EC can decide for itself about voting rights for polling staff: SC

Published On: November 7, 2017 06:00 AM NPT By: Republica  | @RepublicaNepal

KATHMANDU, Nov 7: Acting on a writ petition demanding arrangements for civil servants and security personnel deployed on election duty to cast their votes, the Supreme Court on Monday asked the Election Commission (EC) to take an appropriate decision in line with the constitution.

The court has stated that the EC itself in line with Article 84(5) of the Constitution should consider ensuring the voting rights of the civil servants and security personnel deployed on poll duty. A division bench of justices Deepak Raj Joshee and Dambar Bahadur Shahi refused to issue a stay order as demanded by the writ petitioner. 

 “In view of the demand of the writ petitioner for a stay order, the Election Commission itself should consider allowing the polling staff to cast their votes as per the Constitution and existing laws in line with Article 84(5) of the Constitution. Therefore, there is no need to issue a stay order,” the bench observed.  

The bench also said that it will, after the final hearing, decide whether or not to issue mandamus order as demanded by the petitioner for arrangements for the polling staffers. Deputy Attorney General Bharat Prasad Mainali had filed the petition. Over 500,000 including civil servants and security personnel are being deployed for the parliamentary and provincial elections, which are being held simultaneously in two phases on November 26 and December 7.

Senior advocates Prakash Bahadur KC and Chandra Kanta Gyawali who attended Monday's hearing as amici curiae argued that although the voting right has been ensured by Article 84(5) of the Constitution and Section 38 of the House of Representatives Members Election Act and Provincial Assembly Members Election Act for every citizen of 18 years and above, this is not a fundamental right. They also argued that the state is not bound to ensure the enjoyment of this right by the polling staff. 

“It depends on the capacity of the EC on whether or not to guarantee this right to polling staff, so the court cannot instruct any authority to ensure this right,” they argued.

Half-a-dozen lawyers representing the petitioner pleaded during Monday's hearing.

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