Draft proposes weak federalism: Lawyers
KATHMANDU, July 29
Lawyers have criticised the draft constitution not only because it is without names and boundaries of the federal units but also because the annexes that list the powers of the central, provincial and local governments propose to create weak federalism.
Advocate Chandra Kant Gyawali said there were indications in the draft constitution that federalism might be postponed endlessly and even if it was realised, it would be weak federalism mainly because it gave residual powers to the central government.
The draft constitution, he argued, gives the central government the authority to collect excise duty, citizenship application fees and passport fees which normally remains with the provincial government.
Gyawali said if the provinces could not collect enough revenue to run their administration, then the federal units could not have self rule at the province which is a basic principle of federalism.
In federalism, centre has fewer powers than the provinces, which I do not see in this draft
— Senior Advocate Shambhu Thapa
Gyawali said the draft constitution’s provision about the amendment of the powers of the provinces was too rigid which in effect would give more powers to the centre. “As per the draft, when six out of eight provinces fail to agree on a Bill seeking to amend the powers of the provinces, the Parliament could pass such a Bill with two thirds majority and reduce the powers of the province. This is against the autonomy of the federal units,” he said.
In other federal countries, he argued, the Bill to amend the powers of the provinces originates in state assembly but the draft constitution states that such a Bill shall originate in Parliament.
“I doubt there would ever be the consent of six out of eight provinces. So, the Parliament can amend the powers of the provinces and this will be against the principle of federalism,” he argued.
Former vice-president of the Nepal Bar Association Surendra Kumar Mahato said the draft constitution did not ensure province’s autonomy.
The draft constitution, he argued, states that the central government will form a commission to restructure the local bodies but that should fall under the power of the provincial government.
“If we want to have autonomous provinces as stated in Article 138 of the Interim Constitution, local bodies should be under the provinces,” he added.
Advocate Dipendra Jha echoed his views. “If a province cannot even alter the boundaries of its VDCs and municipalities, then how can that province sustain?” he wondered.
Jha said taxation powers, including the authority to collect value added tax, should be with the provinces but the draft constitution gave this authority to the central government.
Mahato said draft constitution proposed to put labour policies, industrial policies, agricultural policies under the concurrent lists but that should actually fall under the ambit of the provincial government.
He said the draft constitution did not ensure that provinces would have their own police.
Senior Advocate Shambhu Thapa said unless the names and boundaries of the federal units were fixed, lists of powers would not mean anything. “When you go through the draft constitution, you find that it is not a truly federal constitution,” Thapa said, adding, “In federalism, centre has fewer powers than the provinces, which I do not see in this draft.”