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World Environment Day 2024: Follow laws, sacred texts, conventions and cultural practices

It's our responsibility to ensure that our development practices meet the needs of the present without compromising the ability of future generations to meet their own needs.

By Jivesh Jha 

Published -The DMN News,  5 June, 2024 3:44 am

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It would not be unjust to say that Nepal is good at enactment of laws but poor at their enforcement. We have adopted every possible law and policy aimed at maintaining the natural environment. Still, our attempts have failed to yield any desired result. Ironically, laws and policies are the most ignored things in Nepal. If the situation was otherwise, Nepal would have succeeded to frustrate the menace of environmental pollution and truly implemented the right to clean environment to every citizen, which is one of the sacrosanct fundamental rights under our constitution.

As per the reports, Kathmandu is one of the most polluted cities of the world. The capital city spots within the top ten polluted cities.  So, are we with the constitutional mandate? Our constitution, under Article 30, guarantees a clean environment to every citizen. It embodies the polluter pays principle, which aims to make the polluter liable for his alleged role in environment pollution. 

Undoubtedly, progress and pollution go together. There can be no end to progress in terms of industrialization, commercialization and globalization, and consequently, no escape from pollution. Still, we cannot turn a deaf ear to the environmental protection measures, as it’s our responsibility to ensure that our development practices meet the needs of the present without compromising the ability of future generations to meet their own needs. This is the basic concept of sustainable development. 

Ignorance of law

Ignorance of fact could be excusable but ignorance of law is always punishable. It’s accepted on all hands that a welfare democracy deserves to implement the laws in letter and spirit. The Constitution of Nepal guarantees the right to clean environment as a fundamental right [Article 30].  The constitution declares various rights associated with the protection of the environment. Specific provisions associated with the environment are the right to live in a clean environment, right to clean water and hygiene, right to food sovereignty, the right of the state to carry out land reforms on agriculture and environment and the right of consumers to have quality foodstuffs and services. Over and above all this, the right to lead a dignified life.

Our Constitution obliges the state to control and prevent any act or omission polluting or likely to pollute the environment. The Supreme Court and High Courts (under Article 133 and 144, respectively) can issue required direction, order or writs for this purpose.

The Constitution confers power to the federal, provincial as well as local governments to adopt and enact policies for protecting the natural environment. The Directive Principles provided in Part-IV of the constitution calls upon the local/ provincial governments to adopt policies for the protection and promotion of the environment [Article 51].

The Environment Protection Act (2019) has been enacted by the government to implement Article 30 of the Constitution. The Act aims to protect and improve the environment and to mitigate the pollution, to enforce the right to clean environment, to grant compensation to victims of environmental pollution and to implement EIA, Environmental Study and Environment Examination reports.   The Act has set heavy fines for non-compliance of law and government policies. Section 35 of the Act envisages that there could be a fine of up to five million at the instance of non-compliance of EIA by a proponent. Similarly, defiance of Initial Environmental Examination would lead to a fine of up to one million.

If these laws are studied between the lines, one could draw a conclusion that Nepal’s green laws are progressive but their implementation is poor.

Heed the message

“The environment is everything that isn’t me,” said Einstein. Atharva Veda says that a pollution-free clean environment keeps all people, birds and animals living happily. In Veda, air, water, earth, sky, sun and trees are considered as deities. In Rigveda, it’s been said that fresh air works as the panacea of all diseases. It directs one not to do any act that lessens or degrades the quality of oxygen. These concepts are recognized by laws, conventions and science of today. Take an example of the Rio Declaration of 1992. Principles 4 and 25 of Rio Declaration say that peace, development and environment are interdependent and indivisible.

Kautilya’s Arthashastra said it was the Dharma of each individual in society to protect nature. Similarly, the Yajna or sacrificial fire is apparently done to worship one or other deity and it ultimately purifies the air. The Samaveda highlights the importance of the Yajna as it helps in keeping away the mosquitoes and other insects. In Padma Purana and Karma Purana, it is mentioned that the trees, like Peepal, Bel, Neem etc are the abode of the God and they are not to be cut.

In Buddhism, the principle of Simplicity preaches for sustainability and the Principle of Ahimsa (Non-violence) preaches for the love for flora and fauna. King Ashoka wanted the non-violence to be the cultural heritage of the people. The Holy Koran declares that everything is created from water. Allah is considered to be the owner of the land and mankind is the trustee, whereas other living creatures are considered to be the beneficiaries.  

The problem of environmental pollution is not a noble concept. It is as old as the emergence of people on the planet. Environment is a polycentric and multifaceted problem affecting human life. We, the human beings, are nature’s best promise. But, we have turned into nature’s worst enemy by adopting all unsustainable development practices. Nepal’s major problem is the state’s weak enforcement but at the same time, our people’s little consciousness towards cleanliness is also one of the big plights.

We, the citizens, could also contribute our bit towards cleanliness by adopting proposal disposal mechanisms to dispose of solid wastes and garbage. The used things, which could not be re-used, like diapers, sanitary pads, and other wastes of the kitchen and daily chores, could be properly disposed of. Our every single effort could help the state to fight against environmental degradation.

Nepal is the land of rites and rituals. The belief and cultural practices followed here show a deep concern for the protection and preservation of the environment.   Our festivals like Chhath too advocate for cleanliness and worship of sun god and waters. We deserve to stand by the messages of our sacred texts and festivals. After all, Nepal is a country of ancient origin with an environmentally-friendly population.   

Undermining court rulings   

Our state has neither been serious towards implementing green laws, nor have they succeeded in observing court rulings.  In Amarnath Jha v Government of Nepal and Others, the Supreme Court of Nepal held that every person shall have an inherent right to live in a pollution-free environment to lead a dignified life [2073BS, Decision Number 10743]. But, are we living in a pollution-free environment? We should develop a conscious approach and strike a balance between environmental protection and development, held by the Supreme Court of Nepal in the landmark case of Advocate Narayan Prasad Devkota v Government of Nepal and Others (2066 BS, Decision Number 8521). The apex court in this case held that bad socio-economic policy of the country is to be blamed for environmental degradation. There appears to be a plethora of court rulings favoring environmental protection but like with the laws, they remain unimplemented.

Keep your legacy

Nepal is a multi-religious country where people belonging to every sect and faith live with co-existence. Our cultural legacy shows that we have never been cruel towards the environment. In fact, environmental protection is the cultural heritage of Nepal. Every religious and cultural work we perform symbolizes environmental protection.

 Chhath, for example, demands cleanliness of waters. The devotees offer prayers to the Sun god by standing in the waters.

In Baisakh, the first month of the year in Nepal’s Bikram Sambat calendar, people in Terai-Madhesh celebrate Jur Shita

Jur Shital festival which also promotes protection of trees and soil. The festival begins with elders sprinkling cool water on the heads of their relatives. The family members spread water on the plants and trees. 

In addition to this, there is a culture of playing the traditional game Kado-Mati (mud-soil) which is similar to mud bath. These cultural practices symbolize conservation of soil, trees and water. Our holy texts, laws and court judgments too show that the country has been serious towards environmentalism.

Way forward

On June 5, World Environment Day (WED) with the theme of “land restoration,” we should evaluate if we have succeeded—or even tried—to acknowledge our cultural heritages, messages of the holy texts and green laws that were passed to preserve and advance the environment.

As a rule of state, environmental pollution is a business of shame in the environment. The environmental pollution also symbolizes that our mechanisms are not operating as per the mandate of law. Eventually, pollution rapes rule of law. Kathmandu’s deteriorating air quality and Nepal’s failure to upkeep sustainable development practices would certainly question our capability to deal with environmental menaces.   

Our legal as well as cultural practices endeavor to regulate the conduct of mankind in such a manner which is conducive to nature and not adverse to nature.  It’s high time for us to realize that all our sacred texts, laws, judgments, conventions and cultural practices show the proximity of mankind with nature. We cannot ignore our laws, judgments, sacred texts and holy messages. After all, it’s a matter of the environment where we breathe and live. Nepal deserves to have a pollution-free society.   

Jivesh Jha is a constitutional and legal expert.

https://thedmnnews.com/world-environment-day-2024-follow-laws-sacred-texts-conventions-and-cultural-practices/ 

International Women’s Day: Implement laws meant to empower women

Jivesh Jha

The Annapurna Express, March 8, 2024 

Constitutionally and politically, women are empowered in the days we live in. In Nepal, the constitution and other prevailing laws are in place to protect and promote the rights of women. The constitutional arrangements ensure one-third representation of women in the legislature, which is a major breakthrough. However, it’s not the end but a means to achieve gender equality.

To argue that countries like Nepal have, exclusively, felt the burn of gender-based discrimination and they have to adopt progressive laws to uproot inequalities would be a futile claim. Developed countries like the United States (US) too have experienced gender inequality.

The American case

In the case of Bradwell v State of Illinois (1872), Justice Bradley of the US Supreme Court held that the natural and proper timidity and delicacy, which belongs to the female sex, evidently makes it unfit for many of the occupations in civic life. The paramount destiny and mission of the women are to fulfill the noble and benign offices of the wife and mother. This is the law of the creator.

In this case, the state of Illinois denied Bradwell, a woman lawyer, an advocate’s license. The US Supreme Court (SC) argued that such a restriction from Illinois was not in contravention to the 14th Amendment to the Constitution. Bradwell was admitted to the Illinois Bar in 1890.

In Hoyt v Florida in 1961, the US SC upheld a law placing a woman on the jury list if she made a special request because as put by Harland, J, “a woman is still regarded as the center of the home and family life.”  

Departing from the previous position, the US SC in the case of Muller v Oregon (1908) was of the view that the woman’s physical structure and the performance of maternal functions place her at a disadvantageous position for subsistence. It is still true that in the struggle for subsistence, she is not an equal competitor with her brother. She will still be where some legislation to protect her seems necessary to secure a real equality or right.

Nevertheless, the instances show that the judicial department in the US has interpreted the laws progressively as well as regressively. In June 2022, in a devastating decision that will reverberate for generations, the US Supreme Court has abandoned its duty to protect fundamental rights and overturned Roe v Wade (1973), ruling there is no constitutional right to abortion. The ruling in Dobbs v Jackson Women’s Health Organization abandons nearly 50 years of precedent and marks the first time in history that the Supreme Court has taken away a fundamental right.

In Roe case, it was held that the specific guarantee of “liberty” in the 14th Amendment of the US Constitution protects individual privacy that includes the right to abortion prior to fetal viability.

Nepal’s case

Women across the world have fought against all types of abuses and become more aware of their rights. These prejudices led the world community to pass gender sensitive domestic as well as international laws. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which was adopted by the United Nations in 1979 and ratified by 189 states on 3 Sept 1981, is a treaty that is essential for assessing the government’s progress in eradicating discrimination. This treaty, which Nepal ratified in 1991, is recognized as a strong international agreement to protect gender equality and lessen violence against women.

Acknowledging CEDAW, the drafters of the 2015 Constitution of Nepal have floated ample provisions to ensure the protection of women’s rights through broad and universal principles of equality and participation. The preamble of the Constitution pledges to end all forms of discrimination based on gender. In a similar vein, the equality clauses and affirmative action clauses of the Constitution seek to ensure adequate representation of women in public life. To be specific, Article 38 provisions that all the rights relating to women shall be the fundamental rights. These rights include equal right to lineage, right to safe motherhood, and right to reproduction. In addition to this, Nepal has set aside 33 percent of seats for women in the legislature.

Article 70 envisages that “while conducting election of President and Vice-president under this Constitution, the election shall be held so as to represent different genders or communities.” Interestingly, a similar arrangement has been made for the election of Mayor and Deputy Mayor of the municipality. In the case of the Speaker and Deputy Speaker of the House of Representative, one of them must be a woman and so is the case with the Chairperson and Vice-chairperson of the National Assembly.  

This arrangement endeavors to press forward gender sensitive laws and policies. The reservation benefits ensured to women are there to supplement the principle of proportional inclusion.

The inclusivity and diversity are the core focus of the 2015 constitution,” argues Prof Bipin Adhikari in his book, Salient Features of the Constitution of Nepal, 2015.

Way forward

The traditional ideas of society, culture and rights have undergone a significant change the world over. While there is still more to be done to protect women’s rights, there has been significant progress toward this end.

Change happens gradually. Nepal’s Constitution gives the government an enhanced role to establish and enact initiatives, programs and regulations that will safeguard and advance the rights of women and children. A beginning in the right direction is having one-third representation of women at legislative spectrum.

In the words of Mahatma Gandhi, “Democracy is something that would give the weak the same chance as the strong.” Nepal’s constitution contains progressive provisions that support the cause of women. But passing fair rules without enforcing them in the letter and spirit would only be cosmetic.  Prof Adhikari in his book, From Exclusion to Inclusion: Crafting a new legal regime in Nepal rightly observes: Nepal’s journey towards inclusion depends, to a great extent, on the quality of democracy and constitutionalism it will achieve on the foundation of its constitution.

Summing up, the mere glorification of the laws and celebration of International Women’s Day (without implementing rules) would be a mockery of democracy.

https://theannapurnaexpress.com/story/47856/

 

Do not attack on judiciary and independent media

The right to free speech does not give license to defame or harm others

Jivesh Jha

(The Annapurna Express) April 29, 2024.

Every right comes with a reasonable restriction. If right goes without restriction, there would be chaos in society. In this context, the right to free speech is considered the mother of all freedoms since it has a special and crucial place in the hierarchy of freedoms. The right to think and speak freely, as well as to receive information and to participate in open discussions without fear of government restriction, could be considered the core of free speech. The freedom to converse on an issue is the opportunity to speak freely.

However, the right to speech does not give license to defame or harm others. Recently, a media outlet got a directive from the Press Council Nepal to remove a piece of fake news claiming the involvement of Justice Anand Mohan Bhattarai, lawyers and media entrepreneurs to dismiss more than 400 corruption cases. Issuing a press statement on April 28, Judges’ Society Nepal demanded stern action against Sidhakura, the show in question, for broadcasting the ‘news’ without checking the facts, thereby attacking not just a judge but the judicial system as a whole. Relevant agencies of the state have initiated legal proceedings against the media.

Against this background, let’s delve into freedom of speech. 

Constitutional scenario

The Constitution of Nepal 2015 prohibits the enactment of any law and order at the cost of fundamental freedoms and constitutional values. Article 1 declares any law, which is inconsistent with the constitution, ‘void’, meaning that the fundamental freedoms, which include freedom of speech and expression, cannot be curtailed in the name of any law.

Article 16 states that every person will have the right to life with dignity. Article 17(1) guarantees the right to freedom, including personal liberty. Article 17(2) guarantees fundamental freedoms, like freedom of opinion and expression; freedom to assemble peacefully; freedom to form political parties; freedom to form unions and associations; freedom to move and reside in any part of the country; and freedom to engage in any occupation.However, these freedoms are not unrestrained. As with every right, the right to speech and expression also come with reasonable restrictions. A citizen cannot exercise his freedom of speech in a way that undermines the nationality and sovereignty or jeopardizes the harmonious relations among the people, incites hatred, defamation, offense or is contrary to decency or morality or public order.

This way, a person can voice his concerns in every way, and the way he wishes to but cannot defame or challenge other’s dignity or the law of the land. Simply put, you can enjoy your rights without violating others’ rights. Article 19 deals with the right to communication. This clause prohibits pre-censorships of publication and broadcast of content or information through any medium. This means broadcasting or press materials cannot be seized at the sweet will of the government.

The constitution disallows untouchability and discrimination and prohibits them under Article 24. This means one is not competent to shape his views discriminating against his fellow citizens or members of the family. Article 27 envisages that every citizen will have the right to information. Right to speak or right to know is considered part and parcel of speech and expression and the same is the case with right to privacy (Article 28), which guarantees a person’s right over personal facts, leaving it up to the individual to decide when and under what circumstances to make them public. 

Remedy

The constitution provides remedy clauses that confer a citizen the right to move the Supreme Court (under Article 133) and High Court (under Article 144) at the instance of violation of his/her fundamental rights.

Judicial interpretation 

The Supreme Court in the case of Advocate Ratna Kumari Shrestha v Sudhir Sharma, editor-in-chief of Kantipur daily and others (2073 BS NKP, Decision Number 10370) held, in the name of the exercise of press freedom, it would not be justified to allow one to affect the dignity, independence and functioning of the courts. Nor, would it be in the interest of a democratic system to regulate press freedom at the cost of contempt of court. Both of these institutions—press and judiciary—should have to stand within their limits. If there is dissemination of information in such a way that it would tend to diminish the authority of the court, judges or cause contempt of court, then it would not be considered an exercise of the freedom of the press, rather it would form a basis for punishing an outlier on the charge of contempt of court. In the name of freedom of speech and expression, a media has no right to arbitrarily criticize the court’s decisions and thereby adversely affect the dignity of the court which would have an impact on the people’s faith in the judiciary. A media will be liable for contempt of court if it disseminates information to downgrade the authority and sanctity of the court and judgeship, the apex court held further.

In Thir Prasad Pokharel v Harihar Birahi, editor of Bimarsha Prakashan Pvt Ltd (2049 BS NKP, Decision Number 4604), the apex court held that Nepal’s constitutional norm and values are clear on a point that there shall be no pre-censorship, neither cancellation of registration of the newspaper, nor shall there be any shutdown or confiscation of printing press.

Global precedents

In India, the preamble of the Indian Constitution at the very outset clarifies that the democratic credentials, like liberty of thought, expression and belief; justice along the social, economic and political; or equality and fraternity, would be secured and promoted by the governments. Article 19(1)(a) guarantees freedom of speech and expression.

The laws in the USA not only recognize the right to fly the national flag but it has gone to the extent of holding flag burning as an expression of free speech and expression of its citizen against the establishment but Indian constitution does not approve the latter part of the right, India’s apex Court ruled in the case of Union of India v Naveen Jindal (2004). 

The First Amendment to the Constitution of the United States provides that the Congress shall create no law abridging the liberty of words or of the press.  In the 19th century, Germany guaranteed freedom of opinion in its Constitution with an express prohibition of press censors.

Interestingly, Sweden became the first country in the world to adopt a provision for the availability of official information for the citizens on their demand. The right to freedom of speech is recognized as a human right under article 19 of the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights (ICCPR).

The way forward

The right to freedom of speech and expression is a fundamental right enshrined in the Constitution.  It expressly guarantees the right to voice our concerns through speech, expression or vote. Yet, it does not confer a license to defame others or violate the laws of the land. So, the freedom of speech is neither unrestrained, nor does it allow us to question the sanctity and integrity of others.

Publishing a fake news content to defame persons of high moral character or to post comments on social media to defame others or to speak in a way that tends to undermine the authority and sanctity of judicial institutions cannot be considered part and parcel of freedom of speech. It's high time to protect and promote the constitutional ethos, for Nepal deserves to uphold the press freedom by every possible means and in every given way.

https://theannapurnaexpress.com/story/48609/

Purush Pariksha: A Nepali translation of Vidyapati’s original work

Jivesh Jha (The Annapurna Express)

June 3, 2024, 10 a.m.

‘Purush Pariksha’ (The Test of Man) is an exploration of the great poet Vidyapati’s story collection that has been translated from Sanskrit into Nepali by Dhirendra Premarshi, a renowned writer and committed researcher on the great poet and his cultural ethos.

The book was published by Ambar Publication House, New Delhi. It’s a collection of 44 stories of the poet which provides universality, artistry, intellectual values, and the qualities that a man should have to fight against life’s challenges. Vidyapati’s original work has already been translated into Hindi, English, Bengali, and other languages. The current Nepali translation is a first of its kind by Premarshi. 

Premarshi’s work welcomes readers with a preface written by Prof Dr Laxman Prasad Gautam, a faculty member of Nepali Language and Literature at the Central Department of Nepali, Tribhuvan University, Kathmandu, who takes them through the origins of this translation. 

Prof Gautam argues, “Taking into account the stories written by Vidyapati and their commentaries published in Sanskrit, English and Hindi, the translator, himself, an acclaimed laureate of Maithili and Nepali literature, has succeeded to upkeep the fundamental literary spirits of the great poet’s writings.” He further states that Premarshi’s work is an idealistic translation in recognition of literal and semantic translation of the writings of the great poet, who is often called Kavi Kokil (Poet Cukoo of Mithila).

Purush Pariksha is simple and persuasive, speaking of the translator’s skills, his mastery of language, his devotion towards culture and literature. He makes things easily understandable.

Purush Pariksha would have been authored by Vidyapati during 1412 to 1416 on the direction of Shiv Singh, king of the then Mithila state. King Shiv Singh was Vidyapati’s childhood friend and he was on the throne for four years. This text was firstly translated by Har Prasad Ray in 1815 in Bangla language. It was then translated into English in 1830 by Kali Krishna Bahadur. Chanda Jha took the initiative to translate it into Maithili language in 1885.

The conversation between Subudhi, a monk, and one of the kings named Paravar make up the theme of the book. The literary work provides guidelines for the kings and administrators in their dealing with the officials. For instance, in the fifth chapter, Premarshi provides an instance where Vidyapati had suggested that a king would fail to learn about the overall facts of the incident if he deploys informers who lie. Similarly, if a king favors a wrong person, he would not only commit sins but would also invite troubles for himself.

Vidyapati’s work is not only an exploration of moral lessons but also a political treatise that provides ample practical knowledge about the art of statesmanship. The book can be considered an essential work in propounding the theories of literature, criminal law, administrative law, politics and economics. 

If there is one reason to read Premarshi’s translated and edited work is his endeavor to give conceptual clarity on the writings of the great poet Vidyapati. The book discusses the views, theories and wisdoms propounded by the great poet. His political and administrative theories also find a prominent place in the book. I believe Premarshi’s Nepali translated version of Vidyapati’s Purush Pariksha should be a mandatory reading for sociologists, anthropologists, poets, lawyers, teachers, and students of various subjects, including literature and law.

https://theannapurnaexpress.com/story/49140/#google_vignette