A. Name, objective and reason of the bill is unclear:
The name, objective and reason for the bill is unclear. The objective and reason behind bringing the bill has been mentioned as such : for the implementation of the Convention on the International Trade on Endangered Species of Wild Fauna and Flora to which Nepal became a signatory in 1973 and to regulate the international trade of rare, endangered, and protected species of wild fauna and flora. The term “trade” mentioned in the Act indicates that the bill has been created for trade itself and that trade can be conducted but certain terms and conditions have to be followed inorder to do so. It would be more appropriate to use another term instead of trade, such as the “illegal transport/or smuggling of”.
B. Leeway to do anything if permit papers have been obtained: As the Act allows for the trade of rare wild fauna and flora after obtaining permit papers there is the possibility of illegal trade on the basis of obtained permit papers. The provision in Article 3, sub section (2) which states “Whatever else is written in subsection (1), if permit papers have been obtained rare wild fauna or flora or samples of such can be kept, utilized, exported, transported, or wild fauna can be raised, or rare wild flora planted, cultivated, or samples of such wild fauna and flora produced for the purpose of academic research, investigation, testing, training, exhibition, conservation education, bio-diversity conservation or educational purposes, remaining within the mentioned terms and conditions,” clearly indicates towards this. If this is the case it can also mean that if permit papers can be obtained anything can be traded. How many of such items or samples of such items can be produced? How many shouldn’t be allowed to be produced? This is not clear in the Act. As no limit for production has been defined it could lead to the illegal smuggling [of the produced item].
C. Sub sections (2) and (3) of Article 4 has provisions detailing whether it is appropriate to give permission for the plantation, cultivation, or nurturing of rare wild fauna and flora or samples of such, or the keeping, use, or production of such wild fauna and flora or samples of such, or for the export or transport of such. Likewise Article 4 sub section (4) has provided provisions for [mandatory] consultation with a scientific agency for the purpose [mentioned above]. However there are no clear provisions defining why such wild fauna and flora can be produced, used, or traded. The only reason that is mentioned is scientific study and investigation. One single such provision cannot fulfill the objectives of the Act.
(1) Subsection (6) of Article 4 provides for appointing necessary conditions while issueing permit papers as under sub-section (5); the managing agency may mention the necessary criterias and methods that are to be adopted while nourishing or raising such wild rare fauna, planting or growing such rare wild flora, or producing, keeping for self, or using, and/or mediums that should used for transporting, methods of keeping it in the vehicle, routes of transport, residences, while exporting or importing such wild rare fauna and flora, or samples of such, and/or necessary conditions for using such wild fauna and flora. The provision of keeping conditions that are not legally defined but are termed necessary can be mis-used. If the Act does not clearly indicate the conditions the implementor can appoint the conditions as per their will and misuse it. Therefore the conditions must be clearly fized in the Act itself. That is why this provision allowing trade on the basis of permit papers is therefore unclear.
D. Provision of right to estimate with terms such as “as appropriate or as appointed”
· It can be seen that the permit papers for trade can be issued by the concerned officials on the basis of his/her personal assessment. This sort of assessment rights should not be given to an individual because it makes the individual autocratic and self willing. Subsection (3) of Article 8 states that “Upon verifying requests made under sub-section (2) by consulting with scientific agencies if the managing agency considers it appropriate to issue permit papers, the managing agency may issue permit papers in the prescribed style to the concerned individual, organization, or agency to nourish or raise such wild fauna, or plant or cultivate such wild flora or produce or keep with self, or use, or export or import such wild fauna and flora or samples of such.” This provison clearly indicates that assessment right has been given. The term “as appropriate” is not defined word. Undefined terms in the legal system cannot give defined justice. The provision of “as appropriate” can allow the official the right to do whatever s/he pleases. It is necessary to make this clear and visible. There are many such places in this Act where many undefined, unclear and repeated terms have been used.
· It is necessary to define the works and responsibilities of the scientific agencies in the Act clearly. By simply stating in Article 13(3) that “the other works, responsibility and rights of the scientific agency shall be as appointed” the Act has not directed the scientific agency in a clear manner. Laws should not be made undefined or confusing with double meanings. This not only adds to the confusion but also to decisions being made on personal whim. If laws are made to be implemented on the basis of an official appointing the law then the maker and implementor of the law are the same. If the person who is supposed to implement the law is given the responsibility of also making the law s/he will make the law so that it is easy for him. The works, responsibility and right of scientific agency which plays the important role of implementing the law, must be better defined and appointed in the Act and law itself.
Restricted rights to Regulation and Directives: Article 30 and 31 of the Act has given the government the right to make the regulation and directives. It is not good to give the government the rights to make decisions on such an important and crucial matter. Giving the concerned offices and government departments the right to frame the regulations and directives allows for vested interests to be given prominence. Therefore all the necessary conditions and systems must be provided for in the Act.
Except for those matters that cannot be done by the Act and must be made by the government, all others must be specified by the Act. If the implementing agency is given the responsibility of also making the policy such an Act will not be able to give justice. Therefore the government should not be given rights other than those necessary for the easing of the implementation of the laws. Also it is necessary to clearly state in the Act the subject areas in which regulations can be made.
Crime and Punishment : Legal freedom gives space for self – fulfillment: Actions prohibited by Act, and punishments accorded have been provided in the subsections of Article 15.
Social and cultural impact of the Act
Any act, law, or regulation must be made to make the life easier for people and not to further burden them or create hurdles. Although Acts and laws are made for society many are actually harming society.
As per the theory that “the people and the state are and should be the protectors of wild fauna and flora” mentioned in the preamble of Convention on the Illegal Trade of Endangered Species (CITES), the people must be made aware of why it is necessary to protect wild fauna and flora the benefits of doing so. To do so there must be better relations between the people and the state.
However there are many examples of policies and regulations made for the protection of forests, national parks, wild fauna and flora benefitting illegal traders and smugglers instead of the people and the state. The carelessness of forestry user groups, poaching of protected wild fauna, lack of compensation for people re-settled from protected areas are negative examples. Below is a short analysis of whether past mistakes have been corrected in the present version and the impact of past experiences on this Act.
· Protected forests which cover 2785.7 square kilometers make up 18.81 percent of the total area of Nepal. In a country like Nepal where there are rising problems of landless, bonded laborers and poor farmers the idea of protecting, (and that too without getting direct income) more forest/land cover, wild fauna and flora than is necessary is itself debatable. It is not clear how much income is generated from protected forests. And neither is this income directly connected to the people.This directly and indirectly benefits those who are involved in poaching and corrupt government officials and has not been seen to aid others.
· If wild animals from protected national parks kill people the compensation given to the family of the victim is nothing compared to fines and punishment people convicted of killing protected wild animals. This has valued wildlife more than human life. No animals life can be more valuable than human life. The law needs to be more people oriented and not more animal oriented.
· Communities living outside and around protected forests and national parks are often the victims of the protected forests. The water, land and forests make up a major part of their livelihoods but laws and acts brought without consultation with the concerned communities force the people there to resettle from their location.
· Permits for even simple limited activities such as fishing, gathering fodder and firewood are not renewed on time, fishing permits are issued to Indians. Such actions cause the local community to be deprived and discriminated.
(B) Protected mammals of Nepal:
Several animals listed in Appendix 3 and 6 of CITES and also protected by the laws of Nepal such as the Garui Gai, Wild Yak, Hisping Hare, Royal Stag, Musk Deer, Pygmy Hog, Pandolin, Black Buck, Water Buffalo, are also used by the local community where the animals are found for consumption and even medical cures. These animals are usually found in the Himalayan or mid hills region and are used by the people of the area. The mountains and hills of Nepal are inhabited by people from various indigenous communities who have been traditionally using such animals for food, medical, commercial (and cultural) purposes. Prohibitng the indenegous communities from using such could be unjust for them and could violate their right to food. Further because many animals are consumed for medical purposes and not just as food it also violates their right to live. Laws should complement society's faith and culture and not oppose them. Care should be taken to understand what cultures adorn societies. Because laws are created on the basis of prevalent cultural and reglious values the faith, culture and traditions of local concerned communities and societies should be kept in mind while creating laws.
Many of the laws and regulations created for the protection of forests and wild fauna and flora hafve not been able to fulfill the desired objectives. If this bill is to achieve its objectives consultations must be held with concerned local communities, individuals and agencies that are likely to be affected by the making of the laws.
This working paper was presented in the interaction programme organized by the Nepal Constitution Foundation on 23 Kartik 2069.
This investigative paper was prepared by advocate Ram Bahadur Thapa Magar for the Nepal Constitution Foundation with inputs from women, indigenous communities, Dalit, Madhesi, youth, and other concerned pressure groups. The Foundation is grateful to Sushila Nepali, Mhammad Siddiqui, Sunil Kumar Pariyar, Apsara Chapagain, Angdawa Sherpa, Ram Kapali, Sita Gurung, Chandrika Prasad Yadav, Shyam Kumar BK, Dr. Ravi Sharma Aryal, Dr. Udaya RajSharma, Barna Bahadur Thapa, Phurpa Tamang, Ambar Prasad Panta, Padam Bahadur Shrestha, Abhishek Adhikari, and Bipin Adhikari.
This research has been supported by The Asia Foundation and opinions expressed in this report are of the authors and don't necessarily reflects of The Asia Foundation.
The suggestions given by various experts have been amalgamated in this report.
Those who raised points on the working paper were: Dr Ravi Sharma, Udaya Sharma, Apsara Chapagain, Chair Forestry User Groups Federation, Karna Bahadur Thapa, former CA member Chandrika Yadav, advocate and environmentalist Padam Bahadur Shrestha, Dean Legal Department Amar Panta, former CA member Mohammad Siddiqui, advocate and indigenous peoples rights activist Furpa Tamang, former chair of Federation of Community Forestry User Groups, Sunil Pariyar, former CA member Angdawa Sherpa, Shyam Kumar Biswakarma, former CA member Sita Gurung, Ram Kapali and Abhishek Adhikary.