is another form of the PR. It is somehow similar to the alternative vote as both

are conducted by the preference of the voters in multimember constituency. In AV

the voters put the name list in order according to their preference but in the STV

voters do not put in order. They just mark on the ballot paper even they can mark

only once if they wish. The minimum number of vote is determined to be elected ie,

32 Electoral Reform Society, www.electoral-reform.org.uk/party-list-pr (march 10, 2015)

18

called quota. So that, a candidate obtaining that quota as the first preference is duly

elected and the remaining votes obtained by him are transferred to other candidates

according the second preference of ballot. But if nobody could obtain the quota in

first preference, then the lowest one is eliminated and his vote is also transferred.33

STV gives more choice than in other system. Another advantage is that, very fewer

votes are wasted. But it is one of the complex one that requires least literacy of the

voter. Even sometime the ballot paper could be the confusing due to multimember in

a single constituency.34 This system is used in Ireland, Malta, and Australia.

B) Mixed System

Generally, the most essential character of the mixed system is that it combines the both

Plurality/majority and Proportional Representation. In the mixed system mostly practiced

combination is FPTP and List PR. In a mixed system, there are two electoral systems

using different formulae, each running alongside the other. The votes are cast by the

same voters and they cast two votes and contribute to the election of representatives

under both systems. One of those systems is a plurality/majority system, usually a single

member district system, and the other a List PR system. The mixed in its broader sense it

is the system which is conducted by adopting two or more than two system to fulfill the

total number of seats. So that, it is conducted by adopting any one system from

plurality/majority, one from PR, sometime includes nomination from the government.

Mixed system also has two types:

1) Parallel system

It is that mixed system which requires equal portion of representation from the both

system (plurality/majority + Proportional). But the balance between the number of

proportional seats and the number of plurality/majority seats varies greatly. The both

systems are held independently. For example: If there are 200 seats to be filled then 100

must be fulfilled by the PR. That means 50/50 representation from both systems.Only in

Andorra, Russia and Ukraine is there a 50/50 split. At one extreme, 88% of Tunisia’s

33 Supra note 21 at. 8334 Electoral Reform Society, www.electoral-reform.org.uk/single-transferable-vote (march 10, 2015)

19

representatives are elected by Party Block Vote, with only 19 members coming from PR

lists.35It do not compensate for any disproportion within the majoritarian district. That

means if one could not win from majority then can not enjoy the seat in PR as well.

In case of Nepal there is no balance as in the system and even the portion of PR is greater

than majoritarian. Even Nepal has not followed the parallel one. Normally in the

international scenario, the representation from PR is lesser than the plurality/majority.

2) Mixed Member Proportional (MMP)

Mixed member proportional system is almost similar to the parallel one. But crucial

difference is that, the plurality/majority and PR do not run independently or it combines

in similar form finally in the MMP. On the other hand the PR will compensate for any

disproportionality within the majoritarian district.

For example: if one party do not secure any seat from the majority system but get the

10% of national vote, that party will enjoy the maximum 10% of representation from PR.

It is used in Germany, New Zealand, Bolivia, Italy, Mexico, Venezuela, Hungary, Nepal

etc.

C) Other systems

The systems categorized as the other system are very rare in practice. Single non-

transferable vote is used as multimember district but voters cast only one vote. Limited

vote is almost similar with SNTV but voter can cast more than one vote. Borda count is

the preferential system in both single and multi-member district.36

1) Single Non-Transferable vote

SNTV is used for legislative elections in Afghanistan, Jordan, Pitcairn Islands and

Vanuatu, for second chamber elections in Indonesia and Thailand, and for 176 out of

225 seats in the parallel system used for the Taiwanese legislature. However, its most

well-known application was for Japanese lower-house elections from 1948 to 1993.

2) Limited Vote

35Supra note 24 at .3836 Id. at. 21

20

The Limited Vote is a plurality/majority system used in multi-member districts.

Unlike SNTV, electors have more than one vote - but fewer votes than there are

candidates to be elected. Counting is identical to SNTV, with the candidates with the

highest vote totals winning the seats. It was used to elect Spanish Upper House since

1997.

3) Borda count

The Borda Count is a positional voting system in which electors rank candidates as

for the Alternative Vote. This can be used in both single- and multimember districts.

There is only one count, there are no eliminations and preferences are simply counted

by taking first is more worthy. These are summed and the candidate(s) with the

highest total(s) are declared victorious.

2.7- Concept of Threshold

Threshold is that minimum amount or percentage of vote which must be obtained to have a

seat in parliament. It is created in the PR system, that a party must reach that criteria to

entertain a seat. In New Zealand it is 5%, in Bolivia 3%, Germany 5% and Russia also 5%

similarly, In Israel, the threshold is 1.5%, while in Turkey it is 10% In South Africa, there is

no legal threshold. Although Nepal has not created any threshold in our previous elections

but the notion was raised by some politicians in the election of 2070. Threshold is designed

to stop the very small parties to have representation in the parliament.

However, in both Germany and New Zealand there exist “back-door” routes for a party to be

entitled to seats from the lists; in the case of New Zealand a party must win at least one

constituency seat, and in the case of Germany three seats, to by-pass the threshold

requirements.37

In the Russian parliamentary election of 1995, with a threshold excluding parties under 5%,

more than 45% 0f total votes went to parties that failed to reach the threshold.38 It seems that

the threshold makes lots of popular votes to be wasted. While determining the threshold one

thing must be taken into consideration the how many political parties are being participated

and how many seats are there to be filled. If there are many parties and many seats to be

filled then the lower threshold will be good.37 Supra note 21( IDEA) at. 8838http://en.m.wikipedia.org/wiki/election_threshold

21

2.8) Apparent/Cartel

In the political sense, Cartel is the form of political parties which are getting together to

participate in the election. Sometime the created threshold could discriminate the small

parties to win the election. The concept of cartel actually developed to solve the problem

created by the threshold. To address this problem, many countries which use list PR systems

also allow small parties to group together for electoral purposes, thus forming a “cartel” or

apparentement to contest the election. This means that the parties themselves remain as

separate entities, and are listed separately on the ballot paper, but that votes gained by each

party are counted as if they belonged to the entire cartel, thus increasing the chances that

their combined vote total will be above the threshold and hence that they may be able to gain

additional representation. This device is a feature of a number of List PR systems in

continental Europe, in Latin America (where they are called Lema), and in Israel.

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Chapter – IV: Laws and Practice in Nepal

The election of every political system is governed by the election legislation of that country.

Broadly saying, the system and its whole process will be according to that pre-defined

legislation. Without proper laws the election and its whole system can not run smoothly.

Furthermore, in most of the countries, constitutionally it is defined that what kind of election

should be adopted and what laws will govern them.

Although this paper does not focus on what election law is all about, one of the distinct

feature of the law of election is that, it is very dynamic and changing in every election.

Besides these, this chapter will focus on which electoral system is adopted and what laws are

there to govern the election in Nepal.

One thing is that the election laws are those category of law which will enforce only once

except the law written in constitution. That means every laws of election will be changed and

new law comes for the every election. Therefore the Ordinance was promulgated for the CA

election of 2070 and was held accordingly.

Basically I have analyzed the laws mentioned in the previous Interim Constitution, 2063 and

Constitution of Nepal, 2072.

4.1- Interim Constitution of Nepal, 2063

The part 7 of the ICON, 2063 deals with the election of Constituent Assembly. On the other

hand, until the election of legislature-parliament be held, that CA also act in capacity of

legislature-parliament during the period of existing CA.39

Part 7, article (63) (3) (a), (b), (c) of the said constitution has the following provisions:

(3)The Constituent Assembly shall be composed of the following number of members who

are elected on the basis of the equality of population, geographical congeniality and

specificity, and on the basis of the percentage of the population in Madhes, in accordance

with the mixed electoral system, as provided in the law, and who nominated as follows:

39 Interim Constitution of Nepal, 2063 art. 83

23

(a) The members elected on the basis of first-past-the-post electoral system consisting of one

member from each of the two hundred and forty election constituencies delimited by the

Election Constituency Delimitation Commission constituted pursuant to Article 154A, based

on the population fixed by the national census preceding the election of the Constituent

Assembly, while treating an administrative district as an election district, and, as far as

possible, maintaining the same proportionality between such districts and the number of

members;

(b) Three hundred and thirty five members to be elected on the basis of the proportional

electoral system where voters vote for parties, while treating the whole country as a single

election constituency; and

(c) Twenty six members to be nominated by the Council of Ministers, on the basis of

understanding, from amongst the prominent persons who have rendered outstanding

contributions to national life, and the indigenous peoples which could not be represented

through the elections as referred to in Clauses (a) and (b).

The Article 65 of the said constitution provides for the qualifications to become a member of

CA. In order for a person to become a member of the Constituent Assembly, such person

must possess the following qualification:

(a) Being a citizen of Nepal;

(b) Having attained at least twenty five years of age;

(c) Not having been convicted of a criminal offense involving moral turpitude;

(c1) Not being disqualified by any law; and

(d) Not holding any office of profit.

This constitution also focuses on the inclusive candidates. The sub-article 4 of article 63 says

that, In selecting candidates pursuant to Sub-clause (a) of Clause (3), political parties shall

take into account the principle of inclusiveness; and in enlisting candidates pursuant to Sub-

clause (b), political parties shall ensure proportional representation of the women, Dalit,

oppressed communities/ indigenous peoples, backward regions, Madhesi and other Classes,

as provided in law.

This Interim Constitution has repealed by the Constitution of Nepal, 2072.

4.2- Constitution of Nepal, 2072

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This is the new federal republican constitution prevailing in Nepal. The provisions of laws

regarding election are somehow similar as in the previous constitution. The difference is only in

the number of the members and numbers in FPTP and PR system.

4.3- Election Ordinance to Members of Constituent Assembly, 2070

This ordinance is promulgated (on the recommendation of council of minister) by the

President (in the absence of Legislature-Parliament) in order to conduct the election and it’s

all process.40 Basically this ordinance deals with the election system, election constituency

delimitation, voter and ballot paper, system of counting of vote, election officer and so on.

The main provisions of this ordinance are:

The section 3 talks about the number of members to the CA,

(a) for the FPTP election system, 240 members elected from the 240 election constituencies,

(b) for the proportional representation system, 335 members elected from the whole country

as regarded a single constituency.

(c) 26 members nominated from the council of minister on the basis of their important

contribution to the life of nation who were could not be elected from FPTP and PR.

Section 6 (2) says that the member enlisted as candidate for the FPTP shall not be listed for

the PR.

Section 4 says the mixed system shall be adopted for the election of members of constituent

assembly. That is, first past the post system and Proportional representation which gives vote

to the political party.

Section 18 talks about the qualifications of the candidate which is similar as the provision

mentioned in ICON. In its section 47, The election officer has to conduct the counting of vote

in his direct supervision. There are provisions regarding the detail process of election (from

the notice of election to counting of vote) that is not mentioned here.

4.3- Election (Offences and Punishment) Act, 2063 (2007)

This is the Act governing all the crime and punishment regarding the election or period of

election. This Act mainly restricts for followings:

Prohibition on voting by impersonation (sec 3): vote should be casted by the real voter.40 Preamble of the ordinance

25

Prohibition on making influence, (sec 4)

Prohibition on damaging character of the candidate of other party, (sec 5)

Prohibition on propagation: Undermining the independency, sovereignty, territorial or

national integrity of Nepal etc; (sec 6)

Prohibition on exchange of cash or kind, (sec 7)

Employee/other officer shall not influence election, (sec 8)

Prohibition on going armed or using arms (except by employee) (sec 10)

Prohibition on receiving or giving ballot paper illegally, (sec 12)

Prohibition on making entry in unauthorized manner or causing obstruction to counting

of votes or other acts of election, (sec 14)

Prohibition on divulgence of secrecy, (sec 15)

The Act prohibits doing such acts which materially influence the election. The chapter 3

deals with the penalties. According to section 19, the officer immediately can impose the fine

from 500 to 10,000 Rupees. Besides that, the section 21 states that,

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.

4.4- Election Commission Act, 2063

This law deals with the functions, duties and powers of the Election Commission. As we all know that the election commission has the great role to conduct the election effectively and impartially. Some of the major provisions made in this Act are as follows:

26

Chapter 2 of the said Act has the provisions of functions, right and duties. Some of them

are:

The commission can write to the ministry of home for the management of the security of

the election, (sec 4a)

The commission may create such positions as per the necessity of the function of the

election and also can appoint the employee in such positions. (sec 5)

The commission can ask or take the help from any governmental or non-governmental

officials for the electoral purpose.(sec 6)

It has the power to monitoring and observation of the electoral functions in period of

election. (sec 7-8)

It can use any equipment or property owned by GON for the regulation of the election.

The equipment such as land, building, vehicles, furniture etc. (sec 9)

It can recommend to concerned authority to prosecute and punish the employee who acts

harmfully against election.

The commission can make expenditure in election. (sec 15)

The commission has the power to cancel the election in such a condition that any act

occurred to harm the fair election. (sec 17)

The commission has the final authority to decide the matter of disqualifications of the

candidate. (sec 18)

It has the right to make any rules, code of conduct for the regulation of all aspects of the

election and it also can impose fine if any disobedience occurred. (sec 28-29)

The commission can limit the budget of expenditure to be done by the candidate or the

political party, if they cross the limit then the commission can impose the fine equal to

the expense, on the other hand the commission can declare the candidate disqualified for

6 years to be candidate in any election. (sec 31)

4.5- Other Laws

There are other laws, rules and regulations to regarding the election. Such as, The Act and

Rules of Voter List, 2063 and 2068 respectively and Political Party Registration Rules, 2063. Besides that there is the Code of conduct of CA election, 2070. The Voter

27

List Act is the law to govern the system of registering and deregistering of the voters. On the

other hand, this act also regulates the qualifications of the voters. The code of conduct of the

CA member is the entire rules governing the conduct of the political parties, candidates,

conduct of propaganda, conduct of mass movement, conduct of using vehicles etc. besides

that this code of conduct has also given the provisions of conduct of the governmental and

non-governmental institutions/officials, conduct of the media and so on. If anybody disobey

the code of conduct then the commission can impose the fine as prescribed in the section 29

of the Election commission Act,2063 that is, up to one Lakh and cancellation of the

candidacy.

4.6- Practice of Electoral System in Nepal

In the abovementioned topics it is already explained as in the law that, what electoral system

is adopted by Nepal. In brief, Nepal has adopted the mixed system of election. Under

plurality/majority the FPTP is adopted by delimitating the 240 constituencies. The candidate

obtaining most votes will be elected. The ‘Closed List PR’ is adopted under proportional

representation for 335 seats. 26 seats are filled from the ‘Nomination’ by government.

While delimitating the constituency, the constituencies of the administrative district of the

election of HOR of 2056 are continued. Then the percentage of increasing population is

considered to increase the constituencies in the Hilly and Terai region.41 On the other hand

the constitution and the Ordinance itself said that there must have proper consideration of the

principle of the inclusion while selecting the candidates by the parties.42

In a single-member-constituency with plurality system, the winner in each constituency is

the candidate with the most votes, even if this is less than fifty percent. As a result, when

voting percentage of the majority party in parliament is counted it may not cross fifty percent

of popular votes but it legitimately forms the government. This model of electoral politics,

commonly exercised in India, Canada, the UK, the USA and New Zealand, is called winner-

take-all.43

41 Interim constitution of Nepal, 2063 Art, 63(3)(a)42 Interim constitution of Nepal, 2063 Art 63(4) and Ordinance to the election of CA member,2070 .sec 7(3)43 Dev Raj Dahal, Electoral System and Election management in Nepal (unpublished article)

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It is fact that, every system consist certain merits and demerits. On the other hand, the

advantage of same system in one condition may be disadvantage for the other condition. So

that, merits demerits always does not remain universal and static. The systems followed by

Nepal and their merits and demerits are explained in this topic.

a) First Past The Post System:

FPTP is that system in which the candidate having most votes is elected. It does not require

the absolute majority of the votes to be elected. It is one of the direct election systems.

Unlike the PR system, it discourages the inclusion of the minor parties and their

representation. Therefore some critics say that it does not carry the real representation. The

FPTP ballot showed the electoral symbols (but not the names) of the candidates registered to

stand for election. Candidates could be representatives of political parties or independents.

Each voter cast one vote for his or her preferred candidate. The votes cast for each candidate

were then counted, and the candidate with the most votes was declared the winner.

Candidates were allowed to compete in up to two constituencies. Candidates who won in

both constituencies were required to select the one he or she wished to represent, and a

subsequent by-election would be held in the other constituency. This system consist the

following consequences.

Merits:44

One of the best advantages of this system is unlike the other systems; it is the simple one

that every people can understand.

The strong geographic representation can be achieved by this system. Every district or

election constituency will be represented form whole country. It promotes a link between

constituents and their representatives, as it gives rise to a legislature of geographical

representatives. Elected members represent defined areas of cities, towns, or regions

rather than just party labels.

It helps to implement the accountability of the government.

The voters are given the freedom of fair selection from the many. It allows voters to

choose between people rather than just between parties.

44 IDEA handbook (Nepali translated by Rural Development Foundation in 2007 AD) p.16 and IDEA handbook Draft, 2005, pp. 21-31.

29

It encourages the opponent candidate which is good and qualified one.

It eliminates the political parties which are more in number but weak in qualification,

It is best election system for the election of president in the presidential system which

gives more chance to grab the strong parliamentary support.

In the parliamentary system, it gives more chance to form the government of majority.

Demerits:

It excludes the minor political parties and their representations,

It excludes the people of minority such as Indigenous, backwarded, women, Dalits and so

on.

There is the chance of wastage of vote in large number,

The balance between votes and the seats is not parallel. For example if a party win 20%

of vote but may get 2% of seats.

Sometime it creates the necessity of bi-election because sometime a single candidate take

part from the two constituency after winning both s/he holds only one seat then other seat

shall be filled by bi election.

It strictly requires to delimitate the election constituencies and their boarders, which is

one of the most illustrative and unmanaged task in the election system.

It is most beneficial only for where there are very few candidates representing few

parties.

b) List Proportional Representation

List PR is one of the systems followed by Nepal under mixed system. Voters vote for a party,

and parties receive seats in proportion to their overall share of the vote in the electoral

district. Winning candidates are taken from the lists in order of their position on the lists.

More specifically Nepal follows the ‘Close’ list system in which voters are not sure that

which candidate has the maximum chance to win. In other words the candidates are not listed

in order. Therefore it is close and power goes to the political party. Only political parties

registered with the Election Commission could stand for election under the PR system; no

independents are allowed to run. When submitting lists of candidates to the Election

Commission, political parties were required to ensure a certain level of representation on

30

these lists for women, Dalits, indigenous ethnic groups, “backward regions,” Madhesis, and

other groups. Lists that did not comply with these quotas were rejected by the Election

Commission and were then corrected by the parties within seven days and resubmitted.(sec. 7

(3) of Ordinance to election of CA member, 2070)

While talking about the PR system, the concept of threshold comes in question this is already

discussed in this paper. Although Nepal has not created any threshold in our previous

elections but the notion was raised by some politicians in the election of 2070.

The advantages and disadvantages of list PR are somehow attached to the threshold. In

addition to the advantages attached to PR systems generally, List PR makes it more likely

that the representatives of minority cultures/groups are elected. When, as is often the case,

voting behaviour dovetails with a society’s cultural or social divisions, then List PR electoral

systems can help ensure that the legislature includes members of both majority and minority

groups.

Some of the advantages of the list PR are as follows:

The most noteworthy advantage of the PR system is the inclusiveness. As the Article

63(4) of ICON says, In selecting candidates pursuant to Sub-clause (a) of Clause (3),

political parties shall take into account the principle of inclusiveness; and in enlisting

candidates pursuant to Sub-clause (b), political parties shall ensure proportional

representation of the women, Dalit, oppressed communities/ indigenous peoples,

backward regions, Madhesi and other Classes, as provided in law.

It gives the real proportional representation. That means the equal proportion of the votes

and their seats takes place.

Representation of the minorities cultures/groups, women, people of special communities.

It is more beneficial for the diverse society.

The votes will be wasted in very less amount.

It is not necessary to delimitate the electoral constituencies, or in very few exceptions a

single state can be regarded as a constituency in the federal states.

It does not require to conduct the bi-election neither requires the double round of

election.

31

It prohibits the single party domination. And the chance of voting is also high

comparatively with the direct system.

Disadvantages:

Weak geographic representation. It is because the candidates listed do not represent a

specific area but represents a whole country.

Weak links between elected legislators and their constituents/voters.

Disputes in the accountability of the government functions.

Maximum chance of getting weak parliamentary support for the election of the president

in the presidential system.

In the parliamentary system the chance of forming government of the minority is high.

It gives more (almost full in close list PR) power to the political parties.

The political parties who do not raise the voice of people can have the representation on

the parliament by this system.

This system cannot take over the power of a party which is in government.

Give rise to coalition governments and a fragmented party system.45It means the

groupism takes place on the other hand the parties may be fragmented which do not lead

to the co-operation and peace.

The inability for the voter to exercise accountability by throwing a party out of power.

Under a PR system, it may be very difficult to remove a reasonably-sized center party

from power. When governments are usually coalitions, it is true that some political

parties are ever-present in government, despite weak electoral performances from time to

time.46

This system may not give more benefits to the states which are very diverse in culture,

social values and communities. The benefit in the sense the government formed through

this election may have to face the problem of instability

It is fact that the system itself is not good and bad. A system becoming good in one place

may not be suitable for the other place. It mostly depends upon the state practices. For these

sorts of advantages and disadvantages the political parties must be very aware of selecting

the electoral system. They must be aware of the geographical diversity, social, cultural and 45Supra note 24 at, p 2946 Id. at 30.

32

ethnic diversity of the country. On the other hand the education level of the people must be

considered. Without having proper knowledge and idea about the benefits, the system could

be practiced in the wrong manner which could be curse

c) Nomination from Government:

There are 26 parliamentary members nominated by the government (council of minister).

These members are nominated on the basis of the understanding, from amongst prominent

persons who have rendered outstanding contributions to the national life, the indigenous

people which could not be represented from the FPTP and PR.47

Although there are 601 members, among whom 240 are directly elected, 335 from PR and 26

from nomination, but all members has the similar position in the parliament. In recent

practice of Nepal there is unicameral legislation unlike in the USA where is Senate (upper

house) and House of Representatives (lower house). But, there is no distinction among the

members directly elected and other in Nepal.

The total voters and the vote casted in the last five elections are given in the following

table:48

The record of the CA election of 2070 is based on the population according to the census of

2068 and others were based on the population according to the census of 2058. While

evaluating the abovementioned record, the election of the 2070 achieved to poll more votes

even there were lesser population registered than in the election of 2064. The data shows

around 70 percent votes polled in the CA-II. As the NEOC report conclude the reason

47 Interim Constitution Of Nepal,2063 Art 63, sub art 3(c).48 (CA-II) National Election Observation Committee (NEOC) Report, 2013 pp. 37-38 (for other elections) http://www.academia.edu/8522923/_2014_Nepal_s_Election_2013_A_Critical_Analysis_

33

behind it may be Voters, especially seasoned voters, did not appear to have significant

difficulty understanding the ballot or the proper procedure for marking it and placing it in the

ballot box. Consistent with this finding, the number of spoiled ballots was very low in all

polling centers visited by NEOC observers, and relatively few cast ballots were declared

invalid during the vote count. According to EC invalid percent under FPTP was 4.2 and 3.94

under PR system.

While observing the result on the basis of inclusiveness, the representation of women is 34.4

% in the CA-II (NEOC report). While the women hold 33.22 percent of total seats, Madhesis

34.09 percent, Dalits 8.17 percent, Janajatis 33.39 percent, and representatives from

“backward regions” 3.83 percent in the CA-I.49

There is another hidden fact that, there are lots of registered people who did not participated

in the election. Though it may be by any reason but it really hamper on the real

representation. On the other hand many votes become waste due to no clear stamp. These

sorts of problems must be minimized as far as possible. The prime responsibility goes to the

election commission.

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.50

Chapter- V: Problems and Challenges

In the 60 years of electoral history of Nepal, though there are many social, political

evolutions and revolution took place but no drastic changes and developments took place in

the electoral system. Although, the concept of electronic voting system is being raised in 49 The Carter Center, Observing The 2008 Nepal CA Election (report) p.4850 Supra note 43 at .5

34

recent days and the registration of voter is being computerized. As we all know that a free

and fair election brings the micro-institutions of governance closer to the people. An

individual exercises his different rights in his political culture during socialization. In this

way the election is only the way by which people exercise their democracy and the

constitutional rights. In this regard the election of a country must not contain lots of

problems and irregularities. There are many positive features in Nepal's electoral

participation, for example, there is phenomenal growth in the number of candidates, voting

percentages in male and female as well as rural and urban are narrowing and greater

participation is reflected not just in the act of voting but also in the electoral processes. Still

there are some areas to be reformed. Some of the problems of electoral practice of Nepal are

slightly discussed in this chapter.

5.1- Problems in System/Practice

To have the very effective and the democratic, fair and best representative election, first of

all there must have the proper laws and their proper implementation. One of the very ground

of this is, the principle of rule of law works everywhere even in the election if a country

really follow it. Inadequacy of laws or weakness in its implementation causes to failure the

system in totality. While observing the legal framework of the electoral system practiced in

Nepal, it is constitutionally defined that the mixed system shall be adopted. The

representation is mainly based on the equality of population, geographical congeniality, and

the specificity, (ICON art. 63(3). The constitution also adopted some principles such as

inclusiveness, equality, secrecy that is the positive part. But in the same way, the constitution

also defines some qualifications to be the candidate in CA election but it does not include

any academic qualification. The academic qualifications could be the degree in knowledge

of law, politics, society and so on. This unknowingly could result the involvement of

uneducated people in the ruling power.

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 polity proportional representation is the best as it provides guarantee to minority

35

representation. But 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.51

The problem of the polling centers is another matter which directly related to the access to

the voters. Sometime the polling centers are selected where all voters cannot access due to

difficult geographical location, distance or other climate problems. The political parties

themselves must cooperate for such problems because only having the proper law does not

constitute the success.

As average voters are illiterate and poor, they cast ballots based on the images born of a

multitude of impulses, campaign tactics and image shaping of candidates than on careful

examination of underlying issues and substance. Even the law says that the voting must be in

secret but it does not give any help to the illiterate people.

The election commission is such a body which has the all responsibilities of conducting

election including finance and employee. But the responsibility does not carried

independently. The election commission as a constitutional organ should be independent and

must exercise its functions as the autonomous body. On the other hand, the law itself is not

clear in giving the autonomy to it. The commission is required to employee the officers from

the government bureaucracy.

The voters are required to vote from the constituency where they are registered, (sec 38(1)

Ordinance). Though people can register their name where they are residing. But the problem

occurs here, people either do not give proper care or it lacks information. The law should be

there to regulate such problems.

5.2- Challenges in Practice

Nepal is one of such country which has the geographical, social, cultural, caste, ethnic, and

even diversity in language. In this context, it is quite challenging to implement a uniformed

law and to have the effective practice of the system whether it is electoral or other. As

election is the heart of democracy, it should be practiced very fairly and effectively. The

51Id. at. 3

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main goals of election must be to ensure the entire franchise workable which means paying

attention to all the strata of people.

The other concern comes here that the system establishes in one side and the practice takes

place but the result and consequences comes different. For example: the principle of

inclusion is strongly adopted and it is practiced in the election that resulted in the inclusive

parliament. But the consequence is that, the very fragmented government its instability.

Inclusion includes all the members whether they are uneducated, having no vision, seeking

only power, political influence, coming just as being a back warded, female, dalit so on. But

they themselves create the problem in CA since they exist in single house. One becomes a

parliamentarian only being female not as a qualified, only being backwarded , dalit not

because they are qualified and educated.

Even though there are the laws regulating the conduct of the parties, candidates, individuals,

even for governmental or non-governmental agencies. But in practice, the implication of

such rules and regulations and its observation part is very poor. There is the problem of

selling and buying of the vote this is why the voters even do not feel how important the vote

and, how their vote works in the parliament. Even the voters give the vote to the candidate as

which party s/he belong. They just choose the candidate as their preferred party which they

preferred frequently. People do not care about the qualification of the candidate. Even they

do not know how and why to care the qualifications.

One thing is fact that, even the government/election commission has not created any

academic qualifications to be candidate. Therefore the elected candidates as the ruler of the

nation have no vision and mission but only carry the flag and ideology of the political party.

If so, how they can make the constitution and effective laws? Such candidates just know to

demand but don’t know that what can I give to my nation. These all hidden problems can be

taken into consideration if the electoral system and its all laws becomes perfect and

effective.

Representatives represented from the various groups of people basically concern on their

local problem or on the problem of the particular region. But a good representative must be

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the interested on the national interest. 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 political parties which carry only the interest of some special community or class of

people should not be registered. They are such problem creature the do not support the

national harmony but only seek the communal interest.52

Residency requirement is depriving homeless and rural people working in urban areas,

distance factor especially in hills and mountains, tendencies of major parties to violate the

code of conduct, especially indulging in violence, manipulating media, involving in

recruitment and transfer of personnel relating to security and law misuse of finance and

order, etc.53

The election irregularities are also taking place such as bombing, attack, hiding the ballot

box, which is the threat even affect to the voters that they do not convince to vote. The cost

expensed by the candidates and the political parties often goes beyond the limitation.

The report of NEOC has mentioned a record of percentage of irregularities in the election of

the 2070. Among the 10,000 polling centers, Good: No forms of irregularities 85%,

Average: Minor incidences of irregularities 14%,Bad: Multiple incidences impacting the

overall result 1%,Very Bad: Unacceptable magnitude of incidences o%.54

The registered voters of the CA-I were 76% of the total population (CBS record population

of census of 2001 i.e. 2,31,51,423 CBS). But the registered voters in the CA-II were only

47% of the total population of census of 2011 AD i.e. 2,66,20,809. On the other hand, some

of the registered voters do not vote and some of the casted votes become invalid. Finally, the

winner parties carry only the representation of very few people. For this, updating of the

voter list is very significant. This kind of hidden problem should be minimized as far as

possible.

52 Mangol National Organization vs.Election Commission, 37 NKP 19 (2052)53Supra note 51 at. 1054NEOC report, 2070 p. 67.

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There is no such voting system for the citizens who are residing in foreign country as the

employee. The voting right of such persons is not secured considerably.

The political parties and independent candidates mostly resort to unconstitutional means and

slogans to woo the voters. Sometime they convey such hoping slogans which they cannot

fulfill ever. These sorts of strategies are not constitutional so that it must be regulated by the

proper laws. The election commission has the authority to regulate such conduct but the

problems also occur in the commission itself.

One of the most crucial problems in our practice is the practice of the principle of inclusion

in wrong way. Wrong way in the sense that a female become a parliamentarian because of

she is female not because of she is qualified to be a representative. Similarly, a so called

Dalit, Backwarded, Indigenous becomes parliamentarian because they are in the said

position not because of they are qualified. If this kind of practice goes for the long, then the

future of the nation will be endangered. This problem directly or indirectly resulted to

dissolve the CA-I.

The possibility to solve this problem could be the “best loser” system in which the loser

having maximum vote (among such groups) is duly elected. It is used in Mauritius, in which

some of the highest-polling losing candidates from a particular ethnic group are awarded

parliamentary seats in order to balance overall ethnic representation.55

5.3- Conclusion and Suggestions to the Problems

Thus election is also a matter of relationship between the state and different sets of

citizenship and the expansion of citizenship from the social to political sphere. The political

meaning of the citizenship involves the right to participate in the exercise of political power.

The constitution settled for plurality (which is also called first-past-the-post) system of

election for 240-member. Considering population density and geographical size, Nepal is

divided into 240 single member constituencies, each of which elects one Member of

Parliament (MP). Citizens attending 18 years of age and above directly elect their MP for a

term of four year. Considering the whole country as one single constituency, the Close list

55 Supra note 21 at p.99

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PR is conducted without any threshold. Rather it requires the political parties to have the

inclusive name of candidates from the entire group in society.

From analyzing all the problems having in voters to the ruler from individual to government,

some of the reforms must be done whether in law or in practice. In this regard, should Nepal

then adopt an absolute majority system being practiced in France? In this system winner has

to achieve just over the half the popular votes of total (50 percent+1). If the election fails to

produce this, a second election is held a week later in which only candidates gaining more

than 12.5 percent in the first election participate. It could be better if there are few parties to

be participated but Nepal has many political parties. They will surely be eliminated except

some big parties. The benefit will be the qualified candidates in the ruling position. Or

should Nepal follow the German model of proportional representation? In which the parties

must get 5% of popular vote to secure a seat in parliament. This type of PR with threshold

could also be beneficial for the stable and accountable government.

These examples show that the electoral system followed by Nepal (Plurality+PR) seems

appropriate on the view point of social, educational, geographical, cultural diversity. This

system is one of the simple and less expensive forms than the other systems.But the problem

arises in field where the responsibilities of various sector took place. Addressing all the

problems and principle of inclusiveness, the mixed system with some threshold could be

more beneficial to end the more fragmented and coalition government. In this regards, some

of the important issues must be considered to make the system most effective and fruitful in

the long term.

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.

The election commission must be active in conducting the observations to find out the

misconduct of the political parties and candidates. As the many observers found very

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harmful and immoral activities during the election. Therefore the EC must be very active in

punishing for the disobedience of the code of conduct.

In a case decided by the supreme court of Nepal56, observation of election of 2064 is

conducted by the Observation committee (Rayamajhi Aayog est. 2063). I gave the report and

also declared the some candidates of “Ratriya Prajatantra Party Nepal” disqualified by

saying that they had dominated the people’s movement 2062/63. Such declaration was

actually not through the court but by the report of the observation. Then Election

Commission did not allow them to participate in election. The case was filed by asking that

they should be allowed to participate in election by declaring void the provision (Election to

the CA Act 2064 sec. 19(g)) since they are not convicted.

The Supreme Court held that, without due process of law no one can be declared criminal.

The section (above) so inconsistent to the Interim constitution of Nepal is hereby declared

void. So the Applicants can take part in the election.

From the above case it is to say that, the election commission being a independent must act

very carefully. It must conduct its own observation and must recommend prosecuting if any

irregularities take place. But should not declare arbitrary anyone disqualified to exercise the

right of taking part in election.

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.

The Design of Ballot Paper should be as friendly as possible to all voters, to maximize

participation and reduce spoilt or “invalid” votes.

Clearly the nature of, and need for, voter education will vary dramatically from society to

society, but when it comes to educating voters on how to fill out their ballots, there are

identifiable differences between each system. The PFTP, close list PR are some of easier

systems than the other. The STV, AV MMP requires more knowledge on voters even to

understand. Despite that, many votes become invalid. To minimize such problems the

commission must be aware while preparing the ballot paper.

56 Adv. Kamlesh Dwivedi etal Vs. PM and Secretary of council of ministers, 7 NKP 827 (2064)

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One of the hidden and interesting problems of the voters in Nepal is, a single voter gives his

two votes (FPTP and PR) to the two different parties due to their disbelief in one party. But

the candidates whether they are directly elected or nominated or came from PR, all has the

equal position in unicameral parliament of Nepal. Therefore the voter themselves have

created the fragmentation in the parliament.

For example: The “Rastriya Prajatantra Party Nepal” (which is democratic) got the 0 seats

in the FPTP but secured 24 seats from the PR (Final Election report 2070). The democratic

parties got seats from proportional way but lost in direct system. The fragmentation is

created here because other communist parties have got seats from direct system. That ratio

lies in very high rate comparison to other communist parties. Though, the MPs should focus

on national interest rather than in the political ideology but the ideology takes very important

role in the parliament. The concern is that these parties having opposite ideologies getting

higher seats in parliament due to the voter’s disbelief. This is the main reason of

fragmentation and coalition. Therefore the voters must be given the clear concept of

representation.

As the election is regarded the heart of democracy, it should be very certain and periodically

conducted in the fixed date. During election, Parties and candidates should be barred from

vote buying and such acts should be punishable by law. At the same time, political parties

and candidate be discouraged to resort to unachievable promises slogans to woo the voters

during electioneering.

The government should ensure that the EC is allowed to function with full independence and autonomy. No interferences should be made it either by the government or the political parties or any other entities. Voter registration, fixing of threshold and announcement of election date (except for by-election), fixing the timeline for party registration etc should be made entirely independent jurisdiction of the EC.

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Delimitation of constituency should be done with a scientific approach to strike correct balance between demographic and geographic components. Disqualification of the candidature found in criminal offenses, law-breakers and anti-social elements must be enforced in true faith. This is the way to uphold the rule of law. The individual having criminal offence once should strictly be prohibited to be a candidate. Similarly as the observers found that the children being used for the popularizing the party that is against the right of the children it should be prohibited. The electronic voting system could be more beneficial for the fairness and accuracy.57

5.4 - Conclusion

The Nepali people have demonstrated their dedication to ending the decade-long conflict and their interest in a new and inclusive leadership that will tackle the

difficult issues involved in drafting a new constitution and restructuring the Nepali state and

will work to address critical need for poverty alleviation and widespread development in

Nepal. In the same way, the election of CA is held two times in this decade but no permanent

constitution is made.

It has been already decided the adoption of a federal system. In such a context, it is

challenging to design an electoral system in the new constitution that reflects the rights of all

communities and meet the aspirations of the people accordingly.58

Finally, only a free, fair and credible electoral system and associated processes can

contribute to the meaningful institutionalization of democracy and gain popular trust.

Elections also embody the protection of universal rights and values; the Election

Commission must be prepared, when required, to hold elections that adhere to universal

democratic norms. Hence, it is essential to increase the management capacity and skills of

the Election Commission to make election management more competent and effective.

Bibliography and References

Books/Articles

57Supra note 54 at pp. 60-6258Strategic plan of the Election Commission of Nepal, (2009), p.5

43

7. Basnet, Adv. Lila Bahadur,Election law,8. Reynolds, Andrew. Reilly, Ben. (2002 ), The International IDEA Handbookof Electoral

System Design(reprinted)9. Grofman, Bernard , (2005), Comparison Among Electoral Systems (Research Note)10. Dev Raj Dahal, Electoral System and Election management in Nepal (unpublished

article)11. Dahal,Dev Raj Nepal,The Constituent Assembly Election and Challenges Ahead (2008)12. Gyawali, Dr. G.K. et al,(2013) Electoral Laws, Administration and Management,

(NEOC),.13. IDEA handbook on Electoral system Design Nepali (2004) translated and revised by

Rural Development Foundation14. International Idea Handbook Of Electoral System Design Draft November 2004,15. Krishna Hachhethu, (2008) Nepal In Transition: Study On The State Of Democracy 16. The Carter Center, (2008) Observing The Nepal CA election,

Laws:

17. Election (Offences and Punishment) Act,206318. Election Code of Conduct, 207019. Election Commission Act, 206320. Election to Constituent Assembly Members Ordinance, 2070 ,21. The Interim Constitution of Nepal, 2063.

Cases1. Adv. Kamlesh Dwivedi etal Vs. PM and Secretary of council of ministers, 7 NKP 827 (2064)2. Mangol National Organization vs.Election Commission, 37 NKP 19 (2052)

Websites:22. Electoral Knowledge network, http://aceproject.org/ace-en23. Electoral Reform Society, www.electoral-reform.org.uk/block-vote24. http://en.m.wikipedia.org/wiki/election_threshold25. http://www.academia.edu/8522923/

_2014_Nepal_s_Election_2013_A_Critical_Analysis_26. Strategic plan of the EC Nepal(2009), www.electioncommission.gov.np/strategic-plan27. Web dictionary, http://www.businessdictionary.com/definition/election.html

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