Why is there no elections in Nepal?

A simple and cogent answer from someone in the Nepali Press is the following:

The parliamentary laws governing the election of the prime minister stipulate that once the process begins, it cannot be stopped unless it acomplishes the task it has set out to do: elect a new PM. The laws also do not allow amendment to the existing provisions. Put simply, so long as Poudel stays in the race, neither Maoist Chairman Pushpa Kamal Dahal nor UML chief Jhalanath Khanal, who have withdrawn from the race, can become prime minister.

Surely, Speaker Subas Nembang owes an explanation to the public as to why he is allowing these serial elections without the political parties first reaching a consensus on the next prime minister. He has given in to pressure from the Maoists and the UML faction led by Khanal in continuing to hold one inconclusive election after another. Trust the stickler lawyer in Nembang to go by the book. He has ruled out any amendment, pointing out that the constitutional provisions and procedures cannot be flouted to begin a new process to form the government.

The following is my take: An oft asked question: why is there no fresh elections in Nepal? The simple answer is that it is a chicken and egg situation. The premise is that any election process needs an agreed framework on interim power-sharing before power can be actually vested in a body and/or shared.

For example, in 1947, power was transferred from the British Raj to the Congress and the Muslim League with the de jure understanding that they were the solemn bodies capturing the will of the people. In the elections to the Central Legislature (in December 1945) and the Provincial Assemblies (in January 1946), both the Congress and the League had contested with an express belief that the results would determine whether the will of the people was with them or otherwise, even though prior to the announcement of the Elections, through and after the Elections, both contested the legal validity of such an exercise. While the Congress had won almost all of the unreserved seats, the League won almost all of the reserved seats, which was interpreted in many ways by many people, least of all the legal luminaries on either side. Note that the will of the people could be tested only in the Provinces, which left out almost all of the Princely States (making up almost 45% of the undivided Indian landmass). That is why the transfer of Paramountcy from the British Raj straight to the Indian Union (or Pakistan as the case may be) was such an important task. While the elections paved the way for the writing of the Constitution, Patel and Menon went ahead with the integration process. This was achieved in two ways: one, a Standstill Agreement was signed with each Princely State which ensured that status quo was maintained in terms of trade, communications, etc. (with the dominion of India) even after the dominions of India and Pakistan were promulgated. Two, an Instrument of Accession was signed by the ruler(s) and the due representatives of the Indian Union (VP Menon in many cases, others in some cases) as and when the negotiation process was concluded. In some cases, this was swift, while in certain Princely States, the process stretched itself through 1949 (Hyderabad, Manipur, etc. are notable examples). All this while, the duly constituted Constituent Assembly was preparing the draft document called the Constitution to codify the rules that determine the real processes of elections and power-sharing, in addition to the rights and privileges that the Citizens could enjoy. While the Republic was instituted in 1950, the first General Elections under universal adult franchise did not happen till 1951-52 with the first Lok Sabha convened in April 1952.

Back to Nepal, and some history. We all know how the maoists fought a pitched battle against the Monarchy and the Royal Nepal Army in the Ninetees and through 2005. On February 1, 2005 the royal takeover under King Gyanendra was further advanced as the King appointed a government led by himself and at the same time enforced martial law. The King argued that civil politicians were unfit to handle the Maoist insurgency. A broad alliance against the royal takeover called the Seven Party Alliance (United People's Front) was organized, encompassing about 90% of the seats in the old, dissolved parliament (elections held in 1999). In December SPA signed a 12-point understanding in New Delhi with the Maoists under Prachanda. Within the framework of that understanding, Maoists committed themselves to multiparty democracy and freedom of speech. SPA, for their part, accepted the Maoist demand for elections to a Constituent Assembly. Both sides agreed to establish absolute democracy by ending hereditary monarchy in Nepal.

As the culmination of this process, Nepal was rocked by what is labeled as the Jana Andolan 2 (see Footnote 1). With Nepal ambling from crisis to crisis, the King sued for peace on April 21, 2006 as he announced that he would return political power to the people and called for elections to be held as soon as possible. The SPA on its part made three demands: reinstitution of the old parliament; formation of an all-party government; and elections to a Constituent Assembly that will draft a new constitution. On April 24, the SPA government under Girija Prasad Koirala took over. With the SPA's goals realized(!), there were fears that the 12-point agreement with the Maoists and the demands for a Constituent Assembly would be forgotten. In addition, the Maoists wanted the monarchy to be abolished. The SPA bargained a status quo with the Maoists and on, May 18, 2006 the Parliament unanimously voted to strip the King of many of his powers. In addition, Nepal was declared a secular country as a Hindu Kingdom would need a monarchy to accord legitimacy.

While the 12-point agreement was the pre-monarchist understanding between the Maoists and the SPA, a new agreement had to be bartered in the wake of new realities. In the post-May 18 phase, peace talks were pursued and on November 21, 2006 a Comprehensive Peace Accord was signed between Prime Minister Girija Prasad Koirala and Prachanda. The deal allowed the Maoists to take part in government, and place their weapons under UN monitoring. Elections to the formation of a Constituent Assembly were scheduled to take place before December 15, 2007, but could not happen till April 10, 2008. There were many causes for the delay: the Election Commission was not adequately prepared, the Maoists wanted a Republic to be declared right away (even before the Constitution could be drafted), and on what kind of adult franchise to be used (fully proportional vs. mixed), etc. More on the adult franchise issue Linky

The Constituent Assembly Election Act proposed by the interim government attempts to define an election system that will provide equitable representation for traditionally marginalized groups such as Madhesis, Dalits, Janjatis (indigenous ethnic communities largely from the hills), women, and others. While this is a laudable objective, it is also very difficult to achieve. The elections system chosen by the interim government is called Mixed Member Proportional (MMP), which is a combination of two different election systems: single member constituency (usually called First-Past-The-Post or FPTP), and closed list proportional representation (PR). In Nepal, this means that 240 seats for Parliament will be selected through FPTP races in single-member constituencies, and a further 240 seats will be allocated to candidates on party lists so that the resulting Parliament will proportionally reflect the national popularity of each party. The Cabinet will appoint 17 additional seats. Voters will cast two ballots, the first for a representative for their local constituency, and the second for a political party.

On December 15, 2007, the above numbers were amended and it was concluded that the Constituent Assembly elections would vote for 335 seats under the proportional representation system, 240 seats under the first-past-the-post elections with 26 members to be nominated by the Prime Minister. This makes the number of members in the Constituent Assembly 601 (the magic number that we see today).

With the elections set for April 10, 2008, an estimated 60% of the 17.6 million voters cast ballots. Results took several weeks (official and final list was announced on May 8, 2008) because of paper balloting, poor geography, etc. The CPN(M) won 220 out of 575 with 120 through first-past-the-post constituencies and 100 through proportional representation. The 26 members were nominated in the same fraction as received by each party (thus the Maoists got 9 out of 26 and so on). The Nepal Congress got 37, 73 and 5, while the CPN(ML) got 33, 70 and 5 FPTP, proportional and nominated seats, respectively. More on this at Linky and Linky.

At the first session of the Constituent Assembly on May 28, 2008, the Assembly voted to declare Nepal a federal democratic republic, thereby abolishing the monarchy. The Constituent Assembly also decided that Gyanendra should leave the Narayanhity Palace within 15 days. Further, the major parties agreed on the creation of the position of President, while the Prime Minister was to hold executive powers; however, they reached no agreement on exactly what powers the President should have or who should become President. This is exactly what happens when the cart comes before the horse. In India, the role of the Governor General preceded till the Constitution could be agreed upon. In Nepal, the Constituent Assembly had not even commenced the process of writing the Constitution and yet, the logic of a President was agreed upon.

The same can be said about the Constitution writing process. It has been besieged by the Maoists' tempestuous tantrums, and by the lack of popular legitimacy despite an overwhelming support for the same during the elections. In particular, Article 64 of the interim constitution had called for the Constitution to be written within two years of the first assembly of the Constituent Assembly (which would have made the deadline May 28, 2010). As this process was nowhere in sight on May 28, 2010, the Eighth Amendment Bill was passed (and immediately assented to by the President Dr. Ram Baran Yadav) to change the timeline to "three years" from "two years." For this Bill to be passed, a three-point agreement was made under which the Maoists had demanded the resignation of the then Madhav Ku. Nepal government headed by the CPN(ML). This happened a month or so after May 29.

As of now, there is no legitimate government as no party has been able to cobble a majority. The interim Constitution demands that a candidate must have the support of a simple majority of the total membership of the House (300+ votes) and a 2/3rd majority of those present and voting (400+ votes if all are present) to become a Prime Minister. Even after repeated horse-trading and mud-slinging, neither the Maoists (which in itself is a divided house) nor the Marxist-Leninists (another divided house) and the Congress (yet another squabbling house) can get to such an idealistic benchmark. The reality for someone from the Maoists to become a Prime Minister is that he (or she!) needs the support of the Madhesis (80+ members) + the support of one other leading party. For either the CPN(ML) or NC, the task is even more steeper. Obviously, the Madhesis demand the heaven for support (they need an autonomous Madhes state). Neither the Maoists or the Congress can promise that as this will lead to major problems with the Nepalis and the Gorkhas. Emboldened by this move, the Janjatis will demand (not like they have not proclaimed already) autonomous republics such as at Kirat, Limbuwan, etc.

The provision of the interim Constitution means that the only viable formation is a consensus-based one. And there has hardly been any consensus in Nepal today. In fact, the Madhav Ku. Nepal caretaker government has been ambling along to pass the Budget and conduct the day-to-day business of the State (or even pay the Constituent Assembly members for that matter). Meanwhile, May 28, 2011 would have arrived sooner than later and yet the process of writing the Constitution would be nowhere in sight. Without a due written process, fresh elections cannot happen unless another interim and Comprehensive agreement (considering the realities of the situation as of that day) is signed by all the vested interests. Such an agreement can only be forged via the presence of a party that can soothe the tensions between the various sides that lead the debate inside Nepal (the Maoists, CPN(ML), NC, Madhesis, RNA and Monarchy). Obviously, that party is India. And India is in no mood to let the Maoists dictate terms to India and walk over to the Sansad. So the process will have to wait for nature to take its own course. Unless, all the interim parties agree to disband the Constituent Assembly and have fresh elections or even amend the 2/3 rule. The former would put the Maoists at a commendable disadvantage as there is no assurance that they will have overwhelming presence in a freshly constituted Constituent Assembly. And the latter would put the NC and CPN(ML) at the tip of self-destruction. There are more suggestions at Linky, but all that requires some statesman-like behavior on the part of everyone. Needless to say, a logjam is the best way out when matters of honest give-and-take are at stake.

Footnote 1: Jana Andolan was the name of the civilian strife against the autocratic Birendra regime and increase in prices in 1990 as India embargoed Nepal in return for the monarchy's apathy to Indian security interests.
2) Meanwhile, Prashant Jha analyzes the Palungtar plenum Linky

The Palungtar plenum revealed the complex equation among the three leaders. Mr. Prachanda and Mr. Bhattarai defended the Chunbang decision to enter the peace process; Mr. Kiran was doubtful about its wisdom. Mr. Bhattarai and Mr. Kiran accused the chairman of vacillating in his political stand, and of financial non-transparency. And Mr. Prachanda and Mr. Kiran accused Mr. Bhattarai of being an “Indian stooge.” But there were areas of agreement.

All three emphasised that the aim was to constitute a “People's Federal Republic.” While none of them defined it explicitly, other party documents have often elaborated on the elements of such a political structure — an executive Presidency at the centre; federalism with ethnicity/nationality as a prominent basis; an “equal” relationship with India; “democratisation” of the Nepal Army through the integration of former PLA combatants and firmer civilian control; ‘first rights' to local communities regarding natural resources; revolutionary land reform; and restricted multiparty political competition in which “anti-imperialist and anti-feudal” parties would not be allowed to operate. There was also a consensus that the PLA must not be “dissolved, dismantled or humiliated.” This assumes importance as non-Maoist parties have demanded immediate movement on the PLA as a precondition to constitution writing.

But there was a clear divergence on the future line and immediate tactics. In his document, Mr. Kiran argued that since there was no chance of such a “people's constitution” being drafted, the party should now focus on revolt and strengthen the organisation for the purpose. Mr. Bhattarai, however, said that in a context where the CA was dominated by the “proletariat and the petty bourgeoisie,” a progressive constitution was definitely possible. Mr. Prachanda, for his part, sought to portray his line as fighting against both Mr. Bhattarai's “right wing revisionism” and Mr. Kiran's “ultra left orthodoxy,” but claimed he felt closer to Mr. Kiran's position. Explaining the present situation as one of sharpened polarisation between those in favour of “national independence and progressive change” and those who wish to thwart the change, Mr. Prachanda reiterated that while the party's objective would be “peace and constitution,” it would simultaneously prepare for a general revolt. While this “dual line” was passed, Mr. Prachanda was unable to get his document approved at the meet.

3) China-Nepal cultural treaty: Linky

China has proposed a new draft to revise the existing Nepal-China Cultural Agreement of 1999. The treaty aims to revitalise the existing bilateral cultural cooperation between the two nations. Visiting cultural minister of China, Cai Wu, submitted the proposed draft to his Nepali counterpart, Minister for Culture Minendra Rijal, on Sunday. "The Chinese minister handed over a copy of the proposed draft to our minister and minister Rijal assured him that the ministry will treat the proposal with due respect," cultural secretary, Mod Raj Dotel, informed reporters after the meeting. It is learnt that the Chinese side has offered to boost its economic support in various cultural sectors, improve ties through its heritage institutions like the Confucius Center and increase scholarship quota for Nepali students from the next academic session, among others. Minister Wu, who has been in Nepal on a three-day official visit, will wrap up his visit on Tuesday.