Nepal | January 22, 2020

Editorial: Controversial law

The Himalayan Times

As the Federal Parliament has already passed the Forest Act, the constitutional bench in the apex court should look into its veracity

The very essence of federalism is to devolve the central powers to the sub-national governments so that they can function independently to judiciously utilise the resources that they have for the well-being of the people living there. The idea of federalism was incorporated in the new constitution in line with the second Jana Andolan as the centralised rule practised for long failed to uplift the living condition of the people across the country. The Constitution of Nepal promulgated in 2015 has clearly defined the roles of the central and provincial governments as well as the local levels along with their powers and jurisdictions. There are some concurrent powers, which need to be shared between and among the three tiers of government in the true spirit of mutual cooperation and coordination, and the constitutional bench in the Supreme Court has the right to settle any disputes that may arise among them in the course of implementing federalism. The centre should not interfere in the jurisdictions of the provincial governments and local levels, and the Federal Parliament should also carefully examine whether the powers of the provinces have been encroached upon before it passes any federal law.

However, the centre seems to be half-hearted when it comes to giving powers to the provincial governments. The Forest Act-2019, recently passed by the Federal Parliament, is a case in point to prove how the centre has encroached upon the jurisdiction of the provincial government. After the Act was authenticated by the President, the Ministry of Industry, Tourism, Forest and Environment of Province 2 moved the Supreme Court against the central government,
demanding the Act be made null and void as it contradicts the constitutional provision. Bechan Chaudhary, assistant forest and soil conservation officer at the provincial ministry, filed a writ petition at the apex court on behalf of the ministry on Monday.

The petitioners, citing Article 232 (1) of the Constitution, has argued that the federal government did not coordinate with the Province 2 government before enacting the Act, which has violated the powers and rights of the provincial government. While the federal government can enact laws on issues related to its exclusive powers, it, however, cannot do so on the issues of concurrent powers listed in the Constitution. Issues related to management of provincial forests and other natural resources are governed by provincial laws. The Act has also defined provincial forests as national forests, hence, placing the powers for their management under the federal law. The executive powers given to the divisional forest officer also contradict the constitutional provision. The provisions related to the determination, management and ownership transfer of provincial forests fall within the province. However, the Act has brought even the provincial forests within its jurisdiction. This is the major flaw of the Act. The forests can provide immense job opportunities at the provincial level provided that they are managed well in line with the national strategy. Devolving powers to the provinces will strengthen their institutional capacity and ultimately empower the people at the grassroots level.

For tough punishment

Seven years after the crime took place, the Supreme Court has sentenced two youths to 11 years and six months each in prison for the gang rape of Pooja Bohara (name changed) by overturning the then Mahendranagar Appellate Court’s acquittal. The disturbing incident apart, the road to justice has indeed been a very long ordeal for Bohara, what with the then Mahendranagar Appellate Court overturning an earlier sentence of 13 years to each of the offenders by the Baitadi District Court, citing lack of evidence. The girl had been raped while on her way to sit for the SEE (class 10 government exams) in the far western hill district on March 12, 2012.

A sentence of 11 years and six months would seem like a long period of time to everyone. But for someone who has lived through the trauma and might continue to do so throughout her life, the punishment to the perpetrators of the crime seems light. While the victims of heinous crimes, such as rape, would want severe punishment like the death penalty, this, however, is not feasible as the country has abolished it. But then, could we have laws that provide more stringent punishment to deter would-be perpetrators from committing horrific crimes?

A version of this article appears in print on November 20, 2019 of The Himalayan Times.

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