Loose ends

Bipin Adhikari (Source: http://www.ekantipur.com/the-kathmandu-post/2009/10/22/Oped/Loose-ends/1243/index.html)

KATHMANDU, OCT 22 - In the context of devolution of power from the centre to the provinces, one of the key issues that the Constituent Assembly (CA) has to respond to is how the obligations that Nepal has made under the United Nations Educational, Scientific and Cultural Organization (UNESCO) Convention Concerning the Protection of the World Cultural and Natural Heritage 1972 are going to be achieved in the new set-up.

Under this convention, Nepal has undertaken to identify and delineate the different “cultural heritage” and “natural heritage” situated on its territory. As a member state, it is the duty of Nepal to ensure the identification, protection, conservation, presentation and transmission to future generations of the cultural and natural heritage on its territory. Each member state under the convention has to endeavour to adopt a general policy which aims to give the cultural and natural heritage a function in the life of the community and to integrate the protection of that heritage into comprehensive planning programmes.

In addition, the quest for the function and values of cultural expressions and practices and of monuments and sites, led by UNESCO, has paved the way for various new approaches to understanding, protecting and respecting cultural heritage of each country. These approaches, which involve the recognition of communities and groups as those who identify, enact, recreate and transmit the intangible or living heritage, found their culminating point in the adoption of the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage.

This convention which Nepal has shown willingness to ratify states that the “Intangible Cultural Heritage” is manifested — inter alia — in the following domains: ?oral traditions and expressions including languages as a vehicle of the intangible cultural heritage; performing arts (such as traditional music, dance and theatre); social practices, rituals and festive events; knowledge and practices concerning nature and the universe and traditional craftsmanship.

Under the present constitution, which provides for an interim arrangement until a new constitution is adopted by the CA, the words and phrases employed to help preserve national heritage do not adequately reflect the authoritative expressions of the 1972 convention, the 2003 instrument, other conventions and many soft norms established in recent years. Although certain norms established in the rights perspective, as far as religion, culture, language and script and the arts, there is enough room for improvement taking the overall issue of the preservation and management of national heritage in the broader UNESCO perspective.

Nepal is renowned for its natural and cultural heritages. As far as the current legal regime is concerned, the power of preservation of national heritage has been provided for by the Ancient Monuments Preservation Act 1956, the Local Self-Governance Act 1999, various forestry and national park related laws, the Religious Endowments (Guthi) Corporation Act and so on. The Ministry of Culture and State Restructuring is the overall responsible body at the central level for safeguarding and promoting the cultural heritage, both intangible and tangible. The Department of Archaeology under the ministry has the responsibility for the preservation of the tangible cultural heritage. It has historically played a crucial role in its area of business.

The legal system also provides for specific institutions like the Cultural Corporation, the Nepal Copyright Office and similar institutions dealing with related components of national heritage. In 2007, the government also established new institutions in the form of the Nepal Academy for Language and Literature, the Academy of Fine Arts and the Academy of Music and Performing Arts with three separate statutes.

Mention may also be made of trusts like the Lumbini Development Trust and the Pashupati Area Development Trust, which operate under their defined jurisdiction. Similarly, there are councils like the Greater Janakpur Development Council, development committees for religious areas, i.e., Deoghat area, Manakamana area, Halesi area, Bouddhanath area, Budhanilkantha area, Pathibhara area and others which cater to the requirements of preservation and management of the national heritage.

Now while the CA is drafting a new constitution for Nepal is the time to deliberate on how the existing legal regime — crafted along the principles of a unitary system of government — should be restructured into a central-provincial framework. Such a discussion must look into relevant pragmatic technical and jurisdictional aspects of institution and site management, including funding considerations and human resource concerns for public cultural institutions in the new system.

What responsibilities are to be retained by the national government at the central level and what powers are to be devolved to the provincial units at the sub-national level are the main questions here. The devolution is not only to the provinces, but also to the regional, local and village levels. Similarly, a constitutional framework of devolution must respond to various managerial, financial and legislative issues as far as the devolved power and responsibilities are concerned. Unless the constitution makers discuss what the strengths or weaknesses of the present system are, it will be difficult for them to decide how the new arrangements must be made in the given perspective.

There could be several suggestions towards new, effective and sustainable arrangements. It might also be necessary to arrange for a national body to enforce national standards in the matter of preservation of national heritages and their multifarious uses. For example, the constitution makers may consider establishing something like a Nepal Heritage Council as a body of heritage experts to work as the Nepal Government’s independent expert advisory body on heritage matters. The council can play a key role in assessment, advice and policy formulation and support for major heritage programmes. Such a council could be far more effective than the existing multiple agency approach being applied hitherto.

To this day, the reports of the CA have not touched on the issue of national heritage as an exclusive issue. The Committee on the Determination of Bases for Cultural and Social Solidarity, which has already submitted its report, should have dealt with this issue at length. Failing this, one can only hope that the Committee on Restructuring of the State and Allocation of State Powers and the Committee on the Allocation of Natural Resources, Financial Powers and Revenues, which are the two remaining thematic committees on this issue, must take time and reflect on the new framework.

(lawyers_inc_nepal@yahoo.com)