The Election Commission’s decision on Saturday to scrap the candidacy of Toshima Karki, who was contesting a federal lower house seat from Lalitpur-3 on a Rastriya Swatantra Party ticket, has triggered a public debate about the commission’s impartiality.

While the decision has led to an outrage on social media, legal experts also say the commission was wrong to scrap her candidacy.

Issuing a statement on Saturday, the commission said Karki is disqualified to be a candidate as she holds an office of benefit (Laabh ko Pad) as an elected member on the Nepal Medical Council.

As per the statement, Nepal’s constitution considers the allowances as remuneration and the House of Representatives Election Act 2017 states the candidates should not be receiving any perks from state coffers.

The Act clarifies that an office of benefit means a position where the holder receives remuneration or monetary benefits from state coffers, and it is different from a political position filled through elections or nominations.

Karki claims the commission earlier registered her candidacy because she was eligible. “I have not concealed the fact that I am a member of the Nepal Medical Council,” she told the Post. According to Karki, she had already written to the commission on September 13 asking if her council membership is an office of benefit. “The Election Commission should have clarified the matter on time, but it didn’t.”

Commission officials, however, said they did not respond to Karki’s letter as she was not a candidate when she wrote to the commission.

“The commission took action only after a complaint was lodged through the returning officer,” Yagya Bhattarai, chief of the legal department of the commission, told the Post.

Karki has questioned the electoral body’s intent after the invalidation of her candidacy. She said she has already resigned her salaried position at Patan Hospital and argued that her council membership is not an office of benefit. “The membership of the council is an elected post, and no laws describe it as an office of benefit,” she said.

The commission has taken its decision long after the expiry of the deadline for filing a complaint and they are already printing ballot papers, she added. “The action is suspicious and looks aimed at removing me from the race because I am popular,” she told the Post. “I will seek legal remedy.”

Earlier, at midnight on October 11, the Commission had scrapped the candidacy of Kamal Bhusal citing that he was holding an office of benefit. Bhusal is pursuing a master's degree in medicine at the TU Teaching Hospital on a government scholarship.

Some legal experts argue that a beneficiary of a government scholarship should not be counted as a holder of office of benefit.

Officials claim their decisions are in line with the law.

Bhattarai said the commission had confirmed before taking action that Karki holds an office of benefit. “There is a provision in section 9 of the Election Commission Act and section 15 of the House of Representatives Election Act, both of which state that anyone can file complaints against candidates even after the publication of the final list of candidates.”

Section 9(1) of the Election Commission Act states, “After the filing of nomination papers of candidates for an election, but prior to the declaration of the election result, a complaint may be made with the Commission, accompanied by clear evidence that any candidate is disqualified or has become disqualified through the returning officer concerned.”

Some legal experts claim that the commission’s decision to bar Karki from contesting was biased and the law was not rightly interpreted.

The commission cannot justify their decision, say legal experts. “It is a blatant violation of the law and constitution,” said Bhimarjun Acharya, a legal expert.

The Commission had scheduled the 10 am to 3 pm timeslot on October 10 for filing complaints against candidates and October 11 for deciding on the complaints.

“No complaints were lodged against her within the given time. And her position at the Nepal Medical Council is not an office of benefit as the position does not provide salary or allowances,” Acharya said.

Legal expert Bipin Adhikari says the term ‘office of benefit’ has been largely misinterpreted. An office of benefit means one that provides salary and allowance from the Nepal government, allows the holder to exercise power, and the person is loyal to the Nepal government, he said.

“The term’s meaning cannot be stretched. Exercise of power, status, and regular salary are the relevant indicators here,” Adhikari told the Post. “Membership of the Nepal Medical Council is not an office of benefit.”

“As Karki had submitted all her employment details to the commission while filing her candidacy and no complaint was filed against her at the commission on the scheduled date,” constitutional expert Acharya added, “it is inappropriate to take action against her now."