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The powers that be Bagmati Action Plan
APR 09 -
The main explanation for the Bagmati’s comatose condition provided by the state is the lack of a legally-empowered body responsible for its revival. A recently-tabled bill in the Parliament is shown off as a panacea; the bill will not only rename the High-Powered Committee for Integrated Development of the Bagmati Civilisation (BCIDC) to the Bagmati Civilisation Development Council, but also give it a legal mandate. While the bill will bring much-needed centralisation of activities and fill certain gaps, it must be emphasised that the BCIDC has not fulfilled its obligations even in its current capacity.
A well-suited plan
Unenforced laws, like untreated water, can be harmless, until stagnation and foul-play create the right conditions for an epidemic. The Bagmati and its tributaries suffer from both. And despite the constitution ensconcing a provision that says a clean and healthy environment is the basic right of every Nepali, those living in the Valley don’t seem to have gained much from it.
In the early 90’s, the NGO Pro-Public filed several Public Interest Litigations against the government to control pollution of the rivers and bank encroachment, including a halt on the municipal dumping of waste in Guheswori, Gokarna and Balkhu; encroachment of river land for the creation of a United Nations Park; and construction of a road that breaks peaceful passage from the temple to the cremation ghats.
In most cases, the Supreme Court decided in favour of the plaintiff, even issuing a Mandamus Order in 2002. But besides shifting the dumping site to Balkhu, and later to Sisdol, the directives have been in large part disrespected.
The legal whip was cracked once more, when in 2004, Pro-Public again filed a case of Contempt of Court, following which the apex court ordered the government to prepare a plan of action. On Aug. 20, 2009, representatives from the five delinquent executive bodies—the Prime Minister’s Office, the Ministries of Environment and Science, Local Development, Physical Planning and Works, and the Kathmandu Metropolitan City—strode through the doors of justice with a well-suited plan in hand, content in the way one would be to discover a pair of fitting gloves tailored for another’s fingers. Regardless of the fact that the National Trust for Nature Conservation (NTNC) had been preparing it as an independent exercise, by presenting the Bagmati Action Plan (BAP) before the judges, the government was committing itself to five years of restoration and conservation work, including efforts that went beyond what was demanded of them such as cultural and heritage activities. The proceedings adjourned with a tentative approval to reconvene within three months to monitor progress. “First we destroy the river, then we make an action plan to clean it up. How ridiculous is that?” Prakash Mani Sharma, Executive Director of Pro-Public, sums up the state of affairs.
New avatar
This is only the beginning of a story that will end not in the court but in our visual judgments. But the narrative which is currently playing out in the court and those government agencies answering to it should clarify whether things will turn out differently this time around.
The BAP points out that “caught amidst a plethora of organizations chasing too many priorities with too little resources, the Bagmati lacked ownership at every level.” Thus, it suggests, “There is an opportunity to strengthen and legally empower the BCIDC to fill the present gap.”
Originally set up in 1995 as a Pashupati area environmental improvement committee, the BCIDC’s mandate was expanded one year later to carry out sewage work along the Bagmati, and it was renamed a year ago.
The BCIDC was established by government order, but currently has no legal grounding, and its members are politically appointed. It can only recommend sanctions for infractions, and though it has a clear work plan, it must seek approval from the concerned departments for anything that it does. As in other examples, entrenched bureaucracy here has meant institutionalised idle.
But, efforts are underway to give the body legal authority. The Bagmati Civilisation Development Council Act, for which the bill has been tabled in the Parliament, is designed to empower the BCIDC with the legal authority it required. Once passed, this new avatar will be an autonomous body with strong legislative powers to control and monitor activities on the Bagmati and its tributaries. Ram Chandra Devkota, member-secretary of the BCIDC, says, “The Council will then have the authority to decide what to do, where to do it and how to do it.”
Final Act
The bill has been tabled in the Constituent Assembly but will not be passed until the new statute constitution is promulgated. A detailed review of the bill offers some insights into what to expect from this new body.
In terms of structural reform, rather than political appointees, the Council will constitute of secretaries from various concerned ministries, heads of the municipal bodies within the Valley, water utility Kathmandu Upatyaka Khanepani Limited, Pashupati Area Development Trust, NTNC, and five more experts identified by the government, including a woman. This Council will draft the policy to be implemented by an executive committee of first-class officers, Director Generals and Chief District Officers. A budget as well as a 0.5 percent cess levied on the purchase and selling of land within the Valley is assigned to the Council, including any independent funding acquired from external donors—similar to the BCIDC’s current financial provisions.
The scope of the new Council’s jurisdiction applies to 50m left and right from the centre of the Bagmati and its tributaries from Shivapuri hill to Chobar gorge. The Council holds the right to punish transgressors within these perimeters, including detailed penalties for various offenses.
Despite these powers, the new body could still get stuck in a political cesspit, especially on the volatile issue of squatters. “We won’t be burning any shantytowns and chasing them (the squatters) away; these are Nepali citizens after all,” clarifies Binod Gautam, Under Secretary (Law) at the Physical Works Ministry. But since the issue is as political as it is sensitive, a separate government policy is being framed for it. According to Gautam, those squatters that fit the criteria of a “squatter”—one who owns no land, is permanently established in the settlement with water and electricity lines, and has the documents to prove this—will be resettled in low-cost housing schemes under an instalment payment agreement with the government.
Smelling success
There are other outstanding issues as well: popular apathy, lack of funds (though India and Baba Ramdev have shown preliminary interests to support the BAP), and the most important—political backing. However, as Gautam says, at present there is definite political will to enforce the plan, as it is a court decision now. “If we don’t act, we will be punished by the court, which for many politicians could cost their careers.” An example of this reactive eagerness can be seen in the progress report submitted to the Supreme Court just last month, in which the government had much to show for itself.
So, while much hope is pinned on the remedial Act, officials privately admit that the legislation’s success hangs on the government’s enforcement of the rules. “Even if the bill is passed, it will still depend on us actively applying it,” Gautam says. Precedent provides the best evidence for this, as Sharma explains, “There is a municipality that could have fined people who were sending their effluence into the Bagmati, as there is a clear-cut law! To me it seems like a lack of interest.” What the Bagmati needs is honest commitment. What will happen when the court case is shelved? Will these planned activities be filed neatly on its side?
Once the law is passed, Gautam sees the Bagmati returning to a state in which “we at least won’t have to hold our noses while walking near the river in five years’ time.” If that is the gauge of success, for us to reach the point where we urge ourselves towards the Bagmati for a fresh breath of air will require sincere efforts beyond what the legal system compels us to do, individually as well.
smriti.mallapaty@gmail.com
Posted on: 2010-04-10 08:36
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