Category: Lectures / Speeches / Presentation

(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 providing for the establishment of Special Economic Zone Act, 2065 organised on November 21, 2011)

This Bill has been drafted to make laws to enable the establishment of Special Economic Zone (SEZ) in order to expedite industrialization of the country and its economic progress. SEZs are made with the intention to encourage certain kinds of industries by providing a more free-market-oriented legal regime than the country’s other national laws. This practice has been followed in many countries already. Though preparations have been made in various parts of Nepal in creating such areas, the lack of a proper legislation in this regard is being sought to be remedied.

The present draft is said to be devised by the SEZ Project of Nepal government. The project is in operation since 2060 under the Ministry of Industry, Commerce and Supply (MOICS). Apart from this Bill, the project has been playing crucial role in pursuing feasibility study for the identification of sites, infrastructure development and design and cost estimates of the establishment of SEZ at Birgunj, Panchkhal of Kabhre and Ratmate-Devighat Areas of Nuwakot Districts and land acquisition in those areas, detailed engineering survey and design of facilities to be established inside export processing zone at Bhairahawa, infrastructure development of Bhairahawa Export Processing Zone (BEPZ).

International Context
The Bill has special international context as well. Many countries have come up recently developing zones like free trade zones, export processing zones, free zones, industrial parks and urban enterprise zones in order to increase foreign direct investment, typically an international business or a multinational corporation. Both the countries in our neighborhood, China and India, have employed special economic zones to contribute tremendously to their ongoing industrialization, boosting exports and substantially improving economic conditions in regions hosting the zones.

China started SEZs as early as 1980s. This allows SEZs to utilize an economic management system that is especially conducive to doing business that does not exist in the rest of mainland China. Special tax incentives are given for foreign investments in the SEZs. They offer Greater independence on international trade activities. Economic characteristics are represented as “4 principles”: construction primarily relies on attracting and utilizing foreign capital; primary economic forms are Sino-foreign joint structure and partnerships as well as wholly foreign-owned enterprises; products are primarily export-oriented; economic activities are primarily driven by market forces. SEZs are listed separately in the national planning (including financial planning) and have province-level authority on economic administration. SEZs local congress and government have legislation authority.

The Government of India announced the introduction of Special Economic Zones Policy in 2000. The SEZ Act, 2005, was an important bill that India passed in order to instill confidence in investors and signal the Government’s commitment to a stable SEZ policy regime and with a view to impart stability to the SEZ regime thereby generating greater economic activity and employment through their establishment. The major incentives and facilities available to the developers in India include exemption from customs/excise duties for development of zones for authorized operations, income tax exemption on income derived from the business of development of the zones in a block of 10 years in 15 years; exemption from minimum alternate tax; exemption from dividend distribution tax; exemption from Central Sales Tax; exemption from Service Tax, etc.

These zones have been implemented using a variety of institutional structures across the world ranging from fully public (government operator, government developer, government regulator) to ‘fully’ private (private operator, private developer, public regulator). In many cases, public sector operators and developers act as quasi-government agencies in that they have a pseudo-corporate institutional structure and have budgetary autonomy. They are often developed under a public private partnership arrangement, in which the public sector provides some level of support (provision of off-site infrastructure, equity investment, soft loans, bond issues, etc.) to enable a private sector developer to obtain a reasonable rate of return on the project (typically 10-20% depending on risk levels).

The Bill providing for the establishment of Special Economic Zones in Nepal must be analysed in the context of the development across the world, and Nepal’s own requirements.

Provisions of the Bill 
Section 3 of the Bill states that the government of Nepal on the recommendation of the Authority mentioned in Section 13 of the proposed Bill can declare any place as a Special Economic Zone. Special provisions can be made regarding supply, business, tourism and entertainment on the SEZ. The SEZ Authority can recommend the establishment of such a SEZ after conducting a survey on the particular area as per Section 4. Section 5 states that the Authority shall make public the list containing the industries that may be established within the SEZ. The government can use the private sector for developing, managing and running the infrastructure of a SEZ.

Section 7 provides that application for license to establish any industry must be made to the SEZ Authority. Investors can apply to set up an industry not included in the list under Section 5 if such industry is appropriate environmentally, economically and business wise. No industry which has already been running can shift to the SEZ based on its existing license or registration. Section 8 stipulates that the licensee has to enter into an agreement with the authority regarding – buildings, land and services necessary for the industry, date of establishment and running of the industry, quantity of supply of the product, subject of technology transfer in case of foreign investor and other matters. The maximum validity period of the license is stipulated to be 30 yrs and may be renewed (Section 9). Section 11 provides that the licensee must supply the entire products or services but may sell twenty five per cent of the total produce in Nepal’s domestic market. Section 12 provides for conditions when the license may be cancelled- when the license is not renewed, when the licensee does not follow the relevant laws or rules, or abuses the privileges etc.

Section 13 establishes the SEZ authority which responsible for – the building and maintaining of infrastructure, monitoring and regulating the industries, and providing services to the established industries. Section 14 declares the authority to be an autonomous organized body. Section 15 provides the functions, duties and powers of the authority. The authority has an advisory function regarding government’s policy on SEZs and facilitative and regulatory function regarding the establishment of industries and supply of goods and services in the SEZ. Section 16 establishes the board of directors for the authority. This is followed by provisions regarding the meetings of the bard, salaries of the directors and provisions regarding the staff.

Section 20 provides that special treatment shall be given to the industries in the SEZ by excluding them from the jurisdiction of taxation. Section 21 provides that such industries shall not be nationalised. Section 23 provides various tax benefits on the income of the investors or the licensees. Section 24 provides VAT concessions on machinery, raw materials and transport vehicles necessary for an industry. There are further concessions on excise and customs. Section 29 allows foreign investors take back their investment outside Nepal with respect to sale of shares, profits, principle and interest. Section 30 enables licensee to open account on the Authority’s recommendation and carry business in foreign currency. Non-tourist Visa is also obtainable for foreign investors.

Section 35 stipulates that the licensee must employ Nepali citizens to fulfill the staff requirements. Otherwise, permission from the Authority must be obtained. The Authority shall specify the salaries of the workers in any industry in the SEZ but other matters will depend upon the agreement between the workers and the industry. Section 38 provides for establishment of a grievance committee for the workers and staff who are barred from causing any negative effect upon the production.

Section 40 prescribes punishment for various offences and Section 41 provides appeals for the Authority’s decision. Section 44 enables a licensee to sell the shares and ownership of the company to another person after notifying the Authority. The environmental impact assessment of any industry will be done according to the parameters set by the Authority. Section 47 enables the authority to monitor and supervise the industries in the SEZ. Section 48 stipulates that the licensee must present an annual report within three months after end of the financial year describing the details of business. The government can give necessary directions to the Authority and the Authority must contact the government through the Ministry of Industry, Commerce and Supply.

Some considerations
Regarding Section 5 and Section 7 (3) and (8), it has been commented that though the Authority publishes a list of industries fit to be established in the SEZ, it also has the power to include other industries not on the list for valid reasons. This level of flexibility is rather undefined. A better way would be to revise the list every five years or so. Though Section 7 (9) prohibits an already established industry to shift to the SEZ based on its original license, sub clause (10) enables the government to handpick industries that can make such a shift. This provision gives the government unbridled discretion. Proper standards of choosing such industries must be developed.

Regarding the environmental impact assessment of the industries, it has been commented that it should be conducted according to the Environment Protection Act, 1997 and the Environment Protection Rules. Section 11 enables twenty five percent sales of the production in the domestic market of Nepal. This percentage might be a little too high since this venture is a costly one intending to bring foreign investment and Nepal already has a trade deficit with most of its trading partners. Therefore the SEZs must be made more export-oriented by reducing the concession to perhaps ten percent of the total production. Additionally, it must be clearly pointed out that no tax concessions shall be provided in the sales of the products in the domestic market of Nepal.

The investors for long have complained the lack of stability in the legal regime in this field, especially in laws related to taxation and other charges. Internal problems regarding tax and concessions might have a negative impact on the investment in the SEZs too. Therefore, the government’s policy in these matters must be more stable and comprehensible. Provisions regarding workers and staff must meet the international labour standards. In this regard, industrial dispute resolution mechanism must be properly established in accordance with Section 53.

It is also important for us to look into these statutory provisions in the context of women, Dalits, indigenous communities, Madhesis, youths and other marginalized communities. It is the time to see if the proposed arrangements help the constitutional aspiration of creating an inclusive Nepalese society and decision making structures.

(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 National Academy of Law and International Relations Act, 2066/2009 organised on October 20, 2011)

Traditionally, universities have been established as major institutions for providing higher education and research opportunities, and are recognized as the most important investment in the country’s future.

All universities, whatever their preferred area/s of specialization, contribute to the culture, socio-economic and environmentally sustainable development of individuals, communities and nations. As society is now becoming increasingly knowledge based, university education has become crucial in preparing a healthy, skilled and agile intellectual human force with facilities for life-long learning. This enables countries to continuously assess, adapt and apply new knowledge. As a result, the development of university education and research has been receiving high priority the world over.

In this background, a member of the parliament has brought forward a new Private Bill to establish the National Academy of Law and International Relations. This Bill has been drafted with the intention to provide for study related to law, international law, diplomacy, strategic studies, defence analysis and management in order to produce able manpower in this field by developing the existing private sector academic institution, Kathmandu School of Law, currently affiliated to the Purvanchal University, as the National Academy of Law and International Relations. Even though the word ‘Academy’ is used, what is intended is a full-fledged university, which will upgrade the law school in a variety of ways.

Section 3 of the Bill establishes the Academy with the aim to conduct studies on – National law, legal system and philosophy, international law and relations, diplomatic and strategic studies, defence analysis, humanitarian law and human rights, constitutionalism, management and good governance etc.

Section 4 mentions that the Academy will be an autonomous and independent institution, administratively and financially, and will also have perpetual legal personality. The Academy is inclusive of – Senate, Academic Council, Executive Council, Service Commission, Educational Institution, Board of Trustees and other agencies. Section 6 enumerates the functions, duties, and responsibilities of the Academy.

The Academy is empowered to – conduct studies up to the doctorate level and other diplomas of professional nature in the areas of studies as mentioned in Section 3, coordinate with international universities and organizations in its various activities, publish books, organize discussion and seminars etc. The Academy has to follow the National Education policy in presenting academic awards and conducting programs and can accept foreign students as well.

Section 8 provides for the functions, duties and powers of the Senate which is mandated to oversee the policy, plans, programmes, budget and rules of the Academy, present scholarship and other awards, direct the other agencies under Academy, advise the government on various matters etc. The Board of Trustees has various advisory functions towards the executive council and also recommends three candidates for the post of Vice Chancellor to the Senate (Section 10). An advisory committee may be created by the Senate inclusive of well known Professors, researchers and experts for matters related to resource management and gaining international recognition.

The Academic Council provided by the Bill is responsible for – conducting educational and research programmes, prescribing educational qualifications of the teachers, prescribing the curriculum, student selection, conducting examinations, determination of fee and other academic matters. The executive council has a number of functions, duties and powers as mentioned in Section 15 – to execute the decision and directions of the Senate and the recommendations of the Board of Trustees, present the annual budget, progress reports and audit reports to the Senate, coordinate and monitor the programmes conducted by the Academy, appointment of staff and other executive functions.

The Academy is empowered by Section 18 to open centers for studies and research on various subjects. The Academy is required by Section 30 to present and make public an annual report briefing its works and the achievements. The Academy may form Committees according to its need to fulfill responsibilities as provided in the Act. The Academy has not been allowed to grant affiliation to any other educational institution by Section 35. Section 38 provides for reservation of minimum of 10% of the seats for women and marginalized communities coming from rural background. Section 39 provides for full scholarship for a minimum 10% of students. The Academy must contact the government through the Ministry of Law and Justice and can make its own internal rules to implement the Act.

The idea behind opening such an Academy is commendable. It helps boost the confidence of private sector to institutionalize themselves and grow further. However, as it appears, the biggest obstruction that this Bill faces is that an umbrella Act is awaiting approval from the parliament which will supplant all the previous legislations regarding higher education institutions (Bill to Amend and Consolidate Higher Education Laws, 2010). Though enacting charters (specially targeted statutes) for individual universities is more preferable, this Bill will be nullified by the umbrella Act nevertheless.

The draft of the umbrella Act comes almost in the framework of Companies Act, or the Society Registration Act of Nepal, and is intended to provide legal regime for all universities in Nepal. It includes the universities established in the past under specific statutes. It intends to eliminate all such erstwhile statutory regimes, and provides a common framework to maintain uniformity in the working of all universities. Such an approach is presumably intended to enhance the quality and standard of the programmes and activities at the universities, to gain the respect and admiration of its constituents and the society, and ensuring that the universities performing similar functions have a common standard of operation. Despite this noble intention, such arrangements have some clear pitfalls as well. The basic comment is that universities are not companies in the common parlance. It is desirable to maintain pluralism in the pursuit of knowledge. Some variation in the university statutes to facilitate regional emphasis and also to provide them scope for innovation and experimentation is always encouraging. It would not be unnecessary to provide for umbrella statute as long as the state continues to provide special charters to universities (such as the proposed statute) and other specialized educational institutions, who do not want to be registered /established under such an umbrella.

Besides this major inconsistency, there are many improvements that can be made in the Bill. The Senate can be made more inclusive as currently the provision only reserves a maximum of two seats in the Senate for women either from social work or intellectual background. The Senate is a powerful body and representation of other deprived and marginalized communities must also be ensured. It is unreasonable that the term of the Chancellor and Vice-Chancellor and Registrar are different. Another question that comes up is why must the Academy contact the government through the Ministry of Law and Justice instead of the Ministry for Education?

While the present Bill tries to deal with several important aspects of university regulations, it is important to note that the universities in modern world have been performing many additional functions now a days, e.g., undertaking sponsored R&D and continuing education, providing knowledge-based advice and consultancy, preparation / publication of educational material like books / study reports / research papers and extending services to society. Of late, the world-wide advances, particularly in new information and communication technologies, are greatly influencing the university system. However, major issues like size, access, equity, relevance, quality and resource constraints continue to dominate the working of universities. Thus, in the 21st century, universities are becoming complex institutions with many distinctive features that set them apart from other social and business institutions. This calls for the adoption of an appropriate strategy for their governance, organization and management. On this issue, it must be noted how the Bill prescribes a very wide range of subjects that are to be taught in the Academy, while it is open to discussion whether the Kathmandu School of Law has the necessary infrastructure to make it possible. The fact that Law itself is a big field of study and international relations, defence analysis or strategic studies put additional demand on the Academy.

The role of the government from time to time to review the governance, organization and management of universities in the country in the larger public interest cannot be ruled out. The success of a university depends not on the statute only, but also on its personnel, their sense of dedication, discipline and responsibility, and the traditions/conventions they establish. It has also been observed that it is necessary for the academics and administrators of higher education to examine the matter of governance of universities and the content of university education from time to time, as social change has been taking place at a breathtaking pace now a days. Besides, experimentation should be the key essence of university education, as the content and teaching methodology has to keep pace with the explosive growth of knowledge.

If one goes by this Bill, it is easier to note the features which ensure autonomy of the Academy from external control, for smooth functioning; sufficient freedom to permit innovation/ experimentation, organization pattern to serve their true objectives, and structures in broad terms. What needs to be looked into more precisely is whether the Bill ensures internal democratic administration to enable active role for faculty; a grievance redressal system to take care of students, teachers, and staff, ease of coordination with the existing University Grant Commission; built in safeguards against abuse of larger public interest, and powers of the government to issue directives to the university, where necessary. Once there is clarity on this aspect of the Bill, there is no reason why the Academy should not be allowed to grant affiliation to other institutions as it is effectively going to be made a university. A private university can do it as much as any other public university.

The Bill is an important initiative. Once passed, it will help boost the confidence of private sector in the area of higher institution of education and learning. The need is to take these concerns into account before giving it exit.

Bipin Adhikari
Chairperson

Nepal Constitution Foundation

(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 to amend and consolidate Higher Education laws, 2010 organised on September 22, 2011)

The Bill to amend and consolidate Higher Education laws 2010 is a major legislative initiative in the area of university education. It is important that this Bill be discussed at the national level before the parliament takes initiative on it. As I understand, the government has registered the Bill with the Parliament Secretariat, but has not so far tabled it in the parliament. This means it has enough time to interact with the higher education community in the country on the overall policy and contents of the Bill. So far we are not aware of any policy document that serves as background to this Bill. It is natural therefore that many of the provisions of this Bill are difficult to understand as a matter of policy.

Having said that let me point out that the preamble of the Bill states that the measure has been drafted with the goal to improve the quality of higher education by developing a more competitive environment amongst the higher education institutions and regulate the establishment, running and management of such institutions by amending and consolidating the applicable laws.

“Higher Education” has been defined in Section 2(d) as education given to bachelor’s degree level or higher. Section 3 sets up a Higher Education Council to act as an advisory body to recommend policy regarding higher education to the government of Nepal. The functions of the Council as mentioned in Section 5 include determining quality standards of higher education, monitoring infrastructures, recommending establishment of Universities, commence University Accreditation etc. Section 7 provides for establishment of an independent and autonomous Higher Education Commission. The Commission is mandated to – mainly aid and advise the Council regarding education policy, monitor and evaluate the performance of the Universities, classify the degrees provided by foreign universities etc (Section 12).

Section 21 classifies the Universities in three categories – Public, Community and Institutional (Public and Private Trust). Section 23 mandates the requirement of certain infrastructures necessary to establish any University as mentioned in the schedule to the Bill. According to Section 25 every institution along with the application must present a charter describing the organizational structure and other rules of the proposed institution. The University thus established is an autonomous and self-regulated body as per Section 26. All the property belonging to a public University will be considered as public property, that belonging to a community college will be considered property of the local authority and the community, property of private University will be considered belonging to governing institution. Chapter 5 provides the organizational structure including the Senate, Teachers Council, Executive Council, and Service Commission. Chapter 6 contains provisions for the University officials, teachers and staff.

Chapter 7 includes provisions regarding mergers and dissolving of Universities. A Merger is possible according to Section 48 based on the Higher Education Council’s recommendation to the government. Universities can be dissolved by the government on the Council’s recommendation according to Section 50. Chapter 8 prescribes penal sanctions and Chapter 9 contains provisions regarding University property, trust and audit. According to Section 56 the accounting process of each University needs to follow the procedural guideline provided by the government. Chapter 10 contains miscellaneous provisions regarding affiliations, requirement of providing scholarships etc. According to Section 64 it is a duty of the institutions to follow the government’s directions regarding the national education policy. Section 75 mandates both the Commission and the Universities to present an annual report before the end of each financial year reporting all the work done in the previous year. The Council or any University must contact the government through the Ministry of Education. Section 80 revokes all the other University Acts but provides that the Universities that are already running will be deemed to have been established under this Act.

This Bill may be commented on many fronts. Though the intention of enacting this umbrella Act has been well received, the Bill has been criticized because of its centralizing and what some deem as undermining of the autonomous nature of the universities. It is feared that the Ministry of Education will assume too much power under the legal regime that the Bill proposes. The Bill, which has been drafted without the formulation of a national policy on higher education, is seen as contradicting the Constitutional policy of moving towards a decentralized federal structure of governance. It has been opined that the umbrella Act shouldn’t go as far as giving so much power to executive institutions.

One such legislation is also seen as not doing justice to all the various types of universities that this legislation mentions. Though on positive side, the Bill makes mention of various types of universities like deemed universities, open universities and academies, it classifies the Universities into Public, Community and Institutional (Public and Private Trust). The idea of establishing community colleges has also been well received. It has been argued that even academies should be allowed to award doctorates if they have proper mechanism regarding research whereas they have been allowed to award graduation degrees in one subject only. Section 2(l) defines private universities but Section 22 makes no mention regarding the establishment and affiliation of such universities. Even the schedule makes no mention of the prerequisites for establishing private universities. According to Section 28(4) the board of trustees for private universities must be established with non-profit making goals. Such provision is said to be contradictory to the idea of private enterprise.

Though according to Section 3 the Council is made primarily to aid the government in policy matters, Section 5 (k) gives it powers of supervision as well. So the Council is involved in both policy making and regulation whereas even the Commission for higher education has been given similar regulatory powers in Section 15. Since the Council only meets twice a year, it is unjustified that it has powers of supervision even over the colleges. The provision for scholarship on an inclusive basis is laudable, but it is only available for technical subjects. Whereas the universities till now have been established on separate legislations, the administrative mechanism that the Bill creates results in too many government officers above the universities thereby is restricting their autonomous nature. Placing the older and bigger universities in the same plane as the younger and smaller ones is seen as unfair.

The enactment of an umbrella Act is seen as necessary because of the various irregularities in the current practice of many universities. The intention to ensure the accountability of higher education institutions cannot be faulted. However this Bill disregards the autonomy aspects of university institutions, and the impending federal structure that the nation is moving towards. On the other hand there are several legislations for establishing universities currently pending in the parliament which will be abrogated soon after they are enacted. Political interference in universities has been widely criticized. But Section 30, which provides for the inclusion of University Teachers Association Chairperson and Student Union’s Chairperson into the University Senate, is seen as encouraging political influence. Therefore the Bill needs to be thoroughly reviewed by the government.

I welcome you all to take part in the discussion and help develop appropriate suggestion to the legislators.

Thank you very much!

Bipin Adhikari
Chairperson

Nepal Constitution Foundation

(This is excerpt of opening remarks given by Dr Bipin Adhikari as Chairperson of Nepal Constitution Foundation at the high level programme on Tenth Amendment of the Interim Constitution and Remaining Challenges of Constitution Building in Nepal on August 30, 2011)

I extend warm welcome to the Chairman of the Constituent Assembly and the Chief Guest of this programme Rt Honorable Mr. Subhash C. Nemwang, Former Prime Minister and CPN Maoist’s Chairman Honourable Mr. Pushpa Kamal Dahal, President of Nepali Congress Mr. Sushil Koirala, Former Prime Minister and Chairman of CPN (UML) Honourable Mr. Jhalanath Khanal, Chairman of the Tarai-Madhesh Loktantrik Party Honourable Mr. Mahantha Thakur, Constitutional expert Dr. Surya Dhungel and all participant guests in this programme titled “Tenth Constitutional Amendment and the Challenges to building the new Constitution” being organized by Nepal Constitution Foundation (NCF).

This programme is very meaningful in the current political context. The constitutional building process through the Constituent Assembly (CA) has entered its 40th month. Whereas the CA was established to complete its task of constitution writing within two years, its term was extended firstly by one year, then three months, followed by another three months, as we have seen. Article 64 of the Interim Constitution provides that in a state of emergency when the job of writing the new Constitution cannot be completed, the CA may add additional 6 months to its term by a resolution cleared by two-third majority. But for various reasons the big political parties have clearly stated that they have found no other option but to keep adding the CA’s term due to the current situation.

The Supreme Court has saved this tenth amendment on the basis of doctrine of necessity, even though the nation is not in a state of emergency and national consensus has not been built among the political parties regarding the completion of the unfinished parts of the new constitution. This situation is being evaluated in various ways by the legal and political circles. However, completion of the constitution building process within the extended term is the most important challenge for both the government and the opposition.

Situations for applying the doctrine of necessity may rise again if the parties do not perform well. But this doctrine of necessity is a sensitive matter in the field of Constitutional Law. Though its use may seem normal prima facie, it should not be used to oppose the express or implied provisions of the Constitution. There are many risks involved in applying this doctrine with regard to the rule of law, the principle of constitutional supremacy and the concept of constitutionalism itself. The question of the feasibility of continual extension of the CA’s term could be the most challenging one to answer in the coming days.

This programme has been organized in the abovementioned context. The necessity to complete the constitutional building process and to end this vicious circle of necessity is obvious to everyone. Lets accept that the bases of legality are crumbling under the burden of this doctrine. The vested interests never seen before in politics around Constituent Assembly are appearing now in favour of giving continuity to the status quo no matter how. Apparently, the legal fraternity seems to be dissatisfied at the decision of the Supreme Court in this matter. If the new Constitution is not realized as soon as possible, the Assembly will face more challenges. The deadlock is not in favour of anybody.

The period of conflict was followed by the Comprehensive Peace Agreement (CPA) signed for the proper administration and democratization of the country. The people who have signed it should have no confusion about its vision for change.

Looking at that, it is a pertinent question why has the resolution of the remaining substantial issues of constitution building been so difficult? Constitution making process is only complete when the Constitution is made and mere strategic orientation of the major parties is not enough for it to be done. The situation has shown that there is no alternate to far-sighted development of consensus.

A democratic Constitution is the need of the day. There is no controversy on this issue. The advocates of change have shown their commitment regarding a few new features that democracy demands in Nepal. There has been much discussion on these features. Why there is delay in actualizing them. But even the realization of these new features requires a few years of serious attempts. Creation of political system is not possible at one stroke. It will require many small but sincere attempts even after the constitution is enacted. But the challenge now is to create the basics – the frameworks that must be done in order to move ahead. This appears to be easier said than done. The problems are not limited to the local political sphere only.

Amongst us, today, there are leaders who have the power and responsibility for making decisions concerning Nepal’s political future, democracy and helping this process.

We also have the CA chairperson who is responsible to facilitate the remaining parts of constitution building process in accordance with the policy and proposal as agreed by the leaders.

We are eager to hear their thoughts, views and commitments that have been in the making for the past 39 months regarding how to complete the constitution making process within the next three months.

They must have thought of alternatives to get rid of the ongoing bottlenecks. What is the roadmap for the next three months and how can the new constitution be built within 2068 Mangshir 14 is the prime question? 
Clear viewpoints (not positions) are required for these questions. On behalf of Nepal Constitution Foundation I welcome the nation’s think tank and senior politicians in this forum! And I also have good luck to the leaders ! And thank you very much !

Bipin Adhikari
Chairperson

Nepal Constitution Foundation

The United Kingdom Supreme Court Annual Report and Accounts 2009–2010 published last year has enlisted the summary of numerous high profile cases decided since its establishment on 1 October 2009. The report was presented to Parliament pursuant to section 54(1) of the Constitutional Reform Act 2005. The report covers establishment of the Court; mission and strategy objectives; jurisdiction and casework; appointment of justices; transparency and openness; a court on an international stage; corporate services; management commentary; and the accounts. The President of the Supreme Court Lord Phillips has noted in the report that “the creation of the Supreme Court marked the end of hundreds of years of judicial work conducted by the House of Lords. We are proud of that heritage and, in approaching the way we work in the Supreme Court, have sought to maintain elements of continuity with practice in the House of Lords.”

Her Majesty’s Treasury v Mohammed Jabar Ahmed and others [2010] UKSC 2: In response to incidents of international terrorism, including the 9/11 attacks in New York, the United Nations Security Council passed various resolutions requiring member states to take steps to freeze the assets of Usama Bin-Laden, the Taliban, their associates and those involved in international terrorism.

In the first substantive case to be heard by the Supreme Court, its Justices heard challenges to the legality of the Terrorism (United Nations Measures) Order 2006 and the Al-Qaida and Taliban (United Nations Measures) Order 2006.

The appeals to the Supreme Court were started by persons whose assets had been frozen as a result of two Orders made by Her Majesty’s Treasury, either because their names were included in a United Nations list of associates of Usama Bin-Laden or as involved in international terrorism, or because they were reasonably suspected of involvement with international terrorism. The appellants complained that the measures gravely interfered with their fundamental rights, including the right of access to a court and that HM Treasury did not have the power to make the Orders.

The Supreme Court quashed the Terrorism Order and part of the Al-Qaida Order which had been made without any Parliamentary scrutiny. It ruled that the United Nations Act 1946 used by the Treasury to make the Orders was not intended to be used to introduce coercive measures which interfered with UK citizens’ fundamental rights. The Supreme Court emphasised that in quashing the Orders it was not interfering with the will of Parliament. Its judgment was based on the fundamental principle that it was for Parliament to approve these measures if necessary.

An application by the media to lift the anonymity granted to the appellants in the lower courts was successful. See Application by Guardian News and Media Ltd and others in Her Majesty’s Treasury v Mohammed Jabar Ahmed and others [2009] UKSC 1. The Court agreed that identification would stimulate informed debate about the use of asset freezing orders.

R (on the application of E) v The Governing Body of JFS & Others [2009] UKSC 15:
An appeal heard at the end of the Supreme Court’s first month attracted considerable media attention. A procedural hearing in this case took place on 1 October 2009, making it the first hearing of the UKSC. E challenged the refusal of a Jewish faith school, JFS, to admit his son, M, as a result of an oversubscription policy that gave preference to children recognised as Jewish by the Office of the Chief Rabbi. Such children were either descended in the matrilineal line from a Jewish woman or had undertaken a course of Orthodox conversion. M’s mother was neither Jewish by birth or by Orthodox conversion. E and M were however practising Jews and M’s mother had undertaken a non-Orthodox conversion to Judaism.

E claimed that the admissions policy of JFS discriminated against M directly or indirectly on the grounds of his ethnic origins contrary to section 1 of the Race Relations Act 1976.

Sitting as a nine judge court, the Supreme Court (by a majority of five to four) agreed with the Court of Appeal that JFS had directly discriminated against M. It held that if, as here, a person’s ethnic origins were the reason for the decision made, then the motive for the discrimination was irrelevant. The fact that the rule adopted by the school was of a religious character could not obscure or alter the fact that the son had been discriminated against on ethnic grounds. The option of undergoing conversion itself constituted a significant and onerous burden not required of those born with the requisite ethnic origins.

In Re B (A Child) [2009] UKSC 5: This appeal concerned a three year old boy whose parents had separated before his birth. He had lived throughout his life with his maternal grandmother. The boy’s father sought an order that the child live with him and his new wife. Justices in the Family Proceedings Court had taken a decision not to disrupt the continuity of care which the boy had received and ruled that he should remain with his grandmother. This decision was overturned in the High Court and Court of Appeal, relying on the words of Lord Nicholls in Re G (Children) (Residence: Same Sex Partner) [2006] 1 WLR 2305 that ordinarily the rearing of a child by his biological parent could be expected to be in his best interests.

The Supreme Court restored the decision in the grandmother’s favour, holding that Re G had been misinterpreted. The paramount consideration in the determination of a child’s residence was his welfare. Lord Nicholls’ words merely reflected the common experience that in general children tend to thrive when brought up by the parents to whom they had been born. Discussion of a child’s right to be brought up by his natural parents was misplaced and detracted from the only consideration for the Court, namely his welfare.

R v Horncastle and others [2009] UKSC 14: On 9 December 2009, the Supreme Court dismissed an appeal relating to the admission of hearsay evidence in criminal trials. In so doing it did not follow a recent decision of the European Court of Human Rights (ECHR) in Strasbourg, which had held that convictions based solely or to a decisive extent on the evidence of witnesses that were not available for cross-examination in court breached the right to a fair trial guaranteed by Article 6 of the European Convention on Human Rights.

The Supreme Court unanimously held that courts take into account any judgment of the Strasbourg court in relation to the evidence of witnesses unavailable for cross-examination. However on rare occasions, such as R v Horncastle and others this did not mean a breach of Article 6.

The Court expressed concerns that the decision of the Strasbourg court had not sufficiently appreciated or accommodated particular aspects of the UK trial process and the safeguards in the statutory scheme. The ECHR decision had not fully considered whether it was justified to impose the rule equally on common law and continental jurisdictions and it would create severe practical difficulties if applied to English criminal procedure.

Martin v Her Majesty’s Advocate (Scotland); Miller v Her Majesty’s Advocate (Scotland) [2010] UKSC 10: Towards the end of 2009 the Supreme Court heard the first case in which it considered the validity of Scottish legislation. The appellants in these cases challenged the imposition of sentences of imprisonment under section 45 of the Criminal Proceedings etc (Reform)(Scotland) Act 2007 for the offence of driving while disqualified. These sentences were higher than those they would have received on summary conviction under the formerly applicable Road Traffic Offenders Act 1988. The appellants argued that section 45 of the 2007 Act went outside the legislative competence of the Scottish Parliament.

Justices at the Supreme Court by a majority of three to two held that section 45 of the 2007 Act was directed to a rule of Scots criminal law and within the legislative power of the Scottish Parliament. The change in the law only related to the procedure which determined whether the sentence could be imposed summarily by the Sheriff and did not affect the overall maximum sentence special to the 1988 Act. The increase in sentences for specific road offences was not reserved to Westminster (within the meaning of section 29 of the Scotland Act 1998).

Re W (Children) [2010] UKSC 12: On 3 March 2010, the Supreme Court handed down judgment in an urgent appeal, relating to the evidence of children in court proceedings. Judgment was given one day after the case was heard at the Supreme Court and in time for a fact-finding hearing for care proceedings concerning a family of five children. At issue was the decision of the trial judge to refuse the father’s application to have live evidence called (by video link) from his 14 year-old step-daughter, whose allegation of sexual abuse against him had led to the children being taken into care.

The Supreme Court found that the current law erected a presumption against a child giving live evidence in family proceedings. This could not be reconciled with the approach of the European Court of Human Rights, which sought to strike a balance between the right to a fair trial and the right to respect for private and family life. The essential test was whether justice could be done to all the parties without further questioning of the child. As the judge in this case had started from the wrong point, the question was remitted to her to decide at the start of the fact finding hearing the following week.

(This is excerpt of welcome note delivered by Dr. Bipin Adhikari as Chairperson of Nepal Constitution Foundation at a Bill Review Programme on the Bill of Sexual Harassment in Workplace Act 2067 organized by the Foundation on August 7, 2011)

The Bill has been drafted with the intention to safeguard the right to work in a safe and decent environment and to create legal framework to eliminate sexual harassment in workplaces. Any government or constitutional agency, any agency or organization established under the law or any business or service related entity will fall under the definition of “workplace” as provided in Section 2(a).

“Manager” has been defined in Section 2(c) as any person having the ultimate decision making power in administrative or business matters in any workplace. Section 4 defines sexual harassment primarily as touching any part of the body with sexual intent, or showing any sexual content through audio-visual or print media, or speaking about sexual activities, or expressing sexual intent through spoken words, signals, writing, sexual proposal, or looking at someone with sexual intent.

Section 3 prohibits any commission or abetment of sexual harassment in workplace. Section 5 requires the manager of the workplace to inform the employees and customers about – preventing such harassment, their rights to complain about such behaviour to the appropriate official and make other necessary provisions. According to Section 6 any complaints of sexual harassment must be made within 7 days to the manager who then has to investigate on the matter and either reconcile the parties or provide information to the complainant regarding a formal complaint within 15 days from the date of the complaint. Section 7 provides for formal written complaint to the appropriate hearing officer who, according to Section 14 is the Chief District Officer. The officer must be approached within 90 days after the alleged harassment or 70 days after the decision of the manager upon the complaint. The officer may be approached by both sides jointly for a settlement.

Section 9 protects the complainant against any negative action from the manager based solely on the complaint. The National Women’s Commission can inspect and inquire regarding the compliance of this Act and order proper measures to be taken if needed.

Section 12 sets the maximum punishment for the guilty party as 3 month imprisonment and/or Rs. 25,000 fine. The appropriate officer can also provide for compensation to the victim according to Section 13. The manager is responsible for the enforcement of decision of the officer or any settlement. If the manager is the accused then the officer is responsible for such enforcement. These proceeding do not affect any other legal remedy that may be taken under the prevalent laws.

It is felt that the preamble should make a mention of the responsibility of every employer to make the workplace free of sexual harassment. The definition of workplace should also be clear to include any public or private place as well. A sexual harassment complaint committee could be defined in Section 2 and mandated by Section 6 in the larger workplaces. It is necessary that the concept of a “third party” must be added to the purview of the Act to define any party directly or indirectly involved in the workplace or in any ways associated with the staff or the manager. Even looking at someone with sexual intent only once may amount to sexual harassment in a given situation whereas the current provision (Section 4) requires the incident to happen several times. It is also notable that sexual harassment can occur on the internet or through emails or telephone or fax. These aspects should be taken into account and included in Section 4.

Maintaining a safe, well managed, spacious and bright workplace, and separate toilets for men, women and others, and providing appropriate relief to the complainant are other managerial responsibilities that must be considered in Section 5. Providing a spacious workplace should be considered as another duty of the manager. Therefore section 6 could be amended so that the alleged victim can complain against the manager if the workplace is smaller that than what is recognized as a standard size for the workplace of such nature. In case the manager is the harasser, the complainant must be able to complain directly to the appropriate officer.

The process would be more judicious if the manager or the appropriate officer have power to make interim orders for protection of the complainant. Mediation between the parties should be promoted by Section 8 rather than settlement and such mediation should not be conducted with undue influence upon the complainant side.

The maximum punishment prescribed by Section 12 might be inadequate in some cases and ineffective as a deterrent so it should be increased to for example – one year imprisonment and Rs. 1, 00,000 fine.

Thank you very much!

Bipin Adhikari
Chairperson

Nepal Constitution Foundation

Nepal Constitution Foundation

Ladies and Gentlemen,

Ii is my pleasure to welcome you all to this fourth lecture on the Late Chief Justice Hari Prasad Pradhan Memorial Lecture Series being organized by Nepal Constitution Foundation.

This is a tradition that we have kicked off in honour of the late chief justice who had immense contribution to the development of the concept of constitutionalism and the rule of law in this country. Pradhan was a lead figure who established the domain of constitutional law in Nepal back in early 1950s. As we have another presentation here on the noted jurist, I do not want to give you further details about him at the cost of repetition.

The guest lecturer with us this time is Dr Kishore Uprety, who is a senior legal officer at the World Bank headquarters in New York. The topic of his presentation is “Conflict Management in the Context of Trans-boundary Rivers.” He will be presenting this theme in the context of a few important transboundary water disputes around the world, but with a special focus on key issues involved.

Nepal is a water rich country. It is a country of many transboundary rivers. As fresh water is a vital, yet unevenly distributed natural resource, it is going to be precious as gold in course of time. Besides life, water is necessary for proper sanitation, irrigation, commercial services, and the production of commercial goods including hydro electricity. When one recalls recent humanitarian catastrophes, such as the Rwandan genocide or war in Darfur of Sudan, it is easier to understand how important the theme is. Three of our treaties on development of hydropower signed with India is known to every educated Nepalese. All of them have become controversial as much as the best interests of the Nepalese people are concerned. But this type of conflict is not just typical of Nepal only. Water relations have always become tense around the world.

We are told there are 261 watersheds around the world that cross the political boundaries of two or more countries. These international basins cover 45.3 percent of the land surface of the earth, contain about 40 percent of the world’s population, and account for approximately 60 percent of global river flow. Disputes emerge because of opposing interests of water users, public or private, national or international. These disputes could have political, economic, environmental, or legal dimensions. Their management become complicated when water deals are finalized without complete appreciation of the political, cultural, and social aspects of water. In fact, a total of 145 nations in the world include territory within international basins. Nineteen basins are pointed out as shared by five or more riparian countries: one basin – the Danube – has seventeen riparian nations; five basins – the Congo, Niger, Nile, Rhine, and Zambezi – are shared by between nine and eleven countries; and the remaining thirteen basins – the Amazon, Ganges–Brahmaputra–Meghna, Lake Chad, Tarim, Aral Sea, Jordan, Kura–Araks, Mekong, Tigris–Euphrates, Volga, LaPlata, Neman, and Vistula (Wista) – have between five and eight riparian countries. It is natural that there are territorial disputes, a fight for resources, and strategic advantage. Even now the ongoing interstate conflicts mainly in the Middle East  like disputes stemming from the Euphrates  and Tigris Rivers and the Jordan river and Nile river-related conflicts among Egypt, Ethiopia, and Sudan in Africa or Aral Sea conflict among Kazakhstan, Uzbekistan, Turkmenistan, Tajikistan and Kyrgyzstan are unresolved.

The presentation of Dr Uprety is very timely. As an international lawyer who has worked in this area for a very long time, he has firsthand knowledge of the emerging international norms, newly achieved development, treaties, and institutions, sometime inefficient, often ineffective, and, occasionally, as a new source of tension themselves. He is also aware of tremendous creativity in some some respect, example of regional development, constructive diplomacy, and positive-sum, integrative allocations of joint gains. I hope the legal insight that he is going to give on water conflict today is a significant dedication to the memory of Late Chief Justice Hari Prasad Pradhan and the legacy that he has left for the constitutional legal system of Nepal.

I welcome you once again on behalf of Nepal Constitution Foundation.

Bipin Adhikari 

Chairperson

 This is one of the leading US Supreme Court decisions this year. The question in this case was – does the First Amendment subject state restrictions on voting by elected officials to strict scrutiny?

The answer was ‘no’.

Nevada’s Ethics in Government Law requires public officials to recuse themselves from voting on, or advocating the passage or failure of, “a matter with respect to which the independence of judgment of a reasonable person in his situation would be materially affected by,” inter alia , “[h]is commitment in a private capacity to the interests of others,” Nev. Rev. Stat. §281A.420(2) (2007), which includes a “commitment to a [specified] person,” e.g., a member of the officer’s household or the officer’s relative, §281A.420(8)(a)–(d), and “[a]ny other commitment or relationship that is substantially similar” to one enumerated in paragraphs (a)–(d), §281A.420(8)(e).

Petitioner (Commission) administers and enforces Nevada’s law. The Commission investigated respondent Carrigan, an elected local official who voted to approve a hotel/casino project proposed by a company that used Carrigan’s long-time friend and campaign manager as a paid consultant. The Commission concluded that Carrigan had a disqualifying conflict of interest under §281A.420(8)(e)’s catchall provision, and censured him for failing to abstain from voting on the project. Carrigan sought judicial review, arguing that the Nevada law violated the First Amendment . The State District Court denied the petition, but the Nevada Supreme Court reversed, holding that voting is protected speech and that §281A.420(8)(e)’s catchall definition is unconstitutionally overbroad.

Held: The Nevada Ethics in Government Law is not unconstitutionally overbroad. Pp. 3–11.

(a) That law prohibits a legislator who has a conflict both from voting on a proposal and from advocating its passage or failure. If it was constitutional to exclude Carrigan from voting, then his exclusion from advocating during a legislative session was not unconstitutional, for it was a reasonable time, place, and manner limitation. See Clark v. Community for Creative Non-Violence , 468 U. S. 288 . Pp. 3–4.

(b) “[A] ‘universal and long-established’ tradition of prohibiting certain conduct creates ‘a strong presumption’ that the prohibition is constitutional.’ ” Republican Party of Minn. v. White , 536 U. S. 765 . Here, dispositive evidence is provided by “early congressional enactments,” which offer ” ‘contemporaneous and weighty evidence of the Constitution’s meaning,’ ” Printz v. United States , 521 U. S. 898 . Within 15 years of the founding, both the House and the Senate adopted recusal rules. Federal conflict-of-interest rules applicable to judges also date back to the founding. The notion that Nevada’s recusal rules violate legislators’ First Amendment rights is also inconsistent with long-standing traditions in the States, most of which have some type of recusal law. Pp. 4–8.

(c) Restrictions on legislators’ voting are not restrictions on legislators’ protected speech. A legislator’s vote is the commitment of his apportioned share of the legislature’s power to the passage or defeat of a particular proposal. He casts his vote “as trustee for his constituents, not as a prerogative of personal power.” Raines v. Byrd , 521 U. S. 811 . Moreover, voting is not a symbolic action, and the fact that it is the product of a deeply held or highly unpopular personal belief does not transform it into First Amendment speech. Even if the mere vote itself could express depth of belief (which it cannot), this Court has rejected the notion that the First Amendment confers a right to use governmental mechanics to convey a message. See, e.g., Timmons v. Twin Cities Area New Party , 520 U. S. 351 . Doe v. Reed , 561 U. S. ___, distinguished. Pp. 8–10.

(d) The additional arguments raised in Carrigan’s brief were not decided below or raised in his brief in opposition and are thus considered waived. P. 11.

126 Nev. 28, 236 P. 3d 616, reversed and remanded.

Scalia, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined. Kennedy, J., filed a concurring opinion. Alito, J., filed an opinion concurring in part and concurring in the judgment.

(This is excerpt of welcome note delivered by Dr. Bipin Adhikari as Chairperson of Nepal Constitution Foundation in a Bill Review Programme on the Bill of Penal Offence (Determination of Sentence and Implementation) Act 2067 organized by the Foundation on June 23, 2011)

The Bill of Penal Offence (Determination of Sentence and Implementation) Act, 2067 is a new legislative initiative in Nepal. Popularly known as Sentencing Act in the local legal circle, the Bill, once passed, will have enormous impact in the way courts in Nepal determine sentences.

The sentence can generally involve a decree of imprisonment, a fine and/or other punishments against a defendant convicted of a crime. Those imprisoned for multiple crimes, will serve a consecutive sentence (in which the period of imprisonment equals the sum of all the sentences), a concurrent sentence (in which the period of imprisonment equals the length of the longest sentence), or somewhere in between, sometimes subject to a cap. Statutes often specify the range of penalties that can be imposed for various offenses, and sentencing guidelines sometimes regulate what punishment within those ranges can be imposed given a certain set of offense and offender characteristics. In some jurisdictions, prosecutors have great influence over the punishments actually handed down, by virtue of their discretion to decide what offenses to charge the offender with and what facts they will seek to prove or to ask the defendant to stipulate to in a plea agreement.

There is rich history of sentencing practices in common law. All such relevant practices have now been consolidated in the Powers of Criminal Courts (Sentencing) Act 2000. This Act enables the court to make an initial assessment of the seriousness of the offence. If the defendant pleaded guilty, the prosecutor will outline the facts of the case to the court. If the defendant contested the charge, i.e., pleaded not guilty, then the magistrates or judge would have noted the facts during the trial. When imposing a community sentence or custodial sentence: The court must take into account all such information about the circumstances of the offence(s) including any aggravating or mitigating factors as is available to it: Sections 36 and 87(4). If the offence was racially aggravated, the court shall treat that fact as an aggravating factor (that is to say, a factor that increases the seriousness of the offence): S 153.

The issue of sentencing has been talked about in Nepal frequently. There were attempts in the past to draft Nepal Penal Code 2012, Criminal Code of 2030, Criminal Procedure Code 2034, Penal Code and Penal Procedure Code 2058/2059 as well. None of these efforts materialized. For one or the other reason the efforts made in drafting these documents were ignored. Leaving this history behind, the government in 2008 commissioned a new taskforce in the convenorship of Hon’ble Justice Kalyan Shrestha to work on fresh drafts on Penal Code 2067, Penal Procedure Code 2067 and the present Penal Offence (Determination of Sentence and Implementation) Act 2067. They dealt with interrelated themes, and captured a big part of the criminal justice system of Nepal.

These drafts were accomplished as planned, trying to contribute to each other’s themes, and submitted to the government. We must appreciate the fact that these drafts were presented to the legislature in the form of bills without delay. These Bills are certainly not going to be aborted the way their predecessors got aborted.

We are assembled here today to review the Bill of Sentencing Act, and not all these interrelated Bills, which is a gigantic task. This Bill is comparatively smaller and can be taken up in one session like this. I request you to examine the Bill in terms of its legal contents, coherence with the criminal justice system of the country and compliance with best international practices. The idea is to look at this legislation also in the perspective of gender, youths, women, Janjati, Dalit, Madhesi and other marginalized people. Whatever inputs we receive today, we will take it to the parliament, and try to persuade the members to consider them before finalizing the bill at the committee level, and sending it to the full house for remaining legislative process.

The jurisprudence of sentencing is definitely an important area of criminal justice system in Nepal. I am not a criminal lawyer. But I can state the obvious here that Nepal had not been able to look into this jurisprudence in the past with necessary focus that it deserves. The only provision of some jurisprudential significance in this regard in the legal system of Nepal at present is the Section 188 of Muluki Ain – the National Code Chapter on Court Procedures. This provision has conferred to the sitting judge a wide discretion in mitigating punishment due under law. This provision provides that if the judge after completing hearing feels that imprisonment for life for the accused is harsh in the given situation and that the circumstances of the case require some mitigation, s/he may reduce the amount of punishment as necessary as s/he thinks fit and refer the case to higher court for final approval.

We appreciate the fact that this is the first Bill in Nepal that uses the words like probation officer, parole board or social worker in the criminal justice system of the country. They herald the beginning of a new concept in the criminal justice system in the country. The Bill in Section 9 provides for separate sentencing hearing as part of every trial which exceeds a term of 3 years imprisonment or Rs 30,000 fine. This is also a point of departure from existing traditions. Section 8(2) states that sentencing procedure must be completed within thirty days since the guilty verdict.

Section 10 provides that except for the trials which are lawfully to be closed from public view, all the other trials must be conducted in public view. If several crimes with different punishment have been committed, the crime with maximum punishment must be considered for the purpose of carrying out the sentence, though separate sentence must be given for each crime (S. 11). Section 12 gives the court the discretion to order a report on the convict’s background, circumstances during the time of the crime, behaviour prior to the crime, age and other facts from the probation officer or social worker when the punishment exceeds 3 years imprisonment or Rs. 30,000 fine. Section 13 lays down the factors that the court must consider while determining the purpose of the sentence – discouraging others, protecting the society, justice to the victims, rehabilitation of the convict into the society and upholding the law.

Section 14 provides that prior to sentencing the court must consider – the sentence must be in proportion to the seriousness of the crime, previous sentences where the circumstances were similar to the case at hand etc. Serious offenders are to be given imprisonment, sentences involving children must consider their rehabilitation, repeated offenders are to be punished twofold etc.

Section 17 prescribes that the sentence passed by the court must reiterate – the reason for the sentence, deadline or other conditions regarding the payment of the fine, conditions regarding community service, conditions regarding reformation/rehabilitation centre, period of imprisonment, conditions for parole, suspension, compensation required and any other thing the court deems fit. While determining the amount of fine, proper regard must be given to the economic status of the convict and various other factors according to Section 18. The amount of fine must not adversely affect the compensation to be paid to the victim. Community service must be considered when the period of imprisonment does not exceed 6 months and if the court deems it unfit to place the convict in prison.

According to section 23, unless otherwise mentioned in the Act, imprisonment is to be given only when alternatives like fine and community service are considered inadequate. Suspension of sentence is possible under Section 24 except for serious offences like murder, rape, human trafficking, wildlife smuggling etc. Likewise the convict may be sent to reformation centre (S. 25) or rehabilitation centre (S. 26). Parole can be granted to prisoner who has completed two third of the sentence with good behavior except the recipient of life imprisonment, imprisonment on charges of corruption, rape, human trafficking (s. 29). Section 38 provides for the creation of a probation/parole board governing the recommendations, procedures and conditions regarding probation or parole. Section 46 provides for a Sentencing Advisory Committee to – develop standards of sentencing, recommending reforms of penal laws or policies, giving advice regarding punishing special kinds of offences and collecting data on convicts. Section 48 provides for a Victim Relief/Compensation trust. The government is empowered to make necessary directives in implementing this act or the rules made hereunder.

I am conscious not to make comments that I am not capable to make before this expert gathering. However, I must state the obvious that it has been suggested that Section 13 should prioritize the reformative aspect of sentencing and differentiate it from sentencing of criminals with little chances of reformation where the preventive aspect must be emphasized. Section 16(2) of this Act which provides that minor cannot be imprisoned except for serious or repeated offences, contradicts Section 44 of the new Penal Code which provides other standards for punishment to minors. The biggest criticism of this Act is that it prescribes alternatives for imprisonment like rehabilitation, reformation, suspension, and parole on limited kinds of offences which have considerably less prison terms of less than 3 years. So the provisions do not give the chance of reformation to convicts of more serious offences.

Regarding the increased penal sanctions on repeated offenders or public officials, the provision intends to supplant the criminal code which must lay down such conditions instead. No place has been given to the victim/complainant side regarding the sentencing process. Section 188 of Part 1 of the Muluki Ain which prescribes the conditions for reduction of sentence regarding life imprisonment based on several factors in the discretion of the judge, is a special provision in the Nepalese criminal law. In this regard currently Section 186 prescribes reference requirement to the appellate court for cases involving life imprisonment. If guidelines can be provided in the existing law, then principles of this Sentencing Act can be incorporated in the existing model. Similarly if victims are to be compensated by the guilty party, then law should provide for cases where the accused are not found.

Individualization of punishment whereby punishment depends more upon the convict rather than the crime committed, is the concept this Bill has not grasped. However, the positive aspects of the Bill do need to be appreciated.

I welcome you once again to this roundtable and encourage all assembled in this room to take part in this Bill Review Programme. We have Professor Rajit Bhakta Pradhananga with us today, who has kindly agreed to make a presentation on the Penal Offence (Determination of Sentence and Implementation) Bill 2067. The floor will be open for discussion after his presentation. Your inputs on his presentation or the bill under discussion will be highly appreciated by the concerned sector.

Thank you very much!

Bipin Adhikari
Chairperson

Nepal Constitution Foundation

Boumediene v. Bush, 553 U.S. 723 (2008), was a writ of habeas corpus submission made in a civilian court of the United States on behalf of Lakhdar Boumediene, a naturalized citizen of Bosnia and Herzegovina, held in military detention by the United States at the Guantanamo Bay detention camps in Cuba. Guantanamo Bay is not formally part of the United States, and under the terms of the 1903 lease between the United States and Cuba, Cuba retained ultimate sovereignty over the territory, while the United States exercises complete jurisdiction and control. The case was consolidated with habeas petition Al Odah v. United States and challenged the legality of Boumediene’s detention at the United States Naval Station military base in Guantanamo Bay, Cuba as well as the constitutionality of the Military Commissions Act (MCA) of 2006. Oral arguments on the combined case were heard by the Supreme Court on December 5, 2007.

On June 12, 2008, Justice Kennedy delivered the opinion for the 5-4 majority holding that the prisoners had a right to the habeas corpus under the United States Constitution and that the MCA was an unconstitutional suspension of that right. The Court applied the Insular Cases, by the fact that the United States, by virtue of its complete jurisdiction and control, maintains “de facto” sovereignty over this territory, while Cuba retained ultimate sovereignty over the territory, to hold that the aliens detained as enemy combatants on that territory were entitled to the writ of habeas corpus protected in Article I, Section 9 of the U.S. Constitution. The lower court expressly indicated that no constitutional rights (not merely the right to habeas) extend to the Guantanamo detainees rejecting petitioners’ arguments. This Court’s case precedent recognized that fundamental rights afforded by the Constitution extend to Guantanamo. Along with Rasul v. Bush, Hamdi v. Rumsfeld, and Hamdan v. Rumsfeld, this is a major case in the Court’s controversial detainee jurisprudence.
Justice Kennedy’s majority decision.

The majority found that the constitutionally guaranteed right of habeas corpus review applies to persons held in Guantanamo and to persons designated as enemy combatants on that territory. If Congress intends to suspend the right, an adequate substitute must offer the prisoner a meaningful opportunity to demonstrate he is held pursuant to an erroneous application or interpretation of relevant law, and the reviewing decision-making must have some ability to correct errors, to assess the sufficiency of the government’s evidence, and to consider relevant exculpating evidence. The court found that the petitioners had met their burden of establishing that Detainee Treatment Act of 2005 failed to provide an adequate substitute for habeas corpus.

Kennedy’s majority opinion begins with an over-twenty page review of the history of habeas corpus in England from its roots in the due process clause of Magna Carta of 1215 to the nineteenth century. Next, the opinion surveys American historical jurisprudence on the writ from 1789 until shortly after World War II, concentrating on the application of habeas corpus to aliens and territories outside of the borders of the United States that still fall under United States control, comparing these areas to the Channel Islands, where the writ did apply. While noting that habeas corpus did not apply in Scotland, a country under the control of the English crown (as the same monarch held the crown of Scotland), the Court distinguished that fact by stating that Scotland kept its unique system of laws even after union with England in 1707. The Court turned to Ireland for a more amenable historical example, pointing out that while it was nominally a sovereign country in the eighteenth century, English habeas corpus review did apply there since Ireland was under de facto English control and shared the English legal system.

The majority opinion rejected the government’s argument comparing the habeas corpus restriction under the MCA to those affected by the Antiterrorism and Effective Death Penalty Act of 1996, which were ruled constitutional after a suspension clause challenge. The Court explained the restrictions of AEDPA on habeas review were not a complete suspension on habeas corpus, but simply procedural limitations, such as limiting the number of successive habeas petitions a prisoner can file, or mandating a one-year time limit for the filing of federal habeas review that begins when the prisoner’s judgment and sentence become final.

The main distinction between the MCA and AEDPA, the Court went on to explain, was that AEDPA applies in practice to those prisoners serving a sentence after having been tried in open court and whose sentences have been upheld on direct appeal, whereas the MCA suspends the application of the writ to those detainees whose guilt has not yet been legally determined. In other words, the comparison to AEDPA was found by the majority to be misplaced in that AEDPA’s limitations on habeas review stemmed from cases that had already been to trial, whereas the cases involving MCA had not been to trial and therefore habeas review would have been appropriate.

The Court also concluded that the detainees are not required to exhaust review procedures in the court of appeals before pursuing habeas corpus actions in the district court. The majority distinguished between de jure and de facto sovereignty, finding that the United States had in effect de facto sovereignty over Guantanamo. Distinguishing Guantanamo base from historical precedents, this conclusion allowed the court to conclude that Constitutional protections of habeas corpus run to that to U.S. Military base at Guantanamo Bay, Cuba.

In the majority ruling, Justice Kennedy called section 7 “not adequate”. He explained, “to hold that the political branches may switch the constitution on or off at will would lead to a regime in which they, not this court, ‘say what the law is’.” The decision struck down section 7 of the MCA, but left intact the remainder of the MCA and the Detainee Treatment Act. In a concurring opinion, Justice Souter stressed the fact that the prisoners involved have been imprisoned for as many as six years. Chief Justice Roberts and Justice Scalia each wrote opinions for the four dissenters.

Justice Souter’s concurrence
Justice Souter’s concurrence was joined by Justices Ginsburg and Breyer. According to Justice Souter, “subsequent legislation eliminated the statutory habeas jurisdiction” over the claims brought by Guantanamo Bay detainees, “so that now there must be constitutionally based jurisdiction or none at all.” Citing the Supreme Court’s decision in Rasul v. Bush, he added that the “”[a]pplication of the habeas statute to persons detained at [Guantanamo] is consistent with the historical reach of the writ of habeas corpus.” Justice Souter pointed to the lengthy imprisonments, some of which have exceeded six years, as “a factor insufficiently appreciated by the dissents.” He thus denied the charge of the dissenters that the Court’s majority “is precipitating the judiciary into reviewing claims that the military (subject to appeal to the Court of Appeals for the District of Columbia Circuit) could handle within some reasonable period of time.”

Justice Scalia’s dissent
Justice Scalia’s dissent was joined by Chief Justice Roberts and Justices Alito and Thomas. Justice Scalia argued that “the procedures prescribed by Congress in the Detainee Treatment Act provide the essential protections that habeas corpus guarantees; there has thus been no suspension of the writ, and no basis exists for judicial intervention beyond what the Act allows.” The commission of terrorist acts by former prisoners at Guantanamo Bay after their release “illustrates the incredible difficulty of assessing who is and who is not an enemy combatant in a foreign theater of operations where the environment does not lend itself to rigorous evidence collection.” A consequence of the Court’s majority decision will be that “how to handle enemy prisoners in this war will ultimately lie with the branch [the judiciary] that knows least about the national security concerns that the subject entails.” A conflict between the Military Commissions Act and the Suspension Clause “arises only if the Suspension Clause preserves the privilege of the writ for aliens held by the United States military as enemy combatants at the base in Guantanamo Bay, located within the sovereign territory of Cuba.”

Justice Scalia added that the Court’s majority “admits that it cannot determine whether the writ historically extended to aliens held abroad, and it concedes (necessarily) that Guantanamo Bay lies outside the sovereign territory of the United States.” Justice Scalia pointed out that Johnson v. Eisentrager (where the Supreme Court decided that U.S. courts had no jurisdiction over German war criminals held in a U.S.-administered German prison) “thus held—held beyond any doubt—that the Constitution does not ensure habeas for aliens held by the United States in areas over which our Government is not sovereign.”

According to Justice Scalia, the Court’s majority’s “analysis produces a crazy result: Whereas those convicted and sentenced to death for war crimes are without judicial remedy, all enemy combatants detained during a war, at least insofar as they are confined in an area away from the battlefield over which the United States exercises ‘absolute and indefinite’ control, may seek a writ of habeas corpus in federal court.” Justice Scalia added that the Constitution allows suspension of the writ of habeas corpus only in cases of rebellion or invasion, both domestic disturbances; he asked “[i]f the extraterritorial scope of habeas turned on flexible, ‘functional’ considerations, as the [Court’s majority] holds, why would the Constitution limit its suspension almost entirely to instances of domestic crisis?”

Chief Justice Roberts’ dissent
Chief Justice Roberts’ dissent focused on whether the process afforded the Guantanamo detainees in the Detainee Treatment Act were an adequate substitute for the Habeas protections the Constitution guaranteed. By arguing in the affirmative, he implied that the issue of whether the detainees had any Suspension Clause rights was moot (since, if they did, he found that those rights were not violated anyway). This line of reasoning was arguably more in line with the plain reading of Johnson v. Eisentrager (which denied German prisoners of war Habeas rights primarily due to both practical logistical concerns and the determination that they had been afforded an adequate substitute: traditional military war crimes trials, which complied with the Geneva Conventions) than that of Justice Scalia, and also avoided the more controversial and complicated issue of whether the detainees were entitled to file Habeas petitions in the first place.

Amicus briefs
The Supreme Court received over two dozen briefs of amicus curiae on the case, including some written strictly on the history and application of Habeas Corpus in England, Scotland, Hanover, Ireland, Canada, British-controlled territories, India, and the United States. Twenty-two amicus briefs were filed in support of the petitioners, Boumediene and Al Odah, and four were filed in support of the respondents, the Bush Administration.

Reception of the ruling
Conservative commentator Ellis Washington has criticized the ruling, asserting that it “wantonly overruled the will of the people and Congress to suspend the habeas corpus rights of this dangerous and irredeemable class of criminal defendants”.

Liberal legal theorist Ronald Dworkin disagreed with conservative criticism and praised the Court’s decision, advocating that it was “a great victory”.

Aftermath
On November 20, 2008, five Guantánamo detainees, including Boumediene, were ordered freed by Judge Richard J. Leon of Federal District Court in Washington. The Court ordered the continued detention of a sixth, Belkacem Bensayah. The Court ruled: “To allow enemy combatancy to rest on so thin a reed would be inconsistent with this court’s obligation; the court must and will grant their petitions and order their release. This is a unique case. Few if any others will be factually like it. Nobody should be lulled into a false sense that all of the … cases will look like this one.”

On October 28, 2009, President Obama signed into law the Military Commissions Act of 2009, which amended the Military Commissions Act of 2006 and provided new rules for the handling of commission trials and commission defendants’ rights.

Release to France
On May 15, 2009, Boumediene was transferred to France, where he has relatives. His wife and children moved from Bosnia to Algeria, following his arrest, but would join him in France.