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Civil Cases

Hira Pasi VS HMGN

COURT : SUPREME COURT OF NEPAL

CASE : CIVIL CASE

BACKGROUND
The appellant was accused of being involved in a robbery case and there was a statement allegedly made by the accused at a police office confessing to the accusation. The initial appeal court had convicted the accused on the ground of this confession and the appellant had appealed to Supreme Court claiming that the confession was drawn against his will and could not constitute sufficient evidence for conviction.

VERDICT
In the decision of the subordinate courts it seemed that the appellant was charged with the accusation on the basis of the information of an approver. In any case it would not be just and reasonable to take the confession of such a person against him unless supported by other independent and reliable evidence. For judicial conscience, the confession taken from the accused in custody is not enough for the justification or verification of the information received from the approver.

The statement made by an accused in custody may not be acceptable as independent and trustworthy whatever the circumstances may be. Even if it was not proven that the police had directly subjected the accused to any threat or coercion, the custodial confession may not be taken as the evidence enough to convict an accused since such confession might be drawn from influences in custody. Therefore, the judgment of the subordinate courts is not upheld and the appellant is acquitted.

June 30, 2017 ojaswi budhathoki Attorney, Civil Cases 0

Gopal Siwakoti V HMG

RIGHT TO INFORMATION

COURT : SUPREME COURT OF NEPAL

CASE: CIVIL CASE

BACKGROUND

According to the information disseminated by the governmental and non-governmental media, Arun Hydro Project, which was about to be launched, would create an economic misuse such as percentage commissions due to the involvement of World Bank and other international contractors and also a long-term impact on environmental protection and social balance. It was alleged that the investment of the project might not be sustained by the country. As vigilant citizens the petitioners requested information on the project from the respondents. However, the respondents denied this and thus infringed the petitioners’ fundamental right to information as granted by Article 16 of the Constitution. There were numerous suspicions on the need, rationale, usefulness and sustainability of the project due to doubtful activities and contention of the respondents. The loan drawn from the foreigners would have to be reimbursed, directly or indirectly, through the taxes paid by the citizens of Nepal including the petitioners. In the Memorandum of Understanding the terms and conditions of the investors were not found stated even though the matter was a public concern and the right to such information is also granted by the International Covenant on Civil and Political Rights which applies in Nepal equally to domestic laws. There were several precedents regarding public concerns. Therefore, the petitioners requested an order of certiorari, thereby directing the respondents to supply all the information regarding the project.

The respondents asserted that several seminars and meetings had been organised to clarify the technical, environmental and economic aspects of the project. At its office a library and information section is operated to supply information to the people as required. Therefore, citizens including petitioners are not deprived of the right to information. The petitioners had no locus standi either. A study of the project had been carried out for a long time and the proposed project is appropriate in every aspect. The technical aspect is perfect and different measures are set to control environmental impacts. The benefits to the local people after completion of the project, training related to its construction and operation, necessary facilities and securities and settlements for people possibly displaced from the project site had already been planned. The provision of Article 16 is not a privilege of the petitioner to receive copy of all statistics and details but only entitlement to general information. The petition mentioned about the Memorandum of Understanding, which shows that the petitioners had access to any necessary information. Accepting inevitability of the need of hydro-electricity for the development of the nation, the project is to be completed under Articles 25(2) and 26(3) of the Constitution, which in fact restrict the exercise of jurisdiction for judicial remedy. Thus, it was requested to nullify the petition.
The respondents had requested an immediate hearing of the case, especially taking into consideration the possible negative effects on investments and operations from the side of donors, which could cause a national loss.

HELD

Any dispute, if it affects negatively the interest of the general public, is an issue of public concern. General public concern includes the issues related to residence, employment, security water resources development, social justice etc. Arun-3 project would have a long-term impact on all citizens including the petitioners. The debated issue is about the development of electricity by national and international resources, and therefore is a subject of public interest and concern.

Article 88(2) may not be attracted merely because of the inclusion of a public issue but the subject should bear the nature that fits enunciation by the court.

In the present case, it would not be constitutional for the court to put off the case as the court cannot enforce directive principles of state policies. Since Article 16 provides for each citizen to demand and receive information about a matter of public concern, the petitioners deserve a locus standi to file the petition with the court, as the debated Arun-3 Project is a matter of public concern and importance.
A right is nothing without a remedy. Although Article 16 of the Constitution guarantees the right to information, there is no specific law providing for the manner and matter to provide the information. The spirit of Article 16 seems to be one of managing people’s right to information in a democratic manner.
The petitioners had not related the said dispute with a particular question of law or constitution. As the matter claimed therein is not one of judicial enunciation but rather one related to economics and politics, Article 88(2) cannot be attracted therefore.
When a right is established and if procedure to materialise the right is still lacking, the court has to fill the gap. The demanded documents seemed to be of a huge quantity and it would simply be impossible for the respondents to supply the petitioners with copies of all the documents. If the court would impose such a burden this would go beyond judicial limitations and would be a rigid manifestation of justice.

Therefore, in lack of directives by the law, eight points of procedure were laid down by the decision to supply the copies i.e. information. A writ of mandamus was issued for the purpose of supplying the information on the basis of the above-mentioned eight-point procedures and prevailing laws of the land.
The court has also drawn the attention of the government to formulate the official secrets Act. It has also ordered that the eight-point procedures would come into force until and unless necessary rules and regulations were made.

June 28, 2017 ojaswi budhathoki Attorney, Civil Cases 0

Reena Bajracharya v HMGN

Right to Equality / Gender Equality

COURT : Supreme Court of Nepal

CASE : Civil Case

BACKGROUND

This case is related on Gender Equality in employment. The subject of this case is Certiorari. The petitioner of this case is Reena Bajracharya and Others and the respondent of this case is Royal Nepal Airlines Corporation (RNAC).The fact of this case is Gender Discrimination in Retirement.

DETAIL

The petitioners were female cabin crew Air-hostesses, employed by the Royal Nepal Airlines Corporation (RNAC). RNAC’s Service Regulations Rule 16.1.1 provides that crew personnel would retire at the age of 55 and non-crew personnel at the age of 60. Rule 16.1.3 provides that Air-hostesses would retire either once she has passed the age of 30 or once she has served over 10 years. The second amendment of the regulations adds a provision that the airline would allow serving additional three years after the age of 55, subject to a health examination. Rule 4.1.3 provides that air hostesses and aircraft hosts are of same service group. However, craft hosts are allowed to work for three additional years, which presents an inequality between male and female.

The RNAC Service Regulations violate Articles 11(1) and 2, 12(2)(e), 17 of the Constitution of the Kingdom. Article 15 of the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) provides that women and men should be treated equally. Nepal is a party to the Convention, thus, according to Article 9 of the Treaty Act, the Convention is equivalent to Nepal law. RNAC Service Regulations also contravene the Convention.

In other countries craft-hosts and air hostesses are treated equally with regards to their age. Article 11 of the Constitution completely prohibits gender discrimination. Article 131 of the Constitution provides that laws inconsistent with the Constitution would cease to operate one year after its commencement. However, the regulations remain operative, and their second amendment promotes discriminations.

Therefore, the petitioners demanded to annul the discriminatory Rule 16.1.3 of the said Regulations by the writ of Certiorari, and to issue directives of Mandamus to the respondent to treat male and female personnel equally. The petitioners also requested an interim order according to which female personnel would not be required to retire until a final decision in the case had been reached.

The respondent institutions stated that Rule 16.1.3 had been made in consideration of the nature of the job to be performed by female personnel, which had never been questioned since 2031 BS. Articles 11(3), 26(7) do not provide absolute rights to women, they only provide for scope to offer special types of amenities and conditions. The said Rule was formulated according to the considerations on the physical condition of women and the nature of the job.

The Rule had not restricted the freedom of profession. Rule 16.1.3 provided that air hostesses might be employed for jobs on the ground after their retirement. The petitioners had committed to the terms and conditions upon entering employment. They are bound to respect the conditions under the general principle of contract law. The petitioners are working past the age of 30 despite the proviso under Rule 16.1.3 and are treated equally among other personnel.

Air service is special and sensitive in nature. This gives more importance to other issues than the protection of rights. For that reason it had been considered that only women up to the age of 30 would be competent for the service and it had been managed accordingly in the Regulations. There was no discrimination for remuneration. Therefore SC was requested to nullify the petition.

VERDICT

According to the Regulations of the Corporation, personnel means Pilot, Co-pilot, Flight Engineer, Radio Officer, Flight Navigator, Air-hostess, Cabin Assistant, and Purser appointed in the service of the Corporation in any grade. It deemed that other provisions including working hours and leave facilities, except the one in question, are equal to all. The issue of gender equality raised by the petitioners seemed relevant to be analyzed considering the developments and provision of human rights. The issue of gender equality has been raised from time to time in the democratization process of Nepal and after the commencement of the Constitution 1990.

There is a proclamation in the Constitution ensuring fundamental human rights and Nepal has signed a number of Conventions including the 1979 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Section 9 of the Treaty Act 2047 focuses on prompt implementation, keeping them in a higher grade than Nepal laws. Nepal’s acceptance of the international spirit of CEDAW has been justified by the spirit of proviso and Article 11(3) of the Constitution. The importance of gender equality is inseparable from the development of national human rights, so there should be no point in law and activities which may hint at gender discrimination.

With this understanding it has been necessary for the Court to see whether the provision in Rule 16.1.3 of the Regulations is consistent with the above mentioned Articles 11(5), 11(2), 11(3) and 11(5) of the Constitution which has internalized the spirit of Article 15 of the 1979 Convention. Article 11(1) provides for equality before law; Article 11(2) stipulates protection against discrimination on the ground of religion, gender etc. in the application of the law; 11(3) stipulates that the State would not discriminate against anyone on the ground of gender, colour etc.; and 11(5) guarantees equal remuneration for equal work. According to these fundamental points, it is evident that security and amenities in service shall be equal.

The proviso of Article 11(3) is not restrictive but is of a positive nature for legislating for progress and the protection of women. It is not a provision for compromising the equal treatment of women. Additionally, Rule 16.1.3 directly contravenes Article 26(7) which directs the State to encourage the participation of women in the national development.

Therefore, it can be said that the Rule provides for conditions by which the petitioners would be deprived of equal opportunities in serving. A law giving room for discretion could not establish the right to equality. Estoppel may not be applied to legal rights and the principle of delay may not be applied to a constitutional question. Therefore, Rule 16.1.3 of the above mentioned regulation is against equality, inconsistent with the constitutional provision and is to be declared void through the issuance of a writ.

June 21, 2017 jayanti Attorney, Civil Cases 0

Meera Dhungana AND Meera Parajuli v HMG,Ministry of Law and Justice

PROPERTY RIGHT OR CASE OF PARENTAL PROPERTY

DATE : 2050 B.S

COURT : SUPREME COURT OF NEPAL

CATEGORY : CIVIL CASE

BACKGROUND

This was public interest litigation filed by two female lawyers in Supreme

Court of Nepal. The issue of constitutionality of clause 16 of the Aungsabanda of Muluki Ain this provisions were challenged for two reasons:

Firstly, to claimed a parental property she should remain unmarred
Secondly, she should attain an age of 35 year even getting share of property if she gets marriage then she should return that property.

DETAILS

The petitioners claimed that these clauses were clear contraventions of Article 11 and 17 of the constitutions of kingdom of Nepal. This expressly prohibits discrimination on the ground of sex. The major issue of the case was whether clause 16 of the chapter on Aungsabanda or partition of property was constitutional or not? Petitioners request that many laws, especially those that are discriminatory to women’s rights including Number 16 of the Chapter on Partition of Property of Muluki Ain should be declared null and void. The petitioner seek the nullification of Number 16 of the Chapter on Partition of the Muluki Ain by raising arguments that, the provision is against-

Article 1 of the 1990 Constitution- all laws inconsistent with the Constitution will ipso facto be void in tune of Article 131 of the Constitution;

Article 131 of the 1990 constitution- all laws which are inconsistent with the Constitution shall stop to operate after one year of the commencement of this Constitution.
Article 11 (2) of the 1990 Constitution guarantees no discriminatory treatment against any citizen in application of general laws on grounds, inter alia of sex;
Article 15 of the UN Convention on the Elimination of All forms of Discrimination against Women provides that women have all property rights on an equal footing with men.

Clause 16 of Chapter : ” the daughter who has reached the age of 35 and remained unmarried is entitled to get share in property as equal to the son.If she gets married or elopes after receiving the share property, then she has to return the remaining property to the person who is entitled to it”

VERDICT

The judgment did not come out as per the petitioner's expectation. The main text of the judgment reads as follows;

Taking into consideration of the social conditions of men and women, the Nepalese law has adopted only some different process of getting partition share. Instead of depriving a daughter of the right to get a share or making discrimination against her, the right of a daughter to get a partition share has been managed in slightly different manner from that of son, taking into account of the social status of women. For instance, according to clause 16 of the chapter of AUNGSABANDA , an unmarried daughter should attain the age of 35 years in order to get partition share, while even a married daughter should attain the age of least 35 years or complete 15 years of marriage to get partition share. In regard to the process of partition share, a son gets the same, which cannot be disregarded. Before declaring clause 16 of chapter of AUNGSABANDA unconstitutional and making provision as to the same entitlement of a daughter to partition share as that of a son, the negative sides thereof or its implication on the society should also be taken into account. This will result in a great impact on the structure of the patriarchal society like ours, handed down from ancient times; a daughter may not be compelled to get married and go to her husband;s house after marriage, and while on the other hand declaring Clause 16 unconstitutional and making provision entitling a daughter to get partition share as of a son, a married daughter will be entitled to get partition share from the properties of both her father and husband, and son will be entitled to get partition share only from the property of his father. This will create the right of a daughter to obtain more partition share than a son;s right to obtain partition share, thus it will create conditions discriminatory against son. This will affect the laws of the country made in regard to the property right.

The judgment flash the discussion of whether there should equal share of children on property nationwide and the whole country acted as big parliament. This has helped extremely in generating gender equality consciousness in the country.

After this judgment, the 11 th Amendment in the Muluki Ain has brought some positive changes on property rights of women. According to the new amendment, unmarried daughter are also entitled over the parental property rights. Till the 10 th amendment, daughters were entitled to obtain parental property after reaching the age of 35. The present amendment has included daughter as coparcener without such limitation of age. However, the marital status of daughter is still a determining factor. After marriage daughter are not entitled to parental property right.

June 16, 2017 jayanti Attorney, Civil Cases 0

Meera Dhungana V HMG (2058)

MARITAL RAPE

DATE : 2058 BS

COURT : SUPREME COURT OF NEPAL

CATEGORY : CIVIL CASE

BACKGROUND

Whether or not number 1 of chapter on ‘rape’ of Muluki Ain means and includes Rape

Fact

Petitioner brought forward a write petition before the court requesting to declare the no.1 of chapter rape of Muluki Ain 2020 Void on the ground of inconsistency with the right to equality guaranteed by the constitution and the other international instrument relating to human right, Universal Declaration of Human Right (UDHR, ICCER, ICCPR and CEDAW)

Verdict

The court Declared marital rape as punishable an issued a directive ordered to tone of the respondent namely Ministry of Law Justice and Parliament affairs to make conscious and just legal provisions to complement the marital rape because the consequence of a crime of rape by husband and any other person differ in respect of collection of evidence circumstance, quantum or gravity of punishment and its priority. Legal provisions regarding marital rape should be given a complexion considering a special circumstance of marital relation. Statues of the husband no.8 on chapter on rape has circumstances caused by the rape from the person other than husband. such majors to be made should adopt major to provide immediate relief like provision to live separate or divorce on provision to address rape caused by child marriage.

June 12, 2017 ojaswi budhathoki Attorney, Civil Cases 0

MAN BAHADUR VISWAKARMA V. HMG

RIGHT TO EQUALITY (RIGHT AGAINST CASTE DISCRIMINATION)

COURT: Supreme Court Of Nepal

CATEGORY: Civil Case

BACKGROUND:

Article 11(4) of the Constitution of the Kingdom of Nepal provides that no person would be discriminated against on the grounds of caste or untouchability or prohibited to use any public entity or be present in public places. Such action would be punishable in accordance ith the law. Similarly, the provision in the Civil Code (Muluki Ain) provides that anyone committing such an offence would be imprisoned for one year and fined up to the amount of Rs. 3000. These mentioned provisions are positive, timely and humanitarian; however, the respondents have maintained a clarification on the provision of in Clause 10(a) of the chapter saying that "the treatment which has been practised traditionally in a temple or religious place would not constitute discrimination.

DETAILS:

Article 11(4) of the Constitution of the Kingdom of Nepal provides that no person would be discriminated against on the grounds of caste or untouchability or prohibited to use any public entity or be present in public places. Such action would be punishable in accordance with the law. Similarly, the provision in the Civil Code (Muluki Ain) provides that anyone committing such an offence would be imprisoned for one year and fined up to the amount of Rs. 3000. These mentioned provisions are positive, timely and humanitarian; however, the respondents have maintained a clarification on the provision of in Clause 10(a) of the chapter saying that "the treatment which has been practised traditionally in a temple or religious place would not constitute discrimination." Temples or religious places are public places and the clarification is inconsistent with Article 11 of the Constitution. In many religious places, Dalit castes, including the petitioner, are prohibited to enter public places in the name of tradition.

Therefore, the clarification in Clause 10(a) of the chapter on conduct is demanded to be declared unconstitutional. The respondents asserted that Article 19 of the Constitution provides that every religious group has the right to religion, keeping their independent identity. The treatment which has been practised from the beginning would not constitute discrimination. All temples and religious places could not be public, they may be private too. In some temples and religious places, it has been a practice from the very beginning that only particular religious creed or persons are allowed to enter and others are restricted from entering. The provision could not be interpreted as inconsistent with the right to equality and the right to religion. Therefore the petition was requested to be quashed.

VERDICT:

The Constitution has not only prohibited untouchability and other social wrong traditions but has also declared such acts punishable. The questioned clarification seems for making the main provision explicit. The main provision provides for punishment for the act of discriminating on the grounds of untouchability and restricting from public use. But the clarification seems to be supporting the discriminatory treatment. By the clarification the scope of the provision has been restricted and limited.

Clause 10(a) reveals that the prohibition of the discrimination as directed by Article 11(4) of the Constitution itself is sufficient for prescribing penalty. Therefore there seemed no need for such an explanation providing an exceptional provision. Such an exceptional legal provision would otherwise implicate the main provision and the Constitution would be controlled by the normal law. The fundamental difference between the Constitution and normal law might be absconded and constitutional purpose might be defeated. The questioned clarification restricts and limits the provision of Article 11(4) of the Constitution; therefore, it seems inconsistent with it and is declared invalid.

June 11, 2017 jayanti Attorney, Civil Cases 0

Ms. Meera Dhungana V HMG (2063 BS)

VIOLATION OF PRINCIPLE OF EQUALITY

DATE : 2063BS

COURT : SUPREME COURT OF NEPAL

CATEGORY : CIVIL CASES

BACKGROUND

The writ petitioner states in her writ petition that the sub-sections (1) and (3) of section 4 of

Social Events Reforms Act, 2033 brought into force prior to the promulgation of the

Constitution of the Kingdom of Nepal, 2047 is still in force as usual. Section 4 under the

heading “The bride side not permitted to receive” provide in sub-section (1) that the bride

side while their daughter is to be married are not permitted to receive or give in exchange

any cash or property from/to the groom’s side and in sub-section (3) it is provided that any

person violating the provision of sub-section (1) shall be punished with a fine from Rs. 12

thousand to Rs. 25 thousand or an imprisonment of one year or with both, including the

forfeiture of the monetary value of such dowry. Similarly, section 3 of the said Act under

the heading “Control on dowry” in its sub-section (1) provides that no one should accept to

give or receive dowry and in its sub-section (2) it provides that any person violating the

provision of sub-section (1) shall be punished with a fine from Rs. 12 thousand to Rs. 25

thousand or an imprisonment for a period of up to thirty days or with both including the

forfeiture of the monetary value of such dowry. While observing the arrangements made in these two sections it is found that if the bride side demands for dowry the punishment is

high and if the groom side demands for dowry the punishment is softer one which gives a

clear glimpse of dominance of the patriarchal value and thinking. Since the said provision

made in sub-sections (1) and (3) of section 4 is in contradistinction to the Article 11 of the

Constitution of the Kingdom of Nepal, 2047, Universal Declaration of Human Rights, Articles

1, 2, 3, 5 and 26 of International Covenants on Civil and Political Rights, 1966, Articles 1, 2,

3 and 5 of the International Protocol of Economic, Social and Cultural Rights, 1966, Articles

2, 3 and 4 of the Convention on Elimination of All types of Discrimination Against Women,

1979, therefore, let the said provision be declared void and ultra vires under Article 88(1)

of the Constitution of the Kingdom of Nepal, 2047 and let the appropriate order be issued

directing to make the legal arrangement based on the principle of equality.

DETAILS

In this case, Meera Dhunga point out two issues,i.e the violation of Principle of Equality and the Contradiction of Act, where she mention, Social Reform Act 2033 Section 4 under the heading “The bride side not permitted to receive” provide in sub-section (1) that the bride side while their daughter is to be married are not permitted to receive or give in exchange any cash or property from/to the groom’s side and in sub-section (3) it is provided that any person violating the provision of sub-section (1) shall be punished with a fine from Rs. 12 thousand to Rs. 25 thousand or an imprisonment of one year or with both, including the forfeiture of the monetary value of such dowry. Similarly, section 3 of the Constitution of the Kingdom of Nepal, 2047 Act under the heading “Control on dowry” in its sub-section (1) provides that no one should accept to give or receive dowry and in its sub-section (2) it provides that any person violating the provision of sub-section (1) shall be punished with a fine from Rs. 12 thousand to Rs. 25 thousand or an imprisonment for a period of up to thirty days or with both including the forfeiture of the monetary value of such dowry.

VERDICT

Upon perusal of the case file and hearing the arguments of the learned counsels representing both the sides of the case, the Bench has to resolve the following two questions before pronouncing its verdict:-

1. Whether or not the legal provision made by section 4(3) of the Social Events Reforms

Act, 2033 is against the constitutional right of equality of women.

2. Whether or not the court should issue an order declaring the said provision ultra virespursuant to Art 88(1) of the Constitution of the Kingdom of Nepal.

Upon perusal of aforesaid constitutional provisions it is found that there does not exist any

provision permitting the State to make a law providing more facilities to the groom side and

less favoring the bride side. Upon examination of the provision of section 4(3) of the Social

Events Reforms Act, 2033, it is found that in case the bride side demands dowry, the

punishment for the dowry giver or the groom side shall be half of the punishment imposed

for the dowry receiver or the bride side. Unless two parties agree to take and give dowry,

the commission of the said offense is not possible. The learned government attorney could not clarify as to how giving and taking of dowry was materially different specifying reasons therefor. There does not exist any reasonable ground to discriminate the bride and the groom side simply on that reason, and impose higher punishment to the bride side. Apparently the said legal provision in question is found to be inconsistent with the Rights to equality as enshrined in Article 11 of the Constitution of the Kingdom of Nepal, 2047.

Since the aforesaid legal provision in question is found as inconsistent with the right to equality it will not be proper to continue with the said legal provision in the existing condition.This Court has on several occasions passed the orders directing to amend such discriminating laws in many cases and since the writ petitioner has sought the issuance of order for making or causing to make necessary legal provision based on the principle of equality, this order is hereby Issued in the name of the Office of the Prime Minister and Council of Ministers of the Government of Nepal directing it to make the appropriate legal arrangement based on the principle of equality

June 9, 2017 ojaswi budhathoki Attorney, Civil Cases 0