By Jony Mainaly
Constitutional guarantee of environmental rights often reflect complexity given the potential uncertainty in determining the scope of the environmental rights. Because of the complexities in determining the scope coupled with its conventional belief that environmental protection vindicates economic development, the governments tend to circumvent the stronger safeguards against environmental degradation. Therefore, it is very important to make explicit, substantive and procedural protection of environmental rights in the constitution so that vindication of the fundamental protection is avoided. The provision regarding environmental rights in the Constitution of Nepal, 2072 (Preliminary Draft) (hereinafter Draft Constitution) provides encouraging signals of substantive protection; however, it equally has embraced potentially challenging and conflicting provisions that can simply vindicate the guaranteed fundamental right to a clean environment.
Digo Bikas Institute, Nyaya Yukti Research and Resource Center and Pro-Public demanded revisions in the Draft Constitution in their submission (Environmental Rights Provisions – Feedback to Draft Constitution) to the Constituent Assembly Committee on Citizen Relation and Public Opinion Collection on 21st July 2015. This paper discusses the revisions demanded to make the draft constitution environmentally responsible.
1. Article 35 of the Draft Constitution is instrumental provision to envision the environmental right regime in Nepal. The overview of the provision itself provides that Nepal has entered into next generation of environmental jurisprudence. Given the provisions of the Constitution of the Kingdom of Nepal, 1990 which provides no provision of right to environment and the provisions of Interim Constitution of Nepal 2007 that did not fully incorporate sustainable development principles; the overall environmental guarantees the Draft Constitution makes are commendable. However, there are inherent and serious flaws in the reading of the Article 35 of the Draft Constitution that demand immediate attention and revision.
Article 35(2) is a milestone development in the environmental jurisprudence that ensures individual and group right to environmental protection from private parties as well. Even though the progressive interpretation by the Supreme Court of Nepal was made to held private entities accountable for violation of environmental rights resulting in the stoppage of the facility causing environmental damage, but enshrining the same provision in the present Draft Constitution gives stronger protection against harm incurred from private parties. However, the provision ascertains only one component of the environmental liability being compensation. It should also focus on the reparation, restoration, satisfaction elements which can be attained through the term “equitable and effective measure of compensation” or it could also include “adequate reparation” to make the scope of remedy of damage wider. The natures of environmental harms are such that mere money damage (in compensation form) is not always adequate. Therefore, the damage mechanism should be broader enough to incorporate restitution and reparation.
The article provides that “victim of environmental pollution or degradation shall be entitled the right to compensation from the polluter as provided in the law.” The article should be revised as;
“Victim of environmental pollution or degradation shall be entitled the right to equitable and effective compensation as provided by law.”
2. Regarding Article 35 (3), prima facie, it shows that the Draft Constitution has incorporated sustainable development principle in this provision. However, the very provision is subject to controversy. It seems very pro-development approach and has neglected the pro-environment approach of sustainable development. The right of the state in making “laws to maintain adequate balance between environment and development for the purpose of the acts of national development” is itself pro-development statement. We strongly urge that it is important that the Drafters of the Constitution incorporate the other important aspect of sustainable development that includes the concerns of inter-generational equity. The entrenched proviso clause demonstrates the perspective to strike a balance between environment and development which is one aspect of sustainable development where the government, as given provided in law, can inherently vindicate the very provision in a legal way.Article 35 (3) of the Draft Constitution is provided as a proviso clause that explicitly bears the capacity to nullify the substantive guarantee provided by the Article 35 (1). Therefore, we strongly argue against the provision in the fundamental right section of the constitution.
The provision instead should guarantee inter-generational equity which is the other pro-environment protection dimension of the very principle of sustainable development. The Drafters have included the pro-development dimension with a substantive guarantee in Article 35(3) whereas the pro-environment protection dimension of sustainable development is enshrined in the state policy part in Article 55(g) (2). Therefore, the fundamental rights provision should incorporate that the environment protection be ensured for the benefit of present and future generations that prevents pollution, promotes environmental protection. The Article 35 (3) should instead read as follows;
“Even while carrying out national development activities as provided in law, the government should enact laws that ensures a balance between environmental protection and economic development taking into consideration the inter-generational equity.
3. In order to ensure constitutional guarantee of procedural rights concerning the right to information, participation and access to justice in environmental matters, it is pertinent to ensure them in the fundamental right section of the constitution. If these procedural safeguards are enshrined in the fundamental rights section, it provides more stringent protection against the vindication of substantive environmental rights. Even though the procedural rights do not impart right to a clean environment, the rights are enforceable in the court of law and confirms the procedural safeguards that ensures the materialization of substantive rights.Therefore, the new provision ensuring procedural safeguards in environmental matters should read as follows;
“Every person shall have the right to information, participation and access to justice to environmental matters at all times.”
4. Article 52 of the Draft Constitution provides for the fundamental duties of citizens. This is an important shift from the former constitutional history. However, the fundamental duty of citizens does not apportion explicit duty on citizens to protect and improve natural environment. Such provision makes State as well as the citizens as important stakeholder in protecting and improving natural environment. Therefore, the new provision of assigning duty of citizen to protect environment should be added in the Article 52 that has already provisioned other duties of citizens. It should read as;
“To sustainable protection and promotion of environment and natural resource.”
5. The reading of the substantive rights in many regards demonstrate the spirit of the constitution to ensure environmental justice, however, its explicit mention in the Constitution may strengthen the interpretation of the environmental jurisprudence.The demand of environmental justice is to ensure equitable distribution of benefits of environmental protection and burdens of environmental harms among all section of the society so as to avoid disproportionate impact inflicted against the vulnerable section of the society. The provision should read as;
“Every person shall have the right against disproportionate impact of environmental degradation and pollution.”
6. Article 249 and 250 of the Draft Constitution has provided for the Natural Resource and Fiscal Commission. While considering the name of the Commission, it deceptively shows that the Commission gives primacy over natural resource over fiscal matters. However, reading the provision, it indicates a bleaker scenario as it discusses very little about issue of federal, state and local level natural resource distribution and management issues. We are of the opinion that, since both the issues are entirely different and both are very important issues, it is necessary to make separate Natural Resource Commissions and Fiscal Commission. If the possibility of making two separate Commissions is not feasible, we advise amendment in the text of the provision.
Article 250 (1) (a) provides “to determine the detailed basis and mechanism of distributing the revenues from Federal Consolidated Fund among federation, states and local units.” We recommend considering “natural resources”in the text that should read as;
“To determine the detailed basis and mechanism of distributing the natural resources and revenues from Federal Consolidated Fund among federation, states and local units.”
As the function, duties and powers of the Commission, Article 250 (1) incorporates very little functions, duties and powers in relation to distribution and management of natural resources in all layers of government structure; we recommend two other points to includein the provision after sub-clause “h”. As the Commission is stipulated as a Federal Commission, it should be entrusted with powers to address the legal, policy, institutional issues that can be practically evidenced in the protection, management and allocation of natural resources in all levels of governments. It is very significant also to mitigate the chances of potential conflict that can arise between different jurisdictions and parties.The points we have recommended include;
250 (1) (i) To recommend to make necessary laws, policies and their reform that federal, state and local units shall follow for the protection, management and distribution of natural resources.
250 (1) (j) To recommend to the government and the concerned authority about the activities of any parties in contrary to the sustainable management of natural resources that have significant impact on the environment.