The distribution of powers is relatively tilted in favour of the strong centre
With the promulgation of the new constitution Nepal has begun a journey towards federal destination.
After the peace deal with the former Maoist insurgents and overthrow of monarchy the country was declared ‘a federal republic’ waiting its formalisation by the new constitution to be adopted by popularly elected Constituent Assembly.
President Ram Baran Yadav officially declared the promulgation of the ‘Constitution of the Federal Democratic Republic of Nepal’ on September 20, ending a decade-long complex political transition which had begun following Jana Andolan II and signing of the Peace Accord in 2006. An entry to a legitimate and sustainable constitutional political order was much waited course by all the people.
It took more than seven years to accomplish the task of constitution writing which has incorporated federalism as the principle structure of state. The first CA (2008-12) had failed to make a deal on the constitution due to conflict on provincial demarcation though it had accomplished most of the constitution-writing.
Federalism is agreed in principle by most parties in the Constituent Assembly but had been the major contentious issue and difficult to resolve by consensus. Especially the carving of provinces had become the most controversial and contested issue. Therefore, decision by vote was inevitable. The controversy remains even with the adoption of the constitution. This will continue in the days to come and determine the success of the constitution as well.
The new constitution has adopted a three-tier structure of the state — namely federal, provincial and local with enumerated lists, including concurrent ones, of competence for each level of governance. Seven provinces are carved out of current seventy-five administrative districts mostly keeping the district boundaries unaffected as mentioned in the Annex 4 of the constitution.
However, due to unacceptance of Madhes-centric political parties and violent agitation of the communities in Tarai, the major political parties – NC, UML and UCPN Maoist, who took the initiative to strike a deal on the constitution — have repeatedly assured to review the demarcation of the provinces even after the promulgation of the constitution and amend it to this effect.
Looking at the constitutional provisions Nepal fits well into the category of federal countries. Each level of government will have its own polity in conformity with the constitutional norms and principles. Provinces are autonomous and competent to make legislation and execution required for governance within the list of their competence. Looking at the uneven distribution of resources and unequal level of development the central government holds most revenue sources to be redistributed to the provinces on the recommendation of an independent Revenue Commission.
The central government can dissolve or suspend the provincial government and assembly for six months on the ground of national independence and territorial integrity which requires to be endorsed by the Parliament within 35 days. The residual power has been kept with the centre. The distribution of powers is thus relatively tilted in favour of the strong centre and may be termed as the centralised federalism. In this context the federal arrangement looks closer to the Indian model.
But it differs significantly too. Unlike in India, the provinces in most cases are not demarcated on linguistic or ethnic lines. In amending the constitution provinces of Nepal have greater role than the Indian states. The new constitution provides that provincial consent is required to amend the constitution if it affects the boundary and powers of the provinces. A double majority provision for amending the constitution, which is considered as a vital principle of the advanced federal system, is thus adopted.
The provinces of the new federation have closer affinity in terms of the size of population and territory. The population of the provinces ranges between five and 20 per cent of the total national population figure. And in size too it corroborates almost same ranging between seven and 20 per cent of the national territory. Most provinces resemble the national diversity both in territorial and population features. Five out of seven border both neighbours – India and China. Two have access only to India. However, the current level of development and future potentiality differ significantly.
But here one has to understand that the system of interdependence is a core value of federalism. Self-reliant province is hardly found in any federal system. Federalism evolves interdependence among its constituent units through equalisation and mutuality over the period and practices.
Nepal is now constitutionally set to a federal journey. Much depends on how does it practice and evolve a sound and efficient federal system.
There is nothing to be overwhelmed and satisfied with the current provisions of federalism. Much challenges are ahead to make it a workable reality. The proposed provinces are highly contested by some very significant population groups, such as Madhesis and Tharus in the south.
Hill ethnic response seems moderate and accommodated relatively. But the reaction in the districts of Tarai/Madhes seems sharp and resilient. Ever since the map of proposed provinces was made public the region is in violent protest. Many people ranging from two-year old child to agitators and police personnel have become casualties.
Despite repeated appeal for dialogue and negotiation the agitating groups are not yielding. Due to the sensitivity of the border and ethnic affinity India’s concern is also drawn which might provoke the hill elite to be more defensive. India had publicly appealed to the decision makers in Kathmandu to delay the constitution making process for a while and engage the agitating parties in dialogue and negotiations who did not heed the leaders of major political parties. Instead, the constitution was adopted on a fast track.
Without taking the agitating groups and parties into confidence establishing the provinces as per the constitution in particular is very difficult, almost impossible. Such a move is definite to invite use of force which can hardly help the constitution implementation task.
The federal dimension of the constitution is still in the process of taking shape. Much depends on its future evolution. Therefore, restraints and wisdom from all the concerned groups and parties are highly required at this critical juncture. Nepal cannot allow the newly declared constitution to be a failure or be marred by mutually defeating positions. Review and reorganisation of the provinces is a natural course for any emerging federal polity.
It is good that the new constitution has made the province a part of the annex and provides for final delimitation through a federal commission. Such flexibility could prove a safe side for all the concerned parties to make a further deal and harp on the success of the newly promulgated constitution.
A version of this article appears in print on September 21, 2015 of The Himalayan Times.