Crime-accused can contest polls but they may be barred from performing dutyExperts say flawed laws can create a situation where the electorate may not have their representative in the House.
Tika R Pradhan
Resham Chaudhary won 2017 parliamentary elections with a wide margin from Kailali-1. His victory drew many people’s attention because he had carried out his entire campaign from hiding.
He was accused of masterminding the Tikapur violence in August 2015 in which eight police officers and a child were killed.
The law didn’t bar him from contesting the elections.
But after he won, he could not attend a single meeting of the House of Representatives because he was suspended due to his criminal charges.
Chaudhary turned himself in to police in February 2018. But on March 7, 2019, Resham was convicted by Kailali District Court. Later he was brought to Kathmandu. Since then he has been serving a sentence at Dillibazar prison.
As the term of the lower house will expire in a few months, he is completing the five-year tenure as a suspended member of the House of Representatives without attending a single parliamentary meeting.
Of the 165 electoral constituencies, Kailali-1 has been without its representative for a full five years. In parliamentary democracy, people participate in governance through their representatives. However, the people who elected Chaudhary were deprived of that opportunity, thanks to flawed laws which allow one facing criminal charges to contest the elections but bar them from attending the House.
As political parties are in the final stage of recommending the names for November 20 polls, it seems multiple constituencies could face the fate of Kailali-1, leaving them without their representatives in Parliament.
Take Mohammad Aftab Alam for example. He faces charges of murdering at least 23 persons in Rautahat 14 years ago. Despite being accused, the Nepali Congress fielded him in 2017 elections from Rautahat-2. He won. He was arrested on October 13, 2019. He is currently in judicial custody.
He has been recommended for the position again as a sole contender from the party for the November 20 polls.
As per the law, he is allowed to contest the election. But if he wins, he can’t become a lawmaker because of the parliamentary regulations.
Clause 244(3) of the House of Representatives Regulation 2017 states that if the Speaker informs the House about the criminal case—of three years and more or criminal case indicating moral turpitude—filed against any lawmaker and is under judicial custody, such person cannot enjoy the rights or privilege as lawmakers and their salary and benefits will be suspended.
Even if Alam gets elected, he won’t get to attend the House leaving no one to represent the people from his constituency like those from
Kailali-1 who did not have any representative in the House for the five full years.
Similarly, on Sunday, the regional committee of the Congress decided to field Bijaya Kumar Gachhadar from Sunsari-3.
Experts attribute such a situation to Nepal’s flawed legal provisions.
While Gachhadar is not barred from contesting the elections, if he wins, he won’t be able to perform his duty as a lawmaker because a corruption accused gets automatically suspended as long as he doesn’t get clearance from the court, as per the Section 33 of Prevention of Corruption Act 2002.
Gachhadar was suspended as a lawmaker in February 2020 after the Commission for Investigation of Abuse of Authority filed a corruption case against him at the Special Court. The case is sub judice.
Section 13 (i) of the House of Representatives Act 2017 states that the individuals are ineligible to contest the polls only when they are in prison.
Yagya Bhattarai, chief of the legal department of the Election Commission, said the provision was not applicable for those who are not convicted. Therefore, Alam, who is currently in judicial custody, can contest the polls. The same applies to Gachhadar who is a sole candidate from Sunsari-3 for the Nepali Congress.
“The House of Representatives Act says only those who have faced jail terms are barred from contesting the polls. Alam is in judicial custody so there is no legal bar for him to contest the elections. Similarly, Gachhadar, whose case is still pending, too can contest the polls,” Bhattarai told the Post. “However, they cannot attend parliamentary meetings. They have to get clean chit to participate in the parliamentary proceedings.”
Legal experts have divided opinions.
“In case of those who have corruption cases, they cannot take part in the House meetings unless they get a clean chit from the court but those accused in criminal charges who are out of jail can join the meetings,” said senior advocate Radheshyam Adhikari, a former member of National Assembly. “But I don’t think there is any law that bars the accused from contesting the polls.”
Adhikari said stopping the accused from contesting could be problematic as that could curtail their fundamental rights.
Legal experts do agree that a situation can arise where the concerned constituency may not have representatives if an accused wins the elections and is then ultimately barred from discharging duty as lawmakers in the event of their conviction by the court.
“So the concerned political parties could think of not fielding such leaders who are facing criminal or corruption charges,” Adhikari told the Post.
He said the best way to stop the situation where the people from certain constituencies might be left without their representatives is to make a mature decision in candidate selections—by not picking those with a tainted image.
However, there is also a view among the experts that one cannot be denied their constitutional right to contest the elections just because they are accused.
Article 87 (1) of the Constitution of Nepal 2015 clearly mentions the qualification that a member should hold in the federal parliament. Article 178 (1) also stresses that a person guilty of a crime of moral turpitude is prohibited from serving in the Provincial Assembly.
Also, Article 20 (5) of the constitution says that no person accused of any offence shall be assumed to be an offender until proven guilty. In this case people charged with guilt have a right to contest the election.
In addition, Articles 14 and 15 of the International Covenant on Civil and Political Rights (ICCPR) also state that the people who are yet to be convicted should be considered innocent. Therefore, criminal charges alone won’t be enough to restrict any citizen from participating in the election.
“You cannot stop anyone from contesting the polls unless the person is found guilty of a crime,” said senior advocate Chandra Kanta Gyawali, a constitutional expert. “It’s also an international practice as it is guided by the principle of innocence.”
Election officials say that in the draft bill of umbrella law for the elections, they have proposed that one accused of corruption charges cannot contest the elections. “Let’s see whether the provision remains in the law or gets removed by the time the umbrella Act gets endorsed,” said Bhattarai, the legal department chief at the Election Commission.
(Binod Ghimire contributed reporting.)