Tuesday, March 21, 2023

Don’t mess with Umesh Shrestha


After learning that Umesh Shrestha is filing an application with the Election Commission (EC) demanding to declare him the winner of November elections, my immediate reactions were: Do elected positions come like Lok Sewa Ayog exams where a candidate in the waiting list is made eligible for appointment when the main candidate fails to turn up? Or is it like a game of sport when a winner is disqualified, say, of positive drug test, and the award goes to the loser? Isn’t holding by-elections a legitimate and sensible method on this issue? Even the EC has asserted that “holding by-elections is the only way to fill vacated positions, as per our election laws”. 

However after reading Shrestha’s five-page application letter, one will find difficult to refute his demand or even have to think twice on “holding by-elections”.

ChatGPT assistance

Before specifying Shrestha’s justifications and the context that has landed us into this situation, let me cite here the results of ChatGPT assistance. For the sake of brevity, I have listed here the summary in bullet points.

  • There are no universally accepted international practices or standards on the issue of declaring the runner up as the winner or holding by-elections.
  • It can vary greatly depending on the jurisdiction and the specific election laws and regulations in question.
  • Disqualification and penalties are outlined in the election laws or constitution of the country in question.
  • Depending on the specific election laws and regulations of the jurisdiction in question, three possibilities can happen:
    • First runner-up will be declared the winner if the winning candidate is disqualified.
    • There may be a re-run of the elections.
    • Even a possibility of holding special elections to determine a new winner will be there.
  • There may be legal avenues for appeal and challenge if the candidate or their supporters believe that the disqualification was unjust.
  • Subject to legal challenges and appeals, the final decision may be made by the court.

The context

Let us first review the context. In the 20 November elections, Rabi Lamichhane, the president of Rastriya Swatantra Party, was declared winner from Chitwan-2 constituency. In fact he secured a landslide victory with 49,300 votes while the first runner up Umesh Shrestha of Nepali Congress just garnered 14, 988 votes and second runner up Krishna Bhakta Pokharel secured 14, 652 votes. There were a total of 16 contestants.

Even before voting was conducted, a complaint was lodged with the Election Commisison (EC) over Lamichhane not having a proper Nepali citizenship. The EC did issue a clarification letter to Lamichhane but by the time responses were received vote counting had already started and Lamichhane was declared the winner. However, the EC suggested legal remedy can be sought at the court. This is how the issue got landed in the Supreme Court. After a month of hearing, the court annulled Lamichhane’s elections on the ground of not holding a valid Nepali citizenship.   

Shrestha’s legal grounds  

Here is the summary of grounds taken by Umesh Shrestha claiming him to be declared the winner:

The court has not invalidated elections and the plaintiff has not filed the case to declare the elections to be null and void. The court has only disqualified Lamichhane from winning the elections. In this situation, it is legitimate for the first runner up to claim victory.

Nepal’s election laws are prospective in character, therefore, they cannot be applied retrospectively. Because of not having valid citizenship, Lamichhane has been disqualified ab initio starting from the stages of nomination to candidacy and holding elections.

Simply because Lamichhane turned up with a huge victory does not mean “numbers should defy legitimacy”. It is the upholding of the principle that matters, not the crowd.

Not declaring him to be the winner constitutes violation of his constitutional rights to have non-discrimination. Under direct elections, all other candidates, securing highest number of votes, were declared winners, except him.

If anyone think this to be a great injustice to Lamichhane then he still had a pending case on holding dual passport. This could forbid him from participating in the by-elections.

Responding to opponents

In social media, responding to opponents accusing him of being scared to contest by-elections and seeking to find legal loopholes, Umesh Shrestha said: “With the declaration of election results, I accepted my defeat and got occupied with my personal life. I am also the first one to call Lamichhane and congratulate him for his victory. However, because of the court verdict, I have to seek justice.”   

The way out

Clearly, the crux of the matter rests with two choices. Shall we go for by-elections or declare the first runner up winner? Or how about holding a special elections as outlined by ChatGPT? In a small brain storming exercise with my students, they come up with an answer like: How about asking Chitwan-2 voters? Aren’t they the main stakeholders to this problem? I suppose we are in a situation where every problem is having a solution and every solution is having a problem.

I do not see the EC resolving this issue in near future. The EC will definitely deny Umesh Shrestha’s claim. This will invite another round of legal battle. With Nepali way of doing everything at the Eleventh Hour, and with equally slothful judiciary, five years is not a long period in Nepal.

Published on 10 February 2023