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In 2014, the Supreme Court (SC) directed the government to change electoral laws to give voters the option to reject all candidates if they do not like any of them. The NOTA (‘none of the above’) option on ballot papers enables voters to officially register a form of protest over the political parties’ candidate-selection process.

The SC ruling stated that as voters were exercising only ‘yes votes’, it was important to allow them to cast ‘no votes’ as well. A joint bench of Justices Kalyan Shrestha and Prakash Wosti argued that the right to reject was an integral part of freedom of speech and expression guaranteed by the constitution as well as by international treaties and conventions. But political parties are yet to change electoral laws to this effect, largely out of fear of their candidates being rejected.

‘White vote’, ‘blank vote’, and ‘against all’ are other nomenclatures for NOTA adopted in different countries like India, Ukraine, Spain, Bangladesh, Pakistan, and in some American states. When voters choose NOTA option in their ballot papers, they deem none of the available candidates worthy of elected positions.

It has been eight years since Nepal’s apex court order, but major parties continue to demur. Following the order, the Election Commission, in 2016, had incorporated this provision in the drafts of election-related laws. But parties opted to remove it after parliamentary deliberations in 2017.

Ayodhi Prasad Yadav, the chief election commissioner at the time, says he had tried to convince parties to incorporate the provision, but to no avail. He had visited India to study the procedures of NOTA option in elections and concluded that it could be easily implemented in Nepal as well.

“Honoring the Supreme Court verdict and with a view that it would strengthen the democratic rights of Nepali people, the Election Commission had pushed the NOTA option, but major parties were not willing,” says Yadav. “Such a provision cannot be implemented without agreement among the political parties.”

Save for a few fringe parties, none of the big parties has seriously entertained the notion of NOTA option for elections.

According to constitutional lawyer Radheshyam Adhikari, after debating the issue in parliament, the parties concluded that they should wait for some time considering the low level of voter education.

“In our context, electoral practices are yet to take root at the ground-level. We are still disseminating voter education on how to correctly select candidates,” says Adhikari. “In this situation, the implementation of NOTA could further confuse voters.”

Adhikari, nevertheless, is hopeful that after some periodic elections, higher voter education-level will allow for disapproval votes.

Bibeksheel Sajha Party, led by Rabindra Mishra, is among the small number of parties that demand NOTA voting option. The party has even incorporated the option in its statute.

“As per the Supreme Court’s ruling and successful practice of many democratic countries, we should not delay the implementation of NOTA option, which is a voter-right,” says Prakash Chandra Pariyar, a secretariat member of Bibeksheel Sajha Party. 

Election experts say the adoption of the NOTA option would bring a systemic change to the current electoral process, which is becoming increasingly costly.

Under the current system, there is a culture of political parties picking candidates who can spend the most to win elections. As a result, competent candidates seldom get the opportunity to represent their constituencies.

Neel Kantha Uprety, former chief election commissioner, says people always want to vote for competent contenders.

“With the NOTA voting opting, parties will be compelled to pick their candidates more judiciously. It will also minimize the influence of money in candidate-selection,” he says. “If a large number of voters select NOTA, parties will have to acknowledge that there was a problem with the candidate in question, which in turn will lead to an improvement in the quality of candidates in the field.”

Pariyar of the Bibeksheel agrees with Uprety. He says the principle of lesser-evil dominates Nepal’s current election system.

“Voters are compelled to pick a candidate who is equally if not worse than other contestants in the fray. With the NOTA option, they will get to tell the political parties that they want better candidates,” says Pariyar.

Normally, NOTA votes do not get a majority, although that cannot be ruled out. If the majority does vote for NOTA, there would be a re-election. But in a democracy even the voices of minorities are respected.

In 2013, the Indian Supreme Court mandated that both the federal and provincial governments offer a NOTA option for voters. It was subsequently implemented by the Indian government.

In the 2014 Indian general elections, the NOTA option received approximately 1 percent of all cast votes. A little over 1 percent of the Indian voters chose NOTA in the 2019 Lok Sabha elections. While 2.08 percent of the voters in Assam and Bihar chose NOTA, the ratio was just 0.65 percent in Sikkim.

The new voting right in India was gained after a long struggle. In 2004, People’s Union for Civil Liberties, a human rights group, had filed a legal petition asking for measures allowing voters to express their views without any pressure.

A year after India’s top court granted such a right, Nepal’s top court followed suit. 

“The voters should not be influenced to vote for a certain candidate and there should also be no imposition of certain ideologies on them,” Nepal’s SC said in its ruling.

It also cited Article 25 of International Covenant on Civil and Political Rights 1966 that calls for universal and equal suffrage, and guarantee of free expression. 

Adhikari, the constitutional lawyer, says many people of voting age do not exercise their franchise as they do not like the candidates fielded by the political parties.

“If the right to reject is implemented in elections, such voters will get a chance to express their disapproval of candidates. They should get to express their disillusionment with politics through the electoral process,” he says.

In countries with a bicameral system, the upper house of parliament performs certain distinct duties to those undertaken by the lower house. Nepal has had a bicameral parliament since the 1950s, except for a brief hiatus during the partyless Panchayat regime (1960-1990) and the recent political transition (2006 to 2015).

The 2015 constitution has given continuity to the bicameral setup in the form of the National Assembly (NA) as the upper house and the House of Representatives (HoR) as the lower house of the federal parliament. On its website, the NA lists ‘providing expert service’ as one of its major functions. Except for this single task, the two houses perform similar tasks, such as formulation of laws and holding the government to account.

In many democracies, the functions of two houses are clearly articulated by the law so that they perform distinct tasks. In the United Kingdom, for instance, the main duties of the upper House of Lords are ‘examining bills, questioning government action, and investigating public policy.’ Its roles and responsibilities are clearly distinguished from those of the House of Commons.

In Nepal’s case, however, the upper house is struggling to establish a separate identity and there is growing disenchantment about its performance. The very idea of a bicameral legislature is being questioned, particularly after the recent assembly elections that elected mostly partisan, non-experts. 

So do we really need the National Assembly, then? Senior journalist Hari Bahadur Thapa, who also researches Nepal’s parliamentary system, says the core concept behind the assembly is to bring together a mature group of experts with deep knowledge on statecraft. The goal is to get them to offer expert guidance and advice to the government as well as the HoR.

“In a sense, it is a group of senior technocrats who delve into policy and law-making rather than engaging in day-to-day politics,” Thapa says. “But Nepal’s upper house has failed to measure up to its expectation.”

There are various factors behind the NA’s sub-par performance. Chiefly, the major parties are using the assembly to adjust leaders who have lost elections or those who have somehow not gotten respectable positions in the party structures.

For instance, Bam Dev Gautam of CPN-UML and Narayan Kaji Shrestha of CPN (Maoist Center), both of whom lost the 2017 parliamentary elections, are currently assembly members.

Influential political leaders want to be MPs as non-parliamentarians cannot become ministers for more than six months.

In the 59-member NA, an electoral college elects 56 members while the three remaining members are nominated. The three nominated seats have been reserved for experts. But as the government recommends these nominees, they are usually political appointees as well.  

Right now, Khim Lal Devkota, Bimala Rai Paudyal, and Ram Narayan Bidari occupy the nominated seats in the NA. Among the trio, only Devkota is not affiliated to any political party.   

NA member Prakash Pantha concedes that political parties are abusing the assembly to adjust those who lost the 2017 elections.

“The onus lies on political parties to honor the spirit of the constitution while selecting candidates. They should set the criteria for assembly candidates, emphasizing expertise over political allegiance,” he says.

Daman Nath Dhuganga, former speaker of parliament, agrees that the problem is in candidate-selection.

“The parties are reluctant to follow the constitution and are putting partisan interests above national interests,” Dhuagana says. “But then the National Assembly’s leadership is also struggling to assert its authority to safeguard the independence of the house. It is rather submitting to the wills of political parties and their leaders.”

The NA’s leadership was tested when the country faced a constitutional and political crisis after Prime Minister KP Sharma Oli dissolved the HoR in December 2020.

In the absence of the HoR, the assembly, which is a permanent legislative body, should have held the government to account. But it did no such thing. NA chair Ganesh Prasad Timalsena, who is from the CPN-UML, ran the House only for a few days to avoid criticism. After this instance, criticism of the assembly reached new heights. The upper house was accused of being no more than a government rubber-stamp. 

Another reason behind a weak assembly is the constitution itself. The national charter has not given the upper house any exclusive law-making right. As per the constitution, the government can present bills in the two houses of parliament but the assembly can neither approve nor disapprove the HoR-endorsed bills.

The provision of expert assembly members was envisioned to revise flaws and errors in the bills forwarded by the HoR. But then there is a paucity of experts in the NA to analyze the contents of such bills and offer corrections.

The NA must return a bill sent by the HoR within two months, either after endorsing it or recommending changes. When the HoR passed a passport-related bill in 2019, the assembly had pointed out several flaws in it and corrections were duly made. But such corrective measures are not possible without enough experts on board.

The NA’s performance has also been hamstrung by the inadequacies of funds and resources. A recent study report by Democracy Resource Center, an NGO, has pointed to the assembly’s lack of financial, physical and human resources, directly impacting the legislative process. The report titled ‘Legislative Procedures of the National Assembly’ says the assembly is short in computers, high-speed internet and office space.

Despite these inadequacies, the NA members can still work largely unhindered by the larger political upheavals. Unlike in the case of HoR members, assembly members do not have to toe party whip or serve specific electoral constituencies. This freedom allows the NA members to focus on issues of national importance.

Journalist Thapa says it is the assembly’s responsibility to ensure that the bills and decisions emanating from the HoR are not politically motivated, which has not been happening in Nepal.

“The upper house has failed to demonstrate the desired maturity and expertise and has been acting subordinate to the lower house,” Thapa says. “It has been found wanting on crucial tasks such as improving coordination between provincial and local governments.”

But despite the NA’s shortcomings, Thapa is averse to what he calls the radical idea of dissolving the upper house and adopting a unicameral system. “That would be like throwing the baby out with the bathwater,” he says.  

Thapa suggests reforming the NA, for instance by tweaking the current appointment system. “But as the custodians of the democratic process, things won’t improve much unless our political parties internalize the importance of a free and independent upper house.”

The Westminster parliamentary government has a long history in Nepal. Even before the establishment of democracy in 1951, the then Rana regime had envisaged a bicameral system in Nepal’s Interim Constitution 1947. The 1959 constitution also provided for a bicameral system. It was only during the Panchayat period that the country was under a unicameral Rashtriya Panchayat. The 1990 constitution again adopted bicameralism. 

After the political changes of 2006, the role of the country’s parliament was taken up by a Constituent Assembly elected to draft a new constitution. Between 2006 and 2015, Nepal had another period when it did not have two chambers of parliament with the CA performing the tasks of a legislative body as well. In 2015, the country once again adopted a bicameral system through the new constitution.

Balaram KC, a former Supreme Court judge, believes the bicameral legislature should not be discarded just because the current upper house has not been up to the task.

“Getting rid of the upper house could have bad consequences. The monopoly of a single chamber is never desirable. The idea does not sound democratic,” KC says. “As a democratic society, we should instead build pressure on our leadership to reform the house. Our political parties should also be responsible.”

The earthquakes of April and May 2015 had Kathmandu valley residents running towards open grounds. For the lucky ones, it was an empty plot in their locality or a friend’s house with a big garden, while for thousands of families, places like Tundikhel and Naryan Chaur became refuge. The importance of open spaces was evident. But as things started getting normal and people moved back into their homes, land encroachment continued, leaving the city with less usable open space than ever before. If Kathmandu doesn’t prioritize creating more open spaces, a future earthquake could leave a bigger calamity in its wake, say the experts ApEx spoke to. Moreover, without enough open spaces a city also loses its aesthetic value, impacting the mental health of its residents, they add.

 Suman Meher Shrestha, senior urban planner, says a city needs to be breathable and open spaces are vital for that. But uncontrolled urbanization has made Kathmandu congested, and it’s going to get worse as the population density increases. In places like Thimi, Sankhu, and Bungmati, people have realized the importance of community spaces and the local authorities are renovating and restoring old open areas like temples and courtyards. That needs to be replicated in Kathmandu too, he says, to preserve open spaces and therefore create a livable city.

 Ganesh Karmacharya, spokesperson of Department of Urban Development and Building Construction, says Kathmandu valley needs at least five percent open space while currently it’s only 0.48 percent of the total area. There is an urgent need to preserve what’s there and look into ways to create additional open areas.

 “Kathmandu is an old city and urban planning is a relatively new concept which is why it’s in the state it is. We didn’t give enough attention to proper city mapping,” says Karmacharya. He cites Tundikhel as an example. “If you look at old photos, you will see it was much bigger than it is today. Encroachment and haphazard construction around it has shrunk it.”

 Unfortunately, the same is true for any open space in Kathmandu valley, many of which are now being used for commercial purposes. The Kathmandu Metropolitan City is constructing a view tower at the Old Bus Park. The tower is supposed to have a recreation hall, a conference hall, a museum and a library in addition to financial institutions, robbing the nearby residents of an open space. Similarly, in Pulchowk and Satdobato, Lalitpur, a couple of schools have leased their lands to businesses and departmental stores and the students don’t have playgrounds anymore.

 Narayan Bhandari, deputy development commissioner at Kathmandu Valley Development Authority, says open spaces and greenery are the alveoli of a city. The KVDA is working on a 20-year masterplan to ease congestion in the valley and make it more habitable. Currently, it has identified 83 open spaces and is studying an additional 900-plus areas that can potentially be used in disasters. (According to a 2020 IOM report, only half of these sites are usable in emergencies.) The KVDA has a site in Balkumari, Lalitpur, developed with the help of Japan International Cooperation Agency, that is used to store equipment needed in case of disasters. It can also be used to house people when required.

Also read: What if… (local) elections cannot be held on time?

 But while disaster preparedness is a vital aspect of urban planning in Kathmandu, Bhandari says the focus needs to be on creating multipurpose open spaces like football grounds and parks that can be used all-year-round. “These areas can be used for recreational purposes and to host various national events while also providing shelter in case of an earthquake or other natural calamity,” he says.

 Experts are of the unanimous opinion that a city needs space—for children to play, elders to go on a walk and catch up with friends, and for people to just laze around. Many people live in single rooms or cramped apartments that get very little natural light and thus public spaces are also necessary for outdoor exposure. The lack of parks and public hangout locations force the youths to spend on coffee shops, restaurants and other such establishments.

If Kathmandu were to have more open spaces where people could gather, it would also foster a better sense of community, says Shrestha. Also, a designated open space within a certain radius can make even the most cramped places feel airy and pleasant. But Kathmandu, he adds, has many constraints and we need an integrated approach and different modalities to develop more open and public areas.

 But Kathmandu lacks open spaces, says Arjun Koirala, urban planner and former general secretary of Regional and Urban Planners Society of Nepal. It’s just that these potential public spaces are either neglected or misused. There are also lands that can be developed into parks and playgrounds but many of these haven’t been identified yet for various bureaucratic reasons. Currently, Koirala explains, plots of land are either illegally occupied or a space looks unused but it might be private property and there is no way of knowing which is which. There are also public-private partnerships through which plots of land that should have been public spaces have been leased out. “Kathmandu valley needs a better land management system and the government can start by formally identifying which land belongs to whom,” says Koirala.

The second step would be to determine the purpose of the open area, he adds. There are different kinds of open spaces, even the ones we conventionally don’t think of as an open space. For example, wide roads and pavements are a type of open space. The Bhadrakali-Singha Durbar stretch is an open space as there are wide footpaths. People can often be seen sitting and chatting on the benches along the path. Then, in crowded cities like Kathmandu, there’s also the matter of creating open space vertically. Balconies and rooftops, in that case, also function as open space. “To create more open space, we must first decide on its requirements and then plan accordingly,” he says.

 Shrestha says taking land inventory must be the starting point of the long and ambitious project of restoring Kathmandu valley’s lost splendor. Only when we know what we have can we decide what purpose it should serve and how to design it. However, he says there is also a need for proper policies and monitoring of construction projects to prevent land encroachment. There are apparently a lot of illegal structures turning Kathmandu into a denser concrete jungle.

 Even though there are rules and regulations, compliance is an issue. Shrestha says more often than not construction works don’t follow approved plans. That, he says, will in long run make the valley crowded and thus aesthetically unappealing as well as unsafe. “We must not forget the valley has a certain carrying capacity and uncontrolled development will have a ruinous impact. The only way we can negate some of it is by prioritizing open spaces,” he says.

It is official. The Election Commission (EC), the constitutional body mandated for holding elections, has categorically told the government that the term of local governments expires on 19 May 2022. But there are legal ambiguities on the elections’ timing. According to the Local Level Election Act 2017, elections for the heads of local governments must be held two months before the expiry of their tenure.  

But Article 225 of the constitution states, ‘the term of a village assembly and of a municipal assembly shall be five years from the date of election and another leadership shall be elected not later than six months of the expiration of such a term.’

Even though the constitution has given an additional six months in which to hold local elections after the term of the local bodies ends, the EC and observers cite a loophole in the constitution—the national charter is mum on the political vacuum that could emerge thereafter.

President of Municipal Association Ashok Kumar Byanju (Shrestha) rules out the possibility of a political vacuum, as the current leadership will continue until new office-bearers are elected. The commission has suggested that the federal government hold local elections two months prior to the expiry of the term to ensure there is no political vacuum after May 19. The EC has proposed single-phase local elections on April 27. But if there are logistical challenges, the commission says the elections could also be held in multiple phases.

Former Election Commissioner Birendra Mishra says the six-month grace period provided by the constitution will be applicable only in emergency-like situations when elections will have to be put off. “It does not mean parties can hold elections six months after the expiry of local bodies’ terms. It rather means the tenure of incumbent heads could be extended by a maximum of six months,” says Mishra.

To complete preparations, election dates must be announced at least 100 days in advance. That means now is the time to announce elections if the political parties are to honor the EC proposal. However, given their lack of readiness, chances of such a timely announcement are bleak.

AP

Komal Prasad Dhamala, Assistant Spokesperson at the EC, says elections should be completed before May 19 to ensure timely replacement of old representatives by new ones. He says the commission has conveyed to Prime Minister Sher Bahadur Deuba that elections must be held two months before the expiry of local bodies’ term.

Though the EC has been proactively, it cannot move ahead without a political consensus. As the constitution does not give the commission the rights to announce dates, the fate of local elections largely depends on the intent of the ruling coalition as well as opposition parties.

At the very least, consensus between the coalition and main opposition CPN-UML is a must. Parties on both sides of the aisle are likely to agree on proposed dates only if they reckon electoral outcomes will be in their favor. Nepali political parties have a tendency of putting off elections if they fear a loss.

Federal affairs expert and National Assembly member Khim Lal Devkota says contradictory provisions in the constitution and electoral laws are unhelpful. “Unlike the previous local bodies, this time around elections of local governments must be held with an urgency before the expiry of their current term,” says Devkota. The spirit of the constitution also envisages that local elections be held before elections for provincial and federal governments.

Analysts fear a vacuum in local bodies, as was the case from 1997 to 2018, following the failure to hold timely elections. “A repeat of such a failure shall have grave repercussions on the functioning of local bodies, which are sovereign entities according to the constitution,” says Devkota.

Others also reckon the no-election situation will be messy. Compared to previous local bodies, the new constitution has granted more autonomy to local governments including on budget-allocation. “In the absence of political leadership, local governments cannot function effectively,” says Mishra.

The major political parties are yet to consult among themselves on the three-tier elections. Perhaps they can now focus more on elections after completing their respective General Conventions (GCs). The commission is preparing to meet parties regarding the same.

Targeting local elections, the EC has updated voter rolls with the inclusion of around a million new voters. The local governments are completing their first tenure after the adoption of the new constitution in 2015 that provisioned a three-tier government structure. The first tenure seemed like an experiment and a period of learning-by-doing.

Still, dozens of local governments continue to face multiple hurdles, and many have failed to bring their budget on time. Observers say local elections should not be deferred, if only to ensure a level of maturity in the functioning of local governments.

This time, as compared to the last local elections in 2017, the atmosphere is also more conducive. In 2017, mainly Madhes-based parties were reluctant to head into elections until their demands were fulfilled, which is why local elections had to be held in multiple phases. The last phase was in Madhes. Now, the Madhes-based parties do not have any reservation about local elections. Even the Netra Bikram Chandra-led Maoists, which has since 2013 been sternly opposing all types of elections, has joined peaceful politics, even though the party itself is unlikely to participate in elections.

Similarly, CK Raut’s party, which had been campaigning for the secession of Madhes, has joined peaceful politics. Therefore, if major parties are committed to timely elections, the coast is clear for a single-phase local election. Smooth holding of local body elections, in turn, will also pave the way for elections of federal and provincial parliaments. 

On the other hand national politics could plunge into another bout of uncertainty if the elections can’t be held in line with the legal and constitutional obligations. There are 753 local governments: six metropolitan cities, 11 sub-metropolitan cities, 276 municipalities and 460 rural municipalities. In the last local body election held in 2017, CPN-UML emerged as the largest party followed by Nepali Congress, CPN (Maoist Center) and Madhes-based parties.

Also read: What if… the 2015 constitution had been delayed? 

Constitution has not envisaged vacuum in local bodies

Ashok Kumar Byanju (Shrestha)
President, Municipal Association of Nepal

The constitution is the supreme law of the land that defines how a government is formed and run, so we should move ahead as per its provisions. Our constitution states that elections of local governments shall take place within six months of the expiry of their term.

The Local Election Act has somehow narrowed that space. Heads of local governments have the mandate to rule in a full-fledged manner for five years, so they must be allowed to complete their tenure. Holding elections before five years amounts to a violation of the constitutional rights of local governments.

There would be no political vacuum after the expiry of terms as incumbent leaderships will continue to function until a new leadership replaces it. Our constitution has not envisaged a leadership vacuum in local governments. For instance, at the federal level, even after the resignation of the Prime Minister, he/she continues to serve until a new PM is elected; the same provision is applicable to local governments.

We should not create a vacuum as it may lead us to a state of uncertainty that we witnessed post-1997 when the tenure of the elected leaders expired and they left office. But there was no one to replace them. As a result, local bodies had to be run without elected representatives for nearly two decades. That undemocratic practice should not be repeated.

The constitution has not envisaged failure to conduct timely local elections. Parties should not see elections of local governments through the narrow prism of their win or loss. They should rather think about their larger public accountability. Failing to conduct timely elections will rightly be seen as a collective political failure.