I have authored a chapter-- confrontation between judiciary and govt in India--in the book titled, "Judicial Process" (2021) published by Thomson Reuters.
Here is the link:
https://drive.google.com/file/d/1YyxORP4E1wQrcc8ExQ5qAmuRgTl81_aO/view?usp=drivesdk
Socio-legal impacts of Coronavurus: Comparative critique of laws in India and Nepal ," has been reviewed by National Law School of India (NLS) University, Banglore.
Here goes the link of the chapter:
https://drive.google.com/file/d/1Z-7HV2Jldhgzuw6bB4S1aFlThY18G-S9/view?usp=drivesdk
A journal article on Nepal's Environment Protection Act, 2019
https://drive.google.com/file/d/1M0K8Q9Wxq6a6BDOPPnvX--Uz9kvR15gN/view?usp=drivesdk
Book: Women Empowerment and Welfare (2020, Mittal Publications, New Delhi)
My Chapter :"Responding to the Coronavirus Pandemic: A Study of Nepal's Epidemic Law regime" (Page 15-33)
Book edited by Dr Nandini Basishtha, a Post-doctorate in Political Science
The chapter available here:
https://drive.google.com/file/d/1C1Me6w5Fq_MhaeJOC1_nRpG0BdwYp3wq/view?usp=drivesdk
https://drive.google.com/file/d/1C1Me6w5Fq_MhaeJOC1_nRpG0BdwYp3wq/view?usp=drivesdk
Rights of Women in India and Nepal at Legislative Spectrum: A Constitutional Study
A book Chapter
https://drive.google.com/file/d/1BbCHbwIMCq_MCdu6U_ih5-gZoSgAhzsr/view?usp=drivesdk
Ad Valorem Journal
https://drive.google.com/file/d/18j-DMtgOMoRplZTES5QeH-8-TjtRxftV/view?usp=drivesdk
Pragyan Journal of Mass Communication, IMS Unison University Dehradun
June 2020, Pragyan Journal
https://pragyaanmasscomm.iuu.ac/archive.php?cid=18_archives
Dehradun Law Review
A journal of Uttaranchal University Dehradun, India
Right to education in India and Nepal
https://drive.google.com/file/d/1Z0lPY32RKkkjKcECWkWuN-B289RrHA9G/view?usp=drivesdk
http://www.dehradunlawreview.com/wp-content/uploads/2020/02/6_Right_to_Free_and_Compulsory_Education-51-67.pdf
https://drive.google.com/file/d/18MTUp5CI0OJmqABmMxDiAfvNi1TN4h7t/view?usp=drivesdk
https://drive.google.com/file/d/18JxCjxMTu7HzrttyIhL8wV0JlwM7FLaa/view?usp=drivesdk
https://drive.google.com/file/d/18EvZJabscF3NAwSTl-DOrv_l69h2PDtN/view?usp=drivesdk
https://drive.google.com/file/d/182w3qq3YNjvb54TbruUaRHl-bCI4vvhE/view?usp=drivesdk
It’s high time for the people and the government to come together in devising a robust mechanism for the implementation of the constitutional provisions, for the republic, deserves to realize the cherished goals envisioned under the preamble, write Jivesh Jha and Dr Alok Kumar Yadav for South Asia Monitor
By Jivesh Jha & Alok Kumar Yadav Apr 23, 2021
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How can democracy be best remembered? The celebration of democracy in Nepal would have little meaning if the people living under the constitution are not made familiar with the core values enshrined in the national document. While celebrating the ‘Loktantra Divas’ this year on Baisakh 11 (April 24), there is a dire need to critically analyse the effectiveness of the constitution.
While celebrating the Loktantra Divas, which commemorates the restoration of parliament in 2006 after its dissolution by then King Gyanendra in 2005, the people should make a solemn commitment to compose their actions in accordance with the constitution which unites the population of over 30 million.
The current constitution of Nepal, the precursor of new Nepali renaissance, came into force on September 20, 2015, laying down the political structure and addressed the needs and aspirations of the citizens who are united for the purpose of resisting external intervention, upholding rule of law and preservation of the nation’s sovereignty and integrity.
The ratification of the constitution was a sign that the country had geared-up for consolidating the agenda of different political movements that took place in the state. It led to the overthrowing of a long-lasting constitutional monarchy.
Under the new constitution, Nepal has a federal structure with the country divided into seven provinces, and there is clear delineation of legislative powers for the central, provincial, and local bodies. The other main characteristic feature of the new charter is inclusiveness.
Interim Constitution
The milestone for this constitutional spirit was set by the 2007 Interim Constitution and the new document gave emphasis to the continuance of this inclusivity with certain modification in number of clusters, keeping in mind the rights of women, the disabled, sexual minorities and other oppressed group.
Paradigm shifts: Historical development of constitutional law in Nepal
Of the seven constitutions that the Himalayan country has seen, the Government of Nepal Act 1948 was the first such document. Under this Act, the ultimate sovereignty was not vested on the people of Nepal. Article 22 (a) provisioned that there shall be the Legislative Assembly of Nepal comprising His Highness Sri Teen Maharaja, the Rastra Sabha [National Assembly] and the Bharadari Sabha [Advisory Assembly].
Rana Prime Ministers thus used to present themselves like kings or the ultimate political superior or chief of the state. Interestingly, the king was not considered an essential component of parliament even though he was official head of the state.
The ministers were required to take solemn oath of office and secrecy before the Prime Minister, who also confirmed their resignation.
Second constitution
The end of the Rana regime following the 1951 revolution saw King Tribhuvan promulgating the second constitution of the Kingdom of Nepal on March 30, 1951, based on the advice of the Council of Ministers. It came into force on April 11, 1951. Nevertheless, it was a compromised document between the king, the Ranas, and the Nepali Congress.
It is to be noted that Falgun 7, 2007 BS (i.e. February 18, 1951) has been marked as the day on which democracy was established as a result of the overthrowing of the Rana oligarchy. That’s why Nepal commemorates Falgun 7 as Democracy Day.
The 1951 constitution borrowed the provisions relating to fundamental rights and directive principles of state policies from the Indian Constitution. The scholars argue that it was a replica of the Indian Constitution. However, the provision of emergency was not incorporated in the document. Like the previous constitutions, this charter too failed the test of time.
King Mahendra’s constitution
The Constitution of Kingdom of Nepal, 1959, was crafted by a committee formulated by then King Mahendra. A distinguished jurist Sir Ivor Jennings, who had served as Dean in Colombo University for long, was called upon by King Mahendra to draft the constitution
Under this constitution, the cabinet was accountable not only to the parliament, but also to the king. The king was not bound to work exclusively on the aid and advice of the Council of Ministers and had absolute power to declare emergency under Article 55. The government elected by the voters and the parliament of the day had no control over the proclamation or revocation of emergency under Article 55. Also, the King was conferred with the power to dissolve the Lower House and the government in power.
The 1959 constitution was the first highest law of the land which firmly adhered to Hindu culture and tradition. Article 5 provided that “no person shall be entitled to convert another person to his religion.”
Article 57 of the charter envisioned that the judges, including the Chief Justice, of the top court shall be appointed by His Majesty “in His discretion, after consulting the Prime Minister and some other judges of the Supreme Court as He may deem necessary.”
Mahendra’s 1962 constitution
Like the 1959 constitution, the 1962 charter too reaffirmed that Nepal shall be an independent, indivisible and sovereign Monarchical Hindu kingdom. The constitution under Article 8 provisioned that one must have knowledge of Nepali language and s/he was expected to “read and write the national language of Nepal” in order to acquire Nepali citizenship.
The constitution provisioned that a person of “Nepali origin”, who has resided in Nepal for a period of not less than two years after renouncing the citizenship of her country in the case of a female married to a Nepalese citizen, was entitled to obtain citizenship. The expression “Nepali origin” was nowhere defined under the Constitution. On the contrary, a similar approach was not adopted for the persons who did not have so called “Nepali origin.” The provision required that a woman who is married to a Nepali man and if she was not from Nepali origin then in such case, she was required to apply for citizenship after fifteen years of her stay in Nepal.
This constitution too failed to last for long due to many reasons. Of them, the regressive citizenship laws, party-less legislature and extreme emphasis on a particular language and culture could be considered the major shortcomings of this document.
A democratic constitution
The Constitution of Nepal, 1990, followed a series of development which succeeded in repealing the 1962 Constitution. The constitution was promulgated by the then His Majesty the King Birendra..
Part-2 of the Constitution details the provisions of ‘Citizenship.’ It provides that any person whose father is a descent citizen is entitled to acquire citizenship by descent. The enactment runs like this: A person who is born after the commencement of this constitution and whose father is a citizen of Nepal at the birth of the child shall be a citizen of Nepal by descent. However, it had been provisioned that a foreigner may acquire a naturalised Nepali citizenship if he resides in the country for at least fifteen years and he can speak and write the Nepali language. A foreigner woman tying the nuptial knot with a Nepali man was allowed to seek naturalised citizenship at the instance of solemnisation of marriage.
Article 4 of the constitution sought to uphold the Hindu character of the state but at the same time Article 2 provisioned that “the Nepalese people irrespective of religion, race, caste or tribe, collectively constitute the nation.”
2007 Interim Constitution
The Interim Constitution of Nepal BS 2063 (i.e., 2007) had been crafted following a political understanding developed in the aftermath of the overthrow of constitutional monarchy for an interim period till the promulgation of a new constitution by the Constituent Assembly. Nepal received its Interim Constitution and interim parliament with Maoist rebels joining mainstream politics on January 15, 2007.
Understandably, the historic 12-point agreement signed between Seven Party Alliance and CPN-Maoist laid the foundation for the election of the Constituent Assembly, and that deal was further cemented by the Comprehensive Peace Agreement (CPA) in 2006. The 12-point understanding and CPA laid the principles of new constitution that officially recognised secularism, republicanism, and pushed for federalism.
2015 constitution
A few things about the 2015 constitution are worth remembering. One, it’s the first formal constitution to affirm a federal republican democracy. Two, the conscience of the constitution has been captured under Part-III (Fundamental Rights) and Part-IV (Directive Principles). They are evidence of the splendid collection of rights, worthy of a public welfare state and envisages newly empowered citizenships.
Thirdly, Nepal has set aside 33 percent of parliamentary seats for women, which is a major breakthrough. With the enactment of new constitution, Nepal is transformed into a republican state from a Constitutional monarchy, a federal democracy from a unitary system of governance, and a secular structure from one with a Hindu character.
Having gone through the constitution, one can firmly and proudly say Nepal’s new constitution is progressive, and institutes several positive elements for the uplift of women in the country.
Like other constitutions of the world, this document too adopts progressive provisions for realising the goals of federalism. It was a prerequisite for the Himalayan Republic to come up with a fundamental document showing adherence to republicanism with strong federalism. Unlike the 1962 constitution, every person bon in Nepal is allowed to claim Nepali citizenship, irrespective of his command over Nepali language. How can we call it (Nepali constitution) a regressive charter?
Meaning of Loktantra Diwas
As action speaks louder than words, the need of the hour is to realize the provisions of the constitution. The ambitious provisions of fundamental rights would lose their charm if the state turns a deaf ear in giving effect to these provisions in a true and material sense.
Importantly, the constitution has not prevented any political group or activists from doing or refrain from doing something, which they are to do to for the welfare of their community or voters. In fact, it is unjust to blame the constitution for their failures.
Those who protested against the constitution are holding vital government offices in the Province-2 and the central government. How could they blame the constitution?
It’s high time for the people and the government to come together in devising a robust mechanism for the implementation of the constitutional provisions, for the republic deserves to realise the cherished goals envisioned under the preamble.
The celebration of Loktantra Diwas would have no meaning unless people from all walks of life compose their actions for the implementation of constitutionalism and rule of law.
(Jivesh Jha, a former law lecturer at Kathmandu University School of Law, is a Judicial Officer, Birgunj High Court, Nepal. He can be contacted at jhajivesh@gmail.com. Alok Kumar Yadav is a professor of law at HNB Garhwal University, Srinagar, Uttarakhand, India. The views are personal)
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Read more at: https://www.southasiamonitor.org/spotlight/nepals-democracy-day-time-implement-constitution-letter-and-spirit
Cross border marriage, i.e., matrimony between Nepali son/daughter and India’s son/daughter, is very common in bordering districts of Uttar Pradesh and Bihar. This is the reason why Nepal's Madheshis treat Indian soil as their relatives’ home, not a foreign land, write Jivesh Jha & Roshan Kumar Jha for South Asia Monitor
By Jivesh Jha & Roshan Kumar Jha Sep 10, 2020
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India and Nepal celebrates bread and bride relations. The two open-border states have an age-old linkage of language, history, culture, tradition, and religion. The interrelationship in various terms has posed positive pronouncements in political, social, cultural, and economic engagements with each other. However, the people-to-people exchange, as well as cultural and religious exchanges between the two nations has been halted due to the coronavirus pandemic.
Globally, the constitution or other relevant laws ensure a fundamental right to work. The right to work has been recognized by the internationally binding instruments as well. In this context, Article 23 of the Universal Declaration of Human Rights (UDHR), 1948 envisages that everyone has the right to work, free choice of employment, just and favourable conditions of work and protection against unemployment. The right to work morphed from a mere state value to an individual human right with Article 23 of the UDHR. This provision not only protects the right to work, but also obligates states to ensure the right to compensation while unemployed. This international obligation has been badly affected due to the sealing of the Indo-Nepal border at the onset of the coronavirus outbreak.
It is especially hard for the people living in border towns who have not been able to visit their relatives’ across the border. It is disappointing to see that the pandemic has brought not only health and economic crisis but also put a stop to a person’s religious and cultural beliefs, especially during the final journey of a person's life. People on either side of the border are facing difficulty in participating in the funeral rites of their relatives who have died during this outbreak.
In Nepal, whether Hindu, Muslims, or Buddhists, want cordial relations between India and Nepal. The temporarily sealing off the Indo-Nepal border due to the virus has not only prevented people of the two countries to meet their relatives but also stopped them from visiting some of their holiest pilgrimages. The people’s religious freedom or right to move or meet their near and dear ones has been put under suspended animation due to the pandemic.
People residing in bordering towns celebrate each other's lifestyle, language, literature, and culture. They cherish traditions and festivals but rarely care for the language of politics or hate. To put it simply, heart-to-heart relations matters more for them. By celebrating the legacies of cultural exchanges, they want to ensure that hate has no home here along the border.
Madheshis share a special bond with India
Madheshis - or the people of Indian ancestry - residing in the Terai of Nepal share a special bond with India. Cross-border marriages work as a catalyst for this bread and bride relation. It is a very common practice, that the Madhehsi have their breakfast at their home (in Nepal) and dinner or lunch at their relatives’ home in India. Not only Madheshis, even people of hill origin too frequently visit bordering towns for shopping purposes. While the Madheshis want Indo-Nepal relations to grow stronger so that they could celebrate their age-old blood relations, the people of hill origin also want the same but for advancing economic benefits.
A section of hill community members have settled in India and they enjoy economic, civil, and political rights at par with Indians. Hundreds of thousands of educated youths are working in India’s private companies. Only people from hill origin get deployed in Gurkha regiment under Indian Army. But, there is no such arrangement for Madheshi youths. Even though there is no statutory definition of the term Gurkha, the practices show that Madheshis are not considered as Gurkha and they are not entitled to join the regiment. India, through its embassy in Kathmandu, invests much in the construction of school buildings in Nepal’s hill region.
Suffering Nepali migrant workers
Amid the outbreak, Nepalis living in bordering districts have not been allowed to go to the nearby Indian market to purchase essential goods or to avail essential services, like healthcare. Hundreds of thousands of migrant workers working in India have been affected. They are not able to join back work. Also, the recent dip in relations between the two countries has also made their lives difficult. Neither India nor Nepal has shown any interest in the protection and promotion of their rights and concerns.
Eventually, this obstruction has caused a serious impact on the 1950 Indo-Nepal Treaty of Peace and Friendship. Article 7 of the Treaty provides that “The Governments of India and Nepal agree to grant, on a reciprocal basis, to the nationals of one country in the territories of the other, the same privileges in the matter of residence, ownership of property, participation in trade and commerce, movement and other privileges of a similar nature.” As cross-border human movement is halted, it appears that this provision has been temporarily suspended.
Cross-border relationships
Cross border marriage, i.e., matrimony between Nepali son/daughter and India’s son/daughter, is very common in bordering districts of Uttar Pradesh and Bihar. This is the reason why Nepal's Madheshis treat Indian soil as their relatives’ home, not a foreign land. The halt at the border has severely impacted marriages as well.
Likewise, hundreds of thousands of Nepali students are pursuing higher education in Indian colleges. Every year, a large number of Nepali students move to India to earn a higher degree. Due to unfavourable education scenarios or political instability, Nepali youths prefer to study in Indian varsities. Unfortunately, COVID-19 outbreak has put a stop to that too.
Interestingly, there are many people in Nepal’s Terai region whose house falls in Nepal’s territory but their portico lies in the territory of India. They are prevented to visit their land for farming or other purposes just because the border has been sealed to stem the transmission of COVID-19.
Its high time to devise a robust mechanism for ensuring the rights and concerns of the people across the Indo-Nepal border in every given situation, for the democracies deserve to maximize the people-to-people exchanges and minimize every action that tends to pose a threat to everlasting bread-and-bride relations.
(The writer, a former law lecturer at Kathmandu University School of Law, is a Judicial Officer, Birgunj High Court, Nepal. He can be contacted at jhajivesh@gmail.com. Roshan Kumar Jha is a Judicial Officer with Nepal’s Parsa District Court. The views expressed are personal)
Read more at: https://www.southasiamonitor.org/spotlight/nepal-india-cultural-and-social-ties-hit-hard-border-sealing
Nepal has all the right to claim compensation from its two neighbouring countries – China and India - two of the world’s biggest polluters, write Jivesh Jha & Alok Kumar Yadav for South Asia Monitor
By Jivesh Jha & Alok Kumar Yadav Apr 01, 2021
If there is one thing that Kathmandu’s poor air quality has shown us is that a place could gain the tag of ‘the most polluted’ city even though the country’s carbon emissions are very low in comparison to the developed countries of the world.
Air pollution is the presence of air pollutant that is detrimental to human health and the planet as a whole. Air pollutant could often transcend national frontiers and cause adverse impact on neighbouring countries too. That’s why pollution that adversely affects the areas in one country could cause damage in another country by crossing borders through pathways like water or air. This is termed as trans-frontier or transboundary pollution. It is to be noted that pollution can be transported across hundreds and even thousands of kilometres.
Nepal - a victim of transboundary pollution
According to available data, Nepal’s global share of fossil Carbon Dioxide (Co2) stands at 0.02 percent, while the Himalayan republic’s neighbouring countries like China is the largest emitter of Carbon Dioxide gas (almost 30 percent of the world's total CO2 emissions in 2019) and India stands as the third-largest emitter (it produced about 2.65 billion metric tons of CO2 in 2018). These data show that Nepal could have become the victim of the pollution that originally generated in neighbouring countries.
In 1971, the world community through the meeting of the General Agreement on Traffic and Trade (GATT) had agreed upon formulating strategies for striking a balance between economic growth and ecological sustainability. The GAAT, unanimously, suggested the signatory states should mandatorily promote environmentally sound technologies. But, the developed countries have failed to abide by this obligation as they are not able to establish harmony between development and the environment.
The 1979 Convention on Long-range Transboundary Air Pollution (LRTAP), the first multilateral agreement addressing transboundary air pollution created a regional framework on reducing transboundary air pollution and a better understanding of air pollution science.
Nepal has all the right to claim compensation from its two neighbouring countries – China and India - two of the world’s biggest polluters - which is causing pollution or whose irresponsible disposal of pollutants in the form of air or water has caused immense harm to Nepal’s ecology and environment.
Importantly, Principle 14 of the Rio Declaration, 1992 states that the states are obliged to discourage or prevent the relocation and transfer to the other states of any activities and substances that cause adverse effects on the natural environment. Similarly, Principle 16 of the Convention talks about the Polluter Pays Principle, which enables the state to charge the cost of ratifying environmental damage from the relevant polluter. Thus, according to the Principle, the responsibility to repair the environmental damage is that of the polluter.
As Nepal is one of the least developed countries and lags behind in term of industrial development, it cannot be blamed for contributing much to the emission of fossil Carbon Dioxide. The Rio Declaration under Principle 19 also obligates the states to provide prior and timely notification and relevant information to potentially affected States on activities that may have a significant adverse transboundary environmental effect and shall consult those States at an early stage and in good faith. However, this provision, like many other international obligations, also remain on paper as the countries, which have considerable share in carbon emissions, are yet to inform their neighbours about any of their activities that could contribute to transboundary pollution. Moreover, the 1972 Stockholm Declaration under Principle 6 envisages that the release of toxic substances should be halted.
Need proactive role in reducing pollution
Nepal, with a population of 30 million people, also cannot leave its role of reducing air pollution. Keith Hawkins, an environmentalist, argues that pollution is an administrative creation. It is high time to think - does Nepal have a robust mechanism to keep a check on hospitals, factories, or other industrial establishments that are emitting solid wastes, gases, or pollutants? Of course, Nepal doesn’t have that.
Nepal’s major cities like Kathmandu, Janakpur, Birgunj, or Biratnagar, have become safe haven for diesel commercial vehicles which are more than 10 years old. The government agencies have not shown any interest so far in deregistering old vehicles.
The government could come up with a policy that would ban the plying of old vehicles, at least, on the streets of Kathmandu and major cities of Nepal. Diesel vehicles and heavy-duty trucks are a major source of air pollution, which includes ozone, particulate matter, and other smog-forming emissions.
What concerns many is that Nepal's roads rarely have trees on either side of the road. This is sheer violation of Section 16 of the Public Roads Act, 1974 which makes it mandatory on the Department of Roads to ensure the plantation of trees on the right and left hand sides of a public road and it also obliges local authorities to take care of planted trees.
Constitutionally speaking, the right to a clean and green environment is an individuals’ fundamental right in Nepal. The Constitution of Nepal adopts and enacts a plethora of green laws to advance the cause of the green republic. To mention a few, an individuals’ right to live in a clean environment (Article 30); right to clean water and hygiene (Article 35); food sovereignty (Article 36); the right of state to carry out the land reforms for bringing reformation in agriculture or environment protection (Article 25); or the right of the consumer to have quality foodstuffs and services (Article 44) are put in place.
As the air quality in Kathmandu has deteriorated recently and climbed to hazardous levels, the Ministry of Education, Science, and Technology on March 29 ordered schools to be closed for four days, i.e., till April 2. If Kathmandu’s air pollution has climbed to such a hazardous level, who is to be blamed for this? Can’t we reach the conclusion that the constitutional guarantees have been temporarily suspended? Or, enforcement agencies are not properly working?
There should be no anti-thesis between development and environmental protection. After all, development and a clean environment both are essential requirements for meaningful survival. Development at the cost of the environment could in no way be called sustainable development. The UN’s Brundtland Commission Report, 1987, gave a comprehensive definition of sustainable development, which is something that warrants humans at the centre of development and the environment. According to the Commission, sustainable development is not a fixed state of harmony, but rather a process of change in which exploitation of resources, development, and institutional change are consistent with future as well as present needs.
Nepal should seek cooperation from China, India
It is high time Nepal adopts robust environmental measures that anticipate, prevent, and reduce the source of environmental degradation. The onus of proof should be placed on the polluter.
Over and above all this Nepal, being the neighbour of China and India, deserves to seek financial resources, mechanisms, and environmentally sound technology and cooperation from them and the rest of the world to combat the ecological and environmental concerns that the country is facing.
(Jivesh Jha, a former law lecturer at Kathmandu University School of Law, is a Judicial Officer, Birgunj High Court, Nepal. He can be contacted at jhajivesh@gmail.com. Alok Kumar Yadav is a professor of law at HNB Garhwal University, Srinagar, Uttarakhand, India. The views are personal)
Read more at: https://www.southasiamonitor.org/spotlight/kathmandus-deteriorating-air-quality-nepal-should-seek-compensation-china-india
Jivesh Jha
04, 2020
Imagine if a law prevents you from availing or seeking benefits from agricultural or natural products, like Lapsi or Yarshagumba, that are produced or found exclusively in Nepal. It is assumed that you have an inherent right to use, produce, reproduce, repurpose or modify the properties which belong to you (as a nation), but that is not so if the property rights are unsecured. The same is true of intellectual properties.
Intellectual properties have various forms, including patents, trademarks, design, geographical indications (GI) and copyright. The government of Nepal, under the Patent, Design and Trademark Act, 1965 is responsible for making the policies to ensure the implementation of intellectual property laws.
Recently, the United States’ Millennium Challenge Corporation’s (MCC) Nepal compact has courted controversy, for the MCC incorporates provisions that say they will prevail over Nepal’s domestic laws. Such provisions could have serious implications on the intellectual properties generated or produced in the country. The stakeholders believe that MCC is part of Washington’s Indo-Pacific Strategy, which aims to counter China, and the compact entails diplomatic, economic and geographical implications.
The preamble states that this Millennium Challenge Compact is between the United States of America, acting through the MCC, a US government corporation, and the Federal Republic of Nepal, acting through its Ministry of Finance. Also, the preamble, which is the window through which aims and objectives of the legislation can be seen, clarifies that the compact obligates both Nepal and the US to stand “committed to the shared goals of promoting economic growth and the elimination of poverty in Nepal and that MCC assistance under this Compact supports Nepal’s demonstrated commitment to strengthening good governance, economic freedom and investments in people.”
The MCC Nepal compact has provisions which confer power on Washington DC to produce, reproduce, purpose, repurpose or modify the intellectual properties and claim rights on them. Section 3.2(f) of the MCC states, “The Government grants to MCC a perpetual, irrevocable, royalty-free, worldwide, fully paid, assignable right and license to practice or have practiced on its behalf (including the right to produce, reproduce, publish, repurpose, use, store, modify, or make available) any portion or portions of Intellectual Property as MCC sees fit in any medium, now known or hereafter developed, for any purpose whatsoever.”
This clause clearly shows that the MCC, which has approved 37 compacts for 29 countries since its inception in 2004, would extend a claim on products originating or produced from Nepal, which would, unfortunately, lose its sovereign rights over certain products which have their origin in Nepal. It would ultimately dearly cost the Himalayan Republic because of the intentional or unintentional theft of some intellectual properties belonging to her.
Section 6.8 of the MCC clarifies that it is a US government corporation acting on behalf of the US government. But, “MCC and the United States government assumes no liability for any claims or loss arising out of activities or omissions under this Compact” (Section 6.8). The provision further clarifies that the US government will be immune from the jurisdiction of all courts and tribunals in Nepal for any claim or loss arising out of activities or omissions under the Compact. Thus, Nepal’s judicial department has been precluded from entertaining any issues arising out of this MCC Compact. Ultimately, MCC would be immune from the tortious liability, vicarious liability or any civil or criminal liability whatsoever, as if the act or omission of the MCC is within the ambit of sovereign functioning.
Ironically, Section 7.1 has a provision that can potentially question the sovereignty and integrity of Nepal, stating, “The Parties understand that this Compact, upon entry into force, will prevail over the domestic laws of Nepal.” Nepal’s legislation would not apply within its jurisdiction!
Therefore, if MCC starts claiming rights on the intellectual properties that have their origin in Nepal, then in such cases, Nepal’s domestic laws would be impotent to counter such types of infringement, interventions or imperialism.
Nepal does not have special legislation now to govern the Geographical Indications (GI) of goods in the country to sufficiently protect the interests of the producers of such goods. For instance, if MCC seeks GI on Nepali products, including Lapsi, Yarashagumba, Jhapa Tea, or Pidukiya, Mithila Paintings or other agricultural products, then Nepal would lose exclusive claims to its products. In doing so, the US could extend GI claims not only for agricultural products but also for Nepal’s manufactured goods.
Similarly, Trade-Related Aspects of Intellectual Property Rights (TRIPS) aims to foster intellectual property on traditional knowledge, integrated circuits’ layout design or business secrets. Nepal’s domestic laws, including the Patent, Design and Trademark Act and the Copyright Act, are silent on securing rights on these contemporary issues.
Unless Nepal provides intellectual property protection, it cannot obtain the identical protection for its products abroad, in countries that have intellectual property laws in place. Interestingly, Articles 22-24 of TRIPS made it obligatory on signatory states of the World Trade Organization (WTO) to provide GI protection to products that may include agricultural, natural, or manufactured goods or handicrafts or foodstuffs.
Nepal became a WTO member on April 23, 2004, the first least developed country (LDC) to join the WTO. If MCC succeeds in availing claims on Nepali products, Nepal would fail to honour its international commitments under TRIPS. Nepal must build its capacity for innovation, realise its research potential and take its rightful place in the global arena.
In the presence of the stringent MCC provisions and absence of a strong IPR regulatory regime, it would be an uphill task for Nepal to stake an exclusive claim on products nationally and internationally. MCC defines Intellectual Property as “all registered and unregistered trademarks, service marks, logos, names, trade names and all other trademark rights; all registered and unregistered copyrights; all patents, inventions, shop rights, know-how, trade secrets, designs, drawings, artwork, plans, prints, manuals, computer files, computer software, hard copy files, catalogues, specifications, and other proprietary technology and similar information; and all registrations for, and applications for registration of, any of the foregoing, that is financed, in whole or in part, using MCC Funding.”
In today’s competitive world, where economics decides politics, the developed, developing and underdeveloped countries ought to stand on the same page in protection and promotion of IPR. If these rights are protected, then companies, farmers, researchers, or writers could play a creative and constructive role in development, as innovation enhances productivity.
It is evident that the MCC is a US development project. Claims or rights availed by the Corporation would directly or indirectly benefit the global superpower. Nepal would be unable to claim rights to its own products. The burden of proving the relevance of the intellectual property provisions under the MCC lies with the MCC. It is interesting to note that the MCC was not implemented in Tanzania, Madagascar and Mali because of disputes between the MCC and state parties.
The Corporation must prove that arrangements envisaged within the Compact do not frustrate or overrule the federal laws of any country.
(The authors are Judicial Officers with Janakpur High Court, Birgunj, Nepal)
Read more at: https://www.southasiamonitor.org/node/61
By Jivesh Jha Apr 12, 2020
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In the midst of current lockdown and transmission of the deadly coronavirus, people across the country have to stand united in the fight against the outbreak of epidemic as a part of a show of solidarity. We, the people of Nepal should understand that if an unfortunate incident can befall one, it can befall others too. That’s why we all need to stand together. While the lockdown is expected to slow the rate of transmission, it will not succeed to completely curb the outbreak of the pandemic.
This virus needs to be faced with commitment; courage and concord but one person alone cannot do it. We should be unanimous in our response to this epidemic. We are one nation. We cannot march our fight against the outburst of novel COVID-19 unless we firmly spread a message that collective effort is the only answer to tough times. This time shall also pass if we collectively fight against this contagion.
Leon Duguit (1859-1928), a celebrated jurist of Sociological School of Jurisprudence, was of the view that if the state acts in a way which promotes social solidarity, it is entitled to be upheld and encouraged. As the legal regime cannot turn as distributor of unhappiness, the government has invoked the Infectious Disease Act, 1964 to impose a virus-lockdown to combat the possible outbreak of COVID-19 infection in the country.
The Act, 1964, which is home to as many as five sections that merited enactment during King Mahendra’s regime, envisages that the outliers would be punished with imprisonment of either description for a term which shall not be more than one month; and/or also liable to a fine of Rs. 100 (Section 3). The Chief District Officer (i.e., executive Magistrate) has been empowered to implement the Act, 1964 (Section 4). The legislation confers a blanket power on the state to adopt and enact possible measures to curb the outburst of the epidemic.
This way, the governance has unleashed a strong message that people from all walks of life are together in the fight against the Coronavirus. The government’s initiative to enforce the lockdown, self-isolation or physical distancing or other preventive measures supplements and supplants social solidarity in a sense that all of these moves are put in place to combat the deadly epidemic. To quote Duguit, “Man must so act that he does nothing which may injure the social solidarity upon which he depends; and more positively, he must do all which naturally tends to promote social solidarity.”
So, if the people who stand in defiance of lockdown and contribute in the spread of the deadly virus, their action would harm social solidarity and they would stand against the majority will. “The only right which a man can possess is the right always to do his duty,” says Duguit, who was a well-known professor of constitutional law in the University of Bordeaux in France.
Article 48 of the Constitution of Nepal lays down fundamental duties to be observed by the people. The provision obliges every citizen to observe the laws of the land. The acclaimed jurist Hohfeld argues that rights and duties are jural correlatives. He believes that it is unjust for a person to claim rights unless he fulfills his duties. It becomes the sovereign duty of every citizen to practice physical distancing in a bid to curtail the outburst of COVID-19.
The need of the hour is to adopt all possible measures to prevent the spread of the virus. Perhaps, this the best duty a man can do at this moment.
Duguit was also of the opinion that the law which does not stand the test of social solidarity is not a valid law. The law in force to curb the chain of transmission of coronavirus, of course, stands the test of social solidarity as it empowers the state to adopt measures to curb the transmission of the pandemic. In this respect, it becomes imperative to acknowledge yet another message of Duguit: A rule of law exists whenever the mass of individuals composing the group understands and admits that a reaction against the violation of rule can be socially organized. There is a dire need of acknowledging the law from within-to-without.
Moreover, we were together during all the tough times; we should take a pledge to overcome this deadly epidemic. The only need of the hour is to go for self-quarantine to prevent the spread of coronavirus which has already entered our country. Prudent persons are already playing creative as well as constructive roles to battle against this outbreak. Some are engaged in welfare functions, while others are standing as frontline warriors in the fight against the deadly virus. The fight against corona is akin to wartime situations. But, it is a different kind of war where enemies are not visible with naked eyes.
Health professionals and doctors are tirelessly engaged in saving the lives and their role is no less than forefront fighters. As the world leaders and people are together in the battle against the outbreak of coronavirus, public opinion is thus the expression of social solidarity against this epidemic. After all, it’s time to bear in mind that “united we live, divided we die.”
Above all, we deserve to contribute to the governments at the helm to improve access to quality health, and education to recognize and respond to global pandemics in the future too. The government can only act locally even against epidemics unless they had an opportunity to act beyond the borders. If our concentration is on combating COVID-19, the question that immediately arises is how to contribute and help the state to curb the transmission of this deadly virus.
It is time to take steps towards ensuring social solidarity among the national population. Just law and order is not enough to uphold Duguit’s philosophy; for a vibrant democracy deserves to form a cohesive socio-political structure to catalyse unanimity of opinion and negate differences.
(The author, formerly a Lecturer of Law at Kathmandu University School of Law, is currently Judicial Officer at Janakpur High Court, Birgunj Bench)
Read more at: https://www.southasiamonitor.org/spotlight/nepal-needs-show-social-solidarity-coronavirus-lockdown
By Jivesh Jha Jun 05, 2020
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Ever since the deadly coronavirus commenced the journey from the Hubei province of China in December 2019, a global war is being waged against a pandemic that has changed the world order. Thousands of people have already lost their lives and the death tally is surging up by the hour. The biggest catastrophe of the contemporary world has neither spared the world’s mightiest economy and military powers nor the developing and developed states. It has devastated the world without any distinction. This unprecedented disaster called for the activation of lockdown measures and quarantine laws. It was imperative for countries that observe the rule of law to implement the epidemic and disaster management laws to stem the transmission of the coronavirus. Nepal was no exception to it. The government of Nepal executed the Infectious Disease Act, 2020 BS (1964) to impose a uniform lockdown across the country.
Although, the Himalayan republic witnesses fair corpus of laws to curtail the outbreak of a pandemic, they have obvious gaps. It appears these laws are neither up to date nor comprehensive. Our law aims to punish the outliers but fails to guarantee the fundamental rights (relating to life, liberty, food, shelter, or others) to the underprivileged section of society.
In this respect, the K P Sharma Oli-led government has clarified that an outlier, i.e., the person who wilfully disobeys the lockdown, would be punished with imprisonment of either description for a term which shall not be more than one month; and/or also liable to fine of NPR 100 (Section 3, Infectious Disease Act, 1964). All the 77 District Magistrates have been delegated the responsibility of implementing the decision taken in line with the Infectious Disease Act, 1964 (Section 4). The Chief District Officers (i.e., District Magistrates) can implement the local administration Act, if required, to enforce the government’s decision.
Moreover, Section 104 of Country Criminal Code, 2074 (BS) envisages for up to 10 years' jail sentence and a fine of up to NPR 100,000 against a person who intentionally spreads the infectious disease. The provision also allows the judicial department to inflict jail sentence of up to five years and a fine of up to Rs 50,000 on a careless person and up to three years of imprisonment and a fine of up to NPR 30,000 on negligent ones who indulge in spreading infectious diseases.
No obligation to the poor
The Infectious Disease Act, which was enacted by then Nepal King Mahendra, nowhere prescribes for welfare functions to be carried out by the state for the welfare of the vulnerable citizens amid health emergency-like situations. The regal law does not necessarily oblige the government of Nepal to ensure the arrangement of food or compensation or financial assistance to the daily wage earners, migrant labourers, informal sectors or poor and needy ones who would not have suffered otherwise.
The 1964 Act, which has as many as five sections, in its Section 2 provides ample power on the government of Nepal to apply all necessary measures to curtail the outbreaks. It allows authorized government officials to issue orders, whichever required, to control or abate the outbreak of infections. The officials are permitted to check or inspect any person, pedestrian, goods, or vehicles if they suspect the person or goods may be carrying infections.
This way, the legislation confers blanket power on the state to curtail the outbreak of infection but it does not necessarily explain the duties of the government towards its vulnerable citizens. Nor do the laws explicitly and authoritatively recognize the rights of citizens during the outbreak of any disease. Also, the epidemic laws don’t oblige the state to adopt scientific measures required to curb the spread of infection.
Nevertheless, the observance of lockdown, social distancing, or quarantine measures is certainly in the interest of people. Eventually, people started observing preventive measures to curtail the transmission of deadly viruses. This way, the national population started believing that the non-observance of the guidelines issued by the World Health Organization (WHO) or the department concerned about the state could contribute to the exponential growth of the virus and finally harm the society at large.
Duguit, a French jurist of the Sociological School of Jurisprudence, believes that if the state acts in a way that promotes social solidarity it is entitled to be upheld and encouraged. The move of the state to impose a coronavirus lockdown certainly promotes social solidarity, for the decree of the government aims to defeat the deadly virus. So, lockdown is encouraged and people wholeheartedly favoured its extensions.
Weak laws
Arguably, the existing law of the land fails to direct the state to set up a common forum comprising of bacteriologists, virologists, biomedical scientists, and among other healthcare professionals to conduct research on antibodies of pandemics. In fact, it would be an uphill task for the state to combat outbreaks unless there is a specialized research centre to study the causes, symptoms, prevention, and cure/treatment of the diseases.
In the UK, the Coronavirus Act, 2020 obliges the state to provide compensation to the victims of COVID-19. The newly enacted special law succeeds to strike a balance between the rights and duties of the State during the COVID-19 outbreak. It has a provision that seeks to register health workers, volunteers, or other persons or organizations engaged in serving the people and society. Regrettably enough, we lack such welcome provisions in our part of the world. It is advisable for the governments - of both Nepal and possibly India - to take a leaf from the UK Coronavirus Act, 2020 which was enacted for defeating COVID-19.
The current epidemic law may fall short on punishing an outlier who commits theft of swabs/samples collected to test COVID-19.
The poor and underprivileged section of society suffers the most with the loss of wages, unemployment, and lack of access to welfare policies of the state. It’s imperative to ensure the portability of benefits, such as the provision of food and relief materials to the needy ones through the public distribution system.
The State should adopt a long-term strategy to attract the greater number of workforce from the informal sector that would ensure them social security. As the workforce in the informal sector does not have safety nets, a drop in their income due to lockdown, disaster or health emergency-like situations can push them into poverty.
The probability of the emergence of many new viruses cannot be ruled out as the world is yet to curb deforestation and climate change. Viruses will stalk humanity unless and until we develop a robust strategy against environmental degradation. Infectious diseases can bring about both biological and social consequences. It would be disastrous to ignore one at the cost of others.
Nepal needs to augment medical education with more healthcare professionals and standard medical facilities. The landlocked state also needs to give a push to medical research. Research is not only needed in the field of allopathy but also in the field of disaster laws. There should be a comprehensive code to deal with all issues connected with the pandemic.
Also, there should be robust research in the field of ayurveda, homeopathy and traditional knowledge to expedite a fight against contagious diseases. Together, the three can prepare us for the challenges of the days to come. The government could achieve wonders if it succeeds to ensure the equal growth of allopathy and ayurvedic medicines. No one can turn a blind eye to the vital role of ayurvedic medicines in enhancing immunity.
Nepal’s epidemic law regime would have strengthened the federal spirit had the legislation incorporated provisions allowing the states to adopt plans and policies at their discretion, not at the sweet will of the Centre. It seems the State is heading towards quasi-federalism or federalism with strong centralizing tendency even after the abolition of monarchy, a unitary system of governance.
Nepal’s political parties - irrespective of their ideology and party line - should stand together to devise a uniform and updated law and policy to accelerate a fight against disasters that know no boundaries. After all, a pandemic cannot be battled with outdated and non-comprehensive legislation in hand.
(The author is Judicial Officer, Janakpur High Court (Birgunj Bench), Nepal. The views expressed are personal. He can be contacted at jhajivesh@gmail.com)
Read more at: https://www.southasiamonitor.org/spotlight/nepal-needs-comprehensive-pandemic-law-battle-coronavirus
Cross-border marriages, i.e., matrimony between Nepal's son/daughter and India’s son/daughter are very common in India's bordering districts of Uttar Pradesh and Bihar, writes Jivesh Jha for South Asia Monitor
By Jivesh Jha Jul 01, 2020
Nepal has floated a new Citizenship Amendment Bill (CAB) that seeks to grant citizenship to a foreign woman married to a Nepali man after her seven years of continued residency in the Himalayan republic. The Madhesh dwellers, who share bread-and-bride relations with India, are displeased with the unprecedented move of the Communist government, stating that the ultimate intent is to restrict the entry of Indian daughters (brides) to Nepal.
Of late Madheshi activists argue that the CAB, once passed, will help protect non-Madheshis and harass Madheshis, who are people of Indian ancestry residing in the Terai region of Nepal, when they line up at the government offices with their paper work. Madhesh, dwellers in the southern plains believe that the state is divided like never before into ethnic lines. Clearance of the CAB would favour fanatical agendas aimed at disturbing bread-and-bride relations with India.
Madheshi leaders, NGO and activists have always floated misinformation to entice Madheshi community members against Kathmandu and hill and, in return, they have bagged important government posts with settlement and negotiation with Kathmandu power centres. For instance, major government positions are held by NGO activists, who had protested against the constitution in 2015 in Province-2. They are also holding vital government positions under the same constitutional frameworks against which they had protested for more than 135 days in 2015. They enticed people to join their protest which claimed more than 40 lives.
Like buffalos can never turn into white cows, so is the story with Madheshi parties if we look into their past. Nevertheless, it does not mean that Nepali Congress, Communist Parties, and Maoists have done much for the plainspeople. As I come from the same community, I am always with the Madhesh, where I was born and bred. It’s indubitable that Madhesi people's demands and aspirastions need to be heeded. Their aspiration of equality, peace, and prosperity can’t be overruled.
These activists entice people against the authorities, mobilise people in street protests and later bag vital government offices in deals. Madheshi parties refused to give the stamp of approval to the new Constitution, arguing that the “statute is not a broad-based document” and it would “politically marginalize the Madheshi people.” They misled the people earlier and now they disseminated false information about the CAB.
CAB, cross-border marriage and misinformation
There is anxiety among Madheshis over the denial of citizenship to their spouses in a cross-border marriage. But there is nothing as such in the bill that aims to proscribe a foreign woman married to Nepali citizens to acquire citizenship or Nepali nationality.
Firstly, it’s true that a foreign woman, including that of Indian daughters marrying Nepalis, would have to wait for seven years to apply for naturalized citizenship of Nepal. But, it does not mean that those brides, who have left their country after solemnizing a marriage in Nepal, would be left stateless for up to seven years. Until the citizenship is granted, a foreign woman married to a Nepali man would be granted an identity card of permanent resident, which is equivalent to citizenship for the purpose of enjoying economic, social and cultural rights. It means an Indian or foreign woman, who is married to a Nepali man could obtain the permanent resident card after producing a marriage registration certificate and proof of initiating the process renouncing the citizenship of her country.
A person with a permanent resident card is eligible to purchase land, establish a business, can study, apply for the government/semi-government or non-government jobs, apply for the registration of birth certificates to their issues, dissolve the marriage by the way of divorce or claim estate/maintenance from the husband’s property at the event of the dissolution of the matrimony or at the instance of the death of the husband. However, Madheshi activists of Nepal neither spoke even a single word about the permanent resident card nor did they disseminate a true picture of the CAB.
In fact, the grant of citizenship after seven years of holding the permanent resident card is the continuance of citizenship. This bill is for granting nationality and continuance of citizenship; neither deprivation nor suspension of national identity. So, the new proposed law would neither harm bread and bride relations with India nor would it make any person stateless. Yet, it has a serious implication.
The foreign women so married with Nepali men are not entitled to enjoy political rights, meaning thereby, they are barred from contesting elections and casting votes.
Moreover, the foreign women married to Nepalis are naturalized citizens, who are not eligible to hold vital government offices by virtue of Article 289 of 2015 constitution of Nepal. Article 289 disallows a naturalized citizen to be ‘appointed as the President, Vice-President, Prime Minister, Chief Justice, Speaker of the parliament, Chairperson of National Assembly, Head of the province, chief minister, speaker of Provincial Assembly and chief of security bodies.
The Universal Declaration of Human Rights and Convention on the nationality of married women, 1957 provides that everyone has the right to a nationality and must not be arbitrarily deprived of, nor denied automatically by marriage or dissolution of marriages. Nepal’s CAB does not deprive the nationality of married women.
However, states may make special procedures available for a wife to acquire her husband’s nationality [Article 3(1), Convention the nationality of married women, 1957]. Women must have equal rights in relation to men with regard to the nationality of their children [Article 9, Convention on the Elimination of All forms of Discrimination Against Women (CEDAW), 1979]. The children have a right from birth to acquire a nationality [Articles 7, 8, Convention on the Rights of Child]. International provisions also seek to prevent statelessness by outlining the circumstances in which a state must not deprive a person of nationality, such as where deprivation would result in a person having no nationality or where a person is deprived of racial, ethnic or political ground [Convention on the Reduction of Statelessness, 1961].
The CAB hosts provision for a permanent resident card until the citizenship card is issued. This way, the CAB neither deprives the nationality of the married women nor does it discriminates with children born to such a couple.
Cross-border marriages, i.e., matrimony between Nepal's son/daughter and India’s son/daughter are very common in India's bordering districts of Uttar Pradesh and Bihar. This is the reason why Madheshis treat Indian soil as their relatives’ home, not a foreign land.
Poverty and lack of development
Nepal is a country of limited resources where inflation and poverty are at the zenith. The government imposes more than 200 percent tax on vehicles that are imported from other countries. Nepal does not manufacture motorbike or other vehicles. A Nepali is bound to invest more than 150,000 for a bike that costs INR 40,000 in India. Every Nepali in bordering districts frequently visit the Indian market for daily food items because they find grocery items, clothes, and other essential services at a reasonable price. Millions of Nepalis are working in India. A government officer in Nepal receives around NPR 40,000 which is equivalent to INR 25,000. An officer in India receives salaries several times more. These things clearly show that Nepal is a poor country.
So would an Indian daughter born and brought up in an affluent family dare to establish matrimony in Nepal? The truth is that even a middle-class family of India won’t dare to marry their daughters and sisters in Nepal where there is rampant poverty, illiteracy, and poor infrastructural development. In reality, Indian women solemnize marriage with Nepali men having equal status. To put it simply, these days Indians don’t love to marry their daughters in Nepal because of the country's political instability, poverty, illiteracy, and lack of development.
In fact, no foreigner or Indian would wish to settle in a country where a government university teacher draws a salary of NPR 50,000 (that is INR 31,250) per month. Nepalis are moving abroad on a daily basis in search of a better life. Nepal’s millions of youths are toiling in Gulf countries as migrant labourers. Nepal’s poverty and lack of development itself are deterrent to cross-border marriages; there is no need to float harsh laws to achieve this goal.
Nepali citizenship is based on the principle of ‘jus sanguinis’ or bloodline. In this way, a person born of (father) parents who are holding citizenship of Nepal will have a claim to seek citizenship by descent. The provision of permanent resident card guarantees the social, cultural, and economic rights of every woman married to Nepalis. So, there should be no confusion in this regard.
(The writer is a former law lecturer Kathmandu University School of Law. The views expressed are personal. He can be contacted at jhajivesh@gmail.com)
Read more at: https://www.southasiamonitor.org/spotlight/misplaced-concerns-over-nepals-new-citizenship-bill-blind-larger-social-reality
Jivesh Jha
Aug 06, 2020
Coronavirus is not just the only pandemic. The world has seen far worse pandemics over the centuries. Some of them have claimed millions of lives, demolished civilization, and brought the political will and economic strength of the states to their knees. Take the Spanish flu. It has stalked humanity for years. It spread through Europe in 1918. More than 18 million people died in undivided (British) India and this was the largest number of death in a country due to Spanish flu. Mahatma Gandhi also felt the burn of this disease.
So, what it signifies is that in our grandfather’s generation many people lost their lives. The available researches suggest that the pandemic of smallpox may have taken an estimated 300 million people across the world in the 20th century.
Frequent outbreaks
On November 20, 1816, King Girvana Yuddha Bikram Shah, the fourth king of Nepal, died of smallpox. Like some other parts of the world, these epidemics/pandemics have cost very dearly to Nepal. So, in the time of the coronavirus pandemic, we should not forget epidemics that had wreaked havoc on Nepal and its people.
The country witnessed frequent outbreaks that badly affected the country. Of many pandemics, cholera existed in Nepal for a long time. The first recorded cholera epidemic took place in 1823, followed by a series of epidemics occurring in the Kathmandu valley in 1831, 1843, 1856, 1862, and 1887.
Cholera outbreak
The largest cholera outbreak reported in Nepal, with more than 30,000 people affected, was in Jajarkot district in 2009. Tragically, more than 500 people lost their lives. More recently, during the 2014 monsoon, a cholera outbreak was reported in Rautahat in the Terai region adjoining northern states (Bihar and Uttar Pradesh) of India. The outbreak, during which more than 600 people were affected, was laboratory-confirmed to be cholera.
The government of Nepal found poor sanitation and unavailability of clean water as the reason behind the frequent outbreak of cholera. In this light, National Preparedness and Response Plan for Acute Gastroenteritis/ Cholera Outbreaks in Nepal (2017), a report issued by the Department of Health, Government of Nepal, says that the country is at high risk for outbreaks due to a steady increase in urban population density accompanied by an inadequate supply of safe drinking water and improved sanitation. Outbreaks of cholera are reported in different regions of the country every year, making it difficult to predict the location of outbreaks.
Smallpox
P N Shrestha in his article, “History of Smallpox” published in the Journal of Nepal Medical Association (1972) stated that the 1816 smallpox was already present in the west much before reaching Kathmandu. But more recent references suggest that not all parts of the country suffered from smallpox. The death of the king in 1816 was not an isolated event in Nepal’s history – although it was the last time a king of Nepal died from the disease. In 1715, King Mahindra Malla of Lalitpur died of smallpox. Deaths due to smallpox at that time within the upper echelons of society suggest that smallpox affected a wider Nepalese population. A royal order in 1805 recorded an outbreak of smallpox among the jhara (bonded) labourers at Chisapani in the hills.
In 1856, then prime minister Jang Bahadur Rana conducted the first population census of Nepal. Data collected for urban and rural Kathmandu, Patan and Bhadgaun referred to houses depopulated as a result of epidemics. Urban Patan had 22,000 ‘old Newar houses’, but this total was ‘exclusive of 2,000 houses depopulated as a result of a pox epidemic’, and urban Bhadgaun had 11,500 ‘old Newar houses’, a total ‘exclusive of 500 houses depopulated as a result of a smallpox epidemic writes historian Susan Heydon in an article entitled “Death of the King: The Introduction of Vaccination into Nepal in 1816,” published in the journal of Medical History (2019).
In 1962, smallpox control activities were commenced in Nepal and the eradication programme started. The last case of smallpox occurred on April 6, 1975. But, the eradication of smallpox was declared on April 13, 1977.
Japanese Encephalitis
Moreover, the Japanese Encephalitis (JE) has been occurring in South East Asia and Western Pacific Regions for a long time. Mahendra Bahadur Bista and J M Shrestha in their research article, “Epidemiological Situation of Japanese Encephalitis in Nepal” published in Journal of Nepal Medical Association (2005) explain that in Nepal, it has occurred the first time in 1978 in Rupandehi district than in Sunsari, Morang and latter in all 23 districts of Terai and inner Terai areas. In Nepal, about 5,000 people died due to JE from the year 1978 to 2006. Every year 3,000 to 4,000 people are at risk and about 200-300 people die from complications associated with JE. About 12.5 million people in Nepal live in Japanese Encephalitis risk areas, argue Durga Datt Joshi and Jeevan Smriti in the Review on Japanese Encephalitis Outbreak Cases in Nepal During the Year 2011. Children who are less than 15 years of age are more likely to develop the disease during a JE outbreak. Approximately 50 percent of JE survivors are left with chronic neurological syndrome and organ damage.
Dengue
The Himalayan republic witnessed yet another pandemic in 2004. Dengue fever was first reported in 2004. Since then dengue cases have been reported every year with a circulation of all four serotypes. In 2018 a total of 3,425 cases with one death were reported. In 2019, the first dengue case was reported on May 13, 2019, from the Sunsari district in the east of the country followed by Makwanpur, southwest of Kathmandu, on July 27, 2019. The outbreak then spread like wildfire reaching 68 out of 77 districts over the next two months. In 2019, the outbreak was remarkable both in its scale and reach. Kathmandu valley recorded almost 2,000 cases of dengue in 2019.
Chikungunya
Like India, the Chikungunya virus spread in Nepal too in 2016. Almost half a dozen of Chikungunya viruses were detected in patients with febrile illnesses at Sukraraj Tropical and Infectious Disease Hospital (STIDH).
Swine Flu
More so, the pandemic of H1N1 Swine flu influenza is unique in the sense that it is caused by a novel mutated influenza-A virus and was first detected in April 2009, in Mexico. Nepal saw its first case in June 2009 among people returning from the US, wrote A. Neopane in his article, The Swine Flu pandemic in Nepa published in Kathmandu University Medical Journal (2009). According to the national public health laboratory report, until May 2010, there were 172 confirmed positive cases. Out of them, 36 cases were recorded before the declaration of community transmission, 29 Nepalese citizens residing within the country, two foreigners, and five close relatives of confirmed positive cases. The remaining 136 cases were found after community transmission. After the community outbreak, most of the swine flu cases were found from Kathmandu district followed by Kaski and Chitwan. All the confirmed cases of pandemic influenza A/H1N1 were in the age group from 1-74,” said Ranjita Karmacharya, in her article, Human infection with pandemic influenza (H1N1): A Review Article published in Janapriya Journal of Interdisciplinary Studies (JJJIS) (2019).
It is clear that Nepal is exposed to multiple forms of infectious diseases. So, it becomes imperative for the Nepal government to be better equipped and expedite viral monitoring to stop possible outbreaks in the future. The government could establish super-specialized labs in coordination with World Health Organisation (WHO) and domestic hospitals to test, and treat patients with possible viral infections.
Despite this, in countries with weak institutions and legacies of political instability, pandemics can increase political stress and tensions. The acute lack of health practitioners and medical infrastructure is yet another issue. The bitter reality is that the healthcare system in the country has been inadequate. While the poor suffer, Nepal’s elite class can afford highly specialized hospitals, which are world-class. Thus, the healthcare system offers limited comfort to ordinary people. It's high time we brought a change in the existing regime with the view to spearheading a system that provides for all without any social distinction.
(The writer is Judicial Officer, Janakpur High Court (Birgunj Bench), Nepal. He is the author of Socio-legal Impacts of COVID-19: Comparative Critique of Laws in India and Nepal” (2020). The views expressed are personal. He can be contacted at jhajivesh@gmail.com)
Read more at: https://www.southasiamonitor.org/spotlight/time-covid-19-pandemic-lets-not-forget-other-epidemics-nepal
Jivesh Jha / Aug 17, 2020
In the time of coronavirus crisis, the Supreme Court (SC) of Nepal has adopted a utilitarian approach by giving a humanising touch in providing 'pandemic justice'. However, the non-compliance of the rulings frustrates the administration of justice in general and undermines the dignity and authority of the court in particular. Of late, the judiciary, at the instance of citizens, have taken various decisions that have been well-recognized by society. Nevertheless, the question that always remains unanswered is: what options are left with the citizens if the government agencies don’t implement the rulings of the court? The court has taken several decisions that are defined as judicial activism in areas like rights of women, environmental issues, right to food and housing, juvenile justice, prisoner’s rights, rights of slums, and among others. But all of these are yet to be implemented in letter and spirit. The same is true in the case of 'pandemic justice' as well.
Amid coronavirus outbreak, the apex court of Nepal asked the authorities to expedite welfare work and to respect the fundamental rights of every person without any distinction. Public spirited people, through their lawyers, approached the apex court to seek to improve matters and to fill in the vacuum arising from the government's inaction and apathy to undertake reforms. In fact, reminding the state of its duties towards the citizens is a step in the right direction to ensure that the government takes appropriate action and helps in setting accountability. According to media reports, the government has not followed most of the Supreme Court’s 23 rulings related to the pandemic.
Some landmark orders
The country saw a fundamental change in the right to life and liberty as a result of healthy judicial activism during the pandemic. While upholding that people’s right to live with dignity should be protected and promoted at the time of the pandemic, the top court in the case of Advocate Shailendra Prasad Harijan and others vs. Office of the Prime Minister and Council of Ministers on May 17 issued an interim order to the government directing it to provide relief materials to the economically marginalized and needy people without requiring them to produce citizenship card or its equivalent documents. The Division Bench of Deepak Kumar Karki and Hari Prasad Phuyal held that right to life encompasses the right to food without any distinction. In the case of Advocate Kamalbahadur Khatri and others vs Office of Prime Minister and Council of Ministers on May 14, the highest court of appeal directed the government to ensure proper arrangement for the test of COVID-19 through PCR.
“The government shall endeavour to augment the test of COVID-19 and ensure that there shall be no scarcity of testing kits,” said the court. Earlier on April 17, responding to a writ petition filed by senior advocate Prakash Mani Sharma, the SC directed the government to ensure free transportation facility to stranded migrant workers, who walked miles to reach their homes. The court also asked the government to conduct a rapid diagnostic test for coronavirus for all stranded people.
The non-arrangement of transportation facilities or the reluctance of government agencies in providing sufficient relief materials to the underprivileged groups or not conducting COVID-19 test on the stranded people are just some depressing realities that are currently being seen in Nepal. It gives a gloomy picture that compliance of the orders of the highest court is an uphill task in countries like Nepal where much time and energy are spent on political slugfests.
Meanwhile, the Division Bench of Dr. Ananand Mohan Bhattarai and Sushmalata Mathema in the case of Advocate Roshani Paudel and Others vs Office of the Prime Minister and Council of Ministers on June 9 directed the government to adopt all necessary measures to ensure that the right to safe motherhood and right to bear a child is not compromised amid the coronavirus pandemic. The government is obliged to protect the rights and concerns of expecting women.
“The government shall ensure timely and proper treatment to women with pregnancy.” Also, the court directed the appropriate governments to ensure the availability of required vaccines to be given to infants. Similarly, the court ruled that the government shall not disclose the identity of COVID-19 patients. The right to privacy of COVID-19 patients would be hugely compromised with the disclosure of their names. If the identity of COVID-19 patients are revealed, the fellow citizens or community members may start perceiving them as their enemy and that could tear the social fabrics. So, it’s desirable to keep the names of such patients secret, the court ruled.
Likewise, the apex court on May 31 directed the government to provide appropriate dress, protection kits, and other essential materials to police staff, government employees, and other corona warriors. Also, the topmost court directed the government to make necessary arrangements to provide a free of cost coronavirus test and to provide food and water to all those kept in quarantine. “The government shall ensure social distancing in the quarantines, meaning thereby, the distances between the beds and toilets should be as per guidelines so specified,” it ruled.
Appearing as a custodian of fundamental rights, the court held that the government is under an obligation to provide essential medicines as well as masks, sanitizers, and other materials free of cost to the needy people by virtue of a mandatory legal arrangement provisioned under Public Health Service Act, 2075 BS (2018). The writ petition was filed by advocate Dr. Punyaprasad Khatiwada. This way, the SC clarified that the free PCR test for COVID-19 should be provided by the state and is a fundamental right of a person kept in quarantine. After all, this requirement is implicit in the requirement of a due process (just, fair and reasonable) procedure prescribed by Article 16 of the constitution.
SC order ignored
However, neither the government employees have received the appropriate protective gear, and protection kits to fight against the pandemic; nor are the isolation wards or quarantine centres being maintained as per the World Health Organisation (WHO) guidelines.
The SC on March 31 directed the private hospitals to attend COVID-19 patients unconditionally. The top court wrote: “The private hospitals shall make necessary arrangements of beds, ICUs, and ventilators and endeavour to ensure the safety of medical staff involved in the treatment of Coronavirus patients.” But, the incidents and media reports suggest that private hospitals are neither obeying the court orders nor following medical ethics. The private hospitals have continued to not only overcharge patients but also keep them in the dark regarding their schemes of treatment during the pandemic. The incidents reported also suggest that private hospitals are refusing to entertain patients as well.
The exercise of writ jurisdiction shows that there is an increasing trend of judicial creativity (not amounting to judicial overreach) and public interest litigation (PIL). The developing trend, in regards to PIL, has shown that the court has interpreted the law in the light of existing social needs. In this respect, the court has taken a utilitarian approach while interpreting the laws of the land. But, the non-compliance of its decisions impacts public trust. The prestige, stature, and independence of the judiciary are dependent on the public trust and confidence it enjoys.
Above all this, it’s a rare practice that the courts take stern action against the contemnors who are reluctant to abide by the orders of the court. There is a well-established practice that the non-implementation of the orders of the judiciary amounts to contempt of court.
What is required
The courts could devise a mechanism of seeking the compliance report from the authorities concerned who are supposed to enforce the said ruling of the court. It is imperative for the Nepal government to develop a comprehensive mechanism for dealing with the compliance of court orders and judgments. In India, the Supreme Court in the case of Bandhua Mukti Morcha vs Union of India (AIR 1984 SC) directed the then Director-General of Labour and Welfare, Government of India, to report within 90 days about the compliance of the directions given by the court. The court had directed the government to ensure sanitary conditions, the arrangement of education for the children of labourers, drinking water, and other necessary conditions for the workmen employed at the stone quarries. The court directed the Haryana government “to draw up a scheme or programme for better and more meaningful rehabilitation of the freed labourers.”
Justice P N Bhagwati in his order had emphasized that this is a constitutional imperative that the “bonded labourers must be identified and released from the shackles of bondage so that they can assimilate themselves in the mainstream of civilized human society and realise the dignity, beauty, and worth of human existence.” In response to the order, then Director-General on March 15, 1984, reported that none of the directions of the apex court have been implemented. On receiving this unwelcoming response, Justice Bhagwati did not initiate a contempt proceeding against the senior official and the authorities concerned. So, this experience shows that merely asking for a compliance report is not enough.
What is required is a strong mechanism to expedite the implementation of the rulings. A person who is apolitical should be appointed with enough power to initiate contempt proceedings against any authority whatsoever. The non-compliance of court orders would not only lower the public confidence in the judiciary in Nepal, but it will also pose threats to judicial credibility and rule of law.
Moreover, the long-stayed legal philosophy of Judicium Semper Pro Veriate Acipitur (A judgment is always accepted as true) would also come under attack with the non-compliance of rulings of the court.
(The writer, a former law lecturer at Kathmandu University School of Law, is a Judicial Officer, Birgunj High Court, Nepal. The views expressed are personal. He can be contacted at jhajivesh@gmail.com)
Read more at: https://www.southasiamonitor.org/spotlight/nepal-urgently-needs-mechanism-compliance-court-orders
