British Embassy Wall Collaspe Deaths to be granted mere £3,000

Its an irony, how British Embassy has undermined the customary compensatory damages and tort laws and is trying to compensate the families of the deceased a mere “3200 Pounds” compensation.

Per www.accident-claim-expert.co.uk, under British Fatal Accident Act 1976 “close relatives can claim a bereavement payment – the pain and suffering for the loss of a close family member. This is a fixed sum of money and is divided amongst those entitled to claim it. As from the beginning of 2009 the amount is £11 800. You are entitled to claim bereavement damages if you are the wife, husband or civil partner of the deceased. If the deceased was a minor (under the age of 18 years) – you can only claim if you are a parent of the deceased and if the deceased was an illegitimate child you can only claim if you are the mother.”

Likewise, www.camplaw.co.uk ran headlines in June 2009 as “£30,000 fine for company in tragic wall collapse death accident”.

Similarly, per www.levenes.co.uk, in November 2008 “Yorkshire construction firm Illson has been ordered to pay £6,800 after one of its workers sustained serious back injuries when he fell more than three metres from a terrace retaining wall on a construction site in Leeds” and that “A building contractor has been fined £7,000 after a worker broke his back when a wall fell on him at a construction site in east London.”

Furthermore, on February 22, 2011 in an incident similar to Nepal involving a government authority and its negligence to adequately inspect, repair and avoid personal as well as public injuries, www.the-claim-solicitors.co.uk made it public that “Parents, whose toddler was crushed to death when a brick wall collapsed in high winds, may now claim compensation from Camden Council in London since its negligence has been found responsible for the fatal personal injury.” It further states that, “The council-owned boundary wall around a housing estate was only half a brick wide and it had been built in the 1970s. Cracks were found in the structure in 1997 and repairs had been made, but these were not carried out correctly. The London Borough of Camden, last year, initially denied it had failed in its health and safety duties but changed its plea in October 2010 to guilty, although saying it had done all that was reasonably practical to ensure the safety of the wall. However, Judge Deborah Taylor found the council’s inspection systems were “wholly inadequate” and that it had been responsible for suitable repairs being completed. The council was fined a total of £72,000 and ordered to pay £65,000 prosecution costs for the offences. The victim’s parents, who may consult a no win no fee solicitor regarding a damages payment, praised the persistent work of Health and Safety Executive inspectors in establishing liability for the personal injury accident.”

As the Embassy of United Kingdom, falls under the similar category of a Government Council, this is a dismay, disregards to the rule of law, equity and equality by the founders of common law. It is clear that the British Government is trying to avoid further liabilities and disregard the customary compensatory tort laws, applicable to the diplomats under the International Law.

The government should immediately demand that a just compensation be made to the grieved families as a just bereavement payment in the similar amount as imposed on Camden Council in London in 2011.

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CANCELLATION OF REMOVAL – While in Deportation/Removal Proceedings for both Permanent Residents and Nonimmigrants

§§ 244(a), 212(c) of the Immigration and Nationality Act of 1952 (“Act”), Pub. L. No. 82-414, 66 Stat. 163,
8 U.S.C. § 1254e.
Exclusion: § 236, of the Act, 8 U.S.C. § 1226
Removal: §§ 240A(a), (b), 8 U.S.C. § 1230A(a), (b)

See: http://www.justice.gov/eoir/eoirforms/eoir42b.pdf for the instructions and forms. Please seek competent legal representation.

Two types of Cancellation of Removal that available to an alien in removal proceedings.

  • Section A; for Lawful Permanent Residents: In order to request this type of cancellation of removal, an alien must demonstrate: (1) he has been an alien lawfully admitted for permanent residence status for not less than five (5) years; (2) he has resided in the United States continuously for seven (7) yeras after having been admitted in any status; (3) he has not been convicted of an “aggravated felony” as defined by the Immigration laws (See section 101(a)(43) of the Act.) [e.g., regardless of how the State Court characterized the offense, such as non-dangerous or non-aggravated, an offense may still be designated as an “aggravated felony” under Federal immigration law.
  • Section B; for non-permanent resident aliens (undocumented, nonimmigrants, etc.): In order for an alien to request this type of cancellation of removal, an alien must demonstrate: (1) he has been physically present in the United States for ten (10) years preceding the date of the request; (2) he has been a person of good moral character during those ten (10) years (e.g., no criminal/immigration record); (3) he has not been convicted of an offense as described under §§ 212(a)(2) [controlled substance violations, crimes involving moral turpitude], 237(a)(2) [deportable criminal offenses], 237(a)(3) [documentary fraud]; (4) that removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child who is a citizen of the United States or a lawful permanent resident.
  • An application for Cancellation of Removal under § 240A(a) must be made on Form EOIR-42A.
  • An application for Cancellation of Removal under § 240A(b) must be made on Form EOIR-42B.
  • Both applications require a filing fee of $100 to be paid to the U.S. INS.
  • Additionally, applicants must pay a $25 fingerprinting fee to the U.S. INS.
  • Both types of applications should be submitted with a Biographic Information Form, Form G-325A and supporting documentation and exhibits to demonstrate eligibility for the requested relief.

it couldn’t shouldn’t get worse than this

It’s been 10 hours now, since the strongest opposition in Nepal, the Maoists parliamentarians members of constituent assembly physically assaulted the parliamentarians constituent assembly members of  the the Democrats “Nepali Congress” and the Leftists “CPN-UML” during an already overdue Budget Session. The Monarchy was overthrown in 2006 and the only institution that remains is the Judiciary.

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

Human rights double standards in Nepal

DAMAKANT JAYSHI

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Both Maina Sunar and Ram Hari Shrestha were kidnapped, tortured and murdered in custody. The 15-year-old died instantly in the Paanchkhal barracks of the Nepal Army (formerly RNA) in Kavre district in February 2004; businessman Shrestha was severely tortured by Maoist army’s Third Division commander Kali Bahadur Kham and four of his colleagues inside their Shaktikhor cantonment, Chitwan, in April last year. Continue reading “Human rights double standards in Nepal”

Reform of Nepalese Judiciary :: My Version.

In my personal opinion, I think ‘they’ are trying to revive their people’s court under their federal structure as the “mobile courts”. Instead of reviving their people’s court, judiciary and judicial council should plan and implement a better option of superior court under the district courts. Nonetheless, Illegitimate Kangaroo Courts must come to cease.

In the US they have a Superior Court which performs like kangaroo courts. This is the court of first instance here. The vast majority of cases in the California courts begin in one of the 58 superior, or trial, courts-which reside in each of the state’s 58 counties in California. With facilities in more than 450 locations, these courts hear both civil and criminal cases, as well as family, probate, and juvenile cases. They normally hear petty cases. Issues less that $7500 are mediated through small claims mediation unit. ——- If this modal is implemented in Nepal, the superior courts should be opened in every municipalities having jurisdiction over the villages, towns and the municipality. There are 58 municipalities in Nepal and they can be taken as superior courts.

The existing District court can be court of second instance as an appeal on superior court and as a first instance court in cases claiming more than a minimum set financial standard such as $7500 lets say in Nepal for any issues above Rs.500,000.

The appellate court should be the court of last instance and the court of second and last appeal. The decision of appellate court should be final. Competent lawyers must be chosen to fulfill the vacant posts in the judiciary at this level.

The role of Supreme Court should be more into law making and delivering precedents, outdating laws, revising precedents and reviewing the cases. Supreme Court should be taking only those cases approved for a final appeal on the decision of the appellate court by a division bench of three justices (considering the voting ratio). Only Rare appeal cases that have constitutional issues, misinterpretation of laws, precedent flaws, amicus curie, judicial review, and where the court needs to address and introduce new laws through interpretation should be under the jurisdiction of the apex court. The apex court will thus maintain a high level of censorship, integrity and authority in terms of the balance of the three branches of the governance as well. The apex court should slowly refrain from being involved in the day to day decision making on small petty civil suits to previously decided criminal verdicts from district and appellate. The appointment of temporary and permanent judges should be made through promotion of existing judges and through allocation of adequate number of seats to the Bar.

The tenure of the justice also comes into play if we consider the above aspect. The justices of the Supreme Court should hold the offices for life based on their seniority and experience. The current Supreme Court justices should continue holding the offices until one resigns or the office is vacated under the laws. The check and balance of power through legislative will not let the judiciary be out of reach. Although the raw and inexperienced legislature did play a part through parliamentary Special Hearing Committee, it has nonetheless established the fact that there will be scrutiny from the legislative on judiciary in the years to come.

Superior Court: For the purposes of eligible human resources for the superior courts, if they are to be established in 58 municipalities, judiciary should consider opening vacancy for Associate Judges. There could be hiring of 5-7 associate judges in every superior court, which creates a vacancy of almost 400 associate judges. 50 years back when the judiciary was established we did not have enough human resources. But now we have two good law schools with production of good number of competitive scholars. We have adequate number of educated law graduates with LLM, SJD and specialization in specific laws. These can serve as a associate judges for special benches such as commercial law, family law, human rights, employment, labor, tax, small claims, juvenile, women’s rights, environment, compensation, gay & lesbian rights, minority and deprived rights etc. Experienced associate judges could be promoted to a district court and later to the appellate. They can also serve as Judges in special courts such as administrative court, tax court, labor court, juvenile court, etc. The decentralization of lower level of judiciary will be more reachable. The superior courts decision generated through mediation and arbitration can serve as binding unless one party chooses to appeal to the district.

The case loads in all the courts will drastically go down with implementation of this system and decisions will be quicker.

There is a need of revision of rules of professional responsibility of the lawyers. The rules of professional conduct here in the US are extremely rigid and harsh allowing no lawyer to initiate corruption whereas; in Nepal there is no rule of discipline virtually. The 10 Sections of Moral Rules for Lawyers are outdated. Action against defaulting lawyers should be taken on a tri-semester basis for debarring, suspending or warning the lawyers. Any decision of conduct on lawyers should be made public monthly on Nepal bar and Supreme Court website and publications. If bar wants bench to perform effectively, bench must scrutinize bar strictly. In 5 years of practice as an advocate and 2 years as a pleader, I never saw one single publication where the decision to take action on lawyers were published. Public was never made aware of the lawyers images who were punished or were under interrogation.

Another area of reform should be CLASS ACTION LAW SUITS. The corporate sector in Nepal has always been untouchable for the acts and deeds that have done in mass. Godavari marbles established Right to Life as fundamental rights but want the corporate giant made to compensate to the victims? NO. Class action law suits process allows victims of similar class who are against one corporate, to file one Class Action law Suit for compensatory damages. The class action law suit filers have to agree in writing to accept the verdict in the same amount.

I wanted to do a class action law suit against Janakpur Cigarette and Surya Tobacco forcing them to compensate the victim families in Janakpur and Simara Municipality who have been forced to live their life under inhuman respiratory conditions due to the emission of tobacco particles in the air. My assumption is that the patients of lungs cancer, bronchitis, asthma, skin allergies in these areas are directly correlated to the polluted emission from these factories. The class action law suit would demand that the factories be either resettled in a government specified industrial zone outside the residential zone or be shut down. The law suit could also demand that the employees be guaranteed life insurance of a fair market value and scientific and adequate physical protection procedures be adopted for the employees inside the factory areas through proper protective eye wares, protective clothes. This is my dream case and I will pursue it definitely in future, when there’s a provision for class action.

Other untouched corporate giants are:

  1. Royal Drugs which sells expired medicine and fail to recall the expired medicines from the market
  2. Hospitals with malpractice cases
  3. Airlines with negligent history