Election Commission Act, 2073 (2017)
Date of Authentication and Publication: February 2, 2017 (2073.10.20)
Amending Acts: The Act Amending Some Nepal Acts 2019 (2075) March 3, 2019 (2075.11.19)
Act No. 22 of the year 2017 (2073) An Act Made to Amend and Consolidate Laws Relating to Functions, Duties and Powers of the Election Commission
Preamble: Whereas, it is expedient to amend and consolidate the prevailing Nepal laws relating to the functions, duties and powers of the Election Commission, Now, therefore, be it enacted by the Federal Parliament pursuant to Article 296 sub-article (1) of the Constitution of Nepal.
Chapter-1 Preliminary
Short Title and Commencement: (1) This Act may be called "Election Commission Act, 2017 (2073)." (2) This act shall come into force immediately.
Definitions: Unless the subject or the context otherwise requires, in this Act,
(b) "Commission" means the Election Commission referred to in Article 245 of the Constitution. (c) "Candidate" means the person whose name has been included in the final list of candidates for an election, made in accordance with the prevailing federal laws. (d) "Prescribed" or "As Prescribed" means prescribed or as prescribed in this Act or Rules framed under this Act or in the order issued by the Commission by publishing a notice in the Nepal Gazette. (e) "Name Registering Official" means the Chief Name Registering Official, Name Registering Official or Subordinate Name Registering Official assigned by the Commission for the purpose of collecting the voter names and other necessary details, preparing the voter list or updating it. (f) "Election" means an election of the President, Vice President, Members of the Federal Parliament, Members of the Provincial Assembly and Members of Local Levels, held pursuant to the Constitution and Federal Laws and the word also includes by-elections. (g) "Election Official" means an Election Official as determined. (h) "Returning Officer" means the Chief Returning Officer or Returning Officer appointed pursuant to Section 19 and the word also includes Deputy Returning Officer. (i) "Election Period" means the time period between one hundred and twenty days prior to the election until such day when the election results are made public. But in case where the date of the election has been declared in a manner in which the time period would be less than one hundred and twenty days, the time period between the
date of such declaration and the day in which the final results are made public, shall be considered the election period. (j) "Voter" means a person whose name is registered in the finalized Electoral Rolls pursuant to the federal laws. (k) 'Political party" means a political party registered in the Commission pursuant to the federal laws. (l) "Secretary" means the Secretary of the Commission. (m) "Constitution" means the Constitution of Nepal.
Chapter-2 Functions, Duties and Powers of Commission
Power to fix the polling date: (1) The Government of Nepal shall fix the polling date, unless otherwise prescribed by the federal laws. Provided that the Government of Nepal shall seek consultation of the Commission before fixing the polling date. (2) The notice of the polling date, fixed pursuant to sub-section (1), shall be published in the Nepal Gazette.
Power to correspond for security management: (1) The Commission may correspond to the Government of Nepal or State Government or Local Level Government for the effective management of security for the election. (2) Upon receipt of correspondence pursuant to sub-section (1), the Government of Nepal or State Government or Local Level Government shall make effective security provision and inform the Commission of the same.
Power to monitor or cause to be monitored: (1) The Commission may form teams consisting of officials or employees of the Commission or Nepal Government or State Government or experts, to monitor or cause to monitor,
election awareness, polling related to the election, vote counting or any other activity.
(2) In forming teams pursuant to sub-section (1), the Commission shall determine the constituency to be monitored, procedures to be followed while monitoring and the time within which such team is to complete the monitoring.
(2) Any person or organization who has obtained permission pursuant to sub-section (1), shall make observation by fulfilling the procedures specified by the Commission for monitoring, and the Commission may cancel the permission of any person or organization making observations without following the procedures.
(3) Every person or organization who has obtained permission pursuant to sub-section (1) shall, upon completion of monitoring, submit a report thereof to the Commission within thirty days.
(4) Every domestic or foreign person or organization having obtained permission for observation pursuant to this Section shall, in making observation, observe the code of conduct made by the Commission.
(2) The Commission may seek necessary assistance from any public or private organization for any act of election or get any act of election performed by such agency or organization.
(3) The concerned agency or organization shall have the duty to provide the assistance sought by the Commission, pursuant to sub-sections (1) or (2).
(2) The Commission may, as per necessity, and by giving a prior notice obtain and use any land, building, furniture or any other physical facilities belonging to any public organization or agency or public or private school or college, for the purpose of conducting an election.
(3) The Commission may hire and use by paying the existing rate of rent, any land, building, conveyance, furniture or other physical facilities belonging to any person, non-governmental organization or agency for the purpose of conducting an election.
(4) In case where, any land, building, conveyance, furniture or any other physical facilities belonging to any person or organization or agency has been hired by the Commission or on the basis of the order of the Commission, subject to payment of existing rate of rent in course of performance of any act of election, the existing rate of rent shall be paid for the use of any land, building, conveyance, furniture or any other physical facilities, so used for that period.
(5) In case where, any land, building, conveyance, furniture or any other physical facilities used by or with the order of the Commission in course of any act of election, has to be repaired due to damages sustained or compensation has to be provided for same, the Commission shall provide the amount required for or the amount that has been incurred in making such repairs or such amount as may be required to be paid for compensation.
(2) If a complaint is received pursuant to sub-section (1), the concerned Returning Officer shall seek clarification from such candidate in that respect, within a time-limit of seven days.
(3) On receipt of such clarification pursuant to sub-section (2) or where no clarification is received within the time limit, by stating the same, the concerned Returning Officer, shall promptly send the complaint received pursuant to sub-section (1) and documents pertaining thereto, to the Commission.
(4) On receipt of the complaint and the documents pertaining thereto pursuant to sub-section (3), the Commission may, inquire with the concerned candidates into any matter or seek additional evidence from such candidate.
(5) The Commission shall undertake inquiries into the complaint and documents attached, received pursuant to this Section and make decisions as to the disqualification of the candidate, no less than seven days from the date
on which it receives the complaint through the Returning Officer pursuant to sub-section (3).
(6) The procedures to be followed by the Commission, while making decisions regarding the disqualification of candidates pursuant to this Section, shall be as fixed by the Commission.
(7) Notwithstanding anything contained elsewhere in this Section, no proceedings of such election shall, in any case, be affected merely by the reason that the Commission has not made a decision as to the disqualification of any candidate pursuant to this Section.
(2) If the Commission is confident, that any act of election has not been free and impartial, from the report of the inquiry held by the Commission pursuant to sub-section (1), it may, by setting out the reasons for same, cancel the election of that constituency or the polling of any or all stations of that constituency.
(a) to formulate, implement and monitor the implementation of policies, plans and strategies related to election, (b) to make necessary arrangements for the identification of voters, (c) to undertake necessary research, studies for electoral reforms, (d) to consolidate information and data related to election and to maintain archives, (e) to make necessary arrangements for development of infrastructures of election offices, (f) to make arrangements for delivery of expert services related to election, (g) to extend relations with international organizations and agencies related to election.
Chapter-3 Operation of Work and Management of Commission
Work Division in the Commission: The division of work between the Chief Election Commissioner and the Commissioner, shall be as fixed by the Commission.
Meetings and Decisions of the Commission: (1) All functions required to be performed by the Commission pursuant to the Constitution and prevalent laws, shall be as decided by the Chief Election Commissioner in case of only his or her presence and by a decision of meeting held between the Commissioners in case of the presence of other Commissioners too.
(2) The meeting of the Commission shall be chaired by the Chief Election Commissioner.
(3) The meeting of the Commission shall be held at such time, as called by the Chief Election Commissioner, on the basis of necessity.
(4) The Secretary of the Commission shall duly maintain the certified records of the decisions of the Commission.
(5) The work, procedures of the meeting of the Commission shall be as fixed by the Commission.
Functions of Commission not to be affected: The vacancy of post of any Commissioner shall not interrupt the functions and actions of the Commission.
Secretariat of the Commission: There shall be a secretariat of the Commission at the central level, for the management and the performance of functions to be carried out by the Commission.
Provincial and other offices of the Commission: (1) The Commission may, on the basis of necessity, establish its offices at the provinces and in other places, as fixed; for the functions that the Commission itself is required to carry out.
(2) The offices established pursuant to sub-section (1) shall have the functions, powers and duties, as fixed.
(3) The offices established pursuant to sub-section (1), in addition to the functions, powers and duties stated in sub-section (2), shall have to perform responsibilities as fixed or as delegated by the Commission.
(2) The Government of Nepal shall make available the employees necessary for the Commission for its management and the performance of its functions.
(2) The Secretary shall, on the basis of general direction given by the Chief Election Commissioner, perform the following functions, duties and power, in addition to the functions, duties and power fixed pursuant to this Act and other prevailing laws: -
(a) to perform and cause to be performed the administrative and managerial work of the Commission, (b) to prepare and present, cause to prepare and present the annual budget, programmes and plans of the Commission, (c) to protect, preserve and cause to protect and preserve the movable, immovable property of the Commission, (d) to make, cause to make arrangements necessary for the smooth operation of the functions and duties of the Commission, (e) to implement, cause to implement the policies, programs and decisions of the Commission, (f) to perform or cause to be performed other functions as fixed by the Commission.
(2) The Commission may assign or engage any employee of the Government of Nepal, State Governments and Local Level Government or of institutions owned or controlled by Government of Nepal, State Governments and Local Level Government or of institutions operated with the grants of Government of Nepal, or any teacher or employee of university or community school, in any act of election to be performed in pursuit of sub-section (1).
(3) Any teacher or employee engaged in any act of election, pursuant to sub-sections (1) or (2) shall be deemed to be an employee of the Commission until the completion of the act of election.
(4) Any employee assigned or engaged in the act of election shall not be transferred or deputed without the approval of the Commission.
(5) Notwithstanding anything mentioned in the prevalent laws, no employee may be transferred or deputed without the approval of the Commission within the election period.
(2) The Commission may, for the position created pursuant to sub-section (1), appoint retired government employees from any service group, by giving them facilities up to the extent of facilities received by them for the post from which they retired.
(3) The Commission may extend the term of position created pursuant to sub-section (1) for a period of six months at one time or at several times.
(4) The Commission may make appointment to any position created pursuant to sub-section (1) on temporary or contract or wages basis.
But, the creation of temporary position or on contract or wages basis, pursuant to this section, must be made on the basis of the procedures made by the Commission, as approved by the Ministry of Finance, Government of Nepal.
(2) The terms of reference of and remuneration for, the service of an expert procured pursuant to sub-section (1) shall be as determined by the Commission.
Chapter-4 Election Code of Conduct
$\text{--}$ Added by The Act Amending Some Nepal Acts 2019 (2075).
(2) The Commission shall, while making the code of conduct pursuant to sub-section (1), make consultations with the concerned stakeholders.
(3) In making the code of conduct pursuant to sub-section (1), the Commission may make such code of conduct, particularly on matters restraining the Government of Nepal from declaring any new policy, plan and program, mobilizing human resources, means and resources and using governmental media for election canvassing in such a manner so as to affect the fairness and impartiality of the election.
(4) The code of conduct made by the Commission pursuant to sub-section (2) shall be published in the Nepal Gazette; and it shall be the duty of all concerned to abide by such code of conduct.
(2) If in course of carrying out inquiry or monitoring conducted pursuant to sub-section (1), it appears that anyone has not abided by or has violated the code of conduct, the Commission shall order the concerned political party, candidate, person, organization, official or agency to stop the act or invalidate such act, immediately.
(3) Any political party, candidate, person, organization, official or agency failing to stop or invalidate acts in accordance with the order issued by the Commission pursuant to sub-section (2), may be fined by the Commission, amounting up to one hundred thousand rupees.
(4) If the Commission is convinced that the election cannot be held in a free, fair and impartial manner by reason of any candidate frequently violating the code of conduct formed by the Commission; the Commission may, by assigning clear reason and ground thereof, cancel the candidacy of
such candidate. Prior to cancelling the candidacy, the concerned candidate shall be provided with a reasonable opportunity for defense.
Chapter-5 Provisions Relating to Election Expenses
Ceiling of Election Expenses: (1) The Commission may specify the ceiling of expenses allowed to be incurred by political parties or candidates. (2) The Commission shall publish in the Nepal Gazette the ceiling of expenses fixed pursuant to sub-section (1). (3) No political party or candidate taking part in the election shall make, or cause to be made, expenses in excess of the ceiling fixed by the commission, pursuant to sub-section (1).
Details of Election Expenses to be submitted: (1) Political party or candidate having the obligation to submit details of election expenses, shall submit the returns of election expenses to the office specified by the Commission, within thirty days of the publication of the final results of the election, in the format prescribed by the Commission. (2) The returns of election expenses submitted pursuant to sub-section (1) may be audited by a recognized auditor on such conditions as prescribed by the Commission.
Punishment for making expenses in excess of specified ceiling: (1) Any political party or candidate making expenses in excess of the ceiling specified by the Commission pursuant to sub-section (1) of Section 24 or failing to submit the returns of expenses within the specified period pursuant to sub-section (1) of Section 25, may be punished by the Commission with a fine of an amount, which is equal to the election expenses made by them or the ceiling of expenses specified by the Commission, whichever is higher.
(2) If any political party or candidate fails to submit election expenses pursuant to sub-section (1) of Section 25 or
On the returns submitted, it appears from the audit report of auditing, conducted pursuant to sub-section (2) of the same Section; that expenses have been made in an inappropriate manner or in a manner so as to prejudice the fairness of the election or in an illegal manner for illegal purposes, the Commission may impose a fine on the political party or candidate, with an amount equal to the election expenses made by them or an amount of five hundred thousand, whichever is higher.
(3) Any political party or candidate, failing to submit the fine imposed under sub-section (2), within six months, may be prohibited by the Commission from participating in any election or may be disqualified to appear as a candidate in any election for a maximum period of six years with immediate effect.
(4) The Commission shall provide the concerned political party or candidate with a reasonable opportunity to defend themselves, prior to imposing a fine pursuant to sub-section (1) or (2) or making a decision pursuant to sub-section (3).
(5) If the Commission makes a decision pursuant to sub-section (3), the election of such person, shall ipso facto be cancelled.
Chapter-6 Budget Management and Auditing
(2) The Commission shall manage the budget made available to it.
(3) The budget allocated to the Commission for the purpose of election, shall be spent in accordance with the prevalent laws.
*28. Casual expenses to be approved in accordance with procedure: Notwithstanding anything contained in the prevalent laws, while making expenditures chargeable on the amount under the budget heading of casual expenses allocated by the Government of Nepal for the Commission, such expenditures shall be made in accordance with the procedure made by the Commission, with the approval of the Government of Nepal, Ministry of Finance.
Power to collect financial resources: For the purpose of completing the act of election, the Commission may, with the prior approval of the Government of Nepal without being in contrary to the policy related to development assistance; collect separate financial resource or receive assistance, in addition to the amount allocated under the regular budget heading.
Accounts and Audit: (1) The accounts of expenses made by the Commission in the act relating to election shall be maintained in accordance with the prevailing laws.
(2) The accounts maintained by the Commission pursuant to sub-section (1) shall be audited in accordance with the prevailing laws.
Chapter-7 Miscellaneous
General or the Ministry of Law, Justice and Parliamentary Affairs or any other expert.
(2) The Commission, in relation to its functions and duties, may make contact, consult with, or seek advice from any constitutional body or any Ministry, Department, Offices of the Government of Nepal, State Government, Local Level Government, Political Party or any other agency or organization.
May hold discussion or consultation: The Commission or Official of the Commission, may hold discussion or consult with any political party or representatives of civil society, experts in the field of election or other related persons or organizations, with relation to holding an election in a free and fair manner.
Voter awareness program: The Commission may operate or cause to operate, voter awareness program, as per necessity, in order to provide voters with information about the collection and updating of Electoral Rolls as well as method of polling in an election and the rights of voters.
Use of new technology: The Commission shall make provisions for the use of new technology for the management of election.
May provide facilities: (1) The Commission may provide, the officials or employees engaged in any act of election, such amount as may be determined by the Commission or in case where they are required to work overtime, with food and snacks allowance and overtime allowance as well.
(2) The Commission may, as per necessity, add such amount as may be determined by the Commission to the daily and travelling allowances receivable by the officials or employees engaged in any act of election, pursuant to the prevailing laws.
(3) The Commission shall provide an additional allowance in such amount as may be determined by the Commission to the officials or employees engaged in any act of election for the duration that they are engaged in such act.
(2) The Government of Nepal shall procure insurance for the security personnel engaged in any act of election, against accident that may occur throughout the election period. The insurance amount for such insurance shall be as determined by the Government of Nepal.
(2) Notwithstanding anything contained in the prevailing laws, the concerned employee shall not be required to submit bills and receipts showing expenditure of the amount which he or she has received pursuant to sub-section (1).
(3) The expenses incurred to conduct an election, shall be credited as per the rate fixed by the Commission, so that the employee deputed in election may expend it.
(4) With respect to such amount as may be specified by the Commission out of the amount referred to in sub-section (3), the employee deputed in election shall not be required to submit bills and receipts, after their return upon the completion of the act for which they have been so deputed.
*38. May procure goods: The Commission shall procure goods or services required for the purpose of conducting an election, through the prevailing laws relating to public procurement.
But if, for the immediate management of specified election materials or services required for an act of election, it is not possible to fulfill the procedures required to be fulfilled by the prevailing public procurement laws, the Commission, by disclosing reasons thereof, may procure goods or services, through quick means or may directly purchase goods or services from the market.
(2) Details of such suggestions given pursuant to sub-section (1), shall be included in the annual report of the Commission.
(2) The concerned agency or organization, shall institute necessary actions as per the directions given by the Commission, pursuant to sub-section (1), and notify the Commission of such.
(3) The Commission may give necessary direction to the Secretary, employees of the Commission, Returning Officer, Election Official, Election Officer, Polling Officer, Assistant Polling Officer, Voters Name Registration Officer or any other employee or persons deputed in election with respect to the functions to be performed by them.
(4) It shall be the duty of all concerned to abide by the direction given by the Commission, pursuant to sub-section (1).
(2) In case of any legal suit filed or instituted against any official and employee as well as person appointed, deputed, designated or engaged by the Commission for or in any or all of the acts of election including the preparation of Electoral Rolls, in course of discharging such functions in good faith, as required to be discharged by them under the prevailing laws, the Commission shall, on the basis of necessity and propriety, arrange for their defense through any government attorney.
Required to be gender friendly and inclusive: The Commission shall adopt the principles of gender friendliness and inclusiveness while preparing election related policies, conducting programs, deputing employees, supervising and monitoring or causing to be supervised and monitored, in accordance with this act.
Power to remove from responsibility or recommend for suspension: (1) If any employee of the Government of Nepal, State Government or Local Level Government or of institutions owned or controlled by Government of Nepal or State Government or operated with the grants of Government of Nepal, or any security personnel, teacher of university or community school, commits any act prejudicial to the freedom, fairness and impartiality of the election, the Commission may remove such employee, security personnel or teacher from their responsibility of carrying out such election related acts.
(2) The Commission may by itself or through concerned authority, recommend for suspension of such employee, security personnel or teacher, as per the conditions pursuant to sub-section (1).
(3) The concerned official, upon receipt of such recommendation pursuant to sub-section (2), shall have to institute necessary actions of suspension against such employee, security personnel or teacher, within 48 hours and notify the Commission of the same.
(2) If any employee or official other than that mentioned in sub-section (1), does any act contrary to the laws in force or directions given by the Commission, with respect to any act of election, the Commission shall write to the concerned authority for departmental action against such employee or official in accordance with the laws in force relating to the conditions of their service.
(3) The concerned body shall, if so written to it by the Commission, pursuant to sub-section (2), take departmental action against such employee or official within three months and inform the Commission of such.
(4) Any employee not satisfied with a decision of departmental action made by the Commission pursuant to sub-section (1), may make an appeal to the High Court within thirty-five days after the date of receipt of time-limit for appeal against such decision or receipt of information of such decision.
Annual report: The Commission shall make public, the details of the activities and functions performed by it by submitting an annual report to the President, pursuant to Article 294 of the Constitution.
Delegation of power: The Commission may delegate any power it has pursuant to this Act, by stating any conditions thereof, to the Chief Election Commissioner, Commissioner or any government employee.
Liaison with the Government of Nepal: The Ministry of Home Affairs shall liaise the Commission with the Government of Nepal.
Power to frame rules: The Commission may frame necessary rules in order to carry out the objectives of this Act.
Issuance of order: (1) The Commission may issue necessary orders for the purpose of conducting, monitoring, directing and controlling elections pursuant to the Constitution and prevalent laws; and such orders shall be published in the Nepal Gazette.
(2) It shall be the duty of following agency, institution, organization or persons to abide by the orders as referred to in sub-section (1): -
(a) Governmental or semi-governmental agency or institution, (b) Private sector or Non-Governmental Institution, (c) Political parties and office bearers thereof, (d) Voters, (e) Candidates and their representatives,
(f) Persons involved in the canvassing and monitoring of election, (g) Institutions or persons specified by the Commission at various times.
(3) The Commission may fine any political party, candidate or any other concerned agency, institution, organization or person violating any order issued by the Commission pursuant to this Section; upto One Hundred Thousand Rupees.
Power to prepare directives and manuals: The Commission may, pursuant to this Act and rules formed under this Act; prepare and enforce directives or procedures, as per necessity.
Repeal and Savings: (1) The Election Commission Act, 2063, is hereby, repealed.
(2) All acts done and actions taken under the Election Commission Act, 2063 shall be deemed to have been done or taken under this Act.***