Introduction
Decision Number: 7541
Decided Date: 2062/05/15
Case Type: Mandamus
Bench: Joint Bench (Shushila Karki and Bharatraj Upretee)
I. Facts of the case and Procedural History
This writ petition was filed amidst concerns over the poor financial transparency within political parties, particularly regarding election expenditure and financial disclosure. The case highlighted a systemic failure to clearly account for party income and expenditure. Investigations by the All-Party Parliamentary Joint Committee reported instances of excessive spending beyond legal limits, wrongful donation collection, and the failure of parties to submit actual expenditure details. The Court also noted that existing legal requirements, such as the publication of annual financial reports, had been widely ignored, indicating poor implementation of prevailing laws. Although Section 76 of the House of Representatives Election Act 2047 and Section 17 of the Election (Crimes and Punishments) Act 2047 addressed candidate-level expenses, there were ambiguities regarding party-level financial accountability. The petitioner sought judicial intervention to uphold the right to information enshrined under Article 16 of the Constitution of Nepal 2047.
II. Claims of the Petitioner
The petitioners sought comprehensive judicial and legislative remedies concerning financial regulation of political parties. Specifically, they requested a court order mandating that all political parties:
1. Submit complete expense details within three months following an election.
2. Submit comprehensive income details, including the sources of income.
3. Subject their income and expenditures to audits conducted by auditors authorized by the Auditor General.
Additionally, the petition requested the Court to direct legal amendments to regulate donation collection procedures, enforce the publicizing of income and expense sources, establish election auditing procedures, and define the maximum limit of party election expenditures.
III. Responses of the Respondents
The Election Commission sought the dismissal of the petition, arguing that the writ was inappropriate because the general election had been postponed. Crucially, the EC asserted that requiring the Auditor General to audit party finances was unconstitutional.
Other government bodies generally argued for deference to the legislative branch. The Ministry of Law, Justice and Parliamentary Affairs and the Secretariat of the Council of Ministers emphasized that law creation and amendment fall under parliamentary jurisdiction and are legislative functions. The Secretariat of the Council of Ministers maintained that existing violations were already addressed under Section 17 of the 2047 Act. Similarly, the Opposition Nepal Communist Party (UML) acknowledged the reasonableness of the issues raised but contended that the court lacked the authority to direct the legislature due to the principle of separation of powers. The Rashtriya Prajatantra Party argued that the petition was unnecessary, citing existing legal systems and codes of conduct.
IV. Established Principles and Reasoning
The Joint Bench established two foundational principles regarding democratic integrity and financial transparency:
1. Elections influenced by undesirable elements cannot be considered clean.
2. Lack of transparency encourages corruption.
While acknowledging that the postponement of the election rendered some concerns immediately irrelevant, and noting that the subsequent enactment of the Political Parties Act 2058 (enacted 2059/05/27) addressed many legal gaps, the Court found judicial action imperative. The reasoning centered on the critical finding of non-implementation, specifically the failure of parties to comply with existing statutory requirements to publish annual financial reports.
V. Ratio Decidendi
Despite the existence of relevant legislation (including the Political Parties Act 2058), the Court held that the pervasive lack of implementation necessitated judicial intervention. The Court ultimately issued a directive to the Election Commission requiring it to take affirmative action and develop appropriate legal mechanisms to enforce financial transparency and regulation within political parties.
VI. Significance
This decision underscores the judiciary’s role in ensuring the effective implementation of laws designed to curb corruption and protect democratic processes, even in the face of arguments centered on the separation of powers. By linking the lack of financial transparency directly to the encouragement of corruption and compromised elections, the Court mandated proactive administrative steps by the Election Commission to enforce the statutory requirements for financial disclosure. This ruling emphasizes that legislative existence is insufficient; robust implementation is essential to achieve the constitutional goal of transparent governance.