A discussion of transitional justice in two decades of injustice

Posted in Uncategorized | Comments Off on A discussion of transitional justice in two decades of injustice

The historic task of the new government

Background:

This is the second government formed by the elected House of Representatives since the promulgation of the constitution by the Constituent Assembly, which has received a vote of confidence, reaching a two-thirds majority, not a majority. This government and the House of Representatives will be full-time charioteers against the game of dissolving and re-establishing the House of Representatives twice in a span of six months, contrary to the constitution. In addition to preserving the constitution, preserving the parliament and living the life of the parliamentarians, this government has many important tasks entrusted to it by history. This article attempts to discuss some of these tasks.

Duties to protect the constitution and parliament:

Due to the previous government repeatedly misinterpreting the constitution and dissolving the parliament, the task of protecting the constitution and the parliament has automatically fallen on the shoulders of this government. Many of the criticisms of the previous government may have been forgotten, but the criticism of serious crimes against the constitution, such as the violation of the constitution and the dissolution of parliament, will never be forgotten. It may be an attempt to cover up the shame that the parliament was dissolved in the past but the truth is that the previous constitution envisaged the dissolution of the parliament but the new constitution does not dissolve the parliament under any circumstances. Provision was made in the constitution that the parliament could not be dissolved prematurely by consensus from the Constituent Assembly on the basis of facts and evidence. Against the backdrop of the restoration of the parliament by the Supreme Court interpreting the same provision, the historic task of guarding the constitution and the parliament has been handed over to this government. Therefore, it is important for the government to assimilate and reassure the people that the government is not allowed to misinterpret the constitution in early elections or any other pretext and go to the polls before the end of the term of the parliament.

The task of maintaining balanced international relations:

Probably due to the fact that India is a busy country, Nepal has not only gone through a negative legacy like India-oriented, India-dependent for a long time. Despite this, the creation of a situation where Nepal and the Nepalese people depend on the guardianship of nationality and democracy was confirmed after the proclamation of the Federal Democratic Republic of Nepal through the new constitution on the strength of the people’s war and people’s movement of the past. The challenge of maintaining this glorious history is on the shoulders of this government. It will be the responsibility of any future government. Although the previous government initially struck a balance, in recent days it has failed to maintain Nepal’s independent status, such as squandering through non-diplomatic meetings with the RAW chief (Khuwia Agency) and mocking Singh Mew Jayate in Parliament. The fact that these parables were nothing but arrogance of power or petitions to preserve power is confirmed by the series of misunderstandings between Saying and Doing. Even though Nepal is small compared to its two great neighbors, Nepal is geographically a large country on the world map and as a sovereign country, the international community has equal suffrage on the basis of equal existence. Another important task of this government will be to adopt the facts and adopt the behavior of as per the fact.

Duties of implementing the constitution and federalism:

The fact that the first government formed after the issuance of the new constitution has shown indifference in the implementation of the constitution and federalism is not hidden. Even six years after the promulgation of the constitution, the laws required to implement the constitution have not yet been enacted. There is no law to run the administration. The long list of laws to be enacted in accordance with the constitution is in confusion. Many laws have been tabled in various committees of Parliament. The past practice of making the parliament business less, dissolving it time and time again and running the country through ordinances is a very negative phenomenon from the point of view of the rule of law. The right of the citizens to enjoy the rights institutionalized by the constitution has been limited due to the lack of law. Even the fundamental rights have been limited as mere decorative items. Many forest laws are also against the essence of federalism. Without any justification or reason, the Center has encroached on the rights of the states and the locals and the Center has started the opposite practice of returning the rights enshrined in the constitution for the locals and the states. Repeated threats to attack the autonomy of the provinces as a unit of the center are preserved in the archives. The recognition of inclusiveness to protect the rights of Madhesi, women, Dalit and Adivasi Janajati and minority communities is limited to the Constitution. Many of these past practices have challenged the image of the constitution and federalism on the one hand, and important political achievements of the people’s war and people’s movement such as the federal democratic republic and secularism on the other. The law to coordinate between the federal, state and local levels was enacted in the fifth year of the promulgation of the constitution, but its implementation was not a priority. To date, no law has been drafted by the state assembly to coordinate between the state and local levels. Only two meetings of the Inter-provincial Council, a mechanism for resolving political disputes between the Union and the states, have been held Only for formality. At a time when there are many challenges in the implementation of the constitution and federalism, there are officials appointed in the constitutional commissions that warn the executive by dissolving the unconstitutional parliament and amending it through the Constitutional Council Act Ordinance. In any case, it is unthinkable for a job-minded official to warn the executive in the implementation of the constitution and federalism. Thus, this government has inherited the state structure and its officials who are suffering from corruption everywhere. From that legacy, the task of implementing the constitution and federalism has fallen on the shoulders of this government.

The task of protecting the people from hunger and disease:

Corona’s devastation has plagued the public for the past two years. To prevent the disease, the government resorted to woodcutting but did not announce any relief package to prevent starvation. Hospital treatment for the common man was the fruit of the sky but he died. People who were forced to stay at home even if they died were defeated by the disease, but they could not overcome hunger and died tragically. The previous government spent its days harassing the people who were begging for a life free from disease and hunger by issuing various decrees from PM’s resident Baluwatar. Even in Corona Panic, the people of the government were obsessed with the bargaining of the commission even for the purchase of health items or vaccines. Which has only created a negative image of the government. The challenge of turning this negative image into reality is the first task of the current government. The government is accountable to the people. In times of crisis, the government takes responsibility to protect the people from disease and hunger. The message that there will be no shortage of treatment and no shortage of vaccines can only be conveyed through behavior, not volleyball.

In the end

Failing to complete the formation of the government within a month, failing to formulate a clear view on the ordinance budget issued with the intention of dissolving the parliament and running the country through an ordinance, and failing to take concrete decision on more than a thousand unconstitutional appointments in the same period. It is difficult to overcome the deepening crisis of trust by not being able to prove that the zero tolerance against corruption is not in the statement of the previous government. Therefore, in this time of crisis, the present government has to shoulder the serious task of proving that this government is dedicated to the interest of the country and the people in a balanced balance of impulse and conscience with courage and foresight. All will overcome the anomalies created by the previous government and take the path of unity. They have looked at this government with the same hope.

Posted in Article | Comments Off on The historic task of the new government

The illusion and reality of the new constitution

The illusion and reality of the new constitution

 

At this time, the discussion of Nepal’s constitution is at its peak. The Constitution of Nepal has been discussed inside and outside the country, inside and outside the party, from the President’s Office to the Prime Minister’s Office, from the courts to the military bases, and Article 76 (5) has also been discussed. At the heart of this discussion are some illusions and some realities. The purpose of this article is to discuss those illusions and realities.

Consensus point of the constitution:

At the time of drafting the constitution, Nepal’s politics was basically divided into seven parties and the Maoists. The historic responsibility of drafting the constitution was on the shoulders of these parties. The consensus model adopted by the Interim Constitution was dissolved after the election of the Constituent Assembly and returned to the majority model. The government was formed by a majority, but the provision of an interim constitution, which required a two-thirds majority to form a constitution, was retained, making it necessary to seek consensus to draft a constitution. In terms of content, the UCPN (M) was in favor of a directly elected executive president and the Congress was in favor of a traditional parliamentary system. However, Article 76 (5) has been identified as a point of agreement to address the concerns of both the Maoists who do not like the parliamentary system due to instability due to the compulsion to draft the constitution and the Congress who do not like the presidential system due to fears of autocracy. The main purpose of Article 76 (5) was to ensure that Parliament was not dissolved under any pretext. The basic premise of this article was that the country should not have to bear the burden of unnecessary mid-term. The parliament will not be dissolved as long as the government is formed. Even if the parties cannot form a government, the basic belief of this article is to protect the parliament even if a parliamentarian can form a government as a last resort. Again, there was disagreement on many articles of the constitution. But this section is such a section that no one was dissatisfied with it and no one had registered a different opinion. It can be said that this article, which has been instrumental in fulfilling the desire of the Nepali people to make a constitution from the Constituent Assembly for the last seventy years, is also a new development in terms of Nepali constitutional history and constitutionalism. This is why it was called the reformed parliamentary system at the time of promulgation of the constitution. At the same time, the most discussed issue of the new constitution was that the parliament would not be dissolved due to famine or anyone’s interest or whim. The common conclusion was that the country and the people would never have to bear the burden of an unnecessary mid-term. This is the reality of Article 76 (5) of the Constitution.

 

Illusion of 047 constitution:

As an illusion No. 1 on Article 76 (5), this article of the constitution axed the party system. A situation was created where MPs did not have to stay under the party. The illusion that it has given the impression of independence in a different way has become entrenched in a circle of Nepali politics and that party has been spreading its propaganda as much as it can. This was a completely different provision from the 047 constitution regarding the dissolution of the parliament. The old constitution envisaged a constitutional provision for the dissolution of parliament, but this provision was envisaged to prevent the dissolution of parliament. Even if the parties fail to form a government or the parties are reluctant to fulfill their own interests by dissolving the parliament without allowing the government to be formed, the lawmakers can protect the parliament. The whip-free system is not meant to create chaos, but to protect parliament.

Confusion with the court:

A self-imposed notice was leaked on the eve of the dissolution. There were fears that the psychological impact of this would be felt in the court on the one hand and on the other hand there was also the issue of court examination. In the light of this, after the decision of the court, this section has also become due to the request and outrage towards the court. It is clear that the court is a very conservative institution and it focuses on preserving the status quo, not change. Interprets the constitution with measures to avoid the status quo. This is only the sum of the court’s interpretation this time. The court has explained the letter written in the constitution without having to enter into the essence and spirit of the constitution. The written letters go so far as to declare that every member of parliament has been given this right as a last resort if the parties cannot provide a government for the defense of the parliament. The reality today is that this interpretation establishes the constitutional system of improved parliamentary recognition through judicial decisions, going beyond the traditional parliamentary norms, by establishing the belief that the parliament, which is the place to exercise sovereignty, cannot be dissolved in time, impulse or whim. The insatiable aspirations of some party or individual may have been thwarted by saying that ignoring the reality of the constitution, misinterpreting it and targeting the court without any basis will only lead to the cultivation of momentary delusion.

Confusion in the neighborhood:

As soon as the constitution of Nepal was promulgated, the race for recognition of other countries started in Nepal. Especially in the light of the complaints of Madhesis, women and Janajatis within Nepal that their demands have not been adequately addressed, the Indian establishment has come to accept Nepal’s constitution. When this constitution was violated, his activities were seen to the extent that he was happy. So dissolution is not crafted by Prime Minister himself. When the incompetent parliament was dissolved twice in a span of six months, he committed suicide as an internal matter of Nepal. He was not interested in forming a government for the last time. India, which at other times hastily greeted and invited him, continued to ignore it until it received a vote of confidence. The main reason for doing so was his view of Article 76 (5) on the basis of thinking based on traditional parliamentary norms, that is, the lack of proper understanding of the article on the adoption of an improved parliamentary system with Nepali characteristics. What is strange is that in addition to what is seen as a political urge, even those who know the constitution not only ignored this article of the essence of the improved parliamentary norms adopted by Nepal, but also advised their rulers accordingly and practiced their intellect in the midst of such confusion. The provision of Article 76 (5) is not in the traditional parliamentary system and even the experts who could not get rid of the same hangover are singing their own old delusion which has not only broken the Indian tradition of congratulating the competition this time. Even became wild.

Resolving the crisis of faith

After a long failed parliamentary exercise, the people of Nepal were convinced that after the new constitution, the parliament would now function full-time and achieve political stability. But when that confidence was shattered in the first term of parliament, public confidence in the new constitution, the new system and the new politics had generally waned, and the confidence in the judiciary had plummeted due to recent activities and rumors of a settlement. Now the general public was very worried about whether the court could regain its trust. It is in this interest that the Supreme Court’s decision to preserve the constitution has been a means of resolving a one-stage crisis of confidence, but that alone is not enough. If all the organs, bodies and officials of the state do not show their commitment to fulfilling the expectations of the people reflected in the spirit and letter of the new constitution through continuous practice, it cannot be said that a bigger crisis will not arise than this.

Posted in Uncategorized | Comments Off on The illusion and reality of the new constitution

The legacy of the halal revolution

It can be said that halal revolution is one of the various causes of the pain that Nepali politics is going through at the moment. The character has not changed, the trend has not changed, similarly the situation has not changed. It is not that there has been no attempt to apologize to the people and restore the lost trust in the people that the mistakes made in the past will not be repeated. It has not been said that the leaders who have dedicated their lives for the country and the people have no purpose other than the welfare of the country and the people. It was also said that politics is not a profession, it is a service. From time to time, what I have not received from the country, I have to start from what I have given to the country. It is unthinkable that any leader who has sacrificed his personal aspirations for the service and self-interest of the country and the people will not be able to do anything for the benefit of the country and the people. Despite all this, why the expected work could not be done in the interest of the country and the people. There are many reasons for this, but this article is based on the assumption that the halal nature of the revolution is one of them.

Revolution Agreement Against Rana Rule:

For 103 years, the Rana ruled, which was autocratic, familial and arbitrary. Freedom was not enough for this system. Nepal was not untouched during the wave of democracy all over the world. Due to its global influence, the anti-Rana movement arose even in Nepal, and an armed revolution took place. Action was taken to the extent of capturing the main knees. Politically, various parts of the country were liberated from the clutches of the Rana and used for the freedom of the people. For this, the formation and operation of the Salvation Army, the provision of weapons and the management of the war were also done. Initially, the Rana was very ruthless and punished those who joined the anti-Rana movement with death penalty, life imprisonment or severe punishment. Similarly, the asylum of King Tribhuvan in the Indian Embassy finally ended with the Delhi Accord. The result was that Rana accepted the PM. The result of the armed revolution started by the Nepali Congress with the formation of the Salvation Army can be called the beginning of the compromise trend of Nepali politics, an incomplete revolution or a halal revolution.

Revolution and Agreement against Panchayat:

Although the tripartite Delhi agreement agreed to make Rana the prime minister, Tribhuvan the king, and the Congress a share in the cabinet, it was important that the assembly elections and the constitution to be drafted by the assembly govern the next system of government. Unfortunately, due to the tension within the ruling party and the secret maneuvers of the power-hungry king among the leaders, the election of the Constituent Assembly was turned into a parliamentary election by entering the Supreme Court. The Congress government, which won two-thirds of the seats in the parliamentary elections, was ousted by King Mahendra’s military coup. Due to the imprisonment of the leaders and the ban on the party, the valley of democracy was closed with the introduction of independent system in Nepal. The continuous struggle against the Panchayat continued. From the Congress Satyagraha to the armed struggle of the Communists, there were exercises. The reform of the panchayat through a referendum was a manifestation of the multi-party system, the underground movements of the communists and the satyagraha of the Congress and the disobedience of dissident groups within the panchayat. The events leading up to the fall of the Panchayat and the overthrow of the monarchy did not go unnoticed, but the movement could not find its final destination. If the referendum had been used properly, the multi-party system and the 46-year-old people’s movement could have been organized. But in return, the parties were forced to make an agreement with the king and accept the constitutional monarchy in place of the autocratic king. The three-decade-long struggle with the king led to an agreement with the king to accept the king’s umbrella. Even the revolution and struggle with the king could not be completed.

Revolution and agreement against autocracy

The constitution, written through a 46-year-old historic people’s movement, called for an end to the king’s autocracy and for the king’s constitutional status to be restored, but the real form of the monarchy was gradually extended to Gyanendra’s direct reign with the Durbar massacre. The 46-year-old revolution was a halal revolution. In order to make up for the shortcomings, the people’s war was gaining momentum. Gyanendra’s autocracy was reaching its limits. There was a united movement. As a result of both peaceful and armed movements, Gyanendra was on the verge of bowing down. However, the movement did not end the monarchy. The Interim Constitution was promulgated with the king suspended. It was agreed that the first meeting of the Constituent Assembly would decide on the monarchy in the midst of a great tug of war. Eventually, the train broke down despite repeated attempts to postpone the Constituent Assembly elections. Attempts were made to recall the first meeting, but the first meeting was abandoned and the monarchy came to an end. But it was not in the strength of the movement that the constitutional process was completed. The fact that the struggle against autocracy and the agreement were repeated time and time again until the process was not completed It is clear that the reports of the Gog and Rayamajhi Commission have been destroyed. It can be said that it was a kind of agreement not to take action against those who were recommended to take action by the report.

Revolution pact against imperialism expansionism

The character of Nepali politics is of a global nature. The influence of world politics is being felt directly or indirectly in Nepal. Based on this, one of the features of Nepali politics is the movement against imperialism and expansionism. This political slogan has been uniting Nepali society, strengthening Nepali nationalism and sharpening the struggle against foreign intervention. Along with the development of the nationalist current in the Nepali people on the basis of this slogan, the movement has also gained energy. The world imperialist policy pursued by the US government has the experience of expecting the world to follow its own policy and intervening in the internal affairs of small countries. Due to his role in suppressing liberation movements around the world, world imperialism, including US imperialism, became a target of the Nepali political movement. Nepal’s nearest neighbor India, especially with its neighbors, has been trying to adopt a hegemonic policy, trying to keep its neighbors in its grip, even if it is for its own selfish ends. The same thing happened with the imposition of unequal treaties to implement the same expansionist policy. Nepal is one of the neighbors affected by the unequal treaty agreement. From the unequal treaty of 1950 to the Koshi Gandak agreement and from the treacherous Mahakali treaty to Kalapani Lipulek Limpiyadhura, the Indian Michaha trend became an example. Therefore, Nepali politics is based on the approach of imperialism and expansionism to identify what kind of politics is progressive and reactionary or status quoist. It is equally true that one aspect of Nepali politics when one is out of power and another when one is in power is another characteristic of Nepali politics. The trend is equally sharp in this case.

In the end

Halal trend also prevailed in internal affairs. Just as Nepali politics has been secretly embroiled in national and international issues, the parties have not been able to strengthen due to the weakening of internal democracy and the tendency to patch up internal disputes. Another halal tendency in Nepali politics is the tendency to be ready to make any compromise when the interests of power are in danger, otherwise to sit idly by. Nepali society is forced to go through the same ordeal.

Posted in Uncategorized | Comments Off on The legacy of the halal revolution

Paddy Day and the digital economy

Background:

Today is Asar 15, the National Paddy Day. It is also celebrated as National Paddy Sowing Day. In the agricultural country of Nepal, it has been a tradition for everyone to join the paddy planting in the name of crushing mud on the 15th of Asar. Asar 15 is also celebrated as the culmination of the season for eating muri. Before entering the field as a celebration of Asar 15, planting begins with the process of entering the field with dance songs and bajans to celebrate the festival in Nepali traditional dress. Since the Government of Nepal declared Asar 15 as the National Paddy Day on December 1, 2004, this day has gained traction. Farmers celebrate this day as a regular work, non-farmer’s day as a formality and tourist entertainment. Since the beginning of the federal structure, different states have been celebrating their days on the basis of their own characteristics. The contribution of paddy to the GDP is only seven percent, although Nepal imports rice worth Rs. 25 billion. This article aims to discuss the significance and contribution of Paddy Day in today’s digital economy.
Digital economy:
The landscape of today’s world is changing. The digital economy is also one of the various tools to change the world. The miraculous development of science and technology has led to incredible new discoveries. New discoveries have changed people’s routines. The pace of change is accelerating. So we are celebrating Paddy Day, and it is equally important to discuss what the impact of the digital economy has been or will be on paddy production.
In fact, the digital economy is an economic activity that takes place online through the use and processing of billions, trillions of people’s business and their data daily. The digital economy is also one of the highest forms of finance, in which people, industries and machines are linked together through the Internet or technology and produce quality products. Through the aggressive use of available facts through technology, business models have changed, new services and facilities have become available, which is introducing a new culture in management. Apart from that, new challenges have been added. This digital economy has become a tool that uses only technology and radically changes the business through the use of technology. He does not enter the business on his own. Uber, the world’s largest taxi company, for example, does not own any vehicles. Considered the king of social media, Facebook does not produce any content, the largest retailer Alibaba has no products of its own. Air BNB, the world’s leading housing provider, does not own any housing. That is, the world’s leading business companies use only technology and have succeeded in radically changing the shape of the national and global economy by radically changing the trade in all materials available through digital technology.
Due to the digital economy, the activities of the coming days have become unpredictable. The future of any business and economy cannot be predicted without assessing the development trends in the digital world. The future of today’s work will not be the same as in the past. Offices will be operated from online platforms with the help of technology, not from office premises. The online medium has become effective, not physical, in dealing with epidemic outbreaks. In this changed environment, the digital economy is also moving to determine the routine of the future, to adopt the pattern of the future business and to change the lifestyle of the future.
Digital Economy in Agriculture:
Digital Agriculture is the digital technology used to coordinate agricultural production from farm to consumer can be understood as the impact of digital economy on agriculture. It is easy to assume that these technologies can increase the productivity of the agro-industry through technology, equipment and information. In view of this fact, it is not necessary to cover the mud on the occasion of Paddy Day and to have a well-to-do lab with the farmers, but to increase the quality of digitized paddy production and its productivity.
Through the use of digital technology in agriculture, a small country like Denmark has agreed to supply beef to a large population like China. Similarly, a small country like Norway is keen to supply its popular product Salmond Fish all over the world. Farmers in Victoria, a small town in Australia, contribute one-third of Australia’s food and fiber exports. Demand for Victoria’s food is set to rise as population estimates that the world’s population will grow from seven billion to about 10 billion in the next few years. Sobmojim food production is also mandatory. Research shows that half the world’s population eats rice as food. If this number is now 3.5 billion, it can be estimated that the demand for paddy will increase automatically in the coming year of population growth.
Use of technology in paddy:
Water is needed to plant paddy. There may be various dimensions to the use of technology for planting depending on the rainfall like in Nepal. Rising temperatures due to climate change, resulting in rainsProblems such as changes in prices, increase in extreme and frequent extreme weather accidents and cuts in water availability have hit farmers, while paddy farming is in crisis. In order to face such a crisis, it should not be too late to talk about providing information to the farmers through the use of technology for paddy cultivation and motivating them to use appropriate technology and tools. It is the responsibility of every responsible government to keep the farmers informed with digital technology and to provide them with the capacity to face the challenges and take the opportunity of development. The problem is not only with the farmers. Consumers are becoming aware of the products they buy and sell through information and technology. They demand high quality and sustainably produced food and fiber and want to know more about where their products come from. It is too late for states to prove that digital technology is capable of consuming improved agricultural products, providing consumer satisfaction and providing fair prices for farmers.
It has also become necessary for us to conduct research in agricultural technology, to make public the results of research and to prove that the states are determined to make it accessible to the people. The government should not fail to introduce digital technology to farmers and ensure that it has the capacity to meet the challenges in the agricultural sector.
Finally:
It is important to start a digital agricultural investment plan with the digital economy. For this, there would be no point in celebrating Paddy Day without initiating technological agricultural production including modernization in agriculture based on digital technology monitoring, weather monitoring, soil testing and corresponding project development. Recognizing the trend of production and market management as well as consumer consumption, the focus of farmers and responsible bodies of the state towards commercialization of sobmojim products will prove to be the justification of Asar 15 and National Paddy Day.
(The author is a senior lawyer.)

Posted in Uncategorized | Comments Off on Paddy Day and the digital economy

Jurisprudence of the dissolution of Parliament

Introduction:

The dissolution of the parliament is being discussed all over the world at this time and it is being discussed all over the Nepali villages and settlements. In the parliamentary history of Nepal, almost half a dozen times and even after the promulgation of the new constitution, it has been dissolved twice in a span of six months. This article attempts to discuss the law of dissolution of parliament.

Sovereignty of Parliament:

Before discussing the dissolution of Parliament, let us discuss the sovereignty of Parliament. In the case of the United Kingdom, which is considered to be the mother of parliamentary tradition, it was initially said that the sovereignty belongs to the king and the king has the law and the law to curtail the power of the king or to dissolve the parliament. Especially when the principle of no taxation without representation was adopted by the parliament, then the king started dissolving it by asking why such a parliament should be formed. This tradition continued till later. As the dispute between the king and the parliament escalated, the kings eventually accepted the notion of a subordinate king, which led to the development of the king’s honorary and omnipotent parliament. Later it was called parliamentary system. Speaking of the sovereignty of Parliament, it was also said that the British Parliament has the right to do everything except make women men and men women. The belief that no one but the parliament can curtail the power of the parliament has developed and the belief that all the organs and officials of the state are subordinate to the parliament has also developed. Because the parliament is sovereign, it is said that it has unlimited rights. Compared to the parliament, the king cannot make laws. Parliament makes laws. The court cannot overturn the law of the parliament but the parliament itself can amend or repeal its own law. The notion that the parliament is not subject to anyone and that the parliament should not be a prisoner of its own preconceived notions and decisions and that it cannot guide the future parliament as well has developed. Along with the separation of powers, the recognition of control and balance also developed along with the prosperity of parliamentary recognition. Despite this, the belief that the sovereignty of the parliament will not be frustrated by being the representative of the people will not die for no reason.

Jurisprudence of the dissolution of Parliament:

Parliament is the representative body of the people. In a parliamentary system, parliament is also the mother of government. When the government cannot be born, then the legitimacy of the parliament automatically ends and the dissolution of the parliament is justified. In the traditional parliamentary system, the leader who is trusted in the parliament is the prime minister, so when the parliament obstructs the work, the prime minister has the freedom to choose between resignation or dissolution of the parliament. The United Kingdom, the mother of the parliamentary system, changed that view a decade ago, saying it could not end parliament’s sovereignty by itself, so dissolution was possible only if it was accepted by a two-thirds majority. Since then, the sovereignty of parliament has been strengthened. Another is Japan, where the leader of parliament, if the parliament does not support the plan desired by the prime minister, then either support my plan or else dissolve the parliament. The constitution of Japan gave the exemption and the prevailing belief called legislative bargaining developed. According to jurisprudential beliefs, the first condition is that the parliament is the representative body of the people, so it is universal. The second condition is the dissolution of Parliament or the resignation of the Prime Minister. However, it is important to confirm that the dissolution was inevitable. Thirdly, as the parliament is a law-making body, the dissolution of the parliament is possible only in accordance with the law. The fourth condition is that it cannot be dissolved out of skepticism or by looking for loopholes in the constitution. Parliament is the only alternative to Parliament, so the availability of another Parliament must be ensured. Dissolution of another parliament is not acceptable without certainty. The fifth condition is to go before the parliament in case of any calamity. If you want to seek help from the parliament, you have to go to the parliament. These and similar beliefs are the facts told by the court about the dissolution of the parliament of the country concerned which has been taken as the law of dissolution of the parliament.

Recently developed jurisprudence:

The parliamentary system, which was based on the premise that if the majority prime minister could not work freely, the dissolved parliament could be dissolved, entered into a situation where only the prime minister who could not get a majority in parliament could recommend dissolution. The job of parliament is to create a government. It was concluded that the dissolution of the parliament was not possible as long as the government could be formed, and even if the government was to be formed by a majority, two-thirds would be required to dissolve it. Recognition as a developed parliamentary system started by the UK a decade ago has now spread to many countries in the world through Sri Lanka and the courts of the countries concerned have declared the dissolution of Parliament invalid on the same basis. A recent example is the Constitution of Nepal, which provides for the dissolution of a parliament if it fails to form a government immediately after the election or fails to get a vote of confidence from the parliament and cannot form another government.

The explanation of the case was further confirmed. Despite this, it is still under consideration and further explanation is expected. Announcing the election is a prerequisite for the dissolution of parliament. This is the only reason why undemocratic actions cannot be forgiven. We should not be reminded of the fact that Gyanendra’s election was rejected. Announcing the election cannot be a weapon to justify the dissolution of the parliament.

Reference to Nepal:

Nepal’s constitution does not provide for the dissolution of parliament. In this context, Article 76 (7) provides for the dissolution of Parliament and the announcement of the date of the next election if a vote of confidence is not obtained or the Prime Minister is not appointed, but that provision is not for dissolving Parliament but for forming a government. A government must be formed within 30 days of the election. If a majority government cannot be formed within that period, a minority government cannot be formed. Only the parliament will be dissolved. The fact that the parliament cannot be dissolved suddenly or in a whim or any other trend is confirmed by the report and discussions and recommendations prepared during the drafting of the constitution. The facts have proved that autocracy prevailed due to the dissolution of the parliament. The decision of the Constitutional Court that the recent ordinance issued for the purpose of deceiving the parliament is not valid in the context of the Citizenship Ordinance is relevant. If the President feels that something needs to be done when the Parliament convenes, he will be able to issue an ordinance in a simple sentence. Seems to be. It may not be natural to assess the issues under consideration by the court, however, it cannot be said that the beliefs and principles adopted by the court from the point of view of academic debate will not be effective in the issues under consideration.

Conclusion:

Finally, the question of the restoration of the dissolved parliament is linked to the defense of the sovereignty of the parliament and the defense of sovereignty, the defense of the constitution and the defense of democracy. Needless to say, this constitution was not written with little grief. Therefore, the defense of this constitution is the responsibility of the general democracy and the proponents of the constitution. The actions of every organ and body constituted in accordance with the constitution must be in accordance with the constitution and in the interest of the country and the people.

Posted in Uncategorized | Comments Off on Jurisprudence of the dissolution of Parliament

PEACE AND CONSTITUTION MAKING PROCESS IN NEPAL

PEACE AND CONSTITUTION MAKING PROCESS IN NEPAL

-Khimlal Devkota

Senior advocate/CA Member

1          BACKGROUND:

Nepal a country passing through a decade long armed conflict achieved constitution through constituent assembly in 2015. Several untold stories are behind the constitution making process. Country was ruled by King with constitutional monarchy and parliamentary democracy since 1990. Maoist insurgency started by 1996 after the promulgation of the 1990s constitution. Simultaneously war and negotiation had been conducted. Second round of negotiation the demand of election of constituent assembly had introduced as of bottom line. Being a lawyer, I was heavily engaged to defend the rights of detainees finally during the time of emergency security forces detained me. When released from the prison by the ordered of the Supreme Court, I decided to go for underground. I went to base area and started the journey of constitution drafting in my life. Initially people’s republican constitution was in my priority. Negotiation came in conclusion that the new constitution will be in place from elected representatives – (CA). Therefore, parties agreed to hold election of constituent assembly in stipulated time by interim constitution. Interim constitution drafting committee had formed by the negotiating team in 16 June 2006. Interim Constitution drafting committee chaired by Justice Laxman Aryal, Sindhunath Pyakurel,Harihar Dahal, Mahadev Yadav, Shambhu Thapa and Khimlal Devkota was a member. My journey had started formally by the date of 16 June 2006. Mandate was to be based on preamble of the code of conduct separate document issued by negotiating team. Time had given 15 days. The process was the drafting committee has to present to negotiating team and negotiating team will be put forward to high-level negotiation.

2          CONTENT OF THE INTERIM CONSTITUTION

Same day high-level agreement was to dissolve the then reinstated parliament and peoples power established by Maoist party including people’s court. Debate was either amendment of the existing constitution by open up path of election of constituent assembly or totally new interim constitution by repealing existing one. However, the drafting committee was mandated to draft a new interim constitution. Issues of Monarchy, forms of government, electoral system and judiciary were most contentious. All contentious issues remain same the draft was handover to negotiating team. My position was both in drafting committee and political negotiating committee. People’s court vs. Constitutional court was in tuff, finally concluded into constituent assembly court.  Peoples court was indirectly accepted rest of the issues resolved by high-level negotiation such as monarchy by first meeting of the constituent assembly in simple majority. Interesting debate was on electoral system. Maoist party was for full PR but NC and UML were full FTPT. Compromised has done 60/40. The result came with just opposite. PR system favored to NC and UML and FPTP favored to Maoist Party. Judiciary minor changes have been done just to reform in composition of judicial council. Representative of Nepal bar Association and prime minister also included in the council.

3          CONTENT OF THE NEW CONSTITUTION:

Most of the issues have been finalized by the interim constitution except forms of governance and judiciary. A form of governance was accepted in first CA as a mixed system directly elected president and parliament elected prime minister. Federalism was most debatable one. One section of the society believes that it will be a cause of division of the country and other section of the society believes federalism will be a matter of national integration like Nepal as a country of diversity. Pluralism was another bone of contention. Maoist party believes on monism, it means truth is single. While others who believe on pluralism they mean there are multiple truth. On Judiciary it was huge debate. As it is, existing judiciary vs. parliamentary committee-controlled judiciary was in contentious one. The compromised solution was separate constitutional court in addition to Supreme Court. The form of governance high-level committee has given a task to the taskforce, headed by Laxman lal Karna. Others members were Radheshyam Adhikari, Agni Kharel, Sapana Mall and I.

3.1       CONSTITUTIONAL BENCH:

My position for compromise solution was separate constitutional court to reform existing judicial system instead of status quo or parliament-controlled judiciary. Interestingly the decision was taken by high-level political mechanism including taskforce. Coincidence was that, in the meeting I was single representative of the then Maoist party. Meeting was chaired by Ram Chandra Poudel. Most of the members said that in absence of the Maoist top leadership it is impossible to take any decision. My position was different. I started to speak let’s go for constitutional court for the compromise solution. Meeting was pin dropped silence. Chaired asked me is its sure Maoist top leaders will accept it? Then my answer was yes. I am here who solely representing the Maoist party. The constitutional court was decided. However, second CA slightly changed it in to constitutional bench within the Supreme Court. The jurisdictions have been given to the constitutional court was carryout as it is by the constitutional bench of the Supreme Court.

3.2       FORM OF GOVERNANCE:

Next bone of contention was form of government. The debate was parliamentary system vs. Presidential system. I was strongly in favored of directly elected presidential system. My opponent opinion was continuation of the existing parliamentary system. I was strong advocates of directly elected executive presidential system. I had a strong logic i.e. political instability, underdevelopment, corruption and so on. But others were in favored of existing parliamentary system with the logic was a system which is tested, practiced and used to. The debate of Parliamentary vs. presidential system was not only a bone of contention but bottle neck for the completion of the constitution making process. We compromised in mixed system for face saving to both and making possible to finalize the constitution. The compromised solution was win-win for everyone. However, second CA slightly changed it in to reformed parliamentary system. A parliamentary system with certain restrictions, intended to overcome from political instability. Such as dissolution of the parliament is a prerogative of the prime minister. It is a core element of the parliamentary system, which has been removed from the constitution. No confidence motion is not allowed for two years and not allowed for second proposal within a year if once the proposal of no confidence motion was failed. Number of Minister was fixed in constitution. Defeated candidates are not eligible to be a minister for the whole tenure of the parliament.

3.3 FEDERALISM

Federalism debate was largely divided in identity based and viability based. Finally, federal design was done identity and viability based but identity has taken first priority. Number of meeting has been conducted for federal design but almost all failed to reach conclusion. Later on, debate shifted towards name number and boarder. When final design of the federal structure each and every leader confined their own constituency and agreed to not to division of the district except Rukum and Nawalparasi. Interestingly, debate was started by integration and disintegration of the country however issues landed at non division of district. Political debate confined with people’s aspiration of their constituencies.

3.4 PLURALISM

The issue of pluralism was a philosophical question. Maoist believes on monist and others were in favor of pluralist. Classical debate was hampered the constitution making process. Peace and constitution agenda were handicapped time and again by tiny issue like pluralism, identity and viability and others. My stand was always in favor of peace and constitution rather than classical debate. Finally, we tried to dilute the debate by explanation in explanatory note of preliminary draft and concept note. Nepal is a country as a full of diversity. Nepalese society itself multiple characteristics and based on plurality.

4          UNFINISHED TASK OF THE CONSTITUTION:

It was a last day of the first constituent assembly. The tenure of the constituent assembly has been extended fourth time. Supreme Court has given a mandamus either complete the task or go for alternative within the timeline. Constitution was incomplete because of party’s leadership. Though, we four of us were engaged in proof reading of the finished task of the constitution to promulgate the constitution until midnight. Parties were confused and situation was out of control. My proposal was to promulgate the constitution whatever we have agreed upon and declare complete constitution writing process for honor of the court decision and starts constitution building process for fine tuning. Leadership failed to reach consensus then our efforts also came in to useless. That unfinished task of the constitution was never finished as per the spirit of the 1st CA.

5          REPUBLIC PROPOSAL:

After completion of the election of the constituent assembly the first meeting of the CA had to take a decision of the faith of monarchy as per interim constitution by simple majority of the house. Procedure was not developed as required. Declaration of republic was a Hercules task for those who were not clearly announced in their election manifesto. Leaders had given a task for the taskforce including me. My proposal was let’s put forward republican declaration proposal first and pass the resolution to vacate the palace within the fifteen days.  Finally, the proposal prepared by taskforce including me and approved by the high-level meeting and indorsed by the first meeting of the CA as it is. According to that proposal Nepal was declared republican and removal of Monarchy was possible.

Before declaration of republic, there was hue and cry. If CA declares republic at the same time Maoist YCL will take revenge against the king and unwanted bloodshed will take place. Therefore, leaders were hesitating to do so. Very secrete talk have been done with the royal Nepal army with the help of senior facilitators. The secret talks concluded in tacit understanding that CA will declare republican and proposal will be pass to facilitate the king for graceful exit and Maoist YCL and others will not paid any attention towards Palace and King. Only after that leadership became ready to call the meeting and declare republic in CA.

6          UNRECORDED EVENTS OF NEGOTIATION:

Negotiation was a tuff job of the Nepali politics. The violent Armed conflict transform to peace, constitution making through constituent assembly, restructuring of the state and forward-looking socio-economic transformation. Trust was a key. Several times because of trust deficit reflects during the drafting comprehensive peace accord, interim constitution, army integration and election and making new constitution. The first meeting was held for comprehensive peace accord. The Parallel draft were presented and which draft has to be followed was an issue of the differences. Definition of nation was another debate for a week long. Army integration and rehabilitation was another bone of contention. Election date and meeting of the elected constituent assembly, amendment of the constitution and power sharing were the most contentious one. Federal design was a different story vertically divided in to identity and viability. Name number and boarder were confined the whole debate. Fortunately, I was part of peace and constitution making process. Our process is unique though we don’t have proper record. Therefore, just I can say, it was happened as per my own memory.

7          CONCLUSION:

As a member of Constituent Assembly, I always stand for Peace and Constitution rather than indulged in worthless rhetoric classical debate. Peace and constitution were prime business of the country since almost 20 years. Armed conflict to peace, authoritative monarchy to democratic republic, Unitary to federalism, Hindu kingdom to secularism and exclusionary to inclusionary state was an unforgettable journey of Nepali politics. These all achievement has been institutionalized in the constitution with very crucial and artistic role of key leadership. Now we are here in federal democratic republic of Nepal which is a precious result of tireless struggle and sacrifice. Such a precious process I have been involved and contributed more or less which is rarely recorded just that one wanted to remind to the readers. Many events and information and experiences have to be come out for the benefit of the nation and people for socioeconomic transformation.

Posted in Uncategorized | Comments Off on PEACE AND CONSTITUTION MAKING PROCESS IN NEPAL

COVID 19 Crisis Management Ordinance

COVID 19 Crisis Management Ordinance

Khimlal Devkota Senior Advocate

Start:

The Crisis Management Ordinance was issued to manage the crisis of COVID 19. The ordinance, published in Additional Gazette 16 of the Nepal Gazette on June 20, 2078 BS, was issued on a regular basis, when the policy program was to be discussed in the Parliament, but in an emergency, on the eve of the dissolution of the Parliament. Basically, this ordinance seems to have been issued to manage the crisis posed by COVID 19. This article has been prepared for the purpose of examining various aspects of this ordinance.

Subject of the Ordinance:

In the rule of law, the rule should be according to the law. The law is passed by the people’s elected body, the parliament. The government will use this facility of the ordinance only if it is necessary to do something immediately when the parliamentary session is not in session. Running a country through an ordinance is not a good sign for democracy. In any case, after so many comments, let’s discuss about this ordinance. In the preamble of the ordinance, it has been stated that there is an urgent need to make legal arrangements for the integrated, systematic operation of prevention, control, diagnosis and treatment of COVID 19 and as there is no session of the federal parliament at present. The preamble seems to have sought to justify the ordinance. Similarly, one-fourth of this ordinance, collected in paragraphs 6 and 42, has been miscellaneous and legal provision has been made in that part to facilitate the procurement process. In addition to this, provision of health emergency, closure or control, appointment of Chief District Officer as response officer, Central Hospital, Board of Directors chaired by the Prime Minister, Management Committee exercising subordinate but full powers, operation of security agencies and strict punishment system are the main themes of this ordinance. .

Emergency declaration:

It is clear that the main purpose of this ordinance is to declare an emergency so that it cannot be equated with COVID 19 in general. In case of emergency, any health institution should be asked to diagnose and treat the infected, control and operate the health institution as per the need, employ health workers at any time, use any materials including government, public, privately owned houses, land structures, vehicles, transportation, transportation. The ordinance empowers the government to close down or take control of all government and public and private transactions, including regular activities. The ordinance intends to use the emergency as an emergency by giving additional powers to the Chief District Officer as a response officer for the purpose of controlling and shutting down emergency and public and private activities. He has been appointed as the Chief Executive Officer of the well-known CCMC and has been given the authority to mobilize the army. He has also been appointed as the Executive Officer of COVID 19 Central Hospital. The ordinance also clarifies that all these efforts will be limited to the control of COVID 19.

Easy to purchase

Another important aspect of the ordinance is that the ordinance provides for facilitation, expeditiousness, removal of the obligation to complete the regular process and not to raise any legal question in such arbitrary process. For this, the government has given exemption so that there is no need to follow the procedure in the prevailing law for purchasing directly from any government or company. The government has also given the facility to the government to fix the rate as per the specification and rate of the goods. As the prevailing law has made provision for advance payment up to a maximum of 20 percent, this ordinance has now given additional power to the government to make the provision null and void without any collateral to pay the entire amount in advance. Not only this, no purchase master plan or annual purchase plan is required for this purpose. In addition to this, no matter what is written in the prevailing law, it has been made clear that the procurement under this ordinance for the prevention, control, diagnosis and treatment of COVID 19 is not in accordance with the prevailing procurement law.

New structure:

For the purpose of combating COVID 19, a powerful steering committee has been set up under the chairmanship of the Prime Minister comprising ministers of key ministries, Chief Secretary, Chief of Army Staff, members and Chief Member Secretary of the Center. Arrangement has also been made to invite officials and experts of the concerned bodies to the committee. The Board of Directors is to formulate policy and make policy decisions regarding COVID 19. Similarly, the COVID 19 Crisis Management Center has been renovated, leaving the post of Deputy Prime Minister under the chairmanship of the Chief Minister appointed by the Government of Nepal. The ordinance has made it clear that the head of this center will implement the decision of the Board of Directors. Similarly, the concept of a central hospital has been put forward for the purpose of combating Kovid 19 with a one-sided policy and it has also been mentioned that the head of the hospital will be an officer appointed by the Government of Nepal.

Comment on Ordinance:

Fighting Infectious Diseases Nepal’s legal framework is 58 years old. The five-page one-page law issued in the year 2020 BS for the eradication of whiff has remained in force till date. If the government resorted to the same to deal with the first wave, it could not replace the act this time as well. For nearly two decades, the World Health Organization (WHO) has said that Nepal’s legal framework to fight infectious diseases is inadequate and that its request to upgrade that framework has not been met. Since this ordinance is only related to COVID 19 and the ordinance will become inactive with the end of this crisis, there is still a danger that Nepal will fail in its strategy including the legal framework to fight infectious diseases. Even during the first wave, even the parliamentary committees did not mention the need for a new and unified law, but the ordinance could not come up to meet the lack of an unified umbrella act. This shortage will continue. Similarly, if the ordinance is mainly focused on control, detention, mobilization of army and use of force through the Chief District Officer, then the ordinance will not include any criteria of public procurement and will not raise any legal question about procurement. The positive message could not be sent.

Another aspect of the ordinance is related to time limit and period management. This provision does not replace other laws nor does it amend those laws but repeats the application of the prevailing laws. In such a situation, the provision of such a weak ordinance does not seem to solve the issue of time limit, but there is also a danger of creating trouble in the future due to it.

The ordinance seems to focus on crisis management out of fear of punishment. Recalling Nepal’s own experience, it does not seem that the crisis can be solved easily with the help of strict laws, nor has the culture of following the law developed out of fear of punishment. Law enforcement agencies need to pay attention to these and similar cases.

Finally:

It is important for everyone to pay attention to the fact that the proposed ordinance to solve the COVID 19 crisis, based on their own experience of crisis resolution and the standards and measures developed globally, does not create further complications. From the point of view of the rule of law, running the country through an ordinance cannot be considered correct under any circumstances.

Posted in Uncategorized | Comments Off on COVID 19 Crisis Management Ordinance

COVID 19 Budget: Review and Expectations

Start: Continue reading

Posted in Uncategorized | Comments Off on COVID 19 Budget: Review and Expectations

Nepali Nationalism is in question under the leadership of KP Oli: A voice of voiceless.

Senior Advocate at Supreme Court of Nepal

It was a kind of understanding that KP Oli became overnight a nationalist since devastating earthquake of 2015. He stand strongly against India interventions during the economic blocked against Nepal. With this reason he became Prime Minister of Nepal after promulgation of the Constitution of Nepal with the tacit understanding of all major political parties. Again he became PM of broad coalition government of communist parties. After leading of almost two-third majority Government once again he try to resume his past relation with India to continuation of the chair of Prime Minister. Actually he wanted to remain in the chair as his wish. He is blessed by President and through President his secret relation re-established as it is with foreign different agencies. Although people were well informed with his past history, schooling and his leaning towards India since Mahakali Treaty of 1990. Now it is open about his leaning towards India rather than Nepali Interest. Followings justifications are enough to believe the fact.

1. largest Communist party were not wish of the national and international reactionary’s except peace loving revolutionaries Nepali people. Which wanted to dismantle then and there through KP Oli as Chairman of the Party and Prime Minister of Nepal. He assured to them to complete task as it is. Now NCP has broken with the help of Supreme Court again wanted to dismantle the then UML also which is also close to breakaway.

2. the parliament who has passed the proposal of Kalapani, LimpiyaDhura and Lipulek, Indian establishment were dead against it then they wanted to dissolve it. He did so.

3. political stability is a wish of the Nepali people since 70 years of political struggle. since last election peoples mandated for political stability. which is also not in favor of reactionaries and specially those who were used to in the dealing of micromanagement. this wish is also fulfilled by KP Oli.

4. Likewise Mahakali in 1990 now lower Arun has been handover to India without Global Tender to make happy Indian establishment instead of Nepali People.

5. MCC is also interest of Indo Pacific strategy including US and India against BRI initiated by China. KP Oli is fully assured to fulfill the reactionaries interest.

6. The constitution of Nepal is not accepted by Indian establishment till this date since beginning now KP Oli wanted to repeal the constitution including republican, Federalism, Secularism and Inclusion which are considered huge political achievement of the 70 years long peoples struggles specially main achievement of the Peoples War launched by CPN Maoist.

7. finally, KP Oli wanted to prove himself, he were never in favor of republican, federalism, secularism and secularism by any means and with the help of anybody else.

For that purpose last couple of months ago Indian RAW Chief were in One on One Meeting in PM Residence, later on Indian Army Chief arrived and received honor CNC from President and very recently another RAW officials arrived in Kathmandu for implementation of Plan B. at the same time PM call emergency Cabinet Meeting likewise previous incidents.

Posted in Uncategorized | Comments Off on Nepali Nationalism is in question under the leadership of KP Oli: A voice of voiceless.