Federalism and the Problem of Implementation

 

The implementation of federalism has become a complex debate in Nepali politics. Once upon a time, federalism was thought to be the solution to all problems, but today, federalism has become the cause of all issues. Characters and tendencies that do not accept federalism in their hearts but praise federalism with their mouths are involved in this campaign. It has become as if federalism is the root of all the problems of the country. In fact, what is federalism in the context of Nepal? How should it be implemented? And what is happening? And what should have been? An attempt has been made to discuss this.

 

What is federalism?

The debate on federalism is not new in Nepali politics. Whether it is Madhesh that Kathmandu ruled, we fell victim to colonialism, or a state with its own identity, rights, and dignity, why not Magarat, Tamuwan, Tharuwan, Tamsalid, Newa, Kochila, Mithila, Bhojpura? The suffering of the Far West and Bheri Karnali is different. Kathmandu's arbitrary development has become arbitrary. Meanwhile, Nepal has formally entered the concept of a federal state by restructuring the unitary state on the strength of the people's war, people's movement, and Madhesh movement. The method of distributing powers between two or more levels of government is federalism. This is called federalism, based on the principle of coordination, cooperation, and coexistence between the three levels in the Nepali constitution. The distribution of powers was done through the constitution. The distribution of powers was done in the form of a single list and a common list. Not only that, but the work of expanding powers was also done. In doing so, the powers were expanded so that about four hundred powers were given to the local level, seven hundred powers to the provinces, and the remaining powers to the union.

How should it have been implemented?

The design of federalism should have been based on identity (caste, language, culture, psychology, and geography). The voice was raised that it should be based on ethnicity. After all, even though federalism was based on identity and power, it ended up being based on neither identity nor power leader agreement psychology. The management of lists in a way that made the common list longer than the single list, double, and triple, was problematic in itself. While the discussion of federalism was based on supporters and opponents, it focused on names, numbers, and borders, but there was never a discussion focused on rights. So much so that there was never a discussion on the list of rights that exists now. It has become strange for everyone who experiences and uses a topic that does not exist to use it. Keeping in mind the lack of this discussion and the problems caused by the design of federalism, today's discussion is how the federalism that has been established should have been implemented.

After the promulgation of the constitution, the Constituent Assembly was converted into a parliament. Its purpose was to formulate all the laws necessary to implement federalism and the Constitution. Moreover, during the drafting of the constitution, a separate powerful commission was envisioned to implement federalism and the constitution. Due to political wrangling, such a commission could not be included in the constitution. The discussion of federalism was limited to the names, numbers, and borders of the provinces and did not focus on the list of powers. The list of powers was formed in a non-controversial manner, but in the second Constituent Assembly, not only was the list of powers changed, but a double common list was also added. That has now become a cause of confusion in the implementation of federalism.

Article 56 of the Constitution states that state power will be exercised by all three levels, namely the federal, provincial, and local levels, in accordance with this Constitution and the law, and the Constitution also clearly states that state power is the power of the executive, judiciary, and legislature. Article 57 and Schedules 5,6,7,8,9 have clarified the list of powers. Apart from that, for the implementation of Nepali federalism, separate provisions have been made in Part 20 of the Constitution on the interrelationship between the federal, provincial, and local levels. The principle of federalism has been mentioned in the Constitution itself. It was said that the application of that principle is based on coordination, cooperation, and coexistence. It was said that all three levels exercise state power in accordance with this constitution and the law. Federalism is a complex system, and in addition, after anticipating the problems that may arise when moving from a unitary system of government to a federal system, the provision of the Inter-Province Council was made in Article 234 of the constitution to resolve political disputes between the provinces and the union after the division of powers in the constitution. The function of this mechanism, which will have all the chief ministers under the chairmanship of the Prime Minister, is to resolve political problems. The meetings of this council should have been held as needed and political disputes should have been resolved. But unfortunately, in the seven years since the promulgation of the constitution, i.e., until 2079 BS, only two meetings were held. There was no willpower to implement the decisions made by it. This should not have happened.

Realizing that problems naturally arise in a unitary state with three levels of federalism, the need for coordination was felt, and Article 235(1) of the Constitution stipulated that the Federal Parliament would make laws to maintain coordination between the Union, Provinces and local levels. Accordingly, the Union, Provinces and Local Levels (Interrelationship and Coordination) Act 2077 was promulgated only five years after the constitution was made. The Act provided for a National Coordination Council to maintain mutual coordination between the three levels. It provided for the Prime Minister to chair the Prime Minister, including the Chief Minister of the province, ministers, and local level officials. However, it took three years for this council to be formed. The first meeting of the National Coordination Council was held in 2080 BS. The meeting identified that the confusion in the list of rights was a problem in the implementation of federalism. To remove that confusion, the list of rights. It was decided to revise the work, including the work extension. That work has reached its final stage. An important law like the one on coordination between the three levels should have been made on time, implemented immediately after being made, and mutual coordination should have been visible in the results, but that did not happen.

Another basis for governance was the financial system. The National Natural Resources and Finance Commission envisaged by the constitution could not be formed on time. Taking advantage of the fact that the commission was not formed, the transformed parliament limited the jurisdiction of the commission by transferring finance and determining its percentage through the Act. Some of these things should not have happened. Some work was not done on time, some work was done by crossing the limits of authority, and some work was done not to promote federalism but to strengthen the unitary governance system.

Laws such as the Federal Civil Service Act, the Education Act, and the Police Adjustment Act, which are the basis of governance, should have been made on time and implemented. By now, the federal service, provincial service, and local service should have been formed and operating on their own. The number of ministries of the federal government should have been limited to 15, if it was specified. Nearly five dozen central agencies should have been abolished. The report of the Expenditure Review Commission, formed by the government itself, should have been implemented exactly. Those tasks could not be done on time and in the right manner, which is why confusion has now emerged.

The provincial government and the assembly should have worked, focusing on the rights granted to them by the constitution in their specialties, but this could not be done. Instead, the mistake of imitating the federal government, arguing with the federal government instead of coordinating with it, and spending time on negotiating for tasks that are not specified by the constitution has become more and more common. An important reason why local governments are relatively organized and strong is that they have their own Local Government Operation Act, but the provinces do not have such an act, so the provincial government itself is also confused. The effect of this has been confusion in the effectiveness of the provincial government and the implementation of federalism.

What to do now?

In the case of federalism, the shortcomings in the Constitution should be corrected through amendments. That requires a separate discussion. Similarly, the constitution that I have in my mind does not work now. The constitution that I have in my hand is to be implemented now. This is the current priority. The functioning of the Inter-Province Council as provided for in the constitution is the need of the day. In the seven years since the constitution was promulgated, only two meetings of the Inter-Province Council were held, but four meetings were held in 1980 alone. It is trying to find solutions to many problems. If we work at this pace, along with the success of the Provincial Council, we will also achieve success in the implementation of federalism. It is necessary to hold meetings of this Inter-Province Council to resolve political disputes as soon as necessary and work to find solutions.

Similarly, the National Coordination Council was envisioned by the constitution itself. The conception of that constitution was completed only five years later through an act, but it had to wait until 2080 for its implementation. With the formation of the National Coordination Council in 2080 and its meeting, the work of reviewing the scope of authority was started to resolve the confusion in the use of authority which was a problem in the implementation of federalism. When this work is completed, it will provide solutions to many problems.

The effectiveness of the thematic committees and special committees of the National Coordination Council envisaged by the Union, Provinces and Local Levels (Coordination and Interrelation) Act 2077 is another matter of necessity. There is no need to wait for a meeting of the National Coordination Council chaired by the Prime Minister to resolve any problem. Through the thematic committee chaired by the federal thematic minister, including provincial ministers and representatives of the local level, the issues raised by the Chief Ministers, whether it is land acquisition or permission to cut trees related to forests or economic matters or issues related to development and construction, are resolved in a single session of the relevant thematic committee. Only issues that the thematic committee cannot resolve will go to the National Coordination Council. Apart from this, the same act also provides for the formation of a special committee if a special problem arises. These and other mechanisms had to be used. After this, the problems seen in the implementation of federalism will be resolved.

As far as the union is concerned, it is confused by re-enacting the law on the common list, I am forced to say that this is just an excuse. The Union, Provinces and Local Levels (Coordination and Interrelation) Act 2077 states that all three levels are equally capable of making laws on the common list, and if the Union does not make a law, the Province or the Province does not have to wait for the Local Level to do so. The Constitution and prevailing laws do not prevent any level from making and implementing laws on its own initiative. Another argument is also made that if the Union makes a law later and it is agreed, the law we made will not be useful. Which is a weak argument. Even if the law made by the Union later agrees with the law of the Province, the Constitutional Court had to take the case to the Constitutional Court and the Constitutional Court had to say that it was agreed. Even if it was said that it was agreed, it would not be said that the entire Act was agreed, but only some provisions of the Act were agreed, or it would be said that it was agreed not from the beginning but from the date of the decision. Governance cannot remain in a vacuum while waiting for such processes. It is necessary to move forward with the work.

The same coordination act mentions things to consider when making laws on individual rights to matters related to making laws on common rights. When making laws on common rights, it is necessary to consult the provincial and local levels. The Act also makes mandatory provisions for consultation. In addition, it has made provision for consultation even if it is a matter of sole authority, but a matter of concern to the provincial and local levels. The reluctance of the Union to use it is evident, and the readiness of the provincial and local levels is not even apparent. It is important to pay attention to this.

 

Despite various ups and downs, the Inter-Province Council met only twice in the seven years since the promulgation of the Constitution, but in the eighth year, it met four times and is moving forward to resolve the latest issues. The issue of land acquisition raised by the Chief Ministers is a matter to be resolved in a single meeting of the thematic committee of the National Coordination Council, comprising the Union, Provincial and Local Land Affairs Ministers. The issue of permission to cut trees is a matter to be resolved by the thematic committee comprising the Union and Provincial Forest Ministers. The issue of police adjustment is a matter that can be easily resolved by the thematic committee comprising the Union and Provincial Home Ministers. In case of any special issue, the law has made provision for the formation of a special committee and a solution can be found. It is important to be interested in using this provision appropriately.

In financial matters, the Inter-Province Economic Council, as provided for by the Inter-Governmental Financial Transfer Act, is a mandatory issue to be resolved. However, even though the Finance Commission, which is a constitutional body responsible for performing its duties in financial transfer matters, has repeatedly mentioned in its report that it has not used special circumstances, it does not seem that the provinces or local levels claiming special circumstances have even questioned or presented their claims. The provinces have not been able to get rid of the old disease of going to Singha Durbar at the beginning of the financial year, saying that the budget was not enough and returning to Singha Durbar at the end of the financial year with the figures of not being able to spend the budget. Basic and secondary education is the sole right of the local level, but the provincial government, which has the right to higher education, does not even have a Higher Education Act. However, while it is busy allocating budget to schools under the sole authority of the local level, it has focused on increasing the budget in universities. These and other issues need to be corrected.