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

 

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National Symposium on Marginalized Community's Agenda in Constituent Assembly

Kathmandu School of Law in managerial involvement of KSL Law Students Society organized a three-day National Symposium on Marginalized Community's Agenda in Constituent Assembly from 31st January 2008. Hon'ble Justice Kedar Nath Upadhyaya, Chairperson, National Human Rights Commission inaugurated the Symposium. The program commenced with the official release of the Research Report entitled Analysis of Legal Provisions for the Empowerment of the Marginalized and Endangered Community and Proposals for Amendment, and release of the CD with collection of judgements of the Supreme Court related to the issues of marginalized and indigenous community.

Speaking at the opening ceremony, chief guest Mr. Upadhyaya said that research should be conducted in the indigenous communities to incorporate their demands in the new constitution. He appreciated the pertinent effort of KSL to educate and sensitize people of the marginalized community about their agenda to be raised in new constitution.

"All marginalized indigenous groups have rights to participate in law making process and the government should collect their views before formulating a new constitution," he said. He also urged the government to pay heed to the problems of all marginalized groups.

Justice Upadhyaya informed that interim parliament has already ratified International Convention on Labour Association No.169 that will come into effect from 14 September 2008 in Nepal. NHRC, in this regard, is accountable to monitor the work performed by the government for the protection and development of these communities. He also highlighted the importance of the participatory election for the sustainable development of New Nepal.

Member of the Interim Legislature-Parliament Mr. Harihar Dahal said without guarantee of socio-political and cultural rights, development of new Nepal is not possible. Successful constituent assembly election is inevitable to ensure inclusivity, protection of human rights and federalism. He urged participants to work for making CA election a grad success.

Mr. Khimlal Devkota, another lawmaker stressed on ensuring economic, social and cultural rights. “Unless the members of marginalized indigenous groups have their own property they cannot exercise their fundamental rights," he said.

Mr. Raman Kumar Shrestha, General Secretary of Nepal Bar Association, highlighted the fact that lack of participation of marginalized people in constitution making process was the root cause for the failure of 1990 Constitution that has brought present political impasse in the country. He warned not to repeat the same in writing the upcoming new constitution. He appreciated efforts of KSL students for working for such vulnerable groups.

Mr. Pasang Sherpa, President of Nepal Federation of Indigenous Nationalities, admired effort of KSL to bring representatives from different marginalized community in one platform to discuss on their burning agenda. He highlighted the need of similar discussions to ensure socio-political and cultural rights of the marginalized community in the upcoming constitution.  

Despite significant progress in the baseline participation, there is a need to make the new constitution more transparent, inclusive and balanced, Annemarie Devereux, the legal advisor of UN High Commissioner for Human Rights said. “Marginalized indigenous groups must have access to justice and their appropriate representation is required in constituent assembly election," she added.

Mr. Thakur Gaire, President of All Nepal National Free Students Union and another student leader Mr. Ishwor Paudel, ANNFSU (R) pointed out the importance of the development of these communities through access to resources, education and equal opportunity.

While addressing the program central member of Center for Legal Research and Resource Development (CeLRRd) Mr. Baldev Chaudhary urged all not to rely only on the reports published by NGOs and INGOs but to conduct face to face discussion with these communities to identify their real problems and concern and to provide due place therein in legal and constitutional agenda of all the political parties.

Bir Bahadur Lapcha, a representative from marginalized indigenous group said that they were also aware of their rights and they would not vote any individual or party if they did not include endangered and highly marginalized communities’ issues in their election manifestos. “We will only vote them who guarantee our representation in the CA election," he said.

Bandhan Kumar Munda, one of the representatives from Munda community said that political parties have failed to include the members of marginalized community in the party structure.

He demanded for including the community members in the decision making process. “The mundas are left out from registration and we have to fight for our identity," he added.

Ms. Rita Baram from Baramu community highlighted the changed scenario of marginalized communities who have to a greater extent become aware about the importance to cast vote in CA election not for the fulfillment of physical needs but for the sustainable development of their community. Expressing disappointment with the trend of representatives of political parties and interim parliament leaving the program without hearing other's voice, she requested all stakeholders to have patience to hear the voice of the community whom they are representing in the parliament.  

Dr. Yubaraj Sangroula, Executive Director of KSL, highlighted that the objective of the program is to facilitate open discussion on the related issues among these communities and sensitize them about their legal and constitutional rights. The inauguration session was chaired by president of CeLRRd Mr. Kumar Sharma Acharya and the welcome remark was delivered by Assoc. Prof. H.K. Rana.

340 participants including 70 representatives from 22 marginalized community, local stakeholders, representatives from different indigenous communities, law professionals, members of Interim Parliament, and faculty and students of Kathmandu School of Law were present at the inauguration ceremony supported by The Asia Foundation.

The inauguration ceremony was followed by a two-day workshop in which students, advocates, and professors of Kathmandu School of Law (KSL) presented four working papers on the basis of the research report prepared by the students of KSL. The papers included analysis of laws and amendment proposals relating to land holdings; employment in police, military and civil service; access to justice; and citizenship focusing on endangered and highly marginalized community and role of Constituent Assembly.

The symposium passed the amendment proposals after discussion with the experts of the related fields and representatives of marginalized indigenous groups. The commentators were Mr. Keshav Bada, Former Land Minister and President, High Level Land Reform Commission; Mr. Jagat Basnet, Executive Director, Community Self-Reliance Center; Raghunath Lamichane, Journalist; Dr. Ganesh Man Gurung, Member, Public Service Commission; Lok Bahadur Thapa Magar, Member Secretary, National Foundation for Development of Indigenous Nationalities; Mr. Biswokant Mainali, Senior Advocate and President, Nepal Bar Association; Prof. Kapil Shrestha, political scientist; Advocate Kumar Ingnam, Advocate Surendra Mahato; and Advocate Achyut Budhathoki.

At the end of the symposium, participants declared resolution to be addressed by the constitution and subsequent laws on issues relating to access to property, education, health, justice and employment opportunities. The resolution will be handed over to the election candidates; whoever comes to their doorsteps asking for votes during the CA election. They also expressed their commitment to engage in its advocacy in the constituent assembly election and thereafter. They also formulated a charter for Citizens of Nation, a citizens' platform for defending the nation with inclusive democracy.

The closing session of the national symposium was conducted in presence of Hon’ble Pradip Nepal, Minister for Education and Sports. Concluding the three-day workshop, Nepal said CA polls were a must to end the monarchy, adding that the country would face an unprecedented accident if the polls were not held. Expressing his confidence that CA polls will be held on the scheduled date at any cost, he also expressed his commitment to help the marginalized and endangered communities from his side.

On the occasion, member of the legislature-parliament Rijwan Ansari said the end to monarchy was a must for the liberation of the people.

At the programme chaired by Prof. Madhav Prasad Acharya, executive director Dr. Yubaraj Sangroula, associate professor Kumar Innam, representatives of endangered communities Mr. Bandhan Kumar Munda, Ms. Gyanumaya Danuwar, Mr. Bir Bahadur Lapchha and Ms. Anita Urau, among others, stressed on representation of endangered and marginalized communities in the constituent assembly.


Hon'ble Minister and distinguished guests on Dias, and the participants

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Resolution Adopted by the Symposium

National Symposium on Marginalized Community's Agenda in Constituent Assembly

31st January – 2nd February 2008

 

Resolutions of the Symposium

We, the representative of the endangered and highly marginalized community in the National Symposium on Marginalized Community's Agenda in Constituent Assembly, demand for the immediate nullification of all legal provisions that endanger, discriminate, exploit and  suppress the endangered and highly marginalized communities in all or any forms, and agree to pass the following resolutions and unanimously express our commitment to involve ourselves in its advocacy in the upcoming constituent assembly election and thereafter.

At the outset, we strongly condemn and object the trend of the representatives of political parties and organizations of leaving the floor immediately after delivering their remarks.

Right to Access to Property

·       Economic development is priority issues of the endangered and highly marginalized community. Therefore, economic right must be recognized as a fundamental right.

·      Internalizing the fact that in order to attain economic, social and political justice, and prosperous livelihood, it is necessary to have one's direct possession to resources, we demand that right to land be considered as primary fundamental right and as a right to identity. We also believe that as a right to identity, every citizen should have right to land as defined by the minimum standard.

·      We pass the following proposals in order to customize the practice of recognizing right to land as primary fundamental right:

-     There must be a legal provision in the constitution to provide agricultural land under the given ceiling to the citizens who desire to adopt agriculture as an occupation, and to compulsorily obtain farmer certificate.

-       State must protect agricultural land from being urbanization.

-       There must be ownership of endangered and highly marginalized communities on the natural resources that they are dependent upon.

-       Only a person who is engaged in agricultural work must be registered as a farmer and only the registered farmer should be provided with legal entity to buy the agricultural land.

-       The industries, except those that are based on agriculture, must be established only on unproductive and less fertile land. While doing so, the valuation of the land should be made in consent of the farmer and the property should be transformed into share values.

-       System of Birta or Guthi (Trust) must be nullified and state should distribute the land under it to the registered farmers within the prescribed ceiling limit.

-       Collective and scientific farming in agriculture land should be encouraged. However, if one wishes to undertake individual farming, he/she should be provided with the facility of using equipments and resources under a cooperative system. There must be a separate legal provision to facilitate this provision.

-       State must purchase the products produced by the marginalized community. Price of the products must be determined by an institution which also includes the representatives of the farmers. 

-       A current system of levying tax on land must be nullified and a system of levying tax on productivity should be introduced. Tax system should be determined on the basis of economic condition of the farmer, and on recommendation of the local representative bodies and local organization of the marginalized communities.  

-       State must introduce a system to capitalize the means and resources used in production. Under such system, farmer can receive capital for handing over the land to the state if he/she wishes to do so.

-       State must operate agricultural industry in an appropriate place and farmers should be allowed to invest their land as share in the industry. State must provide alternative land in other place for those who don't wish to invest in industry as a share. However, any such industry shouldn't be operated if it adversely affects the agricultural land, or is detrimental to the livelihood of the endangered and highly marginalized communities. Involvement of these communities should be made compulsory while establishing and operating those industries, if any.

-       Foreign investment must not be prioritized in agricultural industries.

-       The constitution must ensure the provision to exercise all the rights of the endangered and highly marginalized communities in the federate states so that they can exercise their rights over their land in federal states also. 

Right to Access to Education and Health

·      There must constitutional guarantee to obtain primary level education in his/her mother tongue.

·      Students of marginalized communities must be provided with free education services in all level of education along with guarantee of free health services.

·      Education is inevitable to get access into army, policy and civil services. Therefore a constitutional provision should be made to allow 20% of the quota to the children of endangered and highly marginalized community in police and military school.

·      A separate Ministry must be established for the protection of language, culture, script and religion of the endangered and highly marginalized community.

·      Every endangered and highly marginalized community should conduct research on all cultural practices against human rights and campaign against it. The state should bear the responsibility of supporting all these activities.

·      There must be provision to accept higher education certificates of the marginalized community as a security to obtain loan.

Right to Access to Employment

·      State must guarantee the employment of people from the endangered and highly marginalized communities for their livelihood.

·      Internalizing the fact that participation of endangered and highly marginalized community in military, police and public service is very minimal or almost non existence, state must ensure reservation of at least 10% of quota to these communities for at least twenty years.

·      State must make provision to appoint endangered and highly marginalized community people at local bodies.

·      All legal provision should ensure equality in opportunities. However, priority should be given to endangered and highly marginalized communities in such opportunities.

Right to Access to Justice

Decentralization of judicial system must be guaranteed in constitution for which following steps should be incorporated in law by the state:

·      Due to unscientific management of state structures, central justice system has become expensive, complicated and out of access to endangered and highly marginalized communities. Therefore, restructuring of state structure is a must for appropriate management and distribution of judicial power. Federal justice system is a need of the hour.

·      Access to justice must be recognized as a fundamental right.

·      Judicial structure and appointment is non transparent, unscientific, unaccountable and over politicized due to which there is very less chance of  neutral and competent person getting appointed. As a result, the representation of endangered and highly marginalized community in judiciary is almost zero. Therefore, a constitutional provision should be made to ensure the appointment of competent and accountable person with good conduct and jurisprudential conscience in an open and transparent manner. Priority should be given to the people from endangered and highly marginalized communities while appointing as judge and other official in government offices.

·      Property shouldn't be a basis of getting justice. Dispense of justice need to be completely free. Justice must be taken as a service, not a business or means to collect tax.

·      State should develop mechanism to institutionalize the alternative dispute resolution mechanisms to settle the minor disputes at local level.

·      Law must be made to provide justice to the marginalized community from local level where they have direct access.

·      Law must be made to provide compensation to the affecting party resulting from filing a case against him/her.

·      State must provide free legal aid lawyer as demanded by people from the endangered and highly marginalized community. Such arrangement must be made by state through an organized unit.

·      Law must criminalize the person who offers and receives dowry.

·      Ethnicity-based autonomy must be recognized in federal states. Concept of sub-autonomy should not exist. All the issues except military, foreign policy and currency should be governed by autonomous state itself.

·      A special legal arrangement must be made in regard to rights of dalit women.

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Child Rights Research and Resource Center at KSL

KSL has established a Child Rights Research and Resource Center (KSL Child Rights Center) in order to strengthen research and sharing of information in the issues of child rights at national as well as regional level. The primary objective of the Centre is to build a competent rights regime in Nepal (and South Asia region) by establishing a capable institution to generate human and intellectual resources pertaining to child rights, development and psychology.

The Center has been established as an outcome of the commitment of different like minded institutions to work as joint venture to protect and promote child rights and access to justice. Save the Children Norway, Save the Children Sweden, UNICEF, Tdh Nepal, CeLRRd deserves credit to initiate this important mission. Their contribution in providing moral, financial and logistic support has boosted up KSL's strength to initiate the challenging but benign mission.

Specific Objectives of the Center:

·          Conduct continuous research and impact analysis study of programs being implemented by various agencies in relation to the child rights, development and psychology.

·          Review of the child rights enforcement situation in Nepal and other countries.

·          Serve as information clearing house by disseminating information in the issues of child rights periodically and annually.

·          Initiate activities to promote and protect child's right and access to justice.

·          Coordinate with agencies engaged in protection and promotion of child rights, development and various types of welfare services.

·          Conduct interactive seminars, symposiums and conferences, and academic diploma courses on child rights, development and psychology.

The Center has started its activity by setting up documentation and information section at KSL. Reading resources and publications are being collected and documented. Terms of Reference and guidelines for the operation of the Center have been developed. The Center shows documentary on child rights issue every Monday at 2:00 pm at its documentation and information section to the students and faculty of the school and researchers of the related area. Similarly, the Center has scheduled to organize interaction program on child rights issues to the secondary and higher secondary school students once a week. The Center has started reviewing the curriculum of law schools and other organizations on child rights. Students of LL.B. have been working as interns in the Center.

Future Work Plan:

·          Establishment of Institutional Framework of Child Rights Research and Resource Center

·          Launching of Research and Academic Activities

·          Holding Seminars, Interactions and Research at national and regional level

·          Establish Legal Aid Support to Children

·          Establishment of Information and Documentation Section

·          Launching Short Term Diploma and Post Graduate Degree Course on Child Rights

·          Launching Advocacy and Awareness Programs

·          Organize National Conference
 

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Human Rights Cell in Kathmandu
Human Rights Enforcement Committee of KSL Law Students Society formed one more Human Rights Cell in South Point School in Baneshwor on 15 February 2008. The Committee has already established four such Cells in secondary schools in Bhaktapur, Dhading, Nuwakot, and Sankhuwa sabha. The Cells were formed in order to sensitize young students about human rights and democratic values. 

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Online Discussion

 

 

 

 

Copyright issue in exam answer sheet

Asst. Prof. Raj Kumar Suwal, KSL

Recently a news was published ('Uchcha Madhyamic Shikshya Parisad le Prashna Patra Pustak Prakashan Garne', Samaya Samaj Weekly, 4 February 2008) with the information that the Higher Secondary Education Council (HSEC), Government of Nepal is going to publish  a book for students of Higher Secondary level compiling the answer sheets of the students who scored highest in the exam. According to the news, HSEC will publish the answers written by the students in their respective subjects for particular questions in that book. Mr. Ram Sagar Yadav, Vice-Controller of Examination, HSEC said that in course of publication of the book, HSEC will select the answer sheets belonging to topmost students who scored higher marks in the respective subjects. Those answer sheets will be put forward to the Subject Committee which will finalize the paper after making consultation with specialists of the respective field. However, the Subject Committee has no provision of involving students whose answer sheets are going to be published. The Committee has not deemed it necessary to take consent of the students to publish their answer sheets. It means that there will be no reference about wherefrom that answer sheet has been taken and who is the writer? The book will contain the answers without the name of student who has answered the question. Neither HSEC has regarded the issue of the copy right while publishing the answer sheet nor has it thought of providing remuneration to those students. The copyright will, obviously vested to the HSEC on the published book.

Answer sheet of students is considered to be the original literary work under the copyright law. The law provides economic as well as moral rights to those students whose answer sheets are going to be published including right to be named as author. Copy right law protects an original work of the creator for his/ her whole life and even after fifty years of creator's death. The copyright in original literary work will last after fifty years from the first day of following year of the year of author’s expire.

Therefore, issues to be raised are: 

1.       Whether the students have copyright on there answer sheet or not?

2.       Whether the HSEC can do such things that contravene the copyright of the students?

3.       Whether students should get reasonable remuneration from publication of their answer sheet by the  HSEC?

4.       What will be the impact of such activities in the field of education, culture, and copyright as well as to those students whose work is going to publish by HSEC?

5.       Is it public issue or personal one?

(Join in Online Discussion>>)

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