Constitutional and legal contradictions surface amid local election talksSome parties in the ruling coalition appear to be in bid to exploit the loopholes to delay local level polls, which have been proposed by the poll body for April-May.
A meeting of the ruling alliance on Tuesday morning agreed, in principle, to hold local elections “on time.”
But different provisions in the constitution and Local Level Elections Act have created confusion.
Leaders present at the ruling alliance meeting said they examined two contradictory provisions in the constitution and election laws on local elections, which have been proposed by the Election Commission for April- May.
They said they would rather go by what has been prescribed in the constitution rather than what is enshrined in the elections law, in an apparent attempt to push the local polls beyond September-October. At least two partners in the ruling coalition—the Communist Party of Nepal (Maoist Centre) and the CPN (Unified Socialist)—want all three tiers of election (local, provincial and federal) together.
As per the calendar, the provincial and federal elections must be held in November-December. Nepal held local elections in 2017 in three phases—on May 14, June 28 and September 18.
As per Article 215 (6) of the constitution, the terms of office of the chairperson, vice-chairperson, ward chairperson and members shall be of five years after the date of being elected. Article 225 says that the term of the village and municipal assemblies is five years from the date of elections. “Another Village Assembly and Municipal Assembly shall be elected no later than six months of the expiration of such a term,” it further states.
But Section 3 of the Local Level Elections Act-2017 states that elections at the local federal units shall be conducted two months prior to the completion of their terms. This means local body representatives must be elected by March 19, 2022.
“As the Election Commission has said it needs 120 days for preparations, if the government decides to hold the elections now, it is almost impossible to meet the March 19 deadline,” said Dev Gurung, a Maoist Centre leader. “There is a lot of confusion.
According to Section 55 of the Local Level Election Act-2017, the terms of local representatives elected in 2017 started from the seventh day of the election date.
As the first-phase local elections were held on May 14, 2017, the terms of the local representatives are deemed to have begun on May 20. Multiple experts and former election officials the Post spoke to over the last few days said the cut-off date should be May 20. Hence, new representatives must be elected by then so as to avoid a vacuum, regardless of the fact that second and third phases were held at later dates in 2017.
At least two ruling party leaders said that since there clearly are contradictions and ambiguities, they would rather prefer local polls as per the constitutional provisions.
“And, if elections should be conducted by March 19, then why did the Election Commission propose April 27 and May 5?,” asked one of the leaders.
The Election Commission has proposed April 27 if the local polls are held in one go and April 27 and May 5 if they are to be held in two phases.
The Election Commission, however, has its own take on local elections and the dates it has proposed.
Dinesh Thapaliya, chief elections commissioner, said that officials from his office met with Prime Minister Sher Bahadur Deuba in October last year and apprised him of the need to hold the local elections by March 19 as per the election related laws.
“If you ask me about the contradictions and differences in the constitution and election laws, they both were framed by political parties, not the Election Commission,” Thapaliya told the Post. “If they find contradictions and ambiguities, they can amend the provisions. The ball is in the political parties’ court.”
Political parties, however, appear to be using the ambiguities in their own interests.
Except for the main opposition CPN-UML, none of the key parties seems to be ready for local polls on the commission-proposed date(s).
The UML has even charged the ruling alliance with trying to push the local elections to a later date.
“I cannot say it directly but they [ruling parties] seem to fear election results,” Subas Nembang, a UML vice-chair, told the Post. “If they want to delay the elections with a view to defeating the UML, that is not going to happen. Anyway, the issue for us is not win or loss, it’s about the system and polls should happen on time.”
The Nepali Congress, the chief ruling party, is also in a state of confusion.
A faction led by party President and Prime Minister Sher Bahadur Deuba wants to defer the election date by some time so that the party can patch up the differences that were seen during its recent general convention.
“We have just concluded the party’s general convention and party leaders and cadres are divided. So we need some time,” said a Central Working Committee member.
The 14th general convention of the Nepali Congress reelected Deuba as party president for which Shekar Koirala, Bimalendra Nidhi and Prakash Man Singh were also vying.
In the run-off, Singh and Nidhi rallied behind Deuba.
The Koirala camp now wants local elections on the date(s) proposed by the Election Commission.
“Those who are really concerned and anxious about the local elections are two ruling parties—the Maoist Centre and the CPN (Unified Socialist),” said another senior Congress leader. “During Tuesday’s meeting and earlier as well, top leaders of the two parties had suggested holding local polls as per the constitutional provision.”
After the meeting of the ruling alliance on Tuesday, Gyanendra Bahadur Karki, who is also the Cabinet spokesperson, said that the government will conduct local elections as per the constitutional provisions and “within the timeframe given by the constitution”.
In the meeting, ruling alliance leaders had discussed three different alternatives, according to one leader.
“First is holding the elections on the time stipulated by the Election Commission. Second is making the election law compatible with the constitution. Third is amending the law and holding all three tiers of election together,” said the leader.
Ram Chandra Poudel, a senior Congress leader who is also the coordinator of the high-level political coordination committee formed by the ruling alliance, said there clearly are contradictions.
“A meeting of the coordination committee will take place again on Thursday,” said Poudel.
Some experts believe that the Election Commission made a mistake when the law was being drafted.
“It’s the Election Commission that drafts the law but it is sent to seven different government entities to study. Ultimately, Parliament enacts the law,” said Dolak Bahadur Gurung, a former chief election commissioner. “Since the constitution and election law have different propositions, it is the job of the government and the opposition parties to remove the obstacles.”
According to Gurung, the government should play a constructive role in clearing the confusion.
“The Election Commission cannot do it alone. The role of the opposition is also important,” said Gurung. “One thing is, however, clear and this is quite important—we should not let civil servants run local governments. If that happens, it will be disastrous.”
There is also confusion whether the terms and mandate of the local units can be extended.
Party sources said there are two lines of thought in the ruling alliance.
“One is to amend the law through an ordinance,” said a ruling party leader. “The Office of the Attorney General is looking into this aspect. The second is bringing the UML on board to amend the law and make it compatible with the constitution.”
Upendra Yadav, chairman of the Janata Samajbadi Party, also a ruling coalition partner, said election dates must be declared and if the law needs to be amended, it should be amended.
“The next meeting of the ruling alliance will take a decision,” Yadav told the Post. “For the future also, we have to make the constitution and law compatible. As far as our party’s view is concerned, the best time for holding the local elections is April-May.”
Gurung, the former election commissioner, however, said the Election Commission and the parties must be mindful of any possible complications.
“If we hold the elections in April-May as per the Election Commission, it goes against the letter and spirit of election related laws because the law has categorically stated that elections should take place by March 19,” said Gurung. “And this decision can be challenged in the court. The best move forward will be holding a broader discussion among the stakeholders and making the law compatible with the constitution.”