Category: Notes

नेपाल प्रति कटिवद्ध एउटा सामान्य नागरिकका रुपमा आउँदो आर्थिक वर्ष २०७५/७६ को बजेटका सम्बन्धमा नेपालको अर्थ व्यवस्थाका केहि सामान्य सरोकारहरू निम्न बमोजिम अनुरोध गर्दछु:

कृषि, पशुपालन र पर्यटन क्षेत्रलाई पहिलो रास्ट्रीय प्राथमिकताका रुपमा स्थापना गर्ने

१.नेपालको श्रम बजारको अधिकांश जनशक्तिलाई स्थानीय रुपमा स्थानीय क्षेत्रमै काममा लगाउन वा रोजगार प्रदान गर्न कृषि, पशुपालन एवम् पर्यटन क्षेत्रको विकास बाहेक अर्को कुनै विकल्प छैन । यस क्षेत्रमा सम्भावनाहरु देखापर्ने वितिक्कै विकासका अन्य आधार एवं प्रक्रियाहरु क्रमश: खुल्दै जाने हुन्छ । मुलुकमा सडक, रेलवे, एयरपोर्ट, विद्युत, आम–संञ्चार इत्यादि भौतिक पुर्वाधारको क्षेत्रमा निरन्तर लगानी आवश्यक छ । तर पूर्वाधारको लगानीले प्रशस्त खर्च गराएपनि तत्कालै ठूूलो परिणाममा रोजगार नदिन सक्छ । तर कृषि, पशुपालन र पर्यटन क्षेत्रमा त्यस्ता ठूला पूर्वाधार क्षेत्रभन्दा चांडो, तत्काल सुधार गर्न सकिन्छ । यो क्षेत्रले बाहेक कुनै पनि क्षेत्रले तत्कालै स्थानीय नेपालीलाई रोजगारको अवसर दिन सक्दैन । स्थानीय जनतालाई आफ्नो गाउाघरमै टिकाउनका लागि पनि यो क्षेत्रको विकास जरुरी छ । गत लामो अवधि देखि सम्पूर्ण कृषि, पर्यटन तथा यसमा आश्रित क्षेत्रहरु प्रति विगतका सरकारहरुले प्रशस्त अन्याय गरेका छन् । यसतर्फ सुधार देखिनु पर्दछ । समुन्नत नेपाल निर्माणका प्रयासको प्रस्थान विन्दु कुषि, पशुपालन र पर्यटन क्षेत्र नै हो । यस क्षेत्रमा पुनर्जागरण आवश्यक छ I

२. नेपालको कृषि क्षेत्रको यथोचित विकास नहुनु पछाडिको मुख्य कारण वर्तमान अनियन्त्रित एवं अनुत्तरदायी आयात व्यवस्था हो I यहि आयातका कारण नेपाली किसानहरुले कृषिमा टिक्न सक्ने सम्भावना देखेका छैनन् I नेपालमा उत्पादन हुने वा हुनसक्ने वा वैकल्पिक सम्भावना भएका सबै प्रकारका कृषिजन्य आयातहरु बन्द गरिनु पर्दछ I नेपालि युवा किसानहरुलाई वैदेशिक श्रम बाट कृषितर्फा फर्काउनु अहिलेको ठुलो चुनौती हो I

राष्ट्रिय वृक्षारोपण तथा वन पैदावार विकास प्राधिकरणको स्थापना गर्ने

३. संघीयकरणको वर्तमान सन्दर्भ एवं व्यापक रुपमा हुन गइरहेको राष्ट्रिय एवम अन्तर्राष्ट्रिय लगानीको परिप्रेक्षमा नेपालको संविधान, २०७२ ले कायम गरेको संघीयताको मूल्यमान्यता बमोजिम पर्यावरण सन्तुलन समेतका उद्येश्यले राष्ट्रिय रुपमा बृक्षारोपणलाई पर्याप्त महत्व दिदै वन क्षेत्रका केही महत्वपूर्ण विषयहरुमा जिम्मेवारी बहन गर्न एउटा राष्ट्रिय निकायको अविलम्ब व्यवस्था गर्नुपर्ने अवस्था छ ।

४. बढ्दो वन विनाश समग्र नेपालको एउटा समस्या हो । नेपाल सरकारले विविध कारणले नेपालको भूभागको कम्तिमा ४० प्रतिशत भुभागमा वन–जंगल कायम राख्ने नीतिको घोषणा गरेको छ । वन–जंगल विनाश हुनु पछाडि दुई प्रमुख कारणहरु छन् । पहिलो कारण वन–जंगलमा आम नेपालीको निर्भरता निरन्तर कायमै छ्र । यसमा जनसंख्याको निरन्तर चाप रही रहनु अर्को कारण हो । वन क्षेत्रको अतिक्रमण तथा वन पैदावारका लागि हुने प्रतिस्पर्धा निरन्तर बढ्दै रहेको समस्या हो । वन विनाशको अर्को कारण मुलुकको पूर्वाधार विकासको आवश्यकता पूरा गर्न वन क्षेत्रको फडानी गर्दै निर्माण कम्पनीहरुलाई जग्गाजमिन उपलब्ध गराउनु पर्ने बाध्यता पनि हो । वन आवरणलाई अहिलेको वर्तमान स्तरमा कायम राखिराख्न एकातर्फ वन क्षेत्रलाई निरन्तर जोगाउनु पर्ने भएको छ भने अर्कोतर्फ विकासका लागि मासिए बमोजिमको वन क्षेत्र पुन: सिर्जना गर्न वृक्षारोपण गर्ने कार्यलाई बलियो सांगठनिक ढाँचा गन्तर्गत ल्याउनु पर्ने तथा यो कार्यमा विशिष्ट व्यवसायिक क्षमता सम्पन्न निकायका रुपमा आधुनिक मापदण्डहरुको प्रयोग गर्नु पनि त्यत्तिकै आवश्यक छ । यसका लागि एउटा नयां संघीय ऐन बनाई राष्ट्रिय वृक्षारोपण तथा वन पैदावार विकास प्राधिकरणको स्थापना जरुरी भएको छ । यस्तो प्राधिकरणले प्रदेशहरुको व्यवस्थापनमा वन जंगल विकासको बलियो आधार सिर्जना गर्न सक्छ ।

५. नेपालको कृषि, पशुपालन तथा पर्यटन क्षेत्रको दिगो विकासका लागि वनजंगल को विद्यमानता आज पनि त्यतिक्कै महत्वपुर्ण विषय हो I कतिपय नेपाली भू-क्षेत्रको वन-जंगल बाहेक अर्को प्रयोग हुन सक्दैन I त्यस्तै उच्च हिमाली क्षेत्रको पर्यटन प्रणाली त्यहाँको पर्यावरण प्रणालीको निरन्तरतामा भर पर्दछ I

उर्जा संकट समाधान

६. उर्जा संकट समाधान सम्बन्धी नेपाल सरकारको नीतिको कार्यान्वयन वा तदारुकतामा कमी आउनु हुदैन । रास्ट्रीय उर्जा सुरक्षाका लागि विद्यमान नीति पर्याप्त छ I यसलाई ओझेलमा पार्नु भएन I

७. बुढी गण्डकी जल विद्युतको निर्माण तथा सार्वजनिक यातायातलाई विद्युत प्रणालीमा रुपान्तरणको कार्यलाई तत्काल सुरु गर्नु पर्दछ ।

८. चीनतर्फ़बाट ल्याइने पेट्रोलियम पाईप् लाइन का लागि बजेट छुट्याउनु जरुरि छ I यो रास्ट्रीय सुरक्षाको विषय हो I

विद्युत नियमन आयोगको स्थापना र विकास

९.जल विद्युत क्षेत्रको लगानी प्राथमिकता भए पनि नियमनकारी संस्था कमजोर अवस्थामा रहेको सर्वविदितै छ । विद्युत उत्पादन, प्रसारण, वितरण वा व्यापारलाई सरल, नियमित, व्यवस्थित तथा पारदर्शी बनाई विद्युतको माग र आपूर्तिमा सन्तुलन कायम राख्न, विद्युत महसुल नियमन गर्न, विद्युत उपभोक्ताको हक र हित संरक्षण गर्न, विद्युतको बजारलाई प्रतिस्पर्धात्मक बनाउन तथा विद्युत सेवालाई भरपर्दो, सर्वसुलभ, गुणस्तरयुक्त तथा सुरक्षित बनाउन विद्युत नियमन आयोगको व्यवस्था गर्न वाञ्छनीय भएकोले सरकारले विद्युत नियमन आयोग ऐन पारित गराइसकेको छ । नयाा बजेटले विद्युत नियमन आयोगको सांगठनिक विकास तथा क्षमता अभिबृद्धिका लागि बलियो आर्थिक आधार दिनुपर्नेछ ।

शेयर बजार

१०. नेपाल आन्तरिक पूँजी नभएको मुलुक होइन । मुलुकभित्र छरिएर रहेको राष्ट्रिय पूँजीलाई उद्योग वाणिज्य क्षेत्रमा व्यापक रुपमा परिचालन गर्न नसकिएको भने यथार्थ हो । यस उद्येश्यकालागि शेयर बजार आजसम्म पनि सक्षम भइनसकेको परिप्रेक्षमा यसको कानुन व्यवस्थामा व्यापक सुधार गर्ने तथा नेपाल सेक्युरिटी बोर्ड (सेबोन) लाई सांगठनिक रुपमा अझ बलियो बनाउने तर्फ सरकार उद्यत हुनुपर्ने आवश्यकता छ । नेपालमा भौतिक पुर्वाधारका लागि जुन स्तरको लगानीको कुरा गरिदैछ, त्यो स्तरको लगानीको परिचालनको लागि राज्यले शेयरबजार तथा यस क्षेत्रमा संगठनहरुको पुर्वाधार एवं क्षमता अभिबृद्धिमा चाासो राख्न सक्नु पर्दछ । शेयर बजारको सुशाशन समग्र उद्योग, वाणिज्य एवं लागानीको साागठनिक क्षेत्र संग सम्वन्धित विषय हो । यसलाई प्राथमिकतामा राख्नु नेपालको नव निर्माणका लागि जरुरी छ ।

११. नेपालको शेयर बजारमा कानूनको परिधि तथा तोकिएको हदसम्म गैरनेपालीलाई समेत लगानी गर्न प्रोत्साहन गर्नका लागि कानूनी प्रावधानको खााचो छ ।

अन्तर्राष्ट्रिय लगानी कानुन

१२. नेपालमा अन्तर्राष्ट्रिय लगानीलाई प्रोत्साहन गर्न तथा “बेल्ट एण्ड रोड इनिसिएटिभ (बिआरआई) का लागी नेपाललाई गन्तव्य बनाउदै यसका लागि आवश्यक दक्ष कानूनी जनशक्ति उत्पादन गर्न अन्तर्राष्ट्रिय लगानी कानून, अन्तर्राष्ट्रिय व्यापार कानून, इन्धन तथा पुर्वाधार विकास कानून, बौद्धिक सम्पत्ति कानून तथा कर्पोरेट म्यानेजमेण्ट ल को अध्ययन–अनुसन्धान सम्वन्धमा सरकारले लगानी गर्न ढिलो भइसकेको छ । लगानीका जोखिमहरुलाई सुरक्षित गर्न तथा अन्तराष्ट्रिय लगानीलाई नेपालमा आकर्षण गर्न पनि यो विषय प्राथमिकतामा पर्नुपर्दछ ।

चीनसंग भएको सम्झौता तथा समझदारीको कार्यान्वयन

१३. मित्ररास्ट्र चीन संग भएका पुराना परियोजनाहरुको अविलम्ब क्र्यन्वायाँ एवं समापन अहिलेको प्राथमिकता हो I

१४. प्रधानमन्त्री के. पी. ओलीको सन २०१५ मा बेइजिङ भ्रमणका क्रममा नेपाल र चीनबीच भएका दशवटै सम्झौता वा समझदारीमा खुला व्यापार क्षेत्रको सम्भाव्यता अध्ययनदेखि लिएर नेपालमा तेल तथा ग्यासको अन्वेषणसम्मका विषय समावेश छन् । पारवाहन सम्झौताबाट भविष्यमा काजकिस्तान लगायत अन्य मुलुकबाट पेट्रोलियम आयात गर्दा चिनियाा भूमिको प्रयोग गर्न मार्ग प्रशस्त भएको छ । भ्रमणका बेला अन्तरदेशीय सडक तथा रेल सञ्जाल निर्माण, अरनिको राजमार्ग र स्याफ्रुवेसी–रसुवागढी राजमार्ग सञ्चालनमा ल्याउन र मर्मत सम्भार गर्न, किमाथान्का–खाादबारी–धनकुटा सडक निर्माण गर्न पनि चिनिया पक्ष सहमत भएको थियो । यी प्रत्येक विषयलाई बजेटले उल्लेख गर्नु तथा त्यसका लागि यथोचित विनियोजन गर्नु वर्तमान सरकारको प्रतिवद्धता हो । यो सोहि रुपमा बजेट मा देखिनु पर्दछ I

प्रादेशिक राजधानी

१५. अन्तत: प्रत्येक प्रदेशको लगभग केन्द्र बिन्दुमा पर्ने गरी वस्ती विकास तथा आर्थिक प्रयोजनले उचित देखिने क्षेत्रमा प्रादेशिक राजधानी सहरको योजना तथा निर्माण कार्यको शुभारम्भ अपेक्षित छ । अन्तर्राष्ट्रिय मापडण्दहरुका आधारमा यस्ता शहरहरुको ‘डिजाइन’हुनु र यसमा स्थानीय जनतालाइ लगानीको अवसर प्रदान गर्न त्यस क्षेत्रको दीर्घकालिन विकासका लागि पनि जरुरी हुनेछ । यस प्रकृयाबाट नेपाली संस्कृति, वास्तुशिल्प, कला एवं प्रादेशिकतालाई नमुनाको रुपमा स्थापित गर्नुका साथै शहरिकरणको संगठित अभ्यासलाई पनि स्थापित गर्न सकिने छ । शहर निर्माण अत्यन्त आधुनिक सोच हो । यो सोचलाई उक्त राजधानी शहरहरुको माध्यमबाट गाउँ गाउँमा पुर्‍याउन सकिन्छ ।

(डा. युवराज खतिवडालाइ उहाँ अर्थमन्त्रीमा नियुक्ति हुनुअघि फेब्रुअरी २३, २०१८ मा व्यक्तिगत रुपमा ‘बिफिंग’ गरिएको टिप्पणी)

 This initiative was established because as two independent states, we realize that the relation between Nepal and India can and should be improved.

Currently, the relation between Nepal and India is not based on equal grounds; indeed, India has tried to view Nepal as a country it has the right to exercise its influence or even a “protective” responsibility over. This attitude is on the rise with recent economic and military advances. Over and over again, India has tried to assert its muscle on Nepal, meddling in its internal affairs and controlling its politics by manipulating the socio, political and economic hold it has in the country. India has consistently tried to exercise hegemony, which the Nepali people have tirelessly resisted, but have failed again and again. This has made the ancient land desperate. This is the sole reason why no native Nepalese would think that Indian activities or intentions are above board. However, if relations between the countries are to improve, it must be changed from an oppressor-oppressed one to one based on sovereign equality and principles of justice.

As a point of departure, India needs to understand Nepal as an independent and equal country, with its own national ego and plans and priorities, not a client country. Only then can the two countries begin working towards creating a stable, peaceful, and prosperous climate for each other in the bilateral relationship. This understanding must follow with certain other actions.

• Firstly, the Nepal-India international border, which India has forced Nepal to keep open since the last sixty-five years needs to be closed so that there is not a free and unrestricted movement across the border for either Nepali or Indians. Nepal wants this country to remain a home of Nepalese people. An open border is certainly a lasting threat.

• Secondly, as soon as the international border is closed, immigration services need to be established in place so that both the neighboring countries are better able to record and limit the flow of populations across the border.

• Thirdly, all immigrant Indians working in Nepal [who do not have citizenship certificates yet, should immediately attain time-bound work permits according to the law, so that the Government of Nepal is well-aware of the number of Indians working here and create adept policies to control that number as necessary. All Indians who do not register but serve as laborers, vendors, merchants, professionals, ghost professionals in major industries and trading groups need to return to India in a given period. There should be an end to unauthorized work to the Indians in Nepal under Indian pressure. Of course, the same policy should apply to the Nepalese working in India.

• Stemming from this point, fourthly, the Government of Nepal should encourage Nepalese working abroad (you may say the Nepalese economic refugees) in countries in the Arab world, Malaysia, and Singapore, among others, to return back to the country and fill these jobs, so that the priceless labor of Nepal is rightfully utilized within its own borders. As a good neighbor, India should help to rehabilitate them in their villages in different parts of Nepal who had to escape Nepal because of lack of opportunities due to competition of Indians within their own country.

• Fifth, the Indian government should offer citizenship certificates to all Nepalese who have been working and living in India the same way that the Nepali government was forced to do for Indian immigrants and working people in Nepal during the last few decades under Indian pressure. The natives of Nepal know how even the Constitution was sidelined to allow for the easy naturalization (claiming a mostly fake theory that they were Madhesis of Nepal who were denied citizenship). This is so that the rights and responsibilities of Nepalese in India are protected, and they are granted the same sort of privileges and attention as Indians working the same jobs.

• It is never possible to build mutual trust when many of the past bilateral treaties signed between these neighboring countries benefit one at the cost of other. Co-existence and mutual benefits are simple concepts. The treaties in the area of hydropower and water resources need to be revisited, rectified and implemented as soon as possible.

• Sixth, India should not try to involve with the people who already have Nepalese citizenship as people of India. This will never help create an integrated Nepali identity.

• Seventh, the Nepalese expect India to withdraw from Kalapani in western Nepal and return all encroached lands along the Nepal India international border.

These are not any new suggestions. The Harka Gurung Report on the Internal and International Migrations in Nepal (2040/1983) is still the best document to rely on to leave Nepal for Nepalese and improve the situation here. Nepal needs to prosper, and prosper with its own peculiarities as a people in terms of their age-old demography, socio-political institutions, the Himalayan identity, religion, culture and economic potentials. What comes as new development in recent years is the sharp increase in the effort to change Nepal in unnepali way, and interference in making or unmaking government, nomination of political appointees, transfer and promotion of senior employees, and even charging somebody with corruption. Along with the sufferings as above, this all means that Nepal cannot even function within a democracy and the system of the rule of law.

Currently, India pretends that Nepal is under its security umbrella. It is unwarranted. Nepal is certainly struggling with natural disasters, increase in poverty, environmental degradation, and the challenges of law and order. But they are our problems.. Our Himals, mountains, rivers and streams have been the gift of god. We did not create them to bring rains or create flood, or other natural calamities in the downstream countries. They should not be taken as a security issue for Indian interference. Nepal is a Nepalese responsibility.

By no means should India compromise its security; indeed, India should tighten its border security, build fences, mobilize army and police, and install facilities of whatever type that befits India’s security needs along its side of the international border or anywhere in its territory. It may also do many other things to assure its citizens are protected. Nepal should not want India relaxing its security for any purpose. What it does not mean is for India to meddle in Nepal’s internal affairs through actions in the government or attempts to influence Nepal’s constitutional functionaries, or act for Nepal in Nepal’s territory under its security perception. This will never be acceptable. The educated Nepalis will continue to take it as security threat for their country.

These are some of the few first steps that the two countries can agree upon so as to improve their relations with each other.

 A victim is a person directly or indirectly affected as a result of commission of a crime. He/she may be affected either financially, socially, physically or mentally.

The modern definition of victim includes person such as prisoner, immigrant and subjects of medical experimentations along with conservative definition of victim which includes person affected by crimes such as murder, rape, dacoit and violence.

The 1973 landmark judgment delivered by the Supreme Court of the United States in Linda R.S. v. Richard D reported in 410 U.S. 614 may be mentioned here. In this case, relief for maintenance was denied in absence of such provisions. However, the Court had directed the Legislature to enact a legislation protecting the rights of victims which lead to proclamation of Victim and witness Protection Act, 1982.

In Shri Bodhisattwa Gautam v. Miss Subhra Chakraborty, which has been reported in AIR 1996 SC 922 of India, the issue was again discussed. In this case, on account of prima facie evidence as an interim relief maintenance was to be provided to the prosecutrix till the final disposal of the case.

The issue of the victim protection remains one of the paramount aspects of criminal jurisprudence which has been neglected in the past. Every victim deserves protection, cooperation, access to justice, humane treatment and compensation. The present Bill tries to respond to the situation. However, its provisions are not legally enforceable and appear more to be like a Directive Principle of State Policy in the Constitution. The following shortcomings may be pointed out:

1. Section 4 of the Draft Bill states that no court shall have right to enforce the policy under the concerned Part of the Draft Bill.

2. Sections 5 to 20 enumerate rights of victims and measures to protect them. The Draft Bill further provides victim’s right to information of the investigation. However, the Draft Bill is ambiguous whether such information is to be provided as a mandatory requirement or on demand, the mode of demanding such information and also whether the information is to be provided with or without any fee.

3. Section 11 of the Draft Bill lays down the policy of protecting victim, his family and his property from any form of coercion or duress but the Draft Bill fails to lay down the procedure to achieve its objectives.

4. The time period provided to appeal under Section 18 of the Draft Bill needs consideration as 15 days limitation period for appeal against the order/judgment of the adjudicating court is unconsciously less.

5. Section 22 states that an application may be preferred to the Appellate Court for enforcement of the rights enumerated under Part 3 of the Draft Bill, however, Section 23 conversely states that the Appellate Court shall not have right to review the decision delivered under the Draft Bill for any infringement of victim’s right.

6. The compensation for victim provided under Part 6 needs to be reconsidered.

7. Section 48 of Part 7 of the Draft Bill identifies offences when committed, the victim of such offences is entitled to compensation but the list fails to enlist communal violence and discrimination one the offences wherein a victim is entitled to compensation.

Nobody can disagree with the logic that the compensation to the victim should be determined after carefully considering various aspects such as offence committed, injury inflicted, mental agony and trauma etc suffered by the victim. The Draft Bill is silent about the procedure for compensation when the accused is unknown or absconding and at which stage the victim is entitled to protection and compensation. Some of the rights which have been laid down have already been guaranteed in the Constitution and there is no need to be redefined in present Draft Bill.The primary object of the Draft Bill ought to have been to lay down procedure and institution/committee to implement already known rights to protect and compensate the victims.

No doubt, the present Draft Bill is a comprehensive Bill defining rights of a victim after various deliberations and is amenable to further improvement. It should however be admitted that the provisions portray the objectives it aims to achieve in near future as the State in current situation is not in a position to safeguard and compensate all victims. The procedural aspect regarding protection, compensation and rehabilitation the victim such as video-conferencing, in camera proceeding, indirect confrontation of victim with the accused are absent in the draft.

 The government of Nepal has registered a Bill on National Youth Council at the Parliament Secretariat to empower the country’s youth, who make up 40.43 per cent of the country’s total population. Although the government brought National Youth Policy in 2010, it took it nearly four years to set up legal ground for the implementation of the policy. The policy had recommended setting up of the council to implement its goals. Further, he stressed that as per the National Census 2011, 10.69 million of Nepal’s 26.49 million populations is between the ages of 16 and 40, defined as youths by National Youth Policy 2010.

The council, according to the Bill, will have six main purposes — recommending long-term plan and policy about youth to the government, devising and implementing youth plan and programme, announcing the policy to mobilise youths as volunteers in development and social service, suggesting the government for the development, empowerment and mainstreaming of the youth, and determining/accessing the necessary conditions to give affiliation to organisations.

Similarly, the council will be a 23-member body chaired by Minister for Youth and Sports. Other members of the council will include seven secretaries of related ministries, five representatives of youth-related organisations, six members from among those who have special contribution to youth-related activities and four will be from youth business people, workers, peasants and sports persons. The government will appoint one vice-chairman from among council members. To implement the district-level programmes, there will be 13-member district committees.

Also, it will require 11 to 20 million rupees to set up the central office of the council and Rs 1.5 million has been earmarked towards annual expenses to run each of the 75 district youth committees, states the Bill. The council will be allowed to receive money from the government, individuals, organisations, foreign nations and international organisations.

In light of this, there have been criticisms towards the government for ignoring the National Youth Policy, 2010 while drafting the bill. This view has been echoed by youth political party-affiliated organisations. Experts have advocated for allocation of two per cent of total national budget for the Council. Moreover, the formation of National Youth Council with participation of youth from all sectors is absolutely imperative in order to empower the youth for leadership development. Lastly, there is a need for the functioning autonomy of the Youth Council in order to enable it to take certain decisions out of its own accord.

Some of the suggestions for amendment to the bill are as follows:

a)The Preamble and Section 6 of the Bill do not complement each other. There is a need to amend the Preamble to reconcile the Preamble with the provisions of the Bill, especially Section 6.

b)Experts have advocated reconsidering the definition of youth which under Section 2(h) defines as person between the age of 16 and 40. National Youth Policy, 2066 has declared youth to be a person between 16 to 40, hence, the Bill has been drafted around the declaration of National Youth Policy. It is suggested that upper limit on the age classification should be reduced as per the international standards.

c)Part 1 Section 2: Under Special Category Youths. Victims of war, differently able youths, marginalized and vulnerable youths have been put in the same category. As they are of different nature, these youths should be kept in a separate category.

d)The Bill should incorporate provisions for women participation of 50% at youth level as envisioned by the Constitution. Further, the bill needs to establish further provisions for women belonging to a special bracket. (i.e. Dalits, Marginalised, War Victims, Vulnerable Groups etc.)

e) Part 3 Section 5: The Youth Council should have a designated term and the termination of the Youth Council representatives should not be handled arbitrarily. A fixed term for Youth Council elects and representatives would provide impetus to the systematic institutionalization of the organization.

f) Part 7 Section 15: Program Co-ordinator. The National Youth Council should have the autonomy to assign a program co-ordinator rather than the ministry doing it for them.

g) Part 9: Miscellaneous. In order to create a transparent and accountable Youth Council, there should be adequate provisions to create that environment. The recommendation committee established through this section should be a lead by an independent and non-partisan person. Further, autonomy should be provided to the recommendation committee to appoint other representatives rather than the ministry.

h) There is a need to take into account the practical and logistical feasibility of setting up a District Youth Council at every district. Further, drafters should also take into account fears regarding politicization of the councils at the district level.

i)The constitution of the Council seems an organ of the government to enforce and propagate its policies but remains silent while providing any financial assistance.

j) A provision for counselling youths for providing guidance and support must be incorporated. Further, it is advocated and as far as it is feasible for the government to provide bank guarantee to banks to secure education loan which are available to students at a concessional interest and process of repaying the loan. This practice is prevalent in the developed countries.

k) There should also be provisions for legal assistance to be provided to youth either free of cost or at a concessional rate.

It was hoped that the present Bill would establish a powerful and inclusive Committee but it is disappointing to find out that the Bill has only initiated formations of many toothless council. Even then, experts have opined that the Bill will provide the base on which further improvement/amendment to the Bill may be carried out in future. Despite deficiencies in the Bill, experts have advocated against scrapping the Bill to wait for years for the Legislature to introduce another Bill, rather it is in the best interest of the state to amend it, gradually, step by step.

 Kathmandu University School of Law (KUSL) in association with German Foundation for International Legal Cooperation (IRZ) organized a week long (3rd August-7th August, 2015) interaction program on the Draft Constitution, 2015 in various parts of Kathmandu.

The program hosted Professor Matthias Hartwig, a leading constitutional expert associated with the Max Planck Institute for Comparative Public Law and International Law, Heidelburg. The programs were hosted by Dr. Bipin Adhikari, Dean of Kathmandu University School of Law (KUSL) , Mr. Dinesh Tripathi, constitutional expert and Ms. Angela Schreimic, associated with IRZ.

The interaction program saw participation from a wide range of Nepalese stakeholders including constitutional experts, political scientists, legal practitioners, parliamentarians, journalists, academicians, civil society members, activists and law students.

The modus operandi of the programs included a brief presentation from Prof. Hartwig highlighting his observations and comments on the proposed Draft Constitution of Nepal, 2015. This was followed by an open floor discussion session where the participants raised pertinent issues regarding the Draft Constitution and sought Prof. Hartwig’s feedback on contentious issues in the proposed Constitution based on his German and European experience.

In his presentation, Prof. Hartwig attempted to highlight, based on the comparative constitutional models, some of the pertinent issues enshrined in the Constitution that could be relevant for Nepal. He said that the draft constitution is full of potentials. Some of his key observations discussed among the participants have been highlighted below:

Length of the Constitution: The draft of the Constitution is very lengthy, much alike the Indian or Brazilian Constitution. This could lead to complications later when certain provisions need to be amended. Amending a Constitution is generally more complicated than ordinary legislation so this point should be taken into consideration. Also, a lengthy Constitution could give rise to more contradictions and repetitiveness. A Constitution should be precise and coherent. Furthermore, a Constitution is declaration and as such the general people should identify with it. A lengthy Constitution could be difficult for people to identify with. Also, more content in Constitution means less flexibility to the legislators. This could be construed as contrary to the principle of democracy. It could be necessary to do so in Nepalese context; however, it would be beneficial to shorten it if there aren’t any pressing needs to do so.

State Objectives: It is perhaps not necessary to lay down such exhaustive state objectives in the Constitution. Sometimes extensive state objectives could lead to the misconception that the state does not owe any other obligations rather than the ones enshrined in the Constitution. However, in changing world, this is not the case. For example, the recently prominent issues of asylum seekers and refugees have been addressed as a matter of state obligation, via the concept of Social Welfare State and Fundamental Rights principles, without its express mention in the German Constitution. In the same vein, the Nepalese Constitution could adopt less exhaustive state objectives.

Fundamental Rights: The provisions on Right to Equality and Discrimination are intrinsically linked and as such should be put together in chronological order of the Constitutional text. Also, under Freedom of Expression, there are broad possibilities in Nepalese Draft Constitution to limit this right. This should be taken into consideration because these limitations could be easily manipulated in the future. In terms of Freedom of Religion, the inclusion of the provisions on right to conversion could be further discussed.

Constitutional Court: Once the establishment of Constitutional Court has been agreed, it could be given more competencies. Also, it is astonishing to see the provisions for the abolition of the Constitutional Court after 10 years. This could perhaps be removed.

Citizenship: It is in line with German and International practice to grant citizenship from both the father’s and mother’s side. In modern globalization, the concept of dual nationality is also unavoidable. In Europe and Germany, it has become quite common for citizens to hold multiple citizenships in recent times. In light of this, Nepal could rethink its position on citizenship issues.

Federalism: Federalism is a hotly debated topic in Nepal. First, we need to be aware of what the idea of federalism is? First is the idea of decentralization of powers between different administrative units. Second is the idea of character identities of the citizens. Third is the idea of delineation of states. All these factors have to be carefully assessed prior to establishing federal states. It is indeed a very tricky concept. Issues ranging from jurisdictional disputes to financial transfers may appear in the process. Also, a clear framework to implement the separation of powers between the legislative, executive and the judiciary needs to be ascertained. Also, the concept of who controls the money is also very important in Federalism, i.e. the provinces or the Centre. This needs to be discussed.

 In the last two decades, Non- Governmental Organizations have gained strength and prominence in Nepal. The sheer number of Non- Governmental Organizations (NGOs) has rapidly increased due to the emergence of a more favorable environment following the dawn of multi-party democracy in 1990. However, the broad concept of civil society and non-governmental organization is not yet well understood by most Nepalese, including civil society members themselves.

Nepal’s commitment to human rights is well reflected in an interim constitution and other policy documents and international treaties that repeatedly affirm the intention to provide Nepali people an open and free environment to enjoy their rights, including the freedoms of assembly, association, information and expression. At the same time, however, NGOs working in different spheres often criticize the existing legal framework for carrying forward the controlling legacy from the previous royal regime. Moreover, NGOs still suspect that the government is trying to restrict NGO space in one way or another. The statements and remarks of government officials and political leaders often lend credence to such suspicions.

Constitutional Framework

The Interim Constitution of Nepal came into force on January 15, 2007. Relevant constitutional provisions include the following:

• Articles 12, 13, 16, 24, 25, 26, 29 and 31, which relate to various individual freedoms, including civil rights (right to life, dignity, equality and freedom, etc.) and political rights (rights to association, expression and exchange of ideas, participation in the state system, etc.)

• Articles 12, 15, 27 and 28, which outline economic rights (rights relating to opportunity for proper employment, freedom from hunger, right to select one’s own occupation, etc.)

• Articles 12, 13, 18, 19 and 30, which guarantee social rights (rights to education, health and safety, medical facilities, maternal and infant health care, safety and security of children, etc.)

• Article 23, which guarantees cultural rights (right to participate in religious cultural and traditional practices without hurting the sentiment and dignity of others.

Part 3, Article 12 of the Interim Constitution of Nepal specifically guarantees a set of freedoms for an enabling environment for civil society, including:

• Freedom of opinion and expression;

• Freedom to assemble peacefully and without arms;

• Freedom to form political parties;

• Freedom to form unions and associations;

• Freedom to move and reside in any part of Nepal; and

• Freedom to practice any profession, carry on any occupation, industry, or trade.

Part 4 of the Interim Constitution obliges the State “[t]o implement international treaties and agreements effectively, to which the State is a party.” Part 4, Section 34 outlines “Directive Principles of the State” as follows:

•(1) It shall be the chief objective of the State to promote conditions of welfare on the basis of the principles of an open society, by establishing a just system in all aspects of national life, including social, economic, and political life, while at the same time protecting the lives, property, equality and liberty of the people. •(2) It shall be the objective of the State to maintain conditions suitable to the enjoyment of the benefits of democracy through maximum participation of the people in the governance of the country by means of self-governance tribal, linguistic, cultural or regional, and to promote the general welfare by making provisions for the protection and promotion of human rights, by maintaining tranquility and order in the society.

Part 4, Section 35 of the Interim Constitution under “State Policies” suggests the need to enact a legal framework that facilitates NGOs: “The State shall pursue a special policy to regulate the operation and management of public and non-governmental organizations established in the country.”

The Interim Constitution envisages popular participation in governance and democratic exercise. Part 17, Section 139 of the Interim Constitution includes the “Provision for Local Self Governance,” which states: Arrangements shall be made to setup local self governance bodies to ensure the people’s exercise of their sovereignty by creating a congenial atmosphere and thereby ensuring maximum people’s participation in the country’s governance, and also by providing services to the people at the local level and for the institutional development of democracy, based on the principle of decentralization and devolution of power.

The ongoing constitution making process in the Constitution Assembly since May 2008 is working to draft the constitution in line with the interim constitution, comprehensive peace accord signed in November 2006 and peoples aspirations reflected through inputs and suggestions directly collected by CA members in 2009/10. The thematic reports made public by the different 11 subject committees under the CA have also given enough and independent room for CSOs as a development actor in new Nepal.

National Laws and Regulations Affecting Sector Relevant national-level laws and regulations affecting civil society include:

• The National Directorate Act (1961) (Rastriya Nirdeshan Ain 2018) aims to ensure that professional organizations and groups use their strength for their development, as well as nation building, with pre-approval and consent from the government. CSOs registered under this Act include the Nepal Bar Association, Nepal Press Council, Teachers Union of Nepal, Nepal Federation of Journalist Associations and the NGO Federation of Nepal. Unless formed by the government itself, any group wishing to register under this Act must apply and receive approval from the Cabinet through the relevant line ministry or based on law. For instance, the formation of a single Teachers Union was envisioned in the Education Act. • The Association Registration Act (1977) is the primary framework law for CSOs in Nepal. Registration under the Association Registration Act is required for an organization to function legally. Under the Act, an “association” means an association, institution, club, circle, council, study centre etc. established for the purpose of developing and extending social, religious, literary, cultural, scientific, educational, intellectual, philosophical, physical, economical, vocational and philanthropic activities, and also includes friendship associations.

• The Social Welfare Act (1992) governs the provision of “social welfare” activity and “social service” activity. To receive foreign funding and implement programs with foreign support, local CSOs must receive advance approval from the Social Welfare Council (SWC.

• The Local Self-Governance Act (1999) encourages local government engagement with CSOs in development work. The Act envisions that local governments will facilitate NGOs in the identification, formulation, approval, operation, supervision, and evaluation of the development program. The Act also encourages the private sector to participate in local self-governance to provide basic services for sustainable development.

• The Company Act (2006) (paragraph 19, articles 166 and 167) provides the legal basis to register not-for-profit business organizations and consultancy companies. Registration requires at least five citizens coming together to promote any profession, business, intellectual, educational, social, charity or welfare activities, with a non-profit intent.

On the other hand, there is a lot of misconception regarding the role of the NGOs in Nepalese society. Media, in recent times, have described NGOs/ INGOs as dollar farming agencies. They portray them negatively. However, this is not the reality, as INGOs and NGOs have been making a lot of difference in the rural parts of Nepal, providing the poor and marginalized people with basic services like health, drinking water, sanitation, energy, disaster training, agriculture, environment, education, and livelihood programs. In light of this, the present NGO (Organization) Bill, 2070 aims to regulate the NGOs and provides adequate functioning guidelines.

The present NGO Bill aims to repeal the following statutes: National Guidance Act, 2018 and Association Registration Act, 2034. There are two objective of the Bill: i) the Bill is drafted to institutionalize, regulate, organize all NGOs engaged in social development and nation building fields and ii) to make these NGOs transparent, accountable and responsible management. Moreover, provisions of the Bill are positive. However, the Bill is highly regulative in terms of conducting day to day administrative work which will have a discouraging effect in the NGO sector. There is widespread belief that the NGO sector is unorganized and some are even involved in duping donors with various forms of corruption however; the provisions of the Bill fails to make the NGO sector accountable, responsible and transparent as reflected in its preamble. Giving Chief District Officer (CDO) the jurisdiction to regulate and enforce the provisions of the law is logistically unviable as they are already overburdened with various responsibilities. Meanwhile, the United Nations Office of the High Commissioner for Human Rights (OHCHR) had also expressed concerns over the government’s intention to introduce the Code of Conduct for NGOs under the amended Social Welfare Act saying it could be used to undermine the independence of the NGOs.

It is necessary to bring to attention that even though the registration and renewal of the NGOs as per law was to be done at the District Administration Office, however, the responsibilities of doing so was discharged by Social Welfare Council (SWC). Thus, experts have advocated strengthening and empowering SWC instead of CDO as SWC has the resources, experience and was formed for handling matters governing NGOs. The present Bill does not mention anything about SWC eradicating it in the process. Also, it has been criticized that the Government neither has the resources nor the capacity to effectively implement the provisions of the Bill. The SWC should be established as “One Door Channel” to manage all matters concerning NGOs.

Further, Section 2 sub-sections (d), (e) and (f) of the Bill provides definition of Organization, Society and Trust. The definition provided for the trust also includes the trust set up for individual. To bring private trust under the purview of the Bill will negatively affect the working and functioning of the private trusts. Also, the Bill should accommodate the working calendar of NGOs. Submitting report as per the NGOs calendar will aid in the process otherwise conducting auditing mid-year serves no useful and meaningful purpose. Further, experts have opined that conducting Bi-annual and a final annual financial audit reports under Section 10 of the Bill merely burdens NGOs in terms of finance, time and resources. Moreover, the provision wherein obtaining recommendation from CDO is a prerequisite document for registration of a NGO has been highly criticized. First and foremost, CDO is not in a position to analyze and issue recommendations to all the NGOs. Such recommendations must be issued by concerned departments. Furthermore, experts have criticized the Bill for not having a provision for appeal against non-issuance or refusal to issue recommendation letter.

Section 11 of the Bill stipulates that no more than 25% of the donation money can be allocated for administrative purposes and with adherence to inclusive policy while recruiting the staffs. However, inviting application for recruitment via publication of advertisement in a national daily is putting huge financial burden on small NGOs. Smaller NGOs do not have finance to publish such advertisement as a normal advertisement costs more than rupees forty thousand which, for most small organizations, might be their annual budget.

In addition, setting up various strata to obtain recommendations for registration will dissuade people from running genuine NGO with social and development.

Section 12 of the Bill stated that submitting tri-annual progress report to the concerned department, whom many believe does not have the capacity to read one annual report, and mandatory signing of Memorandum of Understanding with concerned local body is putting unnecessary burden on NGOs working on smaller scale and on a tight budget. Section 19 read with Section 9 of the Bill undermines the autonomy of the NGOs as the concerned Government body has the power to issue directions in administrative process.

Experts also expressed grave concern as the present Bill sets to destroy the NGO movement. The level of restriction and approvals required to run a NGO prevents an Individual from doing so. Instead, NGO will be turned into a quasi governmental body. The present Bill is maliciously drafted to put rein on NGO sector for questioning the government and the Constituent Assembly for its inability to promulgate a much awaited Constitution. The Bill, which is of a national importance, is being introduced into the Constituent Assembly without holding discussions with various stakeholders at grass-root level.

Also, the general categorization of NGOs is absurd and classification based on area/nature of operation should be done and necessary rules and regulation to govern them must be contemplated. In addition, level of control and restriction the Bill seeks to impose on NGOs would have been justified if the NGO was funded by the Government. But the government neither funds nor assists NGOs in their operation. ‘Policy contestation’ is one of the important function of NGOs. It is NGOs responsibility to contest implementation government policy regarding its correctness.

In addition, the Bill gives the illusion of conducive working environment for NGOs but in reality it imposes high control and restraints on NGOs. NGOs have been providing assistance to people where government has failed to deliver. The political parties which considered NGOs as intrusive bodies have changed their mind and view NGOs as an extended arm of the state. The political parties are considering opening NGOs to assist party achieving their goals and objectives.

 
It gives me pleasure to introduce you [the first year law students] with Professor Doron Teichman of the Hebrew University Faculty of Law who has kindly agreed to be here to give a presentation to you on The Oxford Handbook on Behavioural Economics and Law (Oxford, 2014) – a new book that he jointly edited with Eyal Zamir.

Professor Teichman is a SJD of Michigan University and has strong interest in economic analysis of law. The new book that he has co-edited, and has twenty-nine chapters from different authors in this area, brings together leading scholars of law, psychology, and economics. The idea is to provide an up-to-date analysis of the theme of behavioural economics and law in the modern context. The book concentrates on both the strengths and limitations of the theme as well as a forecast of its future development.

Law and economics are often overlapping when explaining whether legal systems are economically efficient or need to be modified or improved. Microeconomics, more specifically, provides insight into the analysis of contemporary legal problems, political economy, constitutional economics, and political science. While different schools of thought may analyze the same issues and cases as does “law and economics,” often, they originate from vastly different perspectives. Behavioral economics and finance study how individuals’ and institutions’ economic decisions are influenced by other factors that can, for example, be psychological, social, or emotional. It also studies how these changes in behavior effect components of the market, like prices, returns, and the allocation of resources, which is a fundamental issue in the study of economics. As is implied, behavioral economics examines how rationality plays into the decisions individuals’ and institutions’ make and the causes behind those decisions. Behavioral economics integrates components of other sciences, such as psychology, neuroscience, and microeconomic theory, making this field of study very diverse in its approach.

Behavioral economics has had an increased influence on US scholarly papers, thanks to its three fundamental themes: heuristics, which states that people do not always use logic but approximate rules of thumb to make their decisions, framing, or how a people’s biases can influence how they interpret and respond to events, and lastly, market inefficiencies, like mis-pricings and irrational decision making. The Oxford Handbook on Behavioural Economics and Law provides an insightful introduction to and criticisms of the influence of behavioral economics on legal theory. Furthermore, it also discusses how extant law has co-opted various specific aspects of behavioral phenomena in legal policymaking. Lastly, the book analyses how behavioral economics has influenced specific areas of the legal sphere, like contracts, property, taxation, and antitrust policy.

The “law and economics” movement in jurisprudence is an important stream of thought in the application of economic theory (specifically microeconomic theory) in the analysis of law. Economic concepts are used to explain the effects of laws. They are used to assess which legal rules are economically efficient, and as such needs to be promulgated. This brings in the application of microeconomic analysis to contemporary legal problems. Economic analysis is also relevant in political economy, constitutional economics and political science. Approaches to the same issues from Marxist and critical theory/Frankfurt School perspectives usually do not identify themselves as “law and economics”. For example, research by members of the critical legal studies movement and the sociology of law considers many of the same fundamental issues as does work labeled “law and economics,” though from a vastly different perspective.

Behavioral economics and the related field, behavioral finance, study the effects of psychological, social, cognitive, and emotional factors on the economic decisions of individuals and institutions and the consequences for market prices, returns, and the resource allocation. Behavioral economics is primarily concerned with the bounds of rationality of economic agents. Behavioral models typically integrate insights from psychology, neuroscience and microeconomic theory; in so doing, these behavioral models cover a range of concepts, methods, and fields.[2][3] Behavioral economics is sometimes discussed as an alternative to neoclassical economics. The study of behavioral economics includes how market decisions are made and the mechanisms that drive public choice.

The use of “Behavioral economics” in U.S. scholarly papers has increased in the past few years as a recent study shows. There are three prevalent themes in behavioral finances: heuristics: People often make decisions based on approximate rules of thumb and not strict logic; Framing: the collection of anecdotes and stereotypes that make up the mental emotional filters individuals rely on to understand and respond to events; and Market inefficiencies: These include mis-pricings and non-rational decision making.

The book is the first comprehensive and systematic introduction to behavioral legal studies. The second part comprises four chapters introducing and criticizing the contribution of behavioral economics to legal theory. The third part discusses specific behavioral phenomena, their ramifications for legal policymaking, and their reflection in extant law. Finally, the fourth part analyzes the contribution of behavioral economics to fifteen legal spheres ranging from core doctrinal areas such as contracts, torts, and property to areas such as taxation and antitrust policy.

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The emergence of provisions relating to Privacy in the Draft Penal Code, 2067 in sections 291 to 302 is a welcome initiation, especially in light of the lack of any specific laws governing Personal Privacy thus far.

In the absence of express statutory provisions governing Personal Privacy, relative legislations have been seen to be filling a lacuna in the law. In light of the changing circumstances and the rise of global information technology, the need for Privacy laws have been made apparent and as such Nepal has taken formal steps to codify regulations pertaining to Personal Privacy laws. Albeit a general law, Personal Privacy provisions does initiate the process of recognition of legal right to informational privacy entailing the protection of personal and private information from misuse.

In Nepal, Right to Privacy is a fundamental right enshrined in Article 28 of the Interim Constitution of Nepal. This can be contrasted to, for example, the American Constitution where Right to Privacy is not expressly stated in the Constitution or the English Constitution where Right to Privacy is not a freestanding right under common law. This is not to say that the American or English jurisdictions do not recognize Right to Privacy. It is just that, they have developed measures to get around the lacuna in law.

In America’s case, 14th Amendment and landmark Supreme Court judgments have played a big role in establishing protection of Personal Privacy. In England, equitable doctrine such a breach of confidence, torts linked to infliction of harm to the person and public torts pertaining to police powers have largely been used to govern the concept of protection of Privacy rights. In light of this, Nepali constitutional mandate to enshrine Privacy rights as a fundamental right shows a stern recognition of the importance of personal informational rights and the commitment to protect such rights.

As per Alan Westin, Right to Privacy entails, “The claim of individuals, groups or institutions to determine for themselves when how and to what extent information about them is communicated to others.” From this definition it is clear that the Right to Privacy is not limited just to the individual but can also extend to groups or institutions.

The current system provides penal retrieve for victims of privacy infringement. In addition, the provisions in the code, under section 301, provide measures for compensation. However, a civil action for privacy infringements should be made available. This has a lot of inherent benefits:

1.) In a civil action, the claimant themselves will bring the case increasing the likelihood for claims against privacy infringement.

2.) In a civil action, as opposed to criminal, the burden of proof (balance of probabilities) is less stringent allowing greater leeway in favour of the claimant. In a criminal action the “beyond any reasonable doubt” burden of proof is highly stringent and could provide more difficulties for victims seeking reparations.

3.) Civil action in general is more concerned with compensating the claimant and basing liabilities whereas criminal action is more concerned with punishing the perpetrator. In this regard, civil action is more victim-friendly and will provide un-liquidated damages to the claimant as per the facts of the case.

4.) In most other jurisdictions, privacy laws are governed by both criminal and civil procedural law. In Nepal, measures need to be taken to enable the victims to initiate either a civil or a criminal claim against the defendant.

 
It is clear that the whole chapter on Medical Treatment can be classified into following four categories: i. laws regarding treatment ii. laws regarding to medicine iii. laws regarding test/examination reports and iv. laws regarding compensation. The punishment for recklessness and negligence should be clarified i.e. the elements constituting reckless treatment and negligence treatments should be clearly stated in the provisions to avoid ambiguity. Also, licensing of the medicine distribution must be strictly regulated. Further, the provisions regarding the compensation are very vague. Clear methodology or mechanism must be incorporated for calculation of compensation to the victims.

The provisions of medical treatment have seriously failed to address various issues. As one can see, the medical treatment solely focuses on doctor’s role and ignores roles of nurses/medical attendants, medicine distributors and administrative personnel of a hospital. Any recklessness or negligence on the part of nurses, hospital administrators or medicine distributor should be brought into this chapter of the Penal Code. Further, the doctors should be directed to prescribe generic name of the medicine instead of company specific medicines. The hospital authorities must be required to incorporate technologies to avoid hand written prescription to avoid confusion at the medicine counter.

There should also be a provision of fast tracking the medical treatment cases. The victims should be adequately compensated for the physical and mental harm suffered by the victim and their family.

The definition of medical practitioner or doctor must be clarified as to exclude ‘dhami’ and ‘jhakri’ as the present definition includes them.

A non-obstante clause should be included in the chapter to pave the way for the victim to pursue compensation in civil court under the law of tort. Further, I suggest conducting examination to renew the licences of the medical practitioners on a regular basis.

In addition, the qualification of nurses and medicine distributors should be categorically stated in the chapter.

A strict compliance mechanism must be established to check whether the doctors, nurses and medical distributors meet the requirements of the statute.

Human Rights Commission Act 1997 was replaced by National Human Rights Act 2012 from 20th January 2012 onwards. It was expected that the new Act would have provided competence, autonomy and independence to the Commission for fulfilling the duties of ensuring respect, protection, promotion and effective implementation of human rights as enshrined by the Interim Constitution. However, the new Act has been deemed restrictive in contrast to Section 132 (1) of the Constitution and the Paris Principles, 1991 (recognized and adopted by by UN General Assembly). In light of this, Om Prakash Aryal, along with other advocates, sought the Supreme Court’s verdict to announce ultra vires and non-applicable those provisions that went against the dominant aforementioned principles.
The Supreme Court, in response, ordered the government to scrap some sections in the National Human Rights Commission Act, 2012. The first of such provision dealt with Section 10(5) of the impugned Act which dealt with the statutory limitation of six months on reporting of conflict era cases. Om Prakash Aryal, along with fellow advocates, argued that the time limit set in the Act discouraged victims from fighting for justice. The verdict will now allow the NHRC to investigate into and file cases against human rights violators on its own, regardless of the time limit.

The second provision, contained in Section 17 (10) of the Act, dealt with authority given to the Attorney General to decide on initiating cases. The Supreme Court also scrapped a provision of discretionary powers vested in the Attorney General to initiate rights violation cases. Further, the special bench comprising of Chief Justice Khil Raj Regmi and Justices Ram Kumar Prasad Shah and Girish Chandra Lal found the provisions in the Act was in clear contravention with Article 132 (2) (c) of the Interim Constitution which requires the NHRC to institute a case against any person involved in human rights violations and make recommendations to file case in the court in accordance with the law.

If the judgment is in line with the NHRC’s interpretation, the judgment will be instrumental in implementing hundreds of recommendations of prosecutions made by the Commission with regards to violations committed by the warring parties during the conflict.

Comments

National Human Rights Commission (NHRC) is different from any other constitutional or governmental bodies in that it thrives on special competence, independence and functional autonomy. It is imperative that the legal provisions that go contrary to the Commission’s competence, autonomy and independence should be amended to maintain its status as a national institution that monitors accountability of the state and even the non-state actors during internal conflict.

The decision to overturn the discretionary powers vested on the Attorney General to instigate a case is a welcome move. Due to the partisan nature of Nepali institutions, the power vested on Attorney General was a detrimental force preventing victims of Human Rights abuse seeking justice. It has been a prevalent practice in Nepal that a lot of the cases never reach the courts due to the vested powers of Attorney General to have the final say. However, through this decision, the influence of the government via Attorney General has been drastically curbed. As a result, the decision is set to address the culture of impunity in Nepal. In light of this, NHRC should take a proactive step towards ameliorating such ills in our society.

In Society for Human Rights, Environment, Law and Good Governance vs. the Government of Nepal, the Supreme Court ruled that the government is obliged to comply with the recommendations of the NHRC at the exclusion of any justification. However, NHRC has attributed perennial non-compliance of its recommendations towards the government. This decision is set to provide a boost to NHRC to uphold its mandate.

In addition, the 2012 Act is fraught with problematic provisions in contrast with the Paris Principles. In light of this, there are many other aspects that need to be amended such as: the Commission’s institutional autonomy, competence, and independence should be guaranteed in the preamble itself as norms and values mentioned in the preamble are construed to be the backbone of the Act. The 1997 Act contained such provisions and it should be reinstalled. Further, Section 4 (2) of the Act has only provided for the functional independence of the Commission. It is contrary to the Constitution and should be amended to reinstall the overall autonomy, competence and independence aspect inherent in the 1997 Act. Proximately, there should be guarantees of not forcing the Commission to decide about giving compensation in a case just because the case had been taken forward elsewhere.