Kathmandu, November 4

Lawyers say the term ‘priority order of candidates as far as possible’ used in the House of Representatives Members Election Act 2017 gives party leaders power  to choose their favoured candidates from the proportional representation lists.

Although Rule 41 (3) of HRMEA 2017 says a party, while selecting PR candidates cluster-wise, cannot randomly select from the clusters, Section 60 of HRMEA, states that parties will have to submit names of their PR candidates in the order of priority set in the PR list ‘as far as possible.’

Senior Advocate Surendra Kumar Mahto and Advocate Dipendra Jha said the parties could randomly select their PR candidates because of the phrase ‘as far as possible.’ “HRMEA, does not oblige parties to state reasons for not following the priority order set in the PR list. Hence, the parties can misuse the provision and select candidates saying those chosen are more important than others,” he argued.

Senior advocate Radhe Shyam Adhikari, however, said the phrase ‘as far as possible’ did not allow parties to lower the percentage of representation of clusters mentioned in the constitution.

“This does not mean candidate number one can be dropped and the 109th  candidate selected,” he said, adding that if a party changed the order of priority, the central committee of the party concerned would have to furnish valid reasons, or else that could be challenged in court.

Former chief election commissioner Neel Kantha Uprety said PR candidates should be selected as per the priority order in the PR list. “Giving discretionary power to parties to change the order of priority is political corruption.”

Mahto said, “When candidates are selected randomly, all candidates campaign thinking they have equal chance of being elected, but when selection is on the basis of priority order, candidates whose names are listed in the lower columns might not actively campaign for the party.” Mahto said it would be best to select PR candidates on the basis of highest PR vote winning constituencies. “This means the party selects PR candidates on the basis of PR votes garnered by the parties in the constituencies.”

Senior Advocate Chandra Kant Gyawali said although the constitution ensured proportional representation of women, Dalits, indigenous nationalities, Khas-Arya, Madhesi, Tharu, Muslims backward regions and differently-abled people, the HRMEA removed two clusters — backward region and differently-abled people.

“HRMEA contradicts the constitution and could be declared ultra vires by the court. The EC listed differently-abled in the PR clusters after the Supreme Court issued an order, but backward region has been left out,” he added.

Gyawali said the phrase ‘as far as possible’ could be misused by the party to reduce the percentage of PR clusters, which could defeat the purpose of inclusion enshrined in the constitution.