Legal Development in Nepal

OHCHR on Human Rights

Here is a report from Kantipur where OHCHR has called for respect of human Rights in Nepal.
The UN Office of the High Commissioner for Human Rights (OHCHR) has said the existing climate of impunity in Nepal must be transformed into a culture of accountability to bring successful transition to durable peace and development.
In a report, due to be submitted to the UN Human Rights Council on Thursday, High Commissioner Louise Arbour has said, “Political will, lacking until now, is essential for such change.”

Arbour in the report further said the state has its obligation to protect the rights of the population to life, liberty and security.

“A coherent program to strengthen and reform security forces is urgently needed. Law enforcement agencies have a special role to play in ensuring the creation of a climate for

elections that are free of fear and intimidation,” the report said.

It said the peace process, including elections, provides a historic opportunity to create a fully inclusive and democratic state.

The report points out that progress toward strengthening national human rights system has been made through appointment of commissioners to the National Human Rights Commission (NHRC), the signing or ratification of several international human rights instruments and promulgation of regulations providing quotas for marginalized groups and women.

“However, respect for and the protection of human rights came under increasing pressure in 2007 as a result of delays in implementing the Comprehensive Peace Agreement (CPA), together with a worsening security situation in the Terai, resulting in increased violence,” the report states.

OHCHR-Nepal Representative Richard Bennett, said his office is ready to provide all necessary support and technical assistance to achieve necessary progress.

“Strengthening the national human rights system, including support for NHRC and national institutions, will be an essential component of the Office’s strategy to support the process of change in Nepal,” Bennett said.

Advertisements

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.

Case in Supreme Court on Upper Karnali Hydroelectric Project

I read a news here published by kantipur and for me, this news is deeply annoying and frustrating. I feel that the court must have outrightly rejected the petition citing without merit on the petition. The matter relates to a contract awarded to an Indian Company by the government of Nepal after a competitive bidding process.
As per the news report, the petitioners have claimed in their petition that the contract awarded to the Indian Company is violative of constitution as water, as a natural resources, have been passed to foreign alien without any ratification by the parliament.
The claim of the petitioners is as follows:
B.C. and Rawal moved the court with a Public Interest litigation (PIL), accusing the government of violating Article 156 (1) (2) (D) and (3) of the Interim Constitution while awarding the project to GMR early this year.

They argued that the constitutional provisions require an approval from a two-third majority of the lawmakers in the parliament prior to inking any agreement on natural resources, but the Upper Karnali agreement was signed without meeting the constitutional requirements.

For me, it is simply the abuse of process of law by the petitioners or lack of knowledge of globalised commercial law. What we should understand here is that this is just a commercial contract between government and another party. And, there will be enough safeguards in the contractual agreements between the parties. There are obviously terminating clause in the contract that take care of any such situation when our natural resources are affected. There is no need of making hue and cry and to show nationalistic feelings. We should understand that government has not sold our territory, nor handed over any land/water to the foreigners. It is in plian legal language a lease-in word as well as in substance. There, what is the need of creating obstacles. If we start taking narrow approach, then, it really hampers our development.

“One simple question to petitioners: Are they going to file Public Interest Litigation (PIL) against government for not making dam and not obstructing the flow of rivers which eventually goes to mix in Bay of Bengal? My learned brothers, please look at there, water-our natural resources- is flowing down to south to foreign land and Our Parliament has not passed any such resolution.”

I feel the petion is plainly vague.

The Supreme Court on Friday issued a show cause notice to the government regarding the latter’s agreement with India’s GMR Energy Ltd on the 300 MW Upper Karnali Hydroelectric Project.
Besides, the Supreme Court said that it would hold a discussion on March 7 on whether the implementation of the agreement should be stayed, as demanded by writ petitioners Gorakh Bahadur B.C of Kalikot and Ram Singh Rawal of Surkhet, while summoning the defendants to be present before it on that day.

B.C. and Rawal moved the court with a Public Interest litigation (PIL), accusing the government of violating Article 156 (1) (2) (D) and (3) of the Interim Constitution while awarding the project to GMR early this year.

They argued that the constitutional provisions require an approval from a two-third majority of the lawmakers in the parliament prior to inking any agreement on natural resources, but the Upper Karnali agreement was signed without meeting the constitutional requirements.

Justice Balram KC passed the order after an initial hearing on Friday.

Office of the Prime Minister, Ministry of Water Resources, Ministry of Environment, Science and Technology, Ministry of Finance, Parliamentary Committee on Natural Resources and Means, Parliamentary Finance Committee and Department of Electricity Development have been made defendants in the case.

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.

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.

——————————————————————————————-

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