Kathmandu School Of Law (KSL)
in co-operation with Center for Legal Research and Resource Development (CeLRRd)

E-Bulletin (Vol 86 & 87)

1 October 07

Past Volumes

 

News

   

Features Article

   

 

 

News

       

4th Residential School on Economic, Social and Development Rights and Good Governance

A two weeks 4th Residential School on Economic, Social and Development Rights and Good governance is being conducted with participants from South Asia, South East Asia and African Countries at Nagarkot, Nepal from 21st September 2007. The Kathmandu School of Law in cooperation with South Asian Law Schools' Forum for Human Rights (SALS Forum) has organized the School.

KSL conducts this School as its annual activity that provides an opportunity for young law students, rights activists, and teachers to deeply understand the significance of economic and social rights and their relationship with good governance in order to address the problem of exclusion of vast majority of population in the South Asian region and other countries.

This year a total of 46 law students and rights activists from seven different countries viz. India, Bangladesh, Bhutan, China, Cambodia, Malawi and Nepal are participating in the program. Similarly, experts on the related subjects from different national and international universities and organization have been invited as Resource Persons.

The School develops in-depth curriculum on the subject areas for the Residential School. Limited number of participants will also be provided with certification of Diploma award after adjudging their participation and understanding of the issue. This year, the curriculum has adopted the following topics for discussion:

o         Broader Perspective on Democracy and Human Rights

o         Scenario of Impacts of Socio Economic Rights of the Region

o         Cultural Relativism- Myths and Realities

o         Comparative Analysis of Concept of Democracy and Human Rights

o         Country Experience on Problems, Challenges and Prospects of Democracy and         Protection of Human Rights

o         Concept of Inclusive Democracy and Constitutionalism

o         Historical Perspectives of ESDR

o         Issue of ESDR and Conflict Transformation (Country experiences)

o         Problems and Challenges Faced by Marginalized, Endangered Communities in South  Asia and Surrounding Countries in the Context of 'Inclusivitity' in the System of Governance and Protection of  Human Rights (Country Presentation)

o         Accountability and Transparency (Prevention of Corruption and Its Trend Analysis with reference to SAARC and Surrounding Countries)

o         Concept of Good Governance and Democracy

o         Economic Impact and Management of Globalization and Intensified Consumerism

o         South Asian Economic Perspective and Impact of Globalization

o         Impact of WTO in the Life of Farmers and Poor Sections of Community in Context of ESDR

o         Linkages between Good Governance and Economic and Social Rights - Experience Sharing

o         Linkages Between ESDR and Reproductive Rights(country Experience)

o         Gender Equality and Reproductive Rights

o         Interaction of participants on linkage between good governance and socio economic and development rights (laws, policies & directives) with representatives  of government, planning commission, Embassies International agencies, INGOs, NGOs and representatives of the marginalized community.

o         Importance of ESDR in Addressing the Caste Problem

o         Endangered Minority and Role of ESDR (Protection Mechanism of Minority)

o         Issue of Land Ownership

o         Role of Asian Universities in Enhancing Studies on ESDR

o         Field Research to some VDCs of Nagarkot to explore situation of good governance and problems of rural, marginalized communities)

o         International Perspective on Socio Economic Rights

o         Indispensability of Economic and Social Rights for democratic rights of people

o         International Perspective on Development Rights

o         Responsibility of developed countries to support consolidation of rights to development in developing countries

o         Concept of Right to Self Determination

o         Indigenous Communities and Right to Self determination

o         Elocution Competition on Marginalized Community’s Socio Economic & Development Rights and their Participation in Political Process and Governance

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Talk Program Addressed by British Ambassador at KSL

Excellency, Dr. Andrew Hall, Ambassador, British Embassy paid a visit to Kathmandu School of Law on 26 September 2007 to address a talk program on Support of British Government in Conflict Transformation and Promoting Democratic Values in Context of Nepal. The program was organized as one of the sessions of the 4th Residential School on Socio Economic and Development Rights, and Good Governance.

Mr. Sudeep Pokharel, President of Law Students Society of KSL, welcomed his Excellency and other guests presented at the program. Dr. Yubaraj Sangroula, Executive Director made a highlight on the talk program and the fourth Winter Residential School on Economic, Social and Development Rights, and Good Governance. Highlighting all the significance of the Residential School, he mentioned that the School was initiated to identify and discuss the common problems of South Asian Region among the youths particularly of recognition, realization, protection of the socio-economic rights and to find out the regional solution to better curb the problem at country as well as regional level. The School serves as the common platform for the academic discussion and to learn the best practices of the South Asian Region and surrounding countries.  He further mentioned about the role of the youths in shaping the future of the country and emphasized that increased investment should be made on the younger generation, which is severely lacking in participating countries. In his remarks he expressed his dissatisfaction for poor condition of legal education and consistent ignorance of government, donor agencies and civil society on human right education at university level.

He acknowledged the support of the British Government in development affairs of the country. He also accredited the support of the British Government in the political development and enhancing democratic values in the present context of conflict transformation. Welcoming Dr. Hall for the interaction with the youths, he concluded his remarks.

Dr. Hall started his remarks acknowledging the role of youths for the generational change. He added to Dr. Sangroula's point and said although senior leaders are experienced, they could not avoid the collaboration and consultation with younger generation as they are the successors to build the country. Additionally, he acknowledged the effort of KSL in bringing youth from the South Asian Region and other countries together to discuss on the pertinent issue of the day. He mentioned that regional collaboration is inevitable in addressing the regional problem.

He, then, discussed about the role of Britain and the international community in the conflict transformation and promoting democratic values in Nepal. He emphasized that since Nepal holds the sovereign status Nepalese citizens are the decisive force or decision making actors in the country's development. Role of international community is to establish direction in which Nepalese wish to follow. He discussed about the role of international community in many forms. Firstly, international community is helpful in exposing people of their present position, of their rights and status. Secondly, international community assists public institutions working for the peace process, democratic values, and rule of law. He mentioned that British Government is supportive in programs against impunity, abuse of power, and for victims justice. He focused on having an impartial but trusted police force to control political criminal activities. He suggested that many institutions themselves need to be strengthen in their functioning and indicated a reality that it is not necessary that each and every institutions need to be looked after by the foreign countries as they themselves are also capable of working efficiently and effectively. Thirdly, international community, British Government in particular is supportive in making the Constituent Election happen in context of Nepal . However, he mentioned that adequate homework has not yet been done by the government and political parties for this historic election. Sharing the experience of his own country, he focused that there should be sufficient agreements between stakeholders, consultations and interactions among civil societies and concern actors on the election if committed to hold the election. He added that British government could be of much assistance prior and after the election as it could provide substantial and technical assistance. He highlighted on the support to National Election Monitoring Alliance, coalition of NGOs to promote advocacy and monitoring of the Constituent Assembly election.  Fourthly, British Government support is indirectly related with politics. He mentioned that Britain is the largest development partner of Nepal and is the large contributor of Nepal 's Government "Peace Fund".

Associate Professor Zakir Hossain, Dean, Chittagon University , Law Faculty, Bangladesh concluded the program with short remarks and vote of thanks. He pointed out the fact that the South Asian Region is rich in culture and tradition but poor in human development. The people are being ruled by a few handful elite people who are more focused on having civil and political rights but not much concerned about the economic social and development rights. Nothing can be more absurd than having democracy without economic, social and development rights ESDR, he mentioned. It should not be forgotten that the problem lies elsewhere, especially in the mind of the people. Hence, the major task of the 4th Residential School is not only to transfer the knowledge but also to realize and consider the importance of ESDR and also to have belief on it in upgrading the life of the people. International community must reconsider the development of the South Asian Regional countries, he emphasized. They must support these kinds of regional efforts to guarantee a vibrant young generation.

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KSL Student Felicitated by the Prime Minister

Prime Minister Girija Prasad Koirala felicitated Ms. Reena Pathak, student of KSL, for securing Nepal Chaatraa Vidhya Padak (Medal for Women Toppers) for her outstanding performance in the university board exam. She obtained the honour for the score she had obtained in her Bachelor's Level (LL.B.) examination under Purbanchal University held on the year 2006. Prime Minister Koirala conferred the medal at a function organized to felicitate students with Vidhya Bhusan and Nepal Chaatraa Vidhya Padak who top-scored the University Exam under different categories.

Earlier on the occasion of Education Day, on behalf of the Nepal Government, Hon'ble Pradeep Nepal, Minister for Education and Sports had decorated her with the certificate of recognition.  

Ms. Pathak is currently pursuing her Master's Degree in Human Rights and Gender Justice at KSL and is also involved in teaching at Bachelor's Level as an instructor.

Photo caption: Ms. Reena Pathak second from the right poses for a photograph with PM Girija Prasad Koirala on the occasion of the Felicitation Ceremony.


Ms. Reena Pathak second from the right poses for a photograph with PM Girija Prasad Koirala on the occasion of the Felicitation Ceremony

Interaction on Newly-enacted Human Trafficking and Transportation (Control) Act, 2064

In order to mark the first Anti Trafficking Day on 20th Bhadra as declared by the Government of Nepal, Kathmandu School of Law (KSL) and Terre des hommes Nepal (Tdh/Nepal) jointly organized an interaction on the newly-enacted Human Trafficking and Transportation (Control) Act, 2064 on 6th September, 2007. The program conducted under the banner "Human Trafficking and Transportation (Control) Act, 2064: Prospects and Challenges" was organized to scrutinize and evaluate the effectiveness of the Act to address the problem of human trafficking, and most importantly to assess its compliance with international standards.

Speakers at the programme shared that the new Act is victim friendly and has incorporated many positive aspects while many things depends upon its efficient and effective implementation. They also emphasized that the Act is still not effective to eliminate the crime and address the problem of cross border trafficking and transportation.

Speaking on the occasion, Dr. Yubaraj Sangroula elaborated on the positive aspects of the Act saying that the Act has considered the act of extracting human organ and engaging in prostitution as a client as human trafficking. "Transporting a person from one place to another within the country also falls as a crime under the purview of this Act and this is significant", he added.

Referring to the Section 2(e) of the Act which defines Exploitation as an act of keeping human beings as slave and bonded, he stated international anti-slavery jurisprudence is reflected in Nepali laws. Considering the buying of a person for any purpose as an act of Human Trafficking, the Act has provided scope for wider interpretation of the Act in court.

Dr. Sangroula further added Section 12 of the Act has made the State responsible to manage for the rescue of any Nepali citizen sold in the foreign land. This is important to approach for Public Interest Litigation in Court if the state doesn't abide by the provision.

He criticized the provision of the burden of proof to the accused. This provision is in contradiction to ICCPR and some international instruments Nepal has ratified, including CEDAW. This provides ground for police not to engage in investigation, interrogation and collection of the evidence. This provision will subject this Act to suffer the same fate as in the previous one.

The Act has empowered the police and now the police can directly take the accused to the Court without consulting the Government Attorney which is against the notion of check and balance between the police and government attorney. Furthermore, Section 21 of the Act has provided place for the police to play if they are not sincere. Rich people and organized criminals can easily influence the police. But there is risk of poor and illiterate people being cheated or deceived either in the name of discharging the burden of proof or by the provision of maintaining the confidentiality of the informant.

Delegate of Tdh/ Nepal, Mr. Joseph Aguettant opined that the Act is progressive and favours the victim, and internal trafficking which is more common has been acknowledged, but one can argue if it is enough to minimize the increasing incidence of human trafficking and transportation because the preamble mentions only about controlling the acts of human trafficking and transportation and doesn't intend to stop and eliminate the acts of human trafficking.

He pointed on the provision of punishment under Section 15 which provides separate punishment for a person who is involved in transportation of human being for the purpose of buying, selling and engaging in prostitution inside the country and outside the country. This provision justifies that the same crime if committed outside the country is grave and if it is committed inside the country it is less serious, and this is not rationale. 

He also indicated that, given the nature of the child and their easy vulnerability to trafficking, the Act lacks especial addressing of the child trafficking and child labour issues.

Assoc. Prof. Geeta Pathak Sangroula, KSL stated the new Act is a result of continued pressure from civil society and it has incorporated many provisions that KSL and its sister organization, Center for Legal Research and Resource Development (CeLRRd), has been advocating and lobbying for long.

She critically analyzed the Act in comparison to the international legal frameworks and human rights instruments. "The Act is silent on the issue when the human trafficking and transportation crime involves, or is associated with, the second country", she stated.

Annet Lyth from OHCHR highlighted on the international human rights covenants and instruments and expressed that human rights have to be the core of any anti-trafficking initiatives. She also asked for more efforts from the government, civil society organizations and concerned stakeholders to stop and prevent the acts of human trafficking and transportation.

Concluding the programme, Prof. Madhav Prasad Acharya shared that if the positive aspects of the Act are effectively implemented, the Act will act as a milestone in the fight against human trafficking. He also urged for support from all sectors and concerned stakeholders to reconcile and rehabilitate the trafficking victims in the society.

During the programme, teachers, students and representatives of different organizations have expressed their views on the positive and weaker points of the Act. Some participants observed that the Act has overlooked the regional dimension of the problem and the interventions to be made in cases of cross-border trafficking.

Earlier in the programme, Ms. Muna Basnyat, Program Officer, Tdh/ Nepal welcomed the participants and highlighted on the objectives of the programme.

In the second phase of the programme, a documentary show entitled "Born into Brothels" was presented among the participants that reflected the impact of trafficking on children.


Experts and Participants at the Interaction

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Feature Article

 

 

 

 

Constitution must be Able to Guarantee Basic Liberties Uninfringeable in Any Circumstance

A society without basic liberties is nothing but a slaves’ society. But the whole chunk of human civilization has unfolded out of conscious struggle for freedoms, and all conditions in political society that thrashed basic liberties are defeated by incessant inspiration of civil society for greater and enriched freedoms. The scheme and design by any individual or institution are thus bound to be ultimately crumbled down; they are never sustainable. No society or nation can survive without a vibrant and freed body of civilians. As opposed to some pessimistic cries, Nepal’s future is bright and awesomely potential of emerging as a matured and cultured nation state provided that some formidable problems are properly addressed.

An in-depth and critical analysis of the past political affairs unfolds that the Nepalese society is passing through a bitter struggle between regressive and progressive forces, though the struggle is largely clandestine. This struggle has mainly centered on ‘ill motif’ of conventional feudal force that intends to continue being in power as antithesis to basic liberties. For the last three years, this struggle has largely surfaced due to massive growth of consciousness of the civil society to basic liberties. This is what an interesting development mounting in the political scenario of the Nepalese society; it is no longer feasible to rule the Nepalese society by a power-block, group or institution with the help of a clandestine power management system. Unlike during the Panchayati regime, in the post 1990 movement era every power block is exposed to the eyes of the Nepalese people. If one looks from this perspective, last five years were crucial in the history of the Nepalese politics in the sense that the clandestine power centered politics came to its zenith and started spilling over. The split of the CPN (UML) was a beginning of the exposure of the clandestine power center, which survives only with the strength of conspiracy and unlimited political gimmicks. The split of the Nepali Congress was growth to maturity, and the subsequent events are spill-over. The biggest failure in this unfolding drama on the part of the democratic political forces was that they could not smell of the foul they were being instigated to play.

The present upsurge of the people marks their genuine inspiration for consolidation of the basic liberties. But it does not mean that the threat or risk of it being crushed by the clandestine power centered political gimmick is over. Coming to its zenith of such gimmick does not mean that it has been powerless, or sustained its biting tooth have been broken. The center is as powerful as it used to be in the past. The only change in its dimension is that it has been overtly exposed at present, whereas it was fully covert till recent past. The gain or lose of the civil society to its mission of achieving basic liberties will thus depend on its clarity of political, economical and social agenda of development. Liberties of people do not stand in vacuum.   

If one analyzes the dynamics of Nepalese history of struggle for freedoms, one can obviously see that it has, as an imbibed character, marked exclusively by political priorities. Socio-economic needs and priorities for the development have consistently been left out. As a result, the economically and socially marginalized sections of the population could not enjoy opportunities for equity, and consequently the clandestine power center could play a plot against democratic forces. In such a state, the larger part of population is easily deluded by the regressive force as it survives on failures of others only. Regression is destructive and devoid of creativity. Obviously, its agenda of winning over the power is solely dependent on the failure of the progressive forces on their agenda. The present government, for instance, took over the power in the pretext of failure of the political parties offer a system of good governance. But it never had a creative agenda of good governance; to grab the governmental power was the only agenda.

Basic liberties are greater need of economically and socially marginalized groups, and of course any political struggle must make these issues as frontline agenda to defeat the clandestine power centered block. The present movement needs to review its position from this prospect. Nepal is currently facing danger of authoritarianism from both the left and right extremism. In this situation the defeat of one may unscrupulously assist the other in gaining power. This on what the American policy to Nepal has been becoming functional. In this situation, the enhancement of the functionality of the central democratic forces is the only right strategy for preserving the realm of basic liberties, and for this the central democratic forces must be able to draw the socially and economically marginalized sections to its fold. Priorities for the socio-economic freedoms and development should therefore be the focused agenda of the struggle for political basic liberties. In this context, the political parties fighting for the democracy should be conscious of their role to massive reforms in the governance system, and the agenda of the movement should be accordingly designed. The success of the ongoing movement for basic liberties is thus dependent on it capability of including socio-economic freedoms and development as priority agenda of the struggle. Its failure to do so may divert the larger part of the population towards leftist extremism, and eventually will provide a basis for continuity of the rights’ control over the State’ power.

In this context, the ongoing movement for democracy must be founded on a charter between the people and political parties. It cannot be a sole instrument of political parties gaining the power over the government with status quo in political dynamics. Restoration of liberal democracy is the agenda of the political parties, whereas the people’ agenda is beyond it; they want an inclusive democracy in terms of participation in political process as well as scoio-econmic development. The people’ movement can be enhanced and consolidated by acceptance by the political parties of the people’s agenda of inclusive democracy. This is where the external powers like India, USA, UK and China can play roles. Their policies and outlooks to present crisis of Nepal should be necessarily guided for the benefit of the general population. Creation or destruction of any polarization for vested interest should find a place, which may drag Nepal to a catastrophe. Especially, US government’s cautious support to the present movement may help to legitimize the brutal suppression of the people, and it may contribute to the upsurge of economically and socially deprived or disenfranchised population to the left extremism. It is necessary to build a faith and trust of the people on the capability of the democratic parties to rescue the country from crisis. This faith of people on democratic forces will isolate unpopular forces from people. As matter of fact, the popular movement to the inclusive democratic system is the only way out of the present crisis.

The present trend of suppression, however, and less visible concern of the international community towards what happening in Nepal are unusual. These trends show that the government is still confident of its capability of quelling the movement with the help of massive use of force. On the other hand, international community is skeptical to extend its genuine support to the democratic forces, and this may be due to ‘stereotyped’ belief that the fall down of the present government might add the strength to the Maoist. This doctrine may have been founded on a sweet logic but on ‘reality’. The Nepalese people are keen to restoration of democracy and have abundantly proved that their choice is no kind authoritarian regime, but the democratic government. The international community can constructively assist Nepal to rescue from the present crisis by extending its support to the democratic aspiration of the people and their capability of their representative parties. By ignoring political parties there can neither be the solution to the Maoist insurgency nor development of the country.

With the present political development in Nepal, one can say that the country has been come to a real cross of crisis. Successful management of the aspiration of the people scattered on every streets and corners of the country today will give a lasting transformation of the present crisis, and failure to an uncertainty of future. The failure of the present movement will throw the country a lasting bloodshed. The present trend of the government to oppress unarmed citizens on the streets compels one to think that it lacks a political vision address the crisis. There is a strong anti-democratic group in the government, which is persistently and adamantly trying to prevail over the people. The terror has been created among the people, everyday it is dragging more people in the streets. The mass is still peaceful on the streets, and has not poured on the inner city in Kathmandu for frenzy and destruction. However, everything naturally has limitation. The anger being generated by indiscriminate bullets and batons might trigger the frenzy, and may invite a catastrophe. It is therefore in nobody’s interest to wait and pass on the time without proper transformation of the crisis. The international community can play a crucial role, by refraining at lest from meddling things, if it does prefer to avoid active engagement in support of the democracy.

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Kathmandu School of Law          / Telephone : 977-01-634455/6634663, 2042268
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