If the Prime Minister pressures him to take an illegal decision, the Secretary of the Ministry should be able to disobey the Prime Minister's instructions: Special Court
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The special court has explained that if there is any illegal decision by the Council of Ministers under the guise of policy, the secretary of the relevant ministry will be punished for the 'illegal decision'.
In publishing the full text of the case related to the embezzlement of government land and Lalita residence in Baluwatar, it has been explained that even if any proposal submitted by the ministry to the council of ministers is approved by the council of ministers, the 'responsibility of illegality' of such a proposal will be with the administrative leadership (secretary) of the relevant ministry .
The full text of the judgment of the Special Court Judge Khushi Prasad Tharu, Ram Bahadur Thapa and Ritendra Thapa in the Lalita Niwas case on February 3, 2080 with conviction of 136 persons was made public on Friday. In which it is explained that the decision of the Council of Ministers does not have the jurisdiction of the authority and the party to the proposal from the ministry is the secretary of the ministry.
According to this interpretation, if there is any illegal decision by the Council of Ministers, then the Prime Minister and the minister involved in the collective decision cannot be made part of the criminal offense for making the decision.
It is seen that the administrative decision-making process will be affected if the chief decision-maker is exempted for making illegal decisions and only those responsible for taking the proposal from below to the Council of Ministers step by step .
This interpretation of the special may affect the investigation and prosecution of corruption-related cases by the Abuse of Authority Investigation Commission in the future.
In the land embezzlement case of Lalita Niwas, the Authority filed a case against 175 people including the then Deputy Prime Minister and Physical Planning Minister Vijay Kumar Gachchdar in the special court on 22nd January 2076 . About 4 years after the filing of the case, on February 3, 2080, the case was decided by acquitting political figures and some high-ranking employees including defendant Gachchdar in the Lalita Niwas case .
special convicted 136 including the then Secretary of Physical Planning Ministry and former Chief Commissioner of Authority Deep Basnyat and the then Secretary of Land Reforms Ministry Chhabiraj Pant. had decided .
The full text of the decision was made public on Friday, and in particular, the matter of "not having the jurisdiction of the authority in the decision of the Council of Ministers" and taking the government land into the name of the individual by making a disgraceful decision under the guise of executive supremacy. Physical Planning Secretary Basnyat and Land Reforms Secretary Pant have also determined that they played a role.
'In this way, under the guise of executive supremacy, the collective decision of the Council of Ministers and using a legal defense that does not reach the jurisdiction of the authority to investigate, even by creating a legal right from the administrative decision, it has been seen that the public servants of the administrative level have been humiliated' The administrative leadership at the last level of submission should check, the responsibility of the illegality of the proposal goes to the administrative leadership.' It has been confirmed that the national servant under the administrative leadership has caused damage to the Nepal government by transferring the rights to the name. Ropani land was acquired during the Panchayat period and the then government maintained it in its name . However, in the days after the political change of 2046, the then occupiers, middlemen, fake charmers and traders created a scenario of land grabbing. Accordingly, on various dates of 2049, 2062, 2066/67 and 2069, about 146 plantations were illegally taken from Malpot by the decision of the Council of Ministers.
Employees including the then head of Dillibazar Malpot Kaladhar Deuja involved in the decision process of 2049 to take government land in the name of individuals, employees including the then head of Dillibazar Malpot Tikaram Ghimire involved in the decision of 2062 in the name of exempted land registration, government land in 2066/067 in the name of expansion of the Prime Minister's residence and Sattavarna The then Physical Planning Minister Gachchdar and Land Reforms Minister Dumbar Shrestha, who were involved in the decision-making process to give individuals, along with Secretary Basnyat and Pant, and in 069, Land Reforms Minister Chandradev Joshi and Secretary Dineshari Adhikari involved in the decision to maintain government land in the name of Pashupati Tikinya Guthi, mediators Shobhakant Dhakal, Ram Kumar Subedi and The authority had filed a case against 175 including Meen Bahadur Gurung in a special court.
When the case was decided, the then ministers Gachchdar, Shrestha and Joshi were clarified saying that the authority does not have jurisdiction over the policy decisions of the Council of Ministers. Another secretary officer clarified that the decision made by the secretary before him was only taken to the Council of Ministers.
However, when it is mentioned that the then secretaries Basnyat and Pant are the main culprits for giving the government land to the people of Sattabarna and Mohiyani rights, the special party takes the proposal decision from the ministry to the cabinet and the prime minister, who leads when the decision is made by the cabinet, does not lose any responsibility in this matter and its illegality. It has been explained that the responsibility also lies with the secretary.
In 2049 and 062, the staff involved in the decision to give the rightful ownership to the Rana family by misinterpreting the decision made by the Council of Ministers is mentioned in the full text of the decision.
'Among the acquired and privatized lands in the Lalita Niwas camp area, the government has not clearly occupied but owned all the lands in the name of returning them, in the name of modernizing them, in the name of registration of exempted land, in the name of expanding the residential area and in the name of maintaining Guthi in a planned manner at different times. It is mentioned that decisions have been made to benefit a particular person.
special has also determined that all the lands taken in the name of individuals during the period from 2049 to 2069 were taken in the name of individuals by ignoring the facts that were acquired by the then government by paying a price . After 2049, about 146 ropani lands were taken through the Rana family in the names of various businessmen, middlemen and employees.
"Government of Shri 5 has returned the acquired land by misinterpreting the decision made to return only the land seized during the panchayat period in Missile No. 1024 and 1025 of Dillibazar's Land Office to return the acquired land at the price of land" it is said in the full text .
The decision made by the Council of Ministers regarding the expansion of the Prime Minister's residence has been declared illegal by the special court. However, in the illegal decision, the then secretary Basnyat is shown to be the main responsible, and it is mentioned in the special explanation that the decision-making authority of the Council of Ministers is not a party to it.
'On the whole, the decision of the Council of Ministers on Chait 29, 2066 could not be considered valid as it was seen that the rule of law and constitutionalism had been devalued by establishing Mohiani rights without a judicial decision. It was seen that the proposer of the said illegal decision was the respondent Deep Basnyat, the secretary of the position of chief administrative officer.'
special has also explained that the decisions made by the Prime Minister while exercising his authority are not part of the criminal prosecution . It seems that in the future, the illegal decision made by the Prime Minister may be hindered from being brought under the scope of action.
The nature of the Prime Minister's authority shows that he is immune from criminal prosecution in relation to government work done during his tenure. At least he has complete immunity in relation to the exercise of his fundamental constitutional rights. The rest of the government "He enjoys at least presumptive immunity in relation to the work," the full text says.
National service employees have used or misused the rights they had, registered the land deliberately without the abundance of compelling evidence, deliberately acted contrary to the mandatory procedures, and the bad faith of those who took this illegal benefit has been confirmed and they are part of the punishment. The full text of the special event is mentioned .
By saying that any power of the Prime Minister is decisive and any impeachable, the Parliament cannot exert pressure when acting under the said decisive power and it is not testable in the court.
This means that the Parliament cannot enact a law so that the Prime Minister can be prosecuted in connection with the use of the powers obtained from the Constitution. Nor can the court give a decision in the criminal prosecution where such things are presented .
The judicial conclusion is that the prime minister is completely immune from criminal prosecution for actions performed within the intact scope of constitutional rights. Arguments of executive immunity do not justify the immunity of functions connected with Parliament. In order to solve the issue of such immunity, the full practice value and recognition of the separation of powers should be seen.' The then secretary Basnyat has been considered the main responsible person that under the guise of the instructions, the defendant hastily made a proposal against the law with the intention of fulfilling someone's vested interest .
'It was seen that he took a proposal for administrative and quasi-judicial decisions in the name of policy decision, in addition to this, even if there is an instruction from the Prime Minister against the law, the administrative officer of the ministry should be able to disobey such instructions . The prime minister's directive cannot be implemented unless the secretary of the ministry cooperates.'
In 2047, the then Krishna Prasad Bhattarai's Council of Ministers ordered that the Ministry of Home Affairs investigate the property lost to various individuals due to their involvement in the struggles for the restoration of democracy (Council of Ministers). ) dated June 14, 2047, if the decision is being made, the property found to be returned after the investigation is said to be returned as follows.
Specially, the jurisdiction of the Council of Ministers in the Lalita Niwas case has been defended in full.
There is also criticism regarding the court's decision for clearing the decision taken by the Cabinet to take land in the name of Sattabarna and Tikini Guthi .
has emphasized on the interpretation of the full text to confirm the matter clarified by the court. In addition, the special has drawn the attention of the authority to take care of the legal provisions that do not fall within the scope of the authority in policy decisions . Special has explained that the authority does not have the right to question the decisions made by the Council of Ministers.
It seems that a lawsuit has been filed on the justification of the master plan to expand the residence of certain people, which law prohibits the work of the master plan or is the authority of the Council of Ministers not reached for the work of the master plan? It seems that the plaintiff has not been able to confirm it," it is said in full, "It seems that the creation and implementation of the master plan has gone beyond the executive authority of the Council of Ministers. Plaintiff does not seem to be able to say .
The list of executive powers cannot be limited within a certain definition . The only limit to executive power is constitutionalism and the rule of law. It seems that the work of expanding the residence complex and the construction of the road to the south of the extended area fall within the executive authority of the Council of Ministers, and the master plan itself cannot be investigated and investigated.' While explaining, the Authority has questioned the decision of the Council of Ministers. Tacturing the statue of the centralization of the Council of Ministers and Manka's faith in the government, criticism is not seen to remove the party from the public, "said, 'Bring to such political event in public nuts The type of policy decisions is likely to be able to investigate the issue of the cabinet on the basis of the election, saying that the election should be unconditionally determined by the election procedure, collective in the committee of the Council of Ministers Automatically said that the Commission of the Commission of Nepal has been mentioned without being undermined by the Constitution law, which is not mentioned in the dispumer law, or not the Confident Constitutional Structure of Nepal or not in the contentious law. When research and prosecuting, it is also aware of the effects that may reach the development work of development & nbsp;. The Commission that the Commission also fails to misunderstand the balance of the government, not to decorate the responsibility of Story Commission for the statement of Story Commission. In the full The result of the staff (the authority) claim to have an improper interfere with the independence of the executive, the plans of the plaintiff is said to be an improper intervention of the executive to the extent of the executive.
