The Interrelationship between the implementation of the constitution, the Federal Province and the local level:

The interrelationship between the implementation of the constitution, at the Federal, Provincial and local level:

Khimlal Devkota

Constituent Assembly Member and Senior Advocate

1. Background:

The Constitution of the Federal Democratic Republic of Nepal has established a three-tier structure. There is no dispute that the federal structure was adopted based on the conclusion that the expectations of the Nepali people were not met by the unitary governance system. There is a situation where the constitution has divided the rights between the three-level structures of the Union Province and the local level. The constitution and legal arrangements have also been made regarding coordination and inter-relationships between those levels. Despite these arrangements, questions have been raised about adequate coordination and interconnection. This discussion paper has been prepared with the positive thinking that solving those questions with the knowledge structure and their efficiency is possible. In this paper, the constitutional system, the legal system based on the constitution, and the various mechanisms created by it and their effective implementation have been discussed.

 

2. Provisions of Part 5 of the Constitution:

Part 5 and Part 20 of the Constitution are related to understanding the constitutional arrangements regarding the interrelationship of the three levels. In Part 5 of the Constitution, it is clarified about the structure of the state and the sources of state power. According to Article 56 of the Constitution, the Federal Democratic Republic of Nepal will have a three-tiered state structure, the Union Province and the Local Government. Article 306 of the Constitution has made it clear that those levels will exercise state power under this constitution and laws.

Article 57 of the Constitution provides for the distribution of state power, according to which Schedule 5 provides for the sole rights of the Union and 6 provinces, while Schedule 7 provides for the common rights of the Union and the provinces. Similarly, Schedule 8 provides for the single right of the local level, while in Schedule 9, it is divided into common rights of the same level. The Council of Ministers has also tried to clarify the list of single and common rights. Based on the experience of the past years, there is also a review of work detailing to make it more clear.

 

 

3. Provisions of Part 20 of the Constitution:

Part 20 of the Constitution has made a clear provision regarding the relationship between the Federal, provincial, and local levels. Various provisions have been made under this part from Articles 231 to 237. Among them, Article 231 states that the provinces can make a request to the Government of Nepal when they have to formulate laws of the same nature, while Article 232 states that the relationship between the Union Provinces and the local level will be based on the principles of cooperation, coexistence, and coordination. Similarly, in addition to the provision that the federal government can give necessary instructions on matters of sovereignty, geographical integrity, nationality, or independence and must follow those instructions, provisions have also been made regarding the right to warn, suspend, or dissolve the provincial government on these grounds. Similarly, it has been arranged that the local level can also be given instructions.

In Article 233, the relationship between the provinces is regulated, which it is mentions about cooperation and coordination, consultation and exchange of information by one province in the implementation of legal, judicial or administrative decisions or orders of another province. Apart from this, it has also been arranged that equal protection, treatment and facilities should be provided to all.

Article 234 provides for inter-provincial councils. To resolve political disputes, a structure has been envisioned with the Prime Minister as the chairmanship of the Union Home and Finance Ministers as well as the Chief Ministers of the provinces.

Article 235 provides that the federal parliament will enact necessary laws to maintain coordination between the Union Provinces and Local Levels, and is being implemented after the passage of the Union Provinces and Local Levels - Interconnection and Coordination Act 2077. Similarly, in 234(2), the responsibility of coordinating and resolving political disputes between the provincial and local levels has been assigned to the Provincial Assembly.

In Article 236, while regulating inter-provincial trade, it has been provided that no tax or levy or discrimination can be imposed to obstruct any obstacle in inter-provincial trade, while in Article 237, it has also been clarified so that the jurisdiction of the constitutional bench constituted under Article 137 will not be affected.

4. Federal, Provincial and Local Level - Interconnection and Coordination) Act 2077

The Federal, Provincial and Local Level - Interconnection and Coordination) Act 2077 has made the following arrangements.

Paragraph 2 of the Act mentions the basis of inter-relationship, 3 points to be considered in the formulation of laws and policies, paragraph 5 refers to the implementation of single rights and 6 refers to the implementation of common rights at the federal, state and local levels. Arrangements have been made for coordination and coordination, including the things necessary for the implementation of projects that require coordination and consultation.

As a high-level mechanism for coordination, the arrangement of the National Coordinating Council, chaired by the Prime Minister and the representatives of the provinces and local levels, has been made in the passage, while special committees and thematic committees under the council have also been arranged to facilitate thematic coordination. To coordinate at the state level, the Act also provides for the Predash Coordinating Council along with its duties and powers. Dispute resolution in paragraph 5It has been mentioned in detail.

5. Intergovernmental Finance Management Act 2074

In this way, part 5, part 20 of the constitution and the provisions of laws related to coordination also provide for the necessary subjects, mechanisms and methods and means to maintain coordination and interrelation between the Federal, Provincials and local levels. In addition to this, in order to coordinate economic matters, in the section 33 of the Inter-Governmental Finance Management Act 2074, an Inter-Governmental Finance Council has been arranged under the chairmanship of the Minister of Finance of the Government of Nepal, consisting of the Finance Ministers of the provinces and representatives from the local level. The meeting of the council is held at least once in the month of Chaitra every year and at other times at the place and date specified by the coordinator, it has arranged the coordination of financial matters.

6. Coordination and inter-relationship mechanisms

Regarding coordination and inter-relationship, the necessary mechanisms in the constitution and laws are as follows,

Inter-Provincial Council (to resolve political disputes), Constitutional Bench (to resolve legal and constitutional disputes), Provincial Assembly (to coordinate and resolve political disputes between the local level, state and local levels), National Coordination Council (between the Union Provinces and local levels) To maintain coordination and coordination), the Inter-Governmental Finance Council (to maintain economic coordination between the federal states and local levels), thematic committees and special committees (committees formed and formed for special tasks and subjects necessary to maintain coordination and coordination) is Under that arrangement, almost all the committees are in existence, but their effective implementation is sometimes not established until the meeting.

7. Conclusion and suggestion:

The effective implementation of the aforementioned constitutional arrangements, legal arrangements, and the mechanisms established under them is the need of the day. By making the existing arrangements effective and the established mechanisms effective, to make the inter-relationship and coordination between the Union Provinces and the local levels effective, if the tradition of working honestly in the bodies and their officers established under the constitution and laws can be started, then progress can be made in the implementation of the constitution.