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Kathmandu School Of Law (KSL) | ||||||||||||||||||||||||||||
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News |
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KSL marked its 8th Annual Day on 21st Poush 064 (5th Jan 2008) with several events. The programme observed debate, speech and elocution competition of LL.B. students; felicitation to prominent personalities; award distribution to high scoring students in board examination; and keynote remarks by the distinguish guests. Hon'ble former Justice Tope Bahadur Singh, Director, National Judicial Academy addressed the event as the Chief Guest. Students of LL.B 1st Year made a speech in guise of Prime Minister, Foreign Minister, and Oppositional Leader of the country. Students of LL.B 2nd Year presented debate on the issue of socio economic and civil and political rights. Similarly, the program added its attraction by the elocution contest on the pertinent issue of the country 'Federalism'. The program observed the felicitation to three personalities who contributed significantly in the field of law and justice. KSL honored Advocate Prakash Osti for his consistent perseverance in developing Nepalese Jurisprudence through academic magazine- Kanon Patrika. The token of appreciation was awarded for his contribution in development of legal literature and advancement of exploration of Nepalese legal history and jurisprudence. He thanked KSL for acknowledging the effort and shared his experience of struggle in legal profession. Similarly, Mr. Bishwo Adhikari, Protection Officer, Nepal Police Human Rights Cell and Mr. Purna Bastola, District Attorney in Chitwan, both being ex-students of the School, were awarded for their effective role in promoting of rule of law and human rights culture in criminal justice system. KSL acknowledged the contribution made by Mr. Adhikari in effective management of human rights cell in Nepal Police and development and implementation of human rights curriculum in the cell. Mr. Bastola was awarded for promoting fair trial and human rights education strengthening criminal justice system. Likewise, the Chief Guest distributed prize and awards to the students who scored highest in the university board examination in LL.B and LL.M programmes. Letter of appreciation was also distributed to students who have shown outstanding performance in international competitions and have participated in regional and international programmes. At the same juncture, Assoc. Prof. Dr. Yubaraj Sangroula disclosed the initiatives of KSL to transform itself into a Law University in Nepal. Students and invitees cheered to know about the development. He made highlights on the activities and achievements KSL has been able to achieve so far. Accentuating on the School's focus to cater the national need of highly competent community responsive legal professionals, he talked about the unique and effective teaching methodology of 'engaged learning' applied in the School. In such learning students learn from the practical experiences and develop the sense of being socially responsive. Keynote remarks from the guests followed the session. Mr. Narendra Pd. Pathak Deputy Attorney General, Sr. Advocate Biswo Kanta Mainali, President, Nepal Bar Association, Mr. Sushil Kumar Jha, Examination Controller, Purbanchal University, Advocate Prakash Osti, Retried General Mr. Govinda Bahadur Gurung on behalf of guardian, and Assoc. Prof. H.K Rana were the speakers at the programme. Assoc. Prof. Rana welcomed the guests and participants at the program and briefly highlighted on the objective of the program. Senior Advocate Biswo Kanta Mainali focused that development of the government requires competent human resources that can only be generated by the good universities. He appreciated the effort of KSL in this regard. Deputy Attorney Genaral Narendra Pathak highlighted the necessity of updating legal education as per the need of the nation. Personnel involved in judicial sectors should be responsible to address new challenges and need, and keep themselves update on the issues of the time. Chief Guest highlighted the challenges being faced by the judiciary and mentioned that good legal education is a key to strengthen criminal justice system of Nepal. He said that law is the backbone of the society, and rule of law, and good governance is grounded upon it. Vote of thanks by Asso. Prof. Prakash K.C followed the keynote remarks. Prof. Madhav Prasad Acharya, Professor In Charge, KSL concluded the session after focusing on the need to change the traditionally followed practice of the judiciary in his remarks. Annual Report of the School was distributed at the functions. Guardians of the students, dignitaries from different walks of life, representatives from government and non government organizations, media personnel, and members of KSL were present at the programme. | ||||||||||||||||||||||||||||
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Synopsis of the Research Report: Measures against Anti trafficking in Pashupatinagar, Ilam | ||||||||||||||||||||||||||||
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Research based findings on critical overview of the roles of government and non-government organizations to combat women trafficking in Pashupatinagar, Illam: It has been incessantly observed by various reports of different organizations that about 5000-7000 women and girls are transported to India every year for prostitution. This is indeed a serious slap on the face of a country which boasts of women being respected as equivalent as goddesses. A five day research from 9th-13th Jan, 2008 conducted by the students of LL.B. 3rd year of Kathmandu School of Law explored out significant findings. The research was conducted with an objective to study the initiatives and mechanisms of the government and non-government organizations to combat cross-border trafficking in Pashupatinagar (Illam). The research basically intended to observe four aspects. Firstly, to check how the government institutions such as police, VDC, Human Rights Centre etc. are taking actions regarding the issue of human trafficking. Secondly, to observe the activities and interventions undertaken by NGOs. Thirdly, to collect the responsive attitudes of the local people towards such institutions. Lastly, to analyze the co-ordination level among the three major actors in this regard. According to the study of a group of journalists in Illam, out of the total Nepalese women and girls being trafficked to India, 80-85% of Nepalese women and girls working in brothels of Siliguri, Delhi and Bombay of India had been transported via route of Illam, the eastern border of Nepal adjoining India. This reflects Illam as being highly prone area for the movements of traffickers and it is the place where crime of trafficking takes a conclusive step by deceiving the security forces in the border of Nepal. The study covered about 25% of the total population of Pashupatinagar. Findings extracted from this study are worth to be seriously pondered upon especially by all stakeholders. It has been found that ‘Maiti Nepal’ is the only institution working on this issue in the area. One of the initiatives it has taken is to station two of its representatives in the check-post of the border line and they are working in collaboration with the police. Also, their efforts to take complaints of the people and initiate rescue operations on those bases are worth appreciable. On interviewing the police constables of the area, they claimed that they ‘try to monitor the area with a special focus on the crimes of women trafficking’ by carrying out raids on the local hotels, and rushing to the open border points when they get any clue of trafficking act. However, upon close observance, we found several lacunae upon the activities of GOs and NGO. For example, about 70% of the total local respondents opined that although Maiti Nepal is in their area, their task has not extended beyond providing station at the border. No awareness raising programs have been conducted at the wider village level. It was also found by the research that girls of 15-16 years of age didn’t even know what ‘trafficking’ means. The locals said that they expected Maiti Nepal to regularly hold awareness-programs for the local people. Likewise, activities of the police were equally disheartening in terms of their alertness in the border line. Observation of the research team by one specific experiment would be pertinent to explain the situation. For three continuous days, when some of the girls of the research team walked right through the border line with one senior male colleague, not a single security force intervened with a question. On the other hand, the Indian police at the other side interrogated the team with a deluge of questions. This shows the sharp contrast in the alertness between Nepalese security force and Indian security force at the border. In addition, it was also found that other government organizations as VDC, Human Rights Mediation Centre have not initiated any program focusing to combat the issue of women trafficking. It is relevant to mention here that for the last two years, Nepal Government has been allocating10 lakhs budget to each VDC, out of which 2 lakhs is to be spent for the welfare of women and marginalized section of people. It is indeed saddening to know that not a single amount has been invested upon the measures to combat women trafficking in this area, which happens to be the route of 80-85% Nepalese women being taken to India for prostitution. Another appalling finding is that, when the research team asked why enough initiatives were not taken to file the trafficking cases in the court so that legal remedy can be well sought, some police officers didn’t even know that trafficking cases, as a state-party case, can be initiated in the court through the police report itself. They gave statements such as "because we cannot locate the whereabouts of victims, we are in no position to get the person to file the case". This is a grave peril in terms of the reflection of adequate knowledge of the police as stakeholders to fight for victim's justice. More, the system of lodging the cases through police reports was in a highly dilapidated condition. Through the recorded data, it was found that in between the year 2053-58, only 6 cases related to women trafficking had been filed in the district court of Illam. Since that time, upto 2064 (2007), no case has been lodged in the crime of women trafficking. On a discussion of this issue with a representative of Nepal Federation of Journalists, who was working in Illam, he responded that whoever persons caught redhanded or suspects both were totally handed over to Maiti Nepal and probably their cases were tried in the districts from where the accused originated from. This information shows a clear weakness of crime record system. Since the research also aimed to find out the total number of trafficking cases that took place via Illam, the concerned authorities failed to produce any data. It shows a great fault in maintaining data record system. Upon the insistent queries as to why such malpractices are still prevalent and why enough concern was not aroused to address the problem of women trafficking that takes place via Illam, the GOs and NGO responded that since the problem was specifically directed towards border area, where too many other problems such as those relating to Nepal-India trade, taxes, foreigners issues etc, mechanism to specifically address the women trafficking problem has not been enough. The time, human and financial resources are also the constraints. Unlike India’s resource capacity, Nepal cannot afford for police security all over the open borders such as Shrihante, Gorkhe, Hile etc. in Illam. It is estimated that there are more than 200-300 totally open border points through jungles, riversides to enter India through Illam. Mechanism to monitor all these places is a serious challenge. Furthermore, the weakness of the police force to initiate and lodge cases on trafficking was contended owing to the reasons of the lack of readiness of the victim for fear of social stigma, prestige and also for fear of their future life. The victims are resistive during interrogation as they are fully upon the false belief that they are being taken for getting lucrative jobs, and opportunities. When victims themselves are unaware, uneducated and unwilling to co operate, the police is at a loss to initiate any case through legal proceedings. This fact, has revealed the recently enacted ‘Human Trafficking and Transportation Control Act 2064' fails to address the situation of giving enough security to the victims. It does not address the question who is to take guarantee of the life of the victim and her family is not threatened by organized criminal gangs, if she files a case? The mere provisions of economic compensation and camera court hearing given by this Act cannot convince a person of being able to live in peace. Who knows if she gets murdered while on the way back home if she files a case against the trafficker? Also, a highly organized criminal circle involving the reach of white collars in the crime of trafficking is another factor hindering the police from their smooth operation. Thus, From the research, it can be concluded that this issue cannot be addressed only at GO or NGO level as the crime of trafficking has very broad multi-dimensional problems. The mechanisms of government, awareness level of people, education, employment securities, high level bureaucratic cleanliness, are inevitable elements. Since the research has also found lack of accountability of GO officials, and lesser seriousness of NGO on the issues, a more effective government that is based on “local people’s representation for the local governance system” could help combat the issue of trafficking in their own area. This was the unanimous voice of the local people of Illam, when they were asked of their opinion to recommend. A strong government once formed, anti-trafficking mechanisms could be initiated by the GOs and NGOs on self-motivated, focused basis. They would be able to tackle all imminent constraints in an ambience of a more democratic and rule of law situation in Nepal. Antara Singh Team member of the Research (LL.B. 3rd year) | ||||||||||||||||||||||||||||
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Feature Article |
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Ms. Reena Pathak, KSL Human rights are a set of universal entitlements that individuals enjoy irrespective of their sex, nationality, religion, culture or other status, that are inherent to human beings and that are proclaimed and protected by international law. It stems from the fundamental principle that society, in all its activities, must respect the basic dignity of human person. Human rights have major relevance for shaping appropriate responses to the HIV epidemic and other global health challenges. The importance of human rights in the context of HIV/AIDS is two fold: first, the human rights of people living with or affected by HIV/AIDS are worth of protection and promotion of their own right; and second, an environment in which human rights are respected ensures that vulnerability to HIV/AIDS is reduced, that people infected with and affected by HIV/AIDS can lead a life of dignity without discrimination, the personal and societal impact of HIV/AIDS can lead a life of dignity without discrimination, and the personal and societal impact of HIV infection is alleviated. Human rights thus being universal, inherent, and inalienable, there cannot be different standards of human rights norms and standards for HIV/AIDS patients. Hence, it is in the interest of all to protect the rights of those with HIV/AIDS. The right- based prevention approach recognizes societal vulnerability to HIV/AIDS, not just individual risk behavior. It also recognizes vulnerability in different contexts stigmatized or disempowered populations, such as women, children, gay men, injecting drug users and sex workers. This body of law provides powerful tools for three distinct sectors seeking to address the HIV epidemic. First, human rights law helps states respond appropriately to the challenges of the HIV/AIDS epidemic by providing framework on which they can formulate laws and policies that integrate public health objectives and human rights standards. Second, human rights provides a basis for tools for non-governmental organizations and advocacy groups to use to monitor the performance of states in their policies and programmes and to take action for redress when public health policies violate rights. Third, human rights also speak to the obligations of public health practitioners with responsibilities for the protection and promotion of health at a population level. However, widespread abuse of human rights and fundamental freedoms as a result of the spread of HIV/AIDS has emerged in all parts of the world. Nepal is no exception of it. Misconceptions regarding HIV infection often result in violations of the basic human rights of infected and affected people. The social response to HIV has involved stigma (negative judgements and prejudice towards those infected and affected) and discrimination (unequal treatment of those infected and affected). Such violations increase the likelihood that HIV will spread, since people are less willing to seek counseling and advice if they are concerned that they may be at risk of HIV, to test for HIV, or to admit their HIV- positive status and seek treatment and support. By early 2005, more than 800 cases of full-blown AIDS and over 4,700 cases of HIV infection were officially reported in Nepal. World Bank figures indicate that one-third of HIV infections nationwide are among Injecting Drug Users (IDUs). In the Kathmandu Valley the HIV prevalence rate among IDUs in the early 90s was 2%; in 1999 it exceeded 50 %. UNAIDS estimates that at least 10 per cent of the 2 to 3 million Nepali migrant are infected with the deadly virus. The HIV situation in Nepal is characterised by the high prevalence among groups involved in high-risk behaviour. Among street sex workers in Kathmandu, it rose from about one per cent in 1992 to about 16 per cent in 1998. Among Intravenous Drug Users (IDUs), it raised from about two per cent in 1991 to 50 per cent in 1997. STD is a significant correlate of the HIV/AIDS epidemic. It is estimated that 200,000 episodes of STDs occur annually in Nepal. The STD prevalence rate in women is approximately 4.7%, ranging from 2.7% - 5.4%. Access to STD services is still very poor, especially among women. In addition, the use of condoms for effective infection prevention is not yet commonly known or accepted. Condoms contributed to only 1.1% of the total contraceptive prevalence rate. At present other methods of contraception are emphasized, which leave women vulnerable to infection and force them to negotiate condom use for infection prevention. People with HIV/AIDS can choose what kind of work they want to do as per their wishes. They have right to fair labour practices and should not be unfairly discriminated against them at work. Everyone has a right to employment in accordance to his/her capacity and qualification. Everyone has the right to live in a clean environment i.e. this right is important for PLHA (persons living with HIV/AIDS) who is living in state institutions such as prisons or psychiatric hospitals. Similarly, such people have equal right to property as other people possess. No person may be evicted form their home or have their home demolished. PLHA may not be refused a subsidy or loan to buy a house. As per Labor Act, PLHA have the right to disability grants if they are too ill to support themselves or their families. Similarly AIDS patient can't be denied the same right of education as all people do deserve. As per Children Act, a school can't refuse to educate a child merely on the ground that he/she is HIV positive and no one shall be detained or prevented from his/her life without the authority of law. Prisoners cannot be treated in a discriminatory or undignified way just because of their HIV status. i.e. everybody should be entitled to enjoy the just, fair right to criminal justice. An initiation has been taken by preparing proposed HIV and AIDS (Prevention, Control and treatment) Bill/Ordinance, 2062, which has marked a milestone in the field of HIV/AIDS. It is a comprehensive document for strengthening the status of public health by preventing, controlling and treating HIV and AIDS and for establishing an institutional mechanism for protection and promotion of rights of individuals infected and affected by HIV and AIDS. Besides this, there is a National Center for AIDS and STD Control, as the principle-monitoring agent, to monitor the implementation through the agreed indicators with added responsibility in epidemiological surveillance, care, and support. However, they have not been able to enjoy their rights as per their expectation and their need. A growing body of national and international treaties and customary international law details the obligation of states to respect, protect and fulfill human rights. United Nations General Assembly Declaration of commitment on HIV/AIDS notes that "the full realization of human rights and fundamentals freedoms for all is an essential element in a global response to HIV/AIDS pandemic". It also sets concrete, time bound targets for the introduction of national legislation and other measures to ensure the respect of rights in regard to education, inheritance, employment, health care, social and health service, prevention, support, treatment, information and legal protection. In an effort to strengthen the implementation of the national HIV/AIDS prevention and control strategies, Nepal has established a National AIDS Council (NAC). As the development of the epidemic had rapidly changed in the last three years, neither the public sector, nor communities were prepared to address the needs of marginalized and stigmatized groups, whose access to services and information was already restricted. Denial of the seriousness of the epidemic is still common, and recent data show a very low level of HIV awareness and risk perception, especially among women. Moreover, the social environment needed for successful intervention is far to support these actions. The main challenge for Nepal is to respond immediately to an evolving HIV/AIDS epidemic. This has to be undertaken in the context of a civil conflict in the country, weak implementation capacity both within the public and the private sector, structural weakness with respect to multi sector involvement, coordination policy, monitoring and evaluation, and scarce internal resources. Main issues which need to be addressed are: stigma and discrimination, gender inequality and related vulnerability to HIV/ AIDS, scattered interventions with low coverage, significant gaps in research, particularly relating to the sexual behaviour/ cultures of labour migrants and construction of gender roles among Nepali people. It can be concluded from the above study that AIDS epidemic is increasing day by day. Lack of awareness, thinking and negligence constitutes a vital role in its increment. Furthermore, the study reveals that the levels of high risk behaviour such as unprotected sex and injecting drug use have lead to HIV infection. Since the International Guidelines on HIV/AIDS and human rights propose the states, through political and financial support, to ensure community consultation in all phases of HIV/AIDS policy design, programme implementation and evaluation, many initiatives are being undertaken in different contexts and that reflect approaches to law and policy related to HIV/AIDS that have roots in international human rights law. The emergence of the new bill has, to a larger extent, has protected the human rights of the AIDS patient. Public health and human rights are complementary, not conflicting, goals. The protection of public health shouldn't be used as a pretext to justify punitive measures. HIV/AIDS is not merely a medical problem, but requires a broader, multifaceted response. Therefore, a consensus now exists that public policy is required to address not only medical or public health issues, but also the socioeconomic context, including issues pertaining to human dignity and elimination of stigma and discrimination. Although international human rights treaties include monitoring mechanism, and some provide for individual complaints about states' behaviour, the provisions for enforcement are generally weak. Participation is key in this area because without its "reality check", governments as well as others can not do anything. To promote rights-based approach to HIV/AIDS, National associates- comprising lawyers, other professionals and people living with HIV/AIDS should be united. | ||||||||||||||||||||||||||||
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Kathmandu School of
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