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

E-Bulletin (Vol 67)

15 September, 2006

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KSL Teaching Faculty and Students Meet US Ambassador

Associate Prof. Yubaraj Sangroula, Geeta Pathak Sangroula, Assistant Prof. Anjan K. Dahal, and Ashish Adhikari including ten students of LL.B and LL.M paid a visit to U.S. Ambassador’s residence at Kamalkunja, Kamaladi on 8 November 2006 to participate in the discussion on ‘U.S. Mid-term Congressional Elections' upon invitation from Mr. and Mrs. James F. Moriarty.

A breakfast discussion was organized to hold an informal discussion on the said topic. Members of political parties, ministers, human rights activists and distinguished national and international personalities put forward their views on the module and system of election on the basis of live results of U.S. mid-term elections.

It was a great learning experience for law students to talk directly with the honorary personalities and to know about the political system of USA from nearest. In addition to this, the consequences of the live results were discussed analytically, about how it would affect the future policies of U.S., especially in relation to the Iraq war and other developing countries like Nepal.


Teaching Faculty Members and Students of KSL with Mr. James F. Moriarty

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Speakers emphasize proportionate representation

Assoc. Prof. Yubaraj Sangroula said that the 1990 Constitution failed because it could not adopt any provision guaranteeing the economic and social rights of the people, which are the most essential rights in modern period. He stated that the development process of any nation could be speed up only if the fundamental rights of citizens could be ensured. 

Prof. Sangroula was speaking at a programme on Role of 1990 Constitution for the Development of Nepal’s Constitutional Process organised by Constitutional Lawyers Forum on 9th November. 

He shared that guaranteeing basic human rights and consolidating the Adult Franchise, the Parliamentary System of Government and the system of Multi Party Democracy within the preamble are the positive features of the 1990 constitution. Despite this it failed to recognize the diversity issues and made the provision for first-past-the-post system of election for the member of the House of Representatives which is ‘apparently’ defective, as it does not include all and frivolously excludes the larger part of the population in political processes. As a result, the constitution became detached from the contemporary aspiration of the people. 

He emphasized on the proportional electoral system to ensure the representation of every ideology or interest or group in the decision making to process of legislation. "It not only includes the interests and wishes of the large majority population divided into various ideological segments, but also recognizes the need of taking into consideration of opinions of the parties in minority in the legislative body", he shared.
Nilambar Acharya, the Law Minister of the interim government that promulgated the 1990 constitution, said that a state cannot run without a head of the state and, therefore, the king must be respected as the acting head of state during the transitional phase.

“A state should have a head of the state, even during the transitional phase,” he said.
He added that it is against the rule of the separation of power and checks and balances if there is no head of the state and an executive head or other state organ chief works as the head.
He also claimed that the principle of separation of power and check and balance and the fundamental rights adopted in the 1990 Constitution are very good provisions.

“The king had exercised all powers, which was given to the executive. However, he authorised himself to formalise the decisions as the head of the state,” he added.
Acharya also said the king now has no authority to make appointments or give consent to any decision.

Yash Ghai, Professor of Hong Kong University and drafter of the Kenyan constitution said the 1990 Constitution could not include the ethnicity issues which rendered it a failure. Pointing out the need of representation from every ethnic community, he shared that the 1990 constitution couldn't include the diversity issues. He underscored the necessity of a new constitution to solve the problem. 

President of Nepal Bar Association, Shambhu Thapa criticised the idea of adopting a provision to decide about the fate of the King by a simple majority vote in the constituent assembly. He said that it was better to decide on such a major issue by referendum.

Observation Visit to program districts: Rights Based Anti Trafficking Actions in South Asia

A four-members-team paid a visit to three program districts viz. Makwanpur, Nawalparashi and Banke to observe the orientation programs on rights based anti trafficking actions at community level. Under the program "Developing Rights Based Approach in Anti Trafficking Actions in South Asia", the visit was organized to observe the community based orientation programs to different target groups and to receive feedback on the effectiveness of the program.  

The team comprises Ms. Sara Piazzano, Project Manager, Tdh Foundation Italy; Ms. Muna Basnyat, Tdh Nepal; Ms. Marilore, Intern from Tdh Nepal and Ms. Bidhya Pokhrel, Local Coordinator for Anti Trafficking Project, KSL.

The team attended the orientation for members of local NGOs, CBOs and Women Paralegal Group in Makwanpur district on 6th November 06. On 7th November the team paid a visit to Nawalparashi to observe the program for Women Paralegal Group. Similarly, the orientation for members of local NGOs and CBOs was observed in Bageshwori VDC of Banke district on 9th November 06. The team also attended a brief meeting on highlighting the project activities in CeLRRd's regional office in Banke. Advocate Kumar Sharma Acharya, Regional Coordinator, CeLRRd highlighted on the activities such as community mediation, legal aid, empowerment programs being implemented by CeLRRd at regional level. Mr. Bashudev Gyawali trainer of the orientation program at districts made a brief presentation about the impacts and effectiveness of the rights based approach in the districts in understanding human trafficking issue. 

The team observed the effectiveness of program implementation in community levels. Leading women were selected from each target groups such as Women Paralegal Groups, local NGOs and CBOs for the orientation with a view that they can impart the gained knowledge to their community in more effective way. With a leitmotif of establishing such programs in community level by the community itself, leading members of community were chosen as the participants. Participants had long established relationship with CeLRRd through its previous programs. They were also trained on the welfare approach to intervene the human trafficking problems. Due to their understanding on the issue from the beginning, participants easily grasped the rights based approach in intervening human trafficking actions. It widened their knowledge on concept of human rights and interrelationship between human trafficking actions and violation of human rights, and protecting rights of victims of trafficking.

The team also observed that the program has owed its credit because of the cooperation from community itself, district level offices, local administration, schools and other local NGOs and CBOs. The chief of the district level government offices including the Chief District Officer made positive remarks on the importance and effectiveness of the program in their speech at orientation program in Makwanpur district. The rights based approach in intervening human trafficking has been welcomed by every sectors of the society and the government officials as a turn from the previous interventions that focused on welfare approach or need based approach to deal women trafficking. Strength of CeLRRd's program lies on its effort to make every activity sustainable at community level by mobilizing the local resources. In this respect, CeLRRd has developed Human Rights Defender's System in few program districts until this initial stage in cooperation with Task Force Committee formed under District Development Office.

To functionalize the HRDS, Human Rights Defender's Committee (HRDC) has been formed. The HRDC comprises of local community members, administration representatives, journalists, police personnel, teachers, NGOs and CBOs activists, representatives from Women Paralegal Committee as such. Selected members are envisaged to work in areas to prevent human trafficking and protecting rights of the trafficking victims.  The committee members will meet regularly and constitute a platform for sharing issues on trafficking at local level. Particularly, the HRDC will play the role of 'watch dog' by monitoring trafficking cases, and the follow-up of rescue and rehabilitation operations providing legal assistance; designing and implementing rights based anti trafficking initiatives at local level; providing awareness on trafficking prevention and protection of victims of trafficking etc.


Team members with participants at Makwanpur

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Feature Article

 

 

 

 

Reservation for Women: Good or Bad?

Women constitute the majority of the world’s population and as equally important to run the Nation. However, there is no doubt that they are discriminated by superstitious patriarchal society and also the discriminatory laws. The discrimination and inequality towards them is a manifestation of historically unequal power relations between men & women, which have led to domination over and discrimination against women by men and to the prevention of the full advancement of women.  It is unfortunate that even in the 21st century and despite the constitutional provision that men and women are considered equal by the laws; women are considered as domestic workers and mere reproductive tools.

 The human rights of women are an inalienable and indivisible part of universal human rights which has rightly been observed by World Conference on Human Rights. The full and equal participation of women in political, civil and economic, social and cultural life at the national, regional & international levels, and the eradication of all forms of discrimination on grounds of sex are priority objectives of the international community. However, women are divested of their basic right by society and the economy, and many times, regrettably, by their own mentality, they fall victim to all forms of violence. Thus securing and ensuring the rights and interests of women is the need of the day.

 In this regard, the passage of the women’s rights declaration of 30 May 06 by the HoR is definitely a welcoming step and landmark development in context of Nepal. If Human Rights are to be universally respected and protected, then they must apply to the lives of over half the human race-women.

 Basically four Major Declarations have been made by the House of Representatives:

  1. Proposal on women’s right to confer citizenship to their children.
  2. Reservation of 33% of seats in all states bodies for women until proportional participation is attained.
  3. Freedom from domestic violence.
  4. End of Discriminatory Laws on women.

Regarding the issue of reservation, definitely it is needed in our context till the time women become equally competent to compete with the male members of the Society. John Rawl in his ‘Theory of Justice’ has rightly emphasized firstly on the protection of the individual liberties, and secondly to give priority to the deprived group till they become competent enough to compete.  The idea of equal access to opportunity to all comes only after acquiring the above. Thus in our context, sad to say women being more vulnerable, discriminated and deprived of having access on the nation’s utilities reservation is needed up to a certain height for their upliftment. Because of the deeply entrenched patriarchy, society still is not in the position to accept women as equal partner. Hence, women should get the same sorts of opportunity and access in all spheres of Nation’s Utilities. Substantive equality is the need of the day not the formal model of equality as provided by our Constitution.

Also, reservation won’t work effectively until it is further reserved for different classes of women such as Dalits, Vulnerable, and Disabled etc. To meet the goal of this reservation to the fullest extent upto the grass-root level, it needs to be separated in quantity to all class of women and the beginning should be made from the ground level. Otherwise it would be a luxury to the urban women who are well educated and are on easy access to resources.

To uplift the status of women, discriminatory laws on women needs to be wiped out. There are till to date 28 gender discriminatory provisions in the Civil Code (11th amendment). Similarly 20 existing Acts have 53 discriminatory provisions while 35 existing Rules have 85 discriminatory provisions. Thus, these need to be made non-discriminatory. Finally, it is important to reassess the stereotype that women are necessarily “vulnerable” and “victims”. Their roles and potentiality must be recognized. They can be politicians, community leaders, partners in assistance operations in their communities, and activists for reconstruction, reconciliation and peace.  

Author is LL.M Student of Kathmandu School of Law

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