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

E-Bulletin (Vol 83)

1st August 07

Past Volumes

 

News

   

Features Article

   

KSL announces admission open in LL.B program for the academic session 2007.
Admission Orientation is being conducted every Sunday at KSL. Interested candidate can register his/her name at KSL reception. For detail: dial 6634455/ 6634663 or visit www.ksl.edu.np

 

News

       

 Orientation on Constituent Assembly to Nepal Police

Kathmandu School of Law organized two days orientation program on process and modalities of constituent assembly, and different electoral systems to 120 police officers of Kathmandu valley. Upon request of Metropolitan Police Council, Bhaktapur the program was organized in order to acquaint police officers of all levels with different aspects of constituent assembly, international experiences, and processes and modalities of electoral system particularly mixed election system. Dr. Yubaraj Sangroula, Associate Professor and Mr. Kumar Ignam, Assistant Professor of KSL rendered as resource persons for the program. The program was organized at KSL Seminar Hall on 22 and 23 July 2007.

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Consultative Workshop on Review of Laws relating to Disenfranchised Communities

KSL organized a two-day consultative workshop at Nagarkot on 29 July, 2007 to review the Nepalese laws on citizenship, land ownership, election and different other laws relating to disenfranchised communities' access to justice. The objective of the programme was to identify the discriminatory provisions which restrict disenfranchised communities from enjoying their rights, and to prepare legislative proposals for inclusion of their rights in the forth coming constitution and laws.

 

The workshop discussed on the draft report prepared by a team of students on the objective of the selected laws, important provisions made by the law, and weaknesses and issues not addressed by the law in relation to the rights of the disenfranchised communities. All the reports were prepared in supervision of the faculty. Ms. Dikchhya Koirala and Sandhya Sitoula presented the findings on Land Ownership, Mr. Pralhad Bhattarai and Basanta Poudel presented on Citizenship, Mr. Saroj Raj Regmi and Bhavesh Gautam presented on Access to Justice, and Ms. Reena Pathak and Supriti Timalsena made their presentation on Electoral and Employment Laws.

 

Intensive discussions were held on each issue. Four different groups were formed to make recommendation on the provisions to be incorporated in amending the laws. Each group summarized the issues raised by the participants on discussion and prepared their report overnight. One of the major findings of the workshop was that provisions of many legal instruments are unfriendly to disenfranchised communities. Each Act has been enacted with good intention but none of them has made explicit provisions for the rights of disenfranchised communities.  

 

A concrete report will be prepared incorporating the findings made by the workshop. This report will draw up a concrete set of recommendations for necessary intervention in the laws. Finally, a draft of amendment in laws will be prepared in order to ensure the rights of disenfranchised communities in the forthcoming constitution or laws in relation to their legal rights concerning land holdings, electoral process and right, citizenship and employment opportunities.   

Teachers' Training on Philosophy and Research Methodology
KSL organized teachers' training on Philosophy and Research Methodology to be applied during teaching at Human Resource Development Unit, Nagarkot. The training was intended to enhance teachers' capability in understanding philosophy and applying various methodologies of research in teaching law. Major topics covered in the training included introduction and concept of philosophy; science and metaphysics; perception building; methods of drawing reasoning; research design and formulating research problem. The program also briefly reviewed the curriculum of LL.B program and its teaching modalities.
Impact Assessment of CoCAS civic education

Impact assessment of CoCAS civic education in Eastern region started on June 21 and completed on June 30, 2007. The assessment was done by randomly selecting 32 VDCs in which civic education meetings were held. Out of 800 VDCs, civic education meetings have been held in 50 VDCs of every district. Impact assessment was conducted by asking 50 questions on Constituent Assembly to the participants before and after participating in VDCs level civic education meeting. Coordinator of one District had done assessment of another District. Pre-test and post-test results of the impact assessment are as given below:

SN

Date

Districts

Venue

Pre- Test Value in %

Post- Test Value in %

Evaluators

1.     

21/06/2007

Morang

Tetariya

36.06

78.68

Damber Khatiwada

2.     

23/06/2007

Belbari

42.62

90.16

3.     

29/06/2007

Jhapa

Baniyani

46.00

95.00

Ram Rana

4.     

30/06/2007

Mechi M.

65.05

90.16

5.     

24/06/2007

Taplegung

Phungling

26.21

86.88

Ganga Prasad Chemjong

6.     

25/06/2007

Thechambu

45.89

93.21

7.     

23/06/2007

Saptari

Khojpur

19.67

75.40

Rabindra Chaudhary

8.     

24/06/2007

Haripur

19.00

75.40

9.     

27/06/2007

Terhathum

Morahang

26.22

95.14

Bhim Rai

10. 

29/06/2007

Dangpa

39.34

85.24

11. 

25/06/2007

Ilam

Phikkal

65.57

93.44

Pabitra Niraula

12. 

26/06/2007

Godak

68.85

90.16

13. 

27/06/2007

Panchthar

Yangnam

54.09

90.16

Keshar Kumar Subba

14. 

28/06/2007

Nagin

34.42

86.88

15. 

27/06/2007

Sankhuwasabha

Chainpur

45.00

93.00

Bikash Rai

16. 

28/06/2007

Baneshor

59.00

96.72

17. 

26/06/2007

Solukhumbu

Grama

22.95

78.68

Lal Bahadur Shrestha

18. 

28/06/2007

Kerung

19.67

90.16

19. 

25/06/2007

Siraha

Durgapur

34.42

67.21

Durga Nanda Chaudhary

20. 

26/06/2007

Bhawanipur

39.34

72.13

21. 

22/06/2007

Bhojpur

Dingla

22.95

73.77

Badri Nath Karki

22. 

24/06/2007

Deurali

45.90

73.77

23. 

27/06/2007

Okhaldhunga

Barnalu

37.70

80.32

Angnima Lama

24. 

28/06/2007

Okhaldunga

27.86

72.13

25. 

21/06/2007

Sunsari

Dumraha

55.73

90.16

Bhuwan Kumar Dimal

26. 

27/06/2007

Panchkanya

34.42

85.24

27. 

24/06/2007

Khotang

Bahunidada

31.14

80.32

Sakuntala Chaudhari

28. 

25/06/2007

Dikuwa

27.86

83.60

29. 

24/06/2007

Udayapur

Hadiya

43.41

90.16

Dinesh Rai

30. 

25/06/2007

Tribeni

36.06

96.72

31. 

22/06/2007

Dhankuta

Santang

60.65

73.77

Bishnu Bikram Subba

32. 

23/06/2007

Muga

29.00

80.32

 Pre-test average: 39.43906%

Post-test average: 84.50281%

Improvement: 45.06375%

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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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Kathmandu School of Law          / Telephone : 977-01-634455/6634663, 2042268
Dadhikot, Bhaktapur                   /   Fax           : 977-01-634801
Kathmandu, Nepal                     /   E-mail       : info@ksl.edu.np        Web   :  www.ksl.edu.np