Legal Development in 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.

Pakistani Lawyer Moves to Supreme Court of Nepal

A little disturbing news, if the contentions of the counsels are proved to be true, has been published by Nepalnews here.
A Pakistani lawyer has moved the Supreme Court (SC) in Nepal against what he called illegal arrest of two Pakistani citizens by the Nepal Police and their subsequent handing over to the Indian authorities about two years ago.
The two Pakistani citizens, Asif Ali and Walid Sajjad, had arrived in Kathmandu to explore business opportunities and were staying in Jagat Hotel, near the tourist hub of Thamel in Kathmandu before being picked up by the Nepal Investigation Department on the night of 12th July 2006 “without any apparent reason” or warrant issued against them. They were then reportedly handed over to the Indian intelligence agency at the Embassy of India in Kathmandu.

C.M. Farooq had filed a case against the illegal arrest of the two at the Supreme Court of Nepal under the Interim Constitution of Nepal, 2007 on Feb 21. Following which the SC issued a show cause notice, ordering the authorities to produce the two Pakistani citizens in the court

“At the time of their arrest neither were they involved in any case nor had they violated any honorable law of Nepal. They were legally staying in Nepal on legal visa,” Farooq said in a statement issued afterwards.

Farooq said that in spite of all the efforts to release the two innocent Pakistani citizens, the only outcome was the access granted by the Indian Government to the Pakistan High Commission in New Delhi to have a meeting with Asif Ali.

“It was through that meeting that we came to know Asif Ali was charged/implicated in a fake FIR number 59/2006 New Delhi, with different fake cases registered under sections 121, 121-A/ 122, /123/120-B, Indian Penal Code, 4/5 Explosive Substance Act, 18,2-B/23 Unlawful Activities, and 14 Foreign Act,” he said.

He said that because of shock, the father of Asif Ali had died. He said that Asif Ali was somewhat lucky as he had been located and granted Counsellor Access but his business partner, Walid Sajjad has been neither produced in any court of law nor his whereabouts are known.

“He is probably in the custody of Indian Intelligence agencies,” he said.

The two Pakistani businessmen dealt in readymade garments and used to regularly travel to Bangladesh and the Middle East. They were also said to have been carrying a substantial amount of money for business purposes

The families of the Pakistani businessmen came to know about the arrest of their dear ones through the media in July, 2006, which stated that two Pakistani nationals were arrested on suspicion of involvement in Mumbai train blasts.

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.

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.

Constituent Assembly Court Established

Nepalnews reports here that CA Court has been established. In our earlier post, we had told you that CA Court will be headed by Hon’ble justice Anup Raj Sharma of Supreme Court of Nepal.

The cabinet, on Sunday, has formed the Constitutional Court to hear disputes and complaints regarding the election.

The cabinet formed the court as per the recommendation by the Judicial Council.

Anup Raj Sharma, a Supreme Court judge will head the court. The court will include two members – Tapa Bahadur Magar and Ram Kumar Prasad Shah – both of whom are judges at the apex court.

Nahakul Subedi, co-registrar at the Council, has been appointed as registrar at the Constitutional Court.

The Constitutional Court has been formed as per the special act passed by the parliament.

Another small news is here from Kantipur which reports that lawyers’ meet has adopted 13 points declaration in a national conference.

Some five hundred lawyers, who had gathered here for a three-day national conference that concluded on Sunday, unanimously decided to be active and committed to ensuring that the April 10 election to a Constituent Assembly (CA) is held in an impartial and fearless manner.

Similarly, the conference adopted a 13-point declaration, mandating Nepal Bar Association (NBA) to advocate constitutionalism, judicial independence, fundamental rights, pluralism, and periodic and competitive election after the CA election.

The conference also recommended that the demands of Madhes and Janajatis be resolved through talks, besides mandating NBA to play a role in mediating between the government and agitating groups.

The lawyers also expressed concern over hindrances to enjoyment of press freedom while urging the concerned parties not to interfere with independence of media.

The commitments expressed in the comprehensive peace accord should be respected by all concerned parties, the conference said in its declaration. Similarly, the conference suggested that all agreements between the government and agitating groups should be implemented completely.

Likewise, lawyers also decided to ask armed groups in the tarai to stop violence, terror and extortion.

Speaking at the concluding session of the conference, NBA President Bishwa Kant Mainali said that the April-10 election should not be postponed under the pretext of security. “Elections have been held even in countries worst hit by conflicts,” Mainali said.

CJ stresses on media-judiciary interaction

This Blog post contains some of the recent legal news about Nepalese Law and its development. The first post is about the views expressed by Chief Justice of Nepal Supreme Court where he expressed his views that there should be more interaction between Judiciary and Media. This is indeed a welcome step on the light of some of the media publications in Nepal highlighting corruption in Judiciary. The Right to information of Nepalese people entitle every nepali citizen to know what is state doing including judiciary. Since right to information is part of right of freedom of speech and expression enshrined in our constitution, the steps that judiciary is taking must uphold the letters and spirits of constitution.

The News was published in Nepalnews and can be read here:

Chief Justice Kedar Prasad Giri has said Supreme Court would soon initiate projects to improve the relation between judiciary and media so as the deliver right information about decisions in court to the general people.

Addressing the inaugural session of reporting training on legal issues organised by Freedom Forum in the capital Wednesday, Giri said that regular interaction between media and judiciary was essential for promoting human rights and civil liberties in the transitional phase.

Former attorney general Badri Bahadur Karki said journalists writing news on legal issues have to be more responsible in disseminating correct information, adding that court reporting in Nepal has been minimal.

Former president of Nepal Bar Association Shambhu Thapa said the journalists must distinguish between legal and judicial aspects of the any verdicts given by the court while writing news.
Senior journalist Harihar Birahi, Gokul Pokhrel, president of Press Chautari Bal Krishna Chapagain, chairman of Freedom Forum Tara Nath Dahal highlighted the importance of court reporting in Nepal and necessity for improving the relation between media and judiciary.

There is one more news published in Kantipur about modernisation of Nepalese Judiciary.

You can read the news here:

SC gives more power to judges, legalizes IT use

A meeting of the Full Court, the apex policy making body of the judiciary, on Tuesday approved more power to chief judges of the appellate courts besides legalizing correspondence via the Internet for judicial purpose.The meeting took the decision to this effect by amending the existing Supreme Court and Appellate Court Regulations, according to Supreme Court Spokesperson Til Prasad Shrestha.

The meeting decided to give more power to the chief judges of the appellate courts so as to make the administration of justice more effective in the district courts under their respective jurisdiction.

Now the chief judges can regularly monitor, inspect and instruct the district courts under their respective jurisdiction, making the chief judges active and dynamic in their respective regions.

The amendments were introduced in view of the fact that the chief judges have been more dependent on the Supreme Court even for giving direction and monitoring and inspecting performance of the lower courts under their jurisdiction.

In the meantime, the Full Court also decided to include provisions in the Regulations, legalizing correspondence via the Internet for judicial purpose. Earlier, only correspondence via fax and post offices were considered authentic for judicial purpose.

Similarly, the Full Court also decided to give power to Chief Justice to designate judges for the proposed six commercial benches. Preparations are underway to establish commercial benches, Shrestha said.

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.