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

E-Bulletin (Vol 71)

17 January, 2007

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Feature Article

   
 

News

       

3rd Winter Residential School on Socio-Economic and Development Rights, and Good Governance

Kathmandu School of Law organized 3rd Winter Residential School on Socio-economic and Development Rights, and Good Governance from 24 December 06 to 12 January 07. After an orientation to the participants, the three weeks regional residential school was officially inaugurated by Acting Chief Justice Rt. Hon'ble  Kedar Giri on 28th December 2006. In words of the chief guest, "It is wished the very best for the participants in growing a useful fruit out of this program", was quite an inspirational statement to start off the program in full-fledged high spirits.

The program was unique of its kind in the legal education system of Nepal, to address the socio economic and development issues of the marginalized community with a view to explore innovative ideas to overhaul the setbacks through various academic initiatives.

This platform was envisaged to provide opportunity for young law students, legal professionals and professors to deeply understand the significance of economic and social rights and their relationship with good governance in order to address the problem of exclusion of vast majority of population in the region. 

Law students and personnel working in legal field from seven countries viz. India, Bangladesh, Pakistan, China, Thailand, Bhutan, Sikkim and Nepal participated in the school.

On 29th Dec, an interaction program was held in the office of the Attorney General of Nepal. The meeting with the judiciary and the foreign/national participants and professors amidst each other, was a memorable event, the facilitation of the day was done by Assoc. Prof. Geeta Pathak Sangroula.

From 30th Dec onwards, the residential school at Nagarkot was commenced with the theme of 'Concept of Democracy and Human Rights'. The sub topics of the day were 'Comparative Analysis of Concept of Democracy and Human Rights', 'Cultural Relativism-Myths and Realities', 'Problems, Challenges and Prospect of Democracy and Protection of Human Rights with special reference to SAARC Countries, Nepal, India, Europe', 'Concept of Inclusive Democracy and Constitutionalism', and 'Workshop I- Discussion on building strategies to consolidate democracy and human rights'.

Country presentations were followed by 'Workshop II- Identification of commonalities of problem, situation, and challenges of Minorities in South Asian and surrounding countries'. Various problems, with the national perspective, first were identified, and later, the commonalities of the problems were highlighted, as 'education system', 'Gender Inequality', 'Class differentiation', to name a few.

On 3rd Jan, 'Concept of Good Governance' was the main theme, in which the sub topics were 'Concept of Good Governance and Democracy', 'Accountability and Transparency', 'Economic Impact and Management of Globalization and Intensified Consumerism', and 'Linkages between Good Governance and Economic and Social Rights'. On 4th Jan, under the theme of 'Linkage between Good Governance and socio economic and development rights', the sessions taken up were 'Orientation of Field Research Modality', as the participants would go for research in the villages of Nagarkot the next day, with topics relevant to the theme of the program.

Interaction of participants on 'linkage between good governance and socio economic and development rights, with representatives of government, donor agencies, NGOs and INGOs and development partners' was organized on 4th January. Panel Discussion in presence of representatives from USAID, TAF, DANIDA/HUGOU, DFID, Rastrya Banijya Bank was held and many inquisitive queries were asked to the panelists during this session. Mr. Mukti Rizal from IGD and Dr. Chandra Mani Adhikari from NAREC an Experts on Good Governance were the keynote speakers for the session.

On 5th Jan, the participants, divided into eight groups went for field research to some VDCs of Nagarkot to explore the situation of good governance and problems of rural and marginalized communities. On 6th Jan, the findings of the research were presented by the participants, basically, 'a very derogatory situation', was pictured in the findings of all the eight groups. Then, under the theme of 'Socio Economic and Development Rights', sessions of 'International perspective on Socio Economic Rights, Indispensability of Economic and Social Rights for Democratic Rights of People, Situation Analysis of Socio Economic Rights in the Region, International Perspective on Development Rights, Responsibility of developed countries to support consolidation of rights to development in developing countries', were taken up, followed by workshop IV, 'Discussion on developed mechanism for adequate application of international standards economic, social and development rights in the region'. The participants came up with concrete ideas for developed mechanisms with respect to their countries.

For 7th Jan, the theme was 'Concept of Right to Self Determination', under which the sessions of 'Concept of Right to self determination in context of CERD', 'UN standard and approaches to right to self determination', 'Indigenous Communities and Right to Self Determination', were taken up, and in the latter part of the day, discussion on situation of right to self determination in the region was held.

On 8th Jan, the participants took the day off, for a outdoor picnic, with cultural programs. In the evening of the same day, KSL students had organized a 'Cultural Show', which was held with much vigor and active, joyous participation of everyone. Thus, the solidarity program between participants and KSL students and faculty was a lively one for everyone.

On 9th Jan, under the theme of 'Strategies and Mechanism for enforcing socio economic and development rights', participants in workshop V 'Discussion on strategies and mechanism for enforcing socio economic and development rights for betterment of marginalized community', came up with strong action plans to be adopted in their respective countries, in the promotion of socio economic and development rights. Finally, with Workshop VI, the proposed strategies and mechanism for enforcing of socio economic and development rights for betterment of minorities and marginalized communities were drafted. The proposed strategies and mechanisms have been sent to the respective country for the discussion. Participant of the respective country is supposed to return the updated document to KSL by end of February 07.

On 10th Jan, the first elimination round for regional elocution competition on marginalized community's socio economic and development right and their participation in political process and governance was held. On the same day, participants also went for an active discussion NTV program on the topic ‘Participation of the youths in politics and good governance’.

On 11th Jan, the next two rounds of the elocution were held, which went quite tough for the participants. In the final round, Mr. Avishek Gazmere, LL.B. 1st Year student, KSL, was adjudged winner of the Regional Elocution Contest. Also, an "ESDR Alumni Association" was formed with Mr. Ankit Jain, participant of India as the Chairman, and six other members, taking the responsibility to work for the next program to be held in Sept. 2007.

On 11th Jan, firstly, the third year KSL students made a presentation on the research findings of 'The marginalized communities of Nepal', and then, in the latter part of the day, the important award distribution ceremony was held. Mr. Rataphum Busumlee, participant from Thailand bagged the 'Academic Excellence Award', Ms. Zhu Li, participant from China received the 'Fellowship Award' and Mr. Avishek Gazmere, participant from KSL attained 'Trophy for Best Performance in the Regional Elocution Contest' award. The distribution of participation certificates, token of memoirs by KSL was also awarded to all the participants. 21 participants had been successful in acquiring 'Diploma' certificates in the program. Honorable Former Justice Laxman Prasad Aryal, had been the chief guest of the day, and other dignitaries had also come for the closing ceremony of the program.

On 12th Jan, the participants bade a tearful goodbye to each other, with strong conviction to work for the common cause, i.e. for the "promotion of the socio-economic and development rights", in their own respective spheres. Thus, the ‘Third Winter Residential School on Socio-Economic and Development Rights, and Good Governance’, ended with a very positive spirit and an inspirational message for a new beginning.

The residential school was successful in its full wing because of the academic and professional contribution made by the national and international experts on socio economic rights and good governance from regional and international academic institutions. The residential resource persons for the program were, Assoc. Prof. Yubaraj Sangroula, Executive Director KSL, Prof. Dr. Nomita Aggarwal, Dean, Law Faculty, Delhi University, India, Assoc. Prof. Geeta Pathak Sangroula, HOD, LL.M Program, KSL, Prof. Zakir Hossain, Dean, Faculty of Law, Chittagong University, Bangladesh, Mr. Chandra Shekhar, and Dr. Abha Kulshetra, Faculty members, Delhi University, Asst. Prof. HK Rana, KSL. Other resource persons included Lukas Emil Felix Heckendorn (Swiss), Faculty Member, KSL, Prof. Kapil Shrestha, Prof. Lok Raj Baral, Dr. Narayan Manandhar, Mr. Deependra Ksetri, from Nepal, Asst. Prof. Khagendra Prasai, Mr. Marcel v. Arx, SDC, Nepal, and Klavs Kinnerup, Ph.D., DIHR from different walks of life.

-Prepared by, Antara Singh, Rapporteur for the Residential Program.


From left: Mr. Abhisekh Gazmer receiving award from Prof. Dr. Nomita Aggarwal; participants at the Closing Session

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Field study on the socio-economic and political situation of the marginalized communities

Students of LL.B 3rd year conducted field study on socio economic and political situation of various communities that are marginalized and at verge of extinction. The research aimed at exploring the factual situation of those groups in social, political and legal spheres in order to create pressure to the concern authority to enhance their standard of living and participation in the forth coming CA election. The research was also envisioned to find out the reasons behind their being marginalized.

Three groups of students were divided to conduct a research in different communities: a) Thami, Hayu and Kamar (Jogi ) Community; b) Kumal and the Bote community; c) Musahar, Lapcha and Munda community of eastern development region.

First group observed that marginalized Thami Community; endangered and largely neglected Hayu Community; and scarcely populated Jogi (Kamar) community are outside of state's social, economical, and political apparatus.  They are highly marginalized because of economic reasons: lack of distinct profession, low class labor, lack of entrepreneurship, infertile (rocky) land, infringement over their profession;  social reasons: adultery, lack of unity, high drop out rate in education, superstition, lack of alternative profession; and political reasons: lack of awareness on politics and law, voting under undue influence, participation in the election without any ideological backdrop or development  incentive, most are unaware of Thami Mukti Morcha

Second group also observed that Kumals and Botes, who fall under the marginalized and highly marginalized groups, are also living in the excluded situation because of social, economic and political reasons. Social reasons of their backwardness are child marriage; dowry system, low literacy late, and huge school drop out. Economic causes are also hitting the groups towards marginalization because of their daily hand to mouth problem, no lands for cultivation, disposal & destruction of their lands and property in time of Maoist insurgency, seasonal occupation and migration of youths. Other factors pushing these groups towards political seclusion are the unawareness of the community about importance and usage of their citizenship; they are ignorant about the political change in the nation and hold no interest in political affairs; none of them know the name of the PM of the nation. Interestingly, election, for them, is a big and unforgettable feast. 

Third group studied the life style of Munda, Lapcha and Musahar, the highly marginalized ethnic groups ostensibly called as dalits. Munda is a caste which is not yet register as a ethnic group of Nepal even they are holding citizenship, nationality and also ownership of land.

At economic level, Lapcha community holds large amount of land. However due to lack of proper skills of cultivation and knowledge on cash crops and fertilizer, they are not being able to cultivate quantitative and qualitative crops.

Instead of going to the nearby school, children of Musahar goes to the distanced school because that school provides them clothes, and foods. It shows that the children are not going school to get education but to fulfill their basic needs. It depicts the adverse effect of the situation upon children’s growth and development.

The research findings call for the dire attention of the government as they explored the poor and virtually second class life standard of the marginalized groups with no access of the government's plans, policies, and interventions including budget allocation. As most of these communities are landless and compelled to live a life of the refugee, their permanent settlement should be prioritized. Since these communities have their own traditional occupation, culture and social values, they should own their independent existence. Provisions should be made to preserve their unique and inherent values, and occupation. Government should provide technical skills, vocational trainings to such communities as per the need and demand of time. Role of NGO and civil society must be for communal benefit. Awareness should be built on those communities about the current political context and upcoming CA election. In failure of this, inclusive democracy would only be a myth. 


Students forming school managing committee in munda community

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Maoists join interim legislature; House promulgates Interim Constitution

The Interim Parliament unanimously ratified the Interim Constitution, 2007 of Nepal on 15 Jan, 2007. Earlier in the day the House of Representatives (HoR) unanimously promulgated the draft of the Interim Constitution. When the constitution was put to voting, all 185 members present there voted for it. Nine members were absent. The 205-seat House had only 194 members as some of them died and others expelled on charges of participating in the royal government. The promulgation of the interim constitution and formation of the interim legislature furthered the materialization of the people's aspiration for peace. With the promulgation of the Interim Constitution, the revived HoR and the National Assembly were dissolved simultaneously.

The Interim Constitution, issued in the name of the people for the first time in Nepal's history, defines Nepal as a secular, sovereign and inclusive democratic country. The statute has cut away all the powers and privileges of the king and transferred the powers of the head of state to the prime minister. With the promulgation of the statue, the monarchy now effectively remains a suspended institution until its fate is finally decided by the Constituent Assembly to be elected by mid-June.

Similarly, it has also provided for nationalization of the property the king inherited by virtue of ascending the throne and put the late King Birendra and his family's assets into a trust.

The statute has made the prime minister the most powerful constitutional figure in the country. Some political leaders and constitutional experts protested some clause of the interim constitution. They argued that if passed without correcting the flaws, the constitution could give birth to an authoritarian regime.

They also said the lack of checks and balance in the constitutional powers, the executive's supremacy over the judiciary and the absence of any provision for ousting the prime minister from office would drive the country toward authoritarian constitutional practice and ultimately hamper the development of a democratic system.

The newly formed legislature has 83 Maoist lawmakers along with 208 lawmakers from the outgoing House and 38 other lawmakers nominated by the various political parties.

After the formation of interim legislature and promulgation of the Interim Constitution, now the next two major political events in the calendar would be formation of the interim government and conducting the Constituent Assembly elections by mid-June.

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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. 

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.

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 in KSL Secretariat)

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