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

E-Bulletin (Vol 73)

4 March, 2007

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Interaction Program on Federalism

An interaction program on Concept of Federalism was conducted at KSL on 23rd February 2007 in order to expedite discussion on its critical dimensions and to share experiences of other federal countries on its different aspects. Associate Prof. HK Rana of KSL welcomed the guests and highlighted on the importance of discussion on technical issues of federalism. Mr. Abhisekh Gazmer, LL.B 1st Year put forwarded a query about the prospects, challenges and consequences of federalism particularly in the context of group autonomy and in the present context of socio economic and political practices in Nepal. In answering the query, Professor Yash Ghai, Constitutional Expert, and Associate Prof. Yubaraj Sangroula, Expert on Constitutional Jurisprudence talked about the critical dimensions of Federalism, importance of technical and legal aspects of federalism, and effects and shortcomings of the federalism.

Addressing the question, Prof. Ghai opined that question of federalism is central in formation of the constitution and re-structuring of the state. "The international practices on constitution while mentioning about the restructuring of the state also mention about federalism," he mentioned.

Federalism is a system of government with central as well as federal units, division of power and distribution of power to all levels of government. Federalism is generally applied in the country having larger economy and diversity. In United States which has a larger economy, Federalism is functioning well as they are national states. Each state maintains its own sovereignty and has its own laws, electoral system, government policies as such. They give only some power to central level government and the federation is operating successfully, he said.  

In the country with vast geographical spaces, it is difficult to control from the center. In such situation motif of federation should be all inclusive accommodating all aspects of the society. In such context, new kind of decentralization is always a challenge.

Prof. Ghai shared that in context of Nepal, divided opinions on federalism are in forefront. Some opine that self government should be given to the ethnic groups such as Janajati, Madhesi etc. and they should have state autonomy to regulate its own governance. They depict illustrations of preservation of group autonomy as in Hong Kong and Kashmir.  Others opine that federalism should not be based on caste, ethnicity but on geographical spaces and resources. Some say federalism is not practicable in the country as sovereignty should be maintained within the country.

There are many kinds of federal systems: ethnic, geographical as such. Even within geographical basis there are different kinds of federal systems. Variations exist in each system. There cannot be a straight forward debate on whether federalism is needed or is good or bad, he added.

"In context of Nepal, implications should be analyzed on whether to go for federalism or not. One should identify whether Nepal needs ethnic federalism or another alternative system that focuses on current national laws and policies of Nepal," Prof. Ghai concluded.

Floor was opened for discussion after his remarks. Participants and professors discussed about setting of commission to observe and monitor the federal system that can ensure the inclusiveness in ethnic or territory based federation. It discussed that historically, Federation does not last long in bi-communal states. For instance, central government of Sweden can anytime change power. Frequent conflicts and controversies may arise between local and central level in such federal states. And traditionally court has played important role in resolving these disputes. However, there are other alternatives like ADR, Mediation to resolve these conflicts. E.g. South African Constitution has mentioned about ADR.

In discussion about the possibility of overlapping of variations of federation (For instance, even within Newar community there are variations; they do not speak same language and follow same culture); Professor Ghai mentioned that in multi ethnic federation, problems are with community and disputes are in local level rather than government. So such problems can be solved by developing some mechanisms to deal with inter ethnic conflicts to address the issue. He illustrated the example of Belgium which has two kids of federation: i) territory based jurisdiction and ii) Cultural jurisdiction. Issues like road, school, and infrastructure are headed by the council under territory based jurisdiction and issues of religion, culture, are considered by council of cultural jurisdiction. In country, if language is problem, language council can be developed so there can be flexibility. From economic perspective, federation tries to create unified economy taking into consideration the decentralization, he added.

In answering the question on suggesting the political parties for adopting federalism maintaining national integrity, Prof. Ghai told that thorough study on the critical dimensions of the federalism is inevitable to conclude that federalism is a final solution. They need to identify other alternative methods, consider national policies, local governance, ethnic classification, economic sources and resources of the people etc. to meet the conclusion. 

Associate Professor Yubaraj Sangroula highlighting on the group autonomy pointed out that federalism has become a 'catchword' to all political parties to invite votes from people. When we discuss about federalism, we should start thinking of many aspects of federalism and identify other alternatives. He added the possibility of identifying civilizations as the basis for federalism in Nepal as many groups are there in different civilization eg. Maithali, Narayani (river based system) which have no particular civilization. In his opinion, federalism is a system of distributing power vertically in a country like ours.

"Federalism can prevent abuse of power on some groups as well as it can ensure participation of all groups. In this sense, federalism promotes nationalism and social progress enhancing people's control over government. Recognition of diversity should be the goal of federalism to be checked by stronger notion of secularism and local self governance," he added.


Participants and Professors at the program
 

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Highlights on CoCAS (Coalition for Constituent Assembly Support)

Center for Legal Research and Resource Development (CeLRRd) is one of the partner organizations of Coalition for Constituent Assembly Support (CoCAS). CoCAS is the Coalition of four partner organizations for Constituent Assembly Support chaired by Assoc. Prof. Yubaraj Sangroula of CeLRRd as rotational chair. The other partner organizations are FWLD, Pro-Public and IGD. The Asia Foundation (TAF) is working as bridge between the donor and the partner organizations. This is an 18-month project funded by Department for International Development (DFID) with an objective to increase public awareness, participation, and accountability in the forthcoming constituent assembly (CA) process in Nepal. By addressing this objective, CoCAS will support the development of a more inclusive, representative, and accountable system of government in Nepal, helping to create an environment that is conducive to long-term peace, stability, and development.

 The project includes three related components: 

 1.  Research and Analysis on Constitutional Issues

Under this component, CoCAS will support research and analysis on national and international experience and practices concerning constituent assemblies and the substantive contents of the constitution. In particular, CoCAS will review laws and constitutional options in relationship to, and with input from, marginalized groups in Nepal. The analyses will be used to inform the public debate and constituent assembly decisions on these issues. Led by CeLRRd, a Technical Working Group will assemble available national and, as appropriate, international material on constitutional matters to inform public education and dialogue.

 2.  Civic and Voter Education and Dialogue

Under this component, CoCAS members and their local partners in all 75 districts of the country will conduct civic education to convey these concepts and issues to the public, and facilitate public dialogue on the choices to be made. The civic education material will be based on the information generated through the research, analyses, and consultations described above.

 3.  Interaction with Constituent Assembly Members

Under this component, CoCAS members and their local partners will facilitate engagement between constituent assembly members and their constituents to help ensure that citizen views, especially those of marginalized groups, are represented in constituent assembly deliberations. 

 CeLRRd is playing the lead role in the project. It has led the thematic analyses of legal, procedural, and content issues surrounding the constituent assembly. Besides, along with the other partners, it has been making arrangements for civic and voters’ education nation wide. Partners divided different working regions among themselves. Accordingly, the Eastern Development Region is the working area of CeLRRd. CeLRRd has planned to finish regional level TOT to 30 facilitators by March 4, 2007 and District Level Facilitators’ training in all districts of Eastern Development Region to be started from March 12, 2007.

 CoCAS has decided to train 30 facilitators from each region and 25 district coordinators from each district to launch the civic and voter education and dialogue campaign. The facilitators and district coordinators are to be trained by regional coordinators and regional coordinators are to be trained by the members of the expert committee. The 25 district coordinators should go to the Village Development Committee (VDC) level and arrange civic and voters education program for at least 50 participants from each VDC. The composition of participants should be inclusive in nature based on gender, caste, class and geography. The district coordinators should make an arrangement for, at least, four meetings in each VDC.

 As per the requirement, a three-day Training of Trainers (TOT) for Civic Education and Critical Dialogue at the Local Level concluded at Hotel View Bhrikuti on February 16, 2007. It was a central level TOT for regional coordinators. Members of the expert committee including CoCAS chair Assoc. Prof. Yubaraj Sangroula disseminated their ideas during the programme.

 Highlighting the issue of “Restructuring of State’s Institutions and Policies,” Assoc. Prof. Sangroula emphasized federalism as a mean, not an end to achieve socio-economic justice. He identified politics as a tool for intervention of an agenda of restructuring of the state to achieve socio-economic justice. He also emphasized on progressive restructuring of government institutions and Political Parties, adoption of Proportional Electoral System and elimination of Anti-Equity Tradition as actions for achievement of nationalism and social progress, diffusion of power concentration, people’s sovereignty and their empowerment. In order to make such achievement, he proposed the approaches like adoption of federality, devolution of powers, constitutionalization of accountability of political parties and adoption of scientific and democratic education.

 Other topics of the training include "Democratization of Political Parties; Diversity and Unity (Inclusive Democracy); Why participatory methodology for constitution making; Fundamental principles of Democracy and Constitutionalism; Constituent election process, representation and decision making; Civil and Political Rights; Economic, Social and Development Rights; Representative Electoral System; Marginalized Groups and Protection; and Devloution of Power. Resource persons of the programme were Asst. Prof. Khagendra Prasai, Asst. Prof. H.K. Rana, Advocate Mukti Rijal, Prof. Kapil Shrestha, Reader Purnaman Shakya, Advocate Kumar Ingnam, and Advocate Sapana Pradhan Malla. Altogether 16 people from four partner organizations participated in the programme.

Earlier, in a sharing meeting on collaboration between CA initiatives organized by Enabling State Programme; Rights, Democracy and Inclusion Fund, Assoc. Prof. Sangroula highlighted on the programmes and activities conducted by CoCAS.

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Seminar on Investigation and Prosecution of Human Trafficking Cases

Upon the invitation of the U.S. Embassy and the U.S. Department of Justice, Assoc. Prof. Yubaraj Sangroula presented the keynote speech for a three-day seminar in Kathmandu from February 14-17, 2007, entitled "Investigation and Prosecution of Human Trafficking Cases". The participants of the seminar included Nepali judges, prosecutors and investigators.

The seminar was sponsored by the U.S. Department of Justice, Office of Overseas Prosecutorial Development, Assistance and Training (OPDAT). The workshop was led by a U.S. federal judge, a trial attorney from the U.S. Child Exploitation and Obscenity Section (CEOS) of the Department of Justice's Criminal Division, and a U.S. Supervisory Special Agent from the Federal Bureau of Investigation.

Presenting his speech, Assoc. Prof. Sangroula introduced the participants about the magnitude of the problem and relevance of the seminar. During the programme, Nepali officials from various governmental agencies outlined the scope of the problem, the infrastructure and resources it is currently employing, and its Wish List for human trafficking prevention, investigation and prosecution.

In an after-lunch session, Department of Justice Trial Attorney Myesha Braden presented international and United States Legal Frameworks Relating to Child Trafficking which was followed by reflections on Nepal's Human Trafficking Offensive by Hon. Thomas McCoun, OPDAT presenters and participants. A roundtable discussion was also held on Trafficking in Children for Prostitution and Labour with an objective of exchanging ideas on refining the criminal justice system in ways that will make its use more sensitive to the needs of children who are victims and witnesses. Local NGO representatives outlined the scope of the problem from their perspective, the infrastructure and resources they have and their Wish List for human trafficking prevention, response, and follow-up.

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KSL and CeLRRd support Bar Council Exam Preparation Class

Kathmandu School of Law (KSL) and Center for Legal Research and Resource Development (CeLRRd) provided logistics and financial support to Law and Development Initiative Nepal (LDIN) to conduct Nepal Bar Council Examination (for Advocate Level) Preparation Classes. LDIN is a non-profit making non-governmental partner organization of CeLRRd working for the institutionalisation of democratic system, rule of law and independence of judiciary. It conducted a twenty five-day intensive Nepal Bar Council Examination Preparation Class which was held on Feb 23-25. The preparation class commenced from 29th January, 2007. LDIN had called for the application from interested law students, which was joined by 14 students from both KSL and Nepal Law Campus. 

According to Kamal Guragai, President of LDIN, all the classes were students' centric and discussion based followed by rigorous practical file preparation classes. The organization also prepared and distributed reading materials for all the participants. The classes were taken by renowned and qualified resource persons and extensive discussions were held on each precedent prescribed in the curriculum. Faculties of teachers of KSL also contributed as resource persons for the programme.

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Petition on Public Interest Litigation
Women's Legal Aid Clinic of KSL, Forum for Women Law and Development (FWLD) and Forum for Protection of Public Interest and Victim have jointly filed a petition on public interest litigation to the Supreme Court of Nepal demanding affordable, assessable and safe abortion services. The petitioners have also demanded that funds should be allocated for poor and needy women for such services.

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Corrigendum
We would like to correct the caption of the first photo in news coverage of U.S. Ambassador's visit to KSL in our E-bulletin-72 which reads "plague" instead of "plaque". We sincerely apologize for this error. We express our commitment to pay extra attention not to give place for such error of any kind in future.

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Feature Article

 

 

 

 

Understanding Gender

Gender has become a buzz word of the time. But before talking about gender, it is important to have a clear understanding about gender; how has it been defined, understood and applied in past days, in academia and its practices.

Typical expression of gender refers to ‘social category or practices imposed upon the biological autonomy- male and female’. Although the expression carries general understanding, the term covers broader meaning. Conceptually, gender in broader sense means a ‘kind’ or a ‘category’. The term itself is neutral and healthy. Viewing from broader perspective, one can put forward a question: is there a possibility to identify something without a category? What would be the existence of identity if there is no gender? What about calling oneself a man or woman?

Contextualizing this concept in feminism, major focus of the feminists and other theorists, infact, should surround towards discriminatory gendered practices, subordination, repression which was the continuation of past ideas and practices rather than the gender itself. However, large part of feminism is involved in radically drawing difference between man and woman and wrongly understanding the human relations. <Top>

The discriminatory gendered practice, which becomes the unequal imposed normativity of the society operated in the past days in many forms - literature, fairy tales & cultural values, and in present days predominantly through media. As a matter of fact, feminists should start advocating against such suppressive normativity of the gendered life.

Implicitly, normalism is not defective or flawed in itself because everything operates in norms (nature, human life). Importance lies on analyzing and disputing against discriminatory or regressive aspects of the norm. Therefore, to balance the unequal gendered normativity should be the concern not the norm itself, which in real sense feminists & gender studies theorists are advocating in different forms.

However, gender has been used in such a generalized manner that the term itself has become ‘notorious’. People and even theorists view it in a negative light. It has been a general practice to refer gender with women and identifying practices like emotionality, seductiveness, nurturing, as gender practices. To live a gendered life for them is something ‘to be come out’. It might also be because of the multi connotational understanding of the term itself in different societies.

Some view gender as social relation between two different sexes; some equate it with sex; some refer it as a social meaning of a biological fact; other takes it as social process of dividing up people and social practices along with the lines of sexed identities. Among this wilderness of definitions; Western belief often equates sex with gender and believe in their interchangeable relationship. They believe that gender is social interpretation of biological fact and both are almost similar because gender determines person’s life and personality. Gender in modern West usually refers to two distinct and separate categories of human beings (man and woman) as well as to the division of social practices in two fields. The gendering of social practices is found in strong association between men and public life and between women and domestic life, even though men and women occupy both spaces. Gender in Western society thus refers to a binary division of the opposite sex based on hierarchy.

Contrary, in Hindu belief two sexes are complementary to each other: prakriti & purusha (female as creation & male as achievement). Absence of one loses the existence of the other and both therefore hold equal status. In vedic hindu philosophy, prakriti is equated with concept of 'creativity' (seed) and purusha as achievement (fruit). The term purusha thus does not mean a biological attribute of 'biological' man rather it is an outcome of action. Figuratively, prakriti for its attribution to reproduce and procreate was identified as 'female' and purusha for its 'being' fruit of creativity was known as 'male'. This is where the 'normativity' of equality originates. Hence, vedic phiolosopy not only talks of gender equality but also talks about interdependence of gender for each other's existence. It therefore advocates the interactive relationship between sex and gender.

But in later practices, hindu society interpreted this interdependency in terms of supremacy; ‘male as a life with pride and success of the past life’, while female means ‘a curse or result of the bad past life’. In this way hierarchy between men and women was maintained in both the societies. Values were created accordingly. However, both positive and negative connotations of gender sprout out of the concept of sex.<Top>

This interpretation later applies in academia and in the context. The gendered norm based on such hierarchy was created in which a child started learning and living. Society expanded this hierarchical gap in such a way that every positive aspect was attributed to male (soul, intellect, strength, masculinity as such) and set against the negative female attributes (body, emotion, seduction, delicacy, femininity). Such gendered life becomes so all pervasive that our everyday life has been shaped by it. Every social institutions- law, education, religion, marriage, family, work, media produce and regulate the gender and it comes as the interplay of power i.e. the patriarchal power.

This gendered living as a matter of power then becomes normative due to its regular practice and canonization. Furthermore, power’s mechanism, in course of time changed its form; power is not regressive anymore, it is rather constitutive. Power bent on generating forces, making other (the ruled one) grow, and ordering them rather than dedicated to impeding them, making them submit or destroying them. And this new form of power, in present time, is being proliferated by the media that is highly dominated by patriarchal ideologies.

The stereotype of gender: masculinity and femininity has instead more become permanent by the media that is controlled by the patriarchal capitalist class. All digital images, the television serials, advertisement, songs, the pop culture, deeply implied the stereotypical hierarchical role of male and female. This context has more regressively dominated the gendered living.

Such regressive gendered life is being learnt, lived and resisted to some extent; sometimes protesting on roads, sometimes by sit-in-stage, and sometimes by cross-dressing. Resistance should be made and voice should be raised against such discriminatory gendered normativity of life. Because this normalism maintains patriarchal status-quo pushing women back from the equality and development. Waves of feminism at different times in history in one way or the other raised its voice against this unequal gendered normativity.

Therefore, it cannot be claimed that gendering itself is a wrong concept. There is no harm in being a man or woman but interpreting the position and role in hierarchical order is the major tension either in use of language (in text) or in legislation or in practice. Hierarchal gendered life should, thus, be abandoned not the gender itself. It is important to understand gender as a category (male, female; prakriti, purusha) and is never a deniable fact.

(
Writer is student of M.A English Literature and holds position as Liaison and Documentation Officer at KSL Secretariat)

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