Win one, lose one
Since I always write quite negative things about taxi drivers—those of you on my Facebook might have noticed I am now posting photographs of license plates belonging to drivers who refuse to go on the meter or who quote wildly over-inflated prices—I thought why not write something nice for a change.
Because at long last I actually do have something nice to say. About drivers! I know, I know, please pick your jaw off the floor and continue reading. Over the past 10 years or more I have been using a car hire company when I have needed to go a bit further than Patan. Every time it seems there is a different driver. Which means none of them actually know where I live. So no picking me up from my actual door. Not very convenient at all. During the time of doing earthquake relief in Kavre, I was driven, more often than not, by a nice man called Ramesh. After these few weeks of being driven around with a pile of teddy bears in the boot (another story!) I forgot about Ramesh.
A couple of weeks ago I was allocated him again by the hire company. Why not take his number, I thought. So now not only do I have a driver who knows where I live, but he also lives just a couple of streets away. No more excuses about traffic jams when the car is late! So tick the box for the more complicated or far away drives. Meantime, as I posted these photos of licensed plates I jokingly wrote that taxi drivers were never going to see my somewhat cheeky taxi comments. When, lo and behold—I have a part time taxi driver on my Facebook friends list! Someone I know from a bar where he works in the evening. So now I have two people on my ‘good driver’ list! Finally.
Lo and behold, I have a part time taxi driver on my Facebook friends list! Someone I know from a bar where he works in the evening
Since this is a positive story about drivers I find myself out of words already, with only half the column filled up! This, when normally I find my allocated number of words to be too restricting, just too damn short! So like the uncomfortable coffee date, I’m searching around for something to talk about. How about road conditions—pretty relevant if I say so myself. Yesterday I travelled (with my new taxi driver) along the river road that runs between Jorpati/Boudha and Pashupathi. Once, not very long ago at all, that was a green area with a decent road. Definitely better than the road running through Boudha. But time has changed and a lot of buildings, mainly workshops, have come up there. The river seems to have totally disappeared.
We wondered what was being built as we could see ghat-like steps on the far side of the ‘river’. I couldn’t imagine there would ever be enough water for ghats. We discussed the possibility of the steps leading down to a future grassed area, but then couldn’t see the builders justifying the cost of installing steps to a play-ground. Perhaps they were the base of a bridge? We also laughed about the time we both volunteered for Jazzmandu and had to accompany (horrified) visiting musicians along the parallel, but equally as bumpy, road out to the Jazz Bazaar event at Gokarna.
Laughter is definitely one of the benefits of having a taxi driver on your friends list! Yet on that day, I grew sad: the scenery and road have disappeared making this ‘rural area’ an urban jungle mess in progress. It’s heartbreaking to see rural areas disappear, especially around World Heritage Sites. Which was, as Lonely Planet once described it, “a pleasant walk between Pashupatinath and Boudhanath”.
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Cross-border rails: Through the legal eyes
The Nepal government plans to construct railways for both internal and cross-border transportation of people and freight to neighboring countries, and these plans are being discussed with hope and pride at the cross-sections of the Nepali society. Among the issues regarding the development of such infrastructure, the necessity of suitable legal regimes for the projects to materialize and operate is also a significant challenge. This needs to be discussed in the spirit of Nepal’s national interest.At present, Nepal’s Railways Act 1963, the only legislation of this type, provides some rudimentary provisions to govern the proceedings and operations of railways. Although the Act has been amended by several statutes over the years, it has never received the focus it deserves. It is now time for a new railways act to respond to the demand of change, emulate internationally-accepted technical and operational standards, and protect Nepal’s sovereign interests, while opening up Nepal further.
For Nepal, the challenge is to achieve connectivity with international allies
As Nepal has already subscribed to China’s Belt and Road Initiative (hereinafter, “BRI”), cross-border rails are no longer a matter of ambitions alone. Investments in BRI infrastructures like long distance roads and rails are meant to enable connectivity among Asian, African, and European countries. According to the Global Construction Review, just in 2019, China has committed $125 billion in investments in rail. This investment will supposedly add 6,800 km of railway, of which 3,200 km will be high speed. Trade via railways has flourished between China and its neighbors and is predicted to grow through projects under the BRI. Apart from this, Nepal has its own reasons to aspire for such infrastructural connectivity.
Outstanding issues
Nepal aims to connect with both India and China through railways. With differing jurisdictions, forms of government, and rules and regulations, many legal issues specific to the construction and operation of railways will arise.
According to the first edition of the publication Monograph Series on Transport Facilitation of International Railway Transport in Asia and the Pacific by the United Nations Economic and Social Commission for Asia and the Pacific (hereinafter, “ESCAP”), some generic issues that arise with the construction of international railways that can be addressed through legal mechanisms are: border procedures, lack of unification between required documentations (legal and otherwise), differing operating and tariff structures, contrasting customs and border regulations, safety and technical standards, and a lack of human resources.
Land acquisition will be a major issue for railway projects connecting Nepal with China and India. Nepal has a Land Acquisition Act, but the problem of implementation delay has been insurmountable. In July 2018, Nepal and India reached agreements to resolve land acquisition issues and remove physical obstacles, like electricity poles, in order to complete a railway line from Jayanagar (India) to Janakpur-Kurtha (Nepal) and from Jogbani (India) to Biratnagar Customs Yard (Nepal).
Accounting for the higher population density in southern Nepal, land acquisition from private owners could be a major hurdle in the proposed China-Nepal-India railway line. A possible solution would be for the government to embrace the policies of land pooling, under which small land-owners would pool together their land and, as stakeholders, hand it to the pooling agency for infrastructural development.
China has plans for a pan-Asian rail that will extend from Kunming, China to Laos, Thailand, Malaysia, and finally, end in Singapore. With investments in railway, cross-border disputes are sure to arise, and experts argue that a less formal, mediation or arbitration resolution process will be favored by both Chinese and international legal professionals. Some countries may develop their own legal systems to address disputes through arbitration or mediation.
Legal mechanisms
From a legal perspective, cross-border agreements (multilateral or bilateral) between states and companies responsible for commercial projects could be a solution. Additionally, parties will need to ensure a cohesive, standardized approach to technical compatibility along the constructed railways, including the infrastructure, signaling processes, licensing requirements, and other laws and regulations. In this regard, for example, the UN Economics Commission for Europe (hereinafter, “UNECE”) guides the process of harmonizing and simplifying border crossing procedures for inland transport and includes an overview of the international UNECE Transport agreement.
Currently, as reported in the Study on Border Crossing Practices in International Railway Transport by the ESCAP (Bangkok, 2018) (hereinafter, “ESCAP Border Crossing Practices study”), there are two international legal regimes on international railway transport: the Organization for Cooperation between Railway and the Convention concerning International Carriage by Rail. They provide comprehensive legal frameworks for various aspects of railway transport.
Other conventions, such as the Customs Convention on Container of 1972 and the Convention on International Customs Transit Procedures for Carriage of Goods by Rail under Cover of SMGS Consignment Notes of 2006, provide guidance for railway-related requirements, such as transport documents requirements, customs offices procedures, and the standardized markings of freight.
The Rail Services Agreement between Nepal and India (2004) attempts to harmonize standards across India-Nepal railways. The agreement provides details regarding train schedules, maintenance of tracks and wagons, and offensive or dangerous goods. Additionally, the Memorandum to the Protocol to the Treaty of Transit between Nepal and India outlines that, for transit through India, Nepali import licenses, letters of credit, or official Nepali certification on Customs Transit Declaration is required. The ESCAP Border Crossing Practices study suggests that because the “transit procedure is paper based and heavily burdened with document requirements,” an “introduction of electronic information processing and electronic data exchange between customs stations in India as well as between the customs authorities of India and Nepal could be considered.”
Conclusion
Most of the issues discussed above have ramifications. For example, increased connectivity and an open border with India over the decades have resulted in an influx of Indian population in Nepal, demanding settlement and citizenship. For Nepal, the challenge is to achieve connectivity with international allies without the “Indianization” or “Chinisation” of Nepal. Without immigration procedures and the introduction of work permit laws in Nepal for foreigners, like Indians, connectivity will not help Nepal in the long run. This is a core issue.
Above all, it is important to understand that the development of cross-border railways means some essential sovereign functions of the state have to be performed in a way that assists in creating symbiotic relations with the railway systems across the border from Nepal. The issues of inland security and information sharing are important in this regard. They must all be discussed and considered when creating a legal regime to enable infrastructural connectivity.
Bipin Adhikari is a constitutional expert and currently associated with the Kathmandu University School of Law. Bidushi Adhikari is associated with Nepal Consulting Lawyers, Inc as a research assistant
Read full article here: Legal issues related to the cross-border rails in Nepal
Be selfish Nepal
Much has been said about Comrade Prachanda’s “anti-imperialism” statement on Venezuela and Nepal’s reluctance to join the US-led Indo-Pacific Strategy and their collective impact on Nepal’s relations with the US, and India and China. In light of global and regional events, the three powers won’t let us off the hook easily. No matter what our wishy-washy leaders and intellectuals believe, there is no way to sweet talk ourselves out of the new Cold War. India and China have invested heavily here and now we are on the US strategic radar again after almost 60 years. Therefore, the chance of Nepal having to deal with one of the following three scenarios is very likely. Scenario A: India and China, despite their geopolitical rivalry, will be on the same page on Nepal, i.e., keep the US out of it. Each of our neighbors believes that given its influence in Nepal, it will be able to use the country as a bargaining chip in its dealings with the other. Neither would want Nepal to have any US backing as it will lead to a confident Nepal, which makes it harder for them to view it as their own extension/satellite.
Scenario B: The US will make “further inroads” here with India’s help. Since India finds itself surrounded by China in South Asia, it could very well be open to the US’s idea of roping Nepal into its strategy. As India and the US are “allies”—maybe difficult ones, but allies nonetheless—India probably won’t see the US as infringing on its interests in Nepal, but rather acting on its best interest by keeping China out. The two will think their partnership in Nepal helps curb Chinese activities, interests and influence in Nepal.
It will signify a major diplomatic victory for India because China then won’t be able to play the Nepal card in its dealings with India. And the US can prove to the Chinese that it still has influence worldwide including in China’s “strategic backyard.” Further, if the Indo-US partnership is successful in Nepal, the model can then be applied to other South Asian countries that too face a difficult choice between India and China.
Scenario C: The US will go solo in Nepal. From the US strategic perspective it makes a lot of sense too. It knows the country well, enjoys immense soft power, and the American intelligence has already used our terrain against China 60 years ago. Now imagine being the most influential player between the two major Asian powers and with all the latest in surveillance and monitoring technology! Given our location, we could be an excellent listening post for the US to gather intel on missiles and other strategic programs of both India and China— and to mobilize its field agents— just as China’s Xinjiang was used in the 80s to gather intel on the soviet missiles program.
The US can then play the Nepal card to coax India into going with it on many global issues. If things blow out of proportion in the South China Sea or the Indian Ocean between China and the US, it can also thwart any Chinese strategic plans against India in or through Nepal—in case India sides with the US against China. Alternately, a strong US presence in Nepal will restrain India and China and make them seek peaceful ways to resolve their “issues,” thereby sparing it a significant military adventure or cost as India’s ally.
The only option left for us is to decide who we choose as our ally and set terms favorable to us before any of the three decides for us. Therefore we need to ask each power what’s in it for us if we side with them. Whoever provides us more, we selfishly and shamelessly side with it, just as many third world countries have done for their development—and survival and security. Without a firm commitment to one of the powers we will only be getting paltry sums that neither significantly aid our development at best and are detrimental to our survival at worst.
Just as my good friend Bhaskar Koirala, the director of Nepal Institute of International and Strategic Studies, recently said, “The US MCC grant of 500 million dollars although previously part of the Asia pivot is now being channeled through the Indo-Pacific strategy.” We need to acknowledge it as such and accept that the money we receive from India and China is also part of a named or unnamed strategy. Then decide on where the big money—and less micromanagement— is and be part of it.
If we want stability, peace and development, we need to be cold, calculating and objective—and that can only be done when we shed the useless peaceful and neutral cloak. It’s time to imagine the worst and ask very difficult— and impolite—questions.
No politics for women
Our five-part, five-week APEX Series ‘Women in politics’ has made it clear that although Nepal has come a long way on inclusion of women in state institutions since the 2006 change, a lot remains to be done. Proportionally, Nepal has more women in the national legislature than any other country in Asia. Yet that is not saying much in itself. Moreover, the political parties didn’t do it voluntarily. The Election Commission had to force them to ensure at least 33 percent women representation in the legislature.
Constitutionally, all four of our national parties—the Nepal Communist Party, the Nepali Congress, the Federal Socialist Forum Nepal and the Rastriya Janata Party Nepal—are illegitimate in that they have failed to ensure the constitutionally-mandated minimum 33 percent representation of women in party structures. For instance, in the 441-member central committee of the ruling NCP, there are only 75 women (17 percent), and in the 84-member central working committee of the NC, there are 17 women (20.24 percent).
The picture is bleaker still in the executive. After the promulgation of the interim constitution in 2007, 10 cabinets have been formed and none had anywhere close to 33 percent representation of women.
Chanda Chaudhary, an RJPN lawmaker, points at more disparities. “Political parties have given 33 percent of parliamentary seats to women because of pressure from the Election Commission, which rejected the lists they forwarded. But in appointments to ambassadorial positions and constitutional bodies, the EC cannot impose its decision, so the parties are reluctant to provide due space to women.” It shows.
Political parties have confined women to secondary roles, such as deputies in local bodies, deputy speakers and state ministers. Top leaders seem to be under the impression that women cannot take up leadership or win elections. Even if our constitution has many progressive provisions, it does not mean much if they are being openly flouted to give continuity to the patriarchal status quo.
Not even a third of the sky
APEX Series
WOMEN IN POLITICS
Women’s representation in politics is gradually increasing, but there has not been a quantum leap forward in line with the huge political changes Nepal witnessed in the last one decade or so. Over the past four weeks, as a part of APEX Series, we analyzed women’s representation in our political parties, in the legislature, in the executive and in key political appointments. A closer look at our series of articles shows that the provision of 33 percent women’s representation is implemented only in those areas where legal and constitutional tools compel political parties to do so.
Otherwise, top political leaders are not ready to give due space to women in their own parties or in other state organs. This shows our parties are not committed to the principle of inclusion and only legal and constitutional mechanisms are driving them to accept some inclusion. Even the incumbent government, which is the first full-fledged government formed after the constitution’s adoption in 2015 and which has a two-thirds majority in the federal parliament, is not committed to the policy of inclusion in its letter and spirit.
After the last polls in 2017, the Election Commission (EC) was reluctant to publish the final results until the parties ensured 33 percent women’s representation through their Proportional Representation (PR) list. Failure to do so, the EC warned, would delay the publication of results. So the parties sent lists to the EC that had 33 percent representation of women. But in areas where the EC cannot impose its decisions, women’s representation is dismally low.
There is also a lack of a mechanism to monitor whether the government and political parties comply with the provision of ensuring adequate women’s representation in all state mechanisms. For instance, the Public Hearing Committee (PHC) of the House of Representatives (HoR) can compel the government to ensure that 33 percent of constitutional appointments go to women. The parliamentary committees are regarded as mini parliaments and they can reject the government’s list of recommendations that does not have 33 percent women. For example, the PHC cannot initiate a hearing if 33 percent women’s representation hasn’t been achieved.
Late to the party
Very few political appointees are women. Key areas such as constitutional bodies, ambassadorial positions and other public enterprises don’t have 33 percent women. There is a tendency of appointing a nominal number of women just to give an impression that the appointments have been inclusive. There is no official record of political appointments of women, but observers say the low number of female appointees is an old problem. The government makes dozens of political appointments (besides those to the federal and provincial parliaments and to the cabinet), but very few appointees are women.
This clearly shows the political parties’ disinclination to ensure the constitutionally-required representation of women in state organs. The situation has remained unchanged even after the promulgation of the constitution in 2015, the holding of three tiers of elections in 2017, and the formation of a government with a two-third majority last year. Now, there is a tendency of appointing a token number of women just to show commitment to the principle of inclusion.
No political party has allocated 33 percent of positions to women in their structures, whether at the center or at the local level
No political party has allocated 33 percent of positions to women in their structures, whether at the center or at the local level. Nepal has four national parties that got over three percent of the total votes cast in the last general elections. And all four—the Nepal Communist Party, the Nepali Congress, the Federal Socialist Forum Nepal and the Rastriya Janata Party Nepal—are illegitimate in that they haven’t ensured the constitutionally-mandated minimum representation of women.
Women’s representation in these parties is well below the 33 percent threshold required by electoral laws. This is also against the spirit of the new constitution. NCP co-chairman Pushpa Kamal Dahal recently admitted that his party was illegal for the same reason. No other top leader from the four big parties has been so forthcoming. But these parties are all the same: illegitimate. In the 441-member central committee of the ruling NCP, there are only 75 women (17 percent).
Likewise, in the 84-member central working committee of the NC, there are 17 women (20.24 percent). Madhes-based parties, which have strongly raised the issue of inclusion, have also failed to ensure enough female participation in their party structures. The 815-member central committee of the RJPN has only 129 women (15.8 percent) and the 268-member central committee of the FSFN, a coalition partner of the incumbent government, has only 28 women (10.44 percent).
Male cabinets
Women’s representation in the state’s executive bodies is also disappointing. Despite the constitutional provision of 33 percent women’s representation introduced after 2007, there has not been much improvement in female representation in the cabinet. An examination of all the cabinets formed after 2007 shows that women’s representation in them remains frustratingly low. After the promulgation of the interim constitution in 2007, 10 cabinets have been formed but none has 33 percent representation of women.
Even after the promulgation of the constitution in 2015, the number of women in the cabinet has not increased significantly. Women’s representation in key decision-making bodies remains disappointing. Women have generally been relegated to the posts of deputies in local bodies and state ministers in provincial governments.
Chitra Lekha Yadav, a former minister and NC leader, says that the constitutional requirement of 33 percent women’s representation should be fulfilled in all state organs, including in the cabinet. “Political parties have ensured 33 percent women’s representation in the parliament due to constitutional and legal obligations, but they haven’t done so in the cabinet. Top leaders should seriously think about women’s representation in the cabinet as well.”
She adds that women should be appointed to top positions and not just given deputy roles. “Top leaders should think about establishing a system as provided in the constitution. Women have been ensured 33 percent of seats in the parliament, but they are still facing various types of discrimination. Leaders should walk the talk about a prosperous Nepal and happy Nepalis by adopting an inclusive policy.”
The situation is more encouraging when it comes to women’s representation in legislative bodies, where the EC’s mandatory provisions have compelled the parties to ensure 33 percent women’s representation. As a result, Nepal outranks other Asian countries when it comes to female representation in the parliament. A close study of parliaments formed after Nepal’s first parliamentary elections in 1959 clearly shows that women’s representation is increasing, thanks to some strict constitutional and legal provisions. There has been improvement on this front despite the political leadership’s reluctance to provide due space to female lawmakers.
Not enough pressure
“Political parties have given 33 percent of parliamentary seats to women because of pressure from the EC, which rejected the lists forwarded by the parties that did not meet the constitutional requirement. But in appointments to ambassadorial positions and constitutional bodies, the EC cannot impose its decision, so the parties are reluctant to provide due space to women,” says Chanda Chaudhary, an RJPN lawmaker. “Women’s representation in various party structures is depressing. Top leaders are not serious about addressing this problem,” she adds.
APEX investigation also shows that women leaders and members of the civil society haven’t exerted enough pressure on the government and political parties to ensure 33 percent female representation in political appointments. The current scenario is unlikely to change unless women leaders from across the political spectrum come together to build pressure. Our reporting also shows that women with connections to top party leaders are being appointed to important posts, whereas women without such connections, but who are otherwise qualified, are denied such opportunities.
Political parties have generally confined women to secondary roles, such as deputies in local bodies, deputy speakers and state ministers. Top leaders seem to be under the impression that women cannot take up leadership roles or win elections. And until they are convinced otherwise—or are sufficiently pressured to adopt inclusive policies—the situation is unlikely to change any time soon.
