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

E-Bulletin (Vol 63)

4 September, 2006

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News

   

Features Article

   

Kathmandu School of Law announces admission open for additional section in LL.B program for the academic session 2006. Students who have passed 10 +2 or equivalent are eligible to apply for the program. Last date for the submission of the application form for the third shift  is 13 Sept. 2006. For details, please visit http://www.ksl.edu.np/program_llb.asp

News

       

 Nepal's Foreign Policy in the Present Transitional Context

Kathmandu School of Law organized a discussion programme on 'Transitional Context and Nepal's Foreign Policy' on 4th September, 2006 at KSL Conference Hall.

 The programme was organized with an objective to identify the following:

a)      foundation values of foreign policy that will contribute much to the peace building process in the present       transitional phase;
b)
      strategy of foreign policy that will contribute to sustainable economic development of nation in the future; and
c)       mechanisms and methods to implement foreign policy.

The one day programme was inaugurated by Mr. Madhav Kumar Nepal, General Secretary of the Communist Party of Nepal- Unified Marxist Leninist (CPN-UML). In his inaugural speech, Mr. Nepal stressed on the need of uniform voice and common approach of all political parties in matters of national security and international relations in the wake of strong and painful transition of the country.

"Since the independence of the country, its sovereignty, national unity, and national interest and security are the important determining factors of Nepal's foreign policy, the political parties should arrive at a common consensus regarding the foreign policy to adopted by the country." he shared.

He opined Nepal has suffered a lot in international forums due to poor political approach to diplomacy and lack of long term vision of international relations. Therefore,  Nepal has to come out of its several weaknesses and make attempt to identify its interest and present it before the international communities to get a new recognition in international relation.

He called for immediate attention and minimum understanding of all parties on issues of Bhutanese and Tibetan refugees, ISI problem raised by India, unjust treaty of 1950, problem of Nepalese Gurkha and non-residential Nepali, River Dams and border regulation with India.

He also spoke of the need of replacing the people with tainted image who have given bad name to politics. He said people should not become submissive to the people in politics with bad image and called on the youths to come up with an alternative and replace those 'bad eggs' among the politician.

M.r Jhalanath Khanal, Chief of the CPN-UML Foreign Relations Department said that political transformation demands the change in foreign policy also. Hence, the attempt to initiate discussion on the foreign policy in the current transitional period is timely and worthy exercise of KSL.

Explaining the foreign policy of Nepal in different periods of history, Mr. Khanal shared although Nepal expanded its relationship rapidly with many other countries after the 1990 democracy, she had not been able to explore many areas and sectors of relations. As a result, we failed to exploit our foreign relation in the best interest of the country.

He also opined that since our traditional conception of Nepal as a 'yam' between two large neighbours is strategically no longer valid in the context of internationalization and globalization, it should be redefined as a 'beautiful garden' between two rising powers.

He pointed out that developing an integrated foreign policy is a serious challenge of Nepal and stated that independence, sovereignty, territorial integrity, coexistence, non-alignment, the principles of the Panchasheel, the UN Charter and international conventions are the guiding principles of Nepal's foreign policy.

"Nepal's foreign policy priorities should be to promote friendly relations with other countries for extensive cooperation by establishing democracy and human rights", he added.

He also stressed on forging a consensus on the foreign policy, stopping making rivers as basis for border demarcation, not allowing the territory of Nepal to be used against any country, and implementing the concept of economic diplomacy and development partnership.

Dr. Prakash Sharan Mahat of the Nepali Congress (Democratic) said that the Nepal's foreign policy should fully take into consideration the national interest and deter unnecessary foreign meddling.

"Foreign policy is dependant on democracy and only democracy can ensure Nepal's security. There is a great goodwill of international community upon us in favour of democracy but how much we can manipulate this support in our country's interest depends on our diplomatic skill and proficiency", he added.

He also stressed on delineating the objectives of the Nepalese missions based in foreign countries, taking benefits from the free trade regime in the world and not being too lenient before powerful countries. 'We have to take peace keeping as a part of our role in international community and UN system', he added.

Talking about the UN involvement in arms management, Mr. Mahat said UN's role is important in taking Maoist in confidence by ensuring that army would not be mobilized against them and at the same time to assure the parties that the election to Constituent Assembly will not be manipulated by any violent means from Maoist. But it is very shocking that debate over what kind of UN involvement we need has not be sorted out yet.

He also called for seeking non-reciprocity from India and China and review of all treaties that are not in Nepal's interest.

Earlier, Assoc. Prof. Yubaraj Sangroula,  Principle of Kathmandu School of Law shed light on the objectives of the programme. He said that the programme has been organized because the country is in the process of political transformation and restructuring of the state and foreign policy is an indispensable element of state and as such a part of state restructuring. In this context, it is equally important and imperative to discus and formulate foreign policy taking into account how it can contribute to peace building in the transitional phase of the day. Secondly, formulation and implementation of foreign policy conducive to the economic and social development of nation is equally urgent. Therefore, KSL felt a strong need to initiate discussion on foreign policy and develop clarity and consensus in this regard through open public debate and discussion.    

The floor was opened for discussion after the presentation of the party policy by the speakers. Participants raised issues on various topics related to the foreign policy of the country and respective parties, which was responded by the speakers. The programme ended with vote of thanks by the Chairman of the school Prof. Madhav Prasad Acharya.

At the programme, it was disclosed that KSL is preparing to initiate a 4-years Bachelor Level studies in Diplomacy and International Relation.


From left: Participants and Speakers at the Program

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Committee submits Interim Constitution Draft

Interim Constitution Draft Committee handed over the draft of the Interim Constitution to the government and CPN (Maoist) talks team members on 25th August, 2006.

The 76-page long draft with 172 Articles has stated that the role of the monarch would be decided by the Constituent Assembly or through the holding of a referendum. The draft statute says the interim legislature's chairman will take charge as Head of the State in case monarchy is abolished before the constituent assembly makes any alternative arrangement.

Here are the main highlights of the draft:

Sovereignty and state power

According to the draft, sovereignty and state power will vest in Nepali people. Similarly, the committee has suggested that Nepal will be a democratic and secular state. The draft statue has suggested four options to the political parties on the type of Nepali state - regional federal republic, federal democratic, socialist heading toward republic and heading toward republic.

It has been suggested that even mother languages can be used as official language at the local level, and the state will translate the works done in the mother languages into the Nepali language. This is the first time, mother languages have been recognized as official language.

 More fundamental rights

The draft has added more fundamental rights. These include: no discrimination between men and women in salary and social security in the same work; rights against untouchability and caste-based discrimination; nobody shall be deprived of using public places and entering into religious places on the basis of caste. Similarly, right of broadcast media and online media has also been protected. Telephone shall not be disrupted. Right to live in clean environment has been ensured. Every citizen will have right to free primary health services, while there shall be free education for all Nepalese up to secondary level. Right to employment has been proposed as well as unemployment allowances for the unemployed. Social security for women, laborers, the old, disabled and helpless people have been proposed. Rights against torture and exploitation have also been proposed. Similarly, right against trafficking, bonded labor and serfdom have been ensured in the draft.

 Constituent Assembly

A constituent assembly will be formed under this constitution to draw up a new constitution by the people. The committee has not made any suggestions on the process of election to constituent assembly. The tenure of such an assembly will be two years. But if the drafting of a new constitution is not completed within the deadline due to emergencies, then the tenure of the assembly can be extended by six months. Such an assembly will function as legislature as well. A committee to raise awareness of the constituent assembly and its election has been proposed.  

 Legislature

A unicameral legislature will be formed through political consensus after the interim constitution is promulgated. The present House of Representatives will be dissolved automatically with the promulgation of the constitution. However, the committee has left it to up to political parties to decide who will be members of the interim parliament.

 Executive

Executive power, it has been proposed, will be limited only to the Council of Ministers. As per the 1990 constitution, executive power is vested both in the king and the Council of Ministers.

 Judiciary and Constitutional Bodies

All existing courts and constitutional bodies will remain in place even after promulgation of the interim constitution. However, all the judges and constitutional body officials should be reappointed within six months of enforcement of the constitution. Those who are not reappointed will be automatically relieved from office. Supreme Court justices and the chief justice will not get any pension and gratuity upon retirement. A separate three-member constitutional court will be set up to look after cases related to constituent assembly election. It will be under the Supreme Court.

 Army

The draft statue says National Security Council, headed by the prime minister, will oversee mobilization of the Nepali Army. The Committee has also suggested that there could be two organizations in Nepal-- Nepali Army and People's Liberation Army. Both will be confined to their respective barracks and camps during the constituent assembly election. They will be under interim legislature and interim government. The Prime Minister will be the supreme commander. A high-level military commission will control and mobilize both the forces. The commission will be formed through political consensus. A unified national army will be formed through mutual agreement after the constituent assembly election.

 Citizenship

The draft has proposed for formation of a citizenship commission to address the citizenship problem, especially in the Terai region, before election to the constituent assembly. Individuals who participated in the referendum of 1980 or took part in the elections after 1990 or whose father or mother is born in Nepal will be Nepali citizens.

 Women's rights

Once the interim constitution becomes effective, women will enjoy equal property rights and all types of discrimination against women will end. Women will have right to participate by one third in each structure of the state on the principle of proportional inclusion. Any violence against women is subject to punishment.

 The much awaited draft remains incomplete on major political issues due to differences among the parties and the Maoists. However, it is said to get complete shape when the leaders from both Seven Party Alliance and the CPN (Maoist) sit for the final peace summit.

 In the mean time, the draft has been criticized by constitutional law experts and legal professionals saying it as incomplete and imperfect. They have said that the draft statute has not clearly differentiated between the Constitution and the general laws and as such it has not adopted the norms and values of constitutionalism. They have also cautioned that its enforcement in the present state could not only thwart Constituent Assembly elections but also push the country towards a deeper crisis.

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Speakers demand for speedy decision on Constituent Assembly

Speakers at the programme jointly organized by Kathmandu School of Law and Lalitpur District Unit of Nepal Bar Association have demanded for quick political decision from seven parties and the CPN (Maoist) on the main agenda of Interim Constitution and Constituent Assembly.

Prof. Madhav Prasad Acharya presented a commentary on the draft of the Interim Constitution jointly written by him and Assoc. Prof. Yubaraj Sangroula. "Parties organized the drafting committee without adequate homework and failing to reach in common understanding is the main cause of half baking of the draft. The failure in making clear about who issues the constitution and how, is the serious error of the draft", the commentary describes. 

Speaking at the programme, Pradip Giri, leader of Nepali Congress (Democratic) said referendum to decide the fate of monarchy is necessary before going into the constituent assembly. "The prime objective of the people’s revolution-2 was to dethrone the king so, the ocean of people profoundly came down to the street", he recollected.

Sambhu Thapa, President of Nepal Bar Association urged the top leaders to discuss on the objectives of constituent assembly rather than delivering lectures. "The disagreement between parties and Maoist will get a hold of aloofness in the political standoff and subsequently plunge the state on the path of aggression", he made cautious. Raising questions on the delay of determining the process of constituent assembly, he said, "Neither any discussion nor any workout has been done in the main agenda".

Khim Lal Devkota, the Maoist representative in the drafting committee, said that the political dialogue is going on to unify the government and the army. "The standoff on the political outlet is due to the proclivity of parliamentary parties towards the interests of the foreign powers", he alleged.

At the programme, advocate Chandrakanta Gywali said that the interim constitution has created a vacillation whether it accepts the parliamentary supremacy or the supremacy of constitution. 

Members of the Interim Constitution Drafting Committee Pushpa Bhushal and Chandeshwor Shrestha also made comments on the paper.   

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Feature Article

 

 

 

 

Meaning, Implications and Scope of Constituent Assembly

In my opinion, State as a dynamic society of free persons reinvents its values of governance consistently and continuously. A society that fails to reinvent it is doomed to disappear. Values of governance in a progressive democratic society are preserved in its innate constitutionalism and expressed in its constitution. The constituent assembly is a process of reinventing values governance with consensus opinion of all members of the given society.  Constituent assembly is thus not a machine to make constitution lasting for all the time. It is a process and instrument both to help the society to popularly reinvent its fundamental values of governance. A free society is marked by democracy, and constitutionally the democratic society is marked by a set of freedoms of human persons inherent in their birth as human being. The constituent assembly has be en used by democratic societies to frame a Constitution by choice of citizens. Obviously, they are not only privileged but also exclusively authorized to determine the destiny of their society.
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Constituent assembly is thus driven by the objectives behind it. It would thus be difficult to make ‘a universal modality of constituent assembly’. Why one society wants to use it is determining factor for both the definition and scope of the constituent assembly. No society can use without clarity of thoughts and minds. To summarily spell out, the following objectives make it a extremely dynamic process;

a.             Popularization of the ownership of the form of the government- in a society where the process of constitution making through more informal mechanism has failed, the constituent assembly has often been proved a successful venture to sustain democratic form of government. This form of constituent assembly had been used by India and South Africa.

b.            Internalization of the sense of nationhood and national pride- newly independent countries have used constituent assembly to internalize the victory of independent movements and acquisition of freedoms. India has been the best example. Indian leaders used this instrument to educate the whole nation that the constitution was brought in shape after a long and sorrowful struggle for freedoms. In fact, the India society could have accepted the constitution even if it was solely made by Mathma Gandhi.

c.             Demarcation of rights and guarantee of existence- in some countries the constituent assembly has been successfully used to demarcate the rights and guarantee of existence of groups with their distinct identities. The South Africa is the example. In here, the Constituent assembly had been used to formalize the political understanding of recognizing the groups’ rights.

d.            Democratization of State- in some countries the constituent assembly has been resorted to eliminate the loopholes of authoritarian regression. Malawi is the example.

e.             Demonstration of strength- in some countries, the constituent assembly has been used to depose autocratic regimes by showing up the solidarity of constituents-population. France is the example. The Constituent assembly was convened to press the monarch to abdicate. In Russia, the Bolshevik used the same objective. However, they failed to win the majority.

f.              Utilization of chance to mass building- there is a instance where the constituent assembly had been used to build a support of the mass for revolution. In Russia, the Bolshevik used constituent assembly for building the mass support to proletariat capture of the State’s power.

By nature of outcome, some constituent assembly resemble to referendum, while others instrument of formalizing the democratic form of government. In any sense, the constituent assembly promotes a democratic practice of forming the government structure. But its objective might be stolen to deform the democracy and set up an autocratic regime. As a matter of fact, the constituent assembly is not an instrument totally free of endangering the democratic wills of people. Read More >>

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