Kathmandu, 11 October 2021
The Campaign to restore archaeological Kamal Pokhari in Thamel has condemned the “inadequate, irresponsible and false” reply provided by the Government of Nepal in response to the joint letter sent by four UN mechanisms to the Government concerning violations of the rights of indigenous Newars, including to their lands and resources and culture, due to construction of mega business complex Chhaya Center in Kathmandu.
As per the Campaign, the violations have occurred because a private Nepali company Chhaya Devi Complex Pvt. Ltd has constructed Chhaya Center, “the biggest business complex in Nepal’s history” after unlawfully acquiring the communal trust lands – traditionally holding a holy pond and its surroundings structures and areas – of the indigenous Pradhan Newar community in Kathmandu’s tourist district of Thamel. Despite local opposition and protests, including by human rights and cultural activists, the business complex officially opened in 2018 currently houses 200 retail stores, including high-end brand outlets, multiplex theatres, corporate offices, banquet and conference halls, casino, discotheque, etc., as well as a five-star hotel Aloft Kathmandu Thamel of the Marriott International, Inc.
The Campaign today, in separate letters emailed to the Special Rapporteur on the rights of indigenous peoples, the Working Group on the issue of human rights and transnational corporations and other business enterprises, the Special Rapporteur on the situation of human rights defenders, and the Special Rapporteur on the right to adequate housing of the UN Human Rights Council, provided follow up information in response to the reply provided by the Government on 31 May 2021[1] to their joint communication sent to the Government on 30 March[2].
The UN mechanisms, in response to the information sent by the Campaign to them on 2 July 2020, had sent a joint communication to the Government of Nepal seeking, among other things, its clarification on the allegations of human rights violations due to the construction of the Chhaya Center and measures taken by it to grant the Newars access to the Thamel Monastery, the Kamal Pokhari and the surrounding areas in order for them to exercise their right to religious practice. In its reply, the Government provided no clarification on the construction of the Chhaya Center and its impacts on local indigenous Newar communities and merely stated that it “has not prevented Newar community’s access to the Thamel Monastery, the Kamal Pokhari and the surrounding areas to exercise their rights to religious practice.”
The Campaign earlier issued a press release on 7 July[3] and also submitted a letter to the Office of the Prime Minister and Council of Ministers on 12 July[4] condemning the reply of the Government. Accordingly, as stated in the letters of the Campaign to the UN mechanisms, the reply of the Government shows its lack of irresponsibility to protect the rights of the indigenous communities as guaranteed in the Indigenous and Tribal Peoples Convention (No. 169) of the International Labour Organization and the UN Declaration on the Rights of Indigenous Peoples. It has failed to stop the gradual encroachment of the Kamal Pokhari that holds historical, cultural, archaeological and religious significance for the indigenous Newars and eventual construction of the Chhaya Center business complex by the Chhaya Devi Complex Pvt. Ltd. The construction of the business complex has completely engulfed the Kamal Pokhari pond and its surrounding lands and our funeral and other rituals undertaken there have been obstructed.
The Campaign has recalled the attention of the UN mechanisms that the the construction of the business complex has seriously infringed the religious and cultural customs and traditions of Pradhan Newars based on the land and resources, thus violating their human rights and fundamental freedoms. The holy pond, Kamalpokhari (known as Paleswa Pukhu in Newar language), and its surrounding lands and structures traditionally owned by the Pradhan Newars of the local Thamel monastery have now completely vanished. While the lands have been disputed in courts since 2014 and the dispute is also sub-judice at the Supreme Court since the same year, the construction of the complex was rushed and eventually completed, and it was officially opened in 2018. The Kathmandu Metropolitan City gave the permission and certificate of completion for the construction and the concerned authorities have not taken adequate actions to resolve the matter while the court hearings on the case have been repeatedly postponed.
Further, the Campaign has informed the UN mechanisms that its lead activist, , Bhagabat Narsingh Pradhan, has been continuously facing retaliations due to his legitimate activism for protection of the rights of the indigenous Newar communities in relation to the construction of the Chhaya Center business complex. Pradhan has been receiving frequent threats, including to his life, and also been facing judicial harassment as a person associated with the business complex has filed a petition against him at Nepal’s Supreme Court for contempt of court due to his public statements against the complex. More recently, in December 2020, leaders of the workers’ unions at the Chhayadevi Complex even went to his house to threaten him and his wife to stop any activities against the business complex.[5] After his complaints to the National Human Rights Commission and the police, the matter was settled at the police on the consent of both parties.
The Campaign has called on the UN mechanisms to follow up on their communication to the Government of Nepal at the earliest about the need to take immediate steps, among other things, to ensure the protection and promotion of the rights of indigenous Newar communities violated by the construction of the Chhaya Center business complex, including through prompt resolution of the court cases sub-judice on the matter, as well as the security of the human rights defenders undertaking legitimate actions in relation to the matter.
Furthermore, with reference to the reply from the Marriott International sent on 29 April[6] to the joint communication from the UN mechanisms, the Campaign has affirmed that the Marriott failed to conduct its own effective human rights due diligence for its involvement with the Chhaya Center, including in compliance with the UN Guiding Principles on Business and Human Rights. The Campaign has thus urged the UN mechanisms to follow up with the Marriott International to take necessary steps promptly to ensure its compliance with the Guiding Principles with regards to its involvement with the Chhaya Center business complex, including through conduct of its own human rights due diligence, as well as the security of the human rights defenders undertaking legitimate actions in relation the complex.
The Campaign has also drawn attention of the UN mechanisms that the negative human rights impacts on indigenous Newars in Kathmandu due to the actions of the Marriott International is not an isolated event. It informed that indigenous Quechua people in Peru have also suffered an aggression against their religious and cultural rights by Marriott, who destroyed an ancient Inka temple in Cusco (the Wakapunku temple) to build a Four Points by Sheraton hotel.
The Campaign has requested the four UN mechanisms to joint examine the follow up information submitted in line with their mandates and take necessary steps at the earliest possible.
Click here to read the full letter submitted to the UN mechanisms by the Campaign on 11 October 2021.
Click here to read the earlier information submitted to the UN mechanism by the Campaign earlier on 2 July 2020 for more details.
[1] See https://spcommreports.ohchr.org/TMResultsBase/DownLoadFile?gId=36171
[2] See https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=26282
[3]See https://www.samachardesk.com/kamapokhari-chhaya-complex-press-release-20210707?fbclid=IwAR2zy6x9KYwlGF3PCJ3fNK78elG21tGnvy-ncjm0Bggnw5g6I7WSDjJlPas (in Nepali)
[4] See https://nonstopkhabar.com/archives/64505?fbclid=IwAR3cGgDrhS3zqB_D2g2B1owjVnTbQT2TTmtQSIZ35d7Xrg62wEUe1VSiGK4; http://kirtionline.com/2021/07/2875/?fbclid=IwAR0yvICmt1PWi9oU0k8QTsY5U669_aZbco15ngVmGhs3b7asMSCqfO-waJw (in Nepali)
[5] See https://www.diyopost.com/12/84466/?fbclid=IwAR05ojzQPLH2wO5ga5g8JDM6ZHBO6U8hrYysZoyFPwiraGsjw9KHRQOxdyY (in Nepali); https://cemsoj.wordpress.com/2020/12/31/chaya-centers-workers-become-owners-thugs-threaten-heritage-rights-activist-with-letter/ (translated in English)
[6] See https://spcommreports.ohchr.org/TMResultsBase/DownLoadFile?gId=36222