00004 food legislation nepal

Legislative Measures Relating to Food Security in South Asia: A Case Study of Nepal

Prepared by Apurba Khatiwada, Advocate Lecturer, Chakrabarti HaBi College of Law

January, 2014

Table of Contents

List of tables .......................................................................................................... i List of boxes .......................................................................................................... i Abbreviations and acronyms................................................................................ ii

1. Background .......................................................................................................1 2. Introduction .......................................................................................................1 3. Legislations Pertaining to Food Security ..........................................................4 3.1. The Interim Constitution of Nepal 2007 ............................................4 3.2. International Treaties and Instruments Relating to Food Security ....5 3.3. Competition Promotion and Market Act, 2007..................................6 3.4. Land Act, 1964...................................................................................9 3.5. Consumer Protection Act, 1997 .......................................................11 3.6. Black Marketing and Few Other Social Offence and Punishment Act 1975 ......................................................................................12 3.7. Essential Commodities Control (Authorization) Act, 1961 .............14 3.8. Local Self Governance Act, 2055 (1999) ........................................16 3.9. Animal Health and Livestock Services Act, 1999 (2055) ...............19 3.10. Chapter on Cultivation of Land (National Code 1963) .................20 3.11. The Food Act 1966 ........................................................................21 3.12. Animal Slaughterhouse and Meat Inspection Act, 1999 ...............22 3.13. Seed Act, 1988 ...............................................................................23 3.14. Environment Protection Act, 1997 ................................................24 3.15. Water Resource Act, 1992 .............................................................26 3.16. Industrial Enterprise Act, 1992 ......................................................27 3.17. Forest Act, 1993 .............................................................................28 4. National Policies Pertaining to Food Security ................................................29 4.1. National Agriculture Policy 2061 B.S. ............................................29 4.2. Government of Nepal Supply Policy, 2011 .....................................30 4.3. Government of Nepal Climate Change Policy, 2011.......................31 4.4. National Seed Vision (2013-2025) ..................................................32 5. Analysis of Legislation ...................................................................................33 5.1. Availability of Food .........................................................................33

5.2. Access to Food .................................................................................34 5.3. Utilization of Food ...........................................................................36 5.4. Stability of Food ..............................................................................37 6. Conclusion ......................................................................................................38

List of tables Table 1: FAO’s Twin Track Approach to Food Security Table 2: Land ceiling in Nepal Table 3: Summary table of Nepalese food-related legislation List of boxes Box 1: Elements of Food Security Box 2: Food insecurity in Nepal at a glance

i

Abbreviations and acronyms

DDC EIA FAO ICCPR ICESCR IEE LAPA NAPA VDC

District Development Committee Environmental Impact Assessment Food and Agricultural Organization International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights Initial Environment Examination Local Adaptation Plan for Action National Adaptation Programme of Action Village Development Committee

ii

1. Background According to FAO, five million people are undernourished in Nepal.1 The 18.5 per cent of the total population that are undernourished are supposedly “food sovereign” according to the Interim Constitution of Nepal 2007. The right of every citizen to “food sovereignty” has been defined as a fundamental right of the people.2

In contrast, the fundamental right has failed to translate the constitutional protection of right to food into practice because there is neither an enabling legislation to put the constitutional spirit into practice nor is there any programme at the national or sub-national level to provide guaranteed access to food to the needy and deserving people.

Nepalese continue to suffer from food insecurity. Out of 75 districts in the country, 42 districts are considered food deficit.3 Chronic seasonal food insecurity in Western and FarWestern Regions of the country exemplifies the poor state of food security in Nepal. Overdependence on subsistence farming, inadequate infrastructure, poor irrigation facilities lack of access to quality seeds and fertilisers, etc. have fuelled the problem. Every year a large section of the Nepalese population battles severe food shortages. These people have to rely on government subsidy that is marred by unpredictability, mainly due to the absence of law governing the public distribution system. Additionally, food subsidy and distribution carried out by the government, through Nepal Food Corporation, is not governed by any specific law, nor are these activities based on the people's right to food.

2. Introduction The Food and Agriculture Organization of the United Nations (FAO) defines food security, when it says: “Food security exists when all people, at all times, have physical and economic access to sufficient, safe and nutritious food that meets their dietary needs and food preferences for an active and healthy life”.4

1

FAO, The Status of Food Insecurity in the World, 2012 available at http://www.fao.org/docrep/016/i3027e/i3027e.pdf (accessed 20 May 2013). See Figure 1.1 above as well.

2 The Interim Constitution of Nepal 2007, article 18(3).

3 FAO, Assessment of Food Security and Nutrition Situation in Nepal 2010, 57 (available at: ftp://ftp.fao.org/OSD/CPF/Country%20NMTPF/Nepal/thematic%20studies/Food%20Security%20_Final_.pdf (accessed on 9 June 2013) 4 World Food Summit 1996, See FAO, Food Security, Policy Brief, 2006, issue 2.

1

According to the FAO, the state of food security not only refers to the state of availability of food to the people, but also to such legal, economic, social, and qualitative elements that determine the ability of the people to continually access qualitative food even during periods of "economic or climatic crisis". This definition of food security incorporates a rights based approach and it suggests food security as a condition determined primarily by the result and not by the process. It is, indeed, true that food is a basic human right of people and that food security law aims to respect, protect and fulfil this basic right. In this sense, this report lies within the locus of food security and the right to food.

In addition to the human rights based approach indicated by the above-mentioned definition, the legal definition of food security generally has two elements. The first element relates to resource allocation among the population, whereby people may become able to access food.

The second element relates to removal of distortions in the market that may prevent people from accessing adequate qualitative food. The latter element of food security generally requires negative (corrective) enforcement against potential market distortions (hoarding, collusion, price fixing etc.) in comparison to the former element that generally necessitates positive enforcement (such as allocation of land, creation of food stock, research, government assistance to farmers etc.).

Similar to the two general elements of food security, the FAO has also elaborated four elements of food security in the following manner: Box 1: Elements of Food Security Food availability: The availability of sufficient quantities of food of appropriate quality, supplied through domestic production or imports (including food aid).

Food access: Access by individuals to adequate resources (entitlements) for acquiring appropriate foods for a nutritious diet. Entitlements are defined as the set of all commodity bundles over which a person can establish command given the legal, political, economic and social arrangements of the community in which they live (including traditional rights such as access to common resources).

Utilization: Utilization of food through adequate diet, clean water, sanitation and health care to reach a state of nutritional well-being where all physiological needs are met. This brings out the importance of non-food inputs in food security.

Stability: To be food secure, a population, household or individual must have access to adequate food at all times. They should not risk losing access to food as a consequence of sudden shocks (e.g. an economic or climatic crisis) or cyclical events (e.g. seasonal food insecurity). The concept of stability can therefore refer to both the availability and access dimensions of food security.

FAO, Food Security, Policy Brief, 2006, issue 2, p. 1. Available 2 ftp://ftp.fao.org/es/ESA/policybriefs/pb_02.pdf (accessed on February 28, 2013).

at:

In addition, the FAO has also proposed a twin-track approach (Table 1) to food security that employs the four elements of food security and combines" sustainable agricultural and rural development with targeted programmes for enhancing direct access to food for the most needy."5 That is, the FAO stresses on the need to tackle food insecurity in the context of the diversity of challenges that may exist in different societies or at different periods.

The twin-track approach, therefore, is an acceptance of an important fact that the legal intervention, in regard to food security, has to be more than a linear approach and should speak to the diverse reasons for, and challenges of, food insecurity. That is, any legal approach to food security should essentially be contextual while it broadly addresses the two elements of resource allocation and regulation of market distortions, as discussed above.

This study analyses Nepalese laws, constitutional provisions and policies relating to food security. The study uses the four-elements model of food security, as proposed by the FAO, to analyze the legal provisions. Additionally, the study also makes recommendations on the basis of the same model while broadly mooring the discussions on resource allocation and regulation of market distortions.

Table 1: FAO's Twin Track Approach to Food Security

5

Ibid, p. 3.

3

3. Legislation pertaining to food security 3.1. The Interim Constitution of Nepal 2007 The Interim Constitution of Nepal has defined every citizen's right to "food sovereignty" as provided for in the law as a fundamental right. The enforcement of the right, however, depends largely on the general legislations that may further elaborate the right and define remedies. In the absence of such legislation, it is hard to predict the scope and the nature of this fundamental right. However, when the right is read in context of the numerous legislations that are discussed in this study, it can shed light on the importance of ensuring food security to the people. Notably, the fundamental right can further highlight the importance of legislations that have provided various measures to ensure people's access to food as well as availability, utilization and stability of food. Perhaps the necessity of having a general legislation to enforce the fundamental right to food is a bit odd. Nevertheless, the existence of the right to food in the constitution should be considered as a positive initiation in South Asia, since the Interim Constitution of Nepal is the first constitution in the region to define right to food as a fundamental right.

Additionally, the fundamental right to "food sovereignty" can also be an important theoretical basis for the interpretation and enforcement of legislations pertaining to food security in Nepal. This is also a clear shift away from the last constitution of Nepal, Constitution of the Kingdom of Nepal 1990, which limited food security concerns within the Directive Principles and Policy of the State chapter. As a result, in a decision dated 2065/11/5/2, the Supreme Court of Nepal dismissed a petition-- Madhav Basnet v. Prime Minister Girija Prasad Koirala and Others, Writ No: WO-0338 of 2064-- that was filed in response to the dire shortage of food in western Nepal. It cited lack of jurisdiction over questions relating to Directive Principles and Policy of the State.

Indeed, a shift was apparent in the Supreme Court’s decision dated 2009/02/22, in Bajuddin Minhya and Others v GON, Prime Minister and the Council of Ministers, Writ No: WO0338, 2064, where the apex court not only noted that right to food was a basic human right but also ordered the government to take necessary actions in order to protect the right to food of people living around the Koshi Tappu Wildlife Reserve area.

The Interim Constitution also addresses concerns relating to food security under the responsibility of the state (Article 33). The Directive Principles and Policies of the State 4

chapter of the constitution defines various responsibilities of the state including responsibilities to adopt scientific land reform programmes, protection and promotion of national industries and resources, the need to establish rights of all citizens to health, employment, food sovereignty etc. Clearly, the Constitution envisions a governance system that puts food security as one of the central responsibilities of the state.

3.2. International Treaties and Instruments Relating to Food Security Nepal has been one of the most active countries in the world when it comes to ratifying or acceding to international treaties, particularly international human rights treaties. Nepal has ratified or acceded to all the major human rights treaties under the United Nations system.

Accession to international human rights treaties such as the International Covenant on Civil and Political Rights (ICCPR) and the International Convenant on Economic, Social and Cultural Rights (ICESCR) represent Nepal's willingness to accept various obligations under those treaties including the obligation to respect, protect and fulfil people's right to food.

Particularly, Article 11 of the ICESCR defines a number of obligations of Nepal to ensure the right to food. Article 11 provides the right to be free from hunger and the right to adequate food of the people, as well as the obligation of the state to improve methods of production and distribution of food and to cooperate with food exporting and importing countries.

Similarly, other socio-economic protections defined by the ICESCR further contribute to protect people’s right to food. In regard to the ICCPR, provisions relating to rights to equality and liberty are crucial in ensuring fair and effective distribution of food and correcting distortions in people’s access to food.

Section 9 of the Nepal Treaty Act 1990 (hereinafter the Treaty Act), indicates the process of domesticating international treaties in Nepal. Section 9 (1) of the Treaty Act says that when a provision of any international treaty that Nepal has ratified or acceded to conflicts with existing Nepali law, the provision of the international treaty will prevail over the Nepali law and will be applicable like a Nepali law. That is, Section 9 (1) suggests somewhat direct application of international treaties in the municipal context. The Supreme Court has interpreted Section 9 (1) to give effect to numerous international treaties and has applied international treaty provisions directly. However, it is still too early to submit that Nepalese courts will directly apply international treaties in all cases. Recent decisions by the Supreme Court indicate that the Courts may become cautious in applying international treaties that are couched in uncertain terms and aspirational languages. In case of the ICESCR, it is all the 5

more profound. State parties to the ICESCR have obligation to only "progressively realise" the rights defined in the covenant and do not necessarily have to bear strict obligation to ensure the protection of rights under the covenant.

Perhaps, Nepal's approach to the domesticating of international treaties relevant in the context of food security is dualistic. That is, instead of relying on direct application of international treaties, Nepalese courts and law enforcement agencies will rely on domestic law that incorporate the provisions and principles of international treaties.

Food insecurity in Nepal at a glance Box 2: Food insecurity in Nepal at a glance Food-insecure population: 6.4 million = 20 per cent of the population Proportion of children suffering from acute malnourishment: 13 per cent Food prices rises, March 2008 to March 2009: 17.1 per cent Proportion of income that the poorest families spend on food during hungry months: 78 per cent Proportion of households in the highlands with at least one male who migrates: 75 per cent

Source: Oxfam International 2009

3.3. Competition Promotion and Market Protection Act, 2007 The broad objective of the Competition Promotion and Market Protection Act 2007 (hereinafter ‘the Competition Act’) is to ensure an open, liberal, competitive, and market oriented economy. According to the preamble of the Competition Act, the aim is to increase national productivity, prevent undesirable interference, monopoly and restrictive business practices, improve quality with competitive price and maintain the economic interests and decency in the public. Hence, apart from the purely economic goal of maintaining fair competition, consumer welfare is also one of the aims of the act. The Competition Act seeks to achieve these objectives by maintaining fair competition in the market which, in turn, is ensured by prohibiting a series of conducts defined as anti-competitive by the act.

Some of the basic features of the act are as follows: a. Prohibition of anti-competitive agreements (collusions) among producers and suppliers of food that may raise price, cut supply, divide markets, discriminate consumers etc. That is, the act prohibits such collusive conducts that may adversely affect availability of quality food at competitive prices without excluding or 6

discriminating any consumer. b. Prohibition of abuse of dominance in the market. The act prohibits and punishes abuse of dominance that generally excludes competitors or exploits consumers. By excluding competitors, a dominant enterprise in a food market may be able to exercise monopolistic power in the market by raising price or/and decreasing supply or quality of food. Similarly, a dominant enterprise may also be able to directly exploit consumers by forcing consumers to pay more or abide by unnecessary conditions. In short, the act intends to address structural reasons in the market that may adversely affect food security. c. Similar to the structural reasons for prohibiting abuse of dominance, the act also prohibits merger and acquisitions that may lead to dominance (40 per cent market share in the territory of Nepal) of an enterprise in the market. d. Other anti-competitive conducts include, prohibition of bid rigging (which may increase price of food or decrease quality), exclusive dealing (which may adversely affect access to food), market restriction (affects stability in food access), tying unnecessary conditions to purchase (increases price, therefore, ultimately affects availability of food) and misleading advertisement. e. Development dimension of the act and exceptions: In addition to prohibiting a series of conducts that may adversely affect food security, the act also has provisions that exempt, from the application of the act, small or cottage industries, agricultural products and agriculture cooperatives of small farmers and raw materials, among others. Similarly, the act also defines as an exception any abuse of dominance that may enhance quality of food.

Perhaps, the most significant provision that directly addresses food security is Section 30, which provides the government with special authority to exclude the application of the act in case of emergency in the production or distribution of food in the territory of Nepal or in any place within the territory of Nepal.

The overall significance of the provisions relating to exemptions and exceptions in is to provide alternative options to the fair competition provisions in the act. As such, the exemptions and exceptions provisions can act as structural alternatives to maintaining availability, access and stability in the food security system, if and when, the fair competition standards in the act are not able to address the possible food 7

security challenges. f. Procedural safeguards and standards: The act grants jurisdiction to Commercial Courts and prohibits anti-competitive conduct with fines. According to the act, the victims of anti-competitive conducts may also claim compensation. There is a two tier administrative/institutional mechanism to enforce the act. The Competition Promotion and Market Protection Board is the central authority with various powers, ranging from investigation to promotion of competition. Investigation officers at the district level are local authorities with the power to investigate and file cases under the act.

Analysis of the Substantive Rules and Procedural Standards The purpose of the Act is to prevent market distortions that can adversely affect availability, access, and utilization of food as well as to ensure stability in the food security system. Even though the distinct objective of the act seems to foster fair competition among enterprises (food producers and suppliers), the ultimate purpose and effect of the fair competition is to ensure that the consumers can have free choice in the market. Consumers' free choice, in turn, indicates competitive price and quality of goods and services (food). That is, the Competition Act has provisions that can allow access to food while preventing structural distortions that may hamper such access or even availability of food in the market.

The act, therefore, is broadly concerned with regulation of the market in order to ensure that any structural or market distortion that may prevent availability of food (or quality food) to consumers and their access to food. The act also takes various preventive and punitive measures in order to ensure stability in the food security system.

The Competition Act is relevant in promoting food security as it regulates possible distortions, in the form of various anticompetitive conducts, in the market and allows consumers to access food under competitive market conditions. In addition, by trying to maintain a competitive structure in the food market, the act also addresses a potential structural challenge in ensuring stability in the food security system.

However, the following few shortcomings in the substantive rules and procedural standards may negatively hamper the overall purpose and role of the Act in promoting food security: a. The act does not cover anti-competitive agreements between/among distributors.

Therefore, the food insecurity that may arise due to various forms of anti-competitive 8

agreements between/among food distributors cannot be addressed by the act. b. The provision relating to merger and acquisition has prohibited all mergers and acquisitions that may lead to 40 per cent market share of the merged entity in the territory of Nepal. This has meant that even such mergers or acquisitions that may have efficiency enhancing roles, and thus may contribute to a better food security system, may be prevented. c. The Board’s lack of autonomy from the government has meant it has failed to be proactive in the investigation of anti-competitive conducts and promotion of competition law. Perhaps, the failure is also due to limited understanding of the significance of the act in areas such as food security.

3.4. Land Act, 1964 One of the objectives of the Land Act was to further public interest by motivating farmers to increase agricultural productivity. That is, the act was promulgated with a definite aim of increasing agricultural productivity and, therefore, ensuring availability of adequate food to the people. In addition, the act also aims to distribute agricultural land, provide access to farmers to necessary knowledge and means relating to agriculture.

Some of the basic features of the act relevant to food security issues are as follows: a. Land ceiling: The Land Act defines the ceiling of agricultural land ownership on the basis of the geography where the land is situated. The land ceiling in the hills and mountainous regions, where land productivity is relatively low, is low in comparison to Tarai and Kathmandu, where land productivity is relatively high. That is, indirectly, land ceiling has been determined according to productivity of the land.

Table 2: Land ceiling in Nepal Region

Land

ceiling

in

regard

to

Land

ceiling

in

regard

to

cultivable law

residence and residential garden

Terai (Including Inner Terai)

10 Bigaha (6.8 hectare)

1 Bigaha (0.68 hectare)

Kathmandu Valley

25 Ropani (1.2 hectare)

5 Ropani (0.2 hectare)

Other Region

75 Ropani (3.5 hectare)

5 Ropani (0.2 hectare)

Source: Land Act 1964, section 7.

b. Redistribution: After defining land ceiling, the act makes provisions regarding transfer of surplus land to landless people from the same Village Development 9

Committee or Municipality. c. Landlord and tenancy relations (end of tenancy): The fourth amendment of the Act ended the tenancy system and thus, the long standing system of divided ownership/rights over land was terminated. d. Compulsory deposit system: The act makes it compulsory for all land owners or tenants to deposit a certain portion of the annual produce with the government. The land owners or tenants also have the option to deposit an equivalent sum instead of the required amount of annual produce. The depositors are paid annual interests on their deposit and can only get their principal deposit back after two years. The compulsory deposit system encourages farmers to save their produce or income and create a cooperative system in their community to fight famine or food insecurity. e. Agricultural debt related safeguards: The act has provided various safeguards for farmers who are in debt. Particularly, the act has defined various ceilings on the interests a farmer may have to pay in regard to agricultural debt. In addition, the act makes it compulsory for all creditors to inform the government regarding any agricultural debt they have provided to any farmer. f. Land use programme and prevention of land fragmentation: According to the act, the government of Nepal may introduce land use programme in any part of the country and carry out programmes to prevent land fragmentation. The land use programme may, in turn, mean that the farmers have to cultivate only those crops that the government decides. g. Incentives to cooperative farming: The government may provide assistance or subsidy in acquiring agricultural tools, technology, fertiliser, seeds, irrigation facilities, electricity to farmers who intend to do cooperative farming of such crops as decided by the government. h. Government directive: The government may direct farmers to produce certain crops or use certain technology in farming in return for government assistance for the same.

Analysis of the Substantive Rules and Procedural Standards The Land Act incorporates the resource allocation as well as various distribution mechanisms essential in ensuring food security. It provides rules regarding resource (land) allocation between the land-hoarding and land-less population and also provides various mechanisms to ensure proper distribution of food, as well as mechanisms and incentives to store and devise a cooperative system that can respond to food shortage or other emergencies. The overall 10

regulatory authority of the government has also been affirmed by the act that may become crucial during a national emergency. Furthermore, the act has also provided agricultural debt related safeguards to protect farmers from exorbitant interest rates, which farmers may be forced into agreeing, in their communities.

Particularly, the compulsory grain deposit mechanism provided by the act is crucial in ensuring availability of and access to food during food shortages. The cooperative mechanism that the act employs in motivating farmers to deposit grains seems to be a progressive system. Similarly, if the government's land use programme and authority to issue directives is effectively conducted, the act can also become crucial in ensuring proper and coherent process of food productions during food shortage. As such, the act can balance both availability of food in the short term as well as stability in food security in the long term.

However, the following few shortcomings in the substantive rules and procedural standards may negatively hamper the overall purpose and role of the act in promoting food security: a. Even though the grain deposit mechanism under the act should be regarded as an important provision in regard to food security, the provision regarding the utilization of the deposited grain does not seem to be guided by food security concerns. The act should clearly define the purpose of grain deposit and provide the criteria for management of the deposit with a view to ensuring food security.

3.5. Consumer Protection Act 1997 One of the objectives of the Consumer Protection Act is the protection of consumers from irregularities concerning the quality, quantity and prices of consumer goods or services. In addition, the act also aims to control restrictive business practices that may distort production or distribution of consumer goods, leading to rise in price and decrease in quality and supply.

The act has the following basic features: a. Rights of consumers: The act defines, in Section 6, various rights of consumers, which include right to information regarding price, quality, quantity, nature etc. of goods or services, right to choose goods or service at their competitive price, right to remedy and compensation. b. Prohibition of restrictive business practices: The act has prohibited restrictive business practices that may lead to determination of quota or limitation in supply of consumer 11

goods or services. Similarly, conducts that may create artificial scarcity of goods or services and division of markets are also prohibited. c. Authority of the government: According to the act, the government has the authority to fix price and quality of goods or services and prevent restrictive business practices that lead to price rise. Similarly, the government also has the authority to monitor, prevent and control abuse of monopoly power, in addition to discouraging creation of artificial scarcity in the market. d. Duties of producers and distributors: According to Section 9 of the act, producers are under the obligation to disclose all relevant information regarding the goods or services sold to consumers in the market. Similarly, according to Section 10, producers are prohibited to mislead consumers regarding the quality, nature, benefits or purpose of any consumer goods. Finally, retailers are under the obligation to display price lists at all times. e. Monitoring and investigation by the government: The act authorizes the government to monitor, investigate, or search any facility, producers, and distributors who act against the provision of the act. It has further defined punishment to those who violate the provisions of the act, apart from providing compensation to consumers.

Analysis of the Substantive Rules and Procedural Standards The Consumer Protection Act is an important legislation that has direct implications on food security. It has provisions that not only ensure availability of, and access to, food to consumers but also ensure stability in the food security system. First, the act defines access to food at a reasonable market price as a right of consumers. It also defines the right to information of consumers regarding the nature, quality, quantity, price, producers etc. of food products. Secondly, in order to ensure that the consumers are able to access food of satisfactory quality, the act takes various preventive measures that are directed against potential distortion of the market. That is, various forms of collusions, that lead to artificial scarcity, price rise and decrease in quality, are prohibited. Similarly, the act also prohibits potential adverse effects of monopoly and other restrictive business practices in the food market.

3.6. Black Marketing and Few Other Social Offence and Punishment Act 1975 According to the Preamble of the Black Marketing and Few Other Social Offence and Punishment Act (hereinafter "Black Marketing Act"), the objectives of the act are to promote 12

good health, convenience and economic interests of the general public. Similar to the Competition Act and the Consumer Protection Act, discussed above, the Black Marketing Act has important implications on food security as it prevents potential distortions in the market that can impede people's access to, and availability of, food and stability.

The act has the following basic features relevant to food security: a. Black marketing: The act defines black marketing as, among others, fixing of price higher than that fixed by the government or producers, importers or principal distributors assigned by the government. b. Profiteering: Section 3 of the act defines profiteering as fixing price with the profit margin of more than 20 per cent in regard to such goods as determined by the government, or in regard to such goods that are scarce, or fixing price with unreasonable profit. c. Deflection of goods: Section 4 of the act punishes deflection of goods from any district or zone, as determined by the government, to other regions. That is, the provision prohibits from taking, selling or distributing any goods in any other region except such districts or zones as prescribed by the government. The provision also prohibits selling or distribution of any goods in contravention to the terms of agency or dealership prescribed by the government, or in such manner that may not ensure proper distribution among consumers. d. Hoarding of goods: The Act makes it illegal to hoard goods with the intention of deriving undue profit during the shortage of such goods in the market. e. Misrepresentation in selling or distributing goods: The Act prohibits selling or distribution of any goods with misrepresentation in regard to quality and nature of goods.

Analysis of the Substantive Rules and Procedural Standards The Black Marketing Act has implications on food security as it prevents potential distortions in the market that can impede people's access to, and availability of, food. The act is concerned with regulation of the market with the purpose of preventing potential distortions that can adversely affect consumers’ access to, and availability of, food. By prohibiting and punishing black marketing, profiteering, deflection, hoarding, misrepresentation etc, the act has tried to ensure that the consumers can have access to food at a reasonable market price 13

and that distributors or sellers of food cannot create food scarcity with a view to gain unreasonable profit.

Furthermore, the provision regarding prevention of deflection of goods from territories prescribed by the government can have an important role in addressing the food security needs of certain vulnerable areas within the country. The provision indicates a legislative plan to ensure food security in certain territories within Nepal, in case of emergency in such areas.

This is particularly vital given the very diverse geographical nature of the country and, hence, the different food security needs and challenges.

As a whole, the Black Marketing Act is relevant in ensuring access to reasonable quality of food at reasonable price during normal conditions and also in ensuring access to food during food scarcity in certain areas of the country. Hence, the act has both the resource allocation function as well as functions in regard to regulation of potential market distortions that may adversely affect food access or stability in the food security system. However a caveat is essential at this point; the act presupposes availability of adequate resources (food) at the national level and only seeks to manage redistribution of food according to the food security situation in the country.

3.7. Essential Commodities Control (Authorization) Act 1961 The Essential Commodities Control (Authorization) Act (hereinafter "Essential Commodities Act") was promulgated along with other social reforms legislations after the political change of 2017 B.S. The act has chosen a strict and punitive approach to regulating essential commodities in the market. The main purpose of the act seems to be that of entrusting the government with a broad authority to intervene in the production and distribution of essential commodities in the market. The preamble of the act defines its objective as "to authorize government to take harsh regulatory measures in regard to distribution, sale or trade of commodities, including food, thereby, ensuring public comfort."

According to the Essential Commodities Act, commodities include all such food products that generally fall under the staple food of a common Nepalese family. That is, under the definition of commodities, food products such as, paddy, rice, maize (corn), wheat, millet, barley and their flour, maida or other identical food items; rahar (yellow lentil), mugi, mas (black lentil) lentil, gram, pea, soybean and flour made therefrom and other identical food 14

items; linseed, mustard seed, sarsiyum (yellow mustard seed) sesame seed and other oilseeds and all kinds of oil; milk or any other food item made from milk; sugarcane, molasses, sugar or other identical substances; salt etc. have been included.

After including all the essential staple foods under the definition of essential commodities, the act then grants the overarching authority to control the production or distribution of essential commodities to the government. Under the government's authority to control the production or distribution of essential commodities the government may take the following measures: a. Issue license or take any other measures to regulate or control the storage, distribution, trade or consumption of the essential commodities. b. Fix price of the essential commodities. c. Force a person to sell the essential commodities or certain portion of the essential commodities to the public, the government, a person or a community. d. Keep records or collect data of the essential commodities or direct producers and distributors of the essential commodities to keep records of their transaction and the essential commodities they hold, produce or distribute. e. Use punitive measures against anyone who violates government's directives or measures taken by the government according to the act.

Analysis of the Substantive Rules and Procedural Standards Perhaps the Essential Commodities Act is closest to a specialized food security legislation in Nepal. The act has provisions that aim to ensure availability of, and access to, food as well as provisions that seek to ensure stability in the food security system as a whole.

The provisions in the act that relate to storage of food, production or distribution of foods prescribed by the government, price fixing and price hike prohibition, all can be crucial in creating a stable access to, or availability of, food to the public particularly during food shortages. The provisions in the act, if implemented, can manage food insecurity for the long term. However, the act may not be able to address sudden food security challenges, particularly, food security challenges pertaining to resource allocation.

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3.8. Local Self Governance Act, 2055 (1999) The broad objective of the Local Self Governance Act, 1999 is a legal arrangement for democratic practice at the local level by utmost participation of the people in the process of governance. The preamble of the act states that the aim is to have institutional development of local bodies for the development of local self governance system in a manner that will allow decision making at the local levels on matters affecting the day-to-day needs and lives of the people. The Local Self Governance Act was promulgated for the decentralization of governance, people's participation, management of local resources, regulation of local level activities relating to tax, trade, administration and development projects. In addition to the principles and policies related to local self-governance, the act has also delineated a long list of activities as the roles, responsibilities and rights of each unit, Ward, Village Development Committee (VDC), Municipality and District Development Committee (DDC).

Some of the basic features of the Local Self Governance Act, 1999 are as follows: a. Stipulates principles and policies for the development of local self governance system which include: devolution of powers, responsibilities, means and resources to the local bodies in order to ensure efficient local self governance. (Sec 3)

b. The act has specified functions, duties and powers of various local level committees. i.

Section 25 of the act mentions the functions, duties and powers of Ward Committee, stipulating that ward committees are obliged to maintain resources available in the area, arrange for their disposal, look after canals, drills, dams, and assist in afforestation and in conserving the environment.

ii.

Section 28 of the act defines the functions, duties and power of VDCs. In the functions related to agriculture, VDCs must carry out or cause to carry out agricultural development programmes within the area, arrange for agricultural markets (Haat), markets and fairs or assist in organizing such fairs. VDCs shall also operate a veterinary hospital for the prevention and control of animal diseases, and arrange for pasture areas for cattle grazing. Furthermore, under functions relating to drinking water, VDCs must prepare drinking water projects as well as implement and maintain the same. VDCs must also preserve water sources within the area. In regard to irrigation, VDCs must prepare irrigation, dams, canals, water channel, and water bank projects and implement them.

Similarly, VDCs must also prepare programs with respect to forests, vegetation, 16

biological diversity and soil conservation and implement the same. VDCs are also obliged to keep records of livestock within the area. iii.

Section 93 stipulates the functions, duties and powers of ward committees where it is mandated that ward committees shall assist the municipality in protecting and cleaning ponds, wells, lakes, deep water, canals, taps within the ward; look after canals, drills, water spouts etc, assist in afforestation; catch strayed quadrupeds and hand them over to the concerned agency. In addition to these functions, each ward committee must assist the municipality in the sale of food grains and other necessary goods at reasonable price within the ward.

iv.

Section 96 has categorized the functions, duties and power of the municipality. In regard to water resources, environment and sanitation, the municipality must preserve water resources, carry out and implement irrigation plans, assist in the protection of environment, protect forests, vegetation and natural resources.

Municipalities are also obliged to act as motivators to promote cottage, small and medium industries. Municipalities are also responsible for determining and managing places for keeping pinfolds and animal slaughter houses as well as arrange for Haat Bazar markets, fairs and exhibitions.

v.

Section 189 has categorized the functions, duties and powers of the District Development Committee (DDC). In regard to functions related to agriculture, DDCs are obliged to make district level policy on agriculture and livestock development, followed by formulation, operation, inspection and monitoring of the programmes, arrange for seeds, fertilisers and other agricultural inputs required in the district, provide services relating to agriculture extension in the area, promote agricultural markets and fairs. Under the functions related to rural drinking water and habitation development, DDCs are obliged to formulate and implement drinking water plans, habitation plans and market development in rural areas. Similarly, DDCs have the responsibility to prepare plans on forest, vegetation, biological diversity and soil conservation and implement them.

c. Local Committees (VDCs, DDCs, and Municipalities) may order shops to keep price index and fine shops for their failure to display such price index. Committees are also responsible for arranging for pinfolds in the VDCs and wards to control strayed quadrupeds.

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d. Apart from the Committees, the act has also established Councils in each committee that are responsible for making plans and policy of the respective committee and for monitoring the activities of the committee. In addition, a monitoring committee has also been formed under the chairmanship of the Prime Minister to evaluate whether the local committees have performed the functions in accordance with the objectives, policies and provisions of the act.

e. Local Committees are empowered to levy tax on local markets (Haat tax), rent tax (where land is given for the operation of local markets), business tax (industry, trade, profession), natural resource utilisation tax (for commercial exploitation).

f. The act has mandated local committees to encourage non-governmental organisations in identifying, formulating, approving, operating, supervising, evaluating, repairing and maintaining local development programmes.

According to Rule 117, Rule 193 of Local Self Governance Regulation (2000), the Municipal Council and District Council shall establish subjectwise committees constituting three members. The subjectwise committees include: Infrastructure development committee; agriculture, forest and environment committee; population and social committee; association and administration committee and water resource and land committee.

Analysis of the Substantive Rules and Procedural Standards a. The Local Self Governance Act and Rules have various provisions that relate to agricultural products' access to the market. The act aims to make access easy for farmers, to sell their products, and opportunity for consumers, to access local products. b. Provisions dealing with the protection of water resources, canals for irrigation, conservation of environment and biodiversity ultimately protect agricultural products and resources essential for cultivation and agriculture. c. Provisions for pasture land and animal disease control ensure availability, utilisation and stability in the access to meat and animal products. d. The act's focus on local participation in the formulation of agricultural development projects and plans promises efforts to ensure local production of food.

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e. More importantly, each ward committee is mandated to assist the respective municipality in selling of foodgrains and other necessary goods at reasonable price within the ward. This provision has attempted to regulate black marketing, anticompetitive conduct and unreasonable transaction in foodgrains and therefore, ensures access to, and availability of, food at reasonable price. f. The obligation of DDCs to make district level policy on agriculture and livestock development assures promotion of agriculture markets and management of agricultural products.

3.9. Animal Health and Livestock Services Act, 1999 (2055) Animal Health and Livestock Services Act, 1999 (Hereinafter 'the Animal Health Act') has the broad objective of providing necessary arrangements relating to animal health and livestock services. According to the preamble of the act, the objectives of the act are to systematise and develop the animal husbandry business and to provide necessary arrangements relating to healthy production, sale, distribution, export and import of animal products and animal production inputs.

The basic features of Animal Health and Livestock Services Act, 1999 are as follows: a. It defines 'animal products' which includes meat, blood, animal fat, bile, milk, egg, bone, skin, horn, hoof, feather, wool, fur, hair, embryo, semen, glands, dung, urine or unprocessed material made from such items. b. The act stipulates provisions relating to animal quarantine which empower the government to establish quarantine check posts in any area, construct quarantine posts, appoint quarantine officer etc. The act prescribes the importer's obligation to quarantine animals, animal products or animal production inputs (hereinafter collectively referred to as 'animal products') for a specified period of time for examination. c. The act empowers the government to restrict import of animal products found to have prescribed diseases by a notification published in the Nepal Gazette. d. The act empowers quarantine officers to prohibit import of animal products under various conditions, which mainly relate to ensuring wholesome and disease free animal products, provided in the act. e. It has provisions relating to the establishment of industries for exporting and importing animal products. A person willing to establish an industry related to 19

biological products, chicks, fingerlings, animal feed or for meat processing, export or import shall obtain an approval letter and license from the prescribed authority.

Analysis of the Substantive Rules and Procedural Standards a. The Animal Health and Livestock Service Acts has developed legal as well as institutional framework for the protection of animal products. b. The act aims to control import of contaminated animals and animal products so as to prevent consumption of contaminated animal products. Hence, the act functions to ensure food utilisation in the context of food security.

3.10.

Chapter on Cultivation of Land (National Code 1963)

The Muluki Ain 1963 (National Code 1963) Chapter on Cultivation of Land (Jagga Abad Garneko) (hereinafter "Chapter on Land") lays down rules regarding traditional and farmermanaged irrigation systems. The chapter mainly has provisions relating to construction of canals, their maintenance and priority in using water from them. In addition, it also has provisions regarding cultivation in one's own land, cultivation in someone else’s land and cultivation in public land. Some of the salient features and major provisions of the chapter are: a. The chapter on cultivation stipulates that a person who has constructed the irrigation canal shall have first priority in using the water from such canal. Water shall not be available for others unless and until the person who constructed the canal at his/her own expense or physical labour has satisfied his/her irrigation needs. In places where water has been traditionally shared, water shall not be curtailed deferring cultivation. b. After the land adjoining the source is irrigated, it is the right of the next land downstream to use that water. c. A new irrigation channel may be constructed at a point higher than the existing one only if the amount of water already available to the lower land, irrigated by the old irrigation channel, is not reduced. d. In case the irrigation channel is damaged by streams or washouts, the tenants shall repair the channel to the extent possible on pro rata basis. However, in case of inadequacy of capability and resource of tenants, the local government authority shall make submission to the government seeking assistance for the maintenance of irrigation canals.

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e. For the purpose of cultivation, irrigation canals may be constructed through cultivated or uncultivated land. However, in case of any land, other than barren land, the owner shall be compensated. f. Land covered by road, water source, inns, graveyards and similar public places and government land, that has been left barren according to the government's decision, shall not be cultivated. g. The government may give permission for the cultivation of any land as stipulated in the chapter. In case of cultivation of forest land, land covered by bushes, barren land, sandy land, tax shall be exempted for four years. If a cultivated sloppy land, subject to land tax and revenue, is turned into low/paddy land by constructing an irrigation canal up to that land, the land tax applicable to sloppy land shall be levied for four years. h. The chapter on cultivation of land prohibits keeping of any land barren, except in case of certain categories of public land, land adjoining houses and premises where people reside. i. The chapter also stipulates that a person is liable to pay five times the land tax payable during the period of cultivation if that person deliberately cultivates on any land made barren by the government.

3.11.

The Food Act 1966

The Food Act was promulgated with the objective of protecting public health and convenience. It is primarily concerned with the availability of quality food and preventing adulteration of food. As such, the act is an important piece of legislation in regard to food security as it deals with the utilisation aspect of food security. The act, like other acts promulgated during the same period (such as Land Act, Essential Commodities Act, Black Marketing Act) mainly uses strict punitive measures to enforce the provisions. Because of its focus on prevention of adulteration and distribution of sub-standard foodstuffs in the market, the act, in a sense, supplements the focus on access to and availability of food, as stressed by the Essential Commodities Act and the Black Marketing Act, with its focus on utilisation of food. Hence, when taken together with other legislations, the Food Act, along with the Consumer Protection Act, addresses the qualitative aspect of food security concerns.

The following are a few salient features of the act: a. Broad definition of foodstuffs: The act defines foodstuffs to include all foodstuffs or drinks, including additives, spices, colours or aroma that human beings may consume.

21

b. Definition of adulterated foodstuffs: The act includes, under the definition of adulterated foodstuffs, rotten foodstuffs or foodstuffs prepared or stored under unhygienic or toxic conditions; foodstuffs not suitable for human consumption because of

use of diseased animals or birds or harmful plants; foodstuffs with

additives and preservatives beyond the recommended level. c. Substandard foodstuffs: The act has defined substandard foodstuffs to include foodstuffs that do not match the characteristic quality of the product due to the alteration of quantity of the main ingredient or that do not conform to the quality prescribed by the Food Rules. d. The government may prescribe the level of food quality and prohibit distribution of adulterated or substandard foodstuffs. e. Licensing: According to Section 4 (b) of the act, any person willing to produce, distribute, store, process or sell foodstuffs should obtain license for the same.

As discussed earlier, the purpose of the act is limited to ensuring minimum quality in foodstuff that consumers may obtain in the market. As such, it functions as a check on the quality of food in order to ensure that the food available in the market can actually be utilised by the consumers.

3.12.

Animal Slaughterhouse and Meat Inspection Act 1999

The Animal Slaughterhouse and Meat Inspection Act 1999 (hereinafter "Animal Slaughterhouse Act") was promulgated with the objective of maintaining safe and quality meat for consumption. It provides a number of measures to ensure that the meat available for consumption is wholesome, adequate and of consumable quality. Following are the measures employed by the act to ensure quality of meat: a. Licensing requirements: The act makes it essential that all slaughterhouse operators or meat sellers get permission from the government before starting their business. b. Slaughterhouse: Except for religious, customary or other traditional reasons, the act makes it compulsory that all animals are slaughtered only in slaughterhouses. c. Meat inspectors and supervisors: The act has made provisions for the appointment of meat inspectors and supervisors to inspect meat and slaughterhouses respectively. It also makes ante-mortem examination of animals compulsory. d. Finally, the act prohibits selling or distribution of meat that does not fulfil the requirements prescribed in the act or the meat of diseased animals.

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The Animal Slaughterhouse Act, like the Food Act, uses punitive measures to ensure that the meat sold in markets meet the standards as prescribed. The provisions, therefore, relate to the utilisation aspect of food security.

3.13.

Seed Act 1988

One of the objectives of the Seed Act, according to the preamble, is to make available quality seeds to the public after the production, processing and examination of seeds. The act, therefore, primarily focuses on production, processing and examination of seeds. It prescribes the National Seed Committee as the highest authority responsible for the maintenance of quality of seeds and promotion of local production of quality seeds. Similarly, the act also makes provision for a seed certification body and a central seed testing laboratory to certify seeds and control the quality of seeds.

In line with its objective of maintaining quality of seeds, the act prohibits selling or distribution of seeds that are not listed according to the provisions of the act. Similarly, the act also authorises the government to prohibit selling or distribution of seeds except within certain territories of Nepal. Additionally, the act makes provisions regarding prescription of the minimum quality of seed, prohibition on sale of seeds treated by pesticides and licensing requirements for export and import of seeds. Finally, the act authorises the government to prohibit import or export of seeds of certain family/genus that may adversely affect or harm Nepalese agricultural activities.

Regmi and Adhikari have observed the following in regard to the Seed Act, Reviewing the Act, it seems that the objective of the Act is to encourage the private entrepreneurs only and not the small and local farmers. The Act does not recognise the farmers-to-farmers seed management system, which, by the virtue of these poor farmers, is in existence in the society since long. Due to the lack of legal protection, support and recognition by the government, the indigenous and traditional system of seed management is slowly being displaced. This is the major threat for the local seed management system and the food security situation of the country.6

6

Dhrubesh C. Regmi and Kamalesh Adhikari, Review and Analysis of Food Security Situation in Nepal, June 2004 (Prepared for ActionAid Nepal).

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3.14.

Environment Protection Act, 1997

The Environment Protection Act was promulgated in 1997 with the broad objective of protecting the environment. The preamble states that the reason for promulgation of the act is to make legal arrangements to maintain clean and healthy environment by minimizing, as far as possible, adverse impacts likely to be caused from environmental degradation, and to protect the environment with proper use and management of natural resources, taking into consideration that sustainable development could be achieved from the inseparable interrelationship between economic development and environment protection.

Some of the basic features of the act are as follows:

The act prescribes that industries carry out an Initial Environmental Examination (IEE) or Environmental Impact Assessment (EIA) based on the scale of operation of the industry and which must be approved by the concerned ministry.

a. The IEE or EIA is made mandatory to examine the significance of the impact on the environment to be made by the industry in operation. Provisions relating to EIA and IEE require that the general public residing in the proposed project area have an opportunity to present their opinion and suggestions concerning the impact of the industry on the environment. b. The industry is granted approval to implement the proposal on the basis of opinions and suggestions of general public, government's committee (constituted for studying the environmental impact) only if the industry appears not to have significant adverse impact on the environment. c. For the inspection of mitigation, avoidance or control of pollution, the government is empowered to appoint an Environmental Inspector. d. Environment Protection Rules, in its Annex 1, provides the list of industry types that require IEE, which includes a number of industries which are directly or indirectly related to food. Dairy processing industries and crude sugar or sugar industries, with a production capacity of 3000 metric tons per day, are required to conduct an IEE before establishment. Furthermore, other industries including slaughterhouses, food processing, cold storage, vegetable ghee, fish and meat processing etc, with the total fixed capital exceeding one million, also need to get an IEE approved. Irrigation 24

systems and drinking water industries also require IEE approval. Certain agricultural industries such as farming of domestic fowls (with 2,000-5,000 birds), big cattle (100500), small cattle – sheep and goats (1,000-5,000) and agricultural wholesale markets in urban areas require the IEE. Agro based industries such as milk processing industries, cheese industries, commercial fish farming also require the IEE prior to their establishment. e. Rules, in its Annex II, provides a list of industries which need to undergo EIA and get it approved before operation of the industry. Sugar industries producing more than 3,000 metric ton sugar per day, irrigation system covering huge areas, use of surface water or supplying drinking water in huge volumes require the EIA. Furthermore, in the agricultural sector, industries that include construction activities for farming more than 5,000 domestic fowls, more than 500 big cattle, more than 5,000 small cattle and urbanization plans in cultivable lands require an EIA. f. Impacts relevant for the IEA and EIA include: (i)

impact on social, economic, cultural spheres (human health, degradation of cultivable land, destruction of forest, change in social norms),

(ii)

biological impact (population, flora and fauna, natural habitat and communities) and

(iii)

physical impact (land, atmosphere, water, noise).

g. In the exercise of power conferred by the Environment Protection Act, 1996, the government has also framed the Ozone Depleting Substance Consumption (Control) Rules, 2001 so as to control consumption of certain compounds and substances in line with the Vienna Convention for the Protection of the Ozone Layer, 1985.

Analysis of the Substantive Rules and Procedural Standards a. The Environment Protection Act aims to protect the environment in line with the universally accepted principle of sustainable development. b. The Environment Protection Act and Regulation has made it mandatory for certain types of industries to undergo the IEE and EIA. Basically, the act aims to control impact on human health, land, forest, flora and fauna, natural habitat, natural resource and environment as a whole.

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c. The act has placed the protection of agricultural land among its objectives. Thus, it is directly related to the protection of agricultural products. In this regard, the act has an important role in ensuring stability in the availability of, and access to, food.

3.15.

Water Resource Act, 1992

Water Resource Act, 1992 was promulgated with the broad objective of the management of water resources. Its preamble mentions the objective: "to make arrangement for the rational utilisation, conservation, management and development of the water resources that are available in Nepal." The act aims to conserve, utilise, manage and develop surface water, underground water or water in other forms. The act further aims to make legal arrangements to determine beneficial uses of water resources.

Some of the basic features of the Water Resource Act are as follows: a. Ownership of water resources available in Nepal shall be vested in the Government of Nepal. b. The act makes it compulsory for anyone to get a license in order to utilise water resources. The compulsory licensing requirement is exempted for domestic use, irrigation of land individually or collectively, running water-mill or water-grinder, use of boat on personal basis for local transportation, use of water resources confined in privately owned land. c. The act makes provisions regarding the establishment of Water Users Association in order to promote collective use of water resources for mutual benefit. This provision can be crucial in allowing members of communities to manage scarce water more efficiently. d. The act empowers the government to set necessary quality standards of water resources for various uses. e. The act prohibits conducts that may have adverse effects on the environment by way of soil erosion, floods, landslides etc.

The act defines “priority� in the use of water resources. It says that the use of water resources for the purpose of drinking is the top priority which is followed by the use of water resources for irrigation and agriculture. This reflects the fact that the act intends to assist agriculture sector to increase productivity.

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Furthermore, as per power conferred by the act, the government formulated the Irrigation Rules, 2000 which provides a legal framework for farmer managed irrigation systems. The said system has an important role in empowering small communities and farmers to become increasingly self reliant in food production.

3.16.

Industrial Enterprise Act, 1992

The Industrial Enterprise Act, 1992 was promulgated with the main aim of industrial development in the country. The preamble states that the act aims for the overall economic development of the country and to make arrangements for fostering industrial enterprises in a competitive manner.

Analysis of the Substantive Rules and Procedural Standards a. The act classifies industries on the basis of products-- as energy based, agro and forest based, mineral based, tourism, service and construction. Agro and forest based industries include businesses mainly based on agriculture or forest product, such as integrated sericulture and silk production, horticulture and fruit processing, animal husbandry, dairy industry, poultry farming, fishery, tea gardening and processing, vegetable seed farming, mushroom, vegetable farming or vegetable processing, tissue culture, green house, bee keeping, honey production, rubber farming, floriculture and production and forestry related business such as leasehold forest, agro forestry etc. b. It classifies industries on the basis of scale of operation and use of resources as cottage industries, small industries, medium industries and large industries. c. Industries that may have adverse effects on the security, public health and environment

must

get

permission

for their establishment,

extension

and

diversification. d. The act has ensured facilities and concessions to be accorded to industries. Any industry established in remote, underdeveloped and undeveloped areas (other than tobacco related, liquor), shall be granted a rebate in excise duty for a period of ten years. Furthermore, industries based on fruit processing and cider and wine industries with a fixed asset of up to two and a half million rupees established in prescribed remote areas shall get excise duty and sale tax exemption for ten years subject to an additional three years exemption by the government.

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e. The act also provides additional facilities such as providing any forest on a leasehold basis to forest-based industries.

3.17.

Forest Act 1993

The main objective of the Forest Act is to conserve forests and ensure overall conservation of biodiversity. Among the various types of forests categorised by the act, perhaps, “community forest� is relevant in regard to food security. The concept of community forest aims to engage local communities in the conservation of forests by means of resource sharing. That is, according to the Forest Act and Regulations, local communities (members of a community forest) can derive various benefits from community forests, including establishment of industries, cultivation of cash crops, as well as collect, sell and distribute forest products (including timber and firewood). As such, the act has allowed local communities to utilise community forests and the resources available in the forest to improve their living standards and address food security needs of the members of the communities.

Table 3: Summary table of Nepalese food-related legislation Legislation Name of legislation relating to food Essential Commodities Control (Authorization) Act Availability

Accessibility

Utilization

Stability

Year of enactment 1961

Land Act

1964

Black Marketing and Few Other Social Offense and Punishment Act

1975

The Muluki Ain (National Code) Chapter on Cultivation of Land

1963

Land Act

1964

Industrial Enterprise Act

1992

Water Resource Act

1992

Forest Act

1993

Local Self Governance Act

1999

Food Act

1966

Seed Act

1988

Consumer Protection Act

1997

Animal Health and Livestock Services Act

1999

Animal Slaughterhouse and Meat Inspection Act

1999

Essential Commodities Control (Authorization) Act

1961

Land Act

1964

Black Marketing and Few Other Social Offense and Punishment Act

1975

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Industrial Enterprise Act

1992

Forest Act

1993

Consumer Protection Act

1997

Environment Protection Act

1997

Local Self Governance Act

1999

Competition Promotion and Market Protection Act

2007

4. National policies pertaining to food security 4.1. National Agriculture Policy 2061 B.S. The main objectives of the National Agricultural Policy are food security and poverty alleviation. The policy also stresses on competitive and professional farming for the purpose of achieving economic growth and, ultimately, ensuring food security and poverty alleviation.

The National Agriculture Policy aims to achieve its objectives primarily by taking various measures that would increase agricultural productivity and competitiveness in the agriculture market: a. Utilisation of local potential, comparative advantage and speciality. b. Focus on diversification of agriculture. c. Discouraging the use of cultivable land for non-agricultural purpose. d. Development and expansion of irrigation, agriculture road, rural electrification and other relevant technologies. e. Promotion of cultivation of products of less weight and high value in regions that are remote and lack adequate transportation facilities. f. Devolution of authority to local bodies to develop, implement and monitor agriculture plans. g. Promotion of big agricultural projects under the coordination and responsibility of central authorities. h. Development and reform of agriculture resource centres that would assist farmers in producing, storing, collecting, and transporting seeds, plant shoots, plants, and other agricultural products. i. Regular monitoring of production, import and stock of major production materials such as, livestock, poultry, fish, chemical fertilizers, seeds etc. j. Ensuring agricultural credit.

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k. Establishment of survey and surveillance tools to predict adverse weather patterns, diseases, insects infestation and other natural disasters and mobilization of agriculture rescue programmes. l. Training of local farmers. m. Establishment of agriculture research centres and academic institutions. n. Provision of special facilities for resource-poor farmers who have less than four hectares of land. o. Special facilities for farmers who belong to various downtrodden groups and communities and who have less than half a hectare of land. The facilities include tax breaks, establishment of land banks, provision of free seeds and other technology related services, establishment of local means of irrigations, development of food stocks and other safety nets to meet the challenges of food insecurity etc.

The National Agriculture Policy covers a broad range of issues that can have direct implication in regard to food security. The policy has provisions for food stocks, including stocks of seeds and other essential tools necessary for the production of food, increasing productivity and plans to address food insecurity, engaging local and small farmers in addressing food security concerns in their respective communities, land banks, agriculture credits. In this regard, the policy can have important bearing on ensuring stability in the access to food at the local level and, thus, contribute to food security in the most vulnerable regions of the country. The policy seems to have focused mainly on small farmers and food security concerns of remote regions of the country. Various special facilities have been promised for small farmers, including farmers who belong to various downtrodden groups or communities, as such facilities are likely to contribute in sustaining food security at the grassroots.

4.2. Government of Nepal Supply Policy, 2011 The core objective of Supply Policy 2011 is to provide access to quality goods or services under competitive conditions. In addition, it also focuses on ways of addressing potential shortages in food supply owing to natural disasters or other unforeseen circumstances that may adversely affect food security. The policy addresses concerns regarding food security primarily by regulating possible distortions in the food market, creating provisions for buffer stocks at national, regional and local levels and promoting production and distribution of local food in regions most vulnerable to food insecurity.

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The Supply Policy has defined its food security policy in the following terms: a. Stabilisation of the essential foods market and provision of buffer stocks at national, regional and local levels. b. Special measures in remote areas for food stock and storage. c. Provision for the supply of quality food. d. Special programmes for the production of local produce. e. Special programmes to ensure supply of essential goods or services to the public during emergencies. f. Special programmes to ensure sovereignty of the people over food and the right against hunger.

In order to achieve its food security objectives, the Supply Policy has identified the following strategies: a. Provision of creating a buffer stock of essential commodities that can meet the food demand of the consumers for three months. b. Transportation subsidies for the movement of food to remote areas that suffer from food scarcity. Special programmes to promote local production of food in such areas. c. Provision of national as well as a SAARC food buffer stock d. Mobilization of public and private institutions to create food buffer stocks.

The Supply Policy seems to have relied almost completely on buffer stocks as an answer to food security concerns. Indeed, buffer stocks can be crucial in ensuring food security as they ensure stability in the availability of, and access to, food even during periods of scarcity brought about by natural disasters. Additionally, effective buffer stocks can also function as a cushion against the adverse impacts on food security created by market malpractices and distortions.

Fortunately, in regard to the implementation, there are adequate provisions in the prevailing legislations that can allow the government to take food security measures as identified by the policy. Particularly, the Land Act and Essential Commodities Control (Authorization) Act 1961 have provisions that can enforce the policy of establishing national, regional and local buffer stocks.

4.3. Government of Nepal Climate Change Policy 2011 31

Achieving a balance among utilisation of resources, security of livelihood, and climate adaptation methods and strategies is the core of the Climate Change Policy of Nepal. The policy aims to mitigate the effects of climate change in order to ensure protection of livelihood (food security) of the people from the adverse impacts of climate change.

Although the policy is primarily concerned with the methods and policies relating to mitigation of effects of climate change, it also provides various safeguards to counter the challenges that climate change may pose. For instance, the policy has discussed in detail the issue relating to access to resources in the context of climate change. The Climate Change Policy aims to ensure access to both financial as well as natural resources in order to mitigate the challenges of climate change.

Provisions for access to financial and natural resources are crucial in ensuring food security during food shortages brought about by climate change. Particularly, the Climate Change Fund can be an important safeguard against food shortages resulting from climate change.

Furthermore, capacity building and peoples' empowerment also figure as a part of the policy to mitigate the effects of climate change. The provision for developing climate changeresistant food grains, multi-purpose plant varieties and trees also aim to ensure stability in the access to food during severe climatic conditions.

In conjunction with the Climate Change Policy, the government has also prepared the National Adaptation Programme of Action (NAPA) and the National Framework for Local Adaptation Plan for Action (LAPA) in order to further adapt to climate change. Both NAPA and LAPA have local communities' ability to access and manage resources as their key objectives.

4.4. National Seed Vision (2013-2025) The National Seed Vision of the government, prepared in April 2013, aims at achieving an increase in crop productivity, income, employment, import substitution and export of quality seeds. Availability of quality seeds is certainly one of the prerequisites of sustainable agriculture production and therefore is vital in the context of overall food security in the country. The National Seed Vision envisions not just the increase of seed production through the formal system by threefold by 2025, but also aims at increasing quality of seeds and seed replacement rates in order to introduce new quality seeds in the farms. According to the vision, a proper translation into practice of the Vision would result in the availability of eight 32

million metric tons of food to the people by 2025, or an increase by 40 per cent from the base period of 2010. This will, in turn, contribute significantly to the food security of women and other disadvantaged groups of the country.

The vision aims to achieve its objectives mainly by producing qualitative and varietal production of seeds and by involving private and public institutions in the production, marketing, export and use of new varieties and quality seeds in the farm. It identifies institutional strengthening and investment in the seeds sector, along with incentives for farmers and breeders to produce new varieties of seeds and their utilisation.

5. Analysis of the legislation (on the basis of the four-elements-model of food security) 5.1. Availability of Food The availability of sufficient quantities of food of appropriate quality, supplied through domestic production or imports (including food aid)." (FAO, 2006)

From the FAO's explanation of the 'availability of food' aspect of food security, it may mean the governments' direct assistance in both the supplying of food aid during periods of food insecurity, as well as in devising regulating measures to remove market distortions that may adversely affect the availability of food. Nepalese legislations pertaining to food security that address the 'availability of food' aspect do not have provisions relating to food aid. According to the analysis made in this study, the relevant legislations generally focus on removing potential market distortions that hamper availability of food to the people. That is, in regard to the issue of availability of food, Nepalese legislations have largely adopted measures that provide negative obligations to the state. For example, the Black Marketing Act, the Consumer Protection Act and the Essential Commodities Act have taken negative measures that prevent unreasonable price-hike of food or that deflects supply of food from food scarce regions to other regions of the country. Indeed, use of such regulating measures is also important as such measures serve to remove economic or behavioural (market distortions) barriers that may hamper availability of food. In addition, provisions granting the authority to the government to fix price or direct food supply towards certain regions (districts or zones), to force people to sell food to the government or food insecure people, have expanded the scope of government intervention during times of food scarcity.

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Compulsory food deposit schemes, in accordance with the Land Act, serve to mobilize resources in local communities that can naturally have positive implications on ensuring availability of food, particularly during periods of food insecurity. As such, the compulsory food deposit system may allow the government to devise a system of food aid. However, the Land Act and other prevailing legislations are not clear regarding the use of deposited food.

Therefore, simply having a system of food deposit may not essentially address the food security concerns of the community as a whole. In this regard, it will be appropriate to devise legislative measures that will regulate/manage deposited food with a view to tackle potential scarcity. Furthermore, relying completely on local farmers to deposit food may not be a practical or effective solution. It is imperative that the state also takes a more active role in ensuring food deposits or devises plans to re/distribute food during periods of food insecurity.

This may take the form of food aid, as suggested by the FAO, but the extent of the food aid will naturally depend upon the state's ability to mobilize its resources and its broad policy choices.

5.2. Access to Food Access by individuals to adequate resources (entitlements) for acquiring appropriate foods for a nutritious diet. Entitlements are defined as the set of all commodity bundles over which a person can establish command given the legal, political, economic and social arrangements of the community in which they live (including traditional rights such as access to common resources).

'Availability of food' and 'access to food' aspects of food security both relate to ability of people to immediately receive essential foods. However, while availability of food relates to existence of food for purchase or as government food aid, 'access to food' relates to various arrangements (economic, social, legal or political) that can allow availability of food for its enjoyment or use by the people. That is, unlike the 'availability of food' aspect which is concerned with the ultimate end of food security (i.e. food itself), 'access to food' is concerned with the various means that may make it possible for the people to achieve that end of food security.

Nepalese legislations pertaining to food security have created a number of measures and rules that are related to access to food. Some of those measures and rules are: a. Resource (Land) re/allocation: The core of the 'access to food' aspect of food security relates to availability of resources for the people to be able to either produce or buy 34

food. This, in turn, can be done either by transferring resources to the productive or vulnerable group (food insecure) or by arranging measures that can promote effective and efficient use of resources. In this regard, the Land Act's provision relating to the determination of landholding ceilings, and redistribution of lands above the ceiling among the landless, is perhaps a quintessential example of a legal provision attempting to transfer resources to food insecure groups and, thus, ensuring access to food of the people with limited resources. Similarly, the National Code chapter on land use prohibits holding of barren land and regulates the use and sharing of water resources for the purpose of cultivation and, thereby, seeks to ensure maximum utilisation of available resources for the production of food. Provisions for collective use or sharing of resources are also made by the Water Resources Act. The Water Resources Act further gives priority to agricultural use of water with regard to use or sharing of water resources. b. Creation of food deposit or stock: Establishment of a system that pools resources/food with the distributive objective of sharing or reallocating during periods of food insecurity also has important implication on access to food. In this regard, the Land Act's provisions governing the compulsory deposit system address this aspect of access to food. c. Incentives and safeguards with regard to access to food: Incentives or safeguards that assist production or distribution of food are important to promote food accessibility.

Provisions, such as the Land Act's agricultural debt related safeguards for farmers and incentives for cooperative farming; the National Code Chapter on Land Use's tax exemptions for turning barren or sandy land into low/paddy land; the Industrial Enterprise Act's incentives in regard to establishment of a few (agro) industries in remote regions of the country; the Forest Act's provision on community forest and authorisation of various economic activities by members of community forests in such forests; the Water Resources Act's promotion of farmer managed irrigation systems etc. are all examples of incentives and safeguards that promote access to food and effective utilisation of resources. d. Government Regulation: Government regulations to correct potential market distortions are also vital in creating an effective system for access to food. In addition, government's assistance in resource allocation, conservation of resources, management of food supply and distribution, assistance in producing seeds, fertilizers, new technologies, other agricultural inputs available to the farmers – as provided by 35

the Local Self-Governance Act – contribute to effective production of food and, thus, ultimately assist in making food more accessible. The government's authority to regulate various forms of market distortions is also relevant in removing such market distortions that may adversely affect access to food.

5.3. Utilisation of Food Utilization of food through adequate diet, clean water, sanitation and health care to reach a state of nutritional well-being where all physiological needs are met. This brings out the importance of non-food inputs in food security.

As stated by the FAO, the utilisation of food "brings out the importance of non-food inputs in food security". That is, instead of dealing directly with the availability of or access to food, the utilisation aspect of food security relates broadly to the qualitative feature of food. In this regard, Nepalese legislations relating to utilisation of food are as follows: a. Consumers' right: Consumers' right to quality goods, including right to information regarding price, quality, quantity, nature etc. proper labelling, is provided in the Consumer Protection Act and the Black Marketing Act. b. Quality control and standardisation of food: The Local Self Governance Act's provisions governing slaughterhouse operation and management; the Animal Health Act's provisions governing animal quarantine and animal health; the Food Act's provisions prohibiting adulteration or substandariation of food; the Animal Slaughterhouse Act's provisions governing slaughterhouse, meat inspectors and supervisors; the Seed Act's prohibition of certain seeds, seeds treated with pesticides are examples of legislations seeking to ensure quality of food. Similarly, the Food Act, the Animal Slaughterhouse Act and the Seed Act authorise the government to standardise the quality of food, meat and seeds respectively by providing a minimum criterion.

The

abovementioned

provisions

prescribing

quality

control

and

standardisation can have vital implications on the maintenance of quality in food and, therefore, also in ensuring achievement of the 'utilisation of food' aspect of food security. However, since there are a number of laws that provide mechanisms of quality control and standardisation of food, it is only practical that efforts are made to harmonise the standards and supervision mechanisms to ensure effective quality control and standardisation of food.

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5.4. Stability of Food To be food secure, a population, household or individual must have access to adequate food at all times. They should not risk losing access to food as a consequence of sudden shocks (e.g. an economic or climatic crisis) or cyclical events (e.g. seasonal food insecurity). The concept of stability can therefore refer to both the availability and access dimensions of food security.

The stability aspect of food security can be said to be a temporal dimension of food security.

According to this aspect of food security, permanence in the availability of, access to and utilisation of food is essential in order to make the system truly food secure. That is, only when people are consistently food secure and that sudden economic or climatic crisis do not adversely affect people's access to quality food can the state be properly called food secure.

In this regard, the following legislations are relevant as they seek to ensure permanence in the availability of, access to and utilisation of food: a. Regulation of Market: Regulation of the market in order to correct potential distortions in the form of anticompetitive conducts is perhaps one of the prerequisites of food stability. Since anticompetitive conducts can severely affect the functioning of a market by altering the dynamics between supply and demand and cost of products, regulation that corrects anticompetitive conducts can promise predictability in the market and business transactions. In addition, regulation of the market, by the Competition Act, to prohibit price fixing, output limitation, market divisions, syndicate systems, exclusive dealing etc. directly ensure food availability without artificial disruptions and distortions. Provisions similar to the Competition Act can also be found in the Consumer Protection Act, which also prohibits various restrictive business practices. Similarly, prohibition of hoarding of food according to the Black Marketing Act, and provisions relating to distribution of food according to the Essential Commodities Act also aim to correct market anomalies to ensure consistency and predictability in the availability of and access to quality food. b. Management of Resources: The Land Act's provisions governing the compulsory deposit system, prevention of land fragmentation and directives on compulsory use of government's land point towards measures governing management of resources in the long run. This can address not just immediate food insecurity concerns but also potential food insecurity concerns of the future. Similarly, the Essential Commodities Act has provisions for storing food to meet public demand. Provisions relating to 37

management of resources are also present in the Local Self-Governance Act. The Local Self-Governance Act covers wide ranging issues from arranging grazing fields for cattle to controlling animal disease and constructing canals with the participation of the local communities. The act also governs the management of resources and availability of food, seeds, fertilisers, agricultural inputs to farmers etc.

6. Conclusion The right of every citizen to “food sovereignty� has been defined as a fundamental right of the people by the Interim Constitution of Nepal.7 However, the fundamental right is yet to be translated into practice because there is no enabling legislation to do that. Nor is there any programme at the national or sub-national level to provide guaranteed access to food to the needy and deserving people. The fundamental right itself anticipates executing food security law to enforce the fundamental right. However, so far, there is no specific food security law in Nepal.

Indeed, the various acts, discussed in this study, when taken together and implemented in conjunction, a promising legislative framework can be found that can have a positive impact on food security in Nepal. Naturally, in the absence of a specialised food security law, not all aspects of food security are protected by the present legal framework. For instance, provisions for a public distribution system or food aid provisions are not adequately addressed by the present law. Other than food aid provisions, Nepalese law tries to address people's access to resources, maintenance of food quality, emergency provisions etc.

However, all those provisions are scattered among different laws that do not necessarily share the food security objectives. In fact, not a single law seem to have prioritised food security.

Additionally, legislations that are in force at present are mostly concerned with the government regulating the market to prevent such distortions that may impede access to or availability of food. Relevant legislations have used various punitive measures in order to ensure their implementation. It is quite natural for regulatory legislations to use punitive measures to remove market distortions that may hamper food security. However, the absence of other adequate economic or social incentives with regard to legislations seeking resource mobilisation (particularly storage of food, production or distribution of certain crops) may

7

The Interim Constitution of Nepal 2007, article 18(3).

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prove inadequate in dealing with food insecurity in Nepal. This means, it is imperative that Nepal promulgates a specialised food security law that will not only consolidate the existing provisions scattered in various laws but also devise additional provisions particularly relating to the public distribution system.

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References Dhrubesh C. Regmi and Kamalesh Adhikari. 2004. Review and Analysis of Food Security Situation in Nepal, (ActionAid Nepal: Kathmandu).

FAO, Assessment of Food Security and Nutrition Situation in Nepal 2010, 57 (available at: ftp://ftp.fao.org/OSD/CPF/Country%20NMTPF/Nepal/thematic%20studies/Food%20Secur ity%20_Final_.pdf (accessed on 19 March 2013).

FAO, Food Security, Policy Brief, 2006, issue 2, p. 1. Available ftp://ftp.fao.org/es/ESA/policybriefs/pb_02.pdf (accessed on February 28, 2013).

at:

FAO, The Status of Food Insecurity in the World, 2012 http://www.fao.org/docrep/016/i3027e/i3027e.pdf (accessed 20 March 2013).

at

available

Government of Nepal Climate Change Policy 2011.

Government of Nepal Supply Policy, 2011.

National Agriculture Policy, 2061.

The Interim Constitution of Nepal, 2007.

World Food Summit 1996, See FAO, Food Security, Policy Brief, 2006, issue 2.

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