An important consideration in the choice for the type of federalism, in the context of Nepal’s constitution that is yet to be drafted, should be made in light of the potential of the new system to provide justice, both in terms of its access as well as sustainability. This consideration, more specifically, relates to the court system the constitution will ultimately provide for: a unitary or a dual one. Under a dual court system, like in the US for instance, there is a distinction between State and Federal courts, but the combination of both make up the judicial branch of government. Such a difference in jurisdiction does not exist under a unitary court system. The federalism to be enshrined in the new constitution, therefore, regardless of whether ethnicity, geography or language-based, and assuming that provinces, as federated units, are retained, will also need to clarify the form, shape, and governance of the court structure. If, indeed, the Constitution allows a parallel existence of federal and provincial judicial tracks, clarifying the allocation of issues between Federal and Provincial courts will also remain critical.
Access to Justice: The introduction of a dual court system will have to deal not only with the possibility of allocating cases based on the law at issue, but also making possible for federal questions to be sent to federal courts and provincial questions to provincial courts. Certainly, cases raising both kinds of issues would pose additional difficulties of allocation for which a flexible mechanism will have to be sought. There may also be cases where the jurisdictions of the province and federal courts could overlap extensively: issues of provincial law arising in and being adjudicated by federal courts, or issues of federal law arising in and being adjudicated by provincial courts. Such inter-systemic adjudication could even become pervasive. The constitution will, therefore, need to provide clear guidance as to the recourse available for federal or provincial governments (or citizens at large), in cases raising claims under both the provincial and federal jurisdictions, and all other forms of conflict of jurisdiction issues.
Specific Case of Inter-province Waters: Indeed, many issues, which, by virtue of their nature and scope, transcend more than one province, require clarity on how the jurisdictional issues will be managed. One such issue, for instance, is water, from a river that flows through several provinces. In view of its sensitive nature and basic needs characteristics, managing the water rights of people (not only for drinking but also other uses) in different provinces will be a daunting challenge. While compartmentalizing jurisdiction will obviously be difficult, clarifying the jurisdiction of a provincial or a federal court over the water from inter-province rivers will be no less critical.
It may be useful to recall that in India, a Union, which is endowed with a number of interstate rivers and river valleys, water is a State matter. The Union government has limited role to play. The initiative and responsibility for development of interstate rivers and river valley projects rests primarily on State governments. The continual increase and competing needs for developing irrigation and power resources also increases the possibility for interstate disputes, particularly on sharing of waters. In that spirit, Article 262 of the Indian Constitution empowers parliament to provide, by law, for adjudication of any dispute or complaint with respect to the use distribution or control of the waters of any interstate river or river valleys. Actually such disputes are excluded from the purview of the federal courts. The Inter-State Water Disputes Act of 1956 is, therefore, quite relevant in this context, pursuant to which, it may be recalled, five tribunals have been, so far, set up to adjudicate disputes: the Krishna, Narmada, Godavari, Ravi-Beas and Cauvery. For instance, it took almost 17 years for the Cauvery Water Dispute Tribunal to pronounce its verdict with its ruling to allot approximately 60% of the water flowing through the Cauvery to the downstream Tamil Nadu. Recall that the Indian Federal Government had set up the Tribunal to decide on the century-old dispute between Karnataka and Tamil Nadu regarding the sharing of water from the Cauvery River.
Actually, directly linked with the functioning of an economic system, the use of natural resources has always been considered a matter of significant strategic importance for nations, most of which strive to devise a consensus-based, clear and pragmatic approach to deal with such resources. Such nations attempt to provide clarifications, in their main governing instruments, on the nature of obligations of their governments to protect these resources, to exploit them rationally, to ensure their reproduction, and to improve the environment in which people will live. Dealing with multiple issues on matters needing multifaceted solution, through one single entity is often much easier than dealing with such issues through multiple entities (especially when they are politically independent units).
No one would deny that river waters have significant strategic and economic interest for Nepal. Therefore, while finalizing the new constitution in implementing federalism, it will be critical to address all issues related to international river waters, including the establishment of a clear modus operandi to deal with international rivers that flow through different provincial units. Indeed, most rivers, originating in the Himalayas, flow through different zones and districts, which currently are part of a single political unit. The federal system to be established will have an effect of converting these different zones and districts into separate and independent political units, and in that situation, the issue of rivers flowing through different districts and zones, if left in ambiguity, will create confusion on the responsibilities of such political units in dealing with those international waters. This may take two forms: jurisdictional problem amongst provinces, and international relations problem, for Nepal (as one single political unit), which will have to deal with the issue with other nations (meaning with India and China). Although many federated nations have dealt with the issue and examples abound, the matter is an important and challenging one which requires deep pondering to save the country from eventual internal and external disputes.
It may be worth noting that two main arguments to resolve interstate (or inter-province) disputes related to water sharing prevail. The first doctrine which holds that market force should determine the allocation of interstate waters actually puts in advantageous position the unit or province wanting to take water from another. The second doctrine of equitable apportionment, on the other hand, has the advantage of providing stability for the political unit and water planning while limiting the excesses of territorial chauvinism by requiring equitable sharing. The design of the constitutional provision should take note of these arguments.
Broader Issue of Jurisdiction: Indeed, due to concerns for separation of powers and federalism, cases raising dual constitutional challenges implicate a complex doctrinal challenge. These doctrines reflect varying attempts to harmonize, sometimes conflicting, principles, such as: (1) provincial courts should avoid federal constitutional rulings when possible (the avoidance principle); (2) provincial courts should be the primary interpreters of Provincial law (the local interpretation principle); and (3) no barriers should impair the availability of a federal forum for federal claims (the open door principle). Complying with any two of the principles would not necessarily pose significant problem, but following all three could prove difficult, thus an additional challenge for courts.
In this context, it may be appropriate to remind the readers further that a court's application of the law of a different system certainly does entail some potential benefits, but it also can trigger potential harms. Many scholars have stressed that such inter-systemic adjudication also bears the taint of illegitimacy. Noting that there is always the potential of error in judicial interpretation, the opponents of inter-systemic adjudication have further stressed that the practice invites non-authoritative interpretation of legal principles. This observation is not totally unfounded. Indeed, once the potential fallibility of even authoritative interpreters is recognized, alternative interpretive perspectives lose their stigma. Surely, authoritative interpretations need not be necessarily correct. But surely, non-authoritative interpretations may introduce uncertainty, although not necessarily an error. As such, therefore, in the legal system to be envisioned for Nepal, inter-systemic adjudication will have to be able to provide a valuable and legitimate way of addressing situations in which governments and courts do not fall short of these ideals. The system will have to establish a set of criteria of evaluation standards or judgment, appropriate to the adjudication of cases.
Justice for Sustainable Development and Democracy: It is generally acknowledged that through a holistic constitutionalism alongside relevant remedial institutions, more opportunities can be given to people to resort to justice and claim more rights in the society. The 20th century prominent thinker, John Rawls, had, in this context, further stressed that a state of “near justice” requires a democratic regime. With this background, hence, in addition to a political skeleton (the fundamental principles and framework of democratic government and the basic rights of individuals), the overall goal of the federal constitution will also have to be to guarantee full justice and the rights related to natural, physical, human, financial, social and political capital, and, this too, in an eventuality of a dual court system. The democracy, in this judicial realm, should further ensure a right-based development approach, which institutionalizes participatory law-making and uniform enforcement: participation in deciding about self-determination, autonomy, culture, religion, adequate livelihood and suitable environment, and most importantly, in creating and living in an environment of the rule of law; and enforcement through impartial courts. The challenge of the new federalism will, therefore, be to manage, without ambivalence, all jurisdictional issues, regardless of whether the courts have two, three or multiple tiers, or are single or double tracked. The real and ultimate test will reside, then, in whether the federalism, as devised, will be able to impart full justice!
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