October 6, 2013
The forthcoming second Constituent Assembly (CA) election represents an important dimension in this country’s efforts towards both democracy and a lasting peace. Most importantly, it represents a milestone for a country that is in transition politically, socially and economically as Nepal’s is. Elections are the central component of any functioning democratic system, and they form, moreover, an integral part of the democratization process. A free and fair election should be regarded as the cornerstone of all forms of democracy. It should be seen practically as the very means by which citizens as voters can fully participate and can then hold the political parties, their candidates and the incumbent government accountable on their promises and their performance. Today, free and fair elections and universal and equal suffrage are considered international norms everywhere. Such elections enable citizens to reward or punish candidates on the basis of their integrity and performance. However, in transitional and nascent democracies such as Nepal, free, fair and peaceful elections are often sadly far from the norm. Lack of electoral transparency and accountability, the use of money or violence to influence or intimidate voters, and the criminalization of politics are critical problems even in Nepal’s context.
The decision of the major political parties and the government to deploy the Nepal Army (NA) followed agitation by some political parties that threatened to boycott the upcoming election and to disrupt the poll. Recently, President Yadav issued an ordinance to remove any constitutional difficulties from deploying the NA during the upcoming CA election scheduled for November 19. This will be the first time that the NA will have been mobilised for an election. In the past, the army was used only for managing logistics and creating an ambience of positive security. It was not mobilised, even in this modest form, during the 2008 first CA poll. Questions then must be asked. Why the change? Is it really democratic? Is it really necessary? What kind of impact will it have on future practice? What impact will it have on the future politics of Nepal?
Many have taken the government’s decision to deploy NA personnel at the behest of the four major parties as a serious setback to democracy and against the fundamental rights of people to cast their votes freely and to choose their representatives without fear. Further questions need to be asked today. How can an election be said to be free and fair if it is to be conducted at the gunpoint of the Army? What can be the legitimacy of its outcome? Should it not be the goal of any election to create a secure, level playing field for both voters and candidates? Should it not be to provide voter education and civic involvement throughout the electoral process and to translate the will of the people into a representative government? Most importantly, what kind of democratic tradition are they likely to establish from this? I wish to emphasise why the decision to deploy the NA in such an historic election is going to be counter-productive as far as democratic norms and established principles are concerned.
Firstly, there is a straight question of legitimacy affecting constitutional and established democratic practices and the outcome of the election itself. As Professor Havard Hegre argues, elections provide a means for ‘jumpstarting a new, post-conflict political order; for stimulating the development of democratic politics; for choosing representatives; for forming governments; and for conferring legitimacy upon the new political order’. Deploying the NA in the second CA election will certainly be contrary to established democratic norms and values. What about the legitimacy of the outcome of the election? How will the people be able to cast their votes without fear? What about the human right of the people to vote in a free and fair manner? What can be the value of an election undertaken at gunpoint? What difference would there be then between the Mugabe regime and theirs own? Could the new Assembly fulfil its mandate without the broad participation of all the political forces? ‘Ballots under bullets’ do nothing to establish a proper functioning democracy in any country.
Secondly, the idea of deploying the NA in the election will make it politically ‘involved’. It will make its status and role controversial both politically and socially. The institution that is the NA is not a political body. It must be kept above partisan politics; indeed, away from politics altogether. Involving the NA in the election can only make the institution politically ambitious. In the long run it will not help to consolidate democracy. History is witness to the fact that most of the third world suffers from wrong traditions, and democracy is being threatened or hijacked by the institution of the Army in countries such as Pakistan, Myanmar, Sri Lanka and many others in Africa. Can Nepal not learn from so many examples in modern history?
Finally, participatory governance and democracy promote many forms of citizen participation beyond just voting. However, free and fair elections are a fundamental element of democracy and of good governance. The aim is to foster electoral and political accountability while also seeking to empower all political forces to participate effectively in the electoral process and to enable them to make informed choices. Where then are these values in their context? Is it not the duty of their election interim government and all Nepalese so-called political parties and their bosses to make the election inclusive and participatory? Is democracy itself not a dialogue – a give and take and try? If the election is conducted by hook and by crook using the big gun and excluding those agitated political forces, the second CA will certainly not be able to fulfil its given mandate, aims and ambitions. It will surely face the same fate as the first CA. It will surely bring down an even greater political catastrophe on their country. If the second CA fails to fulfil its given duty, then what? A failed state? Greater intervention by a foreign power? Or the rise of a third power such as the Army? Who will be responsible? Who will be answerable? Serious thought must be given to these points and Nepal must plan ahead very carefully.
Elections are a precondition for democratization and the achievement of a durable peace. We have no option but to hold the CA election. However, it must be held sooner rather than later and in a free and fair manner countrywide. To use the NA in any democratic process such as in the coming election would amount to a great democratic deficit since the idea is contrary to freedom and fairness. No election – the opportunity to exercise democratic rights freely – can be free and fair under the threat of bullets. ‘Free’ applies to participation and choice; ‘fair’ to equality in participation and in voting, to impartiality and to non-discrimination. Together, they imply respect for human rights and an absence of any coercion. How can the people feel free from coercion and experience a good poll environment if the NA is deployed on November 19? The deployment will have a negative impact in the long run both in consolidating Nepal’s nascent democracy and in completing the peace process.
This undemocratic and unconstitutional decision can do nothing but create serious problems that will serve nobody any good. It is essential that people of Nepal think again.
(Dr. Basnet, who holds a Ph.D. and an LL.M degree in International Human Rights Law at Lancaster University, U.K, is a Columnist, Lecturer & Researcher in International Human Rights Law and a Human Rights and Constitutional Law Lawyer in the Supreme Court and Subordinate Court of Nepal. He is the Author of the forthcoming book ‘Human Rights & the Struggle against Human Trafficking: The Case of Nepal.’ (Intersentia, 2015) Email: [email protected])
Read all posts by Dr. Gyan Basnet