Submit your Article

“Let’s go to the cinema,” asked a boy. “I do not want to go today. Another time,” said a girl. “I want to spend some time with you. Let us go right now,” insisted the boy. “Not now. I want to go home,” said the girl with discomfort. The boy, now equipped with intimidation in his voice, continued to exert what we would call ‘stress’ upon the girl, and demanded that she heed his demands. The girl became nervous and teary. Upon looking at her vulnerable demeanor and consistent refusal to his offer, the boy started scolding her for not being ‘serious’ in their “relationship.”

After the boy had finished berating her for allegedly hurting his “expectations” and depreciating his “masculinity,” he left livid, and the girl returned home hurt and thinking as to why the boy did not respect her decision. Was it an ardent task for the boy to understand that she was in no mood to go with him that day? Dear readers, if the words ‘consent’ and ‘abuse’ popped in your mind, you have caught the essence of this article. If they did not, then worry not and enjoy this piece. 

“If it is not a clear ‘yes,’ then it is a clear ‘No!’”. We must have heard this statement numerous times, but do we have a clear understanding of what it means? The notion of consent is one of the most crucial aspects of an individual’s physical integrity and self-determination. It is not only a mere act of permitting someone to perform certain tasks but also an entire protection from them causing any harm to you. It is a vital aspect of an individual’s right to live with dignity and freedom as protected by Articles 16 (Right to live with dignity) and 17 (Right to Freedom) of the Constitution of Nepal.

Article 16 proclaims that every individual shall have the right to live “with dignity”. The clause at the end is paramount to make every individual realize that they are in control of their lives. They possess certain values to live a dignified life such as autonomy, self-determination, free will, privacy and more. Thus, the notion of consent further solidifies the attainment of a respectful life. 

In this article, I will be discussing consent pertaining to sexual crimes against women. Considering recent convictions and acquittals of so-called high profile Nepalese individuals in rape cases, the concept on consent of women has been a topic of discussion in the Nepalese social media. At present, it is not simply a matter of saying ‘yes’ or ‘no’ but examining the circumstances in which women utter those words. Let me direct you the abhorrent statistics of crimes of rape in three different fiscal years.

In the Annual Report published by the Office of the Attorney General of the fiscal year 2078/79, the district attorneys’ offices (all over Nepal) prosecuted 7,528 cases of rape amongst which 1,742 accused were convicted; in the fiscal year 2079/80, the offices prosecuted 7,343 cases of rape amongst which 1,911 accused were prosecuted. We can conclude two things, by looking at these numbers, one that rape is an ever-increasing heinous crime against women and children; the other, that the courts found that the victims in those cases had not expressed their “free consent” to engage in sexual acts. Thus, the perpetrators blatantly disregarded the notion of consent of the victims and committed those crimes.

How does our criminal legal system view consent and why is it so? Section 20 and explanation of Section 219 of the National Penal Code, 2017 maintain that permission can be deemed as consent, oral or in writing, only when it is solicited without mistake of fact, fear, undue influence, threat of injury or harm; is solicited from person with sound mind and sound cognition and is solicited from person who is at least eighteen years of age. Moreover, Section 219(2) does not deem any sexual act as consensual and legal if it involves a woman under the age of eighteen years. These laws exist, amongst other reasons, to protect the physical inviolability and physical integrity of women and children. 

In the case of Yadav Prasad Ghimire v Government of Nepal, Nepal Law Magazine 2072, Decision Number 9335, the court iterated the notion of consent as ‘choice’ and posited that a person consents if they agree by choice and has the freedom and capacity to make that choice. In this case, the Supreme Court held that the victim had not expressed her free choice of engaging in intimate activities with the accused and thus withheld the sentencing against the latter. Another remarkable case is that of Bhupendra Khadka v Government of Nepal et al, Nepal Law Magazine 2076, Decision Number 10342, in which the Supreme Court postulated that such consent solicited from a lower rank officer by a higher rank officer of Nepalese Army, to engage in intimate activities shall not be deemed as “free consent” due to unbalanced power relation and disparity of economic and social power. Such consent is merely a delusion and sexual acts performed subsequently shall are sexual abuse. 

Why is the idea of consent difficult to grasp? Probably, it has to do with stereotypes about women and gender norms. The journal article “Socio-cultural and psychological aspects of rape…” (2022) published by J K et al, highlighted reasons of rape such as misperception and negative attitudes towards women, masculine dominance, parenting style, immorality, revenge, perceiving women’s clothing as ‘provocative/revealing’ and lack of free sexual expressions. Maybe the answer to respecting women’s consent lies in two themes, one that parents must be the first teachers to teach children about respecting women, morality, sex and sexuality, consent, and hazards of masculine dominance; and the other one could be the standard of sex education in schools and colleges. Also, legal education about the age of criminal responsibility and offenses relating to sex can play a major role in instilling fear amongst people (especially teenagers) to prevent them from engaging in hazardous sexual activities. In my opinion, if we endeavor more to educate the public and students, in more efficient and effective ways, we may achieve a relatively larger reduction in such offenses against women and children. 

The author is student of law at Kathmandu School of Law

Almost all local governments across Nepal operate without designated law officers, leading to frequent contradictions or violations of federal and provincial laws, undermining good governance. The absence of legal experts in local governments is a significant obstacle to advancing federalism.

Good governance in local bodies and the broader public sector involves delivering priorities, achieving objectives, behaving with integrity, and acting in the public interest while adhering to legal, regulatory, and government policy obligations.

Nepal has 753 local bodies, including six metropolitan cities, 11 sub-metropolitan cities, 276 municipalities, and 460 rural municipalities across 77 districts. Only a few, such as Kathmandu and Pokhara, have appointed law officers to ensure compliance with laws and regulations.

Although federal law does not mandate the appointment of law officers in local governments, the Local Government Operation Act 2074 BS (2017) provides a legal framework for local legislative, executive, and quasi-judicial practices. This act is based on Article 296 (1) of the Nepal Constitution of 2015, which aims to enhance local leadership and governance.

Despite this framework, most local governments, except for some metropolitan and sub-metropolitan cities, have not appointed law officers, according to the Ministry of Federal Affairs and General Administration (MoFAGA). Some local bodies have legal advisors, but they are not officially recognized as law officers.

In the absence of legal experts, local bodies have violated the constitution and central laws. “We are not obliged to obey the constitution or federal laws as we are empowered to make laws ourselves,” says Raman Bahadur Thapa, mayor of Rampur Municipality in Lumbini Province.

Local governments have the right to formulate supplementary laws, provided they do not contradict federal or provincial laws, according to high-ranking officials at MoFAGA. However, implementing national laws at the local level is problematic, resulting in the arbitrary increase of taxes and charges, contrary to the constitution and existing laws, depriving citizens of good governance and social justice.

Nepal faces significant challenges in delivering efficient services, maintaining law and order, and ensuring rights enshrined in the nation’s laws. These challenges include illiteracy and weak civil society, deeply rooted corruption, weak law enforcement, impunity, procedural administration, lack of public awareness, unstable government and policies, traditional mindsets, low accountability, and non-inclusive governance.

Advocate Ananta Raj Luitel says that local bodies have not adequately followed federal and provincial laws. “There is conflict between local and federal governments in exercising devolved power in the federal context. Local bodies are powerful with devolution but must still abide by national laws.”

Luitel suggests that appointing law officers in local authorities would minimize illegal activities and legal conflicts. 

The federal ministry overseeing local governments is concerned about local government operations. “They are autonomous and don’t consult us on major issues,” says Suman Dahal, joint-secretary at MoFAGA.

Local bodies can create quotas to appoint law officers, but many avoid doing so to circumvent legal conflicts. 

According to Dahal, some local bodies exceed their capacities and rights when addressing local issues. such as appointing staff beyond financial capacity and making decisions contrary to laws and the constitution.  “There are problems of some local bodies appointing local staff against their financial capacity, making decisions against law and constitution and not using their own rights enshrined in the constitution,” he says.

Key issues within local governments include bullying by political parties and elected representatives' lack of legal literacy. Elected officials often believe they can act without constraint.

Local governments have been found developing parallel laws that contradict central laws. For instance, Rampur Municipality in Palpa developed local road standards that conflicted with regional, provincial, and central road rules, imposing a local road standard of 14 meters width in roads that are meant to be 30 and 50 meters wide.

“It is a reckless and illegal practice,” says advocate Bal Bhadra Khanal. “They should be punished for such activities. Where laws are not followed, corruption and crime are likely to rise.”

According to the Commission for the Investigation of Abuse of Authority (CIAA), corruption complaints related to MoFAGA and local governments make up 33 percent of total complaints registered at the commission, with 22,868 complaints registered in the current fiscal year (2023/24).

Impunity and corruption are also prevalent in federal and provincial governments, contributing to widespread bad governance. “

If the federal government functions properly, lower governments will be obliged to maintain good governance,” says advocate Luitel.

Experts have criticized the protest against the US Embassy in Kathmandu, staged under the leadership of a sitting lawmaker to press the embassy to issue a travel visa to Nepali cricketer Sandeep Lamichhane for the 2024 T20 World Cup.

Vijay Kant Karna, a former ambassador, emphasized that it is up to each country to decide whom to allow entry. “Not only the US, Nepal also has dozens of countries in its blacklist, meaning it is quite difficult for the nationals of those countries to obtain Nepali visa,” he says.

Chandra Dev Bhatta, an expert on foreign policy and geopolitics, agrees. “Issuing/denying visas is a sovereign right of a country,” he says: “Mass demonstrations are not the right approach when it comes to dealing with visa denials.” 

On May 29, Gyanendra Shahi, a Member of Parliament, had led a demonstration against the US Embassy in the House of Representatives after the host country denied him a visa for the second time in 10 days, crushing his hopes of participating in the ICC Men’s T20 World Cup 2024 in the US and the West Indies. Karna warned that such actions could harm the long-standing relationship between Nepal and the US.

“Despite efforts, including a diplomatic note from the government of Nepal, including the Ministry of Foreign Affairs, Ministry of Youth and Sports, National Sports Council, Cricket Association of Nepal (CAN) and the International Cricket Council (ICC), to secure cricketer Sandeep Lamichhane’s participation in the 2024 ICC Men’s T20 World Cup in the United States and West Indies, the US Embassy has stated its inability to grant him a visa,” CAN announced in a press release.

Government Spokesperson Rekha Sharma acknowledged that the embassy had the right to deny visas, even to cricketers, regardless of the government’s initiatives.

Shiva Prasad Regmi, spokesperson for the Ministry of Youth and Sports, told ApEx that it is a standard procedure for the sports ministry to seek assistance from the foreign ministry when athletes face visa issues, noting that they made similar requests in the past.

However, assistant spokesperson for MoFA, Rishi Raj Acharya, said he was unaware of the developments. The US embassy, following its initial visa denial, had stated it could not comment on individual visa cases due to confidentiality under the US law. 

Experts believe Lamichhane’s visa denial might be linked to ongoing legal issues, as the District Public Prosecutor’s Office plans to appeal his acquittal by the Patan High Court to the Supreme Court. Lamichhane had returned to Nepal from Trinidad & Tobago, where he was playing for the Caribbean Premier League, in response to an INTERPOL notice issued in connection with a rape case. They suggest that this may have influenced the visa decision.

The US had denied Narendra Modi a visa in 2005 for violation of religious freedom. Modi was supposed to be the chief guest at the Asian American Hotel Owners’ Association in Florida, but the 2002 Gujarat riots came to revisit him in the most unlikely of circumstances.

This year's monsoon is expected to enter Nepal from June 13.

The monsoon has reached India's north-eastern territory, Bangladesh, Bhutan and reached Sikkim in India, according to the weather forecast division under the Department of Hydrology and Meteorology.

Rojan Lamichhane, meteorologist of the division, said that monsoon will enter Nepal around June 13 and that there is a 35 to 55 percent chance of more than normal rainfall in most parts of the country during the monsoon.

Climate expert Dr Dharmaraj Upreti said that this year's monsoon reached India's Assam, Sikkim and surrounding areas last Saturday. Hence, it can be estimated that the monsoon will enter the Koshi region a week earlier than the scheduled date.

Since the monsoon air has become more active, it can be assumed that the monsoon will be active in the next three to five days in Koshi Province.