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Nepal: PM’s Order, and JC’s Recommendations

Nepal: PM’s Order, and JC’s Recommendations

by Siddhi B Ranjitkar
May 5, 2014

Prime Minister Sushil Koirala has been busy with meeting with the secretaries to the ministries and ordering them to run the State administration appropriately to the expeditious development and quick delivery of services to the people, and make their actions transparent posting on the respective websites. However, the question has been asked whether the top bureaucrats have been listening to the prime minister. Finance Minister Dr Ram Sharan Mahat said that he was preparing to present the budget for the next fiscal year in mid June, a month ahead of the end of the current fiscal year. The Constitutional-Political Dialogue and Consensus Committee headed by Dr Baburam Bhattarai has set up a subcommittee to study the various agreements the government reached with different political parties. The Judicial Council headed by the Chief Justice of the Supreme Court of Nepal recommended eight judges to the vacant positions of justices at the Supreme Court of Nepal provoking strong controversy. Chairman of CPN-Maoist Mohan Vaidhya warned of building a new Nepal not possibility even if a new constitution were to promulgate. The Rastriya Janamorcha Nepal (RJN) publicly accepted federalism if a new constitution were to promulgate. RJN had been strongly opposing federalism in the past.

Issuing directives to the secretaries to different ministries on Sunday, April 27, 2014, Prime Minister Sushil Koirala said that the government secretaries should put a mechanism in place to receive foreign assistance, and appropriately spend it on the priority areas of the country stopping the current unhealthy practice of receiving donors’ money. PM Koirala ordered the government officials to end the practice of spending foreign money on the activities other than the national priorities and welfare of the country. Expressing dissatisfaction with the spending of only one-third development budget by almost the end of the current fiscal year, PM Koirala directed the concerned government officials to make work schedule in a way to ensure timely spending of the development budget. The incumbent government wanted good governance marked with transparency and accountability, he said, directing secretaries to act tough in doing away with corruption and red tapes. The administration seemed to be process-focused rather than result-oriented, he said, urging secretaries to deliver result-oriented services to the public. PM Koirala also reminded the secretaries that the country would go for federal structure, so they should keep it in mind while appropriating the budget for administrative setups and physical infrastructure development. He also requested senior government officials to work on making the budget process pro-people, development-oriented, result-based, realistic, practical and historical. (Source: nepalnews.com, April 28, 2014)

Speaking at the progress review meeting of 21 projects of the national pride at the Prime Minister’s Office (PMO) on Monday, April 28, 2014, Prime Minister Sushil Koirala directed the concerned line ministries to expedite work on the projects of the national pride, and complete them as scheduled. He directed secretaries to the concerned line ministries and chiefs of the projects to work sincerely and show results. PM Koirala said that the investment climate had improved after the CA elections; so, development work needed to be expedited. PM Koirala also sought suggestions from government officials for attracting foreign investments, and for the types of benefits to offer to the investors. Giving priority to the energy sector, he underlined the need for attracting investment in the hydropower. PM Koirala also directed the ministries to maintain the quality of construction work, take guarantee of work from the contractors, and make monitoring and evaluation effective, and to keep a close watch on the quality of work done during the rainy reason. PM Koirala also directed the ministries to make necessary decisions on the construction of regional and international airports on time and resolve the compensation in dispute at the Sikta Irrigation Project. Following the target set by the government, Sikta Irrigation and Babai Irrigation Projects were supposed to complete in the current fiscal year. Sikta was started 11 years ago while Babai 26 years ago. (Source: HIMALAYAN NEWS SERVICE, thehimalayantimes.com, April 29, 2014)

Secretary to the PMO Krishna Hari Baskota made a presentation of the progress of the projects of the national pride implemented by the six ministries. The Upper Tamakoshi 456 MW was scheduled for completion within next three years, according to Secretary Baskota; detailed Project Report (DPR), feasibility study, bidding document for the Budi Gandaki 600 MW would be prepared within a year. Secretary Baskota underlined the need for permitting the Chinese contractor ‘Three Gorges Corporation’ that had shown interest in the West Seti to begin construction, and to ensure smooth flow of resources to the highway projects of the national priority. Mid Hill Highway, Kathmandu-Terai Fast Track Road, East West Electric Railway, Upper Tamakoshi Hydropower Project, Second International Airport, Melamchi Drinking Water Project, Postal Highway, Chure Bhawar Program and Lumbini Development Trust were some of the projects of the national importance. The government allocated around Rs 21 billion to the projects of the national pride in this fiscal year. Secretary to the Ministry of Physical Infrastructure and Transport Tulasi Prasad Sitaula said that the progress of Mid-Hill Highway, railway work and bridge segment of Postal Highway was ‘good’. “But, we haven’t been able to achieve desired results in Kathmandu-Terai Fast Track road and road segment of Postal Highway,” he said. (Source: HIMALAYAN NEWS SERVICE, thehimalayantimes.com, April 29, 2014)

Shortly after taking the office, Prime Minister Sushil Koirala first ordered to all government agencies to post the details of any payment of Rs 5,000 or above on their respective website at least for the next three days. Except for the National Vigilance Center (NVC) and Nepal Trust Office, none of the government agencies had posted the details of such payment on their websites until Wednesday, April 30, 2014. The order passed by the cabinet was part of the new government’s initiative to enforce concrete measures to curb the menace of widespread corruption and anomalies in the administration. In a recent meeting with the secretaries to the ministries, Prime Minister Koirala reminded the secretaries to post the details of the expenditure of the concerned ministries on their websites reiterating the government’s policy of zero tolerance of corruption. Secretaries to the ministries then vowed to enforce the government decision with immediate effect. The Prime Minister also reminded the secretaries about the cabinet decision after NVC officials briefed him the poor implementation of the decree aimed at making the civil service more transparent and fair. Meanwhile, issuing a circular NVC: the State vigilance agency once again asked all ministries and offices to enforce the cabinet decision. “We have already asked all ministries and government offices to post payment details of the concerned ministries on their websites,” secretary to the NVC Hari Prasad Nepal told ‘Republica’. Highlighting the extent to which the governmental bodies had been flouting the cabinet decision, NVC officials said that the Office of the Public Procurement and Monitoring directly under the Prime Minister’s Office (PMO) had not followed the order. According to a source at the PMO, the office posted the expenditure details for a few days on its website following the cabinet’s decision, and then it removed them later on. Secretary to the PMO Durga Nidhi Sharma said that the payment details would be posted on the website shortly. “I will ask officials to post payment details on our website tomorrow if they have not done so,” Secretary Sharma said. Following the Good Governance (Management and Operation) Act, the government offices needed to make their expenditure details public. (Source: myrepublica.com, May 1, 2014)

Speaking at the opening of the BP Koirala Eye Foundation ENT and Children's Hospital and Rehabilitation Service at Lokanthali in Bhaktapur on April 30, 2014, Prime Minister Sushil Koirala urged the people to wait patiently for a year for having a constitution at any cost. The government was formed with the commitment to promulgating a new constitution, said PM Koirala, and he claimed that the country's face would be changed positively within eight to ten years after the promulgation of a new constitution. "The country can no longer bear any kind of conflict and dispute, and the cooperation of all sides is necessary for establishing peace and expediting development in the country," the Prime Minister said. He praised the BP Eye Foundation for its work, which the government was supposed to do. He said the government was always prepared to provide assistance to the hospital. (Source: RSS news on gorkhapatraonline.com, May 1, 2014)

The first winter session of the Legislative Parliament ended on Tuesday, April 29, 2014. The winter session accomplished some important tasks such as the election of the prime minister and endorsement of the bill on the Truth and Reconciliation Commission, and on the Commission on Enforced Disappearance. The winter session also ratified the ‘Removing Constitutional Difficulties Ordinance’ and approved two proposals of public importance, said House Speaker Subhas Nemwang. During the winter session as many as 24 ordinances were submitted of which 22 were approved. Similarly, the government submitted 14 bills during the winter session. The winter session formally started off on January 26, 2014, and completed 94 days of business, out of which 32 meetings took place in 31 days. The president ended the parliamentary session on the recommendation of the prime minister following the Interim Constitution of Nepal of 2017. Some of the lawmakers complained that the proposals of public importance they had brought forward were not tabled in the parliamentary session. (Source: myrepublica.com, April 30, 2014)

Speaking at the rally of workers at the Basantapur dabali in Kathmandu to mark the 125th May Day on May 1, 2014, Prime Minister Sushil Koirala vowed that he would represent workers in the CA appointing some of them to fill out in the slots of 26 members of the CA to be appointed by the government. Prime Minister Koirala said, “Workers will have representation. I will make it happen. Give us a year. We should not allow any sorts of conflict in this year. So many years had passed in the name of workers’ movement.” The prime minister said that he knew the workers were laid off at the Casinos, Janakpur Cigarette Factory, and teagardens but the government had to close the Casinos, as they failed in paying the dues. (Source: gorkhapatra, May 2, 2014). The government shut down Janakpur Cigarette Factory laying off its workers. The tea-processing companies paid workers at the teagardens less than the minimum wage set by the government.

Speaking at the Finance Committee meeting of the parliament in Kathmandu on April 27, 2014, Finance Minister Dr. Ram Sharan Mahat said that the need of the day was to write a constitution and build physical infrastructure, and create an investment-friendly environment. He also said that the government had been making efforts on building capital formation, and creating an environment conducive to investment and infrastructure development. The government was mulling to bring the budget by mid June holding pre-budget discussions to make possible the implementation of the budget by mid July after completing discussion by then. He said that the budget was not important but the main concern had been whether the contracts were signed or not on time, the main problems had been the quality maintenance and implementation. Anomalies had been seen in the contracts, as the contractors were bidding low prices, and then taking 20 percent advance payment and then disappearing without commencing work, he said. Finance Minister Dr. Mahat complained about having to spend on salaries and allowances rather than on production and capital formation. However, the government prioritized the development of water resources, rural electrification, power generation, transmission line, irrigation, and tourism, he said. Former Finance Minister also senior member of the committee Bharat Mohan Adhikari said that the finance committee had a key role to play in the country's prosperity and every one should know the role of ministry and the National Planning Commission. Earlier, committee members called for holding extensive pre-budget discussions, stopping the non-transparent foreign assistance and the frequent changing of priority projects by the government. They also drew the attention of the finance minister to provide each constituency with Rs 50 million in the budget, and prioritize Karnali for development among others. (Source: gorkhapatraonline.com, April 28, 2014)

Speaking at the talk program on 'Alternative to conservative custom/culture' held by Hit Prasad Upadhyaya-Junmaya Subedi Literary Foundation in Kathmandu on April 27, 2014, CPN-Maoist Chairman Mohan Vaidhya pointed out the need for the polarization of the change-making forces, as the harbingers of change were being sidelined. He said, "The same old way is being adopted, so even if the constitution is made a new Nepal will not be possible". The path of class struggle was the right one for cultural transformation, he said. Presenting a working paper at the program, Dr Iswar Chandra Gyawali pointed out the need for reforms in the conservative society and culture that had been set based on the faith. (Source: gorkhapatraonline.com, April 28, 2014)

The Kathmandu district convention of CPN-Maoist presided over by Mohan Vaidhya was ended midway on Sunday, April 27, 2014, as the party members resorted to verbal duets, fist fighting and chair attacking on each other. With the convention heading nowhere, the representatives headed to their respective homes leaving the convention unfinished. The bone of contention among the Vaidhya Maoists was about selecting the members and forming a new district committee of Kathmandu. Supporters of CPN-Maoist general secretary Ram Bahadur Thapa ‘Badal’ and secretary Netra Bikram Chand ‘Biplav’ clashed with each other, despite efforts made by another leader Pampha Bhusal to find a solution. On the list of 99 members of the Kathmandu district committee prepared by Bhusal, the supporters of Chand were not accommodated significantly causing the disruption of the convention. (Source: nepalnews.com, April 28, 2014)

Speaking at the first meeting of the Constitutional-Political Dialogue and Consensus Committee (CPDCC) in Kathmandu on Monday, April 28, 2014, chairman of the committee Dr. Baburam Bhattarai urged the concerned political parties inside and outside the CA, and the social groups to coordinate with the committee to draft a new constitution within a year rising above their social and political interests. Most of the committee members including Prime Minister Sushil Koirala, former Prime Ministers such as Madhav Kumar Nepal and Surya Bahadur Thapa, and chairman of RPP-Nepal Kamal Thapa participated in the meeting. The committee was to build a consensus on the unresolved issues of a new constitution holding talks with the political forces inside and outside the CA. The first meeting of the CPDCC constituted a nine-member subcommittee to study the past agreements the government had reached with the several agitating political and social groups. The subcommittee presided over by NC lawmaker Purna Bahadur Khadka with the mandate to submit its report within two weeks consisted of nine members. The subcommittee needed to study the 101 agreements the government had reached with the several political and social groups such as different Madhesi, Janajati, Tharu, Dalit, Women, Khas, Brahmin, Dasnami, and the several Madhes-based armed outfits among other communities after the second People’s Movement. The subcommittee members were CA member of CPN-UML Surendra pandey, Shakti Bahadur Basnet of UCPN-Maoist, Dinnath Sharma of RPP-Nepal, Laxman Lal Karna of Sadbhawana Party, Bishwendra Paswan of Dalit Janajati Party, Rukmini Chaudhari of Sanghiya Loktantrik Manch-Tharuhat, Ram Kumar Rai of Khumbuwan Rastriya Party-Nepal and Independent Atahar Kamal Musalman. (Source:gorkhapatraonline.com, April 29, 2014)

The CPDCC needed to have dialogues with all the concerned stakeholders, and convince them of the need for building a consensus on the disputed issues of a new constitution by September 16, 2014following the work schedule passed by the CA. Presiding over the CPDCC, chairman Dr Baburam Bhattarai said that his committee would try its best to build a consensus on the undecided issues convincing all the stakeholders of the need for reaching a consensus. If the committee were to fail in doing so then the committee would submit the issues to the CA for voting, as the committee could not wait indefinitely for building a consensus.

Speaking at the cadres meeting in the Surkhet district on May 2, 2014, General Secretary of the Rastriya Janamorcha Nepal (RJN) Santa Bahadur Nepali said that his party was ready to accept multi-ethnic federalism if the promulgation of a new constitution would be guaranteed. He said that currently his party's main agenda was to draft a constitution and therefore, the party was ready to accept multi-ethnic federalism. The country would not be able to break up the existing political deadlock without promulgating a new constitution, he said. All the political parties should focus on drafting a new constitution for protecting the achievements of various peoples' movements, General Secretary Nepali said. It might be noted that RJN had been protesting against federalism across the country for long. (Source: RSS news ongorkhapatraonline.com, May 3, 2014). Chairman of RJN Chitra Bahadur KC had been frantically opposing federalism.

Nepal Bar Association (NBA) urged the parliament to hold all the members of Judicial Council accountable for the controversial recommendations they made for the permanent positions of justices at the Supreme Court of Nepal. “NBA requests (the House committee) to hold parliamentary hearings only after reconsidering all the facts, data and comments in the public domain about those recommended persons and those who made the recommendations,” stated a press release issued on Monday, April 28, 2014 following the two-day long executive committee meeting of the bar. “Until now parliamentary hearings have been on the recommended persons only. This time, we have asked the parliamentarians to question the Judicial Council members why they made such recommendations that provoked the controversies and let down people’s faith in judiciary,” said President of NBA Hari Krishna Karki. Meanwhile, NBA has asked the parliamentarians to consider seriously the matter of the Judicial Council neglecting to include the legal experts in the recommendations even though the Article 103 (3) of the constitution has a provision for appointing lawyers to the justices from among the law graduates or senior advocates that had practiced law for at least 15 years. “We want parliament to address our concern seriously as NBA has been active for ensuring the rule of law, constitutional supremacy, judicial independence and democracy. We warn all the concerned authorities of not considering our patience as our weakness,” added NBA. NBA also alleged that the Judicial Council was responsible for the inadequate justices at the apex court, and condemned all the members of the council. (Source:myrepublica.com, April 29, 2014)

Speaking at the zero hour and special hours at the parliament on April 29, 2014, lawmakers drew attention of the Legislature-Parliament stating some of the justices recommended by the Judicial Council (JC) were tainted, and suggested that such controversial judges should not be appointed to the justices at the Supreme Court of Nepal. The lawmakers including Federal Socialist Party leader Radha Devi Timalsina, NC leader Ram Hari Khatiwada, CPN-UML lawmakers such as Rameshwar Phuyanl, Ranju Thakur Jha, Bikas Lamsal warned that the recommendation of dubious judges to justices at the Supreme Court would debase the image of judiciary that might weaken the independence of the judiciary. Similarly, Birendra Mahato of Madhesi Janadhikar Forum-Nepal questioned the competence of Chief Justice Damodar Prasad Sharma saying that he could not fill up the vacant positions at the Supreme Court of Nepal for over 15 months even though he had been authorized to do so. (Source:myrepublica.com, April 30, 2014)

The Parliament Hearing Special Committee sought the personal details of all the judges recommended by the Judicial Council (JC) for appointing judges to the positions of the justices at the Supreme Court of Nepal. “We have sought personal details of the judges who have been recommended by the JC for the apex court,” a source told ‘The Himalayan Times’ on condition of anonymity. Following the Section 11 of the Procedure of the Parliamentary Hearing Special Committee of 2014, the recommending authority needed to submit all the details of the recommended judges along with their names, surnames, addresses, contact numbers, educational qualifications and experiences. But the JC had not done so, added the source.

On April 22, 2014, the JC recommended Baidhyanath Upadhayay, Gopal Prasad Parajuli, Dipak Raj Joshi, Govinda Kumar Upadhayay, Om Prakash Mishra, Devendra Gopal Shrestha, Cholendra Shumsher JBR and Jagadish Kumar Poudel for the positions of the justices at the Supreme Court of Nepal.

Complaints had been lodged against the six judges at the Parliament Hearing Special Committee:
• Gopal Prasad Parajuli: Received bribe to release criminals, polygamist
• Devendra Gopal Shrestha: Released a drug peddler when he was judge at the Kathmandu District Court in 2000. The JC itself had launched an inquiry
• Om Prakash Mishra: Amassed assets through some lawyers close to him when he was a judge at the Rajbiraj Appellate Court
• Cholendra Shumsher JBR: Made a Favor to former minister JP Gupta tried for a corruption case at the Special Court. The Supreme Court had issued an order seeking actions against JBR
• Jagadish Sharma Poudel: Received bribe at the Kathmandu District Court and released drug dealers
• Dipak Raj Joshi: the Supreme Court had issued an order to punish him
• (Source: Thehimalayantimes.com, May 1, 2014)

According to the news posted on myrepubica.com, the Judicial Council headed by Chief Justice Damodar Prasad Sharma recommended eight judges to the vacant positions of justices at the Supreme Court of Nepal on April 22, 2014 provoking controversies and opposition against the recommendations. Nepal Bar Association, legal experts and jurists had been strongly opposing to the powerful council’s decision. The deadline to file complaints at the Parliamentary Hearing Special Committee (PHSC) against eight judges recommended by the Judicial Council for the positions of permanent justices at the Supreme Court was set for Saturday, May 3, 2014. And the PHSC had already received 14 complaints.

According to the Secretary to PHSC Dhurba Prasad Ghimire, five complaints had been received against Gopal Parajuli currently the chief judge of the Patan Appellate Court. Four complaints had been received against Cholendra Shumsher JBR, three against Baidhyanath Upadhyaya, two each against Deepak Raj Joshi and Govinda Kumar Upadhyaya, and one complaint each against Om Prakash Mishra, Devendra Gopal Shrestha and Jagadish Sharma.

A complaint filed against Parajuli said that he upturned the verdict of the Morang District Court to take Kiran Singh into judicial custody on the charge of murder of Urmila Rajbanshi when he was the chief of the Appellate Court only to get it upturned by the Supreme Court of Nepal. Another serious allegation made against Parajuli was that he helped to release criminals from jails on the pretext of monitoring jails.

JBR was charged with flaws in his verdicts at the district court. “He is the one who gave a verdict that a game of cards called ‘marriage´ is not gambling per se but a mind game," states a complaint against him. JBR had given such a verdict when he was a judge at the Morang district court. Another complaint against JBR was that the Supreme Court on February 21, 2012 had asked the Judicial Council to take actions against JBR. The apex court had stated that a verdict given by a bench of the Special Court including JBR in a corruption case of political leader JP Gupta was full of flaws and was done with ill intention.

A complaint against Deepak Raj Joshi was that a division bench of justices Bhairav Lamsal and Balaram KC of the Supreme Court of Nepal had asked the Judicial Council to take actions against him for issuing an order to release an accused of drugs trafficking when he was a judge at the Ilam Appellate Court.

A similar complaint against Devendra Gopal Shrestha was that he released a drugs trafficker on bail when he was judge at the Kathmandu District Court. The complainant also said that Shrestha had taken millions of rupees in kickbacks from a businessman to issue such a verdict.

Similar corruption charges had been filed against Jagadish Sharma, Om Prakash Mishra and Govinda Prasad Upadhyaya at the PHSC.

Complaints against Baidhyanath Upadhyaya the temporary justice at the Supreme Court of Nepal until last month had been about his competence and his inconsistency in the delivery of justice. (Source:myrepublica.com, May 2, 2014)

Justifications for recommending eight judges to the highly prestigious and responsible positions of the justices of the Supreme Court of Nepal were muted. The Judicial Council needed to give at least the moral standing of the recommended judges for the permanent positions of justices at the Supreme Court of Nepal. For reasons only could be guessed, the Judicial Council had ignored this important provision. The guess had been that huge financial resources might have influenced the members of the Judicial Council in recommending the allegedly tainted eight judges for the justices at the Supreme Court provoking the widespread protest otherwise nobody could have any reasons for taking the risk of recommending such controversial judges. Some lawyers had even said that the recommendations of the Judicial Council was illegal, as it failed to give the moral status of the recommended judges even though it was made mandatory in the Act. The government had set the tradition of awarding the high-ranking positions such as ministers, ambassadors, and other positions of importance to the highest bidders in the 1990s. Some political parties had simply followed this tradition of nominating the persons paying highest prices for the positions of members of the CA to be elected in proportion to the votes the political parties had received in the elections held on November 19, 2013, according to the local media reports.

ENDS

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