“Samriddh Nepal, Sukhi Nepali” was promised by PM Oli on assuming office in 2018. Has Nepal moved forward since? Is the Prime Minister doing anything to keep his words or was it merely an act of securing votes? Will Nepal attract business and investments from foreign countries?
Since the last thirty years, before the electoral success of NCP, Nepali Congress was in office. The public entrusted their hopes in the Congress. However, the recent fall of Congress implies that the public lost confidence in the party due to low delivery and lack of pronounced outcome. Following Congress, even the leader of the left party has proved to be a man solely of words. This is hampering the political vision of the general public who have little hope from the government. If this scenario continues, it will bring political instability in the country with the general public having no faith in any major party.
With the end of the decade, Nepal has shown no substantial progress under the leadership of Oli. The Prime Minster gave hope to the citizens which is now shattering. He spoke about making this country strong in order to face challenges and boost confidence. But these were again simply words. No significant action has been taken to ensure the prosperity of Nepal or the happiness of Nepalis. After doing the Business Rating, the environment was projected to be conducive but the incremental business on the grounds will testify its validity in the decade that has just started. In other words, quite the opposite was witnessed in the last month of the decade.
MCC Grants could be a game changer if the country accepts the additional financial support from United States, keeping the differences apart. The political leaders should realize that Nepal is not responsible for pleasing any country. It should act on the basis of its own best interest. USD 500 million is nearly adding 12% to the assigned Capital Budget of USD 4 billion. It will be unwise for the country to turn down such a huge grant.
With the Visit Nepal 2020 scheme, Nepal is targeting two million tourists this year. Chinese tourists are the major target group. The Chinese ambassador to Nepal shared her pictures in order to promote Nepali tourism. However, no meaningful step was taken by the Chinese viz. increasing number of flights to and from China by allowing Nepal Airlines Corporation to operate. Currently, there are 98 flights per week but allowing NAC to fly to Chinese airspace will also increase the number of tourists. In addition, Nepal-China has proved to be a lucrative route and will further improve NAC’s revenue by many folds. If NAC fails to operate on these routes, it will never be a revenue-generating corporation. This will further hurt the country’s economy.
There has also been no advancement in Belt and Road Initiative. The Chinese intent seems to be narcissistic. The northern neighbour recently proposed an extradition treaty which is against the International Human Rights Law. When that treaty couldn’t be signed, they proposed a Mutual Legal Assistance Treaty (MLAT) which further makes the Tibetan refugees vulnerable in Nepal. Succumbing to the pressure from China, Nepal is doing little to protect the rights of the refugees. The arrest of 122 Chinese nationals under no strong charges was an abuse of power from China. Their interests are purely vested and will definitely not benefit Nepal.
The above mentioned cases clearly shows digression, not progression to reach for a Prosperous Nepal, leaving the citizens displeased, and amusingly, the motive of the government appears unclear.
The government has also left no stone unturned to provoke the public.
In a bid to squeeze civil space and curtail democracy, the Oli government has been vigorously working to consolidate its power, be it by banning public spaces or by introducing different Bills in the parliament. The proposed IT Bill is to further this agenda of the government. It is antithetical to the people’s aspiration from the Federal Democratic Republic. The enactment of the bills alone will cause a severe blow to Nepal’s infant democracy, as two vital components of it—freedom of expression and the right to privacy—will suffer unfortunate compromise. A few incidents are like that of Pashupati Shama, whose YouTube page was brought down because he voiced against corruption and bribery; Pranesh Gautam was arrested on grounds of criticizing a movie; singer Durgesh Thapa was detained on grounds of hurting religious sentiments in his song, ‘Happy Tihar, Chiso Beer’; rapper VTEN was arrested because of supposedly promoting anti-social values. These are just a few examples of restraining the right of expression. Now the government is trying to control the online content through the means of the constitution. Any anti-government expression will be a criminal activity.
Similarly, nexus of contractors and politicians focus more on making profits rather than keeping the public contended. The change in rule of the games, in particular the Public Procurement Act was to fulfil the interests of the politicians who are wealth and power hungry. The frequent amendments in the Public Procurement Act raised speculations about the objective of the government. All the projects will now remain incomplete without any threat or fine. This will crush the dream of the general public and also increase subsequent pollution.
The seat of the Speaker at the House of Representative still remains vacant. It seems the government does not want to hand over the Speaker’s position to Deputy Speaker Tumbahamphe because she is a woman. Is the government only responsible for the happiness of men? Gender insensitivity and patriarchal mind set needs a transformation. The gender gap in mainstream politics only keeps widening and most of the women in politics are widows of their late politician husbands.
‘Prosperous Nepal, Happy Nepali’ agenda of the incumbent government will turn out to be just a populist slogan with no real delivery. Nepal currently ranks 42nd  in the happy planet index and isn’t expected to improve in the upcoming years. This is not impressive for a developing country.
MCC and IPS Conundrum
Nepal seems to be a strategic battleground in the making for global superpowers, particularly the US, China, and India. The split in the opinion for and against MCC at the recent Nepal Communist Party Standing Committee meeting is a manifestation of influence of both the West and China, showcasing their success in creating loyal lobbies in the ruling NCP and other large parties alike. The interest groups have their vested interests above national necessity of infrastructure development in realizing Prosperous Nepal and Happy Nepali.
The Standing Committee meeting of the ruling Nepal Communist Party, which ended on December 22, did not ratify the MCC. Participants opined that Nepal should not accept MCC if it is part of the Indo-Pacific Strategy promoted by the US, ostensibly, to counter the increasing influence of China’s Belt and Road Initiative. The argument from the faction in opposition is that the Indo-Pacific Strategy is deemed a key instrument now to further the geostrategic influence of the US in the region, and Nepal should not be part of it.
Nepal and the MCC entered into an agreement in 2017 to implement the USD 500 million contract for the development of roads and cross-border transmission lines. US President Donald Trump then coined the term ‘Indo-Pacific Strategy’ (IPS) towards the end of 2017, after the pact was signed. IPS works for free and open Indo-Pacific region, operating under rules-based international order. The IPS has military-defence, governance, and economics as the three pillars. Whereas MCC is an independent US foreign assistance agency established in 2004.
Nepal has already declared the transmission line project as a national pride project, reached Project Implementation Agreement and established Electricity Regulatory Commission as per the demands of the US. Nepal is yet to ratify the agreement through the parliament and also reach an agreement with India for the Butwal-Gorakhpur cross-border transmission line. However, division in the ruling party over accepting the grant under the MCC, if it is part of IPS, the major infrastructure projects under it has fallen in limbo.
The IPS controversy has the ruling Nepal Communist Party (NCP) divided over accepting the US Aid under the MCC. Some leaders are of the view that Nepal should not accept MCC Grant as it is a part of the IPS, while FM Gyawali reiterates that the grant has no links with the strategy. The United States, time and again, has made it clear that the MCC is a part of the IPS.
NCP Chairman Pushpa Kamal Dahal hinted at prolonging the parliamentary endorsement process for the MCC grant if it is part of the IPS. Dahal said the row over whether the MCC is just an US government aid or is part of an Indo-Pacific Strategy (IPS) should be settled before endorsement by the parliament. Contrary to Dahal’s remarks, Minister for Information, Communication, and Technology, Gokul Prasad Baskota remarked that the US offer will be endorsed in the parliament soon.
Nepal’s position to accept the MCC, despite it being a part of the IPS, as the electricity and road projects are vital for our development and saying that we are not part of IPS is illogical. The Americans have officially said that MCC is a part of the IPS while Nepal government says it is not. The US has the right to decide how to classify the money they provide us as grant. Nepal has the choice of accepting or rejecting the offer. Obviously, Nepal needs huge investments for transmission lines and road connectivity. Nepal has to accept support from all and cannot turn down offers like both the MCC and BRI. It cannot accept one and reject other to please either the US or China. Nepal needs to strike a balance, centred on national interest and recalibration of our foreign policy and institutionalization of the same. Foreign policy is a part of the national development strategy.
NAC Planes from “Hi Fly” Yet to Fly High in China
Nepal’s northern neighbour China is flying to Nepal frequently i.e., 98 flights a week after the recent increase from 70 flights per week. Amongst these is a Nepal-based private carrier, Himalaya Airlines which started operations to Beijing on October 27, 2019. However, no slot or permission has been given to Nepal Airlines Corporation (NAC) to fly even a single flight to the northern neighbour.
Following International Civil Aviation Authority (ICAO) and European Union’s ban on NAC citing safety and structural issues, China had also banned the national carrier from flying to the country. The primary argument is that the Civil Aviation Authority of Nepal (CAAN) is both a regulator and an operator, because it also manages Nepal’s airports. Despite ICAO lifting its ban on Nepal Airlines in 2017, the EU officials stated the prerequisite to remove the ban from Nepali Airlines was to split up the Civil Aviation Authority into two entities.
The CAAN authorities also claimed that all the aircrafts in the fleet were three decades old and NAC appeared ignorant about safety audits. In 2015, NAC added four new Airbuses to its fleet, two wide and two narrow bodied.
To lift Nepal Airlines from the debt burden, the executive director of NAC, Madan Kharel was forced to present a business plan to PM Oli. He contemplated to bring in a strategic international partner but argued that it would take too long. In 2016, Lufthansa was selected as a strategic partner, but the Finance Ministry sank the deal. Kharel submitted his breakeven plan to the ministry, which includes commencing flights to Osaka, Riyadh, and Guangzhou, and increasing the fleet utilisation.
Suresha Acharya, Deputy Secretary at the Ministry of Tourism and Civil Aviation, agrees that things must change, “The government has two options: either invest in shares, or invite foreign investment. But with the corporation’s financial situation is so dire that it is unlikely any foreign partners will be interested.”
With Nepal’s upcoming Visit Nepal 2020 project, it is said that China is the most lucrative tourist market for Nepal. Since 2015, NAC has been pestering Civil Aviation Authority of China (CAAC) to allow operations to China and asked the Nepali government to interfere on its behalf. CAAC earlier issued a notice to NAC that following a safety audit by the Chinese officials, the carrier could operate direct flights to 15 destinations in China. The audit was slated for September, but then pushed to October and again to November. It was again postponed by a month to December. CAAC was avoiding the inevitable: security audit for Nepal Airlines. The flights were scheduled to begin in January which was pushed to March due to delay in auditing. NAC’s permission is critical to increased revenue and tourist footfall.
Amidst all the chaos regarding delayed audit, on December 4, under the Foreign Commercial Air Transport Operators Operational Approval Rules (CCAR-129), CAAC sent an official letter to NAC allowing it to operate flights to Guangzhou Baiyun International Airport. CAAC withdrew its decision to conduct the audit and the flights are likely to begin in February. However, within two weeks of the notice, NAC extended this timeline stating the carrier will fly to Guangzhou from second week of March. While the benefits are obvious, Nepal’s delay in gaining slots for Nepal Airlines in China is an indicator of things that are wrong with Nepal’s diplomacy. Based on the recently revised air services agreement between Nepal and China, the national flag carrier will operate three flights a week to Guangzhou.
Meanwhile, NAC is also conducting a study to operate commercial flights to Dhaka in Bangladesh; Yangon in Myanmar; Hanoi in Vietnam; Phnom Penh in Cambodia, and Colombo in Sri Lanka.
NAC is giving the impression that it is desperate to improve the financial situation as it also urged support from the government. It has not been in the best shape following the radical purchase of four airbuses and were to propose a plan to Oli. NAC needs to be able to operate long haul flights and meet its full potential.
Arrest of 122 Chinese in Kathmandu
In December 2019, 122 Chinese nationals were arrested by the Nepal Police citing illegal activities. The nature of these crimes was not certain, if any. This was the biggest single day arrest of individuals from any foreign country in Nepal. The police claimed the arrest was made as per the request of Interpol. A day after the arrest, the officials said that they were looking for evidence of any such criminal activity on Nepalese soil. Beijing said that it was a joint effort from Nepal and China Police, which the Nepal Police denied.
The arrested nationals were suspected of being involved in cross border frauds and also ATM hacking in Nepal. According to Nepali officials, some may have been staying illegally or doing business in Nepal despite holding tourist visa.
“If they are found to be involved in any illegal activity in Nepal, they will be charged as per the law of the land,” said Chief of the Kathmandu Metropolitan Police Range. “If they have not committed any crime in Nepal, we will inform the government. The government will most likely deport them.” As per the pact, Nepal will hand over Chinese nationals to the Chinese authorities if they have breached Nepali laws like overstaying or doing business while on a tourist visa but have not committed any crime in Nepali land.
The police were holding the Chinese without filing proper charges. This raised suspicion regarding the Chinese in police custody without prior investigation. This is another example of breaching human rights. The only charge under which the police was holding these citizens is ‘indecent behaviour’. Nepal follows the idea of habeas corpus under which no person can be detained without concrete charges. However, it seems like Nepal police are bending some rules for the Chinese. This has left room for misinterpretation.
Over conducting a week-long investigation, the Police failed to establish charges. The Chinese were given bail at the cost of NRS 1000 by the District Administration Office. They were accused of online gambling, financial fraud, cybercrime and violating visa norms. However, no evidence was found. Only 67 passports were recovered from the 122 nationals. The travel documents for the rest are being arranged to be deported to China.
During Xi Jinping’s visit to Kathmandu in 2019, there were debates on signing an extradition treaty. Extradition treaties are often a legitimate tool of international law enforcement. But sending people to a country where they are at risk of serious human rights abuses is a breach of international human rights law. Nepal is also bound by the principle of non-refoulement, which means refugees must not be sent back to countries where they face prosecution. The country is home to 20,000 Tibetan refugees some of who may not have been granted the refugee status and makes them vulnerable. As observed, Nepal’s willingness to defend Tibetan rights has shrunk under Chinese pressure.
However, the treaty never got approval since it would have sparked retaliation. Later, amongst the 21 treaties that were signed, one was the Mutual Legal Assistance Treaty (MLAT). This treaty is based on the Mutual Legal Assistance Act 2014. As per Section 5 of Nepal’s Mutual Legal Assistance Act, mutual legal assistance between Nepal and a foreign state may be provided in following matters related to judicial proceedings: (a) taking, collecting, or receiving document or evidence; (b) providing information and evidence by inspecting any relevant thing or place; (c) providing originals or certified copies of relevant documents including banking, financial, or business records; (d) executing searches and seizures of objects, locating, or identifying persons; (e) facilitating the appearance of persons who can assist in a matter of criminal nature; (f) serving summons; (g) freezing or confiscating movable or immovable property and, (h) enforcing judgments.
After the signing of MLAT, Chinese can extradite their nationals from Nepal if found guilty. Usually, someone who overstays their Nepali tourist visa is required to pay a fine and arrests rarely occur. But such a loosely worded pact can mean any Chinese national wanted by China and residing in Nepal can be sent back on as small a charge as overstaying.
The question arises whether Nepal will do the same with or for India. Due to multiple open borders with India, it is of importance to sign the MLAT or extradition treaty with the southern neighbour. People commit crime in Nepal and run off to India. It appears that the Nepal government succumbed to the pressure from Northern neighbour while violating human rights and habeas corpus. Why was China given the privilege? The arrest caused conjecture. It seems like Nepal will cross any limit to maintain ‘good’ relations with the northern neighbour. During Xi’s visit, Nepali nationals as young as 14 were arrested and held for sporting Free Tibet merchandise, showing Nepal’s growing intolerance. It appears that this treaty can be misused by the Chinese in order to bring back the Tibetan refugees who faced persecution in China. Who can guarantee that the MLAT won’t be used against them? As a member of the United Nations, this is a clear violation of International Human Rights Law.
Freedom in Chains
For the Oli government that has been vigorously working to curtail democracy and consolidate its power, December proved to be a particularly busy month. On December 29, the Development and Technology Committee of the parliament endorsed a controversial IT Bill that was registered in the Parliament in February 2019. On the following day, December 30, another highly controversial Special Service Bill was registered in the federal parliament. The enactment of these two bills alone will cause a severe blow to Nepal’s infant democracy, as two vital components of it—freedom of expression and the right to privacy—will suffer unfortunate compromise.
Nepal’s Information Technology and electronic activities are conducted under the overarching Electronic Transaction Act (ETA), which will be replaced by the new IT Bill after it is endorsed by the full House. The Bill, however, has some major issues capable of jeopardizing Nepal’s democracy and human rights, which only exposes the government’s authoritarian tendencies.
The Bill has a “provision of a fine not exceeding Rs 1.5 million or a jail term not exceeding five years, or both,” for posting any content that may be classified as an act of “cyber-terrorism.” Similarly, a person found guilty “cyberbullying” maybe subjected to “a fine of up to Rs 50,000 or six-month jail term, or both.” The terms “cyberbullying” and “cyber-terrorism,” however, are so vaguely defined in the Sections 83 and 84 of the Bill that analysts claim it will cause grave misuse and misinterpretation of the provision and curb Nepali citizens’ freedom of expression ensured by the Constitution. The Bill states, “By using any electronic system, no one should continuously bully, tease, degrade, discourage, disrespect, and scold at any person or commit any act similar to them,” which has to be interpreted as “cyberbullying.” Similarly, on the account of “cyber-terrorism” or crime against the state. The Bill reads, “By using an electronic system, no one should commit or perform any action that would jeopardise Nepal’s national security, sovereignty, territorial integrity, nationality or national unity, independence, self-dignity or harmonious relations between federal units or anything that would obstruct or cause an adverse impact on the country’s security or data system.”
First of all, the mere vagueness of the terms poses a big threat to Nepal’s democracy, as it allow the authorities a great deal of flexibility and ease to frame an online activity as an act of cyberbullying or cyber-terrorism. This authority, along with the fear of a hefty fine or jail-term, will significantly restrain people’s freedom of expression online. Political analysts and human rights activists, therefore, have criticized the Bill and have accused the government “of terrorizing the people…to stop criticisms against the government in the social media.”
Second, the Bill has a provision that requires Social Networking Sites operating in Nepal, such as Facebook, Twitter, and Viber, to be registered inside the country, which means that the government can conveniently ban any to all the social media sites if they fail to register here. For a country with a comparatively smaller population, and hence a not-so-big market, it is worth wondering whether the tech giants will be willing to undergo the bureaucratic hassle and financial burden associated with registering their companies in Nepal. If not, the Nepali people will face the fate of the Chinese, who are deprived of social media sites and the freedom to express their voices online, which is what the Oli government seems to want.
Third, with a huge burden on the Internet Service Providers (ISPs) to take down websites and contents that violate the new laws, the internet will likely be a heavily censored platform because the ISPs’ topmost priority will be to safeguard their business from government crackdown on them. The quality of internet the Nepali people are enjoying at the moment, therefore, is at a risk too.
Fourth, there is a major problem regarding the jurisdiction of the proposed offenses. Instead of the existing judicial bodies, the IT bill states that the cases related to it will be decided by a three-membered IT court, to be formed one in each of the seven provinces. Apart from an additional government expenditure, the lack of its independence is a big issue. Because the government will appoint the members of the IT court itself, there is a high risk of the court being impartial in the favor of the government. This arrangement will violate a fundamental principle of democracy that judiciary is an independent constitutional body.
If monetary compensation were to determine the severity of a crime or an action, the government seems to place cyber offense above the heinous act of rape. What is worse is the room for interpretation the Bill allows to the government-dictated IT court. After the law is enacted, a person mocking a senior government official through online memes may have to pay Rs 1.5 million or end up in jail, which basically means that mocking a government official is a more serious offence than any other heinous crimes including rape.
Another development against democracy is the registration of the Special Service Bill. The Act, if enacted, will authorize the intelligence agencies of the country to “intercept telephonic and digital conversations between individuals.” Defenders of the Bill cite the interference of international agencies such as RAW and CIA as the need for the country’s preparedness through counterintelligence. However, the Act jeopardizes the right of privacy of all individuals, as the government can easily manipulate the law to intrude into anybody’s private affairs. This may include intercepting lawmakers’ or chief justice’s phone calls or online correspondences. That will be a severe compromise of democracy at multiple levels.
Has there been no resistance against these new Bills? The ruling Communist Party of Nepal seems to have hijacked that privilege too; following the resignation of the former Speaker, Krishna Bahadur Mahara, after rape allegations against him, the post has been vacant, and therefore, the parliamentary process is at rest. The main reason behind the lack of a Speaker since October 1 is the CPN’s intraparty disagreements over the nomination for the post. With no Speaker in the House, the parliament is inactive, and therefore, there is no parliamentary debate on the controversial bills.
The controversial IT Bill and Special Service Bill are two gallant examples of NCP’s authoritarian tendencies and its intention to significantly constrain civil liberty. The parliamentary uncertainty seems to be facilitating this process. Therefore, the direction in which the NCP government is headed should alarm all and they need to raise voice against before it is too late.
As Players set the Rules
The eighth amendment in the public procurement act has provisioned bid capacity for contractors disallowing them to bid for new project until they complete the project in hand. The implementation of the provision was expected to press the contractors for timely completion of projects and contribute in delivering progress.
Secretary at the Office of the Prime Minister and Council of Ministers claimed that the amendment would help the government to get rid of problems where contractors bag large size projects but do not perform as per stipulated specification and press them to complete timely as per the agreement. But the act has gone through a ninth amendment in a short while with provisions in favour of contractors. Interestingly, the Act had undergone amendment for 8 times, three consecutive this year alone.
As contractors threatened to halt works, the government secretly amended the Public Procurement Regulation, in favour of corrupt contractors. The amendment relaxed a provision that allow contractors to continue even if 50 per cent of works of a project has not been completed within deadline. Earlier in the sixth amendment, contracts in such case would be automatically cancelled, however.
And again, a ninth amendment has been made recently. The amendment has now a provision to penalize contractors from the day of the contract agreement if the latter fail to complete the projects even in the extended deadline. A provision of penalty while extending the deadline of projects after the contractors’ failure to finish them on time have been removed. Earlier, as per a provision in the eighth amendment, the government could charge up to 10 per cent penalty for extending the deadline. The Federation of Contractors’ Associations of Nepal had expressed reservations against some of the provisions in the eighth amendment.  Further a provision in the ninth amendment allows for extension of the deadline further based on cabinet decision too.
Notably, seventh amendment to the Public Procurement Act removed a provision that bars companies facing corruption charges from participating in the bidding for public contracts. Earlier, the sixth amendment had introduced a provision to bar the bidders, from participating in bidding process of public contracts until the corruption case against them was cleared.
Ironically, as a defiance to fight against corruption, when players set the rules of the game fair play is presumably a far cry. Good governance, transparency, accountability and corruption free society will always remain a dream. Public Procurement Management Office has a mandate to work towards ensuring good governance in public procurement system that is transparent efficient and free of corruption. The Office is placed directly under the prime minister and functions as per the Public Procurement Act, 2063 and Public Procurement Regulation, 2064. But the players set the rules the Prime Minister is a mere statutory figure as it seems or is a proxy of the players, remains a valid question.