RE: Amendment of constitution by Ordinance

July 31, 2012

To: Prof Dr Mohan Lohani
Cc: Dr Surya Dhungel; Rajendra Dahal; Hari Sharma; Lalit Basnet


Dear Prof Lohani

There are two oft repeated sayings that are relevant in the present context. First one is “there are many a slip between cup and the lip.” And second one is “seeing is believing.” I will be assured only after president comes out with a firm statement to the effect that a care taker government lead by BR Bhattarai lacks executive authority to promulgate ordinances, even essential ones. Then it is overdue on his part to call for the formation of consensus government in accordance with Article 38(1) of the Constitution. As the care taker PM never stood second, he seems to be achieving the first rank in not being able to read the writing on the wall, too.
With best regards,

Sincerely,



Ratna Sansar Shrestha, FCA
Senior Water Resource Analyst
http://www.ratnasansar.com/


From: Mohan Lohani [mailto:m_p_lohani@yahoo.com]
Sent: Monday, July 30, 2012 17:27
To: Ratna Sansar Shrestha
Cc: dhungel_sps@yahoo.com; dahal61@gmail.com; juhang@gmail.com; lalit_gulmi@yahoo.com
Subject: Re: Amendment of constitution by Ordinance



Dear Ratna Sansarji,

I have also come across the same news and if this is so, the President will not take things lying low.As President whose responsibility is to safeguard the Constitution and preserve the independence and national integrity, he is above partisan politics and he is not supposed to ditto the decisions such as ordinances forwarded by the cabinet for his approval.I think things are moving in the right direction.

All the best and regds,

MP Lohani

President's refusal to promulgate ordinance

Dr Surya Dhungel


Cc: 'Lalit Basnet'; ': Mohan Lohani'; 'Rajendra Dahal'; 'Hari Sharma'


Surya jee

I have come across news that the president is not going to promulgate the ordinances that I have mentioned below. If this is true, then the whole country is obliged to him for refusing to become accomplice of the care taker government in the state capture. Please do convey the appreciation of our countrymen to him.

The record would have been unblemished if he would have refused to promulgate the ordinance related to “pension and perquisite” to former high officials.

With best regards,


Sincerely,

Ratna Sansar Shrestha, FCA
Senior Water Resource Analyst
http://www.ratnasansar.com/

RE: care taker government planning to promulgate a dozen Ordinances

July 25, 2012

To: Dr Surya Dhungel
Cc: 'Lalit Basnet'; ': Mohan Lohani'; 'Rajendra Dahal'; 'Hari Sharma'

Surya jee

We appreciate that our notes have been “taken seriously”. But country demands action not just taking things seriously. It should not be comparable with the commitments made by care taker PM, which weren’t ever implemented.

It is indeed strange that the president hasn’t even called for consensus government under article 38(1). I hope that president isn’t waiting for the resignation of care taker PM. I take that the president is aware that PM becomes care taker upon tendering of resignation or ceasing to be a member of CA pursuant to article 38(7) and a PM that has become care taker on account of ceasing to be a member (and already declared care taker PM by the president himself) of CA doesn’t need to resign.

It has already been about 2 months (it will be exactly 2 months in another 4 days!) and president is yet to perform his duty under article 38(1). It might go down in history as dereliction of duty (I am not sure whether it amounts to अकर्मण्यता or being कर्तब्यच्यूत) on the part of first president of Nepal. However, as a concerned citizen of this country I am not too concerned about how will the president will be remembered by the posterity (he should be concerned about it) but I am concerned about the double transition that is ever deepening and care taker PM’s intentions to perpetuate the “state capture” on one pretext (consensus about outstanding issues of constitutions) or other (other parties should agree to hold CA election).

Hope president will be rescue our motherland from deepening double transition urgently.



With best regards,



Sincerely,


Ratna Sansar Shrestha, FCA
Senior Water Resource Analyst
http://www.ratnasansar.com/



From: SPS dhungel [mailto:dhungel_sps@yahoo.com]
Sent: Tuesday, July 24, 2012 11:17
To: Ratna Sansar Shrestha
Cc: Lalit Basnet; ': Mohan Lohani'; 'Rajendra Dahal'; 'Hari Sharma'
Subject: Re: care taker government planning to promulgate a dozen Ordinances



Dear Ratna ji,

Dr. Mohan Lohani's and your notes have been shared with colleagues in the office and taken them seriously.

Thanks for the views and genuine concerns shared with the concerned.



Rgds,



Surya .

__________________

Surya Dhungel, LLM, PhD
Attorney at Law,
Nepal Consulting Lawyers Inc
New Plaza, Ramshah Path, Kathmandu

Tel: 4445210/4410624 (O)
Tel: 977 1 4413 942 (R)
Website: http://nepallaw.com.np/



--- On Sun, 22/7/12, Ratna Sansar Shrestha wrote:

Amendment of constitution by Ordinance

July 28, 2012

To: Dr Surya Dhungel

Cc: 'Lalit Basnet'; ': Mohan Lohani'; 'Rajendra Dahal'; 'Hari Sharma'
Surya jee

I have just come across news in the media that care taker government has passed an Ordinance to allow holding of election of CA more than once. In Article 63 there is provision for election of CA only once. Therefore, this ordinance, if promulgated, will in effect amend the constitution. It is wrong from many perspectives.
Ordinance is ad hoc measure and it is an instrument to tide over the vacuum created by the absence of legislature which is expected to come into existence within 6 months. But only a government with executive power can promulgate ordinances. However, president has been instrumental in breaching this constitutional principle/convention as he has become an accomplice (मतियार) by promulgating so many ordinances.

But ordinance cannot amend constitution at any time, in any situation and circumstance. However, if president is to assent to promulgate an ordinance that amends the constitution, it could be deemed high treason on the part of the president himself; unpardonable one. I trust this time the president will not become instrumental in amending constitution through ordinance.


With best regards,
Sincerely,


Ratna Sansar Shrestha, FCA
Senior Water Resource Analyst
http://www.ratnasansar.com/

Care taker government planning to promulgate a dozen Ordinances

July 22, 2012

Dr Surya Dhungel


Surya jee

Today’s edition of Rajdhani has reported that the care taker government is planning to promulgate a dozen Ordinances; none of them related to achieving breakthrough from deadlock situation obtaining in the country at the moment.

As this government lacks executive authority, it doesn’t even have authority to promulgate “laws” essential for achieving breakthrough from deadlock situation obtaining in the country now. The ordinances now on the anvil are “non essential” ones from the perspective of the deepening double transition that Nepal is in.

Therefore, in no circumstance the president should become accomplice in perpetuating state capture by current care taker government. It is now clear that it was a mistake to allow this government to promulgate so many ordinances in past 6 weeks; on one pretext (blacklisting of Nepal to lack budget) or other (remuneration to former executives of the state). Now this government has gained upper hand in the sense that they can always ask the president, when he was happy to promulgate even ordinance related to remuneration and perquisites to former ministers, president, VP, etc. why is he reluctant to promulgate, for example, electricity ordinance, which in their eyes is vital to allow projects like Pancheshwar, Upper Karnali, Arun III, etc. dedicated to export power to India (condemning Nepal to ever live not only in darkness but also in medieval ages – unindustrialized and struck in dependency syndrome even for employment of its own citizens).

It is high time for the president to put his foot firmly down and insist on formation of national government (which can be all party consensus government or preferably comprising of national luminaries with clean record as well as clear conscience and no affiliation with any political party whatsoever), only which will start planning and implementing to get the country out of morass of deepening double transition with no legislature and no government with executive power and all constitutional entities with no operating “head” or likely to lose the head soon
With best regards,

Sincerely,


Ratna Sansar Shrestha, FCA
Senior Water Resource Analyst
http://www.ratnasansar.com/

RE: Nepal's first President in the eyes of history

July 22, 2012

Prof Dr Mohan Lohani'


Dear Prof. Lohani

I have known Surya jee since a long time and have known him to be different from the most. I trust him fully.

However, what is important is what the president will do and whether he will do before it is too late; time’s running away. Country has been without a government with executive power for more than 7 weeks. Care taker PM wants to perpetuate this till other political parties give in to UCPNM’s “demands” like state restructuring on ethnocentric lines. In a way this country has been held ransom to have their demand to have Nepal restructured on ethnocentric lines (जातिय आधारमा संघियता) met; you must have noted that they have offered to form all party consensus government only after this demand of theirs is met.

Most disturbing is the fact that we now have governance by ordinance (kind of by “executive order” of care taker government), which isn’t possible without president’s concurrence; president has, I hope, unwittingly become hand-in-glove with care taker PM in all this.

I have even offered to go meet president to get our point across, if necessary. I wonder if you would be prepared to join the “delegation”.

With best regards,

Sincerely,



Ratna Sansar Shrestha, FCA
Senior Water Resource Analyst
http://www.ratnasansar.com/


From: Mohan Lohani [mailto:m_p_lohani@yahoo.com]
Sent: Friday, July 20, 2012 12:20
To: Ratna Sansar Shrestha
Cc: dhungel_sps@yahoo.com
Subject: Re: Nepal's first President in the eyes of history

Dear Ratna Sansarji,

Dr Dhungel 's response to your comments and his assurance that all such comments regarding the kind of initiative that the President might or must take will be brought to the notice of the Rt.Ho'ble President give one the impression that the President is fully alive to the prevailing deadlocked situation in which consensus has not emerged.Advisers like Dr.Dhungel,I'm sure, must have already briefed the President about the action that the nation expects from the President at this crucial juncture.

Regds,

Mohan Lohani

Re: Nepal's first President in the eyes of history

Dr Surya Dhungel

Suryajee


I am delighted that my email has succeeded to catch your attention and also succeeded to elicit a response from you. Thank you so much. With the dissolution of CA we don't have a legislature, PM has been rendered care taker and only President retains legitimacy. Therefore, people in Nepal are pinning their hopes on the President. If even he fails to perform his duty then I am apprehensive that people in Nepal will become very despondent.

If you think that someone like me should convey such message to him personally, I am even prepared to meet him.

With best regards,

Ratna Sansar

On Fri, Jul 20, 2012 at 7:50 AM, SPS dhungel wrote:


Dear Ratna ji,

This, and such, observation will certainly be brought to his attention.

Thanks and best,

SD