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Legal Framework Governing Elections in Nepal

Manual on Settlement of Petitions and Proceedings Relating to Election, 2064 (2007)

Whereas, it is expedient to make provisions on the settlement of related petitions and disputes in order to hold the election to members of the constituent assembly in a fair, independent and reliable manner;

Now, therefore, in exercise of the powers conferred by Section 46 of the Act Relating to Election to Members of the Constituent Assembly Act, 2063 (2007), the Election Commission has made this Manual.

Chapter-1

Preliminary

Short title, extension and commencement:
- This Manual may be cited as the "Manual on Settlement of Petitions and Proceedings Relating to Election, 2064 (2007)".
- This Manual shall apply to all petitions and disputes relating to election, other than those petitions and disputes falling under the jurisdiction of the Constituent Assembly Court pursuant to Article 118 of the Interim Constitution of Nepal, 2063(2006) and under the jurisdiction of the court specified pursuant to Section 25 of the Election (Offenses and Punishment) Act, 2063(2006).
- This Manual shall commence at once.
Definitions:

Unless the subject or the context otherwise requires, in this Manual,-
1. "Petition" means any petition or complaint made in relation to a violation of the Election Commission Act, 2063(2006), Act Relating to Election to Members of the Constituent Assembly Act, 2063 (2007), and the rules and regulations framed under that Act or the Code of Conduct or any offense punishable under Section 19 of the Election (Offenses and Punishment) Act, 2063(2006).
2. "Commission" means the Election Commission referred to in Article 128 of the Interim Constitution of Nepal, 2063(2006).
3. "Committee" means the petition and dispute management committee referred to in Section 5.
4. "Authority" means the Commission and the person authorized to receive and deal with petitions relating to election.
Chapter-2

Provisions Relating to Petition
To make petition:
1. A petition has to be made, accompanied by evidence, in the form referred to in Schedule-1 to the Commission or the concerned polling officer, returning officer, district election officer or monitoring team no later than 24 hours after the commission of such act.
2. Where a petition is not made in writing but is made verbally or by telephone pursuant to sub-section (1), the concerned body has to record that petition in the written form.
3. Notwithstanding that a petition is not made by any one pursuant to this Section, if any authority receives information from any source that the law relating to election has been violated, the concerned authority may take necessary action.
To maintain records of petitions:
1. Upon receipt of a petition or information pursuant to Section 3, the concerned body has to safely maintain the records of such petition or information.
2. A petition that does not mention the name of petitioner has to be recorded with remarks, and it is not required to take action on such petition.
Chapter-3

Hearing of Petitions
Petition and dispute management committee:
1. There shall be one petition and dispute management committee, as follows, in the Commission for making necessary examination of the petitions required to be decided by the Commission under the prevailing laws and make submission to the Commission:
  1. Election Commissioner (Responsible for Code of Conduct), Election Commission -Coordinator
  2. Deputy Attorney General, Office of Attorney General -Member
  3. Secretary, Ministry of Law, Justice and Parliamentary Affairs -Member
  4. Secretary, election Commission -Member
  5. Joint Secretary (Law Division), Election Commission -Member Secretary
2. The functions, duties and powers of the committee shall be as follows:
  1. To study petitions under the jurisdiction of the Commission under the prevailing laws, examine/inquire into them based on the evidences and subject matters accompanied by such petitions and make recommendation, accompanied by its opinion, to the Commission in relation to such petitions;
  2. To inquire into those petitions or disputes relating to election in relation to which the prevailing law does not provide for the authority settling such petitions or disputes and submit them to the Commission;
  3. Where, in inquiring into any petition, it appears necessary to make further inquiry, to make such inquiry as required or write to the concerned officer to inquire into the petition and make a report to it;
  4. To inquire into and monitor, or cause to be inquired into and monitored, as to whether the code of conduct has been observed throughout the country;
  5. Where any other office-bearer has already taken action on any petition, to give information setting out the matter to the Commission;
  6. To close any petition found to be baseless;
  7. To make necessary coordination in relation to petitions and disputes throughout the country;
  8. To prepare and update the details of petitions and action on the petitions made throughout the country and publish such details;
  9. to perform such other functions as assigned by the Committee.
  10. Notwithstanding anything contained in clauses (a) through (i), the committee may decide or settle any petition or dispute of an ordinary nature.
3. The committee may invite any person whom it considers appropriate take part in its meeting.
4. The committee may set its rules of procedures on its own.
To be decided by Commission:

The Commission may, in exercise of the powers conferred by the prevailing laws to it, decide any petition submitted by the committee pursuant to Section 5.
Action to be taken by returning officer, polling officer and monitoring team on petitions and disputes:
1. The returning officer, polling officer and monitoring team shall exercise the powers conferred to them by the prevailing laws in relation to petitions and disputes.
2. Where, also in view of the gravity of a petition received and the reality come out upon inquiry into the petition, the polling officer considers that it is appropriate to have the petition tried by the Commission or the higher body, the polling officer has to make a submission, accompanied by his or her opinion, to the concerned returning officer immediately.
3. Where the returning officer is able to settle or solve any petition received pursuant to Section 3 and any matter written by the polling officer in accordance with the prevailing laws, the returning officer shall settle or solve such petition and matter, and where such petition or matter is of such nature that he cannot settle or solve it, then the returning officer has to immediately send it to the committee for submission to the Commission.
4. Where, in view of the gravity of subject matter in relation to a petition and dispute received and submitted to a monitoring team, the team is of the opinion that it is appropriate to have such petition or dispute considered by the Commission, then the team has to immediately make a submission, accompanied by its opinion, to the commission.
5. Information of action taken under the prevailing laws in relation to petitions and disputes pursuant to this Section has to be sent immediately to the committee through the concerned returning officer if such action is taken by the polling officer and to the committee by the returning officer and the monitoring team.
Procedures to be followed while imposing fine immediately:

While imposing fine immediately, the authority imposing fine pursuant to Section 19 of the Election (Offenses and Punishment) Act, 2063(2006) shall follow the following procedures:
1. Decision has to indicate the nature of act or offense done or committed.
2. A person who is accused of any act or offense has to be given opportunity to put forward his or her statement or reply in relation to such accusation. Where such statement or reply is made verbally, it has to be recorded in written form.
3. A decision imposing fine has to be recorded in written form.
4. Information referred to in clause (c) has to be given to the offender and the offender caused to pay the fine immediately.
5. Upon the payment of the amount of fine imposed pursuant to clause (d), the authority imposing fine has to give a receipt in the form referred to in Schedule-2 to the concerned person immediately.
6. The notice of decision shall also mention that the person who is not satisfied with the decision made by the authority imposing fine may make an appeal to the concerned Appellate Court within thirty five days pursuant to sub-section (3) of Section 19 of the Election (Offenses and Punishment) Act, 2063(2006).
7. The authority imposing fine shall write a letter in the form as referred to in Schedule-3 and hand it over to the concerned police office to imprison the person, who refuses to pay or expresses inability to pay the amount of fine pursuant to clause (e), for the amount of fine.
8. Where any person acting on behalf of any political party or candidate or any of his or her agent or any other person has used a motor vehicle in contravention of Section 16 of the Election (Offenses and Punishment) Act, 2063(2006), the concerned authority shall write to the Commission to take departmental action to the officer allowing such motor vehicle to be used in such motor vehicle belong to a governmental body or a body owned by the government or a local body.
9. Where any person acting on behalf of any political party or candidate or any of his or her agent or any other person has used any pamphlets or posters, done wall painting, use red cloth banners in contravention of Section 13 of the Election (Offenses and Punishment) Act, 2063(2006), the authority imposing fine shall seize such pamphlets, posters, red cloth banners and give an order to restore the place where such pamphlets, posters, red cloth banners have been used or wall painting done to the previous condition.
10. Where the authority imposing fine has imposed additional fine to any candidate who fails to carry out the order given pursuant to clause (i) under sub-section (7) of Section 19 of the Election (Offenses and Punishment) Act, 2063(2006), the authority may recover the expenses incurred in restoring the place where such pamphlets, posters, red cloth banners have been used or wall painting done to the previous condition from that candidate.
11. Where any person, after having indicated vote on the ballot paper, shows or demonstrate the ballot paper to any one else, the concerned authority shall, in imposing the fine, put the ballot paper in a sealed envelope if that person has not yet dropped the ballot paper into the ballot box and execute a recognizance deed indicating that matter.
12. In imposing fine on any person, the offense committed by him or her and fine imposed on him or her shall be published immediately for the information to the general public in any newspaper or any communication means.
Chapter-4

Miscellaneous
Authority specified by prevailing law to deal petitions:

Where the prevailing law on election clearly specifies the authority settling petitions and disputes, it shall be according to that law.
Records of action:
The concerned officer office-bearer shall retain or cause to be retained safely the records of actions or decisions taken or made in relation to any petitions or disputed pursuant to this Manual.
Formation of petition management unit:

There shall be formed a petition management unit tin the Commission in order to manage petitions and proceedings and the affairs of the petition and dispute management committee.
Description of petition and dispute trying authorities:

The description of the petition and dispute trying authorities under the prevailing laws relating to election is given in Schedule-4.
Report to be made:

The committee shall prepare details of the activities carried out under this Manual and submit such details to the Commission within three months after the completion of the act relating to election.
Saving from duplicacy in proceedings:

Where a matter, which is under jurisdiction of several authorities, has been tried by one authority, then another authority shall not try that matter, except appeal proceedings in accordance with the prevailing laws. For this purpose, it shall be the duty of the concerned authorities to make contact, coordination and exchange information between each other.
To make decision promptly:

A petition and dispute shall be settled within the time, if any, specified by the prevailing laws for such settlement, and if such time is not so specified immediately, in view of the gravity of the petition and dispute.

Schedule-1

(Relating to sub-section (1) of Section 3)

The election Commission/returning officer

Polling officer/monitoring team.

Subject: Petition relating to election.

Whereas, Mr./Ms.------------------------, a resident of-------------- has done the following act in contravention of the Election Commission Act, 2063(2006), the Act Relating to Election to Members of the Constituent Assembly Act, 2063 (2007), the Election (Offenses and Punishment) Act, 2063(2006) and the rules and regulations framed under that Act or the Code of Conduct;

Now, therefore, I hereby made this petition for action.
1. The venue, time and date where and when the act, error or violation has taken place:
2. Details of act, error or matters considered to be violations:
3. Provisions of Act, rules or code of conduct related with the matters considered to be violations:
4. Name and contact address of witness:
5. Other evidence and proof:
Petitioner:
Petitioners:
Signature:
Name, surname:
Phone number:
Mobile number:

Schedule-2
(Relating to clause (e) of Section 8)

Receipt of payment of fine

Whereas, the returning officer/polling officer/monitoring team has imposed a fine of Rs.------------(------------rupees in words) on Mr./Ms.------------, a resident of----------------, pursuant to sub-section (1) of Section 19 of the Election (Offenses and Punishment) Act, 2063(2006) for having committed the offence relating to election; and whereas he/ she has paid the amount of fine on ----------------(date);

Now, therefore, this receipt is hereby given. If you are not satisfied with the decision on imposition of fine made by the fine imposing authority, you may make an appeal to the concerned Appellate Court within thirty five days pursuant to sub-section (3) of Section 19 of the Election (Offenses and Punishment) Act, 2063(2006).

Signature:

Name, surname:
Designation:
Office:
Date:

Schedule-2
(Relating to clause (g) of Section 8)

To,
The ---------Police Office,
---------------.

Subject: For imprisonment

Whereas, the returning officer/polling officer/monitoring team has imposed a fine of Rs.------------(------------rupees in words) on Mr./Ms.------------, a resident of----------------, pursuant to sub-section (1) of Section 19 of the Election (Offenses and Punishment) Act, 2063(2006), for having committed the offence --------relating to election; and whereas he/ she has refused to pay the amount of fine or expressed inability to pay the amount of fine;

Now, therefore, ----------is hereby sent to that Office to imprison him/her for the said fine of Rs.------------- in accordance with the prevailing laws pursuant to No. 53 of the Chapter on Punishment of the Country Code, in such a manner to deduct twenty five rupees a day.

Returning officer/polling officer/monitoring team

Schedule-4
(Relating to Section 12)

Disputes to be punished or decided or tried by the Election Commission and concerned authorities
1. Matters to be tried by the Election Commission:
  1. If the Commission is satisfied that any act has been done in a manner to prejudice the impartiality and independency of any act election or polling, to cancel the election of that election constituency or the polling of any of or all polling stations of that election constituency.
  2. To make decision on disqualification of any candidate.
  3. To make decision on recognition of any political party.
  4. To make decision to punish any political party, candidate, person, organization, official or body who violates any order issued by the Commission or fails to stop or invalidate the act in pursuance of the order issued by the Commission with a fine not exceeding Rs. 1,00,000/- (one hundred thousand rupees).
  5. - If any person makes expenses in excess of the ceiling specified by the Commission or fails to submit the returns of expenses within the period as prescribed, the Commission may punish such person with a fine of a sum which is equal to the election expenses made by such person or the ceiling of expenses specified by the Commission, whichever is the higher.
    - If it appears from the audit report of the auditing of the returns submitted that the concerned person has made expenses in an unsuitable manner or in such a manner to prejudice the fairness of the election or in an undue or illegal manner for illegal purposes, the Commission may make a decision to disqualify such person for being a candidate in any election for a maximum period of six years with immediate effect. If such person has been elected, his or her election shall ipso facto be void.
  6. If any civil employee or security personnel or any employee of an organization or body owned or controlled by, or run with the grant of, the Government of Nepal, who has been appointed, deputed or designated in the act of election, including the preparation of electoral rolls does any act deliberately violating the laws in force or orders or directions of the Commission or with any mala fide intention or does any act prejudicial to the impartiality of election in the course of discharging such act, the Commission may, in exercise of the powers of the competent authority under the laws in force relating to the conditions of service of such employee or security personnel take departmental action against, and impose punishment on, him or her in accordance with the law.
    
    In relation to any such employee or official other than that mentioned above, the Commission shall write to the concerned body for departmental action against such an employee or official in accordance with the laws in force relating to the conditions of his or her service.
  7. If, prior to the completion of the election, there arises a question that a candidate enlisted in the closed list under the proportional electoral system is or has become disqualified pursuant to Article 65 of the Constitution, the Commission shall make necessary inquiry and his or her candidate shall be canceled if the Commission holds him or her to be disqualified.
  8. Where the concerned polling officer or the returning officer of that election constituency, upon being satisfied that the act of polling cannot be conducted owing to any commotion as well as other extra-ordinary situation at the polling station or owing to any riot or natural calamity or any act beyond control or failure of operation of electronic device or equipment, has postponed the polling at that polling station, and asks for direction for the specification of the date and time for repolling at that polling station, to give direction.
  9. Where polling at a polling station has been postponed due to unlawful seizure of the station, and the returning officer has given information thereof and asked for direction for the specification of the date and time for repelling at the polling station, to give direction.
    
    Where based on appropriate reasons or other state of affairs, it appears that the results of election are affected due to unlawful seizure of polling stations, the Commission may cancel the election of that constituency. Where the election is so canceled, the Commission shall give direction to specify the date and time for repelling.
  10. Where ballot boxes, electronic equipment are destroyed or broken out, the Commission may cancel the polling of that polling station. Where the polling is so canceled, the Commission shall give direction to specify the date and time for repolling.
  11. If, prior to the completion of the counting of votes, the ballot papers, ballot boxes containing the ballot papers used at any polling station or electronic equipment held for polling are taken elsewhere out of the custody of the returning officer in an illegal manner or opened or destroyed accidentally or deliberately broken and damaged or lost, the returning officer shall adjourn the act of counting of votes, and give a report thereof to the Election Commission immediately; then the Commission declare such polling as invalid and cancel the same and give direction to specify the date and time for repelling.
  12. Where the place for counting of votes is seized unlawfully, the returning officer shall immediately adjourn the counting of votes and give a report thereof to the Commission immediately. Then the Commission may cancel the polling, declare all ballot papers of the polling stations affected from such seizure, and cancel the polling.
2. Matters to be tried by the returning officer:
  - The returning officer may punish any person who commits the following act with a fine ranging from five hundred rupees to ten thousand rupees, depending on the gravity of offence, pursuant to Section 19 of the Election (Offenses and Punishment) Act, 2063 (2006):
    1. To carry or use arms contrary to law (Section 10);
    2. To do or cause to be done any prohibited act as prohibited by law (Clauses (a) and (h) of Section 11);
    3. To make or cause to be made election canvassing contrary to law (Section 13);
    4. To make unauthorized entry or affect the act of counting of votes or any other act of election (Section 14);
    5. To use or cause to be used motor vehicles without permission (Section 16).
  - Where any person acting on behalf of a political party or candidate or his or her agent or any other person uses pamphlets or posters, wall painting, red cloth banners or other banners in contravention of law, the returning officer may seize such pamphlets, posters or banners and issue an order to maintain the place where such posters, wall painting, red cloth banner or other banners have been used as it was before. The returning officer may fine a candidate who does not carry out the order so issued with additional sum not exceeding ten thousand rupees and recover from such candidate the expenditures incurred in making the place where such pamphlets, posters, wall painting, red cloth banners or other banners have been used as it was before (Section 19).
  - Where a complaint is made against a candidate while scrutinizing nomination papers, to inquire into the matter and make decision thereon.
  - Where it appears, is heard or found that the Code of Conduct has been violated, to stop such act immediately. The returning office may seek assistance of the local administration and the police for this purpose.
  - Matters in respect of which report is to be made:
    1. If being confident that polling cannot be held due to a special circumstance, to immediately postpone the polling and give information thereof to other concerned authority.
    2. In the event of unauthorized seizure of a polling station, to obtain a report for the polling officer along with his or her opinion and give a report thereof to the Commission.
    3. In the event of destroy or breaking out of a ballot box, electronic equipment, to give report thereof to the Commission.
    4. If ballot papers are destroyed prior to the completion of counting of votes, to postpone the counting of votes immediately and give information thereof to the Commission.
  - Matters to be tried by polling officer:
    1. The polling officer may punish any person who commits the following act with a fine ranging from five hundred rupees to ten thousand rupees, depending on the gravity of offence, pursuant to Section 19 of the Election (Offenses and Punishment) Act, 2063 (2006):
      1. To receive a ballot paper or cast or cause to be cast vote in another's name (Section 3 (except in the case of a citizen of Nepal;
      2. To do or cause to be done any prohibited act as prohibited by law (Section 11);
      3. To make or cause to be made election canvassing contrary to law (Section 13);
      4. To make unauthorized entry or affect the act of counting of votes or any other act of election (Section 14);
      5. To use or cause to be used motor vehicles without permission (Section 16).
    2. The polling officer may fine a candidate who does not carry out the order so issued with additional sum not exceeding ten thousand rupees and recover from such candidate the expenditures incurred in making the place where such pamphlets, posters, wall painting, red cloth banners or other banners have been used as it was before (Section 19).
    3. Where a political party or candidate or his or her agent makes objection accompanied by a deposit of Rs. 50.00(fifty rupees) that any one is showing up for voting by impersonation, to procure necessary evidence and make decision immediately.
    4. Where any person representing himself or herself to be a real voter, after anyone has, by impersonation, already received the ballot paper or voted in the name of that voter, desires to claim that he or she who has come afterwards to vote is the real voter, he or she may make a claim before the polling officer that he or she is the real voter. In such a case, to make decision whether the claimant is the real voter or not, by asking him or her to produce an evidence of his or her written identity, identity card, citizenship certificate or other evidence, and to provide a ballot paper if he or she is found to be the real voter.
    5. Where it appears, is heard or found that the Code of Conduct has been violated, to stop such act immediately. The polling officer may seek assistance of the local administration and the police for this purpose.
    6. Matters in respect of which report is to be made:
      1. If being confident that polling cannot be held due to a special circumstance, to postpone the polling and give information thereof to the returning officer.
      2. In the event of unauthorized seizure of a polling station, to give a report thereof, along with his or her opinion, to the returning officer.
      3. In the event of destroy or breaking out of a ballot box, electronic equipment, to give report thereof to the returning officer.
  - Matters to be tried by monitoring team:
    1. A monitoring team may punish any person who commits the following act with a fine ranging from five hundred rupees to ten thousand rupees, depending on the gravity of offence, pursuant to Section 19 of the Election (Offenses and Punishment) Act, 2063 (2006):
      1. To breach peace in violation of law (Section 9);
      2. To do or cause to be done any act prohibited by law (clauses (a), (d), (e) and (h) of Section 11);
      3. To make or cause to be made election canvassing contrary to law (Section 13);
      4. To make unauthorized entry or affect the act of counting of votes or any other act of election (Section 14);
      5. To use or cause to be used motor vehicles without permission (Section 16).
    2. The monitoring team may fine a candidate who does not carry out the order issued by the team with additional sum not exceeding ten thousand rupees and recover from such candidate the expenditures incurred in making the place where such pamphlets, posters, wall painting, red cloth banners or other banners have been used as it was before (clause (g) of Section 19).
    3. Where it appears, is heard or found that the Code of Conduct has been violated, to stop such act immediately. The monitoring team may seek assistance of the local administration and the police for this purpose.