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

E-Bulletin (Vol 59)

1 July, 2006

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Declaration Adopted in the National Symposium on Constituent Assembly and Inclusive Democracy

Common Understandings

It was perceived that Nepalese people's struggle for democracy, continued since before 1950 AD, came to a logical end  in the year 1990 with the restoration of multiparty system and constitutional monarchy by the promulgation of the new constitution. The peoples’ movement of 1989 AD was ended with an unwritten agreement between the king and the political parties. However, the political parties failed to institutionalize the peoples’ supremacy in the constitution. As a result, although Article 3 of the constitution provided popular sovereignty, that did not materialize accordingly. Instead, it is indisputable that impliedly the King was kept above the people by constitutionally immunizing the king from accountability and by providing privilege to the King that his decisions would not be a matter of review by court. One of the important principles of constitutionalism is that the implication and effectiveness of a constitution lies on the values adopted by it. But the Constitution of 1990 had embodied the following faulty values that have led to the necessity of making new constitution.

1.       Consensus governance system was essential in a country like Nepal which has diversity of ethnicity, language, religion, culture, region and race. However, the constitution established a system of governing majority by minority with the introduction of West-Minster model of government based on traditional British practice. This system ultimately established Majority Authoritarianism.

2.       Instead of recognizing the plurality and diversity as the core value and basis of national unity, the Constitution of the Kingdom of Nepal 1990 established political monopoly and subordination of handful of elite people. As a result, constitution couldn’t enshrine the scheme of equality and upliftment of the socially ostracized and economically, politically, caste wise and spatially deprived huge population.

3.       Failing to recognize the economic and social rights including the basic needs of the population such as the rights to food and shelter, right to development, and right to health, particularly right to reproductive health of women as fundamental rights, the Constitution out-rightly denied the right to life of the extremely poor and backward population.  The basic spirit of the constitution was thus apparently exclusive, not inclusive. It fully avoided the notion of inclusiveness in democracy, and ultimately this perpetuated the exclusion of the majority of population in economic, social and political process. Consequently, people were divided as ruler and the ruled.

4.       The Constitution neglected the need of ‘inclusiveness’ within the political parties and their accountability towards people. As a result, political parties disguised themselves as a selfish club of the elite where, selfish, greedy, corrupted, and person with traditional mindset against notion of equality found enough place. The irony is the political parties burdened with the function of institutionalizing democracy, couldn’t establish democratic practices within themselves.

5.       The structure of the state was constructed unitary and centralized that brought local bodies to a complete control of the center instead of making local governance autonomous. Bureaucracy was made master of representatives elected by the people and a system of governance was institutionalized where male elite class employees and police rule over the people at large. 

Points of Conceptual Consensus

Because of all those erroneous provisions, Nepalese state system was kept under the full control of privileged class and bureaucracy which was made by hand full of elite group who were actively engaged on conspiracy against Dalit, ethnic group, linguistic minority and women. This on one hand lead country towards the violent conflict and on the other it created the dominance of rich, handful Brahmin and some Newar and Chhetri over political, economic and social development, resulting in the increase of gap of inequality.

People’s movement of 2006 was not merely under the agenda of any political party; rather it was the people’s revolution against faulty constitutional provisions. Thus, the upcoming constitution shouldn't be made on the mere interest of political parties that is why the process of making of upcoming constitution is called constituent assembly. Therefore, we, the participants of this conference, express our commitment that the election of Constituent Assembly should fully ensure the notion of thoughtful inclusion.

Observing the erroneous assumptions made by the previous constitution, the process and structure of constituent assembly could be thought off after the adequate exercise on the content on the constitution. Therefore, the following concepts are presented as points of concurrence.

1) Forthcoming constitution and its fundamental values:   Multiparty democratic system, inclusiveness in all the organs and sectors of the state, rights for the local government as well as clear demarcation of central and local government, welfare economic system and elimination of the concepts of feudalistic institutions etc must be adopted as fundamental principles. Therefore, we participants believe that the concept of unconditional constituent assembly is not scientific and pragmatic. The new constitution should provide the full independence of the individuals and that should be the objective to build new Nepal.

2) The authority to constitute and proclaim the constitution should be given to the constituent assembly as it is the assembly of the people.

3) The forthcoming constitution should, in line with the protection and promotion of socio-economic rights, accept people’s basic necessities as fundamental rights.

4) The constitution should provide people with the authority of making their choice in continuing or overthrowing any institution or system by means of final decision-making through referendum.

Recommendations to the Government and Political Parties

We, the participants of the symposium, recommend the following points for the government and the political parties to adopt constituent assembly that constructs constitution with fundamental values as stated above:

1)            To transform all the rights directed by the House of Representatives as per its resolution and constitute national government as soon as possible with the participation of all the concerned parties including the Maoists.

2)             Expressing serious concern over the undue delay in constituting national government, monitoring agreement for the purpose of management and control of the Nepal army and Maoists people’s army, ceasefire agreement and peace agreement including election code of conduct and respect of fundamental achievement of the constitution; and being aware of the symptoms of some unwanted conspiracy and development against the constituent assembly election, to call all the concerned parties to carry out their responsibility sincerely.

3)            Realizing the jeopardy of failing to provide outlet of the political disputes by the Interim Constitution without first conducting peace agreement and keeping in view that the peace agreement could only legitimize the Interim Constitution, to immediately declare Interim Constitution reflecting the accord made in the peace agreement.

4)             To declare Constituent Assembly Election Act according to the provision envisioned in the Interim Constitution.

5)            To devise provision of proportionate electoral system in the Constituent Assembly Election Act and form a National Advisory Committee entitled "Election Procedure and Election Area Advisory Committee" comprising representatives from different ethnic groups, language, religion, culture, region, race, gender and political ideology and make detail arrangement and decisions on the related issues as per its advice.

Putting parliament in the inactivated state we call upon all the Seven Party and the Maoist to take major decisions through political conference and implement it accordingly after getting approval of it from the parliament as per the necessity.

Participants' Commitments

For building a national consensus as stated above; we, the participants of the symposium, affirm our personal and organizational commitments as following:

1.       To establish Constituent Assembly Civil Concern Centers in capital and district headquarters comprised of social workers, teachers, students, workers, representatives of community institutions and others, and promote civic  awareness to facilitate the process of Constituent Assembly.    

2.       To generate step-wise public and civic awareness programmes in a community level, without expecting the support of the donors, for meaningful participation of the deprived class people on constituent assembly election.

3.       To coordinate with, in order to ensure programme effectiveness, other local organizations in the district with similar programmes and activities.

4.       To conduct all the awareness and sensitization programmes with full neutrality and without bias to any political party and ideology.

5.       To address all kinds of Citizenship problem prior to the Constituent Assembly election to ensure full public participation.

6.       To establish full ownership of the constitution to the people, the term 'inclusion' should be defined so as to ensure the meaningful representation of ethnic groups, language, religion, culture, region, gender and race in the Constituent Assembly.

We, the participants attending the symposium, adopt this declaration consensually.  

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Discussion with Advocates of Supreme Court, Nepal

A discussion programme was held at KSL with the team of candidates from the Professional Panel for the election of Supreme Court Bar Association. The team was on visit of KSL on 1st July, 2006 to ask for votes in course of their election campaign. KSL has a number of law teachers and practicing lawyers who also holds the general membership of the Supreme Court Bar Association.

Welcoming the team, Assoc. Prof. Yubaraj Sangroula shared that the collaboration between Law Schools and Bar Associations is instrumental in transforming the existing traditional legal profession into the community responsive and dignified legal profession. He assured that the voters of KSL will decide on casting their votes only after looking the policy and programmes of the team and commitment made by them in promoting and institutionalizing the legal education. He also expressed his concern on the commitment of the Bar personals to assist legal education sector and asked the team to present their commitment towards promoting legal education in the country. He asked the panel on what they have done to attract the new generation in the legal sector. He expressed his dissatisfaction that neither the government, nor the University and the Bar Association has come forward to support the noble idea of establishing and promoting pioneering law school in the country. Citing number of instances, he also mentioned the non-cooperative attitude of the people in Judiciary towards law school. He stressed that Legal Education and Bar is related to each other. "If the legal education sector receives active and meaningful support from the Bar, it will enhance the quality of the future Bar Members and that will consequently promote the legal sector and efficiency of Bar Association", he added. He also expressed his concern on dormant attitude of state, university, authorities, bar and donor community towards to support students from dalit and marginalized groups for legal education.

 At the programme, on behalf of the teachers of KSL, Asst. Prof. Ashish Adhikari expressed his concern on the issue of double standard in granting the membership on different levels of Bar Committee. Students of KSL Barun Ghimire, Laxmi Sapkota, Sunil Ranjan Singh, Narayan Prasad Giri, and Ram Raut also raised their concern on various issues like inclusion of women and marginalized in the team, isolation of the legal education sector from the bar and other judicial bodies, lack of cooperation between bar association and law school on agenda of legal reform and promotion and institutionalization of law schools in the country, and non-cooperative attitude of personnel of the Judicial Bodies. Importantly they raised their concern on exclusion of women, dalit and janajati in legal profession. 

Presidential candidate of the election Advocate Sitaram Tiwari and Secretarial candidate advocate Shiva Prasad Rijal informed the participants about their future work plans and programmes to uplift Nepalese legal education sector. They also expressed their commitment on promoting legal education in the country. They promised that they will continually involve in developing legal education by establishing Legal Education Promotion Committee within Supreme Court Bar Association. "We are having difficulties in filing a single women candidate and representative from the marginalized communities in a team because of a very low number of them in practice. In these circumstances, contribution made by KSL in a very short period is tremendous in the legal education sector and in making legal profession a dignified profession", they shared.  

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Intensive Training on Fair Trial and Development of Skills of Using International Human Rights Laws in Domestic Situation

CeLRRd conducted a four days residential training on Fair Trial and Development of Skills of Using International Human Rights Laws in Domestic Situation from 14 June, 2006 in Chitwan district. The training provided intensive knowledge about fair trial, its principle and practices and skills to domesticating international human rights laws in context of criminal justice.

The training aimed at helping lawyers to effectively practice the international human rights, including UN committee jurisprudence and bridge gap between knowledge on human rights law and its prevalent practice.

Assoc. Prof. Yubaraj Sangroula, KSL; Hon'ble Justice Hari Kumar Pokharel, Chitwan District; Mr. Om Prakash Aryal, District Attorney General; Mr. Kedar Prakash Saud (Prahari Uparichyak), Asst. Prof. Sudeep Gautam, KSL; Mr. Bal Krishna Dhakal, Secretary, NaLAN, Mr. Ram Prasad Aryal, Counselor, KSL PLA Clinic were the resource persons for the program.

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Feature Article

 

 

 

 

Mahabharata range – victim of immoral actions

On my flight to Nepalgunj from Kathmandu on March 24th 2006, I saw from air a sight very alarming but yet concealed in the womb of present political crisis – a massive desertification of whole Mahabharata range. Undisputedly this issue of desertification will be a major concern, politically, socially and economically once the present political conflict ends. This is already a potential ‘bomb’ waiting to explode within next decade if state and all the likeminded people and organizations do not take appropriate actions and devise policies. It’s an explicit message for the people living in Mahabharata range that present environmental and human problems cannot be understood or addressed in isolation from each other. By looking at the trend of immoral actions occurring in Mahabharata range's fragile ecosystem the earlier message seems to have been largely ignored as the statistics of deforestation are shocking. The problem of desertification in Mahabharata range has multifaceted effects on food security, health, climatic condition, hydrology, freedom of choices and many minor ecological functioning on both the Mahabharata range and the lower plains of south.

Mahabharata range embraces exceptional biodiversity and the benefits brought about by the ecosystems are manifold. To synchronize the benefit we have to establish linkages among biodiversity, ecosystem services and human well-being, mainly through supporting services and expressing freedom and choices. The continuing loss of biodiversity in Mahabharata means losing nature’s services that are essential for humanity. As an environmentalist my mind floated to find out what seeded the problem. The 1990 relatively open democratic era no doubt paved way for sound policies in forest management. As such many progressive policies in Natural Resource Conservation were drafted or rejuvenated and were put into action. Increasing populations of leopard in the mid hills and some areas of Mahabharata notably indicated the success of community forest programs.

Following the 1972 Stockholm Conference on the Human Environment and Earth Summit in 1992, Nepal developed a substantial body of environmental law and regulations under the then Ministry of Population and Environment dealing with the protection of the environment and the management of natural resources. In last few decade people of Nepal have been sensitized on the need for resource conservation and management. Hence the lack of sensitization is not a problem since we often hear widespread public concern over pollution led to legislation to curb emissions of effluents and airborne pollutants, similarly concerns over the depletion of natural resources led to legislation for resource conservation and the preservation of areas of special biological value. The problem is all these legislation were more comprehensive than sectoral-based, consequently institutions of environmental governance and protection were not strengthened. The development activities should have been based on the needs and demands of the people, which state ignored on the account of indictment of illiteracy rate of people of Mahabharata. This action of state since 1950's have visibly created a distinct demarcation between the people and the state, the state recognized these people as not a partner for conservation but as a destructor of natural resources. They have been marginalized from all arenas of political, social and economic rights without recognizing their stewardship which is closely linked to the sustainability of life in lowland areas. The short sight ness of state has encouraged migration of many mountain young and productive people in search of supplementary incomes or better opportunities in low land. The village is left only with children, women and elderly people. Women no doubt can play significant, or even dominant, in the sphere of production as they are the pivotal of family unit bearing a major responsibility for agriculture, forest, and other natural resource management as well as for their family's well-being provided they manage some time from the household chores. Without men the women must assume greater proportion of management of resources which is almost impossible. The absence of male figure is often taken advantage by the unscrupulous players who flood to take advantage of the resources of the range largely by cutting the forest, thus intensifying desertification. Nepal has excellent customary laws regarding the sustainable use of resources. Along with the migration many traditional values (customary laws) are eroded and hence replaced by the alien values which are definitely not congenial for the protection of resources.

Added the process of desertification the problem has been further triggered by the government’s decision to provide financial incentive to each VDC to enhance the livelihood of people promoted many to dig roads throughout Mahabharata range without considering the ecological backlash. The delicate ecological balance in the young and unstable range had been upset, increasing the extent of erosion and the number of landsides. Many people realized latter that they are fighting a loosing battle against the ecological destruction. In addition to competing for these products men and commercial interests, unite together to fulfill their fruitless wish. The situation has been made worse by the ever increasing pressure of population on limited land resources, which has resulted in the increasing deforestation and consequently an excellent way out for desertification.

 Other being through out Nepal the prime examples of ineffective policies in Nepal are the nationalization of private forests in 1957, and the Forest Act of 1961, which created a perverse incentive structure leading to the steady degradation of forests. Private land was not surveyed when forests were nationalized, which further contributed towards ecological destruction. Nationalization of forests in 1957 and subsequent survey and registration of private land in 1960 provided further inducement to convert forests into agriculture land. Detailed cadastral surveys of Nepal started only in 1960, with the formulation of the Land Act. The Forest Act of 1961 allowed HMG foresters to issue permits to harvest trees for subsistence needs only. It’s an established phenomenon, when people the guarders of the forest have been excluded from the long practiced sustainable use of forest then the idea of conservation severely fails. The policing and other controlling tasks of the forest staff in terms of law enforcement aggravated the deforestation in Mahabharata range.

Now the question is what measures ought to be adopted to answer the problem at initial stage? The state should hear opinions and suggestions of local mountain people (Mahabharata) who have the sophisticated knowledge to manage a multiplicity of roles and small production systems to adapt and survive in a fragile environment. The state and other institutions should promote return of men to their own villages and revive the indigenous laws that preserves and uses the forest products. Nepal Government should take action to reconcile trade and environmental interests, through the development of trade-environment related policies aimed at fostering the local eco-friendly products through out the range. Lastly a greater role can be played by the amendment to the criminal law and recognizing and strengthening as a mandatory aspect of environmental protection.

(Writer is a Resource Officer in the Kathmandu School of Law)

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