Case Studies in Use of the RTI law in Nepal

7 January 2015

 A report by the Asia Foundation on right to know laws in three Southeast Asian countries. (See report.) The report includes an annex with case studies about the use of the laws. Reprinted below is the section on Nepal.

Information in the Public Interest

The International Criminal Court (ICC) adjudicates cases of genocide, crimes against humanity, war crimes, and crimes of aggression. When national governments fail to take action against those accused of these serious crimes, the ICC can intervene. The ICC was established in July 2002, upon the ratification of the Rome Statute by 60 nations; 121 countries endorsed it by December of that year. Nepal did not ratify the statute, despite a July 2006 directive of the House of Representatives. The foreign minister’s proposal for taking a bill to Parliament in February 2011 failed to get cabinet approval. The government had also formed a task force on October 18, 2006, to study the obligations that would result from joining the ICC, but their report had not been made public.

On December 25, 2011, Taranath Dahal submitted an application to the information officer at the Ministry of Foreign Affairs, asking for a copy of the task force report that had been presented to the deputy prime minister and minister of foreign affairs on December 14, 2006. He also sought information on work done by the government in connection with ratification, and when the government planned to take the bill to the Legislature-Parliament.

Failing to obtain the information, Dahal directed his request to the secretary at the Ministry of Foreign Affairs, the appellate authority. In response, a section officer wrote back saying that the information sought could not be provided because it was “about issues related to the views Nepal would adopt in terms of bilateral, regional, and multilateral relations, and [also because] a meeting of the Information Classification Committee chaired by the chief secretary had decided that such information need not be given.” (At about the same time, the government made public a list of 140 kinds of information it had categorized as “classified,” which the Supreme Court later struck down.)

Freedom Forum appealed to the National Information Commission (NIC) on February 6, 2012. In addition, it asked the Commission to annul the government’s classified information system. The NIC ruled on the appeal that same week, and ordered Durga Prasad Bhattarai, secretary at the Ministry of Foreign Affairs, to deliver the requested information within seven days. The Ministry delivered the information about 15 days after the NIC order.

The Ministry of Foreign Affairs provided photocopied pages of the task force report, and explained that the cabinet had not approved its decision to take a ratification proposal to Parliament in February 2009. It was also this case that for the first time referred to the government’s attempt to classify information, which was subsequently annulled by the Supreme Court.

Investigation Committee Reports

The formation of investigation committees has been a normal practice in Nepal, as has the tendency to let matters rest unchanged after the committees report. Successive governments have thought it unnecessary to make the reports public. As with the investigation of the murder of J.P. Joshi, the government had not released the report of the investigation of civil disorder in the Kapilvastu District in 2007.

Report on the riot in Kapilvastu

Riots had spread across the district following the murder by unidentified gunmen of one Moit Khan, a resident of Ward No. 7 of Birpur VDC. Violence in 12 VDCs had resulted in the loss of 23 more lives and the destruction of property. The leader of a committee of victims requested the Home Ministry to provide information on its investigation of the riots, as this would be the basis of any compensation they would receive from the government.

He filed an application in May 2010 seeking access to the report of the investigation committee. In response, the information officer said a copy of the report could not be provided because the Council of Ministers had not decided to make it public. The petitioner filed another application addressed to the secretary of the Home Ministry. Failing again to obtain the report, he appealed to the NIC on August 18, 2010.

On September 2, the NIC ordered the Home Ministry to provide the information. However, the information officer responded that the information could not be provided in accordance with the classification of information in the RTI Act. The NIC wrote back to the Ministry on January 31, 2011, asking why the head of the Ministry should not be punished. The Ministry eventually provided the information to the NIC on February 11, 2011.

Report of a property investigation

In Fiscal Year 2001–02 His Majesty’s Government of Nepal had formed a judicial commission led by Supreme Court Justice Bhairab Prasad Lamsal to investigate the property of all individuals who had held public office since 1990. The commission had submitted its report to the government, based on which the Commission on Investigation of Abuse of Authority (CIAA) had detained some politicians and government officials for further investigation. The courts were still examining some cases filed by the CIAA when this report was completed, and some of the accused were serving jail terms.

The CIAA investigation report, however, had not been made public, and there were accusations that the CIAA had arbitrarily targeted some suspects and ignored others. Taranath Dahal and Sanjeeb Ghimire of Freedom Forum filed an information request with the CIAA seeking access to the report. They asked for names of individuals facing corruption charges based on the commission’s report, and the statements of the suspects. They also wanted information on the status of cases that the commission had recommended for further investigation, and the names of public agencies whose officials faced corruption charges and investigations.

The CIAA did not deliver the information requested, nor did it give a reason for its refusal. Next, the applicants took their case to the chief of the CIAA, to no avail. They then appealed to the NIC. The CIAA provided partial information after an NIC order on December 20, 2012, but withheld some information.

The CIAA provided the names of individuals charged, and details of the charges, in 33 cases of graft based on the report (which had recommended charges against 508 individuals). It also revealed that additional investigations had been pursued against another 474 individuals named in the report, but that this phase of the probe was not complete. It did not make public the names of those who had been charged on the basis of the additional investigations.

Journalists Using RTI to Access Information

Unidentified assailants had killed Jagat Prasad Joshi, a journalist in Kailali District on November 28, 2008. On December 3, the government formed an investigation committee headed by Umesh Prasad Gautam, a lawyer, and gave it 15 days to submit its report. The committee included a representative of the police, and a journalist. It submitted its report to Prime Minister Madhav Kumar Nepal 11 months later, on November 1, 2009. All this while, the family of Joshi had received no support from the government, which had also made no effort to apprehend the killers.

Ramji Dahal, a reporter at Himal Khabarpatrika, sought information on the committee’s work and published a story. Information obtained using the RTI Act helped him reveal that the team had spent NPR 3 million on a probe that was supposed to have been completed in 15 days.

On January 26, 2010, Dahal asked the Home Ministry for information on the committee’s expenditures, including bills and receipts. The next day, the Home Ministry informed him that it had no information on the workings of the probe committee. The same day, however, a source at the Ministry provided some information about the funds that had been released for the investigation and some details of the expenses. This information showed that the committee had a budget of NPR 3.096 million, and that it had spent NPR 2.9 million in 11 months. The story was published by Himal Khabarpatrika, following which a Council of Ministers meeting on January 24, 2011, decided to provide NPR one million as compensation to the family of the slain journalist.

Because the information provided was not complete, Dahal made another request to the secretary of the Home Ministry on February 2, 2010. When he had not received the information in seven days, Dahal appealed to the NIC on March 7. On March 19, the NIC ordered the Home Ministry to deliver the information sought by Dahal or give reasons why it would not do so. The Ministry responded on March 22 that the requested information had been delivered, but that it was not possible to provide the bills and receipts because the accounts had not been audited. On May 17, 2010, the NIC ordered the Ministry to provide the information, as there were no lawful reasons for not doing so. Thereafter, the Ministry provided copies of the requested bills and receipts.

The information showed that the committee had spent NPR 14,000 on telephone recharge cards; it had spent NPR 90,000 on petrol on a single day, yet a look at the vehicle’s travel log revealed that it had not travelled outside the Kathmandu Valley on that day.

RTI Act Protects Whistleblowers

The RTI Act of Nepal includes extensive protections for whistleblowers. Section 29 requires employees of public bodies to provide information on corruption or irregularities, or the possibility thereof, and makes it a duty of the recipient of this information to protect the identity of the whistleblower. Another section of the law says that the whistleblower shall not be punished for having given information, and if punished, can seek compensation and reversal of the punishment. This provision was tested in a decision by school authorities against a teacher in Far-Western Nepal.

RTI helps reinstate teachers

Pushpa Karki, a teacher at Saraswoti Lower Secondary School in Dhangadhi in the Far-Western Region, had given information to the media about irregularities taking place at her school, revealing that teachers there discriminated against Dalit students. Following the media reports, on May 27, 2009, the school authorities wrote ordering her to stop teaching classes.

Karki asked the school authorities the reason for their decision, but they refused to say. She then requested the same information from the Kailali District Education Office (DEO). The DEO told her she was being transferred with “good intention” to a more convenient workplace closer to her home. However, the office was also withholding her salary and allowances.

On August 25, 2009, Karki petitioned the NIC to reverse the transfer order, claiming that she had been punished for being a whistleblower. In response, on August 27, the NIC ordered the DEO to reinstate her at her old workplace, and to restore her salary and allowances pending a decision on her petition.

The DEO responded to the NIC on November 13, 2009, arguing that the School Management Committee had the right to take action against a teacher, and that school officials did not discriminate against Dalits as claimed by Karki. The letter also accused Karki of violating the code of conduct for teachers, and said she was wrong to have approached the NIC. The allegations against Karki grew over time. The school authorities wrote letters to the DEO accusing her of manhandling their family members, opening the school on a public holiday without permission, and stealing important documents.

Karki reported the DEO’s collusion with the school authorities to the NIC, called their allegations false, and asked the NIC to expedite its decision on her case. She also told the NIC that its ruling of February 21, 2010, ordering the DEO to reinstate her at the school and restore her salary and allowances, had been ignored.

The NIC wrote a second letter to the DEO, asking why the district education officer should not be punished, in accordance with Section 32 of the RTI Act, for ignoring its earlier directive, adding that the law provides for a fine of up to NPR 10,000 for non-compliance. The DEO did not respond, leading the NIC to issue a third letter on May 13, 2010. This time the NIC decided to find out whether Karki had been punished for whistleblowing, or for something else, and it ordered the DEO to document its allegations. This letter was also copied to the Ministry of Education. After examining the evidence, the NIC concluded that Karki had been punished for blowing the whistle on discrimination and other misconduct at the school.

The NIC ruled that no action could be taken against any employee for simply making information public, particularly information that ought to be revealed. It also penalized the DEO for failing to comply with its earlier order, and for failing to justify its non-compliance. Concluding that its order had been deliberately flouted, the NIC ordered the DEO to pay a fine of NPR 5,000 under Section 32 (5) of the RTI Act.

The DEO appealed the fine to the Appellate Court, and petitioned the NIC on August 13, 2010, to suspend the fine. Karki has been reinstated at her school (she is currently deputed to Lalitpur District). The Appellate Court was examining the DEO’s appeal at the time of this writing.

In another school case, Devendra Pratap Singh, a teacher at Budhanilakantha School in Kathmandu, requested information from his school on December 16, 2011, regarding recruitment and promotion of employees, enrollments, financial transactions, budgets, and audit reports. The school principal denied his request and instead fired him from his position as head of the Department of Social

Sciences on January 17, 2012. Singh appealed the school’s decision to the NIC on January 20, seeking protection under Section 29.

In response, on April 30, 2012, the NIC ordered the school principal to show cause for his actions against Singh. In his reply, the principal said Singh had been removed from his job for committing acts against “the betterment of the school, under the influence of unscrupulous elements,” and for his “involvement” as secretary of the staff union. He specified that Singh had not been fired just because he had requested information.

Unconvinced, on August 10, 2012, the NIC invited the principal to its office to make his case in person. On October 2, 2012, the NIC ordered the school to reinstate Singh, who it concluded had been fired for seeking information. It also concluded that the principal’s claims that Singh had given false documents to the NIC and had acted to bring disrepute to the school were not true. The school informed the NIC of Singh’s reinstatement on October 5, 2012.

RTI and Democracy

Nepal held elections for its first Constituent Assembly (CA) on April 10, 2008. Its 601 members were required by statute to promulgate a new constitution in two years. When it failed to do so, the CA’s term was extended several times, until it was finally dissolved in May 2012 following a Supreme Court ruling. The inability of the CA to produce a constitution had led to widespread criticism of lawmakers and the waste of public resources. On May 26, 2011, Taranath Dahal of Freedom Forum filed an application seeking information from the Parliament Secretariat. He asked for information on:

  • The number of CA meetings in the previous three years, with dates, times, and attendance.
  • The number of committee meetings, with attendance and the records of the meetings.
  • The number of Legislature-Parliament meetings after 2008, with dates and times.
  • The number of bills approved by the CA and the Legislature-Parliament, with titles, dates and times.
  • The details of salaries, expenses, and perks of all members.
  • The number of foreign trips made by the 601 members, with names and countries visited.
  • The names of members who had health check-ups, with dates and costs.
  • The expenses of CA members on district and constituency visits, with names of members and itineraries.
  • The expenses of the CA in drafting the constitution, with details of the relevant budget and expenditure lines.

Unable to obtain the information in 15 days, Dahal filed an application with the Chairman of the CA and the Legislature-Parliament Secretariat. The Parliament Secretariat provided most of the requested information in about a month. The expenditure details were not included, largely because of poor record keeping by the Secretariat, but Dahal was assured that he would receive those details at a later date.

Salaries and perks of parliament members

On June 4, 2012, Sharada Bhusal, the coordinator of the Mahottari anti-corruption campaign, asked the Parliament Secretariat for information on the expenses of CA members. She asked for details of all meetings held, their minutes, progress reports of CA activities, and the names of all the different committees formed by the CA and their duties and responsibilities. The Parliament Secretariat provided Bhusal with the information on June 8, 2012. According to the records, the expenses, including salaries, allowances, and perks, added up to NPR 2.93 billion.

RTI helps judge’s reinstatement

In 2004, the Judicial Council dismissed Chitra Dev Joshi, a judge at the Syangja District Court, for allegedly making defamatory remarks against King Prithivi Narayan Shan, Nepal’s founder. Joshi denied making defamatory remarks, and challenged the Council for denying him access access to the documentary evidence and the right to make a statement before his dismissal.

Joshi sought information on his dismissal from the information officer at the Judicial Council on January 11, 2010. He wanted to examine the documents used by the Council to make their decision. The information officer denied the request, and Joshi’s subsequent appeal to the head of the office was also denied. Next, Joshi appealed to the NIC.

On March 1, 2010, the NIC asked the Council for its reasons for not providing the information. The Council responded with several justifications. It argued that Article 27 of the Interim Constitution allowed it to withhold “information that should be kept secret under law,” and that its own regulations also did not require such information to be made public.

The NIC summoned the head of the Council to appear at its offices on March 16, 2010, but the summons was ignored. The NIC wrote to the Council again on April 15, 2010, ordering its representatives to appear at the Commission within a week. The Council’s section officer, Madhav Prasad Poudel, appeared at the NIC and argued that the information could not be released because the case had reached the Supreme Court, and the Council would be required to present the documents in court.

On May 19, 2010, the NIC wrote again to the head of the Judicial Council and the information officer, ordering the Council to deliver the requested information within 15 days, and citing the same article of the Interim Constitution cited by the Council, as well as the Judicial Council Law and Regulations, as justification. But the Council did not provide the information. Eventually, after repeated follow-up, the Judicial Council delivered the information to the NIC on February 9, 2011. The Council had also filed a writ at the Supreme Court, however, challenging the NIC order, saying that it had caused the Council to break the law by forcing the disclosure.

The information revealed that Chitra Dev Joshi had not used the words he was accused of using, and that the recording of his remarks did not provide grounds for dismissal. He was eventually restored to his position when the Supreme Court ruled that the dismissal was illegal.

RTI in local government

Two women and a man from Banauli-Danuli VDC in Mahottari District started a fast-unto-death hunger strike demanding an investigation of the corruption in their VDC, and punishment of the guilty. After 13 days, the prime minister’s office sent a team to the area and convinced the hunger strikers to break their fast, assuring them that the government would make efforts to address their demands.

When these assurances proved empty, one of the hunger strikers, Sharada Bhusal, filed an information request at the Ministry of Home Affairs. She wanted a copy of the investigation commission’s report, which she received in about 35 days. The report confirmed the hunger strikers’ allegations, and showed that corruption was widespread in the VDC. The report also recommended remedial actions by the Ministry of Local Development and further investigation by the Commission for the Investigation of Abuse of Authority (CIAA). But following the CIAA probe, the accused VDC secretary, who had earlier been suspended, was allowed to return to work.

On October 30, 2012, Bhusal filed an application at the CIAA demanding that its report be made public. CIAA refused to provide the information, saying that the investigation was still underway. Bhusal also asked why the suspension of the VDC secretary had been lifted. It was only after an appeal to the NIC that the CIAA provided some information, but there was still no explanation of why the VDC secretary had been reinstated. Bhusal filed yet another appeal, seeking this information, but the situation remained unresolved at the time of this writing.

RTI in local development

Jumla is among Nepal’s most under-developed districts. It lies in the country’s northwestern region and is one of five districts of the Karnali Zone. Three village development committees in Jumla — Ghode Mahadev, Raralihi, and Malika Dhanta — came together in 2011 to build a road connecting their villages. Their idea was to lobby the government for a bridge on the Tila River.

Following a meeting in December 2011, 18 villagers and three VDC secretaries traveled to Kathmandu to lobby for the bridge. The team included representatives from every ward of the three villages. The team of 57 had come to the capital with NPR 200,000 drawn from the development budgets of the three VDCs.

In Kathmandu, the team stayed in cheap lodgings and spent the month of January lobbying for the bridge. They met the prime minister, other ministers, and members of the National Planning Commission (NPC), and they were assured that the government would allocate funds for the bridge. Their meeting with the prime minister appeared as a main story in the state-run newspaper, Gorkhapatra. The story called the bridge a government priority. The team returned to Jumla with confidence that their application had reached the Department of Roads from the NPC, and that construction would begin the following year.

Seven months later, Dan Bahadur Basnet, a young activist from Malika Dhanta, came to Kathmandu for a week of RTI training. As part of the training, he wrote an RTI application seeking information on the status of the villagers’ request. He filed his application on September 11, 2012, at the Department of Roads (DOR) and received a call five days later asking him to come and collect the information. The file, signed by a DOR officer, said the bridge on the Tila River had been listed as a project, but its “survey, cost estimate, and design” had not been carried out for lack of a budget. It also said that from 2013, bridge construction over local rivers would be handled by the Local Infrastructure Development and Agricultural Roads Office under the Ministry of Local Development.

Basnet took the information back to Jumla and gave copies to all three VDCs. After receiving the information, the locals asked their VDC secretaries to account for their spending during the Kathmandu visit. It turned out that the VDC secretaries had actually spent some NPR 900,000 out of the VDC development budget on the lobbying trip to Kathmandu. Based on the information obtained through RTI, local youths in the area have been demanding that the local party cadre that accompanied the secretaries on the trip to Kathmandu pay back the money.

RTI and municipal transparency

Municipal bodies managing Kathmandu Valley’s public parking spaces had never been transparent. Parking contractors were not selected by competitive bidding, and no rules had been issued on parking fees. Contractors charged different rates in different areas, fees often changed arbitrarily, and there was no information on where the money went. On July 19, 2012, Sanjeev Ghimire of Freedom Forum filed an RTI request with the Kathmandu Metropolitan City and the Lalitpur Sub-Metropolitan City seeking the following:

  • Copies of policies, guidelines, and decisions on parking spaces.
  • Information on public spaces designated as parking zones.
  • Details on parking spaces leased out to contractors or individuals, their names, the conditions of the contracts, etc.
  • Parking income of municipal bodies from 2008 to 2011, with details for each parking area.
  • Numbers and types of vehicles that used the parking lots from 2008 to 2011, with separate information for each parking area.

The municipal bodies failed to provide the information within 15 days. After several reminders, the applicant submitted a petition addressed to the chief executive, but it was denied because the clerk said he needed authorization from higher officials to accept an application. The chief executive could not be contacted. Instead, the acting chief offered to provide information, but he would not give permission to register an appeal with the appellate authority. On his next attempt, on August 28, 2012, Ghimire visited the office while the chief executive was present. This time he was given additional information, but still not everything he requested.

On October 3, 2012, Ghimire took his appeal to the NIC. The NIC ordered the municipal bodies to provide the information, which they still did not do. Kathmandu municipal officials eventually provided most of the information, but withheld the contracts.

The information confirmed the arbitrary leasing of parking spaces, and because the contracts were withheld, there was reason to suspect further irregularities. The case also showed that the two cities had a poor idea of their responsibilities under the RTI Act.

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