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

News

KSL Celebrated its Seventh Annual Day

Mr. Min Bdr. Rayamajhi, Hon'ble Justice, Supreme Court of Nepal, Mr. Laxman Pd Aryal, Hon'ble Former Justice Supreme Court, Mr. Yagya Murti Banjare, Hon'ble Attorney General of Nepal delivered their speech as the guests of honor at the program.

Distinguish Guests at the Program

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A three days consultation meeting on regional study on anti trafficking legal frameworks in Nepal, Bangladesh and India concluded with the development of the common research modality to be followed by the respective countries in order to conduct the national study. The meeting also endorsed this regional study as major intervention to be made by South Asian Law Schools Forum for Human Rights (SALS Forum). The meeting, held in 27 and 28 May 2006 in Dhulikhel Nepal, was organized by Kathmandu School of Law through SALS Forum in support with Terre Des Hommes (TDH), Nepal.

Participants from India, Bangladesh, Pakistan and Nepal were present at the consultation meeting.

The research study is targeted to explore differences, gaps and loopholes of the anti trafficking legal framework in the respective countries so as to harmonize them with the international standards. The research is deemed important in developing a common curricula and approach on teaching human rights in the field of trafficking in law schools of South Asia.

Prof. Dr. Nomita Aggarwal, President SALS Forum and Chief Consultant of the regional study, highlighted on the past interventions made by the forum in burning issues of South Asia such as trafficking in women and children and violation of human rights. She mentioned that SALS Forum has taken educational approach to intervene in the issue with a belief that education is imperative to address any social problem. In this regard, it reviewed the curriculum of different universities of south Asian region and developed the curriculum which is being experimenting in universities abroad. She also mentioned that this regional study will be the second major project to be implemented by the forum which will come out with the concrete document to address the issue of trafficking in the participating countries.               

Associate Professor Yubaraj Sangroula, Secretary, SALS Forum thanked TDH for its pertinent initiation to work in trafficking areas from human rights perspective. He mentioned that trafficking even till date has been dealt from the perspective of social crime. Many people understand it as a violation against women and the issue related with law. They fail to take trafficking as the matter of human dignity, he mentioned. Further explicitly relating the issue of trafficking with human rights of individual he said the whole focus of the program is ultimately to explore the gaps, challenges that have proved to be hindrance in fostering human rights values.

The next session was followed by the presentations. Mr. Birodh Pandey, Program Coordinator of the project made presentation on overall objective and major activities of the project. The major objective he highlighted was to contribute to the protection of human rights on the issue of trafficking in women and children at national and regional level in South Asia (Nepal, India and Bangladesh), by creating a congenial environment that may hinder the supply and demand dynamics of trafficking across the borders as well as within the countries. To achieve this objective, he mentioned, the project will focus on the activities like human rights based approach in teaching in law schools concerning trafficking laws; capacity building and law enforcement; awareness raising campaign at local level; advocacy and lobbying at regional and national level.

Ms. Muna Basnyat, Program Officer, TDH made presentation on regional perspective of the project. She highlighted the areas of work TDH has been involved. She expressed her belief that even after completing this project SALS Forum will capitalize and continue the activities in regard to trafficking issues.

Assoc. Prof. Yubaraj Sangroula highlighted on research framework, objective, rational and modality of the research. He highlighted on two dimensions of trafficking: internal and cross border; existing problem to deal with each; and importance of study to address such problems. He demonstrated that most of the domestic laws of the respective countries can be applied in internal trafficking but problem arises in dealing with cross border trafficking laws.  He stated that there is very less connection of criminal justice system between and among the countries; Nepal, Bangladesh and India and added that unless and until the differences and gaps of domestic laws is reviewed it is difficult to address the issue. The research study, therefore, will look into some linkages on procedure, substantial process of Criminal Justice System in respective countries.

Lack of information dissemination, communication and interactions among stakeholders is another hindrance to address the issue as international concern, Prof. Sangroula added. This study will address this concern and also help to coordinate with law enforcement agencies to take the issue from human rights perspective. The study will see fundamentally about the ways to link our criminal justice system, rationalizing them and see the issue from human rights perspective in the legal regime.

Prof. Aggarwal added that the study will also shed light on civil administrative justice and private international laws to deal with the trafficking issues. She said the one component of research needs to focus on preventive measures to secure the rights of individuals. Significantly she stressed on the teaching of private international law as it incorporates right to live with dignity and respect.    

Ms. Tasneem Kausar from Pakistan shared her country experience in trafficking issues. She said that child trafficking is the primary concern in Pakistan that is done for multiple purposes like sexual exploitation, begging, child labor, camel jockey etc. She mentioned that Anti trafficking laws in Pakistan more focuses on protection model rather than that of empowerment model. She added that several national laws such as 1949 conventions, Pakistan Penal Code etc define trafficking in the context of prostitution and sexual exploitation. She suggested that if we bring uniformity in definition and procedure of trafficking, the issue can be addressed regionally. Further she shared the same view of promoting legal awareness through schools.

Country presentations on Anti-Trafficking Legal Framework in the respective country, focusing on Investigation, Prosecution, Adjudication and Protection of Fair Trial Rights and Victim's Rights for Foreigners followed the session. On behalf of the participants from India, Ms. Geeta Sekhon, Delhi University presented a country paper. She highlighted that national legal framework such as Constitution of India, The Indian Penal Code, SITA, ITPA to name a major few, lack clear definition of trafficking and its forms. Interestingly, she pointed out that the ITPA fails to define ‘trafficking’, even though the law is about prevention of immoral traffic and the words find a prominent place in the title of the legislation.  

She talked about the procedures and problem areas of four components of criminal justice system namely the police, the courts, the public prosecutors and the judges in dealing with the trafficking related cases. In a recommendation she focused that the country should enact a comprehensive legislation dealing with all aspects of trafficking; define trafficking in consonance with International Instruments; develop uniform guidelines for reporting and investigating offences w.r.t. trafficking; train law enforcement officials, lawyers, members of the judiciary and social service providers on how to implement the legislation in letter and spirit.

Similarly, Mr. Mohammed Ziaulhoque representing Bangladesh presented the country paper. Reflecting the existing anti trafficking related laws he mentioned that domestic laws such as Penal Code, Children Act, The Employment of Children Act, Suppression of Immoral Traffic Act, Women and Children Repression Preventive Act etc. only narrowly define the term and forms of trafficking. He talked about the procedure undertaken in investigation, prosecution and adjudication to deal with trafficking and related cases and pointed out the problems being faced in this regard. He highlighted the following as being major problems: police are not aware of definition of trafficking and investigating process of the related cases; police maintains strong connection with the trafficker and in some cases they threaten the informant to withdraw the cases. In part of prosecutor, traffickers have connection with the Public Prosecutors and there is tendency of taking bribes from them; prosecutors are not legally aware in regard to the Rules, provision and relevant judgments in regard to the trafficking; prosecutors have no opportunity to communicate with the victim except in the case date; lack of capacity building training to the prosecutors. In part of adjudication, problems lies behind lack of adequate judicial Officers; lack of awareness on trafficking in international standard and human right perspective; judges over-burdened with the case load.

He recommended that uniformed definition of trafficking, uniformed procedure for investigation and uniformed penalty should be made on regional level. Cross-Regional team and resource center can be made to help identify the dynamics of the trafficking both from the local and regional perspective, he added.

Next presentation was from Assoc. Prof. Geeta Pathak Sangroula, KSL. She reflected that domestic anti trafficking legal frameworks (Fundamental Guarantee, Muluki Ain and Trafficking of Human Being (Control) Act) lack clear definition of trafficking and fail to perceive the issue of trafficking as ‘slavery’ and ‘slavery like practices’. She added that there are not adequate substantive and procedural laws to define and deal with the trafficking issue. She highlighted on the existing procedures for investigation, prosecution and adjudication to handle the trafficking cases; the judicial trend and identified the problems in the procedural part. According to her, lengthy court procedure, confession oriented investigations, lack of victims friendly procedures, lack of implementation of Extradition provision, lack of protection of fair trials for foreigners, lack of remedies for accused and victims are the major problems being faced in dealing with trafficking cases. She added that before moving into any issue, concept, content, and context of the issue should always be understood. Focusing trafficking as a form of slavery and slave trade she recommended three approaches of interventions: prevention, protection and remedial.

Commenting on the presentations and summing up the objectives of the research modality, Prof. Nomita Aggrawal motioned that although all three countries have some legislations in regard to trafficking, they are not sufficient to cover all dimensions of trafficking. Even the existing laws are not being implemented, she remarked. The research must be result oriented in this respect, she said. She accentuated that trafficking should be looked from social legal aspect and problem should be addressed by human rights and international perspective endorsing the international instruments. She finally made remarks that after the study and publication of consolidated regional document, awareness programs for all actors of justice system, law students, and community people at large will subsequently be carried out in all countries.

The program then discussed and adopted on the modality of the research framework.

Participants at the Meeting

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Four days training was organized for paralegals and legal professionals by CeLRRd with the support of Embassy of Denmark, Kathmandu on the above issue in between May 30-June 2, 2006 in Biratnagar, the eastern region political hub. The trainees were disseminated with various issues of fair trial and international and national human rights principles by different notable resource persons of Biratnagar. The training aimed to develop the pragmatic skills of explicitly declaring the things that have been understood or not understood. It also aimed to develop the micro eye to critically evaluate the international human rights instruments and how we can possibly use it as a reference and infuse into domestic laws. Further the main objective of the training was to develop TOT. These trainees will form a group in their respective places and impart the knowledge they acquired in the training process.  

Speaking on the opening ceremony Associate Professor, Geeta Pathak Sangroula, Program Coordinator highlighted briefly on the CeLRRd’s overall objective. She said CeLRRd’s aim is to provide legal aid to the victim and in doing so we must show sincerity and institutionalize the whole procedures of legal aid. Ms. Sangroula pointed out to carry out intensive research and to develop the resources accordingly. She said the legal aid network has been established to institutionalize the legal aid providing institutions. Human rights are inherent rights of individuals and other rights which they are entitled in their life cycles are acquired rights. Prakash Nath Upreti, recalling the understanding made between CeLRRd and Pro-Public he said, Pro-Public concentrated its work on people’s government while CeLRRd worked in legal issues. Similarly, Alem Saleem, Regional Representative of UN-OHCHR said fair trail in Nepal is in transition phase. Institution of justice has been severely handicapped since the police had to divert their attention in other tasks. The 70 years old traditional departmental procedures is still persistent in police institutions which has largely effected in fostering human rights. Honorable Chief Judge Bhimendra Karki, Chief Guest of the program pointed out to need of coordination between all the actors in justice system to provide legal aid to indigent populace. Prakash KC, President of CeLRRd talked about the crux of the legal aid by briefly rationalizing the criminal justice system of Nepal.

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CeLRRd conducted the eight days residential "Basic Mediation Training for Mediators" in Rangeli VDC of Morang district from 21 May, 2006. The training was organized by Biratnagar Regional Office of CeLRRd. Mr. Narayan Regmi, District Program Coordinator; Ms. Pramila Majhi, Mr. Ganesh Luitel, Mr. Prem Banem, District Master Trainers; and Mr. Hemraj Panta, Regional Coordinator, CeLRRd Biratnagar were the resource persons for the program. Mr. Kishor Silwal, Director, CeLRRd, monitored the program. During the training program, he highlighted about the importance of Community Mediation Program and the impact of the program implemented by CeLRRd in other districts.     

Similarly, CeLRRd Community Mediation Center of Bardiya District conducted the same training for mediators of Taratal and Sanoshree VDC of Bardia district from 24th to 31st of May 2006. Mr. Satish Sharma, District Program Coordinator of Bardiya district, Ms. Mira Chaudhari, Mr. Ganesh Dekota, Mr. Rishi Kafle, Mr. Radheshyam Chaudhari, Ms. Sunita Sharma and Mr. Bhanubhakta Rijal District Master Trainers were the resource persons at the program. Mr. Kumar Acharya, Regional Coordinator, CeLRRd Nepalgunj Center observed the program.

The training provided extensive knowledge and skills on mediating the disputes at local level to the probable community mediators. 27 participants from 9 wards of the each VDCs were present at the training. The core objective of the training was to enhance capacity of the local people to settle the local conflict. In course of expanding the mediation program, CeLRRd has planned to implement community mediation program in 14 locations of Bardiya and Morang District. In this respect, a total of 189 local people have been trained in Morang and Bardiya from 6 VDCs and one Municipality. Altogether 378 local people are enhanced and trained in conflict transformation locally.

Participants of the Training

A one day interaction program on Constituent Assembly: Procedure and Modality was held between political leaders and constitution experts on May 24, 2006 in Kathmandu School of Law's seminar hall. The program was jointly organized by KSL, CeLCAR and People Forum.

Presenting on the theme Associate Professor Yubaraj Sangroula said that political parties are falling behind to take constituent assembly procedures and modality to villages. He said if political leaders do not impart the knowledge of constituent assembly to semi-literate and illiterate mass on time then the whole process of constituent assembly may be derailed by the opportunistic rudiments. Prof. Sangroula urged all not to adhere by the same old habits and to recognize the issue as contemporary and dynamic. One of the mandates of constituent assembly is pluralism and it has to be reflected in all processes of constituent assembly. Diversity should be recognized as a prime value, he stressed. He said constituent assembly is sociological way of making constitution. Shredding light on the issue he said 95% of values enshrined in constituent assembly are from sociological perspectives. Prof. Sangroula talked about the objectives of Constituent Assembly, he stressed on the popularization of the ownership of the form of the government, internalization of the sense of nationhood and national pride, demarcation of rights and guarantee of existence of groups with identity, democratization of state, demonstration of strength of deposing autocracy and finally utilization of chance to mass building for support of revolution. He talked about the Russian Bolsheviks ideologues, and their standpoint of constituent assembly as a progressive instrument of reforming the bourgeois society to the advantage of the common people. Commenting on Associate Professor Yubaraj Sangroula's paper from Sociological perspective Assistant Professor Khagendra Prasai said the present development signifies an attempt towards drastic change. He said army is still de facto of King and changing the name will not necessarily erase the mentality of the army personnel's. Further, Mr. Prasai said the idea of 'unconditional' constituent assembly is misleading. Next commenting on the paper through Indigenous, Nationalities perspective Asst Prof Kumar Ingnam said that the paper is enough to clarify actual situation what we are facing right now. The processes to be followed before to declare Constituent Assembly are sincerely and clearly maintained. The illustration of Russian Bolsheviks who, not only denied and protest the programme of new Soviet Government after the result of Constituent Assembly of 1918 but also dissolved the Constituent Assembly at the next day, is more relevant and interesting in our context. The jurisprudential and philosophical explanation of the process as well content with enough reference of world practices, i.e. India, Israel, France, Lithuania, Pakistan and South Africa, is of academic quality. Some pre-caution regarding Values, like national unity, pluralism, democracy, good governance, protection of basic and human rights/needs are seriously raised. Mainly the process of power transformation and materialization of these powers are more convincing. In this respect the role of House of Representation, challenges especially of arms management and monitoring them are variables in process to constituent assembly, on them I personally agreed with him, Mr. Ingnam said.

Addition to, the paper is not clear about the management, representation process of 103 casts, indigenous cast, marginalized and victimized people as well. He requested to include these lapses. Almost it is clear that disparity in opportunity, power sharing, devolution and empowerment through excess to natural recourses and state power in all where are the true causes for the declaration of Midnight 11^th of Baishak and 4^th   of Jestha 2063. In this respect this is the right time to make a consensus about state structure and model of representation. I personally believe on preoperational representation as more scientific and nearest model of representation in our context, which might help to represent as to the proportion of the population of the given society, Mr. Ingnam said.  But structure of representation also needs to be scientific. In this respect federal or semi federal institutional structure for true representation is strong pre- requisite. So unless and until these two basic criterions are not fulfilled neither the change is felled nor can the power be transferred substantially resulting peace and progress in the country. Conversely, Maoist could go back to jungle. Concluding Mr. Ingnam said all seven parties and Maoist to join hands for consensus on process of representation, state structure and process of power transformation before to laid down date of constituent assembly. Commenting next on Economic Perspective Asst Professor Bhavuk Neupane portrayed the economic participation of richer group into political decision making. He said if the problem is to be solved on the basis of caste and economic perspective then failure may occur. Commenting next on Electoral and Human Rights Perspective, Mr. Som Luitel, Advocate said to include the Representative System on the basis of Geography and Reservation and Electoral System on the basis of proportionate. In general he talked about the possibility of disagreement and conflict over the result of the constituent assembly by Maoist and the king. The integrity of the paper is that it explicitly talks about the people's right to every dimension. Finally he said legally there exists no tri polarization of power but the king is still de facto. Then the floor was open for various speakers. Mr. Amrit Bihara, Standing Committee Member of CPN (UML) said the institution of Monarchy has now turned into a wounded tiger but he warned that we should not undermine the injured tiger's potential. Until and unless we enter into main ideology of constituent assembly, the agitation will continue, he said. Stating the future track of constituent assembly, he said the ultimate goal is to establish a republic state. Mr. Bohara said his party has developed insight though on the issue of constituent assembly and has enshrined the value of democracy, free competition and rule of law as funadamemntal principles of constituent assembly. Concluding, Professor Madhav Psd Acharya, said to outline the law.

Participants at the Program

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As per the ongoing mid term internal evaluation of prisoner’s legal aid project, team inspected and interviewed various personnel’s of judicial bodies, CeLRRd’s legal aid lawyer, prison authorities and prisoners in Biratnagar. The evaluation of PLA was carried out in between 30 May -2 June, 2006. The main objectives of the evaluation are:

·        To independently assess the achievements of the project objectives with the intervention made during May 15 to December 2005

·        To overview the continuity of the previous Prisoner’s Legal Aid program

·        To document the lesson generated and best practices demonstrated while providing free legal services to the prisoners

·        To document problem and overlapping in the area of legal aid and nationwide Prisoners Legal Aid Network

·        To collect feedback from the legal aid lawyers, including paralegals

·        To recommend what ought to be initiated for the proper implementation of the project in the days to come

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Feature Article

Constitution must be Able to Guarantee Basic Liberties Uninfringeable in Any Circumstance

A society without basic liberties is nothing but a slaves’ society. But the whole chunk of human civilization has unfolded out of conscious struggle for freedoms, and all conditions in political society that thrashed basic liberties are defeated by incessant inspiration of civil society for greater and enriched freedoms. The scheme and design by any individual or institution are thus bound to be ultimately crumbled down; they are never sustainable. No society or nation can survive without a vibrant and freed body of civilians. As opposed to some pessimistic cries, Nepal’s future is bright and awesomely potential of emerging as a matured and cultured nation state provided that some formidable problems are properly addressed.

An in-depth and critical analysis of the past political affairs unfolds that the Nepalese society is passing through a bitter struggle between regressive and progressive forces, though the struggle is largely clandestine. This struggle has mainly centered on ‘ill motif’ of conventional feudal force that intends to continue being in power as antithesis to basic liberties. For the last three years, this struggle has largely surfaced due to massive growth of consciousness of the civil society to basic liberties. This is what an interesting development mounting in the political scenario of the Nepalese society; it is no longer feasible to rule the Nepalese society by a power-block, group or institution with the help of a clandestine power management system. Unlike during the Panchayati regime, in the post 1990 movement era every power block is exposed to the eyes of the Nepalese people. If one looks from this perspective, last five years were crucial in the history of the Nepalese politics in the sense that the clandestine power centered politics came to its zenith and started spilling over. The split of the CPN (UML) was a beginning of the exposure of the clandestine power center, which survives only with the strength of conspiracy and unlimited political gimmicks. The split of the Nepali Congress was growth to maturity, and the subsequent events are spill-over. The biggest failure in this unfolding drama on the part of the democratic political forces was that they could not smell of the foul they were being instigated to play.

The present upsurge of the people marks their genuine inspiration for consolidation of the basic liberties. But it does not mean that the threat or risk of it being crushed by the clandestine power centered political gimmick is over. Coming to its zenith of such gimmick does not mean that it has been powerless, or sustained its biting tooth have been broken. The center is as powerful as it used to be in the past. The only change in its dimension is that it has been overtly exposed at present, whereas it was fully covert till recent past. The gain or lose of the civil society to its mission of achieving basic liberties will thus depend on its clarity of political, economical and social agenda of development. Liberties of people do not stand in vacuum.   

If one analyzes the dynamics of Nepalese history of struggle for freedoms, one can obviously see that it has, as an imbibed character, marked exclusively by political priorities. Socio-economic needs and priorities for the development have consistently been left out. As a result, the economically and socially marginalized sections of the population could not enjoy opportunities for equity, and consequently the clandestine power center could play a plot against democratic forces. In such a state, the larger part of population is easily deluded by the regressive force as it survives on failures of others only. Regression is destructive and devoid of creativity. Obviously, its agenda of winning over the power is solely dependent on the failure of the progressive forces on their agenda. The present government, for instance, took over the power in the pretext of failure of the political parties offer a system of good governance. But it never had a creative agenda of good governance; to grab the governmental power was the only agenda.

Basic liberties are greater need of economically and socially marginalized groups, and of course any political struggle must make these issues as frontline agenda to defeat the clandestine power centered block. The present movement needs to review its position from this prospect. Nepal is currently facing danger of authoritarianism from both the left and right extremism. In this situation the defeat of one may unscrupulously assist the other in gaining power. This on what the American policy to Nepal has been becoming functional. In this situation, the enhancement of the functionality of the central democratic forces is the only right strategy for preserving the realm of basic liberties, and for this the central democratic forces must be able to draw the socially and economically marginalized sections to its fold. Priorities for the socio-economic freedoms and development should therefore be the focused agenda of the struggle for political basic liberties. In this context, the political parties fighting for the democracy should be conscious of their role to massive reforms in the governance system, and the agenda of the movement should be accordingly designed. The success of the ongoing movement for basic liberties is thus dependent on it capability of including socio-economic freedoms and development as priority agenda of the struggle. Its failure to do so may divert the larger part of the population towards leftist extremism, and eventually will provide a basis for continuity of the rights’ control over the State’ power.

In this context, the ongoing movement for democracy must be founded on a charter between the people and political parties. It cannot be a sole instrument of political parties gaining the power over the government with status quo in political dynamics. Restoration of liberal democracy is the agenda of the political parties, whereas the people’ agenda is beyond it; they want an inclusive democracy in terms of participation in political process as well as scoio-econmic development. The people’ movement can be enhanced and consolidated by acceptance by the political parties of the people’s agenda of inclusive democracy. This is where the external powers like India, USA, UK and China can play roles. Their policies and outlooks to present crisis of Nepal should be necessarily guided for the benefit of the general population. Creation or destruction of any polarization for vested interest should find a place, which may drag Nepal to a catastrophe. Especially, US government’s cautious support to the present movement may help to legitimize the brutal suppression of the people, and it may contribute to the upsurge of economically and socially deprived or disenfranchised population to the left extremism. It is necessary to build a faith and trust of the people on the capability of the democratic parties to rescue the country from crisis. This faith of people on democratic forces will isolate unpopular forces from people. As matter of fact, the popular movement to the inclusive democratic system is the only way out of the present crisis.

The present trend of suppression, however, and less visible concern of the international community towards what happening in Nepal are unusual. These trends show that the government is still confident of its capability of quelling the movement with the help of massive use of force. On the other hand, international community is skeptical to extend its genuine support to the democratic forces, and this may be due to ‘stereotyped’ belief that the fall down of the present government might add the strength to the Maoist. This doctrine may have been founded on a sweet logic but on ‘reality’. The Nepalese people are keen to restoration of democracy and have abundantly proved that their choice is no kind authoritarian regime, but the democratic government. The international community can constructively assist Nepal to rescue from the present crisis by extending its support to the democratic aspiration of the people and their capability of their representative parties. By ignoring political parties there can neither be the solution to the Maoist insurgency nor development of the country.

With the present political development in Nepal, one can say that the country has been come to a real cross of crisis. Successful management of the aspiration of the people scattered on every streets and corners of the country today will give a lasting transformation of the present crisis, and failure to an uncertainty of future. The failure of the present movement will throw the country a lasting bloodshed. The present trend of the government to oppress unarmed citizens on the streets compels one to think that it lacks a political vision address the crisis. There is a strong anti-democratic group in the government, which is persistently and adamantly trying to prevail over the people. The terror has been created among the people, everyday it is dragging more people in the streets. The mass is still peaceful on the streets, and has not poured on the inner city in Kathmandu for frenzy and destruction. However, everything naturally has limitation. The anger being generated by indiscriminate bullets and batons might trigger the frenzy, and may invite a catastrophe. It is therefore in nobody’s interest to wait and pass on the time without proper transformation of the crisis. The international community can play a crucial role, by refraining at lest from meddling things, if it does prefer to avoid active engagement in support of the democracy.

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