Should the President issue the ordinance sent by the government or not?
The President currently has three options. The first is issuing the ordinance as it is. The second is consulting about the ordinance received and holding it. This is a national and international practice. The third is returning it back to the government for reconsideration.
There is international practice of the president, who is sworn in for compliance and protection of the constitution, holding or returning to the government any bill that are against the constitution. Many bills were held by the previous president Ram Baran Yadav in this manner.
Why should this ordinance not be issued?
The Constitution has not accepted Single Transferable Vote system as is being talked now. It has accepted only majority and proportional representation (PR) electoral systems. The Constitution of 1991 had clearly stated that members of the National Assembly will be elected through the Single Transferable Vote system. The Single Transferable Vote system was not mentioned in the current Constitution after the political parties in the Constituent Assembly (CA) discussed and agreed to not keep it. That is why they put the National Assembly will be elected as per federal law. The President may be consulting to see if the current ordinance is in accordance to the Constitution.
Second, the main political parties do not seem to agree on the process through which this ordinance was brought. Chairmen of the parties who will form the next government have already termed it unconstitutional. The Prime Minister has said it must be issued. There is already a dispute. It may have been held due to the President's wish that the parties must agree on this.
Do you also feel this ordinance is unconstitutional?
As a student of constitution and law, I feel an electoral system that the Constitution does not recognize has been sent to the President through the ordinance.
This ordinance is unconstitutional as our Constitution has rejected adoption of the Single Transferable Vote system and it is not mentioned in the Constitution.
Is Single Transferable Vote system not a kind of PR system?
Yes, this is a kind of PR system. There are others as well. But we have only adopted the closed-list system of PR system. This is not a closed list system.
The specialty of Single Transferable Vote system is that votes are not wasted. The extra votes that a winning candidate gets are transferred to the second candidate and so on.
This system also does not look applicable in practice as five members to the National Assembly come through reservation quotas for women, dalit and people with disabilities from each province. Only the remaining three come through the open system. There must be at least three candidates in this system as votes are transferred. This cannot be implemented if there are less than three necessary candidates.
The terms of National Assembly members also vary. Some have a two-year term, some four and others six. The same process through which they get elected will have to be adopted once the seats become vacant in every two years. How can this system be adopted?
If we look at the background the bill that the then home minister Bimalendra Nidhi submitted at the parliament after the Election Commission (EC) drafted it said members of the National Assembly will be elected through majority system. Nepali Congress (NC) and CPN (Maoist Center) lodged an amendment to that when the ruling parties were defeated in the local election. The government even removed it from the working list of the parliament on October 3 before the House session ended.
The government removed it from the list for October 3 after the media reported that the left alliance will be announced that evening. The bill would have been passed by the House that day otherwise.
What is the resolution now?
The Prime Minister must take the ordinance back and hold discussions on that. Agree on that in a way that both the sides win and then send it back to the President.
Using the Single Transferable Vote system for open and dalit members for the National Assembly and majority system for three women members from each province will be such win-win situation. That can also be implemented.
Single Transferable Vote system will be used even then. So, will it be constitutional then?
This will be for ending the current deadlock. The new government can replace the ordinance. The parliament will pass a new act.
So, the current deadlock is more related to the ego of parties than a constitutional one then?
There would be no deadlock had the Prime Minister wanted consensus. Prime Minister Sher Bahadur Deuba can still say the new government will take the blame or credit as the new mandate has already arrived and end this by resigning. The new government will decide what kind of ordinance to take and what kind of electoral system to adopt for the National Assembly. He can raise his voice remaining in the opposition.
Is it not as good as Deuba resigning now? The EC instead has said that final results cannot be announced before formation of the National Assembly.
The first thing is the EC has not said so officially. We can positively interpret that article of the Constitution and resolve this problem even if we were to move toward that.
The concern of EC is to ensure that each party has at least one-third women members in the federal parliament (including the National Assembly) as per Article 86(8) of the Constitution.
Each province must send at least three women to the National Assembly. So, it will be 21 women from seven provinces. Similarly, one of the three to be recommended by the President must also be a woman. A total of six women were elected for HoR through the first-past-the-post (FPTP) system. That means there will be 28 women adding all that. So, the EC can calculate how many more women in addition to the 28 will be needed to meet the one-third provision for the two Houses.
The final results can be announced even before the ordinance is issued if we want to interpret the Article 86(8) positively and seek resolution for the problem.
There are currently efforts to resolve this problem through the court. We must not allow that to happen.
The current misunderstanding among the parties is not created by the Constitution and law. I feel the parties have made this a matter of prestige.
