The electoral process is not just a formal act of casting votes, but a crucial process that builds the legitimacy of the state, public trust, and the foundation of democratic culture. The Election Commission has been given special powers to make such a sensitive process dignified, clean, and impartial.

But if the body that is responsible for protecting democracy starts violating the limits of its authority, it risks weakening democracy rather than strengthening it. This question seems to be seriously raised in the context of Section 37 (3) of the ‘Election Code of Conduct, 2082’ issued by the Commission.

Section 22 of the Election Commission Act, 2073 has empowered the Commission to formulate and implement an election code of conduct to maintain the integrity, fairness, transparency and fear-free environment of the election. Looking at this provision of the Act, it is clear that the main objective of the Commission is to ensure the dignified conduct of political parties, candidates, government bodies, employees, security personnel and all concerned parties during the election. There is a general understanding that its use begins after the election is declared and ends after the election is concluded. That is, the code of conduct is a temporary provision directly related to the management of the election period. However, Section 37 (3) of the Election Code of Conduct, 2082 seems to create a permanent obligation that will be applicable even after the election is concluded.

The nature of the obligation created by Section 37 (3) is not limited to the election period. It has imposed an obligation to publish the progress report of the manifesto every year even after the election. This provision may seem attractive at first glance. Because providing information to the public about whether the promises made in the manifesto have been fulfilled or not is the basis of transparency and accountability. In a democracy, people make decisions by trusting the commitments made by the candidate or party when they vote. Therefore, it seems necessary to have public information about the extent to which those commitments have been implemented. But in a democracy, good intentions alone are not enough. The authority and method to implement them must also be legally valid. If any body starts creating new obligations beyond its jurisdiction in the name of good intentions, it weakens the basic principle of the rule of law. Therefore, the main question is whether the Act gives the Election Commission the authority to create an obligation to publish an annual report that will continue to apply even after the election?

Section 22 of the Election Commission Act, 2073 BS, although it empowers the Commission to formulate a code of conduct to ensure the integrity and fairness of elections, does not appear to provide a clear legal basis for compelling political parties or elected candidates to publish the progress report of their manifestos annually even after the elections are over. The purpose of the Election Commission Act is to manage elections, not to provide a system for continuous evaluation of the governance system.

Rules, guidelines or codes of conduct made under any act can be issued only within the limits of the main act. Creating new obligations by using powers not granted by the act is going beyond the limits of by-laws. By-laws are understood to be the power to formulate rules, guidelines or codes of conduct necessary for the implementation of an act made by the Parliament. However, such powers are limited. By-laws can help implement the objectives of the act, but cannot create new fundamental obligations beyond the limits of the act.

The manifesto itself is a political document, which presents policy goals, long-term plans, potential programs and political visions. Many of the commitments in the manifesto cannot be fulfilled immediately. Some commitments are of a nature to be fulfilled within five years, some commitments are possible only after reaching the government, and some commitments may even change due to the coalition government. In such a situation, how to measure 'progress'? What criteria should be used? Who will determine what percentage has been implemented? Will the Election Commission set the criteria? If the Commission sets the criteria, is that authority given by the Act or not? When such questions remain unanswered, this system creates legal uncertainty.

When such a system is implemented, there is also a risk of unnecessary interference in the political freedom and freedom of expression of political parties or elected candidates. If the annual report is made public in connection with legal obligations, parties may be afraid to prepare their manifestos. This increases the possibility of weakening the manifesto, reducing the competition of ideas, and narrowing the democratic debate.

Although the Election Commission is a constitutional body, its authority is not unlimited. Constitutional bodies are also limited within the jurisdiction specified by the Constitution and the Act. If the Commission expands its jurisdiction and creates a permanent obligation not provided by the Act, it becomes not only a legal dispute but also a question of the constitutional balance of power. In such a situation, judicial review is inevitable.

There is another important aspect here – the need for political accountability. In fact, informing the public about whether the commitments in the manifesto have been fulfilled or not can be beneficial for democracy. But the question is not ‘is accountability needed or not?’ The question is ‘who, through what method, on what legal basis will accountability be implemented?’ If the Parliament deems it necessary and amends the Political Parties Act or other related laws to make the manifesto implementation report public, then it becomes legal. People’s representatives discuss it, civil society debates it, and a legal basis is created through the legislative process. But for the Commission to create such a permanent obligation through the code of conduct is to indirectly challenge the legislative power of the Parliament.