ASSESSMENT OF ACCESS OF ENVIRONMENTAL INFORMATION, PARTICIPATION AND JUSTICE IN NEPAL
Nepal’s firm commitment towards the goal of environment protection can be explicitly seen from the constitutional provisions. Under the directive principles of the interim constitutions of Nepal, 2007, it has been stated that the state shall adopt a policy to utilize the natural resources of the country in the national interest [(article 33 (o)]. Article 35 (1) The State shall pursue a policy of raising the standards of living of the general public through the development of infrastructures such as education, health, transportation, housing, and employment of the people of all regions, by equitably distributing investment of economic resources for balanced development of the country.
Furthermore, Article 35(4) The State shall, while mobilizing the natural resources and heritage of the country that might be useful and beneficial to the interest of the nation, pursue a policy of giving priority to the local people. Article 35(5) The State shall make necessary arrangements to maintain clean environment. The State shall give priority to the protection of the environment, and also to the prevention to its further damage due to physical development activities by increasing the awareness of the general public about environmental cleanliness, and the State shall also make arrangements for the special protection of the environment and the rare wildlife. Provision shall be made for the protection of the forest, vegetation and biodiversity, its sustainable use and for equitable distribution of the benefit derived from it.
The Interim Constitution 2007 even had very clear provision of environment, health and equity as the fundamental right of the people. Furthermore, the interim constitution of Nepal also ensure right to information on any matter of his or her interest. This is the basic guiding principle of all the development policies in Nepal.
Under Interim Constitution 2007 Article 12 is right to Freedom and Article 12(1) have provision of each individual’s right to live with dignity; Article 13 has provision of Right to Equity; Article 16(1) has provision of individual’s right to live in clean environment and Article 16 (2) has provision of right to health. Article 27 has provision of Right to information and stated as (1) Every citizen shall have the right to demand or obtain information on any matters of his/her own or of public importance with very limited narrow limitation of access information on the matter of secrecy need to be maintained.
The establishment of Ministry of Population and Environment (MOPE), now reformed as Ministry of Environment, Science and Technology (MOEST), Nepal is the commitment of the government made in the Rio Earth Summit 1992 toward overall environmental conservation. The MOPE was announced on September 22, 1995. Initially headed by the Prime Minister, a minister and assistant minister were appointed during a cabinet expansion on December 13,1995. A cabinet decision on November 29,1995 amended the HMG (Allocation of Business) Rules, 1991(2047 BS) to specify MOPE’s mandate to be primarily responsible for formulating and implementing policies, plans and programs: preparing Acts, Regulation and Guidelines: conducting surveys, studies and research; disseminating information and carrying out publicity; monitoring and evaluating programs; developing human resources; and acting as a national and international focal point in the domain of population and environment.
As The United Nations Conference on Environment and Development at Rio de Janeiro from 3 to 14 June 1992 reaffirming the Declaration of the United Nations Conference on the Human Environment, adopted at Stockholm on 16 June 1972, and seeking to build upon it, The Access Initiative (TAI) Nepal program is mainly the assessment of implementation status of the Principle 10 of the Rio Declaration in Nepal. Nepal is a signatory to the Rio Declaration and is therefore obliged to implement Principle 10 of the Rio Declaration. In order to improve the implementation of access rights (access to information, participation and access to justice) in Nepal, an assessment of the current laws, practices and institutions are required. There has also been significant civil society intervention in projects which have led to varied reactions from the State Agencies as well the project proponents. It is being felt that although implementation of Principle 10 is far from satisfactory, there is no verifiable data to prove the lack of implementation of Principle 10 in letter and spirit. An assessment would to that extend greatly help in understanding legal and institutional shortcomings towards the effective implementation. It is through such an assessment gaps in access laws, institutions and practices can be identified and targeted for advocacy and reforms. Methodology With this short description of existing situation as stated above, Pro Public in close collaboration as well as coordination with The Access Initiative (TAI) Nepal Coalitions Partner have completed research and assessment of the implementation status of the Principle 10 of the Rio Declaration with support from The World Resource Institute (WRI), Washington D.C. The method used for the assessment is the established web-based TAI assessment toolkit, conduct an assessment of access rights in Nepal, identify gaps in access laws, practices and institutions and develop recommendations to fill those gaps and initiate action in order to bring about systemic changes. The results of the assessment will be used to engage government leaders to improve transparency and public participation in environmental decision-making in Nepal, with the expectation that such reforms will lead to better environmental outcomes.
The Access Initiative (TAI) is the first step towards engaging civil society organizations and government agencies to promote the public transparency, participation, and accountability that are essential foundations for sustainable development.
The Access Initiative (TAI) seeks to ensure that people have a voice in the decisions that affect their environment and their communities. To achieve this goal, civil society organizations form national coalitions, assess government progress using a method jointly developed by TAI partners in several countries, raise public awareness, and set priorities for improvements in policy and practice.
The main purpose of this country report is to explore the legal framework and implementation of the laws related to access rights in Nepal. The assessment of access to information, public participation, justice and capacity building, has followed the methodology developed by TAI including legal review, document review, media review, site visit and interview with concerned government, media and local communities. Interviews have been carried out with key actors. The relevant laws, policies, guidelines, manuals, published and unpublished reports of various agencies, websites and media reporting were also reviewed. The legal and practical gaps and areas for future efforts have also been identified. TAI Nepal program in Nepal has been implemented since May 2008 and completed some of the fundamental building blocks required for the full assessment.
The Assessment were completed under the leadership of Pro Public with the close coordination and collaboration with other different organizations working on environment and public interest issues falls under three broad themes of Access to Information , Public Participation and Access to Justice. The TAI Nepal coalition organization inclines Pro Public, FECOFUN, WAFED, LEADERS Nepal, NGOFUWS, NWCF, ECCA, FEALPEC, Jagriti Bikash Manch, LIBIRD. In addition to this, there was a formal TAI Nepal Advisory council formed from the representative from journalist, government, non-government, academia, research experts, legal experts and social activist.
All together 18 cases/issues from various components of the environment falls under major environmental responsible authorizes area were selected and assessed with the help of predefined indicators related to legal provision, efforts made by the concerned government, effectiveness of the efforts, capacity building, role of government, non government, media etc in order to realize the implementation of access right in Nepal.
The selected case studies falls under three sub-themes viz: Access to Information (A2I), Public Participation (PP), and Access to Justice (A2J) tabulated below along with the corresponding research partner/organizations.
Selected case studies for Access to Information (A2I) Sub-Themes 1. Air Quality Monitoring System in Kathmandu 2. Arsenic Contamination in Nawalparasi District 3. Flooding due to Embankment in Boarder Area 4. Stone Quarry in Chapagau Lalitpur district 5. State of Environment reports 6. Pesticide (Obsolete pesticides issues) 7. Hydropower/ West Seti 8. EIA for Tinau Stone extraction from river Selected case studies for Public Participation (PP) Sub-Themes 1. Agro-biodiversity Policy of Nepal 2. Industrial Pollution Control and Pollution Control Certificate 3. Kathmandu Participatory River Monitoring 4. Water Sector Reform Process in Nepal 5. Climate Change Policy with reference to REDD, CDM and NAPA 6. Peoples Participation in Forest Management Plans of Terai Region in Nepal Selected case studies for Access to Justice (A2J) Cases 1. Solid Waste Dumping Case in Bagmati River, Kathmandu. 2. Benefit sharing from community forestry of Nepal 3. Drinking water case 4. Environment Inspector Recruitment
Finding of The Access Initiative (TAI) Nepal Assessment
Overall, laws are comparatively conducive for promoting access to information whereas no adequate efforts have been made by the respective government agencies and other stakeholders and thus effectiveness of the implementation of laws supporting access to information is not so effective. Role of media and civil society organization involvement facilitating access to information in most of the cases are found to be better than that of the concerned government.
Some of the very clear Constitutional and sectoral legal provisions for ensuring public participation exist but the efforts made by the government is not up to the mark. The government is not able to raise awareness as well as build capacity and put required infrastructures in place so as to facilitate the public participation in most of the selected cases. However the public participation in the case of project level cases found to be high in comparison to the policy level decision making. There is no or least efforts made to ensure the participation of the target communities in the decision making process. With regard to allocation of budget for encouraging public participation, either no budget is allocated or where budget has been allocated, it is insufficient.
Similarly, though the Constitution as well as other sectoral law is somewhat conducive for the access to justice. The efforts as well as infrastructures and forums available are not enough to ensure the justice to all. The lack of awareness and information about the procedure and process to filing a claim is considered as the bottleneck for not only making the all available forum usable to all but the also facilitating the needy as well as target communities to come forward to claim the case. The implementation part of the court orders is still very weak (54%) and hence this is the one major challenges for the days to come. So there is necessity to increase the awareness as well as capacity building of all concerned.
With reference to capacity building, though some of the very clear Constitutional and sectoral legal provisions exist but the efforts made by the government toward developing capacity of government official are not up to the mark. The government is not able to raise awareness as well as capacity building and required infrastructures in place so as to facilitate the access to information, public participation and access to justice.
Conclusion and Recommendations
There are number of legal instruments supporting A2I, PP and A2J. There are some conflicts as well as overlapping and in some case not clearly mention exclusively. Efforts are found to be made by the concern government agencies but it is not up to the required scale to realize full implementation of Principle 10 of the Rio Declaration which deals about Access Right i.e. right to information, public participation and right to justice. In terms of effectiveness of the government efforts, it varies from highly effective in case of Air Pollution Monitoring whereas not effective at all in Environment Inspector recruitment.
Overall finding of the assessment work are as follows:
Law: If all exiting one comply fully definitely ensure high level of implementation P 10 Efforts: Effort made by government and others but not up to the required scale Effectiveness: Mixed response highly effective to least effective
o Irregular and limited. Failed to launch comprehensive and inclusive CB
o Lack of Exclusive CB on A2I and PP
o Recommendations for action. Provide suggestions for action and how to use the results of the assessment. Divide these by actor (legislators, regulators, NGOs, etc.) or in another way relevant to your target audience.
• Specific and direct legal arrangement for encouraging A2I, PP and A2J with full compliance monitoring mechanisms. • Access to information need to be ensured through having required Infrastructures, officials through adoption of all possible dissemination mechanism and means
Infrastructure includes: Information branch, computer, internet, fax, photocopy machine etc. Information Officer: An allocated personnel at information braches Information dissemination channel of all possible and modern.
• Effective implementation of laws, regulation, standard, regular monitoring, result dissemination. • Capacity building is required at all level for National Government, Sub-National Government, Public, CBOs, NGOs, and Media. • Advance invitation with adequate information along with supporting mechanism for easy access and active participation. • Travel cost and opportunity cost need to be ensured to encourage active participation. • Inclusive public participation need to be ensured at all level of decision making. • Update d information on emerging issues such as climate change need to be posted regularly in the government websites for easy access to people at large. • More and more forum need to be enacted and activated for facilitating A2J with compliance monitoring mechanism of the judgments.