Thursday, June 9, 2022

Supreme Court’s Mandamus and Nijagarh Airport

There was a cattle grazing ground at the border of three towns of Kathmandu valley, namely Kathmandu, Patan and Bhaktapur, which was called Gauchar. In 1949 a 4-seater, vintage Beechcraft Bonanza aircraft carrying the then Indian ambassador landed in this field for the first time. Then chartered flight service was conducted from here to Calcutta in 1950. The ground was named Tribhuvan Airport in 1955 and renamed as Tribhuvan International Airport in 1964. In view of increasing passenger volume, it was felt that Nepal needs a second international airport and preliminary study identified Chitwan, Dang, Nepalgunj, Biratnagar, Pokhara, Bhairawa and Rudrapur in Lumbini as potential sites. Finally, 8 thousand 45 hectares of dense forest existing in ward no 8 of Kohalbi municipality and ward no 1 of Jitpur Simara municipality was identified as appropriate location, entailing razing the forest here. On the north of this forest lies the Parsa National Parks connected with Chitwan National Park. Adverse Impact on Environment The environment impact assessment (EIA) report conducted in the area has identified the place as a dense forest consisting of (a) Sal forest, (b) Tarai hardwood forest and (c) Khair-Sissoo forest. EIA states that to clear this forest 2 million, 450 thousand 319 trees of various sizes will have to be felled. From the perspective of natural regeneration, the proposed area has over 3 thousand 9 hundred seedlings per hectare, which is more than 5 times the established norm of 700 saplings per hectare. Therefore, this is the best quality forest. There exist 22 species of endangered plants requiring conservation according to international treaties that Nepal has signed. EIA says this forest is rich in bio-diversity and has identified 23 different kinds of mammals, viz. leopard, jungle cat, elephant, gaur bison, tiger deer, barking deer, wild boar, monkey, jackal, etc., most of which are in endangered/protected list. As there are more than 500 species of avian fauna, the forest is rich in avian diversity too Impacts of construction activity in this forest inter alia are change of land use, air pollution, operation of quarry sites, change in the drainage network, soil erosion, air pollution and changes in surface hydrology, ground water hydrology, micro climate etc. that cause climate change impact. EIA has also identified noise pollution and according to ICAO no runway should be built close to the wildlife park. Involuntarily displaced people can be resettled. But no resettlement of wildlife is possible after razing a forest. EIA expects the wildlife after deforestation to move to Parsa Wildlife Park. But no human can direct wildlife to change their habitat, especially in view of the fact that this forest is in the middle of two national parks. For that very reason this is an integral part of Tarai Arc Landscape (TAL) which would afford wildlife to migrate in the natural course. There is no dense forest in or near Jhapa district. But the inhabitants there are attacked by herds of wild elephant time and again causing death and destruction. Similarly, a number of collisions between aircrafts and wild boards have taken place in Nepalgunj airport, although no dense forest exists near this airport. Even Kathmandu airport suffers from bird hits time and again due to garbage dumped nearby. In this backdrop, if an airport is built right in the middle of dense forest and two national parks, collisions between wildlife, men and machines could be fatally frequent. Besides, one should not lose sight of the fact that most tourists visit Nepal attracted by the diversity of wildlife, avian fauna and endangered plants. The Mandamus A public interest litigation (PIL) was filed by some forest conservationists and environmentalists led by Ms. Ranju Hajur Panday Chhetri in December 2019 objecting to planned deforestation of over 8 thousand hectares of a dense forest, comprising of endangered plants and endangered/protected wildlife, to build a new airport that would cause irreparable damages, although alternative site near this forest was available. The Supreme Court’s expanded full bench comprising 5 justices, on 26th May 2022, issued a mandamus order to GoN pursuant to Forest Act, Regulation, Environment Conservation Act and jurisprudence quashing all decisions related to construction of airport in the forest of Nijagarh and directed to find alternative site for the purpose and also nullified the EIA report and its conditional approval by GoN. Due to this mandamus the proposed airport has become controversial, while the environmentalists and conservationists are happy. But most government officials, political parties/leaders and parliamentarians are enraged. Similarly, most intellectuals, businessmen and journalists disagree with the mandamus. GoN went ahead and included a provision in next year’s budget, announced on 29th May 2022, to build this airport. Further, the parliamentary committee on International Relations and Labor has directed GoN to construct the said airport expeditiously after removing legal impediments. In view of the situation the judiciary on the one hand and the legislature and executive of the country on the other have come to loggerheads. It should not be forgotten that if GoN defies the mandamus, it can attract punishment on contempt of court under Article 128 (4) of Constitution of Nepal. As parliamentarians enjoy freedom of speech in the parliament as a privilege under Article 103 (1) of the Constitution of Nepal, they cannot be prosecuted for their statements in the parliament. But if GoN is to initiate the construction, the GoN could be prosecuted and penalized for contempt of court. This also would create a constitutional crisis. Further, it would also establish a wrong precedent that allows razing dense forest to construct infrastructure. Therefore, it is important to contemplate whether it would be prudent to build an airport after razing a dense forest and displacing wildlife from the Nijagarh forest. Development unfriendly Judiciary Former premier Dr. Bhattarai said that the judiciary of Nepal is not development friendly. Many politicians, bureaucrats, intellectuals, businessmen and journalists are demanding review of the said mandamus. But according to Section 11 (3) (b) of Judicial Administration Act the verdict of the expanded full court of the Supreme Court comprising 5 justices is not subject to review. Besides the Court had not issued the order at whim or caprice. The verdict is firmly based on Environment Protection Act passed by the parliament and Environment Protection Regulation framed by GoN since EIA was conducted in accordance with these. Besides, as the project entails felling huge numbers of trees, the verdict is based on Forest Act, an enactment of the parliament and Directives for Use of Forest Land for National Priority Projects formulated by GoN. In other words, if GoN had conformed to these acts and directives, the Court would not have to issue such an order. Rush to Raze the Forest No requisite preparation has been made to initiate construction of the airport, but GoN is in great rush to raze the forest in the designated site. GoN had already signed an MoU with Nepal Army 5 year back. Before starting to construct an infrastructure, following basic elements have to be ready: • Detailed feasibility study should be available. GoN had assigned this study to Landmark Worldwide based in Korea in 2011 but due to a payment dispute GoN is yet to receive a full report. GoN merely has an executive summary of the report. • Detailed Project Report (DPR) should have been prepared. But GoN has yet to commission the work. • GoN should have decided the modality as to how to construct the airport and arrange financial sources. No work has been done in this respect. • In order to use forest land for construction works, the same quantum of land near the project, adjoining national forest of similar geographic/climatic condition with similar nature should have been made available pursuant to Section 42 (2) of Forest Act. Meaning, GoN should have prepared 8 thousand hectares of land, near the site, adjoining national forest of similar geographic/climatic condition with similar nature, for planting of trees in replacement of the trees that are to be felled. Nothing of the sort has been done. • Section 42 (5) says if GoN in lieu of land for replacement forestation, it can provide funds to arrange 8 thousand hectares of land. No budget has been appropriated for the purpose. • GoN is required to plant 25 times the number of trees felled according to directives approved by the cabinet. As the plan entails felling of 2.45 million trees, GoN would be required to plant 61.2 million saplings, which would require 38,294 hectares. GoN has made no provision for this either. In this backdrop, GoN hastening to start felling trees in 8 thousand hectares of dense forest has not only made environmentalist, conservationists suspicious and concerned, but the general public also has become apprehensive. Deforestation in 80 square kilometers The airport in Kathmandu consists of 356 hectares and 7.2 million passengers passed through it in 2018. Contending that this airport would not be able to handle further increase in passenger volume, it was decided to build an alternative airport. But the important question is whether it is necessary to build an airport in 80 square kilometers (8,045 hectare). Hartsfield-Jackson International airport in Atlanta, Georgia, in the USA comprises 1,900 hectares but it can handle 110 million passengers. Similarly, Tokyo Haneda International airport was used by 87 million passengers, which is built on 1,214 hectares. China has built a new airport: Beijing Daxing International airport in 2,679 hectares which is expected to handle 72.5 million passengers by 2025. In this backdrop it is dubious that Nepal needs an airport on 8,045 hectares. According to EIA the physical infrastructure required for the international airport can be built on 1,300 hectares. “Smart city” is to be built on the remaining 6,745 hectares. The question that arises is whether it is prudent to raze a dense forest to build human habitation. Fast Track and Nijagarh Airport Some have even opined that the Fast Track under construction will lose relevance if no airport is built in Nijagarh. Initially only Tribhuvan Rajpath existed to connect the capital city Kathmandu with Tarai, travelling and transportation which was expensive in terms of time, energy and cost. The problem was alleviated when it became possible to travel via Mugling. After Fast Track is completed the cost in terms of time, consumption of petroleum products, repair and maintenance of vehicles, etc. will be reduced by a magnitude, which in turn will reduce balance of trade and payment deficit. Moreover, travelers are wasting an inordinate amount of time to travel to and from Tarai. Fast Track would also alleviate that by a magnitude. Therefore, the relevance of Fast Task will not be over even if the airport is not built in the dense forest of Nijagarh. Indian “hand” India calls herself the nearest and dearest neighbor of Nepal. But she has so far imposed 4 economic blockades; the last one in the immediate aftermath of the devastating earthquake of 2015. In this backdrop it is worth examining the alleged Indian hand behind the Supreme Court’s mandamus. Some have even suspected world power behind it. Firstly, this outburst amounts to outright contempt of court and is punishable under Article 128 (4) of the Constitution. The foundation of the judiciary lies in the faith and confidence of the public, which could erode by such outbursts. As explained above the Court has handed down the verdict on the basis of enactments of the parliament and regulation framed by GoN. Further, documentary proof/evidence to establish foreign hand behind the mandamus has not been made available. In fact, India has expressed its eagerness to help build this airport time and again. In 2017 the then External Affairs minister of India, Sushma Swaraj said that India is willing to assist Nepal in this respect. Even Indian premier Modi has expressed his willingness to build this airport when he met Nepal’s premier Deuba in 2017. Meaning India wishes to benefit by helping Nepal build this airport estimated to cost US $ 6.56 billion; by investing, grabbing construction/supply contracts for the airport, which would result in her earning return on investment and profit from construction/supply contracts. It is unlikely that India would be willing to provide a grant. Therefore, it is highly unlikely that India would wish against Nepal committing this blunder. India thrives on blunders committed by Nepal. Moreover, India is upset that Nepal has involved Chinese contractors in the construction of regional international airports in Pokhara and Bhairahawa to the extent that premier Modi flew directly from Kushinagar airport in India to Lumbini by a helicopter; he did not even step in the Gautam Buddha regional international airport. Some opine that deforestation in Nijagarh would have adverse impact on India, and hence, the mandamus. This is very convoluted logic. Nepal would suffer primarily. Primary adverse impact of the razing dense forest in Nijagarh will befall on south Bara and adjoining districts. The adverse impact in India will be of lesser magnitude. Seeing the Indian hand behind the mandamus is like stopping one from setting fire to his own house because of the risk to the neighbor of smoke. Basically, it is for the Indian Supreme Court to take care of adverse impact in India and Nepal’s Supreme Court is concerned about adverse impact solely in Nepal. Residents of Bara Subsequent to the issue of the mandamus, residents of Bara district have become agitated and promised to continue till the verdict is reversed. Looks like the residents are not aware of the serious and grave environmental adverse impact of massive deforestation in Nijagarh on southern Bara, which could even result in desertification. As a result of such massive deforestation there would be no ground water recharge and landslide, erosion of topsoil would become common. It is said that stopping deforestation alone can mitigate one-third of the climate change problem. Whereas deforestation causes excessive rain, drought, huge cyclones, unduly high heat, which can result in damage of human beings and property. Controversial EIA The EIA itself has become the center of controversy saying that it is based on cut and paste of EIA prepared for some hydropower project. In Chapter 7, while exploring alternatives, it says in section 7.3 that “Nepal has accorded high priority for the development of hydro-electricity projects both at public and private sectors. The project will generate environmentally-friendly clean energy and will contribute to the socio-economic development of the country.” Due to this people are doubting the authenticity of the EIA. Lesson from Sri Lanka Sri Lanka is in a serious economic crisis and it has defaulted debt service. Some in Nepal are wrongly finding similarity in the economic problems of Nepal with that of Sri Lanka. Nepal’s economy has not worsened that much. Sri Lank is now on the verge of bankruptcy. Food, medicine, petroleum products including LPG, etc. are scarce and load shedding is rampant. The cost of living has skyrocketed. But we in Nepal need to be vigilant to ensure that the same fate does not befall us. The Mattala Rajapaksa International Airport in Sri Lanka, inaugurated in 2013 at the cost of US $ 250 million is not in operation, which is rather visited by wildlife and sightseers (at one time even grain was stored there). A feasibility study must have been conducted before constructing it. But looks like excessively optimistic projections were made, which failed to materialize. Similarly, Hambantota port was built at the cost of US $ 1.12 billion, which too is not in operation. Even a cricket stadium was built, which can hold 35,000 spectators, in a city with a population of 25,000 only; abandoned now. Such investments are not only unproductive but also counterproductive as the unused infrastructure needs to be maintained at huge cost. Basically, investing in huge infrastructures at the whims and caprices of leaders with borrowed money that cannot be operationalized is the bane. Nepal is already emulating Sri Lanka in many ways. Nepal has already built two regional international airports in Pokhara and Bhairahawa. Yet to be fully completed Pokhara Regional International Airport, built at the cost of Rs 22 billion debt, cannot come into operation until 40 meters of Ritthe Danda mountain is cut. Cutting 131 feet of a hill has its own adverse environmental impacts. But it was built ignoring such important factors at the whims and caprices of some leaders, businessmen, intellectuals. Similarly, Gautam Buddha Regional International Airport was built at the cost of Rs 9 billion, debt again. Its full operation is uncertain as India is yet to grant flight paths. India has herself built an international airport in Kushinagar, near this airport and the Indian premier avoided stepping on this airport during his trip to Lumbini last month. In this fashion he is indicating that the flight path will not be granted. Nepal already has three international airports and it is uncertain whether newly built two could be fully operationalized; failing which the investment therein would not only be unproductive but also counterproductive. From this perspective Nepal first needs to decide whether we need one more airport or not. Need to examine if the debt could be serviced from the proceeds of operation of these airports or will have to use tax revenue for the purpose. We should not build infrastructures at the whims and caprices of some. What must not be lose sight of is the fact that Sri Lankan Mattala airport cost US $ 250 million only while Nijagarh airport is estimated to cost US $ 6.56 billion; 24 times more. Excessive borrowing to build infrastructures that would be under-used or not used at all is not advisable as is evident from the Sri Lankan example. Way Forward If GoN is determined to build this airport razing over 8 thousand hectares of dense forest in Nijagarh, following issues must be contemplated: • Defy mandamus of the Supreme Court. Also, be prepared to be prosecuted under Article 128 (4) of the constitution for contempt of court. • In the name of removing legal impediments if GoN together with the parliament is to abrogate provision of Section 42 of Forest Act and other legislation, Nepal will have to be ready to be blacklisted by the community of international forest conservationists and environmentalists. Also, will need to remember the commitment made by premier Deuba in COP26 in Glasgow, UK in 2021. • Under Section 42 (2) GoN is required to arrange land equal to the forest to be cleared; in this respect 8 thousand hectares. Instead of razing dense forest and inviting adverse environmental impact, better would be to build an airport at the land arranged for reforestation. • As mentioned above land for the purpose is available about 5-6 kilometers south of the proposed site. Better to build the airport at this site instead of razing a dense forest. • To fell 2,45 million trees GoN is required to plant 61.2 million saplings, which would require 38,294 hectares. Better would be to use 8,000 hectares of land arranged for reforestation to build an airport and use the remaining 30,000 hectares for the construction of other important infrastructures. • It has been reported that necessary land is available in Murtiya in Sarlahi district, which is about 50 kilometer east of Nijagarh. Best would be to build the airport at Murtiya and connect it with Kathmandu by electrical train including on Fast Track, which can reach Kathmandu in less than an hour. In any case traveling by vehicle on Fast Track is estimated to require one hour. Published in Peoples Review on June 8, 2022 Ratna Sansar Shrestha

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