Category: Quotes

The Annapurna Express honored 100 distinguished individuals for their contributions to Nepali society at a special function titled ‘Saluté’ in Kathmandu on May 23.

The event also marked the conclusion of ‘My Vision for Nepal’, an ApEx special series that brought together 50 eminent personalities from various fields to share their visions for the country. It was also the start of ‘ApEx Pioneers’, a new series that tells the stories of 50 Nepalis who have done pioneering works in their respective fields.

The individuals featured in ‘My Vision for Nepal’ were honored with medals while those in the ‘ApEx Pioneers’ were honored with tokens of love.

A coffee-table book ‘My Vision for Nepal’ was also unveiled on the occasion.

Addressing the function, Kalyan Shrestha, chief guest and former chief justice, congratulated and thanked all the visionaries and pioneers. He emphasized the need of driven individuals who dare question things and are determined to change what is not working.

”We need to build a society that is ready to question [the authority], only then can we develop as a country,” he said.

Representing the visionaries, Anuradha Koirala, prominent anti-women trafficking campaigner and social worker, expressed her commitment to continuously work to materialize her vision—’zero trafficking of women and children’.

On behalf of the ‘ApEx Pioneers’, Madan Rai, Nepal’s first seed and agricultural equipment expert, said “we have to live up to the faith that has been bestowed upon us–no matter how big the challenges.”

Capt. Rameshwar Thapa, chairman of Annapurna Media Network, said that since its establishment, AMN has always tried to find solutions to the problems plaguing the country.

“There is a need for a network of eminent persons, like the ones we have in our midst today, who can contribute to nation building,” he said.

Sachan Thapa, AMN director, said ApEx had become a “reliable source of news and views and reflected the diversity of the Nepali society.”

Sanat Neupane, AMN Group CEO, saluted the visionaries and pioneers. “Today, we present to you our undying respect disguised as medals and tokens of love,” he said.

On the occasion, Biswas Baral, editor-in-chief of The Annapurna Express, said ApEx would continue to push for social transformation through responsible journalism.

My Vision for Nepal
Aayushi KC, Abhaya Subba, Ambica Shrestha, Ani Choying Drolma, Anuradha Koirala, Bimala BK, Bonita Sharma, Dr Lhamo Y Sherpa, Greta Rana, Hima Bista
Mira Rai, Mohna Ansari, Nikita Acharya, Nilam Poudel, Onsari Gharti Magar, Roja Kiran Basukala, Rubina Chhetri, Sabitra Bhandari, Sama Thapa, Sampada Malla,
Shanta Nepali, Shrinkhala Khatiwada, Sushma Rajbhandari, Tista Prasai Joshi, Amar Neupane, Anil Shah, Bipin Adhikari, Birendra Basnet, Biswo Poudel,
Capt. Rameshwar Thapa, CK Lal, Dr Anup Bastola, Dr Bagawan Koirala, Dr Sanduk Ruit, Hari Sharma, Jagannath Lamichhane, Juju Kaji Maharjan, Khagendra Lamichhane, Min Bahadur Bham, Nikhil Uprety, Nischal Basnet, Nischal Nath Pandey, Pradip Pariyar, Pramod Dhakal, Ram Sharan Mahat, Sixit Bhatta, Sujeev Shakya, Swami Anand Arun, Vijay Lama, 

ApEx Pioneers

Ashesh Malla, Baburam Bhattarai, Baikuntha Manandhar, Bal Krishna Joshi, Basant Raj Mishra, Bhairab Risal, Bharat Pokharel, Binod Chaudhary, Buddhi Narayan Shrestha, Capt. Siddhartha Gurung, Devendra Raj Pandey, Dr Bhagawan Koirala, Dr Kumud Dhital, Dr Ram Kantha Makaju, Dr Sanduk Ruit, Durga Baral, Gagan Pradhan, Ghanashyam Gurung, Harry Bhandari, Himalaya Shumsher JBR, Kanchha Sherpa, Kiran Manandhar, Kulman Ghising, Madan Rai, Mahabir Pun, Mahesh Acharya, Min Bahadur Gurung, Mukesh Chalise, Neer Shah, Pawan Golyan, Rabindra Puri, Ram Dayal Rakesh, Ram Kumar Panday, Ramesh Sherpa
RP Pradhan, Shyam Goenka, Suresh Raj Sharma, Tulsi Ghimire, Uday Raj Khanal,
Upendra Mahato, Uttam Sanjel, Anupama Khunjeli, Anuradha Koirala, 
Bhinda Swari Shah, Bhuwan Chand, Bishnu Maya Pariyar, Jhamak Ghimire,
Mallika Shakya, Manjushree Thapa, and Usha Nepal

There are laws but the election body lacks resources—human and financial—to crack down on wrongdoers.

On Tuesday, the Election Commission decided to seek clarifications from the Communist Party of Nepal (Maoist Centre) chair Pushpa Kamal Dahal and Nepali Congress Central Working Committee member Arzu Rana Deuba. The action by the commission is the latest since the code of conduct for the Friday local elections came into effect.

As of Wednesday, the commission has sought clarifications from 61 parties, individuals and office bearers.

“We have warned 12 of them as of Wednesday afternoon telling them not to commit the same mistakes again,” said Yagya Bhattarai, chief of the legal department of the Election Commission. “Warning them not to repeat such mistakes is the sternest action so far by the commission.”

Dahal and Rana were asked to furnish their clarifications for their statements, which a complainant claimed amounted to threatening voters. But in all likelihood, the commission will “warn” them not to repeat such “mistakes” and let them go off the hook.

That the Election Commission is largely toothless when it comes to taking action against those who violate the code of conduct has become apparent from the past also. The commission’s action has been limited to seeking clarification and issuing warnings.

“The Election Commission is the last hope for democracy as other constitutional bodies have been attacked and therefore it needs to be strengthened so that it can monitor political parties properly,” said Bipin Adhikari, a constitutional expert who is studying ways to make the election body strong enough to punish political parties that violate the code of conduct. “The election body alone cannot accomplish all the monitoring and research given the resources it has. It needs to outsource and mobilise civil society as well.”

Even after the silent period started at midnight on Tuesday, UML deputy general secretary Prithvi Subba Gurung posted a video on his Facebook appealing to people to vote for his party.

Adhikari, who is also a former dean of the Kathmandu University School of Law, said the Election Commission has made substantial progress in controlling wall paintings, and use of campaign materials like large banners and brochures, but the major concern is that the campaign spending has not gone down.

“The election body also has the responsibility to discipline and democratise political parties but they have been showing compliance only on paper,” Adhikari told the Post. “I don’t think the Election Commission can bring the parties to line with its existing institutional capacity.”

One of the major roles of the commission is to control overspending by candidates. The commission has set expenditure ceilings for candidates contesting for different posts. However, various reports and studies have suggested that most of the candidates never stick to the prescribed ceiling and spend much more, an offence that deserves punishment.

As per Section 26 (1) of the Election Commission Act-2017, the poll body can slap a candidate with a fine equivalent to the amount spent by the candidate or the maximum spending limit set by the commission, whichever is more, in case a candidate overspends or he or she fails to submit expenditure details on time. In case the candidate fails to pay the fine, he or she will not be able to contest elections for six years and if the overspender wins the election, his or her election is automatically invalidated, as per Section 26 (3 and 5) of the Election Commission Act-2017.

Commission officials say for them to initiate action against overspenders, they need complaints and evidence. While submitting their spending reports, most candidates, however, make sure the figures mention their expenditure details within the set limit.

According to Adhikari, the commission needs a strong monitoring mechanism and it must bring those who provide prevaricated details of their expenditures to book.

Many in Nepal believe the commission, which is a constitutionally mandated independent body, has been compromised because of its politicisation. Commissioners are appointed through deals among political parties.

According to analysts and observers, when commissioners are handpicked by parties, chances of action against politicians for their shenanigans diminish.

According to Neil Kantha Uprety, former chief election commissioner, there are two reasons behind the election body failing to take action—first temptation and the second fear—although the commission has powers to do so.

The willpower of the officials in the Election Commission to take risk will also matter when it comes to taking action against the political actors as they can even suspend candidates and strip them of elected positions, according to former election commissioners.

That Nepal’s Election Commission is weaker than similar bodies in other democratic countries is also evident from the fact that its status has been constitutionally made lower than the executive.

The poll body in Nepal does not announce election dates, unlike in other democracies. It is the government that announces the dates in “consultation” with the Election Commission as per Section 3(1) of the Election Commission Act 2017.

Some observers say the election code of conduct itself is vague and there should be distinction between morally binding and legally binding issues so that an election tribunal could be formed to take action against those who violate legally binding codes.

“Since the commission has to work closely with politicians, this lessens the capacity of the commission to take action against them and therefore political actors should be made accountable for their actions,” said a chief election commissioner, asking not to be named. “We cannot resolve these problems with the existing mindset we have now.”

According to him, there is a huge gap between the expectations from the commission and its capacity as there are thousands of cases of code violations.

Some commission officials say that the problem is with necessary resources for monitoring and investigations and not the laws.

According to them, the constitutional body depends on the government for its financial and human resources so that there will be some kind of attachment and that could impede the commission from taking necessary action against those in power.

“If there is a certain mechanism to manage necessary resources including human resources, it could be easier for the commission to take action against violator parties and politicians,” said Bhattarai, the chief of the legal department of the Election Commission. “We have legal provisions to slap punishments but it’s very difficult to verify and ascertain the complaints against leaders and parties.”

According to Bhattarai, gathering facts and evidence is very difficult for the Election Commission which needs lots of resources and professionals, including a team of experts. He said the Election Commission is preparing an umbrella law so that all the election-related provisions can be streamlined.

Some observers say that just enforcing stringent laws against political parties and their leaders may not necessarily yield desired results.

“We need to motivate the parties and their leaders to understand the spirit of the elections,” said Surya Prasad Shrestha, former chief election commissioner and now an election observer. “We cannot discard the leaders as they are the guards of democracy. So, we all, including the media, should continue questioning them and demoralise those who violate the election codes.”

Chief Election Commissioner Dinesh Thapaliya said he would answer all the queries related to non-action against the code violators only after the polls as he was very busy managing the polls.

“I will explain to you in detail how the commission could be empowered… once the polls are over,” said Thapaliya.

Election Commission says move aimed at creating a level playing field. Opponents call it an unwarranted move.

The Election Commission’s code of conduct, published in the Nepal Gazette on Thursday, making it mandatory that local representatives must resign before filing nominations, if they wish to contest, has attracted controversy, with the CPN-UML in particular taking umbrage at it.

Some political leaders and local representatives have objected to the provision, arguing that it would create a vacuum in the local governments and affect service delivery.

Local elections have been declared for May 13 and the Election Commission on Friday set the nomination filing dates for April 24 and 25. If the elected representatives wish to contest again, they must resign before filing nominations. As per the laws, their terms end on May 19.

The Election Commission’s move is aimed at ensuring fair polls, as it believes those holding office could influence the elections.

Bishnu Rimal, deputy general secretary of the UML, on Friday wrote on Twitter that “the prime minister does need to vacate his post to contest elections. Why should the “prime minister” of local federal units—or chairpersons or mayors—vacate their posts, affecting service delivery?”

“It would be better to think about measures on how elected representatives could be prevented from abusing their power. How appropriate is it to stop the work [of local governments] in the name of [preventing such abuse of power]?” Rimal wrote.

Local representatives have also taken exception to the provision.

Bhim Prasad Dhungana, mayor of Nilkantha Municipality, Dhading, who is also the general secretary of Municipal Association of Nepal, said that a delegation of the association had urged the commission two weeks ago not to bring such a provision as it would affect service delivery.

“For certain services, signatures of the chief of the municipality are a must. For example, people with chronic health issues can get government services based on the recommendation of the local government chief,” he said.

Nepal is holding local elections for the second time after the promulgation of the constitution. Ambiguities in laws and constitutional provisions had created much confusion before the poll date was announced.

Debates had raged over the terms of the representatives elected by the 2017 vote. Since last elections were held in three phases, those elected from second and third phases had argued that holding polls on May 13 would deprive them of their right to complete their full five-year term.

The poll date of May 13 was fixed citing Section 3 of the Local Level Elections Act-2017, which says the election of local body representatives (members of the village and municipal assemblies) should be held at least two months before the expiry of the assemblies’ terms.

The commission had argued that the provision was made to ensure that there would be no political vacuum at the local level. The code of conduct, however, contradicts the commission’s own argument.

Going by the commission’s code of conduct, asking local representatives to resign could create a vacuum in those local units from where the representatives wish to contest polls.

Officials at the commission insisted that the provision was necessary to ensure fair elections.

Election Commissioner Ram Prasad Bhandari said the provision was made to ensure that elected representatives do not make any effort to win elections by misusing public resources.

“For example, if a representative senses defeat, he or she may try to implement long-delayed projects to influence elections,” he said.

On UML leader Rimal’s comment as to why the prime minister can contest elections without resigning and chiefs of local governments, who he said are like prime ministers of the local unit, cannot, commission officials said the provision was in line with the current constitutional and legal provisions.

Guru Prasad Wagle, deputy attorney general at the commission, argues that the constitution does not consider the political position to be filled by election or nomination as the ‘office of profit’ in the case of federal and provincial lawmakers.

“No such provision has been made in the case of elected local officials,” he said. “We have made the provision as per the Local Level Elections Act-2017.”

As per Section 13 (D) of the Local Level Elections Act-2017, anybody who gets remuneration from local governments or the entities under its control or ownership or entities that receive grants from local governments is unqualified to contest elections.

Though Articles 222 (6) and 223 (6) of the constitution define qualification of the candidate for the office of the member of the village assembly and municipal assembly, respectively, they do not state whether the position of local elected representatives is “office of profit”.

Articles 87 (1E) and 178 (1F) of the constitution say anyone not holding any “office of profit” is eligible to become a member of the federal parliament or provincial assemblies.

“Office of profit means any position, other than a political position, which is to be filled by election or nomination, for which a remuneration or economic benefit is paid out of a government fund,” says the constitution.

The House of Representatives is practically dissolved with the announcement of elections to the lower house to ensure that incumbent members do not participate in the election wielding the power of lawmakers. There is no provision in the constitution about dissolving the local assemblies.

Election officials say the code of conduct has been brought with the sole intention to ensure the level playing field for all the contestants and that it would be unfair to portray it in negative light.

“The commission’s intention may be right, as it aims to stop misuse of resources by the people in power. But since many representatives might be running for the second term, their mass resignation could affect service delivery,” said Bhoj Raj Pokharel, a former chief election commissioner.

“The spirit of our constitution is there should be a continuum of elected representatives at the local level. If all elected members resign to contest elections, questions will arise over local governments’ service delivery. Even constitutional issues could emerge.”

But commission officials believe not all elected representatives will be contesting the upcoming polls.

“As per the Local Level Operation Act-2017, those not contesting elections can run the local governments,” said Commissioner Bhandari.

Section 16 (4A) of the Local Level Operation Act says chairperson or mayor can hand over their responsibility to their deputies and if the deputies also remain absent, to any other officer bearer of the local government, in the case they have to remain absent for more than seven days.

Section 18 of the Act says local executives can delegate specific authority to the chief, deputy chief, ward member or any committee or even chief administrative officer.

Bipin Adhikari, former dean of the Kathmandu University School of Law, said the elected representatives who don’t contest the elections could run the local governments until new ones assume office.

“It won’t make any big difference even if elected representatives contest elections without resigning if the election body is strong enough to stop potential misuse of power by them,” said Adhikari. “But it’s better to have some clear legal provisions to avoid such confusion.”

Constitution sets five-year term but does not say when date starts. Experts differ, some saying polling day, others insisting date when Parliament first met as the beginning.

When Nepal goes to polls later this year to elect a new parliament, this will mark the first timely and periodic elections since the restoration of democracy in 1990.

The country last held elections for the House of Representatives on November 26 and December 7 in 2017.

After local elections on May 13, the government, in consultation with the Election Commission, will announce the date(s) for parliamentary elections. There, however, is confusion over the process, especially with regard to when the current House will cease to exist.

Experts and officials offer differing views

Constitutional experts including Bhimarjun Acharya and Bipin Adhikari say the House’s life should be counted from the date the first phase of elections was held five years ago. In that case, the members of parliament complete their five years on November 25.

“Since the people gave their mandate on the date they cast their votes, Parliament’s tenure should be counted from that very day,” said Adhikari, a professor and former dean of Kathmandu University School of Law.

According to Adhikari, Nepal’s Parliament is actually for the first time completing its full five-year term since the first general elections held in 1959.

“The first elected Parliament was dissolved in 18 months, which marked the beginning of the partyless Panchayat era. No parliament after 1990 has functioned full term,” said Adhikari.

But officials at the Parliament Secretariat wonder whether to count the tenure of the House from the polling date (November 26, 2017) or the first meeting of Parliament.

The first meeting of the House was convened on March 5, 2018. By that extension, it completes its five years on March 4, 2023.

No one could offer a concrete answer as to when the new parliament should be in place—by November 25 this year or March 4 next year.

Some even provided three other different dates for the start of the term of the current Parliament. According to them, it could be counted from the day the Election Commission submitted its report on the elected Members of Parliament to the President or the day the lawmakers took oath of office or the day when the prime minister took his oath of office.

“Actually this is a matter of discussion, as no one knows from which date the Parliament’s term should be counted,” said Rojnath Pande, spokesperson for the Parliament Secretariat. “In my opinion, the date when the election body sent the poll results to the President should be taken into consideration.”

Then chief election commissioner Ayodhee Prasad Yadav presented the poll results to the President on February 14, 2018. CPN-UML chair KP Sharma Oli took the oath as prime minister on February 15, 2018. Oli had not even taken the oath as a Member of Parliament when he was sworn in as prime minister, as newly elected lawmakers were administered the oath only on March 5, 2018 at the first meeting of the House.

According to Pande, if the date of first meeting was to be considered, the prime minister had taken the oath of office and secrecy weeks before the first meeting held on March 5 and many of the lawmakers were not present at the oath-taking ceremony.

“It’s more of a political issue,” said Pande. “I think the Cabinet can take a decision on which date the current Parliament’s term should be counted from.”

According to him, political parties will support the government’s decision if that suits their interests, or else they will protest.

Constitutional expert Acharya, however, said such issues are governed by the custom, practice and tradition rather than legal and constitutional provisions.

“There is a practice to take the election date [first phase] as the day from when the Parliament’s term begins,” said Acharya.

The question, however, is whether the current Parliament will remain in place when the country goes to polls to elect a new one. If not, then some wonder whether it needs to be dissolved or whether it is considered automatically dissolved once the elections are announced.

Some constitutional experts argue if the elections are held prior to the House completing five years, it must be dissolved. According to them, the lawmakers must vacate their positions before the elections.

“Elections can be held only when the lawmakers’ positions are vacant,” Purna Man Shakya, a professor at Nepal Law Campus, told the Post. “It is therefore necessary to dissolve the House if the elections are held before the five-year tenure is completed.”

Shakya, who is also a senior advocate, said the British parliament is dissolved if the elections are held before it completes its tenure. In India, which follows the Westminster model, the government dissolves Lok Sabha (lower house) if elections are held before it completes five years.

In India, there is a constitutional provision [Article 83 (2)] that says unless sooner dissolved, the House of the People or Lok Sabha shall continue for five years from the date appointed for its first meeting and no longer and the expiration of the said period of five years shall operate as dissolution of the House. Since the first meeting of the 16th Lok Sabha was held on June 4, 2014, when members were administered oath, the term of that Lok Sabha was to expire on June 3, 2019. It, however, was dissolved by the Narendra Modi Cabinet on May 24, 2019 because he was set to take the oath as prime minister again after his party won the elections held from April 11 to May 19. Modi was sworn in as India’s prime minister for a second term on May 30, 2019.

In the United Kingdom, the general election is guided by the Fixed-term Parliaments Act 2011. The Act provides that Parliament is dissolved automatically after five years. Parliament is dissolved automatically 25 working days before a general election. Unless a general election is triggered outside of the five-year period, as per the Fixed-term Parliaments Act, the next date of the general election is at five-year interval on the first Thursday of May.

In Nepal, however, to ascertain the expiry of the current Parliament, there needs to be clarity on when exactly it came into being.

Article 85 on the term of House of Representatives says: “Unless dissolved earlier pursuant to this constitution, the term of the House of Representatives shall be five years.” It, however, doesn’t say which date to take as the beginning of its term.

Om Prakash Aryal, an advocate with expertise on constitutional matters, says the day Parliament held its first meeting should mark the start of its tenure.

“If the lawmakers wish to contest the polls again they should resign after their nomination,” said Aryal. “This House cannot be dissolved and the Deuba-led government has no authority to dissolve it.”

In a democracy, periodic elections make a fundamental contribution to governance, and they are held in such a way that there is no vacuum.

According to election officials, so as to ensure continuity and avoid a vacuum, elections for new Parliament should be held just before its term expires, and once the election date is announced, the existing Parliament, ipso facto, does not exist.

“Only Speaker and deputy Speaker retain their positions once elections are announced, and if they wish to contest, they need to resign,” said an election official.

Chandra Kanta Gyawali, an expert on constitutional affairs, said there is no need for confusion as it is obvious that the House’s term starts on the date it holds its first meeting.

“The first meeting of the current lower house was held on March 5, 2018 when lawmakers took oath, so its term starts from that day,” Gyawali told the Post.

Chief Election Commissioner Dinesh Thapaliya said there is no uniformity in laws, the constitution and the practice to decide the date when this House of Representatives actually started.

“The Election Commission has not formed any opinion on this but in my view, we can consider any of the three dates as the beginning of the term of this Parliament,” said Thapaliya. “It could be either the day when the first phase of election was held (November 26, 2017) or when the commission presented the poll reports to the President (February 14, 2018) or when the first meeting of the Parliament was held and lawmakers took oath (March 5, 2018).”

According to him, the House of Representatives should take a decision since this is a constitutional and legal issue.

“If this matter is resolved now, there won’t be any confusion next time,” said Thapaliya. “If political parties agree, the Cabinet can also resolve it.”

[Binod Ghimire contributed reporting]

Experts say cases on which temporary orders have been issued must be cleared swiftly by conducting the final hearing.

On June 6, 2019 the then KP Sharma Oli government decided to merge Sagarnath Forest Development Project with the Timber Corporation of Nepal. The government of Madhes Province, earlier Province 2, challenged the decision at the Supreme Court, arguing that the federal government had breached the constitutional jurisdiction of the province.

The provincial government said the federal government had no authority to take any decision on the forest project as it came under its jurisdiction. The Constitutional Bench of the court on August 30 that year issued an interlocutory interim order against the federal government, asking it not to implement the decision. Again on December 11 that year, it issued an interim order, continuing the earlier order.

Even more than two and a half years after the first order, the Supreme Court, however, has not passed its final verdict.

It was the first petition by any provincial government against the federal government, challenging the latter’s decision.

“The Madhes Province hasn’t been able to use the forest as the final verdict is yet to come,” Gyanendra Yadav, a former minister for internal affairs and law of the Madhes Province, told the Post. “The provincial government is yet to get the full authority to utilise the resources from the forest. It cannot take any decision regarding the forest without the consent of the federal government.”

The petition, which is crucial to settle the jurisdiction row between the federal and provincial governments, has failed to get priority at the Supreme Court.

In yet another incident, on June 29, 2018, the Oli government announced Maitighar Mandala as a no-protest zone from July 15 onwards. Senior advocate Dinesh Tripathi challenged the decision in the Supreme Court which on July 6 that year asked the government not to implement its decision to ban peaceful protests at public places, including Maitighar Mandala. It gave continuity to its interim order on July 13.

It’s close to four years, but the court has yet to pass the final verdict.

“Though the court intervention was good, as it stopped the government then from implementing its decision, it is wrong that the final verdict has not been issued yet,” Tripathi told the Post. “It didn’t need the Constitutional Bench or the full bench to decide on the matter.”

Had the Supreme Court passed the final verdict on his petition, it could have set a precedent so that no governments could take decisions against peaceful protests, according to Tripathi.

Tripathi said there are dozens of cases on which the final verdicts have not been passed despite the issuance of interim orders.

“At least half a dozen petitions that I have filed are awaiting final verdicts for the last two years,” Tripathi told the Post.

An interim order is a provisional or temporary order that is put into effect pending a final hearing and judgment. Interim orders are usually issued to maintain the status quo—asking parties to continue or halt an action—until the final decision is reached.

Legal experts say though there is no timeframe as to when the court should issue final verdicts on cases for which interim orders have been issued, it is not a good practice to keep the cases pending for years.

“An interim order by its name is a short-term order which shouldn’t be continued for years,” said Raju Prasad Chapagain, a former chairperson of the Constitutional Lawyers’ Forum. “The court must be sensitive about such issues.”

Rule 49 of the Supreme Court Regulations says the interim order is issued whenever there is a possibility that the petitioner might face severe loss until the final verdict or it is necessary to stop an attack on the fundamental right (of somebody).

Officials at the Supreme Court say there is no deadline on final hearings in the cases in which interim orders have been issued.

“The cases are prioritised based on urgency. We are aware that the very purpose of having the court will be defeated if justice is delayed,” Bimal Poudel, a spokesperson at the court, told the Post.

Yadav, the former minister from Madhes, however, doesn’t buy the argument, saying the conflict over the jurisdiction between different tiers of government must be a priority.

“It seems the tenure of the provincial government will be over before the verdict is given,” he said.

The rate of passing the verdicts by the court is not encouraging.

According to the annual report of the court from fiscal year 2019-20, as many as 35,981 cases were in the Supreme Court in the year including 24,180 from the previous year. The court could clear only 31.2o percent cases leaving a baggage of 24,756 cases for the following year. As many as 2,058—around nine percent of the cases—are more than five years old. The case clearance rate in the Constitutional Bench, like the one filed by Madhes Province, is even low with just 25 percent of the petitions finalised in the fiscal year 2019-20.

“The Supreme Court must set a timeline. The cases in which the interim orders have been issued must be a priority,” said Chapagain.

Experts say while prioritizing cases for final hearing, the court should also pay attention to the kind of cases. In cases of public interest litigations, like the one Tripathi filed against the decision to restrict protests in Maitighar, an interim order has worked fine. But, according to experts, in cases like the one filed by Madhes Province against the federal government, the provincial government is facing problems because the court has not passed the final verdict.

Bipin Adhikari, a professor and a former dean at Kathmandu University School of Law, said it is unfair to keep the cases on hold for years after issuing an interim order.

“As interim orders are generally issued without listening to the defendants, it is wrong to keep the cases on hold for years,” said Adhikari. “There has to be reasonable timing to start the final hearings in the cases where interim orders have been issued.”

Experts say failure to impeach Rana for ‘corruption and incompetence’ sets bad precedent.

By lingering the impeachment process against Chief Justice Cholendra Shumsher Rana, the ruling coalition has created an unprecedented situation where the head of the judiciary may get stuck in a state of limbo, which experts say could pose serious moral questions to the ruling parties.

A little over a month after 98 lawmakers from the Nepali Congress, Communist Party of Nepal (Maoist Centre) and the CPN (Unified Socialist) filed the impeachment motion against Rana, the government on Tuesday decided to prorogue the 10th session of the House of Representatives. The motion was registered in Parliament on February 13.

But just a day ahead of the deliberations on the impeachment motion, the House session ended. As the budget session needs to begin at least a month prior to the budget speech on May 29, as stipulated by the constitution, the 11th session could start, most probably, by April 29. As the focus of the next session will be on the government’s policies and programmes and the national budget, it is unlikely that the impeachment motion against Rana will be a priority.

Experts say like any other individual, Rana also deserves the right to speedy justice.

“The Parliament cannot linger the impeachment motion without taking any decision,” Bipin Adhikari, a professor and a former dean at the Kathmandu University School of Law, told the Post. “Parties are doing injustice to the chief justice.”

Rana has been a controversial figure, with a litany of charges directed at him.

Even before the impeachment motion was filed, with as many as 21 allegations levelled against him, Rana had faced the ire of all 19 justices of the Supreme Court who had refused to share a bench with him. Lawyers had called him out as corrupt and incompetent.

Observers, however, say just as every charge against any individual must be proved in the court of law, accusations against Rana also need to be established in Parliament and lawmakers must impeach him if they consider the charges are genuine. The burden of proof lies on those who moved the motion, not on Rana, according to them.

That Rana was involved in “bench shopping”, a term used to describe assigning cases to particular judges and using some justices and judges and middlemen to commit corruption, is among some of the charges that have been reported by the media and made by the lawmakers. Rana also faced criticism for not taking measures to reform the judiciary. He was accused of demanding a share in the Cabinet by asking for the appointment of one of his relatives as a minister.

According to experts, Rana may be corrupt, incompetent and a blot on Nepal’s judiciary, but if the impeachment motion is not taken to a logical conclusion, parties that brought the charges are answerable.

“Indecision on the impeachment motion would mean the ruling parties used it as a tool to get rid of a justice whom they didn’t like. This is a height of abuse of power,” said Adhikari. “This could set a dangerous precedent as any party with 25 percent strength in the House can register an impeachment against a justice it doesn’t like.”

The impeachment motion was filed as per Article 101 (2) of the constitution which says one fourth of the members of Parliament can register an impeachment motion against any official holding a constitutional position for failing to perform duty effectively or working against the constitution or seriously violating their code of conduct.

Those who have followed the developments since the impeachment motion was filed, say the way the House was prorogued hours before it was scheduled to discuss the proposal indicates some ulterior motive.

Given the technicalities, chances of Rana retiring before the impeachment motion is put to a vote are high.

Rana’s tenure is until December this year. He remains suspended since February 13, the day the motion to impeach him was registered in Parliament.

Rule 161 (2) of the Regulations of the House of Representatives allows the Speaker to present the motion for discussion in the House seven days from the date of its registration. If the ruling parties which registered the motion actually wanted to act on the motion, it could have been tabled on February 20 and the Impeachment Recommendation Committee could have been formed the same day.

The parties, however, waited for two more weeks until March 6 to form the committee and another one week to table the motion on Sunday.

As per the regulations, the recommendation committee can get three months to study the allegations against Rana and submit a report before the House. Discussions on the report then start and any member of Parliament can register an amendment. The House can also direct the recommendation committee for further study allowing two more weeks.

As per Rule 166 of the regulations, the report of the recommendation committee will then be put to a vote. If it gets endorsed by a two-third majority of the existing members of the lower house s/he will be relieved from her/his office. The entire process can take four months.

“From the turn of events, it is clear that the impeachment motion was a perfunctory move by the ruling parties. The motion was never registered with the real intention to impeach Rana,” Balaram KC, a former Supreme Court justice, told the Post. “This is nothing but an irresponsible act on the part of ruling parties.”

Experts say people also need to know if Rana actually deserved to get impeached or should be given a clean chit which won’t be possible if he retires before the motion is put to a vote.

Rana was appointed chief justice on January 2, 2019, and he has his term until December 12.

Justice Deepak Kumar Karki, as a seniormost justice, is serving as acting chief justice from February 13. He has already started making crucial appointments. The indecision in the impeachment motion also means the judiciary would be in the hands of an acting chief justice for around a year. Karki will be chief justice if the motion is passed by Parliament.

Leaving the judiciary in the hands of an acting chief will only decrease its credibility, according to KC, the former Supreme Court justice.

“The delay in deciding the impeachment motion means Rana will retire as chief justice even if he deserved to be impeached,” said KC. “That means he will continue to get the state benefits accorded to retired chief justices.”

Impeachment proposal against Cholendra Shumsher Rana, registered on February 13, is in Parliament. With no session now, it is in a state of limbo.

The meeting of the House of Representatives scheduled for Wednesday was supposed to hold deliberations on the impeachment motion against Chief Justice Cholendra Shumsher Rana. Officials at the Parliament Secretariat had said that the motion would be forwarded to the 11-member Impeachment Recommendation Committee formed on March 6 to study the allegations against Rana.

In the motion, the ruling party lawmakers have made 21 allegations against Rana in an attempt to justify why he should be impeached.

However, hours before the House was set to start deliberations on the motion, the Sher Bahadur Deuba government on Tuesday decided to prorogue the ongoing session of Parliament.

With the 10th session of the House coming to an end from Tuesday midnight, uncertainty looms as to when a decision on the impeachment motion, which was registered a month ago, will be taken.

Rana remains suspended since February 13, the day the motion was registered in Parliament.

Experts on constitutional affairs say the decision to prorogue the House is an irresponsible move by the government. They claim that prorogation could have been stopped until the motion was forwarded to the impeachment recommendation committee.

“This is injustice to Rana. Parliament should have concluded the impeachment motion against him by this session. But it has been deferred intentionally,” said Bipin Adhikari, a professor and former dean of the Kathmandu University School of Law. “At least the government could have waited until it was sent to the impeachment recommendation committee. This is an irresponsible act.”

The impeachment recommendation committee gets three months to study the allegations against Rana which can be increased by 15 more days if needed.

If the House was prorogued after sending it to the recommendation committee, it could have at least got a chance to study the allegations, experts say.

As the House is now prorogued, the next session will first hold deliberations before sending it to the recommendation panel. This means the decision on the motion has been delayed at least by over a month.

“Since the impeachment motion has already been tabled in the House and an 11-member recommendation panel has also been formed, a course has started. It will continue in the next session,” said Law Minister Dilendra Badu.

The impeachment motion against Rana was tabled in the lower house on Sunday.

As the budget session needs to begin at least a month prior to bringing the budget on May 29, as stipulated by the constitution, the 11th session could start, most probably, by April 29. Therefore the motion will be delayed by at least one and a half months.

“Discussions on the impeachment motion will continue in the budget session of Parliament,” said Dev Gurung, chief whip of the CPN (Maoist Centre), who is also one of the three proposers of the impeachment motion against Rana. “The House was prorogued as there was not much time to begin the budget session.”

But CPN-UML leaders have said that what they have been saying on impeachment motion turned true as the House was prorogued without sending it to the recommendation panel.

“Prorogation of the House without sending the impeachment motion to the recommendation panel means the ruling coalition has no interest to conclude it,” said Subas Nembang, deputy leader of the UML Parliamentary Party. “This is quite an irresponsible act on the part of the ruling parties.”

Rana was appointed chief justice on January 2, 2019, and he has his term until December 12.

According to Nembang, if the ruling parties were indeed interested in impeaching Rana, they would have waited until Wednesday for the prorogation of the House.

On February 13, amid intense debate over ratification of the $500 million American grant, 98 lawmakers of the Nepali Congress, Maoist Centre and CPN (Unified Socialist) had registered the motion against Rana.

An impeachment motion against the chief justice is allowed by the constitution.

Article 101 (2) of the Constitution of Nepal states that one-fourth of the members of Parliament can register an impeachment motion against the chief justice or a judge of the Supreme Court on the ground of his or her failure to fulfil his or her duties.

But it needs a two-thirds majority of the Parliament to endorse such a motion.

Given the current composition of the House, the UML’s support is a must to endorse the impeachment motion, as the parties that have filed the motion have just 133 votes in total. There are 271 members in the House, and to achieve a two-thirds majority, 181 votes are required to impeach Rana.

The UML has maintained that the impeachment motion against Rana was brought with ill-intention.

But according to Gurung, the Maoist chief whip, the UML has no right to blame the ruling coalition. The impeachment motion would have moved ahead if there was no House obstruction by the UML, said Gurung.

Experts say political parties have failed on multiple fronts as they are only interested in fulfilling their own interests.

“Now that the House has been prorogued, there is no meaning to tabling the impeachment motion in the House,” said Adhikari, the law professor. “It would have taken a course if the motion was forwarded to the committee to study the allegations. It is an injustice to Rana because such an important and crucial issue should not be left lingering for a long time.”

In his political dossier presented in the eighth general convention of the Communist Party of Nepal (Maoist Centre) in December, the party’s chairperson Pushpa Kamal Dahal had said the Millennium Challenge Corporation-Nepal Compact will not be endorsed without amendments to some of its provisions.

Some representatives of the convention had called for scrapping it altogether. However, the dossier was endorsed unopposed after Dahal assured that the party will not stand for the MCC-Nepal Compact as long as it contains the provisions that are against the national interest.

It was the time when Dahal was denying a statement made by Prime Minister Sher Bahadur Deuba that they had sent a letter to MCC assuring its ratification.

Just on Thursday, during a virtual orientation to leaders and cadres of Karnali Province, Dahal reiterated that the MCC-Nepal Compact will not be endorsed “in its present form.” He said that it cannot be endorsed unless there is an assurance that it doesn’t affect the national interest.

“I urge you to get focused on election activities clearing the rumours about the party’s position on MCC,” he said.

Of late, Deuba’s plan to table the compact in Parliament met with fierce opposition from Dahal. The $500 million American grant was threatening the coalition.

On Sunday, the Post and its sister paper Kantipur reported that Deuba and Dahal had sent a letter on September 29 last year seeking four-five months to build consensus among coalition partners to ratify the compact. Fatema Z Sumar, vice-president of the MCC’s Department of Compact Operations, said in an interview that MCC set a deadline of February 28 for the compact ratification as per the request from Deuba and Dahal as on that day the five-month period concludes. She said that MCC has already sent a response letter to the two leaders.

Then on Sunday itself, two letters—one sent by Deuba and Dahal and the other, MCC’s response—let the cat out of the bag.

Dahal’s subterfuge became known to all.

Observers say the Maoist leader was clearly doing a double-dealing. After weaponising the MCC compact against his then co-chair KP Sharma Oli, Dahal was pandering to his party members, while also appeasing the Americans, according to them.

“He has been trapped,” Rajendra Maharjan, a political commentator, told the Post. “Dahal—and only him—is responsible for the situation he is in now.”

According to Maharjan, the Maoist leader has an uncanny tendency to play such double games and keep even the top party leadership in the dark.

The letter Deuba and Dahal sent jointly to MCC clearly says that they will work to ratify the compact, unlike the Maoist leader’s assertions that the missive was about seeking some time for building consensus and that it did not give assurances of the compact’s ratification.

According to the letter, a copy of which the Post also has obtained, the two leaders requested additional time for the ratification of the MCC-Nepal Compact.

The September 29, 2021 letter that Deuba and Dahal jointly sent to MCC.
Deuba and Dahal have in the letter said that they would discuss the clarifications received from MCC with all the coalition partners to better inform their party members; use government resources to communicate publicly with the Nepali people and state the government’s support for implementing the compact and to dispel misunderstandings and apprehensions about the compact; hold a joint press conference with leaders of the coalition partners to demonstrate government’s positive views on the MCC compact’s ratification and disseminate accurate information about the compact through state media.

The letter nowhere talks about amendments to the MCC provisions.

The joint letter was dispatched on September 29, two months before the Maoist Centre’s general convention. But the 1,631 representatives attending the general convention were kept in the dark.

In the letter, Deuba and Dahal have also expressed their commitment to encourage the MCA-Nepal to complete technical and communication activities that will allow the compact to be implemented more quickly, and jointly request the Speaker of the House of Representatives to plan for tabling of the compact for ratification as soon as possible.

The response letter from MCC to Deuba and Dahal has in clear terms said that it expects the leaders to work in line with their commitments.

“The MCC Board noted your commitment in the September 21 letter to work to ratify the compact in four-five months from the date of the letter. The Board also acknowledged your plan to increase public awareness of the compact and actively combat disinformation about the compact,” reads the letter undersigned by Mahmoud Bah, acting chief executive officer of MCC. “MCC requests that you continue to work with parliamentarians and coalition partners to ratify the compact by the timeline indicated in your letter, no later than February 28, 2022.”

Sumar told the Post on Friday that the five-month time sought by Deuba and Dahal ends on February 28.

A response letter sent by MCC to Deuba and Dahal says: “Without action on your part by February 28, 2022, the MCC Board will discuss next steps at its March 2022 meeting, including whether to continue with the compact.”

“Absent ratification, it is within the MCC Board’s authority to discontinue Nepal’s eligibility to receive the $500 million compact grant from the United States,” reads the letter from MCC. “Such a decision would end MCC’s partnership with Nepal.”

Parliament has failed to function for the last six months due to the protests by opposition UML against the Speaker.

The next meeting of the House of Representatives is scheduled for Sunday, and the main opposition CPN-UML has vowed to continue obstructions. Sunday marks six months since the UML resorted to obstructing parliamentary proceedings since its previous session that started on September 8, as per the Nepali calendar.

Unlike in the past when the main opposition would obstruct House proceedings to protest against actions and inactions of the government of the day, the UML, however, has not much gripe about the Sher Bahadur Deuba-led government. Its decision to obstruct proceedings stems from its dissatisfaction at Speaker Agni Sapkota.

The UML has adamantly stuck to its demand that the Speaker take cognizance of the party’s decision on August 14 to expel 14 lawmakers. Those “expelled’ by the UML, however, have already formed a new party, and the Speaker has maintained that he cannot issue a notice now.

Just two government proposals—the national budget and the Millennium Challenge Corporation Nepal Compact—and four budget-related bills have been passed by the lower house in the last six months despite UML’s obstructions.

Now that the UML remains adamant on its stance, there is no certainty when the House can resume its regular meetings.

Of the five-year term of the lower house, six months have been wasted without any single debate on laws or concerns of the people who voted for the parties, and that’s quite concerning, say observers. People elect politicians to the House to ensure that their concerns would be debated. By obstructing the proceedings, the UML has undermined the electorate as well, according to observers.

Questions now have started to arise also about Nepal’s parliamentary culture.

Experts on parliamentary affairs say a responsible party must justify its every action but the UML does not have proper justification for the months-long obstruction.

“This is an anarchy by the UML. It has not just undermined the institution of representatives of the sovereign people but also made light of people’s mandate,” Daman Nath Dhungana, a former Speaker and a civil society member, told the Post. “I believe time has come to appoint an ombudsman to check such unjustified acts by any party. There has to be a law in place for the appointment of such an ombudsman who can then intervene in such situations.”

Nepal’s political parties have a history of taking the sovereign parliament hostage to fulfil their partisan interests. In the past too, the UML had obstructed the House for several days. The UML in 1995 had obstructed the lower house for 57 days, questioning the impartiality of then Speaker Ram Chandra Poudel.

It has already surpassed its earlier record. On both occasions, the UML’s vexation is at the Speaker.

While the UML, in principle, holds the right to protest in Parliament, as it said that the House belongs to the opposition, experts say continued obstructions should not be tolerated. According to experts.

Dhungana says except in Bangladesh, where the House has functioned without an opposition party, he doesn’t know any democratic country where the parliamentary activities are obstructed for months.

Experts say obstruction of the House is an arbitrary action as it paralyses the institution that has the authority to hold the government to account.

UML leaders, however, say it is within their right and their freedom of expression to air their dissent in Parliament.

“Injustice has been done to us because neither the Parliament nor the Supreme Court has addressed our concerns. The obstruction is our compulsion to build pressure,” Bishal Bhattarai, chief whip of the UML , told the Post. “Either the Parliament or the court should give a way out.”

The UML on August 14 recommended that Sapkota sack 14 of its lawmakers, including Madhav Nepal. However, Sapkota waited until they formed the CPN (Unified Socialist). He then issued a statement on August 29 saying it was not necessary to take action against them as they had already formed a new party.

UML on September 1 had challenged Sapkota’s decision not to issue a notice of expelling the lawmakers as per the party’s decision.

Experts on constitutional matters say there is nothing called absolute freedom.

Chandra Kant Gyawali, a senior advocate who specialises on constitutional law, says the regulations of the federal parliament need to be revised imposing restrictions on unlimited obstruction.

“I think a petition needs to be filed at the Supreme Court seeking its intervention against unlimited House obstruction,” Gyawali told the Post. “The court can explain that no party can obstruct the parliamentary process indefinitely. Expressing dissent cannot go to the extent of crippling an organ of the state.”

The federal parliament has 57 bills to endorse including 42 in the lower house. Bills to amend the Citizenship Act, Federal Civil Service, Federal Police Service, Federal Education and Public Service Commission are some of the crucial ones awaiting parliamentary endorsement.

The last session lasted 51 days but did not endorse a single bill, except for those related to the budget, owing to the continuous obstruction by UML lawmakers. Until now, the ongoing session that began on December 14 too has not endorsed a single bill.

Advocate Radheshyam Adhikari, who retired as a National Assembly member on Friday, says continued House obstruction is a cause for concern but since it is a political issue, it is hard to be controlled by a law.

“Yes, that doesn’t mean any party can obstruct the parliamentary proceedings indefinitely. The UML must have lifted its protest after registering its concerns in the House,” Adhikari, also an advocate, told the Post. “We have seen physical fights between lawmakers in parliaments of different countries. But that’s a day’s event; the next day or the next meeting runs smoothly. Such fist-fightings do not lead to obstructions for weeks or months like in our case.”

According to Adhikari, like every other party, the UML too sought votes from the people, saying that it would raise their concerns in the House. Continued obstruction is tantamount to betraying the people who voted for them, said Adhikari.

After six months of continued obstructions, the UML also is now finding itself in a peculiar position. Lifting the obstructions could mean retreating from its demand, and there is little likelihood of their demand getting addressed.

When the ruling coalition was struggling to find consensus on ratifying the $500 million American grant from Parliament, Prime Minister Sher Bahadur Deuba had reached out to the UML to seek its support. Leaders had said one of the conditions for the UML to support the government on the grant agreement was removal of the Speaker. But with the MCC compact ratified after an agreement among coalition partners, that option too has faded.

Constitutional lawyers say if the House cannot function because of continued obstructions by a certain party, the Speaker has every right to start proceedings using marshals after informing the Business Advisory Committee.

“Sapkota, however, doesn’t hold the moral ground to do so because he has failed in playing an impartial role,” Bipin Adhikari, a professor and former dean at Kathmandu University School of Law, told the Post. “I see two options: the prime minister should either take initiative for reconciliation or dissolve the House. There is no point continuing the House which has become completely dysfunctional.”