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VOL. 27, NO. 8, October 05, 2007 (Ashwin 18 2064 B.S.)
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Landmark Verdict
Supreme Court declares a Clause of Constituent Assembly Election Act 2007 ultra-vires
giving respite to politicians
By A CORRESPONDENT
 With the decision of full bench of Supreme Court, more than 200 politicians indicted in the Rayamajhi Commission Report have heaved a sigh of relief as the court declared the Clause 19 (h) of CA Act 2007 as ultra-vires.
Under a writ petitions filed by a number of persons including former home minister Kamal Thapa, Keshar Bahadur Bista, Niranjan Thapa, Tanka Dhakal, and Bhuwan Pathak, the full bench headed by justice Anup Raj Sharma, Bal Ram K.C. Kalyan Shrestha, Tapa Bahadur Magar and Damodar Sharma declared the provision made in the 19 (h) of Constituent Assembly Elections Act 2007 ultra-vires.
After two days of hearing, justice Bal Ram K.C., Kalyan Shrestha and Tapa Bahadur Magar declared the clause null and void and issued the writ. However, justice Anup Raj Sharma and Damodar Sharma dismissed the writ.
Although the decision was taken under the majority of 3-2, apex court’s landmark decision once again enhanced the faith of the common people in the judicial system and judiciary. "This shows that the court is still independent and capable to deliver the justice for a person like me," said petitioner Kamal Thapa reacting to the judgment.
Justice Anup Raja Sharma - who got much prominence during the Royal regime on a judgment declaring Royal Commission for Corruption Control as unconstitutional - stood with minority this time. Sharma duo justified the restriction imposed in the clause to bar politicians on the basis of Fact Finding Commission Report.
The article 141 of Interim Constitution clearly stipulates that no person and individual can be barred from contesting the elections on the basis of political ideology, philosophy, or political programs. The article restricts to make any kind of act which will violate the clause.
Despite strong opposition from some prominent members of Nepali Congress party including senior advocates Radheshyam Adhikary, Harihar Adhikary and Homenath Dahal, the clause was included in the CA Act whereby those indicted by the fact finding commission’s report were barred from contesting the election.
From the preamble of constitution - which calls for competitive pluralistic politics - to article 13 (2) of right to equality, the interim constitution has so many progressive provisions, which clearly says that no individual shall be discriminated on the basis of ideology, political thought and individual belief.
On the side of petitioner, senior advocate Ganesh Raj Sharma, advocate Bishnu Bhattarai, advocate Bal Krishna Neupane and others pleaded. The lawyers pleading the petitioners argued that the act was regressive in comparison with the progressive articles of the constitution.
According to them, the Rayamajhi Commission is just a fact finding commission and one cannot be indicted on the basis of its judgment. But, the government placed the clause to bar certain politicians.
According to the Clause 19 (h) of Constituent Assembly Act 2007, those persons who were indicted by fact finding commission constituted to inquire abuse of authority, loss and damage in popular uprising in April 2006 will be barred from the elections for Constituent Assembly.
The court's recent verdict has shown that it still protects the rights of the people and guarantees individual freedoms.
BUSINESS CONFIDENCE LOW: WB REPORT
Rigid labor regime, high taxes and red tape are eroding confidence in Nepal, one of the deteriorating places to do business in South Asia, a study by the International Finance Corporation (IFC) stated, according to The Himalayan Times daily.
The research — which ranked 178 countries around the world on the basis of trade, taxation, business start-up costs, labor laws and legal procedures — has placed Nepal at 111, lower than in its previous report. Some South Asian neighbors did better in their overall rankings, with the Maldives ranked at 60 and Pakistan 76, Sri Lanka 101 and Bangladesh 107. Nepal, however, scored ahead of Bhutan (119), India (120) and Afghanistan (159) in the 'Doing Business 2008' report by the IFC, a World Bank member that promotes private sector investment in developing countries.
It also ranked countries in individual problem areas. Nepal has been ranked at 155th most expensive country in the world to employ workers, as restrictive labor laws make it costly to dismiss staff. Companies must pay 90 weeks of salary to lay off a worker. The report further states that Nepal's situation in starting business, registering property, getting credit, protection of investors, paying taxes and trading across borders worsened this year.
While, dealing with licenses, employing workers, enforcing contracts and closing a business remained static, Nepal came 92nd on tax environment list, which is relatively better compared to its neighbors in the region, with firms having to set aside 32.5 per cent of their profits to pay taxes.
However, Nepal is rated worst in terms of tax paying hours, as it takes 408 hours, almost double of an average of 287.6 hours in the region. Nepal is also ranked 97th in terms of allowing firms to access credit from banks. The report states that Nepal has been found to be one of the worst in terms of time taken for dealing on licenses and permits and completing required notifications. It takes about 424 days to complete all procedures, whereas it is 238.3 days in the region and 153.3 days in OECD states. When it comes to winding up a business, Nepal ranks at 95. Creditors spend on average five years to recover money and only get 25 cents on the dollar.
However, South Asia picked up the pace of regulatory reform over the past year to become the second-fastest reforming region in the world, on par with the speed of reform in the countries of the OECD.
TRAFFICKING ON THE RISE: UN
At least 10,000 to 15,000 girls are being trafficked from Nepal to India, the data revealed by the UN Regional Office for South Asia for Prevention of Drugs and Crimes said. They are allured to India of good job and sold there, head of the regional office, Gary Lewis, said on Tuesday.
He said illiteracy, poverty and Nepal's long armed conflict and other economic and social causes are behind it. The office, which stands as guardian of the UN protocol against the trafficking, has continued to provide training to the police who are working to check the human trafficking and other human crimes, he said.
"We are actively involved in the programs like implementation of the laws, capacity building, rehabilitation of the victims in South Asia , including Nepal," he said. According to the project coordinator of the office Ajit Roy, the number of displaced has surged in Nepal, problem of internal migration has worsened and Kathmandu has prospered as a centre of trafficking of women and children due to the long armed conflict. "The women and teenage girls who come to Kathmandu in search of the jobs become soft targets for the pimps," Roy added.
Saying that AIDS and other sexually transmitted diseases were on the rise due to the trafficking, he said the recent study conducted by a US institution showed that 40 percent of the sexual workers returning to Nepal from different Indian cities carried HIV/AIDS.
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