Legal Development in Nepal

SC Clears Path for Upper Karnali Project

This is a news that we were waiting from Supreme Court of Nepal for some days. Though the matter has not been disposed fully, SC of Nepal has refused to give interim stay on the agreement signed by Government of Nepal and a private Indian Company GMR Energy of India. The News is reported here by Kanunisanchar.

I, nowonwards, generally rest my news on this site-Kanunisanchar.com as it collects most of the news as soon as it is pronounced.

If You remember, in this blog post, I had expressed my annoyance in a way PIL was filed as in my opinion, the petitioners are not able to make any such case and had demanded (in the sense expected that) SC must reject the petition for lack of merits. We need to wait and see what SC has to say on its final pronouncement. And it is expected that whatever will be the outcome of the case, it will be surely landmark in the annals of Foreign Investment related laws and constitutional validity of such laws in ‘New Nepal’.

In my earlier blog post, I had posed a question to the petitioners formulated in this way as mentioned below and I still believe that the question is still a valid one to find a simple answer for this case.

 “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.”

You can read the Supreme Court report here and is reproduced below:

Refusing to issue a stay order in the Upper Karnali Hydropower Project case, the Supreme Court on Thursday permitted the government to go ahead with the implementation of the understanding reached with Hyderabad-based GMR Energy Limited on the 300-MW power project.

A division bench of Chief Justice Kedar Prasad Giri and Justice Ram Kumar Prasad Shah refused to issue a stay order, and said the constitutional and legal questions raised by the petitioners will be settled by the court while delivering a final verdict on the case.
“The question whether the understanding needed a parliamentary approval or not will be decided while delivering the final verdict,” the bench stated.

The bench said: “Though the water flowing in a river is a natural resource, further discussion is required to decide on whether electricity generated from it is a natural resource or not, and whether an MoU signed with any national, international or joint venture company is a treaty or not.”

Advocates Bal Krishna Neupane, Borna Bahadur Karki, Tika Ram Bhattarai, Bhimarjun Acharya and Kamal Nayan Panta pleaded on behalf of the petitioners while Attorney General Yagya Murti Banjade and Deputy Attorney General Narendra Prasad Pathak defended the government.

Advocates Bharat Raj Upreti, Sushil Kumar Pant, Anil Kumar Sinha and Amarjivi Ghimire pleaded on behalf of the GMR Energy Limited.
Gorakha Bahadur BC of Kalikot and Ram Singh Rawal of Surkhet had jointly challenged the understanding reached between the government and the GMR Energy Limited to generate 300-MW hydropower from the Karnali River.

The counsels of the petitioners claimed that the signing of the agreement between the government and the GMR limited was unconstitutional. They also claimed that it was treaty related to sharing of a natural resource, and that the government violated the constitution by not seeking a parliamentary approval for it. The constitution says any treaty related to sharing of natural resources must be approved by a two-thirds majority of the parliament.

The government however claimed that the MoU was not related to sharing of natural resources and it did not need a parliamentary approval.

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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.

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.