Nepal is the newest member of the international club of ‘federal governance system’ which covers forty percent of the world population, including those largest functioning democracies like USA and India and a small one like Switzerland. Professor Nico Stytler of the University of Western Cape (South Africa) who has closely examined the Nepalese federal design is appreciative of the Nepali experiment on the new local self-government model as constitutionally empowered third tier despite potential complexities of managing diversity and intergovernmental relations.
Nepal does not fit in any of Nico’s criteria set out in his report on a dialogue on comparative local governance system in federations that was published in 2005. Prior to the Second World War, local government was hardly a subject of constitutional importance; it was thought to be an issue of provincial (state’s) regime. Thus nothing was mentioned in the oldest democratic federal charters, such as American federal constitution (1787), Swiss constitution (1848), Canadian constitution (1867) and Australian constitution (1901) about local governments. Only state constitutions of Australia and USA recognized and gave space for local governance, mainly as two tier mechanism but included municipality and township under the state government’s regulatory control. It was only after the Second World War, in fact, when Germany in its Basic Law (1949) started giving constitutional status to the third tier local self-government, significance of local federal entities progressively increased. However, South Africa (1996) and India (after 73 rd and 74 th amendment in 1992 with local Panchayat Raj) created a constitutionally devised third tier local self-government system although both the constitutions never claimed in their texts that they were federal. It was the Supreme Court in India that declared federalism as the basic and unamendable feature of the Indian constitution (Keshavanand Bharati Case, 1973 and SR Bummai Case, 1994). South Africa avoided the word ‘federalism’ simply to keep the new post-conflict Constitution out of undesired racial and identity based controversies.
Functionally, Switzerland has always had an effective local governance system without any specified constitutional mandate but lately it also had to recognize through constitutional amendment (1999 and 2001) the presence of long existing autonomous local self-governments created to address the diversity issue apparent in the society. Modern governments have now welcomed the federal idea with a well-recognized third tier self-government mechanism that has emerged after restoration of democracy in recent years in many countries including Spain (1978), Brazil (1988) and Nigeria (1999). However, attempts of Australia to do so through referenda failed. Hence, a constitutionally recognized three tier governance mechanism- at federal, state/provincial and municipal (local) levels- is more or less an order of the day in the present world. South-East Asian countries, including Myanmar, Indonesia and Philippines, are seriously exploring possibilities of benefitting from federal ideas, and their experts are closely studying Nepal’s experiment. Nepal’s is certainly a unique case, and its local governance system theoretically stands as most advanced amongst them all. But its future depends on how the elected leaderships handle and nurture the sprouted nascent seeds of grassroots federalism.
Nepal’s new federal Constitution promulgated at a function organized by the Constituent Assembly on 20 September 2015 enshrines in it a noble concept of limited government regulated through multi-order federal constitutionalism with exclusively enumerated state authority and powers to vertically devolved federal entities. Notions of ‘self-rule’ and ‘shared rule’, which are for professors Ronald Watts and Daniel Elazar the core of federal systems, are entrenched throughout the constitutional provisions, and they are clearly reflected in the constitutional competencies enumerated in the three exclusive lists and two concurrent lists as well (Schedules 5-9). The following are a few significant features that stand out visibly as unique:
· Direct Constitutional Mandate: Vertical and horizontal sovereign state authority (legislative, executive, judicial and financial) emanate exclusively and concurrently for all autonomous federal entities directly from the Constitution (Articles 56-60, Schedules 5-9), while the residual power rests with centre (Article 58). Hence, local self-government bodies are fully autonomous and have their sources of power in the Constitution itself. Separate chapters deal with respective level of governments and institutions, and fiscal autonomy is also more or less envisaged. They are accountable to the Constitution, applicable laws and their constituent people electing them, not to any provincial authorities.
· Presidential Model: While federal government (Prime Ministerial Cabinet and bicameral legislature) and seven provincial governments (Chief Ministerial Cabinet and Unicameral House) are parliamentary with accountability to respective Houses, the 744 local governments (categorized as village municipalities and urban municipalities) are presidential and directly elected from the people for a five year term. Village Chiefs and Municipality Mayors and the Cabinet (Executives), including the Councils (legislative wings), cannot be removed/dislodged from their offices once they are elected. The concept of ‘no confidence motion’ or ‘recall’ does not exist. Even the electoral processes for higher level of federal entities are different: mixed electoral schemes (FPTP and PR) are devised only for federal and parliamentary legislatures but for the local legislatures (Councils), a different inclusive approach has been devised but with primacy of FPTP system.
· Blended Authority: The Village Chief or Mayor of the Municipality is not only Chief Executive of the local government but s/he is the Head (ie. Chair/or Speaker) of the local legislature (Council) as well. Moreover, Deputy Village Chief/or Dty. Mayor heads a three member ‘judicial committee’, a dispute settlement ‘quasi-judicial’ entity. Such a blended power structure at the local level which combines all three executive, legislative and judicial authorities in powerful local executive heads and deputy heads, is not only unique but risky also, as it goes against the notion of separation of power and the rule of law. Exercise of such blended power, in addition to service delivery and local development responsibilities, including competencies spelled out in the federal scheme (Schedules 5-9), is monumental. Added to these tasks are fiscal and resource related institutional responsibilities as third tier of government. Adequate support mechanism and orientation to build capacity to enable the local bodies perform allocated functions and duties have to be devised by the federal architects.
· Intergovernmental Relations: With the completion of all three levels of federal election before 21 January 2018, the country will have altogether 752 (one federal, seven provincial and 744 local) vertical and horizontal governments which are fully autonomous and constitutionally empowered. Overlapping of the competencies and operationalizing institutional responsibilities, including competitiveness on resource identification and claims amongst all 752 federal government entities, are bound to create occasional frictions. Theoretical knowledge and provisions of the constitutional text alone are not sufficient to maintain harmonious relations. Informal and unspecified political mechanisms have to be equally expedited to mitigate tensions and frictions. This demands the need of sharing comparative experiences of other federations which have gone through similar situations. Good practices and lessons learned from others must be positively expedited in the national/local interest.
The whole range of abstract notions of ‘cooperative, collaborative, coordinative and complementary’ federalism as stated in the Constitution are applicable as per the situational demand of the local body. The separate chapter 20 of the Constitution on ‘intergovernmental relations’ offer sufficient space to benefit from others’ experiences and apply to our own needs. The role of ‘district coordination committee’ to deal politically with local differences appears quite innovative but such unnecessary tools may add complexities. Therefore, it all depends on the nature of problems and how much matured the negotiators are. Similarly, voting rights granted to the local Village Chiefs and Mayors to elect federal Upper House (National Assembly), as a part of ‘shared rule’ is directed to involve local bodies in the central level policy dialogue. Although legislative, executive and political mechanisms are envisaged to facilitate intergovernmental relations in the Constitution itself, the ultimate authority to help resolve constitutional issues and any legal disputes lie in the judiciary, which specifically creates at the apex a ‘Constitutional Court’ (named as special bench of the Supreme Court). This may drag independent judiciary in a new political thicket.
· Inclusivity and Pluralism: Inclusivity and democratic pluralism are two major conceptual as well as institutional devices created under the federal governance structure in order to mitigate discrimination and ensure ‘unity in diversity’, one of the core values of multi order government system. Optimum space for gender balance has been created both in political decision making and electoral representation. As a result, increasing participation of women from all caste groups was observed at the recently conducted local level elections. Additional arrangements for woman participation and minimum representation of other marginalized or minority groups are made at the local executive and legislature in the form of quota also. Although the word ‘pluralism’ has been used in only Article 74 in the context of ‘form of governance’ which is in principle applicable at each level of federal government entity, the added impetus of political, legal, societal and institutional pluralism has nevertheless been granted pervasively through lists of competencies (Schedule 5-9), creation of several commissions (as watchdog institutions), provisions to create specially protected autonomous areas (Articles 56 (5), 57, 283 and 306). Pluralistic approach has been considered in forming a three member ‘judicial committee’, which is like a quasi-judicial body, at the local level headed by ‘deputy mayor’. Its role could be significant and equally controversial in future, as application of judicial mind and minimum norms of judicial process would be expected from the committee members.
· Fixed Tenure and Irremovable: All elected representative at federal institutions and their authorities, except the National Assembly Members, are elected for a five year fixed term; they can however be removed before the expiry of their tenure either through vote of no confidence motion and impeachment or through dissolution of the respective Houses (federal or provincial). But in the case of local federal entities, no elected member or authority (including mayor and ward chairman) can be removed at any stage by any means. Neither local bodies can
be dissolved like federal parliament or provincial legislature on any grounds, nor there is a provision for recall or suspension against breach of discipline or political inaction. In this sense, the local bodies are politically as well as constitutionally more stable and stronger than higher entities. This raises a serious question as to how to prevent the political wrongs done by the reluctant or politically non-cooperative local representatives? What happens if local authorities do not follow the directives or go against the advice of the central government? There is no specific legal deterrence. Only undue fiscal or administrative tools of non-cooperation will be left in the hands of higher federal governments to discipline the trouble makers.
· Fiscal Autonomy: Extensive fiscal autonomy and resource mobilization and management responsibilities are entrusted to the local bodies by the Constitution. Building administrative capacity and skills of planning and managing budget will continue to remain a challenge for the local leadership. The use of technology and ‘smartness’ in managing information is the crux of the smart concept that has to be seriously considered for managing a growing modern mega metropolitan city that generates revenue and wisely uses it.
Federalism and a well-entrenched strong local self-government system is a blessing as it brings government closer to the people and helps in the local development and prompt service delivery. It could also be a curse if it is mishandled fostering division in the society. Multilayer federalism is very complex to manage, especially in a small country with so much of diversity. Hence challenges are enormous and big, but certainly manageable if wisely engineered and implemented.
Following few issues may need early attention in order to put the local governance entities on the right track before it is too late:
· Formulation of enabling laws for exercising legislative, executive, fiscal and administrative competencies that are vague and overlapping, and making arrangements for establishing offices and logistics for operationalizing the elected institutions. Infrastructure development is a must.
· Orientation of conceptual notion of multi-order government and sensitization about job responsibilities, and building institutional capacity, needs to be prioritized from the beginning. Availing resources (human and financial) to all locally elected local bodies is a basic of all institutional needs.
· Vertical intergovernmental relations will demand more time until provincial and federal governments are elected. However, horizontal relations establishment process may have to be initiated immediately even if support of vertical (especially central) authorities will remain inadequate.
· Enhancing cross-party dialogues as much as possible to build cooperative and collaborative political atmosphere must not be undermined, as the multilayer federal system will not be effective in absence of coordination.
· Mitigating divisive psychological implications and ensuring ‘unity in diversity’ is the prime moto in a multiethnic and multi-cultural society. This demands accommodation of all sections of the society within the spirit of the pluralistic democracy and social justice. The hidden pain of ‘madhesi, janajati and dalit’ movements can well be responded through local federal governance mechanism if implemented open heartedly. This is related to legitimacy of the Constitution as well; people from the heart and free participation must accept their self-made supreme laws of the land.
· In due course of time, local government institutions will emerge stronger under the new
Constitutional framework. As a result the role of provinces vis a vis local bodies is bound to shrink as it is happening in South Africa. Hence a challenge of balancing the relations of weak regional governments with the local powerful governments is quite big.
· Establishing the compatibility of odd judicial institutions, including the appointment process, with federalization process may gradually be necessary as the proposition of seven powerful High Courts and the ‘constitutional court’ at the apex indicate the future direction of the justice system. Divisive politics may ruin the sanctity of justice system.
Under the present federal constitutionalism, more institutional frictions, especially political and financial, are bound to trouble the elected representatives more in future. A real trouble shooter (smart leadership) will be required for Nepal if the federalism is to work effectively in the interest of the country. The notion of smart city being talked by newly elected local leaders is a positive indication even if they don’t know what they are talking about. A regularized free and fair periodic election process will eventually give birth to new leadership and help institutionalize the system.
Professor Dhungel is Constitutional Expert and Senior Advocate