Last week, the government announced the date for local elections. The decision has been generally hailed as an important step in implementing the constitution, as January 21, 2018 has been set as the constitutional deadline for holding elections to all three levels of government.

However, the decision has also sparked protests, particularly by the Madhesi Morcha which is against holding polls before the constitution amendment bill is passed.

Shashwat Acharya spoke with Purna Man Shakya, a senior advocate at the Supreme Court and constitutional expert, on the announcement of the local elections, the amendment proposal, the possibility of a constitutional void in case elections cannot take place by the stipulated date and the separation of power among the three branches of government. 

What’s your take on the announcement of the date for local elections?

It was unavoidable because the new constitution cannot be implemented without the elections. The vehicles for carrying the new constitution into full operation are the elected bodies at different levels of government. But we still have the problem of bringing the Madhesi community on board. That’s a political problem that the government should address. 

How can a political solution be found, given the opposition the announcement elicited?

Announcing the date for local elections will exert pressure on the ruling, the opposition as well as the agitating parties  to negotiate more intensely to come to a compromise on constitution amendment. It will also exert pressure on the Election Commission and other concerned government bodies to prepare for the elections. So announcing the date itself is a positive step. We should make full use of the time between now and the announced date to resolve outstanding political conflicts. 

Announcing the date for polls is different from actually being able to hold polls on the proposed date. Do you think the government has done or is doing the necessary homework?

We will have to see how the political developments will unfold in the Tarai. If the Madhesi community puts up a tough resistance, the government might have to rethink its decision to conduct elections.

The government can also consider holding elections in places unaffected by the Madhesi agitation. It is not mandatory to hold local polls all at once. The government can explore the possibility of local polls in phases.

How do you view the dispute over whether local elections should be held under the old (the existing) structure or the new one?

The dispute does not make sense after the promulgation of the new constitution. It is the election for the local government, which, once elected, will represent the people residing in the territory where that particular government has jurisdiction.  

How would you respond to the Madhesi Morcha’s argument that it would be unconstitutional for the central government to hold local elections as it falls under the jurisdiction of the provincial government?

That argument is flawed. The responsibility of holding elections for all three levels lies on the Election Commission, and the election dates are always announced by the central government. The provincial government has not been given any responsibility for announcing the date for local elections. Once the provincial governments are formed, they have the responsibility to provide assistance for holding local level polls.  But the jurisdiction lies with the Election Commission and the government of Nepal. 

Some also argue that holding local polls without amending the constitution is part of a design to weaken the federal model. Do they have a point?

The demand for an amendment based on the Interim Constitution is a political one. We will have to see what the impact of holding local elections without amending the constitution will be. There will be a law and order problem if the Madhesi and other agitating forces decide to boycott the elections and stage protests. It would be far better if all parties came to a compromise and participated in polls. But there is no constitutional bar for holding elections without amending the statute. The process will be smoother however if the amendment takes place beforehand. 

How did you view the process by which the amendment bill was tabled?

We should not merely view the amendment proposal as a formal parliamentary procedure. It is not just a number’s game. It is about a long-term resolution of the country’s social conflict. Merely passing the bill won’t resolve the problem unless there is a true meeting of minds.

As far as the process is concerned, there was some problem. We still have not constituted the Upper House or the provincial legislative assemblies. Any constitutional amendment that involves changing federal boundaries requires the approval of the provinces whose territory will be affected. 

However, there is an argument that the present legislative assembly has been given all the authority of a federal parliament. And because provincial governments do not exist yet, their approval can be bypassed. So the current parliament can pass the amendment bill by invoking the constitutional provision of removal of obstacles. We will have to see if this argument will prevail. 

There is talk about the possibility of a constitutional void in case elections to all three levels of government cannot take place by the date set by the constitution. What does such a void entail? 

One possibility is that the Members of Parliament will introduce a bill to extend Parliament’s life.  The question about the bill’s legitimacy will remain, as there is a precedent set by the Supreme Court that says the popular mandate enjoyed by Parliament cannot be extended beyond the date set by the constitution.

Parliament can extend its own life only in an extreme situation such as an emergency—and only for six months. So any attempt at extension of Parliament’s tenure will be very controversial and the dispute will land in the Supreme Court. It is a possibility fraught with political risk. 

Another possibility is that Parliament will cease to exist. The government at the time of the expiry will then function as a caretaker government, because the state will not operate in a void.

And only those provisions of the constitution that are necessary for the caretaker government to operate will remain; other provisions will go into automatic suspension.

Deliberation among all political parties will then be necessary for a national consensus on how to proceed. We might have to start afresh with a new constitution. Or the caretaker government could be replaced by an all-party government. 

But these are the worst-case scenario. If we cannot hold local or provincial level elections, we should at least hold elections for a federal parliament by the deadline. That will be a legitimate government that can deal with various national issues. 

You talked about the possibility of a new constitution. But the country has already had seven constitutions.

It is a hard reality. As long as we do not resolve our national problem—one between the Madhes and the Pahad—we may continue having one constitution after another. A relationship based on trust between the people of the two regions has to be built. 

Is there room for fostering such a relationship in this constitution? 

It looks difficult to me. Making the Madhesis satisfied is one variable in the equation; addressing Indian interest is another. Outgoing Indian ambassador Ranjit Rae hinted again that our constitution has to bring everybody on board. He is reiterating the policy of the Indian government.

The Nepal government has to resolve this issue diplomatically with the Indian government. It also has to bring the Madhesi community on board through negotiations. 

What do you think India’s role will be in facilitating the elections?

India is currently facing a dilemma. While it does not want any disturbance in Nepal, it does not want the Madhesi community to be out of the electoral process either. Although it is our internal affair, India will have an important role in convincing Madhesi parties to take part in the elections. 

There have been complaints of judicial overreach in matters that fall under the jurisdiction of other state organs. How is the principle of separation of powers among the three branches of the government playing out in practice?

The constitutional bench is not functioning well, as there is a lot of politics in the Supreme Court. We do not yet have a Supreme Court bench. Even those cases that involve constitutional interpretation are being handled by the normal division benches, which is against the spirit of the constitution.

We can see the judiciary is getting politicised every day and it hands down controversial decisions. Judicial interference in executive matters is increasing. Appointments of judges have not been based on merit either. Political bhagbanda has been a major deciding factor.