Constitutional dynamics of federalism Issues vs concepts


Most federal democracies have evolved from previous arrangements of the union of states or some form of provincial autonomy already in place. United States already had state level legislatures before the thirteen colonies united to

form the union. India in its colonial self was also

a union of provinces, however limited authority they might have had. Now, Nepal is being proposed to be altered radically from its current structure of a still evolving unitary state.

As such, the constitutional design would have enormous bearing on the nature of federalism Nepal will

embody. A successful federal arrangement must

have in its premise, the capacity of self-enforcement by the agreement that

yields the federation (the national constitution) and the concurrent general agreement among the leading political parties that are party to such arrangement (broad-based approval of the constitution).

When designing a federal system, many issues appear upfront. Firstly, there is tendency to centralize the governing structure when the issue of upholding the unity of the nation faces stark task. There is inclination towards assigning fewer direct elections of public offices. Second, there is attraction towards a stronger executive at the centre to cohere the nation around a central authority. Third, there is tendency to hold regional election at a different time than that of the national election to ensure more centrally administered elections. The overarching conceptual manifestation of these issues being the “N +1” interactions between a “national” government and “N” numbers of “sub-national” governments — that compete for resources and authority in the overlapping jurisdictions.

This pits the sub-national governments’ desire for “autonomy” against the overall “sovereignty” of the national government — hence, the national politics becomes increasingly insular to the local politics leading to a federation perennially on the lookout for a bargain with its constituent states to sustain the arrangement. Apparently, it is not counter-intuitive — for federations are perpetually on the negotiations for renewal of their compacts with their constituent states — which is a hallmark of democratic organization of federations in any case. However this paradigm has been applicable only in the case of federations which have evolved from a “national pre-constitutional” arrangement of some form of association or local autonomy already in place — like the case of United States and India argued above. Germany and Switzerland, the other two successful federations also evolved from local autonomy to a certain degree already in place (barring the inter-war period in Germany’s case).

In the case of a unitary state -without previous experience in local autonomy an outright re-structuring into a federation is a daunting task — both for the risk it may lead to disintegration and chaos, and also for the kind of federation it may lead to: either a very weak federation (and a governance nightmare) or a more centralized and a nominal federation (still a governance nightmare for the renewed opposition it attracts from the sub-national politics). Both options are undesirable for both the skeptics of federalism — who see risk of national disintegration; and the supporter — who want a successful federalization of the state.

This calls for a more integrative federation where there is a compact of local autonomy with the national sovereignty vested in the national government — the national politics becoming an integral part of the local politics, not a mere extension or by-product of the local politics. The local electioneering process must be independent albeit strongly tied to the national electioneering process where the national leadership can only emerge from the local politics throughout the nation. Inversing this relationship, the local leadership must have a strong backing of the national leadership. In essence, it calls for a nationwide popular election of national executive - where the support of each of the constituent local politics is invested in the national government. And the local executive must factor in backing of national leadership in the local electioneering process — so that it instills confidence in the local constituents of its governability. In sum, there is a more holistic legitimacy of both the local and national executives. Similar ties must be established between the local legislative and the national one — where the local legislative career of politicians must act as a stepping stone for their national legislative career.

This ideal type paradigm necessitates a polity with political parties of national character albeit strongly enmeshed in the local politics. It helps slowly erase the sutures of ethno-lingual identities that appear agape at the onset of federalization based on identities. If the goal is to create a viable and governable federation then the focus ought to be in the sustenance of such federation — not on the immediate or medium term tactical impulsion of diffusing dissent of ethno-lingual fault lines. An integrative federation absorbs more successfully such dissent with identity groups finding national scope for legitimacy.