Fabricated False news against Justice Girish Chandra Lal

I have known Justice Lal since 1993 and based on my personal knoweldge and observation, he is one of the highly ethical justices in the Judiciary.

Fabricating false news, tarnishing his image is really unfortunate for the people’s faith in the Judicial system. Make no mistake that our Judiciary is the only surviving state institution based on the 1990 people’s mandate and remains strong, though the executive and legislative based on popular will ceased to exist long back since dissolution of parliament in 2002. In absence of legislative and executive based on popular will since 2002, the regressive forces are trying to dismantle the last and only valid state institution.

I highly condemn this disgraceful act of the ‘terrorists’, who tend to terrorise the citizens who know less of his contribution to the judical society. Since the initiation of the Legislative Committee hearing on the Justices, a trend seems to have been forced by regressive elements who want to deter the spirit of Independent Judiciary and forcefully impose their own version of judicial control. And this has to end.

I wish Justice Lal successful tenure in the Judiciary, free from baseless-pointless-egoistic political apprehension.

Adcocate Santosh Giri Supreme Court of Nepal Curently in California, United States. Moderator, LawNepal

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And yes, lets not forget, The Law is above the King!!!

Referring to Social Contract Theory should give us the foundation for the discussion on Law vs. Politics. Jurisprudence itself stands on the core nexus of law and politics.

Here’s my simple understanding:

Adam and Eve bumped into each other at Eden Garden. Until then, both were sovereign, enjoying the Natural Law. Once they confronted the Poisonous Fruit Tree of Sin, they had to decide a set of norms among themselves, for who shall eat first. The sin fruit soon revealed its colors when Adam and Eve started claim authority over two tract of land bearing Fruit trees. A line had to be drawn to determine their rights and obligations (The Law) and sanctions and parameters (Politics), hence  law and politics were born.

Soon more sovereign individuals flocked in and conflict was destined to brew. A greater need of determination of rights, duties, obligations was needed and a social contract of mutual understanding was formed. Hence, individuals gave up their sovereignty for a greater good and agreed upon set of sanctions, enumeration of rights and duties and a sovereign institutional form (a society, a state, a nation) was agreed upon, all based on social contract theory. The law of the land was born.

The Politics (policy) came into play ONLY from the point when one sovereign Adam felt apprehended by another sovereign Eve in terms of ones right to pleasure and to limit the pain one would suffer; thereby agreeing upon norms for the Poisonous Tree (Commandments?). Until then neither Adam nor Eve had acquaintance with politics, policies or sanctions. Hence, Politics is a yolk of Law (the egg) where the fragile rights and duties (the shell) coexist with a carefully balanced greater sovereign with right to sanction (the white). A minor disbalance can crack the egg.

Advocates of Critical Legal Studies confine law within paradigm of politics. Without referring to Kelsen’s Legal Positivism, Hart’s Analytical Positivism, Legal Realism and the Postmodern Utopia, the discussion on law and politics will never be justified.

In re: Nepal’s politico-limbo:

Constitution is a politico-legal document, a political agreement to set the legal parameters for the nation. Nonetheless, it is dynamic (except in Nepal where, the vision-less leaders opt for a new constitution rather than amend the law of the land). Its a pity, our law of the land (your encompassed document!) is malfunctioning in one vital element of the state: the formation of an executive!!!

Or, is what we have is actually the law of the land or a mere political agreement dumped by the rebels to achieve their goals? Is the Interim (!) Constitution merely a political agreement between 8 political parties?

The greatest question is: Whether the interim constitution is derived from a popular will?  NO.

Hence, in absence of a popular will, a legislative (Not a Constitution Drafting People’s Assembly), an executive based on the legislative; the state is long over due of its legitimacy!

Since dissolution of parliament in 2002; Nepal has been functioning solely on the shoulders of one state organ, the Judiciary (which has never been tyrannical fortunately). The politics has failed miserably since 2002 (be it democrats, republics, monarchy, hardliners and opportunists).

What kept the sovereignty intact then? No doubt, one state pillar, the Judiciary. And yes, lets not forget, The Law is above the King!!!

Justice and Compensation for Nepalese Killed in US !

Case Study 1: Shooting at night club leads to 3.5 million dollar verdict[i]. An OH law firm represented the mother of an 18 year old young man who was shot and killed at a night club. He was standing watching a fight take place, when an unknown assailant discharged a firearm, killing our client’s son. A claim was brought against the night club for improper security, resulting in a 3.5 million dollar judgment.

Case Study 2[ii]: Members of greater Boston’s Nepali community, which numbers about 6,000 to 7,000, are calling for justice and trying to raise money to cover funeral expenses after one of their own was gunned down behind the counter of a Tedeschi’s store. The president and C.E.O. of Tedeschi’s stores put out a statement saying he’s is deeply saddened by the loss of Dangol to a senseless act of violence.

Anyone with information is asked to call the Homicide Unit at 617-343-4470. Individuals wishing to provide information anonymously may do so by calling the CrimeStoppers Hotline at 1-800-494-TIPS or texting ‘TIPS’ to CRIME (27463).

Case Study 3[iii]: Missouri City Police have arrested a 17-year old Raymond Whitcher in the case of Ashok Bhattarai’s murder. Full story here. A Nepali student who was working his shift at a convenience store in Missouri City, Texas, was shot with a rifle and killed during a robbery on Sept. 28.

Case Study 4: The Council on American-Islamic Relations[iv] (CAIR) called on the FBI to investigate a possible bias motive for the murder of a Texas convenience store owner, allegedly shot to death by a suspected white supremacist. Surveillance video showed that the store owner, 50-year-old Naushad Virani, was shot during a robbery Friday night in Liberty County, Texas. Local authorities are investigating whether the murder was a hate crime. When arrested, the alleged killer told deputies: When I saw that all of you were white I decided to give up and not fight. ” He also reportedly admitted that he shot the store owner. The suspect in the case has a lengthy criminal record and is believed to be a member of a white supremacist group. He has many tattoos, including a Nazi SS symbol on the right side of his neck. A CAIR representative in Texas is in touch with the family of the victim.

ANY SIMILARITIES ON THE ABOVE FOUR CASES?

List of Incidents leading to death of Nepalese in the US

City and State Venue Victim Incident Status
Boston, MA Convenience Store Surendra Dangol, 40 December 27, 2009 Fatally shot dead. Criminal at large
Missouri City, TX First Stop Food Store Ashok Bhattarai, 21 September 28, 2008 Fatally shot dead. 17-year-old Raymond Whitcher for the murder.
Bedford, TX D&S Food Store in Bedford. Gaurab Rajbanshi, 28 June 11, 2007 Theodis Dodson pleaded guilty to capital murder and received a life sentence. Jeff Dodson is being tried for the death penalty for killing. Fredrick Hughes was in the get-a-way car and was found not guilty.
East Fort Worth, TX TL Food Store Jas Bahadur Rai, 48 January 7, 2009 Leonard Junior Coulter, 46, was arrested
Baltimore, MD Texaco gas station Himank Karki, 21 August 27, 2007 Fatally shot dead. Criminal at large
TX Leon County, Amrit Dhital, 21 January 7, 2006 Car Accident not at fault
TX Leon County, Puskar Acharya, 21 January 7, 2006 Car Accident not at fault
TX Leon County, Prahlad Gurung, 22 January 7, 2006 Car Accident not at fault
TX Leon County, Subash Gurung, 20 January 7, 2006 Car Accident not at fault
MN Southern Minnesota highway. Utsav Basnet, 19 January 4, 2006 Car Accident-Not at fault
MN Southern Minnesota highway. Bedija Kharel, 20 January 4, 2006 Car Accident-Not at fault
MN Southern Minnesota highway. Nishma Timilsina, 21 January 4, 2006 Car Accident-Not at fault

Dangers of Death and Serious Injury while working at the Retail Stores and gas Stations:

Accidents that are caused by defective or dangerous property, either inside or outside a building, are called “premises liability” accidents. Here are the general guidelines for premises liability accidents on legal responsibilities. Accidents that are caused by defective or dangerous property, either inside or outside a building, are called “premises liability” accidents. These accidents can take place at commercial buildings (stores or offices), residences (private homes or rentals), or on public property (parks, streets, or public transportation).[v]

The Basic Liability Rules for Premises Accidents

There are two basic rules to determine who is responsible for a premises accident.

Rule One: The Owner Must Keep the Property Safe

The owner or occupier of property has a legal duty to anyone who enters the property — as a tenant, a shopper, or a personal or business visitor — not to subject that person to an unreasonable risk of injury because of the design, construction, or condition of the property. The reason for this rule is simple: The owner has control over the safety of the premises and the visitor does not. For example, if the owner of an apartment building does not fix a broken piece of tile in the entrance hall, he or she is responsible if a visitor trips on that tile and is injured.

Rule Two: The Visitor Must Use the Property Normally

The second rule of premises liability applies to the conduct of the injured person. If a person gets injured while acting in an unexpected, unauthorized, or dangerously careless way, the property owner or occupier is not responsible. For example, if a guest swings down the stairs on the handrail, the handrail breaks, and the guest is injured, the owner will not be held responsible.

What about Injured Employees?

These rules extend to employees who are injured on their employer’s property; however, employees must file a worker’s compensation claim rather than a private injury claim.

Commercial Property

If you are injured at a store, office, or other business, whether the owner or occupier is legally responsible for your accident is usually determined by where the accident occurred and what the lease or other business contract says about such liability. You should notify the business about your accident and injuries. The business’s insurance company will either handle your claim itself or pass the matter on to the building owner’s insurance company.

A store owner is responsible for the safety of staff inside the store as well as the safety of all those outside in the parking lot. If they fail to keep their premises safe, then they are considered liable for any harm caused be their negligence. Retail store negligence cases can include accidents that occur on the premises, attacks and assaults that occur on the premises, and any harm that occurs as a result of an illegal sale. A retail store negligence attorney must be contacted as soon as possible.

According to the law, property owners are obligated to provide safe, secure and properly maintained premises. Regardless of how or why a person enters a property, property owners may be held liable if injury occurs. Many factors can impact the outcome of a premises liability case. Was the injured party (entrant) an invitee, licensee, or trespasser? Did the injury result from a natural or artificial condition of the premises? Was the property satisfactorily maintained? Was the facility inadequately secured?

Generally, the law provides for compensation of preventable accidents. Recompense may include loss of income, medical bills, as well as consideration for pain and suffering. Many businesses and homeowners carry premises liability insurance; however insufficient insurance leaves the property owner personally responsible for additional monies. If offered an insurance settlement, it is wise to consult with premises liability attorneys who will evaluate the case and ensure that the client’s interests are protected.

Late Surendra Dangol and Justice

Massachusetts has just changed its premises liability law with regard to self-service retailers.  On April 17, 2007, Massachusetts’ highest court, the Supreme Judicial Court, decided Sheehan v. Roche Brothers Supermarkets, Inc., which lightens plaintiff’s burden of proof in slip and fall cases. In Sheehan, the plaintiff slipped on a grape inside a supermarket sustaining significant injuries that required a month of hospitalization.  In reversing a decision for the defendant, the Supreme Judicial Court adopted a new approach to premises liability.

Previously, Massachusetts followed the traditional approach for premises liability cases.  That is, a store owner simply had to “maintain its property in a reasonably safe condition in view of all of the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk.”  Thus, a store owner could only be held liable for an injury if the owner had actual or constructive notice of the existence of the dangerous condition and had sufficient time to fix the condition. In deciding to forego the traditional approach in favor of a “mode of operation approach,” the Court stated that the switch was necessitated due to the change in individualized clerk-assisted retail stores to self-service retailers.  Due to the prominence of self-service businesses, the Court stated that focus should be on the reasonable foreseeability of a patron’s carelessness.  Consequently, where a store’s chosen mode of operation makes it reasonably foreseeable that a dangerous condition will occur, a store owner may be held liable for injuries if the plaintiff proves that the store owner failed to take reasonable precautions necessary to protect him or her from the foreseeable dangerous condition.

Although the plaintiff no longer needs to show that a store owner had notice of the dangerous condition, in order to prove a claim the plaintiff must do the following:

(1) Show the injury was attributable to a reasonably foreseeable dangerous condition on the owner’s premises that is related to the owner’s self-service mode of operation;

(2) Show the owner failed to take reasonable measures, commensurate with the risk involved, to prevent the injury; and

(3) Persuade a jury that the owner acted unreasonably.  Based on the Sheehan decision, all store owners, especially those which allow patrons to obtain their own goods, must take significant precautions to protect the safety of their patrons[1].

Who is responsible for compensatory damages ?

Generally, a store owner is responsible for the safety of staff inside the store as well as the safety of all those outside in the parking lot. If they fail to keep their premises safe, then they are considered liable for any harm caused be their negligence. Retail store negligence cases can include accidents that occur on the premises, attacks and assaults that occur on the premises, and any harm that occurs as a result of an illegal sale. A retail store negligence attorney must be contacted as soon as possible.

A quick Google for Personal Injury Lawyers (retail store negligence) in Boston, MA shows the following results:

Generally, an initial consultation with these law firms is free. It is possible that the lawyer may agree to work on a contingent basis e.g. 1/3 of the amount recovered as the fee. If one has suffered a serious injury in a premises liability accident, don’t assume there isn’t anything you can do about it. The property owner’s insurance company won’t stand up and fight for your financial interests[vi].

Sadly, Nepali lawyers are mostly based in New York, who cannot practice a MA law with NY License. This raises the concern of legal representation and lawyers from our community in all states resided by Nepalese. ANLUS is ALWAYS willing to assist the family and community to get connected with an attorney for appropriate legal action ASAP. Please communicate regarding this matter at anlusnepal@gmail.com OR leave a message at www.anlus.org

Disclaimer: Information and News article excerpts used in this article are not intent to violate IP laws but a mere attempt of dissemination for public interest.

santosgere@gmail.com


[1] http://gracegarcia.typepad.com/massachusettslitigation/premises_liability/


[i] http://www.mmmpalaw.com/CM/Custom/custom36.asp[ii] http://wbztv.com/local/jamaica.plain.shooting.2.1394258.html

[iii] http://www.sajaforum.org/2008/09/crime-nepali-st.html

[iv] http://thesop.org/law/2009/12/29/white-supremacist-allegedly-shot-convenience-store-owner

[v] http://articles.directorym.com/Premises_Liability_Accidents_Massachusetts-r1141105-Massachusetts.html

[vi] http://www.kaplanbond.com/CM/PersonalInjury/Premises-Liability.asp

जनादेशको विस्तार हुन सक्दैन – भीमार्जुन आचार्य

काठमाडौ, २०६६ पुस ९ – अन्तरिम संविधानले संविधानसभाको कार्यकाल पहिलो बैठक बसेको मितिले दुई वर्षको निर्धारण गरेको छ । संविधानको सिद्धान्त र शास्त्रलाई हेर्दा निश्चित समयावधिको जनादेश जनताले आफ्ना प्रतिनिधिलाई प्रदान गरेको हुन्छ । त्यस्तो जनादेश विस्तार हुन सक्दैन भन्ने संवैधानिक मान्यता हो । त्यो मान्यताबाट हेर्दा दुई वर्षको समयावधि संविधानसभाका लागि अपरिवर्तनीय हुन्छ । त्यसमा एउटामात्र अपवाद छ । संविधान लेख्ने क्रममै मुलुकमा संकटकालको घोषणा भएको अवस्थामा संविधानसभाले आफ्नो कार्यकाल ६ महिनासम्म बढाउन सक्छ । संकटकालका कारण संविधान लेखनमा बाधा पुगेमा यसो गर्न सकिन्छ । तर संविधान लेख्नकै लागि संकटकाल लगाउन सकिने प्रावधान संविधानमा छैन ।

अन्तरिम संविधानको धारा १ सय ४३ मा संकटकालसम्बन्धी व्यवस्था छ । संकटकालीन अधिकार प्रयोग गर्नका लागि तीनवटा व्यवस्थाहरू विद्यमान रहेको हुनुपर्छ । नेपाल राज्यको सार्वभौमसत्तामा संकट आएको हुनुपर्छ । दोस्रो, नेपाल राज्यको अखण्डताको सुरक्षामा खतरा आएको हुनुपर्छ र तेस्रोचाहिँ कुनै भूभागको सुरक्षामा खतरा आएको हुनुपर्छ । यो तीन अवस्थामध्ये कुनै एक अवस्था विद्यमान भयो भने संकटकालीन अधिकारको प्रयोग गर्न सकिन्छ । यी तीन अवस्था विद्यमान हुनका लागि पनि चार कारणहरू संविधानले उल्लेख गरेको छ । युद्ध, बाह्य आक्रमण, सशस्त्र विद्रोह र चरम आर्थिक विशृङखलताका कारणले ती अवस्थाको सिर्जना भएको हुनुपर्छ ।

संविधानसभाले हालसम्म गरेको कामको मूल्याङ्कन गर्दाखेरि ८ विषयत समितिले आफ्नो प्रारम्भिक अवधारणा तयार गरेका छन् । दुईवटा विषयगत समिति र संवैधानिक समितिले प्रारम्भिक अवधारणा निर्माणका काम सम्पन्न गरेको देखिँदैन । यो दृष्टिकोणले हेर्दा संविधान तोकिएको समयमा बन्दैन कि भन्ने अवस्था देखिन्छ । अर्को भनेको राजनीतिक र नियतका कारण हुन् । कतिपय समूहलाई समयमा संविधान नलेखेमा के फरक पर्छ र भन्ने परेको हुनसक्छ ।

दुई-तीनवटा कारण संविधान निर्माण नहुनुमा बलियो जिम्मेवार भएका छन् । राजनीतिक सहमतिको बिग्रँदो अवस्थाले पनि संविधान निर्माणमा बाधा गरिरहेको छ । माओवादीले एकतर्फी रूपमा गरिरहेको संघीय गणराज्यका इकाइहरूको घोषणाले पनि संविधान निर्माणमा बाधा गरिरहेको छ । तेस्रो, संघात्मक राज्यको व्यवस्थापन र त्यसको अन्तरवस्तुमा रहेका विवाद पनि संविधान निर्माणका चुनौतीका रूपमा आएका छन् । बाह्य देश र स्वार्थ समूहको कारण पनि यसमा केही न केही समस्या आएका छन् ।

समयका कारण बाँकी अवधिमा संविधान लेख्न नसकिने अवस्था देखिँदैन । दुई वर्षको अवधिमा संविधान निर्माण भएका धेरै उदाहरणहरू छन् । दक्षिण अपि|mकाको अन्तरिम संविधानमा तोकिएको दुई वर्षको अवधिमा नै -सन् १९९४-९६) संविधान बनेको थियो । त्यसैले हामीकहाँ पनि समयमा संविधान लेख्न सकिँदैन भन्ने होइन । यसमा दलहरू, संविधानसभा र राज्यका अन्य निकाय वा पदाधिकारी कति जिम्मेवार र इमानदार बन्छन् भन्ने हो । संविधानसभाले समयमा संविधान लेख्न सकेन भने यसको वैधतामाथि प्रश्न उठ्नेछ । एकथरी विचार आएजस्तो संविधानसभाले संविधान लेखेन भने राज्यका सबै निकायहरू भंग हुने, राष्ट्रपतिमा सबै अधिकार निहित हुने भन्ने खालको तर्कलाई मान्न सकिँदैन । त्यस खालको प्रावधान संविधानमा छैन ।

संविधानसभाको कार्यकाल दुई वर्षको किटानी व्यवस्था भएको हुनाले जनादेशको विस्तार हुन सक्दैन भन्ने सैद्धान्तिक मान्यता हो । संविधान नलेखिएको अवस्थामा स्वाभाविक संवैधानिक र राजनीतिक संकट उत्पन्न हुनेछ । मुलुकका सबै निकाय भंग हुने परिकल्पना गर्न सकिँदैन ।

संवैधानिक संकट ल्याएर संविधानसभा नै विघटन गर्न खोजियो भने त्यससँग जोडिएका अन्य निकायहरूको वैधतामा प्रश्न आउँछ । नेपाल एउटा जटिल मोडमा छ । त्यसैले जनादेश र संविधानको म्यान्डेटलाई हामी इमानदारीका साथ पालना गर्न चाहन्छौं भने तोकिएको समयावधिभित्र संविधान लेख्नुको अरू कुनै विकल्प छैन । यो अन्तिम र अपरिवर्तनीय विकल्प हो भनेर दलहरू अगाडि बढ्नुपर्छ । त्यसो गर्नु सबैका लागि बुद्धिमानी हुनेछ ।

हुन त संविधानसभाको विश्व अभ्यासमा संविधानसभाले आफ्नो कार्यकाल आफंैले बढाएका उदाहरण पनि छन् । जस्तो बोलेभियामा एक वर्षको अवधि नपुगेर अर्को वर्ष थप गरिएको थियो । तर तोकिएको कार्यकालभित्र काम नसकिएर समय थपिएका उदाहरणलाई हेर्नुभयो भने त्यसलाई राम्रो परिणाम दिएको छैन । त्यसैले यो राम्रो अभ्यास होइन । समय थप गरिएका मुलुकमा संविधानसभा नै असफल भएका उदाहरण पनि छन् । बोलेभियामा नै एक वर्षका लागि समय थपिएको -सन् २००६ )मा अहिलेसम्म संविधान बन्नसकेको छैन । दुनियाँका खराब अभ्यासलाई नजिर बनाउन हुँदैन भन्ने हाम्रो आग्रह छ । तोकिएको समयमा संविधान बनाएका देशमा नै संविधानसभाले राम्रो व्यवस्थापन गरेका छन् ।

संविधासभा भंग भएको अवस्थामा राष्ट्रपति सर्वोपरी हुने परिपकल्पना गरिएको छैन । अहिलेको संविधानअनुसार त राष्ट्रपति केवल औपचारिक व्यक्तिमात्र हुन् । उनमा कुनै पनि प्रकारका सक्रिय अधिकार छैनन् । त्यसैले संविधानसभाको विघटन भएमा के हुने भन्ने अन्योल संविधानमा छ, त्यो कुरा साँचो हो । त्यसबाट ठूलो संवैधानिक र राजनीतिक संकट आउँछ । संविधानसभा विघटन भएमा तत्पश्चातको अधिकार कसमा जाने भन्ने व्यवस्था अहिलेको संविधानमा छैन ।

समयसीमा भित्र संविधान पनि लेखिएन भने संविधानसभाले संविधानको पालना नगरेको र धोका दिएको ठहरिन्छ । तर यसबाट यो संविधान नै समाप्त हुने भन्ने हुँदैन । संविधानको जुन धारा प्रयोग हुँदैन, त्यही धारा मात्र निष्त्रिmय हुन्छ । पूरै संविधान नै निष्त्रिmय हुने र मृत हुने भन्ने अवधारणा हुँदैन ।

संविधानसभाको कार्यकाल समाप्त भयो, यो संविधानसभा अन्तर्गतका अन्य निकायहरू विघटन भए भने त्यो अख्तियारी कसले प्रयोग गर्ने भन्ने संविधानमा उल्लेख छैन । त्यो अधिकार राष्ट्रपतिमा जान्छ भन्ने तर्क गर्न सकिँदैन । संविधानसभा विघटन भएको अवस्थामा पनि नयाँ संविधान नआएसम्मका लागि राष्ट्रपति जीवित रहने भएकाले त्यो संस्थाचाहिँ कायम रहन्छ । तर राज्यको कार्यकारी अधिकार प्रयोग कसले गर्ने भन्नेचाहिँ संविधानमा उल्लेख छैन । प्रधानमन्त्री पनि संविधानसभाको

सैद्धान्तिक रूपमा संविधान संशोधन गरेर समयावधि थप्ने भन्ने कुरा मिल्दैन । दुई वर्षको यो अपरिवर्तनीय व्यवस्था हो । अगाडि नै संविधान लेखियो भने विघटन हुनसक्छ । समयावधि पनि सकियो, संकटकालीन अवस्थाले संविधान लेख्न नसकिएको पनि होइन, समयावधि पनि थपिएन भने त यसको समाप्ति भएको तर्क गर्न सकिएला । तर धारा १४८ बमोजिम संविधान संशोधन गरी कार्यकाल तलमाथि गरे भने के हुने भन्ने प्रश्नचाहिँ अनुत्तरित छ । यो भोलि कानुन र अदालती व्याख्याको प्रश्न हुनसक्छ ।

(अधिवक्ता आचार्यसँग राजेन्द्र फुयालले गरेको कुराकानीमा आधारित)

http://www.ekantipur.com/np/news/news-detail.php?news_id=304018

LawNepal :: 75,000 Readers :: 176 Nations

I would like to thank each readers from across the globe personally for the continued support, comments, suggestions and for loving Nepal. In 2008, almost 25000 readers visited this blog from all over the world.

Santosh Giri, California, January 20, 2009 (Inauguration Day)

Current Country Totals
From 25 Jan 2008 to 13 Jan 2009

[www.clustermaps.com]

United States (US) 15,868
Nepal (NP) 1,663
India (IN) 1,463
United Kingdom (GB) 1,293
Canada (CA) 530
Australia (AU) 448
Nigeria (NG) 214
Philippines (PH) 164
Ireland (IE) 158
United Arab Emirates (AE) 155
Pakistan (PK) 149
Germany (DE) 142
Bangladesh (BD) 126
Hong Kong (HK) 114
Japan (JP) 101
Netherlands (NL) 99
Thailand (TH) 92
Morocco (MA) 86
Korea, Republic of (KR) 86
Europe (EU) 85
Ghana (GH) 84
Italy (IT) 77
Singapore (SG) 77
Qatar (QA) 74
South Africa (ZA) 72
Norway (NO) 70
Egypt (EG) 69
Saudi Arabia (SA) 67
Cameroon (CM) 66
Sweden (SE) 65
Malaysia (MY) 65
Spain (ES) 62
France (FR) 61
Algeria (DZ) 56
Belgium (BE) 55
Jamaica (JM) 52
Iran, Islamic Republic of (IR) 51
Finland (FI) 49
Switzerland (CH) 48
Austria (AT) 47
Mexico (MX) 46
Ethiopia (ET) 44
Turkey (TR) 43
Kenya (KE) 42
Sri Lanka (LK) 41
Kuwait (KW) 37
New Zealand (NZ) 36
Brazil (BR) 29
Israel (IL) 29
Asia/Pacific Region (AP) 29
Denmark (DK) 26
Cote D’Ivoire (CI) 26
Uganda (UG) 25
Indonesia (ID) 23
Romania (RO) 23
Gambia (GM) 23
Jordan (JO) 23
Russian Federation (RU) 22
Poland (PL) 22
Ukraine (UA) 20
Taiwan (TW) 18
Sudan (SD) 18
Trinidad and Tobago (TT) 17
Tanzania, United Republic of (TZ) 17
Bahrain (BH) 16
Lebanon (LB) 16
Greece (GR) 15
Bulgaria (BG) 15
Senegal (SN) 15
Hungary (HU) 14
Cambodia (KH) 14
Albania (AL) 13
Tunisia (TN) 13
Colombia (CO) 12
Portugal (PT) 12
Rwanda (RW) 11
Vietnam (VN) 11
Serbia (RS) 11
Liberia (LR) 11
Peru (PE) 10
Cyprus (CY) 10
Venezuela (VE) 10
Yemen (YE) 10
Dominican Republic (DO) 9
Macedonia (MK) 9
Lithuania (LT) 9
Argentina (AR) 9
Puerto Rico (PR) 9
Croatia (HR) 9
China (CN) 8
Bahamas (BS) 8
Czech Republic (CZ) 8
Chile (CL) 8
Benin (BJ) 8
Myanmar (MM) 8
Ecuador (EC) 7
Guam (GU) 7
Slovakia (SK) 7
El Salvador (SV) 7
Afghanistan (AF) 7
Armenia (AM) 7
Oman (OM) 7
Eritrea (ER) 6
Luxembourg (LU) 6
Bermuda (BM) 6
Georgia (GE) 5
Mongolia (MN) 5
Belarus (BY) 5
Kyrgyzstan (KG) 5
Libyan Arab Jamahiriya (LY) 5
Congo, The Democratic Republic of the (CD) 5
Guyana (GY) 5
Costa Rica (CR) 5
Malta (MT) 4
Botswana (BW) 4
Guatemala (GT) 4
Mauritius (MU) 4
Northern Mariana Islands (MP) 4
Belize (BZ) 4
Cayman Islands (KY) 4
Barbados (BB) 4
Maldives (MV) 4
Syrian Arab Republic (SY) 4
Sierra Leone (SL) 4
Latvia (LV) 4
Panama (PA) 4
Palestinian Territory (PS) 4
Slovenia (SI) 3
Uzbekistan (UZ) 3
Fiji (FJ) 3
Tajikistan (TJ) 3
Virgin Islands, U.S. (VI) 3
Saint Vincent and the Grenadines (VC) 3
Zambia (ZM) 3
Montenegro (ME) 3
Macau (MO) 3
Bosnia and Herzegovina (BA) 3
Zimbabwe (ZW) 2
Namibia (NA) 2
Guinea (GN) 2
Iceland (IS) 2
Somalia (SO) 2
Lesotho (LS) 2
Burkina Faso (BF) 2
Chad (TD) 2
Mali (ML) 2
Kazakstan (KZ) 2
Saint Kitts and Nevis (KN) 2
Haiti (HT) 2
Malawi (MW) 2
Bhutan (BT) 2
Saint Lucia (LC) 2
Anguilla (AI) 1
Virgin Islands, British (VG) 1
Mozambique (MZ) 1
Cuba (CU) 1
Swaziland (SZ) 1
Brunei Darussalam (BN) 1
Togo (TG) 1
Estonia (EE) 1
Mauritania (MR) 1
Bolivia (BO) 1
Suriname (SR) 1
Gibraltar (GI) 1
Azerbaijan (AZ) 1
Samoa (WS) 1
Honduras (HN) 1
Dominica (DM) 1
Palau (PW) 1
Moldova, Republic of (MD) 1
Guadeloupe (GP) 1
Monaco (MC) 1
Netherlands Antilles (AN) 1
Grenada (GD) 1
Nicaragua (NI) 1
Djibouti (DJ) 1

Advocate Krishna Pokharel’s Writ Intiaites Probe/Commission on Right to Information

Appeal Registered in NIC against Its Commissioners

Advocate Krishna Pokharel, on behalf of Freedom Forum, registered appeal in the National Information Commission (NIC) on October 24, Friday stating that the NIC did not furnish official information about Chief Commissioner and Commissioners as demanded.

Mr. Pokharel had registered application in the NIC demanding information about the property details, affiliation and responsibility in other organization, political involvement, income source and monthly remuneration of the commissioners on October 3, 2008.

The appeal was made when the NIC did not provide information in the medium and form as demanded by the plaintiff. The NIC breached the procedures and essence of the RTI.

Freedom Forum believes that the impartiality, neutrality and judicial conscience of National Information Commission should regularly be scrutinized as it is the public body having open access to all information and records of the State.

It is the genuine public concern since the Commission is the authorized body to promote and enforce Right to Information (RTI) and to dispense justice when public concern information are not provided on demand.

—————————————————

Advocate Santosh Sigdel Adds:

Keeping in mind that the RTI Act grants every Nepali citizen the right to access information held by the public bodies, advocates duo KrishnaPokharel and Rishee Ram Ghimire on behalf of Freedom Forum filed an application in the Office of Prime Minister and Council of Ministers on September 5, 2008 demanding that the official copy of the report of the commission formed to probe the killing of CPN-UML candidate from Surkhet district, constituency-1, Rihsi Prasad Sharma be made public.

In accordance with the RTI ACT-2007, Clause 2(E), advocates duo Pokharel and Ghimire on behalf of Freedom Forum behalf of Freedom Forum filed another application in the Office of Prime Minister and Council of Ministers in the same day demanding the copy of the report of probe commission formed to investigate

Source: http://www.nepalpressfreedom.org/detail.php?subaction=showfull&id=1225014770&archive=&start_from=&ucat=1&

Posted on 26 Oct 2008 by Admin

Nepal’s August 2008 Flood – 50,000 Displaced – 2000 dissappeared !

RIPARIAN WATER RIGHTS

Riparian water rights[1] (or simply riparian rights) is a system of allocating water among those who possess land about its source. It has its origins in English common law. It is used in the United Kingdom and states in the eastern United States. Under the riparian principle, all landowners whose property is adjacent to a body of water have the right to make reasonable use of it. If there is not enough water to satisfy all users, allotments are generally fixed in proportion to frontage on the water source. These rights cannot be sold or transferred other than with the adjoining land, and water cannot be transferred out of the watershed. Riparian rights include such things as the right to access for swimming, boating and fishing; the right to wharf out to a point of navigability; the right to erect structures such as docks, piers, and boat lifts; the right to use the water for domestic purposes; the right to accretions caused by water level fluctuations. Riparian rights also depend upon “reasonable use” as it relates to other riparian owners to ensure that the rights of one riparian owner are weighed fairly and equitably with the rights of adjacent riparian owners. In the western United States, water rights are generally allocated under the principle of prior appropriation, which is derived from Spanish law and treats water as a resource unrelated to land.

NON-MAINTENANCE OF KOSHI DAM

‘Non-maintenance by India led to Koshi havoc’: A high-level government team that inspected areas devastated by the flooded Koshi River has held India responsible for the havoc. The devastation took place as the Indian side did not carry out repair and maintenance work on the Koshi barrage and the embankment along the river, thereby violating the Nepal-India Koshi agreement, said top officials. India is entirely responsible for repair and maintenance work and operation of the barrage, as per the bilateral agreement signed in 1954. “Every year in the past the Indian side used to do at least some maintenance work. But this year they did not carry out the repairs,” Khom Raj Dahal, Deputy Director General of the Department of Water Induced Disaster Prevention (DWIDP), told the Post. “This was the main reason why the Koshi breached the embankment and submerged about 10,000 hectares of cultivated land and villages.” The Indian side used to contact the Regional Directorate of the Department of Irrigation (DoI) in Biratnagar. The DoI plays a facilitating role as and when requested by the Indian teams. “But, this year they did not contact the DoI regional office” Dahal said[2].

POURING FOREIGN AID

After the government’s call for support to the floods victims of Sunsari, relief aid continues to pour in from national and international communities. The European Commission announced a total of 1 million Euros (Rs 103 million) as the humanitarian aid for victims of Koshi floods Friday. Food aid and nutritional support will be provided to the victims through the fund, which will be channeled through the European Commission Humanitarian Aid department, ECHO, under the responsibility of Commissioner Louis Michel. This assistance will target up to 50,000 people displaced by the floods, who will receive emergency food aid and the most vulnerable will benefit from nutritional support through the World Food Programme, a statement by EU said. Similarly, the secretaries and staffs of the ministry of peace and reconstruction also announced to lend financial support. The secretaries will give their three-day salary while other staffs will spare their one day’s earning. The staffs of the home ministry contributed over Rs 100,000 and Nepal Telecom contributed Rs 3 million to the prime minister’s trust for natural calamities[3].

THE WATER TREATIES AND NEPAL’S POSITION

Nepal‘s freshwater resources flowing down from the Himalayan heights have attracted the attention of various powerful quarters. While the upper co-riparian country, China, has not posed any major problem for Nepal’s water resources, the signing of the first water sharing treaty with India, the Kosi Agreement, 1954, based on unequal provisions, set the tone for gradual colonisation of Nepali waters by India. The second Gandak Agreement, signed in 1959, was also based on unequal benefit-sharing provisions. The net benefits to Nepal from these treaty-based huge barrages are predictable: enormous floods during monsoon and dry spells during winter. The benefit of electricity is virtually non-existent. These two agreements form the basis of the so called ‘anti-Indian’ sentiments among a large section of the people of Nepal, using which all the Communist parties have built their political base. These agreements were signed when the Nepali Congress (NC) was in power or sharing power with the monarchy. Since then, NC has never recovered from the image of being a ‘pro-Indian agent’ selling Nepal’s precious rivers and waters in order to remain in power in Kathmandu. Indeed, a bigger sell-out was the signing of the Mahakali Integrated Development River Treaty in 1996, the cancellation of which was one of main highlights of the 40-point demand by the Maoists before launching the People’s War in 1996. The CPN (UML), then considered a revolutionary party, lost its political base after approving the Mahakali Treaty. It was humbled in the recent elections. UML general secretary, Madhav Nepal, paid a heavy price by losing from two constituencies. Nepal claimed that the Mahakali Treaty stood as a benchmark in Nepal-India relations. But he did not mention why the treaty provisions have not been implemented even after 12 years. If it all had gone well, the Pancheshwar Dam should have been built four years ago and Nepal should have been receiving billions in benefits and royalty as claimed by another defeated UML heavyweight KP Oli. Many in Nepal believe that the controversial Tanakpur and Mahakali treaties are the main factors behind the murders of the then UML leaders Madan Bhandari and Jivaraj Ashrit, who were opposed to these unjust arrangements. Nepal’s three major beautiful rivers are already gone. India has already gained consumptive rights of water use. The only major river basin still left was about to be taken by the now dead Enron – the Karnali River – with the mega Karnali-Chisapani dam proposed over it. Indian and Russian competitions are underway to grab the license for its construction. The Saptakoshi High Dam and other proposals are underway. Indian companies have won the license for lucrative dam projects in Nepal – Arun III and Upper Karnali. Australian multinational Snowy Mountain Engineering Corporation (SMEC) has won the licence for the West Seti project, from which India will get free water through Karnali and 90 per cent cheap electricity. However, Nepal will continue to live in darkness. Now, all eyes are set upon the Maoists. The challenges before the Maoist-led government are inevitable: these unequal treaties should be reviewed/nullified and new arrangements should be made on the basis of principles of international water laws and practices. The licensing of Arun III, Upper Karnali and West Seti projects could be withdrawn leading to open and competitive biddings. Before that, Nepal’s primary right to use electric power domestically and the guarantee of lower-riparian benefits should be ensured. As for the unilateral embankments constructed in the Tarai, will they be broken or re-evaluated? If the Maoist leaders fail to bring any fundamental shift in Nepal-India water relations, which includes reviewing the controversial 1950 treaty of peace and friendship, they will be considered as no different from other parties. Undoubtedly, we need India and its support – but at what cost to the Nepali people[4]?

RESPONSIBILITIES

Further, India has been guilty of reneging on the agreement in other ways as well. For instance, according to the terms of the agreement, India is responsible for the maintenance, cleaning and siphoning of the barrage. However, in the last 20 years India has not performed this duty seriously and sincerely. Nepali people have been victimised by this severe negligence[5]. Nepal and India signed the Mahakali Treaty in 1996, but despite ratification by the Nepalese parliament, the Treaty has remained stalled. Despite these treaties, serious differences over water sharing, water management and hydropower projects continue to spoil relations between India, on the one hand, and Pakistan, Bangladesh and Nepal, on the other. Differences between India and Pakistan continue to create ill will between the two on around 11 large hydroelectric projects India plans to construct, including the Baglihar Project, over which Pakistan has sought the appointment of a neutral expert by the World Bank after the failure of talks. More than the dispute over Jammu and Kashmir, the issue of the waters of Jhelum and Chenab has the potential to once again provoke people in Pakistan against India and push the two countries to war. Dr Mubashar Hassan has given a sound proposal to resolve the dispute over Baglihar. He has proposed to install telemeters on the Baglihar to monitor daily release of water in order to ensure due supply of water from the Baglihar Dam to Pakistan. Bangladesh, which shares 54 rivers with India as a lower riparian, has serious differences with New Delhi that hinder agreement on eight rivers, besides the continuing complaints by Dhaka over sharing of the waters of the Ganges. The Indian plan, which is now under review, to build a big river-linking-project that includes diversion of water from Ganges and Brahmaputra, has become yet another source of antagonism between the two countries, which have not been able to sort out their differences over a whole range of issues that continue to fuel political tension which, in turn, does not allow the resolution of differences over water. As an upper riparian, Nepal has a different relationship with India and faces many problems in constructing its dams due to opposition by the lower riparian and has serious doubts about the projects proposed by India. Nepal’s mistrust, beside other factors, has been reinforced by what it perceives to be various unequal treaties — starting from the construction of the Sharada Dam (1927), the 1950 Treaty and the Letters of Exchange of 1950 and 1965, thee Koshi Agreement (1954), the Gandak Agreement (1959), the Tanakpur Agreement (1991) and the Mahakali Treaty (1996)[6].

KOSHI MULTIPURPOSE PROJECT [7] : THE REASON FOR THE FLOOD

The proposed dams in Nepal are in news again and the discussions over the issue is stale. Jagadanand, then Water Resource Minister of Bihar, asserted in Bihar Vidhan Sabha (22nd July 2002), ‘…Sir, the last point, no discharge control-no flood control. Unless the discharge is controlled, the scientists all over the world are convinced that the floods cannot be controlled…Embankments do not control the discharge, they can, at best, prevent water from spreading. Weak embankments cannot hold uncontrolled discharge and the flood will continue to bother us as a natural calamity. If we want to control floods in this state, we will have to control discharge in the upper riparian states and the neighboring countries. We have had negotiations with them and have unanimously agreed that to proceed jointly.’ In reply to a call attention motion of Ram Vilas Paswan regarding floods in Bihar, Arjun Charan Sethi, Minister of Water Resources at the Center told the Lok Sabha, on the 22nd August 2003, ‘…So far as Bihar is concerned, we are having constant interaction with the Government of Nepal because we all know these rivers originate from Nepal. Unless we have any kind of agreement with Nepal, this problem cannot be solved. The proposal for setting up of the Joint Project Office in Nepal for taking up field investigations and preparation of Detailed Project Report has since been approved. 100 officials from Nepal, and 42 officials from India are to carry out field investigations and studies. The project will inter alia have 269 meters high dam with an installed capacity of 3,300 MW and irrigation benefits accruing both to India and Nepal. In addition to Kosi Multipurpose Project, it will include Sun Kosi Diversion scheme as well.’ Similar statement was made by Priya Ranjan Das Munshi, Central Minister of Water Resources, made a statement in Kishanganj on the 5th June in 2004. Jay Prakash Narayan Yadav, State Minister of Water Resources at the Center on the 24th June 2004, while talking to the press in New Delhi said that a sum of Rs. 29 Crores has been sanctioned for the construction of the Kosi High Dam (He must have meant that it was for the preparation of the DPR). As far as Barahkshetra Dam is concerned, the politicians in India are sticking to the same statement that dialogue with Nepal is on and on this is since 1947. Jay Prakash Narayan Yadav reiterated his statement again in 2005. The joint team is working in Nepal for the preparation of the DPR but its personnel are tight lipped over what they are going to propose and when. The ghost of the Barahkshetra Dam haunts the planners, engineers and the politicians ever since the embanking plans of the Kosi was rejected in favor of a large dam by the Central Government in 1946 and the statements like the one given by Jagadanand, Arjun Charan Sethi, Das Munshi or Jay Prakash Narayan Yadav are a matter of routine in the flood season. The annual report of Water Resources Department of Bihar (2006-07) has already completed the formality of suggesting that the solution to the flood problems of Bihar lies in building dams in Nepal and wants the Center to expedite the negotiations. These negotiations are, however, going on for the past 60 years. The factual position about these dams is that they are no way linked to flood control and the flood victims of North Bihar have been systematically fooled over years and they will suffer indefinitely at the hands of the politicians, engineers and the vested interests that are dangling carrots of these dams for decades. Here is the reason, why. There are three dams that often come as proposal to solve north Bihar problems. These are the Chisapani on the Kamla, the Nunthore dam on the Bagmati and the Barahkshetra on the Kosi. The Report of the Second Irrigation Commission of Bihar (1994) spells very clearly that there is no flood cushion provided in the proposed Chisapani Reservoir on the Kamla. (Vol. V, Part -1, p-511). A Report of the Expert Committee to study impact of interlinking of river on Bihar (April 2005, Chapter III, p-16) says, ‘…But the proposed Sapta Kosi Dam too has not been provided with any flood cushion which should be provided for flood moderation…’ Regarding the proposed Nunthore Dam on the Bagmati, the Second Bihar Irrigation Commission Report says, ‘…it appears clearly that even after the construction of dam at Nunthore, there would be no appreciable flood moderation in the middle and lower reaches of the Bagmati and obviously further supplementary floods managements measures would be needed’ (Vol. V Part-1, p-414). A recent report of WRD of GoB (May 2006) observes that ‘…but none of these schemes could come up as yet, and in near future also there is little hope of execution of these schemes (Chapter-V, p-1).’ Thus, there is neither any flood cushion provided in the design of the proposed dams nor is there any likelihood of the dams being built in near future[8].

BASED ON COMPILATION OF PUBLISHED NEWS AND ARTICLES AVAILABLE ON INTERNET. THE SOURCES HAVE BEEN DULY CITED.


[1] http://en.wikipedia.org/wiki/Riparian_water_rights

[2] http://ekantipur.com/

[3] http://www.nepalnews.com/archive/2008/aug/aug22/news06.php

[4] http://www.wiserearth.org/resource/view/170bb5be943f13d859de7fd3e39f757b

[5] http://www.wafed-nepal.org/form.html

[6] http://www.nepalnews.com/archive/2005/others/guestcolumn/guest_columns_apr05_5.php

[7] http://www.indiawaterportal.org/blog/index.php/2007/06/

[8] http://www.hardnewsmedia.com/2007/07/1034