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Madhav Prasad Paudel and others vs Office of the PM, Local development Ministry, Election Commission Nepal et. al

Judgment

Question Presented: Whether the failure to hold local elections due to the absence of the required legal framework violates the right to periodic elections during the interim constitutional period. Whether the conduct of local government affairs by non-elected government employees violates the Local Self Government Act.

Alleged Acts: Petitioners allege that the Government and the Election Commission of Nepal (ECN)’s failure to hold elections for local level representatives nine years and eight months after the end of the previous representatives’ terms violates the Interim Constitution (2007), which grants the right to periodic elections and the right of people to choose their representatives. Respondents claim that the lack of required legislation, regulations, and amendments pursuant to Article 139(3) of the Interim Constitution makes it impossible to call for the elections.

Procedural history: Five years since the passage of the Interim Constitution (2007), more than three years and seven months since the passage of the fifth amendment in Article 139 of the Interim Constitution, and two years and three months since the Supreme Court held that the local people have been deprived of their right to be governed by elected representatives and instructed the legislative parliamentary development committee to conduct interim elections of local representatives, the respondents still have not fixed a date for the elections. The petitioners submitted a writ petition claiming that the right of the people to choose their representatives has been violated, arguing that not having elected local representatives has halted many essential functions and services (including development projects) at the local level and calling for respondents to set a date for local elections as soon as possible.

Summary: Local government bodies had been without elected representatives for almost ten years. They were instead being operated by government employees. This arrangement is contrary to the spirit of Article 139(1) of the Constitution of Nepal (2007) and the Local Self-Government Act (1998), which provides that duly elected representatives should oversee the local government. The Court held that the lack of elections is unconstitutional; in addition to essential government services being affected, people have not been able to exercise their right to choose their representatives, democracy and local self-governance. Therefore, in accordance with Article 139 of the Interim Constitution, the date of the local body's interim elections should be set immediately.

Conclusion: The Court ordered respondents to immediately prioritize making appropriate and necessary arrangements to hold local elections.

Legal Issue(s)

Election Date
Electoral Integrity

Applicable Law(s): Interim Constitution of Nepal, 2007; Local Self Governance Act, 1998

Region: Asia-Pacific

Country: Nepal

Language of Decision

Nepali

Court: Supreme Court

Election Type: Local

Date of decision: Nov 7, 2012

Geolocation

Latitude: 28.22051582667723

Longitude: 83.67511262919291

: Geolocation

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Madhav Prasad Paudel and others vs Office of the PM, Local development Ministry, Election Commission Nepal et. al

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