1. INTRODUCTION
1. Background
Federalism is a political system in which the sovereign power is
constitutionally divided between a central governing authority and
constituent political units. Federalism provides a technique of
constitutional organization that permits action by a shared government for
certain common purposes, together with autonomous action by constituent
units of government for purposes that relate to maintaining their
distinctiveness, with each level directly responsible to its own
electorate.
The concept of federalism in Nepal is a recent phenomenon that came into
debate after Jana Andolan II. Initially federalism was a Maoist agenda
which has now become a national agenda as it has already been incorporated
in the interim constitution. Hence all the concerned parties are committed
to federalism, and there is no going back. Whether one likes it or not, the
country must now go for the federal structure. The CA in its very first
meeting held on May 20, 2008 formally declared Nepal as FDR. Although some
of the political parties, Rastriya Prajatantra Party (Nepal) headed by
Kamal Thapa and Janamorcha Party headed by Chitra Bahadur K.C were and are
still against Federalism. In conformity to this declaration, the Interim
Constitution was amended and election held for the position of President
and Vice- president. However, the federal state structures have yet to be
formed. For this purposes, we have to identify the principles and
foundations of creating new provinces and consensus regarding them.
Notwithstanding some risks and apprehensions, there has been a general
consensus at political level in favor of federalism.
Federalism and the demarcation of the federal state are central issues of
discussion in contemporary Nepalese scenario. Federalism, by its
definition, is a political system in which the sovereign power is
constitutionally divided among a central governing authority and
constituent political units. It provides a technique of constitutional
organization that permits action by shared government for certain common
purposes, together with autonomous action by constituent units of
government for purposes that relate to maintaining their distinctiveness,
with each level directly responsible to its own electorate. Federalism is a
political structure that distinctly divides authority between the centre
and the provincial units. Whereas in a unitary state, power is concentrated
in the central government and the central authority delegates certain
powers to the lower units in a rather arbitrary manner. Nepal is now in the
process of transformation from a unitary system to a federal structure.
Now, the country has been divided into the various groups on the types of
the federalism. They are divided among those who favor a
geographically based federation and those who favour a federation
based on ethnicity, language or 'historical regions'. Other
considerations also touch on the choice: representativeness and
participation, democratization and fairness to all the inhabitants of
the constituent units. The Constitution of Nepal 2072 has declared
seven different states in Nepal but the demarcation is still debated and
need to select the most appropriate structure of federalism which will meet
the socio-economic aspirations and strengthen the national unity.
In addition to the above mentioned issue, there is a great concern of
people of Nepal that the type of federal system Nepal is to adopt must
embrace the aspirations of the people ensuring the national unity and
security. The people of Nepal wish to see the unification of the people of
Nepal not only geographically but also with the social and economic justice
and harmony. People are confident that the system will strengthen the
political, economical, social, informational and military harmony among the
people. The federal system will provide equal opportunity for all types of
people in the state mechanism and also gives greater space for the
recognition of identity and the empowerment of marginalized people. The co-
existence and brotherhood among the people which will be of course the
outcome of the federalism, creates unity among the people in every sector.
The issue of federalism came up after the Maoists launched their armed
struggle. They advocated the policy with a view to attract people of
different ethnic groups and succeeded in making it popular to a large
extent. Now, people from various walks of life are lauding it. Federalism
became Nepal's major political agenda after second people's movement II
(2062/2063).
Defining the arrangement of federalism in Nepal is not an easy task.
Different groups and the Madhesi Front are demanding that the Tarai be
declared an autonomous state on the basis of region. Similarly, Kirat,
Tharu and other ethnic communities are demanding federalism on the basis of
ethnicity But one criterion alone is not enough to establish the extent of
the federal states. The size and structure, among other things, should be
determined by careful examination of various factors. One of the things for
federalism is always an issue of how to design the central government so it
represents the diversity of the country. The failure for forming a federal
regime is when the people think that the federal government belongs to only
one or two groups and another feels excluded. So the federal government has
to be concerned about whether in some way it reflects the whole country.
The more discussion and dealing with those kinds of things in the national
structure, the more the federal government will be protecting the
minorities across the country. These are the things which are potentially
very important. The whole concept is start building a federation, thinking
as a kind of community or ethnicity. Domestic Federal models have to try
and build a Nepali identity; the value has to be Nepali, respecting the
diversity and accommodating it and promoting it. Though the "Federalism"
issue has been a hot cake for all the political arena, the feasibility has
yet to be proved. After the unification of Nepal by King Prithivi Narayan
Shah up to present government has adopted policy of equity majority of the
people are failed to explore those opportunities by individual. Government
has given equal importance to all the people since its establishment .This
can be proved by the statement of King Prithivi Narayan Shah "NEPAL CHAR
JAT CHATTIS BARNA KO FULBARI HO."
The federal democratic republic of Nepal thus must establish the rights and
duties of its partially self-governing units of the governments. One of the
basic 'self-governance' rights of the local governments is to conduct
elections to form their bodies of the governments. Local governments under
federalism are fully responsible for their local administration, law
enforcement, justice, developments, infrastructure maintenance, school
management, local tax and revenue regulations and so on. Except for
policymaking, funding and overall state infrastructure development the
state has no control over the local governments' right to self-governance.
However, the issue of ethnicity, ethnic identity and self rule was started
to rise after the people's movement of 1990 and during the Maoist movement
which has taken a shape at this moment. But it can easily be noticed that
the demands of ethnic identity is politicized in such an extent that it has
resulted a number of negative impact and seemed to have disturbed the
social harmony in Nepal.
2. Statement of the Problem
Federalism generally implies federation comprising a member of partially
self-governing states or regions united by a central "federal" government.
However, in the government level the self-governing status of the component
states or regions is constitutionally established and no unilateral
decision of the central government can alter it. Primarily, state or
regional governments must consist of a unit of partially self-governing
local governments in which people have constitutional right to govern their
own constituencies. It is the partially self-governing local level of
governments that play vital role for the stability, prosperity and national
integrity of a federal democratic nation.
In Nepal mainly two models of federalism or demarcation of states have been
in discussion. One was territorial based federalism and another ethnicity
based federalism. Territorially Based federalism, with boundaries drawn
on the basis of geographical features, capacity, resources, the
potential or development, equal rights of all persons and
communities living in a sub-national unit, democracy and accountability.
The territorial federation deals with distance, democracy, responsiveness
and accountability. In this federation, rights and obligations of
individuals are based on residence in that territory, and personal
characteristics like language, religion or culture are irrelevant.
Ethnicity Based Federalism, where persons of the same ethnicity or
caste or language constitute the sub-national unit, and enjoy benefit of
its that others do not, such as the use of their language or control
of resources, in order to protect and promote their economic and
social well being, recognizing their distinct identity. There is
likely to be a much stronger sense of belonging to a locality
and with self -determination and identity and culture. In such
critical scenario, it is relevant to deal with contemporary model of
federalism and people's perception about the model.
A glimpse or commitments expressed by political parties during the CA
elections and the election outcome in first and second CA elections
confirms the repercussions of the federal state. A few political parties
have initiated some homework at their party levels. However, to transform
the state into federal nation, it would be imperative to specify at least
in broad terms the names of geographical regions and identify of population
to constitute the federal units. The names of provinces would have to be
listed in the constitution itself. Similarly, the provincial administration
structure-formation, function and powers of the executive, legislature and
judiciary would have to be clearly specified in the constitution along with
the provisions of division of powers and jurisdiction between the centre
and provinces. The constitutional framework for the federal state could be
prepared through experts teams to work on various constitutional and
technical issues such as carving state boundaries, choosing names of
provinces, identifying the systems of governance and electoral processes,
classification and management of natural resources, revenue allocation and
sharing of resources, fiscal management, conflict resolution mechanism in
case of disputes between the centre and province or between the provinces,
among others. But to demarcate the boundary lines of provinces a separate
technical taskforce can be assigned. Once the constitution is adopted and
the state structure is formalized, federalism enters to the governance.
However, the demarcation of the federal states too has become problematic
since there is a mass dissatisfaction regarding six and later seven states
specially on the Terai region. It is the new consequences that Tarai/Madesh
Andolan has reached on peak due to their dissatisfaction of newly proposed
seven states. During last few months, many people have died in the
movement. The death of more than fifteen security person itself marks the
critical situation regarding the dissatisfaction of indigenous Tharu who
have been wrestling for the state based on ethnic identity. On the other
hand, The Madhesi of middle Terai have the dissatisfaction about
contemporary proposed demarking of states. About the critical situation the
incident of Kailai, Tikapur is enough to present. In this, connection Rawal
(2015) writes, "Adding new federal states, new model of federalism with
seven states is formed at 4th Bhadra. Later, the andolan of Tikapur,
Kailali took the life of nine police officers".
The country has become more vulnerable and its sustainability has been
questioned in recent years and federal system keeps it alive. This is
because of its failure to manage its internal order and its inability to
promote much needed social, cultural and economic development. Its failure
to provide good governance, protect citizens' basic rights and fulfill
their basic needs has led the country towards chaos and instability. The
people's increasing aspirations and successive governments' failure to meet
the general masses' expectations has precipitated violent conflicts,
internal displacement, and an environmental crisis. The experience of many
other countries indicates that ethnicity, language and religion could
represent other sources of insecurity. Nepal is fast falling victim to this
problem, and unless appropriate interventions are made to assure adequate
space to all disadvantaged communities, this insecurity could grow. The
security threat perception of Nepal has been changing due to growing
vulnerability and internal disorder rather than insecurity from external
factors. The internal disorder ultimately might pose external threat as
well..
Now the debate of demarcation of federal states is in peak with the maximum
dissatisfaction of some of the ethnic groups' terrible inclusion in
Terai/Madhes andolan. Even the political parties (Maun stream and parties
with ethnic identity), regarding federalism have been divided into various
groups regarding demarcation of the federal state. Madesh Andolan and
rejection of the constitution making process by some of the parties clarify
the critical situation of the nation about the federalism and demarcation
of federal states. They are divided among who favor geographically based
federalism and federalism based on ethnicity, language or historical
regions. Other consideration also touches the choice, representatives,
participation, democratization and fairness to all the inhabitants of the
constituent units. The people of Nepal need to select the most appropriate
type of federalism which will meet the socio economic aspiration and
strengthen the national unity. Several studies on federalism in Nepal are
unable to trace out the proper way to address the Madesh andolan as well as
proper demarcation of federal states in Terai/Madesh. In the changing
context of Nepal as a federal state challenges and prospects to be
researched thoroughly.
In this regard, the research is based on to analyze and answer the
following research questions:
What is the concept and relevancy of federalism in Nepal?
What are the opportunities and challenges of federalism?
What are the major causes behind the dissatisfaction and what
will be the suitable model of demarcation?
3. Objectives of the Study
The study is undertaken with the following objectives:
3.1 General Objective
To analyze the problems and prospects of federalism in Nepal.
1. Specific Objectives
To analysis the concept and relevance of federalism in Nepalese
context.
To explore the issues, opportunities and challenges of federalism in
Nepal.
To identify the reason behind current dissatisfaction regarding newly
proposed federal demarcation and to recommend the proper model.
4. Significance of the Study
The peace, development and prosperity of any nation is directly
proportional to the political stability of that nation. The causes of
political instability of any nation are dissatisfaction of people with the
government due to various unsatisfactory activities carried out by
government/political parties. The main causes of dissatisfaction of the
people with the government are on all the functions of legislature,
executive and judiciary.
After the constitution 2072 of Nepal, nation has entered into federalism.
Since then it is being a matter of discussion due to lack of appropriate
concept of it. The conclusion so made out of this study brings out to
highlight the concept as well issues and challenges of federalism in Nepal.
This research has its own significance since it addresses the contemporary
debate regarding federalism, people's satisfaction and dissatisfaction
about newly purposed federal states. Similarly, it tries to find out the
reasons behind people's acceptance or rejection of purposed model. It tries
to traces the proper criteria to mark the demarcation of federal states in
Nepalese context with clear cut ideas about positive and negative sites of
federalism. Federalism has various challenges in contemporary Nepalese
scenario so this research will be beneficial to cope with challenges since
it tries to evoke the reasons behind contemporary andolan held by different
ethnicities. This research will be helpful for the government agencies and
stakeholders and policy makers to build systematic federal states, its
organization and management as well as to prepare an appropriate plan to
cope with the challenges associated with federalism and state demarcation.
5. Limitations of the Study
This research has its own limitation since it only deals with contemporary
debate about federalism, states demarcation and people satisfaction or
dissatisfaction on proposed federal model. The limitations of the study are
as follows:
The research paper is focused mainly on the opportunities and
challenges of federalism and demarcation of states.
The study only focuses on proposed federal model, state demarcation
and reasons behind people's acceptance and rejection of the model.
The research, being done in training period so there is a limitation
of time and resources.
2. REVIEW OF THE LITERATURE
The study is based on various relevant literatures such as various books,
journals, reports, other publication and web side articles also. Some of
them are as follows:
2.1 Federalism
The Nepalese political history within the boundary of greater Nepal shows
that there were different dependent states (Asrit Rajya) states in
different period. Since then main concept of federalism is the sharing of
power in between centre and federal states as there was some power
delegated to those dependent states as well. So one or another way, the
concept of federalism in Nepal is not a new idea; it was in practice
through our history. The delegated power for states was kidnapped by
different rulers in different period.
The collected articles of different historian were published in an edited
book form by Nepal Rajakiya Pragya-Pratisthan in 2001 A.D. The book is
entitled "Nepalko Itihaska Bibid Pakshya" edited by Dinesh Raj Panta about
the policy adopted by Bahadur Shah towards dependent states of Nepal which
basically deals about the system of those state and power/authority
delegated from centre to those dependent ( Asrit Rajya) states in present
concept that was a type of federalism.
The book written by Pusparaj Kandel entitled " Rajyeko Puna: Samrachana,
Artha Rajnitik Sandarva ra Sanghiyatako Prasna" was published in
2007AD.The book deals about the necessity of federalism in Nepal and the
concept of federal Nepal among different political parties. He has tried to
evaluate the federal system of Nepal from eco-political perspective. The
writer has mentioned about the experience of different nations on federal
system. He has slightly touched about the ethnicity of Nepal and focus
towards the decentralization of power based present political division. The
writer has not evaluated correctly federalism concept in Nepal from social,
cultural, religious and ethnic perspective and suggested that federalism
can be harmful for Nepal.
The article written by Bhimarjun Acharya entitled "Sanghiya Rajyabewasta"
in the monthly newspaper International forum of Aug/Sep of 2007 A.D. in
which the writer has described about the cause that any nation adopt
federal system and the history of the federalism in the world. He has given
the pre-requisites for a nation to adopt the federal system of government.
The article does not evaluate the concept of federalism in Nepal from
different perspectives.
The book written by Surendra K.C., entitled "Nepal ko Rajya Punarsamrachana
ra Sambidhansabha" was published in 2007 A.D. The book mainly focused on
the history of Nepal based in federalism. Writer has mentioned the reasons
of advocating federalism in Nepal from historical point of view. In this
book the writer has presented the concept given by different political
parties and academicians. He has purposed 11 federal states in Nepal based
on ethnicity. If the nation divided in to federal states based on
ethnicity it will be the "Cancer" for the nation for ever, because on his
division every ethnic groups within own federal state are in minority .The
writer has not analyzed the advantages and disadvantages of ethnicity based
federalism concept in Nepal from the present ground reality perspectives.
The book written by Dev Raj Rai entitled "Sundar, Sakshyam ra Sabhya
Sanghiya Naya Nepal" was published in July 2007 AD in which writer has
described about the importance of constitutional election in Nepal, the
different forms of governmental system in the world. The writer has
emphasized in the autonomous form of the government in Nepal but he has not
mentioned the numbers of federal state i.e. suitable for Nepal as well as
he has not evaluate from different perspectives the advantages and
disadvantages of federal system in Nepal .
The book written by Kanchha Lawati entitled "Naya Nepal ko Parikalpana" was
published in June 2007. The writer has purposed ethnic based 11 federal
states in Nepal based on ethnicity showing his concept of federalism stood
up from the "Tamra Patra" agreement between King P.N. Shaha and Limbu King.
He has not evaluated the advantages and disadvantages of federal system in
Nepal from different perspectives
Ghimire (2013) highlights the interest of China's in Nepalese Federalism.
Due to the geostrategic importance and poor economic condition Nepal cannot
ignore the views of its neighboring countries and the donor countries.
According to him after the Peoples movement of 2006 China's involvement in
the internal matters and politics has substantially increased The
international communities and the players have their own interest regarding
federalism in Nepal. The author says, "These international players are also
divided according to their own interests on the issue of federalism. The EU
has been advocating the rights of ethnic communities and India has
suggested linguistic determinants as one of the bases for
delineating provinces Meanwhile, fearing Tibetan independence movement,
China appears to be opposed to ethnic federalism in Nepal" (Ghimire, 2013).
The Chinese are very sensitive about the types of federalism in Nepal due
to the recent protests and series of self-immolations by Tibetans living
inside and outside of Tibet. According the writer, China would therefore
not want multiple power centers or too many federal states near its border.
Khanal, (2002) The chapter 'restructuring of Nepali state: The federal
Perspective'in the same book explains that the federalism ensures diverse
groups access, identities and representation in the state structures. The
writer has talked about various illusions and misconception about the
utility of federalism in Nepal. He writes that federalism has nothing to do
with the geographic size of the country. Therefore, denies the idea that
federalism is not appropriate for a small nation like Nepal. He further
writes that the federalism does not disintegrate the nation and also argues
on the logic that for the poor country like Nepal which depends on foreign
assistance, federalism cannot sustain in economic terms. According to the
writer federalism is necessary in Nepal because of its diverse society
which by a unitary system cannot be effectively maintained. It is also
necessary for strengthening democracy at the bottom and carry out the
development process in more equitable and efficient manner. He also
emphasize on necessity of strong commitment and compliance to federal
democratic values and culture.
Serchan, (2012) to undertake a comparative study of the world's federations
by comparing the various federal countries of the world in order to suggest
an appropriate model for federalism in the Nepalese context. He writes
"Nepal is transforming itself into a federal state by devolving power away
from the centre. It is, therefore in the conventional language of
federalism, a 'holding together; and not a 'coming together'. (Serchan,
2012). He also considers federalism as a tool to address different
viewpoints and interest that exist in diverse country like Nepal. He argues
"the federalism debate in Nepal boils down to the issue of identity based
or administrative based federalism" He further writes that the
administrative based federalism gives continuity to one language and one
culture policy that Nepal has been experiencing since long time and such
system will negate the multiethnic, multicultural, and multilingual and
multi regional reality of the Nepalese society.
2.2 Federalism and Demarcation Debate in Nepal
Baral, (2007) Focus on that, The history of Nepal from federalism
perspective. Comparing the different concepts about the federal Nepal he
has suggested 10 federal states in Nepal all based on ethnicity. The writer
has suggested that autonomy is an essential factor for Nepalese federal
states. Without evaluating heterogeneous Nepalese human context the writer
has given very few advantages and disadvantages of federal system to Nepal
by presenting few examples of the world's federal nation states.
Kandel, (2007) Focus on the book about the necessity of federalism in
Nepal and the concept of federal Nepal among different political parties.
He has tried to evaluate the federal system of Nepal from eco-political
perspective. The writer has mentioned about the experience of different
nations on federal system. He has slightly touched about the ethnicity of
Nepal and focus towards the decentralization of power based present
political division. The writer has not evaluated correctly federalism
concept in Nepal from social, cultural, religious and ethnic perspective
and suggested that federalism can be harmful for Nepal.
Acharya, (2007) Focus on the monthly newspaper International forum, in
which the writer has described about the cause because of which a nation
adopts federal system. He has given the pre-requisites for a nation to
adopt the federal system of government and the history of the federalism in
the world. The article does not evaluate the concept of federalism in Nepal
from different perspectives.
Bhattari, (2007) In Nepali context too, there must be primary concern in
national security. The national security addresses the issue like security
strategies and functions of Security Council. About such issues of Nepal,
Rajan Bhattarai writes citing Geja Sharma Wagle's article in his book"
Changing Security Dynamics in Nepal": Geja Wagle's paper, 'National
Security and the role of the National Security council' explores the
historical development of Nepal's approach to national security and then
reviews some of the emerging challenges to the state's security. He too
comes to the conclusion that the main threats to national security are
internal, not external: while the 'people's war' may have come to the end,
the threat of further internal conflict may be growing as ethno-regionalism
starts to take hold, as a number of organisations representing certain
ethnic/ caste groups within the country are claiming the greater autonomy
and self determination.
Baral, (2004) mentions that some of the authors are conscious about the
risk of federalism and demarcation of provinces. This Should be the State
Structure Like mentions that the territory comprising Nepal which has long
been administrated as a unitary state has now to be carved into different
self-governing provinces. For this purpose, we have to identify the
principles and foundations for creating new provinces and establish
consensus regarding them. Notwithstanding some risks and apprehensions,
there has been a general consensus at political level in favor of
federalism. A glimpse of manifestos or commitments expressed by political
parties during the CA elections and the election outcomes thereafter
confirms the comprehensive mandate of the people for the federal state;
however, the entire gamut of work to translate this mandate to forming
state structure and administrative apparatus remains to be realized. A few
political parties have initiated some homework at their party levels.
However, at the state level, apart from few ad hoc agreements and
understandings, not even a minimum of spade work has been carried out till
the time of going to press of this publication.
Lawati, (2005) Focus on that, to transform the state into a federal nation,
it would be imperative for the constitution to specify at least in broad
terms the names of geographical regions and identity of population to
constitute the federal units. The names of provinces would have to be
listed in the constitution itself. In the same way, the provincial
administrative structure–formation, functions and powers of the executive,
legislature and judiciary – would have to be clearly specified in the
constitution along with the provision of division of powers and
jurisdiction between the centre and provinces
Neupane, (2000) mentions that, The constitutional framework for a federal
state could be prepared through experts teams to work on various
constitutional and technical issues such as carving state boundaries,
choosing names for provinces, identifying the systems of governance and
electoral processes, classification and management of natural resources,
revenue allocation and sharing of resources, fiscal management, conflict
resolution mechanism in case of disputes between the centre and province or
between the provinces, among others. But to demarcate the boundary lines of
provinces, a separate technical task force can be assigned even after the
constitution is adopted and it would be an appropriate process. Once the
constitution is adopted and the state structure is formalized, federalism
enters to the stage of governance/administration. The state will be
considered to have been formally transformed into a federal polity only
after elections are held for the provinces and legislature, executive and
judiciary with proper administrative structures are formed in place.
Federalism is a new exercise for Nepal. Until a few years ago, federalism
was an academic subject for students of political science and
constitutional system, which has now emerged as a political reality of the
Nepali state. As a result, there is a paucity of studies and expertise in
this field. Since the last few years, various ethnic groups and Madhesi
communities have brought federalism at the forefront of the issue of state
restructuring. A number of studies, reflections and proposals have been
presented in this context (Neupane, 2000; Acharya & Khanal, 2002; Shrestha,
2003; Khanal, 2004; Yadav, 2003; Yonjan, 2004; Gurung, 2004; Bhattachan,
2003; Baral, 2004; Lawati, 2005) However, these studies offer less of
substantial discussion on federal state theories, concepts, values,
exercises and experimentation than sentimental expression on these issues.
No doubt these studies have their significance, but formation of state
structure and operationalization of administration cannot be achieved on
sentiments only. There are a number of universally acknowledged values of a
federal state; there are also models and experiences of various countries
before us. These matters can be of relevance to us. But we need not copy
and adopt them here, though their studies can help us broaden our
understanding and devise suitable alternatives.
Currently of the 193 UN member nations, 24 are classified as federal
states. Nepal has just proclaimed itself a federal state. Iraq, Italy,
Sudan and the Philippines are taking steps towards federal system. U.K.,
France, Japan and two dozen other countries have political systems with
autonomous regions which have features of federal system of governance
(Watts, 2008).
Federalism has emerged as the most widespread system of governance –a
political reality of the 21st century. However, within federalism, each
state maintains its own structures framework, develops its own
constitutional practices and many things differ from each other. This is
considered natural because each county has its own specific historical
background, geographical conditions, social cultural make up, life style of
people and political-economic structure. While creating new state
structures, all of these issues will have to be addressed appropriately. We
cannot expect a well formed federal system to present itself before us on a
fine orning. For this a lot of homework, comprehensive consensus on all
sides, understanding, agreement and coordination will be required. At
present, we are at the very initial stage; we have to cover a lot of ground
by way of giving continuity, refinement and development in this regard
(Acharya & Khanal, 2002).
Besides the books, a number of websites have been also referred to make the
research more comprehensive and logical. The websites
www.en.wikipedia.org/wiki/image:Federal-states.Png gives idea about the
federalism. Other websites www.nepalnews.com and www.ekantipur.com too
provides some very useful article on the federalism written by contemporary
politician and politician analysts.
3.RESEARCH METHODOLOGY
For the study of the concerned subject descriptive and analytical method
has been chosen. Data collection techniques for the study have been taken
from secondary sources. Basically, to study about concern subject,
information has been gathered from published material newspapers articles,
books, magazine, internet website etc. Therefore, the work will largely be
confined to the library. The audio visual media have also been used by the
researcher. While analyzing the data, the researchers have followed
qualitative approach.
Qualitative methods provide an insight into how people make sense of their
own experience that cannot be easily provided by other methods (Rice,
1996). Similarly, according to Baum (1995), qualitative data were powerful
as it allowed us to understand the context issues were public health
concern in recent years. As stated by Brannen (1992), qualitative data
documented view of the people studied instead of focusing it from
researcher's perspective.
3.1 Research Design
This study has followed an analytical as well as descriptive research
design. The method of the research is initially the collection of data,
then the critical evaluation or analysis of available data and information
to achieve the objectives of the research paper.
During research some experts were consulted who have been working in this
field for long time. The researcher has also explored through all available
resources both books and articles published in the internet and newspapers
to identify the fundamentals of federalism and to relate these factors to
the prevalent reality of Nepal and hence point out the areas in its
implementation that are likely to create conflict and make appropriate
recommendations for a successful federal system for Nepal.
4. FUNDAMENTALS OF FEDERALISM
4.1 General
Federalism would not be possible without a written constitution. There must
be the possibility of action by a shared government that is shared by the
people of the whole country for certain common purposes for the matters
that affect them as a nation. There must also be a division of the country
into constituent units and those units have autonomy in connection with
matters that are important to retaining their distinctiveness which makes
them different from other parts of the country. Each level of government
must be directly responsible to its own electorate and the system must be
democratic at each level.
It is also the most secure form of protection of powers given to sub
national levels. The arrangements for the distribution of power are
entrenched in the constitution, so that powers of the sub national unit are
not given by the national government but by the constitution itself. The
constitution divides state powers and functions between the centre and sub
national units, for which there are a number of models. In "classical"
federations, governments established at the national and regional levels
are co-ordinate and supreme within the spheres allocated to them, but in
some federations like India, the sub national units can be subordinated to
the centre in some circumstances. A federal constitution will also regulate
the power to levy taxes, to collect, distribute and spend revenue.
4.2 What is federalism?
In simple terms Federalism is about power and self-government. To put it
another way, it is about "shared rule" and "self-rule". Self-rule refers to
local communities making their own decisions, and shared rule refers to the
way in which the national government of a federal country is structured in
order to ensure that everyone participates in it (UNDP, 2007:4).
According to Stanford Encyclopedia of Philosophy, Federalism is the theory
or advocacy of federal political orders, where final authority is divided
between sub-units and a center. Unlike a unitary state, sovereignty is
constitutionally split between at least two territorial levels so that
units at each level have final authority and can act independently of the
others in some area. Citizens thus have political obligations to two
authorities.
Federalism is a dynamic theory of nation and state building. It is
primarily a theory about institutionalized political cooperation and
collective co-existence. In other words, federalism is a grand design of
'living together' in the prevailing conditions (http://www.telegraphnepal.
com/index1.php?mode=17).
4.3 Principles Common to All Federations
For every federal states, there are five fundamentally common principles.
(Shyam Shrestha, Nepalma Sanghya Rajya Pranaliko Sambhavit Swarup ra
Samrachana in Sanghiya Rajyako Naya Samrachana)
Devolution of Power. Federalism is based on the principle of
devolution of power. The centre is not the source of all power but rather
has equally powerful states and common and uniform factors exist that
bind these states together by constitution.
Control over government and authority and balance. In federal system
power and authority is balanced between the centre and unit. The
political system is designed in such a way as to maintain control and
balance between the units and centre and all institution function with
this.
Social/Cultural Inclusion. Federalism ensures equality for the
minority their reach, representation and identity at every level of
government through constitution, law and governing system.
Open Interaction between the states and the centre. In federal system,
discussion usually takes place between the centre and unit, government
and dissidents. Sharing of power and authority, distribution of units are
facilitated by political system in federalism. This is the reason why
social /Cultural problems are solved before they reach the climax.
Written Constitution and constitutionalism. Federal system requires
clear and unambiguously written constitution based on mutual consent and
harmony. The power and responsibility of the centre and the units must be
clearly defined and also should make provision for problem solving
through competent judiciary, law and constitution.
4.4 Types and Purpose of Federalism
Today the world is moving towards federalism mainly for three reasons.
First, the collapse of one-party states characterized by hierarchical top-
down dictatorship, second, the opening up of the market economy, and third
the continuing importance of the politics of identity (UNDP op.cit.;5). In
the 1940s and 50s the idea was that everything could be done by strong
central government. There are differences in views on the purposes of
federalising and there is not much agreement on the criteria for the sub-
national unit, the balance between self-rule and shared rule, the salience
of culture, the politics of internal mobility, the allocation of resources,
the modes of dispute settlement–indeed the very feasibility of federalism.
Two broad distinctions between federations, are firstly to the way in which
federations come into being, and secondly to the basis of the federal
structures.
4.5 Basic Ways to Form a Federation
Most federations have come into being by a process of coming together
previously independent entities also known as aggregation as in the cases
of the US, Australia, and Switzerland or by the restructuring of a unitary
state also known as disaggregation as in the cases of Ethiopia, Austria,
Spain, South Africa, and Belgium. In the countries that formed a federation
by aggregation, the driving force is the need for security, tempered by the
desire to remain distinctive. Generally in these federations the units
retain sovereignty over those matters which they have not transferred to
the federal authorities (Sharma 2007, 29). The principal task in the
formation of a federation by aggregation is the establishment of the
federal institutions and government which is seen as formed by and
representing the states. States themselves have already well established
constitutions, institutions, identity and political systems and so do not
feel threatened by the formation of federal authorities. The creation of
federal authorities is a less arduous task than the creation of numerous
new states as in federation by disaggregation and often their powers and
jurisdiction are limited and do not require at least to start with detailed
regulations and institutions. The new subnational units already have well
established systems of laws and governments, identity and boundaries.
A federation by disaggregation usually results from breaking up of a
unitary state with a highly centralized administration. Modern demands for
federalism are mostly about the restructuring of an existing state. That
process requires the total reorganisation of the state, and raises a much
larger number of issues than the process of aggregation: the boundaries of
the sub national units, the number of such units, the levels of subnational
units, the dismantling of at least some structures of the state, the
establishment of numerous new governments and laws, the transfer of
substantial powers and personnel to the new subnational units, compounded
by the fact that this type of federation is often accompanied by
controversy.
4.6 Common Characteristics of Federalism
Despite many differences a few common characteristics distinguish federal
systems from other kinds of government. The following characteristics are
usually thought to make a system of government federal (Anderson 2008, 3).
o At least two orders of government one for the whole country and the other
for the regions. Each government has a direct electoral relationship with
its citizens. The regions have many names; such as states, provinces,
Lander, cantons, regions and communities.
o A written constitution some parts of which cannot be amended by the
federal government alone. Major amendments affecting the constituent
units commonly require substantial consent from them as well as from the
central government.
o A constitution that formally allocates legislative, including fiscal
powers to the two orders of government ensuring some genuine autonomy for
each order. However, federations differ greatly in the way and extent to
which they define distinct powers for the two orders.
o Usually some special arrangements notably in upper houses, for the
representation of the constituent units in key central institutions to
provide for regional input in central decision making, often with greater
weight given to smaller units than their population would otherwise
merit.
o An umpire or procedure usually involving courts but sometimes referendums
or an upper house to rule on constitutional disputes between governments.
o A set of procedures and institutions for facilitating or conducting
relations between governments.
4.7 Major Federal Countries in the World
There are two schools of thought about the federalism. One school of
thought advocates the federal system to ensure genuine democracy and total
autonomy of the local people in the decision-making process. The other
school of thought is of the view that the federal system works only in big
countries with huge populations but not in small countries. The concept of
a federal system was first implemented in the United States and is the best
example of such a system where the rights of the central and state
governments are clearly defined. Germany, Canada, Australia, Switzerland
are other successful models of the federal system. When we look at the
Indian model, it has had more problems and failures than successes. Due to
no clear definition and demarcation of the rights and jurisdiction of the
central government and state government, there is often friction between
the centre and the states.
Germany
The German federal state is a complex entity. It consists of a
central Federal Government and 16 federal states. The Basic Law lays out
which issues fall within the ambit of the Federal Government and which
devolve to the federal states. Public life in Germany is predominantly
based on central laws.. In everyday life the citizens of other federal
states have far more frequent dealings with representatives of central
government. Essentially these are determined by economic and social
policy. With regard to financial policy the German constitution accords
the federal states considerable flexibility in the financing of their
duties. Part of these taxes goes to central government alone or to the
federal states and another part, including the particularly lucrative
taxes, is divided up between central government and the federal states.
This means that federalist elements dominate the state administrative
systems.
Canada
Central to the organization of government in Canada is the principle of
federalism. Under this principle, Canada is divided into two
constitutionally autonomous levels of government: the federal or central
government, and the provincial governments. The nation's basic division
of government plays an important role in public finances and public
policy. The basic framework and operation of Canadian federalism are
discussed in this article with specific emphasis on the concept of
federalism, the different levels of government, the formal division of
powers, the operation of fiscal federalism, and the key means of
interaction between different governments.
Australia
The Australian Constitution established a federal nation, where powers
were to be shared by the national (Commonwealth) government and six
member states - the former British colonies. Colonial parliaments and
laws were protected, though certain powers were lost to the national
government. The Australian Founders sought to protect as many state
powers as possible, for they believed that this was the only type of
government that had a chance of being accepted by voters. The Founders
also chose to follow the USA example rather than the Canadian by having
the national Parliament's powers specified in the Constitution. Overall,
the constitution-writers were pleased with their efforts to create a
federal system in which there was a strong element of concurrent power.
A South Australian delegate to the 1897-8 Federation Convention believed
that he and his colleagues had provided 'that national questions should
be federalized, and the local questions should be left to local self-
government'.
Switzerland
Switzerland has been multicultural in its own way for
centuries. Democracy and Direct Democracy in particular, has a long, but
not undisputed tradition in this country. Switzerland's unique political
system is today world's most stable democratic system, offering a
maximum of participation to citizens. Switzerland is a Confederation of
26 cantons. The cantons [member states of the federation] do enjoy quite
some autonomy which consists of Governments, parliaments and courts on 3
levels federal, cantonal, communal. Small villages have reunions of all
citizens instead of parliaments. Local courts are common to several
communities. Two features of Direct Democracy grant an unusually
detailed level of participation to ordinary citizens. Popular Initiative
Ordinary citizens may propose changes to the constitution, if they can
find a number of supporters (100,000 out of about 3,500,000 voters,
smaller numbers on cantonal and communal level).The parliament will
discuss the proposals, probably set up an alternative and afterwards all
citizens may decide in a referendum whether to accept the original
initiative, the alternate parliamentary proposal or to leave the
constitution unchanged.
United States
The United States is exactly a Union of states. Each state has its own
individual powers. However, that does not mean that the states have
power to legislate on all matters. The Constitution of the United States
spells out the powers of the federal government and of the "several
states." The federal government has its own fields of legislation, and
if federal legislation conflicts with the state laws, the federal
legislation prevails. If this occurs, the state must defer to the
federal government. The alternative, that any state may at any time
leave the Union and thus be free from Union interference in the state's
internal affairs, was tried during the American Civil War.
India
The Indian Constitution is primarily federal, having features essential
for a federal system. In a unitary state there is only one government,
namely the national government, in a federal state there are two
governments the national or federal government and the government of
each component unit. India as a federal system has a Central Government
and State Governments.
A division of authority exists between the federal government and the
States, there are three lists enumerating the powers of Union, State and
Concurrent. The Indian Constitution is a written document which defines
the structure, organization and powers of the Central as well as State
governments, and clearly prescribes the limits within which each wing
functions.
The constitution of India provides a bicameral legislature at the
Centre. The Rajya Sabha gives representation to the States. Supreme
Court is given this power to guard the distribution of powers and the
constitutional provisions. Despite the essential features of a
federation that characterize the Indian Constitution there are some
features that make it different from the typical federal systems of the
world. There is a single Constitution for the Union and the Sates in
India unlike the case of other federations. No State except Jammu and
Kashmir has its own separate Constitution.
5. FEDERALISM IN NEPAL
5.1 General
Federalism is essential in plural countries like Nepal because it provides
cultural autonomy to different cultural groups within a country. By
allowing ethnic groups to govern themselves in cultural and developmental
matters, it lessens their conflicts with the central state. Many of the
conflicts of the identity movements are in cultural issues. Once regional
governments are established, either the contesting parties from their own
governments at the regional level, and decides in those matters, and/or
influence the outcome because their proportional presence at the regional
level is more than in the national level.
The bureaucracy will also increasingly reflect the regional composition
because the regional governments would hire local people in the
administration. Inclusion of more ethnic members into regional politics and
administration will ensure more public politics directed toward regional
needs, instead of irrelevant policies directed by the center. This will
contribute to reducing conflicts arising out of mal-distribution of
resources.
Territorial federalism can work for the benefit of large ethnic groups
concentrated regionally but may not be able to address problems of the
numerous low populated ethnic groups or groups that are not concentrated
because they may not form majorities anywhere. For these groups, non-
territorial federalism, as in Belgium, Austria etc. may address their
needs. In non-territorial federalism, members of ethnic groups have rights
to decide about their culture, education, language and so on by electing
councils who have jurisdiction over cultural, social and developmental
realms (Kandel 2063, 179). The problems of the dalit and small ethnic
groups can be addressed through non-territorial federalism.
5.2 Why Federalism in Nepal?
Evolution of Concept of Federalism in Nepal
After the collapse of the royal government in 2006, parties that had
hitherto remained wedded to the idea of a unitary state also embraced
federalism as part of the new state restructuring project (Shah 2008,
in Processing Federalism in Nepal in
http://www.telegraphnepal.com/index1. php?mode=2). On January 15, 2007
the interim legislation was formed and enacted in Nepal. Madhesi
Janaadhikar Forum protested fiercely for not being included in this
legislation. To address the demand of the people of Madhesh, PM
Koirala, supported by the 8-party alliance, made a theoretical
commitment for the federal form of state mechanism. By making
necessary amendment in the constitution to authorize his announcement,
it was decided that Nepal should be made a federal state.
Needs of Federal State
Armed and communal conflicts take place because of the political
exclusion of a large social group. Federal structure minimizes such
exclusion and enhances political participation and role. The
government formed to take care of a particular group for its common
benefit will address structural conflict and violence. Federal
structure allows the state power to reach the smallest unit of state
mechanism. This automatically establishes mechanism to resolve
conflict on the permanent basis. Identity-based issues like culture,
ethnicity are given due recognition by the state. This helps a great
deal in eradicating communal feeling and conflict.
At the local level, native people have full access to regional
resources. Federal form of government enables and expands scope of the
people of grass-root level to enjoy the full extent of democracy. This
also ensures and safeguards the rights of all groups of people by
ending ethnic and religious discrimination through decentralization.
To allow the resources to reach the grass-root people federal system
is effective form of governance. Apart from imparting status and
recognition to all ethnic, linguistic and regional groups, federal
state structure guarantees the overall participation of the common
people in the development and democratic process.
Nepal has seen a unitary system of government right from the beginning
of era. It was felt at certain period of time that the system could
not include every Nepali people into the state mechanism and the
democracy could not reach to the people living in remote places and
marginalized people for some reason. The political changes in 2062
strongly demanded the need of federal system in the country to provide
equal participation of the people in the political, economical and
social system of the country. There are many reasons why the people of
Nepal want to enter into the federal system. Some of the reasons are
described hereafter.
5.3 Increasing Support for Federalism
Centre Heavy Administration
Nepal has been ruled centrally from Katmandu for last 240 years. The
political, economic, social and security aspects have been rigidly
controlled by the central government from Katmandu. People did not
feel that they have been empowered to use the state power to rule
their own places. The Panchyati System adopted decentralization policy
to delegate the Kathmandu centric power to respective regions, but it
was not implemented as per what King Birendra wanted to implement. The
government formed after the political change in 2046 too did not
attempt at all to share their power with the people living in various
parts of world.
The Katmandu centric state policy has kept the country isolated,
remote and underdeveloped. The central government could not implement
its developmental programme to remote places and the people living in
remote places could not get political and administrative authority to
bring socio-economic development in their own places. The budget of
Karnali zone is less than the budget of Katmandu district. The average
per capital income of village is only US $ 131 where as the per
capital income of town is US $ 298. The per capital income of Jumla,
Humla and other Himalayan region is only US $ 110 where as the per
capital income of Katmandu is more than four times larger i.e. US $
446 (Ghai 2007, in http://www.undp.org.np/ constitutionbuilding).
It has been concluded that Katmandu centric government will not change
the fate of the people. It will only support the status quo policy.
People do not want to be dominated by Katmandu. They want their
political, economic, administrative, social and other rights to rule
their own government. This changed aspirations and desires made the
people to demand federalism. People's desire to change Nepal into the
republican state created an environment for the federalism. The reason
of entering into the federalism is to end the centralized governing
system and to commence an era of self-rule and autonomy with
identification of ethnicity, language and culture.
Elitism and Political Domination
It has been experienced that only a limited group of people of Nepal
has their influences in the most of the state mechanism. The elite
classes like Shah, Rana, Bahun, Chhetri and Newar living in towns and
developed places have their easy approach to political and economical
activities of the country. The resources of the country have been
controlled by only a handful of people. The majority of people are
deprived from the facilities and services of the country. These
discriminatory traditions made the people to think for changes. People
want to change the system where people representing 35% of total
populations have controlled the whole country. People have felt that
Nepal has been integrated geographically but not with the feelings.
People are willing to see Nepal as a nation-state where all people
with their own identity can live with pride. This aspiration also
forces Nepalese people to go for federalism.
Racial/ Caste/ Ethnic /Gender Discrimination
Nepal could not stand as a country of all caste, dalit, women,
Madhesi, marginalized class, region and community. It has been
recognized as the country of limited caste, language and religion. The
country adopted discriminatory, isolating and exploiting policy on the
basis of caste, ethnicity, religion, region, gender and class. Such
system could not help to eradicate the socio-economic grievances of
the people. The higher caste people are taking the benefits of the
economic activities which can be understood through the table of
poverty status on the basis of caste.
Table 5.1 Poverty Status on the Basis of Caste
"No "caste "percent "
"1 "Newar "25 "
"2 "Bahun "34 "
"3 "Kshetri "50 "
"4 "Yadav "40 "
"5 "Sarki "65 "
"6 "Damai "67 "
"7 "Kami "68 "
"8 "Muslim "38 "
"9 "Gurung "45 "
"10 "Tharu "48 "
"11 "Rai "56 "
"12 "Magar "58 "
"13 "Tamang "59 "
"14 "Limbu "71 "
"15 "Misc "37 "
"16 "Nepali "45 "
Source: GON, CBS (20015), Proverty Trend in Nepal.
91.2 % of major position of political and bureaucracy have been
occupied by people of upper caste. But they occupy only 31% of total
population. Pahadi people of upper caste have occupied 76 to 78% of
bureaucracy, judiciary and civil society. The Pahadi people of upper
caste have controlled 58.4% of political field but the only 13%
Pahadi indigenous people have occupied this field despite they
constitutes 31% of total population (Sharma 2064, 18).
The political achievement of 2062/63 has given the people's verdict to
end such discriminatory unitary system. Nepal has been identified as a
exclusive country for indigenous, Madhesi, Dalit minorities and people
living on remote places. Neither these people have judiciary
participation and ownership in the decision making position nor they
have approach to opportunities being provided by the state. One of the
reasons of introducing of federalism in the country is to end the
exclusive and discriminatory social system and to ensure the identity
of all language, caste gender, religion, culture, class and region at
all level and structure of state system.
Popular Aspirations versus Responsiveness
The unitary system adopted by the state for a long time did not meet
the aspirations of the people. The majority people still have
difficulty to fulfil their basic needs. People want a good education,
medical services and other social security. They want rapid
development in transport, communication, energy, agriculture and
industry so that their grievances could be eliminated. They have
desire to stand as prosperous and resourceful people. But the
political system we followed for a long time neglected these issues
and we remained poorer as ever. This reality has channelled the
popular aspirations towards federal system. This system will
facilitate them to speed up their developmental programme in the
country. It provides them authority and resources which are the key
factors of development. It has been proved that the development
through the delegation of power and participation of people is more
effective. Therefore, it can be concluded that the people of Nepal
have decided to bring federalism in the country to meet their
aspirations through the process of socio-economic development.
5.3 Federalism Debate in Nepalese Context
Although the Interim Constitution 2007 guarantees and Constitution 2072
establishes federalism in Nepal, as far back as the 1950s a regional party
called the Tarai Congress demanded a Tarai Autonomous Region in a federal
set up. However, federalism did not gain wide public support, even in the
Tarai, and the idea faded from public consciousness soon after. Since the
restoration of democracy in 1990, Nepal saw the rise of ethnicity as a
socio-political identity among Nepal's various groups and the demand for
inclusive democracy, including federalism, by ethnic groups slowly gained
ground. After the People's Movement of 1990 (Jana Andolan I), out of 44
political parties registered with the Election Commission, 3 included
federalism in their manifestos as their political agenda. The Nepal
Rastriya Jana Party favoured federalism based on ethnicity, the Sadvanaban
Party was for autonomy in the Tarai region, and Nepal Rastriya Jana Mukti
Morcha favoured administrative federalism (Bhattachan, 2003).
Although federalism was not specifically mentioned, some of the issues
raised by the United People's Front Nepal, the predecessor of the Communist
Party Nepal (Maoist) (CPN [Maoist]), in its 40-point demand, which was
submitted by Dr Baburam Bhattarai to the Sher Bahadur Deuba-led Government
on 4 February 1996 just before declaring the 'people's war', were related
to identity, power sharing and decentralisation. This document also
contained a demand for self-governance to regions with ethnic dominance
(Demand 20), equality for all languages and dialects spoken in Nepal and
the right to education in the mother tongue up to higher levels (Demand 22)
(Sharma & Pokhrel, 2004: 139–42).
One of the points also demanded regional autonomy for backward areas to end
discrimination between the hills and the Tarai (Demand 25). Empowering and
equipping local government was also mentioned (Demand 22). Federalism
became a subject of scholarly debate in conferences and a few articles and
books were also written on the subject (e.g., Baral, 2004; Tamang, 2005;
Lawoti, 2005; & Mulyankan Monthly) before it formally received its place in
the Interim Constitution. However, federalism was not a system that
appealed to most major political forces and, until recently, was considered
a radical and unchartered course (Sharma, 2006). When the then CPN (Maoist)
entered into negotiations with the government for the second time in April
2003, it proposed that the essence of the new constitution should be to
guarantee ethnic and regional autonomy for suppressed caste/ethnic groups,
Madhesis and ignored regions, with the right to self-determination (Sharma
& Pokhrel, 2004: 158).
The Madhes uprising, which took place immediately after the Interim
Constitution was promulgated in 2007, led to the first amendment in April
2007, which guaranteed a federal structure for Nepal. After this amendment,
federalism has become the common agenda of almost all major political
parties in Nepal and the only political party in the former Constituent
Assembly that unequivocally opposed federalism was the Rastriya Jana Morcha
led by Chitra Bahadur KC.
5.4 Federalism in Party Manifestos
Federalism was mentioned in various forms in almost all of the manifestos
of political parties in the first Constituent Assembly elections. Some
parties took the centralized and unitary structure as the root cause of the
problems faced by Nepal and proposed federalism as the solution (CPN
[Maoist], Nepal Communist Party [Marxist-Leninist], Madeshi Jana Adhikar
Forum, and Tarai-Madesh Loktantrik Party). Others accepted federalism as
the popular demand of time, including the Nepali Congress and Nepal
Communist Party (Unified Marxist-Leninist), among others.
Describing the phrase 'federal democratic republic' as the essence of new
constitution, the CPN (Maoist) professed that the main task in the
formation of a new Nepal was to end the centralized unitary state structure
and restructure it as a federal state. The CPN (Maoist) party was more
explicit on federalism in its manifesto than other parties. The Nepali
Congress and Nepal Communist Party (Unified Marxist-Leninist), the second-
and third-largest parties in the first Constituent Assembly, also included
federalism in their manifestos. The State Restructuring and Federalism
Discourse in Nepal manifestos of the Madeshi Jana Adhikar Forum and Tarai-
Madesh Loktantrik Party, the fourth- and fifth-largest parties when the
first Constituent Assembly was elected and the main proponents of
federalism, largely focused on the Tarai/ Madesh in their quest for
federalism, rather than dealing with the issue from a national perspective.
Even the smaller parties with only one or two representatives in the
Constituent Assembly accepted federalism as their political agenda.
Although almost all of the parties in Constituent Assembly agreed that the
federal structure was the right structure, they differed substantially on
the criteria for federalising Nepal. Only one party in the first
Constituent Assembly, Rastriya Jana Morcha, with four members, argued that
federalism, a system that has been 'rejected worldwide', was not an
appropriate system for a small and underdeveloped country like Nepal.
5.5 State Restructuring
Nepal is a unique case in terms of the way state restructuring was put
forward as a political agenda. State restructuring was one of the major
issues that brought together the different political forces with their
fundamentally different political ideologies, but which were all fighting
against the royal regime and the takeover by King Gyanendra on 1 February
2005. The seven major mainstream political parties (Nepali Congress,
Communist Party of Nepal [Unified Marxist-Leninist], Nepali Congress
[Democratic], Janamorcha Nepal, Nepal Majdur Kisan Party, Nepal Sadbhavana
Party [Anandi Devi] and United Left Front, Nepal) were jointly engaged in a
peaceful movement against the royal takeover with the objective to restore
democracy. At the same time, the CPN (Maoist) party was engaged in an armed
insurgency against the state with the objective to establish a communist
regime and transform Nepal into a people's republic. Both of these
political forces felt that they would be unable to defeat the royal regime
without joining hands. The first step towards them joining hands came with
the Common Understanding and Commitment of the Seven Parties on Joint
People's Movement signed on 8 May 2005. In this document, the seven
political parties formed an alliance to prepare a congenial atmosphere for
the CPN (Maoist) to enter a peaceful political process and to launch a
united people's movement against the King. The seven parties agreed that
there had been substantial progress on democratisation, rule of law and
decentralisation, but that there were substantial gaps in terms of
inclusive democracy and in bringing about social and economic
transformation in a way that women, ethnic people, Dalits, Madhesis, people
from backward regions, and the poor would feel the change. Acknowledging
their past mistakes and assuring the people that these mistakes would not
be repeated, the parties expressed their commitment to preserve the gains
of the 1990 People's Movement and to bring democracy and development to
greater heights. As one of the tools for realising these commitments, the
parties agreed to restructure the state to make it more participatory,
representative and inclusive so that Nepal's social, cultural,
geographical, ethnic and linguistic diversity would be properly reflected
in the state (for the full text of the Common Understanding see Khanal
2008).
This was the first political document in which all major mainstream
political parties in Nepal agreed to 'state restructuring.' The Common
Understanding and Commitment led to the 12 Point Understanding between the
Seven Party Alliance and the CPN (Maoist), which was signed in New Delhi on
22 November 2005. In this understanding, the Seven Party Alliance went one
step forward from their demand for the restoration of democracy and the CPN
(Maoist) took several steps back from their position to establish a
people's republic and accepted the necessity of: …implementing the concept
of full democracy through a forward looking restructuring of the state to
resolved the problems related to all sectors including class, caste,
gender, religion, political, economic, social and cultural (12 Point
Understanding, 2005: Preamble) The Point Understanding proved crucial in
making the second people's movement (Jana Andolan II). Jana Andolan II,
which was launched in April 2006, toppled the monarchy and led to
restoration of the House of Representatives through a Royal Proclamation on
24 April 2006 (HMGN, 2006).
The restored House of Representative made a historic proclamation on 18 May
2006 (by suspending, amending and adding substantial provisions to the 1990
Constitution) in which the House pledged to: …fulfill the mandate given by
the Nepalese people through the People's Movement to establish inclusive
governance […] and restructuring the state by framing a constitution
through a Constituent Assembly pursuant to the roadmap of the Seven
Political Parties and the 12 Point Understanding between them and the CPN
(Maoist) (Government of Nepal, 2006).
After the restoration of the House of Representative a Seven Party Alliance
government was formed and the government and CPN (Maoist) signed an 8 Point
Agreement on 16 June 2006, which prepared the way for the Comprehensive
Peace Agreement and in which state restructuring was featured. On 8
November 2006, the leaders of the Seven Party Alliance and the CPN (Maoist)
held a crucial meeting and made significant decisions on the key features
of the Comprehensive Peace Agreement and the Interim Constitution 2007, one
of which would be the structure of the state. Three decisions were made
regarding the structure of the state: a) in order to end class, ethnic,
linguistic, gender, cultural, religious and regional discrimination, the
centralized and unitary structure of state shall be ended and the state
shall be restructured as an inclusive, democratic and progressive State
Restructuring and Federalism Discourse in Nepal; b) a high level commission
shall be formed to offer recommendations on the restructuring the state;
and c) a constituent assembly shall make the final decision regarding the
restructuring the state (Section 10, Meeting of the Top Leaders of the
Seven Political Parties and CPN [Maoist] on 8 November, 2006).
The Seven Party Alliance government and the CPN (Maoist) signed a
Comprehensive Peace Agreement on 21 November 2006 to formally end the
decade-long armed conflict in which they pledged the "…forward looking
restructuring of the state to resolve existing problems based on class,
caste, region and gender [in the country]" (Preamble, Comprehensive Peace
Agreement. In this agreement, both parties agreed to: …carry out an
inclusive, democratic and progressive restructuring of the State by
eliminating the current centralised and unitary form of the State in order
to address problems related to women, Dalit, indigenous ethnic [adivasi
janajati] people, Madhesi, oppressed, neglected and minority communities
and backward regions by ending discrimination based on class, caste,
language, gender, culture, religion and region. (Comprehensive Peace
Agreement, 2006: Section 3.5)
Again, in the Interim Constitution 2007, the political parties expressed
their commitment to the progressive restructuring of the state to resolve
the existing problems of the country relating to class, caste, region and
gender (Preamble, Interim Constitution 2007) and eliminate the centralised
and unitary form of the state and make it inclusive (Article 138, Interim
Constitution 2007, before the first amendment). Other provisions related to
state restructuring were similar to those decided by the top leaders of
Seven Party Alliance and the CPN (Maoist) on 8 November 2006. Looking back
to 8 May 2005, when the Seven Party Alliance signed the 6 Point Common
Understanding and Commitment on Joint People's Movement, they simply agreed
to ". . . restructure the state in such a way to make it more
participatory, representative and inclusive" to reflect "Nepal's social,
cultural, geographical, ethnic and linguistic diversity" without giving
details.
The 12 Point Understanding went a little further by acknowledging the fact
that the purpose of progressive state restructuring is not only to manage
diversity, but also to implement the "concept of full democracy" and to
resolve related problems for "all sectors including class, caste, gender,
region, political, political, economic, social and cultural". The decisions
made by the meeting of the top leaders of the seven parties and the CPN
(Maoist) on 8 November 2006 went further and declared an intention to end
the "centralised and unitary structure" of the state. The Comprehensive
Peace Agreement acknowledged that the root cause of Nepal's problems was
the centralised and unitary structure; this was again reiterated in the
Interim Constitution 2007. However, what is interesting is that, although
these documents expressed the intention to end the centralised and unitary
structure of the state, they did not mention federalism. However, there is
no prize for guessing that federalism was at the back of their minds. Why
federalism was not spelt out in these documents is difficult to ascertain.
However, it is clear that all political forces were reluctant to spell it
out. Even though the demand for federalism originated in the Madhes, one of
the main political force in the Madhes and a member of the Seven Party
Alliance, the Nepal Sadbhavana Party (Anandi Devi), also did not insist on
including the word 'federalism' in the Interim Constitution. As soon as the
Interim Constitution was promulgated, there were widespread protests
against it in the Madhes as it did not mention federalism. The Madhesi Jana
Adhikar Forum, led by Upendra Yadav, burnt a copy of the newly promulgated
constitution and started the Madhes Movement, which engulfed the region for
three weeks, This protest forced the major political parties to amend the
Interim Constitution within three months of its promulgation by enlarging
the "progressive restructuring of the state" to "progressive restructuring
the state including federal system" (Article 138, as amended). Furthermore,
the Fifth Amendment to the Interim Constitution on 12 July 2008 was crucial
in terms of state restructuring which added the following provision:
Accepting the aspirations for the autonomous regions of Madhesi people,
indigenous ethnic groups and the people of backward regions, Nepal shall be
a federal democratic republic. The provinces shall be autonomous with full
rights. The Constituent Assembly shall determine the number, boundaries,
names and structures of the autonomous provinces and the distribution of
powers and resources, while maintaining the sovereignty, unity and
integrity of Nepal. Interim Constitution, 2007 Nepal is quite unique in
that all major political parties agreed, with relative ease, to abandon the
age-old centralised and unitary structure in such a short period (from May
2005 to July 2008), moving from a vague commitment to explicitly agreeing
to "restructuring the state progressively including a federal system with
autonomous regions". However, unfortunately, since then, there is a general
understanding in Nepali discourse that state restructuring is federalism
and federalism is state restructuring, and nothing more.
5.6 Ending the Centralized and Unitary Structure
State restructuring and federalism are not synonymous. State restructuring
is a broad concept that cuts across every dimension of a state, whereas
federalism State Restructuring and Federalism Discourse in Nepal is more
about reorganizing some dimensions of the state. It can be said that
federalism is all about state restructuring, but state restructuring is not
only federalism. In the Nepali context, looking at the provisions related
to state restructuring in the numerous political and constitutional
documents, it becomes clear that state restructuring is much broader than
federalism. The Interim Constitution has a separate part on the Structure
of State and Local Governance (Part 17, Interim Constitution 2007), which
includes federalism. One of the 14 committees of the first Constituent
Assembly was the Committee for Restructuring of the State and Distribution
of State Powers. One of the key provisions of the Interim Constitution
refers to the progressive restructuring of the state, which includes
federal system (Article 138, [1]).
Almost all political and constitutional documents that touch upon state
restructuring have one thing in common: they agree that the state should be
progressively restructured by abandoning the centralised and unitary state
structure to bring an end to discrimination based on class, caste,
language, gender, culture, religion and region by eliminating the
centralised and unitary state (Article 138, Interim Constitution, 2007) and
to address problems related to women, Dalits, adibasi-janajatis, Madhesis,
oppressed and minority communities, and other disadvantaged groups (Article
33[d], Interim Constitution 2007). As discussed earlier, ending the unitary
structure of the state implies a federal structure. However, it should be
remembered that adopting a federal structure does not automatically
guarantee the end of the centralized nature of the structure.
Centralization and decentralization do not have much to do with the system
being either unitary or federal. A federal system can have a centralized
character and a unitary system can have a decentralized character. There
are several federal systems in the world that are far more centralized than
many of the unitary systems. So the need in Nepal is not only to end the
unitary, but also the centralized character of the state, which cannot be
achieved merely by establishing a federal system.
5.6.1 Ending Discrimination
Another major objective of state restructuring is to end
discrimination based on class, caste, language, gender, religion and
region. These bases for discrimination underlie both the unitary
structure of the state as well as its centralised character. One of
the reasons that the unitary state had to be abandoned was because it
was not able to effectively address identity-related issues (connected
to caste/ ethnic origin, language, culture and religion). However,
while it is agreed that a federal structure is more able to address
these issues, it does not address them completely. Federalism, if
devised properly, can effectively address regional discrimination;
however, other forms of discrimination, such as class and gender
discrimination, are not related to a federal system. To achieve these
objectives holistically, state restructuring should cover all
dimensions of the state and include political restructuring, fiscal
restructuring, restructuring the distribution of benefits of natural
resources and, last but not the least, social restructuring.
5.6.2 Political Restructuring
Political restructuring is about dividing the country into workable
units, naming them and distributing political power among the several
tiers of government. It also covers the restructuring of the electoral
system, not only of shared institutions such as the houses of the
federal parliament, the head of the government and the state, but also
the legislature and the executive of the other tiers of government.
Restructuring the electoral system is important to ensure the
identity, representation and access of different groups. In a country
as diverse as Nepal, a simple mixed electoral system (first past the
post and proportional representation) is not sufficient. The electoral
system has to be restructured more innovatively and imaginatively in
such a way that all social groups' identity, representation and access
to the state structure is guaranteed.
5.6.3 Fiscal restructuring
Fiscal restructuring is about the distribution of finances among the
different tiers of government. It basically includes the distribution
of taxing, spending and borrowing powers; this is called fiscal
federalism and is the life blood of any federal system. Along with
political power, the fiscal power of any federal system is what
determines how centralized or decentralized the federal system is. The
political restructuring of the state (formation and naming of
constituent units) does not ensure the political autonomy of the
constituent units in the absence of sufficient fiscal power.
The viability of the federal system depends on the fiscal distribution
between the centre and the other tiers of governments. Provinces must
have the fiscal ability to discharge their constitutional
responsibilities and maintain autonomy. One of the major aims of state
restructuring is to address the disparities created by caste/ethnic,
class and regional discrimination. However, disparities created by
caste/ethnic discrimination cannot be eliminated merely by
acknowledging the identity of different caste/ethnic groups and making
it the sole basis of federalization. Identity may empower the
communities and give them political autonomy, but without resources
and financial capability, identity does not eliminate disparities.
Hence, fiscal restructuring is vital in making a federal system
successful. Nepal's main resources are natural resources. Some of
these resources, such as forests, natural herbs, rivers and fertile
land, are easily exploitable, whereas State Restructuring and
Federalism Discourse in Nepal minerals are more difficult to exploit.
Nepal's natural resources are unequally distributed throughout the
country, with some regions being richer than others in natural
resources. People's lives and livelihoods have a direct relationship
with the natural resources that are closed to them. The state's policy
and role are very important to amplify the benefits people can obtain
from natural resources. The state must ensure that the people who live
close to natural resource receive maximum benefit from them, while at
the same time preserving and protecting these resources. The state
also has to make sure that the benefits of these resources are
distributed to those who are far from such resources. One of the
weaknesses of Nepal's centralized and unitary system is the inability
to do so. Hence, maximizing the benefits of natural resources and
distributing them equitably throughout the country is one of the major
objectives of state restructuring in Nepal.
5.6.4 Social Restructuring
Social restructuring is the most important aspect of state
restructuring. The state restructuring process is only complete when
every dimension of the state restructure reflects the society in all
its diversity. Only when the diversity of the country is properly
reflected in the state structure and people are able to live with
equality and dignity can it be said that the dividends of state
restructuring have reached their primary beneficiaries. One of the
major weaknesses of the centralized and unitary structure is its
exclusionary character. In Nepal's centralized state, the state
structure was monopolized by elites from only a few groups.
Accordingly, one of the major components of state restructuring is
social inclusion. Social inclusion can bring the benefits of state
restructuring deep down to the grassroots level (Article 138 [1],
Interim Constitution 2007).
Finally, achieving full democracy is the end goal of state
restructuring. Article 138 (1) of the Interim Constitution 2007
maintains that the progressive restructuring of the state includes the
creation of a 'democratic federal system'. This means that no
fundamental norms of democracy should be compromised while
restructuring the state.
5.7 Nepali Discourse on State Restructuring
This section examines the weaknesses, gaps and contradictions in the
discourse on federalism since 2007.
5.7.1 Restructuring is not equal to federalism
When Nepal's major political forces agreed to restructure the state
they set ambitious objectives without realizing the complexities
involved. At the time of the 12 Point Understanding, Comprehensive
Peace Agreement and the Interim Constitution 2007, the political
leaders were not clear on how they would restructure the state. There
was never any inter party or intra party discussions on this issue.
Only after the Madhes movement in early 2007 was it clear that the
state structure would be a federal one. Since then, there has be been
a lack of objective and informed academic debate on all dimensions of
the issue. The debate on state restructuring was initiated mainly
among academic and only later picked up by the political parties.
Since federalism received the constitutional guarantee in the first
amendment, the debate on state restructuring in Nepal has been
narrowed down to 'federalism' leaving aside other aspects of
restructuring. There is a common belief that state restructuring is
finished when the country is federalized.
5.7.2 Powers of federal units
One of the objectives of federalism in Nepal is to eliminate
disparities caused by class, caste, region and gender. However, while
federalism can be a mechanism for eliminating some disparities caused
by caste and region, it does not ensure inclusion or democracy. The
limited debate on federalism has not covered these wider issues. In
most countries that are transitioning from a unitary structure to a
federal one, the crux of the debate is on what powers or competencies
each level of government will have. However, this has not been the
case in Nepal. The list of competencies was agreed with ease and the
main contentious issue has been the name, number and boundaries of the
provinces. Looking at the list of competencies, the result will be a
federal system in which the centre is relatively powerful and the
provinces weak. Surprisingly, the proponents of federalism seem to be
unconcerned by this fact.
5.7.3 Beyond identity: Seeing the bigger picture of federalism
Some 'federalists' believe that federalism based on identity alone is
the solution; some go even further and claim that, if not based on
single identity, federalism is meaningless and unacceptable. These
people believe that the root cause of all ills in Nepal is the
domination of a particular caste group (e.g., the Brahmin/ Chhetris)
over others throughout history and the only way to break this hegemony
is federalism based on a single identity. However, this is only
partially true. It is more accurate to say that the state structure
was monopolised by the elites who mainly belonged to these
communities. The common men from these communities were also equally
victimised of the centralised unitary state structure as the people
from the other communities. The proponents of federalism based on a
single identity are not seeing the bigger picture of federalism beyond
the boundaries of their own constituencies and think that there is
nothing positive to take from the previous system On the other hand
there are some 'anti federalists' who do not want to see the
inadequacies of the old centralised unitary structure in managing
Nepal's diversity (which is a significant strength of the country, but
has been made a weakness) and believe that some modest changes to the
1990 Constitution would suffice to move ahead.
5.7.4 Unrealistic Aspirations and Fears
Federalism has sparked contradictory aspirations and fears in Nepal:
Some believe that it will be a panacea for all of Nepal's ills; others
fear that it will open a 'Pandora's Box' with more and more groups
demanding autonomy which may even lead to secession. Both of these
outcomes are unlikely. However, rather than managing these aspirations
and fears, the leaders of the political parties and certain
caste/ethnic groups, and even academics, have fuelled them to serve
their own interests.
5.7.5 Lack of Common Notion of Federalism
In the course of the federalism debate, the opponents of federalism
seem to have been mostly consistent in their arguments. However, the
same consistency is lacking among proponents of federalism. The
opponents of federalism, across the spectrum, share a common notion of
nation building – one that was propounded long ago and had been
supported by the state right from the beginning of Nepal's
unification. In contrast, the proponents of federalism have not yet
developed any common idea of federalism, apart strongly opposing the
state structure. Those advocating for federalism should develop a
common, realistic notion of nation building among themselves to have a
chance at making federalism a reality.
5.7.6 Lack of Debate on Capability of Provinces
The debate on a federal system has also been limited only to its
political dimension. The debate on the the federal system, both inside
the Constituent Assembly (mainly in the Committee for Restructuring
the State and Distribution of State Powers and the Constitutional
Committee and its subcommittees) and outside, was overwhelmed by
issues related to the name, number and boundaries of the provinces.
Ultimately, after four years of work, the Constituent Assembly was
dissolved in May 2012 without producing a new constitution, because
the political parties could not agree on these issues. The parties and
their leaders were obsessed with this issue because they were
interested in breaking down one centre and making multiple centres
with shared political power. If political power sharing becomes the
core interest of the stakeholders while restructuring, it is a problem
as their intention to share political power usually does not extend
much beyond the political elites. However, state restructuring goes
far beyond State Restructuring and Federalism Discourse in Nepal power
sharing. It cuts across of almost all dimensions of the state and, if
carefully devised and effectively implemented, it can extend right
down to the grassroots and transform the lives of the common people.
To take the dividends of state restructuring down to the grassroots
level, the capability of provinces becomes a crucial factor. The
capability of a province is mostly about resources. It covers the
availability of natural resources in the provinces and the capacity of
provinces to generate and spend revenue (fiscal federalism). There has
not been much debate either on fiscal federalism or the capability of
provinces to discharge their constitutional responsibilities and bring
the dividends of state restructuring to the grassroots. Although, the
State Restructuring Committee had set identity and viability as the
bases of federalisation, while in devising federalism the majority
favoured a 14-province model and capability was, to larger extent,
ignored. The list of competencies proposed by the State Restructuring
Committee was approved with minimal discussion and, based on this
list, the proposed federal system would be a centralised one. However,
this fact does not seem to bother the proponents of federalism.
As discussed earlier, federalism is a combination of shared rule and
regional self- rule. However, the discourse in Nepal has been more
focused on self-rule and the shared rule dimension has been completely
ignored. Shared rule is as important in a federal system as regional
self-rule. With the focus of discussion on the number, name and
boundaries of the provinces, the proponents of federalism seem to be
interested only in their own constituencies. Neglecting the importance
of shared rule goes against the very core of federalism. Some other
demands of the proponents of federalism also go against the core
principles of federalism. For example, a substantial part of the
Madhesi political force is in favour of a single Madhes province. If
the major objective of abandoning the unitary structure and adopting a
federal one is to manage diversity and if the provinces are the main
tools for exercising self-rule, a single Madhes province goes against
this as the Madhes is diverse in terms of language and culture. The
Madhesi parties show little interest in the federal structure as a
whole, focusing only on their region in the federal structure.
5.8 Constitution is the beginning of Federalization Process
The Nepali discourse on federalism is obsessed with the structural aspects
of federalism, i.e., with promulgating a federal constitution. However, a
new constitution is not the end, but merely the beginning, of the
federalization process. Putting everything in the constitution without
giving serious consideration to its implementation creates problem.
Experiences in other federal countries suggest that the federalization
process is more important than the federal structure in achieving the
objectives of federalism. A constitution may have heavy structures related
to federalism, but if the process is not smooth, then the objectives cannot
be achieved. On the contrary, the constitution may not have heavy
structures related to federalism, but the process may lead federalism to
another level. The process is more important than the structure because the
process is driven by the country's political, social, cultural and economic
forces. According to William Livingston, the essential nature of federalism
is to be sought, not in the shadings of legal and constitutional
terminology, but in the forces – economic, social, political, cultural –
that have made the outward forms of federalism necessary (Livingston,
1956). In this respect, federalism is the dependent variable, so to speak,
its creation usually necessitated by the underling nature of the society
and its continuation dependent on the ability of the country's diverse
forces to agree on the value of maintaining the federal mode of governance
(Kincaid, 2011).
An important factor that determines the federalization process is not the
constitutional arrangements, but the willingness of the political actors to
move the process forward. Daniel Elazar states that the elements of the
federal process include a sense of partnership among the parties to the
federal compact manifested through negotiated cooperation on issues and
programmes and based on a commitment to open bargaining between all parties
in such a way as to strive for consensus or, failing that, an accommodation
that protects the fundamental integrity of all partners (Elazar, 1987: 67).
Michael Burgess calls it the 'federal spirit', which suggests the existence
of a particular mind-set, a political predisposition to negotiate and
bargain among equals, suggesting above all a willingness to compromise over
fundamental questions concerning the process of state formation or
reformation (Burgess, 2013: 3).
5.9 Some Reasons for the Failure to Restructure the State
5.9.1 Failure to Set the Principles for Restructuring in Advance
It would also have been easier to resolve the issues involved in state
restructuring and federalism if the major political forces had agreed
on the principles for state restructuring before they started the
constitution-making process – as South Africa did. More than half of
the 34 Constitutional Principles adopted by South Africa prior to
drafting the constitution were related to state restructuring
(Constitution of the Rep. of South Africa, Schedule 4).
5.9.2 Reluctance to Take Expert Support
Federalism is a relative new area for Nepali politicians, as well as
for others. As a result, there is not sufficient local knowledge and
expertise on the topic and State Restructuring and Federalism
Discourse in Nepal Nepali politicians have been reluctant to avail
themselves of whatever expertise is available outside the political
arena. There is suspicion of international experts among the dominant
political leaders. Writing a federal constitution through an elected
Constituent Assembly is an extremely complex process. It needs not
only a deep knowledge of the issues, but also the skills to reconcile
groups with opposing claims to come to a negotiated agreement. Nepali
politicians lacked such knowledge and skills and their reluctance to
take expert support was in part responsible for the collapse of the
constitution-making process.
5.9.3 Last Minute Involvement of Top Leaders on Issues
Although the Constituent Assembly through the Committee for
Restructuring the State and Distribution of State Powers started work
as soon as the constitution- making process started, the senior
leaders of the major political parties did not engage in discussions
on issues related to federalism until the end of the tenure of the
Constituent Assembly. The Constituent Assembly committees were not led
by any senior leaders from the major political parties and most of the
members were mid-level leaders who lacked influence in their
respective parties. Only after the High Level State Restructuring
Commission submitted its report to the government almost at the end of
the fourth year of the Constituent Assembly's term did the top
political leaders started engaging on these issues. However, by then
the issues were too big and the time too short and they could not come
to agreement before the term of the Constituent Assembly expired.
A federal constitution for Nepal does not have any alternatives. It
was accepted politically and constitutionally, albeit reluctantly, by
the major political forces as a tool for correcting the ills of old
centralised unitary system. Although it would have been better if
there was wider discussion before the decision was made to accept
federalism, that phase is now over. The issues involved in state
restructuring and federalism would also have been easier to resolve if
the major political forces had agreed on the principles for state
restructuring before they started the constitution-making process.
However, the political parties still have an opportunity to set these
principles before they set to proceed the task of restructuring Nepal
into a federal structure Abandoning an established state structure and
adopting a new one is a complex task and comes with serious risks. The
need to achieve important objectives, sometime even ones that are
opposed to each other, makes it even more complex. The geopolitical
situation of the country adds to the complexity, taking it to a new
level. However, these risks can be minimized if state restructuring is
carefully designed.
Retreating from federalism at this late stage may cost the country
more than adopting it – and the risks involved may be more serious. As
addressing the issues related to the identity and prosperity of all
people are the main objectives of state restructuring, identity and
capability must both be considered as the main bases of
federalization. It is certain that a federal structure that does not
touch upon the core issues related to identity will not be acceptable
and one that does not deliver development will not work. Striking a
balance between these two aims is a challenge, but is not impossible
to achieve. It should be acknowledged that in the past the state was
discriminatory, which means that some groups did not receive a fair
deal from the state. Those who have been monopolizing power want to
hold it and those who have not held it so far want to get it. However,
the real solution is not to structure the state in such a way that
those who were previously outside the power structure replace the
entire group of people who have monopolised it so far. State
restructuring should not intend to reward those communities that have
been ignored and punish those that have benefited. Expanding the
recognition, representation, access and opportunities of all in the
state structure does not automatically mean limiting the rights of
some. Promoting all communities, cultures and languages, without
denouncing any is the right approach. The state should be designed in
a way that benefits all. The debate on federalism has not moved from
the positioning phase to the negotiation phase. There has not been any
systematic effort from either the opponents or proponents of
federalism to 'woo' the other. Designing a federal structure and
abandoning the unitary one is an effort to reconcile contradictions.
Both the supporters of federalism and its opponents, if they play
their roles genuinely, must be seen as playing an indispensable role
in devising federalism. The concerns of those opposed to federalism
can strengthen the ultimate form of federalism. The best approach
would be to make a minimal workable federal structure to begin with,
set short and medium-term goals to be achieve in 5, 10 and 15-year
phases, and then slowly accelerate the federalization process towards
achieving these goals. This might be considered a long time in the
view of a person's lifetime, but in the life of a country 10–15 years
is not very long. The dividends of state restructuring take time to be
realized and state restructuring should be given sufficient time to
deliver. The process should not be overburdened by unreasonable
expectations. Equally important is investing in developing the
'federal spirit' through political party reform and debate among
political leaders, members of civil society and the members of the
bureaucracy, who are the important stakeholders in the federalization
process in Nepal. Had the parties taken this approach as soon as the
constitution making process had started, federal Nepal would be a few
years old today.
There is a kind of failure in reconstructing or demarcation of federal
states that is why there is a huge dissatisfaction in Terai/Madhesh.
The next part of this chapter deals with the Terai/Madhesh Movement
and the cause behind their dissatisfaction.
6. CHALLENGES & OPPORTUNITIES OF FEDERALISM
6.1 Challenges in Federalism
Federal restructuring of the state has emerged as a major demand of ethnic
and regional activists in Nepal. The debate about it is extremely
politicized. Federalism is not simply the decentralization of political
power. It has become a powerful symbol for a wider agenda of inclusion,
which encompasses other institutional reforms to guarantee ethnic
proportional representation and a redefinition of Nepali nationalism to
recognize the country's ethnic and cultural diversity. Activists demand the
introduction of reservations to guarantee proportional representation of
marginalized groups in government and administration. They want provinces
to be named after the most numerous ethnic and regional groups and
boundaries drawn to make them dominant minorities. Some claim to be
indigenous to these regions and demand preferential rights to natural
resources and agradhikar –priority entitlement to political leadership
positions in the future provinces.
Ethnic and regional demands were important parts of the Maoist agenda
during the civil war; in eastern Nepal, much of their support depended on
it. State restructuring became a central component of the 2006 peace deal.
After violent protests in the Tarai in 2007, federalism was included in the
interim constitution as a binding principle for the Constituent Assembly.
Out of the three major parties, the Maoists were the only one to give full-
throated support to federalism and the establishment of ethnic provinces.
Identity politics may sit uneasily with their class-based ideological
framework but federalism is of great importance for them. Now that the
former Hindu kingdom is a secular republic, it is the most important point
left on their short-term transformative agenda. Much grassroots support,
the loyalty of ethnic and regionalist activists within the party and their
wider credibility as a force for change depend on them following through.
The risks are hard to calculate. Ethnic and regionalist groups, already
suspicious of the major parties' commitment to federalism, threaten
protests and ultimately violent resistance should it not come.
Tarai/Madhesh movement is the result of similar suspicious. Popular support
is most widespread among Madhesis in the central and eastern Tarai and
members of ethnic groups in the eastern hills. The organizational landscape
of ethnic activists in the Terai may be fragmented, but underneath lie
strong personal and political networks. With an issue to rally around they
are easily mobilized for protest movements against current structure of
federalism.
Popular opposition to ethnic federalism in particular is substantial, by
virtue of its association with identity politics. Many Brahmins and
Chhetris, the dominant caste groups, fear they will lose out from the
introduction of ethnic quotas and federal restructuring. But organized
resistance is limited and fragmented. Open opposition only comes from a
fringe of the political left which fears Nepal's unity. Several Chhetri
organizations are not against federalism itself but want to defend their
group's interests in the restructuring process. Pro-monarchy groups and the
Hindu right are less concerned with federalism than with the republic and
secularism.
The new constitution has offered important symbolic recognition of Nepal's
cultural diversity. In combination with the language rights and
proportional representation in administration and government envisaged,
this would go a long way towards meeting popular aspirations among ethnic
and regional groups. However, the federal demarcation in some sort of
extent has unable to address all the dissatisfactions. It is the challenge
of current scenario.
To implement the federalism in Nepal is not easy but it is challenging.
Because of Nepal's own political, economical and social peculiarities,
Nepal needs to think carefully to implement the system. The political
parties need to come to common point to make the implementation process
successful. Some of the challenges that Nepal may have to face while
introducing the federalism are as follows:-
6.1.1 The first and foremost challenge is to get the trust and
tolerance of the citizens and groups which will be residing inside
certain federal state. The willingness of the groups of people to
remain in the nation or accepting federal state which is autonomous to
many aspects is very necessary.
6.1.2 There will be always a question of retaining the sovereignty
and protection of national interest. Nepal which is located in between
two emerging powers and a country with great diversity will face many
challenges to preserve its national interests and sovereignty. The
radical demand of ethnic based federalism and demand of Medhesi people
will question the national security of the country.
6.1.3 Question of marking the boundaries between the federal states
is another important issue. Within two hundred kilometer span of land,
plain ground to high mountain like Sagarmatha can be observed. It is
very difficult to achieve symmetric demarcation of federal states in
terms of geography.
6.1.4 Sharing of resources could be the problem. Clear-cut policy on
this issue puts a federal state and central government to no disputable
situation. At a time when Nepal has been facing several economic
challenges, nobody has any idea how federal states will deal with those
issues. Given the limited resources and competitive market, there lies
a major economic challenge of distribution of resources as well.
6.1.5 The demands of ethnic groups are another troubling issue. It
is also seen that political democratization process might be
overshadowed due to the issues of ethnicities, language and culture.
6.1.6 Though some of the demands of the discriminated and the
minority groups of people have already been addressed in the interim
constitution of Nepal, it is still a debate as to how much they could
be accommodated if there is a federal system of government.
6.1.7 This system might incur a massive expenditure in maintaining
parliamentarian and administrative section. In those countries where
there is insufficient resource and means federal form of governance
might suffer from the lack of sufficient budget. The federal structure
will also cause additional financial burden towards maintaining
administrative expenditure
6.1.8 In case of different governments in the centre and province,
there might not be proper coordination and cooperation between the two.
Such anomalies contain the seed of conflict.
6.2 Advantages of the Federal System in Nepal
No political system is perfect in itself. Every political system has its
good and bad aspects. Some good aspects of the federal system are:
i. Maintains close relation between the state and its people.
ii. Conflict may settle at local level.
iii. Maximum use of means and resources.
iv. Does not hamper the country even if the central government is
dissolved.
v. No need to depend upon the centre for everything.
vi. Increment of public participation in government activities.
vii. Accelerate development activities.
viii. Local and ethnic art, culture and heritages can be well protected.
ix. Helps to maintain balanced population distribution
x. It ensures that government remains close to the people because the
state government argues that they are more in tune with the daily
needs and aspirations of people especially relevant to small and
isolated places.
xi. It encourages development of the nation in a decentralized and
regional manner and allows for unique and innovative methods for
attacking social, economic and political problems.
xii. It provides a barrier to the dominance of the majority.
6.3 Disadvantages of the Federal System in Nepal
i. Unequal distribution of means and resources between the states may
cause unequal development and misunderstanding among the states.
ii. There may be conflict between the states regarding the use
of natural resources of border areas.
iii. Federal system of government is more expensive so that there may be
lack of sufficient budget for its successful operation.
iv. There may be misunderstanding between federal government and
provincial government regarding the sharing of power and
authorities.
v. The provinces may demand for a different and a separate state which
can threaten the national integrity and indivisibility of the
nation
vi. The cultural and ethnic diversity can cause a challenge regarding
the state language and maintaining equal recognition to all
cultural groups
vii. It can lead to duplication of government and inefficient, over-
lapping or contradictory policies in different parts of the
country.
viii. It can lead to inequality between the states and lead to unhealthy
competition and rivalry between them.
ix. It can lead to over-government that will result to corruption.
7. CONCLUSION AND RECOMMENDATIONS
7.1 Conclusion
On 20 September 2015, Nepal promulgated its seventh constitution – the
first one made by the direct representatives of the people. The
constitution federated the country in seven states and Nepal moved from a
country with unitary system of government to being the Federal Democratic
Republic. However, with constitution have also come new challenges for
Nepal. Right after the constitution was promulgated, dissenting voices have
been felt across the country. Some people agree with the new provisions and
also claim that it is one of the best constitutions in the world but other
people criticized that the federalism that Nepal has chosen through this
new constitution is not competitive, on four grounds:
a) States have not been given enough autonomy
b) Private sector has been distrusted
c) The constitution promotes reservation, which restricts competition
and innovation, despite its good-intentions
d) The constitution makes Nepal effectively a socialist country. For
this very reason that it adheres to one specific political ideology,
it has similar characteristics like that of an election manifesto of a
political party rather than the supreme law on an entire country
Nepal had been practicing a unitary form of government since a long period
of time. This system hadn't been able to achieve the aimed objectives and
rapid development in the country. It has been unable to address the will
and aspiration of the Nepalese people. Nepal is a hub culture society.
People of various languages, ethnic groups, cultures, and traditions are
the resident of Nepal. Their practices, traditions, cultures and languages
are in the verge of extinction. So, federalism has been felt the only
solution for their preservation and protections.
Nepal's federal system of government is a type of government where the
government is divided into states with autonomous power. It has been
divided into three government 1. federal/central government 2. State
government and 3. Local development. The division of power between the
federal and the state government is determined according to the clauses
mentioned in the constitution.
The central/federal government is responsible for the security of the
border, foreign affairs, army, nation's economy etc. on the other side, the
state government is responsible for the state's internal security, daily
administration, to preserve local arts and culture, to operate state level
projects and so on. This will be the best way to develop the nation. If it
is divided in the concept of skilled manpower, natural resources and means.
But it is very crucial that, the stakeholders of the country need to move
forward very carefully to meet the objectives of the federalism. They must
be aware with the fact that failure of federalism will bring anarchy,
conflict and even inspire some unwanted group to go for secession.
The reality of Nepal, however, is that this is the country of minorities
and they need to live together harmoniously if they want to survive as
prosperous, stable and independent nation. The new federal system of Nepal
must create social harmony and mutual understanding among the people with
great diversity. Taking Nepal's specific geographic and socio-economic
context into consideration, the regions need to accept each other's
existence and hence cooperation between the regions and communities is
imperative. It can also be called cooperative federalism.
7.2 Recommendations
The following recommendations can be given when implementing federalism in
Nepal and changing it to a federal country:-
i. There must be high degree of understanding and compromise among the
political parties, concerned groups and intellectual in executing the
basis of federalism. The rigid stance on their demand will not take
Nepal to federalism.
ii. There must be constitutional limits on the domain of the federal
government to protect the citizenry from the discretionary powers of an
all-powerful federal government.
iii. In order to capacitate the states (and the subsequent local
governments) to handle the local issues effectively, guarantee
accountability and withhold the demands of the citizenry, the
institutions of the unitary governance mechanism should be devolved.
iv. There should be provisions so as to allow competition between the
states to reap the benefits of competition just as well as consumers
benefit from competition between the producers in a free market.
v. The Federation should have power to issue instructions in regards to
coordination between Units. The Head of State shall have power to
caution, suspend or dissolve a provincial government and legislature
upon recommendation of Federal Government in case a Province acts in a
manner that would jeopardize the sovereignty, integrity and peace and
order of the country.
vi. Provinces should be named after major rivers or other geographical
features in the proposed provinces so that everybody living there has
sense of ownership irrespective of caste and ethnicity, and also, no
priority right should be recognized as that is basically unequal and
undemocratic, fourthly, economic viability should not be ignored in
state restructuring.
vii. Nepal is basically a multi-lingual state. Provinces should be
encouraging both local and national language legally.
viii. Madhesh movement is basically guided by ignorance since they have
been involving in negative demands leaving genuine one. So, people of
the Terai should be made aware about the gains of new constitution
since it is inclusive, progressive and secular for all ethnic, racial
and genders from different communities and geographical locations. The
government needs to start educational and awareness program to educate
people on federal system and their rights and duties they can perform.
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APPENDIX – A
STATES DEMARCATION
"State No. 1 "State No. 2 "State No. 3 "State No. 4 "
"1. Taplejung "1. Saptari "1. Dolakha "1. Gorkha "
"2. Panchthar "2. Siraha "2. Ramechhap "2. Lamjung "
"3. Ilam "3. Dhanusa "3. Sindhuli "3. Tanahun "
"4. Sankhuwasabha "4. Mahottari "4. Kavrepalanchok "4. Kaski "
"5. Tehrathum "5. Sarlahi "5. Sindhupalchok "5. Manang "
"6. Dhankuta "6. Rautahat "6. Rasuwa "6. Mustang "
"7. Bhojpur "7. Bara "7.Nuwakot "7. Parbat "
"8. Khotang "8. Parsa "8. Dhading "8. Syangja "
"9. Solukhumbu " "9. Chitwan "9. Myagdi "
"10. Okhaldhunga " "10. Makawanpur "10. Baglung "
"11. Udayapur " "11. Bhaktapur "11.Nawalparasi (East"
" " " "of Bardaghat Susta) "
"12. Jhapa " "12. Lalitpur " "
"13. Morang " "13. Kathmandu " "
"14. Sunsari " " " "
"State No. 5 "State No. 6 "State No. 7 "
"1. Nawalparasi "1.Rukum "1.Bajura "
"(West of Bardaghat "(Western Part) " "
"Susta) " " "
"2. Rupandehi "2. Salyan "2.Bajhang "
"3. Kapilbastu "3. Dolpa "3. Doti "
"4. Palpa "4. Jumla "4. Achham "
"5. Arghakhanchi "5. Mugu "5. Darchula "
"6. Gulmi "6. Humla "6. Baitadi "
"7.Rukun (Eastern "7. Kalikot "7. Dadeldhura "
"Part) " " "
"8. Rolpa "8. Jajarkot "8. Kanchanpur "
"9. Pyuthan "9. Dailekh "9. Kailali "
"10. Daang "10. Surkhet " "
"11. Banke " " "
"12. Bardiya " " "
APPENDIX – B
LIST OF FEDERAL POWER
1. Relating to defence and military
(a) Protection of national unity and territorial integrity
(b) Relating to national security
2. War and defence
3. Arms and ammunitions factories and production thereof
4. Central Police, Armed Police Force, national intelligence and
investigation, peace, security
5. Central planning, central bank, finance policies, monetary and
banking, monetary policies, foreign grants, aid and loans
6. Foreign and diplomatic affairs, international relations and United
Nations related matters
7. International treaties or agreements, extradition, mutual legal
assistance and international borders, international boundary rivers
8. Telecommunications, allocation of radio frequency, radio, television
and postal matters
9. Customs, excise-duty, value-added tax, corporate income tax,
individual income tax, remuneration tax, passport fee, visa fee, tourism
fee, service charge and fee, penalty
10. Federal civil service, judicial service and other government services
11. Policies relating to conservation and multiple uses of water resources
12. Inland and inter-State electricity transmission lines
13. Central statistics (national and international standards and
quality)
14. Central level large electricity, irrigation and other projects
15. Central universities, central level academies, universities standards
and regulation, central libraries
16. Health policies, health services, health standards, quality and
monitoring, national or specialised service providing hospitals,
traditional treatment services and communicable disease control
17. Federal Parliament, Federal Executive, Local Level related affairs,
special structure
18. International trade, exchange, port, quarantine
19. Civil aviation, international airports
20. National transportation policies, management of railways and
national highways
21. Laws relating to the Supreme Court, High Courts, District Courts and
administration of justice
22. Citizenship, passport, visa, immigration
23. Atomic energy, air space and astronomy
24. Intellectual property (including patents, designs, trademarks and
copyrights)
25. Measurement
26. Mines excavation
27. National and international environment management, national parks,
wildlife reserves and wetlands, national forest policies, carbon
services
28. Insurance policies, securities, cooperatives regulation
29. Land use policies, human settlement development policies, tourism
policies, environment adaptation
30. Criminal and civil laws making
31. Security printing
32. Social security and poverty alleviation
33. Constitutional Bodies, commissions of national importance
34. Sites of archaeological importance and ancient monuments
35. Any matter not enumerated in the Lists of Federal Powers, State Powers
and Local Level Powers or in the Concurrent List and any matter
notspecified in this Constitution and in the Federal laws
APPENDIX – C
LIST OF STATE POWER
1. State police administration and peace and order
2. Operation of banks and financial institutions in accordance with the
policies of Nepal Rastra Bank, cooperative institutions, foreign grants
and assistance with the consent of the Centre
3. Operation of Radio, F.M., television
4. House and land registration fee, motor vehicle tax, entertainment tax,
advertisement tax, tourism, agro-income tax, service charge, fee, penalty
5. State civil service and other government services
6. State statistics
7. State level electricity, irrigation and water supply services,
navigation
8. State universities, higher education, libraries, museums
9. Health services
10. Matters relating to the State Assembly, State Council of Ministers
11. Intra-State trade
12. State highways
13. State bureau of investigation
14. Physical management and other necessary matters of State governmental
offices
15. State Public Service Commission
16. Management of lands, land records
17. Exploration and management of mines
18. Protection and use of languages, scripts, cultures, fine arts and
religions
19. Use of forests and waters and management of environment within the
State
20. Agriculture and livestock development, factories, industrialization,
trade, business, transportation
21. Management of trusts (Guthi)
APPENDIX – D
LIST OF CONCURRENT POWERS OF FEDERATION AND STATE
1. Civil and criminal procedure, evidence and oaths (legal recognition,
public acts and records, and judicial proceedings)
2. Supply, distribution, price control, quality and monitoring of essential
goods and services
3. Preventive detention for reasons connected with the security of the
country, prison and detention management, and maintenance of peace and
order
4. Transfer of accused persons, detainees and prisoners from one State to
another State
5. Laws relating to family affairs (marriage, transfer of property,
divorce, persons on the verge of extinction, orphan, adoption, succession
and joint family)
6. Acquisition, requisitioning of property and creation of right in
property
7. Contracts, cooperatives, partnership and agency related matters
8. Matters relating to bankruptcy and insolvency
9. Drugs and pesticides
10. Planning, family planning and population management
11. Social security and employment, trade unions, settlement of industrial
disputes, and labour rights and disputes related matters
12. Legal profession, auditing, engineering, medicines, Ayurvedic
medicines, veterinary, Amchi and other professions
13. State boundary river, waterways, environment protection, biological
diversity
14. Matters related to means of communication
15. Industries and mines and physical infrastructures
16. Casino, lottery
17. Early preparedness for, rescue, relief and rehabilitation from, natural
& arti. calamities
18. Tourism, water supply and sanitation
19. Motion pictures, cinema halls and sports
20. Insurance business operation and management
21. Poverty alleviation and industrialization
22. Scientific research, science and technology and human resources
development
23. Utilization of forests, mountains, forest conservation areas and waters
stretching in inter-State form
24. Land policies and laws relating thereto
25. Employment and unemployment aid
APPENDIX – E
LIST OF LOCAL LEVEL POWER
1. Town police
2. Cooperative institutions
3. Operation of F.M.
4. Local taxes (wealth tax, house rent tax, land and building registration
fee, motor vehicle tax), service charge, fee, tourism fee, advertisement
tax, business tax, land tax (land revenue), penalty, entertainment tax,
land revenue collection
5. Management of the Local services
6. Collection of local statistics and records
7. Local level development plans and projects
8. Basic and secondary education
9. Basic health and sanitation
10. Local market management, environment protection and biodiversity
11. Local roads, rural roads, agro-roads, irrigation
12. Management of Village Assembly, Municipal Assembly, District Assembly,
local courts, mediation and arbitration
13. Local records management
14. Distribution of house and land ownership certificates
15. Agriculture and animal husbandry, agro-products management, animal
health, cooperatives
16. Management of senior citizens, persons with disabilities and the
incapacitated
17. Collection of statistics of the unemployed
18. Management, operation and control of agricultural extension
19. Water supply, small hydropower projects, alternative energy
20. Disaster management
21. Protection of watersheds, wildlife, mines and minerals
22. Protection and development of languages, cultures and fine arts
APPENDIX – F
LIST OF CONCURRENT POWERS OF FEDERATION, STATE AND LOCAL LEVEL
1. Cooperatives
2. Education, health and newspapers
3. Health
4. Agriculture
5. Services such as electricity, water supply, irrigation
6. Service fee, charge, penalty and royalty from natural resources, tourism
fee
7. Forests, wildlife, birds, water uses, environment, ecology and bio-
diversity
8. Mines and minerals
9. Disaster management
10. Social security and poverty alleviation
11. Personal events, births, deaths, marriages and statistics
12. Archaeology, ancient monuments and museums
13. Landless squatters management
14. Royalty from natural resources
15. Motor vehicle permits
