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ANALYSIS by SHRISHTI JHA


Despite social insecurity, ethnic turbulence and the troubles in the tarai, this country is headed for elections. The political parties are gearing up for the nomination process under which they have committed to proportional representation. But there are legal and procedural flaws in the quotas of the Proportional Representation (PR) system as stipulated by the Constituent Assembly Members Election Act, 2064 and their political, administrative, and legal fallout. Under the PR system, there is a provision for quotas to ensure fair representation madhesi (31.2 percent), dalit (13 percent), Indigenous groups (37.8 percent), disadvantaged regions (Achham, Kalikot, Jajarkot, Jumla, Dolpa, Bajhang, Bajura, Mugu and Humla districts 4 percent), and 'Others' (30.2 percent) which add up to an impossible 116.2 percent.

Not only did someone get the arithmetic terribly wrong, but there are more problems with the 'closed list'. Across all these reservations, half of the seats in the PR and a third in the overall CA are earmarked for women. The parties are supposed to finalise the closed list during the nomination process itself. The Election Commission has declared that it will strictly enforce the quotas hinting that non-compliance can amount to losing seats.

The political parties can freely pick and choose candidates to occupy the seats that the party has won. Foreseeing problems that this could entail, the Election Commission wanted a provision for a fixed closed list but the politicians decided otherwise. Post-election candidate selection is undemocratic and unfair because it gives undue supremacy to party bosses and would make MPs beholden to them and encourage corruption, nepotism and sycophancy.

Thus, the 240 seats of the PR plus 17 nominated seats in the constituent assembly would be appointed by a handful of elitist leaders who have no track record of being inclusive in the past. There is also a potential problem with the 'Others' category because it goes against the spirit of the Interim Constitution which states that this category should include minorities like Muslims and other communities who do not fall in the specified quotas. 'Others' also presumes that each candidate, therefore every Nepali citizen, should fit neatly into one or other category. Not only would this be impossible it would also splinter Nepali society. Essentially, this category goes beyond the ambit of affirmative action envisaged in the interim constitution.

Proportional representation was supposed to ensure representation of marginalised groups rather than doling out seats to political favourites. The present ruling castes already have guaranteed seats under the First Past The Post (FPTP) system. The inclusion of brahmin/chettris in the quota system is at the cost of minority community members who might not find representation otherwise.

More worryingly, specific categories in the quota system (madhesi, dalit, indigenous groups) have not been specifically defined in the cited law nor in the interim constitution. This gap is a fatal flaw and could lead to controversial nominations especially in the Madhesi category. Though this quota was ascertained on the basis of the 2001 census, there is no official definition of the 'madhesi'.

Given the time constraints, if these gaps could delay the polls as the Election Commission doesn't have a strong legal enforcement basis to resolve these of issues within the stipulated seven days. Therefore, these structural flaws could snare the process in legal wrangles and actually undermine the credibility of the elections itself.

More dangerously, it could give legitimate cause for other minority communities who have no representation at all to also All this could throw the credibility of the elections in doubt and, ironically, sow the seeds for further instability.



LATEST ISSUE
638
(11 JAN 2013 - 17 JAN 2013)


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