Reviewing a boring book- can you?

I think reviewing books is one of the most tedious jobs in this Earth. Imagine the hardships of reading books quickly and within the short time frame, and compulsion to write review before the books become obsolete and unheard.

The book reviewers who do this job for Newspapers and Magazines will go through great difficulty, I guess, as it has to be reviewed quickly within few days of publications or when it is fresh and hogging the limelight.

There are thousands of books which get published each day. They will be published by all sorts of heard and unheard publishers and writers. In this age of media and glamour, the books published by some prominent and influential members of society from prominent and influential members of publications get more priority than ordinary ones. There will be more pressure on book reviewers to read and comment on those books more quickly than those published from ordinary ones!

Depending on the business and honesty of magazines and book reviewers, books get very good, or good or bad reviews. Sometimes, in addition to the merits and the demerits of books, other additional factors impact the reviews – most probably, the political affinity of authors and publishers, or economic advantage and dependency of publishers and reviewers etc.

The reviews and endorsements are well known in the realm of social media as well. This is an age of endorsements. We are used to this culture of endorsements from Orkut Days – getting testimonials/good reviews, of course, from our friends and writing and praising about them on their Orkut Wall. The similar facility is there in LinkedIn – Professional Social Network where you recommend someone on the basis of his/her works or on the basis of other factors which are best known to you.

Imagine the pain a reviewer goes through when he has to review the most boring or dull or books that does not make any sense – in other words the books written by Manjushree Thapa or the books of that standard. Sadly, the reviewer has to review it as it is his job and next day’s blog or Magazine demands that but who will understand his/her pains?

On the top of being boring, if the book has hundreds of pages!! I can feel their pain.

I am not sure if some reviewers scan the few pages from start, some pages from middle of the books and some from the last few pages and write review. It might be. Some may even read earlier reviews published in other magazines and foreign papers if the book is an international one and make their reviews based on multiple previously published reviews rather than on the basis of reading books. It all depends on honesty of reviewers!

In the past, I started writing reviews of books those I read. I did that for few books but I could not continue that. I hope I will start it again.

However, What I tried to do honestly was to post review only after I complete the books. It was fun but again, if you have to read low quality books, only the reader knows the pain that he goes through.

I am opening this topic today as we are approaching near to our Great Nepali Festival, the national festival of Nepal, Dashain 2069 and I saw in my Calender that the first day of Dashain, the Ghatasthapana, is on 16th October, 2012 (30 Asoj 2012). Many people have habits of reading during the long vacations and Nepalis do get a long vacation on the occasion of Dashain.

I suggest you please do read a good book and publish your review. If you like the book and publish your review, do let me know through comments in this blog.

Do read, do enjoy and do discard the low quality books! N do not forget to publish the review in your blog.

Baburam Mahatmya – the greatness of BRB

Baburam Mahatmya – the greatness of BRB

When I will write a post asking for sacking of BRB Government, People will definitely start asking about the constitutionality of the views. Being a lawyer, it is difficult sometimes, to argue on the political line alone without regard to legal aspects. I will give my views on constitutionality and legality in some other posts.

Let me today concentrate on the need of the hour, i.e. sacking of corrupt BRB Government.

Let us start with a long story in short. BRB is short name for Baburam Bhattarai, who puts prefixes of Dr. before him in honour of leftists. J Apparently, he did some kind of PhD from JNU, the hotbed of leftists in India. BRB, in short in English, (and BARABHA in short in Nepali) was never second in anything. He was so brilliant throughout the history of Nepal that he never became second. His brilliance has surpassed all limits and in terms of brilliance, only Mr. Jha (I forgot his name, Upendra, Dipendra or something who is a journalist in his own words) and Manjushree Thapa are close competitors of BRB. J

Anyway, let us not vilify others today except BRB. BRB deserves a complete post dedicated to him!

Talking about BRB’s legacy of being first, he was Nepal first in SLC exam which he appeared from Gorkha School and similar to common Nepali’s story that he was poor but bright and was bright but poor. He rose himself against all odds that a poor Nepali faces in this country.

To talk about his identity, BRB satisfied all criteria of being oppressor, suppressor and demon in Brahminical Hindu Society. He was a hill based, high caste, and privileged (as compared to other castes of course! Howsoever poor he might be at those times) person but he should be the only or rather ‘first’ person who never ‘actually’ suppressed anyone unlike Dixit, and Khanal, and Oli in this country. From all angle, BRB is no less than a God! Almighty!

In this country high caste people like Koirala, Khanal, Paudel, and Dixit have occupied high posts and have become even Prime Minister of this country merely because they have wielded their power but BRB is the only or rather ‘first’ person who has occupied his post purely based on his ‘Merit’. So, he is incomparable to other former Prime Ministers of Nepal.

 

Now, coming to his present legacy, BRB became PM in Nepal sometime ago (a year ago from August, 2012). Nepalese thought that the true savior has arrived and considered BRB to be their Messiah. BRB is the most educated PM of Nepal ever it had if we do not fail to consider his Dr. Prefix before his name. Nepalese People thought that BRB will do only the good things to the country and all Nepalis become rich within few years. Nepalese thought that all development activities in this country will be in a faster pace than the pace of killings by Maoist in those 13 years in the name of People’s War. As usual, the short sighted Nepalis, We, failed to see the blood on his hand and on the hand of entire Maoists who have come at this stage by killing thousands of poor and innocent people. The Maoists are the criminals and ordinarily should have been prosecuted for committing crimes against humanity. But, they have become the player in Nepal’s political landscape.

 

The BRB’s true Maoist legacy has started after he became Prime Minister of Nepal. He has started weakening the pillars of democracy, has obstructed the promulgation of Constitution, dissolved the Constituent Assembly cum Parliament and is in a spree to capture Nepal to turn it to a dictatorial regime. The BRB has fallen so low that it is ready to join hands with any criminal, corrupt bunch of thugs who have floated different political parties. Yesterday, Maoists told lies to people saying that they are fighting against old regime with new ideology but today, it has joined hands with the same old thugs to rob country. It shows that killing of 13000 innocent people by Maoists was just a ploy to come to regime and spread their brutality to silence people.

 

To continue its control over state’s mechanisms, BRB, instead of taking responsibility for failure to issue Constitution, is ruling this country illegally and illegimately. There is news that this corrupt and illegitimate government is going to issue 40 ordinances to continue its loot. It is time that Nepalese people should rise once again to dethrone these mugs. Recently, I read News that BRB is displaying his idiocracy by issuing directives aka ‘Nirdeshan’ to reduce the load shedding/power cut time in Nepal. Does he understand why there is power cut in Nepal? If his direction can help to reduce power cut time, it is time for BRB to visit Electricity Generation Center in Kulekhani and in other places and issue directions to Turbines and Transformers to generate more electricity! J

Let us destroy this idiot’s regime! We have nothing to lose but the shackles of corrupt regime! The regime of Dr. First BRB!

Common Nepali’s anger through various facebook images – expressing through facebook

Today Morning, When I got up and opened my facebook page, my news feed line (how do you say like twitter timeline) was full of posts and pictures and images. I could read, see and sense the people’s disappointments and angusih over the failure of Constitutional drafting process and immature death of CA! May be even the death of democracy for sometime.

There were funny posts, funny status messages but all of them representating the painful reality of this country, outlining the foolish actions of so called representatives of peoples and naturally the anguish and hatred towards these bunch of thugs – the politicians.

I am not sure what is going to happen next in Nepal? All options are being deliberated, I am sure by State agencies and ‘nikamma’ politicians. But, one thing is sure that we common man have to be more vililant while exercising our political rights and being disciplined to curb disintegrating forces which are busy in spreading hate message based on, quite a few occassion, false historica facts. I am sure that will make me more busy in my blogging and in public discourse via social networkings and forums-online.

At this post, I  have all collected all those images (copied from facebook and pasted here) that I could see in my facebook page. The images, some may be little over the top and I may not approve it in terms of my thoughts and views. Some of the images also show the Maoist’s real faces and their brutal killings in the past. This should be a lesson for common Nepali Man in the future while exercising its voting rights.However, that is how people have expressed to show their anguish and therefore, I have pasted them here without any edit (Sadly, I could not copy the caption of some of the photos) . Needless to say, I have no copyrights over these materials and it belongs to respective owners.

For more meaningful and thought provoking sensible and civilised views, keep on visiting my blog.

The farcical Saga of Kantipur

(If any errors are there, I will do additional editing tomorrow and link to old posts tomorrow.). Happy Reading

This is the final editing to this Article with Updates in recent days. The development to date is Kantipur has apologized about this incident. Kantipur claims that it conducted its investigation and found Mr. Luitel ‘guilty’ of plagiarism. In its apology, Kantipur has said that it has removed Mr. Luitel from the responsibility of ‘Hello Sukrabar’, the famous youth supplement of Kantipur Daily. This is not clear if Mr. Luitel has been assigned back end job or has been completely terminated from the service of Kantipur Publications but that matters least here. Mr. Luitel’s letter as a Reader has also been published in Kantipur where Mr. Luitel has documented his reasons of not being able to quote the sources and has also apologized to the readers.

The Link of that Kantipur News on apology can be found here: http://epaper.ekantipur.com/showtext.aspx?boxid=145032109&parentid=20026&issuedate=1022012

It’s a very good step taken by Kantipur and the rise of social networking, hopefully contributes more in the future to caution Journalism Sector.

Some related blogs and facebook page on the matter can be accessed from friend bloggers and facebookers below:

http://www.mysansar.com/archives/2012/02/id/24508

http://storify.com/nepaldiary/plagiarism-ism

http://www.nepalnews.com/archive/2012/feb/feb06/news01.php

https://www.facebook.com/photo.php?fbid=10150638052786948&set=a.433501021947.218551.688386947&type=1

The above facebook page was the first unacceptable reaction of Kantipur which was condemned by entire right thinking people including me below in my Original Post.

The Original Post is below with minor edits:

The question of standard of Nepalese Journalism has once again been exposed. You can ask me, “Was there any standard at all in the first place?”. I thought it had. It had, I thought, especially after an Editor of Kantipur, supposedly the largest selling Nepalese National Daily, promises on the public forum that he will come with some sorts of clarifications on the issues of plagiarism by Kantipur (Yes, plagiarism by Nepalese National Daily Kantipur and not merely by an individual Reporter). However, the Paper fails to respect the views of the Editor and in effect, shows the middle finger to the readers and Critics of the papers who tried to correct a self declared intellectual and spoiled brat on small values of Journalism and values of feedback of his readers.

Though I said the promise was made by the Editor on Public Forum, it was in reply to two followers in his twitter account and he can state that he made a private promise if he wants to. Since the promises were not directly made to me, he can well question my ability to question him. However, we see the editor of a national daily in many ways: a public figure and a responsible institution to the people and readers of this country as much as he would have liked our political leaders to be responsible. Otherwise, if editors are to lose the confidence of the readers and the people, the nib of their pen would not last longer and they lose all their ‘barking ability’ when situations demand.

Going to the root of the matter and to present the facts in a succinct way, let us revisit the few events that have unfolded recently and in a recent past.

The Friday Supplement of Kantipur Paper seems to be fairly popular among the Nepalese Youth and it seems to contain contemporary topics on social, political, technological, lifestyle and sports etc. matter in a light hearted matter. The Supplement named as ‘Hello Sukrabar’, being focused for the youth seems to be managed by fairly young and immature groups with questionable education and journalistic credentials. However, since the paper was directed at large to the youngsters, it could not have been under intense journalistic priority of editors, nor even the readers complained much on the content and language where everybody acted to be in the modern phase of ‘high and bye’ generation.

However, occasional discomfort of readers with the tone, language and content of the ‘Hello Sukrabar’ was heard here and there in the past. At this stage, if the Editor of the paper had applied his mind, he would have definitely checked the multiplying arrogance of sharp but brash group who worked for Hello Sukrabar. But, rather than putting the system in the place, even some of the relatively senior journalists came to the rescue and defense of that rash gang at Kantipur and perpetuated a persecution of readers’ views not on any rational argument but trying to show all the readers who are critical of the writings as dumb. This has definitely tarnished the image of Kantipur among the young readers who thought that Kantipur represents a temple of truth and fair views. Otherwise, if it indulges in such a corrupt practices, whole edifice and ethics of Nepalese Journalism will crumble soon.

The problem in Kantipur is not rash mind making mistake as nothing better can be accepted expected from them but when the seniors, instead of reprimanding the juniors, spring to their defense with a confrontational question to the readers like “what moral right you have to tell us when you have not seen the printing press”. This was the best Kantipur Joke ever we could have heard in the year 2011 and we thought it was over.

But, now, we realise Kantipur had saved the better one for the year 2012.

The issue was raised about the originality of Articles claimed to be written by Mr. Ashish Luitel, a self-declared intellectual by his conduct in public forum. The number of Articles, till date, that are under the lens of originality are more than half a dozen and the so called writer has been questioned whether he copied them from New York Times. The Articles are related to the technology Sector.

The young journalist, if he can be called a one, who is most probably still flying high due to his ambidextrous ability of copying from other Papers and translating them in Nepalese Language, has admitted in his Twitter Account that he has made a mistake but ‘unintentionally’. Now, it is time for aspiring journalists to know if plagiarizing more than 6 or 7 Articles can be called ‘unintentional’ what in earth would be intentional then?

Of course, the young journalist has not stated what mistakes he has done but has shown a turn around by saying that he appreciates the thoughts of valuable readers. It is very fresh in our mind that it’s not long ago that he treated readers not even with a respect that scum would generally entitled to. How come so much turn around? How did he take such turn around now? It is simply because he has been caught red handed and people have shown with comparison that almost 7 Articles Mr. Ashish Luitel wrote were actually plagiarized from New York Times Articles without any credit to original source. When the young celebrity Journalist was getting all accolades from the plagiarized articles, editor did not waste his time pondering about the unexceptional talent of a kid. oOr in my opinion, Mr. Editor was fully aware of the source of the articles but considered as if he was doing some sort of favor to Nepalese People by letting them to read in Nepali which otherwise illiterate Nepalese would have never been able to read from New York Times.

The murky nature of this matter raises several fundamental issues like what is the role of a paper in first place? Should not it promote new talents focusing on originality? And What should be the roles of editors? Are not they supposed to be the person who are responsible for choosing and deciding what will be printed in a Paper? Or the quality of Nepalese journalism is so low and editors are simply incapable, incompetent and are there only for namesake?

Well, giving a benefit of doubt to whole journalism filed, should we refine our question and ask Is Mr. Sudheer Sharma, Editor of Kantipur a simply incompetent man in helm of affairs in Kantipur who could not even detect 7 plagiarized articles being published in the paper? Even more incompetent to issue a genuine apology when the matter of plagiarism was brought to his attention? Or, is Nepalese journalism is stooping so low and making way for king of plagiarism to give a stardom in the short span of time?

The readers’ concerns should have been handled properly by the paper and after the Editor promised to clarify. However, the childish approach of Journalism was brought in focus when Kantipur issued a one line in its February 3, 2012 Hello Sukrabar that the source of Article published under ‘Wiki Tech’ should have been New York Times etc. and was omitted because of technical reason. This smacks of dishonesty.  in public and despises the readers. The one line which have been hidden somewhere in the bottom of one of those pages in very tiny letters fails to tell us:

A. How many Articles were published where Credit of New York Times was omitted? (We, the readers have found till now 7 Articles. But, the King of Plagiarism can accurately tell to his editor how many such articles were plagiarized.)

B. With what heading and on which dates such articles were published? Or how come the source of such articles were missing over the period of time?

C. Under Wiki Tech, only one authors plagiarized the articles and published them or Do Kantipur have band of plagiarizers? to write Articles under different ‘talented’ journalists?

D, Especially, how they realized that the source is missing? And more importantly, what does source New York Times etc. means? Whom does the copyright of these Articles belong? Is it under Copyright transfer agreement with New York Times such articles were translated? These questions assume significance here as on readers’ views, the articles were plainly copied from a Single paper and translated to Nepali thereby violating the copyright of original article. Or Did Editor tried to say when he mentions ‘including New York Times’ that there are other articles which have been copied may be from Guardian, Times etc. etc. in the same fashion as were done with article from NYT?

These all above questions remain unanswered and we may never get answer to these issues so long as arrogant bunch rule the affairs of Kantipur. There is a need of regime change in Kantipur as well.

Let me think for a moment Mr. Editor was in a good faith when he promised that he will clarify the issue. May be he came under intense pressure from management, and junior and immature employees in the organization and surrendered before their pressure. Whatever he did under whatever circumstances, when the prig like Mr. Ashish Luitel remain as a face of Kantipur, and any street urchin with questionable education and qualification keep on becoming journalist, there will not be a day that far when another farce like these will not be repeated.

The pusillanimity that has been exhibited by Editor Mr. Sudheer Sharma is another wasted opportunity for mainstream media to show a brave face among the public. However, this farcical saga called Kantipur and its established practice of ‘Quick Guide to be at the top with the help of…………(U know what)’ hopefully will not last long and we can only hope we need not have to voice again on ‘unmeritorious topics.’ which have inglorious conclusion!

Condemn the Plagiarism!!

Reforms Necessary in Nepalese VAT Law

Reforms Necessary in Nepalese VAT Law

Value Added Tax (‘VAT’) was first introduced in France in 1954 and today, it has been implemented worldwide with tremendous success. In Nepal, after intense debate and deliberation, it was implemented first in 1997. However, it is felt that its positive impacts are yet to be fully realised even after almost 14 years of implementation. The main problem that the government is facing each year is lack of compliance by all taxpayers due to various reasons.  In this article, a brief attempt has been made to analyse the radical changes those are required in Nepalese VAT laws with the changes on the ways the business and trades are carried in modern times.

First, to start with the positive impact that VAT laws brings is taxation at every stage of supply chain and credit to taxes paid on inputs and on input services. Therefore, the foremost good factor that VAT laws bring is the removal of cascading effects. The term cascading effects refer to ‘tax on tax’. Therefore, VAT shuts door for multiple taxation, thereby removing cascading effects in supply chain as every buyer and seller will be entitled to avail input tax credits and adjust its credit with its output tax liability. In principle, we have understood VAT laws to be so.

However, in practice, not necessarily the implementation of VAT laws always removes cascading effects. Therefore, we need to have an effective and good VAT law that alone brings the intended consequences to the tax payers. In practice, what has been observed is the concept called ‘exemption of taxes’ on ‘exempted goods and services’ which act as a barrier to smooth supply chain. Mainly, the essential goods and services, for example rice, pulses, flour, fresh fish, kerosene, salt, health services, contraceptives, medicine etc. are exempted from payment of VAT on a simple rationale that these commodities and services are essential for human survival and imposition of taxes will increase the price of these products thereby making it inaccessible and expensive for poor citizen of our poor country. Morally and ethically too, this sounds a great welfare measure taken by the state. But, in practice and in a world which is full of profit making enterprises, this rationale does not work so greatly as think it to be. We can understand the tax exemption behind the agricultural products like wheat, paddy, flour etc. and agricultural tools, shovels, etc. But, Nepalese VAT law even exempts taxes on air travel, gold and silver, mobile phone set etc. which is beyond anyone’s understanding and these types of exemptions have only accentuated the obstacles to smooth supply chain.

While the output goods and services are exempted from the payment of taxes for those goods mentioned in Schedule – I of VAT on its output side, it may not be so in case of input goods/services. Therefore, a vendor who purchases raw materials and services, and manufactures an exempted product, say medicine, cannot utilise its input taxes that it has paid on inputs. Its input tax credit will go to become a sunk cost. In this situation, the only options available to the manufacturer/seller would be to add up the cost of taxes paid in inputs in its final outputs and pass that cost to the customer if manufacturer/seller has to keep its business running. Therefore, while declaring certain goods/services as exempted goods/services, the government is not doing any yeoman’s service to its citizens except those few essential goods.

Keeping goods and services exempt will also have another round of disadvantages – that is to the vendor which buys these exempted products and services, utilizes these input goods and services for manufacture and sells its outputs which are taxable in nature. In this case, this vendor will not have any input tax credit and has to collect the tax amount from the public/customers, which will only increases the price of these products.

Internationally, it has always been a moral dilemma among legislators/governments to frame effective VAT laws containing provisions that leave entire supply chain unaffected. Since revenue and fiscal laws stand on the different footing than other laws, they are enacted as per the economic and fiscal needs of the nation unlike other general laws which may be enacted to curb one or the other evils. Government will also make use of tax laws to control the flow of goods and services as per demand of the country on the prevailing economic condition. Therefore, though it may be desirable not to have ‘exempted products/services’ at all, but practicality, does not allow this to happen. This is fully understandable. Having said so and being fully aware of the government’s constraints, the challenges posed by exempted goods and services in supply chain is not that difficult to address if genuine efforts are made and willingness are shown by the government.

Arguably, the easy and effective ways to curb the threat posed by exempt products/services are to make them taxable by declaring the rate of tax at Zero Percentage for these products/services. This is internationally known as ‘Zero – rated goods/services’. Our Nepalese VAT law has already enumerated this concept but only few categories of items and transactions find place in Zero-rated list.

Currently, the exports are Zero – rated which is in consonance with international tax principle that only the products/services be exported and not the taxes so that our products become competitive in international markets. Other Zero rated transactions in the list are the supplies made to industries located at Special Economic Zone (SEZ), battery used in solar power generation and manufactured by domestic manufacturers etc. The need of the hour is to reduce the number of items/services and transactions currently mentioned at Annexure – I of VAT and move them to Annexure – II so that exempt products would be converted to taxable one, i.e. to convert them to ‘Zero-rated’ goods/services.

By introducing the concept of ‘Zero – rated’ for maximum number of goods and services, the goods and services would get taxable life – making inputs utilised for producing these zero rated goods creditable. Though there may not still be output tax liability, the vendor would be able to use the credits that it has accumulated while producing/distributing ‘Zero – Rated Goods’. Therefore, the expansion of this concept in VAT laws will make a good impact on the business community and ultimately, the impact will be felt by the consumers. A small effort from government side can make a big difference!

Another possible remedy that can be injected to streamline the credit mechanism would be rather than making these products exempt, a small VAT should be imposed on them. In Nepal, currently, there are only two VAT rates – 0% and 13%. In this context, a middle path can be found making majority of currently exempt products taxable, say at the rate of 1%-3%. Though imposition of tax may make these products little more expensive and may not go well with ‘people – centric!’ political class but we must understand that imposition of tax at small rate will not be so burdensome on us- the public and on the other, and helps not to snap the supply chain.

From the point of collection of revenue too, mostly these products are relatively inelastic and therefore, will not have any impacts on their demand. There would be more positives to the economy in the long run with these measures which may not at first glance, look so populist. This second prescription is recommended only when government is unable to declare exempt goods as ‘Zero – rated’ having constraints due to other economic factors. Whatever government does, however, should be for giving impetus to economic development and should propel our economy to forward direction.

© Rajib Dahal. The Author is an Advocate and can be reached by posting your comments in this blog.

Nepal: (Un)Necessary – ‘doctrine of necessity’

My this article below is published in Telegraph Nepal today. You can read it from here:

http://www.telegraphnepal.com/views/2011-09-21/nepal:-unnecessary-doctrine-of-necessity.html

THE term ‘doctrine of necessity’ has found an unwarranted place in Nepalese legal development despite not having any acceptable legacy behind it. The doctrine itself has a very dubious purpose to serve and the outcome of application of this doctrine would be debated for a long time. The doctrine, in its simple understanding, is a validating tool for those illegal, extra-legal, and invalid administrative state actions and these actions get validity from one’s understanding of necessity, mostly based on his/their momentary understanding of what was the necessity of that time. Therefore, there would be divergence in views even among the legal luminaries. One’s view of what was necessary at a time can always be contested by other set of legal luminaries.

Therefore, in this article, my effort has been to make a jurisprudential fathoming of legacy that ‘doctrine of necessity’ inherits and to examine whether we have acted judiciously to patronize this doctrine in Nepalese legal development.

The doctrine helps to bestow legality on any extra-legal actions if such actions are found to be to restore legal orders and if, at the give point of time, the state machineries would have no alternative viable recourse available. Therefore, most often, the courts have given breath to this principle when constitutional validities of states are to be upheld even when such state actions sans constitutionally permitted limits.

The credit for giving birth to this principle goes initially to the medieval jurist Henry de Bracton (c.1210-1268), and later, justification of the doctrine has been advanced by another great authority, William Blackstone. The legal maxim that has been credited to Bracton goes like this: “……………that which is otherwise not lawful is made lawful by necessity…………………”

The constitutional lawyers should be troubled in Nepal as the doctrine seems to be gaining unshakable ground to justify diverse extra-legal state actions. In a judgement delivered in April 2010, the Supreme Court of Nepal, in a matter relating to parliamentary hearings for appointment in constitutional bodies, had opined that all the articles of Interim Constitution of Nepal can be amended as per the doctrine of necessity except those relating to democratic republic, human rights and an independent judiciary. The reasoning though may sound to be a political victory for the supremacy of parliament; it comes with the imminent danger of having serious implications in the future.

Once again, the discourse on this doctrine has gained momentum since the Hon’ble Supreme Court of Nepal has invoked this principle in another verdict while upholding the extension of tenure of Constituent Assembly (CA). The court cited and applied the doctrine to uphold the Ninth Amendment of the Interim Constitution of Nepal. The court verdict has, therefore, upheld the extension of the tenure of the CA by three more months on May 28, 2011. The Supreme Court reasoned that the objective of CA was to draft and to promulgate a new constitution and to conclude the peace process and that has not been achieved yet. Therefore, the doctrine has to be applied to uphold the actions taken by CA when the twin tasks are yet to be performed, reasoned the Apex Court.

A brief overview to world history shows that the Chief Justice Mohammad Munir of Pakistan had invoked the doctrine to validate the actions of Governor General Ghulam Mohammad who had dismissed the Constituent Assembly and appointed a Council of Ministers in 1954. While putting breath in the doctrine in modern times, Justice Munir in Pakistan in 1954 relied on Bracton’s maxim ‘that which is otherwise not lawful is made lawful by necessity’, and on the Roman law maxim urged by Jennings, ‘the well-being of the people is the supreme law’.

In countries like Nigeria and in Fiji, this doctrine were invoked and applied whenever the state had acted against the constitution. There were striking similarities in all these states at the time when the doctrine was invoked – dysfunctional parliamentary democracy. Therefore, this will inevitably leads us to the question – whether doctrine of necessity is a necessary doctrine when there is a breakdown of parliamentary democracy.

In the instant case, another immediate question that needs to ponder is how long the doctrine of necessity can save the functioning of CA or any such extra – legal actions of state actors in the future. Dealing with the issue vis – a – vis functioning of CA, what if, the CA fails to perform its functioning of promulgation of new constitution but based on this doctrine; it keeps on extending its term for another dozen times. By adopting this doctrine by highest judiciary of the country, we have placed ourselves in a very precarious situation where CA may not function as per the mandate given by people and the constitution but whatever it does going outside the Constitution would be held constitutional. Then, what incentives CA members would have even to be serious for constitution making when their terms and tenures are guaranteed by ‘doctrine of necessity’. There would be some argument to say that the doctrine of necessity alone cannot extend the tenure of CA for more than six months. However, the so called sovereign CA has all the incentives to amend the provisions in Interim Constitution and remove such barriers where if the mighty CA wishes, it can extend its term by innumerable times.

At this juncture, the first and foremost issue among the legal experts should be the implications of borrowing such principle into Nepalese Legal System which can have serious ramifications on fundamental points concerning the rule of law and constitution, the retrospective exercise of legislative powers by the law makers, and the yardstick and benchmark to adjudge the legality of actions in the future.

What we have to understand is the constitution is not only a legal document but also a political, social, economical testament and vision of a nation. Constitution embodies the hope and aspiration of the people of many generations and expected to be so in the time period yet to come. Therefore, CA, which has received the mandate from the people, will be exercising its power in various capacities and its functioning are not merely discharge of legal and constitutional functions. In this scenario, in my humble opinion, the court should have rescued itself to adjudge on the matter of extension of CA tenure, as the issue will have different dimensions including political and courts are not to interfere on such political powers. It is not only the implications of the outcome is political but the role of CA is itself is different from parliament under democratic set up. As the ‘doctrine of necessity’ comes with enormous peril of being misused and susceptible to tampering in future, it would be difficult for courts to stay away from the controversy inasmuch as the present verdict could be taken as stamping on the power of CA to extend its term, sometimes based on its own sweet will and fancy.

However, if we have to take a positive from the verdicts rendered, a silver lining can be that the court has upheld the supremacy of the parliament/CA and this supremacy could have been upheld even without resorting to ‘doctrine of necessity’. When there is enormous pessimism on people for not having stable functioning parliamentary democracy with able executive, it can only be hoped that the verdict, though may be founded on uncanny reasoning would be taken as a positive steps towards stable supreme parliament. If people are able to take this positive, another positive hope that comes to our mind naturally would be, hopefully, we will soon see our New Constitution.

© Rajib Dahal. The Author is an Advocate. He can be reached at rajib.dahal@gmail.com

To my dear Kali

Kali, U remember?

I met you in Chennai way back in 2005

U remember the night – the last night of that year

what only didn’t we do?

we laughed, we joked, we thought

The world is small and can not keep us apart

we were simply naive and immature

You thought what I thought and

we both were wrong!

 

Hey baby, I am just joking

we were right

we are far but always together in our feelings

we are in different time zone but still

everything clicks together between us

U miss me there, and I remember you here

You think of sending sms and I start typing one here

You finish typing sms and then, you receive mine

you smile there and I here, after few seconds

Isn’t that lovely? Isn’t that great?

Don’t you think we are madly in love? You think, don’t you?

 

But, you also think and so do I,

you think what i think and

we think

how long this can go?

Don’t we need to settle?

Exactly!

The same what I was thinking

We will baby one day!

You ask me one day?

I say soon, this year

from a far distance

you look into my eyes and you say, “I trust you”

I imagine us being together and

and I softly say, “I love you honey” “I love you so much”

N my roommate kicks on my butt

N I hear “oiee gadha sapna pani k k dekhna thalis?” (Oh! you dumb ass! what kinds of dreams you started seeing these days?”

There is a pain on my ass

but, I remian calm and say to myself

If only he knew my kali!