Federalizing Nepal

Nepal is currently confronting a big challenge of streamlining both social and constitutional transformation even after seven months of promulgation of the federal Constitution.

May 5, 2016, 5:45 p.m. Published in Magazine Issue: Vol.9,No 20,May 6,2016 (Baisakh 24,2073)

Australia, a parliamentary democracy, is the fifth oldest federation (1901) in the world after the United States (1789), Switzerland (1848), Canada (1867) and Germany (1871). Nepal’s neighbouring India and South Africa are two unique federations that have devolved state powers through federal devices, however, without claiming that they have opted federal systems. Itwas the Indian Supreme Court that had clarified in course of time, in fact decades later in 1973 (KeshavnandBharati Case) and 1994 (SR Bommai Case), that  federalism is an unamendable basic feature of the Indian Constitution. Although both Australia and India are parliamentary federations, they are however heavily influenced by the American model of federal system which is presidential. Experiences of both advanced and emerging federal democracies show that federalism could be an effective governance vehicle for development and prosperity if skilfully executed and managed.

Nepal, hitherto an extremely centralized country with centuries old feudal mindset of the past monarchy and oligarchy, is a blend of mixed federal featuresunder multiple parliamentary orders of governance, however, unusually tinted by ethnic and communistic fervours. Some attempts have nevertheless been made to benefit from comparative experiences of various federal countries but modified to suit local needs as identified by emotional and amateur lawmakers in an inclusive Constituent Assembly of 601 elected members. Implementing a radical political and structural shift through a complex notion of inclusive federalism in a country of immense diversity is not an easy task. It is not impossible though. Moving ahead progressively in steady manner with sensitivity and full political commitment can eventually lead to a desired success. For this, a nation needs a commanding and committed leader with a vision like Mandela, Neharu and Mahathir. And, national unity with a thirst for nation building must be a driving force behind them. No Nepali leadership has demonstrated such commitment, honesty and dynamism yet.

Transition to Federalism:

Nepal is currently confronting a big challenge of streamlining both social and constitutional transformation even after seven months of promulgation of the federal Constitution.The country is still being governed under the same old unitary system carried over through transitional provisions of the new,so called, Federal Constitution. Except lip services, there is no visible firm commitment to federalism in action of the key political leaders in power. Wide gaps exist amongst them even in the understanding of the basics of federal notion and design.The country, nether the Constituent Assembly nor major political parties, including those advocating for federalism, ever took initiatives to go for a serious dialogue on federal issues. International Organizations, like Forum of Federations (Ottawa based) and UNDP/Project, did put some but inadequate efforts to organize interactions on comparative federalism. Debates on federal and restructuring issues hardly involved academic institutions and common citizens at the grassroots. Since the country has already proclaimed a federal constitution last year on September 20, 2015 with overwhelming majority support, it cannot back out now. But transition to federalism poses big challenges.

Urgency of massive educational drive on federal and constitutional issues cannot be denied. Emerging new institutional devices needed for implementation must be created and recognized at this point. Intensive dialogueson new features of the federation and relevance of inclusive democracy in diverse Nepali society,have to be carried out at all levels. Before anything is done at this point, procedural legitimacy question raised by protesting political parties, mainly Madhesi and Janajatis, must be addressed. External legitimacy question for a country like Nepal,situated between two highly populated powerful nations with different political ideologies, isequally important. Pragmatism rather than emotions should guide the external relations. The country, as a member of global (UN) community, mustnot forget that the constitution is a public document and universal principles apply to them. In democracies, critical appreciation of any Constitution by anyone is notaninterference.

Legitimacy Issue

The dissenting political groups who declined to put their signatures on the draft Constitution for adoption and promulgation, have been raising the question of legitimacy of the adoption process as it violated the originally prescribed Constituent Assembly Rules of Procedure and, in the name of fast tract, restricted the  assembly members to voice their reservations in the Draft. In the meantime, the transitional coalition government has not yet been able to legislateimplementing laws for holding elections for the federal parliament, and activate federal institutions and constitutional bodies. Judiciary has also been put in limbo. Hence, transitioning from a unitary to a federal system without creating federal institutions and other entities through the prescribed electoral processes is very complex and risky tasks before the government. Pressures pouring in from the international community and grassroots people to hold elections at least for the local bodies add problems to the government as it has not done sufficient homework to create provincial and local federal entities.Demarcation related issues with regardto provincial units need to be resolved and federal electoral constituencies have to be drawn at the earliest.

These things are not possible to realize without taking major political parties, including those protesting Mdhesi and Janajati factions, into confidence. Another constitutional amendment may be urgently needed to accommodate the grievances of Janajatis and Madhes based parties, who were instrumental to introduce federalism through amendments in the earlier Interim Constitution of 2007 which served as a vehicle to establish peace by ending Maoist led conflicts. This also helped radically transform the country from Monarchy to a Republic, and from religious to a secular state with restructured three tier federal governance system, with noble objectives for ensuring egalitarianism, social justice, inclusivity and devolution of power under the new constitutional framework. Differences amongst political parties and many national elites continue to exist as some contentious constitutional issues remain unaddressed, and hence constitutional amendment may be the legitimate way out to respond to the dissenting views. Otherwise, the country may be plunged into another prolonged wave of political instability hampering lofty dreams of the common people who were given undue promises by the politicians that the new federal constitution once commenced will redress their ills.

Dissolution Issue

Rather than focussing on holding elections for the federal parliament (chambers) and local bodies at the earliest possible period, and accommodating protesting political parties through meaningful dialogues and constitutional reform, for creating key state institutions, the government and its coalition partners appear to be diverting the national attention towards ‘dissolution of legislature-parliament’, as the rumours at the higher political level suggest. Keeping aside the acute humanitarian problems of the earthquake victims and persistent draughts in the Terai plains, the present day national priority should be to free the nation from the undue political clutches of the unitary coalition government which is unaccountable to the federal elected institutions. Failure of the state to hold elections means postponing federalization process and further denying people the benefits ofelected local governanceand opportunities of representation. In a parliamentary system, institutional accountability is ensured only through electoral process.

 

 As to the issue of dissolution of legislature-parliament, as the rumours at the higher political level are circulated, the new Constitution totally strips the Prime Minister of his power of using ‘institutional sword of dissolution’ against uncooperative legislature-parliament. A Prime Minister under unitary transitional government system may simply recommend to go for new federal elections, in consultation with the Election Commission. But it cannot dissolve legislature-parliament, which continues to exist until the day of nomination of candidacy (Article 298.2). Even the misuse of ‘removal of difficulties’ clause under Article 305 cannot be applied as was done for appointing  CJ KhilrajRegmi as Executive Head under the Interim Constitution of 2007. Limited power of dissolution of Federal House of Representatives is given by the Constitution to the President during the appointment of a Prime Minister, especially when a PM does not receive support from the House of Representatives (Articles 76 and 100). Parliamentary conventions with regard to dissolution hastherefore been strictly limited to Federal Government formation process under the new Federal Constitution of Nepal. Incorporation of ‘constructive vote of no confidence’ motion based on German model, to propose alternative PM while tabling the motion also is a device that limits the power of PM to dissolve the House.However, power to dissolve Provincial Government or Assembly is quite extensive.

The experiences of Australia, Canada, India and South Africa indicate that the emerging third tier of Federal Unit is very important for local development and delivery of services. Nepal’s three orders of, vertical and horizontal, governments is an advanced form of federalization process with sources of powers secured in the five enumerated lists of the Constitution itself. Arrangement of intergovernmental relations under a separate chapter is very helpful, and so is the creation of fiscal and resource commission. However, resolving ongoingdemarcation issue, three types of electoral process for three orders of government, and  managing inclusivity and diversity, are quite challenging today and in future. Unless federal elections are held and institutions are properly put in place in time, benefits of federalism cannot be reaped by the commoners.Reforms of federal ideas and institutions are a continuing process, even in Australia today; fiscal reforms are needed and task of preparing a White Paper on federalism is given to the National University of Australia.  Thus Nepal must make federalism a functional progressive system serving wider national interest. Time must not be wasted in unresolvable vague and confusing issue of identity alone. Let there be open and continuous dialogue, and federalism be implemented first. Any derailment, by way of dissolution or otherwise, is fatal to the nascent Constitution and new federation.

surya dhungel.jpg

Dr. Surya Dhungel

Dr. Professor Dhungel is Constitutional Expert and Senior Advocate

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