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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.

Postmodern Nepalese Judiciary

The Past

King Amshuverma (6th Century AD) introduced unwritten laws of administration, land reform and monetary system. With few exceptions of written laws such as King Jayasthithi Malla’s (1382–95AD) Manav Nyayashastra (Civic Laws – a legal and social code strongly influenced by contemporary Hindu principles), King Ram Shah’s (Chhabish Thiti (26 Commandments), the first written law was the Muluki Ain (Civil Code) 1854AD introduced by Prime Minister Jang Bahadur Rana, after his personal exposure to the Napoleon Code and the Common Law System while he toured Europe in 1850. The Nepalese Judicial mechanism remained under the clutches of the reigning rulers as The Royal Court until 1950.

The Modern Nepal’s Independent Judiciary began with establishment of the Supreme Court as Pradhan Nyayalaya in 1950, which envisaged the Supreme Court as the guardian of law. It also guaranteed independence of judiciary and the law above the king. In 1963, king came into power controlling the executive, legislative and partially the judiciary through its supreme power to “Review Cases” decided by Supreme Court known as “Hukum Pramangi” (Order of the Crown). The 1990 revolution reestablished democracy in Nepal and promised an independent judiciary. The legislative and executive branches of the governance ceased to function in 2002 after dissolution of the parliament and rise of direct rule of the King from 2005 to 2006. Judiciary remained the sole independent authority in Nepal from 2002 to 2008 in absence of a Legislative and an Executive based on a popular will.

The Present

In 1996 the Communist Party of Nepal (Maoists) or the terrorists launched an armed revolution in Nepal with a new notion of Judiciary, a barbaric people’s court, which has its own unwritten laws and so-called judges issuing capital punishment if several form-the death penalty. The constitution assembly elections of April 2008 validated a Guerilla Government.

“The main agenda of the SPA and the Maoists was to hold a Constituent Assembly (CA) election, with the primary responsibility of drafting and promulgating a new constitution defining the future political system in Nepal. The interim constitution, adopted on January 15, 2007, expressed full commitment to democratic ideals and norms, including competitive multi-party democracy, civil liberties, fundamental human rights, adult enfranchisement, periodic elections, press freedom, an independent judiciary, and the rule of law. The interim constitution also guaranteed the basic rights of Nepali citizens to formulate a constitution for themselves and to participate in the Constituent Assembly in an environment free from fear. The interim constitution transferred all powers of the King as head of state to the prime minister and stripped the King of any ceremonial constitutional role. Under the interim constitution, the monarchy was abolished by the first meeting of the Constituent Assembly. The interim Parliament was a unicameral house” (http://www.state.gov/r/pa/ei/bgn/5283.htm).

The April 2008 Elections and the first meeting of Constitution Assembly ousted the King. With the Communist Party of Nepal (Maoist) CPNM in the power, steps have been taken every now and then to regulate the judiciary by them, thus putting the independent judiciary in a danger.

CPNM came into a power play with its written commitment with major seven parties, where it basically agreed in dissolving its Nepali Janjaweed or Young communist league (YCL) which was established in 2007, returning seized property and refraining from taking arms. CPNM has failed to abide all of these three notions, let alone other clauses of the SPAM Agreement.

In April 2008, the Maoists won in the elections with majority. During elections, the Maoists and their allies committed several crimes against humanity including kidnapping, killing, extortion and forced disappearance of people around the nation. Even after the elections the Maoists are still involved in grave human rights violation across the nation. The Maoist has taken over the nation through intimidation, threatening the general public and killing and kidnapping people. The Maoists has been openly threatening people and continue their atrocities though their armed militia and armed youth wing YCL which has been taking action against people who were against the Maoists in anyway in the past. In August 2008 the leader of the terrorist Maoists became the Prime Minister, The Maoist chairman has openly challenged the rule of law by having armed militia around him.

On August 16, 2008 after the Maoist chairman was declared the prime minister, the Maoists thrashed a public in eastern Nepal for no reason for three hours “to celebrate their victory”. The Maoists and YCL are still involved in killing, kidnapping and torturing people. CPNM continues its atrocities, kidnapping, killings, extortion and poses a threat to people from every field. CPNM has been continuing its excesses through its sister organizations Young Communist League (YCL), Janatantrik Tarai Mukti Morcha (JTTM), Madheshi Jana Adhikar Forum (MJF), Madhesi Tigers (MT), Janatantrik Kirat Mukti Morcha (JKMM) etc. The Maoists have revived and continued their People’s Court across the nation and they are implementing their decisions and taking action against the people who were against tem in any way.

On August 14, 2008 the Maoist Supreme Commander Prachanda was elected as the Prime Minister with support from MJF, clearly establishing CPNM and MJF alliance pre and post elections and further strengthening the fact that MJF is a splinter group of CPMN or a breakaway faction.

On January 2009, Maoist Leaders repeatedly threatened over the media that they are going to control the governance if any effort were made to topple their government. Meanwhile, their capital punishment continues, property still being seized and their splinter groups still killing innocent public, human right defenders and journos.

The Future

Amidst this entire crisis, Judiciary remains intact and is committed towards protection of independence of judiciary.

Parliamentary Hearing Committee

For the first time a Parliamentary Hearing Committee quizzed the Supreme Court Chief Justice Kedar Prasad Giri for his post for the first time in history in October 2007. Though the PHC hearing was itself controversial, a trend was set to make judiciary accountable to Parliament. In January 2009, 10 recommended Supreme Court Judges were quizzed by the PHC.

e-judiciary

One of the goals set by the CJ was to implement an e-judiciary. The concept was primarily set up by preceding justice. During the term of CJ Giri, judiciary has been successful to link all courts via networking, created online case status and tracking system, online cause-list of cases, a  legal information system to name a few which has promised a swift and prompt justice delivery for now and future. Administrative tasks and applications are being made online. In a few years to come, when the basic judicial electronic infrastructure has been fulfilled, backlogged cases will be reduced to a very few numbers. These are but just a few highlights of the golden era of judiciary.

The Golden Era of Nepalese Judiciary

To ensure the continuation of the fast paced development of Nepal’s judiciary or the golden era of Nepalese Judiciary, which is being developed to make it on par with the global standards of judicial systems, the subsequent Chief Justices Hon. Min Bahadur Raimajhi, Hon. Anup Raj Sharma and Hon. Ram Kumar Prasad Shah have been working together in the e-judiciary project.

Challenges and Obstacles

There are still some shortcomings in the system that is being developed.  However, there are major obstacles to its development as well. The lack of power supply, ongoing violence, by YCL and factions of  CPNM, heightened insecurity, destruction of infrastructures, forced exile of Pahade judicial employees from Terai region by the extremists, murder of Pahade government employees by the extremists and above all the parallel existence of so-called people’s court which has been executing individuals and imposing deterrent justice system.

Winds of Change

Petty civil cases can be resolved by individuals through alternate means of justice such as arbitration, mediation and reconciliation, which have already begun in some districts. Forms could be developed online for parties and lawyers for administrative tasks such as court date calendar, rescheduling, applications, submission of fines, fees, penalties and court fees. Real-time case status update can be generated from one click on the internet. Parties to the cases are already being alerted prior to the case hearing via SMS, email and phone. Real time case list and hearing schedules are already displayed on hourly basis on computer monitor and TV screens at the court premises in the lobby, chamber, canteen, the Bar units and wait benches.

2008 Annual Report

The 2008 Judiciary Annual Report cites that expected outcomes could not be gained in the field of case settlement because of the security situation, lack of proper human resources, the Constituent Assembly elections in April 2008 and strikes held in different places directly affected the court procedures including summons, land measurement, implementation of the court verdict, punishment and others. Moreover, the movement in different districts of eastern and mid-terai, where the percentage of cases were high, was badly affected because of the unfavorable security situation, the report mentions.

Need

There is an immediate need of a strict Judicial Decision Implementation Unit (judicial police) for the purposes of implementation of directives, decisions and orders of the courts. The unit can also speed up the process of recovery of revenue. An elaborated Supreme Court complex is another need with modern infrastructures and facilities. The districts and appellate courts around the nation need to be upgraded with modern technologies in order to materialize the notion of swift judiciary. The selection criteria and procedures of permanent and temporary judges in the district courts also need to be revamped.

Senior advocate title for 25 lawyers

Kantipur Report

KATHMANDU, Aug 4 – The Supreme Court (SC) on Sunday decided to award 25 lawyers with the title of senior advocate. However, not a single woman made it to the list of new senior advocates this time. A meeting of the Full Court, the highest policy-making body of the judiciary, took the decision to confer the honorary title to prominent  lawyers as per the recommendation of a committee headed by Justice Anup Raj Sharma, said SC spokesperson Til Prasad Shrestha.

Some prominent names to be honored with the title included Attorney General Yagya Murti Banjade, former Attorney General Badri Bahadur Karki, former member of parliament Harihar Dahal, Bharat Raj Upreti, Prakash Wosti, Kamal Narayan Das and former Supreme Court Justice Pawan Kumar Ojha.

Other names included Bishnu Prasad Nepali, Amar Bahadur Pande, Narayan Prasad Khatri, Narayan Prasad Yadav, Madan Bahadur Thapa, Arjun Prasad Lamsal, Netra Bahadur Nepal, Kousal Kishor Dwibedi, Gauribar Prasad Agrawal, Yogendra Kumar Sharma, Devendra Singh, Laxman Lal Karna and Narayan Ballav Pant. Likewise, other new senior advocates to be honored are Padma Nath Sharma, Binod Kumar Sharma, Lila Prasad Sapkota and Ram Prasad Sitoula.

The Supreme Court decided to confer the tile on the basis of seniority, contribution to society and the judicial system and high morality, said Justice Sharma.

The committee comprising Sharma, Justices Bal Ram KC and Tahir Ali Ansari recommended the names after over a year long study. The court had conferred the tile to 15 lawyers, including a woman three years ago.

When asked why a single woman lawyer did not qualify for the title this time, Justice Sharma said, “We tried our best but it was very difficult to ignore the seniority system.”

Take Disciplinary Action

To,

Nepal Bar Council

Ram Shah Path, Kathmandu, Nepal.

Honorable Chairman,

ANLUS has serious concern over news published in www.khojtalashonline.com on 10th July issue regarding the Limbuwan court where Chabi Sambahamphe, an advocate licensed by Nepal Bar council has been practicing Unauthorized Practice of Law. Appropriate action has to be taken.

Association of Nepalese Lawyers and Scholars in the United States

web site: www.anlus.org email :

Rebels continue “People’s Court” in Nepal

Although the rebel Maoists won the elections in April 2008, their so-called people’s court and parallel governance still exists. Moreover, ethnic armed groups have now started to follow them. The above news published in a national daily KHOJTALASH reveal that the Federal Limbuwan State Council (FLSC), a faction and splinter of the Communist Party of Nepal (Maoist) have opened a Limbuwan Court that shall function in the eastern Nepal. The FLSC has demanded autonomous Limbuwan state and have taken up arms against the state. It must be noted that the FLSC is one of the 11 ethnic armed organizations still functioning under Communist Party of Nepal (Maoists). Their goal is to establish a Maoist Federal Republic Nation. The court has already decided 150 cases. A lawyer licensed by Nepal Law Council works with the Court too.

Republic Announcement Challenged in Apex Court

Republic Announcement Challenged in Apex Court

Source: http://www.thehimalayantimes.com

Ananta Raj Luintel
Kathmandu, June 2

A writ petition was filed in the Supreme Court today challenging the implementation of federal democratic republic by the first meeting of the constituent assembly on May 28.
Ram Kumar Ojha of Nepali Janta Dal filed a writ in the apex court asking the court to cancel the decision of CA as the first sitting of the CA was not enough to declare it, as it had only 564 members. The 564 members couldn’t decide for republic as the interim constitution needs all 601 members present in the CA meeting, Ojha argued in the petition. The petition also asked for an interim order for the selection of president and vice president only after the nomination of 26 more CA members. SC source said that the initial hearing on it would start tomorrow.

CJ Giri meets South Asian Bar Association

In another short lunch meeting with the South Asian Bas Association here in San Jose, California, Chief Justice Giri met with the leading lawyers from the South Asian Community. CJ Giri met with the president of SABA  Sirish Gupta,  Inderpreet Sawhney-President Elect of North American South Asian Bar Association, Mukesh Advani-Founder of SABA and other prominent lawyers. CJ Giri shared his views about the Nepalese legal system and its implications, the changes in the system and the challenges. South Asian Attorneys shared their views on the legal system and the legal profession. Association of Nepalese Lawyers and Scholars in the US (ANLUS) coordinated the event with South Asian Bar Association (SABA- http://www.southasianbar.org ).

SC Clears Path for Upper Karnali 300MW Hydroelectricity Project

Source: http://www.kanunisanchar.com

[ 14th of March ] Refusing to issue a stay order in the Upper Karnali Hydropower Project case, the Supreme Court on Thursday permitted the government to go ahead with the implementation of the understanding reached with Hyderabad-based GMR Energy Limited on the 300-MW power project.

A division bench of Chief Justice Kedar Prasad Giri and Justice Ram Kumar Prasad Shah refused to issue a stay order, and said the constitutional and legal questions raised by the petitioners will be settled by the court while delivering a final verdict on the case.

“The question whether the understanding needed a parliamentary approval or not will be decided while delivering the final verdict,” the bench stated.

The bench said: “Though the water flowing in a river is a natural resource, further discussion is required to decide on whether electricity generated from it is a natural resource or not, and whether an MoU signed with any national, international or joint venture company is a treaty or not.”

Advocates Bal Krishna Neupane, Borna Bahadur Karki, Tika Ram Bhattarai, Bhimarjun Acharya and Kamal Nayan Panta pleaded on behalf of the petitioners while Attorney General Yagya Murti Banjade and Deputy Attorney General Narendra Prasad Pathak defended the government.

Advocates Bharat Raj Upreti, Sushil Kumar Pant, Anil Kumar Sinha and Amarjivi Ghimire pleaded on behalf of the GMR Energy Limited. Gorakha Bahadur BC of Kalikot and Ram Singh Rawal of Surkhet had jointly challenged the understanding reached between the government and the GMR Energy Limited to generate 300-MW hydropower from the Karnali River.

The counsels of the petitioners claimed that the signing of the agreement between the government and the GMR limited was unconstitutional. They also claimed that it was treaty related to sharing of a natural resource, and that the government violated the constitution by not seeking a parliamentary approval for it. The constitution says any treaty related to sharing of natural resources must be approved by a two-thirds majority of the parliament.

The government however claimed that the MoU was not related to sharing of natural resources and it did not need a parliamentary approval.

Judicial code of conduct of int’l standard ready

Kathmandu Post | Kiran Chapagain, Advocate.

 

Kathmandu, March 14 – Judges of the country are, for the first time, getting a code of conduct of international standard amidst realization that the existing code is obsolete.The nine-page code of conduct obtained by the Post has eight main heads detailing  what judges should and should not do to uphold judicial independence, impartiality and people’s faith in the judiciary.

It says that judges should not come into “inappropriate” contact with members of the executive and legislature.

A seven-member committee led by Justice Khil Raj Regmi finalized the code of conduct last Friday and handed it over to Chief Justice Kedar Prasad Giri. Giri is currently studying the code before presenting it to the Full Court, the apex policy making body of the judiciary, for its endorsement. The Full Court is expected to convene next week. The committee prepared the code of conduct upon realization that the existing code of 1998 did not meet international standards.

The code of conduct further says that judges should be impartial not only while passing verdicts but also in the whole judicial process prior to the verdict. It demands that judges  be committed to judicial work.

“A judge should not let lawyers run their offices at his residence or meet parties to subjudice cases at his residence,” the code of conduct states.

The existing Code of Conduct for Judges1998 is silent in this regard though the international code of conduct for judges clearly prohibits judges from meeting with parties to cases at their residences.

This issue became a matter of national debate last July when the Post ran a story of former Chief Justice Dilip Kumar Poudel meeting parties to cases at his official residence at Baluwatar, Kathmandu.

The code of conduct has been prepared on the basis of The Bangalore Draft of Judicial Conduct 2001 and its amendment in 2006 by the Economic and Social Council.

Besides Judge Regmi, justices Ram Kumar Prasad Sha, Rana Bahadur Bam, Dr Ananda Mohan Bhattarai, Narayan Dahal and Judicial Council Secretary Prakash Kumar Dhungana were involved in preparing the code of conduct.

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