West Seti verdict a watershed? |
'Decision not in national interest'
Ananta Raj Luitel
Kathmandu September 17
The recent verdict of the Supreme Court on the West Seti Project has paved the way for construction of mega hydropower plants with foreign investment. Responding to a petition, the apex court, on September 9, upheld the contract reached between the Snowy Mountain Engineering Corporation, the government and Power Trading Corporation of India for the commissioning of the 750-MW export oriented power project. In its ruling, the SC said there was no need for its intervention in the matter. The new court ruling has set a precedent for cases concerning other mega projects, including Upper Karnali, Arun III, Budhi Gandaki and Upper Tamakoshi. The government plans to commission these projects under Build, Own, Operate and Transfer (BOOT) system. In the West Seti ruling, a division bench of justices Anup Raj Sharma and Kalyan Shrestha said there was no need for two-third members of the Legislative - Parliament to approve of the project.
Article 156 of the constitution does not come into play when management of the project is concerned, the justices stated in the ruling. As the contract pledges to return the project to the government after 30 years of operation, the project is not related with the distribution of natural resources, the ruling said.
Local residents of the proposed West Seti project site have been accusing the government of not focusing on their rehabilitation. In this light, the bench directed the gover5nment and the Nepal Electricity Authority to form a permanent mechanism to rehabilitate the displaced, conserve the environment and take flood control measures, According to an estimate, the project will displace around 7876 people. The government is working out measures to rehabilitate them. However, there is no dearth of lawyers, who relate the proposed projects with the Tanakpur case. One-and-a-half decade ago, the supreme court had scrapped the Tanakpur agreement, saying that the same was reached without seeking approval of two third members of the then parliament.
"The apex court verdict on the West Seti case has paved the way for commissioning of mega power projects with foreign investment, but this verdict will affect the country in the long run," advocate Balkrishna Neupane said. Article 156(1) states that the ratification of, accession to acceptance of or approval of treaties or agreements to which the State of Nepal or the Government of Nepal is to become a party shall be as determined by the law.
Sub- section (2) reads that laws to be made pursuant to clause (1) shall, inter alia, require that the ratification of, accession to acceptance of or approval of treaty or agreements on the following subjects be done by a two-third majority of the total number of members of the Legislature-parliament.
(a) peace and friendship;
(b) security and strategic alliance;
(c) The boundary of Nepal; and
(d) Natural resources and the distritution of their uses.
Provided that out of the treaties and agreements referred to in the sub-clauses (a) and (d), if any treaty or agreement is of ordinary nature and which does not affect the nation extensively, seriously or in the long term, the ratification of, accession to, acceptance of or approval of such a treaty or agreement may be done at a meeting of the Legislature-Parliament by a simple majority of the members present in the House.
"This verdict has overruled the Tanakpur case verdict," said Neupane. " If the government is to go by this verdict, it does not need to submit agreements on water resources at the parliament for approval, " he added.
Source: The Himalayan Times, 18 September 2008
The recent verdict of the Supreme Court on the West Seti Project has paved the way for construction of mega hydropower plants with foreign investment. Responding to a petition, the apex court, on September 9, upheld the contract reached between the Snowy Mountain Engineering Corporation, the government and Power Trading Corporation of India for the commissioning of the 750-MW export oriented power project. In its ruling, the SC said there was no need for its intervention in the matter. The new court ruling has set a precedent for cases concerning other mega projects, including Upper Karnali, Arun III, Budhi Gandaki and Upper Tamakoshi. The government plans to commission these projects under Build, Own, Operate and Transfer (BOOT) system. In the West Seti ruling, a division bench of justices Anup Raj Sharma and Kalyan Shrestha said there was no need for two-third members of the Legislative - Parliament to approve of the project.
Article 156 of the constitution does not come into play when management of the project is concerned, the justices stated in the ruling. As the contract pledges to return the project to the government after 30 years of operation, the project is not related with the distribution of natural resources, the ruling said.
Local residents of the proposed West Seti project site have been accusing the government of not focusing on their rehabilitation. In this light, the bench directed the gover5nment and the Nepal Electricity Authority to form a permanent mechanism to rehabilitate the displaced, conserve the environment and take flood control measures, According to an estimate, the project will displace around 7876 people. The government is working out measures to rehabilitate them. However, there is no dearth of lawyers, who relate the proposed projects with the Tanakpur case. One-and-a-half decade ago, the supreme court had scrapped the Tanakpur agreement, saying that the same was reached without seeking approval of two third members of the then parliament.
"The apex court verdict on the West Seti case has paved the way for commissioning of mega power projects with foreign investment, but this verdict will affect the country in the long run," advocate Balkrishna Neupane said. Article 156(1) states that the ratification of, accession to acceptance of or approval of treaties or agreements to which the State of Nepal or the Government of Nepal is to become a party shall be as determined by the law.
Sub- section (2) reads that laws to be made pursuant to clause (1) shall, inter alia, require that the ratification of, accession to acceptance of or approval of treaty or agreements on the following subjects be done by a two-third majority of the total number of members of the Legislature-parliament.
(a) peace and friendship;
(b) security and strategic alliance;
(c) The boundary of Nepal; and
(d) Natural resources and the distritution of their uses.
Provided that out of the treaties and agreements referred to in the sub-clauses (a) and (d), if any treaty or agreement is of ordinary nature and which does not affect the nation extensively, seriously or in the long term, the ratification of, accession to, acceptance of or approval of such a treaty or agreement may be done at a meeting of the Legislature-Parliament by a simple majority of the members present in the House.
"This verdict has overruled the Tanakpur case verdict," said Neupane. " If the government is to go by this verdict, it does not need to submit agreements on water resources at the parliament for approval, " he added.
Source: The Himalayan Times, 18 September 2008
