Legal Development in Nepal

Contempt of Court: Dristhi Weekly Editor’s Case

Posted in Blogging News, Court, Judicial Activism, Supreme Court of Nepal by nepaleselaw on April 3, 2008

I found a news here. It says about the notice of Supreme Court of Nepal to a weekly Newspaper’s Editor. The Editor is alleged to have written a contemptuous Article over a verdict of Supreme Court of Nepal on NRB Governor Case.

Read the news Below:

Nepal Supreme Court summons Drishti weeklys editor
The Supreme Court (SC) of Nepal has summoned the publisher and editor of Drishti weekly, Shambhu Shrestha, to submit his statement over a news report published in its edition on March 25.
Acting on an application seeking punishment for Shrestha on the charge of contempt of court, Justice Tahir Ali Ansari passed the order after an initial hearing.
According to ekantipur.com, the Nepali weekly, criticised the Supreme Courts March 18 verdict convicting Bijaya Nath Bhattarai, the Governor of the Nepal Rastra Bank and alleged that Justice Ansari had been influenced by financial mafia while passing the judgment.
Shrestha could face imprisonment of up to a year or a fine of up to Rs 10,000 or both, if convicted on the charge of contempt of court on April 4.

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.

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.

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

 

Penalty imposed by SC for Publicity Interest Litigation

I found this piece in Kantipur. Supreme Court has done extremely well to slap a fine on those Advocates who work for the sake of being famous and in quest of their name in Media. I think the advocate has found his name in Nepalese Paper but for bad reason.
I wholeheartedly agree with what SC did but Rs. 5 is very very nominal amount. I understand that SC wanted to send a clear signal of what it will be doing in future if these kinds of activities are repeated by the same advocate or by any other advocates of that kind BUT still, the fine amount could be imposed more than that. The trend of the advocate to file frivolous and fabricated petitions must be discouraged in future as that does not serve any public interest/social interest. Well done SC!!!!
In the first case of its kind in the history of Nepal’s judiciary, the Supreme Court has fined a lawyer with Rs 5 on the charge of bringing what it called a “frivolous and publicity-oriented” public interest litigation (PIL) before it.
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.

“If we go on entertaining such type of frivolous and publicity-oriented writ petitions, the real litigants waiting for justice will suffer,” Justices Bal Ram KC and Gauri Dhakal said in a verdict slapping the fine.

“PILs are meant for public interest, not for publicity,” they said.

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.

Though fines on litigants who bring frivolous petitions before courts is very common in India and other countries, it is the first time the court has fined a writ petitioner in Nepal on the charge, a Supreme Court judge said.

Co-spokesperson of the court Hemanta Rawal said the court has noticed in recent times an increasing trend of lawyers bringing frivolous writ petitions just for publicity.

“The court has been spending its time and resources on such writ petitions to date. But now, the bench has attempted to discourage such petitions,” Rawal said.

Judiciary should know its limits

Posted in Blogging News, Court, From ekantipur.com, Judges, Judicial Activism, Justices, Law of Courts by nepaleselaw on February 8, 2008

I found this article written by Dr Trilochan Upreti in Kantipur. I do not know who the learned author is  but he has to say something about “judicial activism” v, “judicial restraint”. It is always interesting to talk about this topic. In India, it has always taken the centerstage and there are umpteen number of instances where our learned brothers at bar and bench express their opinions on either way. No one knows the limit of judicial activism as it is not that easy to fathom it. I have my few points to make on this topic and in this weekend, I will be commenting on this article. For that You need to keep on visiting my page. And the report goes here:

 

 

India’s judiciary has been known as an active and popular institution in protecting people’s rights, for which it has interpreted the constitution, law and jurisprudence in favor of the people. By the name of Public Interests Litigations (PILs), it has issued a range of orders/verdicts against the corporate house, government and other entities. The issues of judicial activism emerged and have largely been practiced by India’s Supreme Court since the time of PN Bhagawati as Chief Justice of India. But, since then, it has remained a moot issue in political and executive circles.Recently, a two-judge bench comprising justices AK Mathur and Markandeya Katju criticizing judicial activism, disapproved the tendency of courts to rule on issues like nursery admissions and auto-rickshaw drivers flecking commuters. The judges should know their limits and not try to run the government.

Further, the judges have been criticized for repeatedly coming across cases where they are unjustifiably trying to perform executive or legislative functions, which in their view, is clearly unconstitutional, and judges should not cross their limits and try to take over functions which belong to other organs of the state. They listed a number of local issues in which courts were involved like unauthorized schools, criteria for free seats in private schools, the size of speed breakers on Delhi roads and penalty, which, they said, were “matters pertaining to exclusively to the executive or legislative domain”.

For instance, the ruling calling for a trust vote on CCTV in Jharkhand state assembly or trial of strength between Jadambika Pal and Kalyan Singh to resolve the chief ministership issues in UP, the bench said that it was a case of constitutional breach, violating the separation of powers as mandated in the Constitution.

According to their interpretation, if there is a law, a judge can enforce it. But judges cannot create a law and seek to enforce it. “They (judges) must remember that judicial activism is not an unguided missile. Failure to bear this in mind would lead to chaos. Likewise, courts cannot create rights where none exist, nor can they go on making orders which are incapable of enforcement or violative of other laws of settled legal principle.”

This judgment has drawn public attention especially in political, legal, societal and judicial circles. The Times of India has written an editorial supporting the notion of the judgment. While leaders of popular national political parties have widely supported the verdict insisting on the grounds that the executive and legislature must be allowed to function freely and a minority felt that intervention of the courts was unavoidable as long as governance remained weak and was subject to political pressure. The confessional comments of the Supreme Court were music to the ears of the political brass.

PN Bhagawati, who had hard-pedaled the judicial innovation of PILs, who holds the view that PILs revolutionized the concept of justice, allowing any public spirited person to knock on the apex court’s doors, said that a fine line between the public good and private benefit had to be drawn by the court if independence of the judiciary was to be maintained. He further asserted that the poor and underprivileged sections of society are the ones who must benefit from judicial activism. For example, providing health care and medical assistance, cleaning of the Yamuna River, reducing pollution via CNG operating transport system in Delhi are clearly public welfare measures which became possible due to judicial intervention.

That is not the end of the story of the judgment, however. A similar case was referred to when the case of a larger bench by a two-judge bench considering the essence of the above judgment and a three-judge bench headed by the present chief justice took a stern stand on the observation on “judicial activism and overreach”, saying that “we are not bound by the two-judge bench order”. The intellectuality and level of knowledge of judges in Indian high courts and the Supreme Court is considered to be of world class with higher dignity and reputation.

The trust of the people is undisputed and huge in comparison to such name and fame in our own context. The judgments rendered in PILs have immensely benefited the larger population of India. For example, removing hundreds of polluting industries from New Delhi and Agra to save the world monuments like Taj Mahal were not possible through executive or legislative actions. At the same time, these judgments were fully complied with by the other two organs of the state.

One can consider the problem relating to polluting of the venerated Bagmati River and pollution level in the Kathmandu valley and wish that our Supreme Court could have done something about it.

Likewise, stakeholders of Nepal Telecom have been keeping trust on the Supreme Court on matters of safeguarding their interests in getting a fair and equitable share. Considering the failed effort of the recent past in respect of the political change after the April uprising, had the judiciary acted in favor of reinstatement of the House of Representatives, many people’s lives could have been prevented from loss and the nation wealth would have been protected from destruction.

People, who blame our judiciary unfairly forgetting the positive verdicts, are consistently blaming the judges for their inconsistent stand on freedom of the judiciary over the matter of accepting to take an oath before the public hearing system within the parliament. No single justice has shown his guts by challenging this unfair system by resigning, even though quite a few of them were reported in the press as having said that that they would rather quit than go to the parliament for oath.

Justices in the Supreme Court don’t even bother to resign or take leave a month before retirement, which is the standard practice prevailing in other countries. They would rather prefer to hear and decide the cases in a dubious manner even before retirement. All in all, there is also an allegation that even the sitting Chief Justice prefers to sit with the retiring justice in hearing complicated, mooted and infamous cases.

The state has provided enough economic benefits for ensuring their independence.

However, in return for their performance, the reputation and trust among the people at large has further eroded. Even the lawyers’ umbrella organization formally boycotted the bench across the country in protest against the judiciary’s involvement in corruption. The media has been consistently reporting the wrong-doings in the courts; civil society, parliamentarians and noted lawyers are blaming the eroding efficiency clouded with corrupt practices and unfair delivery of overall justice. If fifty percent of the allegations are true, it is a shame on our judiciary. People expect from the justices an example of cleanliness, efficient, studious and ethical behavior, which has not been seen in the country. Therefore, we need independent, capable, clean and efficient justices and judiciary, for which overhauling of the entire judiciary and addressing of the causes of the present day problems need to be researched and rectified as quickly as possible.