Violation of parliamentary ratification provision

Each country has different practices regarding parliamentary ratification of treaties. It is constitutionally mandatory in the Netherlands, Japan, USA, Bhutan, etc. While there is no provision for parliamentary ratification in the constitutions of UK, Australia, India, etc. In Nepal, a provision for parliamentary ratification was introduced in 1990 in Article 126 of the Constitution of the Kingdom of Nepal, which was repeated verbatim in Article 156 of the Interim Constitution of Nepal 2007 and in Article 279 of the Constitution of Nepal 2015. Mahakali Treaty was the first bilateral treaty ratified by the then parliament in September 1996, which was signed in February 1996.

Upper Karnali Hydropower Project After a memorandum of understanding (MoU) was signed between the Government of Nepal (GoN) and the GMRITD Consortium for 300 MW Upper Karnali Hydropower Project in January 2008, a public interest writ petition was filed at the Supreme Court in February 2008 praying the Court, amongst others, to direct GoN to have it ratified by the parliament pursuant to the then prevalent Article 156 of the Interim Constitution. However, the petition was rejected by the Supreme Court in July 2012.

After this, the antinational activity of handing over attractive sites on Nepal’s rivers as export-oriented hydropower projects to Indian companies began without having to sign bilateral treaties between the governments of Nepal and India. Developers from any country could have implemented the projects that were awarded through competitive bidding, but electricity was to be exported. So far, 7 hydropower sites with a total capacity of 4,649 MW have been made exportoriented and handed over to Indian companies. Meanwhile, on the basis of the MoU, GoN issued a survey license for the Upper Karnali project in May 2008 for an upgraded capacity of 900 MW in the name of GMR Upper Karnali Hydropower Ltd. (GMR). Later, GoN signed a project development agreement (PDA) with GMR in September 2014.

Verdict of Constitutional Bench

Deliberating a few public interest writ petitions filed against GoN for failing to get the PDA ratified by the parliament, the Supreme

Court's constitutional bench issued its verdict in May 2023 saying that “the PDA does not appear to fall under the category of treaty described in Article 279 of the Constitution”.

Treaty or Agreement

The Constitutional Bench, basing its verdict on Section 2(a) of the Nepal Treaty Act, which stipulates that a “treaty means an agreement concluded in writing between two or more states, or between any state and any intergovernmental organization,” said that since PDA was not signed with another state or intergovernmental organization, it does not constitute a treaty and, therefore, no ratification is required. It implies that if the other party to that PDA was another state, parliamentary ratification would have been mandatory. A closer examination of Article 279 will reveal that the intention of the Constitution framers was different.

Article 279 (1) of the Constitution stipulates that "a treaty or agreement to which the State of Nepal or the Government of Nepal is a party" will require parliamentary ratification if it deals with matters specified in Clauses (a) through (d) in Article 279 (2), which include natural resources and the division of their use. Article 279 (1) does not stipulate that the other party must be another state, government, or intergovernmental organization. Nor has it