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

E-Bulletin (Vol 81)

2 July 07

Past Volumes

 

News

   

Features Article

   

KSL and CeLRRd members congratulate Assoc. Prof. Yubaraj Sangroula, Executive Director of KSL for receiving a Degree of Doctor of Philosophy on Criminal Justice System: with special reference to legal framework and practices of interrogation, extrajudicial confession and state of fair trial.

We acknowledge his perseverance and intellectual potentiality in gaining this prestigious degree and wish for the similar accomplishments in future days to come.

Dr. Sangroula initiated his research seven years before and worked as research scholar at Danish Institute for Human Rights (DIHR). He designed his proposal and research methodology at DIHR and worked under supervision of Prof. Vestergaard of Copenhagen University, Denmark. He then started working under supervision of Prof. Dr. Nomita Aggarwal, Dean, Faculty of Law, Delhi University. He enrolled as Ph. D scholar at Delhi University on 20074 and completed his research in 2007.
Dr. Sangroula over the last ten years has enriched the jurisprudence of Nepal in this area  by conducting several similar researches, writing  books and dozens of articles.

 

News

       

 Professor's visit to universities of Japan

Assoc. Prof. Yubaraj Sangroula paid a visit to two universities of Japan viz. Ehime University and Tokiwa University from 30 May to 8 June 07. Purpose of the visit was to promote academic collaboration among the Japanese universities.

Prof. Sangroula attended the program in International Forum at Ehime University as a Guest Speaker and made presentation on Political Changes and Developments in Nepal. He addressed the scholarly mass that included professors, faculty members, foreign students, local consultants, students of Ehime University and Matsuyama residents. In his presentation he discussed on the present situation of Nepal and restructuring of the state and urged Japan to support politically to transform conflict in Nepal. He then visited faculty and held meeting with professors and faculty members of the university. He had an extensive discussion with Prof. Kenji Toza wa, Assoc. Prof. Yua Tsucaiya on future collaboration.

Next to it, Prof. Sangroula paid a visit to Tokiwa University. He met Prof Isao Takagi President and Prof. Hidemichi Morsawa, Board Chairperson of Tokiwa University and discussed about the possibilities for establishing future relationships. He held a meeting with professors of Victimology in coordination of Prof. Susumu Nagai at Tokiwa International Victimology Institute (TIVI) and discussed about '2009 World Society of Victimology International Symposium on Victimology' and other issues. Prof. Nagai had been to KSL in February 2005 for two days symposium on Victim of Crime and Recovery Measures.

During both the occasions, mutual understandings have been developed to promote academic relation of these universities with KSL in the days to come.


Assoc. Prof. Yubaraj Sangroula with Prof. Hidemichi Morsawa (left) & Prof. Iaso Takagi

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KSL donated books to Schools
KSL donated books to Araniko Secondary School, Dadhikot Bhaktapur and Grand Academy, Kumari Pati, Lalitpur in recognition of sisterly relationship between two schools, and shared interest in promoting community responsive and pragmatic education in Nepal. A total of 989 books to Araniko and 648 books to Grand Academy on different subjects such as communication, history, science, management, computer, mathematics, health, psychology, English literature were donated in this respect.          Top
Observation Visit to KSL
Students of Nepal Law Campus paid a visit to KSL to observe its library, moot court facilities, IT resource center and other program centers. The visit was aimed at motivating students to strengthening legal education. It also aimed at extending academic relationship between two law schools. Assoc. Prof. Yubaraj Sangroula, highlighted on the programs and activities KSL has been undertaking and urged Nepal Law Campus to join hands on KSL's initiatives to strengthen standard legal education in Nepal. Mr. Nawaraj Thapaliya, President of Students' Union of Nepal Law Campus highlighted on cooperation of two institutions. The program ended with an agreement to make an arrangement for promoting library facilities and teachers' exchange between two law schools.
 
House Clears Constituent Assembly Election System

The proportional representation has been fixed according to population. In the 240 seats allocated for proportional representation based elections, the new Act states that women are allocated 50 per cent seats, Madhesi 31.2 per cent, Dalit 13 per cent, oppressed cast/indigenous and ethnic 37.8 per cent, backward area 4 per cent and other 30.2 per cent. However, the total percentage comes to more than 100 as some of the candidates may represent from more than one category or group.

The enacted Bill also includes provision whereby a political party cannot field its candidates in less than 10 percent of seats. And only those parties will need to abide by the seat-allocation rules who field candidates in more than 20 percent of constituencies.

The bill has also included 9 districts as backward region including Achham, Kalikot, Jajarkot, Jumla, Dolpa, Bajhang, Bajura, Mugu and Humla.

The parliament has already passed three bills related to the CA polls related to the Work, Duty and Right of the Election Commission, Election Crime and Penalty and Voters List. Only one bill related to the election of Constituent Assembly Court is to be passed and it is under discussion in the related parliamentary committee.

A day before, the Parliament had passed the second amendment bill on the interim constitution clearing the way to oust the 238-year old monarchy by a two third majority, and deferring the constituent assembly poll till Mangshir (mid-December). The ouster of the monarch, however, would be possible only if the parliament is able to present evidence that the monarch was trying to disrupt the Constituent Assembly (CA) elections slated for November 22.

The amendment also included a new clause for the removal of the prime minister through a no trust motion, which needs to be passed by a two third majority of the 329-member legislature parliament. One fourth of the members in parliament can table a motion of no-confidence against the prime minister, up to twice a year, and summon a special session for this purpose.

The amendment also includes the provision of holding parliamentary hearing before appointing the judges of the Supreme Court and ambassadors of Nepal to different countries. Other provisions of the amendment are review of the report of the Electoral Constituencies Delineation Commission only on technical matters, and provision of opposition party at the parliament.

Speaker Subash Nemwang put the final assent on the passed amendment announcing that it would be effective from the very day.

Parliament on March 9 effected the first amendment to the Constitution, which was promulgated on January 15. The first amendment determined the future model of governance as "federal" and expressed commitment to ensuring an equal share for all ethnic minorities and backward communities in all state mechanisms. It had also formed a constituency delimitation commission to redraw electoral constituencies.

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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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