Saturday, September 28, 2024

Political Leadership and Post-Constitutional Debate on State Restructuring in Nepal

  


Political Leadership and Post-Constitutional Debate on State Restructuring in Nepal

-Khimlal Devkota[1]

 

Abstract

Nepali politics and leadership were ruled by a centralized, unitary, monarchial, and exclusionary Hindu Kingdom before 2006. As a result of a decade-long “People war” as well as the Maoist movement, the country has been declared as republican, federal, secular, and inclusive. The root causes of the conflicts are class, caste, gender, and regional disparities. The violent conflict was political and it was purely a byproduct of the discriminatory state structure. It was considered that the federalization of the state is a prime solution. The peace process was initiated with a firm commitment of forward-looking state restructuring. The paper tries to identify the federalization debate among the political parties during the peace process. This paper tries to capture the debates from both federalists and anti-federalists. The paper also tries to compare the expectations and reality with lapses and gaps. This study is based on available information, literature, and political statements, election manifestos, and other related documents. Qualitative data has been used. A descriptive and analytical method has been applied to assess the overall process of federal design. Data/information has been obtained from the historical documents of political parties, government repositories and views and ideas expressed by different stakeholders on the federalization of the state. Finally, some recommendations to the concerned authority for meeting the expectations within the constitutional framework have been made. The draft constitution prepared by 1st Constituent Assembly had adopted the spirit of identity. Identity was the basis of the federal design and a bottom-line of the federalist section of society. However, in the constitution, the issue of identity-based federalism has been badly diluted. There is a huge gap between the pre and post-consultation stages. The challenge now is to mitigate the principles of federalism and simultaneously implement the Constitution. The Constitution is a compromised document and therefore my recommendation is again compromised for implementation of Constitution and federalism

Keywords: leadership, federalism, state restructuring, identity politics, post-constitutional debate, conflict and peace.

 

 

1.     INTRODUCTION:

 

Leadership always leads the organization, society, and states designed by them. For leadership state is an authority of power. Based on power, whether it is centralized or federalized the state is called Unitary or Federal. Generally, a Unitary state concentrates power in the center and the federal believes in the devolution of power to the federal units. Federal systems do this by distributing power among general and constituent governments in a manner designed to protect the existence and authority of all the governments(Devkota,2014). Countries around the world can be divided in to two in orders to power concentration or devolution of its nature is federal and unitary. Federalism and its kindred terms—e.g., “federal” —are used, most broadly, to describe the mode of political organization that unites separate polities within an overarching political system so as to allow each to maintain its fundamental political integrity. Federal systems do this by distributing power among general and constituent governments in a manner designed to protect the existence and authority of all the governments.[2] According to Federalism Encyclopedia federal states are constituted by two different concepts. The federal idea was conceived as a means to unite a people already linked by bonds of nationality through the distribution of political power among the nation’s constituent units or by conceived as a means to unify diverse peoples for important but limited purposes, without disrupting their primary ties to the individual policies that constitute the federal system. Nepal was declared as a federal democratic republican country. Unitary and Centralized states have changed into federal states is a huge task in Nepali political history. Unitary to federal, Monarchy to republican, Hindu kingdom to secularism, and exclusionary to inclusion(Constitution of Nepal 2015) is major achievements of Nepali politics. A country itself being unitary and centralized or federalist it doesn’t mean any different for the general public and intellectual communities. Countries with unitary and centralized natures or federal they are doing their best in their context. There are roughly 25 federal countries in the world today, which together represent 40 percent of the world's population [3] and rest of others are unitary and centralized. Unitary and federal is a character of the state structure. Any characteristics can be accepting any country there is no comments and recommendations. However, assessments of the very nature of the state and its changing pattern and debate in order to shape the structure of the country will be very interesting for academicians, practitioners and researchers. Only the analysis of the process of shaping state structure of Nepal will be the main objective of the paper. Having limits within the objective of this paper I have done an analysis pre-constitution debate during-constitution debate and post-constitution debate of federalism. Most of the references have been taken from the archival materials as well as my own experiences. Some of the facts have been collected from conversations.  

State restructuring means the total transformation of the state rather than territorial restructuring. (Devkota, Why Forward-looking State Restructuring, 2006). State restructuring covers scientific land reform based on worldwide experiences of land issues in the conflict. (Devkota, International experiences on land and land reform, 2014). State restructuring is cannot be replicated from anywhere it is because every solution should be country-specific based on a verities of conditions (Dahal, 1915). State structure itself doesn’t mean anything if it has not taken its services. If state services come up with questions then a response has to be made with their findings. Most of the problems of violence, conflicts and others happen because of the structure of the society. Nepali context is also not different than that perception. The debate of drafting new constitution has started by based on state restructuring. The cause of violent conflict was a state structure and considered that to resolve violence the existing structure has to be changed. Therefore, restructuring of the state was in hot debate in relation to federalism. The debate of state restructuring was related to the conflict. The root cause of the conflict was the state structure itself. Ending the conflict, it required restructuring the state. The state restructuring is responsible for creating conflict was almost in consensus. During the constitution-making process state restructuring task also has to be completed.

The basic understanding of the state restructuring was unitary structure has to be change into federal structure. Therefore, the federalism debate is part and partial of the state restructuring debate. Now the paper mainly highlights on constitution-making, federalism and state restructuring. The structure of the paper is divided into seven sections including the introduction. The first section introduces federal debate in Nepal in general and specifically expectations and reality. The second section is on briefing about Nepali context which is unique journey from unitary to federalism. The third section of the research is real debate between federalist and anti-federalists with their logic. The fourth section has tried to recap the expectations of federalism. The fifth section deals with reality in practice. The sixth section has explained the gap between expectation and reality, mainly pre-federalism and federal structure. The final section has concluded the paper with recommendations and limitations of the paper.

2.     NEPALI CONTEXT:

 

For long period Nepal has an identity of the unitary and centralized state. Under the unitary and centralized state country has moved ahead until the constitution of 1990s. Nepal’s Maoist movement had made cultural rights and ethnic-regional federalism a central issue in their struggle. When launching a ‘People’s War’ in 1996, their 40-point demand, political manifesto included autonomous areas for ethnic minorities where they constituted a majority, equal standing for all languages and the right to education in the mother tongue. As the insurgency developed, the Maoists established ethnic fronts named after the principal nationality groups, proposed a federal structure based on nine autonomous regions mainly based on ethnic criteria, and set up presumptive ‘people’s governments’ for these nine.(Suhrke, 2014) After that along with Maoist movement federalism debate came in front. Although issue of federalism has been debating number of times since very beginning but the status of debate was remaining only in as an intellectual debate. When Maoist movement took place then the issue of the federalism debate came in front, although during the series of interactions with the leaders of the political parties, Prachand was also able to convince them on two of the major Maoist demand-holding the Constituent Assembly election and abolishing the monarchy (Roy, 2008) and lastly it became a bottom line of the constitution drafting process as well as peace process. Initial stages of the state restructuring debate as well as federalism debate were in quite opposite each other. Only one party in the first Constituent Assembly Rasriya Janamorcha, 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 (Karki, Edrisinha, 2014, p. 5). They are arguing federalism is needed to intact the country others opinion is prevailing that if federalism adopted then country will divide. …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(Karki et al., 2014, p. 4). Federalism is a core to duly integrate the country or federalism will be a core element to control from disintegrates the country. 

3.     CONSTITUTIONAL DEBATE:

 

Constitution is a fundamental law of the land. Nepal has never been without constitution. The very fact is that Nepal has a 7th constitution within the seven decade it means one constitution for one decade in on average. However, the only the last constitution of Nepal is made and promulgated by peoples elected constituent assembly. All other constitutions were promulgated by king. 1990s constitution is also drafted by group of experts but promulgated by the king. Interim constitution of Nepal 2006 was also drafted by experts appointed by the negotiation team and indorsed by parliament and approved by interim parliament. The very differences with other constitutions are all previous constitutions are unitary and this is the constitution is federal one. The constitutional debate was not because of absence of constitution but because of the constitution was not made by people’s representative and the constitution was not federal. Federal constitution is only after long and rigorous debate. The nature of the debate was basically for and against of the federalism. The only secondary debate was what kind of federalism.

3.1.         PRE-CONSTITUTION DEBATE:

 

Constitution is a fundamental law of the land and People are sovereign though sovereign people have never ever promulgated the constitution. Peoples level engagement were never been made any provision during the constitution making and promulgation process. In the constitutional history of Nepal first constitution was promulgated in 1947 during the time of Chandra Samser Rana though it was never implemented. Second constitution was promulgated in 2007 in the name of Nepal interim constitution 1950 by the then king. 3rd constitution was promulgated in 1958 which was well drafted by nominated personalities with the help of Sir Ivor Jennings from UK. The constitution of Nepal was issued in 1962 with the introducing the party less panchayat system by the king Mahendra. Political parties were band and fought against the panchayat regime led by king Mahendra and later on Birendra. Number of constitutional amendments has been made to accommodate dissent voices. Referendum also conducted though constitutional system has not longer than 1990s. After the people’s movement of 1990 the drafting committee has announced by King for constitution drafting. 1990s constitution also failed to address the aspiration of the peoples and political parties. After promulgation of the constitution revolutionary section of the society were not satisfied. They thought that again compromise with the king? Continuous fighting against the king, again after compromise was the key to create another compulsion task for revolutionaries to initiation of revolution against the king. The result Maoist people’s war declared through 40 points demand. The main demand was constitution from constituent assembly and federalism with autonomy. Negotiation process has been initiated in the spirit of restructuring of the state mentioning in decision of top brass in November 8 2006 (Government of Nepal, Ministry of peace and Reconstruction, 2015). State restructuring for to solve the problem of existing class, caste, gender and regional disparities has been mentioned in comprehensive peace accord 2006 (Government of Nepal, Ministry of peace and Reconstruction, 2015). Agreement signed in 23 December 2007 and 25 June 2008 has agreed upon to setup state restructuring commission (Government of Nepal, Ministry of peace and Reconstruction, 2015). Conflicts always happen between forward looking change and maintaining status-quo. Unitary and federalist divided in to two parts. Then society also has divided in to two sides pro-federalist and anti-federalist. In 2006 Interim constitution promulgated from the interim legislature-parliament. The interim constitution has mentioned about federalism very clearly by dismantling unitary and centralized state structure and restructuring of the state structure(Interim Constitution,2006). But Madhesh faction expresses dissatisfaction towards interim constitution because of non-mentioned federalism in the constitution. The preamble of the interim constitution has says that “Putting democracy, peace, prosperity, progressive socio-economic transformation and sovereignty, integrity independence and prestige of the country in the center; Declaring Nepal as a federal, democratic republican state upon duly abolishing the monarchy1; HEREBY DECLARE, with a view to institutionalizing the achievements made through the revolutions and movements till now, the promulgation of this Interim Constitution of Nepal, 2006, which has been made through a political understanding and to be in force until a new constitution is framed by the Constituent Assembly.(Interim Constitution, 2006)

3.1.1.     PRO-FEDERALIST:

 

In the preamble of the Comprehensive Peace Accord has agreed upon, that the root cause of the conflicts are class, caste, gender and regional disparities to solve it forward looking state restructuring is a must (Government of Nepal, Ministry of peace and Reconstruction, 2015). The pro-federalists are always in favor of state restructuring it is because existing state mechanism has been created conflict continued. Every Conflict is structure specific and society relatives. They all are waiting for resolve by changing state structure but it is never possible within the framework of the existing structure. Political problem can be resolve by political action. Mainly they are resolve by political change. Social and economic problems also can be change by changing their model and structure. As the same way problem created by structure itself then solution also has to be the same. Structural problems cannot be solving by political or any other means. Structural violence demands structural solution if it is expected resolve. Pre constitution phase was especially for negotiation. Peace negotiation is based on change agenda. No doubt state party always favor to the existing structure peace negotiation without having drastic change would be the success of the state party. At the same way’s rebellion party wanted drastic change. Negotiation was also a kind of game. Mainstreaming the Maoist party without fundamental changes that would be the success of the state party and fundamental changes by negotiation would be the success of the rebellion. Therefore, state party wanted to stick on the existing structure and rebellion wanted to change at all. In this scenario beside the state and rebellion party others stakeholders are playing the game. Some are in favor of success of the negotiation others are to destroy the process and some are stick on their own agenda. Therefore, in addition to state and no state actors’ others factors were very active in discourse of state structuring. Pro-federalists are also not in same line. It was competition of agenda setting and getting the public support and finally getting credit of success or achievement. This tendency works and provoke to all in every sector of the society. Pro-federalist had claimed that federalism will be the solution of all. Federalism is a better model of governance throughout the world.

 

In a chapter of obligation of the state the nature of state restructuring has been mentioned as to make an inclusive, democratic and progressive restructuring of the State, by ending the existing centralized and unitary structure of the State so as to address the problems including those of women, Dalit, indigenous people, Madhesi, oppressed, excluded and minority communities and backward regions, while at the same time doing away with discrimination based on class, caste, language, gender, culture, religion and region; (interim constitution,2007).

 

3.1.2.     ANTI-FEDERALIST:

 

Anti-federalist camp dominated by status-quest. Anti- federalist considered mainly anti-change with some exceptions. Anti-federalist logics were also too hard that mean federalist definitely divides the country. It is imported agenda and those who raised the agenda of federalism they are anti-nationalists and who are badly misused by the foreign power. These are the form believe of the anti-federalist. To proving their logic most of the logic was small country, having diversity it has to be remain unitary forever. If we adopt federalism country will die sooner or later it was a strong logic of the anti-federalists. During the time of negotiation, the agenda has been exposed to all. Those who really wanted to success the negotiation they are more favor and wisely in favor of federalism and those who really wanted to break the negotiation raising the agenda of anti-nationalist and division of the country and country will be dying. The strong logic of the anti-federalists is federalism has not been mentioned even in 40-points demands, 12-point understanding and Interim Constitution. Surprisingly the agenda of federalism has interred in Nepali politics by foreign forces to divide the country.

3.2.         DURING CONSTITUTION DEBATE:

 

After the success of the negotiation election of constituent assembly has been taking place. Constitution has been amended and federation has been declared. Some feature of the federation also has been mentioned in the interim constitution. For the purpose of the constitution drafting according to rules of procedure has managed 11 thematic committees and 3 procedural committees. Thematic committee’s deals in their own jurisdiction on concept note and preliminary draft based on people’s consultation. All committees submit their task to the constitutional committee for final draft of the constitution. In this phase also debate was on again in as anti-federalist or pro-federalist. There shall be made progressive restructuring of the State with inclusive, democratic federal system of governance, by doing away with the centralized and unitary structure of the State so as to end discriminations based on class, caste, language, gender, culture, religion and region.(interim constitution,2007).

3.2.1.     PRO-FEDERALIST:

 

The opening paragraph of the State restructuring and distribution of state power committee of the Constituent Assembly was as following;

“The structure of a country or a state is normally unchangeable. However, it can be and is changed as per the need of the rulers or the wishes of the people. To rethink about the vertical structure of the governing system and the structure and the role of the institutions that exist horizontally under the existing governing model is the subject of restructuring the state. The nature of existing power structure in Nepal is unitary and the form of governance centralized. In view of the sentiments expressed in course of the People's Movement and on the basis of the characteristics and unique features of the Nepalese society and the aspirations of the communities left behind, the nature of Nepalese nation state will be based on federalism and the governing system in the structure of self-rule with the rights and responsibilities among the governments of various tires clearly defined. In this sense, the building of new institutions in the form of integrated, indivisible and sovereign nation on the basis of geographical, caste-based, linguistic, cultural and regional autonomy is understood as restructuring of the state. The restructuring of the state does not mean the carving out of a new state; it is rather the transformation of the existing structure. Thus, in the present context of Nepal, the building of new institutions by resetting or re-demarcating the internal boundaries (of development regions, districts, municipalities and villages) keeping intact the national border can be understood as restructuring of the state.” (Constituent Assembly,Restructuring of the State and Distribution of State Power Committee, 2010)

 Diversity within the country is the main foundation of federalism. However, political need necessitates a federal structure. In spite of this, countries big or small, rich or poor have embraced a federal model. Only 28 countries in the world have adopted a federal system. In terms of population and geographical area, though, about 40 per cent of the globe is covered by federal system.(Committee report 2010., p. 70). With this statement the committee report has been made. Pro-federalists always felt that federal system is the best system among the other and will be very helpful to solve all the problems. Politics is a power in the federations power will be devolve. Having the bitter experiences of the unitary and centralized system federalists are never ever ready to give up their ideas. Federalist’s idea is the best among the all then never ever ready to listen idea of maintaining unitary and centralized system. Pro-federalists are mainly identity-based federation. According to them after finishing the constitution then only after all indigenous, marginalized and oppressed and suppressed class will be rewarded. The main problem of the conflict was class, caste, gender and territorial disparities. All the root cause of the conflict will be address by the federalism. Identity based federalism will provide access to power and justice at a time to all marginalized communities. In their dominated area they will have their own government; they will have chosen their own language and protection of the culture. Development work also can be done by their choice and wish. 

3.2.2.     ANTI-FEDERALIST

 

Federalism is not the solution of all and it is not fit for Nepal was a main logic of the anti-federalists. When federalist raise the issue of autonomy anti-federalists’ questioned country will survive? When question of self-government then they are questioning the functioning capacity of the local’s provincial or other than center? Provincial and local government will be easily influenced against the national interest. National interest will be weakening and nationality will be in threat. 

3.3.         POST-CONSTITUTION DEBATE:

 

Post-constitutional debate on federalism is different that pre-constitutional debate. Constitution promulgated with huge protest of the anti-federalist. Anti-federalist stand always that federalism is not our own agenda it is imported one and it is for disintegration of the country. Pro-federalist stand always that federalism is one hundred percent our own agenda and it will be helpful to manage our diversities. The final version of the constitution came up with modification. Mostly federalist wanted to have identity-based federalism and anti-federalist are dead against federalism and if any how federalism territorial based federalism would be considerable. With this them of the discussion most of the logic of federalism are as mentioned in followings;

3.3.1.     PRO-FEDERALIST

 

Post-federalists are in favor of the constitution of federal democratic republican. Finally, they got it, however the federal design is not as per their expectation. Mostly pro-federalist was in line with identity-based federalism. Identity based federalism mean more or less understood as ethnic federalism. Whereas, pro-federalist defined in favor of nationalities-based federalism. Nationality means a group of people with common language common culture, common territory and common economic status such a settlement known as nationality (Nepal Communist Party[Maoist], 2008). It is not ethnicity and idea of Casteism.[4] Federalists also are not happy with present federal design it is because existing federal design is not in line with identity-based federalism. For the purpose of the number and demarcation of the provinces the committee had recommended as following;

“In the restructuring of the federal state, formation of autonomous and self-governed provinces is necessary. While doing so, the following points should be considered: Regions with geographical continuity and ethnic concentration should be placed within a single unit as far as possible Regions with certain lingual concentration should be placed in the same unit Regions with certain cultural concentration should be kept in the same unit Regional disparity should be taken into consideration while determining the federal regions Emphasis should be placed on the historical and communal features.”(Committee Report, 2010, p. 88)

The very problem of the pro-federalists is the federal structure got it different than envisioned earlier. The constitution implementation commission is not in place for effective implementation of the constitution. Power struggle is obvious which happening always. The legal arrangement has to be made by converted parliament after the promulgation of the constitution but it was not done properly.[5]

3.3.2.     ANTI-FEDERALIST

 

Federalists are also not happy with this federal design because of it is not identity based federal structure. As the same way anti-federalists are also not happy with this federal design because country will not sustain the burden of federalism. The anti-federalists voiced always sooner or later the federal structure will be ended. It is not because of its nature but it is because of it is not our agenda. It will not be able to cope in our society. The agenda of federalism were never ever during the time of movement.

4.      EXPECTATION OF THE FEDERALISM:

 

Principles of the federalism were envisioned during the time of constitutional debate. Perfect federation has been discussing. Autonomy is a key of the federal structure. Self-rule and shared rules are the core of the federalized process. List of the power are fixed in the time of preliminary draft. Exclusive power and concurrent power were in placing with well designed. Right to self-determination and special rights for oppressed class gender caste and territory was hot topics. Special regions also were in envisioned. Numbers of expectation were disseminated during the time of constitution making. The main principles have been fixed identity and viability for federations. Identity and viability-based principles will be followed for federal design. Five criteria of identity and four bases of viability were in very popular during the time of constitution drafting. Regions with geographical continuity and ethnic concentration should be placed within a single unit as far as possible. Regions with certain lingual concentration should be placed in the same unit, Regions with certain cultural concentration should be kept in the same unit, Regional disparity should be taken into consideration while determining the federal regions, and Emphasis should be placed on the historical and communal features. Besides, economic capability and potential, availability of natural resources and means and administrative accessibility should be considered in this way, each province of Nepal will have the dominance of a major ethnic group, a major lingual group and a major cultural group. In the provinces thus formed, a situation may arise where a regional language may have to be used for official purpose. These were the expectations during the constitution drafting. However final constitution is not able to be that way. For the purpose of the constitution failed to meet by pro-federalist themselves. Therefore, they are in huge trouble.

5.      REALITY OF THE FEDERALISM IN PLACE:

 

When constitution promulgated the question of identity has been diluted. Identity and viability-based federalism itself diluted. Actually, federalism adopted territorial based only neither it has considered identity nor viability. Federal design has been done mainly territorial basis and almost continuation of the past. The very design has been done by continuation of the past structure.

The preamble of the constitution has mentioning, “Ending all forms of discrimination and oppression created by the feudalistic, autocratic, centralized, unitary system of governance”, (Constitution of Nepal, 2015) The structure of the state has been mentioned in the constitution part 5 article 56. According to the constitutional provision the structure of State shall be as following; “(1) the main structure of the Federal Democratic Republic of Nepal shall be of three levels, namely the Federation, the State and the Local level. (2) The Federation, State and Local levels shall exercise the power of State of Nepal pursuant to this Constitution and law. (3) There shall be States consisting of the Districts as mentioned in Schedule-4 existing in Nepal at the time of commencement of this Constitution.” (Constitution of Nepal 2015, p. 44) In addition to that article 52 of the constitution has mentioned the state obligation which is very relevant to new mode of state restructuring. “It shall be the obligation of the State to make Nepal a prosperous and affluent country by protecting and promoting fundamental rights and human rights, pursuing directive principles of the State and gradually implementing policies of the State, while keeping intact the freedom, sovereignty, territorial integrity and independence of Nepal.”(Constitution of Nepal 2015, p. 43).

In reality there are no any sign of basis of federal structure naming and boundary of the provinces. The principles of Identity and viability have been diluted badly. Most of the provinces are made almost continuation of the past structure. Forward looking state restructuring limited only in debate and intellectual exercise. Earlier it had discussed and formally passed by the committee 14 provinces with the basis of identity and viability. But finally came up with 7 provinces without the basis of identity and viability. Envisioned and product of the constitution in relation to provinces are quite non-comparable in order to principles, basis and perspectives.

Along with the committee report the government of Nepal had established a high-level commission on state restructuring in November, 2011. The commission has submitted the report with 10+1 provinces by majority members of six out of nine (Government of Nepal, High-level state restructuring recommendation Commission, 2011), and 6 province as a dissenting opinion against the committee report with 14 provinces.[6] In addition to 14 and 7 province most of the member of Constituent Assembly had registered their note of dissent after the report passed by simple majority (Constituent Assembly,Restructuring of the State and Distribution of State Power Committee, 2010).

6.      GAP BETWEEN EXPECTED AND GIVEN REALITY:

New constitution is in place after long struggle and efforts. Federalism debate has been started with dream. Diversity management is not a question of federalism in Nepal it is beyond that. Access to state power and state of our self and recognition of identity was real dream of the country and communities. Federalism will be design on the basis of principles of identity and viability. Nepal is a country of minority. There is no single community majority anywhere. Number of ethnicities and number of language speaking communities are in Nepal. However, the constitutional debate was quiet opposite in pre-constitutional debate and post-constitutional debate. It can be found as followings;

6.1.         Principles gap:

The principles of the state restructuring were taken “A federation is a shared form of sovereignty” has been mentioned in the report of the committee. In addition to that the report has mentioned about federal state is divided into different provincial units, each provincial unit having its own distinct identity, autonomy and self-governance. Unity in diversity shall be a feature of the federal state of Nepal. Finally, the aim of the restructuring according to the committee report was to replace the unitary setup of the existing state. Why identity-based federalism the logic given as the deep-rooted structural inequalities are linked to ethnic identity, language, religion, region, gender, and economic status resulting in a range of discriminatory practices.(Reyes, 2017). Finally, principles have been diluted to federal design.

 

6.2.         Naming and border gap: 

 

Ethnic/communal, Lingual ,Cultural ,Geographical/ continuity of regional identities , Continuity to historical identities and basis of capacity, Economic inter-relationship and capability, Infrastructure development and potential , Availability of natural resources and means , Administrative accessibility. The boarder issue still in debate and naming except few provinces’ others are failed. Those provinces that have given the name of the provinces, neither as per the committee’s report nor as per principles of identity based. Mostly the name has given either religious or the name of the river.

6.3.         Number Gap:

 

The number fourteen was recommended but now came up with seven without any special (special, autonomous and protected) region. Envisioning number was on the basis of identity and viability. At least one percent of the ethnic community deserved to get their state. Therefore, Sherpa and Jaden provinces also had proposed. Based on identity the committee has proposed 23 different autonomous region with the rights of autonomy, self-rule and identity (The Constituent Assembly, 2013).

6.4.         Gap related with the provision of Special Structure:

 

The report has mentioned that, there will be a constitutional provision to carve out a special region/autonomous region/protected region characterized by uniform or multi-cultural identity, wherever it is so deemed necessary, based on the density of caste/language/community as recommended by the province, proposed by the federal government and approved by the federal legislature. In reality there is no provision in the constitution on special structure however local government has given a right to establish the special structure on their own territory.

6.5.         Power gap:

Envisioned provision of the constitution was the federal units are autonomous and having a right to self-determination. Local level federal units are stronger than other. But in reality local level federal units are slightly changed then previous power structure rather than right to self-determination. Even a power list earlier it has been clearly mentioned exclusive and concurrent list precisely. But finally, list has been mismatching each other and double concurrent list has been added without any justification and explanatory notes.                                               

7.      CONCLUSION AND RECOMMENDATIONS

 

Based on my research, my conclusion is that, the constitution of Nepal is a rare product of compromise and federal structure is also not the exception. Maoist movement has played vital role for the state restructuring issues therefore it has taken as achievement in the Marxist history, whereas Marx propounded theory; Lenin implemented in Russia as an insurrection; Mao did in China as a protracted people’s war. In Nepal decided to develop MLM and fusion of both. The tangible achievements of the People's war can be presented state restructuring along with Interim Constitution, Constituent Assembly election, Inclusion and Republic (Devkota, Maoist Movement of Nepal:Development of Tactics and Strategies, 2011).[7] Having not only different but opposite schooling the parties able to manage their differences based on compromise formula. Since decades and decades long period of time the political Parties of Nepal were fought each other belonging different ideology. Number of times they were in fight to finish position. Finally, political parties of Nepal chosen the way of negotiation for conflict transformation and the precious product provided us as a constitution. They agreed upon to end arm struggle by addressing the root cause of the conflict with peaceful means.  None of the parties are in position of wining and loosing but both of them adopted win-win strategy form the negotiation table. Based on the win-win negotiating strategy country achieved the constitution. The product as a constitution also happened to the same. Therefore, accepting the fact, the constitution is byproduct of negotiation with win-win strategy. The parties have to understand that this is the best product of the particular situation. This is “The Constitution” rather than a piece of paper “The best tool of peace and conflict transformation”. It is a huge peace dividend for the country and people which resolve the past decade long arms conflict. If constitution made by compromise then implementation strategies also has to be developed along with the same. By addressing the dissent voices by amendment of the constitution enrich the constitution and fulfill the demand of the masses of the people is a prime duty of the main stakeholders of the country and not less than others stakeholders to as an academia of the country and abroad. 

7.1       Limitation of the Paper

The research is based on political debate in constituent assembly, their committee’s reports and views expressed by the leaders. Using such limited resources findings may not be fit for generalization. Limited time and resources may not supplement the ideas. Even though based on formal debate of the then constituent assembly, their reports and views of the leaders are most reliable source.

7.2       Findings

Having not only different but opposite schooling the parties were able to manage their differences based on compromise formula. The political parties of Nepal belonging to different political ideologies fought with each other for a very long period of time. Finally, political parties of Nepal chose the way of negotiation for conflict transformation and hence we have a new constitution made by the representatives of the people as a precious product. They agreed upon to end armed struggle by addressing the root cause of the conflict with peaceful means. None of the parties are in a position of winning and losing but both sides adopted a win-win strategy from the negotiation table. Based on the win-win negotiating strategy country achieved the people’s constitution. The parties have to understand that this is the best product of the situation. This is not only a piece of paper as a constitution but it is the best tool of peace and conflict transformation. It is a huge peace dividend for the country and people which resolved the decade long arms conflict. Recommendations The research based on the findings that compromise is only the solution to implementation of the constitution. If constitution is made by compromise then implementation strategies also have to be developed along with the same. Addressing the dissent voices through amendment of the constitution will enrich the constitution and fulfill the demand of the masses of the people. This is a prime duty of the leadership including main stakeholders of the country as well as academia of the country and abroad to sustain proper implementation of rare product as federalism and constitution. Until and unless federalizing the party’s federalization of the state will not be completed. Therefore, the first and foremost duty of the leadership is to federalize the party to proper federalization of the state


 

8          REFERENCES:

 

Government of Nepal, Ministry of law and justice, law book management committee, The Constitution of Nepal 2015. (2015). 252.

Legislative-Parliament Secretariat, Singh durbar, (2013). Constituent Assembly. 186.

Government of Nepal, Ministry of law and justice, law book management committee, The Interim_constitution_of_nepal_2007_as_amended_by_first_second_and_third_amendments.. (2007).

Government of Nepal, Ministry of law and justice, law book management committee, (2006). The Interim Constitution of Nepal, 2063 - 2007. 167.

Reyes, J. (2017). Diagnostic Study of Local Governance in Federal Nepal 2017. 64.

Suhrke, A. (2014). Restructuring the state: Federalist dynamics in Nepal. https://doi.org/10.13140/2.1.4321.9521

Constituent Assembly,Restructuring of the State and Distribution of State Power Committee. (2010). Report on Concept Paper and Preliminary Draft,. Constituent Assembly.

Dahal, R. A. (1915). On Democracy. Kathmandu: Creation Media Pvt.ltd.

Devkota, K. (2014). International experiences on land and land reform, Bhumi Sandesh (p. 10). Kathmandu: Nepal National employee organization, Land Department.

Devkota, K. (2011). Maoist Movement of Nepal:Development of Tactics and Strategies. Kyoto University, Japan Paper Presented (p. 6). Kyoto: Unpublished Conference Paper.

Devkota, K. (2006). Why forward looking State Restructuring, Constituent Assembly and State transformation (p. 147). Kathmandu: Paitavi Publication.

Edrisinha, B. K. (2014). The Federalism Debate in Nepal. Kathmandu: UNDP, Support to Participatory Constitution Building in Nepal(SPCBN).

Government of Nepal, High-level state restructuring recommendation Commission. (2011). High-level state restructuring recommendation Commission. Government of Nepal, High-level state restructuring recommendation Commission.

Government of Nepal, Ministry of Peace and Reconstruction. (2015). Collection of agreements and understanding relating to peace process. kathmandu.

Nepal Communist Party[Maoist]. (2008). The Commitment paper for elcetion. Kathmandu: Nepal Communist Party[Maoist].

Roy, A. (2008). Prachanda The Unknown Revolutionary. Kathmandu: Mandala Book Point.

The Constituent Assembly. (2013). Sambidhan Sava Darpan. Kathmandu: The Legislative-Parliament Secretariate, Sinhadurbar.

 



[1] Author is Constituent Assembly Member and Senior Advocate, Supreme Court of Nepal as well as Faculty of ICMS,TU Teaching International Law, IHL and IHRL, International Environmental law and Disaster Law, Leadership Development.

[3] Retrieved June 26 2019, from:http://www.forumfed.org/countries/

[4] UCPN-Maoist election manifesto 2008&2013

[5] The Converted parliament changed the government in three times but enactment of laws was not in priority. Even the Local Government Operation Act 2017, passed after the election of local government and provincial assemblies started without any infrastructures.

[6] Dissenting opinion registered by Hon.Narahari Acharya, against the State restructuring and division of state power committee report in 2010.

[7] Paper Submitted to Conference held jointly by Goldsmiths, University of London and University of Oxford
at Wolfson College, Oxford on 11th and 12th July 2011 and  Paper submitted to  Kyoto University, Japan 3rd Dec 2011

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