The government’s plan of cutting down more than 1,200 trees along the Ring Road in order to expand the existing four lane roads to eight lanes has been widely criticized. From an environment perspective, such an action would accelerate the pollution of the already polluted city, and more than 100 species of birds would lose their habitats with the fall down of the beautiful Mimosa and Jacaranda tress. But the government’s plan of randomly cutting of trees is equally deplorable from a legal point of view (both international and national). [break]
International laws related to the environment reflect the notion that environmental issues are best handled with the participation of all concerned citizens. Principle 23 of the World Charter for Nature states our right to information concerning the environment and the right to participate in planning and decision-making processes, including in prior environmental impact assessment. This approach rests on the view that environmental protection and sustainable development cannot be left to the government alone, but require and benefit from the notions of civic participation in public affairs already reflected in existing civil and political rights (International Covenant on Civil and Political Rights, Article 19 and 25).
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UNO has recognized “Environment without Pollution” as a human right. Though our government may not be in a position to create a pollution free environment in the near future, it can surely impede the increasing pollution rate by preserving the trees left in the valley.
Coming to national legal provisions related to the environment, the preamble of Environment Protection Act, 2053 strongly advocates against the recent plan of cutting trees. It clearly sets forth the country’s obligation to “protect the environment with the proper use and management of natural resources, taking into consideration that sustainable development could be achieved from the inseparable inter-relationship between the economic development and environmental protection.” Therefore, it is mandatory for Department of Road to come up with environment friendly development plans, such as designs including sidewalks and bike lanes, to encourage green transportation.
Moreover, the Act clearly mentions the need to carry out an initial Environment Impact Assessment before a proponent (such as a person, governmental, semi-governmental or non-governmental agency) applies for a proposal to carry out development work that may bring about any change in existing environmental conditions, or any plan or project which changes land uses. Before such a proposal is approved, the concerned Ministry shall make arrangements so that all the general public may copy the report, if they want, and render opinions and suggestions on the report. No such Impact Assessment Report regarding the recent road expansion project has been shared with the public, though the government is legally bound to do so.
Besides the Environment Protection Act, the ‘State Policies’ enshrined in the Interim Constitution of Nepal, 2063 also reflect progressive and positive legal notions about preserving the greenery and eco-system. Article 35 (5) of State Policies explicitly states that the State shall make necessary arrangements to maintain the natural environment; the state shall give priority to special protection of the environment and rare wildlife; and prevent further damage due to physical development activities. Therefore, saving the tress and protecting the 106 species of birds of Kathmandu valley is not just a moral choice, but legal responsibility of the state.
Likewise, Article 35(4) asserts that 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 community. Thus, it is necessary and binding for the government to find out whether or not the chopping down of trees is within the interest of the local people. They would be the ones directly impacted by such an activity, and therefore possess the right to participate in decision making regarding the issues, a right which is also guaranteed by ICCPR to which Nepal is a party. And, Nepal being a state party, has the responsibility to effectively implement such international treaties and agreements.
Nevertheless, it is clear in Article 36(1) of Interim Constitution that no question shall be raised in any court as to whether the provisions contained in ‘State Policies’ are implemented or not. But still, there is immense space for us as citizens to protest the random cutting of trees within legal ground because the action also falls under the purview of the Environment Protection Act of Nepal, to which state is directly liable. And moreover, the ‘State Policies’ itself has assured that the state shall mobilize the required resources and necessary means for the implementation of the principles and policies contained in it. Therefore, it is the legal obligation of the state to protect the greenery and wildlife in the beautiful tress of Ring Road.
To sum up, Boyer Barry B has rightly stated that the law is an important arena, within which the cultural conflicts over many visions of a good society are worked out. Road expansion and preserving greenery both are visions of a good society. The Constitution ensures the protection of the environment, and meanwhile it also approves of rapid economic progress and development models for the prosperity of the people. Thus, conflict between these two visions is not unexpected. However, instead of prolonging the conflict, we should try to seek rational alternatives. A professional and creative design, incorporating both the visions should be adopted, as in many developed countries. Just because we have a budget sponsored by a foreign nation does not mean that we should risk sustainable development of the country. It will only make us victims of trial and error projects.
The author is pursuing Law studies in Kathmandu School of Law
itsadt@gmail.com
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