Friday, December 29, 2006

The transitional period will be difficult to manage by this constitution: Acharya

The leaders of ruling seven party alliance and the Maoists recently finalized the interim constitution. The constitution will be promulgated once the United Nations starts monitoring of Maoist combatants. Though the mandate of the Jana Andolan (People’s Movement) II is to make a new Nepal, the constitution finalized by the political parties has failed to reflect the people’s aspiration expressed during the April movement. Constitutional experts have defined the constitution, which is the fundamental law of the country, as a document of compromise rather than a constitution. The interim constitution established supremacy of politics, neglecting the supremacy of constitution, the internationally recognized principle. In this regard, there is a fear whether the Nepali people, who just got rid of royal autocracy, might face another type of autocracy. In this context, Pratibedan Baidya talked about various aspects of interim constitution with the Constitutional Lawyer Bhimarjun Acharya.(source of this interview is )

How do you analyze the recently finalized interim constitution?

This constitution is not based in the format of a normal constitution and many of its provisions are controversial. Some of the provisions are against the interest of the nation as well. The constitution does not have any destination, so I have said this constitution has more politics, little constitution. It will be very difficult to manage the transitional period by this constitution and it won’t be able to take the nation towards the proper destination through the election of the constituent assembly.

What types of controversies do you see in the constitution?

The constitution is full of controversies. For instance, the controversy starts from the preamble itself. Every constitution carries the source of authority and objectives in the preamble, but these things are not clear in this constitution. The source of authority of the present constitution is the Jana Andolan (People’s Movement) II but the preamble has not mentioned it and the objectives are also not clear.

In Article 4 of the constitution, holding elections of the constituent assembly by mid-June 2007 was placed under the liability of the state, but under the chapter of election of the constituent assembly, it says that the government will decide the date for the elections of the constituent assembly.

The constitution has adopted the independence of judiciary and pluralism as basic principles of the state, but there is also a provision that the Prime Minister will appoint the Chief Justice, which is controversial. Though the constitution has the provision for corruption control and ending of impunity, there is a provision of pardon in Article 151, which will promote impunity and there is no mechanism for ending corruption.

Under the chapter of the Executive, the constitution has adopted the parliamentary system but it has named Prime Minister as the head of the state and the head of the government, which is not possible in parliamentary system.

The basic difference between the parliamentary and the presidential system is that in the presidential system, one person is made both the head of the state as well as the government, but in a parliamentary system, the same person cannot be the head of the state and also the head of the government. The interim constitution had adopted the parliamentary system but made Prime Minister as the head of the state as well as the head of the government.

Another point is that the constituent assembly is the sovereign body and it can decide the framework of new Nepal, but the constitution has assumed that there will be parliamentary system even after the election of the constituent assembly, which is totally wrong. Article 82 of the constitution has mentioned that the constituent assembly will be dissolved after the constitution drafted from the CA comes into force, but it also has the provision that the CA might work till a new legislature is formed, so how can the constitution predict that there will be parliamentary system even after the new constitution comes into force.

Is it appropriate that the PM should be the head of the state as well as the head of the government?

No, it’s totally wrong in the parliamentary system. The constitution has adopted the principle of parliamentary system, but the provision of PM being head of the state and government was included, which is not correct.

As per the provision of this constitution, the Prime Minister will be the head of the state and the government, which means there is no role for monarchy. If the constitution does not give recognition to the crown, there will be no monarchy in the country. However, this constitution also has the provision that the first meeting of the election of the constituent assembly will decide the fate of monarchy, which is quiet ridiculous.

The constitution has ended the monarchy and parliamentary system of the country.

Will the provision create problems even after the election of the constituent assembly?

Yes, the situation will be complex after the election of the constituent assembly. The first provision is that the Prime Minister will be appointed through consensus, but if that does not happen, the leader of the political party with majority will be the Prime Minister, who might misuse his power. The misuse of power is one concern, but there is also confusion in principle as to what kind of government it will be.

How do you view incorporating education, health, employment and social security as fundamental rights?

The interim constitution has included free education, health, employment and social security as fundamental rights, but it has also mentioned that such provisions should be as mentioned by laws, which is against the principle of fundamental rights. Fundamental rights are the rights, which the state should provide immediately; otherwise, such rights would only be legal rights. So inclusion of such rights as fundamental rights seems noble but such rights are not guaranteed as fundamental rights.

It is said that the interim constitution has undermined the judiciary. What is your comment?

There are various objectionable clauses regarding judiciary in interim constitution.

The first thing is that the Prime Minister will be appointing Chief Justice under the recommendation of constitutional council, which is heavily dominated by the executive. If the Prime Minister is to appoint the CJ, there will not be independence of Judiciary.

The Supreme Court is the body, which corrects the wrongdoings and reviews the unconstitutional works of the Legislature and Executive while protecting the encroachment of fundamental rights of the people. If the Prime Minister appoints the head of such institution, how can he review such cases? So the provision is against the independence of Judiciary.

Another thing is that as per the provision of the constitution, all the court’s decision and the annual report of the Supreme Court could be discussed in the parliament, which is also against the principle of independence of Judiciary. Such provision will invite crisis in the Rule of Law and enjoyment of fundamental rights of the people.

Why do you think the constitution came in such a format and how is it not democratic?

It is unfortunate that the constitution was prepared by leaders of political parties and not legal experts. Leaders should have only given framework for it but not prepare it.

One of the characteristics of this constitution is the supremacy of politics rather than supremacy of the constitution. For example, Article 86 of the constitution states that no voice should be raised against the decision of the legislature and if someone does so, s/he can be detained for three months or fined 10 thousand rupees and there shall be no review of the punishment.

The constitution has imagined such despotic legislature, which is objectionable. The constitution lacks constitutional supremacy, which is the universally accepted principle.

Another objectionable principle is the provision of pardon. In any penalty given by any court, judicial or semi-judicial authorities, the cabinet may give pardon. Based on this provision, pardon can be given against the people who were found guilty by the report of the Rayamajhi Commission. Similarly, there will be no punishment for violation of human rights and humanitarian laws in course of the 11-year long Maoist insurgency.

The provision of pardon mentioned in Article 151 of the constitution will institutionalize the impunity.

Similarly, all people will get citizenship on the basis of birth, which is objectionable. The constitution also made the provision that all people who have naturalized citizenship will be eligible for the appointment in all constitutional bodies, which is against the national interest. The naturalized citizenship is given to foreigners, so under this provision, any foreign citizen will be eligible for the post of President, Prime Minister or Chief Justice of the country. I can’t imagine how the leaders, who received posts on the basis of people’s movement, included such provision in the constitution. It’s totally against the national interest.

As a constitutional lawyer, how do you evaluate the provision of constitutional council?

There is the provision of six members in the constitutional council, which is not correct, as the even number keeps no meaning in legal term.

Three members of the council will be appointed by the Prime Minister; if such a council recommends the name of the Chief Justice, the independence of the judiciary will be compromised. Independence of Judiciary is the international principle, but the constitution is trying to create controlled or committed Judiciary.

As, there will be majority of the Executive in the constitutional council, they can control the Judiciary, which is not acceptable in a modern state.

How do you see the provision for managing transitional period in the interim constitution?

Politics was made supreme in the interim constitution, which is not good as supremacy of constitution is related to the protection of people’s rights.

Supremacy of politics will not give a good result. Based on the interim constitution, the proposed constituent assembly will not give good results and the constitution to be formed from the constituent assembly will not be inclusive. There was no need of an interim parliament ahead of the constituent assembly polls.

I have studied around 40 countries where constitution was drafted from CA, but in all of them, there was no interim parliament. As far as Maoists’ inclusion in legislature is concerned, they could have been included through CA polls, so the interim parliament is just for the sake of give and take. If the CA poll is going to be held by mid-June 2007, why is there a need of interim legislature for less than six months? The interim legislature does not have authority to take decision about the interim constitution as well.

Another serious issue is that a person holding public post or receiving remuneration will be disqualified for being a candidate in the election, but the constitution has made the provision that elected and nominated people will be able to be the candidates, which means, a person who is a member in interim parliament will be able to fight the elections of the constituent assembly and member of the constituent assembly be able to fight for the next elections, which is against the electoral norms.

How do you see the provision of dissolving constituent assembly after the constitution formed from the CA comes into force?

The interim constitution has created the situation of vacuum in the country. As per the provision of the constitution, present HOR will be dissolved after issuing the interim constitution.

The interim legislature will endorse the interim constitution. The interim legislature will be dissolved after the first meeting of the Constituent Assembly and the Constituent Assembly will be dissolved once the constitution formed by Constituent Assembly comes into force.

There will be a vacuum till next legislature is elected, which is a blunder. As per the international norm, there should be provision that the constituent assembly should work till a new legislature is formed.

So, the constitution is not in the format of a constitution, it’s just like a political document. Another thing is that the 425-member constituent assembly is not appropriate as the number is not manageable. The mixed election system is also not a good concept.
Regulations published in Gazette

The Government of Nepal has published the Some Public Documents Certification Regulations 2063 BS in the Nepal Gazette published, Monday.

This is stated in the notice published by the Office of the Prime Minister and the Council of Ministers.

The regulations were published as per the authority given by the Some Public Documents, Certification Procedure Act 2063 BS.

As per the regulations, the certification of the appointment of the Chief Justice, Supreme Court Justices, Judicial Council Members, CIAA Chief Commissioner, Auditor General, PSC Chairman, EC Chief Commissioner, Attorney General, Appellate Court Chief Judge, or Judges, COAS, CIAA Commissioner, PSC Members and EC Commissioners, parliament Secretary General, Secretary of HoR, NA Secretary, and District Judges shall be certified by the Chief Secretary.

As per the regulations, Chief Secretary himself or the Secretary of the Office of the Prime Minister and Council of Ministers will give the appointment to the concerned officials.

The appointment letter of the Chief Judge of the Appellate Court and Judges and District Judges will be given by the Secretary of the Judicial Council.

Likewise, orders of the Government of Nepal shall be certified by the gazetted officer specified by the government while issuing the order.

Thursday, December 28, 2006

Court order on LLM level admissions

The Supreme Court has issued interim order in the name of the defendant to keep the works related to admissions in the status-quo-ante.

The Supreme Court's order has come in response to a writ petition filed against the decision of the Nepal Law Campus requiring approval of leave from those wishing to study in the LLM level.

The order issued by a single bench of justice Min Bahadur Rayamajhi states that the defendant should be notified for being present in the discussion to be held in that connection on December 29.

Ten people, including employees of the Supreme Court have stated in the writ petition that Nepal Law Campus refused to enroll them in the LLM programme despite they having passed the entrance test.

The petitioners have demanded that the Campus' decision to that connection is rescinded and a mandamus issued for their admission to the LLM programme.


Wednesday, December 27, 2006

NHRC moves to tackle cases backlog
As complaints of human rights violations have piled up at the National Human Rights Commission (NHRC), the commission has launched a special program to resolve the backlog of cases.
"The commission is planning to resolve all of the over 65,000 cases in the backlog by next September," said Dhruba Nepal, acting secretary at NHRC.
Under the special program, NHRC first collects all the cases from different districts and sends out a special team to a particular district to probe the complaints. The team stays in the district concerned until it has probed all the cases.
"Sometimes the team stays in the district concerned for a month and probes all the cases," Nepal said. The program, which has come into effect since November, has already settled the backlogs in Ramechhap, Dolakha and Sindhuli districts.
Previously, NHRC members used to prioritize the cases and send the team to the districts only for those special cases. "This way, many cases in many districts which didn't get priority were left unaddressed and their numbers kept on piling up," Nepal said.
With the number of cases reaching over 65,000, NHRC decided to settle the entire backlog so as to provide justice to the victims.
NHRC has received Rs.18.3 million from the Asia Foundation for the purpose. "It's a one-year program and we have expressed our commitment to reducing the backlog of cases as much as possible," he said.
NHRC, however, encountered new cases once its team visited the districts concerned. Besides this, NHRC has also faced a problem in identifying persons related to the cases. "When our teams visit the districts, sometimes the persons who filed the cases are not found in the area and it is difficult to recognize a particular person since the case could have been filed more than six years ago and the person concerned may have lost hope," he said.
NHRC encounters problems not only while probing the cases, but it also faces a crisis after a case is probed. NHRC, in the absence of its members, can't recommend to the government necessary action against the culprit once a case is probed. "This is also one of the reasons why the commission hasn't been able to resolve cases," said Nepal.
NHRC, after its members including the chairman submitted their joint resignation in May, has probed about 300 cases, but it hasn't been able to recommend to the government necessary action over them. The government's poor response to the recommendations, says Nepal, has also caused difficulty in carrying out further investigations. According to NHRC statistics, the government has implemented only 16 of the 147 recommendations made by the commission to date.
SC issues show cause notice

The Supreme Court has issued show-cause notice in the name of the defendants in response to a writ petition against the call for re-tender notice for ration contract.The Supreme Court also ordered that the bids said to be opened on December 28 should not be opened and kept in the status quo ante.A single bench of Justice Khila Raj Regmi issued the orders to that connection. It is stated in the order issued by the Bench that the bids set to be opened on December 30 should be kept in the status quo ante until an order in that connection is issued after holding discussion on the interim order.The writ has named, among others, the Bhairavi Dal Battalion of Rukum and the Quarter Master General (food and transport) as the defendants.
Women against discriminatory laws
Women activists Tuesday said that the political parties should be sensitive to the discriminatory laws against women.Speaking at a talk programme "Future Strategy Meeting to Discuss Changes in New Laws and Challenges Ahead,"they said that all the non-governmental organisations working for the rights of women and the women representing different political parties should go hand in hand to abolish the existing discriminatory laws against women.Shova Gautam said that the laws recently amended by the government should not be implemented unless there is clarity in them. The political parties and the concerned non-governmental organisations hold discussions to clarify the issues.She stressed on awareness campaign right down to the rural areas to implement the existing laws at the local level, national level and international level. "Otherwise changes may take place in policy but there will be no difference in implementation level.
Member of Parliament Kamal Pant said that there should be 33 per cent participation of women in all fronts of the nation for the restructuring of the nation.The objective of the popular movement would not be achieved unless the government included the women and indigenous people in the task of nation building.
Advocate Sharmila Shrestha of Pro Public called for review of the existing laws in national and international level and awareness campaign on the impact of existing laws.She said there should be the advocacy and lobbying with decision-makers and the dialogue with concerned authorities to disseminate information on the existing laws.
President of the Forum for Women, Law and Development (FWLD) Sapana Pradhan Malla citing a study "The Discriminatory Laws against Women and its Impact"said that 173 different laws of the country were still against women.

Detainees file case

Two detainees have jointly filed a case seeking compensation from police at the Lalipur District Court on tuesday. Detainees Gam Bahadur Gurung and Min Bahadur Gurung filed the case as they were allegedly charged of killing one Krishna Bahadur Thapa Magar. The two have been detained in Nakkhu Jail.The detainees’ duo have filed the case through the jail and charged the defendants for wrongly implicating them in the murder case.
They have claimed that the police had implicated them as they were common people. They have sought Rs 1 crore as compensation from the police officials. Gam Bahaudr Gurung has claimed that he was a driver of Subhatara Bording School and Min Bahadur was an employee of Rajmani Transfer Private Limited.

Tuesday, December 26, 2006

Legal reforms stressed to check social crimes

The desired success regarding the cases registered at the court has not been attained owing to the lack of direct involvement of public prosecutors in the investigative works of the cases.

The public prosecutors are not being able to achieve success in the cases though they are major component of criminal judicial administration as the role of advocacy and lobbying in deciding the cases registered in the court is only coordinating.

Various speakers stressed on the need of bringing about reforming measures in existing laws for the prevention of social crimes, protection of human rights, providing justice to the victims, and establishing rule of law.

It was stressed at a regional annual task review and training programme of government legal practitioners organised here from today.

Attorney General Yagyamurti Banjade said the real victims would only get justice and social crimes would be prevented only when reforms brought in investigation process with a view to removing legal loopholes.

Acting Chief Judge of Appellate Court, Pokhara Mohan Prasad Ghimire said the cases are not successful if appropriate examinations would not be carried out in the lack of public prosecutors in the investigation.

Also speaking at the programme were Legal Reforms Council Secretary Mohan Banjade, Nepal Bar Association Vice-chairman Bishnu Kushal Bhujel, Nepal Legal Practitioners Council Member Hari Subedi, Appellate Bar Association, Pokhara Chapter Chairman Phadindra Koirala, Deputy inspector General of Police (DIGP) Ramesh Kumar Shrestha and others.
Judiciary acted under royal duress: Ex-acting CJ

Former acting Chief Justice Bhairav Prasad Lamsal on monday told the Investigation Commission headed by former Appellate Court Judge Madhav Prasad Ojha that the royal regime had directly or indirectly pressurised the judiciary.Lamsal, currently an ex-officio member of the Judicial Council (JC), apprised the Commission, that has been investigating into the alleged use of excessive force by the dissolved Royal Commission for Corruption Control (RCCC), of the intervention by the royal regime in the judiciary. “The RCCC had worked as if it was above the Supreme Court and it had arrested the District Court Judge Birendra Kumar Karna,” a member of the Commission said quoting Lamsal.
Lamsal attended before the commission and recorded his statement today. “I had not given permission to the RCCC to arrest the judge,” Lamsal claimed. He also told the Commission that without his permission, the RCCC had quoted him in a fraudulent manner while prosecuting judge Karna in a corruption case. Lamsal also added that the RCCC had encroached upon the authority of the Judicial Council while taking action against Karna. “It was the jurisdiction of the Judicial Council and not the RCCC to take action against any judge,” a member of the Commission Ram Prasad Gaudel quoted Lamsal as saying. “I told them to send the case to the Judicial Council, but they did not do so,” Lamsal added.This was the first time an ex-officio member of the JC has been interrogated by any panel.
“The RCCC worked as if it could overrule the apex court’s verdict,” Lamsal said. RCCC’s Investigation Officer and Spok-esperson Prem Raj Karki claimed they had worked as per orders from above. The Commission interrogated Investigation Officers Krishna Prasad Sapkota, Pratap Sharma Paudel and Rajendra Prasad Pokhrel.

Monday, December 25, 2006

41 candidates in fray for Bar poll

A total of 41 candidates are in the fray in the election of the Nepal Bar Association Central Working Committee going to be held on January 13, 2007.

The election is taking place for total 17 posts including one President, five Vice Presidents, one General Secretary, one Treasurer and nine Members.

As per the final name list published by the Nepal Bar Association Central Election Committee, 2006, four candidates have filed their nominations for the post of President.

Accordingly, senior advocate Basanta Ram Bhandari from the Democratic group, senior advocate Bishwakanta Mainali from the progressive and professional group and advocate duo Trilochan Gautam and Taranath Dhungana from among the independents have filed heir nominations for the post of president.

Similarly, a total of 11 nominations have been filed for the post of one Vice President from each of the five Development Regions. Among the 11 nominations filed so far, three are from the Eastern Development Region and two each from the Central, Western, Mid-western and Far-western Development Regions.

Mrs. Ishwari Dahal who had given her candidature for the post of Vice President from the Central Development Region as an independent withdrew her name today.

Similarly, Upendra Keshari Neupane, Raman Kumar Shrestha and Shyam Bahadur Shahi have filed their candidature for he post of General Secretary from the Democratic group, Progressive and Professional group and independent respectively.

Prabhat Adhikari has filed his nomination for the post of Treasurer from the Democratic group and Sabita Bhandari Baral from the Progressive and Professional group.

In the same manner, a total of 21 persons have filed their nominations for the post of Members. Of the total 21 candidates, nine are from each of the two groups and three are independents. Three of the candidates are women.

According to Komal Prakash Ghimire, Chief Election Officer of the Bar Election Committee, the total number of voters is 9,500 including the senior advocates, advocates and para-legals.

Arrangements would be made for some 40 polling centres throughout the country for the election that will take place on the same day. The Bar election takes place every three years for the election of a new Central Committee.

Election Commission is waiting for laws

Chief Commissioner for Election Commission Bhoj Raj Ghimire on sunday urged the government to accelerate its preparation for formulation of relevant laws in order to hold the election of Constituent Assembly in time.

“The Election Commission now is in urgent need of at least five laws to function in a proper way. Without the laws, we cannot proceed,” he told mediapersons at Reporters’ Club. He said the commission could not carry on updating voters’ list without Voters’ List Law and certain other laws.

The commission is now confident that the transparent or plastic ballot boxes will be used in the constituent assembly elections. But, it has not decided on using electronic voting machines.
Ojha Panel Grills RCCC Officials

The commission headed by former Appellate Court judge Madhav Prasad Ojha, which was formed to investigate about the excessive force used by the disbanded Royal Commission for Corruption Control (RCCC), has begun interrogating officials of the dissolved panel.

"Today we began interrogating Prem Raj Karki, the investigation officer and spokesperson of the RCCC, and Tunga Raj Pandey, a water resource expert associated with the panel," said a member of the commission, Ram Prasad Gaudel, on Sunday.

He said the panel would summon the RCCC chief Bhakta Bahadur Koirala and other members once it finishes interrogating few other officers.
On December 21, the commission had summoned former acting Chief Justice Bhairav Prasad Lamsal who had allowed the RCCC to arrest Pyuthan District Court Judge Birendra Kumar Karna. Lamsal, however, has not attended before the commission until today. "We hope that he will attend tomorrow," Gaudel said.

The commission has given three days for Lamsal to attend the commission office and give his statement on why he allowed arrest of Judge Karna.

Sunday, December 24, 2006

CJ meets Lebedev

Chief Justice Dileep Kumar Poudel had a meeting with Chief Justice of Russian Federation VM Lebedev in Moscow, yesterday. On the occasion Chief Justice Poudel expressed his appreciation for Russian helps in development, industrial and educational activities of Nepal. On the occasion Chief Justice of Russian Federation Lebedev informed about justice administration and appointment of judges in the Federation. Chief Justice Poudel met with Chairman of Constitutional Court of Russian Federation VD Zorkin on the same day. Chief Justice Poudel visited also the Supreme Court and Constitutional Court of Russian Federation, Nepalese Embassy in Moscow has said. RSS

Saturday, December 23, 2006

SC Notice to Govt on Water Supply Privatisation
The Supreme Court on Friday issued show cause notices to the government authorities demanding reasons why the government was planning to hand over the management of water supply in the Kathmandu Valley to an international company.
A single bench of Justice Rajendra Kumar Bhandari issued the 15-day show cause notices responding to a writ petition jointly filed by a group of advocates including Jyoti Baniya and the Drinking Water and Users Group Federation challenging the government's plan.
The bench also called the authorities the Prime Ministers Office and the Cabinet and the Ministry of Water Resources to send their representatives before the apex court on December 27 to enable SC to decide whether or not to issue a stay order on the issue.
The petitioners have claimed that it was the right of the people to get pure drinking water and it is the responsibility of the government to ensure that and that any government cannot escape from the responsibility.The government is planning to hand over the management of water supply system in the Kathmandu valley to Severn Tent Water International Private Limited, a British company for $ 8.5 million.

Friday, December 22, 2006

Load-shedding to continue: SC
The Supreme Court on Thursday refused to issue an order to the government authorities, including the Nepal Electricity Authority, to withdraw its decision to impose load-shedding.A division bench comprising Acting Chief Justices Kedar Prasad Giri and Justice Min Bahadur Rayamajhi refused to issue the order, saying that production of electricity depends on level and discharge of water.“The production of electricity is based on flow and level of water. Since the level and flow cannot be controlled, there is no need for the apex court to intervene in the matter,” the bench observed. Challenging the government decision to impose load-shedding, advocate Bhupendra Prasad Pokhrel had filed a writ petition a few days ago.
Probe Commission Summons Former Acting CJ

The commission formed to probe use of excessive force by the disbanded Royal Commission for Corruption Control (RCCC), on Thursday summoned former justice of the Supreme Court Bhairav Prasad Lamsal.Lamsal is currently an ex-officio member of the Judicial Council and he had allowed the RCCC to arrest Pyuthan District Court judge Birendra Kumar Karna when he (Lamsal) was the Acting Chief Justice.

The commission has given Lamsal three days' to present himself before it and record his statement. "We want to know from him why he had allowed the RCCC to arrest Karna, since he knew that the RCCC was an unconstitutional body," a member of the commission, Ram Prasad Gaudel, said.

The commission has also summoned government attorneys Prem Raj Karki, Rajendra Pokhrel and an official of the National Investigation Department Krishna Prasad Sapkota to present themselves before the panel within seven days.

The commission has been interrogating a number of police officials who had arrested former Prime Minister Sher Bahadur Deuba at midnight. According to Gaudel, the commission interrogated SSP Binod Singh and Prakash Kunwar, SP Madhav Khanal and 25 other police personnel in this connection.

Thursday, December 21, 2006

NA responsible for the custodial death of Maina Sunuwar: OHCHR

The Office of the High Commissioner for Human Rights (OHCHR) in Nepal has said that soldiers of Birendra Peace Operations Training Centre in Panchkhal led by Lieutenant Colonel Babi Khattri of the Nepali Army (NA) were responsible for the death of 15-year-old Maina Sunuwar, who died in custody in February 2004
A study report made public by the OHCHR in Nepal quoted a Court of Inquiry report of the NA as mentioning that Maina Sunuwar was subject to torture in the presence of seven NA officers and soldiers, including two captains who ordered that Maina Sunuwar’s head be submerged in a large pot of water for one minute six or seven times under the orders of then Lt. Col. Babi Khatri.
According to the report, the soldiers then administered electric shocks to her wet hands and feet four or five times; the torture continued for one and a half hours, after which she was detained in a building on the premises of the Training Centre, where she was left blindfolded and handcuffed; she later began vomiting and foaming at the mouth, and died without having received medical treatment.
The Court Martial ordered the two captains to pay Rs 25,000 and the colonel to pay Rs 50,000 as compensation, and ruled them ineligible for promotion for one and two year(s), respectively.
Speaking at press meet to release the report, Chief of the OHCHR in Nepal, Lena Sundh said the case illustrates the many obstacles that victims of human rights violations or their relatives still face when seeking redress,” adding, “It also raises serious concerns about the apparent lack of political will on the part of the government to hold accountable members of the security forces suspected of involvement in human rights violations.”
The report further said that despite numerous requests, the NA has failed to provide OHCHR-Nepal with copies of documents associated with the Court of Inquiry Board and Court Martial. “However, through other sources, OHCHR-Nepal has obtained a document which appears to be the report of the Court of Inquiry Board,” the report added.
NA’s refusal to provide documentation related to Maina Sunuwar’s torture and death directly to OHCHR-Nepal was not the result of confidentiality issues as claimed, but was part of an attempt to cover up the gravity of the abuses, the OHCHR added.
In response to these many requests, the NA has provided OHCHR with only summary information, and has refused to supply OHCHR with a list of charges or the full text of the Court Martial decision, the report added.
The OHCHR report further said that the criminal investigation by civilian authorities into the death of Maina Sunuwar, including a proper exhumation, be completed - both to provide accountability for Maina Sunuwar’s death and to deter future human rights violations.
OHCHR has repeatedly brought to the attention of the NA that international standards require that serious human rights violations be tried in civilian courts, not by military tribunals.
The report further said that there is still an opportunity for the government to demonstrate to the Nepali people and the international community that it is serious about ending impunity by holding human rights violators accountable for their actions.
Stating that the Chief of Army Staff has given his assurance to OHCHR-Nepal that he is committed to co-operating with the Nepal Police in this matter, the OHCHR said, “It is essential that he fulfill this commitment and that the authorities ensure that justice finally take its course in the Maina Sunuwar case, and that other cases of serious human rights abuses will not be similarly blocked from the civilian courts

Tuesday, December 19, 2006

Koirala met Upadhyaya to Lead NHRC

Prime Minister Girija Prasad Koirala on tuesday met with proposed chairman of the National Human Rights Commission (NHRC) Bishwa Nath Upadhyaya at the latter’s residence at Gyaneshwor and asked Upadhyaya to accept the NHRC post.

Koirala tried to convince Upadhyaya to lead the commission by promising that there would be no political interference in the appointment of members of the commission.

Former Chief Justice Upadhyaya, who was the coordinator of the constitution drafting committee for the 1990 constitution, was named chairman of NHRC by the constitutional Council headed by the Prime Minister yesterday. His nomination was approved by the special meeting of the cabinet the same day.

Koirala had went to Gyaneshwor to convince the former CJ to head the NHRC after Upadhyaya expressed dissent that the PM did not consult with him regarding the appointment of members of the commission.

Upadhyaya also said the nominations in NHRC should not be political and he will have to think twice before accepting the position.

In today’s meeting with the former CJ, Koirala tried to convince Upadhyaya to lead the commission by promising that there would be no political interference in the appointment of members.The government had also appointed Gauri Pradhan and Lila Pathak as the members of the commission.

After today’s meeting with the PM, Upadhyaya said he would decide on whether to accept the position or not only after he is formally notified about the appointment. Saying that the country’s human rights record must be improved and the task was very challenging, Upadhyaya said he would accept the post only if all things went right.
SC upholds Citizenship Act-2006

The Supreme Court on monday upheld the Nepal Citizenship Act 2006 that was recently promulgated by Parliament.

A single bench of Justice Tahiar Ali Ansari said the act was promulgated according to the needs of the country and, as such, cannot be challenged in a court of law. The bench also said the act was promulgated as per the spirit of the May 18 declaration of the House of Representatives.

Senior advocate Ganesh Raj Sharma and advocates Balkrishna Neupane, Tirlochan Gautam and Amita Shrestha argued with the bench seeking a stay order to government authorities. The bench, however, ruled that there was no need to even issue a show cause notice and scrapped the petition.

Advocate Shrestha had filed the petition on November 29 claiming that the act was against the 1990 Constitution.

She claimed that non-Nepalis will reap the benefits of the act and acquire citizenship certificates. She had demanded that the SC declare the act null and void. She claimed that the same was issued by the House with an ill intention. The Office of the Prime Minister and Cabinet, the House of Representatives, Speaker Subas Nembang and the Ministries of Home Affairs and Law, Justice and Parliamentary Affairs were made the defendants.

Earlier, the Parliament Secretariat had told the apex court that the act was promulgated after declaring Articles 8, 9 and 10 of the 1990 Constitution null and void.
SC order to govt
The Supreme Court on Monday directed government authorities, including the Office of the Prime Minister, the Cabinet and the Ministry of Law, Justice and Parliamentary Affairs, to ensure that the Dalits are not deprived of their rights to rent rooms in the Kathmandu valley.
Stating that house-owners in the valley refuse to rent rooms to the Dalits, Dil Bahadur Bishwokarma had filed a petition. A division bench of Justices Min Bahadur Rayamajhi and Ram Nagina Singh issued the order.
The bench also issued an order to the government authorities to clean the Rani Pokhari within three months. The bench was responding to a PIL filed by advocate Prakash Mani Sharma on behalf of the Pro Public.

Monday, December 18, 2006

I am ready to take oath from interim parliament: Chief Justice
Chief Justice of the Supreme Court (SC) Dilip Kumar Poudel Monday said that he was ready to take the oath of office and secrecy from the interim parliament, as per the interim constitution.
The recently signed Interim Constitution has stated that newly appointed lawyers will have to take the oath of office from the interim parliament, failing which, they will automatically be relieved of their positions.
Poudel made the remarks today during a brief statement to the media persons at the Tribhuvan International Airport prior to boarding a flight to Russia.
"Since lawyers are always committed to the constitution of a country, if the statute makes such a provision to this end, we will take the oath of secrecy from the parliament," Poudel said.
The seven-party alliance and Communist Party of Nepal-Maoist leaders on December 16 agreed to finalize the interim constitution transferring the responsibility of head of state from the king to the prime minister.
The top leaders of the eight parties, in the interim statute made it mandatory to take fresh oath of office to justices of Supreme Court, Appellate Court, District Court as the commitment towards the Constitution and those who ignored would be terminated.
The existing House of Representatives and National Assembly would automatically be dissolved with the promulgation of this constitution, which is expected to take place after the arms management of the Maoists and state.
The Constitution of the Kingdom of Nepal-2047 BS would be nullified after the promulgation of this constitution.
Bishwanath Upadhaya new NHRC chairman

The government on recommendation of the Constitutional Council (CC) on Monday appointed former chief justice of the Supreme Court Bishwa Nath Upadhyay as chairman of the National Human Rights Commission.

A cabinet meeting held at the prime minister's residence at Baluwatar this afternoon also appointed four others as commissioners of the national human rights watchdog.

Upadhyaya had previously served as the coordinator of the constitution drafting committee for the 1990 Constitution.

The other members of the commission are: Udaya Nepali, Gauri Pradhan, Tulsi Bhattarai and Meena Pathak.

According to sources, more recommendations would be made that will include individuals from women, janajatis and madhesi communities.
Interim statute historic document : experts

The Interim Constitution of Nepal should be taken as document of historical importance as it has tried to institutionalise inclusive democracy by ending monarchy, to establish right to education, health and employment as fundamental rights and to open road for election to constitutional assembly, legal experts, politicians and intellectuals have said. In a face-to-face programme, organised by Reporters' Club Nepal, here on sunday, they said though there are some weak points in interim constitution, it has come as a political document and it should be promulgated at the earliest.
Convenor of interim constitution drafting committee Laxman Prasad Aryal said the constitution, in true meaning, has made Nepali people sovereign and has handed over the king's power to reign to the Prime Minister. He stressed that the constitution has created an environment where a citizen can be the head of state.
Member of Parliament Radheshyam Adhikari said the provisions to make single person the head of state and Prime Minister, to present annual report of Supreme Court in parliament through Prime Minister and to avoid existence of opposition party are the weak points of the constitution.
Central Member of Nepali Congress Dr. Shekhar Koirala said as the constitution has made the provision that Prime Minister can use the power of head of state he should shun partisan interest and be focused on national interest and constituent assembly.
India ready to revise 1950 pact : Mukherjee

Visiting Indian External Affairs Minister Pranab Mukherjee Sunday gave positive indications that India was willing to settle the longstanding issues related with the Mahakali treaty, 1950 treaty and Nepal-India border treaty through consultations besides expressing his government's support to Nepal's ongoing peace process."I was the one to have initialed the Mahakali treaty, there were some problems and the process was little disturbed and thus it did not get the needed concern,"Mukherjee said adding the Detailed Project Report (DPR) has to be prepared by the joint technical team before working further.
"We are waiting for a nod from the Nepalese side,"Mukherjee, who is the first Indian minister to have visited Nepal following the April uprising, told a hastily organised press conference here today. The Mahakali treaty signed between Nepal and India in 1996 to jointly harness the waters of the Mahakali River in west Nepal based on mutual equality could not carry out the stipulated works due to differences over the location where the powerhouse should be constructed.Although it was initially agreed that the DPR on the Pancheswore project to be constructed under the Mahakali treaty would be prepared within six months from the date of signing the treaty, the two sides have failed to work out the DPR even after a decade.Regarding the 1950 treaty of peace and friendship between Nepal and India, Mukherjee said that he did not have any discussions with the Nepalese leaders about revising the treaty but added, "We are prepared to revise the treaty if and when the Nepalese side approaches.
"To a query on when the two countries would finally have a border treaty in place, Mukherjee said, "Talks are going on regarding the treaty, but I cannot state the exact date when it will be signed."He said that the big strides taken to consolidate peace and democracy in Nepal in the aftermath of the April movement had amply proved that the Nepalese have taken their destiny in their hands and were capable of facing the future challenges.
14-yr term, fine for rhino horn smugglers

District Forest Office (DFO) has sentenced four rhino horn smugglers to 14-years imprisonment and fined them Rs 100,000 each.
However, only two of the accused are in custody, while the other two smugglers yet to be arrested.
A jury of forest officials led by DFO chief, Baburam Gurung on Tuesday slapped the jail term on the four--Kunga Tamang, Tashi Gurung, Bal Bahadur Gurung and Tilak Bahadur Thing--all of Khaireni VDC-4 of the district. According to DFO sources, Tilak and Bal Bahadur are still at large.
The other two were arrested from Narayangadh five years ago in possession of a rhino horn. The sentencing is the "greatest" decision by the DFO in the history of Chitwan National Park (CNP), claimed the DFO source.
Poachers, forest guards trade fire
SC judges dissatisfaction at Judicial Council plan

Dissatisfied over the provision in the interim constitution that requires the Supreme Court (SC) judges to take oath and the composition of the Judicial Council (JC), a few SC judges are talking of resigning.

Some judges of the apex court have expressed dissatisfaction on the proposed Judicial Council as they feel that the proposed Judicial Council wants to make the judiciary committed to the executive.

“The politicians want a committed judiciary,” a senior justice of the court told. He added that the proposed Judicial Council shows that the politicians want to humiliate the judges. Now, the legal experts who will be nominated by the Prime Minister and the representatives of the Nepal Bar Association (NBA) will be senior members than the SC’s senior most judge in the Judicial Council. The Judicial Council will appoint and take action against judges of the Appellate Courts and the District Courts.

According to another Justice, a few ad hoc judges are planning to resign as they might not get extension once the interim constitution comes into force.

Justice Anup Raj Sharma, however, said there is no choice for any judge but to take a fresh oath. Under the interim constitution, those who refuse to take fresh oath of office will lose their jobs.

Some judges have suggested to exclude sitting Prime Minister from facing any case in a court of law as a judge appointed by the PM-controlled Judicial Council will not be in a position to impartially decide a case against him. In the proposed set-up, the Prime Minister will control the JC through the Law Minister, representatives of the PM and the Nepal Bar Association. “This will be a sheer violation of the independence of the Judiciary,” a senior justice said.

“As a judge, my function is to interpret the constitution promulgated by the authorities and not to make choices on the type of constitution,” said Justice Balaram KC. “But my concern is whatever the constitution be, the fundamental rights of the people, the rule of law and the independence of the judiciary must remain intact,” KC added.

Advocate Radheshyam Adhikary also said that it is against the principle of separation of powers and checks and balance to submit the annual report of the SC to the PM as required by the interim constitution. “It makes the judges more accountable to the executive,” Adhikary added.

Sunday, December 17, 2006

Nation moving towards republic: Aryal

Former Supreme Court Justice Laxman Prasad Aryal on saturday said that the nation was indeed heading towards a republican set-up and that only issue was whether it will end up to be the “people’s republic” or stop at “democratic republic.”

“Of course the nation is now hurtling towards a republican set-up. But we have yet to see whether it will be “people’s republic” or “democratic republic”, Aryal said, while commenting on the future course of the nation following the finalisation of the interim constitution draft.

He also appreciated the way the seven-party alliance and the CPN-Maoist leadership finalised the draft of the interim constitution. Aryal, who headed the committee which drafted the interim statute following the April uprising, said that the parties have indeed retained the spirit of the draft he had presented to the government and Maoist talk teams. “The spirit has been retained. It is now a consensus document, too,” Aryal said.

Saturday, December 16, 2006

Leaders put their signature in the interim constitution

The ruling Seven Party Alliance (SPA) and the Maoists finalized the interim constitution draft early Saturday morning. While remaining silent on the issue of head of state, they have agreed to transfer all authorities of the head of state to the prime minister during the transitional period.

Following days of intense debate over who should be head of state, the parties arrived at a consensus not to mention anything on the status of the king who has been stripped of all powers until the first meeting of the constituent assembly, which will decide the fate of monarchy.

In a comprehensive peace accord signed on November 22, the parties had agreed to decide the fate of monarchy through the first meeting of the constituent Justify Fullassembly. They had also agreed to nationalize the king's property inherited by virtue of ascendance to the throne and put late King Birendra's and his family's assets in a trust. However, the private property of King Gyanendra will remain with him.

Top SPA and Maoist leaders finalized the 168-article draft constitution Saturday morning. The interim constitution will, however, come into force only after the process of arms management is complete. The date of the agreement will be mentioned as December 15 as the parties take Poush 1 (December 16) as Black Day because on this day in 1960, the panchayati constitution was promulgated.

The arms management process includes cantoning the Maoist army, verification of their arms, locking up arms in containers and installing electronic devices by the UN. An equal number of arms from the Nepali Army is also to be locked up and the army is to be confined to the barracks as per the November 28 agreement on arms management.

The ruling parties and Maoists also agreed Saturday to provide reservation for women, dalits and other backward communities only in the 204 seats to be elected through proportional representation system. They agreed to make the list of candidates to be elected from 205 geographical constituencies more inclusive.

The Election Commission will finalize other technical aspects of the election like number of ballot papers and ballot boxes after due consultation with the parties, according to the agreement.

As per the new constitution, all the people born before or residing since the 1990 movement will be regarded as Nepali citizens.
The parties also agreed to provide for a six-member Security Council for the purpose of mobilizing the Nepali Army. Apart from ex-officio members--prime minister, defense minister and home minister--the prime minister will nominate three members from among the cabinet ministers in the Council.

They also agreed to keep intact the traditional national symbols including national animal, national bird and national flower. The Maoists were insisting till the last hour to replace the existing national animal cow with something else but no suggestion was made.

The issues of head of state, electoral system, some fundamental rights including the rights to education in mother tongue, healthcare and employment and cow as the national animal were major differences in the draft constitution prepared by former Supreme Court justice Laxman Aryal-led committee. Later, a team comprising Home Minister Krishna Sitaula and Maoist leader Dr Baburam Bhattarai worked on the draft for six days.

As per Saturday's agreement, the rights to education, healthcare and employment are addressed in the directive principles of the state policies and will be guaranteed through separate laws.

As per the agreement, the new constitution will provide for a separate Constitutional Council to recommend appointments in constitutional bodies. The constitution agreed to on Saturday has made it mandatory for judges to take fresh oath of office under the new constitution. Some fringe leftist parties in the ruling alliance and the Maoists were insisting for fresh appointments but larger allies opposed it saying it would politicize the "independent" judiciary.

The present parliament restored last April will promulgate the constitution while an interim legislature to be formed after inclusion of Maoists will endorse it.

Top leaders of the SPA and the Maoists met only after a series of consultation among Prime Minister Girija Prasad Koirala, CPN-UML general Secretary Madhav Nepal, Nepali Congress (Democratic) president Sher Bahadur Deuba and Maoist Chairman Prachanda and their bilateral meetings.

-Constitution silent on head of state
-Prime minister to use all powers of head of state
-Fresh oath of office mandatory for judges
-The 168-article constitution to be enforced only after arms management
-Reservation only on proportional representation seats
-Education, healthcare and employment out of fundamental rights, but in state's directive principles
-No change in national symbols, national animal cow retained
-Six-member security council to mobilize national army

Friday, December 15, 2006

SC rejects case against King

The Supreme Court on Thursday dismissed a petition filed against King Gyanendra.

Acting upon a petition filed by advocate Jitman Basnet, a single bench of Justice Tahiar Ali Ansari ruled, "Since the rejection order passed by the administration (registar) of the SC was based on existing law, there was no need to proceed it further."

After the rejection order by the administration, advocate Basnet has challenged the administration's move in the Justice's bench.

Joint registar Til Prasad Shrestha had refused to admit a contempt of Court case filed against King Gyanendra and army officials.

The SC administration had rejected the petition citing technical ground.

Supreme Court scraps social act’s provisions

The Supreme Court on thrusday asked government authorities to promulgate same provisions in the law for punishing brides and bridegrooms who ask for or offer dowry. The apex court scraped two provisions of the Social Behaviour Reforms Act, 1976, terming them discriminatory between men and women in terms of punishment. A special bench of Justices Anup Raj Sharma, Ram Prasad Shrestha and Pawan Kumar Ojha declared Clauses 3 and 4 of the Act null and void, “as provisions are discriminatory and against Article 11 the 1990 Constitution”. The bench was responding to a Public Interest Litigation filed by Meera Dhungana on behalf of the Forum for Woman, Law and Development. According to the scrapped provisions, a bridegroom fa-ces up to one month jail term and Rs 12,000 to Rs 25,000 fine if he seeks dowry from the family of bride, whereas the bride gets up to one-year jail term and Rs 12,000 to Rs 25,000 for demanding gifts from the bridegroom. The bench directed the government authorities — the Office of the Prime Minister and Cabinet, the Ministry of Law, Justice and Parliamentary Affairs and the Parliament — to promulgate an equal provision in this regard. Advocate Dhungana had filed the PIL in the apex court one-and-a-half-year ago, claiming that the provision was against Article 11 of the 1990 Constitution.
SC show cause on army ration case
The Supr-eme Court on Thursday issued a notice to government authorities asking why a re-tender was invited for the supply of ration to the Nepali Army’s No 24 Battalion in Jumla. The apex court also issued an interim order in the name of defendants against retaking the tender.
It asked the authorities to maintain status quo till December 17. A single bench of Justice Rajendra Koirala issued the order in response to a writ petition filedon December 8 by Indra Bahadur Khatri in which the Nepali Army Headquarters and its Quarter Master Department were made defendants.
Signature drive against former CJ

Members of the Nepal Bar Association on thrusday began a signature campaign against former Chief Justice Mohan Prasad Sharma whose name has been discussed for the post of chairman of National Human Rights Commission (NHRC). The lawyers demanded that the NBA president put pressure on the government not to appoint Sharma as they claimed that he is not fit to head NHRC. “If the government appoints him, we may be compelled to launch a movement against the government,” they warned. Twenty-three lawyers submitted a memorandum to NBA president.
Govt agrees to changes in Education Act

Bowing to mounting pressure from students, the government today agreed to meet demands put forth by the agitating students. The government agreed to bring in changes in the newly-amended Education Act and provide job opportunity through free competition in accordance with rule 133 of the House of Representatives (HoR) Regulation. The amendment was endorsed by the HoR on November 23.

According to the agreement on thrusday, all temporary teachers will be given a last chance to compete for appointments in community schools. There will be no age limit for the temporary teachers. The new amendment had barred fresh graduates from competing for teachers’ jobs.

The government and student unions also agreed to make the teachers’ licence examination more practical. The students had been demanding that the licence examination, which had been suspended, should be held at the earliest and an advertisement for the same be published by the Teachers’ Service Commission.Agreement was also reached on preparing the educational regulation only after an agreement with stakeholders concerned after addressing all educational problems.

Education Minister Prof Dr Mangal Siddhi Manandhar and the representative of the Tribhuvan University Central Students’ Committee (TUCSC), signed the agreement.

Thursday, December 14, 2006

Nepal ranks third in human rights violations

The Asian Centre for Human Rights (ACHR) has ranked Nepal 3rd in issue of human rights violations.

A newly released SAARC Human Rights Violators’ Index 2006 released in New Delhi on Wednesday said apart from repression of political parties, violations of the right to life were widespread in Nepal.

About 1,524 persons – 815 persons by the security forces and 709 persons by the Maoists – were killed in 2005.

“Nepal remained the most dangerous place for children in South Asia with extra judicial execution, torture and forcible recruitment,” the report noted.

An estimated 58 children, including 16 girls, were reportedly killed during January - September 2005 alone. Of them, Maoists reportedly killed 46 children, including 11 girls. Over 140 children were reportedly injured by the security forces and the Maoists during 2005, including at least 80 in bomb explosions by Maoists.

ACHR has appreciated the role of judiciary under trying circumstances. “The Supreme Court of Nepal admitted petitions challenging the constitutional validity of ordinances issued by King Gyanendra, thereby, questioning the authority of the despotic ruler,” the report adds.

Half of all the cases of press censorship in the world in 2005 were reported from Nepal and at least two journalists were killed, 425 journalists were arrested, attacked or threatened. Accountability for human rights violations in Nepal remains the key challenge, the report added.

Bangladesh has been ranked No. 1 violator of human rights, followed by Bhutan, Nepal, Maldives, Pakistan, Sri Lanka and India at No.7.

Lawyers Oppose Govt Plan to NHRC Appointment

At a time when the Council of Ministers is going to formally discuss the name of former Chief Justice Mohan Prasad Sharma to head the National Human Rights Commission (NHRC), lawyers on Wednesday came down heavily against him.
They alleged that Sharma had played an important role in suppressing the 1990 Jana Aandolan and promoted corruption in the Judiciary while he was the Chief Justice.
Sharma had detained current state minister Dharmanath Prasad Shah and Attorney General Yagya Murti Banjade in 1990 when he was the chief judge of the then Pokhara Regional Court.
"He had detained 17 lawyers as per the order of the royal regime then; how can he head the NHRC in the current situation?" asked former president of the Nepal Bar Association (NBA) Harihar Dahal. According to him, Sharma had then locked up NBA's Pokhara unit office when lawyers were demonstrating for the restoration of democracy. "How can a supporter of an autocratic regime protect people's fundamental rights?" he added.
In 1997, the NBA had decided to boycott Sharma's bench accusing him of not being able to prevent corruption in the Judiciary when he was the Chief Justice. The NBA had withdrawn its protest against him after the Supreme Court and the NBA signed an agreement to jointly fight against corruption.
"The NHRC must be led by a person who respects human rights," said another advocate Agni Kharel. Sharma cannot lead NHRC in this crucial situation, Kharel added.
Attorney General Banjade, however, said that the government has not consulted him regarding Sharma's appointment in the NHRC. "The lawyers have strongly opposed him because he had behaved badly with them," Banjade added.
Sharma claimed that he was offered the post by the Krishna Prasad Bhattarai-led government, too. "So, if I get a chance I will think on it. I am ready to face investigation on any allegation against me," Sharma added.
43 people killed since April: NHRC

National Human Rights Commission (NHRC) on wednesday came up with data that 43 people were killed during the past six months of ceasefire.
“Fifteen persons were killed by the Maoists, 11 by the state, five by vigilante groups, another five in explosions of Improvised Explosive Devices (IED), and another seven persons were found killed by the unidentified,” said Dhruva Nepal, officiating secretary at the NHRC.
The National Human Rights Commission received a total of 1,158 complaints during the period. According to the complaints registered during the past six months, 177 persons are reported to have been abducted by the Maoists, and 168 others were found to have been disappeared by the security forces. Most of the complaints, however, are related to the pre-ceasefire period.
Also the complaints on killings and murders, which but include the incidents prior to ceasefire, are bigger in number.
Altogether 109 cases of killing by the security forces and 58 killing of Maoists were registered during the past six months. 52 complaints are related to torture by the security forces, while 31 others are related to torture in Maoist hands.
15 complaints were related to the displaced by security forces, while 64 cases were related to the displaced by Maoists, according to the report prepared by the National Human Rights Commission in the past six months.
Eight other cases registered were related to the injured in explosions and three other complaints were related to the killing in crossfire prior to the ceasefire.
The NHRC has already suggested that the Maoists and the government take action like releasing or making public the name of those abducted.
“The Maoist leadership has expressed commitment to us, but the commitments have not been implemented in practice, rather in some of the cases they have not even given access to us for investigation,” said the officiating secretary of National Human Rights Commission, Nepal.The cases in which the Maoists have not given access to NHRC officials are related to the abduction in the name of justice providing by the people’s court.
He also said that the government, too, has not taken the recommendations of the NHRC seriously, as it has so far considered only 36 cases out of the 147. Most of the cases considered are related to compensating the victims, according to Nepal.
Asked if National Human Rights Commission officials are facing problems in the absence of chairperson and members, he said there were several matters which need policy-level decisions and are stuck in the absence of senior officials.
“Several administrative work and the decision related to providing recommendations to the government could not be done in the absence of senior officials,” he added.

Tuesday, December 12, 2006

Enforce code of conduct effectively: Ex-CJ

As the judiciary is facing criticism for some court decisions, former Chief Justice Kedarnath Upadhaya has strongly urged the Judicial Council (JC) to strictly implement the code of conduct for judges.

Speaking at an interaction in the capital Monday, Upadhaya said that judges who breached the code of conduct should be punished.

"The code of conduct is useless unless we implement and monitor it well," Upadhaya added.
He also presented a paper on 'Code of Conduct for Judges' and urged all judges to follow it.

Member of the JC and senior Justice of the apex court, Min Bahadur Rayamajhi reiterated that the council would evaluate the code of conduct for its effective implementation.

Speaking at the same programme, Justices Anup Raj Sharma and Sharada Shrestha also underlined the need of effective implementation of the code of conduct.

"Judges should evaluate themselves against the code of conduct," Sharma added.

Other speakers of the programme also suggested effective implementation of the code and its re-evaluation as it was brought into effect some eight years ago.

Monday, December 11, 2006

NA to send reply to SC on Army welfare fund soon

The Nepali Army (NA) has said that it will send reply to the Supreme Court (SC) regarding the transparency of the Army Welfare Fund soon.

Speaking at a press conference on Monday, Director of the Directorait of the Public Relation (DPR) of the NA, Brigadier General Anant Bahadur Thebe said that as the army is ready to follow the directives of the civilian government, it would send the reply to the SC soon.

He also claimed that the welfare fund of the NA is transparent and they are giving information about the income and expenditure of the fund to all the stakeholders through regular publication of the Army entitled “Army Order”.

Giving information about the welfare fund, Director of the Army Welfare Directorate, Brigadier General Kumar KC, informed that the fund has total reserve of 10,066,584,349 rupees at different banks and financial institutions.

He further said that the fund is getting 400 million rupees in interest from the reserve fund and getting 320 million rupees from the 12 percent contribution made by the soldiers serving UN peacekeeping missions from their allowances.

According to NA, the fund has three billion arrear at present.

Nepal started sending soldiers in UN peacekeeping missions from 1958 and so far 56,298 NA soldiers had served in the world body’s peacekeeping missions.

Currently 2,195 NA soldiers are serving in 14 different missions of the UN.
Call to revise Judges’ Code of Conduct

Judges on sunday stressed the need to amend the Judges’ Code of Conduct 1998 and its implementation to make the judiciary impartial and independent. “The Judges’ Code of Conduct of 1998 is not enough and as such the need of the hour is to review it,” Supreme Court Justice Min Bahadur Rayamajhi, who is also an ex-officio member of the Judicial Council (JC), said.

He added that the conduct requires a revision by the apex court and the Judicial Council to make it suitable with the changing times. “Being a member of the JC, I will put the issue in the full court meeting of the Supreme Court and the JC,” Rayamajhi said. He was addressing a programme on the Judges’ Code of Conduct organised here today.

Rayamajhi also called on the press and civil society to be aware of every action of the judges, “as people have right to know the truth.”

Rayamajhi also said that the conduct should be fully implemented and action iniotiated against those who violate it. “We have taken action against 23 judges for their bad conduct since the promulgation of the 1990 Constitution,” Rayamajhi said, adding, “Some of them have been sacked and some of them have resigned after the Judicial Council’s investigation found them guilty.”

“Such activities of the judges tarnish the image of the judiciary,” he said.
Don't Tamper with Draft Interim Statute: Aryal

Even as the seven-party alliance and the Maoists have different opinions on how the interim statute should look like, former Supreme Court judge Laxman Prasad Aryal said the parties should not tamper with the contents of the interim constitution. Aryal headed the panel, which had drafted the interim statute.
"They (parties and Maoists) are finding it difficult to finalise the interim statute just because they are not methodical. They are also out of step with each other," Aryal said while speaking at the Reporters Club on Sunday.

Warning the parties and the Maoists to refrain from many any changes in the text except the section where they have to fill in their point of view, Aryal suggested that the statute may be promulgated after tabling it in the House of Representatives.

"How fast or how belatedly the statute comes may now depend on how long the Parliament takes to finalise it. Any delay in the process could complicate the entire process," Aryal further said, adding that "rather than saying it must come as soon as possible, it is good to say its promulgation will depend on the homework the House of Representatives does in this connection."

He was also of the view that part of the reason why there is delay in promulgating the constitution is the delay incurred by the UN system in kick starting the management of arms following a definite mandate.

Sunday, December 10, 2006

Int'l Anti-Corruption Day observed

Senior advocate Krishna Prasad Bhandary said at a programme organised on the International Anti-Corruption Day that he paid Rs. 30 million bribe to political leaders for the establishment of Kathmandu Medical College.
Different programmes were organised to mark UN Anti-Corruption Day on Saturday. The Anti-Corruption Day is being celebrated since the last two years on December 9 to mark the passing of the International Convention Against Corruption by the United Nations.
At a programme organised by Pro-Public, Keshab Badal of CPNUML said the government should bring the property and income of every citizen within the tax bracket if corruption is to be minimised.Chairman of the Public Accounts Committee of the parliament Chitra Bahadur KC said that corruption had not reduced because government officials and political leaders were involved in.Suresh Ale Magar of the Maoist party put his party's stance that there would be corruption until there is capitalist system. He called for the nationalisation of all private property if corruption is to be abolished.
But Dr. Upendra Devkota said the modern concept of property also includes a person's intellect, thus, the traditional concept of nationalisation of private property would not control corruption.A poll conducted by Pro-Public found that 62 per cent of the respondents say that they participated in the popular movement to end the Maoist insurgency and to establish a corruption free state mechanism.
At another programme on the anti-corruption day, Speaker of the House of Representatives Subash Nemwang said that fight against corruption should start from the top and the main issues should be transparency and accountability.
He said Nepal should ratify the convention against corruption.At the programme, organised by Journalist Group Against Corruption Nepal, Bhim Bahadur Tamang of Nepali Congress said that corruption was encouraged because of incapability of the political leaders and the activities of the party's sister organizations also promoted corruption.
Other speakers talked about amending out concept on corruption, developing system of taking decision collectively, improving the election system, and even reaching more women in the decision-making level.
Int'l Human Rights Day being observed

The 58th International Human Rights Day is being observed across the country with the theme "poverty" amidst various programmes, today.

In his message on the day, Prime Minister Girija Prasad Koirala has assured that with the county entering into a new phase, Nepalis will not have to live under the dark clouds of fear and terror anymore.

“Democratic system is the basis of human rights protection,” Prime Minister Koirala said, adding, “We are now on the way towards consolidating democratic system to ensure human rights.”

Stating that Nepal was among one of the countries with most cases of human rights violation, Prime Minister Koirala said, “Now nobody will be compelled to live under the dark clouds of fear and terror.”

Koirala also appealed all sections of the society to express their commitment towards getting rid of all forms of discrimination against people and suppression thus creating a free society that defends and respects human rights and to respect and abide by the norms and values of human rights.

However, the government is yet to fill the vacant posts of commissioners of the National Human Rights Commission (NHRC), national rights watchdog. The posts of commissioners remained vacant, after all commissioners resigned from their posts following the success of the April movement of the country.

Various national and international rights watchdog and development partners have been asking the government to make appointments at the vacant posts in transparent way.

Meanwhile, in her speech, Chief of the UN Office of the High Commissioner for Human Rights (OHCHR) in Nepal Lena Sundh said, impunity, lawlessness and social discrimination must end as the Nepal moves towards peace after the signing of the Comprehensive Peace Agreement between the government and the Maoists.

Sundh said, firstly, impunity must be ended, especially for serious human rights abuses, adding, "Those who hold positions of power and public responsibility must be accountable to the public, not least State security forces."

Second, there must be a well functioning law enforcement and criminal justice system. Nepal Police must be redeployed to posts in communities across the country, and carry out their duties in a professional and effective manner in order to re-establish the rule of law, the Nepal Chief of the UN rights body said.

"Third, it is essential to address longstanding discrimination against and social exclusion of Nepalis such as Dalits, indigenous peoples, communities such as Badis, groups such as ex-Kamaiyas, people with disabilities and sexual minorities," she added.

Sundh further said that OHCHR-Nepal would now focus on three issues – end to impunity, well-functioning law enforcement with criminal justice system and end to social discrimination – during the transitional phase, apart from monitoring the human rights situation.

"OHCHR-Nepal will work with the incoming Government, and civil society organisations representing marginalised communities in Nepal, to advise and assist in the development of measures that can begin to eliminate discrimination in Nepal and so contribute to eradicating the causes of poverty," she further said.

Mainwhile Chief of Army Staff (CoAS) of the Nepal Army Rukmangat Katuwal on Sunday said that the Nepal Army is committed towards safeguarding the principles of human rights and democracy.

Speaking at a programme organized at the army headquarters on the occasion of International Human Rights day, Katuwal said that the Nepal Army has made strong commitments regarding worldwide human rights principles in Nepal's changed political context.

The CoAS also stated that the incidences human rights violations and excesses that went on during the conflict-period would not be repeated in the future.
Former CJ likely to head NHRC

Former chief justice Mohan Prasad Sharma is likely to be the new chief of the National Human Rights Commission if the cabinet endorses his name. Sharma’s name is likely to be proposed in the cabinet meeting this week, said a top government official. Chances of the cabinet approving Sharma’s name as the new NHRC chairman in the meeting are quite high, he said.

“Sharma is a strong contender for the post of new NHRC chairman and the cabinet would discuss his name,” said the source requesting anonymity. However, names of the probable candidates for the posts of NHRC members are yet to finalised, according to him.All former NHRC members led by chairman Nain Bahadur Khatri had resigned from the commission on July 9 citing unfavourable working condition as the main cause of their resignation.

They had quit the NHRC at a time when the seven political parties were all set to initiate an impeachment motion against the NHRC members in the Parliament.
The NHRC office bearers posts continue to be vacant since then.
Cyber law enacted

With the objective of regularizing the electronic activities and cyber-based transactions, the government has introduced Electronic Transactions Act 2006.

Speaker of the House of Representatives Subash Nemwang authenticated the cyber law on Friday formally enacting it. With the enacting of this law, electronic transactions involving e-commerce or e-business will now receive formal legal sanction.

"The government has introduced this law to make electronic transactions safer and to authenticate the electronic documents and to check cyber crimes," said Purushottam Ghimire, a joint secretary at the Ministry of Environment, Science and Technology.

The cyber law has provisions regarding the definition, use and legality of entire gamut of electronic activities including digital signature, digital documents and so on.

The act also has provision governing network service providers, electronic transactions tribunal, electronic transactions appellate tribunal and computer-related crimes. Till now the administration has been booking cyber offenders under Public Security Act. However, this act has provisions dealing with specific crimes related with computer use.

The computer and information technology entrepreneurs had been demanding such law for a long time.
SC recalls judge Jha
The Supreme Court has called judge Paramananda Jha back from the Biratnagar Appellate Court after it reached an agreement with the Nepal Bar Association and decided not to give him any judicial job.
The Judicial Council, headed by Chief Justice Dilip Kumar Poudel, will take a decision on him.
The SC and the Nepal Bar Association had on Thursday agreed not to give any judicial job to Jha.
“He (Jha) will participate in a training for a few days and the Judicial Council will take an appropriate decision on him until then,” reports quoted register at the Supreme Court Dr. Ram Krishna Timalsena as saying.

Saturday, December 09, 2006

Court to be Moved against Water Supply Privatisation

Several consumer welfare organisations are preparing to file a case against the government's decision to privatise management of Nepal Water Supply Corporation the drinking water distributing authority in Kathmandu and Pokhara Valley.
Water and Energy Users' Federation-Nepal (WEUF), Federation of Water and Sanitation Users' Nepal (FWSU), Consumers' Protection Forum Nepal and NGO Federation Kathmandu are joining their hands to file a case in the Supreme Court seeking an interim order not to sign any contract which would hand over the nation's asset of Nepal Water Supply Corporation to a foreign manager and slap monopoly on the citizen's basic needs.
Addressing a press conference by the four organisations, yesterday, Ram Chandra Chataut, the chairman of WEUF, had said that the government has no authority to make any contract of long-term impacts as its main task is to hold the election of constituent assembly.
"Next, this contract is totally illegal as it has violated national legal provisions and international conventions on water resources," he said. Similarly, privatisation of any government institution is possible only if it is proved that it is in loss and if when privatization is unavoidable, it should first encourage the staffers to buy share and invite other Nepali businessmen to invest on it.
He also said,"The government is trying to run away from its duty to provide drinking water to its citizens and inviting a foreign party with controversial background."According to him, the consumers must have a chance to discuss on need and probability of privatization of distribution body of drinking water.
Indra Tamang, the member-secretary of FWSU, said that the national conference of the federation has decided to fight against privatization of drinking water system."Asian Development Bank has proposed privatization of water distribution system as a precondition for qualifying for its loan for Melamchi Water Supply Project. ADB is now associated now over 30 small towns in the country and there is a big possibility that it will force the government to privatise all water utility bodies there. All the consumers' will boycott all the ADB-funded projects if water distribution is really privatized," he said.

Friday, December 08, 2006

SC Notice to Govt over Controversial Education Bill

The Supreme Court on Friday issued a show cause notice to the government in a case filed against the new controversial Bill to amend the Education Act 2028.
The parliament had last Friday endorsed the Bill giving legitimacy to the government’s bid to give permanent status to temporary teachers.
The Supreme Court also asked the defendants in the case PMO, education ministry, law ministry, and parliament secretariat to attend the court on December 14 for discussion on whether to issue a stay order on any new advertisement to fill the vacant teachers’ post as per the new Act.
Advocates Prakashmani Sharma, Raju Prasad Chapagain and Rama Pant Kharel had moved the court against the Bill saying it was against the proposition, guiding principles of the state and right of equality in the country’s 1990 constitution, and the Parliamentary Declaration 2006.
The petitioners have demanded the SC intervene to scrap the Act. They have claimed the Act was against the rule of law, human rights and universal principles of democracy as the Act would give space to de-meritocracy by giving permanent status to temporary teachers after ‘meeting certain procedure’.
They have also asked the SC to order the government to fill all the vacant teacher’s posts through competition and issue stay order to the government not to implement the Act. They have sought SC direction to the government to the government to bring special package for the professional development of temporary teachers who fail in free competition but are working for over five years rather than giving them permanent status automatically.
Student unions have since then organising regular protests against the bill and have threatened to call a general educational strike if the government did not revoke the Act.

King, crown prince made to pay tax

Now it seems that Royal family members are bounded by the law. Probably for the first time in the history of Nepal since the founding of the Shah dynasty 238 years ago the King and Crown Prince have been made to pay tax.

The Customs Office at Tribhuvan International Airport (TIA) on Wednesday charged Rs 53,739 as duty and tax on 50 pieces of torch light that came recently from the US in the name of King Gyanendra.

The office also charged Rs 77,193 in customs duty, demurrage charge, tax and fine earlier when royal palace officials reached TIA to acquire a 'Hunting Trophy' that came from Vienna, Austria, for Crown Prince Paras, an official said, preferring anonymity.

"We released the torch lights and the Hunting Trophy after slapping Rs 130,702 in customs duty and other charges," the official said.

The 19 kg parcel containing 50 pieces of black rechargeable torch light had arrived at the airport Customs Office from the US in the name of "the King of Nepal" through courier service recently. The Hunting Trophy had arrived on September 10.

Following restoration of democracy in the country in April, the reinstated House of Representatives had made a historic proclamation on May 18 declaring that all royal property as well as the income of the king and royal family members would be taxed.

The customs official said, "This is the first time in the history of the country that tax and other charges have been slapped on goods imported for the king and royal family members."

If there is continued support from political parties, civil society, civil administration and the government, no one will be able to evade taxes and customs duty in future, he added.

On Wednesday, officials from the palace reached the Customs Office and produced letters from the Department of Commerce (DoC) and invoices amounting to 2,245 Euros (Rs 214,105) for the Hunting Trophy and US$ 2,233 (Rs 159,972) for the torchlights.

The office charged Rs 77,193 tax on the Hunting Trophy including 15 percent customs duty, 2 percent insurance charge, 1.5 percent local tax, Rs 1,607 demurrage charge. On the total sum 13 percent VAT was charged before releasing the trophy, the source said.

When asked about the purpose of the letters from the DoC, the official said the Customs Office needs the letters in order to release goods that do not have Letter of Credit and self-declaration form. "We cannot release such goods without taking consent from the DoC," he added.

Meanwhile, the 56 kg Hunting Trophy packed in a wooden box, which arrived by Gulf Air cargo had remained unclaimed at the Customs Office for the last 88 days. According to the official, the trophy is a round, gold-plated item.

A few days after the trophy arrived, some officials from the palace had reached the Customs Office to collect the parcel. They said that they were sent by Sagar Prasad Timilsina, chief of the Private Secretariat at the Royal Palace. They, however, returned empty-handed after the Customs Office asked for an invoice to charge necessary customs duty.

According to the Financial Act, if the concerned person fails to collect goods from Customs Office within seven days of arrival, s/he can claim it within three months by clearing all customs duty and demurrage charge.

CJ Opens Mediation Centre on SC Premises

Chief Justice Dilip Kumar Paudel on Thursday inaugurated the first Mediation Centre set up in the Supreme Court and the Patan Appellate Court with support from the USAID.

Addressing a function organised on the SC premises, CJ Paudel stressed the importance of mediation in the delivery of justice. "Mediation helps people to get justice on time. It (mediation) is a system in which both the parties to a dispute feel that they are not losers," the Chief Justice said, adding, "Now people will get justice quickly, as the apex court has officially opened a mediation centre."

Paudel said that the manual prepared by the Supreme Court would be followed by all the courts while implementing the mediation process.

Seniormost Justice Kedar Prasad Giri expressed the hope that the mediation centre would be successful in providing justice to the people and the judiciary would be able to protect the rights.
Stating that mediation will be prioritised in all the courts, Justice Min Bahadur Rayamajhi said the judges should be honest and refrain themselves from all types of irregularities. He asked everyone to support the mediation centre.

US ambassador to Nepal, James F Moriarty, said the mediation centre will be able to accomplish its job successfully only if lawyers support it. "To date, the Nepal Bar Association (NBA) has supported it. We hope that the support will continue and that the NBA will work with the judges to ensure that mediation is an important part of Nepal's legal system," he said.

Chief of the ARD Rule of Law Project Frederick G Yeager and NBA president Shambhu Thapa called on judges and lawyers to make mediation process a success in order to provide timely justice to the people.
Supreme Court not to assign any work to Jha

The Supreme Court on thrusday signed an agreement with the Nepal Bar Association (NBA) that it would not assign any judicial work to the demoted SC judge, Paramananda Jha.

Jha was recently demoted from SC judge after he was found guilty of acquitting a drug peddler, DB Gurung, illegally.

He was transferred to the Biratnagar appellate court as its chief judge.

However, the lawyers boycotted his bench. “We have agreed that he will not decide any case in Biratnagar appellate court and alternative management will be made in this regard,” said SC registrar Dr Ram Krishna Timalsena.

Supreme Court judge Ram Kumar Prasad Shah, Dr Timalsena and NBA central committee members Tika Ram Bhattarai and Nagendra Kumar Rai signed the agreement.

After the agreement, the Biratnagar Appellate Court Bar Association and Morang District Court Bar Association have agreed to withdraw their movement against Jha.

“Now we hope that chief justice Dilip Kumar Poudel will not give him any judicial work,” Rai said.