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

 

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National Symposium on Constituent Assembly and Inclusive Democracy for Conflict Transformation

Kathmandu School of Law in collaboration with six other partner organizations organized three-day National Symposium on Constituent Assembly and Inclusive Democracy from 7th June, 2006 in Kathmandu. The objective of the symposium was to explore ideas and opinions on the overall aspects of the constituent assembly and inclusive democracy to build consensus for demarcating the process, procedure and substance of the Constituent Assembly and to help develop an appropriate modality to be adopted for conflict transformation. The symposium also provided a national platform for political leaders, intellectuals and civil society members from across the country to discuss on prospect and challenges of conflict transformation through constituent assembly process.

In his inaugural speech, chief guest Rt. Hon’ble  Subash Nemwang, Speaker of the House of Representatives (HoR) shared that women, Dalists, Janajatis and other indigenous population have been discriminated and marginalized for long and this is where source of conflict lies. Hence, it is high time that the whole country should be serious to prevent the sources of conflict and here comes the need of inclusiveness in democracy. Expressing his gratitude towards KSL and organizers for organizing such a timely and fruitful programme he urged participants for hard work to recommend measures to make the new constitution inclusive and not to leave any ground or space for any autocratic and despotic forces to play. Highlighting on the recent declaration made by the HoR, Mr. Nemwang mentioned that the question of validity of the existing HoR does not arise at all because when there is the full mandate of people in any source of power, that authority or source of power becomes the strongest. Concluding his remarks, he assured that HoR is well aware of the trust placed by the citizens upon it and it will work the best of its abilities to make peace talks successful and lead Nepal towards the path of Constituent Assembly.

The programme was earmarked by the remarks from the prominent speakers of different political parties. Hon’ble member of the HoR and Secretary of the Nepali Congress Parliamentary Party Mr. Benup Raj Prasai expressed his belief that the symposium would be significant in analyzing the pros and cons of constituent assembly and developing a perfect model appropriate for Nepal. He shared that since the people are confused about the Constituent Assembly and their role in the process, institutions like KSL and other NGOs and CBOs have a great role to play in sensitizing the people and making them aware on the implications of the result of the Constituent Assembly. He also affirmed that the role of parties during these years is responsible to bring the country in the present state of crisis. He also stressed on the need of restructuring of the state to make it inclusive in nature and called participants to discuss on developing mechanism to ensure non-interference and non-intimidation of any kind from the king as well as the Maoist in the Constituent Assembly election.Top

Another speaker Dr. Minendra Rijal from Nepali Congress (Democratic) put forward his view on the current issue of constitutional assembly. Terming the 19-days peoples’ movement as the Glorious Revolution, he focused on inclusiveness, peace, non-violence, democracy and people's supervisee as the mandate of the movement. He said, “Since the seven political parties and the Maoist had come to the understanding that Constituent Assembly could only solve the present crisis of Nepal, we have to be conscious to make Constituent Assembly election free from all types of threat and fear. Therefore, it should be considered that no single individual or small groups of elites or outside experts should have the chance to draft the framework of the constitution. It is the people, whose voice should be heard at large and as such every people should have a say in the process of formulation of Constituent Assembly.”

Following Mr. Rijal was central committee member of CPN (UML), Mr. Yubaraj Karki. Mr. Karki shared the bitter experiences of placing the king as constitutional monarch under the constitution and emphasized on the need of republicanism. He acknowledged that the seven-party alliance has already come to a consensus of holding constituent assembly with the motto of achieving inclusive democracy for conflict transformation. But still they are confused on how to go for it, what are the procedure and content. Therefore, programmes like these would be beneficial to penetrate new thinking inside and outside the party circle. “The timely intervention in streamlining the process and modality of constituent assembly and the substance of the new constitution may eventually lead to the result-oriented conclusion. So participants need to be serious on it”, he said.

Prof. Sten Schaumburg Mullar, representative from Danish Institute for Human Rights (DIHR) emphasized that the present conference should contribute to find out the causes of the failure of the previous constitution and give a way-out to restore peace in the country. Appreciating the idea of inclusive democracy, Prof. Mullar shared that concept of inclusiveness can include every ethnic groups, tribes, marginalized population and gender into its ambit and finally lead the country towards the path of peace, prosperity and development. However, he drew the attention of the participants to build up the idea of Inclusive Democracy in tune with the protection of Human Rights. Top

Expressing his best wishes for the programme, Mr. Alan Whaites, Senior Governance Advisor, DFID, Nepal observed that there is no hard and fast rule for constituent assembly and there is no perfect model for it. Since constitution possesses the distinct characteristics of each country, it needs to be prepared very cautiously. It should be made in such a way that every individual should have sense of ownership on it. Thus lots of challenges are embodied on its making. Hence, creative thinker, strong civil society, and able politician are the need and solution of the present crisis. He also expressed his commitment to support Nepal in its efforts to conflict transformation and peace building in the country.

Next to express his remark was Mr. Nick Langton, Country representative of The Asia Foundation, Nepal. Mr. Langton shared that Nepali peoples’ desire is for lasting peace based on a constitution that responds to the country’s diverse needs. But the situation is challenging and the path forward is complicated and unclear. Pointing on the recently conducted public opinion poll, he expressed that there is still a long way to go before a constituent assembly because only about 15 percent of the Nepali population appears to understand what a constituent assembly is all about.

Sharing the lessons learned in the other countries, he added that a durable constitution should be very short and concise and people should participate both directly and through real representatives in developing it so that they feel they own it. He also shared his concern that framing a new constitution in a hurry may end a conflict, but it may not accommodate the needs of the broader public. He indicated that the enhanced public participation in the drafting process is a key part of the solution. He also assured his full support to continue working together towards a peaceful and democratic Nepal. Top

In the programme, Asoc. Prof. Yubaraj Sangroula shared that KSL has been actively involved in taking various initiatives in transformation of conflict though enhancing democratic and constitutional values and the symposium is a part of it. He said, “I believe that academic institutions and universities are the places where academically enriched minds can exercise and generate lots of ideas. Bearing this in mind, KSL has been actively and honestly working for it which could be revealed from the fact that till to date, KSL has trained 200 central committee leaders from various political parties.” He emphasized that new constitution through Constituent Assembly is the need of the hour but the process, procedure and contents of it. i.e. how to go, how to do, when to do etc, needs to be addressed rightly. “As there are lots of alternatives as one through amendment, next through interim constitution and others, there are many challenges surrounding the issue which needs to be seriously discussed during the symposium”, he added. Since, pluralism and multi-party system can only ensure the freedom and interest of the people, he called upon all academicians and intellectuals to sit together and work for the nation.

Earlier, Asst. Prof. H.K. Rana took the privilege of welcoming the guests and all the participants while Chairman of the programme Mr. Prakash KC ended the inauguration session expressing vote of thanks to all the guests and invitees for their gracious presence in the programme. 

The working session took place immediately after the inagruration session. In the first day, Assoc. Prof. Yubaraj Sangroula presented his paper on the theme of constituent Assembly process and inclusiveness in constitution for conflict transformation. He proposed six types of models for the process of constituent assembly. Beside the models, he pointed some essential values like diversity, pluralism etc, that should be taken into consideration so that each and every people's representation can be ensured in constituent assembly election. To ascertain these values, he pointed out some objectives such as popularized form of government, good governance, people's active participation in decision making, democratization of state etc. He proposed two phases in the process of conflict transformation. Firstly, cabinet mission for peace accord, then formation of executive council, promulgation of interim constitution and finally constituent assembly election based on the Interim Constitution.Top

Hon’ble member of the HoR Mahendra Pandey (CPN UML), Dr. Minendra Rijal from NC (Democratic) and Mr. H.K. Rana commented on the paper.

The second day was divided into two sessions. On the first session, Asst. Prof. Khagendra Prasai made presentation on the theme Causes of Conflict and Constituent Assembly as an instrument for conflict transformation (in the perspective of need for restructuring of state). His presentation was followed by comments from Mr. Tanka Karki from economic perspective, Mr. C.K. Lal from political perspective, Mr. Suresh Dhakal from sociological perspective and Mr. Ganesh BK from Dalit Movement perspective. In the mean time, Prof. Sten Schaumburg-Muller from DIHR also forwarded his inputs on Mr. Prasai’s paper.

In the second session, Dr. Bishnu Raj Upreti presented his paper on the topic Post Conflict Situation and Reconciliation Modality. Prof. Kapil Shrestha, Human Rights Activist Mr. Gauri Pradhan and Assoc. Prof. Geeta Pathak Sangroula put comments on his paper.

On the third day, Asst. Prof. Rabindra Bhattarai and legal professional Mr. Shom Luitel presented their separate papers entitled Building of Consensus within Constituent Assembly for making an Inclusive Constitution, and Representation Models and Electoral System respectively. Political Analyst and leader Mr. Manmohan Bhattarai, Ethnic epert Mr. Jitendra Dev, Dalit Activist Mr. Jitu Gautam, Reader of TU and Director of  CeLRRd  Mr. Kishor Silwal, Asst. Prof. Kumar Ingnam and political analyst and leader Mr. Pradeep Giri put forward their comments on the paper. During all three days, participants were divided into groups to ensure the active participation of each group. The findings of the group discussion were presented by the group facilitator in the plenary session. Finally, the paper presenters clarified the issues rose during the discussion. The three days programme ended issuing a resolution and declaration calling all the political parties, Maoists and the government to go for Constituent Assembly Election ensuring inclusiveness of people of all the segments of the society in the whole process.

The programme was organized by KSL in collaboration with CeLRRd, CeLCAR, People Forum, CLRC, Diyalo Pariwaar and Human Rights Protection and Legal Research Centre, and was financially supported by Embassy of Denmark.Top


Rt. Hon'ble Speaker Subash Nemwang delivering his speech (left) with Participants of the Program

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Prakash Ojha Convicted for Pedophilia

Sunsari District Court finally decided the case of Prakash Ojha convicting him six months imprisonment, 10 thousands compensations to victim of crime and 5 thousands fine in pedophilia case. The judgment was delivered on 24th May, 2006. It is the first case of pedophilia decided by Sunsari District Court and Ojha being the first convicted person for pedophilia invoking section 16(2) of Nepalese Children Act, 1992.The case was filed by CWIN, WOREC and INSEC in which CeLRRd provided legal support to vicitm. 

However, District Court acquitted him in another two Women Trafficking Cases filed by District Attorney Office of Sunsari defining the action did not fall under the purview of section 4 of the Human Trafficking (controlling) Act, 1986. Despite the fact of the commission of the forbidden action admitted in Court and a letter written by accused to mother of the child victim from the custody, district court acquitted him from the charge. The cases were decided by honorable district court judge Mr. Shekher Poudel.   

The cases were represented by Director of CeLRRd Kishor Silwal and Regional Coordinator Hemraj Panta from the victim side. In course of representing the cases they strongly protested when the cases were not heard applying Camera Proceedings as referred by Nepalese Children Act and District Court Regulation. Proceedings were open till district government attorney pleaded but when victim's lawyers strongly protested then only camera hearing proceedings were followed.

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Rehabilitation of the Child of Sexual Abuse: A Case Study

Victims' Legal Aid Clinic of KSL rehabilitated a sexually abused child in Sahara Samuha Rehabilitation Center. A girl named Priti (name changed) inhabitant of Lamjung district living in Babarmahal, Kathmandu with her family had been a victim of sexual exploitation. She was abused by a person named Krishna (Motte Uncle) who owns an iron factory in Kathmandu. Initially tempting with sweets and chocolates, he persuaded her to visit the factory and forced her to engage in sexual activities. She was then threatened not to disclose this incident to anybody. After knowing this incidence, her parents filed a case against the perpetrator in Hunuman Dhoka. However, due to lack of evidence, the case left pending for several weeks and could not proceed further. After being frequently threatened by the offender, Mrs. Bhagwati Thapa, mother of the victim approached VLA requesting to arrange rehabilitation for her daughter. VLA coordinated with the Sahara Samuha to rehabilitate the child guarantying her right to privacy and education. Meantime, the case has been proceeding in the District Court, Kathmandu. The child is now pursuing her study in class two. Including Priti's case VLA received other three similar cases against the same culprit. The person is fugitive till date. Victim's Legal Aid Clinic (VLA) actively works to provide legal aid and justice to the victims of trafficking and other forms of violence. It also collaborates with many other organizations in initiatives to prevent violence against women and protecting their human rights. Ms. Sharmila Parajuly, Chief, Victim's Legal Aid provided a three days ToT on Defining Public Agenda: Strengthening Constituencies for Peace and Reform in Nepal to the 22 members of local good governance club in Bhaktapur District. The program focused on how to bring the issues of women and victims' justice as components of peace and reform in the public agenda. The training was a follow up activity of the ToT on advocacy and facilitation skill organized by Pro-Public on 18-20 May 2006.

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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. Top

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. Top

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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