Legal Development in Nepal

PM asks SC to drop one million per MP case

Here is a report from Kantipur about Prime Minister Koirala’s request to drop on million per MP Case. I have no access to original words or rather language in Nepali  what exactly PM said but Kantipur reports that PM asked SC to drop the case.

With all the respect that PM deserves, I feel pity on his statement. What is he saying? Does PM think that SC can take any case as it likes and can drop cases at anytime it wants. There is a rule of Law in Nepal where procedural laws must be complied. I think what PM intended to say is that the case must be dismissed by the SC. But, if that is what his intention is, that should come through reply to the case in SC when it is submitted by Government through the office of Attorney General. And the report suggest us that he said this when he replied to show cause notice to SC on the case. I have a very big problem on this matter regarding the procedural aspects of hearing cases where the case is instituted against government. I will elaborate on this further on coming days. For a time being, You can read the news here and below:

Prime Minister Girija Prasad Koirala has asked the Supreme Court in writing to drop the case relating to the one million rupees given to each parliamentarians under the Election Constituency Development Fund. Replying to a show cause notice issued by the Supreme Court on Monday, Koirala argued that the court should no longer consider the writ petition questioning the one million rupees for lawmakers as the government has already revoked its previous decision to give the money. Currently there are two writ petitions in the apex court against the government decision on giving the money to lawmakers.

Earlier also, we had reported on the development of this case.

 

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Need of Rule of Law in Nepal

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

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

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

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

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

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

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

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

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

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

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

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

KATHMANDU, FEB 22

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

UNMIN stresses on impartial law enforcement

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Human Rights issues in Nepal

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

Govt preparing to come up with toothless TRC

[Till Today, I was just copying some of the legal news from here and there, and was posting them here. From Today, I have tried to manage them in a good order and with Clear Source and if possible, with Author’s Name. I will be discussing some of the legal, social and economical implications of these developments and news in my blog as comment from my side.]

This is a News Report taken from Nepalnews. For Original post, You can Click here. I have copied it below.

Even before forming the Truth and Reconciliation Commission (TRC) and a Commission to probe Disappeared persons, the government has inserted provisions in the respective draft acts, thereby effectively making them toothless, says a report.

Nepal Samacharpatra daily reports that the Peace and Reconstruction Ministry has given final touches to these draft acts, which could be introduced as an ordinance since the parliament is not sitting currently.

The daily adds that since responsible political leaders, high-level officials, and army officials could be implicated for war crimes and crimes related with forced disappearances, the Ministry has inserted provisions to provide them with amnesty.

A senior official at the Ministry, however, said that the government wanted to promote reconciliation. “The respective commissions themselves will probe who is guilty and who is not,” said Shyam Sundar Sharma, spokesperson of the Ministry.

On the other hand, rights activist Dr. Gopal Krishna Shiwakoti smells a rat in the whole process. He questions the intention of introducing such important legislations in the form of ordinance. This, he said, could further the culture of impunity.

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