Category: Notes

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.
 

Every living being strive for personal well being. People try their very best to be safe and protect themselves. Self preservation is one of the basic human instincts and due to which many laws regarding personal safety have been codified by way of various laws.

Security organizations ease pressure off from the government as they are, in a way, performing state function. These organizations also provide security at banks, malls and offices. Security organizations help mobilize human resource in a constructive way. The demand for private security is increasing rapidly with sprawling businesses. The organization providing private security is also increasing and must be regulated by law to make it organized and accountable.

If we read the Bill, we find that its provisions do not stipulate any qualification for establishment of the security services. Further, the Bills states that a person retired from Nepal Army or Nepal Police or Armed Police Force or defense personnel in other country can be employed by the security service agencies. This criterion is not clear whether non defense personnel can or cannot be employed by the security agencies. If non defense personnel can be employed then the type of training required before they are sent for duty for providing security.

The guidelines for the security agencies are also missing from the Bill. These guidelines while recruiting personnel and the mode of discharging their duty is also one of the important aspects that the Bill should regulate. The use of arms for protection must also be carefully checked by the State. The security personnel agencies must keep track of the weapons that they arm their personnel with and how they use them.

Again, disciplinary committee must be established to look into any misbehaviour or any wrongdoing of the employees of the security agencies. Further, the uniform of the employees of the security personnel must be distinct from that of army, police and armed police to avoid confusion.

The employees of security agencies must acquire training before being sent to provide protection. Further, the training must be provided on a regular basis to check their physical and mental capabilities. Periodic training will be a good check to employ only those persons who can actually protect people.

There should be a code of conduct for the agencies providing security. For instance, only female security personnel can check a female when doing a security check. Further, the way these security personnel must conduct their duty must be clearly stated in the code of conduct. The instance when physical force is to be used and instance where weapons can be used must be clearly stated in the code of conduct.

The government must maintain a detailed record of the arms and ammunitions being held by the security agencies, the number of employees and the places they are providing security.

An Academic Course provided by the Election Commission Nepal, the Kathmandu University School of Law and the Norwegian Centre for Human Rights at the University of Oslo in collaboration

Teaching staff: Bishal Khanal, Ila Sharma, Nils A Butenschøn and Kåre Vollan Discipline: democracy Electoral Systems and Electoral Rights Year of study: 2015 Kathmandu University Credits: 3 credits

GENERAL DESCRIPTION AND THE AIMS OF THE COURSE

Course Objective

The objective of the course is to convey the concept of elections and election law, and an understanding on how to convert basic electoral rights into electoral systems, including the system of representation and all the operational issues which form elements of the electoral system. In particular the understanding of the role of on one side international standards and on the other side the special needs of a country is important.

General Description of the Course:

The Course in Electoral Rights covers a broad spectrum of issues related to representative democracies. It will start by the fundamentals of transferring the ‘will of the people’ to decisions in representatives bodies and then cover systems of representation, electoral standards, minority and group representation, post conflict issues, the independence of the election management bodies, operational issues and election observation.

Learning outcomes

Upon successful completion of the course, the following learning outcomes will be received:
The students should know the international obligations to multi-party elections and be able to interpret the general requirements and their ramification for national legislation. They should be able to analyse the qualities of systems of representation, the needs for special representation and the link to decision-making systems. In particular they should get a good understanding of the complexity and diversity of systems of representation and the importance of independent electoral management bodies and adherence to accepted standards to secure the integrity of an election.

Teaching Methodology

Teaching will be held through a combination of lecturing and seminars in the class, where the students are expected to show up in class with advance preparation based on set reading. Reading sources for each seminar will be provided to the students a week prior to the seminar, or will be included in the course reader. The seminar will stimulate group discussions on the topics covered in the course and individual presentations by the students.

Resource Materials

A list of bibliography is attached to the Syllabus, which will include optional reading as well as some of the pieces from the bibliography will be copied and provided to the students through the teaching process. All the materials in the bibliography are available either as PDF files, online or as material given to them. In additions hand-outs will be provided for most of the lectures.

Assessment of the learning outcomes

Students will be assessed based on the system established at Kathmandu University School of Law.

Teaching Staff: The course will be conveyed by Bishal Khanal (BK), Nils A. Butenschøn (NAB), Neel Uprety, (NU), Ila Sharma (IS) and Kåre Vollan (KV.

COURSE CONTENTS

Part I Concepts, International Commitments and Elections Role in Representative Democracies

Lecture 1. Conceptualization

Key concepts and terms: Decision-making in representative democracies, majority rule and consociational democracies, systems of representation, group representation and minorities, electoral standards, operational issues and observation will be explained.

Lecture 2. International Conventions and Obligations

The international binding obligations on elections, representation of genders, minorities etc. Lecture 3. International Standards and Best Practices

The international and regional standards and standards developed by INGOs are presented. In addition, best practices are presented. Lecture 4. Representative Democracies and Decision-making

What is elections’ role in transferring the ‘will of the people’ into collective decisions? State Structures, Forms of Government, Periodic Elections, and the role of political parties Part II Power-sharing Post Conflict, Minority and Group Rights

Lecture 5. Group Rights and Individual Rights; Identity, group rights and individual rights.

Lecture 6. Protection of minorities, balancing groups after conflict and affirmative action The different motivations for group representation. Sunset clauses.

Lecture 7. Institutional Design Levels of governments, councils representing minorities, minorities within minorities

Lecture 8. Power-Sharing Agreements – The Four Elements

What are the differences between majority rule and consociational democracies? The Four elements: Delegation of powers, representation, grand coalitions and veto powers. Part II Electoral Operational System, the Roles of Election Management Bodies, Civil Societies and Voters during the Course of the Electoral Cycle

Lecture 9. The Electoral Cycle An overview of pre-election, elections, and post-election activities. Electoral Disputes.

Lecture 10. The Role of the Election Management Body (EMB) The EMB administers the rules of the game and a credible election is dependent on the credibility of the EMB. Different models and traditions are explained.

Lecture 11. Legal and Operational Challenges The legal provisions are very important for any election and the laws are scrutinised in detail by domestic experts, parties and international organisations to assess if they meet international standards. But good elections may be conducted under very sketchy laws and bad elections are held with very good laws. What does it take to make an election credible?

Lecture 12. Elections in Nepal A historic overview and elements of the current legal framework.

Lecture 13. Election Observation Election observation became a very important tool for the transfer to democracy in the 1990s. The methodologies and the challenges will be discussed.

Lecture 14. Electronic Voting The use of IT in elections has become widespread. To support the actual voting, machines in the polling station is the most common but Internet voting is also used in some countries. The challenges are in particular related to secrecy and transparency and the various aspects will be discussed in this lecture.

Part III System of Representation, Electoral Quotas

Lecture 15. Electing Head of State Presidential elections depend to a large extent of the role of the president and the form of government. Electoral systems will be discussed for parliamentary systems, presidential systems and hybrid systems.

 Lets start with the definition of the term ‘discrimination.’ Equality is the condition of possessing substantially the same rights, privileges and immunities and being liable to substantially the same duties. A.V. Dicey “equality before law” as one of the important components of the rule of law.

We can recall the provisions of the Muluki Ain, 1910, Constitutional Act of 2004, Interim Government Act, 2007, Constitution of Kingdom of Nepal, 2015, Constitution of Nepal, 2019, Muluki Ain, 2020, Constitution of Kingdom of Nepal, 2047, Interim Constitution of Nepal, 2063 and Caste Based Discrimination and Untouchability (Offence and Punishment) Act, 2068 and the relevant provisions therein.

There is also a report of the Law Commission and the landmark judgments delivered by the Supreme Court of Nepal. The Supreme Court judgment on the rights of LGBTI is already famous. There are some international conventions and treaties such as Universal Declaration of Human Rights, 1948, Convention on the Prevention and Punishment of the Crime of Genocide, 1948, International Covenant on Civil and Political Rights, 1966, International Covenant on Economic, Social and Cultural Rights, 1965 and Convention on the Elimination of All Forms of Racial Discrimination, 1965. They have their impact in our society and local laws.

In the context of the offenses regarding discrimination, Section 37 should also include acid attacks as in recent history we have witnessed many racial and gender attacks by use of acid. Further, the existing laws regarding acid attack on a person especially on women is not clear. The law is silent about the course of action regarding acid attack and many culprits walk free due to leaky provisions in the existing laws. Further, the term used in Section 117 should be avoided as it is degrading.

Section 155 sanctions discrimination if such practices have been carried out as part of one’s culture or rituals. A new provision should be added wherein it must stipulate that any person in propagation of culture or ritual who promotes gender, caste or social discrimination shall be punishable under the law. Further, the expression ‘caste Discrimination’ should be replaced by “gender, caste, cultural and class discrimination” in the explanation of Section 163.

Any sexual intercourse with a minor or without the consent of the partner should be punished for rape. The wording here implies that only females can be raped and excludes third gender or males. The wordings of the provisions must be refined to include third gender and males too.

The present Bill is silent on whether the discriminatory act in public place is punishable or any discriminatory act either in public or private place is punishable.

One can argue that the Bill punishes only discriminatory acts in public places. This means that discrimination in our society may never end. It is clear that LGBTI are neglected in the Bill. This oversight is against the judgment of Supreme Court of Nepal which has given all LGBTI equal protection and status in our society.

Racial and gender discrimination are embedded in subconscious mind. It will require additional support from social and educational sector. Educating children and mass about all forms of discrimination and sensitizing society needs to be done with top priority. Law alone cannot eliminate all forms of discrimination.

The present Bill is a good start to eliminate discrimination. However, the Bill needs serious revision to include various forms of discrimination. The victim of discrimination must not be narrowly construed as people from all walks of life may fall victim of discrimination. The courts should be empowered to grant interim relief in the form of monetary relief as the cases in Nepal can prolong for years.

Perhaps one should make a point here that dalits, especial dalit women, have to undergo wide range of discrimination. Many discriminatory actions have been suppressed or discouraged by the people in affluent class of people. Dalit people do not have the resources to come up front and report discriminatory acts. If some stray discriminatory acts are reported the victims are further harassed by the concerned people for reporting the act. The present law must provide relief and protection to victims. Until and unless the law succeeds to protect and deliver speedy justice elimination of all forms of discrimination is not possible.

The existing laws relating to offences against the religion are in the Muluki Ain, 2020. Prior to promulgation of the Interim Constitution, Nepal was identified as a Hindu Kingdom. There are certainly important biases in favour of the Hindus. Hinduism dominated all aspects of life including legal sphere.

The expression ‘religious places’ is a very wide term. It does not mean the religious places of the Hindu people only. Affording protection to all the religious places is not possible for the State in its present capacity. However, protection could be afforded to important religious places and respect should be given to all cultural heritage sites. Any act or omission which prevents a person from performing his/her religious practices should also be criminalized.

The provisions of the present draft needs some improvement as usage of language should be as such which can be easily understandable by the general people. Further, the provisions of some chapters of the Penal Code contradict with each other and in some cases there are unnecessary repetitions of provisions.

The cases of offences against religion are hard to prove due to various complications especially forceful conversion of religion. The term ‘forceful conversion’ is hard to prove. There are various methods of coercing a person to convert into another religion without physical force. The punishment stipulated in the draft Bill bears no correlation with the offence. The Bill aims at punishing the forceful converter of religion and not the ones who have been victimized by them.

The provision of strict punishment for those who take advantage of the helpless women and children is important. They require great care and protection. The responsibility is on the State to protect them from being tools in the war of religious propaganda.

 The present Bill is a big step towards preventing any form torture and punishes any act of torture. However, it fails to address acts such as cruel or degrading treatment.

Section 20 of the Bill needs reconsideration. A minimum and maximum punishment and fine should be stipulated so as to narrow down the discretionary power in the judicial authorities.

Section 22 of the Bill must be amended to give the courts the authority to pass an interim relief. According to Section 23 the government is supposed to give compensation within a year. The period of one year for execution for the final order is too long and will not meet ends of justice. To deter frivolous torture claims, Section 31, is irrelevant as it is claims for torture are far and few. This provision might instead deter people from making real claims.

The current Bill still suffers from procedural flaws. The redressal mechanism must be streamlined. The legal procedures deter the victims from making any complaints. Further, the definition of torture is narrow and exhaustive. The methods of torture are ever evolving and hard to define all forms of torture. It should be indicative of what all might be a form of torture.

The main difficulty in justice administration is the implementation of the existing laws. As of now very few cases have been registered in the courts and very few cases have had the final order. In light of these circumstances, a special bench must be set up for hearing complaints regarding torture and deliver its judgment within a stipulated time frame.

The victims are left in dark. The victim or victim’s family members have no involvement in the proceedings and dependent on the State to prosecute. The Bill must give some kind of control to them over the course of the prosecution. This will eliminate or reduce errors in government attorneys who are already over burdened with prosecution cases. again special care must be taken while dealing cases of torture to females and children. Such proceedings must be in camera proceeding to protect female and child victims

Madhav Kumar Basnet v Chairperson, Government of Nepal, Interim Council of Ministers, Office of Prime Minister and Council of Ministers, Kathmandu (NKP 1101 (2070))

In this case, Advocate Rajib Bastola filed a writ petition seeking the Supreme Court’s decision to deem Section 8, 11 and 17 (2) of the National Broadcasting Act, 2049 BS unconstitutional as they were in contrast with Section 12(3), 15(1) and 27 of the Interim Constitution of Nepal, 2063. Legal provision on the broadcasting of the flow of information through the National Broadcasting Act 1993 targeted for the general public to get informed about impartial as well as authentic news and information taking place at the national and international level. This Act also aimed at making of the broadcasting media reliable, effective and strong with the use of modern technology in the field of information and communications.

Relevant Legislations

Interim Constitution, 2007:

• Section 12 (3): Right to freedom: a) Freedom of opinion and expression b) Freedom to practice any profession, carry on any occupation, industry and trade.
• Section 15 (1): Right relating to publication, broadcasting and press: (1) No publication, broadcasting or printing of any news item, editorial, feature, article or other reading and audio-visual material through any means whatsoever including electronic publication, broadcasting and printing shall be censored.
• Section 27: Right to information: Every citizen shall have the right to demand or receive information on any matter of his or her interest or of public interest.

National Broadcasting Act, 1993:

• Section 8: Power to cancel license of broadcasting institution: (1) if, any broadcasting institution broadcasts any program in contravention of this Act or the Rules framed hereunder, Government of Nepal may cancel the license obtained by such broadcasting institution. (2) Prior to cancellation of the license under Sub-section (1), Government of Nepal shall give a reasonable opportunity to such broadcasting institution to defend itself.
• Section 11: Production and Broadcasting of Programs.
• Section 17 (2): Penalties: (2) If any person broadcasts, or causes to broadcast, any program in contravention of this Act or the Rules framed hereunder or commits, or causes to be committed, any act in contravention of this Act or the Rules framed hereunder, the prescribed authority may punish such broadcasting institution, broadcaster or other related person with fine of up to Ten Thousand Rupees or with imprisonment up to One year or with both punishments.

International Convention on Civil and Political Rights (ICCPR), 1976

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order, or of public health or morals

In response, the court did not find unconstitutionality with Section 11 and Section 17 (2) respectively. However, in terms of Section 8 regarding the power to cancel the license of broadcasting institutions, the Supreme Court found that this provision was in contrast to the constitutional principle enshrined in Section 15 of the Interim Constitution of Nepal. According to Section 15, ” No publication, broadcasting or printing of any news item, editorial, feature, article or other reading and audio-visual material through any means whatsoever including electronic publication, broadcasting and printing shall be censored.” However, Section 8 of the National Broadcasting Act gives power to the Nepali government to cancel the license obtained by such broadcasting. The court opined that cancelling the license of a broadcasting network would garner the same result as providing censorship to the publication as licenses are an essential pre-requisite for the broadcasting agency to legally function in the country. In this regards, citing unconstitutionality between the parliamentary act and the constitution, the court nullified the provision stated in Section 8 of the National Broadcasting Act.

Comments

In this case, the judiciary has once again exercised its power of judicial review to declare Section 8 of the National Broadcasting Act, 1993 unconstitutional. In doing so, the Supreme Court has re-iterated its preeminence in the judgment as to invalid restrictions. From a governance perspective, arguments can be made that a judicial institution, which is essentially appointed and not elected, should not be allowed to discard rules made by an elected body, i.e. parliament. The lack of accountability for judiciary towards the voting demographic has been argued as a major reason for the possible pitfall for this system. In the United Kingdom, for example, in most cases, the parliamentary Act is seen as a supreme law and the power is vested within the judiciary to interpret the law and not amend it.

However, there is a second school of thought which sees great benefit in the judiciary’s power to exercise its rights to interpret the constitution at the exclusion of any parliamentary acts. The appointed nature of judiciary, according to them, is a huge benefit as it keeps the judiciary independent and unaffected by partisan interests. This, according to many, is the hallmark of a democratic society where checks and balances are provided to keep all the institutions in line with democratic norms. This school of thought has prevailed in Nepal.

In terms of the case at hand, the Constitution recognizes the following grounds for restricting freedom of expression: sovereignty and integrity of Nepal; harmonious relations subsisting among the peoples of various castes, tribes, religion or communities; defamation; contempt of court; incitement to an offence; and acts contrary to public decency or morality. However, the restriction based on protecting “harmonious relations subsisting among the peoples of various castes, tribes, religions or communities” (Article 12 para 3 (1) of the Constitution, as well as in Article 15 of the National Broadcasting Act 1993), is problematic from the perspective of freedom of expression. While it is important to promote harmonious relations, this restriction is too broad and can undermine legitimate expression such as a frank discussion about the caste or ethnic discrimination which is a prevalent issue in Nepal.

In addition, there should be appropriate provisions that impose obligation to establish close and causal links between banned statements and risk to national security. This is a norm in international law. This lack of clarity has been abused in Nepal during the Maoist conflict and was one element in the justification for the widespread clampdown on journalists, media workers and human rights defenders. In essence, regulation of broadcasting should be controlled by a transparent body rather than a ministry to avoid future abuses.

The verdict to amend the National Broadcasting Act to adequately protect the right to freedom of expression in line with international requirements and the protection of media guaranteed in the Constitution is a welcome move. In light of this, the government must create regulatory laws according to international standards and establish regulatory bodies that are independent from government and that operate transparently.

In this case, Advocate Govind Prasad Sharma filed a writ petition seeking Supreme Court’s intervention against Prime Minister Baburam Bhattarai and Attorney General Mukti Narayan Pradhan for their ‘unconstitutional intrusion into judicial matters’ in their bid to halt the investigation and interrogation process of Dailekh-based journalist Dekendra Raj Thapa’s murder.

The petitioners argued that the orders provided by the Prime Minister and Attorney General to halt the investigation process on the murder of Dailekh based journalist Dekendra Thapa amounted to misuse of authority, obstruction of justice and action against the Interim Constitution, 2007.

In this case, a Dailekh District Court had remanded, subsequent to their arrest, Lakshiram Gharti, Harilal Pun Magar, Bir Bahadur KC, Nir Bahadur Gharti Magar and Jay Bahadur to judicial custody as Lakshiram Gharti had confessed to being a part of the crime committed on August 11, 2004. However, citing influence from higher-up, the interrogation process was halted. Subsequently, the Office of the Attorney General had sent a directive to the Dailkeh Police and District Office of Attorney directing them not to proceed with legal action in Thapa’s murder case.

In light of this, the petitioners argued that the defendant authorities had misused their powers in halting the interrogation process and releasing the accused from judicial custody. In addition, there was a high possibility for tampering of evidences due to the highly politicized nature of the murder. Thus, the petitioners further sought immediate apex court intervention through stay order. According to the petitioners, the Attorney General’s written order indicated a clear misuse of power and also amounted to obstruction of justice. Thus, the petitioners sought a Supreme Court order directing the lower courts to reprimand the defendant authorities. The petitioners alleged that the defendant authorities had misused power even though it was their duty to arrest the accused and protect evidences, to search and arrest perpetrators of crime, detain suspects and file charge sheet as per the Government Cases Act, 2049 BS.

Proximately, the petitioners argued that the AG is the final authority that decides whether or not to prosecute any case in a court of law as per Article 135 of the Constitution. However, the chief legal adviser of the government does extend to the right to intervene in any ongoing investigation. Moreover, Article 13 (2) of the Interim Constitution, which promoted equality before the law, states: “The State shall not discriminate against citizens among citizens on grounds of religion, race, caste, tribe, sex, origin, language or ideological conviction or any of these”. In light of this, the petitioners argued that the remanded party cadres should not hold any special privileges to escape the regular criminal justice system. Further, citing an SC order on Sushil Pyakurel vs Agni Prasad Sapkota case, that states that investigation and prosecution of murder cases cannot be stopped only by citing the yet to be formed transitional justice mechanism, the petitioners sought apex court intervention.

In response, the defendants argued that as per the Interim Constitution and the Comprehensive Peace Agreement (CPA), conflict-era crimes fall under the jurisdiction of the Truth and Reconciliation Commission (TRC) and that they should not be dealt with by the regular criminal justice system.

In its decision, a division bench of Justices Ram Kumar Shah and Gyanendra Karki issued ordered that prosecution against those accused in the Dekendra murder case should go ahead regardless of the TRC’s existence. Furthermore, the bench, in devising a verdict, claimed that investigations into criminal cases must not be halted by citing the impending TRC as envisioned in the Interim Constitution, 2007 and the CPA. The court maintained that since the much anticipated reconciliation mechanisms were yet to materialize, regular criminal procedure could not, in the mean time, remain ineffective in relation to investigation and prosecution of conflict-era cases.

Moreover, the court also ruled that AG cannot interfere in the work carried by his subordinates until they continue to have the power delegated to them by the government’s legal chief. The court order also mentions that prosecuting (district attorney) and investigating (police) authorities are separate and independent entities and there can be no meddling in their job. The constitution provisions the AG as the last authority to decide whether a case would be filed in the court, the court stated, but such decisions from the government’s chief legal advisor cannot be arbitrary and has to be based on findings of an impartial investigation. Even though the AG is appointed by the President on the recommendation of the prime minister, it is important that any person holding public office remains loyal to the Constitution and not to the one who appointed him.

Comments
One school of thought suggest that due to the possibilities of a large number of casualties during a conflict, a separate procedure is required for dealing with such cases. Regular criminal procedures are inadequate to deal with such cases and victims may also not get justice. In addition, invoking regular criminal procedures in dealing with war-era crimes would mean going against the constitutional provision of having a transitional justice mechanism in place, which would in effect raise questions on the use of such a mechanism. Thus, in light of the impending legalization of transitional justice mechanism, it can be argued that the cases which fall under war era should be prosecuted according to the provision envisioned by the TRC.

On the other hand, the move from the PM and AG to halt the investigation procedure is seen as a huge political move. First of all, the illegality of the move is unquestionable. As per the Supreme Court, both the Prime Minister and Attorney General acted ultra vires in demanding a halt in investigation proceedings. Secondly, in a post-conflict society, where consolidation of democratic norms goes hand in hand with building trust, the political move comes as a huge step back in institutionalizing good governance practices and upholding the rule of law. As it stands, the act by AG and PM highlights the growing culture of impunity among political cadres at the expense of justice. This is not conducive for the long term peace and reconciliation process.

In essence, the Supreme Court held that war-era crimes can be prosecuted under regular criminal procedure in the absence of transitional justice mechanism. In doing so, it has once again re-established its position as the bastion of protection of rights of Nepali. This decision has come at a time when both the UCPN (Maoist) and the CPN-Maoists have been advocating for such cases to be governed under the transitional justice mechanism and stood against piecemeal approach in dealing with such cases. But the Supreme Court, once again holding its non-partisan characteristics, devised a judgment based on the prevalent laws of Nepal rather than party whims.

In this case, Advocate Rajib Bastola filed a writ petition seeking the Supreme Courts decision to deem Section 8, 11 and 17 (2) of the National Broadcasting Act, 2049 BS unconstitutional as they were in contrast with Section 12(3), 15(1) and 27 of the Interim Constitution of Nepal, 2063. Legal provision on the broadcasting of the flow of information through the National Broadcasting Act 1993 targeted for the general public to get informed about impartial as well as authentic news and information taking place at the national and international level. This Act also aimed at making of the broadcasting media reliable, effective and strong with the use of modern technology in the field of information and communications.

Relevant Legislations

Interim Constitution, 2007:

• Section 12 (3): Right to freedom: a) Freedom of opinion and expression b) Freedom to practice any profession, carry on any occupation, industry and trade.
• Section 15 (1): Right relating to publication, broadcasting and press: (1) No publication, broadcasting or printing of any news item, editorial, feature, article or other reading and audio-visual material through any means whatsoever including electronic publication, broadcasting and printing shall be censored.
• Section 27: Right to information: Every citizen shall have the right to demand or receive information on any matter of his or her interest or of public interest.

National Broadcasting Act, 1993:

• Section 8: Power to cancel license of broadcasting institution: (1) if, any broadcasting institution broadcasts any program in contravention of this Act or the Rules framed hereunder, Government of Nepal may cancel the license obtained by such broadcasting institution. (2) Prior to cancellation of the license under Sub-section (1), Government of Nepal shall give a reasonable opportunity to such broadcasting institution to defend itself.
• Section 11: Production and Broadcasting of Programs.
• Section 17 (2): Penalties: (2) If any person broadcasts, or causes to broadcast, any program in contravention of this Act or the Rules framed hereunder or commits, or causes to be committed, any act in contravention of this Act or the Rules framed hereunder, the prescribed authority may punish such broadcasting institution, broadcaster or other related person with fine of up to Ten Thousand Rupees or with imprisonment up to One year or with both punishments.

International Convention on Civil and Political Rights (ICCPR), 1976

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order, or of public health or morals

In response, the court did not find unconstitutionality with Section 11 and Section 17 (2) respectively. However, in terms of Section 8 regarding the power to cancel the license of broadcasting institutions, the Supreme Court found that this provision was in contrast to the constitutional principle enshrined in Section 15 of the Interim Constitution of Nepal. According to Section 15, ” No publication, broadcasting or printing of any news item, editorial, feature, article or other reading and audio-visual material through any means whatsoever including electronic publication, broadcasting and printing shall be censored.” However, Section 8 of the National Broadcasting Act gives power to the Nepali government to cancel the license obtained by such broadcasting. The court opined that cancelling the license of a broadcasting network would garner the same result as providing censorship to the publication as licenses are an essential pre-requisite for the broadcasting agency to legally function in the country. In this regards, citing unconstitutionality between the parliamentary act and the constitution, the court nullified the provision stated in Section 8 of the National Broadcasting Act.

Comments

In this case, the judiciary has once again exercised its power of judicial review to declare Section 8 of the National Broadcasting Act, 1993 unconstitutional. In doing so, the Supreme Court has re-iterated its preeminence in the judgment as to invalid restrictions. From a governance perspective, arguments can be made that a judicial institution, which is essentially appointed and not elected, should not be allowed to discard rules made by an elected body, i.e. parliament. The lack of accountability for judiciary towards the voting demographic has been argued as a major reason for the possible pitfall for this system. In the United Kingdom, for example, in most cases, the parliamentary Act is seen as a supreme law and the power is vested within the judiciary to interpret the law and not amend it.

However, there is a second school of thought which sees great benefit in the judiciary’s power to exercise its rights to interpret the constitution at the exclusion of any parliamentary acts. The appointed nature of judiciary, according to them, is a huge benefit as it keeps the judiciary independent and unaffected by partisan interests. This, according to many, is the hallmark of a democratic society where checks and balances are provided to keep all the institutions in line with democratic norms. This school of thought has prevailed in Nepal.

In terms of the case at hand, the Constitution recognizes the following grounds for restricting freedom of expression: sovereignty and integrity of Nepal; harmonious relations subsisting among the peoples of various castes, tribes, religion or communities; defamation; contempt of court; incitement to an offence; and acts contrary to public decency or morality. However, the restriction based on protecting “harmonious relations subsisting among the peoples of various castes, tribes, religions or communities” (Article 12 para 3 (1) of the Constitution, as well as in Article 15 of the National Broadcasting Act 1993), is problematic from the perspective of freedom of expression. While it is important to promote harmonious relations, this restriction is too broad and can undermine legitimate expression such as a frank discussion about the caste or ethnic discrimination which is a prevalent issue in Nepal.

In addition, there should be appropriate provisions that impose obligation to establish close and causal links between banned statements and risk to national security. This is a norm in international law. This lack of clarity has been abused in Nepal during the Maoist conflict and was one element in the justification for the widespread clampdown on journalists, media workers and human rights defenders. In essence, regulation of broadcasting should be controlled by a transparent body rather than a ministry to avoid future abuses.

The verdict to amend the National Broadcasting Act to adequately protect the right to freedom of expression in line with international requirements and the protection of media guaranteed in the Constitution is a welcome move. In light of this, the government must create regulatory laws according to international standards and establish regulatory bodies that are independent from government and that operate transparently.

The development of lease contract went through various stages. It started from being a nominal part in the property law later become an integral part of contract law and finally has developed into a distinct part of contract law.

This development bears some correlation with the economic development of the state. The more economically developed the state the more developed the lease and contract laws they will have.

Lease agreement can be categorized according to various criteria: residential lease/commercial lease; tenancy for year/tenancy for year/tenancy at will; tenancy of sufferance. Further, The duties on the parties while entering into a lease contract are also laid down.

Our existing laws, the Muluki Ain, relating to lease is more an ancient and outdated law. Muluki Ain does not cover issues of modern time.

The drafters of the Bill could have clubbed present Chapter with Chapter 9. Both chapters relate to leasing of property and it would be logical to club them together. The Bill must be applauded for incorporating modern principles such as ‘peaceful enjoyment of property’ and ‘delivery of possession’ which are progress steps. However, definition of the leasable property/item is not clearly defined.

The rights and duties of the lessor and lessee have been prescribed. However, it is strange that the responsibility has been cast upon the lessee to check for the fitment of the property in question. Is it not the responsibility of the lessor to disclose all material fact regarding the usability of the property?. A lessor has to disclose all defects in the property.

Further, the Bill tries to cover aspects relating to sub-lease but fails to address the assignment aspects of the lease. Thus, in general, the Bill is good in concept but the provisions of the Bills need some refinement.

The Bill must clarify the liability of lessor and lessee to pay tax. It is silent as to who has to pay the house tax: whether the lessor who is the owner of the property or the lessee who is enjoying the property?.

The Bill should also incorporate provisions regarding insurance of the property and the duty of which part to bear the cost of insurance. Further, it must contain a phrase wherein it categorically states that the agreement to enter into a lease contract has to be for lawful purpose with bonafide intention. Even though there is a non obstante clause there will be conflicts between the present Bill and existing Contract Act.

The Bill mandates compulsory registration of lease agreement but does not specifically state the authority or institution where the lease agreement has to be registered. The concerned authority or institute where the lease agreement has to be registered needs to be explicitly mentioned in the Bill.

The current effort of bringing everything in one single Act should be avoided in some cases. Contract Act which is a special Act dealing with agreements between party should be amended to insert the provisions contemplated in the present Bill. This will avoid conflict between statutes. Further, the period of the contract must be open for the parties to decide. Deciding the period of contract for the parties is not in the legislative domain and parties must be allowed to decide for themselves.