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Kathmandu School of Law (KSL) marked its tenth anniversary on 21st Poush, 2066 (5th January, 2010) amidst various programmes. Chairperson of the National Human Rights Commission Kedar Nath Upadhaya, who is also the patron of KSL, inaugurated the programme by releasing three books authored by KSL professors. The programme also observed felicitation to prominent personality, award distribution and certification to KSL students, faculty and employees, final round of debate and speech competition among LL.B. students and keynote remarks by distinguished personalities.
Putting his inaugural remarks, chief guest Upadhaya, who is also the former Chief Justice, urged the political parties not to pollute the academic environment with dirty politics. While appreciating KSL's effort to protect and promote human rights, Upadhaya said, "KSL has been providing opportunity for young law scholars to deeply understand the significance of human rights and has been generating a new leadership who are committed to develop a culture of human rights and democratic functioning of the governance." Stating that educational institutions are not the rights place to do politics, he also said that establishment of KSL in the form of university would be a positive step towards quality education for Nepali students. Top The chief guest also released three books, namely, Jurisprudence and Legal Theory, An Introduction to World Trade Organization, and Nyaya, Kanoon, Linga, Barna, Balbalika ra Yudhaka Sandharbama Purbiya Soch ra Srot written by Prof. Dr. Yubaraj Sangroula, Assoc. Prof. Kumar Ingnam and Adjunct Professor Dilliram Gautam respectively.
Students of LL.B. 1st Year made a final round of speech competition in guise of the President, the Prime Minister, the Speaker of the Constituent Assembly, the Foreign Minister, and the Main Opposition Party Leader of the country. Ms. Sudeshna Thapa, Ms. Karuna Parajuli, Ms. Ashma Sharma Ms. Swechhya Sangroula, and Mr. Anurag Devkota appeared as President, Prime Minister, Spokesperson, Foreign Minister and Opposition Leader respectively. The participants put forward their views in contemporary issues. For example, providing federal inclusive constitution within two years, keeping good diplomatic relation with two neighbouring countries India and China, making Nepal not only as yam between two boulders but country between two economically viable state which can take tremendous advantage for its economic development, strengthening the country foreign policy, introducing Nepal in the world by showing the pride of Mount Everest and Gautam Buddha, etc. A penal of judges declared Foreign Minister Ms. Swechhya Sangroula, Prime Minister Ms. Karuna Parajuli and Speaker of the Constituent Assembly Ms. Ashma Sharma as the first, second and third winner of the competition respectively.
Similarly, students of LL.B. 2nd Year presented final round of debate competition on two contradictory topics. One group of four students put forward their arguments on the topic "We want the new constitution on time because making constitution in two years period is social contract between the Nepalese people and political parties" while another group of students put forward their arguments on the topic "We want dependable constitution. Therefore political parties can formulate constitution within stipulated time people have no right to social contract." The team advocating on the motion of social contract was declared as winner of the competition. Top The programme also observed the felicitation of Prof. Kapil Shrestha for his significant contribution for the promotion of democracy, human rights, rule of law and legal education. Chairperson of the National Human Rights Commission Kedar Nath Upadhaya felicitated Prof. Shrestha by providing a token of appreciation on behalf of KSL. Addressing the gathering after receiving the great applause and adulation, Prof. Shrestha thanked KSL for the honour and also highlighted on some of the hindrances while approaching for the Deem University. Similarly, Sher Bahadur Karki was awarded by cash prize and a letter of recognition for being nominated as the best employee of the year 2009. Chief Guest Upadhaya also distributed medals and certificates to KSL teachers and students in recognition of their academic excellence and contribution to the promotion of School's initiatives. Speaking on the same occasion, presidential candidates of Nepal Bar Association election advocates Hari Krishna Karki, Matrika Niroula, Prem Bahadur Khadka and Ram Nath Mainlai expressed serious concerns over the problems grappling the judiciary system. The programme was also addressed by Mr. Ramesh Adhikari from MS Nepal and Mr. Raju Chapagain from OHCHR. Earlier, in course of highlighting on the major initiatives and activities of the one year period, Executive Director Dr. Yubaraj Sangroula accentuated the intervention made by KSL to design the concept on structure, powers and functions of local governance system in the new constitution, collaboration with the University of Sydney to educate the stakeholders of criminal justice system and establishment of International Advisory Committee. He also disclosed the initiation of Master's Degree Programme in Human Rights and Democratisation in collaboration with University of Sydney along with Mahidol University (Thailand), Gadjah Mada University (Indonesia) and University of Colombo (Sri Lanka). The formal session was followed by cultural programme. Annual Report of the School was also distributed to all the participants. Students, faculty, staff, guardians, dignitaries from different walks of life, representatives from government and non government organizations, media personnel, and members of KSL Council and Management Committee were present at the programme. |
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KSL student Mr. Parashmani Pokharel, LL.B 4th Year, bagged Professor K.A.A. Quamuddin Memorial Best Fellowship Trophy in the programme entitled 10th Human Rights Summer School (HRSS) organized by Empowerment Through Law of the Common People (ELCOP), from 10th-21st December, 2009. Students of KSL, Ms. Aruna Joshi from LL.B. 5th Year and Ms. Nishika Sharma and Mr. Ghanashyam Ghimire from LL.B. 4th Year also participated in two-weeks long residential training course which covered the theme of Post- Justice Conflict, Peace and Human Rights. Senior law students from different public and private universities of the country including India, Nepal, and Iran participated in the programme. The resource persons comprising academicians, lawyers, Judges, NGO and human rights activists facilitated the sessions. As this year’s HRSS covered Post Justice Conflict, more stress was given to the justiciability of human rights, rights of refugee and displaced people, relationship between international humanitarian laws and human rights laws. Moreover, participants were also taken, through community visit programme, in actual setting on 15th of December which was related to the issue of prosecuting war criminals of 1971 freedom movement in Bangladesh. During their participation, students from KSL, along with other participants, were also involved in various group activities. On the first day students drafted the Fundamental Charter of Rights and Duties of the people of Adhikarbhumi. Then, with every new day, participants were involved in group exercise covering wide array of contemporary social concern especially, issues regarding Human Rights of the people. Students from KSL also participated in Moot Court Competition. |
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KSL produced three new books written by its faculty on the occasion of its tenth anniversary. The books are, namely, Jurisprudence and Legal Theory, An Introduction to World Trade Organization, and Nyaya, Kanoon, Linga, Barna, Balbalika ra Yudhaka Sandharbama Purbiya Soch ra Srot written by Prof. Dr. Yubaraj Sangroula, Assoc. Prof. Kumar Ingnam and Adjunct Professor Dilliram Gautam respectively.
Jurisprudence and Legal Theory The book entitled Jurisprudence and Legal Theory "Kanoon Satra Tatha Kanoon Ka Sidhanta" is the 6th edition of the writer Dr. Yubaraj Sangroula. The book is written incorporating the issues of the two earlier books named "Biddhi Sasthra Taha Kanoon ka Sindhanta" published in 2044 B.S. and 2046 B.S. respectively. In fact, the present book is descriptive and wider version of these two books. It is divided into thirteen chapters incorporating the issues on the Scope, Definition and Importance of Jurisprudence Historical Introduction of Legal Philosophy, Source of Law via legislation, custom, precedent, Justice, Right and Duty, Various Thoughts of Jurisprudence, Development of Nepalese Jurisprudence, etc. Most importantly, the author has tried to provide the essence of Eastern and Western philosophy by comparatively analyzing the both philosophies. The book is believed to be beneficial to students of law, scholars and all the legal professionals in understanding the different jurisprudence and legal theories and the Nepalese jurisprudence, in particular. It has also made an attempt to show the significance of eastern philosophy. The book has tried to encompass the course of LL.B. students studying under Tribhuvan University and Purbanchal University. Top An Introduction to World Trade Organization Assoc. Prof. Kumar Ingnam has tried to spell out the content incorporated into the Multilateral Agreements, General Agreement, Understanding and Plurilateral Agreements through this book. Many provisions stipulated in these agreements are new and unheard before to many countries. The momentum of the multilateral trading systems under the modalities of liberalization and globalization is so forceful that hardly any country can be detached from the mainstream. Nepal is one of the underprivileged, least developed, land locked country in the globalized world. At this crucial time of introducing WTO into the country, this book will be helpful to make a comparative study about the provisions of the giant rule based institution the WTO and relevant international standards of trade. This book has tried to provide one of the best ways to save this region from the terribly negative situation in future i.e. to educate common people about the positive aspects of multilateral trading system that becomes possible through technological innovation, political change and economic policy. With this publication, the author believes to address the issues of developing countries and educate the people positively on multilateral trading system. Top Nyaya, Kanoon, Linga, Barna, Balbalika ra Yudhaka Sandharbhamaa Purbiya Soch ra Srot Author Dilliram Gautam, Adjunct Professor on Eastern Philosophy, has written this book by addressing the issues of women and children justice in eastern philosophy. The author, through this book, has tried to provide the complete picture of the eastern philosophy and sources in context to justice, sex, children, and conflict. The author has also tried to provide the essence by dividing the chapters into twelve headings. These chapters incorporate conceptual idea on eastern philosophy like bedh, upanishad, historical development of justice in eastern philosophy, easternian philosophy on principle on effective punishment and impunity, children rights, women rights and gender equality in Eastern philosophy. The book is believed to address the interest of the reader who want to know the eastern philosophy from the justice perspective. |
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KSL handed over a Resolution to Constituent Assembly (CA) Chairperson Subash Chandra Nembang along with a procession of students, teachers, lawyers and civil society members on 'structure, powers and functions of local government in the new constitution'. The Resolution was produced as a final outcome of the project "Advocacy Campaign for Structure, Powers and Functions of Local Governance System in the new Constitution" run by KSL in support of Action Aid Nepal and MS Nepal.
While submitting the Resolution, Executive Director Dr. Yubaraj Sangroula urged the CA Chairperson to incorporate them in the upcoming constitution. The Resolution consists of 10-point-proposal along with a concept paper which was prepared during the project based on the comments and feedbacks from different public forums. The same was distributed to the leaders of the major political parties and all CA members to draw their attention towards the need of ensuring constitutional guarantee of fully autonomous local government in the new constitution. Leaders of political parties expressed their commitment that the local self government will be constitutionally guaranteed with full autonomy and more power and authority entrusted upon them. Top Earlier, a 'Press Conference' was organized by KSL to disseminate the proposal. Addressing the conference, Assoc. Prof. H.K. Rana, Academic In-charge, KSL said that the concept paper was prepared with an expectation that the concerned stakeholders would work towards making the local bodies more effective and powerful in the new constitution. "Local government is the place to make use of the sovereign rights of citizen," he added.
Project Coordinator Pradeep Pathak informed that the proposal and the concept paper was prepared after six months long consultation with the CA members, experts of local bodies, representatives of civil society and the general public in nine districts. The deliberations were aired live in television for three hours in which top leaders of three major political parties- UCPN(M), Nepali Congress and CPN(UML)- expressed their commitment to incorporate the suggestions made by the project in the new constitution. The ten-point Resolution read as follows: 1. Constitutional guarantee of the devolution of power to local government is not only about delegated legislation rather it is fundamental and sovereign rights of people in an inclusive democracy. Thus state restructuring is important in order to establish an autonomous government entrusted with political, economic, social, cultural, linguistic, administrative, and judicial and security powers. 2. Democracy sans institutionalization of local government could not be institutionalized, and only a competent and strong local democracy can meet peoples' expectation. Therefore, fundamental structure of the local government should be guaranteed in the constitution. 3. There should be constitutional enlisting of fundamental rights and duties of the local government with provision of its structure on the basis of principle of proximity and viability of distinction of union, province and local government. 4. There should be scientific division of power among union, province and local government so as to maintain balance of political, economical and administrative power for national integration and permanency of the constitution. 5. Though there is a huge debate about federal structure in political arena, yet the issue of local government is ignored. People have not been aware about local self government even after lapse of long time. In addition, parties have diverging opinions regarding nomenclature, territorial boundary, shape, structure, distribution and mobilization of resources. As these issues are not merely political issues, and also requires in-depth study and research from experts, political parties should come to a consensus as soon as possible to immediately constitute a National Restructuring Commission and seek solutions on the conflicting issues. 6. The constitution should guarantee an autonomous, efficient and competent local government under separate chapter which is capable of self designing and executing effective and long term development policies so as to assure itself not as a weak mechanism overtly under the control of centre and provincial government. 7. There is a need of assurance of rights of marginalized, minorities, aboriginals and indigenous in access to natural resources and benefits sharing. 8. There is a need of clear listing of administrative and financial jurisdiction of the union, province and the local government. 9. A powerful and competent High Level Commission should be established to monitor and make a rightful balance in natural resource distribution and financial policies and deal with the disputes between and/or among the Union, province and local government arising out of resource allocation and distribution. It should be clearly spelled out that the concept of 'right to self determination' is not for cessation of the state rather it is for coexistence and equality of all related to political autonomy. |
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Kathmandu School of Law (KSL) is now a member of the Free Access to Law Movement (FALM). Australasian Legal Information Institute (AustLII) has nominated KSL for membership of the FALM. The nomination of KSL for membership was warmly received at the annual meeting of Legal Information Institute (LII) in Durban, South Africa. Accordingly, a database entitled 'Kathmandu School of Law Research Series' have been added at <http://www.asianlii.org/np/journals/KathSLRS/>, as a start toward including KSL data <http://www.ksl.edu.np/legal.asp> on AsianLII. Visitors can find scholarly output from KSL in one database, including both the KSL Journal and the Kathmandu Law Review. KSL will very soon upload other materials at as well. |
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- Narayan Sharma Assistant Professor, Kathmandu School of Law, We frequently get to hear from Nepalese Politicians, statements to the effect that they were authorized to be in power by the spirit of Jan Andolan II (SJA II) and that they were ordained to aggressively defend the achievement of that revolution as “regressive forces” were allegedly conspiring to capsize the historic accomplishments achieved thus far. The present enquiry is indeed not an attempt of value judgment as to the political implication of statements of the above genre but to analyze the jurisprudential signification of what is popularly referred to as the spirit of Jan Andolan II. The premise of my analysis is the popular Pure Theory of Law (PTL) as propounded by Hans Kelsen, a 20th Century Jurist. Legal order as a Normative System: According PTL, a legal order constitutes standard setting norms regulating the behaviors of individuals within its jurisdiction. A norm is an ought proposition that actually lays down as to what ought to be the standard of conduct of an individual(s) in a given situation and is not concerned as to what actually is the behavior. These norms constituting the legal order exist in a hierarchy and a pictorial representation of the entire legal order would resemble a pyramid with a number of individual norms at the bottom and what Kelsen calls the Basic Norm at the top, with a plethora of other norms in between organized in different tiers. These norms do not exist in isolation to each other but are intricately connected with a relationship wherein the existence and validity of the lower norm(s) is authorized by the immediately higher norm. The validity therefore, of all norms below the constitution is derived from the constitution itself. The validity therefore of the entire legal order is based upon two tests: One, the authorization of the lower norm by an immediately higher norm and two, the general effectiveness of the legal order as a whole. We shall return to the question of effectiveness at an appropriate phase later. Top Basic Norm of the 2047 Constitution and its Legal Order: The most intriguing question is as to wherefrom does the constitution itself derive its own legitimacy. While Kelsen himself was of the view that the judge or the lawyer for all practical purposes of the court need not probe beyond the constitution and hence accept its finality as the ultimate source of validity of the legal order, the quest however is an imperative subject of juristic enquiry. Analyzing the source of validity of the constitution itself, Kelsen distinguishes between what he calls the constitution in the transcendental logical sense on the one hand and constitution in the Positive legal sense on the other. The latter refers to the actual document to which we call the constitution, for instance, the Interim Constitution of Nepal, 2063 (IC). The former is actually what Kelsen calls the basic norm, which is the source of validity of the constitution in the Positive Legal sense, ie, the constitution posited in the document and through it, the entire legal order. It needs explanation. To understand as to what is the basic norm that renders reason for the validity of the current constitution, we’re advised to continue tracing back one by one to the earlier constitutions, until one reaches to the historically first constitution. This historically first constitution is so characterized that it cannot be traced further backwards to a “positive norm created by a legal authority.” This historically first constitution came into existence either by a breach of a former constitution (revolution) or for a territory that formerly was not the sphere of validity of a constitution and of a national legal order based on it. The validity of this historically first constitution is derived from a juristic presupposition which is not one of positive law but is extra-legal and is, according to Kelsen, not a subject of jurisprudential enquiry. This initial presupposition may be found in hypothetical postulations like “one ought to behave as the individual or individuals who laid down the first constitution have ordained.” This hypothetical postulation is the basic norm which by its nature is extra-legal but remains legal to the extent that the validity/legitimacy of the legal order in question is grounded upon it. It can be illustrated thus: that each constitution in Nepal till that of 2047 derived its legitimacy from the historically first constitution of the unified kingdom of Nepal after its unification by King Prithvi Narayan Shah (KPNS). That historically first constitution of KPNS in turn derived its validity from the juristic presupposition of the type that “the constitution laid down by the unifier ought to be obeyed.” This is the basic norm. And it continued providing validity to all the subsequent constitutions in Nepal and their respective legal orders including the democratic constitution of 2047. Top Jan Andolan II and Change of Basic Norm: The fundamental difference between all the past constitutions and the Interim constitution 2063 is that while the former had kings at the centrality as the sovereign, the latter has the sovereign people at the centre. The preamble to the IC recognizes this shift. The preamble also recognizes the spirit inter alia of Jan Andolan II and based on it, the IC is put to place. This means that the IC derives its validity from the SJA II, which in turn provides legitimacy to the current legal order of Nepal. Jurisprudentially speaking, the basic norm of the current legal order in Nepal is to be found in the SJA II. This juristic postulate may be formulated thus: “that the sovereign people of Nepal having wished to govern themselves in a Federal Republican system have overthrown the previous basic norm and therefore the fresh constitution as ordained by the people ought to be obeyed.” The change of the basic norm is possible only through a revolution and Kelsen himself has dealt at length. He emphasizes that if the revolutionaries fail, the old basic norm gets revived, the old government resurrects and the revolutionaries tried for treason under the old legal order. Question of effectiveness: Another test for the validity of a legal order apart from the traceability to a higher norm of a lower norm reaching finally to the basic norm is the question of effectiveness of the legal order as authorized by the basic norm. The test of effectiveness actually ensures concretization of basic norm as something real and not just a juristic imagination. By saying that a legal order is effective, it means that the basic norm is effective through the effectiveness of the legal order it authorizes below. Effectiveness as a concept, however, is marred with subjectivity, and Kelsen has prescribed no determining yardstick. Is frequency of obedience or violation a test of effectiveness? Is motive to obey or violate relevant? Are some laws more important than others that its violation indicates the failing effectiveness of the legal order? Because of PTL’s silence as to the test of effectiveness, I intend to (quite arbitrarily) lay down three basic tests, to measure the effectiveness of a given legal order and for the present purpose, the case of Nepal. The tests, may be characterized as (1) Test of Omission (2) Test of Commission (3) Negative Test. Top (1)Test of Omission: This could be further divided into three different parameters, namely, the omission of the state in the supply of basic amenities to the people, the omission of the state in guaranteeing the sense of security and the actual physical security to its people and thirdly its omission in conducting its international affairs as befitting a sovereign body politic. (2) Test of Commission: By this, I intend to mean those actions committed by the government itself, its agencies or its instrumentalities in the form of positive violations, going against the constitution, are opposed to the political understandings reached with stakeholders, opposed to the dictates of the people who elected them to power and also contravene the SJA II. This also includes violations by non-state actors including individuals. (3) Negative Test: By this test I mean the in/ability of revival of the old basic norm. As said elsewhere, if the old basic norm revives, the old order resurrects by replacing the new basic norm. Effectiveness and validity of the New Basic Norm inherent in Spirit of Jana Andolan II: Evaluating the effectiveness of the new legal order on the basis of test number 1 above, one has profound reason to worry. People are marooned with dire stringency of basic amenities, despite repeated promises to the contrary. Problem of outage, of fuel, of food, of clean drinking water, of medical facilities inter alia, are characteristic of an average Nepali life. The second sub-test laid above is more bedeviling than the first as in your right in today’s Nepal ceases to exist, the moment it is violated. The operation of the rule of law is at its lowest ebb evidenced by the culture of impunity rampant in today’s Nepal. The legal order does not score high vis-à-vis the third sub-test which is evidenced by the failure of the government to pursue a policy of the choice of the Nepalese with the alleged over-indulgence of international players. While it is not the purpose of the present enquiry to catalogue the series of commissions under test number 2 above, it does sustain the fear that the government and its instrumentality as also individuals are indeed instrumental in repeated violations. The sanctity of the current Nepalese legal order therefore is a victim of not only non-state actors but also that of the state’s acts of commission or omission or that of its agencies or instrumentalities. Top The primary area wherein the current legal order sustains well is the third test, namely the negative test. This means that the amended basic norm (found in SJA II) and the legal order authorized by it including the IC itself are valid under a scrutiny of the PTL more because the old basic norm, to which a politician might call regressive force, has not thus far revived. The test of effectiveness, upon acceptance of parameters we have laid down reveals that the current legal order is in bad health. As long as we are able to draw the legitimacy of an individual norm to the constitution which in turn derives its own legitimacy from the Basic Norm, we ought to theoretically, according to PTL, rest assured as to the validity of the legal order. In the case of Nepal, the “spirit of Jan Andolan II” is sworn by too frequently. SJA II which constitutes the new basic norm has however become an expedient rhetoric to meet political gains, rather than the basis for the entire legal order, which we say is our historic success. Understanding of the jurisprudential importation of SJA II should inject seriousness in both the state and non-state stakeholders, including the individuals about enhancing the effectiveness of the legal order. The danger to the current legal order however, is less from the “regressive forces” (read old basic norm) but more from all of us including the government who seem united to dismantle the effectiveness and hence validity of the current legal order. There in no meaning then, crying foul for a problem we ourselves are responsible for. |
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Kathmandu
School of Law
/ Telephone : 977-01-634455/6634663, 2042268 |
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