Nepalese Laws And Water Resources

By A.B. Thapa

Very recently our government is seen trying to soften the legal implications of the Clause 126 of the constitution that have proven to be hard nut to crack for many multinational companies who had been trying their best to make fortune by trading in our water resources with India. Government has called upon even the outsiders to send their views on this matter. However, it can hardly be denied that we should be extremely careful in our attempts to find solutions to water resources related problems that concern big private hydropower developers or else we would be playing into the hands of some of those multinationals like the ENRON who are able to evade the stringent regulatory laws and cause worldwide chaos undermining the prestige of the Worldís most powerful country, the USA.

The Clause 126 of the Constitution has been hailed by all quarters in Nepal as the most important provision that is helping to safeguard the vital national interest of our country. In the past, the misinterpretation of the Clause 126 of our Constitution had placed the Government in a most embarrassing position. Our government was virtually forced to annul the bilateral agreement with the Government of India about the Tanakpur barrage after the Supreme Court granted injunction against the Government's interpretation of the Clause 126 of the Constitution.

It is a well known fact to everybody that the total benefit accruable from each of the large storage projects such as the Kosi, Karnali, West Seti, Pancheshwor etc is far in excess of the need of our country. Whenever we embark on implementation of any of these projects, the sharing of benefits automatically takes place. It is completely a different matter whether such sharing of benefits takes place deliberately or it happens unintentionally. We already have bitter past experience of Tanakpur barrage agreement. Government mistake was not condoned by the Supreme Court even though it was not a deliberate action. Now many people who are highly critical of governmentís laisser-faire policy are even seen bringing accusation against the government of deliberately trying to circumvent the Clause 126 of the Constitution by planting a middleman (private company) between the two governments. There is a need to seek the opinion of legal experts on this matter. It is very important to find out whether such policy can be considered acceptable or it could even be a treason apart from being in breach of the Clause 126 of the Constitution. It is quite surprising that there is not any mention in the water resources strategy report, which has been recently prepared, about the Clause 126 of the constitution that serves as the mandatory guidelines for the development of large water resources projects.

Why Are We Frightened By Clause 126?

The Clause 126 of the Constitution requires that there should be broad consensus in the country on the issues relating to our countryís water resources development that also involves our neighbouring country. It hardly needs to be explained that such need to seek national consensus helps to insure that the implementation of any particular project is in the interest of our country. Ultimately such provision in the Constitution compels us to conduct extensive studies to justify the decision to implement any big water resources project. This consideration alone could be a strong justification in having the Clause 126 in the Constitution in its present form and thus any attempt to temper it with various types of explanations or interpretations is indeed uncalled for. We all have afresh in our mind the sad incidence that took place recently in our parliament. At that time the Deputy. Prime Minister was prevented by angry parliamentarians from making speech to justify the decision to defer the award of the giant Karnali project to a private developer until more exploratory studies are made. Many parliamentarians were adamant to bring pressure to bear on the government to award the giant Karnali project to the multinational company ENRON virtually blindfolded regardless of consequences.. It is not the only event in the past when we had been extremely reckless in handling our major water resources. We had in the past almost forfeited our right to ownership of our main rivers. It is explained below how it happened.

The Kosi & Gandak Treaties of 1950s

After the introduction of democracy in 1951 Nepal had signed two treaties with India on water resources in 1950s. They are the Kosi Treaty signed in 1954 and the Gandak Treaty signed in 1959. Soon after their signing Nepal realized that both these treaties were detrimental to Nepal's interest. Particularly the Gandak Treaty was the most harmful. The Article 9 of the Gandak Treaty that curtailed Nepal's water right is presented below:

"His Majesty's Government will continue to have the right to withdraw for irrigation or any other purpose from the river or its tributaries in Nepal such supplies of water as may be required by them from time to time and His Majesty's Government agrees that they shall not exercise this right in such manner as is likely, in the opinion of the parties hereto, prejudicially to affect the water requirements of the Project( it is the Gandak Irrigation Project) as set out in the schedule annexed hereto."

The monthly water requirements provided in the schedule were either very close or exceeded the river flows baring few months of the monsoon season. This treaty would have virtually ended the future prospect for irrigation development in the Gandak Basin within Nepalese territory.

Revised Gandak & Kosi Treaties

The Kosi and Gandak Treaties were binding upon Nepal. The Vienna Convention on the Law of Treaties states that every treaty in force is binding upon the parties to it and must be performed by them in good faith. It requires the consent of both the signatories for changes and amendments unless there is a special provision for it in the treaty. Nepal succeeded in convincing India that both the treaties should be amended to protect Nepal's vital interest. Nepal should be grateful to India for their consent to revise those treaties.

The Gandak Treaty was revised on 30th April, 1964. The Article 9 of the revised treaty is presented below:

"His Majesty's Government will continue to have the right to withdraw for irrigation or any other purposes from the river or its tributaries in Nepal such supplies of water as may be required by them from time to time in the valley. For transvalley uses of Gandak waters separate agreements between His Majesty's Government and the Government of India will be entered into for the uses of water in the months of February to April."

The revised treaty is a big improvement over the previous one. This treaty has reestablished Nepal's full right to draw water for irrigation or any other purposes in the large valleys which are many in number in the Gandak basin. Similarly, the three Terai districts on the west of the Gandak river can also be brought under year round irrigation even without transvalley conveyance system. Thus a new agreement with India might not be required in future.

The Kosi Treaty was revised on 19th December, 1966. Nepal's full right over the Kosi river has been established in the revised treaty. The Article 4 ( i ) of the Treaty related with the water rights has been presented below:

"HMG shall have every right to withdraw for irrigation and for any other purpose in Nepal water from the Kosi river and from the Sun-Kosi river or within the Kosi basin from any other tributaries of the Kosi river as may be required from time to time. The Union ( it indicates India ) shall have the right to regulate all the balance of supplies in the Kosi river at the barrage site thus available from time to time and to generate power in the Eastern Canal."

Proposed Interpretation of Clause 126

It is stated in our Constitution that the strict provision of ratification would apply to sharing of natural resources that would have long lasting, extensive and serious impact. Government is now proposing to reinterpretate the meaning of the Clause 126 in its own way so that the strict procedure of ratification could be waived in all cases barring few projects. Ministry of Water Resources is proposing to interpretatre that the strict provision would apply only in case if the project exceeds the following limits.

The installed capacity of the power station that exceeds 1000 MW. however, it has not been explained at which capacity factor. The number of people being displaced exceeding 10,000.etc.

We Should Be Serious

It might require a great deal of consultations to make sure whether Water Resources Ministry is the appropriate institution to be entrusted the task of interpreting the Constitution of the country. However, it can be said that the requirement to apply the strict ratification provision would be automatically waived for almost all the big water resources projects in our country perhaps with the exception of the Kosi, Karnali and Pancheshwor projects if the Clause 126 of the Constitution is interpretated as proposed by the Government We should take this issue very seriously. It would be our biggest blunder if we tried to take hasty decision.. Even the medium sized water resources projects could have long lasting, extensive and serious impact in relationship between the two neighbouring countries. Let us take few cases. The Sutlez is a very small river by comparison with the rivers like the Kosi. Average annual flow of the Kosi is about 50 billion cubic meters whereas such flow of the Sutlez is only about 20 billion cubic meters. The contentious Upper Bari Doab Canal drawing water from the Sutlez river had brought India and Pakistan to the brink of war in 1940s. Similarly the ratification of the Columbia river projects treaty between the USA and Canada dragged on for several years despite the facts that those projects involved a total storage volume of mere 18 billion cubic meters compared to 39 billion cubic meters in case of the Karnali, and moreover the US Presidents John Kennedy and Lyndon Johnson from the US side and the Prime Minister L. Pearson from the Canadian side were themselves directly involved in finalization of the Treaty. So we should not try to find ways to enter into deals with our neighbouring countries without broad national consensus. It would not be difficult to come to such national consensus if the project is in the interest of the country. Moreover the Clause 126 is helping to protect us from being played into the hands of ruthless multinationals.

The biggest loser of polls in Nepal is India

The Nepalese people have given their mandate for the change during constituent assembly polls. The biggest loser has been India - By Prakash A. Raj

The results of polls for constitutional assembly in Nepal held on April 10th have shown the CPN-M Party winning half the seats in 240 out of 601 seats for which direct elections were held. About 42% of seats or 330 seats will be elected on the basis of proportional representation and counting is going on for this purpose. The Maoists are well ahead of other parties in this as well. It is possible that the Maoists may emerge with a majority of the total seats. The Nepalese people were promised participation in constitutional assembly polls as early as 1951 but were always denied this opportunity. The voters in Nepal were disenchanted with monarchy and mainstream political parties such as Nepali Congress and CPN (UML) and decided to give the Maoists a chance. However these elections were unlike any elections previously held in Nepal. These elections were not for Parliament under an existing constitution but for an assembly to write a new constitution. There was also involvement of the United Nations (UN Mission in Nepal called UNMIN) and election observers from many different countries including the former American President Jimmy Carter and his Carter Center. This particular election could be said to have more legitimacy than the previous ones.
The wrong policies followed by the Indian Government are responsible for this state of affairs.
It may be remembered that the many of the Maoist leaders lived in India during the decade long insurgency. When the Nepali governments reminded the Indians about this the reply from the Indian side was “we’ll take action if we’re told where they are”. This was made possible in view of open border between the two countries. When this scribe asked the then Indian Ambassador Shyam Saran whether the open border between the two countries would be regularized as any international border I remember him replying “You have to ask the people living near the border”.
The 12 Point Accord signed between the SPA (Seven Party Alliance) and the Maoists was brokered by India and was signed in New Delhi presumably with advice and consent of the Indian Government. The main agenda of Jana Andolan 2 in April 2006 was the 12 Point Accord. This led to King Gyanendra restoring Parliament dissolved in 2002 on the advice of Prime Minister Deuba. The restored Parliament declared Nepal to be a secular state and drastically reduced powers of monarchy. A Comprehensive Peace Agreement signed in November 2006 led to formation of Interim Constitution and Interim Parliament which declared Nepal to be a secular federal republic which would be ratified in the first meeting of constituent assembly. It is likely to happen within a month after all the results of the proportional seats are known. The outcome is a foregone conclusion. Nepal will then be declared a republic officially.
The presence of UNMIN and observers from the world over including former President Carter of the United States led to erosion of Indian influence in Nepal. Maoist Prachanda has said he wanted Nepal’s relations with India and China to be equidistant. Indian Ambassador Shyam Saran had said in the past years about linkage between Maoists in Nepal and Naxalites in India. On the other hand Ambassador Shiva Shankar Mukerji has said after the election results that no evidence was found about such linkage. The Chinese had maintained cordial relations with monarchs in Nepal as it was during King Mahendra’s rule that the agreement for construction of road linking Kathmandu with the Chinese border at Kodari was signed. There were protests from India during that time. King Birendra and his entire family were assassinated in June 2001 less than a month after the agreement for construction of second road from Kathmandu to Rasuwa in the northwest was signed. It is quite reasonable to expect that the Maoists will establish closer ties with China after Nepal would be declared a republic. The Chinese had considered the monarchy in Nepal less likely to be influenced by India and would probably find the Maoists as more dependable ally. Almost all of Midwestern and Far Western Nepal have voted for the Maoists in the recently held polls. It’s only four hours drive from Mahendranagar to Delhi. There is only eighteen kilometers of Indian territory separating Nepal from Bangladesh which links northeastern India including Assam. Will a Maoist led Government in Nepal take into account security interests of India?
The question of integration of Nepali Army and Maoist PLA will be raised in the near future. Nepali Army has indicated that it will follow the command of elected government of Nepal unlike in the past. How would the 90,000 strong Nepal Army, which will integrate ideologically indoctrinated Maoist army, impact India’s security? How would the security of the Gangetic Plains and the states of UP and Bihar be affected by new developments in Nepal remains to be seen. The Naxalite movement in Andhra Pradesh, Chhatisgarh, Orissa and Bihar has become so serious that the Indian Prime Minister Manmohan Singh described it as the most serious security problem for India. Perhaps the Nepali Maoists could influence the Indian Naxalites to join mainstream politics in India as they did in Nepal. However India already has a constitution since 1950 drafted by a constituent assembly elected by its people and is also a federal and secular country which didn’t stop Naxalites from being active. The Nepalese people have given their mandate for the change during constituent assembly polls. The biggest loser has been India. One of the main architect of India’s loss has been Indian Ambassador Shiva Shankar Mukerji who is being rewarded by being appointed the Indian High Commissioner in London.

History in the making

Nepal is voting for Constituent Assembly election today. The history has repeated after 58 years, from 2007 BS (1990 AD) the country has for the first time used its people's mandate to write the himalayan country's new constitution.
But the question is can it break free the semi-colonization of India or not ? If it can not break free from the semi-colonization from India, the whole effort of the people will be wasted. Now the country needs to come out of the cocoon of the Indian colonization and be a free, sovereign, united, peaceful, prosperous and republic Nepal.
Lets defeat the expansionist India, hail the united Nepal.

The CA election is going to take place

Thanks to Dr Amit Kumar, finally the election of Constituent Assembly is going to happen on April 10. PM Girija Prasad Koirala when handed over the kidney kumar many in Nepal didnot understand why he did so. But he had then said that India has promised to help neutralize the Terai armed groups that were operating with the active support of Indian SSB and other political parties.
The central Indian governmenthas finally controlled the armed Terai groups creating law and order problem in Nepal that are operating form the Indian soil. India doesnot want Nepal to let others use Nepali soil against India but India gives all arms and ammunitions and monetary and moral suport for the Terai armed groups to creat security problem in Nepal. Why? Why not any international community ask India to stop it?
The RAW operating in Nepal from the base of The Himalayan Times has given the New Delhi a green signal that the Nepali Congress will get the majority and there is no harm in holding elections.
Finally, the election will take place on April 10.

RAW in Nepal in journalist disguise in The Himalayan Times

RAW has sent its agents in Nepal as Journalist. Many of them are working in The Himalayan Times and some are working in the Kantipur also. Most of the staff in The Himalayan Times, even the editorial staff and reporters are Indian. And same is the situation in Kantipur. But Press Council, Federation of Nepalese Journalist and Ministry of Communication and Information department they are mute, blind and pretends that they do not see and hear anything.
Bishnu Nisthuri and Rajendra Dahal and Sree Acharya are paid by the RAW for not raising the issue of foreign national working as a journalists and editorial staff. There is a new editor to show the people in The Himalayan Times but he is also a RAW agent and works under the direct command of RAW operators Nathan and Dhrub, both have married in nepal to stay here safe. The other Indian editorial staff, RAW agents, have married in Nepal for their safety.

RAW strikes again, defame Nepali companies

This is yet another example of RAW's new weapon and how it is after Nepali companies. The Himalayan Times never writes about UTL's loot and cheating of revenue and cusatomers but it defames Nepali company and FDI, other than Indian, here's an example.

NTA instructs to improve quality

Himalayan News Service
Kathmandu, March 18:

Following an increased criticism from customers over poor quality of mobile phone services, Nepal Telecommunications Authority (NTA) — the telecom regulator — has instructed the GSM mobile phone operators to come up with a specific plan for improvement of quality on services within a month.
NTA held a meeting with representatives of two cellular mobile phone operators — Nepal Telecom (NT) and Spice Nepal Pvt Ltd (SNPL) — and apprised them about findings of a survey carried out by NTA on quality of services being rendered by these operators.
“Though the survey was an informal type, we have found that quality of services are not up to the mark,” said NTA director Ananda Raj Khanal.
According to him, NTA has instructed the officials of both the operators to come up with an improvement plan with specific parameters to be implemented in collaboration with the regulating authority. “The officials of both NT and SNPL admitted quality of services has yet not been improved as expected,” he said.
As per today’s understanding, both GSM operators have agreed to improve quality of services along with their expansion plan. The state-owned Nepal Telecom (NT) has already unveiled an ambitious plan of adding 3.5 million new lines within next three years, while the sole private operator SNPL is also expediting its penetration to all populated areas.
Currently, NT has about 1.4 million subscribers for its GSM cellular and wireless CDMA mobile phones, while SNPL has so far distributed over one million GSM lines with the brand name of ‘Mero Mobile’.
According to the survey, connectivity problem and network failure are very high among the poor quality in services. The extent of connectivity problem is very high in major city hubs and busy areas like New Road, Putalisadak, Kopundole, Thamel and New Baneswar, particularly during the evening hours. The mobile connection is hardly available in narrow streets, basement parking, hotel meeting rooms and shopping malls.
The survey states that Mero Mobile’s connectivity and service quality is relatively better in comparison to services of NT’s GSM mobile. However, the Mero Mobile’s services are also not up to the international standard for GSM mobile phones, states the survey.NT’s GSM mobile has reached its network to 66 districts, while Mero Mobile has reached 47 districts in all 14 zones.
The installation of the base transceiver stations (BTS) that plays a vital role in ensuring better connectivity is in slow pace compared to the expansion of the network and subscriber base. The NT has installed about 650 base transceiver stations (BTS) and 260 of them are in the Kathmandu Valley. While Mero Mobile has 450 such BTS across the country.

India's Kashmir, Darjeeling, Khalistan and Nepal's Tarai movement

Has the Kashmir people in India right of self determination?
What about the Khalistan movement and India's treatment of the freedom movement?
And most henious crime against humanity is the eviction of Nepalese speaking people from Bhutan backed by India. No wonder the largest joke to democracy -- India -- didnot speak anything against it? Has is suggested Bhutan dictator to talk to Nepalese langushing in Nepal's refugee camps? The Nepalese in Nepal's camps are fighting to go back home even after more than a decade India stops them on Mechi bridge, a shameless act of largest shame on democracy.
What about the Darjeling movement of separate state? Why is India not ready to recognize Gurkhaland movement and suppression of communist West Bangal? Communist Sita Ram Yechuri doesnot suggest anything on Gurkhaland but he is very actively suggesting in Nepal's case, why is he or any of the Indians so hyperactive in Nepal?
How can India force Nepal to hold talks with the armed goons operating from Indian soil -- Who is supplying arms to all the armed groups like Goit and Jwala Singh operating from Indian soil against Nepal --- Mr Man Monhan Singh can you answer?
Has India any right -- moral or immoral -- to dicatate Nepal?

The Partition of India in 1947 promised its people both political and religious freedom—through the liberation of India from British rule, and the creation of the Muslim state of Pakistan. But Still Kashmir is fighting for freedom. The divide brought displacement and death, and it benefited the few at the expense of the very many. Thousands of women were raped, at least one million people were killed, and ten to fifteen million were forced to leave their homes as refugees. One of the first events of decolonization in the twentieth century, Partition was also one of the most bloody.

Cold questions for embattled Nepal

The upshot of it all is that Nepal should be allowed to emerge as a stable democracy. The beneficiary would be Nepalis as well as both the countries in their neighborhood. The sooner the neighbors realize this, the better.

By Dhruba Adhikary
Nepal's capital on Wednesday appeared like a city under seize, with shops closed and serpentine lines of vehicles in front of gas stations. Few residents, already struggling to survive cold winter days and nights amid power interruptions of eight hours a day, had expected supply lines cut a week before to remain severed for so long.
Bitter experience prompts residents to blame what is effectively a blockade on the country's Maoists and their militant wing, Young Communist League (YCL), whose president on February 7 said it was capable of "capturing" the entire Kathmandu valley in just five minutes. The use of threat and intimidation continues even as the country is preparing for elections scheduled for April 10.
Yet the "credit" for effectively disrupting supply lines to Kathmandu, the seat of Nepal's political powers, is being taken by a coalition of three parties which were formed in recent months. The parties, together with some armed groups, are based in the country's southern plains, the Terai region, bordering mainly with the Indian states of Bihar and Uttar Pradesh.
Six demands they have advanced include "autonomy with right to self-determination" for the entire region. Interim Prime Minister Koirala and his coalition partners read secessionist tenor in this demand, and appear unwilling to meet it at least until the elections to the Constituent Assembly are held.
There is a perception that the Terai groups would not have been able to impose a blockade on the capital and the rest of the country if they had not been encouraged and aided by the government in India.
Unlike in the late 1980s, when Indian authorities directly imposed a trade and transit blockade to take revenge on Nepal for having imported some of its military supplies from China, the blockade this time has been applied indirectly - through Terai groups.
The possibility that leaders of these groups are being handled by New Delhi has to be seen in the context of their frequent meetings with the Indian ambassador in Kathmandu, some of which have been reported by Nepal's electronic media. One such meeting was brought to the public notice by a television channel on February 20.
Only a week ago, an Indian delegation led by Congressman Digvijaya Singh visited Kathmandu when Singh's public statements said India favored neither monarchy nor any other particular group among Nepal's disputing political factions, and that New Delhi would welcome a decision by the people of Nepal. This public posture resembled to the approach from Beijing. But what is happening on the ground is different. The visiting Indian politician, for instance, assured Mahantha Thakur, chairman of the recently formed Tarai-Madhes Loktantrik Party, in private conversation that he wished that their six-point demand be fulfilled. Thakur himself revealed this information to the media.
His party, together with other two, has decided to stay away from the hustings. India's role - some call it outright interference - in recent times has been pervasive. In a media interaction a few weeks ago, Interim Prime Minister Koirala said that the problems created in Terai could be resolved "in a minute" if India offered sincere cooperation.
His remarks apparently made New Delhi unhappy as they gave credence to public perceptions that the Indian authorities have a hand in the Terai unrest. "I have told India and the UN that I will not compromise on [ Nepal's] sovereignty and integrity," Koirala stated at a high level meeting of the party he heads, Nepali Congress, on February 17.
Even so, a noted Nepali columnist described Koirala recently as a "puppet" of India. Pushpa Kamal Dahal (aka Prachanda) leader of the Communist Party of Nepal (Maoist) and of the People's Liberation Army (PLA), the military wing of CPN (M), is equally uncomfortable with the meddlesome role that New Delhi is playing. Like Koirala, he too thinks the Terai agitation would not be sustained "even for a minute" if India stopped supporting those associated with it. In a public meeting held on February 12, Prachanda also accused Nepal's discredited palace and Americans for having instigated Terai groups. Prachanda and some of his comrades-in-arm obtained shelter in India during the "people's war" they conducted in Nepal. He spent eight of 10 years up to 2006 in India.
Prachanda's assessment coincides with an analysis based on the views of the India's main opposition party, BJP, that the Manmohan Singh government has "outsourced" its Nepal policy to its communist coalition partner and leader Sitaram Yechuri. And, as far as Washington is concerned, it outsourced its Nepal policy to New Delhi, in bid to lure Indians into the fold of strategic partnership. Americans also found it expedient to help India to contain China - Nepal's neighbor to the north. Nobody knows how and when Beijing will react to all these developments.
Meanwhile, another dimension surfaced on Tuesday when the constitutionally sidelined King Gyanendra issued a message to the nation asking his countrymen to pay attention to safeguard Nepal's integrity, independence and nationalism.
The occasion was Democracy Day, which reminded the people of the country's first attempt at democracy in 1951. In the message, Gyanendra described his grandfather, Tribhuvan, as the architect of democracy. And the message was made public in His Majesty's name. The interim constitution does not have provision for the monarchy. Parties promoting a pro-republican agenda, including Maoist leaders, denounced the move and have seen it as a part of a Western conspiracy to prevent them from reaching power.
By alluding to Nepal's integrity, independence and nationalism, Gyanendra appeared to be telling Nepalis that he too sees a threat to the existence of Nepal as an independent country. Those who continue to support the monarchy in Nepal (simultaneously being critical of Gyanendra and his son Paras) hastily cite the sequence of events in Sikkim in the 1970s - the Himalayan territory was eventually annexed by India, in 1974. First, the Sikkimese people were encouraged to get rid of their monarchy, then an elected assembly was prodded to pass a resolution seeking merger with India. Being a part of India, Sikkimese did get democracy, and lost their country in the process.
Nepal's larger size and status, analysts contend, is not comparable with Sikkim's; not even with Bhutan's. But they do agree that a separatist movement in Terai needs to be read in the context of what happened in Kosovo, with its declaration of independence from Serbia, earlier this week.
The upshot of it all is that Nepal should be allowed to emerge as a stable democracy. The beneficiary would be Nepalis as well as both the countries in their neighborhood. The sooner the neighbors realize this, the better.

(It was published on http://www.nepalnews.com/ and has been reproduced on http://www.nepalnews.com/ courtesy http://www.atimes.com/.)