by Apekshya Poudel 13 January 2021
With the new airport construction in Nijgadh, almost around one thousand four hundred houses must be displaced. Consequently, project Fast Track, an ambitious roadway construction of 76.2 km leading towards the Nijgadh Airport, has forced the people of Kokhana to resettle.[i] Nepal has been the first one to ratify the Indigenous and Tribal People (ILO Convention 169) along with the UN Declaration on Rights of Indigenous People (UNDRIP).[ii] However, the newly promulgated Nepalese Constitution 2015 fails to recognize the vulnerable groups and provide them with collective rights.
The rule of law thus is a two-way process between the law follower and the giver.[iii] According to Fuller, the law-followers must be assured that they are treated the same as the law-makers.[iv]This, in turn, encourages followers to obey the law of society. Unfortunately, the Nepalese Government has not paid much heed to the locals’ cultural and economic aspects in the Nijgadh area. Simply put, the state is a political instrument that uses its power to rule one class over the other.[v] The indigenous people are not given any choice or agency; instead, the Government conveniently has decided what is right for the community. The locals are worried that they will not protect their ancient heritage and were strictly against the authorities for not consulting them before moving forward with the construction.
Dominance and abuse by the power-holder usually follow power. Historical oppression and discrimination towards the people of the indigenous communities are deeply rooted in Nepal’s context. Land and forest-related laws in Nepal have negatively impacted the lives of the community by hindering their development. The lack of legal representation of the indigenous community makes it impossible for them to even speak up about their issues, as they are never a part of the decision making process. A significant number of the indigenous groups do not understand the Nepali language making it further difficult for them to be in front of the judicial authorities.[vi] Legal terminologies can only be understood with the help of the lawyers; however, the process of hiring a lawyer for representation also comes with a cost. Michael Kirby, former High Court Judge in Australia, rightly stated that it is only the “well off” people who have access to justice and legal representation in various countries.[vii] On the contrary, the poor, marginalized, and minorities to seek justice has always been a challenge. According to Rebecca L Sandefur, various factors such as race, caste, and social-economic status make a huge difference to an individual’s capacity to access justice.[viii] Fighting for their rights and dignity is a long term struggle, making the vulnerable groups hesitant to approach the court. The disadvantaged and the oppressed communities must have proper representation in the federal courts, and the courts must adopt the idea of inclusivity. Basic human rights cannot be disregarded in the name of economic development programs. In cases where the Supreme Court itself issues the expansion of the road destroying private properties creates a leeway for the industrialists to move forward with their agendas.[ix] The rule of law is seen inapplicable in every situation with examples like this.
Likewise, the indigenous communities often do not suppose their issues as a legal problem. Instead, believe it can be solved through negotiation within the community.[x] However, with the rapid industrialization, the Government does not believe that these marginalized communities have any agency, and thus their grievances remain unsolved. Though the indigenous people are represented by various non-profit organizations such as Lawyers Association for Human Rights of Nepalese Indigenous Peoples (LAHURNIP), International Work Group for Indigenous Affairs (IWGIA), and National Federation of Indigenous Women (NIWF), the marginalized community still faces a lot of challenges.
According to Vivek Chibber, India and Korea both have institutionalists’ view of development through comparative analysis.[xi] The local bourgeoisie has taken over the State, where the administration is adamant about increasing the industrial strategies. Even when Paul Cammack, in his writings, discusses the various difficulties between the classes and their struggle, he does not dwell on why there is a separation between the two groups though they are highly connected. [xii]
Instead of identifying the problems and issues with extreme power within the authority, the administration favors arbitrary decisions. The administrative law ought to discourage the use of excessive power of the dominant population. According to Edward Thompson, human beings are considered a mere chain of units and not considered intellectual and moral beings capable of making their decisions.[xiii] The administrative law must be able to balance fairness and efficiency in society. The growing industries and economy perceive humans as mere objects to fulfill the higher class population’s needs. There are various inhumane intentions hidden behind in the name of industrialization and modern economic society.[xiv]
In developing countries like Nepal, the institutionalists and the industrialists jump to hasty conclusions neglecting its programs’ deeper impact on people. It allows the state to take over the financial sector, and the transaction is just between the state and the capitalist on a personal level. Even if industrialization occurs in the periphery, it does not do away with the hierarchical system in the society, and the vulnerable are always cornered somehow. Judicial access and review is generally an ongoing struggle in the lives of marginalized people. However, the judiciary cannot be made responsible for all the matters at hand. The legislative and executive functions must come forward to solve issues beyond judicial reach. In a system where the administration itself hides behind the veil of mala fide projects and corruption, social action groups help unveil the reality. Even when the judges side with the indigenous people’s rights and dignity, on the ground level, the executive is responsible for ensuring that the theory turns to practical application. There must be an active engagement to incorporate initiatives with a specific focus on the indigenous community over the territories, natural resources, and the lands they have owned traditionally. Land demarcation and titling procedure measures should be enacted by the legislative and the administrative to ensure these fundamental rights. Adequate representation, proper information, and prior consent, inclusivity of the communities’ language must be adopted while undertaking any development project. If the project affects their livelihood by any means, whether public or private, it must be presented before the initiation phase.
[i]Supriya Manandhar, “Fast Track Brings Fear of Displacement to Kokhana,” The Record, (2018) (Last visited 14th July 2020), https://www.recordnepal.com/wire/fast-track-brings-fear-of-displacement-to-khokana/
[ii]ILO Convention No. 169, National Human Rights Commission, http://www.nhrcnepal.org/nhrc_new/doc/newsletter/ILO_169_Implimentation_Report_English_NHRC_Jestha_2076.pdf
[iii] Supra n. 14
[iv] Lon Fuller, “The Morality of Law” (1969) Chapter 2.
[v] Lenin, Cited in Johari (2005)
[vi]Shankhar Limbu, “Why Indigenous People in Nepal Lack Access to Judiciary and Avail Justice?”, Indigenous Voice, (2015) https://www.indigenousvoice.com/en/why-indigenous-peoples-in-nepal-lack-access-to-judiciary-and-avail-justice.html
[vii] Supra n. 06
[viii]Rebecca L. Sandefur, “Access to Civil Justice and Race, Class, and Gender Inequality,” the University of Arkansas at Little Rock Law Review Number 105, 340.
[ix]Kumar Yatru Tamang, “Bulldozing the Rights of the Indigenous People to Expand the Roads in Kathmandu”, Indigenous Voice, (Last visited 14th July, 2020) https://www.indigenousvoice.com/en/bulldozing-the-rights-of-indigenous-people-to-expand-roads-in-kathmandu.html
[x]Rebecca L Sandefur, “Bridging the Gap: Rethinking Outreach for Greater Access to Justice”, University of Arkansas at Little Rock Law Review, (2015) 37(4)
[xi] Supra n.26
[xii] Supra n.26
[xiii]Robert Fine, “The Rule of Law and Muggletonian Marxism: The Perplexities of Edward Thompson,” Journal of Law
[xiv]Hae-Yung Song, “Marxist Critiques of the Developmental State and the Fetishism of National Development,” CKS Antipode, (2013)