There is a legal provision to hold by-elections if there is more than six months of term remaining in the provincial assembly and more than one year at the local level.
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If a person who is currently a member of the National Assembly, Provincial Assembly, Municipal Assembly or Village Assembly is a candidate in the House of Representatives election, he or she will automatically be considered vacated from such position upon registration of the nomination.
The Election Commission approved the issue in the Election Code of Conduct 2082 on Saturday. Such a provision has been made in Section 39 of the Code of Conduct. Acting Chief Election Commissioner Ram Prasad Bhandari said that the positions of persons holding elected positions in the Federal Parliament, Provincial Assembly or local levels will automatically be vacated upon nomination registration. He mentioned that the Commission has clarified this in the Code of Conduct.
Registration of nominations in the Code of Conduct refers to the registration of candidates in the closed list for the proportional election system. In some political parties, the names of provincial assembly members and local level office bearers have been recommended by the lower structure to be kept in the proportional closed list. The Commission has clarified that if their names are included in the closed list, they will automatically be vacated from their current positions.
The House of Representatives Election Act states that a person holding a position of profit and receiving remuneration from the Government of Nepal, provincial government or local level cannot be a candidate.
Kathmandu Metropolitan City Mayor Balen Sah and Dharan Sub-metropolitan City Chief Hark Sampang, Dhangadhi Sub-metropolitan City Mayor Gopi Hamal are also in talks to enter parliamentary politics. However, it has not been decided whether they will be candidates in the House of Representatives elections. In the event that they file their candidatures through proportional or direct means, the post of mayor of those places will be vacant. By-elections will be held in the places that become vacant in the Provincial Assembly or local level.
The Local Level Election Act states that if a post falls vacant for any reason before the end of the term, the vacant post will be filled through by-elections for the remaining term. However, by-elections will not be held if the term of office is less than one year. Section 3(2) of the Act contains provisions regarding by-elections. It says – 'If the office of the head of the district coordination committee, deputy head, rural municipality chair, vice-chair and ward chair and the head of the municipality, deputy head and ward chair falls vacant for any reason before the end of their term, such vacant office shall be filled through by-election on a date fixed by the Government of Nepal in consultation with the Election Commission for the remaining term.'
Acting Chief Election Commissioner Bhandari says that by-elections will be held in cases where the term of office is more than one year. However, since the law gives the government the right to fix the date of the election, the by-election will be held only on the date desired by the government. The local level election was held on 30 Baisakh 2079. The current 5-year term of the members and office bearers at the local level will end on 29 Baisakh 2084. Accordingly, the term of the elected members and office bearers of the local level seems to be one year and 4 and a half months left. An official of the commission said that since the government has the right to fix the date of the election, the issue of holding an election or not will be linked to the government. The date of the by-election has not been announced even after four months since the post of Mayor Sajruddin Musalman (Khan), who was elected by the Congress, passed away in Lumbani Cultural Municipality due to a heart attack. He died on 14 Bhadra.
‘The commission will provide advice, but the issue of decision-making falls within the purview of the government, and this has also become a political issue,’ the official said. ‘If we look at the intention of the law, if the post is vacant now, by-elections should be held at the local level from next Baisakhi. Even after that, there is one year left in the term.’ In the case of the Provincial Assembly, if a member’s seat falls vacant with more than six months remaining, there is a constitutional provision that the seat will be filled through the same electoral system as was used to fill it. The law has given the Election Commission the right to set the date for the by-elections of the House of Representatives and the Provincial Assembly. However, in the case of local level by-elections, the government has the right to set the date.
Earlier, by-elections were held on 16 Mangsir 2081 for 39 posts that were vacant at the local level due to various reasons. The government had fixed the date of the by-election based on the advice given by the Commission along with the date for holding the by-election. By-elections were held for 39 posts including 2 District Coordination Committee Chiefs, 2 Rural Municipality Chairs, 3 Vice Chairs and 9 Ward Chairs and 1 Municipal Mayor, 1 Deputy Mayor and 21 Municipal Ward Chairs.
