Legal Development in Nepal

NRB Governor Case Hearing in Supreme Court

We are constantly following the corruption case of NRB Governor. We have a news today that SC has fixed the date for hearing on the case.
Here is a report by Kantipur and another report is here by Nepalnews.
The Supreme Court on Wednesday decided to hold a hearing on the corruption case against Governor of Nepal Rastra Bank (NRB) Bijaya Nath Bhattarai and another NRB official Surendra Man Pradhan, on March 11.
The apex court is going to take up the case after Special Court judges could not pass a unanimous verdict on the case on February 17. All three judges of the court had passed different verdicts on the case. Now, a single bench of the apex court will decide the case.

As ordered by the Special Court on February 17, Governor Bhattarai and Pradhan presented themselves in person before the apex court on Wednesday for a general date. The Commission for the Investigation of Abuse of Authority (CIAA) has accused Bhattarai and Pradhan of causing loss worth Rs 24.5 million to public property by not claiming compensation after terminating a consulting agreement unilaterally with KPMG, a Sri Lanka-based consulting firm.

 

 

And the Nepalnews Report:

The Supreme Court (SC) on Wednesday set March 11 as the date to conduct a hearing on charges of financial irregularities lodged against governor of Nepal Rastra Bank (NRB) Bijay Nath Bhattarai and director of the bank Surendra Man Pradhan.

Both Bhattarai and Pradhan had reached the Supreme Court as per the court’s summon orders.

After remaining pending at the special court for six months, the case had been referred to the apex court after three of the presiding judges of the special court gave three different verdicts on the case.

The case against governor Bhattarai, who remains suspended since last seven months after the Commission for Investigation of Abuse of Authority (CIAA) slapped him with charges of financial irregularities, has attracted even the attention of donors with some of them publicly expressing disenchantment over the delay in settling of such a ‘sensitive case involving the governor of the central bank.’

The Special Court had been pending its verdict on the case on various grounds for the last many months.

Bhattarai and Pradhan face charges of committing financial irregularities worth nearly Rs 20 million in a financial sector reform programme.

SC withdraws fine………but the question is why?

 

Kantipur today reported this news. It was just a follow up of earlier news. Our blog also highlighted this news and I wrote even an article in this blog supporting the move of Supreme Court. I expressed my displeasure that the fine is so low and in fact, my point was it must have been a higher amount. But kantipur reports that many lawyers, i.e. legal luminary in Nepal critisized the judgement.

The decision to fine the lawyer, the first of its kind in Nepali judiciary, had drawn criticism from the lawyers’ community.

I do not understand why.

may be in response of that criticism, it has been reported now that Supreme Court has decided to withdraw the fine of Rs. 5. It is just an amount of Rs. 5 and may not have that great significance but let’s see the reason of Supreme Court.

“Though the bench concluded it would slap the legal cost on the petitioner as a token of punishment, the petitioner be exempted from the fine as he is a lawyer.”

What does this mean? Is SC saying that there are two classes of people in this country-lawyers and non-lawyers? where lawyers will not and should not be fined for bringing frivolous petitions? Is SC saying that had the petition been filed by any common person, who has not studied law, then, decision to impose Rs. 5 would be justified? If this is so, it is ridiculous. and what about the precedent value of this jusgement? Does this act as stare decisis in future that lawyers will not be fined but common citizens will be. I hope not.

I have nothing personal against the counsel involved in the case but I find SC’s reasons not so pursuasive But still the message is clear that in the future, if you, whether you are lawyer or not, try to abuse the process of law, your petition will deserve the kind of respect it can command-that is outright dismissal and imposition of fine on you.

I hope that the wheels of justice will not face further fabricating petitions in the future after the pronouncement of this judgement.

The Supreme Court has decided to withdraw its February 6 decision to fine lawyer Dhananjaya Khanal for bringing a frivolous writ petition.   While quashing a Public Interest Litigation (PIL) filed by Khanal, Justices Balram KC and Gauri Dhakal had pronounced a fine of Rs 5 on Khanal. However, the judges, in the full text of the verdict of the petition prepared on Sunday, ruled otherwise.  The judges said in the full text verdict, “Though the bench concluded it would slap the legal cost on the petitioner as a token of punishment, the petitioner be exempted from the fine as he is a lawyer.”  However, the bench warned the lawyer not to produce frivolous writ petitions in future.  The decision to fine the lawyer, the first of its kind in Nepali judiciary, had drawn criticism from the lawyers’ community.

Case in Supreme Court on Upper Karnali Hydroelectric Project

I read a news here published by kantipur and for me, this news is deeply annoying and frustrating. I feel that the court must have outrightly rejected the petition citing without merit on the petition. The matter relates to a contract awarded to an Indian Company by the government of Nepal after a competitive bidding process.
As per the news report, the petitioners have claimed in their petition that the contract awarded to the Indian Company is violative of constitution as water, as a natural resources, have been passed to foreign alien without any ratification by the parliament.
The claim of the petitioners is as follows:
B.C. and Rawal moved the court with a Public Interest litigation (PIL), accusing the government of violating Article 156 (1) (2) (D) and (3) of the Interim Constitution while awarding the project to GMR early this year.

They argued that the constitutional provisions require an approval from a two-third majority of the lawmakers in the parliament prior to inking any agreement on natural resources, but the Upper Karnali agreement was signed without meeting the constitutional requirements.

For me, it is simply the abuse of process of law by the petitioners or lack of knowledge of globalised commercial law. What we should understand here is that this is just a commercial contract between government and another party. And, there will be enough safeguards in the contractual agreements between the parties. There are obviously terminating clause in the contract that take care of any such situation when our natural resources are affected. There is no need of making hue and cry and to show nationalistic feelings. We should understand that government has not sold our territory, nor handed over any land/water to the foreigners. It is in plian legal language a lease-in word as well as in substance. There, what is the need of creating obstacles. If we start taking narrow approach, then, it really hampers our development.

“One simple question to petitioners: Are they going to file Public Interest Litigation (PIL) against government for not making dam and not obstructing the flow of rivers which eventually goes to mix in Bay of Bengal? My learned brothers, please look at there, water-our natural resources- is flowing down to south to foreign land and Our Parliament has not passed any such resolution.”

I feel the petion is plainly vague.

The Supreme Court on Friday issued a show cause notice to the government regarding the latter’s agreement with India’s GMR Energy Ltd on the 300 MW Upper Karnali Hydroelectric Project.
Besides, the Supreme Court said that it would hold a discussion on March 7 on whether the implementation of the agreement should be stayed, as demanded by writ petitioners Gorakh Bahadur B.C of Kalikot and Ram Singh Rawal of Surkhet, while summoning the defendants to be present before it on that day.

B.C. and Rawal moved the court with a Public Interest litigation (PIL), accusing the government of violating Article 156 (1) (2) (D) and (3) of the Interim Constitution while awarding the project to GMR early this year.

They argued that the constitutional provisions require an approval from a two-third majority of the lawmakers in the parliament prior to inking any agreement on natural resources, but the Upper Karnali agreement was signed without meeting the constitutional requirements.

Justice Balram KC passed the order after an initial hearing on Friday.

Office of the Prime Minister, Ministry of Water Resources, Ministry of Environment, Science and Technology, Ministry of Finance, Parliamentary Committee on Natural Resources and Means, Parliamentary Finance Committee and Department of Electricity Development have been made defendants in the case.

Need of Rule of Law in Nepal

Posted in Blogging News, From ekantipur.com, Human Rights, Law Enactment, Legal News by nepaleselaw on February 23, 2008
Here is a News Report from Kantipur that says that Donors in Nepal pointed out the need of Rule of Law.
In order to create the right atmosphere for a credible and successful election and to improve public security, all parties must abide by the rule of law and refrain from impeding impartial law enforcement, said the government and donors.
After the deliberations at the two-day Nepal Donor Consultation Meeting that concluded Friday, they issued a joint communiqué agreeing to ensure the urgent discharge – properly supported – of minors from cantonments at the earliest.

They also agreed to pursue discussions on the future of the armed forces in line with the existing agreements.

The communiqué stated that they agreed to ensure government and development partner resources reached the people who needed them the most.

Speaking at the concluding session of the meeting, Finance Minister Dr Ram Sharan Mahat said the government expected that assistance from international aid agencies would not be limited to the usual level but go up significantly.

“Meeting the people’s aspirations in the current transition period and sustaining democracy requires a sound economy. For this to happen, we need international assistance considering the government’s resource constraints,” he added.

The government and its development partners will continue to push forward development of roads by connecting the remaining 12 districts by a road network, the communiqué said.

On the urban front, the development partners will support Nepal to improve roads, water supply and sanitation in 29 small towns.

Regarding education, they pledged to help in the construction of 9,000 new classrooms and the employment of 13,000 new temporary teachers.

The donors and the government both emphasized the need for maintaining macro-economic stability, improving the investment climate, regional integration and accelerated inclusive growth and adapting to climate change.

Throughout this complex transition, they said, they would work together for peace, nation-building and capacity-building of the state institutions for the development of Nepal.

They also agreed that after the CA election, a full Nepal Development Forum would be held when the international community could discuss support in the light of progress with implementation. Speaking at a press conference, World Bank country director Sue Goldmark said they would work to provide tangible benefits to the public by interconnecting peace and development.  Bella Bird, head of DFID Nepal, said peace and development should go hand in hand. “The most important factor in development is implementation,” she added.

At the meeting, donors also expressed concern over the fuel shortage, load-shedding and other economic problems.< POST REPORT

KATHMANDU, FEB 22

In order to create the right atmosphere for a credible and successful election and to improve public security, all parties must abide by the rule of law and refrain from impeding impartial law enforcement, said the government and donors.

After the deliberations at the two-day Nepal Donor Consultation Meeting that concluded Friday, they issued a joint communiqué agreeing to ensure the urgent discharge – properly supported – of minors from cantonments at the earliest.

They also agreed to pursue discussions on the future of the armed forces in line with the existing agreements.

The communiqué stated that they agreed to ensure government and development partner resources reached the people who needed them the most.

Speaking at the concluding session of the meeting, Finance Minister Dr Ram Sharan Mahat said the government expected that assistance from international aid agencies would not be limited to the usual level but go up significantly.

“Meeting the people’s aspirations in the current transition period and sustaining democracy requires a sound economy. For this to happen, we need international assistance considering the government’s resource constraints,” he added.

The government and its development partners will continue to push forward development of roads by connecting the remaining 12 districts by a road network, the communiqué said.

On the urban front, the development partners will support Nepal to improve roads, water supply and sanitation in 29 small towns.

Regarding education, they pledged to help in the construction of 9,000 new classrooms and the employment of 13,000 new temporary teachers.

The donors and the government both emphasized the need for maintaining macro-economic stability, improving the investment climate, regional integration and accelerated inclusive growth and adapting to climate change.

Throughout this complex transition, they said, they would work together for peace, nation-building and capacity-building of the state institutions for the development of Nepal.

They also agreed that after the CA election, a full Nepal Development Forum would be held when the international community could discuss support in the light of progress with implementation. Speaking at a press conference, World Bank country director Sue Goldmark said they would work to provide tangible benefits to the public by interconnecting peace and development.  Bella Bird, head of DFID Nepal, said peace and development should go hand in hand. “The most important factor in development is implementation,” she added.

At the meeting, donors also expressed concern over the fuel shortage, load-shedding and other economic problems.

Again, another report from Kantipur which reports the National Human Rights Commission Report and whose conclusion that there is a gross human rights violation in Nepal.

Unveiling its first report on the human rights situation in the tarai since the start of the ongoing agitation, the National Human Rights Commission (NHRC) said it has documented “gross human rights violations” in eleven troubled tarai districts and has urged the government and concerned parties to ensure people’s basic human rights there.

“People have been deprived of their basis right to life in the districts. What will you call it if not gross human rights violation?” said Yagya Adhikari, chief of the protection division of NHRC, while making public the report at a press meet at NHRC headquarters in Lalitpur.

According to NHRC, the ongoing agitation in tarai has affected daily wage-earners, shopkeepers, educational institutions, industries, transportation and people of all walks of life. Besides, it has seriously curtailed people’s right to free movement and enjoyment of other fundamental rights, Adhikari said.

Adhikari informed journalists at the press conference that two people were killed allegedly by police and 276 injured till date in the course of the ongoing tarai movement.

“The environment is not conducive for human rights defendants to work fearlessly,” said Madhav Gautam, an NHRC officers who visited some troubled districts to prepare the report. The report has documented human rights situation of Bara, Parsa, Rautahat, Sarlahi, Mahottari, Dhanusha, Saptari, Siraha, Morang, Sunsari and Banke.

Even vehicles of the Office of the UN High Commissioner for Human Rights (OHCHR) and United Nations Mission in Nepal (UNMIN) have been targeted by demonstrators in some places, according to the report. “NHRC condemns the attacks,” said NHRC Chairman Kedar Nath Upadhyay.

Upadhyay further said the national human rights watchdog was concerned by the current crisis of petroleum products and daily consumer goods.

NHRC, in its report, added that security situation in the tarai districts has improved comparatively after the deployment of Special Task Force. “But we have found excessive use of force by the Task Force in some places,” said Gauri Pradhan, a member of NHRC.

In the meantime, NHRC has urged agitating political parties not to use children in their protest programs, while accusing them of forcing minors to participate in their programs.

UNMIN stresses on impartial law enforcement

Kantipur reports here that UNMIN has stressed on the impartial law enforcement. The news is slightly long and You can read it here:
Ian Martin, chief of United Nations Mission in Nepal (UNMIN), has expressed his view about the ongoing preparations for the Constituent Assembly (CA) polls slated for April 10 and stated his concern to establish impartial law enforcement across the country. He also suggested six high priority areas for the credibility of the CA polls, reiterated UN’s commitment to ‘assist’ the country in creating a favourable environment for the polls and expressed his support for economic and social change for a democratic transition of Nepal.
UNMIN chief Martin in a statement at the Nepal Donor Consultation Meeting at the Ministry of Finance Thursday expressed concern of the international community for the success of the ongoing peace process.

“On each occasion when I go to United Nations Headquarters to report to the Security Council on the progress of Nepal’s peace process and the support to it of the UN, I am reminded what a strong and unanimous consensus there is within the international community wanting to see this peace process succeed,” he said, “It’s not a secret that in some conflict and post-conflict situations the international community itself is divided, but Nepal only has friends, and its friends are united in support of its transition.  The world was deeply impressed with the speed with which a Nepalese peace process, a process not mediated by any third party, moved forward in 2006 to end a ten-year armed conflict: the international community wanted, and wants, to support it to the utmost.”

However, he also stated the reasons for the current conflict in view between the ruling parties, concerns over the impartial enforcement of law across the country and the challenge of transforming an armed movement into a political one.

Martin said, “No peace process has ever moved forward smoothly without setbacks, and it would have been naïve in the extreme to expect that this could be the case in Nepal.  In the discussions which led to the 23-point agreement the parties were frank in acknowledging weaknesses of implementation.  Deadlines set within the process were often unrealistic, and failures to fulfill commitments opened up mistrust between parties.  It has not been easy for a coalition government to take decisions with consensus across seven parties.  A formula has not been found for agreement on re-establishing multiparty local government bodies.”

“It is a major challenge to establish impartial law enforcement across a country which has been torn by conflict.  An armed movement is not instantly transformed into a political party operating according to the norms of a democratic multi-party framework.  And one of the most difficult issues at the end of any armed conflict is how to reach and implement decisions about the future of the combatants,” he added.

“And as if those challenges were not daunting enough, Nepal’s peace process has faced the further challenge of the demand of traditionally marginalised groups that long-standing discrimination should be urgently addressed, and in particular that they must be  fairly represented in the Constituent Assembly which is to shape the future of this highly diverse country, as well as to provide the basis for a government with the broad legitimacy necessary to address the challenges of peace and development,” said Martin stressing the need for the fair inclusion of marginalised groups in the CA polls.

Stressing on the need of social change to go along with political transformation, he said “When these political challenges have presented so many issues requiring short-term management, it is also not easy to maintain the focus on issues of poverty, of service delivery and of long-term development.  These are not UNMIN’s mandate, but they are very much the concern of the UN system as a whole, and I echo all that has been said about the integral relationship between peace and development.  Attention to development is part of the peace process.  A central commitment of the Comprehensive Peace Accord is to adopt a ‘common development concept for economic and social transformation and justice’, as well as to carry out an inclusive democratic and progressive restructuring of the state to address discrimination against marginalized groups.”

He also reiterated UN’s police to only ‘assist’ Nepal in establishing a democratic framework in the country. “The core commitment of the peace process is to provide a democratic framework to address these issues through the election of an inclusive Constituent Assembly, and the core role requested of the United Nations is to ‘assist’ in creating a free, fair climate for that election.  I stress the word ‘assist’, because like everything else in this process success depends on the Nepalese actors themselves, and we are at a critical moment, with the lists of candidates filed yesterday at the same time as important negotiations with Madhesi parties are continuing, and the situation in many parts of the Terai is extremely tense.,” said the UNMIN chief during the meeting.

He also suggested six areas of high priority for the credibility of the upcoming CA polls.

He stressed on the need of a conclusive talks with the agitating Madhesi parties and the need for persuasion of other marginalised groups to go forward with the polls for their concerns to be addressed.

“First, we all hope that the current dialogue with Madhesi parties is successful today or in the very near future, but even if it is, this will by no means be the end of the need for dialogue with marginalized groups, to persuade them despite their reservations that this Constituent Assembly election should go forward and can provide the framework for their concerns to be addressed,” said Martin.

Expressing the dire need for all political parties to respect each other’s election campaigns, he said, “Second, all the parties that are to contest the election should recommit themselves to respect each other’s right to campaign wherever they choose, observing fully this commitment made in successive agreements and required by the Election Code of Conduct.  This can be greatly assisted by independent monitoring, and I urge again the immediate implementation of the commitment to create an independent national monitoring body, which the United Nations will assist with its information.  The government has invited international observers, including the United Nations Electoral Experts Monitoring Team appointed by the Secretary-General: all parties must understand that international observers will speak out against intimidation and irregularities.”

Martin also asked the Seven Party Alliance to work collectively at the national and local level for the management of the peace process. “Third, the Seven-Party Alliance must maintain collective management of the peace process, working together at national and local level, despite the strain which political competition will exert on their cooperation.  They have already formed a High Level Coordination Committee for this purpose, and the Peace Commission is an important further commitment to such collective management.  The formation of new peace process bodies is an opportunity for belated fulfillment of the commitment to include proper representation of women, as well as for a more effective partnership with civil society,” he said.

He pointed out the need for responsible implementation of the commitments to the combatants in the meeting.

Martin said, “Fourth, the commitments in relation to combatants must be implemented responsibly.  The United Nations has long been making preparations to assist with the discharge of minors and others disqualified by UNMIN’s verification:  we urgently need a framework of practical cooperation with the government and the Maoist army for this to be implemented effectively.  It is a fundamental commitment that began with the 12-point Understanding that the two armies must stay out of the electoral process, and UNMIN’s arms monitoring will seek to ensure this.  But those who remain in the cantonments must see that their future is being considered in accordance with the Comprehensive Peace Accord commitments to a special committee for this purpose, recently reconstituted, and to an action plan for democratization of the Nepalese Army.”

Martin said that the fate of the victims of the decade long armed conflict should be publicised.

“Fifth, victims of the armed conflict must not be forgotten amid the electoral preparations, whether they are families whose loved ones were killed or disappeared, or displaced persons whose property should be returned.  I believe that development partners are willing to help fulfill commitments to compensation, but victims require not only compensation but truth about the fate of their loved ones.  And justice for violations of human rights is not only a need of victims, but also of a society which needs to assure future security by ending impunity,’ said the UNMIN chief.

Lastly, martin pointed out the need for public security, not only for the CA polls, but also in the daily lives of the general public.

“Sixth, public security is essential not just for a credible election, but for the people of Nepal to carry on their daily lives and build a better future for themselves and their children.  This requires effective policing, but it is not a task for police alone:  it requires cooperation of all democratic forces at the local level, supporting and not impeding impartial law enforcement as well as promoting service delivery,” he said.

Martin also said that the UN would refrain form assisting a future imposed by undemocratic means and was just ‘assisting’ in the runup to the polls so that it could be conducted in a fair manner. He expressed his support  for the Comprehensive Peace accord and a democratic transition to economic and social change in an inclusive Nepal.

Human Rights issues in Nepal

This news is taken from Nepalnews and you can access it here. The post says that while enacting any law, for example:Truth and Reconciliation Commission, the human rights issue should be the central focus and primary issue on the agenda.

The International Commission of Jurists (ICJ) has urged the Nepal government to ensure that laws related to a Truth and Reconciliation Commission and a Disappearances Commission are adopted through regular democratic legislative processes and are not adopted by ordinance. The ICJ also reiterated that adoption of such legislation should follow broad based national consultation and should meet Nepal’s human rights obligations.

“In a democratic country, legislation of national importance should only be adopted following public debate, including by the country’s legislature”, said the ICJ in a release issued on Wednesday.

“The introduction of laws related to a Truth and Reconciliation Commission and a Disappearances Commission via ordinance violates Nepal’s Supreme Court directives and the Interim Parliament’s instructions.”

While the ICJ welcomed steps taken by the government to begin consultation with civil society, including victims, it however expressed concern that “the consultation process has been insufficient in several areas including: the range and depth of issues discussed, the broadness of participation in the consultations, and the number and the geographical location of consultations.”

“To ensure national legitimacy legislation establishing transitional justice mechanisms requires broad based national consultation with all stake holders, particularly victims of the conflict and their families, during the drafting process”, the ICJ said, adding, “To combat the culture of impunity in Nepal it will be essential that the legislation addresses past gross violation of international human rights and humanitarian law including crimes against humanity and that the Commission has the necessary powers to recommend that Nepal’s criminal justice system bring the perpetrators identified by the Commissions to justice.”

On the same point, Kiran Chapagain, famous for reporting legal issues, writes in Kantipur that Truth and Reconciliation Commission Bill is being enacted soon. You can read the news here in Kantipur.

The government is making preparations to introduce through ordinance an anti-disappearance law and a commission on disappearances, something not desired by national and international human rights organizations.According to a highly-placed government source, a draft prepared by the Home Ministry after the December 7, 2007 agreement among the seven parties was recently sent to the Ministry of Peace and Reconstruction and the Ministry of Law, Justice and Parliamentary Affairs for their reactions.

A draft of the ordinance obtained by the Post proposes a five-member commission on enforced disappearances but does not treat the act of disappearance as a crime. This means that the proposed draft ordinance does not fully comply with the June 1, 2007 Supreme Court ruling.

In a landmark verdict then on enforced disappearances, the apex court had issued strictures to the government requiring an act of disappearance to be

treated as a crime under any proposed anti-disappearance law.

“If such a law emphasizes only the investigation and does not treat the act of disappearance as a crime, it is useless,” said advocate Govinda Bandi, a member of the Detainee Probe Committee which was formed by the Supreme Court and which had helped the court to pass the June 1 verdict.

This is the fourth time the government has prepared the draft of an anti-disappearance law. Earlier efforts aborted after vehement criticism from both national and international human rights organizations.

The present move also has evoked concern at international human rights organizations like the International Commission of Jurists (ICJ), an organization working for justice and human rights.

In a statement issued from Geneva, ICJ urged the government Wednesday not to introduce through ordinance any law relating to a Disappearance Commission or a Truth and Reconciliation Commission.

“…a Truth and Reconciliation Commission and a Disappearances Commission are adopted through regular democratic legislative processes and are not adopted by ordinance,” ICJ said in the statement.

Besides, it has suggested the government adopt such legislation following broad-based national consultations and after meeting Nepal’s rights obligations.

ICJ further added that introduction of such laws via ordinance violates the Supreme Court’s directives and the Interim Parliament’s instructions.

The parliament, a couple of months ago, instructed Home Minister Krishna Sitoula to introduce the legislation only after holding extensive consultations.

When asked to comment on the government’s latest move to introduce anti-disappearance law, a senior Home Ministry official who preferred anonymity simply said, “We prepared the ordinance as per the agreement of the seven parties.”

Human Rights and Rule of Law

I found two news in Nepalnews. When the country is passing through a grave crisis and possibly the worst conflict scenario, both the topics, I have presented have relevance. The Human Rights is an indispensable concept practiced by “civilized nations” today in the world and Rule of Law assumes signifiance everywhere as the days of tyrants and despots are over. In the rule of person based on their whims, caprices and sweet will, they can do anything they wish. They are not responsible for anything they do and accountability is a foreign word for them. But, when we talk about Rule of law, then,  justice, fairness and equity (the trinity of rule of law) always assumes great signifinace. Both the news below stress on this point-Respect of Human Rights and Rule of Law. The news are based on Reporting of Nepalnews and can be read here and there.

The International Commission of Jurists (ICJ) has drawn attention to the failings of the Maoist “justice system” as it operated during the conflict period and urged the Nepali authorities to address pressing public security concerns and many rule of law issues that have arisen after the parallel system stopped functioning.

“The lack of clarity in the Comprehensive Peace Agreement (CPA) as to which mechanisms were to be put in place to ensure the full implementation of the provisions on dissolving parallel systems has been a major obstacle to bring justice to those people whose cases were pending before Maoist “people’s courts” or who had been victimized under the Maoist system”, said the ICJ in a report published Tuesday.

The Commission further said that even though more than a year has passed since the CPA directed there should be no parallel structures, “no mechanisms or procedures have been put in place to ensure the many cases affected by the functioning of the ‘people’s courts’ are resolved.”

The ICJ report also highlighted mediation as a useful tool to help settle disputes, insisting that all existing and any future systems of mediation should comply with international human rights standards with minimum guarantees for the protection of members of vulnerable groups such as women and dalits.

“Despite obstacles in the process leading to Constituent Assembly elections and a new constitutional framework, it is vital that the rule of law is strengthened at the earliest opportunity. To do that the Government must implement measures in the short-term to provide justice and redress for people affected by the justice vacuum during the conflict,” the ICJ said, adding that particular attention should also be given to the restoration of the rule of law in the Tarai region where the police remain largely absent in rural areas and the work of the courts is often disrupted due to threats to civil servants, including court officials and public prosecutors.

The ICJ is an international non-governmental organisation comprising sixty of the world’s most eminent jurists and has a worldwide network of national sections and affiliated organisations.

Human rights activists and politicians have stressed the need to hold the constituent assembly election to end the culture of impunity, human rights violations and maintain rule of law.

Speaking at a function organised by Informal Sector Service Centre (INSEC), Speaker Subash Nemwang said that a democratic society must be governed by rule of law and urged the agitating groups to allow the proposed state restructuring commission and the constituent assembly to decide on federalism and issue of self-determination.

Political analyst Nilambar Acharya said the state is currently ruled by the seven political parties and not by the laws because of which anarchy, impunity and lawlessness is become rampant.

Human rights activist Shushil Pyakurel and Krishna Pahadi criticised Prime Minister Girija Prasad Koirala for giving negative statement at a time when there is a need to resolve the problems through dialogue.

Pyakurel urged restraint on part of the Madhesi leaders to protect the achievements of last year’s Terai movement and make sure that reactionaries do not infiltrate into their agitation to turn it violent.

Pahadi stressed the need to end politics of ethnicity, religion and regionalism and suggested the parties to work for restoring peace and stability in the country.

President of the National Federation of Indigenous Nationalities (NFIN) Pasang Sherpa asked the government not to make violence as the basis to invite agitating groups for talks.

Special Court gives fractured verdict on governor’s case

As You know that We are constantly following this case in our blog-This is the case relating to corruption charges against NRB Governor.

Nepalnews today reports here that a verdict has been awarded by Special Court but the verdict seems to be an incomplete one and the case will be further decided by Supreme Court in Nepal.

The protracted case against the governor of Nepal Rastra Bank (NRB) Bijaya Nath Bhattarai witnessed a new twist on Sunday with three of the presiding judges of the Special Court (SC) giving three different verdicts on a case of corruption they were hearing in the court against him.

Consequently, the matter will now be heard in the apex court.

On Friday, the three-member Special Court bench had heard the case the whole day. They delivered the fractured verdict just after office hours in the evening.

The chief judge of the Special Court Bhoop Dhoj Adhikary concluded that the case did not have enough strength and suggested the accused be given a clean chit. A judge of the court, Komal Nath Sharma pointed at the need for further evidence to proceed with the case while the third judge, Cholendra SJB Rana saw enough evidence to sentence him as guilty.

The divided verdict was informed to the press by sub-registrar of the Special Court, Ritendra Thapa.

The case against governor Bhattarai, who remains suspended since last seven months after the Commission for Investigation of Abuse of Authority (CIAA) slapped him with charges of financial irregularities, has attracted even the attention of donors with some of them publicly expressing disenchantment over the delay in settling of such a ‘sensitive case involving the governor of the central bank.’

The Special Court had been deferring delivering its verdict on the case on various grounds for the last many months.
Along with Bhattarai, a director of NRB Surendra Pradhan is also facing charges of irregularities worth nearly Rs 20 million in a financial sector reform programme.

Governor’s case decision deferred, yet again

In this Blog, We are constantly updating any development that takes place about this case-the corruption case against NRB Governor Bijayanath Bhattarai. You can see here for earlier developments. Nepalnews here reports the latest development on this case.

The Special Court, on Friday, repeated the scene seen seven times before.

It deferred the decision on the case against governor of Nepal Rastra Bank (NRB) Bijaya Nath Bhattarai citing lack of time.

The case of suspended governor of the central bank has been deferred till Sunday (February 17).

Bhattarai and a director of Nepal Rastra Bank (NRB) Surendra Pradhan are facing charges of irregularities worth nearly Rs 20 million in a financial sector reform programme.

The Commission for Investigation of Abuse of Authority (CIAA) had slapped the charges against the duo seven months ago.

The donors have expressed concern over the lingering and delay in the settlement of the case against the governor of the central bank.

Few Questions about PIL and SC Judgement

Few days ago, I had reported you a News on fine imposed on a lawyer by Supreme Court of Nepal for filing frivolous Public Interest Litigation (PIL). The judgment as reported in the media is a first of its kind in the legal history of Nepal. Today, in this article, I am trying to sum up what is PIL and how it works and some comments about the reported judgement.

PIL is a new concept in common law countries where the matter could be raised in court by only such person who has locus standi. The term locus standi is a Latin maxim and means “the right of a litigant to act or be heard”. It is a very important principle in the legal procedure and only those people who have been affected by alleged violation of law or right can raise the issue before a court. This is commonly accepted principle all over the world, otherwise, any person starts filing any case which he wishes and the whole process of justice delivery becomes redundant as judiciary, simply, will not be able to hear all such cases.

In developing country like India and Nepal, the concept of PIL has deviated from the old principle of locus standi. The credit to expand this principle mainly goes to Indian Judiciary in the decade of late 70s and 80s. The learned justices of Supreme Court of India felt that there are millions of masses who are uneducated and illiterate in India. These are the people who are simply ignorant of the process of law and justice delivery mechanisms prevalent in the country. In such a situation, they felt, the rigorous and stringent principle of law like concept of locus standi at all times will act as a deterrent of justice. So, they created the new concept of PIL (Public Interest Litigation) where any member of public can raise any issue before a court of law in case the alleged omission or acts of executives violates any fundamental rights of general public.

Justice P.N. Bhagwati of Indian Supreme Court, in the following words in the case of People’s Union for Democratic Rights vs. Union of India held,

Public interest litigation is brought before the court not for the purpose of enforcing the right of one individual against another as happens in the case of ordinary litigation, but it is intended to promote and vindicate [the] public interest which demands that violations of constitutional or legal rights of large number[s] of people who are poor, ignorant or in a socially or economically backward position should not go unnoticed and unredressed. No state has the right to tell its citizens that because a large number of cases of the rich are pending in our courts we will not help the poor to come to the courts for seeking justice until the staggering load of cases of people who can afford rich lawyers is disposed off.

That was a very bold attempt and any member-he can be general public, advocate, NGO, member of civil society, journalist, and legal researcher etc- can take the matter to Supreme Court and High Court acting in pro bono publico. There are plenty of Indian Cases where the weapon of PIL has been used to reform criminal justice, to guarantee fundamental rights, to secure humane living conditions, to reduce violence and sexual harassment etc.

So, PIL is a kind of tool to safeguard the rights of people which has been guaranteed by our constitution and can be used for enforcing the Fundamental Right, even of the common layman.

But, virtue and vices; merits and demerits are part of any system and process, and now, people are using PIL for fulfilling their personal gain, and for advancing their publicity and reputation.

The same situation is prevalent in Nepal as well. Nepalese Judiciary has also liberalized its stance on locus standi and unscrupulous elements are taking advantage of that. These days, the courts have to waste a lot of its precious time by dealing/disposing these frivolous PIL. And that is the reason Supreme Court of Nepal imposed monetary penalty on one of such advocates.

If we see Indian scenario, the trend of imposing penalty on such publicity oriented advocate is not new and time and again, the SC of India has imposed monetary penalty on the person who has filed such frivolous petition. Other Indian High Courts have followed the suit to impose find on petitioner though imprisonment to guilty has not been heard yet.

As reported in this website recently, the Supreme Court of India has tried to crack the whip on rising ‘frivolous’ and ‘bogus’ PIL where the SC said time has come for slapping a penalty of Rs. one lakh (In our Nepalese case, Rs. 5 was the penalty) to deter these litigants. The SC of India observed that these bogus petitions have become a ‘nuisance to the court.’

Let us see some of the observations of the Indian Supreme Court below:

“Litigation by way of PIL has become a “brahmashtra” and on all issues PILs are being filed consuming the judicial time needed for regular matters and the situation warranted a tough decision.”

PIL is no longer public interest litigation but has taken a shape of “private interest litigation, publicity interest litigation or paisa income litigation.”

“Public Interest Litigation (PIL) was for weaker section of society those who do not have money. However, it has become nuisance.”

One of the justices on the Bench, Justice Katju said,

“Time has come to curb the practice by imposing huge cost (Take note of this! Huge Cost) on petitioners for filing frivolous petitions which defeated the purpose for which it was evolved. There is a need for strict action otherwise people will not understand. Unless and until we impose penalty of Rs one lakh people will not stop filing frivolous PILs.”

These abovementioned remarks came during the hearing of a bunch of PILs seeking guidelines on premature release of convicts serving life sentence in various jails across the country.

But, bona fide litigants of our country have nothing to fear as the judgement in Nepal and India tries to deter only those whose motive is otherwise than serving public at large.

Now, let us go back to our Nepalese judgement.

The court said the decision to slap the fine on advocate Dhananjaya Khanal was taken on Wednesday to discourage those lawyers who bring PILs before it just for the sake of publicity. It further said that such litigations were wasting the court’s valuable time.

It is absolutely correct what the court has said. No one shall have any right to take the advantage of law in such a way that results an abuse of process of law. If SC has to spend a lot of its time on hearing these bogus petitions, genuine cases that are pending in SC can not be disposed in time. Our Judiciary is already overburdened and these kinds of petitions add the woe on common public.

Advocate Khanal had moved the court with a PIL seeking a court order on the government to give him all documents and treaties pertaining to bilateral relations between Nepal and India.

According to the court, Khanal did not specify what exactly he wanted when he sought such documents and treaties from the concerned government agencies.

Now, it is the duty of Advocate to prove that he is filing the petition for greater public interest and public at large will be benefited if SC passes the order as asked in the plaint. But, I doubt if that was the real motive of Advocate in the given case to serve the countrymen. I really wonder and get puzzled what greater service to the nation can be there if order was passed in favour of petitioner, i.e. a court order on the government to give him all documents and treaties pertaining to bilateral relations between Nepal and India.

So, it was a very valid case where an erring advocate has been penalized. At the time when Indian Courts are imposing fine to the amount of Lakh, the mere Rs. 5 as fine is of course, less than sufficient but it must have sent a clear signal to all those who were thinking to stifle the normal process of justice.

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And Below mentioned are some of the links of Media which reports about various Supreme Court and High Court Judgements from India where these courts imposed fine on persons filing frivolous and vexatious petitions. One of the news shows that Rs. 5, 000 was the penalty imposed by Karnataka High Court long way back in 2002.

Links:

 

http://www.hinduonnet.com/2002/06/01/stories/2002060103860400.htm

http://www.hinduonnet.com/2004/03/15/stories/2004031502971500.htm

http://www.hinduonnet.com/2005/02/11/stories/2005021115710300.htm

http://www.hindu.com/2006/04/12/stories/2006041225550400.htm

http://www.hinduonnet.com/2004/03/15/stories/2004031502971500.htm

http://www.tribuneindia.com/2007/20071003/nation.htm