The Election Commission's code of conduct, published in the Nepal Gazette on Thursday, making it mandatory that local representatives must resign before filing nominations, if they wish to contest, has attracted controversy, with the CPN-UML in particular taking umbrage at it.

Some political leaders and local representatives have objected to the provision, arguing that it would create a vacuum in the local governments and affect service delivery.

Local elections have been declared for May 13 and the Election Commission on Friday set the nomination filing dates for April 24 and 25. If the elected representatives wish to contest again, they must resign before filing nominations. As per the laws, their terms end on May 19.

The Election Commission’s move is aimed at ensuring fair polls, as it believes those holding office could influence the elections.

Bishnu Rimal, deputy general secretary of the UML, on Friday wrote on Twitter that “the prime minister does need to vacate his post to contest elections. Why should the “prime minister” of local federal units—or chairpersons or mayors—vacate their posts, affecting service delivery?”

“It would be better to think about measures on how elected representatives could be prevented from abusing their power. How appropriate is it to stop the work [of local governments] in the name of [preventing such abuse of power]?” Rimal wrote.

Local representatives have also taken exception to the provision.

Bhim Prasad Dhungana, mayor of Nilkantha Municipality, Dhading, who is also the general secretary of Municipal Association of Nepal, said that a delegation of the association had urged the commission two weeks ago not to bring such a provision as it would affect service delivery.

“For certain services, signatures of the chief of the municipality are a must. For example, people with chronic health issues can get government services based on the recommendation of the local government chief,” he said.

Nepal is holding local elections for the second time after the promulgation of the constitution. Ambiguities in laws and constitutional provisions had created much confusion before the poll date was announced.

Debates had raged over the terms of the representatives elected by the 2017 vote. Since last elections were held in three phases, those elected from second and third phases had argued that holding polls on May 13 would deprive them of their right to complete their full five-year term.

The poll date of May 13 was fixed citing Section 3 of the Local Level Elections Act-2017, which says the election of local body representatives (members of the village and municipal assemblies) should be held at least two months before the expiry of the assemblies’ terms.

The commission had argued that the provision was made to ensure that there would be no political vacuum at the local level. The code of conduct, however, contradicts the commission’s own argument.

Going by the commission’s code of conduct, asking local representatives to resign could create a vacuum in those local units from where the representatives wish to contest polls.

Officials at the commission insisted that the provision was necessary to ensure fair elections.

Election Commissioner Ram Prasad Bhandari said the provision was made to ensure that elected representatives do not make any effort to win elections by misusing public resources.

“For example, if a representative senses defeat, he or she may try to implement long-delayed projects to influence elections,” he said.

On UML leader Rimal’s comment as to why the prime minister can contest elections without resigning and chiefs of local governments, who he said are like prime ministers of the local unit, cannot, commission officials said the provision was in line with the current constitutional and legal provisions.

Guru Prasad Wagle, deputy attorney general at the commission, argues that the constitution does not consider the political position to be filled by election or nomination as the ‘office of profit’ in the case of federal and provincial lawmakers.

“No such provision has been made in the case of elected local officials,” he said. “We have made the provision as per the Local Level Elections Act-2017.”

As per Section 13 (D) of the Local Level Elections Act-2017, anybody who gets remuneration from local governments or the entities under its control or ownership or entities that receive grants from local governments is unqualified to contest elections.

Though Articles 222 (6) and 223 (6) of the constitution define qualification of the candidate for the office of the member of the village assembly and municipal assembly, respectively, they do not state whether the position of local elected representatives is “office of profit”.

Articles 87 (1E) and 178 (1F) of the constitution say anyone not holding any “office of profit” is eligible to become a member of the federal parliament or provincial assemblies.

“Office of profit means any position, other than a political position, which is to be filled by election or nomination, for which a remuneration or economic benefit is paid out of a government fund,” says the constitution.

The House of Representatives is practically dissolved with the announcement of elections to the lower house to ensure that incumbent members do not participate in the election wielding the power of lawmakers. There is no provision in the constitution about dissolving the local assemblies.

Election officials say the code of conduct has been brought with the sole intention to ensure the level playing field for all the contestants and that it would be unfair to portray it in negative light.

“The commission’s intention may be right, as it aims to stop misuse of resources by the people in power. But since many representatives might be running for the second term, their mass resignation could affect service delivery,” said Bhoj Raj Pokharel, a former chief election commissioner.

“The spirit of our constitution is there should be a continuum of elected representatives at the local level. If all elected members resign to contest elections, questions will arise over local governments’ service delivery. Even constitutional issues could emerge.”

But commission officials believe not all elected representatives will be contesting the upcoming polls.

“As per the Local Level Operation Act-2017, those not contesting elections can run the local governments,” said Commissioner Bhandari.

Section 16 (4A) of the Local Level Operation Act says chairperson or mayor can hand over their responsibility to their deputies and if the deputies also remain absent, to any other officer bearer of the local government, in the case they have to remain absent for more than seven days.

Section 18 of the Act says local executives can delegate specific authority to the chief, deputy chief, ward member or any committee or even chief administrative officer.

Bipin Adhikari, former dean of the Kathmandu University School of Law, said the elected representatives who don’t contest the elections could run the local governments until new ones assume office.

“It won’t make any big difference even if elected representatives contest elections without resigning if the election body is strong enough to stop potential misuse of power by them,” said Adhikari. “But it’s better to have some clear legal provisions to avoid such confusion.”