SC judge concerned about courts’ failure to collect fines


Supreme Court Justice Anup Raj Sharma on friday expressed serious concern about the non-implementation of court verdicts. According to him, this has resulted in the court not being able to collect a huge amount in fines and slap sentences of thousands of years on convicts.

Sharma was speaking at a National Convention on Anti-Trafficking Bill jointly organised by the Forum for Women, Law and Development (FWLD) and the Daywalka Foundation Nepal. Data in the apex court show that the country’s judiciary has failed to collect more than Rs 30 billions in fines. They also show that the courts have not been able to slap more than 80,000 years of imprisonment on convicts.

Justice Sharma said that the Anti-Trafficking Bill has a provision whereby the victim has to be compensated from the fine imposed on the perpetrator. “How can the victims be compensated when the court itself is not being able to collect the fines?” he queried. He also said that the court cannot deliver justice to victims due to lack of sufficient evidences, which are to be produced by prosecutors and police while filing cases.

He called upon the government to appoint gender sensitive officials in departments concerned to provide justice to victims. He also demanded that the word Beshya (prostitute) be removed from Acts. According to him, this word tarnishes the image of women. President ofthe FWLD, Sapana Pradhan Malla, stressed on maintaining the privacy of victims not only in courtrooms but also in the police department when the latter investigates cases.

Court frees party cadres

Eleven activists of different political parties, who had been arrested on charges of ransacking and setting on fire government offices were released on the order of the Morang district court today.The 11 activists were arrested from their houses on March 15. They had been accused of involvement in vandalising and setting on fire six government offices in Rangeli on March 14. All of them had been lodged in the Biratnagar Jail.

A single bench of the Morang district court comprising Justice Bhim Ojha said that no evidence was found against them, DSP Rabindra Sharma at the Morang district police office said. While the court ordered the release of 10 of them on a bond of Rs 10,000 each, it released one person on a bail of Rs 5,000.On March 14, MJF cadres had set fire to VDC offices of Rangeli, Amardaha, Bardanga VDCs, the offices of the Area Administration, Gramin Bikas Bank and Agricultural Development Bank.

Aryal 'Shocked' at Deletion of Clause in Interim Statute

Supreme Court (SC) justice and chairman of the interim constitution drafting committee, Laxman Prasad Aryal, on Friday expressed "shock" at the "disappearance" of a clause on ending impunity in the final interim constitution."While drafting the interim constitution we had included a clause on ending impuntiy. We had thought that impunity would now come to an end. But the exclusion of the clause in the final draft came as a surprise," Aryal told a workshop jointly organised by the International Court of Jurist (ICJ) and the Capacity Development of National Human Rights Commission (CDNHRC).

The workshop was aimed at increasing awareness among human rights defenders on the Rome Statue of the International Criminal Court (ICC) and to lobby for its ratification by the Nepal government.Aryal suggested the government immediately ratify the Rome Statue and put an end to impunity.

Saying that disappearances have been a glaring example of human rights violation in the country, Aryal said, "The government has not been serious on ending impunity by bringing the human rights violators to book."UNDP Resident Representative to Nepal, Matthew Kahane, said every individual's fundamental human rights have to be respected. He also lauded the NHRC's efforts in trying to put an end to impunity.

SC summons Himal publisher, editor

The Supreme Court on thrusday ordered the publisher and executive editor of Himal magazine to appear before it within three days and explain why they published a report based on a telephonic conversation between a court official and a client. A single bench of Justice Gauri Dhakal issued the order to publisher Kanak Mani Dixit and executive editor Shiv Gaunle.

Advocate Arun Gyawali had filed a case against Himal magazine, accusing its publisher and executive editor of involvement in a contemptuous act by publishing the conversation recorded in a CD.

Advocate Gyawali, in his petition, claimed that the magazine had disrespected the Chief Justice Dilip Kumar Paudel and justices Anup Raj Sharma, Sharada Prasad Pundit and Pawan Kumar Ojha just because court official Baburam Dahal bargained with the client, making mention of the justices’ names. An initial report of the investigation committee comprising Justices Top Bahadur Magar, Damodar Prasad Sharma and Ram Kumar Prasad Shah into the CD scandal was also presented to the bench.

Meanwhile, the Supreme Court Bar Association today formed a committee headed by senior advocate Shree Hari Aryal to probe the CD scandal. Advocates Kamal Narayan Das, Prakash Osti, Bharat Raj Uprety and Shreekanta Baral are members of the committee.

Oli committee recommends action agaisnt RCCC officials
The high-level committee led by Deputy Prime Minister K.P Sharma Oli has recommended immediate action against the officials of the now-defunct Royal Commission for Corruption Control (RCCC).
According to a member of the committee, the government has been asked to immediately take action as per the recommendation of the commission formed under the chairmanship of former Chief Judge of the Appellate Court Madhav Prasad Ojha.
The Ojha panel, formed to probe the excesses of the RCCC against the democratic leaders, has recommended prosecution of RCCC offcial on charges of corruption and defemation.
The Oli committee has also recommended 'stern action' against chairman of the RCCC, Bhakta Bahadur Koirala, and secretary Shambhu Bahadur Khadka, barring them from holding any public post in future.
The taskforce also recommended the Council of Ministers to take proper action against the duo for misappropriation of funds when they were at the helms of the RCCC.
The dissolved RCCC detained former Prime Minister Sher Bahadur Deuba and minister Prakash Man Singh and interrogated several other political leaders on graft charges

Comment by Krishna Das Manandhar in his case

few weeks before we had published news SC justice refuses to hear bank default case in our web site .

Krishna Das Manandhar has send his comment in that news. We give space for his comment in respect that we give equal rights to all concerned parties to say about them .

Date : 28.3.07
To, The Editor,Kanunisanchar.comLegal News from Nepal

Sub. : Regret for the news "SC justice refuses to hear default case"

Dear Editor,
I came across your news published on 5th March,2007 with headline mentioned above and writing this regret message to you since this deteriorated news is highlighted on my case. As I am in study leave for pursuing Ph.D. degree and not in Nepal nowadays, I am bound to jot these few lines as clarification for you and the visitors of your esteemed site.
Obviously it is pity for me and the people who are aware of my petition against Nepal Rastra Bank, Rastriya Banijya Bank and Credit Information Bureau (CIB) that the legal news published by legal professionals is in rampant. Being a responsible Nepalese citizen, it is indispensable to clarify the case in brief as below;
1. First of all, I had not put petition challenging the black listing of Imex Tarade Ltd. as loan defaulter as wrongly mentioned in the worldwide Kanunisanchar .com news. Instead, I had filed the petition against the concerning organizations including the Banijya Bank which forcefully on the verge of prejudice enlisted my name to black list without truly supportive documents.
2. Yes, I was one of the founder director of the company but this company never received any loan and there were no such minuting ever to receive loan. However, we had once put application to receive bank facilities in future which was rejected due to lack of collaterals needed for the same.
3. So far I could follow during initial days of the case, the bank authority in illicit handshake with the chairman of the company and the witness Mr. Pradeep Kumar Shrestha, a director of Panchakanya Group had illegally dealt using banner of the company for a L/C equivalent to principle amount IC 30,00000.00(In words, Three million only) without any consent of the board of directors of Imex Trade Ltd. The bank has forcefully attached a mismatching minuting which we had put (again it was a day later the bank dealt personally with company chairman) for pre-processing as mentioned in clause no. 2.
4. The bank deal was completely intentional in the interest of Bank Staffs, the witness Mr. Pradeep Kumar Shrestha, and personally the chairman, Mr. Gopal Man Singh to put the company in controversy. Company obviously does not mean the chairman alone but surprisingly bank dealt with the chairman personally.
5. Since the company has never dealt with bank for obtaining loan, this case is not compatible to the other hot cases like Mahalaxmi Sugar Mills and is completely different one. Here the persons involved were the bank staffs along with the witness and Mr. Gopal Man Singh who illegally used letter head of the company.
6. The company was established with position of 20 Directorships along with the chairman. The bank dealt personally with the chairman for issuing loan without consent of Board in witness of Nepalese billionaire Mr. Pradeep Shrestha. With clean cheat to them, it is very injustice to enlist my name alone in the black list.

On the basis of all above clarification, I hearty suggest your world-wide spread media to publish such news only after going through the documentation thoroughly and drawing the views from my side as well. I have attached my petition herewith for your perusal. I strongly condemn the publication of this news and request you to clarify it again from your dot com news.
Anticipating your quick response.
Thanking you.

Krishna Das ManandharLecturer,Padmakanya Multiple Campus
Currently,Research ScholarDept. of MedicineInstitute of Medical SciencesBanaras Hindu UniversityVaranasi., UP.India

SC Notices on Discriminatory Marital Rape Law


The Supreme Court on Wednesday issued show cause notices to government authorities to give in writing, within 15 days, the reasons for the inclusion of a discriminatory provision on marital rape in the Civil Code 1963.

According to section 3 of the Rape Chapter of the Civil Code 1963, a person can be imprisoned for three to six months if he is convicted of raping his wife. The Civil Code says that a person can be imprisoned for over seven years if he rapes a woman.

A single bench of Justice Bal Ram KC issued the notices to the Prime Minister's Office (PMO) and the Cabinet, the Ministry of Law Justice and Parliamentary Affairs and the Parliament Secretariat, calling them to submit written affidavits on the matter in the Supreme Court.The bench issued the notices following on Wednesday's initial hearing on a PIL challenging the Section 3 of the Rape Chapter.

During on Wednesday's hearing, advocate Meera Dhungane said the provision is discriminatory.According to the Civil Code, a person faces over a seven-year jail term for raping a woman, Dhungana said, adding that the husband, who rapes his wife should not enjoy leniency in terms of punishment.Challenging the provision, a victim, Jit Kumari Pangeni, and a group of advocates, including Sapana Pradhan Malla, have filed the PIL.

SC directives implementation unsatisfactory

A three-year-old Supreme Court directive to the government to take legislative measures for implementing obligations under the 1949 Geneva Conventions is gathering dust in court cupboards ekantipur reports.
Interestingly, the directive order issued on January 9, 2004 has not even reached the Office of the Prime Minister and Council of Ministers or the Ministry of Law, Justice and Parliamentary Affairs - the implementing agencies in this case- though these offices are just a stone's throw from the apex court premises.
This instance is just the tip of the iceberg regarding how directive orders from the Supreme Court have been treated. The list of unimplemented directive orders like this one could be long. In fact, a study by the National Judicial Council (NJC) says that the record of implementation of such orders is very poor.
"The implementation of directive orders is not satisfactory. … The implementation and monitoring mechanism
are not effective. There is a lack of coordination between the court and the bodies responsible for the implementation of directive orders," the study concluded.
Directive orders are issued only in cases of public interest or importance. Such an order instructs or directs the government and bodies under it to do specific things regarding the case under consideration. The apex court issued altogether 67 such orders after 1990.
According to the study of directive orders issued by the Supreme Court after the 1990 Constitution came into force, only 13 directive orders have been implemented fully while six others have been partially put into practice.
Similarly, the study, a first of its kind, says that 22 directive orders are in the process of implementation while 11 more are awaiting implementation. The report states that the status of 15 directive orders could not be confirmed.
"The authorities concerned are not sensitive over the implementation of directive orders," the study reported, "Less interest or importance has been given in this regard [implementation]."
Meanwhile, Public Interest Litigation lawyers suggest that the existing mechanism for monitoring the implementation of directive orders should be reformed.
"The existing follow-up mechanism at the Supreme Court is not effective, so it needs to be improved," said advocate Raju Prasad Chapagain, who is waiting for the implementation of a directive order issued in response to his petition.
Other lawyers said that they themselves are monitoring the implementation of directive orders issued in their respective cases. "In many cases, I myself write to the bodies concerned for implementation of the directive orders," said advocate Mira Dhungana.

Special Court verdict on Khadka's case challenged

the CIAA today filed a case at the Supreme Court challenging the Special Court’s decision to acquit former minister Khum Bahadur Khadka of corruption charges.

The CIAA in its appeal expressed dissatisfaction over Special Court’s decision to clear Khadka of corruption charges and demanded that the apex court review that verdict.

After a prolonged trial, the Special Court had in November last year acquitted Khadka of embezzlement of Rs 23.6 million.

CIAA summons ex-CoAS Thapa over graft charge

The Commission for Investigation of Abuse of Authority (CIAA) has summoned former Chief of the Army Staff (CoAS) Pyar Jung Thapa for interrogation on charges of corruption during the royal regime.

Officials said the CIAA sent a letter to Thapa today asking him to appear before a panel to record his statement in connection with the accusation against him of misappropriation of over Rs 20 million during King Gyanendra’s active rule.

Based on the Rayamajhi Commission’s report, the anti-graft body is investigating into corruption cases that took place during the royal regime. Thapa is one of the several top-ranking government officials in the royal regime who have been implicated by the Rayamajhi Commission in financial irregularities.

The CIAA has already interrogated former royalist ministers Kamal Thapa, Tanka Dhakal, Shrish Shumsher Rana and Dan Bahadur Shahi over the graft charges.

The CIAA began the probe after the government authorised it for investigation into corruption cases pointed out by the Rayamajhi Commission report.

Extreme human rights violation by MPRF in Rautahat killings:NBA

Nepal Bar Association (NBA) has alleged that the Rautahat killings were a result of the weaknesses of the Maoists, the Madhesi People’s Rights Forum (MPRF) and the local administration.
Issuing a Site Investigation Proposal in the capital today, the bar claimed that the death of the 28 people in the Gaur mishap was due to the combined follies of the MPRF, Maoists and the local administration.
The proposal blamed the local administration for not taking any steps, considering the seriousness of the situation.
The proposal states that the police remained “mute audience” while the Maoist cadres were being beaten up.
The local administration did not remain alert although there had been incidents of disputes in other parts of the country when MPRF and Maoist programmes had coincided earlier, the proposal read.
Furthermore, the bar has also mentioned that the Maoist leadership continued with their programme despite many requests to think again about rescheduling their programme.
The proposal includes incidents of extreme violation of human rights by the MPRF cadres.
It also states that the the forum cadres killed seven people on the spot after the clash and chased the others and took them under control and beat them up mercilessly before killing them.
11 of the dead bodies were found tied together in Hazmania, five kilometers away from Gaur.
The bar has claimed that the MPRF supporters had killed the Maoist cadres with bamboo sticks, stones and bullets and had even tried to burn some of them.
Furthermore, the bar, quoting the injured, has stated that the MPRF cadres had misbehaved with the women and even tried to burn their bodies.
NBA, an umbrella organisation of lawyers, has condemned the Rautahat killings calling it “inhumane” and “illegal”. The bar has demanded that strict actions be taken against the culprits.
Furthermore, the bar has also suggested the government to heighten security in the country.
The proposal was prepared by a six-member team headed by treasurer of the bar Savita Bhandari Baral.
Earlier, the team had carried out investigations and gathered information from local lawyers, residents, CDO, Police Chief and the injured.

SAC finalises two election-related bills
The State Affairs Committee (SAC) of the Legislative Parliament finalised two legislations related to the constituent assembly elections Monday.
The meeting of the SAC held in the morning finalised the Bill on Functions, Responsibilities and Authorities of the Election Commission and Bill on Election Crime and Punishment.
Both the bills will be tabled in the House today for approval.
Home Minister Krishna Prasad Sitaula and Chief Election Commissioner Bhoj Raj Pokhrel were present during the discussion.
The Election Commission has warned that the election to constituent assembly would not be held on time if the necessary laws were not passed on time. However, the parties have repeatedly expressed commitments to hold the CA elections on time.

Court seeks clarification on Chamati land pooling

The Supreme Court issued an order Sunday to the Chamati Land Pooling Project to furnish answers regarding the project. The court issued order after a hearing on sunday on the petition filed by the project at the Supreme Court on rethinking the interim order the court had issued about three months ago against it.
In the order, the Supreme Court has sought answers from in clear terms and words regarding the failure for completing the project even five years after start of the project, the progress report of the project, problems faced for completing the project and measures taken to resolve them.
Some specific questions sought by the court to Dinesh Kumar Thapaliya, chief executive officer of Kathmandu metropolitan and the chief of the project, to be answered include: policy regarding providing additional land to people having less than 2-anna (700 sq. feet) land with additional payment otherwise they would not get land within the project area; number of people who have been provided land for building houses as compensation for the land pooled.
The court has also asked about clarification and legal basis of the monetary donation from the people within the project area and the details of income and expenditure so far and the additional money to be required to complete the project.
It has also demanded clarification about the legal basis of freezing the people's property for an indefinite period. Until replies to the questions are furnished clearly, the interim order will remain and the court will hear the case again as soon as the answers are received, the court said today.
The local people had filed a petition at the Supreme Court three months ago for the abolition of the project and the court had issued an interim order and show cause notice to the project. The project instead filed another petition at the Supreme Court to rethink about the interim order.
The local people said they want the project to be annulled, as it would cause the displacement of people with low land holding of 2 anna and two to four annas. Already 850 land owners with two annas have been displaced. There are 898 holding two annas or less land and 820 people with two to four annas. They said all of them would be displaced if the project goes ahead.
The project was started four years ago to develop land from Balaju to Swoyambhu area mainly along the Bishnumati River. The project had already pooled 1369 ropanis (one ropani equal 5625 sq. feet) land and the local people say it has been of no use.

OHCHR seeks full investigation on Maina Sunuwar case

The United Nations Office of the High Commissioner for Human Rights (OHCHR) in Nepal has said that the police complete a thorough investigation, with full cooperation from the Nepal Army (NA) into the custodial death of 15-year old girl Maina Sunuwar of Kavre.

Issuing a press release Sunday, the OHCHR said that the remains thought to be those of Maina Sunuwar, who was allegedly tortured and died in the custody of the army in February 2004, was exhumed from the premises of the NA’s Birendra Peace Operations Training Centre in Panchkhal, Kavre district, on Friday.

Earlier, in a press statement the Directorate of Public Relations of NA had said that information that remains were found on the Training Centre's premises was baseless and misleading.

“The exhumation marks a crucial step in the criminal investigation launched by police into the girl’s death, which has been stalled for many months due to the NA challenging the jurisdiction of civilian authorities over the case as well as the reluctance of authorities to proceed with an investigation,” the OHCHR added.

“The exhumation Friday of remains thought to be those of Maina Sunuwar marks a crucial step forward in the quest for justice for her alleged torture and death. A full criminal investigation by police must now proceed to determine who was responsible and to hold them fully accountable,” the statement quoted Sandra Beidas, Officer In Charge of the OHCHR-Nepal, as saying.

As part of a court martial, the NA in September 2005 found three military personnel guilty of failing to dispose of the Maina's dead body properly.

The OHCHR further said that the NA had failed to provide court of inquiry and court martial documentation to the OHCHR despite repeated requests.

During her visit to Nepal in January, the High Commissioner for Human Rights, Louise Arbour, received assurances from the Chief of the NA and the Home Minister that an investigation would be carried out without delay.

Cabinet forms panel to probe Gaur bloodshed
The government has formed a high level committee to probe Wednesday's bloodshed in Gaur.
Friday's emergency meeting of the council of ministers has formed the high-level committee headed by judge of Patan Appellate Court Hari Prasad Ghimire.
Other members of the committee include Ram Sarobar Dube of National Vigilance Centre, joint attorney general Tik Bahadur Hamal and Deputy Inspector General Niraj Pun.
The committee has been asked to submit report within 15 days.

SC forms committee to study model of court in federal structure

The Supreme Court (SC) has formed a five member committee headed by Justice Anup Raj Sharma to study the model of Court in the federal structure.
According to sources, the SC formed a committee comprising representatives of Nepal Bar Association (NBA) and experts to recommend the SC on the model of court in federal structure.
Other members of the committee are Justice of SC Kalyan Shrestha, Chair of NBA Bishow Kant Mainali, secretary at the Ministry of Law Dr. Kul Ratna Bhurtel, advocate Purna Man Shakya and registrar of the SC Dr. Ram Krishna Timilsena.
The committee was asked to submit report on the model of court in federal structure, structure of Justices and offiials at the Court.
However, the Kantipur daily quoted chair of the NBA Mainali as saying that he had heard about the committee but he is yet to get formal letter in this regard.
The SC formed such committee after the state has decided to go for the federal set up by amending interim constitution.

If anyone proves my involvement , I will resign : CJ

Chief Justice Dilip Kumar Paudel assured Supreme Court officials that he would initiate action against any judge if he was found involved in taking bribes.He said that if proved of his own involvement in any irregularity he is ready to resign. "If anyone proves my involvement in any charge I will resign as I have no hunger for the post," Chief Justice Paudel told them.

Spokesperson of the SC, Durga Prasad Dawadi told that the Chief Justice was clear about taking actions against anyone if found guilty in any corruption case.

SC staffers halt works for two hours

Supreme Court staffers halted all administrative works for two hours on Wednesday to protest the statement of Chief Justice Dilip Kumar Poudel in the media that bribery in the judicial sector existed at the administrative level only.

The administrative works were stopped for two hours to protest the CJ’s ‘irresponsible’ comment over a recent bribery scandal, SC officials told reporters.

After the protest, CJ Poudel invited the officials and held discussion with the administrative officials in his chamber and assured that he would see to the controversies.

Media reports about bribery in the court have dragged CJ Poudel and some judges, along with administrative officials, into controversy.

The Full Court meeting of the SC on Tuesday formed a three-member committee headed by Justice Tap Bahadur Magar to probe the scandals triggered by the news about a CD containing telephone conversation between a plaintiff and a court official who ‘demands’ kickback to influence the judge for favoured verdict on a property case

Most court cases related to land: Report

As in the previous years, the largest number of cases in the District Courts are related to land, according to the Annual Report of the Supreme Court for 2006/07.The Supreme Court reports states that out of the total 57,442 cases filed at the District Courts, 16,208 cases were related to land, 13,761 to family, 8,663 to transactions, 5,514 relating to misrepresentation, 2,417 related to murder, 1,486 related to burglary, 1428 related to beating, 1,257 related to looting and 1,096 related to defamation.Similarly, 766 cases were related to forgery, 717 to coercion, 506 to contract, 462 to narcotic drugs, 462 to rape, 266 to fraud, 247 related to foreign employment, 176 related to human trafficking, 74 to contempt of court, 63 to forest, 59 related to foreign exchange, 17 to killing of cows, 14 to gambling, 13 to revenue, four to election, three to corruption and 1,766 miscellaneous cases.

RSS

Challenges to establishing the rule of law in post conflict Nepal

Talk program was organized in Georgetown University, Washington DC, on “Challenges to establishing the rule of law in post conflict Nepal.” It was jointly organized by International Law Society and the United Nation at Georgetown.

Advocate Dinesh Tripathi was invited as a guest speaker. Advocate Tripathi said on the occasion- "Nepal is at a crossroad now. Important gains and changes have been made toward democratization but the situation in Nepal is full of risk and uncertainty. Monarchists and anti- democratic elements want to derail and reverse the democratization process. There are growing complexities in Nepal. The conflict is still not over. The conflict has taken new shape and dimension. The transition is going to be most difficult and tough. Nepal requires a successful transition toward full fledge democracy and rule of law. But the entire democratization and peace process is extremely weak and fragile in Nepal. This is a time for great promise as well as a great uncertainty in Nepal. If transition is not successfully and efficiently managed then it might take ugly turn. "

"The constituent assembly will adopt a new constition which will guarantee sovereign rights of the people and also decide the fate of monarchy in Nepal. The election of the constituent assembly must be held in due date. The Nepal needs a radical departure from the past. It needs a total restructing of polity, state and governance. We the people of Nepal must allow to decide our own fate and also allow to write and adopt our own constitution. The new constitution must fully empower the people, establish a republican form of government and guarantee the fundamental rights of the people. The people of Nepal are aspiring for full fledge democracy and want to do away with monarchy. Now it is establish fact of history of Nepal is that in Nepal democracy and monarchy can not go together. The monarchy of Nepal is always a threat for democratic political order and it dismantled and subverted the democratic process and institution through a military power now and again. So Nepali people want to do away with monarchy and want to establish republican form of government. The experiment of democracy with monarchy has been failed in Nepal. The New constitution should chart a new course for Nepal", he told.

Same as he added that "The right to vote in periodical election is extremely important component of democratic governance but it is not enough, new constitution should also guarantee the socio-economic rights of the people. It must empower the weakest, vulnerable and marginalized class of people. It must guarantee the federal structure in order to empower the masses at grass root level. In order to ensure greater regional and local autonomy and establish the local ownership on the resources federal structure is essential. International civil society must creatively engage in the Nepal’s democracy building process. The international civil society can play a very important role to strengthen a Nepal’s fragile and weak democracy building process."

Ms. Rene diplock president of the united nation at Georgetown introduce the guest speaker.