Members of the National Assembly, Provincial Assembly, Municipal Assembly or Village Assembly will automatically be relieved of their duties if they nominate candidates for the upcoming House of Representatives elections. This is stipulated in Section 39 of the Election Code of Conduct 2082, approved by the Election Commission on Saturday.

There is a legal provision to hold by-elections in the area if the term of office in the Provincial Assembly is more than 6 months and in the local level more than one year.

‘Registration of nomination papers also refers to those registered in the closed list of candidates for the proportional election system’, the code of conduct states. In some political parties, the lower structure has recommended that the names of Provincial Assembly members and local level office bearers be placed on the proportional closed list. The Commission has made it clear that if their names are included in the closed list, they will automatically be removed from office. 

There is currently talk that Kathmandu Metropolitan City Mayor Balendra (Balen) Shah and Dharan Sub-metropolitan City Mayor Hark Sampang will enter parliamentary politics. If they file their candidacies in the House of Representatives elections through proportional or direct means, the positions will be vacant. The last local level election was held on 30 Baisakh 2079 BS. The 5-year term of the members and office bearers currently in the local level will end on 29 Baisakh 2084 BS. Accordingly, the term of elected members and office bearers of the local level still seems to be 1 year and 4 and a half months. 

In such a situation, if they are relieved of their duties, a by-election will have to be held as per Section 3 (2) of the Local Level Election Act. ‘If the office of the District Coordination Committee Chief, Deputy Chief, Rural Municipality Chairman, Vice-Chairman and Ward Chairman and the Municipality Chief, Deputy Chief and Ward Chairman falls vacant for any reason before the expiry of their term, such vacant office shall be filled through by-election on a date fixed by the government in consultation with the Election Commission for the remaining term,’ the section states.

Acting Chief Election Commissioner Ram Prasad Bhandari says that there is no provision for by-elections in cases where the term of office is less than one year. He informed that the law has given the government the right to fix the date of local level by-elections. The post of Mayor has been vacant in Lumbini Cultural Municipality for the past 4 months due to the government not announcing the by-election. The post of Mayor fell vacant after the death of Mayor Sajruddin Musalman (Khan), who was elected by the Nepali Congress on 14 Bhadra.

‘The commission may give advice, but the decision-making process falls within the purview of the government, and this has also become a political issue,’ said an official of the commission. ‘If we look at the intention of the law, if a post is vacant now, by-elections should be held at the local level from next Baisakhi. Even after that, there is still one year of tenure left.’

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 process through which the seat was filled. The law has given the Election Commission the right to set the date for by-elections to 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.