Category: Notes

 Dr Bipin Adhikari

Witchcraft is defined on the basis of the act of witches by Evans-Pritchard (1937) as “A witch performs no rite, utters no spell, and possesses no medicines. An act of witchcraft is a psychic act”. He also described that witches do not know their being a witch until and unless they are accused of being the witch. The difference is that witches in Nepal are supposed to be known their magic power unlike mentioned by Evans. 

Meaning of the witchcraft has been explained as “an innate quality, an evolutionary personal trait, deriving from a physiological peculiarity which can be discovered by autopsy” by Thomas (1971:41). He further explains that the witch exercise is malevolent power by accult means, and needs no words, rite, spell or potion. His is a purely psychic act. Eriksen (2001: 217) mentions that “unlike magic, which involves medicines and magical formulas, witchcraft is a purely spiritual, generally involuntary activity: the witchcraft power frequently commits its act while the carrier (the witch) is asleep”.



Witchcraft is a matter of concern to the civilization of people. It generally gives the glimpses of the society and helps to measure the degree of civilization, sometimes. In the context of Nepal, though witchcraft is taken as an undesirable and harmful phenomenon for the society, it still exists in some of the rural areas. Some cases of witchcrafts can be read in the newspapers in those areas and it is regarded as the destructive magical activity of women in the society. One such example is the Marani Devi Case from the eastern plain district of Mahottari, who hit the headlines last year after being bludgeoned by locals who branded her a witch, wants to launch a nation-wide campaign against conservatism.



In light of this, the new Witchcraft Act was prepared by Nepal’s Ministry of Women, Children and Social Welfare (MoWCSW), a federal department dedicated to the legal protection of that particular segment of the population. NHRC recommended the government to provide separate compensation mechanisms to the victims of witchcraft allegations in light of the failure to provide safety and security to the citizen by the state. Secondly, the NHRC recommended to the government draft a legislation criminalizing witchcraft allegations. These recommendations have been implemented by the government and as a result the bill has been promulgated addressing both the concerns of the NHRC.



In light of this, some of the provisions of the bill are highlighted as follows: Firstly, this bill will be specific legislation which shall deal with the issues of witchcraft. There was no any specific legislation regarding the offense of witchcraft and to solve the offense. Secondly, the bill contains provisions that ensure interim relief and protection measures to the victims while legal proceedings take their course. There were no any interim relief packages under the previous laws explained in the Chapter of Decency of National code. The victim is entitled to receive the compensation only after the charge is proved. But this bill has made interim relief protection whereby the victim can sustain his/her life even in absence of family or social support. Thirdly, the bill has a clear focus on victim protection mechanisms and guarantees state protection for the victim. There are no any other laws which shall talk about the victim protection in specific. This bill has given all the efforts to protect the victim even during the course of investigation and charges against the offender.



This bill shall ask the state for spate amount of budgeting to protect the victim of witchcraft. And lastly but not least, the bill includes third-party complaint mechanisms and an ordinance for ranking police officers to investigate complaints. This is most unique features of this bill where by any other parties can make complaint in case the victim is not in condition to lodge the complaint.



In addition, this is the first time that the Nepalese government has legislated the meaning of the term witchcraft. While that definition may be a far cry from that found in the U.S. or Europe, the effort will potentially alleviate some of problems and, thereby, open opportunities for more progressive and aggressive work towards eradicating the problem.



Some of the recommendations for amendments to the bill are as follows:



a) The provisions in Sec. 7 ” Ga” which allows for the arrest of an accused without warrant. According to experts, this is in contrast to the principles of criminal justice theory and should be avoided from the bill altogether.



b) The name “Witchcraft” Bill validates the negative connotation it represents in our society. Further, the term “witch” used in the bill is gender discriminatory as it depicts a situation only referring to a woman whereas both men and women are affected by allegations of witchcraft.



c)Witchcraft allegations usually involve a community rather than individuals. Although, such allegations might initiate at an individual level but it mostly manifests into a communal issue involving multiple people. In light of this, there should be mechanisms to hold the whole community accountably at large rather than individual perpetrators. 



d)Further, experts have advocated for the prompt enacting of the victim protection and the witness protection legislation to provide added support to the victims as well as witnesses of torture dished out alleging witchcraft.



e)Also, there is a need for psychological counselling for the victims in light of serious traumatic nature of the crime. According to experts, it is not enough to provide compensation to the victims; rather the focus should be to successfully rehabilitate victims back into society. In that regard, counselling should be provided to the family members of the victims as well as awareness programs should be implemented at the grass-root levels.



f)The new Nepal law makes the accusations illegal but also fails to specifically recognize or allow for Witchcraft as a legitimate magical practice found within folk religious traditions or modern Paganisms.



g)Compared to the Muluki Ain of 1963, the proposed bill has recommended stern punishment against those found guilty of witchcraft related crimes. Depending on the degree of the crime, the proposed bill has penalty and fine ranging from a year to 10 years in prison and Rs 10,000 to Rs 100,000, respectively. The convicted cannot escape jail sentence. The existing country code penalises the accuser with an imprisonment of three to two years or a fine of Rs 5,000 to Rs 25,000, or both. However, the wording “That ‘or’ conjunction is a problem. A perpetrator could walk away after paying the minimum fine. The removal of the options in penalty in the proposed bill will encourage victims to seek justice.



h)The other problem lies with the police administration, members of which belong to the same society that believes in the existence of witches. In such cases, instead of sympathy and provisions for counselling, the police personnel wonder if the victim was really a witch because there can’t be smoke without a fire. There is a need to train the security personnel to not be susceptive to mythical notions.



i)Part 3, Section 5: Medical Attention. There should be provision to provide medical attention to victims suffering from mental disabilities free of cost.



j)Part 3, Section 9: Witch-craft Allegation and Victim Protection. The provision should be amended to provide free of cost counselling to victims.



k)Part 4, Section 11. Compensation. Section 11 ( a) should be amended to include harsher sanction of 3-6 years jail sentence and fine of Rs. 30,000 to 50,000 NPR. 



l) Part 4, Section 13. Compensation. There should be provision for a trust fund to provide compensation to the victims in case the accused is financially unable to do so.



m)Part 5, Section 14 (1): Miscellaneous. The provision to provide service centres to victims should be modified to include an establishment to such centres in all the 75 districts. 



n)Similarly, there should be mechanisms for enabling the victims to become self-sufficient and provide training and skills sessions if needed.



With the new Witchcraft Act in place, the NGO advocacy groups and the Ministry will have another tool in their pocket to support their work. While the law is certainly not full proof, it does provide the legal fuel needed in their fight to protect the rights and health of the women of Nepal. Over time, this Act and others like it may lead to opportunities for inter-cultural work and inter-religious education that will grow a better global understanding of the many meanings of Witchcraft.

Moreover, there should be provisions of one-door crisis management centres, closed court hearing for the victims of serious offence of GVB, introduction of new legal framework to provide recognition to the household tasks executed by women as well as strict implementation of law to combat social ills like dowry system, prevalent in Nepal. This tackling of the problem in the broader context will aid the process of nationwide abuses. 

 Dr Bipin Adhikari

After 11 years of armed movement a consensus was reached between the parties to initiate peace process in the year 2006. During the course of peace process determining the status of disappeared persons during the conflict period and establishment of Truth and Reconciliation Commission took primacy. These highly contentious issues never generated the required consensus from the 2008 Constituent Assembly and the establishment of the Commission has been in abeyance for more than 7 years. 

Two separate and independent Bills were presented before the then Constituent Assembly. The first Bill was regarding establishment of a Commission to determine the status of persons disappeared during the conflict period and providing appropriate relief to the victim or victims’ family. The second Bill was for the establishment of Commission for Truth and Reconciliation to pave road for peaceful and prosperous future. However, both Bills due to various issues could not get the approval from the former Constituent Assembly and the Constituent Assembly was finally dissolved in the year 2012.



Decision to consolidate both the Bills and establishment of a single Commission empowered with both the functions of investigating the accounts of disappearances and for the purpose of Truth and Reconciliation into one single ordinance was taken as there was no Constituent Assembly at that time.



The present Draft Ordinance is not the brainchild of the Government but was drafted at behest of and as per the understanding reached between all the political parties. There were two schools of thoughts one demanding total amnesty to all acts done during the period of conflict and the other demanding trial of all instances of violation of Human Rights and instances of criminal offences. A middle path of establishing an independent, competent, unbiased and quasi-judicial commission for purpose of investigation of cases of disappearances and to seek Truth and initiate Reconciliation for peaceful solution was envisioned. 



The Ordinance deals with all 4 aspects of Truth and Reconciliation such as i) exploring the truth, ii) identifying incidents which needs prosecuting, recommending instances where amnesty is to be granted assigning cogent reasons in support of such recommendations paving way for peace process, iii) provision for reparation and iv) institutional reform. The purpose of imbibing these 4 aspects in the Ordinance was to ensure and guarantee of non repetition of conflict. 



In light of the facts stated above, I believe the Ordinance per se is not bereft of any merit. The only point which could not generate equivocal political consensus was on the power of the Commission to initiate trial and recommendation for amnesty.



Wile one can defend the Ordinance that the Commission, with retired Judge of Supreme Court of Nepal or Chief Justice of Appellate Court as the Chairperson, is competent in maintaining the sanctity of justice without being biased and applying judicial mind taking in account all the international treaties and conventions, Constitutional provisions, gross violation of Human Rights and other national laws.



The Ordinance defines victim, perpetrator, Human Rights, gross violation of Human Rights, reparation and deals with all the aspects associated with Truth and Reconciliation process and is a complete code capable of addressing the peace process.



With some reservation on some key issues, one can accept the judgment delivered by the Supreme Court of Nepal annulling the Ordinance. The Apex Court relying on prior judgment directed the establishment of two different Commissions instead of a single Commission as envisioned by the Ordinance. However, one can dispute whther the interpretation of the prior judgment was correct. After carefully reading the prior judgment of the Supreme Court, one can hold on that the court does not explicitly direct in formation of two separate Commissions and instead lays down two specific work; first direction was to investigate the instances of disappearances, finding their status, criminalizing those acts, initiating proceedings against the persons responsible and providing reparation; and second direction was to probe the truth regarding causes, actions and impacts of the conflict period and explore possibilities of reaching an amicable solution towards reconciliation and peace. 



A single Commission is competent to handle both the issues and the Apex Court had no theory when it directed about separate institutions. Even though i hold on the highest and utmost respect and faith in judiciary, it failed to determine the reason and the provision of the Interim Constitution on the basis of which the Supreme Court concluded Sections 13, 23 and 29 to be ultra vires. While welcoming the enthusiasm shown by the Apex Court in administering justice, one can question the extent till which such judicial activism should be allowed. To prevent misuse or unwanted encroachment of legislative power the Supreme Court should clarify the extent, scope and circumstances when the power of judicial review can be exercised.



It is certain that the Ordinance will be rejected and new Bills will be presented before the Constituent Assembly in consonance with the Apex Court’s judgment. I believe that ‘Politics’ should guide ‘Procedure’ but the recent judgment on the contrary has laid the foundation for ‘Procedure’ to guide ‘Politics’. His stand regarding ‘Politics’ being guiding force has worked well in South Africa from where the Truth and Reconciliation Model has been adopted from.

When the Constituent Assembly was dissolved the Government tried to promulgate this Ordinance in absence of a Constituent Assembly. The practice of ruling by Ordinance should be discouraged as it is not a sound principle of governance in a Democratic State. 

 Dr Bipin Adhikari

As per the General Recommendation No. 19 of the CEDAW Committee: ” Sexual harassment includes such unwelcome sexually determined behaviour as physical contact and advance sexually coloured remarks showing pornography and sexual demands whether by words or action.”

Such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory when the woman has reasonable grounds to believe that the objections would disadvantage her and connection with her employment including recruiting or promotion or when it creates hostile working environment. The issue of sexual harassment at the workplace is gaining gradual recognition as a problem of discrimination against women as workers at the workplace.

It is an issue that interfaces with two concerns: violence against women and rights of women in the workplace. Efforts at legal reform for combating violence against women have concentrated on the more extreme cases such as that of rape, while advocacy campaigns for women workers’ rights have concentrated on issues such as equal rights for equal pay, rather than on sexual harassment at the workplace.

Sexual harassment is an attack on a person’s privacy and dignity. It is a manifestation of power relations. Women are more likely to suffer because they lack power, are invulnerable and insecure positions, lack self-confidence and have been socialised to suffer in silence. A recent study by FWLD, Nepal has highlighted the fact that sexual harassment has deep rooted history in Nepal and Nepali workforce; yet, this subject had not been discussed openly in Nepal until a few years ago. The prevalent mental attitude in the society has been “Men will be Men and somehow the Women have to tolerate such behaviour.”

In Meritor Saving Bank FSB v Vinson, the Supreme Court unanimously recognized two types of sexual harassment:

a.) “This for that”, i.e Job related, Sexual Favours/Black Mail: Where there is a demand by a hierarchical superiors directed to a subordinate that the subordinate grant the supervisor sexual favours in order to keep or obtain certain job benefits. This type of harassment involves abuse of authority.

b.) Hostile environment sexual harassment: A broader type of sexual harassment involving unwelcome sexual advances or other verbal or physical conduct of a sexual nature which have the purpose of effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, abusive, offensive or poisoned working environment.

Sexual harassment at the workplace not only affects the individual in question but also the organization. Efforts have to be made in eliminating this persisting problem. In light of this, the newly promulgated Bill is a welcome addition towards addressing the problem. The bill follows the directive order on a writ petition issued by the Supreme Court of Nepal in 2060 giving clear instruction to enact legislation on sexual harassment.

Some of the major provisions incorporated in the Bill are as follows:

a) Addresses the fundamental right of individual to work in a safe environment.

b) Section 4: Incorporation of written, oral, gestural forms of sexual harassment.

c)Section 7: Claim, for sexual harassment, can be brought by the victim/ claimant or any one representing the victim.

d) Section 9: Protection for victim against adverse treatment at work as a result of sexual harassment claim.

e)Section 9: Provision for allowance of added security measures for witness and victims upon formal request.

f)Section 5: Obligations for the state to provide shelter and security measures to such victims.

g)Section 9 (8): Provisions to relocate/transfer such individual who has been proven to commit sexual harassment in order to maintain the sanctity of the workplace.

h)Section 13: Provision for compensation of the amount spent filing the complaint by the victim or any representative filing on behalf of the victim.

i)Section 15: Provision for in-camera proceedings upon request.

j)Section 18: Sexual Harassment to be incorporated in the academic curriculums for awareness purposes.

k)Section 21: Provision to enable Government of Nepal to create policy guidelines for the workplace.

l)Section 8: Provision for reconciliation between the parties through mutual consent. m)Section 13: Provision for jail sentence upto 3 months or compensation upto NPR 25,000 or both. The sentence and compensation to gradually double for repeated conviction.

Despite a lot of positives within the bill, there are persistent shortcomings inherent in the bill. As a result, experts have demanded that the definition of the workplace should be expanded. Similarly, they have advocated for increasing the time for filing complaints. Further, there needs to be more clarity in the complaint registration process and harsher punishment measures should be incorporated for deterrence purpose. Finally, there is a lot of debate on the validity of reconciliation procedures.

In light of this, some suggestions for amendments are as follows:

a) Section 2: Definition of “Workplace” needs to be broadened to include workers from the agriculture sector, informal sector, household workers and people working in unregistered/unorganised construction sector. Example: India’s Sexual harassment of the workplace (prevention, prohibition and redressal) Bill 2012 which includes “Domestic Workers” within its jurisdiction.

b) Section 4: Circumstances need to broaden to include electronic mechanisms through which sexual harassment could occur, i.e. through emails, websites, electronic messages etc.

c) Section 13: The grievous nature of sexual harassment demands harsher sanctions and as such stricter punishments should be proposed for offenders. In addition, the discretionary provision which allows the adjudicator to decide the compensation amount could lead to discrimination and as such it is recommended that a fixed amount scheme should be allocated for victims.

d) Section 8: Reconciliation provision should be scrapped altogether due to the sensitive nature of the sexual harassment cases. In order to deter abuse of power within the workplace, it is recommended that there be no avenues for reconciliation between the offender and the victim.

e) Section 9 Sub-section(8): The provision for transfer of the sexual harassment offender from one office branch to another upon conviction should be scrapped.

f) Section 15 Sub-section (2): The provision for in-camera closed proceedings to be initiated upon request from the victim should be amended to include a general provision to start all sexual harassment cases under in-camera proceedings in light of the sensitive nature of the crime.

In order to eliminate sexual harassment from the workplace, therefore, preventive measures, curative measures and rehabilitative mechanism in favour of the victims need to be activated. Effective implementation of laws, regulations and company code of conduct for workers should be ensured to check that sexual harassers do not go immune and victims’ rights are respected. In the present progressive, forward-looking ethos in Nepal, it is hoped that the socio-political environment will encourage formulation of appropriate strategies/legislation to address the problem of sexual harassment.

Also, talking about employer’s obligation, employer should recognize sexual harassment as a serious issue and treat every complaint seriously, sensitively, fairly and promptly. Where such conduct amounts to a specific offence under criminal law, or any other law, the management should initiate appropriate action in accordance with the law. Mental and physical health check-up facilities should be provided for the victim including legal assistance. Counselling facilities also need to be provided for victims to address psychological trauma. The employer should also make sure that there is no additional harassment and humiliation against the person who complains and the witnesses. Reporting against such incidents should not work against her.

Further, existing labour laws have tried to restrict employment opportunities for women in the name of protection by restricting working hours in many kinds of enterprises. Hence, corrective measure should be taken introducing the substantive model of equality under the policy and law for gender equality and overall development of women. Also, there are large numbers of workers involved in informal sectors as well as enterprises that are exempted from labour legislation.

Therefore, it is advocated for laws to be enacted for these sectors, which must include sexual harassment as a serious offence. Finally, a safe working environment has to be created by the management especially for the employees working in the night shift and special protection should be provided to the women workers in the night shift, implementing the prevailing labour legislation.

Moreover, nationwide training and awareness raising campaigns to raise awareness among workers and others regarding equal working rights and offences of sexual harassment and its effects should be initiated. Also, advocacy for recognition of sexual harassment as an offence should be undertaken. Also, he proposed for adequate measures to encourage victims to report sexual harassment, providing them with necessary support system including legal assistance and medical checkups.

Furthermore, the media should stop using women as a commodity and use its strong influence in forming public opinion, by playing a role in disseminating information regarding offences of sexual harassment and its effects, and help recognize sexual harassment as a crime, a violation of workers’ right to equality and right against exploitation. In terms of reconciliation, mechanisms as proposed in the bill should not be completely scrapped.

In light of certain harassment suits culminating as a result of misunderstandings, it is imperative that reconciliations mechanisms are available to sort out such issues promptly without escalating the incident.
 

 Dr Bipin Adhikari

The hotly debated Contempt of Court Bill has been recently sent to the parliament for referral. It has generated a lot of opinions with politicians, rights activists and others highly critical of the proposed provisions of the bill. The stakeholders critical of the provisions have argued that the provisions of the bill is contrary to the right of freedom of speech/expression. Further, the much contended bill is accused of curtailing other fundamental rights such as Right to Fair Trail etc.

In Schering Chemicals v Falkman (1981) AllER 321 it was propounded that “The Freedom of the press is extolled as one of the great bulwarks of liberty…But it is often misunderstood..it does not mean that the press is free to ruin a reputation or to break a confidence or to pollute the course of justice or to do anything that is unlawful…the press is not above the law.” In light of this backdrop, the newly presented bill is come into contention as regards to the relationship between the judiciary. On the one hand, press is the fourth pillar of democracy which acts as a watchdog over executive, legislature and judiciary. The draft bill exempts judiciary from any criticism. Sections of the media have held their reservations towards the new bill by stating that if the proposed bill that is now in the parliament is passed without any amendments, just about anyone might be charged with ‘contempt of court’ on flimsiest of ground. According to media representatives, attempts to curb the limited cautionary role of media in the name of ‘contempt of court’ is dangerous for the health of our nascent democracy.



Contempt of Court, commonly referred to as “Contempt” is the offense of being disobedient to or disrespectful to court of law and its officers in the form of behavior that opposes or defies the authority, justice, and dignity of the court. Contempt of Court is a concept deeply rooted in judicial systems in most of the jurisdictions around the world. Traditionally, there are essentially two kinds of contempt of court, i.e. civil contempt and criminal contempt. This has been acknowledged in the Contempt of Court Bill, 2071. Similarly, when a court decides that an action constituted contempt of court, it can issue a court order declaring a person or an organization “held in contempt”. Subsequently, a judge may impose sanctions such as a fine or jail for someone found guilty of contempt of court. The bill also defines insulting a staff or judge of the court as contempt of the court and proposes discretionary powers for judges to initiate a case with the punishment ranging from a fine up to Rs. 10,000 or a jail-term up to a year or both. In addition, experts have welcomed the provision to hold even the judges in contempt under certain circumstances. This provision makes it clear that no one due to his/her position in court could be excluded from incurring liability. The Bill does not prevent fair and truthful publication of information, however, any misleading or any publication which undermines the judiciary is restricted.



In light of this, there have been some suggestions to make the bill more in tune with the international standards. Firstly, there is a need to define and differentiate between criminal cases and those related to civil disputes and provide for each differently in different sections and sub sections. Secondly, there is a need for a categorization of different levels of contempt of court much akin to the legal avenues propounded in other common law countries such as UK and India. Also, it is suggested that it might be better to include the Office of the Attorney General in Amicus Curieu. Similarly, experts have advocated for the court, defined in detail and semi-judicial and tribunals, to also be included in the contempt bill draft. However, referring to the Irish Law Commission’s report, it might be better not to incorporate contempt of court related provisions in semi-judicial or tribunals.



Some of the recommendations for the amendment of the bill are as follows:



a) Section 4: Shall be deemed to be contempt of court. Sub-section “Ga” and “Cha” should be merged into one to avoid confusion.



b) Section 4: Subsection “Cha” states that it will be deemed contempt if anyone enters closed-door court proceedings without permission. This seems a bit harsh and should be scrapped from the draft bill. 



c) Section 6: Contempt of court proceeding could be brought against Judges. This section needs to be elaborated to identify scenarios or circumstances that can be identified as constituting contempt from judges.



d) Section 4 (d) provides excessive protection to judges and could inhibit the media from exposing instances of judicial corruption. Similarly section 4(h) says that media houses can be charged if they publish any information on restricted cases. But it has not defined on what grounds the court can restrict cases. Under these rules, this column would be considered a contempt of court.



e) Section 16: The provision barring a right to appeal, under decisions given in compliance with Section 14, is contrary to the fundamental right enshrined in the constitution.



f) Section 19: On facilitation for court to seek counsel from Nepal Bar Association. It has been recommended that the service should be provided to both parties to comply with the principle of natural justice. 



g) Section 20: Drafting of a procedural code to implement contempt of court. The provision for enactment of “procedural code” to supplement the bill should be replaced by “Rules” in order to incorporate a wider array of enforcement materials.



h) Labor Act, 2048: Section 72- Labor court has jurisdiction to hear a contempt case or give contempt order. This should be incorporated in the Contempt Bill as it intends to become umbrella legislation for all contempt cases in Nepal.



i) Kanoon Byawasahi Parishad Ain, 2050- Section 24(2) guarantees the rights of law practitioners against contempt charges for words or actions spoken or done during a hearing of case. This provision needs to be included in the contempt of court bill.



j) Administration of Justice Act, 2048: Section 29 Files, documents or replies on cases demanded by the Court to be sent- Provisions to empower court to start proceedings on the chief or employee of the concerned office in case of failure of deliver of files, documents or replies should be included in the contempt bill.



k) Section 13: Punishment. Sanctions of one year jail sentence or NPR 10,000 seems too harsh according to experts. It should be decreased to 3 months jail sentence and NPR 5,000 compensation. Further, Section 13 must be reviewed. The objective of the Contempt of Court Act should be to uphold the authority and impartiality of the courts, but this is not protected or commanded. Rather it is earned by safeguarding the fundamental rights of citizens. The role of media is to expose biased verdicts with evidence, not to protect the dignity of court. The respect towards judiciary and justices must come spontaneously; they shouldn’t seek enforced silence from the media.



Experts have been highly critical of the lack of provisions for right to appeal in the current bill. Right to Appeal is a fundamental human right recognized by the Constitution and, thus, should be incorporated in the contempt bill. Similarly, experts are of the belief that contempt bill should also uphold another fundamental right of Right to Fair Trial. There are certain provisions contrary to the aforementioned fundamental right and it is suggested that the bill should be in conformity with the fundamental right. On the other hand, experts have argued that the bill does not in fact necessarily curtail the right to appeal in cases of contempt. Rather, according to him, the bill under Section 16 opposes remission which can be made clear through modification of the wording. Also, there is a need to create a judiciary able to overcome adversities. In terms of media, an independent media is the key to independent judiciary and both should to work hand in hand to create conducive atmosphere to uphold the rule of law. In such a regard, both have certain rights and responsibilities that they need to conduct with due diligence to optimize the efficiency of the judiciary.



Furthermore, the current bill is urgent more so for the benefit of the press rather than the judiciary. In light of democratic developments, the move to promulgate the much needed bill is much welcomed by the legal fraternity. The provisions esp. sec 4 “gha” which defines what constitutes contempt has been deemed inadequate. According to experts, the definition under Sec 4 is vague and there should be amendment to make it more concise and coherent. Moreover, the definition should exclude “any other act” in the definition to avoid ambiguity. Similarly, judges need to introspect and ascertain their duties and responsibilities in light of the growing need to create a trustworthy relationship between the citizens and the court. Also, there needs to be balance between the independence of the media and obstruction to justice and court procedures. This bill should provide adequate balance between the two forces of the state rather than create a power struggle between the judiciary and the media.

In any democratic framework, the judiciary can be subject to the same level of scrutiny as the parliamentary and executive branches. Journalists must be accountable for what they write but shouldn’t be threatened by justices in the name of maintaining the dignity of the judiciary. They must own respect. I am pretty sure that unlike many others who want the Bill to be pulled down, this Bill should go ahead with these changes. There is nothing in the Bill which shows that the Bill is seeking forceful respect through the new act. 

 Dr Bipin Adhikari

There is an initiative of a massive upheaval in Nepalese bureaucracy through attempts at administrative reform amidst radical political changes and instability. In light of this, there is a need to be more proactive in ushering reform rather that reactive. Further, the role of the Civil Service is to serve the civil society so that ordinary men and women can enjoy the benefits of living in an organised environment.

The services provided by the Civil Service incorporate a large aspect of public goods sphere such as defence and security, law and order, education, healthcare, physical infrastructure, transport, telecommunications, etc. Hence, it is imperative that we identify any shortcomings in our state administrative mechanisms and seek to identify solutions so as to continue providing smooth and efficient service to the local people. In light of this, the concept of Civil Service Amendment 2049 has been promulgated.

Historically, Nepal’s civil service was formalized and brought under the legal framework following the enactment of Civil Service Act 1956. During those days many Indian advisors were engaged in developing Nepalese civil service system. By 1990, the act had gone through 29 revisions. However, the revisions were not meant to institutionalise the civil service, rather to expand the discretionary power of top-level bureaucrats, ministers and the masters of them all, the Palace mandarins. During the Panchayat years frequent changes in the Act helped the Palace decide who was in and who was out among the ministers and, sometimes, among the bureaucrats.

By the time of Jana Andolan II in 2006, the mood at government offices had become politically electric and polarised. In some way, that helped contribute to the protest movement against the king and led to various amendments to the Civil Service Acts. However, due to the partisan politics becoming firmly entrenched in the fabric of the civil service, Nepal’s ‘civil service’ has become neither civil nor service-oriented. Years of political interference by democratically elected politicians who outdid the Panchayat mandarins in weakening all potentially strong and independent institutions have meant that the civil service is now an ‘anything goes’ institution. As such, even if one were to start civil service reforms tomorrow, pushing the reforms through the system to make it independent and strong is not an easy task.

In light of the promulgation of a new amendment, it is imperative that we analyze all the newly proposed aspects of the bill. One such provision, which has become highly contentious, restricts all civil servants from holding or applying for any kind of permanent residence permit (PR) or citizenship of a foreign country. Further, the new bill also forbids government employees from juggling two jobs; i.e, working in private sector as consultants while continuing to function as a government official. It also objects to government officials teaching in private institutions as experts. “If anyone is found to be working as a consultant or teaching in private institutions, either stringent action will be taken against them or they will be sacked from their jobs immediately.,” According to the draft amendment now under consideration at the bills committee, serving government officials holding dual nationality will be given a chance to voluntarily abandon their dual nationality within a month after the new law comes into effect. Officials can continue in their government posts if they relinquish their dual nationality, according to the draft.

In addition, for the first time, the bill has also proposed to set up separate services for foreign and judicial services by considering them as specialized services. The Act forbids government employees in other services such as administrative and technical to be transferred to foreign or judicial services and also ensures that officials from other services cannot be promoted into high-level posts such as secretaries in judicial or foreign services. After being considered as specialized services, the foreign and judicial services will also have their own rules and regulations.

The proposed recommendations to the bill are as follows:

a) Preamble: The preamble in the bill attempts to justify itself by only saying that it is desirable to amend the 1993 Act immediately. But it does not explain what the proposed amendments are for, and what kind of impacts they would have on the civil service as a whole. Therefore, in a way that it would lend it to be included in the main Act, the main goal of the points proposed for amendment should be explained in the preamble, emphasising these ideas: professionalism, discipline, and decency.

b)Section 2: The phrase ‘permanent residential permit’ should be reduced to ‘residential permit’ in section 2 C(1), added in the bill after 2 C from the Act. In the same section, ‘or non-residential’ should be added after the word ‘residential’ in the second and fifth lines. The residential permit mentioned in 2 C(1) should be understood as a diversity immigrant visa (D.V.), green card, or any other document of any name which allows a Nepali citizen to live in a foreign country on a permanent or temporary basis, with or without any terms and conditions.

c)Section 6: Need for clarity from the government towards “Specialization” or “Generalization”. Need to establish a “Ministerial Career Model” if the government is leaning towards a specialization model. If amended according to the proposed bill, the new Act would prohibit the transfer of civil servants from any outside service to the position of secretary (or special class officer) in the Nepal Legal Service, Nepal Audit Service, and Nepal Foreign Service, and, conversely, from one of these three services to any other. The reason cited to justify the provision is that the unique nature of these services requires them to be founded on a higher degree of specialisation and professionalism. But, in applying the provision to only three of the ten services mentioned in the same Act, it is implied that other services do not require the same. The workings of all of the various services mentioned in the Civil Service Act are unique. Thus, all of them should be treated as such and developed as professional and specialised services.

d)Section 18: The proposal to set up separate services for foreign and judicial services by considering them as specialized services should be amended uniformly across all sectors. The bill proposes to forbid government employees in other services such as administrative and technical to be transferred to foreign or judicial services and also ensures that officials from other services cannot be promoted into high-level posts such as secretaries in judicial or foreign services.

e) Section 49: Prohibition on outside jobs. Problems predicted as regards to the implementation of such provisions. In 49 A(2)E(1), a provision has been kept to allow civil servant to engage with training or research at government training centres or facilities even during office hours as long as it does not interfere with work. On the other hand, civil servants have been asked to seek prior approval from the appropriate authority before engaging their time at non-governmental institutions for the purpose of education, technical training, or research, even outside of office hours. It seems unfair to have to ask for approval for activities done outside of office hours. At the same time, a provision allowing for training, albeit at a government centre, during office hours seems absurd from the standpoint of efficiency. Furthermore, since it is impossible to evaluate whether such engagements hamper work, they should only be allowed outside of office hours or during a leave of absence. To elaborate on the above-mentioned provision, section 49 A has been divided into subsection (2) which has further been divided into E, and finally, into the restrictive clauses 1 and 2. This makes little sense from the point of view of drafting legislation. It is not wise to devise a restrictive sub-division to a sub-section that already contains a restrictive clause. It would be appropriate to create separate sub-sections for 49 A(2)E (1) and (2).

f)Another provision proposed in the bill goes against the Supreme Court decision of 6 December, 2012, which allows for first class officers in the Nepal Legal Service to be promoted to the position of secretary, as per section 19 of the Civil Service Act 1993. The basis of the Court’s decision seems to be hinged on the existing Act, which, with the exception of the Nepal Legal Service and Audit Service, establishes the gazetted first class as specialist positions, and special class positions and the equivalent as generalist positions.

g)Section 61 (1): The provision and restrictive clause in 61 (1) F about the number of days one can be absent from one’s office is disproportionate. According to the provision, a civil servant can retain his/her job after taking a leave of up to 89 days, just as long it is approved within the 90th day. But the added restrictive clause states that a civil servant who attends an educational course, training, etc. and fails to record attendance at his/her office within thirty days of finishing the program risks losing his/her job in a way that would not hamper his/her future prospects of employment with the government. The provisions seem contradictory. It would be better to consolidate the two provisions with in 61 (1)F by simply stating that a civil servant who remains absent from his/her office for thirty days in a row without prior approval can be removed from his/her position without being declared ineligible for government work in the future. The proposed bill makes it clear that it is not preferred that a civil servant live in a foreign country with any purpose other than furthering his/her education, attending trainings, seminars, and/or furthering the interests of the state, while he/she is tenured to the service.

h) Section 61(3): Finally, there is a need to categorize, in detail, the classification of instances whereby a civil servant would be terminated from his/her post as per Section 10 of the bill. In addition, offence of moral turpitude through criminal convictions should be classified in further detail to avoid abuse of the provisions due to lack of clarity. Experts have advocated for assertions of provisions that clearly classify the amount of sentence as being the measuring tool for ascertaining offence of moral turpitude. For e.g. there could be provisions of a one year ceiling for criminal convictions to mandate termination of the civil servant staff.

Initially it had been mandatory for even retired civil servants to declare whether they hold any residency permit (like Green Cards) or citizenship of a foreign county. However, it has not prevented certain section of the civil servants to misuse the loophole in the system.

Similarly, the new Civil Service Act also stays mum over whether the family members of civil servants can hold any kind of PR, DV or foreign citizenship. Further, these two issues, which were initially incorporated in the draft proposal of the Civil Service Act, courted much controversy during Cabinet meetings. It is now the parliament’s job to take up these issues and make a final decision. However, the nation is upbeat about the swift passage of the act which has generated a lot of debate and attention across national public spheres.

Also, there is a need to find the logical reasoning on which these provisions were proposed. The prohibition on civil servants acquiring Diversity Visas must be based on the interest of the nation rather than a feeling of jealousy towards the appointed individuals. Also, whilst it is understandable to create such provisions for civil servants in a decision making high ranking capacity in the interest of the nation, it is equally difficult to ignore the aspirations of the servants lower in the bureaucracy hierarchy to seek a more prosperous life abroad. In essence, these provisions need to address all the different levels of civil servants equally.

Further, judging from the lenient approach regarding work and nationality prevalent in Europe, the need for Nepal to identify the balance between national interest and individual rights is ever more pressing. Also, experts have advocated against the provisions for barring civil servants from venturing out of the service, i.e. juggling two jobs. According to them, if the civil servants have an opportunity to showcase their particular skills in any given sector, provided they oblige with the necessary procedure and get the prior consent from the administrative division, then they should be allowed to demonstrate their abilities and assist the development of the state.

Moreover, there is a need for a systematized reporting system within the civil service departments to allow for the civil servants to venture out of bureaucracy provided they get the required approval and consent to providing meaningful reports of their endeavors. This will be mutually beneficial to the growth of the civil employee as well as the state as a whole.

Furthermore, it is beneficial for the specialists to hold specialized positions within the civil service departments to enhance the efficiency of the sector. Meritocracy is compromised in Nepal due to the high politicization of the civil service sector. Experts have been highly critical of the lack of transparency prevalent in the sector. When it comes to a decisive position within the civil service structure, there should be specialized manpower, as proposed in the draft bill, in order to carry out his/her duties and responsibilities with due diligence.

Moreover, acknowledging the nominal salary provided to a civil servant, it seems justifiable for allowing workers to seek outside work in order to enhance their career as well as fulfill their economic needs. However, the growing prevalence of civil servants to abuse the leniency provided to them to work outside of the service should be monitored adequately. In essence, there is a need to balance between the genuine servants who strive to work outside of the civil service sphere in order to expand their horizons and provide a meaningful contribution to society through their expertise and those who are looking to abuse this discretion provided to them.

There is a need to strengthening the position of Judicial Council as an independent body entrusted with nomination of judges to the various courts.

It is my opinion that Judicial Council must be transparent in its functioning so as to instill faith in judges and independence of judiciary system.

The Bill fails to lay down a mechanism or procedure to instill transparency in appointment of the Judges. Further, the Bill must prescribe tenure after which a judge must be permanently reappointed. The appointment of judges is being done from a very limited pool of people which cannot guarantee best judicial appointment. The pool of candidates for appointment of judge to various courts should be widened to include practicing advocates, competent in-house counsels and professors of law.

The existing provision on appointment of judges to the Supreme Court and Appellate Court is too rigid and needs some relaxation. The criteria enumerated for appointment of judges will most likeliness eliminate best legal minds from judicial systems. Reasonable representation from Bar and the government attorneys must be incorporated to maintain healthy Bar and Bench relationship and also to give opportunities to the Bar and AG members to be judges of the law courts.

The female representation must be ensured in the Bench. Opportunities must be provided, first, to increase number of females in the Bar and, lastly, number of female judges in the Bench. They are unjustly excluded from the appointment process which can be rectified if the selection criteria are clearly listed and some relaxation/concession while evaluating female candidates.

 [pdfjs-viewer url=”https%3A%2F%2Fbipinadhikari.com.np%2Fwp-content%2Fuploads%2F2020%2F03%2FCitizenship.pdf” viewer_width=100% viewer_height=1360px fullscreen=true download=true print=true]

[pdfjs-viewer url=”https%3A%2F%2Fbipinadhikari.com.np%2Fwp-content%2Fuploads%2F2020%2F03%2FTRC.pdf” viewer_width=100% viewer_height=1360px fullscreen=true download=true print=true]

[pdf-embedder url=”https://bipinadhikari.com.np/wp-content/uploads/2020/01/Sanjay-Upadhyay.pdf” title=”Sanjay Upadhyay”]