KATHMANDU, FEBRUARY 18
President Bidhya Devi Bhandari's decision to grant amnesty to all local level candidates, who were fined by the Election Commission for failing to submit details of their election expenses within the stipulated deadline of 30 days has drawn condemnations from lawyers.
The EC had imposed fines on 123,624 candidates, including Mayor of Kathmandu metropolis Balendra (Balen) Shah, who had failed to submit details of election expenditure within the deadline of 30 days.
The president's amnesty move comes two days after the constitutional bench of the Supreme Court stayed the EC decision to slap hefty fines on candidates for failing to submit poll expenses.
A press release issued by the President's Office states the president granted pardon to candidates as per the recommendation of the Cabinet meeting in accordance with Article 276 of the constitution.
Article 276 stipulates that the president may, in accordance with law, grant pardon, suspend, commute or remit any sentence passed by any court, judicial or quasi-judicial, or administrative authority or institution.
Senior Advocate Mithilesh Kumar Singh said the 'outgoing president's decision granting amnesty to more than one lakh candidates was an insult to the Supreme Court as the issue was sub judice. He said it was the first case when the president, on recommendation of the government, had waived the fines imposed on candidates. "Often the president waives or commutes convicted people's sentence in rarest of rare cases but I never heard the president waived fines on somebody,"
Singh said, "What happens if the president waives taxes and fines imposed by Nepal Electricity Authority? Singh said the government should have waited till the SC passed its verdict in the case filed by Kathmandu metropolis Mayor Balen Sah. Singh termed the president's move a stunt for cheap popularity.
Senior Advocate Chandra Kanta Gyawali also said the government's amnesty decision was wrong as the issue was sub judice in the SC. "The government's move renders the case filed by Balen Shah against the EC ineffective.
If the government takes such decision in every case defining it as a political case, then that will undermine the independence of the judiciary."
Senior Advocate Dinesh Tripathi said the president's blanket amnesty undermined the rule of law. "Candidates who want to be role model should be aware of the prevailing laws. If they cannot abide by the law, how can they become role models?" he added.
A Cabinet meeting on Thursday decided to recommend waiver of fines imposed by the EC on candidates.
Chief Election Commissioner Dinesh Kumar Thapaliya took the government's decision positively.
He said the EC could have collected was almost 25 billion rupees.
Mayoral candidates were slapped the highest amount- Rs 750,000 for not submitting details of election expenditure on time.
Thapaliya said the EC slapped fine because it wanted to enforce the prevailing laws. Pardoning of fines by the president legitimizes the ECs decisions Thapaliya said and added it also highlighted that the law should not have provisioned such big amounts as fine and thus the law was unwise.
Thapaliya said the presidential amnesty also gave the message that candidates should abide by the laws. As of today, 137 candidates have paid fine of over 40 million rupees. Thapaliya said the government's decision was not clear about those who had paid their fines. "For us, compliance with the law is important and not the fine.
The EC had barred 369 candidates from contesting parliamentary and provincial elections under the PR election system for failing to pay fines. As per section 25 (1) of the Election Commission Act, candidates are required to furnish details of their election expenses within 30 days of the final result of the election. The EC had also decided to ban candidates failing to pay their fines from contesting elections for six years.
Balen had 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 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) contradicted articles 18 (1), 20 (8), 20 (9), 126 (1), and 246 (1) of the constitution and should be declared null and void.
A version of this article appears in the print on February 19, 2023, of The Himalayan Times.
