Unit 4 and 5

NEPAL’S JUDICIARY AND

ENVIRONMENTAL
PROTECTION
 Role of judiciary

• What happens to the conflicts that are related to

the environmental issues?
• What is the role of judiciary/courts in handling
the conflicts related to environmental issues?
• How effective has the role of Nepalese judiciary
been in tackling the environmental issues?
• Has the Nepalese judiciary contributed
significantly to the improved environmental
quality or human health?
 The Nature of conflicts
Sources of conflicts
• Conflicts due to lack of information and
scientific uncertainty, different interpretation and
opinions of the same information,
• Conflicts over values arising from different
cultures, ways of life, morals and ideologies
• Conflicts over Interests of parties- such as
involving benefits and losses of an issue
• Conflicts over relationships where strong
emotions are mixed up with merits/demerits of an
issue
• Structural conflicts that arise due to unfair
balance of power such as in funding, resources
distribution
 Environmental conflicts and judiciary

• Constitution of Nepal 1990 does not distinguish

the presence of ‘Environmental court’ in Nepal.
Although, Nepalese judiciary has exhibited
concerns about enacting more Environmental
Acts in Nepal.
• The conflicts related to environmental issues are
presented to the “concerned authority”- such as
District Forest Office for conflicts related to the
use of forest resources in a community.
• Nepal’s supreme court looks after conflicts
related to environmental issues on the basis of
Public Interest Litigation (PIL).
 Incidences of PIL on environmental issues
• Ministry of Forests and Soil Conservation (MOFSC)
regarding Forest fire and deforestation: Action was ought
from MOFSC by a petitioner. Complain rejected because no
constitutional and legal right of the petitioner were violated.

• Right to information about the Arun-III hydropower project:

Petition filed because the activities and the impact of the
project were not transparent. Petition rejected because the
petitioner was not specific about the demands.

• The Medical College case: Government's decision to lease

land to the Medical College was quashed because the land
was of national, religious and archaeological importance.
The government was made to consider options.
 Incidences of PIL on environmental issues
• Godawari Marble case: Complain accepted by the court and
locus standi was issued to the petitioner based on the spirit
of EPA 1997 and recognition that “right to clean environment
is the right to life”. However, no remedy to the petitioner as
the petitioner failed to specify clear legal provisions.

• Mid-Regional Police Building at Rani Pokhari case: petition

was filed because the construction was a threat to natural
and historical heritage. But the building was approved
because the impact due to vehicular emission and
movement without the building was more significant than its
construction.

• Shree Distillery Case: Petition made citing the pollution it

caused. Court directed the DAO to make the company
implement the written commitments to environmental
protection.
 Incidences of PIL on environmental issues

• The plastic bag case in Kathmandu:

Supreme court ordered the MOPE to carry
out and investigate the impact of plastic
bags onto the human health and the
environment.
• Pollution tax on fuel: Supreme court
ordered the government to collect 50 paisa
on every litre of fuel sold for environmental
protection.
 Courts and Environmental Disputes
Merits
• Independence and integrity of the judiciary is
maintained
• Reliability of evidence can be tested
• Compliance to the law

Demerits
• Presentation is more important than the facts; uses
powerful statements and arguments
• Scientists cannot put their arguments to each other
but through lawyers who are not scientific experts
• Gives rise to win and lose situation (because of
competition between/among parties) which is not
always fair in environmental conflicts
• Costly and time-consuming
 Conflicts and outcomes
Principles of successful outcomes of conflicts:
• The results are fair and consider the interests of
the parties
• The agreement is reached quickly, at low cost, is
acceptable and legally enforceable
• The decision-making process provides the basis
for future correspondence in case of conflicts of
similar nature

 There is no single universal dispute resolution

technique applicable in all cases of conflicts
 Alternative Dispute Resolution (ADR)
ADR is a structured but less formal (than the
courts) approach to (environmental) dispute
resolution that aims to;
• achieve settlements and satisfactory resolutions
of disputes through mediation and negotiations
 you don’t get what you deserve; you get what
you negotiate
• reduce costs and delays, and increase simplicity
and efficiency
 Applicable to situations/conflicts where cause
and effect relationship and the stakeholders are
not as obvious
 Approaches to ADR

• Arbitration: dispute is submitted to a third party

that has expertise in the subject matter. Parties
select the arbitrator and bound by his/her decision
that are made after reviewing the evidence. The
parties cannot withdraw from the process once it
commences.

• Mediation: a structured and confidential process

involving a mediator who assists to derive the
parties a compromised agreement. Mediator is
not empowered to impose any decision but only
facilitates the process. Parties may ‘walk away’
 Approaches to ADR

• Mediation-arbitration: combines Mediation

& arbitration. The med-arbitrator first acts
as a mediator and then as an arbitrator.

• Independent Expert Appraisal: Use of a

third party with expertise on the subject
matter of the dispute who reviews the
case with additional research on the issue.
The decision is non-binding and provides
parties with a basis for further negotiation
 Advantages/disadvantages of ADR
Advantages:
• A quicker and less expensive process relative to
the courts
• Produces results where each party is a winner
• Relationships of parties are enhanced
• Greater range of remedies can be explored
• Parties can formalize their own procedure- less
formal
Disadvantages:
• ADR erodes the rule of law,
• Unjust outcomes may emerge if there is a power
imbalance between/among parties
• Efficiency of ADR has not been demonstrated
 Courts and ADR compared
Judiciary (Courts) ADR

•Rights-based • Mostly interests-based

•Circumstances based •Focuses on the source
•Strict and more formal of the conflict
•Outcome is right or •Flexible and less formal
wrong (win or lose •Fair outcome (win-win
situation) situation)
•Strong role of the law •Strong role of parties in
and lawyers the conflict