Category: Lectures / Speeches / Presentation

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The context of reform in the justice system goes far beyond the principle of “Justice delayed is justice denied.” This expression has remained the basis for the right to a speedy trial and similar rights in the justice delivery system. However, there are additional dimensions to this core concern.

Every judicial institution in modern world faces the unenviable task of delivering justice to its people, which must be timely, equal, and affordable. In a democracy, this is better performed by ensuring the broad participation of relevant constituents and creating opportunities for all to make meaningful contributions to decision-making. Participation also means opportunity to broaden the range of people who have access to justice. The institutional reform targeted towards improving administrative and organizational functions in the justice delivery system – the judiciary, prisons, and other law and justice agencies – needs to be implemented simultaneously with participatory-based approaches at the community level.

These reforms need to focus on expanding social, economic, and political opportunities for the broader community that includes women, children, and other traditionally marginalized people like dalits and janjatis. The justice system should also enable a greater proportion of the population to participate directly in strengthening the processes of justice in accordance with both national norms and values and fundamental rights. In other words, the objective of further reforms in the justice delivery system will be to create a new vision of justice with maximum accessibility that has the potential to reduce stress and improve the adaptability of the judicial system. Changes are needed among lawyers, judges, and litigants to put into practice this participatory justice, updating the values of respect, creativity, and ‘proactivity.’ Participatory justice implies the participation of all in the creation of a justice system and in overcoming its challenges.

Nepal is a country of a functioning justice delivery system. However, it has many problems to overcome. Some of the problems are structural while others are operational. The limits imposed by the economic constraints in the justice delivery system are there as a regular feature. In all its forms and limitations, justice in Nepal is basically a state enterprise. The demand of participatory justice is the use of alternative dispute resolution (ADR), such as mediation, conciliation, and arbitration, in criminal justice systems instead of, or before, going to court. It is a relatively informal type of case processing which makes use of local community resources rather than requiring traditional forms of official intervention. As such, it is sometimes also called community dispute resolution.

This critique is not aware of any effort taken in Nepal to look into the context of participative democracy in the justice delivery system. The questions that need to be answered are: what are the areas in which participation of the people is necessary to improve the situation? What does participatory justice actually look like to people affected by violence—victims, offenders, communities, and justice institutions? How do we know what victims and victimized communities want? Which justice processes at local or national levels work to include victims of violence as rights-bearing citizens, and how and with what effect? Should the local community be encouraged to work as part of the justice delivery system? What about the role of traditional local institutions engaged in justice related activities? These questions are important because they also have the potential to empower the local people and allow them to create a society which they would like to live in.

As far as the traditional justice delivery system is concerned, it has several structural and operational limitations. As the paper just discussed has already dealt with them in general, the focus hereunder is only on some additional matters that I consider must be discussed.

• Despite efforts, Nepal is still fighting with the long, drawn-out litigations. This is true in most of the civil and criminal jurisdictions. The Summary Procedure Act is a good instrument, but in the end, even its implementation is not smart.
   
• There is a need to improve transparency of the system, so the public can understand how the system works and be able to engage as local communities in the justice process. So far, the proceedings in the court system do not give space for local communities to be involved in issues that concern them. Courts are usually taken as outside institutions and the arm of the ruler rather than of the ruled. 
   
• Police, prosecutors, and courts have not been able to work together with proper coordination of the exercise of their power and jurisdiction, leading to the delay in the justice process as well as well as its result. 
   
• Officials of the lower judiciary need to be provided with basic infrastructure that would help them to work effectively. By upgrading their infrastructure and technology, they could be computerized and closely integrated with the Supreme Court as well as Appeal Courts. The communication technology is important for the integration of the entire judicial system equipping it to deal with the rising volume of cases. Although the process has started, it has not yet picked up.
   
• Under a special drive to reduce the number of pending cases, especially those that deal with the weaker sections of society, the Ministry of Justice and the National Judiciary have to take several steps to expedite the way courts function. 
   
• The provision of Vacation Bench has a long history in Nepal for habeas corpus cases in certain contexts. The provision is being extended to courts other than the Supreme Court. However, it is advisable to establish Vacation Bench in all cases and courts where slow speed has been implicated in the judicial decision-making. 
   
• Increasing the number of court-working hours using the existing infrastructure by holding morning/evening shift courts has also been emphasized by stakeholders in recent years. However, this emphasis have not yet been acted upon.
   
• Much of the existing delay in criminal jurisdiction would be handled well if the use of technology is maximized. This could facilitate virtual courts and prisons to court video links in certain places. 
   
• The Mediation Act recently passed must also be implemented effectively as it will reduce the pressure on regular courts. The Regulations under it must be enacted as soon as possible so that the Act could be implemented as desired.
   
• Providing additional funds to legal services authorities is necessary to enable them to enhance legal aid to the marginalized and empower them to access justice.
   
• There is a continued necessity of enhancing capacity of judicial officers and public prosecutors through training programmes.
   
• Training and capacity-building is not a one-time process. It must be continued in an integrated system keeping in view its long term objective. There must be initiatives to create branches of National Judicial Academy in strengthening its presence in each region to facilitate such training.
   
• Delay caused by lawyers as part of judicial strategy to win their cases must also be checked.
   
• Local elections must be conducted to restore local government bodies according to Local Government Act that provides access to justice to citizens at their doorsteps under its formulations. Its provisions enabling exercise of judicial powers in local disputes as it identifies must be utilized to improve justice delivery at the community level.
   
• It is expected that when the new constitution enacts, it will create space for various local, traditional judicial, or semi-judicial institutions to deal with local and subject matter jurisdiction. It will help the justice delivery system in different ways. However, it is advisable to start working to sort out conceptual matters and create necessary framework for future legislatures. 
   
• There is an urgent need for law and policy to shift from official, rhetoric-supporting traditional and community-led approaches to law and justice to a greater commitment from the leadership to redirect some of the resources available to the government sector (courts, prisons, civil service) to underutilized community organizations.

The July 2012 White Paper, entitled Swift and Sure: The [UK] Government’s Plans for Reform of the Criminal Justice System: Equality Impact Assessment is the latest relevant report in this regard. It shows very effectively how the challenges of justice delivery systems exist even in what is conventionally described as first-world countries. Although the White Paper sets out the programme of reforms to the criminal justice system in England and Wales only, it makes very clear that the context of reform is a continuous process. It recognizes that the justice system should not only be ‘swift’ (upholding the maxim above, so in cases where a quick response is appropriate, they are dealt with promptly and efficiently) but also ‘sure’ “so that the system can be relied upon to deliver punishment and redress fairly and in accordance with the law and public expectation. A criminal justice system which fails to command public confidence in this way has fallen at the first hurdle.”

In this White Paper, the government sets out how it intends to reform criminal justice by”simple, straightforward, and uncontested matters that represent the large majority of cases prosecuted through the criminal courts.” There is determination to “secure guilty pleas earlier in the prosecution process, improving efficiency, reducing paperwork and process times, and alleviating some of the burden on witnesses and victims of crime.” The government has also decided to simplify and extend police-led prosecutions. There is commitment to respond to local demands and priorities in all situations. Innovative approaches to court sitting times, assessing the merits of more flexible sittings, including early morning, evening, and weekend sittings for different types of hearings, have also been emphasized. There is determination to open the services to new providers and introduce alternative models of delivery including new forms of partnership with the private sector and mutuals. These initiatives are calculated to help deliver justice more swiftly.

To make justice ‘sure,’ the White Paper acknowledges that “criminal justice services must do more to get a firm grip on offenders, making them face up to the consequences of their crime, taking action which both punishes them and supports them to address their offending behaviour.” Prison reforms, rehabilitation services to offenders, funding of justice reinvestment pilots, Neighbourhood Justice Panels, and the provision of Justice Test, have been assured in this regard. The Justice Test is being developed to provide a helpful tool to help professionals exercise their discretion in a fair and consistent way when they utilize alternative dispute mechanism techniques. The White Paper shows that the government is determined to build on the important contribution of magistrates (volunteers who hear cases in courts in their communities) and harness their potential. Proper safeguards must be in place to ensure the independence of the judiciary and prosecutors. What is being proposed is not “an alternative to the formal criminal justice system, but a measured return of power and responsibility to communities to resolve less serious crimes quickly and rigorously.”

Physical infrastructures are always important for efficiency in the justice delivery. It must be built on transparency. This enables the public to understand “what happens when a crime is reported and how the criminal justice system is responding to their concerns.” It helps ensure that the people who work in the justice system, including magistrates, “engage with the people in their communities to listen to what they have to say and give the public a voice in how criminal justice services are delivered in their areas.”

I believe that this report may be utilized when we discuss the justice delivery system at some length in the context of participatory democracy.

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(This is excerpt of concluding remarks given by Dr Bipin Adhikari as Chairperson of Nepal Constitution Foundation at the discussion programme on the Report of State Restructuring Commission (SRC) organised on 6 February 2012 at Hotel Annapurna, Kathmandu)

Thank you very much taking part in this interaction programme on the report of the State Restructuring Commission (SRC) was organized by NCF on Monday, 6th February, 2012 at Hotel Annapurna. We had the opportunity to listen to Dr. Ramesh Dhungel, one of the two members of the State Restructuring Commission representing Nepali Congress on the report that has been already submitted to Prime Minister, Dr Baburam Bhattarai. Dr Dhungel also shared his experience with the SRC team and the working process of the Commission. As we are aware, the minority members of SRC namely Dr. Ramesh Dhungel, Dr. Sarbaraj Khadka and Savitree Gurung submitted a separate report to the Prime Minister in the ceremony, where the SRC Chairman submitted his report on behalf of the majority of members.

As we came to know, the circumstances that led to the submission of two reports, was most unfortunate. It was pointed out by Dhungel that the division within the commission was created because of various political forces behind the selection of the members. He claimed that as a result, people with pre-conceived notions who were actually political activists were appointed as members rather than political scientists. He further claimed that various power centres were at play regarding the formation of the commission. He complained of the lack of time for the commission to properly assess the determining factors and the fact that the members had to work while avoiding pressure from various sources. Dhungel stated that the procedure of arriving at a decision by the way of voting also created serious division in the commission which resulted in fundamental differences between the majority and minority members.

The first fundamental difference between the two groups as pointed out by Dr Dhungel was with regard to the general structure of the federation. The eleven province model received the majority approval whereas the six province model promoted by Dr. Dhungel was in the minority. The Second difference was in the principles and style of the reports. The majority focused upon identity and capacity as the chief determining factors. The minority however, as mentioned in the third paragraph of the preface of their report considered factors such as national integrity, economic development, capacity, ethnic and communal harmony, geographic continuity, historical and cultural situation, natural resources, status of development infrastructure and administrative reach. So the priorities of the two sides were seen to be quite different.

Another fundamental point of difference, as we came to know, was with regard to the right to self determination. The majority report suggests a communal or ethnic right to self-determination whereas the minority report does not provide the right to communal or ethnic self-determination as such. Dr Dhungel pointed out that other than Nepal there are only 28 other federal countries in the world and that the federal set up in Nepal shall be very unique as well, calling Nepal the “twenty-ninth federation”.

Dr. Dhungel went on to explain that the unanimous view of federal structure as proposed by the Constituent Assembly Committee on State Restructuring and Division of Powers (CSRDP) includes a three tier system with federal, provincial and local level governments. However the differences existed in the powers that were going to be exercised by the various levels. The minority view was for making the central/federal and the local government strong. The majority view however was to make the provincial government strong at the cost of the central and local governments. The major area of difference in this was the issue of residuary powers. The majority members agreed to give the residuary powers to the provincial governments whereas the minority members wanted residuary powers with the centre. Dhungel defended his position by stating that the federal system in Nepal will only function if the centre is capable to maintain national unity and the local governments has the authority to make its own rules and regulations. The majority view only gives partial rights to local governments which are to exist under the helm of the laws created by provincial governments.

The presentation continued on to the provinces that were proposed by the both sides. The majority proposed an eleven state model on the basis of identity and capacity including- Limbuwan, Kirat, Tamsaling, Newa, Tamuwan, Narayani, Magarat, Mithila-Bhojpura-Koch Madhesh (in eastern Terai), Lumbini-Avadh-Tharuwan (in western Terai) and a non-territorial Dalit state. The minority proposed a six state model including two provinces in the plains based on identity history and culture and four on the basis of economic viability whose names would be decided by the people of those provinces. Dr Dhungel commented that the eleven state model proposed by the majority was not sustainable at all. He also remarked when the minority member offered a non-territorial state to the Chairperson, Madan Pariyar did not consent but did consent to the same proposal when made by the majority members.

The minority view was to give the centre the authority to make the policy regarding the formation of local levels and mapping their territory. The minority view also provides for special structure for areas where one community exists as a majority. It also holds that the centre is given the power to decide the change of names and addition of local units requiring two-third majority of the central legislature. This in contrast with the majority view which recommends giving preemptive political rights to be given to the community which is densely present in an autonomous region for one term only.

The minority report proposed giving the central legislature the power to dismiss the provincial government when national sovereignty or integrity is challenged by the provincial government and legislative. The majority report proposed that central government should only be given the power to suspend the provincial governments which can move to the Federal courts to challenge such a move. Fears were expressed that accepting the majority view in this matter would cause grave threat to national integrity in the future. The majority view also proposed that the verdict from the provincial court on any dispute other than inter-state dispute would be final. This was regarded as a disastrous proposal. The minority position was that inter-state disputes would go to constitutional court and verdict of provincial high court can be appealed at the constitutional court.

The most important point that came about in the discussion that followed the presentation was that the Commission had dwelled on many things that had already been decided by the various committees and the Constituent Assembly itself. The participants commented that it was unnecessary on part of the commission to attempt to backtrack on such decisions. For example the commission (both minority and majority) had made their own lists of rights regarding the centre and the provinces when it was already decided by the Committee on Distribution of Natural Resources, Financial Powers and Revenue. Even the question of residuary powers was already decided by the CA itself with the decision that it would be provided to the national (central) government.

The minority position about the centre being given the power to approve any provincial law was criticised as being overly controlling as the provinces are anyways not allowed to legislate contrary to the constitution and the central laws. The position of giving every province the access to India was questioned because in a federation with a strong centre, no province can be deprived by another of supply. Dhungel stated however that the population compositions of the areas in plains were also considered while excluding these districts from the Madhesh provinces.

The minority position was always against the breaking of the existing districts. However a few districts have been divided. Several participants questioned the reasoning behind dividing such districts. The general view in this interaction programme emerged that the existing cultural and ethnic coexistence that is present in Nepal should not be disturbed, though concessions can be given in areas where there is an overwhelming presence of one community since historical times.

In the end, it appeared that since the majority had decided to backtrack on the already decided issues, the minority was also forced to respond with its own suggestions.

I thank you all for your participation in the programme. We will sit once again in the near future focusing more on the Majority report.

(This is an excerpt of opening remarks given by Dr Bipin Adhikari as Chairperson of Nepal Constitution Foundation at the bill review programme on the Bill of Nepalganj University Act, 2067 (2011) organised on January 29, 2012 in Nepalgunj)

Nepalese higher education until recently was a success story. This decade is not impressive at all. There is little that the country can show how it has made progress in supporting excellence in higher education and widening access to it, and how these have proved to be complementary and mutually reinforcing in Nepal’s context.

The university education in Nepal is crumbling. There are problems of management, problems of infrastructure, and problems of forward looking strategies. The research bases of the universities are almost breaking. New research citations are increasingly difficult to see in the universities. Unemployed graduates are increasing more than ever. They have the degrees but not the required level of knowledge and skills. There is said to be increasing trend among students to go abroad to pursue graduate or undergraduate education. Even in such sectors where there are plenty of opportunity in Nepal like engineering and management, people have the tendency to go abroad. The quality of education back home is in doubt. Too many economically poor people with the ability to benefit from higher education are still not entering the system. Access to higher education remains significantly correlated with parental income and wealth.

In fact, investment in higher education has not paid significant dividends. It is not clear what the economic output of university education is and how it is contributing to the national GDP in Nepal. Even the oldest university of Nepal like Tribhuvan University and the leading research centres have a downward trend. There is little encouraging developments in transforming institutions which were expected to pursue excellence in particular fields and build creative links to local communities and businesses around the country.

The success of any university is rooted in the infrastructure available to it, the management and leadership provisions, and organization culture, as much as a commitment to institutional autonomy within a framework of shared values and goals. They must be freed to define their strategies for achieving core national priorities, innovating and adapting to new ways of serving students and contributing to the national life. The challenge is to maintain the progress that has been made, and look forward for progress and innovations.

The country has to think the university education in the context of knowledge economy. In a knowledge economy, universities are the most important mechanism for generating and preserving, disseminating, and transforming knowledge into wider social and economic benefits. They are crucial, too, as the providers of life chances for individuals in an environment where skills and the ability to apply those skills are essential preconditions for employment. Meeting these challenges is made all the more important by the current economic circumstances and the need to renew the economic base. Universities have a vital role to play in that process. But the constraints on public finances make it impossible to sustain the growth in public spending on universities seen over the recent years.

This is by no means the only change in circumstances which universities face in Nepal. Demography, advances in technology, the increasing importance of knowledge and intellectual property and the increasingly international nature of so many activities including education itself are all altering the nature and form of higher education. Universities have not been able to be part of global educational networks and they have not gained from the development of such links.

The Bill for establishing Nepalgunj University, as any other Bill pending in the parliament, must be looked into in this light. This Bill has been drafted with the purpose of providing quality higher education services in arts, sciences, medicine, management, education, technical and business studies. It intends to target the public of previously unattended areas of the country for the supply for able manpower to help the overall development of the country. It also intends to promote clear, responsible and effective academic environment.

Section 3 of the Bill establishes the University with the aim to conduct studies and research in arts, science, medicine, law, management, education, technical and business fields. It shall be based in Nepalgunj and the existing colleges under Tribhuvan University (Mahendra Multiple Campus and Nursing colleges) shall be used as bases of this University. Section 4 provides that this University shall be an autonomous organized body with separate legal personality.

Section 5 provides the structure of the University consisting of – Senate, Academic Council, Executive Council, Service Commission, Departments, Research Centre, Education Council, Campus and other agencies as specified. Section 6 provides for the office-bearers of the University – chancellor, deputy-chancellor, vice-chancellor, chairman of university service commission, registrar, dean, director, campus chief and others as specified.

Section 7 provides for the formation of the senate under the chairmanship of the chancellor. Section 8 provides that the senate shall meet at least twice a year and over fifty percent of the members have to be present to fulfill the quorum. Section 9 lists the functions, duties and powers of the senate which include policy making, directing campus agencies, formulating rules, evaluating university agencies etc.

Section 10 provides for the formation of academic council chaired by the vice-chancellor. Section 11 provides for the functions, duties and powers of the academic council which include setting the curriculum, specifying examination, academic and admission standards etc. Section 12 provides for the formation of the executive council headed by the vice-chancellor. Section 13 provides for the functions, duties and responsibilities of this council including executing the decisions and directions of the senate, presenting annual budget, progress report, setting student fees, presenting draft of university rules to the senate etc.

Section 14 provides for the formation of departments of arts, science, medicine, law, management, education and other subjects as specified. Sections 15, 16, 17, 18 provide for research centre, education council, campus and curriculum development centre respectively. Section 19 enables the University to affiliate privately established campuses.

Section 20 provides that regardless of any prevailing law, the university can include as its own any campus which exists as an organ of another University. The faculty members and staff are normally shifted under the new University unless they are unwilling to. The University can also affiliate any campus which previously was affiliated to another University provided such campus applies for such affiliation.

Section 21 provides for the formation of the service commission headed by a person nominated by the chancellor. Section 22 provides that the prime minister of the country shall be the chancellor of university. Section 23 provides that either the minister or the state minister for education shall be the assistant-chancellor. Section 24 provides that the vice-chancellor shall be the chief person working full time in the University with the tenure of four years. The vice-chancellor is responsible for executing the decisions and directions of the senate.

According to Section 30 the vice-chancellor, chairman of the service commission or the registrar can be removed by the senate in reference to the report submitted by the investigation committee set up by the chancellor.

Section 34 enables awarding of honorary titles. Section 35 enables reservations for women, marginalized communities and disabled. The University is to work under the education policy of the government of Nepal. The University is financially independent but will require the permission of the government in case it intends to employ any person which will financially burden the government. The University shall contact the government through the Ministry of Education. Section 42 provides for the dissolution of the University by the government if by any reason the University is unable to run.

The Bill is not a unique instrument as such. It had been drafted keeping in view the Tribhuvan University Act 2049 (1992), which more or less provides the standards for universities legislation drafted subsequently. This Act itself was based on the Tribhuvan University Act, 2028 (1971). The original Act was promulgated in 1959. There is little innovation in the Bill in terms of structure and ideas. The major comment of the Bill is therefore not what it provides for, but what it has been ignored. One such glaring example is how the university organization ensures that it addresses the issue of inclusion in its top management has not been handled well. Similarly, even though the Bill has a firm background of social movement in Nepalgunj and adjoining regions, there is little in the Bill how it ensures ownership of the movement in the legal regime that has been created.

The greatest impediment to this Bill is the proposed Bill to Amend and Consolidate Higher Education Laws, 2067, an umbrella Act which seeks to govern all the higher education institutions by nullifying all other pre-existing university related laws in this field. Regardless of the fact that the proposed umbrella Act has been highly criticized for its centralizing tendency, if that Bill is enacted, then this new Bill will be rendered useless. It is inconceivable that in an age of academic freedom and plurality of institutions, the government is thinking of a uniform university statute the way companies statute were thought of in the past. Even if it is assumed that there is space for such a move, it must be pointed out that universities should continue to be allowed under specific charters (statutes).

There are some other Bills intending to establish other higher education institutions are in the house. There are proposals to institutionalize Kathmandu School of Law as a university. Some advocacy groups are defending the Bill providing for Rajarshi Janak University at Janakpur. The Bill has not moved further in the parliamentary process. This has occurred due to changes in government in quick succession. This has led to confusion with regard to the future of higher education in Nepal and the growing politicization of higher education sector.

While local sentiments for the Bill must not be ignored, it is important to consider whether the University to be established by this Bill adds value to the education sector in Nepal. If not, then the Bill must be reformed before taking any action on it.

(This is excerpt of opening remarks given by Dr Bipin Adhikari as Chairperson of Nepal Constitution Foundation at the bill review programme on the Bill of Contempt of Court Act, 2067 (2011) organised on January 19, 2012 in Kathmandu)

The Bill of the Contempt of Court Act 2067 is the first of its kind in Nepal. Traditionally, the law on contempt has been based on the precedents established by the Supreme Court, and the government never thought of introducing any legislation in this regard the way many other common law countries in the world have done to deal with the person held in contempt. It is good that the Bill has now been registered with the parliament, and is on the queue to be introduced in the House.

In British common law jurisdiction, the law on contempt is partly set out in case law, and partly specified in the Contempt of Court Act 1981. As a matter of principle, the contempt of court order enables the court in most of the jurisdictions to declare contemnor to a person or organization which have disobeyed or been disrespectful of the court’s authority in the context of a court trial or hearing. Often referred to simply as “contempt,” it is the judge’s strongest power to impose sanctions for acts which disrupt the court’s normal process. A finding of contempt of court may result from a failure to obey a lawful order of a court, showing disrespect for the judge, disruption of the proceedings through poor behaviour, or publication of material deemed likely to jeopardize a fair trial.

This Bill has been drafted with the intention to make judicial process clean, unbiased and effective, to promote the faith of the people in the judiciary, and to control acts undermining the prestige of the judiciary. Section 3 of the Bill empowers the court to – conduct contempt proceedings and punish the people found guilty. Section 6 provides that a judge may also be held in contempt of the court. “Court” is defined in Section 2(a) meaning the Supreme Court, the Appellate Court and the District Court or any other judicial institution legally enabled to conduct contempt proceedings.

Section 4 provides the acts which amount to contempt of the court. These acts include – interrupting judicial process or the enforcement of court’s decisions or refusing to enforce its decisions or causing delay in the enforcement; causing undue influence over the court in a matter sub judice, undermining the prestige of the court or defamation of the court; defamation or physical or disrespectful behaviour against the judge; entering a closed session of the court without permission; publishing materials restricted by the court, etc.

Section 5 provides the acts that do not amount to the contempt of court notwithstanding the provisions of Section 4. These acts include – expressing dissatisfaction over the procedure or decision of the court for legal remedy or criticism of the court’s procedure or decision in a polite manner; bringing out the facts of a matter sub judice to assist the court or publishing the decision or facts of the case other than those required to be kept confidential by law; arguing in a civil manner in a court matter regarding the character of a judge; publishing a valid critique of any legal principle used by the court, etc.

Section 7 provides that any person who has been aggrieved by the absence of or deliberate delay in the enforcement of a court’s decision or order may apply for contempt proceedings in the related court. In other cases of contempt, anyone can file such proceedings. In case of a district court judge the contempt application must be filed in the Appellate Court and in case of Appellate court judge and Supreme Court judge, it must be filed in the Supreme Court. All such applications require legal basis and evidence. Section 8 provides the cases in which, notwithstanding Section 7, the court may itself initiate proceedings for contempt of court and record the statements of the accused if they are present in the court. These cases include – when the judge in bench witnesses any act in contempt of court, when the judge is notified to an act in contempt of court while it is in session and is satisfied of its validity, when the judge infers contemptuous act through materials in the case file.

According to Section 9 the court must provide seven days period for the accused under Section 7 and those not present in court with regard to Section 8, to present their reply to the charge. Section 11(2) provides that if there are reasons to believe that the accused may abscond, the court may order for the accused to be placed in custody. Section 12 provides for a quick disposal of the case.

Section 13 provides for the punishment of up to one year of imprisonment, or fine up to Rs ten thousand, or both, or other measures as the court deems fit. According to Section 14 the court may grant pardon, reduce or suspend or change its sentence if the accused pleads unintentional offence or asks the court for pardon after or during the proceedings. Section 15 provides that only the offences that cause immediate, clear and serious damage to the prestige of the judiciary shall be punished. Section 16 states that no appeal can be made of the decision of the court under Section 14 granting pardon, reducing or suspending or changing its sentence. According to Section 19 the court may ask Nepal Bar Association for an advocate to act as amicus curiae keeping in mind the nature of the case. It can also take the help of the government attorneys, if needed.

The attempt to legislate a separate act on contempt of court must be taken in a positive manner. However improvements are necessary for the act to be both judicial and effective. It has been observed that the courts in Nepal have not considered all the aspects of contempt while making decision regarding this topic. The definition of contempt in Section 4 is unable to clarity on the various types of contemptuous acts that are recognized in the broader legal system. With regard to the mode, contempt can be divided into two categories – direct and indirect. With regard to the action, contempt can be divided into two categories – civil and criminal.

Civil contempt consists of disobeying the court’s order in a manner that an individual is aggrieved. Criminal contempt consists of offence against the court itself and the prestige of the judiciary. Civil contempt can be remedied if the individual is satisfied but criminal contempt leaves a long lasting damage upon the image of the judiciary. It is seen that this Bill does not make a clear distinction between such categories in terms of punishing the offences though Section 7 provides in case of civil contempt the aggrieved person can file for such proceedings and in case of criminal contempt, anyone can file for contempt proceedings. Section 13 needs to provide degrees of punishment with regard to the seriousness of the offence.

Direct or in facia curiae contempt occurs inside the court and is witnessed by the bench. This is addressed by Section 8(1). Indirect contempt occurs outside the court. It consists of bribing advocates or witnesses, or publishing defamatory material. This Bill does not make clear distinction between direct or indirect contempt. It would have been better to divide such offences between different sections and prescribing separate punishments for them. Presently the Bill puts too much discretion upon the judges regarding punishment by not distinguishing between the punishment suited to the nature of the offence and by only prescribing the maximum punishment.

There are some other issues as well. In Canada contempt of court includes offence from the court officials. In Hong Kong taking pictures and recording court proceedings without permission is also prohibited. The mental element is a considerable factor in determining this offence. Offence without the intention is normally treated with lesser punishment. The exception to this is Britain where contempt of court attracts strict liability. Section 14 gives the discretion to the court to grant pardon or reduce sentence, or commute or change it. But it is based on the apologies or plea of innocence given by the accused and not on the mental element of the accused while committing the offence. Therefore the Bill should be clear on these aspects.

According to Section 17, if the offences under this Act can be prosecuted under other prevailing laws then this Act shall not obstruct such proceedings. This can violate the constitutional principle of double jeopardy. The definition of court under Section 2(a) is wide enough to include various tribunals and investigative commissions. It is noteworthy that such quasi judicial institutions are not empowered for judicial administration but their duty is to provide recommendations and conduct investigations. Such institutions are often established under some political context. Therefore the law of defamation should be employed in such cases rather than the law of contempt.

It is also noteworthy that there have been criticisms of the practice in cases related to contempt of court where the judge is empowered to find the accused guilty and also decide the punishment. It can be argued that this violates the principle of natural justice whereby one cannot be a judge of his own cause. Therefore decision on contempt of court will be unbiased if it is taken by another bench or judge even though it is the same court. The Bill needs to make necessary changes to achieve a comprehensive stance on contempt of court and give out unbiased decision.

(This is excerpt of opening remarks given by Dr Bipin Adhikari as Chairperson of Nepal Constitution Foundation at the bill review programme on the Bill of Establishment and Management of Bagmati Civilization Development Council, 2066 organised on January 08, 2012)

The Bagmati River originates in Bagdwar and flows through the Kathmandu valley. As any river, the Bagmati river system is also related with the life and breath of the local communities. Apart from this, it is considered a holy river both by Hindus and Buddhists. The famous temple of Pashupatinath lies at the bank of Bagmati. There are other shrines like Gokarneshwar, Guheshwari and Kiranteswar located in its banks. The Hindus and Buddhists, for whom the river water has special religious and spiritual values, consider the water of Bagmati as a holy water. The importance of Bagmati also lies in the fact that Hindus are cremated on the banks of this holy river, and Kirants are buried in the hills by its side. The area has also been enlisted as the World Heritage site. The river comprises of 57 other rivers and rivulets as its tributaries. Yet the Bagmati River is in crisis.

The Bill, though a belated move, has been formulated with the intention to keep the river Bagmati clean, pollution free and for the conservation of the surrounding natural, archeological, cultural and religious heritage through the establishment of Bagmati Civilization Development Council. The structure created by the Bill is similar to many other types of Council established in Nepal in the past. But its challenges are gigantic.

Section 3 of the Bill provides for the establishment of the Council to formulate necessary plan to keep Bagmati and its tributaries clean and unpolluted. Section 4 provides that the Council shall be an independent and autonomous institution. Section 5 provides for the members of the Council which shall be chaired by the Minister for Physical Planning and Development. Section 6 provides that the Council shall meet for at least twice in a year with over fifty percent members required to be present to fulfill the quorum. Section 7 provides for the functions, duties and powers of the Council which stretch from policy making, to directing the execution of the work. Section 8 provides the working area of the Council which extends up to fifty meters from the river’s shores. Section 9 provides that the Council shall prepare the master plan in consultation with the local authorities and must get it approved by the government before implementing it. According to Section 10 the Council must specify a minimum mainstream area of the river. The Council is empowered to generate and manage funds for its work.

Section 13 of the Bill provides for the establishment of an executive committee. Section 15 provides for the functions, duties and powers of the Committee. The Committee is required to present necessary policy to fulfill the objectives of the Act to the Council, build and maintain physical structures (damns, roads) for the conservation of the river, prohibit dumping of pollutants into the river and extraction of sand, conduct river source conservation and tree planting programmes, replacement of squatter settlements around the river, conducting awareness related programmes etc. Section 16 prohibits any encroachment and activity that interrupts the flow of Bagmati or its tributaries. It also requires that permission from the Council be acquired for the construction of any physical structure, usage of any historical site, construction of any kind of settlement, any activity that can have a negative impact upon the environment etc in areas within the purview of the Council as stated in Section 8.

Section 17 empowers the Council to issue one-month notices for removal of any governmental or public physical structure falling within its working area. Section 18 provides that data shall be maintained for all the government and public lands falling within the Council’s purview by the Committee. According to Section 19 the Council can ask the government to acquire lands that are necessary for the implementation of the Council’s plans. The Committee can make use of any government or public land for its purposes (Section 20). Section 21 empowers the Executive Committee to form sub-committee as required to carry out its functions. Section 24 enables the Committee to ask for departmental action against any officer unwilling to cooperate with the Committee.

The Vice-Chairman of the Council can direct monitoring of the works done under this Act, according to Section 25. Section 26 prescribes that Vice-Chairman is required to be graduate from a recognized university with experience in field of environment or management. The Vice-Chairman has several executive, directive and supervisory powers. Section 31 provides that anyone found violating Section 16 by building unauthorized structure shall be fined up to Rs. 3 lakhs and the structure shall be demolished. Anyone polluting the river, or harming any cultural or religious heritage or extracting sand from the river basin shall be fined up to Rs. 1 lakh. Section 32 provides for appeal against punishment ordered by the Committee.

There are several improvements that can be done in the Act. Firstly in the preamble it should be added that the intention of the Act is also to prevent encroachment of the riverside areas and protect the river ecology as well. In the absence of this provision, it would not be possible for the Council to check several types of abuses to the Bagmati River. Secondly the Act can be titled as Bagmati Civilization Conservation and Development Act to underline the conservational aspect as well. Similarly in Section 7 it could be mentioned that the function of the Council is to make the riverside environment ecologically vibrant as well. It has also been suggested that the Council should have more area under its jurisdiction.

While determining the mainstream area of the river, due regard must be given to how wide the river was in the old times. It must be kept in mind that Bagmati’s flow has greatly reduced in the recent decades due to various reasons like urbanization and pollution. Therefore it is important that the historical width of the river must be given due consideration while attempting to improve the quality of the river water. The Executive Committee under Section 13 could be made more inclusive with regard to women and other communities. The Committee’s goals must include the improvement and maintenance of the environment around the river and perhaps also include the promotion of ecotourism in these areas.

In order to move the settlements built on the river banks in a convenient manner, perhaps a 90 day notice could be given by the Committee. With regard to the qualifications of the Vice-Chairman is has been suggested that the position requires at least a Master’s degree due to the nature of the job at hand. Regarding removal of the Vice-Chairman, bad conduct must be proved before it can become a ground for such removal. It has been suggested that the Council should gather a portion of its funds from the house and sewage tax from the local authorities inside the Kathmandu valley for the funding process to be reliable. This will also let the residents feel that they are a part of the conservation efforts. It can also increase the accountability of the Council.

It is seen that Section 31 only prescribes the maximum amount of fines that can be imposed for the contravention of Section 16. It has been suggested that a minimum amount should also be specified so that the wrongdoers are not given undue advantage of this loophole.

Overall, this legislation appears to be a very good initiative at improving the dismal state of the holy river Bagmati with due regard to its tributaries as well.

(This is excerpt of opening remarks given by Dr Bipin Adhikari as Chairperson of Nepal Constitution Foundation at the bill review programme On the Bill of Public Procurement (Amendment) Act, 2063 (2007) organised on January 03, 2012)

Nepal has been going through the process of public procurement reform in recent years. A new Public Procurement Act enacted in 2007 made a significant progress in this regard. The capacity to enforce public procurement laws and regulations, and to manage and conduct procurement is still a challenge in the country often leading to ineffective use of scarce budgetary resources. As procurement reform often meets major resistance from vested interests within society there is a growing recognition of the need to understand and address the underlying factors that may undermine political will for reform and more systematically analyze the effects of political incentives on the feasibility and sustainability of such reforms.

The Public Procurement Act of 2063 (2007) was enacted with the intention to –

• make the procedures, processes and decisions relating to public procurement much more open, transparent, objective and reliable 
• obtain the maximum returns of public expenditures in an economical and rational manner by promoting competition, fairness, honesty, accountability and reliability in public procurement processes 
• ensure good governance by enhancing the managerial capacity of procurement of public entities in procuring, or causing to be procured, construction work and procuring goods, consultancy services and other services by such entities, and 
• ensure equal opportunity for producers, sellers, suppliers, construction entrepreneurs or service providers to participate in public procurement processes without any discrimination.

The Act is being amended now on the basis of the experience of its implementation and enforcement. This Amendment Bill has been brought to make requisite and relevant changes to the Act.

Firstly, the Bill proposes Amendment to Section 2 containing definitions. The Amendment Bill seeks to change the sub clause (f) which defines “other services” which would now include – “any act of printing or publishing”, “hiring motor vehicles, equipment or goods, carriage or repair and maintenance of goods” and “any service other than consultancy”. The Bill also seeks to amend Section 10 which is about Qualification of Bidder or Proponent, by adding sub clause (5A) which says that regardless of anything in this section, no qualification shall be required for procuring any construction work amounting up to Rs. 2 crores until 2069 Asadh, other than construction works requiring special experience, manpower or machinery. Regarding Section 14 which is about invitation to bids, the Bill seeks to remove the phrase “if security to the bid is required”. In the same section the Bills seeks to add the restrictive proviso to sub clause (6) which states that up till 2070 Asadh provisions may be made for presenting or sending bids for more than one public institution.

An important addition that this Bill seeks to make is the addition of Section 26A which provides for conditions that lead to assumption of collusion between bidders. Section 27 is regarding the acceptance of bid and procurement contract. The Amendment Bill seeks to add sub clause (6A) which states that the names, addresses and the bid amount of the bidders accepted as per sub clauses (5) and (6) must be informed to the other bidders. Two more sub clauses (8) and (9) are sought be added to Section 48, regarding the review committee. Sub clause (8) provides for circumstances when the post of chairperson is deemed to be vacant and sub clause (9) says that the work procedure of the review committee shall be as provided. Section 51 is regarding the withholding of procurement proceedings. The Bill seeks to make the review committee involved in this proceeding.

In Section 54(1) regarding variation order the Amendment Bills seeks to replace “the Council of Ministers of Nepal Government” with “Secretary under the recommendation of the specified committee”. A new sub clause (f1) is sought to be added in Section 62 which says that one cannot present bid related papers in the same public agency more that two times in the same years. This is another provision seeking to discourage collusion. Section 67 lays down the conditions where the procurement process under this Act need not be applied. The Bill seeks to add (1) (c) which says that if the public agencies per section 2(b)(2) have to buy to keep their business savings (maujdat) or any raw materials.

The positive aspect of the Amendment Bill is that it follows the principle that laws need to be amended to make them practical in tune with the change of time. It also corrects several errors that existed in the Act in Sections- 14(3) (d), 36, 25, 40(2), and 41(3). The Bill provides a basis for assuming collusion between bidders, punishing such behaviour and disallowing such bids.

However, there are several simple errors that the Amendment Bill has not addressed that exist in Sections 2 (e), 8 (1), 10(1), 41(2) etc. Besides these there is a need for clarity in the Act. For example it is not necessary under the Act to present certificate of registration or permanent account number to be able to make a bid. However, the prevailing practice is such that in order to make a bid, it is necessary to present certificate of registration, tax registration etc. Therefore the Act must clarify that such registration is not necessary for the bidding process.

According to Section 14(11), in the case of procurement of public construction work, preference may be given to a foreign bidder which enters into joint venture with a domestic construction entrepreneur. This is not the best practice according to the UNCITRAL model and OECD DAC. Once the bidding process starts until the sale agreement is complete, the process, apart from the people involved in the evaluation process and the institution heads is kept confidential from the rest of the world. This is mentioned in an unclear manner in the Public Procurement Rules in Rule 61(3). This should be expressly mentioned in the Act.

In the current Amendment Bill, the inclusion of Section 10(5A) is like giving away Rs. 2 crores without expecting any work in return. This provision can enable even an unqualified person to get the contract and no qualified builder will come forward to compete against unqualified persons in this manner. It is absurd that before 2nd Asadh 2069 no qualification is required, whereas after the date qualification is required. Another part of the Amendment Bill, regarding Section 14(6) appears to be affecting the transparency of the whole process. Allowing bids to be registered at more than two places is against the minimum standard of international practice.

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(This is excerpt of opening remarks given by Dr Bipin Adhikari as Chairperson of Nepal Constitution Foundation at the bill review programme on the Bill of Greater Janakpur Development Council (Amendment) Act 2010 organised on December 04, 2011)

Janakpur has the same importance for Hindus around the world that Bethlehem, Nazareth and Jerusalem have for Christians, Mecca, Medina and Jeruslem for Muslims and Lumbini, Bodhgaya and Sarnath for Buddhists. Its importance cannot be over emphasized. Its religious importance apart, the area is the centre of Maithili people, their customs, traditions and culture.

The Greater Janakpur Area Development Council Act was enacted as early as 1998 in order to safeguard, maintain and develop the shrines, temples, lakes and sites of religious, historical and archaeological importance within the Janakpur area and its intermediary (Panchakoshi) circuit areas, and to develop the Greater Janakpur Area as a well-planned pilgrimage and religious site by developing infrastructures for the social, economic and cultural development of the Greater Janakpur Area. The Amendment Bill has been brought forward to increase the area under the Greater Janakpur Area Development Council to run it in a more effective manner and to increase the role of the Chairperson of the Council. It is seen that the bill has been made to carry forward the nation’s policies since the establishment of the Republic.

The Bill seeks to amend the preamble of the Act and seeks to add the terms – “monasteries”, “stupas”, “chaityas”, “mosques”, “mazaar”, “dharmashala” and “tourism” into it. This shows that now the Council will be trying to encourage tourism and religious places of Buddhists and Muslims will also be included in the scheme. It further proposes to amend Section 2(a) changing the definition of Greater Janakpur Area to include all areas under Dhanusha and Mahottari districts as they exist today. In Section 3, it has been proposed to replace the term “Intermediary Circuit area” with “Greater Janakpur area”. Section 5 which provides for the objectives of the Council, is sought to be amended to include monasteries, stupas, chaityas, mosques, mazaars and dharmashalas in the exploration and research works.

Section 6, which provides for the formation of the Governing Council is sought to be amended to include representative from the Ministry of Federal Affairs, Constituent Assembly, Parliamentary Affairs and Culture. The amendment also sets the tenure of both the Chairperson and the nominated members as four years. Section 7 which provides for the meetings of the Governing Council is sought to be amended to make sure that the meetings take place at least once a year instead of taking place as required. Sub clause (1A) is added whereby if one fourth of the members ask for a meeting to the Chairperson then the meeting must be called within 15 days. The Bill seeks to amend Section 8 regarding the functions, duties and powers of the Governing Council to include sub clause (d1) so that the Council coordinates with the Guthi institution to conserve and manage the Guthi lands.

The Bill seeks to add Section 16A regarding the functions, duties, powers and remuneration of the Chairperson under which the Chairperson shall be a fulltime officer and will also work as the Executive head. The remuneration and benefits are to be set by the Government. Section 17(1) is to be amended to the effect that a Director is to be appointed by the Council on the basis of open competition to conduct daily activities under the direction of the Chairperson. Section 24 is sought to be amended so that the Council will have to contact the government through the Ministry of Federal Affairs, Constituent Assembly, Parliamentary Affairs and Culture. The terms “member –secretary” and “Executive Director” are sought to be replaced wherever they have been used by the terms “Secretary” and “Director” respectively.

While these provisions are important, it must be noted here that the Bill has not tried to make the organization an inclusive institution, where all important stakeholders have representation. Similarly, the overall development of Janakpur also requires significant interventions in the development of local language, traditions and cultures. The area has the potential of developing itself as the major site of Maithil language, culture and overall civilization. These initiatives must be linked with the overall objective of this statute. Caste dimensions must also be taken care in the management of the council. The architectural designs of Janakpur must be carefully developed with some sense of history and local traditions. This means close coordination with architectural, urban design and research foundations specializing in architecture, urban regeneration, heritage conservation, green architecture, and planning. It is an open question why the Act of 1998 could not generate enough public participation in the development of Janakpur. Attempts to answer this question may help us find what the grey areas for statutory reform are.

Since the working area of the Council has been greatly increased, it is a matter of concern whether the economic resources of the Council are also going to be increased. Only such increase would lead to effective implementation of the programmes. The formation of the Council has been made more practical. But perhaps such institutions need to include more people’s representatives rather than bureaucrats. Inclusion of VDC Chairpersons would certainly help in this regard. It has been observed that such institutions can function well when their administrative powers are clearly defined. When there is confusion in such matters between several institutions then their work is negatively affected. It is a positive sign that the Bill intends to properly establish the Chairperson’s responsibilities, functions duties and powers. This leads to the hope that the Council will be much more effective in the future.