Thomas Hobbes believes that the state’s coercive power and authority are necessary to control irrational or evil behaviors of individuals. In the name of controlling evil behavior, the state often force individuals to accept what it wants and here comes the role of persons like senior advocate Prakash Mani Sharma Bhusal, who has been fighting the cause for public interest.
All the information is not good for him. Senior advocate Sharma has to develop the cases of public interest against the coercive power of the state. For instance, in the recent event in which the Ministry of Tourism, Culture and Civil Aviation decided to clear over 28 million trees from ecologically important sal forests in Bara, has given a new case for senior advocate Sharma, executive chair of Forum for Protection of Public Interest (Pro Public).
As the clearance of a large number of trees will have a devastating impact on the life of people, wildlife and entire ecosystem of Nepal and Bihar, the issue is naturally a matter of interest for senior advocate Sharma.
However, a decision taken by the government with a two thirds of majority is not easy to challenge. Moreover, so many vested interests, who are economically and politically powerful, can act against those who try to prevent their plans. However, senior advocate Sharma made the choice.
At a time when he has been in the final stage of preparing a litigation to prevent demolition of historically important Baghdurbar, the clearance of forest in Nijgadh area is also dragging his mind.
For the last 25 years, senior advocate Sharma has gained his own fame in Nepal as a lawyer to contest any decisions, actions and events, which may be considered anti-public. He covered the entire areas under the universe from the protection of public land to forest, empowerment of women and protecting the heritage and historical sites.
Although he did his masters in commercial law from Delhi University and LLM in Environment from Lewis, and Clark Law School in Oregon, USA in 1999, senior advocate Sharma, a thin and lean person from western region of Nepal, could have chosen to spend a luxurious life, taking up the cases in commercial law. However, he decided to contest the petition against institutions and individuals, who go against anti-public work.
“Had I joined a commercial law firm, it would have given me tons of money, cars and other commercial benefits. However, I would not have had the individual satisfaction. I don’t have money and other amenities but what I have is mental satisfaction, claiming as I do to be a lawyer contesting cases in public interest on environment, gender and such issues,” said Sharma. “Although I have not made money, I have secured respect and recognition globally as a lawyer contesting public litigations. I met former US president Barak Obama and many other political leaders. This is great for me as a Nepali.”
Waking up early in the morning, the first thing Sharma regularly does is to browse news in different newspapers to see if there is any anti-public decision. Along with this, he also receives tips from the people of different walks of life. He remains alert and watchful.
“I have spent my long life challenging the state in one or other cases, including the powerful lobbies. My routine has been going on without any hindrance and obstructions,” said Sharma.
Following the decision of Kathmandu Metropolitan City to demolish Bagh Durbar, Sharma is now preparing a litigation challenging the decision to demolish the palace of historical and public importance. In his litigation, he is demanding for eviction of various government offices, which have been destroying the public property and palaces given them for preservation and use.
“Given the gross negligence and irresponsibility of government offices, many neo-classic Rana Palaces, which are the part of Nepal’s history, are running. They should either be handed over to the public to use it for their purposes. After earthquakes, almost a dozen of Classic Rana Palaces are in ruins and concerned authorities are demolishing them. This is a gross violation of cultural rights of the people,” said Sharma, who was born in Kapilvastu district.
“When I see the deteriorating conditions of Sitabhwawan, Babarmahal, Hariharbhawan, Shanker Bhawan, Administrative Staff College and so many others, I feel personally a shame. Even if we cannot prevent the demolition of Lalitaniwas, Singhmahal and Laxmi Niwas by government offices, given the current trend, I am unsure whether the rulers will preserve Singh Durbar,” said Sharma.
An individual cannot do all these things alone. Sharma established Pro-Public in 1991 with a few like-minded people to contest the issue of public interest and play the role of a social change agent to empower the Nepalese people through research, advocacy, litigation, and capacity building.
Along with public litigations on pro-public issues, pro-public has also been championing good governance, rule of law, transparency and accountability and right to information under the leadership of Sharma.
Pleading on landmark public interest cases through powerful legal precedents and the backing of an international network of public interest lawyers, Pro Public has established itself as the most effective public interest organization in Nepal and around the world.
Starting to plead the case on public interest litigations, Sharma took the first case against the Godavari Marble Industry, whose quarry operations had severely damaged the local ecology and environment of Godavari and Kathmandu.
After battling for almost over two decades, Sharma, who carried the case since 1989, convinced the Supreme Court that ecological diversity of Godavari is unique globally. As he pleaded, the court accepted the right to life enshrined in the constitution, and that polluters infringed on this fundamental right by destroying ecology of Godavari.
After this landmark decision, Nepal has promulgated Environmental Law with a mandatory provision of Environmental Impact Assessment. “This is one of the landmark decisions in my career. Although Dr. Surya Dhungel filed the case first in the court, the court gave more elaborative decisions later, stopping the marble factory,” said senior advocate Sharma.
With its own team of young lawyers, Pro Public established itself as a lead organization, taking a wide range of issues related to environmental justice, gender equality, governance, and corruption. “Our vision is that Nepalese people’s basic rights are guaranteed through social, economic, environmental, and political justice,” said Sharma.
Starting from Godavari quarry, senior advocate Sharma has pleaded on a number of cases to establish himself as a lawyer in promoting and protecting the interest of the people and the country’s culture and natural heritage as well as the rights of the people.
In his career, senior advocate Sharma has pleaded the cases, including Protection of Rani Pokhari (1997). Sharma brought a lawsuit seeking to have the government buildings razed and the area restored.
Protection of the Kathmandu Valley is his another milestone petition. Suing in 1997 against His Majesty’s Government’s Cabinet Secretariat in a sweeping action to stop the well-established pollution of the Kathmandu Valley, the court established his argument that the government needs to give priority to environmental protection and to preventing further damage due to physical development activities.
With growing encroachment of public land by various institutions and individuals, he filed a case against the government decision to sell an unspoiled piece of land in Balkhu to Gorkhapatra Corporation to develop a newspaper office. Sharma challenged the arrangement and the Supreme Court issued an order quashing the sale. The area is now a public park where children can play. After this verdict, there is a wave to protect the public land and he has pleaded on a numbers of other cases.
Bagmati River pollution case of 2001 is his another legal milestone. In his lawsuit, the court issued an order not to discharge polluted water into the river without treatment.
Senior advocate Sharma is also a pioneer to force the government to set the standards of pollution from diesel and gasoline vehicles in Kathmandu Valley. In 2003 the Supreme Court issued a directive to enforce essential measures to protect public health from vehicular pollution in the valley due to emission from vehicles and to conduct essential studies or investigations with a view to prevent vehicular pollution outside Kathmandu Valley.
After a nine-year legal battle led by Pro Public, the Supreme Court of Nepal ordered the closure of all illegal brick kilns in Kathmandu Valley.
Senior advocate Sharma also filed a petition arguing for a ban on smoking in public places. The 2006 Nepal Supreme Court issued order not only banned smoking in public places, but also imposed restrictions on tobacco advertising and ordered public education campaigns on the dangers of tobacco use.
With Sharma’s public litigations, the court has issued an order on the use and management of groundwater resources in the Kathmandu Valley, which are declining due to unplanned urbanization and industrial activities.
Under his ongoing case, he seeks to stop illegal poaching. Sharma has successfully obtained a Supreme Court order mandating the government reinstate security posts and take other measures to protect the rare rhino.
Under his leadership, Pro Public obtained mandamus from the Supreme Court ordering government agencies to stop dumping pesticides near schools, safely dispose pesticides in general, make public areas safer for children and residents, study the impact of pesticides on the health of local residents, provide free medical treatment, and establish a fund for compensation of injured persons.
Senior advocate Sharma is also pleading the case of right to food. Corruption in the government food corporation means that food is not sent at critical times, such as monsoon season. Sharma obtained an interim order forcing emergency food management.
When he read the reports on rampant sexual harassment against the women working in Dance Bar, in 1989, senior advocate Sharma filed a case in Supreme Court. After the hearing, the Court issued a regulatory directive to prevent Cases against Sexual Harassment of Women Working in Dance Bar.
Sharma also launched a campaign for the preservation of Himalayas and rivers. He led a campaign to stop climate change from devastating Himalayas and melting the glaciers which are the life lines of South Asia.
After listing his argument, the World Heritage Committee acknowledged the climate change problem, but it bowed to political pressure and refused to grant the petitions. UNESCO did publish findings from its major study in 2006 as a report to the U.N.
Challenges for Sharma
Although numbers of decisions are taken by the court, inaction and corruption in government offices prevent the implementation of court’s verdict with its own spirit and word.
Sharma has started contempt as a tool to enforce the decisions. In some cases, the Supreme Court has directed the government agencies either to enforce the decision or face contempt.
“Contempt is an effective tool for enforcement. We have been using this tool to enforce the verdict given by the court,” said senior advocate Sharma.
Under a climate justice tour, and talks in the United States, hosted by Friends of the Earth in Washington, D.C, he met and spoke with a number of senators, including Barack Obama.
In the lead-up to the Copenhagen climate talks, Sharma also completed a tour of Australia, traveling with world-record climbers Pemba and Temba to speak at public forums in Sydney, Brisbane, Canberra, and Melbourne about the impacts of climate change.
Even over twenty years long journey, the senior advocate continues on his mission. With his age going up, he is promoting young lawyers who want to continue the mission of his and Pro-Public.
He has also an interesting story to tell. The name pro-public is the brainchild of Ratnakar Adhikari, who coined the name to pursue the mission of senior advocate Sharma. “When we were discussing a name, Ratnakar jee coined the name for our organization. With its own building now, Pro-Public needs not to go for funding to contest any pro-public litigation.”
Sharma shows no signs of slowing down in his relentless campaign for a clean, green, just future for Nepal and a solution to the problem of climate change. He expresses happiness that his alma mater has excellent course offerings in environmental justice, and he welcomes the Law School’s environmental law students and alumni to visit Nepal to learn more.