31 Saun, Kathmandu.
The Supreme Court has issued an interim order in the name of the government not to make public the study and investigation report prepared by the Tankamani Sharma Dangal Committee regarding the share purchase and sale of Ncell.
In the writ petition claiming violation of the company’s right to privacy, trade secrets, and taxpayer’s rights, the court has ordered the defendants, including the Cabinet and the Ministry of Communication, to submit a written response within 15 days.
The Supreme Court issued an interim order on Friday not to make public the ‘Study and Investigation Report on Ncell Share Purchase-Sale, 2080’. Ncell had filed a case against the government in court on Thursday, arguing that its right to privacy had been violated by the publication of the report.
After the Ministry of Information and Communication published the report on Saun 28, in accordance with the decision of the Government of Nepal, Cabinet, on Saun 26, Ncell filed a case in the Supreme Court yesterday, on Saun 29.
The bench of Supreme Court Justice Balkrishna Dhakal issued an interim and show-cause order against the government, stating that decisions made on the matter should be kept in status quo until the final resolution of the presented writ petition.
The court issued this order, stating that not making the report public would not adversely affect the actions carried out by the Government of Nepal. The court also ordered the Government of Nepal Cabinet, the Office of the Prime Minister and Council of Ministers, the Ministry of Home Affairs, the Ministry of Information and Communication, and the Nepal Telecommunications Authority to submit a written response within 15 days.
“What happened here? Why should an order not be issued as demanded by the petition? If an order should not be issued, submit a written response with its basis and reasons, excluding the travel time, within 15 days from the date of receiving the notice/deadline, through the Office of the Attorney General for defendants no. 1, 2, 3, and 4, and either by themselves or through their legal representative for other defendants, along with a copy each of this order and the writ petition. If a written response is received within the deadline or after the expiry of the period, submit it as per rules,” the order states.
The court has ordered not to publish the report submitted by former Auditor General Tankamani Sharma Dangal to the Government of Nepal and to keep in status quo the decision made by the Government of Nepal on Saun 26, 2083, to publish the said report, without implementing it.
After disputes arose regarding the 80 percent foreign investment share transaction and ownership change of Ncell under Dangal’s coordination, the government formed an investigation committee to study the matter. Ncell stated yesterday through a press release that the ministry published the report under the pretext of ensuring good governance, transparency, and citizens’ access to information, while revealing sensitive information that the law itself deems confidential.
Minister of Communication, Bikram Timilsina, himself informed about the publication of the report through his Facebook. Surprisingly, the government published this report by disregarding a court decision.
A writ petition filed in the High Court on Ashar 31, concerning public rights and interest, demanding the publication of the investigation committee’s report, was rejected.
While that dismissal verdict was final, a decision was made to publish the investigation report contrary to it. According to the company, publishing the report itself is a serious violation of constitutional and legal obligations to uphold judicial decorum and comply with court decisions and rulings, as it goes against a respected court’s order. The decision to publish and the actual publication of a report deemed confidential by a respected court is a historically unfortunate event.
The Supreme Court appears to have issued the order based on the previous order issued by the High Court and the written response submitted by Secretary Pushkar Sapkota on behalf of the Office of the Prime Minister and Council of Ministers at that time.
The Supreme Court has noted that in response to the writ petition filed in the High Court, which was dismissed on Ashar 31, 2083, the government had stated that “…the said investigation report is related to the economic, physical, and managerial interests of the country, and an investigation report on such matters is not of a nature that can be made public under Section 3 of the Right to Information Act, 2064, and therefore it was not made public…”
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The issued order states, “The investigation report formed by the Government of Nepal contains details regarding individual investments in the company, operational methods, and various Trade Secrets. Therefore, although there is no hindrance for the Government of Nepal to take necessary actions based on this report, making the company’s business information public could create risks for investors and lead to various difficulties in the company’s operation.
Furthermore, the publication of the report would appear to violate the right to privacy granted by Article 28 of the Constitution, Sections 10, 11, 12, 13, 15, 19 of the Individual Privacy Act, 2075, Section 74 of the Income Tax Act, 2058, Section 37 of the Value Added Tax Act, 2052, and Section 3(3)(g) of the Right to Information Act, 2064. It is evident that the government, as the protector of citizens, has the primary responsibility to safeguard the lives and property of the people….
“This company strongly condemns this action of the government for publishing the report, thereby violating the right to privacy granted by the Constitution of Nepal, and makes it clear that it reserves the right to seek legal remedies as per national and international laws and treaties,” the company stated in a press release issued yesterday.
According to the company, this action by the government has sent a message internationally that the government is not committed to investor privacy and data confidentiality, further clouding the foreign investment environment.
The statement said, “It is extremely regrettable that matters deemed confidential by law are made public without the consent of the concerned individual, even disregarding that such publication constitutes a criminal offense under prevailing law.” Any company and its investment, business matters, information, data, and details are confidential by law.
The Individual Privacy Act stipulates that publishing or making confidential matters public without the individual’s consent constitutes a criminal offense and also provides for imprisonment for the publisher. In the case filed in the High Court, the government, on behalf of the Cabinet, had submitted a written response stating that the report was of a nature that could not be made public.
Now, the publication of that very report has created distrust in the government’s actions.
Generally, information, details, and data collected by an investigation committee formed to ascertain facts and truths during its study and investigation are also confidential.
The Government of Nepal can use that information, details, and data to ascertain whether any offense has occurred in relation to the relevant event, act, or transaction, to conduct further investigation, and to prosecute. “It cannot publish or make it available for access by all members of the public. No law authorizes this,” Ncell said.
According to Ncell, by publishing the report, the government has violated the right to privacy granted by Article 28 of the Constitution of Nepal, the right to property privacy under Section 10 of the Individual Privacy Act, 2075, the right to document privacy under Section 11, the right to data privacy under Section 12, the right to correspondence privacy under Section 13, the right to character privacy granted by Section 15, the right to electronic media privacy under Section 19, the taxpayer’s right to privacy granted by Section 74 of the Income Tax Act, 2058, and Section 37 of the Value Added Tax Act, 2052. Furthermore, the company stated that this action by the government has violated the fundamental and legal rights of the company’s shareholders, directors, and stakeholders.
According to the Individual Privacy Act, 2075, an individual’s property, documents, data, and transaction details are inherent to that individual. Contrary to the legislative commitment that such details will not be published without the consent of the concerned individual, the government cannot make that information and data public, grant access to third parties, or make any arrangements for the general public to know about them in any other way, as this would be contrary to the Constitution, prevailing laws, and international practices.
The publication of the investigation committee’s report is also a breach of the government’s constitutional and legal commitments and trustworthiness (Breach of Trust and Confidence). This is completely prohibited in a democratic state system and the rule of law.
Ncell stated that the state’s action, contrary to the provision where the state has guaranteed through law that an individual’s property, transactions, and documents remain confidential, is an absolute mockery of the law.
The Individual Privacy Act has provisions for punishing offenders and filing lawsuits for compensation if prohibited acts occur or are committed. Based on this, Ncell went to court. The company has stated that due to the breach of its confidentiality, it has suffered irreparable damage.
For more: Supreme Court Bars Nepal Government from Publishing Ncell Share Sale Probe Report
