Court stays rule of resignation by local representatives seeking re-electionElection code says officials seeking re-election must resign before nomination for upcoming elections.
The Supreme Court has issued an interlocutory interim order to the Election Commission not to implement a rule that requires local government officials seeking re-election to resign their posts before filing candidacy.
A single bench of Justice Bam Kumar Shrestha issued the order on Tuesday after hearing the writ petition registered on Sunday by Nima Gyaljen Sherpa, chairman of Helambu Rural Municipality of Sindhupalchowk.
“The Supreme Court has issued an interlocutory interim order to the Election Commission not to implement the provision [in the Election Code of Conduct] that restricts local representatives from filing candidacy without resignation until the court’s further decision,” said Bimal Poudel, spokesperson of the Supreme Court.
The Supreme Court has also invited both the plaintiff and the defendant on March 27 for discussions on the issue.
The Election Commission has set the nomination date for the candidates of local representatives for April 24-25 for the May 13 polls.
The new rule in the Election Code of Conduct issued on March 17 had courted controversy with the main opposition CPN-UML and many local representatives opposing it.
Sherpa moved the court with the petition on Sunday demanding a court order to quash the new rule.
In his petition Sherpa, the chairperson of the Helambu Rural Municipality, had argued that the law says the resigning chair should submit his/her resignation to the vice-chair and vice versa, so this provision creates a legal problem because whom will one submit his/her resignation if the other has already resigned. He also pointed out that the code of conduct discriminates against local representatives because representatives in the provincial and federal governments are not required to resign for fighting elections.
Justice Shrestha ordered the election body not to implement Clause 36 of the Election Code of Conduct 2022.
During the regular press briefing on Monday, Commission’s spokesperson Shaligram Sharma Paudel had reiterated the commission’s commitment to implementing the Election Code of Conduct. Paudel had also said the court would invalidate the candidacy of those who were still holding a position of profit if someone filed a case against such candidates.
“If anyone, quoting this provision, lodges a writ petition against a candidate who has filed candidacy without resigning his post, then the court can invalidate such candidacy,” said Paudel.
He was referring to the Schedule 1 of the Local Level Election Regulations 2017, which states that a candidate while filing candidacy must declare that s/he is not holding any office of profit whose remuneration or financial benefits are funded by the state.
The main opposition party CPN-UML and the local representatives have been opposing the election body’s rule which was published in the Nepal Gazette last Thursday saying that it would be unconstitutional for anyone to resign before the completion of their five-year terms.
On Monday, CPN-UML chair KP Sharma Oli also lashed out at the Election Commission for ‘targeting’ UML because the party had won the largest number of local units in the 2017 local elections.
Local level representatives have welcomed the decision of the Supreme Court saying that the move of the Election Commission was against the spirit of democratic practices.
“My concern is that the Election Commission’s decision would create a vacuum in the local levels which will seriously affect service delivery,” said Kabita Dhungana, deputy mayor of Belkotgadhi Municipality, Nuwakot. “If we resign before our terms expire, the public will be deprived of all the services including crucial legal services.”
She said there could be several ways to prevent misuse of state resources by local representatives during the elections, but forcing them to resign should not be one of them.
“But this issue must not be politicized like some parties are trying to do,” she said.
Also, the chairperson of the Municipal Association of Nepal, Ashok Byanju, said the association has taken the court order positively and that the court should issue its final verdict soon.
“When prime ministers, ministers and chief ministers contest elections without resigning, why should the local representatives seeking re-election be relieved of their responsibilities?” Byanju said.
However, experts have said a system should be set this time because during previous polls there were no elected representatives and therefore what the election body has tried to set was right.
“We should set an example now and the polls body has said the same rule was there in place earlier as well,” said Khimlal Devkota, an expert on fiscal federalism and a local government analyst. “I don’t think a gap of some two weeks will affect service delivery as government employees can do the job until new representatives take over.”
Devkota, who is currently a member of the National Assembly, said there must be a level playing field for all candidates of local elections. “There are reports that local representatives have started spending on development projects to woo voters,” Devkota said. “There is no mechanism to check such activities. The election body’s code of conduct could be useful to check them to some extent.”