What constitution and election laws say about local level pollsPoliticians and experts are divided over constitutional provisions and poll-related laws. Interpretations are different.
Communist Party of Nepal (Maoist Centre) chair Pushpa Kamal Dahal earlier this month raised political temperatures by proposing federal polls in April-May instead of local level elections at that time. Dahal’s proposal came on the heels of the Election Commission’s recommendation that the government hold local elections in April-May.
Nepal conducted its last parliamentary and provincial elections on November 26 and December 7, 2017. This means the general elections must be held by November-December this year. Similarly, the same year, the country held its first local elections in 20 years in three phases—May 14, June 28 and September 18.
The Election Commission argues that since the local elections (first phase) were held on May 14, 2017, there should be a new set of elected representatives (mayor/chair, deputy mayor/deputy chair, ward chairs, two women ward members and two other ward members in each local unit) by May 29, 2022.
On Saturday, the ruling alliance agreed on holding the local elections by mid-June.
Here’s all you need to know about the constitutional provisions and laws on local elections:
What does Article 225, which Dahal has been citing, say?
The term of a village assembly and of a municipal assembly shall be of five years from the date of election. Another village assembly and municipal assembly shall be elected no later than six months of the expiration of such a term.
What are village and municipal assemblies?
Articles 222 and 223 provision village and municipal assemblies.
A village assembly consists of the chairperson and vice-chairperson of the village executive, ward chairpersons, and four members elected from each ward and members of the village executive elected from Dalit and minority communities. Similarly, a municipal assembly consists of the mayor and deputy mayor of the municipal executive, ward chairpersons, and four members elected from each ward and members of the municipal executive elected from Dalit or minority communities.
What are Articles 215 and 216?
Article 215 talks about village executives and Article 216 about municipal executives. According to Radheshyam Adhikari, a Nepali Congress member in the National Assembly who is completing his term on March 4, constitutional provisions should be seen in isolation.“Article 225 is about the terms of village and municipal assemblies,” said Adhikari, also an advocate. “To understand the spirit of Article 225, we need to understand Articles 215 and 216.”
Articles 215 (6) talks about the terms of the office of the chairperson, vice-chairperson, ward chairperson and members who form the village executive and municipal executive, and Article 216 (6) talks about the office of the mayor, deputy mayor, ward chairperson and member who form the municipal executive. Their terms have been set for five years from the date of being elected.
The Post spoke to two former Election Commission officials who were involved in making laws on the elections. They offered differing views.
“The terms of village and municipal assemblies are different from those of elected representatives and executives [village and municipal],” said one official. Village and municipal assemblies are formed by the elected representatives.
After local elections were held in 2017, village assemblies and municipal assemblies were formed on different dates.
“After new elections take place and new representatives are elected, previously elected representatives continue to function as transitional administration until newly elected representatives form new assemblies,” said the former official. “The previously elected representatives can run assemblies for a maximum of six months after their terms expire. Newly elected representatives must form the assemblies within six months after being elected.”
But another former official who also wanted to remain anonymous said that the terms of the previous village and municipal assemblies come to an end automatically.
“When the tenure of a village or municipal assembly expires, how can the outgoing representatives continue as members of the assembly?” asked the former official.
If the tenure of the existing assembly continues even after the tenure of its members expire, there will be no political vacuum even if elections are held within six months after the expiration of the term, according to the official.
“But if assemblies also cease to exist with expiry of the term of their members, there will be a vacuum,” the official told the Post.
Where does the confusion arise from?
Article 225 of the constitution allows holding of elections of village assembly and municipal assembly six months after the expiry of these assemblies’ terms.
But Section 3 of the Local Level Elections Act-2017 states that the election of local body representatives (who are the members of the village and municipal assemblies) should be held at least two months before the expiry of the assemblies’ terms.
The confusion is: what would the failure to hold elections for new local body representatives two months before the expiry of assemblies’ terms mean?
What does the Election Commission say?
Pointing to the provision of the Local Level Election Act-2017, the Election Commission, on January 14, proposed holding local elections on April 27 if they are held in one go and April 27 and May 5 if they are to be held in two phases.
As per the commission, the tenure of the elected local representatives would expire on May 19. The commission said it would need about 100-120 days for election preparations.
What do experts say?
Former chief election commissioner Neil Kantha Uprety said the provision of Local Level Election Act appears to be contradictory to the constitutional provision.
“It would be better if the Local Level Election Act did not set any specific deadline for elections after the constitution gave leeway to hold elections within six months after the expiry of the terms of the assemblies,” he said.
Referring to Article 225 of the constitution, senior advocate Chandra Kanta Gyawali, who is also a constitutional expert, said the local level polls could be held within December 15 as the members elected by the first phase of polls had taken oath on May 19.
But a former official of the commission said that the constitution does not bar holding elections before the expiry of the tenures of the members of local assemblies.
“The law was introduced to prevent a vacuum at the local level,” he said. “In the past, local elections were postponed on various pretexts.”
A former commission official said once local elections are held before the tenure of existing representatives ends, it allows the newly elected representatives to form village or municipal assemblies on time, preferably before the terms of the existing elected bodies expire.
“In my view, there is no contradiction between the constitutional provision and the local elections law,” the official said. “If anyone finds a contradiction, it should be tested by the Supreme Court.”