[For those interested in data anlaysis and visualization, check out the related article “Analysis of Local Electoral Units in Nepal“]
On June 13, the Supreme Court rejected the government’s petition to reconsider SC’s interim order against the government decision to increase the number of local units in 19 Tarai Madhes districts.
In other words, the government had decided to add 22 local electoral units to the existing 744 but the Supreme Court had put a stay order on that decision on May 26, 2017. The government filed a petition for Supreme Court to rescind its decision but the Supreme Court rejected the government’s petition instead.
Friction Between The Government and the Supreme Court
This show of force between the government and the Supreme Court seems quite bizarre. Is this merely an exercise in a system of check and balance or is someone over-stepping its authority? Does the government have the authority to determine the demarcation and number of local electoral units? Conversely, does the Supreme Court have the authority to question government’s decision on this issue? The constitution of Nepal 2015 may provide some hints.
The Supreme Court used a reference to Article 295 (C) and argued that determining the number of local units and creating special and autonomous regions falls under the jurisdiction of the Federal Commission. The Supreme Court is correct about this.
Article 295(C) states that,
Government of Nepal shall form a commission for determination of number and borders of the Village Council, Municipal Council and Special, protected, or autonomous regions to be formed pursuant to clauses (4) and (5) of Article 56. The number and borders of the Village Council, Municipal Council and Special, protected, or autonomous region shall be determined according to the criteria determined by Government of Nepal.
Article 56(4) and (5) states that,
4. Under the local level, there shall be Village Council, Municipal Council and District Assembly. The number of wards in a Village council and Municipal Council shall be as provided for in a Federal law.
5. Special, protected and autonomous regions may be created for socio-cultural protection or economic development according to Federal law.
The Local Level Restructuring Commission
My Republica reported that the government had formed a Local Level Restructuring Commission (LLRC) that finalized the number of local units to 744. It also reported that, “a panel led by Deputy Prime Minister and Minister for Federal Affairs and Local Development Bijaya Kumar Gachchhadar had decided to create an additional 22 local units and upgrade 23 rural municipalities into municipalities, saying that this move would help bring the agitating forces on board the elections”.
Given these facts, it is natural to ask, is the ‘panel’ led by Gachchhadar the same LLRC? This is unclear. If yes, the Supreme Court has no business telling the government what to do, because it is merely doing its job in implementing the constitution.
If Gachchhadar formed a separate panel other than LLRC then, that was unconstitutional. The number of local units need to be set by LLRC. If the LLRC endorses Gachchhadar’s decision then, the Supreme Court would have to move out of the way and let the government implement this decision. So, the solution to this political and constitutional crisis would come through LLRC.
So far, I have neither come across any details about who leads LLRC nor seen its report on the demarcation of local electoral units.
Constituency Delimitation Commission
Article 195 merely mentions that the government needs to form a ‘commission’ for demarcation but Article 286 of the constitution describes the specifics and the formation of Constituency Delimitation Commission. It also describes how to achieve the task of demarcation.
286. Constituency Delimitation Commission
1. For the purpose of electing members, in accordance with this constitution, to federal legislature, Provincial Assembly, village assembly and municipal council, the government of Nepal may form a Constituency Delimitation Commission.
5. The Constituency Delimitation Commission, while delimiting the constituencies in accordance with this Article, shall, based on population and geography, maintain as far as practicable the equal ratio or proportionality between geography, population and the number of members.
6. While delimiting the constituencies pursuant to clause (5), attention shall be paid to population density of the constituency, geographical conditions, administrative and transportation proximity, and the communal and
cultural characteristics of the people living in such districts.
Part 5 is the key to determining the demarcation and number of local electoral constituencies. It states that constituencies shall be determined on the basis of population and geography while maintaining a balance between these factors and also the number of members. This clause was one of the most contentious issues after the promulgation of the constitution. By noting many factors for demarcation and introducing vague language such as ‘as far as practicable’, it could be interpreted in multiple ways and is subject to abuse.
The population in southern Nepal, Tarai-Madhes, engaged in mass demonstrations against this clause. They claimed that this provision marginalizes their strength and defeats the spirit of proportional representation. They argued that the representation in federal, provincial and local bodies should be based on population, not on geography.
If a densely populated region is granted the same number of representatives as a sparsely population region, the former is at a loss because their votes do not matter as much. Madhesis, Tharus, and some Janajatis too argued that everyone’s vote should be equal, as guaranteed by the constitution.
After many months of mass demonstrations, political tensions, a blockade, and negotiations, an amendment was passed on January 23, 2016 to address this. The first amendment stated,
For the amendment of Article 286 (5): The Constituency Delimitation Commission shall delimit the constituencies in every province keeping population-based representation as main basis and geography as secondary basis in accordance with the article 84, 1 (a). Every district in the provinces shall have at least one constituency.
Amidst all the current political and constitutional crisis, a very important factor to consider is the content of the first amendment. This amendment was the result of years of struggle for equality during which more than 100 Nepalis became martyrs. The spirit of proportional representation needs to be honored while determining the number of local electoral units.
Local Electoral Constituencies by Geographical Region
In an earlier article titled, “Analysis of Local Electoral Units in Nepal“, I showed the percentage of total population and the number of local electoral constituencies in each geographical region. It could be seen that Himal has 6.74% of total population but 17.21% of local electoral units. Similarly, Pahad has 42.89 % of total population but 46.90% of local electoral units. Likewise, Tarai has 50.36% of total population but only 35.88% of local electoral units. In summary, Himal and Pahad have a proportionally higher share of local units. Tarai has a significantly lower share of local units compared to its population.
The number of local electoral constituencies/units needs to be determined according to population as main basis and geography as secondary basis.
Boycotting Local Elections
Some people of hill-origin have expressed their ire against the decision of Rastriya Janata Party to boycott elections until the constitution is amended to remedy other inequalities and more local electoral units are added. Given the fact that the number of local electoral units in Tarai-Madhes is significantly lower, it puts regional parties like RJPN at a loss. It is clear that RJPN’s demand for adding local electoral units in Tarai-Madhes is justified.
While it is true that the number of local electoral units need to be added mostly in Tarai, they should be added also in some districts in Pahad such as Udaypur, Bhaktapur,Kathmandu, Lalitpur, Makwanpur, Kaski, and Surkhet. See Which Districts Need More Local Electoral Units? for more details.
The largest gains would be made by Kathmandu, an astonishing 38 additional units, followed by Morang, Sunsari, Chitwan, Kaski, Rupandehi, and Kailali. It is interesting to note that the largest gains would be made by districts with a proportionately higher population of hill-origin inhabitants.
The demand for proportional representation and demarcating local units according to population is championed by marginalized groups such as Madhesis and Tharus. However, the ruling elites of hill origin are opposed to this demand. This is a strange conundrum where the largest beneficiaries are indeed the ruling elites and they are ostensibly opposed to it.
The government’s decision to add 22 local electoral units is in spirit of the first amendment. However, the Supreme Court rejected their decision. Article 286(7) also states,
7. No question shall be raised in any court of law regarding the constituencies determined by Constituency Delimitation Commission.
The government needs to ensure that this recommendation to add more local electoral units is made or endorsed by LLRC. If this were to happen, the provisions of the constitution and the first amendment would be honored and the Supreme Court would have to uphold the government’s decision. It would pave the path forward for conducting fair local elections that respect the principle of equality and proportional representation in local bodies.