MOST WANTED ROBBER ARRESTED Kathmandu, 14 Feb.: Most wanted robber Pawan Kumar Gurung was arrested Wednesday by a special team in the capital. Police said Gurung was absconding after two daring robberies of a jewelry shotinthe capital. Nnnn PRESIDENT LIKELY TO APPROVE TWO ORDINANCES THURSDAY Kathmandu, 14 Feb.: The President is likely to approve Ordinance on Organised Crime tomorrow [Thursday], The Himalayan Times reports.. The President is serious about saving the country from being black-listed by the Financial Action Task Force and fulfilling the country’s long-due commitment to the international community to fight against the flow of dirty money, a source at the Office of the President told THT. Finance Minister Barshaman Pun, after meeting the President today, said that the Head of State had promised to do the needful so that no disgrace is brought upon the country. The country had made commitment to FATF that it would approve the bills on three key UN conventions through Parliament by December 2010, but Mutual Legal Assistance Bill, Extradition Bill and Bill on Organised Crime remained pending. Parliament was dissolved along with the Constituent Assembly on May 27, forcing the government to recommend ordinances. The President approved two ordinances — on Mutual Legal Assistance Bill and Extradition Bill — in July last year, but the Ordinance on Organised Crime was still pending. The country must get the Bill Against Organised Crime approved before the FATF plenary and working group meetings scheduled for February 18-22 in Paris. The meetings are to take a decision whether Nepal should be listed as a high-risk zone or not. Nepal must approve the Ordinance on Organised Crime by February 16 to save the country from getting black-listed, according to a source at the central bank. Nepal getting listed as a high-risk zone will mean the country will not be able to do transactions with international banks and financial institutions. Likewise the development partners will also hesitate extend their assistance. FATF — the global anti-money laundering watchdog — during its regional face-to-face meeting of Asia-Pacific Group in Hong Kong on January 17 had expressed it serious concern about Nepal’s delay in approving the Ordinance on Organised Crime. The intra-party rift in the ruling UCPN-Maoist party had delayed approval of the Bill against Organised Crime earlier. Some members from the government were also against the Ordinance on Organised Crime for they have been blamed for sheltering criminals who are under investigation by Central Investigation Bureau and the Department of Anti-Money Laundering Investigation. Such criminals are listed as politically exposed persons who are under FATF scanner. Nnnn BOARD TO FAST TRACK HYDRO NEGOTIATIONS Kathmandu, 14 Feb.: Investment Board will fast track formal negotiations on Project Development Agreement (PDA) with three mega hydropower developers covering four projects, The Himalayan Times reports.. After a meeting of the directors of Investment Board, chaired by caretaker prime minister Dr Baburam Bhattarai, today, in Kathmandu, the board has decided to fast track formal negotiations on each of the four hydropower projects — SN Power’s Tamakoshi 3 (650MW), SJVN’s Arun 3 (900MW), and GMR’s Upper Karnali (900MW) and Upper Marsyangdi 2 (600MW). The companies had reviewed a draft of the PDA template and commented on it in December. “The comments have been taken into account by the Investment Board and it will engage in finalising the project specific PDAs,” said Bhattarai, in the meeting. “The number one economic priority of the government has always been to harness hydro resources for economic transformation,” he said, adding the country now will move forward with negotiations. “We will conclude deals that ensure maximum benefits in terms of government revenue, local benefits for communities, maximising hydro spin offs for domestic industries and services sector, jobs for Nepalis, and solve loadshedding problem,” he added. The board will use PDA template as the basis for negotiations and tailor it to suit each of the four projects. With an installed capacity of a total 3,050MW, four projects aimed at Indian market will first satisfy domestic power needs. Of the four projects, Arun 3 has committed to provide Nepal with 21.9 per cent free electricity while Upper Karnali has committed 12 per cent free electricity and 27 per cent free equity, in addition to paying royalties and taxes. “PDA template reflects several changes following a detailed feedback from developers and the international lender community,” informed chief executive of the board Radhesh Pant. “In addition to a team of world class commercial, technical and legal experts, the board will be working very closely with the Ministry of Energy and Nepal Electricity Authority to bring this PDA to fruition,” he said, adding that with the board’s endorsement of the negotiating mandate, PDA Negotiation Team will begin project specific negotiations with the developers immediately under the guidance of a PDA Coordination Committee chaired by the vice chair of National Planning Commission Deependra Bahadur Kshetry. PDA Negotiation Team will be advised by relevant national and international legal, technical and commercial experts, said Pant, adding that an international team of experts has been appointed to provide input to the Investment Board in its assessment. “Negotiations on large-scale projects like these generally take several months to close.” Pant informed that the board has been conducting thorough financial analysis to assess economic benefits that would accrue to Nepal from the investment necessary to implement these hydro projects, each of which costs more than $1 billion (around Rs 85 billion). “We have just appointed a leading engineering firm Lahmeyer International with assistance from World Bank through an open competitive process to review the four projects,” he informed. “Their findings as well as our financial analyses will help inform Nepal’s negotiating position.” “The board will sign deals that are balanced with terms that protect and benefit all parties,” Pant said. Technical analysis will also ensure that these power projects are safe and sustainable. The board also made decisions on other large infrastructure projects and gave the Office of the Investment Board the approval to move ahead with a Detailed Project Report of Kathmandu Valley Metro Rail project, mandated the Office of the Investment Board to form a six-member verification team to move forward with Kathmandu Valley Solid Waste Management project, and decided to conduct a feasibility study for a chemical fertiliser plant. nnnn INTERVIEW CHIEF JUSTICE CAN’T HOLD EXECCCUTIVE POST IN A DEMOCRACY The proposal for election of a sitting Chief Justice as the new prime minister has raised a storm of controversy. Why a sitting Chief Justice? Are the Maoists trying to dismantle the last remaining organ which could check government excesses? If so, what could be its impact on national politics and the judiciary? Republica’s Biswas Baral and Gani Ansari talked to senior lawyer and constitutional law expert Bhimarjun Acharya to understand the motive and implications of the new Maoist proposal. How do you evaluate the proposal of UCPN (Maoist) to make the sitting Chief Justice the new prime minister? I believe this is a completely flawed proposal. There are four main reasons I say this. One, Article 106 of the interim constitution forbids the deputation of the sitting Chief Justice and other justices of the Supreme Court to any other work besides those related to the judiciary. Clause 2 of the same Article prevents retired Supreme Court justices from being deputed anywhere except the National Human Rights Commission. The basic philosophy is that the judges do not carry out their responsibility expecting future rewards. Two, Nepal’s is a party-based system. In such a system, political representatives should run the state machinery. If today the political parties shift that power to some other place, there is no guarantee that the power will return to the political parties. Three, there is the question of check and balance and separation of powers. All established democracies in the world follow this principle. In order to safeguard liberty and uphold the constitution and rule of law, the three organs of the state must have different structures, functions and powers. If all the powers are concentrated in one person, the whole system becomes corrupt. If the same person is made the head of the judiciary as well as the executive, that would be a perversion of democracy. Four, the proposal is also not pragmatic. PHOTO: BHASWOR OJHA At a time when even established political parties are struggling to manage the fluid political situation, it is unrealistic to hope that a non-political person might do the job. Ultimately, if the proposal of sitting Chief Justice as prime minister passes, there will be no election, the party system will collapse and the country’s judiciary will be in shambles. Chief Justice Khil Raj Regmi has been silent on the whole affair. How have you interpreted his silence? His silence is unfortunate. At a time there has been so much controversy around him, he should have been able to say he is not interested in the Maoist proposal as it is against the norms and values of independent judiciary. His silence suggests a few things. First, it raises the suspicion that the current proposal was brought with his consent. It also brings into question the past decisions of the Supreme Court, like its verdict against extension of the Constituent Assembly. Second, all those occupying responsible positions, be it the President, the prime minister or the chief justice, should understand that no one is above the law. There is a trend in Nepal to believe that once you get to certain influential positions, you have the liberty to subvert the law. They should rid themselves of this illusion. The Chief Justice derives his power as the head of the Supreme Court and the judiciary from the constitution. Now just because some political party has proposed him as the prime minister, he cannot go against the constitution. I interpret the Chief Justice’s silence as a slap on the face of rule of law, constitutionalism and Nepal’s rich judicial legacy. The Maoists have been accused of trying to dismantle all organs that can hold the government accountable. Do you believe the proposal of sitting Chief Justice as prime minister is a part of that plan? Yes, there are many reasons to think so. We can take the documents and utterances of the party which brought this proposal as our points of reference. In many of their documents, the Maoists have alleged Nepali judiciary of being status quoist, which is reluctant to embrace change. They have alleged Nepali judges of being regressive. Their leaders also repeatedly talk about the biased judiciary. Now the Maoists are trying to paint the head of the same judiciary as a progressive who is capable of extricating the country from the current quagmire. No sensible person can believe that this proposal has come in good faith. It is unfortunate that the judiciary, the Chief Justice and other political parties have not been able to understand this. This proposal has not come with the intention of holding an election but to destroy any remaining integrity of the judiciary. What are the implications of appointing a sitting Chief Justice as the executive head? First, if the sitting Chief Justice is made the prime minister, he at once becomes the head of both the executive as well as the judiciary. This is an anti-thesis of democracy, rule of law and separation of powers. The message it will send is that Nepal is no more a democratic country. Second, the integrity of the judiciary will be compromised. Third, it will send a message that Nepali political parties have been a complete failure and are incapable of running the country. What if the Chief Justice is made the prime minister after his resignation from the judiciary? The message will be the same more or less. The capability of the political parties and the integrity of the judiciary will still be questioned, and it will still go against Article 106 of the interim constitution which forbids any sitting or retired Supreme Court justices from holding any government office. To say that the constitutional hurdles will be cleared if the Chief Justice takes up the PM’s post after resigning from his judicial duties is a lie. But aren’t there international precedents of the Chief Justice leading an election government, as in Bangladesh? In no established democracy has a sitting or retired Chief Justice held the chief executive post. The trend exists only in some transitional and authoritarian democracies. Yes, there was a provision in Bangladesh whereby the sitting judge as the head of an advisory council could hold election. But this constitutional provision has been removed since it went against the principle of check and balance and separation of powers. There is still such a provision in Bhutan. But how can the authoritarian Bhutan be a role model for Nepal? In Egypt, a similar arrangement has been highly controversial. Again, no established democracy has such an irresponsible system. What is the harm in electing the Chief Justice as new prime minister if it helps provide a breakthrough in the long-stalled political and constitutional process? Let no one be in any doubt. The current Maoist proposal does not come with any intent of ending the protracted political and constitutional crisis. There are hundreds of options for new prime minister. Why are the Maoists insisting on a sitting justice? If the Baburam Bhattarai government can take the opposition into confidence, he can hold the election himself. Or the Bhattarai government can make way for a government led by one of the opposition parties. Still another option is fresh polls under the leadership of any of the 33 parties represented in the erstwhile Constituent Assembly. If all these options fail, there are countless Nepalis who are competent to become the prime minister. The reason the Maoists have been insisting on the chief justice despite the availability of all these options is that they want the whole system to collapse. If the current Chief Justice reigns, how will the void at the top of the judiciary be filled? The Chief Justice is the head of the Judicial Council which makes recommendations on new Supreme Court judges, including the Chief Justice. In the absence of the Chief Justice, the council will not be able to sit. Thus if the Chief Justice is appointed the prime minister after he resigns from the judiciary, it could invite an even bigger crisis. Constitutionally, what is the best way out of the current crisis? The current crisis is centered on government formation, new election and filling of vacant constitutional bodies. To some extent this is a constitutional crisis, but to a larger extent it is a political crisis. The crisis of government can be ended by stepping on Article 38 (1) of the interim constitution, which provisions for consensus government. The government can be formed in one of the four ways I discussed above. It is said that there are constitutional barriers to election, but that is a lie. The election can be held without any amendment to the interim constitution. All that we need are new electoral laws, which can be brought through an ordinance. But there is a constitutional hurdle to appointments in constitutional bodies, which call for parliamentary hearing. The President can clear this hurdle by using his prerogative to ‘remove difficulties’. Nnnn