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Legal Remedy for Nepali Victims killed at Stores ~ Santosh Giri

Based on my research as a law student, a Tort Case against the employer store/station if the owner does not cooperate. The case could be for (1) compensatory and punitive damage and (2) Wrongful death OR (1) Workers Compensation. In any case, the owner will be liable for compensation towards the victims family i.e wife, children and any other direct dependents.

There could be a big verdict (although it will take a couple of years if the victim’s estate does not settle with the employer) requiring the employer to pay compensatory damage to the family, Punitive damages to pay for creating more safe and secure environment at the stores AND/OR pay the family with weekly workers compensation allowances for a long time.
Disclaimer: The article or any of the articles in this series may not be and should not be constituted as legal advice. Each case has its own merits and differs from the other. The facts used are based on the information disseminated on Late Dangol’s case in different US and International Medias. Writer does not claim responsibility for any action arising out of the academic research nor it is an intent or attempt to defame, libel or slander.

The writer is exercising his First Amendment Right to Speech.

The 25 Greatest Legal Movies

  1. To Kill A Mockingbird (1962)
  2. 12 Angry Men (1957)
  3. My Cousin Vinny (1992)
  4. Anatomy of a Murder (1959)
  5. Inherit the Wind (1960)
  6. Witness for the Prosecution (1957)
  7. Breaker Morant (1980)
  8. Philadelphia (1993)
  9. Erin Brockovich (2000)
  10. The Verdict (1982)
  11. Presumed Innocent (1990)
  12. Judgement at Nuremberg (1961)
  13. A Man for All Seasons (1966)
  14. A Few Good Men (1992)
  15. Chicago (2002)
  16. Kramer vs. Kramer (1979)
  17. The Paper Chase (1973)
  18. Reversal of Fortune (1990)
  19. Compulsion (1959)
  20. And Justice for All (1979)
  21. In the Name of the Father (1993)
  22. A Civil Action (1998)
  23. Young Mr. Lincoln (1939)
  24. Amistad (1997)
  25. Miracle on 34th Street (1947)

Honorable Mentions

Among the Other Legal Films Our Jury Cited (in alphabetical order):

  1. THE ACCUSED (1988) Jodie Foster is a woman who is gang-raped in a bar and, when the rapists go free, goads a reluctant prosecutor to pursue the patrons who urged them on.
  2. ADAM’S RIB (1949) George Cukor’s mannered comedy, with Spencer Tracy and Katharine Hepburn as married lawyers who oppose each other in court.
  3. BEYOND A REASONABLE DOUBT (1956) Dana Andrews is a writer who sets himself up on a murder rap to reveal the shortcomings of circum­stantial evidence.
  4. THE CAINE MUTINY (1954) Humphrey Bogart is riveting in this adaptation of Herman Wouk’s complex novel about military authority and moral duty.
  5. CLASS ACTION (1991) A father and daughter clash in and outside the courtroom as they square off in a volatile product liability case.
  6. THE CLIENT (1994) Susan Sarandon is an underwhelming lawyer who finds herself representing a young boy who has witnessed a Mafia hit.
  7. COUNSELLOR AT LAW (1933) John Barrymore is a workaholic lawyer who is in danger of losing his family in this William Wyler film.
  8. THE COURT-MARTIAL OF BILLY MITCHELL (1955) Otto Preminger directs Gary Cooper in this tale of the real-life maverick general who thinks an airplane can sink a ship—and is court-martialed for proving it.
  9. THE DEVIL’S ADVOCATE (1997) A new attorney introduced into the world’s most powerful law firm discovers that its managing partner is morally challenged.
  10. THE FIRM (1993) Tom Cruise is recruited by a prestigious law firm that he gradually learns has a very sinister background.
  11. THE FORTUNE COOKIE (1966) Walter Matthau and Jack Lemmon romp in this Billy Wilder comedy about a sleazy lawyer who talks a relative into feigning injury for the sake of a lawsuit.
  12. GHOSTS OF MISSISSIPPI (1996) The true story of efforts to bring to justice Byron De La Beckwith for the 30-year-old murder of civil rights activist Medgar Evers.
  13. INTOLERABLE CRUELTY (2003) The Coen brothers reveal their take on divorce law. George Clooney is at his toothy best.
  14. JAGGED EDGE (1985) Defense attorney Glenn Close gets close to a client, played by Jeff Bridges, who is on trial for the murder of his heiress wife.
  15. JFK (1991) Oliver Stone takes on New Orleans District Attorney Jim Garrison’s efforts to solve the Kennedy assassination. History yields to riveting storytelling.
  16. LEGALLY BLONDE (2001) Reese Witherspoon became one of the most sought-after actresses in Hollywood after ridiculing the elitism of Harvard Law.
  17. LIAR, LIAR (1997) A hilarious vehicle for Jim Carrey, who plays a lawyer who finds he is physically incapable of telling a fib.
  18. MICHAEL CLAYTON (2007) George Clooney shines in this look at the dark underbelly of big-firm law.
  19. MUSIC BOX (1989) Hungarian immigrant Mike Laszlo, accused of being a war criminal, asks his daughter (Jessica Lange) to defend him in court. She learns more about him than she wants to know.
  20. NORTH COUNTRY (2005) It’s one wom­an against the system: The extra­ordinary Charlize Theron plays a miner who sues the company.
  21. THE PELICAN BRIEF (1993) A law stu­dent discovers a plot to assassinate U.S. Supreme Court justices in this John Grisham adaptation.
  22. THE PEOPLE VS. LARRY FLYNT (1996) Cameos abound in this portrayal of the trial of the renowned porn publisher.
  23. PRIMAL FEAR (1996) Richard Gere is the attorney and Edward Norton a young altar boy accused of killing a priest in a story whose plot twists and turns.
  24. THE RAINMAKER (1997) Another John Grisham lawyer fights the system, this time with Matt Damon starring and Francis Ford Coppola directing.
  25. A TIME TO KILL (1996) An earnest retelling of the Grisham novel about a racially charged killing in the Deep South. Matthew McConaughey and Sandra Bullock spark.

http://www.abajournal.com/magazine/article/honorable_mentions

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 SURENDRA 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 then?

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.


[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

Call for Papers – Law and Conflict Resolution

The Journal of Law and Conflict Resolution (JLCR) is a multidisciplinary peer-reviewed journal published monthly by Academic Journals (http://www.academicjournals.org/JLCR). JLCR is dedicated to increasing the depth of the subject across disciplines with the ultimate aim of expanding knowledge of the subject.

Call for Papers

JLCR will cover all areas of the subject. The journal welcomes the submission of manuscripts that meet the general criteria of significance and scientific excellence, and will publish:

  • Original articles in basic and applied research
  • Case studies
  • Critical reviews, surveys, opinions, commentaries and essays

We invite you to submit your manuscript(s) to jlcr@acadjourn.org for publication in the monthly issue. Our objective is to inform authors of the decision on their manuscript(s) within four weeks of submission. Following acceptance, a paper will normally be published in the next issue. Instruction for authors and other details are available on our website; http://www.academicjournals.org/JLCR/Instruction.htm

JLCR is an Open Access Journal

One key request of researchers across the world is unrestricted access to research publications. Open access gives a worldwide audience larger than that of any subscription-based journal and thus increases the visibility and impact of published works. It also enhances indexing, retrieval power and eliminates the need for permissions to reproduce and distribute content. JLCR is fully committed to the Open Access Initiative and will provide free access to all articles as soon as they are published.

Best regards,

Imonivwerha Ochuko,

Editorial Assistant

For

Dr.Ovunda Vincent Christopher Okene,

Editor,

Journal of Law and Conflict Resolution

E-mail: submit.jlcr@gmail.com , manuscripts.jlcr, submits.jlcr@gmail.com,

www.academicjournals.org/JLCR

ISSN 2006-9804

(Shared for public interest based on an email received from the journal. Jurists are highly encouraged to participate.)

Court Orders Nepal to Improve Women’s Access to Abortion

Center for Reproductive Rights
www.reproductiverights.org<http://www.reproductiverights.org

FOR IMMEDIATE RELEASE:                            FOR MORE INFORMATION:
May 20, 2009                                                              Dionne Scott, dscott@reprorights.org<mailto:dscott@reprorights.org>
(917) 637-3649

Court Orders Nepal to Improve Women’s Access to Abortion
Government must set up abortion fund and promote availability of abortion services.

New York—Today, Nepal’s Supreme Court ordered the Nepal government to enact a comprehensive abortion law to guarantee that women have access to safe and affordable abortion services.  Since 2002, Nepalese law has permitted abortion under most circumstances, but multiple barriers—including the government’s failure to implement its own policy, prohibitive costs, and inadequate availability of abortion providers—have prevented women from accessing safe abortion services. Under the court ruling, the government must set up a fund to cover the cost of abortion for poor and rural women; and invest enough resources to meet the demand for abortion services and to educate the public and health service providers of the existing abortion law.

“This is one of the most important legal victories for women in Nepal in almost a decade,” said Melissa Upreti, regional manager and legal adviser for Asia at the Center for Reproductive Rights. “Thousands of women in Nepal either die or suffer health complications every year from unsafe abortion. Many are forced to suffer in silence due to their inability to pay for safe services or the lack of information. This decision shows that protecting women’s health and lives means more than just keeping reproductive health services legal – it means ensuring that those services are in fact available to everyone who needs them.”

The Center worked with its partners in Nepal, Forum for Women, Law, and Development, to file the case in the Supreme Court in 2007. At the center of the petition was Nepali citizen Lakshmi Dhikta.  Dhikta, who comes from an extremely poor household in the rural western region of Nepal, could not afford to pay the fee charged for abortion at a public hospital and as a result, was forced to continue an unintended pregnancy. The Center  filed friend-of-the-court briefs in support of the case and Upreti, also from Nepal, joined as a petitioner.

According to the World Disasters Report, neo-natal and maternal mortality claim twenty-five times more lives each year than the lives claimed yearly in Nepal’s decade-long conflict. Complications from unsafe abortion are estimated to account for 20 percent of maternal deaths in health facilities alone—not counting the women who never make it to a hospital. An abortion in a government hospital can cost more than the average monthly salary, and 80 percent of rural women are not even aware that abortion is legal.

The Center for Reproductive Rights is a global legal organization dedicated to advancing women’s reproductive health, self-determination and dignity as basic human rights.

How to sue in small claim courts in Texas?

How to sue in small claim courts in Texas[1]?

Sirjana Sharma

WHAT IS SMALL CLAIMS COURT?

Small claims court is the real “People’s Court.” The purpose of small claims court is to provide an informal, uncomplicated proceeding to resolve small disputes that do not involve enough money to warrant the expense of formal litigation. Most people who appear in small claims court do not have a lawyer but represent themselves. In small claims court, the amount you seek to recover can not exceed $ 5,000.

WHAT TYPE OF CASE CAN BE BROUGHT IN SMALL CLAIMS COURT?

Not all disputes can be heard in small claims court. Small claims court cannot hear disputes involving more than $ 5,000. No matter how important the case in to you, and no matter how well you convince the judge that you deserve to recover more, the judge in small claims court simply cannot rule on a dispute for more than $ 5,000 plus court costs.

If u wish to recover more than $ 5,000 you must consider another court, and in most cases, the assistance of an attorney. You cannot just say you will take less to get into small claims court. In many cases, however, a claim may be reduced to enable you to file in small claims court. If the transaction giving rise to your dispute can be divided into parts, you can sue for damages based on some of the divisible parts. For example, if you purchased several different items in one transaction, you may be able to sue for damaged to some, but not all of those items.

Small claims court can only award money. It cannot, for example, order a mechanic to fix your car correctly. The court could only award you the monetary damages you suffered because your car was not repaired the way that was promised. Similarly, the court cannot order your ex-husband to stop harassing you. The court cannot order a store to deliver the television set you paid for but never received. The court cannot order your roommate to move out of your apartment for failing to pay the rent. You cannot ask the court to order the other party to do anything, or to refrain from doing something. If you need an order to make someone do something or to stop doing something, other courts are available. If you win a small claims court, all you get is money (up to $ 5,000 plus court costs.)

Some examples of the most common types of disputes that find their way into small claims court are: Continue reading “How to sue in small claim courts in Texas?”

Nepal in transition: abolishing the monarchy [JURIST]

Nepal in transition: abolishing the monarchy

Santosh Giri [advocate/human rights lawyer, Supreme Court of Nepal]: “The abolition of Nepal’s nearly 240-year-old monarchy and declaration of Nepal as a “federal, democratic, republican state” was made by an overwhelming majority in the interim parliament late last month. 270 members in the 329-member House of Representatives voted on December 27, 2007 in favor of ending the monarchy (3 pro-monarchists cast against the motion while the rest abstained). However, Nepal will become a republic only after the first meeting of the Constituent Assembly, which is due to be elected by mid-April next year. The decision also serves to put the peace process back on track and paves the way for elections notwithstanding the fact that elections have been postponed three times since June 2006. Constituent Assembly seats has been increased from 497 to 601, of which 335 (58%) will be elected on the basis of proportional representation, with 240 to be directly elected and 26 to be nominated by the country’s cabinet.

Background

Since 1990 restoration of democracy, there were 3 elections in 1991, 1996 and 1999. Numerous governments were formed and numerous failed. The parliament was dissolved in 2002 which paved way for an absolute monarchy again. In 2005, the king staged a coup d’état. Seven major political parties united and formed an alliance with the Maoists to overthrow the king in April 2006 after dozens of innocent killings. In April 2006, the king restored the parliament which eventually led to abolishment of the monarchy. The November 2006 agreement between the political parties and the Maoists came as a peace pact which enabled a cease-fire and temporarily ending the conflict in which more than 13,000 people died since 1996. In January 2007 the Maoists entered the parliament and the cabinet in April 2007. In September 2007, the Maoists walked out of the government citing differences and demanding fulfillment of their demands of abolishment of monarchy and restructuring of the electoral system. They also threatened to quit the parliament in December 2007 if their demands were not met. Meanwhile the Constituent Assembly elections were postponed thrice, firstly citing lack of preparedness, secondly unfavorable security situation and thirdly the Maoists opposition. In December 2007, a new accord was signed which agreed on both demands and the Maoists reentered the cabinet. In December 2007, the parliament with a majority decision abolished the monarchy (subjected to ratification by the Constituent Assembly Parliament) and restructured the electoral system.

Article: Intellectual Property Law

By Sirjana Sharma – LL.M.: Dedman School of Law – SMU

Overview

In the modern world we have different kinds of property which we want to protect under the law. Apart from the individual’s property like own cars, computers, house, land or other tangible goods, individuals have ownership right upon their own invention and, creative works and, they want to protect the investment. These all new forms of properties are protected by the intellectual property law in the new arena of legal development.

 

According to the Robert Spinard, Xerox Corp. there are two types of intellectual property which we want to protect. First, the brilliant invention, the idea, the notion that makes a new product and the insight that makes a whole new industry. Next, we want to protect the investment and the hard work. This is the grunt work. This is the pick-and-shovel engineering that turns the idea, the prototype, into a reliable, distributable, maintainable, documented and supportable product.[1]

 

Intellectual Property is generally characterized as non-physical property that is the product of cognitive processes and whose value is based upon some idea or collection of ideas[2]. Continue reading “Article: Intellectual Property Law”

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