Legal Development in Nepal

A New Post

Posted in Economic News, Recent News by nepaleselaw on April 18, 2008

From Many Days, this blog has not been updated because of many reasons. The main one was because of Constituent Assembly Election in Nepal. My eyes were glued to Internet and hours and hours I spent there updating myself from various websites.

This is a special blog and each and every news do not find place here. A special kind of News-that is news related to law and legal order will be covered. It seems that these days, nothing much is happening in court as well as I am not able to get any new legal story. Parliament is not there and no bill is discussed before New Parliament of CA is convened. Let’s watch that something good happens now onwards. In this blog entry, I have posted a blog related to Nepalese Economy.

Since Communist Party of Nepal (Maoists) have won this time. Their victory is overwhelming and very stunning and surprising. If everything goes well, they will be heading next government. So, there was kind of fear among the investors regarding the Nepalese Economy.

In this news, Comrade Prachanda speaks about what kind of Economy Maoist will push in future.

Stock market has been crashed and business circle is confused. As the news of Maoist victory in the polls come out, the Maoist leadership is trying hard to assure the business community that they are here for capitalism.

For the CPN Maoist, the victorious party in the April 10 CA polls, the campaign hasn’t ended just yet. The party leadership is in full swing to convince the national forces, business world and the international community- at the same time- that they are not radical communist and there will be no cultural revolution in Nepal. Mao has died a long time ago. It seems that the Prachandapath (the path of Prachanda), an ideology propagated by Chairman Prachanda, tells them to have a very good relationship with ‘expansionist’ India and ‘imperialist’ America. Capitalism, they try to convince, is their mantra too. Prachanda says they are for the economy in which capitalists can have profit. Prachanda also says that there will not be a dictatorship of the proletariat. In his address to the business leaders in Kathmandu today the Maoist Chairman announced that the power will not be used tyrannically, reports Kantipur, but in the welfare of the people and the country.

Pointing to the decade-long political revolution and Janaandolan-II as examples of miracles, Maoist supremo Prachanda said an economic revolution is going to be the next miracle. “People will see that as soon as we form the government,” he said. “We will create the buzz of economic reconstruction in every place, every household, and in everyone’s mouth.”

The Maoist Chairman said that his government will adopt the “new transitional economic system” for economic growth stating political development is intertwined with the economy. Pointing to the decade-long political revolution and Janaandolan-II as examples of miracles, Maoist supremo Prachanda said an economic revolution is going to be the next miracle. “People will see that as soon as we form the government,” he said. “We will create the buzz of economic reconstruction in every place, every household, and in everyone’s mouth.”

Prachanda also appealed to the private sector to trust them fully and give them a chance. Elaborating on plans to create a conducive economic environment, he said the government will expand the tax base, eliminate red tape, and end the culture of commissions and corruption. “We will set up an Industrial Security Force in the process of integrating the People’s Liberation Army with the Nepal Army to provide security for industries,” he said.

In response to industrialists’ request to sort out labor disputes, he said they are ready to take necessary and proper steps. “We will welcome foreign investment, and give priority to domestic investment,” he said. Noting that both donors and foreign countries are ready to support the Maoist government, he said he found India ready to take bilateral relations to a new level. “A new ground has been established to make India a part of the cooperation,” he said. He further stressed on new policy for tax system.

In its manifesto for the Constituent Assembly, the former rebels had forwarded a new transitional economic policy with medium level development in the next 10 years, high level growth in 20 years and ultra-high level development in the country in 40 years.

Speaking at the same programme, Maoist second-in-command Dr Babu Ram Bhattarai assured that the government led by the Maoists will move ahead with the Public Private Partnership (PPP) theory.

In fact, I wanted to put the exact story from Some newspaper but I am unable to find it now. I have put some portion of blog from United We Blog. I hope that U enjoy it reading and can dispel some fears if you have in your mind regarding future economy of Nepal. To read United We Blog’s complete Article, You may visit here.

[And here is a little Update: Indian Newspaper these days, are full of news about Nepal. Some say that India gifted Nepal to China and some express their doubts. There are debates going among policy makers and experts. This is a link of Debate in THE ECONOMIC TIMES about emergence of New Nepal.]

Governor Convicted!!!!

Nepalnews reports this recent development here that fomer Nepal Rashtra Bank Governor has been found guilty of financial irregularities by Supreme Court of Nepal and punishment has been imposed on him. We were tracking this news constantly and you can read rest of the stories here. I have no comment on this news as I am not able to read the text of judgments but express my solidarity withdreams of corruption free society. And this is the end of constant following on this corruption case as I have decided to be a bit selective while publishing blog. This issue has been touched in my next entry.

The Supreme Court (SC), Tuesday, decided that governor of Nepal Rastra Bank (NRB) Bijaya Nath Bhattarai and director Surendra Pradhan are guilty of irregularities.

The single bench of judge Tahir Ali Ansari decided that they are guilty of irregularities worth Rs 3.3 million since they did not initiate steps to obtain compensation from a consulting firm after terminating contract with them in a financial sector reforms programme.

The SC decided that the two should be fined the same amount as penalty.

The Commission for Investigation of Abuse of Authority (CIAA) had filed a case against the two for committing irregularities worth around Rs 20 million.

Since the CIAA filed the case against them eight months ago, the two had remained suspended.

Last month, the Special Court had delivered a fractured verdict on the case – with each of the three judges giving different opinions regarding their guilt. Consequently, the case had been referred to the apex court.

SC Clears Path for Upper Karnali Project

This is a news that we were waiting from Supreme Court of Nepal for some days. Though the matter has not been disposed fully, SC of Nepal has refused to give interim stay on the agreement signed by Government of Nepal and a private Indian Company GMR Energy of India. The News is reported here by Kanunisanchar.

I, nowonwards, generally rest my news on this site-Kanunisanchar.com as it collects most of the news as soon as it is pronounced.

If You remember, in this blog post, I had expressed my annoyance in a way PIL was filed as in my opinion, the petitioners are not able to make any such case and had demanded (in the sense expected that) SC must reject the petition for lack of merits. We need to wait and see what SC has to say on its final pronouncement. And it is expected that whatever will be the outcome of the case, it will be surely landmark in the annals of Foreign Investment related laws and constitutional validity of such laws in ‘New Nepal’.

In my earlier blog post, I had posed a question to the petitioners formulated in this way as mentioned below and I still believe that the question is still a valid one to find a simple answer for this case.

 “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.”

You can read the Supreme Court report here and is reproduced below:

Refusing to issue a stay order in the Upper Karnali Hydropower Project case, the Supreme Court on Thursday permitted the government to go ahead with the implementation of the understanding reached with Hyderabad-based GMR Energy Limited on the 300-MW power project.

A division bench of Chief Justice Kedar Prasad Giri and Justice Ram Kumar Prasad Shah refused to issue a stay order, and said the constitutional and legal questions raised by the petitioners will be settled by the court while delivering a final verdict on the case.
“The question whether the understanding needed a parliamentary approval or not will be decided while delivering the final verdict,” the bench stated.

The bench said: “Though the water flowing in a river is a natural resource, further discussion is required to decide on whether electricity generated from it is a natural resource or not, and whether an MoU signed with any national, international or joint venture company is a treaty or not.”

Advocates Bal Krishna Neupane, Borna Bahadur Karki, Tika Ram Bhattarai, Bhimarjun Acharya and Kamal Nayan Panta pleaded on behalf of the petitioners while Attorney General Yagya Murti Banjade and Deputy Attorney General Narendra Prasad Pathak defended the government.

Advocates Bharat Raj Upreti, Sushil Kumar Pant, Anil Kumar Sinha and Amarjivi Ghimire pleaded on behalf of the GMR Energy Limited.
Gorakha Bahadur BC of Kalikot and Ram Singh Rawal of Surkhet had jointly challenged the understanding reached between the government and the GMR Energy Limited to generate 300-MW hydropower from the Karnali River.

The counsels of the petitioners claimed that the signing of the agreement between the government and the GMR limited was unconstitutional. They also claimed that it was treaty related to sharing of a natural resource, and that the government violated the constitution by not seeking a parliamentary approval for it. The constitution says any treaty related to sharing of natural resources must be approved by a two-thirds majority of the parliament.

The government however claimed that the MoU was not related to sharing of natural resources and it did not need a parliamentary approval.

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.

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.

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.

Corruption Case of NRB Governor

In this post, in our earlier blog post, We had written that we will be updating you with the recent development on this case- case related to Governor Bijaya Nath Bhattarai as this case assumes a great significance among public. Here is a report published in Kantipur about the authenticity of letters presented by CIAA. If this is true, I think, the case is weak one and seems to tilt in favour of the accused.

KPMG official was never in Nepal for RB deal

KPMG, a Sri Lanka-based consulting firm dragged into the corruption case against Nepal Rastra Bank Governor, has finally replied to the Special Court, saying that it did not authorize A.N. Fernando to sign a consulting agreement with the central bank on February 6, 2006.Fernando is currently at the center of the controversy that has surrounded the case after the court raised doubts about the authenticity of the agreement bearing his signature. The court has not been able to finalize the case against Governor Bijaya Nath Bhattarai because of the questionable nature of the document.

“Mr. A. N. Fernando who was supposed to have signed said agreement with the Central Bank of Nepal on behalf of our firm has never been to Nepal and the signature appearing on page 3 of the agreement sent by you is not his signature,” KPMG said in a reply sent to the court on Monday.

KPMG was replying to a court letter sent on January 16. The court has asked the firm to clarify the authenticity of the document.

The question of the authenticity of the document arose after lawyers for Governor Bhattarai doubted the authenticity of a letter dated June 18, 2007. In the letter sent to Ranjan Krishna Aryal, investigation officer of the Commission for the Investigation of Abuse of Authority (CIAA), KPMG said the signature appearing on the agreement was not Fernando’s.

Like the lawyers for the CIAA and those for the Governor, the judges of the court have also remained divided over the documents. Chairman of the court Bhoop Dhoj Adhikari has maintained that there was no need to verify the authenticity of the documents to pass a verdict in the case. However, two other members of the courts, Komal Nath Sharma and Cholendra SJB Rana, have been seeking to verify the authenticity of the documents. As the members are in a majority, their stance is prevailing.

The court is holding yet another hearing in the case on February 15.

Supreme Court Decision on MP’s Funds

Nepalnews reports here that Supreme Court has stayed the release of 1 Million Rs. to each MP before CA Election. The Report can be read here. But, I did not really understood the logic of SC. Nepalnews Reports that the two judge bench of SC held that the decision of SC is unconstitutional. But, why? on what Constitutional grounds? I wish someone will elaborate on this point.

SC quashes govt decision to give Rs 1 million to MPs

The Supreme Court on Wednesday quashed the government’s decision to provide each member of the interim parliament with Rs 1 million for development works in their constituencies.

A bench of justices Anup Raj Sharma and Kalyan Kumar Shrestha made the ruling, asking the government to put on hold the distribution of the money.

A group of lawyers had filed a writ petition challenging the decision to allocate Rs 1 million to MPs under the constituency development programme.

Describing the government’s decision as unconstitutional, the lawyers had argued that the money could be misused during the constituent assembly election.

On Monday, the seven-party Steering Committee had decided to halt the distribution of the money to the MPs until the polls.

Kantipur has also reported the news here. The report of the Kantipur is slightly elaborate and it says that the SC held so on the ground that implementation of the fund would breach the interim constitution as there is no such provision in the statute, and that the lawmakers also do not have specific electoral constituencies.

Terming as “unconstitutional” government’s controversial plan to distribute Rs 1 million to each members of the interim parliament for the constituency development programme, the Supreme Court Wednesday issued an interim order asking the government to immediately put on hold its programme.A division bench of justices Anup Raj Sharma and Kalyan Kumar Shrestha stated that implementation of the fund would breach the interim constitution as there is no such provision in the statute, and that the lawmakers also do not have specific electoral constituencies.

The apex court interim order further states that the fund could also influence the April 10 Constituent Assembly elections.

A group of 11 advocates had filed a writ petition against the programme a few days back.

However, it may be noted that a meeting of the steering committee of the ruling seven-party alliance had on Monday decided to stall the programme till the CA elections take place in the face of mounting criticism from the international community, the Election Commission and the Madhesi agitators.

On Sunday, the Election Commission had also asked the government put off the programme, concluding that it could influence the crucial vote.

contempt of court

Here is the report by Kiran Chapagain of Kantipur about Supreme Court’s verdict on contempt of court. I am planning to write a small article on this point and we feel that the SC has done a good thing to keep its image clean and not to lose confidence among people. The attempts to tarnish the image of Court is completely unacceptable and such elements must be prosecuted and given appropriate penalty. It will be good when SC starts punishing court officials and staffs involved in corruption as that also keeps the judiciary’s image very clean.

The Supreme Court (SC) on Sunday convicted 17 people on contempt of court charge and slapped three months of imprisonment and Rs 1,000 in fine against them.

The convicts were arrested from the Supreme Court premises on January 17 after they chanted slogans against judges inside the court chamber where a hearing on the case relating to Chamati Land Project was on progress.

“The act of the accused did contempt not only to this bench but also to the independent judiciary of Nepal,” Justices Bal Ram KC and Tap Bahadur Magar said while announcing the punishment.

The Justices ruled that though the jail term for the convicts is three months, two months of the term has been suspended, and won’t be enforced if the convicts show good behavior. The judges said that they would have to serve the term in two installments.

“They be released after 15 days since their arrest. They be then summoned to be present before the court on the 75th day since their arrest. Then they will again be sent to the jail to serve the remaining 15 days of imprisonment. They be sent to the jail for three months if they do not present themselves before the court [on the 75th day],” the judges ordered.

The order means that the convicts will be released after four days (Thursday) since they have already served 11 days in detention.

The court took such a step against the people though they pleaded innocence before the court. The court, however, refuted their plea.

While handing down the verdict, the court also said that no one has the leverage of doing contempt to the judiciary either by writing, speaking or by any means.

“Any act that spreads falsehood against this court is considered criminal contempt,” the bench ruled.

Legal experts said this is the first time the court has found such a large number of people guilty of contempt of court at one time.