A modern constitution

Telling truth about Nepal’s constitution 2015 and its implementation
Katak Malla

The first phase of Nepal’s local elections held on May 14, 2017, after 20 years, in the recently constructed provinces 3,4 and 6 under the new constitution of Nepal 2015 was an important step in the country’s long and difficult transition to democracy. The second phase of elections to be held on June 28 province 1, 2, 5 and 7. Where some Madhesi parties are refusing to participate in the elections until their demands for the amendment to the constitution is made are considered potential flashpoints for violence. The government of Nepal has set yet another date in August for the third phase of local election especially in providence 2. If the government could hold local elections and the state can hold parliamentary elections, it would bring about greater constitutional responsibility. If these elections are not held, Nepal risks a constitutional crisis that could undermine the fragile stability of the Republic of Nepal – a point of invisible clash between China and India.

At this juncture question stands for intellectuals interested in Nepal; how critical, independent and truthful one should/could be, telling of truth about the writing, declaration and implementation of the constitution of Nepal? This question begs yet another question, i.e. what legal truth, for whom, how and where?

With the declaration of Nepal’s constitution in September 2015, the Nepal government used its armed force against civilians in the southern (Madeshi/Tarai) region of the country, killing more than 40 people, who were protesting the constitution. The protesters considered the constitution as ‘non-incisive’ and ‘discriminatory’.

The constitution-writing is obviously a sovereign right of Nepal that was exercised by the elected (first in 2008 and later 2013) Constituent Assembly, but wider acknowledgement of the constitution became an international political necessity for the implementation of the constitution, partly because of Nepal’s internal political situation and partly external factors. The constitution was adopted by the overwhelmingly majority members of the Assembly, the Madesh-based political parties, form the southern region that is towards Nepal’s southern border with India, demanded specific changes in the constitution, arguing for a provision of 50 percent (proportional) representation at the parliament, among various other demands.

The constitution has, thus, became a subject to national consensus as well as international acknowledgement. The specific external necessity for the acknowledgement of the constitution is that India sided, if not instigated, the Madeshi political parties, imposing a de facto blockade for nearly two months on Nepal in support to the Madesh-based parties. The UK, the EU and the US in their mundane tune followed the Indian view regarding Nepal’s constitution. All these states, including India certainly have the right to voice their concern on the killing and human rights issue in Nepal.

Whether the diplomats from the UK, the EU, the USA and India have the legal or political right to be involved in the internal politics of Nepal, demanding more quality of the human rights there than what it exist in their home country, is the issue of much larger significance. The question of trustworthiness of the foreign support and hidden interests of foreign projects or personals has not been at the forefront of the international relations, or the international legal discussion. A new constitutional law-related principle-question has aroused, i.e. whether the national consensus and international acknowledgement will be the necessary criteria in future for the constitution writing in India and elsewhere? But this is not the main discussion of this work here.

It may be difficult, but necessary, as well as rewarding, to make an assessment by the intellectual class about the accountabilities of the foreign diplomats; the British Ambassador to Nepal, Andrew Sparkes (2013) sparked tension in the Kathmandu diplomatic local circle, suggesting that Nepal should be declared a secular state. Constitutionally, Nepal became a secular state in 2015. The pro-Hindu-BJP-led Indian government since then is using its influence for the restoration of Nepal as Hindu (Rasta) nation. The Indian government is also demanding Nepal to establish a proportional system of representation, which India itself has not adopted for itself.

Some of the foreign aid projects in Nepal are accused for unduly raising issues of the ethnic identity and representation and some other aid agencies are being condemned for the Christianization of a section of the Nepalese population. The International Crisis Group and number of international human rights organizations have regularly published reports about Nepal, but even their reports, which are supposed to be independent and neutral, are being challenged as biased.

Even the impartiality of UN representatives has been openly questioned in Nepal. For example, the role of Ian Martin – head of UN Mission in Nepal (2006 -2009) has been criticised by Kul Chandra Gautam who himself is the former Assistant Secretary-General of the UN and the former Deputy Executive Director of UNICEF. According to Gautam, “UNMIN’s seeming inability to control or even monitor such activities began to erode the public’s faith in UNMIN” (Lost in Transition: Rebuilding Nepal from the Maoist mayhem and mega earthquake, 2015).

The current situation in Nepal, in terms of intellectual discourses, can be noted as follows: Most people, demanding identity-based representation and constitutional right, are guided by the 18th century race theories, and who is responsible for such an education in the 21st century? Cultural-language-based identity is often misunderstood with the racial identities, and in fact the race or ethnicity based-identity should have been a subject to eradication, instead such identities are being demanded and continues; are the foreign and national agencies working for minority giving the right message to the society? The influential judges of Nepal – and a section of jurists – still believe, in the 21st century, that it will endanger Nepal’s traditional culture and values, if equal right can daughters and sons. Nepal’s well-known writers and mainstream journalists fail to acknowledge gradual dynamic change in the human geography and seem confused with Pahadi and Madashi narratives. Now, there is also trust deficit from the part of academic class and the most important now is the Madashi issue, which need to be dealt with and sooner the better. The Madsshi issues is also linked with India and its representatives in Nepal. Nepal’s most foreign policy experts seems writing for the Chinese and/or Indian perspectives and rarely from Nepal’s own perspective and why?
Federalism, secularism, proportional representation and inclusiveness are certainly the antithesis of modern democracy; the political leadership class seems lacking the basic understanding on these issues. A part of the academic class has also failed to acknowledge the historical injustices that exist in the name of religion and hierarchy of caste system, as well as the class failed to identify appropriate discourse on the corrective actions against the historical injustices.

Is it possible to be critical and fully independent against one’s own knowledge discipline, group, nationality (patriotism) bias, if so how? I believe that greater historical changes in societies have come about by challenging social norms, for example prohibition of slavery, decolonialisation, end of apartheid, women’s right, and the idea of welfare state are some of the positive outcomes of the critical approach to law. It is not easy to be democratic self-critic’ or coherence evaluation. But one should not impose one’s own subjective view to evaluate objectivity of the situation.

We the humankind are certainly facing difficulties in the digital media age, balancing between ‘self-censorship’ (to control oneself to avoid offending others) and full ‘freedom of expression’ (what one wants to say or express). Generally, I agree with those who believe in the freedom of expression without any limitations. In recent years, however, I am also realizing that ‘self-critic’ could be a balancing method, while expressing about others and at the same time not annoying others. ‘Self-critic’ means evaluating one-self and expressing with coherent and comprehensive manner, or viewing or analyzing issues (at hand) and tell stories as well as providing news, views and/or perspectives. It is about using same epistemological method to one-self as well as to others.

Accountability of foreign expert’s inputs in democracy building abroad

Foreign expert’s inputs in building Nepal’s democracy and modern constitution

1. Introduction

The central theme of this paper is the dubious role of some influential external actors in building democracy and writing of Nepal’s new constitution 2015, including strengths and pitfalls of Nepal’s internal political actors. In this paper we shall understand the term ‘democracy’ in the traditional sense of understanding as well as in terms of inclusiveness and identity-based representative democracy as devised in Nepal’s modern constitution.

My personal view and analysis in this paper are shaped from and based on my experience as a participant observer in Nepal (from the early 1970 till the early 1990) and as an outside observer since the 1990s. Being outside from Nepal for nearly three decades, I do not intend to be a part of the ‘orientalists’ to misrepresent the actual needs of the country in focus and do not wish to enlist myself in the group of scholars, who went to Western world and when they return to their country of origin argues for and suggest the Western models. Nonetheless, I believe that, it is worth “taking a risk to go beyond the easy certainty provided by one’s own background, language, nationality, which so often shields oneself from the reality of others” (Edward Said, Representations of the Intellectual 1993 BBC Reith lectures). Understanding the ‘others reality’, I suppose it is not only right knowledge and skill, but also right attitude is necessary for shaping the modern democracy. The ‘right attitude’, I am referring here to indicates the attitude of the internal actors and foreign aid and expert’s advice, relates the democratic development of Nepal in the post-2015-era. Above all, it is about civic knowledge of democracy building actor themselves, including internal and external actors.

The issues discussed in this paper are: the stage, the time -1990-2018, the role of outside experts, democracy assistance and INGOs, democracy-building foreign actors, internal actors and recipient’s need and perception, and telling truth about Nepal’s constitution 2015 as conclusion.

2. The stage
The art of democratic governance may be described as the greatest human innovation, which is increasingly becoming a global common necessity for all. The democratic governance is supposed to be based on the common people’s will – but democracy is the rule of the majority – and therefore it is also a difficult system to guarantee what everyone to get everything they want. Over times, the old ideas have been reformed to advance the cause of democracy. And, in recent years, the concept of inclusive democracy based on identity and democratic representation has come at the forefront of the political science discussion.

Generally acknowledged basis for the democratic governance are; a) political parties, articulating and integrating people’s interest, b) elected legislative to make laws, and c) responsible executive towards people, maintaining the rule of law, d) independent judiciary and, e) free press to monitor the centres of power. It should be acknowledged at the outset that there are different kind and practices of democracies. For instance, there are differences between the Swedish democracy based on the proportional representation and the US or Indian democracies based on traditional democracy (i.e., classic Abraham Lincoln’s term as a form of government “of the people, by the people, and for the people”) which are not based on proportional representation. Because democracies are practiced differently in different countries, it is questionable whether one could/should transplant or impose democracy from one country to another, and therefore the modern critics are asking a vital question; democracy on whose term?

The issues on focus are: the restoration of Nepal’s democratic system in the early 1990, which was torn down in the early 1960s, the Maoists rebellion from the mid-1990s that killed nearly 17 thousand people and the post-conflict negotiation from 2005 to the 2015 declaration of Nepal’s constitution, including the outcome of 2017 general elections. The role of outside world during the time frame is also on the focus, either it was given in the name of Nepal’s democracy building or donors vested interests or both. A question for analysis and understanding is, whether the changes been organic (in-plantation) or it is trans-plantation of democracy from abroad. For a critical analysis of the politics of Nepal from 1990 to 2017, let us see some facts:

The European Union’s Election Observation Mission (EUEOM) in its report 2018 on Nepal elections 2017 has noted that representation of the “well-represented group Khas-Arya arguably contravened international standards of equality, as affirmative measures are foreseen only to promote equality…Christians were not considered for inclusion, despite comprising 1.4 percent of the country’s population.” Nepal’s Prime Minister KP Sharma Oli reacted that the recommendations and conclusions of the EUEOM have undermined Nepali people, suggesting that the recommendation be reconsidered being against the sovereignty and independence of the country. A few years ago, British Ambassador to Nepal (2013), Andrew Sparkes, created tension in the Kathmandu diplomatic circle, suggesting that Nepal should be declared a secular state. Constitutionally Nepal became a secular state in 2015. The pro-Hindu-BJP-led Indian government since then is using its influence for the restoration of Nepal as Hindu (Rasta) nation. The Indian government is also asking for a proportional system of representation in Nepal, which India itself has not adopted a system of proportional representation. The International Crisis Group and number of international human rights organizations have regularly published reports, but even their reports are being challenged as biased many Nepalis experts. Some of the foreign projects in Nepal are accused for unduly raising issues of the ethnic identity and representation and some others are being condemned for Christianization of a section of Nepalese population. The capabilities of an intergovernmental representative, e.g. Ian Martin – head of UN Mission in Nepal (2006 -2009) was openly questioned by Kul Chandra Gautam who himself was the former Assistant Secretary-General of the UN and Deputy Executive Director of UNICEF. According to Gautam, “UNMIN’s seeming inability to control or even monitor such activities began to erode the public’s faith in UNMIN” (Lost in Transition: Rebuilding Nepal from the Maoist mayhem and mega earthquake, 2015).

It needs to be said that all advices from the foreign donor, diplomates and experts cannot and should not be considered outright worthless, but these are some negative examples of advices, if not interference, which is the concern all those involved with democracy building at home and abroad. The fact that there are varied experiences of democratic practices, the quality of foreign expert’s input in the constitution building should be welcomed by the countries that are developing democracy. It is nonetheless necessary to bear in mind that there are some limits the foreign inputs, according to the rules and norm of international and national laws, e.g. to what extent should foreign experts in put be allowed and under what condition the recipients should follow or not follow? What are the accountabilities of foreign experts in the event when advice goes wrong, or if the foreign personals – whether working for the governmental or non-governmental sectors – were not abiding by the norm of their positions?

To be specific in context to Nepal, why for instance the supporters of peace process, including the governments of India, the EU and the US, demanded amendment of the constitution immediately after its adoption by the Constituent Assembly of Nepal in 2015 while all these countries have been advising Nepal from 2008 when Nepal’s Constituent Assembly elections were held, or even from the post-conflict negotiation 2005?

It is a well-known that the constitution writing is a sovereign internal matter of Nepal, but wider acknowledgement of Nepal’s constitution became political necessity for the country in the aftermath of the declaration of the constitution. One reason for this was that the government of Nepal used force against civilians in the southern region of the country and killed more than 40 people, who were protesting the declared constitution, considering it non-incisive and discriminatory (the protesters also killed number of police officers and cadres, but the international human rights group were much silent). At the same time, India openly sided, if not instigated, the Madeshi political parties, imposing de facto blockade on Nepal for nearly two months. India openly demanded changes in favour of the Madeshi parties form the southern region that is towards Nepal’s southern border with India.

The UK, the EU, and the US followed the Indian view regarding Nepal’s constitution. These states certainly have the right to voice their concern on the human rights issues. To demand human rights protection has become a universal right of all states, but the powerful states seems voicing concern on smaller states without looking at their own human rights violations (e.g., death penalty in the US and India’s human rights situation in its internal conflict areas, rising racism in Europe).

Voicing the concern about human rights protection is governed by one type of international rules and foreign diplomate being engaged in the internal politics of the host countries is regulated by another kind of rules. In any circumstances, diplomacy is supposed to be conducted based on the international law and norms. Whether the diplomats of the UK, the EU, the USA and India have the right to get involved with the internal politics of Nepal, demanding more quality of the human rights there than what exist in their home country, is the issue of much larger significance. This is one of the causes and consequences, determining trustworthiness of the foreign support and hidden interests of foreign projects or personals.

Despite the well-intended input from foreign experts as well as Nepal’s internal need for the constitution building, the 2015 constitution of Nepal, along with its positive aspects, has also some of the unacceptable paragraphs, especially those which have acknowledged and determined caste/race, sub-races and ethnicity as the basis of representation. Instead of eliminating the race and sub-race-based classification, which is scientifically wrong and morally condemnable. Inclusive democracy is setup based on the 18th century race theories. One wonders who is responsible for such education in the 21stcentury. Given the background of the controversial EU’s report 2018, the role of the foreign experts has thus partly become a bone of contention, questioning whether the foreign/INGOs working for minority rights giving the right message to the society?

The Nepalese people had vested much of their hopes in the political leadership. The larger part of the academic class in Nepal seems not acknowledging the historical injustices that exist in the name of religion and hierarchy of caste system, and at the same time the idea of economic class remined as the backburner from appropriate discourse on the corrective actions against the historical injustices. Because of the weaknesses of foreign experts some of them listed in the beginning of this work, they have become the locus of frustration. The rising cynicism towards the leadership class stems from the fact that they themselves lack democratic functioning and/or misinformation. They have failed to distinguish between caste systems from the idea of identity and representation based on various language and cultural basis. Let us look back from 2018 to the early 1990.

3. The time from 2018 back to early 1990s
Nepal’s Communist Party United Marxist-Leninist (UML) Chair KP Sharma Oli was sworn in as the first prime minister in February 2018 after the general elections 2017 held under the 2015 constitution of Nepal. Nepalis casted their votes in the first of two-phase of provincial and federal elections on December 7, 2017. With thousands of candidates of more than 90 parties competed for 275 seats in the federal parliament, and 550 seats in seven provincial assemblies across the country. These elections were held after the country’s local elections in September 2017, electing over 35,000 representatives to govern 753 local municipalities.

Nepal’s elections were held under the first-past-the post (FPTP, e.g. UK) election system and proportional representation (PR partly e.g. Sweden). In the House of representatives, there are 275 members of which 165 are elected through FPTP, while 110 will elected through PR system.

Five major parties emerged out of the 2017 elections and they are: Nepal’s communist party, CPN-Unified Marxist Leninist (UML) and CPN-Maoist centre, Nepal’s oldest democratic party Nepali Congress, Madheshi – Rastriya Janta Party Nepal (RJPN), and Madhesi party- Federal Socialist Forum Nepal (FSFN).

Whipping Nepali nationalist card against the Indian blockade 2015, UML’s candidates got elected 80 seats out of 165. CPN Maoist canter, which is on the process of unification with UML, has won 36 seats. The two communist parties were formally unified on 17 May 2018 with their initial name in the 1940’s as Communist Party Nepal.

The Nepali Congress party is the oldest party with social democratic ideology, which has become neo-liberal was in power during the elections together with the Maoist centre, won just 23 seats out of 165. And, the two Madhesi parties won 11 seats. Rest 5 seats are won by independents. Regarding provinces, the UML and Maoist won 6 out of 7 provinces, and province 2 won by FSPN and RJPN alliance.

This election (2017) result show a total domination by Communist alliance between Marxist-Leninist and Maoists, including the central level, provinces and local municipalities. The elections were held after Nepal’s political journey, e.g. upheaval and transformation from monarch to republic as well as transition from the conflict negotiation to building of a democratic system.

More than a decade-long armed conflict between the Maoist rebel and the government of Nepal ended in 2006, and it took another decade to adopt a new constitution in 2015. The political landscape of Nepal changed since the early 1990 from the dictatorial monarchy to the restoration of a multiparty democracy that was abrogated by the king in the 1960s. Nepal has now also transformed from a Hindu monarchy to a secular republic, where the politics was rooted in the ancient Hindu belief, superstitious rituals or dogmas and where the role of the citizens was considered insignificant against the power of monarchy.

Political changes do not take place in an isolation and arguably both internal and external factors are responsible for the change. The Nepalese monarchist continues to believe that change is not organic, and the republican form of government is not Nepal’s own internal need and they argue that it is just installed by foreign forces. A section of the royalist supporters also suggests that the idea of republican form of government, federalism, proportional representation and inclusiveness embraced by the country’s constitution is foreign idea, not demanded by the people of Nepal.

Political scientists have a wider space to research e.g., was the change an organic internal process itself and, if not, what role the external actor’s influence played in and inspired to the people of Nepal for such a drastic change within the two decades. Here are the two samples of book published about Nepal in recent years:

“Kathmandu is a nest of spies…The South Koreans and the Japanese are there to watch the North Koreans…while the North Korean to make money by selling Viagra…The Chinese are there to watch the Tibetan refugees… The Indian intelligence agency RAW operates a station of scores of officers, because the Pakistani ISI uses Nepal to infiltrate counterfeit currency into India… “The Maoists were the targets. MI6 were said to have used three safe houses…, supplying 35 motorcycles, 36 sets of night vision binoculars, 35 desktop computers, 35 stills cameras and 35 cassette players as well as a varying number of cars, television sets, video cameras, lap tops, mobile phones, faxes, fridges, air conditioners and items of furniture. A radio mast was installed on top of Pulchowki hill” …” About the operation, a high level environmental NGO, i.e. High-Altitude Research Centre, was formed to provide extra cover. Someone leaked the operation plan and the equipment stolen and the Indians apparently bought up the bugging and interceptor gear”, Excerpts from Thomas Bell’s “Kathmandu” (2014).

“…the USAID development advisors made necessary arrangements to import American bulls. Not long after the expert’s recommendation, the first American bull arrived in Nepal. It was taken to a village, and the villagers were invited to bring their cows for crossbreeding. Cows were hundred to the enclosed area where the bull was stationed. Both the villagers and Americans, including the animal’s husbandry experts, gathered around, anxiously waiting for the bull to begin mating with the cows. It was a true spectacle… The bull refused to buzz; it showed no interest in any of the cows in its newly established harem, not even shifting around,” Excerpts from Nanda R Shrestha, In the name of development, A reflection on Nepal (2009).

Nepal initially started modern democratic change from the old undemocratic family rule in the early 1950s. The first elected government for a short period of time until the late 1950s, but the then king Mahindra dissolved the parliament and established dictatorial monarchy which lasted till 1990 under his successor Birendra. The modern political changes in Nepal since 1990 are particularly important because until then the ruling king was considered by many people as an incarnation of the supreme Hindu God Vishnu. How did such deep rooted strong belief begin to change, intensifying among youths and students is the point of much larger significance. As a mixture of internal need and external influence, a major section of Nepal’s school and university students started questioning the prevailing belief from the late 1970 when public protest forced the then king Birendra to announce a public referendum in the early 1980 to choose between a party less panchayat system introduced by the king Mahindra in the late 1960 and a multiparty-based system that was abrogated earlier on. King’s system prevailed over the opposition for another decade. The people’s protest again forced the king to restore democracy and the democratically elected governments from the 1990 onwards introduced neoliberal economic system.

Meanwhile, in the mid-1990, the Maoists rebels started their war against the elected government and parliamentary political system restored in the aftermath of the 1990 mass movement against the dictatorial monarchy. Whether the Maoist rebellion itself was the foreign design has become a most debated issue in Nepal.

There was a palace massacre in 2001, the then king Birendra and his family were killed, allegedly by the crown prince Dependra. King Birendra’s brother Gaynendra took the power but eventually was over thrown by the people’s mass movement. The Maoist and the other political parties, who were fighting against each other during the conflict 1996-2005, formed an alliance against the monarchy. Formally, the monarchy ended with a majority vote of the elected constituent assembly in 2008. Many people, not a majority perhaps, believe that there is foreign conspiracy behind declaration of secular republic of Nepal. Is there any truth in this?

In recent years, the Chinese and the Indian diplomats in Kathmandu apparently been engaged with Nepal’s internal politics so much that they look as if they are the Nepalese super political class. Thomas Bell’s ‘Kathmandu is a nest of spies’… makes sense. Except for a few honourable exceptions, the European diplomacy to Nepal continues to serve as a ‘carrot’ to the ‘stick’ of the US diplomacy. Nepal’s diplomacy abroad, primarily seeking foreign aid, is becoming less significant since the donors themselves are residentially present in Kathmandu not necessarily to address Nepal’s needs, but to execute the donor’s interest. The internal political interference by foreign diplomats is illegal, according to the principle of international law and UN Charter. Many commentaries believe that such diplomacy is being practiced, forming and/or toppling the governments. The foreign diplomats are often found not abiding by the classic norms of diplomacy, keeping themselves aloof from internal matters. Nepal’s ambassadors abroad do not dare to speak openly in their respective host countries.

Along with the foreign aid, Nepal is receiving the foreign experts both at the inter-governmental and non-governmental levels. The capacity of these experts and their understanding of the local realities of the country, however, remains outside the radar of accountability, whereas the Nepal government is rightly under scrutiny from the radars of anti-corruption and transparency rules. It must be acknowledged that Nepal’s new constitution has framed the country into seven federal provinces and many local municipalities. A new administrative structure at the local, provincial and national levels has emerged in the aftermath of the 2017 elections in Nepal. The flesh and blood of the democratic structure is still to be infused.

More than three million Nepali work abroad, including in the British and Indian armies. The remittance from the diaspora is apparently increasing in Nepal, which arguably may have helped to reduce the country’s absolute dependency on the foreign aid, however Nepal’s annual budget still largely depends upon the foreign aid. There is also alarmingly deficit of trust in Nepal from the part of foreign aid-project including diplomats in Kathmandu; questions are being raised for the donors and recipient; whether the foreign aid is being received and/or spent on the receiver’s need or the donor’s desired conditions and interests.

4. The role of outside experts in Nepal’s political change
Despite donor’s good intentions, there is alarmingly increasing trust deficit of foreign diplomats and hidden agenda/interests of foreign projects or personals, including governmental and non-governmental levels. Above all, it is about the individual capabilities of experts, understanding the local realities of Nepal.

The EU report 2018 mentioned in the beginning, suggesting representation based on the Christian religion, is the case in point about the lack of local realities. The larger question is; what are the accountabilities of foreign experts in the event when advice was wrong, or if the foreign personals – whether working for the governmental or non-governmental sectors – were not abiding by the norm of their positions? British Ambassador to Nepal Andrew Sparkes, suggesting that Nepal should be declared a secular state, was called back by the British government.

The EU has not thought or done anything, but it has already created distrust between Nepal and EU. Arguably, it is the right time for self-reflections for those who have worked in Nepal as foreign governmental representatives and non-governmental personals, in the external aid-assistance projects, especially Nepal’s peace process, the constitution building and good governance.

5. Nepal’s democracy assistance and INGOs
Nepal’s civil society organizations came into focus for the international aid agencies after the establishment of multiparty democracy in 1990. Part of the rationale was that since governments in a fledgling democracy do not always perform democratically, the demands of the governed need more avenues for expression. In the case of Nepal, international assistance to civil society empowerment has proven fruitful, especially when one considers the independent media’s role in revealing corrupt government practices during the 1990’s, as well as civil society’s role as a catalyst in the pro-democracy people’s movement of April 2006. This happened against the background of weak and compliant political parties, with party leadership unaccountable to rank and file members that left themselves open to manipulation by not only each other but also anti-democratic forces. Democracy incrementally gave way to oligarchy and political conflict to civil war. In that vacuum, civil society organizations took a leading position in the pro-democracy movement, in part because they had more credibility, leverage and latitude than the parties.

Along with the boom in Nepal’s NGO sector and the positive aspects that came with it, there were also negative aspects. As has been the case elsewhere, there were some NGOs established in Nepal that weren’t rooted in the traditional altruism of civil society. Among these are MONGO’s (My Own NGO’s) and DONGO’s (Donor-Organized NGO’s). The most negative view, which democracy and party aid organizations should be cognizant of, is that which sees NGO’s as “advancing the neo-liberal project and collaborating in the depoliticizations of development.” In this process of depoliticization, a divide is created between political parties and NGOs. One study in the Philippines noted that party workers are “lured into these (NGO) offices instead of returning to direct work among the masses and the countryside where they are so badly needed”, preferring instead the NGO environment where “loose discipline and craving for comfort are strong and often go unchallenged.”

This is especially evident in Kathmandu, where a new class of people working with NGO’s has been created, where those who wish to can challenge political parties from outside the party structure, using the platform that civil society provides. In worst scenarios, NGOs that tend to condemn political parties outright, without any consideration given to the cumulative effect it has on increased cynicism and decreased political participation.

Nepal’s situation indicates the need for a balanced aid focus on empowerment of civil society actors as well on the internal capacity building of political parties; this approach must also, of course, be devised based on the domestic, regional and international context. With political developments in the post-conflict-era, the democracy assistance agencies’ attention turned to the impending constituent assembly elections and the constitution building process. Electoral aid (e.g. electoral design, election monitoring, etc.) is a significant segment related to democracy assistance and in most respects a more mature sector.

6. Democracy-building foreign actors
A review of the democracy assistance organizations in Nepal suggests that there have been three main and interconnected areas of focus: good governance, multiparty system-building, and civil society aid. The review of democracy assistance suggests that the essentials of intra-party democratization have been, relatively speaking, ignored. Looking from the capacity-building point of view, Nepal’s parties are the missing puzzle piece.

The international actors and their work concerning democracy-building in Nepal include the following: the good governance program launched by the Netherlands/SNV and Norway ; human rights and good governance programmes conducted through Finland’s bilateral cooperation and Danida/HUGOU ; the peace and development fund of the CIDA and Swiss/SDC ; the election monitoring team of JICA ; the community development programmes of CARE Nepal ; marginalized group programs of Ockenden International ; the poverty reduction program established by the EC , DFID , MS-Nepal and CIDA/CCO ; and the professional training program of the UMN.

Democracy-building actors work indicates that there is a piecemeal approach among the actors who are engaged in a wide variety of democracy assistance activities. There is no doubt about the commitment of these actors, however the coordination of these actors’ activities could be enhanced. Specifically, while all are involved with civil society empowerment and good governance, few are working with political party empowerment, which is arguably the weak link that could be strengthened via greater attention from the democracy assistance actors in Nepal.

The UNDP is one of many UN agencies working in Nepal , the one most pertinent in terms of governance issues. The UNDP concentrates on several areas that relate to decentralization, gender equity, judicial and human rights oversight capacity building. With their Handbook on Working with Political Parties, the UNDP has taken on the task of building governance capacity within parties. In response to Nepal’s situation, the UNDP worked with other donors through the Support for Peace and Development Initiative (SPDI). As a part of this initiative, the UNDP together with the DFID/UK, the Norwegian Embassy, SDC and CIDA/CCO formed the Peace Support Group (PSG).

In the 1990’s, the main supplier of multiparty aid was (and to some extent still is) USAID. This is the main arm of US government overseas aid, and it dispenses party aid through various channels, including NED, NDI and IRI. In Nepal, the most active agency is NDI, although USAID has, on its own, funded projects designed to strengthen civil society and political parties. USAID, in coordination with Danida and other agencies, doled out specific grants that strove to “sustain the democratic opening” under the rubric of its Democratic Pluralism Initiative (DPI). This includes six components ranging from an MP orientation programme to NGO support.

Government-to-government type assistance, known as Official Development Assistance (ODA), has long been the usual practice in international relations, involving state donors/recipients. Irrespective of what generation or type of assistance is at issue, ODA is the locus of the whole package. This type of aid is basically development oriented. Nepal has been receiving such aid since the 1950’s, when the country emerged out of its self-imposed isolation from the rest of the world. This model of aid is based on the idea that governments, who define the needs of the people, are the principle actors in democracy.

Democracy assistance is one small slice of the ODA that the developed nations provide to Nepal. Within the democracy assistance that Nepal receives, party aid is an insignificant fraction of the entire package. And even that party aid which does reach Nepal’s parties is relatively uncoordinated. To address this, a coordinated multilateral effort, such as that which marked the London Conference of 2002, an attempt to piece together a long-term strategy for a harmonized and integrated approach towards Nepal’s political health. Up until the events of April 2006, donors seemed to have contradictory approaches in helping to re-establish democracy in Nepal. With the changed context since then, donors must reinvigorate their efforts.

7. Recipient’s need and perception
Perception is a reality in politics, and therefore the prospect of foreign aid ought to be viewed against Nepali people’s perceptions of the international community. In that regard critics have pointed out that the average Nepali is wary of the international community’s “trustworthiness” when it comes to commitment to democracy. This is the result of having proven to be “fickle”, and some even suggest that the international community must be held accountable for its “betrayal” during the events of April 2006.

Such critiques were raised against the international communities’ implied support of Gyanendra’s coup in February 1, 2005. For example, the US ambassador condemned the parliamentary parties’ weakness and dysfunction, suggesting that there should be a 100-day grace period after the coup for Gyanendra to deal with the Maoist insurgency. In this vein, it is worth mentioning that India, the UK, and the US continued to supply military aid to the RNA, despite widespread reports of systematic human right abuses.

The US and UK, while publicly pronouncing their support for democracy, provided the means for the RNA’s aerial bombings, “targeting crowds heavily populated by civilians and a few Maoists”. Belgium’s military assistance to the RNA was found in violation of the EU code of conduct (the European Parliament later called on all EU member states to halt such deliveries). Up until the day that Gyanendra surrendered power (April 24, 2006), the international community was in favour of “stability over principles” and this shows that:

“Democracy, moreover, is not the aid industry’s concern; in fact, democracy often deters the aid industry by forcing greater transparency and accountability in public expenditure. An old Nepal hand (who wishes to remain anonymous) voiced a common wariness to me when he said: “If this had been a competent fascist coup, they would have backed it. But it’s been an incompetent fascist coup. They’re embarrassed by how crude it is.”

The Swiss, Norwegian, Danish agencies’ response to the political situation after the February 2005 royal coup was to support the political parties (recall, Thomas Bell’s “Kathmandu” 2014). It is known that some of the personnel from these embassies smuggled political party people in their diplomatic vehicles to India, providing support and protection to others. This divided the international community, roughly along the lines of UK, US, Germany, India versus other Europeans and Canada. The challenge here is to work on the shortcomings, perceived or real, of the international aid actors in Nepal.

To manage this perception of developed nations using a “tanks and ambulances” approach to the developing world, party aid workers are faced with a public relations challenge. There is no easy formula to explain why, for instance, some EU countries were providing weapons to the RNA while other EU countries were providing logistical support to pro-democracy activists. This could be mitigated if aid agencies made greater efforts to take an integrated approach to party aid, which does not ignore the linkages between ODA, international economic/military interests, and recipient needs.

Aside from the party aid agencies’ efforts, it must be recognized that the political parties have ultimate responsibility for their internal democratization. Some of their failings can be attributed to resistance from central and regional party leaders. Thus, realistic democracy assistance packages, ones that recognize the nature of “leader parties”, are vital to achieve tangible results.

8. Needs assessment
In the past, whether military aid, development or civil society assistance, all prioritize donor preferences over recipient needs. During the pro-democracy people’s movement of April 2006, a lack of understanding of the ground reality was so acute on the part of international community that “key diplomats wrongly assumed that they understood Nepal and its politics better than its own politicians and people.” The role of the international community at the peak of the movement in 2006 cast doubts on the foreign diplomats’ capabilities:

“Diplomats had a clear idea of their own preferences but had difficulty putting themselves in the place of the party leaders and appreciating the pressures and calculations they faced. Once the direction of the country started to depend on the sentiment of the people at large rather than the manoeuvres of small political elites, the diplomatic community’s isolation from the ordinary Nepalese became a critical weakness.”

There is room for these weaknesses to be corrected, but understandably diplomats will face questions of credibility in the future. In a situation where foreign policy considerations of donor countries often do not match recipient needs (e.g. in a developing country such as Nepal), there is an obvious asymmetry that favours the donor. Supply-driven activities suffer from a lack of needs analysis and clear objectives (recall earlier quote from Nanda R Shrestha, In the name of development, A reflection on Nepal, 2009).

Donors’ ability to ensure appropriate aid expertise can be enhanced in many ways. For instance, the donors’ own impact assessments and evaluations, which document their perceived levels of efficiency and realistic goal setting, can be instructive for future efforts. These documents could be utilized more rigorously, to bolster international/regional sharing of expertise and experiences borne out of past practices.

It can be said that party aid faces several challenges in Nepal, not least of which is the perception that parties are one of the lower priorities for aid, usually far behind ODA and civil society aid. In the new political landscape of Nepal, party aid should be re-evaluated and, it is argued, is a necessary part of overall democracy assistance. Managing perception while providing aid is a challenging task, but in that endeavour some aid agencies are well experienced, having built long-term relationships through their years in Nepal. It is not easy to pinpoint in which areas the democracy building has been organic nature or designed by the outside world.

It can be suggested that donors should “refrain from dictating recipients what to do, but when recipients states ask how to do certain things, provide techniques and knowledge.” And at the same time, the recipient must be transparent and accountable to project and its people.

Is it possible for donors and recipients to do what they are expected to do? Foreign aid is a part of the foreign policy objective of the donor country which is intimately linked with the national interest. Therefore, the recipient should be aware what kind of aid in in their own interests and accept accordingly should they want to be free, especially from cultural imperialism and military strategic sphere of influence from the donors.

It is difficult to demonstrate the extent the organic change qualitatively. Certain changes can be the necessity of the time, e.g. the monarchy was abolished because it failed to change itself according to the need of the time and the republic of Nepal is thus established. There may have been internal organic need for the abolition of the monarchy as there may have been external forces for ending the monarchy. The mixture of internal and external forces will continue to work in the future. The facts presented in the beginning of this paper and the role of foreign aid and experts are only microcosm of the foreign actors’ intention for change in Nepal. Whether Nepal can sustain the organic part of the process of the democracy building depends upon the wisdom of the political class of the country. Honest conversation between the foreign donors/experts and the Nepali recipients/counterparts will be necessary to infuse the flesh and blood in the recently developed democratic structure of the country.

9. Telling truth about Nepal’s constitution 2015
Currently a question stands for intellectuals regarding constitution; how critical, independent and truthful one should/could be, telling of truth about the writing, declaration and implementation of the constitution of Nepal? This question begs yet another question, i.e. what legal truth, for whom, how and where? Is it possible to be critical and fully independent against one’s own knowledge discipline, group, nationality (patriotism) bias, if so how? Yes, it is possible to identity relative truth, but it requires the ability of ‘taking a risk to go beyond the easy certainty’ and understanding ‘the reality of others” and challenging unjust practices, legal or normative. The greater historical changes in societies have come about by challenging social norms. For examples, the prohibition of slavery, decolonialisation, the end of apartheid, women’s right, and the idea of welfare state are some of the positive outcomes of the critical approach to law. It is not easy to be democratic self-critic’ or coherence evaluation. But one should not impose one’s own subjective view to evaluate objectivity of the situation.

Setting people in hierarchy of the races is the legacy of the barbarian past. Federalism, secularism, proportional representation and inclusiveness are certainly the antithesis of modern democracy; the political leadership class seems lacking the basic understanding on the race issue and the academic class has also failed to acknowledge the historical injustices that exist in the name of religion and hierarchy of caste system, as well as the class failed to identify appropriate discourse on the corrective actions against the historical injustices.

No individual today is purely one thing and have one single identity; no culture is pure, or all cultures are hybrid. Nepal’s constitution 2015 has formalised the race. The problems in terms of intellectual discourse in Nepal can be noted as follows: most people, demanding identity-based representation and constitutional right, are guided by the 18th century race theories (and who is responsible for such an education in the 21st century?) Cultural-language-based identity is often misunderstood with the racial identities, and in fact the race or ethnicity based-identity should have been a subject to eradication, instead such identities are being demanded and continues (are the foreign and national agencies working for minority giving the right message to the society?)

With a few honourable exception, Nepal’s most well-known writers and mainstream journalists fail to acknowledge gradual dynamic change in the human geography and seem confused with Pahadi and Madashi narratives. Now, there appears trust deficit from the part of academic class and the most important now is the Madashi issue, which need to be dealt with and sooner the better. The Madsshi issues is also linked with India and its representatives in Nepal. Nepal’s most foreign policy experts seems writing for the Chinese and/or Indian perspectives and rarely from Nepal’s own perspective and why? With this question I mean that, as long as the idea of nation-states lives on, Nepal should also live on. The humanistic approach is the ultimate resistance against all kind of injustices.

We the humankind are certainly facing difficulties in the digital media age, balancing between ‘self-censorship’ (to control oneself to avoid offending others) and full ‘freedom of expression’ (what one wants to say or express). Generally, I agree with those who believe in the freedom of expression without any limitations. In recent years, however, I am also realizing that ‘self-critic’ could be a balancing method, while expressing about others and at the same time not annoying others. ‘Self-critic’ I am not suggesting to the level of Buddha’s experience of Mara or self-shadow, it simply means evaluating one-self and expressing with coherent manner or viewing or analyzing issues (at hand) and tell stories as well as providing news, views and/or understanding the others (perspectives). It is about using same epistemological approach to one-self, as well as to others, whether it is about democracy or constitution building at home or abroad.

Challenging legal myth: critical thinking and counter narratives of law, state and justice

Challenging legal myth: critical thinking and counter narratives of law, state and justice: Why the lady justice is blindfolded, holding a balancing scale with one hand, and a sword in another hand? Does it truly symbolize neutrality, objectivity and justness of the law or what? Why she can’t be the one with open eyes and open mind without a sword in hand? The fact that there is the worldwide lack of adequate gender equality as well as ongoing violence against women, what is the symbolism of the lady justice, would not she look real with open eyes and open mind? What does the lady justice symbolize for women’s right to equality?
That everyone is governed by the neutral rules and objectively applied by indepedent judges is a powerful myth developed in the name of states, controlling the people. Myth is a product of human emotions and imagination, acted upon by his/her surroundings. There can never be a system of definite and consistent rules that produce determinate results because these laws, no matter how they are written, will always be subjected to the biases, prejudices, and discrimination of those who interpret and enforce them. The political class relies on ideology to achieve popular compliance through the brute force of state. Law and states are therefore necessary evils. These institutions are necessary because people need law – the law courts and government – to organize (there is no alternative to the law and states), and they are also evil because they are about controlling people.
’Who drew that map’ (Mansell) is vital. Even if law is about “justice” what is the myth and reality in that perceived justice? The objectivity, standpoint methodologies and postcolonial and feminist science and technology studies and objective look different from the different stand point (Sandra Harding). Balakrishnan Rajagopal, “International Law from Below: Development, Social Movements and Third World Resistance”(2003) is a different perspective to international law that is generally used today. Therefore, we talk about contextualised law and contextualised subject and objectivity. “Women in fact form the largest group whose interests remain unacknowledged (Hilary Charlesworth). “The international legal notion of statehood operates to permanently privilege particular voices, and to silence others” (Martti Koskenniemi). Women as are also being silenced by statehood. Feminist standpoint theorists make three principal claims: 1) Knowledge is socially situated in marginalised group;2) Marginalized groups are socially aware of things; 3) Power relations research should begin with the lives of the marginalized (Donna Haraway). Gayatri Spivak calls them Subaltern (term coined by Antonio Gramsci, identifying the groups that are excluded from a society’s established institutions and thus denied the means by which people have a voice in their society). Moa Bladini “Objectivity – A Critical Review of Objectivity Idea, Objectivity Claims and Legitimization Strategies in Discrimination Discourses” has investigated the concept of truth, objectivity ideals and legitimization strategies in judicial activity. She writes, “objective and legitimacy is required for the public to have confidence in this activity”, arguing that “the notion of objectivity that characterizes lawyers and judges is important for the interpretation they make of legal rules and of the reality they encounter in their daily activities”. Bladini further argues that “the reality to be judged and the judgment itself is characterized by a positivistic objectivity, in which both the judge and the person to be judged are invisible”. And, further says that “certain norms and values, which are largely common to those who interpret and apply the legal rules, are invisible” and yet appear to be normal, natural and necessary
The objectivity ideology of law rest where the one who sees, interprets and ultimately judges, have to investigate himself and view his own values, they are hidden in the shadow of positivistic objectivity. “A law must have been passed in accordance with the prescribed procedure for the enactment of laws, which means the law was introduced at a legislature, duly calendared, gone through necessary readings and debated, voted upon, passed by majority of votes, published (in gazette) and implemented.” Who represents whom in the parliaments? How the parliamentarians are elected – first-past the post or proportionally elected representatives? Does the collective will of the people get through the legislation?
Myth of legitimacy “is the only thing distinguishing a tax collector from an extortionist, a police officer from a vigilante, and a soldier from a mercenary”. Violence is always behind every state action. Fear is exploited, language is distorted, and propaganda is spread, while narratives and history are tightly controlled. A just law, workable state and the wise judges must prove these opposing arguments false in order to prove neutrality, objectivity and fairness of law and justice.

Is the current state of the world affairs sustainable? If not, what are the systamic alternatives?

Katak Malla’s reading Systemic Alternatives, Pablo Solón ed., 2018
Assertion of the book: Humanity is facing a complex set of crises, including environmental, economic, social and civilizational: The main reasons behind the crises identified by the writers of the book Systemic Alternatives are the crisis resulting from the brutal form of capitalism than the failure of socialism. This is rightly argued for and presented with logical ideas, but the neoliberals would argue otherwise.
With its seven chapters, the search for system alternatives are described. These seven chapters include Vivir Bien (‘live good’), de-growth, the commons, ecofeminism, the rights of mother earth, de-globalisation and complementarities.
Basically, the book is suggesting that the Washington consensus (or neo-liberalism) is not a single truth and alternatives are possible in line with the post-modern discourses. In fact, the triumph of the liberalism described by Francis Fukuyama, in his book ‘ the end of history’, is the end Fukuyama itself said rightly Edward Said in his lecture ‘The Myth of the Clash of Civilizations”. In that sense the book Systemic Alternatives does not add more logics against the neoliberalism and its single truth.
The idea of Vivir Bien ‘live good’ is presented as overarching systematic alternatives in the book. Readers of the book, however, must wait page 24 to learn about the concept of Vivir Bien while the chapter start page 13 (this I will call technical pitfall). I agree with the writer that ‘live good’ is possible through complementarity, and personally I would argue including different disciplines of knowledge.
What are those system alternatives discussed in the book? In the last Chapter ‘Complementarity’ by Pablo Solón enlists different visions of Vivir Bien. As well in its first Chapter the idea of ‘live good’ described by Pablo Solón is presented as a debate and controversy. Suffice to say that no single person or discipline of knowledge can provide such alternatives, collective work across various disciplines of knowledge is necessary.
The seven chapters complement each other’s, at least in terms of narratives. At the same time, one may wonder what the aim of these terminologies is, e.g. de-growth, ecofeminism, de-globalisation, as they have existed in other forms and contexts, sustainable growth, feminism, gender equality and global social justice.
The term ‘real democracy’ has find place in the book but a wider discussion exploring the question remain hidden behind the narratives. Readers would expect more robust discussion; e.g., democracy on whose term and what is the systematic alternatives to the current forms democracies in the north or global south? What is happening to the idea of inclusive and identity politics in terms of building alternatives? Above all, the question to be assessed is; whether the democracy we understand today is sustainable to face the environmental, economic, social to civilizational crisis?
It has been well-known that there is not trickle-down effect from privatisation/neoliberal capitalism and/or globalization based on the Washington consensus as it works only for a few rich. The term “degrowth” (page 53) by Geneviève Azam ‘is provocative and almost blasphemous in nature. It is a watchword that prods people’s consciences in a world dominated by the cult of growth for the sake of growth – or, in other words, the pursuit of profit for the sake of profit’. But what is the problem with the term sustainable growth? We should acknowledge that word can have not only meaning but power. Alternative narratives provoke the readers to ask, e.g. what is the wrong with the concept of sustainable development, whole defining de-growth? In fact, both the capitalism and socialism were and are based on the exploitation of the earth resources.
The interesting issues discussed in chapter the Rights of Mother Earth also by Pablo Solón is ‘Earth Jurisprudence and wild life,’ which may include plant jurisprudence also an idea evolved in the early 1980s. In this regard, the constitutions of Ecuador and Bolivia are highlighted. The question remains, however, that without system alternatives the current system does not seem being any helpful enhancing the earth jurisprudence.
On ‘de-globalisation’ Pablo Solón writes about ‘deconstructing globalisation’, introducing changes to human relationship with the system of planet Earth. This is nothing new, in my view, the book ‘small is beautiful’ 1973, Ernst Friedrich Schumacher has already suggested so decades earlier.
The Chapter ‘Complementarities’ ‘is the final Chapter by Pablo Solón, wherein the explored issues are how to deal with the systemic crisis is described. It is stated that ‘we cannot overcome capitalism if we do not address productivism that is deeply rooted in the extractivism of nature and in the reproduction of the plutocratic and patriarchal structures of power.’ Equally important is transformation of power and counter-power, this is where I believe lies the key argument, finding system alternatives.
‘Commons’ by Christophe Aguiton makes me think why the term common must start with Magna Carta while all societies have the origin of the term? Water, sea, environment, biodiversity and climate are global common heritage or collective common concern, and there are concept of common property relating living resources of the sea. Indigenous people’s rights and inclusive democracy are becoming part of negative debate in recent years in Nepal and south America and elsewhere. Right question is being raises: What are the elements that constitute it? How do we strengthen real democracy so that it does not end up being co-opted or distorted by political parties or State actors?
Ecofeminism by Elizabeth Peredo Beltrán is a much-needed critical method of finding alternatives. Ecofeminism in India and south America has depended its root, and ‘essentialist” feminism concludes that sustainability and care for life are guaranteed by women’s qualities and their relationship with nature, as women produce life. Intersectionality, the importance of social class and ethnicity is also addressed in this chapter, which is the contribution of the critical approach too. Here one can find the means of finding alternatives by and through the critical approach. However, ecofeminism is not without challenges; Vandana Shiva is being quoted that ‘one of the currents that has contributed the most to the comprehension of the systemic coordination between the financial system, the pillaging of nature and patriarchy.’
No one scholar and no single disciplines of knowledge can find system alternatives today when humanity is facing a complex set of crises. It should be a collective social consensus, critical approaches and redefining ideas when/where they have become irrelevant. Overall, the book is a positive contribution in challenging the old terminologies and building new ideas/narratives, finding system alternatives. Personally, I think that we should start what Yanis Varoufakis says, ‘Capitalism will eat democracy — unless we speak up’.

Equal access to quality education and quality assurance in Sweden

Equal access to quality education is undoubtedly a vital necessity for any country to progress and sustain its worthiness with the aim that all citizens have equal value and therefore should have equal access to education. The fact that there are correlations between quality education and competent leaderships in all walks of life, quality education is also important for a well-functioning developed state. In Sweden, the move from a public-school system to a system with state-financed public and private schools, as well as a parallel move from state-run schools to schools being run by the local levels, according to Pisa research, has threatened equal access to quality education and led to falling results of pupils’ knowledge in Mathematics, reading and writing, depending on geographic location, social class/education level of parents. This paper focuses on the Swedish school reforms (from the early 1990s), i.e. decentralisation/recentralisation and measures dealing with the consequences of reforms (2008 onwards). The three key issues selected for discussion are; 1) a decentralized/local self-government-based public and/or private school education; 2) equality and the right to education financed by the welfare state; 3) quality education at school and university levels, including quality assurance components in Sweden (rf., the Swedish Education Act, the Swedish Higher Education Act and the Standards and Guidelines for Quality Assurance in the European Higher Education Area). In view of the ongoing implementation of Nepal’s constitution (2015)- and especially ensuring Nepali citizen’s right to equal access to quality education – this presentation maybe relevant for the policy makers and education providers at the central, provinces and local levels of the federal republic of Nepal. This is an appraisal how the people in a distant territory, with different mechanisms, conduct their quality education, but this is not any kind of recommendation from anywhere to anyone.

When I received the invitation from the organiser of the International Conference on Challenges and Prospects of Quality Education in Nepal in Federalism Era for a key note speech, the broader issues came to my mind that are seldom discussed, i.e. what it really means to be educated and who decides the content of the education or what should be taught, and at what cost? There are no easy answers to these questions but these are worthy questions, especially at a time when the world’s democratic and socio-civic values are being degraded; and when many role models, most leaders and heads of state or governments are betraying the people they represent. Even the world’s well-known universities – the cradle of leadership – are tarnishing the educational value, integrity and character, e.g. Oxford and Cambridge universities have invested “tens of millions of pounds in offshore tax havens”. This is not only civic ‘tax issues’, it is also ‘hypocrisy’ and poor leadership of these educational institutions. At the end of my presentation, though difficult as they are I will attempt to deal with the broader issues especially from the perspective of course content of social science, which I believe determines value, integrity and character of any society and its worthiness.
First let me begin with some specific points of consensus among the world’s educationalists, which may help us to deal with the above-mentioned questions, that: a) quality education is a basic human need, if not a right; b) no state can progress without a system of universal, inclusive primary, secondary and higher education; c) trained school teachers are instrumental to provide quality education (to teach science, math, language, social science, technical and vocational studies); and d) student-friendly class rooms, at least free meals and basic health care are necessary for efficient learning; and e) education systems constantly need to be monitored, evaluated and improved. These five points of consensus, in my view, are applicable everywhere in the world, providing the students quality ‘knowledge’, ‘skill’ and ‘attitude’.
As elsewhere, quality education is obviously necessary in Nepal and the topic is very important and relevant to deal with within the framework of Nepal’s new constitution (2015), which has framed the country into seven federal provinces and many local municipalities. A new administrative structure at the local, provincial and national levels has emerged in the aftermath of the 2017 elections in Nepal. The flesh and blood of the structure is still to be known. It is in this context that necessary changes for quality education becomes specifically relevant for Nepal. However, for this discussion, we shall avoid misconceptions that has dominated the constitutional discourse, especially during the time of Nepal’s constitution writing, i.e. pitting the concepts of federalization against decentralisation and vice versa. It should be acknowledged that a fully authorised local self-government under a unitary system could sustain and exercise full autonomy (e.g., the central government of Sweden has no right to dissolve elected local governments whereas in quasi-federal systems e.g., in India where the central government has often dissolved federal state governments).
Obviously, the shifting of the power from the centre to the local levels of any country results in certain positive outcomes. The policy makers, nevertheless, must be ready to deal with some unintended consequences, when the centralised power (good or bad) is shifted from the centre to local levels. While implementing the decentralisation, credible research shows that, it is imperative that the policy makers have a clear thinking of the consequences regarding the quality and equality of education, i.e. the content of education and the cost of education. It should be also realised that economically weak and technologically less advanced municipalities will face challenges of exercising autonomy and implementing necessary changes. A delicate balance will be necessary between the central and local levels to achieve the five-points of consensus mentioned earlier.
This presentation is partly based on my experience of more than two decades as a student, researcher and university teacher in Sweden. In this paper, I have also used and interpreted the Swedish sources, e.g. the Swedish Education Act, the Upper Secondary School Ordinance and the Adult Education Ordinance; the Swedish Higher Education Act and the Higher Education Ordinance; the Standards and Guidelines for Quality Assurance in the European Higher Education Area; and the Swedish Government national goals for preschool, compulsory and upper secondary schools as well as official reports. Where it is felt necessary, some relevant examples from Western European countries and the US are also used. Some sources from Nepal, e.g. constitutional provisions, have also been used. Essentially, I will outline the Swedish education reforms from the early 1990s, e.g. decentralisation, recentralisation, and measures dealing with the consequences of the reform from 2008 onwards. I am not making any recommendations in this, because I have been away from Nepal for more than two decades, and do not intend to be a part of the ‘orientalists’ to misrepresent the actual educational needs. Secondly, I believe that any attempts to copy (or impose) outside educational models have been proven historically negative. Nor do I wish to be enlisted myself in the group of scholars, who went to Western universities and when they return to their country of origin proposed the very kind of syllabus used in the Western universities. I am talking about situations where the syllabus in social science has been copied from universities of the colonial powers. As a result, the students in the developing countries were taught and learnt (as many post-colonial studies suggest) more about the history of the colonial powers than their local history, whereas the colonial power properly never taught their own colonial history.
The three sub-themes under the main topic ‘equal access to quality education and quality assurance system in Sweden’ that I intend to explore, based on the Swedish reforms for quality education, are; 1) a decentralized/local self-government-based public and/or private school education; 2) equality and the right to education financed by the welfare state; and 3) implementation of quality education at school and university levels, including quality assurance.
1 A decentralized/local self-government-based public and/or private school education
Studies on the relationship between decentralisation and the quality of education suggest that decentralisation leads to empowerment and collaboration among teachers, brings a focus on professional development and promotes a sense of accountability at the local level. In addition, curriculum implementation at local levels may provide space for local relevance, motivate students, enhance skills, knowledge and attitudes and above all increase the democratic functions at the local level.
Other studies suggest that decentralisation of education is not without adverse consequences. The Swedish school decentralisation and reform experiences tell us that dual-faced challenges arise when decentralisation takes place. On one hand, it is necessary for the central government to keep the oversight role, and on the other hand it is also necessary to ensure the autonomy of schools. In Sweden, the central government and the municipalities, i.e. the local level, have different roles in this regard, but the middle level, i.e. the provincial level in Nepal, is not involved. Currently in Nepal, it is unclear how the central government, the seven provincial governments and the local municipalities are going to divide the responsibilities in education.
The centralized Swedish school system, under the Ministry of Education was changed through many reforms in the late 1980s and early 1990s. In the beginning of the 1990s Sweden was one of the most centralised school systems in the Western world and a system considered giving equal education to everyone despite socio-economic status and educational level of the parents. This picture was changed by several reforms in the early 1990s:
• In 1991 the reform of decentralisation of the local level to run public schools took place. This meant that the 290 municipalities in Sweden took over full responsibility for providing school education in their respective area. The public school had already since the 1800 been a shared responsibility between the state and local levels, but with the decentralisation reform the local level was strengthened from merely being an administrative unit to have full responsibility for providing school education and pedagogic leadership where the teachers had possibilities to shape the education to local conditions. Deciding on the terms and conditions of employment of teachers was also decentralised.
• In 1992 there were two reforms that have had major impact: 1) private schools were entitled to offer school education, provided that the school had been approved by the central authority for the school system and 2) parents were given the right to choose which school their child should attend, whether private or public. The public funding follows the pupil, where the local level provides the funds for the public or private school.
• There were also several other changes, e.g. a new curriculum was introduced in 1994 including a new grading system of the pupils. During this time a new teacher training education was also introduced.
During this time Sweden also faced a financial crisis with less public resources available and an increasing housing segregation with the result that pupils from low-income families lived in the same area. It is of course hard to pinpoint what effect any specific reform has had, but according to studies this has resulted in more homogenous group of pupils with the same socio-economic background gathering in the schools.
A few years after the Swedish reforms, the Programme for International Student Assessment (Pisa) assessments revealed Sweden’s quality education crisis. Despite no fee-paying schools, no school dress code and no formal interaction between teacher and students unlike Anglo-section tradition, as well as free meal at schools the crisis chocked the country. The overall consequences of the reforms are identified as (a) disparity of quality education not only between municipalities but also between public or private schools, (b) declining quality education especially in science, reading and maths, and, (c) the most serious consequence is dropout that more students left compulsory schooling than ever before. This particularly hit the foreign-born pupils and “tackling the increasing performance gap between foreign-born and native students is a challenge (in 2017).” Several commissions and projects have been launched to find out the reasons and how to deal with the sinking quality. In recent years, “the Swedish government has boosted resources to tackle inequalities.”
Recentralisation: the Swedish government has taken several steering measures to deal with the inequalities and falling school results. New regulations have been put in place e.g. in the Education Act and supervision through establishing the Swedish Schools Inspectorate in 2008 to control the quality of schools. The four main areas of inspections are: 1) regular supervision, covering all schools in a period of four/five years for equality of education; 2) thematic quality evaluations, focusing on quality issues subjects or functions; 3) investigations of complaints from individual students or their parents against schools; and 4) scrutiny of applications to start independent (private) schools and inspection visits to newly established independent schools. The Inspectorate has “the right to sanction municipal schools and to withdraw approvals and public funding for independent schools that do not fulfil their obligations in accordance with rules and regulations.”
In short, the Swedish Schools Inspectorate is responsible for supervision, quality assurance, complaints for public and private schools and for assessing permits for private schools.
Among the tools of recentralisation special or extra funds from the government budget has been put in place for the local level to apply for. Recently a whole set of additional funding has been put in place with the aim to decrease the inequalities between schools. As the present Minister of Education recently (Sept. 14, 2017) said “your future should not be limited by where and in which family you grow up, your future should depend on your own effort as a pupil”. These recent initiatives are aimed for schools in need to enhance equal opportunities.
2 Equality and the right to education ensured by the welfare state system
The economically rich class can afford quality education for their children at private schools in Nepal and elsewhere, paying expensive private school fees. Whether public schools are better than private schools, or vice versa, is politically controversial, because opposing political ideologies having different preferences, e.g. in Sweden, the left parties favour public schools whereas right-wing parties push for more privatization. However, in Sweden this discussion takes place in an environment where it is taken for granted that education should be free for everyone. And that both public and private schools are funded by the local level, not by school fees. It is written in the Education Act that schooling should be free from cost for the parents.
What is the cost of education in Sweden? “70 % of the school expenditures is financed by taxes from the local level” and the rest is financed by the state budget to adjust for socio-economic differences. This means that there is no school fee to be paid by the pupils in Sweden. Each child in Sweden is funded by the public budget under its welfare system. In the past few national election times, political party leaders have debated how to prevent the publicly-financed private schools from making profit; “Sweden invests heavily in education, with public expenditure on education among the highest in the EU.”
Privatisation of education continues within the Swedish welfare system and the Chair of Sweden’s Internationella Engelska Skolan, Barbara Bergström, acknowledges that “if we were not for profit we would not be where were we are today.” There is a constant discussion in Sweden as to how to prevent public money being used for private profit.
How the publicly financed public and private school system works? Both public and private schools in Sweden are funded by the public budget, which is known as “voucher system – funds following the choice of school”. All education providers, public or private, national or local, must provide education and services according to the Education Act, so that all children get the high-quality education according to their needs. At the same time, the government authority evaluates schools on specific grounds. Schools can lose their mandate every fourth year depending on the result.
Sweden has ratified the UN Convention on the rights of the child, and so has Nepal. What does the education as a human right mean to the poor and the marginalised? Jurists may define what it means either from the black letter interpretation of the law or from a critical legal approach to the law. The black letter interpretation of Nepal’s constitution 2015, in its preamble, is that the constitution has embraced socialism, but not the welfare state as a goal, and in Article 42 social justice is defined as a fundamental right. One factor that guarantee the right to education – as a human right, and equal access to education is the amount – per cent of GNP – spent in the education sector (Sweden about 8 and Nepal 4 per cent of GNP). Another important factor is the political will of the country.
The middle class in Nepal is increasing and the private school market is flourishing. Reasons for the increase of the private school market in Nepal may be that most public schools are under-funded, the respect for the teaching profession is declining since teachers are generally appointed based on their affiliations with the political parties, and as a result there is a lack quality education in public schools. Under these circumstances, it is understandable that even people living in day-to-day financial hardships have no option but to send their children to private schools. Hopefully, this conference will propose useful recommendations as to how Nepal should and could empower public schools and colleges to guarantee equal access to quality education, which arguably will help to breakdown the existing social class, divide in Nepal.
3 Implementation of quality education at school and university levels
The Education Act is the governing law on education in Sweden. The other regulations include the upper secondary school ordinance and the adult education ordinance. The Government sets the overall national goals for preschool, compulsory and upper secondary schools.
The Ministry of Education and the National Agency for Education (NAE) collaborate across schools and municipalities for different aspects of the evaluation and assessment.
The NAE is the central administrative authority for the schools, which develops school curriculums, syllabuses and subjects, school programmes, as well as the goals of school education and school diploma. The NAE sets the frames and guidelines on the education, aiming at the quality results and continuous improvement. The NEA evaluates activities through in-depth studies and follow-ups of school activities.
Preschool age in Sweden is 1-5 years. Generally, preschool starts from the age of 3, but if needed parents can send their child from the age of 1. The aim of preschool is to “stimulate the child’s development and learning and provide a secure care environment.” Private school providers and municipals run preschools.
Compulsory school starts when the child reaches the age of seven in class 1-9. Municipal or private education providers run compulsory schools. There are also compulsory school for pupils with learning disabilities with specific curriculum and syllabuses. There are also special schools, e.g. the Sami school, international schools, national boarding schools, special youth homes and Swedish schools abroad. There are also leisure-time centres connected to compulsory schools.
After completing compulsory school, the upper secondary education applies to students up to the age of 20, class 10-12. The theoretical programmes for the upper secondary education include, English, mathematics and five other compulsory school subjects. Vocational programmes and apprenticeship education are given in the areas of child and recreation, building and construction, electricity and energy, vehicle and transport, business and administration, handicraft, hotel and tourism, industrial technology, natural resource use, restaurant management and food, property management, and health and social care.
The current Swedish national standard-setting and quality test of the school education is based on trust in the school professionals who carry out evaluation and assessment of each pupil over the years to ensure that the pupil reaches the goals of learning. Teacher’s evaluation is important, monitoring the quality of teaching and learning.
National tests include wide range of curriculum goals, performance-based tasks including oral assessment and team projects with summative text in year 9.
Higher education: In Sweden, the higher education institutions (HEIs) are universities or university colleges authorized to provide higher education by the country’s law and regulations. The universities and colleges are autonomous public authorities, but there are also independent providers, i.e. private HEIs operated by organizations, foundations etc.
The universities and university colleges that are public authorities must follow the laws and regulations like any other authority in Sweden. The private HEIs also must follow the regulations regarding higher education, outlined in the Higher Education Act. Since the early 1990s, the HEIs, whether public or private, have been granted more freedom as how to shape their activities. There are for example no longer any national curriculum to follow for HEIs. Rather they have the right to determine which courses and programs they wish to offer and the curriculum for the programs. However, the learning outcomes that the students should achieve before a degree is issued is stated in the Higher Education Ordinance.
Which degrees can be issued are listed in the Higher Education Ordinance with learning outcomes set for each degree. The Government also regulates which HEI is authorised to issue which degree, and in this way, there is a quality assessment prior to an HEI offering a programme leading to a certain degree. For example, a university or university college that wishes to start a program leading to a professional degree or a degree in Fine Arts, the HEI will have to apply to the Swedish Higher Education Authority (UKÄ), which is the authority that assesses the application.
The Authority also evaluates the quality of higher education, monitors whether universities follow the laws and regulations and monitors efficiency and collects statistics in the higher education sector. The Authority is headed by a Director General appointed by the Government (earlier known as Chancellor).
The HEIs and the Authority have a shared responsibility for quality assurance in higher education. A board governs HEIs, which is responsible for ensuring management and planning its future development. The boards consist of a chair and other members. The Government on the proposal of the HEI appoints eight of the members. The Government appoints the chairperson of the board and the board then elects a Vice-chairperson. The Vice-Chancellor is a board member appointed by the Government, responsible for the day-to-day running of HEIs, including a pro-Vice-chancellor.
Higher education programmes are offered in business management, economics, arts, humanities, natural science, medicine, social science and technology. Online university education programs are increasing (myself conducting two master’s programmes at Umeå University, Sweden).
Higher education quality assurance components: Authorized by the Government and based on Swedish laws, Ordinances and the Standards and Guidelines for Quality Assurance in the European Higher Education Area (ESG), the Swedish Higher Education Authority has recently developed four new quality assurance components, and the components are: appraisal of applications for degree-awarding powers; institutional reviews of the HEIs’ quality assurance processes; program evaluations; thematic evaluations. The aspect areas along which the evaluation takes place in the four components are: 1) Governance and organization, 2) Environment, resources and area, 3) Design, teaching/learning and outcomes, 4) Follow-up, actions and feedback together with three perspectives 1) student perspective, 2) working life perspective, and 3) gender equality perspective.

These four quality assurance components have been assembled in a new quality assurance system with the aim to support the internal quality assurance processes of the HEIs. This means that each HEI is responsible for ensuring high quality in their respective programs, i.e. to have an internal quality assurance work. The Authority’s reviews can be considered as external reviews and are based on peer review with independent external assessment panels performing the reviews. The panel consists of subject experts, student representatives as well as employer and labour market representatives, who all play equally valuable roles in the assessment panel.
The Authority’s reviews and pilot studies started in the autumn 2016 and the regular, six-year review cycle started in 2017.
The assignment also includes to annually report of how well the quality assurance system ensures study program quality and the degree to which the system has served to improve quality for HEIs and their study programs.
Private higher education institutions in Sweden: Public and private HEIs must adhere to the same quality assurance system, since the Higher Education Acts applies to both public and private education providers. Normally when a private higher education institution receives degree awarding power the government provides funding for a certain number of students. Therefore, students do not need to pay fees either to private or public universities. The students from the EU, EEA and Switzerland can study in Sweden without paying fees. However, students from other countries are required to pay an application and tuition fees. Students coming to Sweden through exchange agreement do not need to pay fees to study at HEIs.
In conclusion of the three themes discussed above, it is fair to say that there are educational quality assurance mechanisms in place in Sweden to monitor, evaluate and improve equal access to quality education at schools and universities. It is also fair to say that when reforms of decentralisation have taken place they have had to be followed with measures to ensure quality as well as equality to all.
Quality Assurance and Accreditation is the means and aim of improving quality of education in Nepal. There are set Criteria and Benchmarks, but the implementation of the guideline remains to be seen.
4 The broader issues
On may wonder, what kind of education has produced the present world’s leaderships class in different walks of life, given the fact that present world reality is being marked by increasing degradation of democratic and socio-civic values, with on-going human rights violations. The world’s leadership class has failed to establish ‘international and social order’, and racism is rising all over the world; hegemony of powerful states against weaker, cultural imperialism, poverty and degradation of the earth’s natural environment continues, and so is the situation of perpetual conflicts and wars.
Part of the present-day problem is educational indoctrination as to how one’s own nation, flag and identity are more important than others, and how one’s own race is pure, culture and religion is superior than others, instead of letting students be free individuals, exploring their critical mind, which Wilhelm von Humboldt called the enlightened individual and the World citizen: “People obviously cannot be good craft workers, merchants, soldiers or businessmen unless, regardless of their occupation, they are good, upstanding and – according to their condition – well-informed human beings and citizens.”
Who decides what should be educational content? Knowledge is known as power, but the one who decides the course curriculum, set debate agendas and narratives, controls the power. In most cases, the course content is intertwining with national or local politics, e.g. “a Republican lawmaker in Arkansas has introduced a bill in the state legislature to prevent public schools from assigning books by Zinn, whose best-known book, “A People’s History of the United States,” is a telling of American history from the perspective of the oppressed people.” The opponents of evolution in the US have tried to stop Darwin’s theory from public school. In fact, “the politics of climate change poses a stark dilemma for anyone wanting to push back against the purveyors of post-truth.” The thematic course issues, right or wrong, also intertwine with religion, e.g. Amish parents in the US keep their children out of public schools for religious reasons. They do not need to follow the national curriculum. The US Supreme Court has ruled that parents have a fundamental right to direct the education of their children. Home education is legal in the UK too if it comes to educate one’s own children. One doesn’t need to be qualified teacher to teach one’s own children. In Sweden, there are necessary teaching qualifications and it is compulsory for pupils to attend school up class 9. The purpose of the school education is to provide equal access to benefit from education to obtain, develop knowledge and promote all-round personal development of children. Specifically, the aim of the Swedish education is to help students “to be active, creative, competent and responsible individuals and citizens with democratic values, respecting human rights, in cooperation with student’s parents” (Earlier on, the term ‘Christian tradition’ was mentioned in the Education Act, but it is amended). Equally important aim is to encourage children’s lifelong lust for learning.
What does it mean to be really educated? It may signify different things for different people and different societies. Educated persons are generally identified in terms of knowledge, skill and attitude, also referred to as ‘public intellectuals’ who, according to Edward Said, are ‘amateur’ (not necessarily expert), ‘detached’ (from the issue as well as involved with the issue) and have ‘universality’ with attitude, taking a risk to go beyond the easy certainty provided by one’s own background, language, nationality, which so often shields oneself from the reality of others. Being educated is also a mind-set to critical thought, opposite of indoctrination. It is also skill to unlearn (e.g., dogmas and superstitions) and not to try to classify others into any kind of hierarchy and not to try to rule others.
As Harold Shapiro says, and I agree, that “the ultimate test, of course, is not what we teach, but what students learn and what they become”. It is the educated class – ‘intellectuals’ – who could either usher change for the better progress and welfare or regression and accumulation of individual wealth and power, the question is which side of history, or argument (to speak for the power or in favour of the oppressed) the educated/intellectuals whish ‘to be, or not to be’.
Finally, let me end this paper with some open questions: Can Nepal progress with a small part of population being well educated? What are the workable plan of actions to empower public schools for equal access to quality education? Where public schools cannot provide quality education, who should? Who should steer the quality and content, and who should pay? What role the central government, the seven provinces and municipalities of Nepal will have as quality education providers? What lesson can be learned from others educational reform relating decentralisation, recentralisation and the central government’s right to oversight to quality education? Is there political will in Nepal, whether to consider the state financed public and private schools, ensuring equal access to quality education?

Strategically militarised and financially privatised energy sector of the world

When we view from the wider international relation scenario of fossil fuel use, the energy sector is strategically militarized and it is financially privatized. The energy trade and supply, especially of gasoline supply, have been a part of strategic military agenda from the early 1970s, especially when the Arab members of the OPEC imposed an embargo against the US and the other western countries. The ‘embargo’ was claimed to be retaliation against the US support for the Israeli military. The Arab member states used gasoline as a bargaining tool to gain leverage in the peace negotiations in the post-1967-Arab-Israeli war (and yet, peace is still a distant dream in the region). The OPEC is an intergovernmental organization, albeit privatized oil business of the member states, which controls half the worlds oil and manipulates oil price thorough their output quotas as a cartel. Until recently the OPEC had almost a monopoly of production and price fixing, along with the Great Oil Companies of the world, which are also known as “the Seven Sisters”. In recent time, the use of alternate sources of energy, i.e. fracking, by the US has influenced the gasoline price (from USD 100 per barrel down USD 40). At the same time, the use of gasoline is increasing worldwide so is the emissions. The law what ought to be established in the above mentioned scenario is how the oil companies and the OPEC should be legally obliged to implement the ‘corporate social responsibility’ concerning the reduction of the greenhouse gases emission. Nuclear power is said to be one of the options of slowing global warming but it nuclear technology is the most militarized one.

Equal rights to citizenship: Nepal case

Although a section of jurists and a section of media in Nepal seem to consider Article 11 of Nepal’s constitution 2015 provides for equal right for men and women, there is a genuine concern that Nepalese women has “no same right as Nepalese men to confer citizenship to her offspring”. Nepal’s women rights activists can be encouraged to file a public interest litigation to the Supreme Court. The petitioner could demand an interpretation of the relevant part of Nepal’s constitution (2015) along with Article 15 of the 1948 Universal Declaration of Human Rights. Article 15 contains the right to ‘nationality’ and that principle of ‘non-discrimination’ also should govern matters of ‘citizenship’ (although there is wider philosophical debate about the two terms, here ‘nationality and ‘citizenship’ are considered synonymous). Any discrimination regarding the right to citizenship of child to a single mother, whether citizen by decent or naturalized, is contrary to Article 15 of the 1948 Declaration, as well as Articles 2 and 7 of the 1989 Child rights Convention. Where and if there is gender-based constitutional discrimination in terms of citizenship (and other types of discrimination) it is a duty of the law courts to declare such discrimination null and void. In another word, Article 15 of the 1948 Declaration is the governing rule of the modern democratic constitutions of the world, it is recognized as a customary norm (acknowledged by many other subsequent human rights instruments) and it is a source of constitutionalism. No Constituent Assembly, or Parliament (elected or not elected) has the right to ignore Article 15, and/or issue a constitution contrary to Article 15. The principles of non-discrimination acknowledged by the 1979 Convention on the Elimination of All Forms of Discrimination against Women must be followed by the modern constitutions, including the equal right to property. I believe that Nepal’s new Chief Justice Karki (and her team) could (re) define Nepal’s constitution (2015) in line with the notion of Article 15 of the Declaration, as well as the above mentioned 1979 Convention and the 1989 Convention. If Nepal’s Supreme Court fails to implement Article 15 of the Declaration, it will be a flagrant violation constitutionalism and the 2015 constitution of Nepal will not accomplish its wider legitimacy irrespective how it is made. It is, therefore, in the best interest of Nepal’s ruling and opposition parties, as well as to the country as a whole, to acknowledge and implement Article 15 of the 1948 Declaration.

The SAARC Framework Agreement on Energy Cooperation 2014

The Framework Agreement on Energy Cooperation is reported as one positive outcome of the 18th SAARC summit meeting, held Kathmandu, November 2014. The agreement is about trading of energy at regional level. In October 2014, Nepal and India signed the Power Trade Agreement, aiming construction of cross-border transmission lines between Nepal and India. These are certainly steps in the right direction to cooperation, but does not address the long-term and sustainable energy solutions. Currently, the world’s oil output is high and price is low (crude oil to $81.84 a barrel). The lower oil prices may be good for consumers and it will also increase greenhouse gas emissions. Experts have suggested that the world’s 80 percent energy supply could be made through the use of alternative energy sources.
How the SAARC could and should strive for the long-term and sustainable energy solutions? Some emerging legal models, based on economic instruments, are listed below, should the SAARC consider to follow: The Green Energy Corridor agreement already exist between Germany and India, which is a loan (or aid) for developing suitable conditions in India, i.e. provide technical assistance to set up a functional Feet in Tariff (FiTs) scheme for the alternative energy development, much as Germany has done in South Africa. The Kathmandu media have reported that China—currently an observer— is willing to be a part of the SAARC. Under the current geopolitics, China’s entry into the SAARC remains a distant dream. In fact, in the energy cooperation, Chinese membership to the SAARC could be fruitful; China is the world’s leading investor in the areas of alternative energy and technology development.
Cross border models of energy cooperation and trade are evolving in Scandinavia. For example, “green certificates” or “Renewable Energy Certificates” (REC) have been introduced as a part of energy supplier obligation schemes, since 2012, between Sweden and Norway. The “white certificate” is another economic instrument. It is a document issued by a legally authorized governmental institution, which certifies that, a specified amount of energy savings are being achieved by a specific company or consumer. The certificates can be sold and bought among companies based on the energy saved in compliance with the targets. However, the price for saving of energy, per unit, stands as a problem. The white certificates are still limited to the local and national levels.“Feed-in tariffs” (FiTs) is essentially a policy designed to enhance investment in technologies for renewable energy. FiTs are designed for long-term contracts to renewable energy producers, it offers cost-based compensation, e.g. providing price certainty and financing renewable energy development through technological development. For example, FiTs have led to the dramatic increase in Europe’s solar photovoltaic power and other alternative energy sectors. In particular, Deutsche Bank has made a significant contribution to global wind power development through their utilisation of FiTs. Germany has demonstrated that FITs can be used as a tool to combine energy security and emissions reductions objectives.
The conflict between national laws and weaknesses in the enforcement of public international law is yet another hurdles to foster the development of the financial incentives. Most of the tools developed so far remain under the scope of the different national laws or private international law, or the conflicts of laws. Thus, application of these instruments, whether it is at national or international scales, depends upon the favorable national legislative framework of the respective countries.

Legal Prerequisites for a Nutrient Trading Scheme to Control Eutrophication in the Baltic Sea


This paper explores the legal aspects of a nutrient trading scheme suggested as an effective ecosystem management of the Baltic Sea, especially for dealing with eutrophication – over-fertilisation – of the Baltic waters. The relevant sources of the law relating to the Baltic Sea are analysed, noting also features of the international emission trading scheme (IETS), the European Union Emission Trading Scheme (EUETS) and the white certificate economic instrument. The legal prerequisites for a nutrient trading scheme are identified. Also, necessary changes in the legal framework of the Helsinki Commission/Baltic Marine Environment Protection Commission (Helcom) are suggested, should the Helcom parties consider such a scheme. The present work seeks to contribute to the legal knowledge needed for more effective and adaptive ecosystem management of the Baltic Sea, or other regional seas> see>http://booksandjournals.brillonline.com/content/journals/10.1163/18760104-01103005;jsessionid=1d3h1ob0egtrw.x-brill-live-02.

International Environmental Law Perspective on Climate Change and Sustainable Energy Development


In recent years, there has been a considerable international discussion focussing on the need for carbon-neutral, and renewable/sustainable energy development, and how it could and should be integrated into the discourse regarding climate change solutions. An outstanding question in this regard is; what are the necessary legal changes that are required for that to happen? In this article, the existing situation and necessary legal changes are assessed, from a perspective of international environmental law, using the lenses of a few but noteworthy national court’s litigation (case law) and legislation, as well as some international energy agreements, environmental treaties and economic instruments. The present author argues for an international agreement to mandate an integrated approach to climate change and energy uses, suggesting also the need for harmonisation of the various national energy laws with international environmental law. This article is published in Scandinavian Studies in Law, Environmental Law, Vol.59. See in detail>Katak’s energy law