Legal Development in 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.”

Mediation resolves cases pending long years

Kiran Chapagain, who is famous for writing legal columns in Kantipur has this news for us.

In this legal story, he shows how the ADR Method (Alternative Dispute Resolution Method) is helping to solve the cases in short time. Being a student of Law and particularly being interested in ADR, I found the News of great significance. Speedy Justice, Justice in Low cost and without many hurdles should be part of our constitutional rights. It’s good that in our country also, judiciary is seeing ADR as alternative and in most of the time, an appropriate mode of resolving disputes. There must be continued efforts to solve the matters by applying other non-litigative ways. You can read the whole story here:

 

 

On a recent Thursday afternoon inside the mediation center at the Supreme Court, advocate Tara Prasad Poudel was urging plaintiffs and defendants of a land case to compromise and resolve their longstanding land dispute.Sitting on one side of an oval-shaped coffee-colored table, Poudel also reminded litigants they had engaged in legal battle for 16 years already and warned that the case might continue for generations if it was not settled. Poudel then asked both sides for possible solutions.

Poudel had hardly finished speaking when Udaya Maya Khatri, a plaintiff, exploded, saying “How can I compromise with them (pointing at two defendants who were sitting at the other end of the table)?”

Then both the plaintiffs and the defendants started trading charges, even in abusive language, as if they were going to fight right there, making the ongoing mediation uncertain. Poudel intervened calmly there and then.

“Perhaps you have heard the story of Safala Devi [who fought land-related legal battles throughout her life and died a couple of years ago, with her cases unfinished.] You might face a similar situation,” Poudel warned.

Finally, Poudel was successful in persuading the parties to compromise. They left the mediation center agreeing to finalize the case in the next sitting.

Many cases are being settled through mediation, as an alternative to the existing practice of resolving disputes inside court chambers by judges. In this practice of dispute settlement, known as court-referred mediation, trained mediators like Poudel facilitate plaintiffs and defendants to resolve dispute referred by courts through bilateral negotiations.

Available data from Kathmandu District Court shows that the practice, which began officially from December 7, 2006, is becoming popular among litigants as an alternative to the traditional method of dispute resolution inside court chambers. Altogether 16 percent of the total cases the court received in the last one year were settled through mediation, according to Krishna Ram Koirala, chief administrator of the court.

Even officials at the mediation center at Patan Appellate Court and the Supreme Court are upbeat with the success of mediation in the very first year of its operation.

According to Ram Prasad Neupane, chief of Patan Appellate Court mediation center, the court referred 162 cases to the center and 26 cases were successfully resolved through mediation in the last one year. Fifteen cases are awaiting settlement. The other remaining cases were returned to the benches for judgment.

Similarly, the Supreme Court mediation center finalized 41 out of 189 cases referred by the court for settlement while 32 are running, according to Prakash Raut, chief of the meditation center.

In general, mediation is more difficult in cases that are in appellate courts and the Supreme Court because parties become more certain of winning the case by the time the cases reach higher courts. “Mediation is more successful when cases are in the district courts since parties are less certain about which way the verdict might go,” says Neupane.

Initiated with initial support of USAID, court-referred mediation is being practiced in all courts across the country in a bid to address chronic backlogs and delay in justice delivery. Besides, the practice is expected to make justice less expensive.

“We have been successful in finalizing cases within three months,” said Raut.

At present, trained mediators comprising lawyers, former judges and court employees, have been providing mediation service free of cost. However, the Supreme Court has recently decided to provide Rs 300 for mediators at the Supreme Court Mediation Center as taxi fare. But mediators at appellate and district courts are not provided even taxi fare.

“We are going to request the government for budget so that we can give some money to mediators for their service,” said Dr Ram Krishna Timalsena, registrar of the Supreme Court.

Efforts are underway to institutionalize the practice. A mediation law is being drafted. “At present, the court can refer cases for mediation only after parties agree to mediation. But once the mediation law comes into effect, courts can impose mediation on litigants,” said mediator and advocate, Raj Kumar Thapa.  Though mediation can save time, effort and money of litigants, people are yet to be adequately educated about the advantages of mediation. “It is urgent that litigants be made aware of the practice and its benefits,” Neupane said. As this scribe met Udaya Maya after her 16-year old case was settled, she said, “Both of  us won, nobody lost as the dispute was settled through bilateral negotiation. We  lost thousands on litigation, but the case was solved in just two sitting,” “She is correct that nobody loses when a case is resolved through mediation,” mediator Poudel said.

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.

Tarai turmoil taxing judiciary

 

Here is a report of Kiran Chapagain from Kantipur where he writes how terai violence has affected the judiciary.

The ongoing political turmoil in the eastern Tarai has started to take a toll on the judiciary, obstructing and delaying court work.Judges and officials at courts of law in the most-affected Tarai districts – Bara, Parsa,

Rautahut, Saptari, Siraha, Dhanusha, Sarlahi and Mahottari — said that the conflict has badly affected court-related field work like mapping, serving of subpoenas, implementing verdicts and carrying out investigations.When contacted by the Post to inquire how courts have been impacted by the conflict in the

southern plains, some judges and courts officials said they are encountering difficulties dispensing justice independently as they face frequent threats by litigants acting under cover of the armed Tarai groups.”We have not been able to send hill-origin court staff into the field,” said Krishna Subedi,

chief administrator at Saptari District Court, “As a result, we have not been able to do judicial work on time.”The courts have now begun to rely solely on Madhesi staff for field work, according to

Subedi.However, it is risky even for Madhesi staff to be out alone in the field, says Surya Bahadur

Thapa, chief administrator at Dhanusha District Court. “So we send them out in a team. The team finishes its work at one place and moves on to another.”This, according to Thapa, is not an efficient way of doing things since it causes delay.

A judge from one of the districts said, on condition of anonymity, that the court has not

been able to implement its verdicts for the last three months as none of its staff is ready to go out into the field.The rising threats against hill-origin staff in the Tarai has left many courts severely under

-staffed. Siraha District Court has only 20 staffer as 32 others have gone on deputation in view of the prevailing insecurity.The absence of VDC secretaries from their respective postings, following the killings and

abduction of colleagues by armed groups, has also affected judicial work.”When tamiladars visit the villages to serve subpoenas they hardly ever find the VDC

secretary and this has affected court work,” said Balendra Rupakheti, judge at Mahottari District Court. The VDC secretary certifies that subpoenas have been served on the persons concerned. The presence of a VDC secretary is legally mandatory when a tamildar serves a subpoena.As law and order in the Tarai continues to deteriorate, Nepal Bar Association (NBA) on

Januray 25 submitted a memorandum to Chief Justice Kedar Prasad Giri drawing his attention to the problem.In an 11-point memorandum to the Chief Justice, NBA demanded that the situation at the

courts in the Tarai be taken seriously and arrangements made to ensure their smooth functioning.

Judges to Have More Power

Here is a report of Kiran Chapagain from Kantipur where he writes about some legal amendments in justice administration system. The report tells us that there is a process by which more power is being given to appellate court judges to handle the administration of justice in District Courts. We find this a commendable approach to keep the lower courts well within boundary of law and for the expeditious justice delivery.

The Supreme Court (SC) is set to make chief judges of appellate courts more powerful to make administration of justice more effective in appeal courts and the district courts under their respective jurisdiction. SC Registrar Dr Ram Krishna Timalsena said the amendments are being introduced in the existing Supreme Court and Appellate Court Regulations to incorporate the provisions giving more power to the chief judges. “We have proposed in the draft regulations that the chief judges can regularly monitor, inspect and instruct the courts under their respective jurisdiction, Dr Timalsena said. “The proposed provisions aim at making the appellate court chief judges active and dynamic in their respective region.” The move has been taken upon the realization that the chief judges have not been as active and dynamic as they should have been. Besides, they have been more dependent on the Supreme Court for any decision to give direction, and for monitoring and inspecting performance of the lower courts under their jurisdiction. Each appellate court has certain number of district courts under its jurisdiction. There are 16 appellate courts across the country, and the number of district courts under the jurisdiction of a particular appellate court varies. There are 75 district courts. The regulations will be effective after an endorsement by the Full Court, the apex policy-making body of the judiciary, which is headed by Chief Justice. In the meantime, efforts are underway to set up an IT section in each appellate court and district court in order to expedite the judiciary’s bid to inter-connect all the courts across the country, according to Dr Timalsena. The judiciary has planned to computerize all the courts across the country within next three years, according to Deepak Timalsena, IT chief of the Supreme Court