KATHMANDU, FEBRUARY 15
The Supreme Court has stayed the Election Commission's decision to impose fine on Kathmandu Metropolitan City Mayor Balendra (Balen) Shah. The EC had imposed a fine of Rs 750,000 on Balen for not submitting his election expenditure within the stipulated deadline of 30 days.
A five-member constitutional bench led by Acting Chief Justice Hari Krishna Karki also issued show cause notice to defendants, including the Election Commission to furnish their written replies within seven days.
Balen Sah is among 123,624 candidates who were imposed fine by the EC for not submitting details of their election expenses within the stipulated deadline. Balen has demanded that sections 26 (3) and 26 (5) of the Election Commission Act that give power to the EC to take punitive action against candidates be declared null and void as they contradict the constitution.
Balen has stated in his writ petition that he was declared elected on May 26 and was given winner's certificate on May 30. He has claimed that he submitted election expenditure details to the Election Commission on June 26 and that was within the prescribed period of 30 days.
Election expenditure details should be submitted within 30 days from the date of announcement of election results, as there was a public holiday on the 30th day, he submitted the details the next day, Balen has argued.
The EC had imposed a fine of Rs 750,000 on Balen and other mayoral candidates who failed to submit election expenditure details within the stipulated period.
Balen stated that although the EC allowed candidates for local level chief to spend up to Rs 750,000 he spent only Rs 394,489.
He argued in his petition that the EC issued a blanket show cause notice to 123,624 candidates, including 114,958 who did not submit their election expenditure at all and 8,666 candidates who had submitted their election expenditure after 30 days.
Balen argued that sections 26 (1), 26 (2), and 26 (3) of the Election Commission Act had different provisions for those who had submitted their election expenditure and those who had not submitted their expenditure details.
The EC had said that it would bar candidates who failed to submit fines within six months from contesting elections for next six years. Balen argued that the EC's blanket punitive action against candidates under section 26 (4) of the act was erroneous. He said if any candidate was prosecuted under Section 26 (3), they would be removed from their posts and such a punitive action would deprive them of fair and impartial hearing, including a chance to be heard -- elements of fundamental rights. Balen argued that the EC treated all categories of candidates -- those who had not submitted election expenditure details and those who had submitted election expenditure details -- equally, which was erroneous.
Balen said the EC unfairly barred some candidates from contesting parliamentary elections and humiliated candidates by publishing their names on its websites.
Balen argued that the EC disqualified candidates going beyond its brief envisaged by the constitution.
The Election Commission's decision had unfairly infringed upon sovereign voters' right to cast their votes and elect their representatives, he said.
Balen sought to repeal sections 26 (3) and 26 (5) of the Election Commission Act arguing that these provisions contradicted constitutional provisions.
He stated that Section 26 (5) of the Election Commission Act did not give a chance to the affected person to be heard and the chance to be heard proposed under Section 26 (4) was not enough.
He argued that sections 26 (3) and 26 (5) contradict articles 18 (1), 20 (8), 20 (9), 126 (1), and 246 (1) of the constitution and should be declared null and void.
Claiming the case to be a public interest litigation, Balen had sought an interim order to stop implementation of the EC decision against 123,624 candidates until the end of this case.
An EC officer told THT that Balen had submitted his election expenditure details on the 31st or 32nd day of the announcement of elections.
Assistant Spokesperson for EC Surya Prasad Aryal told THT that the EC would abide by the court order. He also said that the EC office bearers would discuss the court order after the poll panel got the order from the court.
According to Aryal, almost 500 candidates who had contested local polls and were candidates under proportional representation lists during the last parliamentary and provincial elections were removed from PR lists as they had not paid fine for not submitting their election expenditure in time. He said out of 123,624 candidates who were imposed fine for not submitting election expenses details within 30 days, 136 candidates had paid Rs 40 million in fine to the EC.
A version of this article appears in the print on February 15, 2023, of The Himalayan Times.
