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

E-Bulletin (Vol 80)

17 June 2007

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News

   

Feature Article

   

Television Debate Series on Constituent Assembly has been developed by CeLRRd for CoCAS. Airing schedule is as follows:

Program Name: Sambidhan Shabha, Hamro Sarokar
Date/Time: Every Monday at 5:30 pm

Channel: Nepal Television
(Interested members are requested to watch the debate and provide us your valuable comments and feedback)

News

       
Demonstration on Electoral Process and Display of Constituent Assembly Materials

KSL organized a one day special event entitled  Demonstration on Electoral Process and Display of Constituent Assembly Materials on 17 June 2007. The program envisaged to facilitate national effort to create an informed mass to conduct free and fair constituent assembly election. The program aimed at educating political activists, civil educators, rights activists, and youth leaders on the constituent assembly, and different electoral modalities and processes including balloting and counting. Major systems demonstrated were First Past the Post, Majority, Preferential, and Proportional systems. Additionally, organizations engaged in constituent assembly civic education had displayed materials developed for that purpose.  Mr. Bhojraj Pokharel, Chief Commissioner of the Election Commission inaugurated the program appreciating the effort of academic institution like KSL in this national mission.

Four different programs were conducted simultaneously viz. demonstration on electoral process, display of constituent assembly materials, presentations on different issues of constituent assembly, and organizational presentation by National Election Monitoring Alliance (NEMA).  Different shifts were arranged for different target groups. The morning session was targeted to political leaders and members from development partners, two shifts in the day was targeted to youths, general public and civil society members. Transportation facility was also arranged to bring visitors to KSL from the city. About 1800 visitors observed the program.

The program started with the welcome speech by Asst. Prof. Kumar Ignam that was followed by speech from Mr. Anil Kumar Shrestha on behalf of students. Assoc. Prof. Yubaraj Sangroula highlighted on the objectives of the program and summoned for the similar effort from every individual and institutions to facilitate the national mission of constituent assembly. In his speech he urged the government and donor agencies to support and engage university students in massive civic education on constituent assembly. He also urged that citizens should work with a deeper sense of 'citizens for nations'. More voters must be able to participate in constituent assembly election for the desired result of country's transformation to development and bureaucratic stability. He made an earnest request to think in providing access to voting for constituent assembly to non residential Nepalese in foreign countries.

Chief Guest, Mr. Bhojraj Pokharel inaugurated the program and said that election of constituent assembly on November is the dire need of the country and pressure should be built to government and political parties to conduct the election in the estimated time. He also shared about how the election commission will work in near future to provide voter education to youths and other human resources of the country covering a wider range of work area and people. He suggested that similar activity that has been initiated by Kathmandu School of Law should also be conducted in a wide range in the country, which will facilitate in conducting free and fair constituent assembly election. He concluded his remarks by thanking KSL for initiating such program.


Chief Guest Inaugurating the Program

Taranath Dahal, Chairman of National News Agency (RSS) thanked KSL for organizing the program of national interest. He highlighted on how media can play important role in educating people about all sorts of issues of the country and encourage maximum people's participation. He emphasized that media is a key agent to inform people and if people and government coordinate with media, it will give multiple results in such national efforts.

After the inauguration, participants were invited to observe different programs. Some went to observe demonstration on electoral process, some to observe the display, and others went to participate in presentations on 'Swiss Federalism & Comparative overview of Other Federal States', 'Diversity and  Unity', and 'Proposed Scheme of Federalism' by Benoît MEYER-BISCH, a Swiss Lawyer, Assoc. Prof. HK Rana and Assoc. Prof. Yubaraj Sangroula respectively.

Similarly, conference room of KSL was crowded to know about the resource materials published on constituent assembly and to purchase them. Seven organizations displayed their publications. They were: Institute of Governance and Development (IGD), Constituent Assembly Support Unit (CASU) – UNDP, Centre for Legal Research and Resource Development (CeLRRd), Kathmandu School of Law (KSL), Newa Dey Daboo, Coalition for Constituent Assembly Support (CoCAS), and National Coalition Against Racial Discrimination (NCARD). NEMA made a presentation on its objectives and activities to conduct fair and free election.


Presentation/ Display of Materials

Major attraction of the program was the demonstration on modalities and processes of different electoral systems arranged in four separate halls.  All the rooms were crowded with visitors to observe the graphical and pictorial presentation and simulation prepared by the students and faculties of KSL. Visitors were keen to learn about different electoral systems by observing different electoral systems and asking various questions to the demonstrators.

First Past the Post System
In room 1, demonstration was focused on First Past the Post System (FPTP). The presenters used charts, paintings, maps which provided pictorial glimpse of the FPTP. Seven presenters demonstrate the system giving introduction, merits, demerits, process, and comments of this electoral system. They demonstrated on how the voting should be done under this system, how ballot paper should be folded and how the counting is made etc. Visitors were provided with a leaflet describing this system.

Majority election system
Same methodology was applied to demonstrate this system. Demonstrators used pictorial description to clarify the information. As this election is not applied in our country Nepal, more queries were raised by the participants.

Proportional election system
All together ten students made a presentation on the proportional election system highlighting on its introduction, types, process, merits and demerits. They also briefed about the parallel election system, mixed member representation system and list proportional election system.

In the present context, mostly debate is ongoing for this system. Basically Nepal hadn't followed this election system and people are not well educated about it. Presenters highlighted on the need of proportional election system as all inclusive in present scenario of Nepal. There was discussion on if the system is pertinent for Nepal and exploring on its merits and demerits. Faculty members also facilitated answering the queries.

Preferential election system
Six students presented on introduction, process, merits, demerits and comments of Preferential Election System. They also showed the process of vote counting system, process of giving preferment to the candidate and how the candidate wins etc. They also used the PowerPoint presentation, picture and chart. They also briefed about the country which follows the preferential voting system and whether it was really applicable to achieve inclusiveness or not.

The program concluded with the review meeting in which it was discussed that the program explored potentiality of youths to assist the national mission of constituent assembly. The program fulfilled its objective by clarifying a mass of people about different modalities and process and relevance of different electoral systems.


Demonstrations

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Feature Article

 

 

 

 

Why Federalism is Necessary?

The political scenario is facing crisis to attain legitimacy. Over the last one year, the crisis is

mainly deepening owing to obstinate decline to understand the ‘gravity of the problem’. The

game hatched to ‘prolong the uncertainty’ of the course of unfolding resolution of the crisis is

thwarting the positive transformation of the ‘politics to progress’. The safety of the society is

vulnerable. The breakdown of law and order is serious. The diversity of the population, culture,

geography is gradually marching towards adversely affecting the unity of the country.

In India, for instance, over two dozen civilizations and many languages and ethnic groups have

been able to ‘create it a nation’. Prior to Britis h colonial consolidation, the India as a nation was

not in existence. In fact, several kingdoms existed independently. British rulers unified Indian

states for the purpose of ‘facilitating the revenue collection’ by creating a ‘centralized

government system’. However, the independence movement utilized this development as a boon

to oust ‘empire’, as the colonial domination educated ‘Hindustani’ of importance of unity and

necessity to fight for independence emerging above the ‘regionalism’. Political leaders from

many parts of India under leadership and guidance of Gandhi united to ‘fight against the colonial

rule’ with commitment to ‘build India a democratic’ nation. This scheme thus made ‘democracy’

as the basis of ‘unity of various civilizations, languages and ethnic diversity’. India in the wake

of fight against colonial rule realized that the ‘co-existence and harmony’ of different

civilizations and other diversities could be protected only if the ‘democracy’ was made a

common platform. It was the most prudent ‘vision’ of Ghandi and other leaders. India was thus

declared as a ‘secular state’, which did not recognize any religion or culture as the ‘religion or

culture of India’. Indeed, all civilizations, religions and cultures as well as languages were

recognized as assets of India nation. The democratic principles and institutions were thus made

the ‘basis of India as nation state’.

Another example is the ‘Switzerland’. Switzerland too is a secular state, which has made the

‘democracy’ as the basis of the unity of the nation. Now the question is why Nepal cannot make

the ‘democratic principles and institutions’ as the basis of ‘nation state’. Most importantly, the

political parties have failed to ‘consider the restructuring mission’ from this perspective. Political

parties have failed to ‘win over the trust’ of population with ethnic, linguistic and other

diversities. There are two important issues to consider for ‘giving the discussion of restructuring

of the state’ a definite and meaningful shape. Firstly, the political parties must be aware and clear

on ‘the principle of federality’. Are they going to adopt ‘asymmetrical or symmetrical’ approach

while implementing the plan of ‘federalism’? India has followed the ‘symmetrical model’. In this

model, the powers, authority and privileges of constituent provinces or states are ‘clearly

outlined by the Constitution’, and thus ‘constituent provinces or states’ can possess only those

powers, authorities and privileges that are clearly spelt out in the Constitution. All other residue

powers remain with the ‘central authority’. Canada has adopted ‘both symmetrical and

asymmetrical models. Some provinces in Canada can enjoy only those powers, authority and

privileges that ‘outlined by the constitution’. While some provinces have all those powers,

authorities and privileges’ except those that specifically spelt out as powers, authorities and

privileges of the central authority. In asymmetrical model, to simplify, the central authority’s

powers, authorities and privileges are determined, and outlined precisely, and rest other powers,

authorities and privileges are left for the constituent provinces or states. USA has followed this

model. The concept of ‘autonomy largely follow’ the asymmetrical model.

Another important issue relate to ‘demarcation of the geographical boundaries of provinces’.

There may be several principles to follow while demarcating the ‘boundaries’ of the provinces.

However, while doing so, the question as to why ‘the province’s boundaries are set in that shape

must have a clear answer in the minds of people. Creating a province is thus not merely a matter

of ‘political decision’. One of the most important principles to consider while creating provinces

is the ‘sentiment’ of the people. A territory ge nerally has a ‘sentiment of people’ for

connectivity of the people. It might be a ‘history’, culture, language, civilization, unique

character of geography, and so on. However, the creation of a province, without any sentimental

connectivity, might be doomed to function or ‘emerge as a unit of the state’. The political parties

have also failed to analyze the situation from this perspective.

The idea of creation of provinces in any nation state is necessitated by the need of ‘vertical

distribution of the powers’, which in turn is necessary to ‘consolidate the democracy and prevent

the circumstance of central authority as despotic nation or tyranny’. At this point the remarkable

point to remember is that ‘the restructuring of the nation should be governed by two important

needs, the first being the need ‘of consolidating democracy through vertical distribution of

powers’, and the second being the need of ‘maintaining the secular character of the nation’. The

federalism therefore is not a ‘concept of dividing the nation into communal units’.

The democracy, however, does not function in failure of recognizing the ‘diversity’ as a basis of

the unity of nation. In this context, the restructuring policy of Nepal is a ‘drive to transform the

Nepal from its feudal, monolithic and static characters to a ‘democratic, divergent and

progressive’ nation state. The constitutionalization of the recognition of cultures, languages and

other attributes of population is the only basis of the ‘unity of Nepal’. The restructuring policy

therefore must give attention generous and deep attention to these issues. The character of a

territory to have been settled by a ‘particular ethnic group’ might provide a basis for

‘sentimental’ basis for ‘boundaries of the province. Obviously, there is no danger to ‘determine

the basis of federalism’ on such sentimental grounds. The determination of federalism on this

ground can never mean that ‘the creation of federal unit’ on such ground is going to give a

‘special power to a group of people’. It is so because ‘the democracy does not allow to ‘exclude

people’ on any ground. The determination of the boundaries of a ‘province is to mean a process

of vertical distribution of powers of the state on the basis of ethnic sentimental connectivity’ of

people, but it should never mean in any sense an idea that the ‘vertical distribution of state

powers based on sentimental connectivity’ of the people provides ‘a basis for a group to isolate

or exclude others’ residing in that territory’. The concept of ‘ethnic federalism’ with a sense of

special privilege to a group at the cost of exclusion of other is defective on the basis of principles

of democracy as well as ‘integrity’ of the nation. The powers to devolve to a ‘provincial or state

unit’ are not the ‘special privileges of a group of people’, rather they are the powers of

constituent province to ‘consolidate democracy, progress and protect heterogeneity’ of the

society.

The ‘constitutionalization of the heterogeneity of culture, languages and other similar attributes

with a view to prevent the State being autocratic, discriminatory and monolithic power center,

and to ‘consolidate the freedoms of people with all powers to rule themselves democratically’ are

the basic needs for ‘restructuring the Nepalese state’. Historically, Nepal has been stubbornly

ruled by a ‘elite group’ to the complete exclusion of entire population. The elite group has

imposed a typical culture and religion as the fundamental attribute of the Nepal’s identity. The

federalism is therefore necessary to empower people to ‘have self- governance’. The right to selfdetermination

of a group within a nation thus must be understood as a right to ‘socio-economic

and political empowerment’ as an essential population constituent of the nation. Within a nation,

as opposed to a colony, the group of people has no right to ‘self-determination’ meaning the right

to secede the country. The federalism thus cannot be prelude to ‘a movement to secede’ the

nation. The concept of federalism in Nepal is thus an idea of ‘breaking or eliminating the

political domination of an elite group’, which, by centralizing the powers with a so-called central

authority, has been monopolizing the governance powers to the exclusion of cultural and

linguistic indigenous communities. The scheme of the restructuring should therefore adopt some

principles as indispensable elements for national integrity. Firstly, it should recognize that the

‘equality of all cultures and languages’ is the only basis of the national unity, and for this the

federalism is indispensable. Secondly, in society like Nepal which has been exclusively ruled by

a centralized form of government captured by a group cannot transform to ‘democratic society’

by devolving the powers vertically so as to enable to all groups to exercise the powers to rule.

The federalism is thus necessary to transform Nepal into a ‘nation state’, belonging to every

Nepali equally. Thirdly, the federalism is basis for ‘consolidating the democracy’, without which

the ‘protection of individual liberty is impossible’. Finally, the federalism is means of

‘promoting the individual liberty and freedoms’. To see from this perspective, the scheme of

federalism must be agreed by all population, and its characters need to be set forth by consensus.

Without consensus the ‘scheme of federalism’ might be a source of conflict among people.

(Published in The Kathmandu Post)

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