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Almost a year ago I wrote about the Nepal Padayatra 2019, the brainchild of Homraj Acharya to help bring social justice to the millions who suffer from caste discrimination in Nepal. In March last year I met Acharya along with fellow walkers Ashok Darnal and Reeta Pariyar in Kholpur on Day 11 of their 54-day journey. This week, I caught up with Acharya again.

In a brief recap, Acharya explains, “In my earlier work, I came across a lot of caste discrimination in labor-intensive work places. I wanted to find out if this was still the case at the household and community levels: What were the drivers behind continued, although legally outlawed, discrimination and what were the blocks to ending this discrimination? Hence Nepal Padayatra.” And what are some of these drivers and blocks? Overall, the Padayatra team saw that while on the surface equality tends to be practiced, caste discrimination still exists. They witnessed many excuses for this continued practice. Acharya gave the example of grandparents passing down their prejudices to grandchildren, and of social pressure from neighbors and other family members; which perpetuates the system.

As caste discrimination is a touchy and potentially volatile topic, I asked whether there were any incidents on the road. I was told there were threats in some areas and they were aware that if they fell sick naysayers would use this as an excuse to say ‘look what happens when you go against tradition’. Thankfully there were no serious problems and no one got sick.

I wanted to know about the positives of the journey. According to Acharya, meeting and connecting at a personal level with different communities—being welcomed and offered food and accommodation—was the highlight of the actual journey. “Wherever we went, people would come out to listen to us or walk alongside us. We had no real expectation as to how many people would turn up. But by the end of trip the vibration rippled out and over 5,000 people came to meet with us at Baglung,” says Acharya.

Last year Acharya told me the walk was organized entirely without NGO or other funding. To accept funds would be missing the point of the initiative. It turned out the generosity of communities and individuals was enough. Many of those who came to listen were open-hearted enough to give Rs 10 or Rs 20 to this self- and community-funded walk.

Any negatives? Blisters! The least pleasant part of the 54-day walk were the blisters (yes, I saw those blisters even on Day 11). And the permanent damage done to two of Acharya’s toes with all that walking. Sometimes 40 km a day.

What comes next? Acharya tells me he expects the momentum to be kept up. Having reached out to Bipin Sharma, chairman of the Suchana Chautari Sanchar Cooperative Society Ltd, Sharma will be working to galvanize the cooperative machinery in the country. “We need community-led change, whether it be through cooperatives, user groups, cottage industries, clubs, etc. Hopefully a conglomerate of them all,” says Acharya. To ensure this, over the next four years, a ‘compliance fellow’ will be selected, motivated and trained within every municipality. This fellow will then connect the community to the government through talks and discussions, to bring social justice at all levels.

And what of the walkers themselves? Acharya will be involved in working with the potential compliance fellows on social justice, climate change, and local entrepreneurship. Ashok Darnal continues to write about social justice through his journalism and Reeta Pariyar is continuing her social activism.

To see more of their story, you can find them on Facebook under Nepal Padayatra 2019.

All Asian cultures, especially the Chinese, agree disease is caused by an imbalance of elements which make up the human body. Ayurveda recognizes five elements (pancha bhuta) that make up the body. All five elements—air, fire, water, earth, ether—have to be in balance for the body to be healthy. Too much air element can cause joint and bone pains, too much fire element can cause fevers, too much water can cause diarrhea, for instance. Food must always be prepared in a way which balances sattva, rajas and tamas elements for perfect health.

This leads me to theorize that all elements of the environment also have to be in balance for life to be healthy. That is not the case in the current frenetic search for “development.” China is filled with asphalt and concrete, suffocating the earth element. Their factories are fueled by coal and fossil fuel, creating global heating and imbalancing the fire element. Their waterways are overexploited, dammed and full of plastic, destabilizing the water element. Industries spew chemical pollution in the air, imbalancing the air element. CFCs and other dangerous chemicals burn holes into the ozone in the stratosphere, imbalancing the ether element. How then can a dangerous pandemic like the coronavirus not take hold? The environment itself is deranged and out of balance—how can it support healthy life?

Yet this is the same model our communists have triumphantly followed. They don’t want any “feudal” elements in their lives—not the ancient ponds and waterways which were associated with Hindu worship, and which are now buried for building supermalls and commercial complexes; not the forests which sheltered the monkeys and deer of Shiva because they see no profit in taking care of trees and animals; not the temples which hosted ancient gods and goddesses because they are better cleansed for gilded plastic Laughing Buddhas promising prosperity and manufactured in dubious conditions in factories in China.

I was in Patan and aghast to see they’d demolished the Krishna Temple, made of stone and full of carved Vishnus from centuries ago. They had done the same to the JaiBageswori Temple near Pashupati. They are replacing them with shoddy carved imitations which even a first year art student would scorn to make. This is an international art crime that those who are selling and those who are buying will have to pay for, in the not so distant future. Interpol must send out a red alert to catch these criminals.

For Nepali communists, getting rid of two million trees in Kathmandu to widen the roads a few feet has been a triumph of urban planning. Never mind if destruction of greenery has brought severe air pollution, water shortages and a new ominous threat in the form of urban plagues like dengue to the overcrowded city. The feudals were always wrong and always evil, they argue—there is no discussion of how their policies to restrict demographic growth in a small bowl-shaped valley like Kathmandu contained the seeds of urban wisdom, not just social exclusion.

As to how the communists plan to provide water to the rising population of millions there is no answer, other than allowing more and more fossil fueled tankers to go around selling water in plastic canisters, a clearly unsustainable albeit popular strategy which doesn’t have a future in the long run. Will they fund the gravity-fueled dhungay dharas of yore? But there is no tax in that!

How would our comrades make money if they created infrastructure which provided basic services to people at a low or free cost? At the moment, they get to dig up the Melamchi pipes every few months (as they are doing right now in Handigaon). Someone makes a fat profit form this Kafkaesque exercise in digging up a non-existent waterpipe while getting their annual contract from their comrades. I assume this “cake” is cut and shared with the top leaders, not just the local contractor who bid and got the job.

The danger of communism is not just stupidity, which is emptying our country of its cultural heritage, forests and wildlife. It is that their vision of governance is so short sighted, with everything centered around collection of tax and distribution to near and dear ones, that they have created an ecological imbalance of living conditions which makes a pandemic a very real possibility, as we saw with dengue in the summer. Getting rid of them and bringing in a more ethical crew is now a matter of life and death for almost everyone (bar a few) in Kathmandu. Polluted air does not discriminate between rich and poor. Even though your air-conditioned car may carry you through the worst stretch in a seeming environment of pristine air, that security is very, very deceiving.

In custody, Ramraja Prasad Singh was asked of his whereabouts during the 40 days he was underground. He was also taken to meet King Mahendra, after which zonal administrator Bishnu Mani Acharya issued an order to jail him for two and half years. But he was then again taken to the palace. There, he was told to apologize, in which case he would be pardoned. Singh was even told that he would get a position of power. King Mahendra told him: “I’ve found you to be a suitable Madhesi candidate for the post of prime minister. But you please support me.”

But Singh rejected the offer, emphasizing he was ‘not for sale’. Obviously, that made the king angry, so Singh was again jailed. The king was by then convinced that the graduate candidates were unwilling to abide by the Panchayat rule.

Singh appealed before the Supreme Court for him acquittal from treason charges. On knowing that, King Mahendra pardoned him and he was then conferred oath of office as a member of Rastriya Panchayat. But before long, he was again expelled from the house, this time on the charge of ‘contempt of Rastriya Panchayat’. Indira Shrestha was appointed in his place.

In August 1972, Rastriya Panchayat members Krishna Prasad Bhandari and Prakash Chandra Lohani were arrested for giving speeches against the regime at Itumbahal. Both were jailed for 17 months. Former Prime Minister Surya Bahadur Thapa was also arrested for speaking on the same occasion; he did time for 14 months. King Mahendra had died few months before that. When he was alive, he was getting increasingly worried about graduate elections as it had already become a thorn in the ruler’s flesh.

Mahendra’s successor Birendra had been schooled in Darjeeling, gone to college in Britain and then to Harvard for some time. He had also been to Japan for training. The foreign-educated king was expected to ensure the representation of more educated members in Rastriya Panchayat. People thought he would relax the Panchayat rule somewhat, pinning their hope on his foreign exposure and education.

In 1975, work was underway to amend the constitution and liberalize the Panchayat regime a bit. But then Indian Prime Minister Indira Gandhi imposed emergency in India, giving fuel to Nepal’s authoritarians. They started arguing: “The parliamentary system has proved to be a curse in India. Otherwise the prime minister wouldn’t impose an emergency there. We should learn and refrain frombecoming liberal.”

Actually, as Rupchandra Bista termed it, the provision of graduate elections were eating up the Panchayat regime as dissidents were using them to weaken the regime. The rulers would not allow that. Through the constitution amendment of 12 December 1975, the provision was scrapped.

Angered by the treatment of the palace and Panchayat stalwarts, Ramraja Prasad Singh resorted to armed revolt by opening a party named Janawadi Morcha Nepal. Around midday on 19 June 1985, he launched coordinated bomb blasts in the Kathmandu Valley: near Narayanhiti Royal Palace in Durbarmarg, and at the gate of Singhadurbar. The latter killed Rastriya Panchayat member Dambar Jung Gurung and comptroller Bishnu Dawadi. Other members Janak Bahadur Shah, Deep Bahadur Singh, and Bholaman Singh Thapa were injured. The bomb that went off at the lobby of Annapurna Hotel in Durbarmarg killed one and injured two dozen people, including four foreigners.

Singh once again came into spotlight. The Panchayat regime got angrier with him and the Supreme Court handed him ‘death sentence’. He took refuge in India. After the restoration of democracy in the country, Prime Minister Girija Prasad Koirala granted him amnesty on 15 July 1991. Deputy chair of Singh’s Morcha, Khemraj Bhatta Mayalu, became a member of parliament from Nepali Congress.

Singh remained inactive until the country turned into a republic. The erstwhile Maoist party had wanted to make him the first president of republican Nepal, acknowledging his early fight for the republican system. The party fielded him as its candidate for the presidential election in July 2008. He lost to Dr. Ram Baran Yadav of Nepali Congress .The article marks the end of the ‘Vault of History’ series. Thapa will soon return with a new column
on history. 

Bilateral Investment Treaties (BITs) are treaties signed by two countries for the recipro­cal protection of their investment in each other’s territory. The first BIT was signed in 1959 between Germany and Pakistan, according to UNCTAD, and by the end of 2019, more than 3,000 such BITs had been signed. Another critical function of BITs is to promote foreign investment—developing countries and least developed countries (LDCs) that have signed BITs are seen as favorable des­tinations for foreign investment as they guarantee protection to foreign investors, not just under domestic law, but also under international law.However, the global evidence on BITs leading to greater for­eign investment inflows remains inconclusive. Some studies show a positive correlation between the two, while some show negative or no co-relation. The spread of BITs has also resulted in an increase in the number of investor-State dispute settlement (ISDS) claims being brought by foreign inves­tors against the host State. Again, according to UNCTAD, the total number of known ISDS cases till the end of 31 July 2019 stands at 983.

Against this backdrop, this short piece looks at BITs signed by Nepal. According to UNCTAD’s World Investment Report 2019, foreign direct investment (FDI) inflows to Nepal increased from $71 million in 2013 to $161 million in 2018—an increase of over 100 percent in just five years. This is even more remarkable given that in 2014 FDI inflows to Nepal had dipped to $ 30 million.

Nepal has signed six bilateral investment treaties (BITs) with the following countries: India, Mauritius, Germany, Finland, the United Kingdom (UK) and France. Out of them, only four are in force. Nepal’s BITs with India and Mauritius have not come into force. In fact, a writ petition was filed in the Supreme Court of Nepal challenging the BIT that Nepal has signed with India. However, the court quashed this writ because India has already declared its intent not to ratify the BIT.

The BITs signed by Nepal can be described as those belonging to the first generation investment treaties i.e. a template of BITs that were championed by inves­tor-friendly Western European countries. In other words, the BITs signed by Nepal, thus far, contain broad and vague invest­ment treaty provisions provid­ing expansive rights to foreign investors with scant regard to the host state’s right to regulate. These BITs also provide for an ISDS, which allows a foreign inves­tor to bring claims against the host State before international arbitration tribunals.

A good example of a Nepali BIT containing broad and vague substantive provisions is the Nepal-UK BIT. Article 1 of this BIT defines ‘investment’ by relying on an asset-based definition of investment, where investment means every kind of asset. Like­wise, Article 2 of the same BIT contains a broad and vague fair and equitable treatment (FET) provision and a full protection and security provision without providing the normative content of these standards. The BIT also covers both direct and indirect expropriation but does not define or provide any guidance as to how to determine that sovereign regu­latory measures may amount to indirect expropriation.

One of the most important aspects of Nepali BITs is that they contain the ISDS provision. For instance, Article 10(2) of the Nepal-Germany BIT provides that any dispute between a for­eign investor and a host State that is not settled amicably with­in three months of a written notification made by the foreign investor, shall be submitted for ICSID arbitration. The BIT further provides that both the contract­ing States have given their con­sent to BIT arbitration under the aegis of ICSID.

The rising FDI levels to Nepal have resulted in greater integra­tion with the global economy, thus enhancing the chances of ISDS claims being brought by Nepal. Indeed, Nepal has already had its first brush with ISDS in a case known as Axiata and Ncell v Nepal. This case has been brought under the Nepal-UK BIT. The dispute arose due to the imposition of capital gains tax by the Nepali government on Axiata’s acquisition of a com­pany called Reynolds Holding limited from TeliaSonera in 2016, levied on Axiata’s subsidiary Ncell. While the foreign inves­tor has nominated an arbitrator, the Nepali government is yet to appoint an arbitrator. The out­come of this case might affect the trajectory and contours of future Nepali BITs.

As an LDC, Nepal needs FDI to boost its economic growth. BITs can play a role in this regard. BITs can signal to foreign investors that their investment in Nepal shall be protected, not just as per domestic law but also under inter­national law. This would boost investor confidence. However, it is critical for Nepal to ensure that its BITs are not too investor friendly and contain provisions that would allow Nepal to defend its bona fide sovereign regulatory measures adopted in good faith. The future Nepali BITs should strike a balance between protect­ing foreign investor’s money and safeguarding Nepal’s sovereign right to regulate.

It is equally important for Nepal to invest in capacity build­ing to better understand the implications and ramifications of investment treaties and BITs. Such capacity building efforts need to be undertaken at all lev­els—executive, judiciary, legisla­ture, civil society, and academia. A better and deeper understand­ing of BITs and ISDS shall enable Nepali policymakers to internal­ize BITs and ISDS. Such inter­nalization of BITs and ISDS shall allow them to evaluate domestic laws and policies in terms of their compatibility with Nepal’s BITs 

The author is a senior assis­tant professor at South Asian University’s faculty of legal studies. Views are personal