• by Mallika Aryal (kathmandu)
• Thursday, November 05, 2009
• Inter Press Service

As the new federal republic of Nepal forges ahead with writing a new constitution, activists are demanding that environmental rights be enshrined in this important document.

'If we are really writing an inclusive constitution, we have to be very careful not to exclude the hitherto neglected backward classes,' says rights advocate Min Biswakarma.

He adds that the rights of indigenous folk should be a vital component of the country’s new Constitution, which is now in the process of being drafted.

Of particular concern to him and other environmental advocates is ensuring the rights of the Dalits, Janajatis and other indigenous communities in Nepal to utilisation, conservation as well as decision-making processes on environmental issues affecting them.

The draft Constitution already contains provision ensuring protection of the rights of indigenous people as well as women over forest, land, mines, water, energy and other natural resources.

Experts say that the new constitution will be radically different from Nepal’s old one as it puts a premium on protection of the environmental rights of the vulnerable sectors of society, including indigenous groups.

Article 16 of the 2007 Interim Constitution of Nepal states, 'every citizen has the right to live in a clean environment'. It marked the first time such a guarantee was included in an important document such as the Constitution.

The writing of a new constitution signals a historic beginning for a country that only a few years ago emerged from a bloody war between government forces and Maoist rebels.

After the decade-long civil war and an uprising of the people in April 2006, the Maoist rebels joined mainstream politics. The Comprehensive Peace Agreement signed in November 2006 between the Maoists and the political parties formally ended the bloody war—dubbed ‘People’s War by the former— that took the lives of 16,000 people.

The interim constitution promulgated in January 2007 authorised the election of the Constituent Assembly (CA), which was tasked to write the new constitution of Nepal.

Following the election in April 2008, the 601-member assembly began drafting the new constitution. The first meeting of the Constituent Assembly declared Nepal a federal republic and abolished the Hindu monarchy that had ruled the Himalayan nation for 240 years. The deadline to promulgate the new constitution is May 2010.

In order to write the new constitution of Nepal, 11 thematic committees were set up in the CA, composed of a chairperson leading each committee, along with CA members and experts. These committees are now in the process of presenting their concept papers to the Constitutional Committee, which in turn will prepare the first draft of the constitution.

'Since 2007 we have been working on the Interim constitution, which is a document of understanding between conflicting parties,' says Biswakarma, who was a member of the Interim Constitution drafting committee.

According to Naryan Belbase, acting country representative of the World Conservation Union in Nepal the livelihood of more than 85 percent of Nepal’s population is dependent on environmental resources. These are vulnerable communities who bear the brunt of unpredictable climate patters, floods and prolonged droughts as a result of climate change.

'Issues of climate change, global warming, environment rights, protection and right utilisation of resources are important issues globally as well as locally, and it is especially crucial for Nepal because we are drawing a new map of the country and writing a new constitution,' says Nimesh Regmi, a member of the Nepal Forum of Environment Journalists (NEFEJ).

Belbase adds that the poor sectors of society often do not get to partake of the resources they protect and have no say in decision making.

Regmi concurs with him. 'Many mountain communities are very vulnerable to glacial lake outburst flood (GLOF), which is bound to happen due to climate change,' he says. 'But GLOF will perhaps be an afterthought in the constitution. Similarly many indigenous communities protect the herbs found in jungles of Nepal, but the revenue that the country earns is seldom shared with them.'

Environmental experts warn that the repercussions of excluding the rights of the common Nepalis in the constitution will be very dangerous. 'In national parks, forests protected by communities, upstream and downstream river communities, we are already seeing small disputes relating to sharing of resources and benefits,' notes Regmi.

'When the country’s map is drawn in a different way these issues will get serious, which is why the Constitution makers have to understand why listening to the voices of the indigenous people, including these communities in the decision-making process is important.'

Nepali environmental activists and the Natural Resources, Economic Rights and Sharing of Revenues Committee, one of the 11 thematic committees comprising the CA, are trying to address this issue in the new Constitution.

The draft prepared by the Committee proposes to enshrine environmental rights as a fundamental right. Other important provisions seek to address sustainable utilisation, conservation and equal distribution of resources. It specifically encourages development without endangering the environment.

The draft also contains provisions for compensation for environmental damage and on the need to encourage and protect traditional skills. It also calls for the setting up a constitutional committee on environment and natural resources protection, which will be independent of the Ministry of Environment and Natural Resources.

'The Constitution of a country is about the distribution of rights between citizens and states. A country cannot be writing the constitution again and again, so this one has to be comprehensive.' Biswakarma.

To other rights advocates, however, it is not enough to guarantee the environmental rights of specific sectors of society. Tika Ram Rai, general secretary of NEFEJ, says it is important to consider the 'bigger picture'. The new constitution should be intuitive and must be able to predict some of the future issues, he says.

He cites the case of the Bagmati River, which flows through the Kathmandu Valley. He said it used to be clean, and people used to drink from it and swim in its cool and refreshing water.

'Now it is an open stinking sewage that carries the city’s waste to the plains,' he says. Under the proposed Constitution the inhabitants of Tarai plains, located along the Nepal-India border, will have the right to refuse to pay for Kathmandu’s waste, he says.

'How is the constitution going to solve the potential dispute that will arise? he asks. 'Or if people in the hills decide to divert water away from the plains for irrigation, what are the farmers in the plains to do? The new constitution must ensure that the rights of these communities are protected,' says Rai.

Besides ensuring that the new Constitution will be responsive to the nation’s changing needs, its framers are also expected to see to it that enjoins the citizens to exercise utmost responsibility towards the environment, sources say.

Ravi Shrama Aryal, a representative of the six-member expert committee involved in writing the draft for the Natural Resources Committee, says that human responsibility for the environment is going to be the subject of one of the most important clauses of the new constitution. 'Giving rights to the citizens is easy, but it is also important to hold people responsible for the protection of the environment and resources,' he says.

Aryal admits, however, that although the document is being touted as the most inclusive and people-friendly legal document of the country, it does not fully reflect the voice of the people.

He blames it on the 'complex and incomprehensible' questionnaire used by the Constituent Assembly members when they travelled to their respective districts to consult the people on the content of the Constitution.

'With literacy rates as low as ours, it was a challenge to make people understand what environment and resource rights are,' says Aryal. 'Apart from their suggestions on land reforms, we haven’t really been able to include much of their voice.'

However, environmental activists who have been monitoring the drafting of the Constitution remain positive about the document, saying it was written with much discussion and deliberation with experts.

They have vowed to ensure that the final document will be as they envision it to be. 'If it is unfair, our lobby is organised enough to pressure the Constituent Assembly for revision before it is passed,' says NEFEJ’s Regmi.

© Inter Press Service (2009) — All Rights Reserved. Original source: Inter Press Service