| Username |
Post |
| Jhilke Kyailan |
Posted
on 28-Nov-02 10:03 AM
Taken from the Kantipur Online......
KATHMANDU, Nov 28 - The latest royal take-over was a cumulative effect of the lack of resistance on the part of political parties when king indulged in ‘interference’ over and over again since 1990, said Bishwo Nath Upadhyay, former chief justice and chairman of the present Constitution drafting committee, here on Wednesday.
The violation of the spirit and letter of the Constitution by the king began ever since the new constitution was launched. The clean chit given to the king that monarchy was the only institution to honour the constitution was far from truth, Upadhyay said, while speaking at a talk programme on Present Political Situation and Citizenship Issue.
“The latest royal move is the result of silence on the side of political parties, who repeatedly said the king was the only institution to follow the Constitution, though he has violated it right from its promulgation,” he added.
The ex-chief justice said it was an extra-constitutional practice to appoint ambassadors and Upper House members by the king without cabinet recommendations. “But the erstwhile government always wanted to appease the king and raised no question over the king’s actions,” said Upadhyay adding, “It was this factor that encouraged the king to take the latest action against an elected government.”
He also said the king’s decision to seek the Supreme Court’s suggestion a couple of years ago and the latter’s suggestion to the king about constitutionality of the dubious citizenship bill were extra constitutional practices.
He advised the leaders not to take up the citizenship issue lightly, as it had an inseparable link with nationality and national interest.
He was referring to the latest report of Badri Prasad Mandal, Deputy Prime Minister which spoke of awarding citizenship papers to almost 40,000 people within the next few days. “It is the discretion of the government whether to award the naturalised citizenship to anyone or not,” said Upadhyay.
Upadhyay said it was unfortunate for the country to exchange citizenship with votes by a responsible politician. (yo)
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| Biswo |
Posted
on 28-Nov-02 11:41 PM
Biswo Nath Upadhyay's speech of this kind was long expected. Mr Upadhyay, whether one agrees with his view or not, is a man of integrity, he was one of those people who penned the constitution of Nepal, and who ruled on such major issues as Tanakpur and Parliament dissolution. He is consistent in his views. Today's ministers, whose loyalty and political view is fickle and mainly guided by the greed of ministership itself, can learn a lot from him.
And for those people who were curious about how many people were gathered to hear Girija, the info is :more than 10,000 according to Kantipur, and about 'lakhs' according to Bimarsha (I will go with Kantipur). This was a protest, organized by Nebisangh (it said let's go to Basantapur to protest royal moves in its pamphlets) and it should tell a lot to those reactionaries who thought a few 'motorcycle rider' freaks were representing people and celebrating king's move.
--
I don't want to blame anyone rightnow, but the decision about 'not buying helicopter' also surprised me. The logic behind buying helicopter given implicitly by the last government was that the government had paid more money in rents in previous years than the cost of helicopter itself. When the owner of one of such aviation companies, Narayan Singh Pun, was out of power, the government decided to buy these helicopters. Now, Mr Pun is back and the decision to rent helicopter is on.
I think Mr Pun is an honest person. Obviously, some thing is wrong here, though. Is government underestimating its need of helicopter? Next year, if it turned out that helicopter purchase was in deed necessary, should we reduce the His Majesty's annual budget and recoup this deficit?
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| Jhilke Kyailan |
Posted
on 29-Nov-02 05:45 AM
Also, one should note that the helicopters were for the POLICE and not the army......could this empowerment of the police force have been not favoured by the army brass..and guess who the army brass support..Just a thought....
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| suva chintak |
Posted
on 29-Nov-02 02:37 PM
Quite suprised to read our learned Bishow's praise of Bishownath Upadhaya!
For one thing, Bishownath did not give consistent rulings as Bishow claims. The most glaring of them is the house dissolution cases. While Bishow upheld Girija Prasad Koirala's right to dissolve the house, he denied the same prime ministerial privilege when UML's Man Mohan Adhikari ordered the dissolution. Is this a consistent ruling, or am I missing something here? Many people think this was the start of the downhill trend in Nepali politics.
Now on the Tanakpur ruling, a lot of people think that this was a split/confusing decision. While SC said it was a treaty requiring house approval, but left it to the government to do as it pleased with what it had done with India. It is like proving the guilt of a criminal in court, but then leaving it up to the criminal to do as he pleased with the result of the crime.
So Bishownath never gave clear, unambigious and consistent verdicts. I think he was more of a cleaver politican juggling the interests of the dominant powers than a honest, impartial jurist. Now he is harping on the citizenship issue, but can Nepal really provide citizenships to all the Indian immigrants as Bishownath is now demanding?
Now on the question of the great constitution Bishownath wrote. What is so great about this constitution? It is a very confused document, it does not specify the separation of various powers, institutions. It does not clearly privide for the intergration of the major instituions of the state like the bureaucracy, legislative, the king, the army etc etc. This constitutional ambiguity is one major reason why there has been so much quarrel between the various arms of the Nepali state.
But lastly, to say what a great constitution this Bishownath Upadhaya wrote in 1990 and then go on and support the call for a constituent assembly to write a new constitution seems very contradictory. A person who pens a constitution that becomes irrelevant in less than a decade is hardly a genius worthy of all this praise.
I suspect Bishow's enthusiasm in making a hero out of his own namesake is perhaps motivated by entirely different consideration: Upadhaya's recent attack on monarchy! It seems Bishow is now going to warm up to anyone who is republican..despite their past, including Girija, Prachanda, and all the others.
After all, politics makes strange bedfellows!
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| Biswo |
Posted
on 29-Nov-02 05:39 PM
No Shuvachintak, no. It is not merely because he is attacking the king that I praise him. It is his history that is laudable. He is the Forest Gump of our era, an unassuming judge who was there to witness the vicissitude of our democracy.
I am not a supporter of constitutional assembly, but despite being different from Mr Upadhyay on this issue, I find him honest and a man of integrity, and that's why I praise him. I am not going to defend here that decision re Man Mohan case, because thousands of pages might have been already written about that. Let's not forget that Mr Upadhyay was only presiding the 9 member or 11 member bench.
I respect people with consistent views, and integrity. In Nepal, where people shift loyalty in unimaginable speed, Biswo Nath Upadhyay is definitely unique and respectable.
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| suva chintak |
Posted
on 30-Nov-02 05:46 PM
Bishowji,
I respect your views on many issues, but I find it hard to see how you can say Bishownath has 'consistent' views when he gave out radically different ruling on two identical cases. I think that is inconsistent. I agree with you that he was one of the 9 members on the bench, but his ruling own vote was for cancelling Man Mohan's call for dissolution of the house. There were two others who gave put up notes of dissent, I think one was Justice Rayamajhi.
If you mean to say that he is consistent in his support of Girija faction, that may be true since 1990. Other than that, this guy has no consistency.
But other than that I guess he is like any joe blow Nepali, trying to advance his cause when he can. I have nothing personal against him, my comments on him are only on his professional performance.
Best!
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| Biswo |
Posted
on 30-Nov-02 11:47 PM
Shuvachintakji,
I found one great point in Biswo Nath's verdict against Man Mohan: our comrades were advancing an argument at the time: that since the king already agreed to dissolution, this dissolution should be irreversible. Biswo Nath's verdict against Man Mohan proved one thing: that even those things that king did could be overturned in democracy.
>If you mean to say that he is consistent in his
> support of Girija faction, that may be true since 1990
I also don't think he is consistently supporting Girija after 1990. The verdict against Girija in Tanakpur case was a major blow to Girija at the time.
>But other than that I guess he is like any joe
> blow Nepali, trying to advance his cause when he can.
I don't think so. Even a dupe can snatch the post of a minister these days just by supporting the king. Biswo Nath has been disliked by the kings for his independent prodemocratic mind.
Shuvachintakji, I wouldn't support anyone more than what I do at present if he were to agree with my opinions. I think that is the right way to admire people while differing on ideology. And I believe I admire Biswo Nath because of his consistency and guts.
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| HahooGuru |
Posted
on 01-Dec-02 07:02 AM
Biswo:
I found one great point in Biswo Nath's verdict against Man Mohan: our comrades were advancing an argument at the time: that since the king already agreed to dissolution, this dissolution should be irreversible. Biswo Nath's verdict against Man Mohan proved one thing: that even those things that king did could be overturned in democracy.
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I never read this side of story. Its one of biggest and most enjoyable positive thinking of the verdict, and its also gives satisfaction that constitution was above King and Supreme court is the final interpretator of the constitutions. Until before Oct. 04, 2002, this interpretation was never seriously considered. But, now this point should be center of discussion and this should be core of the verdict.
For last 2 years, I had been hearing Monte Carlo Simulation and I thought its basic concept is very difficult to understand. Lately I read a lot of books, papers and notes on this Monte Carlo Simulation. Now, I realized what is Monte Carlo Simulation in our daily life ? Its Democracy. Where we [each individual citizen] have limited knowledge, thus, in Monte Carlo simulation perspective, we have limited data, but, what we do in democracy? We discuss and discuss: debates ? What are debates? That is sampling. So, we debate a lot means we get create a list of samples, where the mean value can be considered as close to true value. In Monte carlo simulation, what we do? We generate a large number of samples either based on limited data, or using similar problem. When we do a large number of samples then, we consider we are close to mean value.....
This is what "Pearson?" told: Ask the peoples who discuss on the monthly gain and loss from roulette game at Monte Carlo Casino around the end of month (from where the name Monte carlo simulation was named).
What pearson meant? They played for month, and found that which number is the most probable number ? So, first few game for a beginner might bring a huge loss, but, for those who had analyzed it for long (huge number of samples), know where should they bet.
So, Democracy is a real Monte Carlog Simulation game. When all ideas [samples] are integrated and synthesized, we can understand what is right and wrong, but, in autocratic society where a few talents may pretend to give best analysis, but, we can not be sure with the limited samples, whether we are heading in right direction. Therefore, Dipak Gyawali, Dr. Upendra Devkota might be very talented, but, they are not enough to make ourselves confident, just the way we are forced to follow Monte Carlo Simulation, well, it is true that Monte Carlo Simulation looks absurd and expensive as well as time consuming, but, it is the only reliable method in long run, if we really want a good end.
Sorry to be long. This is how tried to understand Monte Carlo Simulation, and this is what finally I understood. Well, the poll, voting, ...... are all Monte Carlo Simulations.... Now, we have to go for Importance Sampling ......... This what I am heading to learn.
Biswo is right that the few hunder motor cyclists in KTM who supported KG'S move may have proved that Democracy has failed in Nepal, but, that sampling was probably wrong. We need to do more distributed sampling using Monte Carlo Simulation technique. Importance sampling is necessary at this time, when we can not conduct election .............. Let Political leaders, civic societies run protests, and campaigns... then, we can really understand who is on right side.... I hope to come up with application of Importance Sampling. .....
HG
HG
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| Kumar Prasad Upadhyay |
Posted
on 01-Dec-02 12:06 PM
Biswo-ji:
Just to supplement to your assertion about Biswonath Upadhyay's decision in Man Mohan Adhikari's House dissolution case..
It is true that the Supreme Court (BNU and seven others in a Bench of 11) said it could examine the constitutional validity of the dissolution, despite the fact that it was acted upon by the King, but that was not the first case in which the Court went as far.
A year earlier--in 1994--Girija Prasad Koirala had dissolved the House and the case went to the Supreme Court, filed, among others, by one member of the chhattise group (remember the NC equation of 36 v 74!) of NC. The Bench that heard that case too was headed by BNU.
The first line of defence advanced by Koirala in that case was the same that Man Mohan tried a year later: this is an action of the King, and under the Constitution (go to the Chapter on His Majesty for the exact provision) "no question shall be raised in any court on acts performed by His Majesty (my words)." If the court had entertained that line of argument, it would have declined from entering into the merits (whether the situation demanded etc) of Koirala's dissolution. But it did not. The decision in Koirala's dissolution case, like that of Man Mohan Adhikari, was based on the merits of case, not on that technicality.
The "judicial innovation" that Upadhyay and the other judges in the majority came up with was that since the action of the King was based on the recommendation of the Prime Minister, the Court can and should examine the constitutionality of that recommendation (of the Prime Minister). They then went on to say that the recommendation was unconstitutional. This was a round-about way of saying the King's action was not constitutional, and they crafted their words very diplomatically. But everybody who has read the judgment knows what they were getting at..
The various judgments of the Supreme Court--with or without BNU--are quite consistent in maintaining that line of reasoning: they would not go into the merits of the case if it was something which involves "discretionary" use of authority by the King. But they would pounce at it if the King merely acted as a rubber stamp.
But then, having praised BNU for that "historic" verdict in the Man Mohan Adhikari case, it is important to consider how that bold decision impacted upon the party politics in Nepal in the years after 1995.
You and I are aware that as a result of a "diminished" prime ministership, burdened by legal technicalities with reference to use of dissolution power, Prime Ministers of Nepal, post-1995, became weak and helpless.
Sher Bahadur Deuba, who became PM for the first time as a result of that decision, was unable to control his herd of MPs, and lost his office because two of NC members decided to remain absent from the House when his government had sought a vote of confidence. The extent of horse-trading of MPs which was so visible and blatant in 1996-1999 is attributed to a great extent to the fact that as a result of that decision, the office of the Prime Minister had become a helpless office, unable to use the threat of dissolution to discipline MPs. (You can get any number of articles by Ganesh Raj Sharma et al on this theme). Between that decision and the 1999 elections, we had Sher B Deuba, Lokendra B Chand, Surya B Thapa, Girija P Koirala and Girija P Koirala (with different coalition partners) as Prime Minister. Not particularly stable politics, I would say.
And try to see the other parallel. The Maoists launched their "people's war" in Feb 1996, just a few months after the decision, as the horse-trading of MPs had already picked up and the dissatisfaction of the population with the political parties--and by extention even the system--was on the rise. By 1999, when Nepal finally had another majority government, the Maoist "war" had reached menacing heights. And, how well that majority government (three PMs in two years) functioned is a matter for a full length book!
Astu.
KPU
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| Garibjanata |
Posted
on 01-Dec-02 12:31 PM
HAHOO GURU,
Importance sampling bhaneko ke ho? Pearson bhaneko ko ho? Tyo pearson corelation ko keta ho?
Ma bharkarai statistics padna lageko le yaha lai yo sab sodhdai chu-khali elementary knowledge matra cha. Moreover,Gyanendra lai support garne motarcycle gooda haru ta sample ko outliers hun-kharab outliers-tini haru lai tyasaile mero data bata phekna sakchu ta?
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| Biswo |
Posted
on 01-Dec-02 02:47 PM
Kumarji,
You are blaming Biswo Nath's decision for causing the subsequent failures of governments, and I think, that is a bit difficult to agree with. The horse trading, the turmoil etc. were the result of action and avarice of MPs and politicians, and the whole responsibility is theirs. Using your logic, can we blame the mother of a criminal because had she not given birth to him the crime would never have been committed?
As for Man Mohan's situation, it was different from Girija's. Girija was a leader of a party which had majority in parliament. Man Mohan, whom I admire a lot, wasn't. There were alternatives available in parliament. However, I agree with you that a victory by Man Mohan at the time would have been , probably, a good thing too. But I am not a judge (I don't know if you are), and I repose my faith on our Supreme Court and its decision.
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| Kumar Prasad Upadhyay |
Posted
on 01-Dec-02 03:45 PM
Biswo-ji:
I am not blaming Biswonath Upadhyay for anything. Like you, I have high regards for the man's ability to write good judgments.
What I am trying to do is to wonder (loudly) what would have happened if the Court in that case had not come up with a new condition for the exercise of Prime Ministerial authority to dissolve the House.
You like it or not, the result of the decision was this: as long as a new alternative government can be formed from the existing parliament, you can not dissolve the House. This despite the fact that there is not such conditional provision in the Constitution. The authority of the Prime Minister to recommend dissolution is unconditional.
The distinction between a majority and minority prime minister too was an invention of the Court, not something the Constitution provided for. The prime minister is the prime minister, majority or minority.
As a result of that decision, the Prime Minister in Nepal was deprived of the "most important disciplining rod" (this is Ganesh Raj Sharma's expression) that a Prime Minister in multi-party prime ministerial system has: the power to dissolve the House if his MPs don't behave, as well as the flexibility to threaten them with one.
Did the lack of dissolution power (severely restricted by the decision) result in or contribute to the kind of unprincipled alliances and sale and purchases of MPs? May be not. May be the MPs were waiting to be bought and sold for ministerial positions. But if one were to take a holistic view of the way things developed as a result of that decision, and of course many other happenings, it surely leads you to wonder.
And, as far as blaming the person or the institution goes, if one can appreciate somebody for that decision and for establishing a principle that even the King's action can be questioned in the court, how can it be wrong to question the judgment of the same institution or the person if that could have in some way adversely affected the functioning of the system?
Again, did they (the judges of the Supreme Court) intend to disturb the smooth functioning of the prime ministerial system by their judgment? Perhaps not. But, did the decision in some way impact upon the working of the system?
My guess is as good as yours..
Astu.
KPU
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| Kumar Prasad Upadhyay |
Posted
on 03-Dec-02 07:34 AM
The following is from today's Nepalnews.com
I completely disagree with the timing of Justice Rayamajhi. He sat on the Bench for over 10 years, knowing full well--and accepting the fact--that Kedar Nath Upadhyay was his senior, and would be appointed Chief Justice if the choise had to be made between the two of them. If he disagreed with the listing of Justices, and the seniority accorded to them at the time of their appointment, the proper time to raise the issue was 1991-92 when they were appointed.
But, the assertion by Rayamajhi still adds a new dimension to our discussion on Biswonath Upadhyay, his contribution to Nepali constitutional law, and, most importantly, his integrity.
KPU
Ex-justice Rayamajhi accuses former boss, other details
Supreme Court Justice Krishna Jung Rayamajhi Tuesday spoke out publicly for the first time after his resignation and implicitly accused former Chief Justice Bishwanath Upadhaya of nepotism.
"Former Chief Justice Upadhaya overlooked the system and promoted a junior person 11 years ago. While I was senior to Kedarnath Upadhaya in the regional court, his promotion as my senior was not justified," Rayamajhi told the Himalayan Times Tuesday.
Kedarnath Upadhaya is Bishwanath's brother. Bishwanath Upadhaya was also the chairman of the 1990 constitution drafting committee.
Kedarnath Upadhaya is to succeed Keshab Prasad Upadhaya who retires later this month after reaching superannuation age. King Gyanendra Monday accepted Rayamajhi's resignation.
A single bench of the Supreme Court issued an order Monday asking the Registrar accept a complaint filed by several lawyers saying the outgoing Chief Justice should have retired on July 2 this year after reaching superannuation age.
Registrar Shri Prasad Pandit earlier rejected the complaint. Outgoing chief of the apex court accepted the gauntlet. "I will work until the last second of my retirement. I will bow down only to the Supreme Court's order," Upadhaya said. nepalnews.com br Dec.3
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| Biswo |
Posted
on 03-Dec-02 12:03 PM
Kumarji,
I don't want to be involved in the feud of these dying judges without knowing much in detail. But there was another fact published in Kantipur somedays ago too: that Mr Rayamajhi was actually junior to Mr Upadhyay, but while being promoted in regional court, he was given seniority. Then Upadhyay was given seniority status again when being promoted to supreme court.
I think such kind of practice only tarnishes image of our supreme court. If Biswo Nath is guilty, I think he should be penalized. Rightnow, I can't say anything. Like you said, Mr Rayamajhi was there for years without protesting, hoping perhaps somehow he would be made the Supreme Court judge at the end before Mr Upadhyay.
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