Interview BIPIN ADHIKARI

  • SC’s strong directives to EC at this crucial time will hamper progress made towards FDR

Oct 30, 2017-The Supreme Court has ruled that the Election Commission (EC) has to provide clarification for using one ballot paper for federal parliamentary and provincial assembly polls less than a month away from the first phase of said elections. The timing of the verdict has raised questions on whether the EC can print out new ballot papers on time, and what it means overall for Nepal’s Constitution—which has to be ratified by a new elected Parliament by January 2018—if it can’t. Mukul Humagain and Binod Ghimire talked to Bipin Adhikari, Dean of the Kathmandu University School of Law and constitutional expert on the issues relating to these developments, and the elections overall.

How do you view the two rulings by the Supreme Court regarding clarification for using a single ballot paper?

Contrary to the first ruling, the second directive from the Supreme Court carried strong language mandating action from the EC. The SC questioned why the EC failed to carry out suggestions issued in the first ruling. It has to be understood that there are no set laws that have to be followed for designing the ballot papers; the EC is expected to make such decisions with prudence and consult with all stakeholders involved. 

The SC’s verdict comes from the idea that the two elections (federal and provincial) are for two different things that are governed by two distinct sets of laws, so the SC does not understand why there is only one ballot paper. We could ask a pertinent question at this juncture: why it is okay to hold two separate elections on the same day, while having a single ballot paper with two distinct sections is considered to be confusing? The choices in the ballot paper are clearly outlined in two distinct parts. 

Now, the EC has the opportunity to make clear its case and justify its actions to the SC. If this fails, there is still time for the EC to change the ballot papers.

People have been talking about how there is no time to make changes to the ballot papers. However, though the government sets the date for elections, it is ultimately the responsibility and the right of the EC to carry out all duties for holding successful elections. If the EC needs more time or needs to change certain things, it can call for elections in three phases instead of two—it has the authority and freedom to do so. 

So there is no legal provision for a fixed ballot paper design?

There is no legal framework to direct the way the ballot paper should be made. It’s all about cost, design, ease of use, etc. The SC can ask the EC whether there have been any nefarious intentions behind a particular design, but it cannot direct the EC to create a particular design of ballot paper. 

The EC is currently preparing a progress report on developments regarding the ballot papers as per the SC’s directive, but it has also already started printing ballot papers. 

Perhaps with this ruling, the SC is attempting to set a precedent for future electoral decisions. They may allow for these elections to proceed with the current ballot paper designs, but look for changes in future polls. 

The EC has decided to go ahead with printing ballot papers in the hope that it will be able to justify its decision to the SC. If the SC isn’t convinced, the ballots papers are designed in a way that the federal and provincial parts can still be separated by cutting the ballot paper into two halves. So the printed ballot papers will not be wasted.

Legally, the SC verdict asked the EC to provide a report, not to stop its actions. The EC has taken a responsible step by continuing with its work. It is very important that, when the SC asks questions or provides statements, they take heed with the wording, as the interpretation of such words effects the entire 30 million strong Nepali population. 

Could there be a case where the SC allows the first phase of the upcoming elections to go ahead as is, and then asks for change in the second phase?

As it currently stands, the SC still might be convinced by the EC’s justifications. The other thing is that the SC, should they not be convinced by the EC’s arguments, can recommend clear steps for the EC to follow so they can progress according to the law and conduct elections in a timely manner. One solution it can offer is to split the elections into additional phases so that there is time to print new ballot papers. Whatever the case, I do not believe the SC will issue a verdict that could cause a constitutional crisis.

Recently, a Maoist Centre leader said that the current ballot paper was designed using the feedback and understanding of all political parties. Is it unlawful on the EC’s part to let political parties step into the election process?

The EC has the right and the responsibility to listen to all stakeholders involved in the electoral process. There is nothing wrong with this, as the EC has been transparent about these consultations. Take for example the election code of conduct, the EC did not produce this out of thin air—the EC brought all political parties on-board to decide on rules that are fair for everyone. The EC’s job is to create a fair electoral system, for that it has to take heed of all political parties.

There is some talk of judicial activism to actively subvert the acceptance of our Constitution, which is mandated to be ratified by an elected parliament by January 2018.

I do not believe that the SC is seeking to subvert anything. It cannot go beyond the law and its duties. I think that if the EC had given a clear explanation the first time the SC asked for clarification, we wouldn’t have come to this point. Now, the SC in its second statement has asked the EC to show some responsibility in certain issues, the EC has to step up and take that responsibility.

The left alliance has called for the reinstatement of the recent CA-turned-Parliament should the election dates be postponed. Do you agree with this view?

Parliament has not been put in stasis, it has been dissolved. The reinstatement of Parliament cannot happen, and the larger conversation should focus on successfully holding timely elections. The only way forward is to elect a new parliament on time. Even if the SC asks the EC to come up with new ballot papers, we shouldn’t think that printing 20 million ballot papers is a huge hurdle. Even by splitting the elections into more phases, the EC will still be able to adhere to court decisions and hold elections by January 2018.

The SC, which is also the Constitutional court, has to understand that issuing such strong directives towards the EC at this crucial time will only hamper the progress we have made in creating a federal democratic republic system.

The left alliance thinks it can win an absolute majority easily. The NC has been quick to paint the narrative where this is not a leftist alliance but a communist one. How do you view this?

This is not a leftist union, this is a leftist electoral alliance. I do not think they have the ideological cohesion to eventually turn this alliance into a union. The alliance was created because both the UML and the Maoists thought that this move would benefit both sides during the elections. To counter this, the NC has formed a democratic electoral alliance. What the parties have to realise is that the nationalistic ideology the UML has adopted is in reaction to the Indian economic blockade to garner support, they are not touting a communist ideology. So, all the other parties too have to either support or counter the issues the UML has adopted. If the democratic parties think that they can counter the UML by claiming that the communist facet is the main electoral agenda of the left alliance, they will be risking it all. The fight has to be about developmental goals, not ideology. 

The two elections that are about to happen will finally resolve the issue of constitution implementation. This will bring about a new political system. How optimistic are you that this new system will finally give the people the voice they have so craved?

More than changes in the provincial or federal level, I foresee a large difference in the way local governance occurs and is viewed. The way the local elections played out, the candidates had clearer agendas and some places were fought with grassroots agendas. If the federal government allows the LGs the amount of power they deserve, I see great positive change—especially at the grassroots level. We will also see corruption decreasing at the local level, since the LGs will be directly accountable to their community.

Published: 30-10-2017 07:47

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