Moves SC to ensure local reps who want to contest polls quit their posts


The Election Commission today filed a petition at the Supreme Court seeking to vacate a shortterm stay order against Section 36 of the election code of conduct that requires local representatives who want to contest in the May 13 civic polls to resign before filing nomination papers.

A single bench of Justice Bam Kumar Shrestha had issued the short-term stay order on March 22 in response to a writ petition filed by Chairperson of Helambu Rural Municipality Nima Gylazen Sherpa. The court was to hear both sides on March 27 but the hearing got deferred.

According to Spokesperson for the Office of the Attorney General Sanjeeb Raj Regmi, the apex court attached the EC petition with the Sherpa case as it was related to it.

The SC will hear the EC petition on Sunday when the court, after hearing arguments from both sides, will decide whether or not the stay order issued against Section 36 of poll code should continue. If the court decides to continue the stay or cannot hold hearing in the case till the day of filing nominations, the order issued by the SC would remain in force.

Those vying for civic posts have to file their papers on April 24 and 25.

Sherpa told THT that he had argued that the code requiring local representatives to resign before filing nomination papers was unfair and unlawful. He has stated in his petition that the Local Election Act required only those representatives that drew salary from public entities to resign from their posts before filing nomination papers, but the EC code requires that even those who get only remuneration should also quit before filing nominations. "How can the EC enact code of conduct that violates the constitution and laws?" he wondered. He said the code discriminated against members of provincial and local executive.

"Ministers and prime ministers are not required to resign from their posts in order to contest election, but local representatives are required to resign before filing their nomination papers. How can this be fair?" Sherpa wondered.

The petitioner argued that if local representatives had to resign before filing nomination papers, delivery of services would be affected. "Who will issue a recommendation letter if a ward chair has to resign in order to contest elections. Gap in service delivery could ruin people's lives," Sherpa added.

He said prevailing laws required a local level chief to tender his/her resignation to his/her deputy and vice versa and if both chief and deputy chief of a local government wanted to contest elections, their resignation would be an issue.

Local representatives have also opposed the code's provision saying that if the EC brought this provision with the intention of preventing local representatives from using government resources, including government vehicles, the EC should not worry about that as there were other mechanisms, including the Commission for the Investigation of Abuse of Authority, to punish those abusing their authority.

The EC argued that the said code was meant to create a level playing field for all candidates.

A version of this article appears in the print on April 14, 2022, of The Himalayan Times