Holding local level elections on May 18 may not end legal complicationsRepresentatives elected in the second and third phases of the local level polls conducted in 2017 can move court asserting their right to serve for full five years.
On Tuesday, the government agreed to the recommendation of the Election Commission to hold the local level polls on May 18, a day before the term of those elected through the first phase of the local polls held in 2017 expires.
Some legal experts and the Election Commission have claimed that the existing polls-related laws need not be amended if the local polls are held before the local representatives' terms expire on May 19. Prime Minister Sher Bahadur Deuba also seems to have been convinced by the argument, according to some Nepali Congress leaders.
However, there are other legal experts and local level authorities besides the leaders of the coalition partners, who say that legal complications would still remain even if the local polls are held on May 18 and stress the need for amending either the polls-related laws or both laws and the constitutional provisions.
“Actually, to avoid complications, it would be better if the government could hold three phases of polls like it did earlier,” said Ashok Byanju, president of the Municipal Association of Nepal and mayor of Dhulikhel Municipality. “But if the elections are held in a single phase on May 18, the elected people’s representatives must wait until their predecessors complete their five years terms as stipulated by the constitution.”
In 2017, local level polls were held in three phases– on May 14 in Bagmati, Gandaki and Karnali provinces, on June 28 in Province 1, Lumbini and Sudur Paschim provinces, and on September 18 in the Madhes province.
Legal experts have disputed the Elections Commission’s claims and said holding polls on May 18 will not end all legal complications as that can create a dispute between the newly-elected local representatives and the existing ones who were elected through the second and third phases of the local polls as the latter could challenge the government’s decision in the court demanding that they must be allowed to complete their five years term stipulated by Article 215(6) and 216(6) of the constitution.
“Even the elections held on May 18 will leave the local levels vacant for a few days as the results won’t come on the very next day when their terms expire,” said Chandra Kanta Gyawali, a senior advocate who is also a constitutional expert. “I don’t know how the Election Commission has been saying that the laws do not need amendment if the polls are held before May 19.”
Even if the local polls are held on May 18 there will be a confusion among the newly-elected representatives and those in positions with regard to their terms.
“I think the problem can be solved if the local elections are held in three phases just like in 2017,” said Gyawali. “But still the confusion created by the contradictory provisions in the laws and Article 225 of the constitution must be settled.”
Leaders of the ruling coalition parties have also been saying that Section 3 of the Local Level Election Act 2017 which states that the polls to elect the members shall be held two months before the terms of the assemblies of the rural municipalities and municipalities expire, contradicts Article 225 of the constitution.
The article of the constitution says the term of a village assembly and of a municipal assembly shall be five years from the date of election and another village assembly and municipal assembly shall be elected no later than six months of the expiration of such a term.
“I think the Election Commission is messing things up,” said Narayan Kaji Shrestha, a senior leader of the Communist Party of Nepal (Maoist Centre). “We still believe that there is a contradiction between the laws and the constitution. Therefore, the meeting of the coalition had decided to amend those laws.”
Leaders of the major parties in the ruling coalition – CPN (Maoist Centre) and CPN (Unified Socialist) – have been saying that the laws contradicting the constitution must be amended even after they on January 29 agreed to hold the local polls by mid-June.
Chairman of the National Association of Rural Municipalities Hom Narayan Shrestha also said there are legal and constitutional confusions about holding the local polls in one phase but they are keeping quiet now to ensure that the polls are announced first.
“There still exist legal problems even when the local polls are held on May 18,” Shrestha told the Post. “We are not speaking now because we don’t want to ruin the election environment.”
According to Shrestha there could be a serious conflict between the newly-elected local representatives and those elected in the second and third phases of elections in the past who have yet to complete their five year terms.
“You know our Nepali habit. We cannot wait to occupy the positions once we are elected while those in position might not work to their full potential,” said Shrestha. “Those elected in the second and third phases last time will even lose the opportunity to present the budget for one fiscal year. So this confusion must end.”
Shrestha said the association he heads will raise this question once the government announces the date for local polls.
Another constitutional expert Bipin Adhikari, however, said the government plans to hold the local polls on May 18 as per the laws was a positive development and that won’t invite any constitutional crisis, but some legal complications could arise as those elected in the second and third phases of the local polls could move court.
“There could be a vacuum in local bodies for around a week after May 19 even if the polls are held on May 18 as it takes around a week for the counting of the votes to conclude,” said Adhikari, the professor and former dean at the Kathmandu University’s School of Law. “Civil servants could run the local units until the newly elected representatives take charge but no political force could take unwanted advantage out of it and therefore there will be no constitutional crisis.”
Adhikari, however, said the redundant provision of Article 225 of the constitution would create problems unless its second part that says ‘the polls for new village assembly and municipal assembly shall be elected no later than six months of the expiration of such a term’ must be removed.
The government was expected to take some decision regarding the announcement of the local level polls through a regular cabinet meeting on Thursday. But Prime Minister Deuba did not call such a meeting Thursday, according to Minister for Education, Science and Technology Devendra Poudel.