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

E-Bulletin (Vol 82)

16July 07

Past Volumes

 

News

   

Features Article

   

KSL announces admission open in LL.B program for the academic session 2007.
Admission Orientation is being conducted every Sunday at KSL. Interested candidate can register his/her name at KSL reception. For detail: dial 6634455/ 6634663 or visit www.ksl.edu.np

 

News

       

 Residential School on Epistemology and Research Methodology

Kathmandu School of Law (KSL) organized a seven-day residential school on Epistemology and Research Methodology from 5 July 07 at Nagarkot to materialize the aim of the school to apply pragmatic and research oriented teaching methodology. The program is an annual activity of KSL and is targeted to LL.M. students to strengthen students' knowledge and skills on epistemology and research methodology. The school primarily intended to:

o    help students develop critical knowledge on fundamental concepts, elements and process of epistemology and   legal research;

o    enrich their research based professionalism;

o    strengthen their capability to involve in multi–faceted research of laws.

Intensive research course was conducted incorporating subjects like importance of scientific research and design in legal study and profession; research methodology; science, commonsense, values and perception building; proposal design and write up; philosophy of science (Empiricism, Formalism, Rationalism and Cognitivism); language sensitivity in research; preparation of field projects; and proposal writing. Students were encouraged to work in team to conduct field research and make a group presentation of their findings in a workshop.

A total of 46 students participated in the program from three streams of LL.M programs viz. Human Rights and Gender Justice, Criminal Law and Justice, and Business and International Trade Laws. Faculty of KSL served as Residential Resource person at the program. Associate Prof. Dr. Yubaraj Sangroula, Asst Prof. Sudeep Gautam, Dr Lukas Heckendorn, Asst Prof. Seema Dhami, Asst Prof Kapil Aryal and Awani Mainali were among the resource persons and program facilitators. Mr. Suraj Basnet, Student Intern, moderated the program.

Top

Demographic Scenario of Participants on Civic Education

Coalition for Constituent Assembly Support (CoCAS) has accomplished civic education campaign in 800 VDCs of 16 Districts of Eastern Development Region. The District-wise demography of the participants is as follows:

District

Completed Activities

No  of Participants

Male

Female

Janajati

Dalit

Muslim

Madhesi

High Hill Caste*

Sunsari

46

2465

1121

1344

757

263

163

791

491

Morang

50

2930

1396

1534

1226

427

3

530

744

Jhapa

50

2892

1469

1423

731

425

113

136

1487

Saptari

50

2865

1330

1535

1016

863

96

687

203

Khotang

50

2760

1750

1010

1379

282

 

 

1099

Bhojpur

50

2431

1538

893

1447

294

 

 

690

Ilam

50

2793

1551

1242

1532

273

 

 

988

Terathum

50

2455

1430

1025

903

303

 

 

1249

Dhankuta

50

2789

1332

1457

1621

358

 

 

810

Udayapur

50

2868

1243

1625

1585

297

 

 

986

Solukhumbu

50

3441

1901

1540

2354

429

 

 

658

Shankhuwa
sabha

50

2747

1725

1022

1615

247

 

 

885

Taplejung

49

2468

1250

1218

1576

226

 

 

666

Okhaldhunga

50

2823

1743

1080

1310

380

 

 

1133

Panchthar

50

2605

1171

 

1434

 

1264

 

248

 

 

 

1093

Siraha

50

3269

1572

1697

1173

865

23

1165

43

* Hill High Caste: Brahmin/Chhetri

 

 

 

 

 

 

 

 

 

 

  

Top

 

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)

Top


Kathmandu School of Law          / Telephone : 977-01-634455/6634663, 2042268
Dadhikot, Bhaktapur                   /   Fax           : 977-01-634801
Kathmandu, Nepal                     /   E-mail       : info@ksl.edu.np        Web   :  www.ksl.edu.np