Lawmakers are suspended when they are convicted but they do not lose their seats unless their crime involves ‘moral turpitude’, but no one is certain what that means.
Resham Chaudhary, the lawmaker elected from Kailali, is currently in prison serving a life sentence for orchestrating violence that led to nine deaths in Tikapur in 2015. But the upcoming by-elections don’t have an open seat for Chaudhary’s constituency, since he is only suspended as a lawmaker, despite his conviction by the Kailali District Court in March.
Chaudhary is appealing his conviction but unless the Supreme Court overturns his conviction, he remains suspended. But the seat is his. It is likely that until the next general elections, which are still three years away, the people of Kailali constituency 1 will remain without representation at the federal level.
The root of this problem lies in the murkiness of the parliamentary regulations, which don’t clearly state when a lawmaker will be suspended and when they will lose their seats.
According to constitutional experts, Chaudhary’s case presents an interesting dilemma between two hallowed rights that are both guaranteed by the constitution. Chaudhary has a right to appeal but the people of Kailali-1 also have a right to representation. And given the lethargy of Nepal’s judiciary, it might be years before Chaudhary’s appeal is decided upon by the Supreme Court.
By that time, it is likely that Chaudhary will have completed his five-year term in the House of Representatives in jail. It took around four years for the Kailali District Court to give its verdict in the 2015 case.
“It’s unfortunate because the voters are cheated,” said Bipin Adhikari, a constitutional expert and former law school dean. “But we cannot ignore the constitutional right to appeal either. The only thing we can do is to make the legal process quicker.”
As per constitutional provisions, a lawmaker’s seat will only be vacated on three major instances—if one tenders a resignation, if one dies or if one no longer qualifies the provisions of Article 87.
Article 87 (c) of the constitution states that to qualify for a member of the federal parliament, the person must not have been convicted of a criminal offence involving “moral turpitude”. Article 89 (b) states that the lawmaker’s seat will become vacant if s/he no longer qualifies or ceases to possess the qualification under Article 87. According to Article 90, a constitutional bench of the Supreme Court will decide whether a Member of Parliament is disqualified under Article 87.
However, according to former attorney general Raman Shrestha, there is no clear distinction of what constitutes moral turpitude.
“Even murder may not be considered an offence involving moral turpitude,” said Shrestha. “So even if someone is convicted of murder by the Supreme Court, the Federal Parliament may not declare the lawmaker’s seat vacant.”
Rape and corruption, however, are considered to involve moral turpitude. Shrestha is currently representing former House Speaker Krishna Bahadur Mahara, who has been accused of rape by an employee of the Parliament Secretariat.
“Murder is not automatically considered to involve moral turpitude,” said Subas Nembang, a former Speaker of the House and senior advocate. “Our constitution does not make this clear so it is up to the courts to decide, which they haven’t done yet.”
According to this interpretation, even Nepali Congress lawmaker Mohammad Aftab Alam, who is currently facing charges of mass murder, could retain his seat even if he is convicted.
In case a lawmaker is convicted by the Supreme Court of a crime, it is up to the Parliament Secretariat to remove them and declare their seats vacant. However, since there is no clear definition of moral turpitude, the Secretariat could decide not to remove lawmakers, even in cases of murder, according to legal experts.
Chief Election Commissioner Dinesh Thapaliya confirmed that the Election Commission can only proceed with elections once the Parliament Secretariat declares a seat vacant.
The legal murkiness behind this definition goes hand-in-hand with the Parliamentary Regulations’ refusal to include a clause automatically suspending lawmakers the moment a criminal case against them is lodged. Hence, Alam and Mahara remain ‘honourable’ lawmakers until they are convicted. If they are convicted, then they become suspended. However, their seats do not get vacated.
The only solution to this dilemma, say experts, is for voters to thoroughly vet their candidates before voting for them.
“There are many examples of lawmakers convicted for criminal offences, so people should be aware while casting their votes,” said Surendra Mahato, a senior advocate. “Parties too should disqualify people who are accused of criminal offences from competing in the elections.”
Ultimately, it is the people who will have to suffer if their representatives are convicted since they will lose a voice in the legislature, said Mahato.
