Draft constitution: Intergovernmental relationships
In federal arrangement different types of disputes arise that need to be resolved on win-win basis as the adversarial methods are fraught with risks to worsen the intergovernmental relationship and collaboration
The elaborate space given to local government in the draft new federal constitution deserves appreciation. This not only accords constitutional security to the local democratic institutions but also mandates their competencies through a separate list. The relationships, according to the draft constitution the three layers of the government are intended to be based upon the principles of distinctiveness, interdependence and interrelationships. As far as interdependence and interrelationships are concerned some key universal principles are generally defined and established. They include such as each tier must respect the constitutional status, institutions, powers and functions of government in other spheres and tiers, exercise their powers and perform their functions in a manner that does not encroach on geographical, functional or institutional integrity of the government in other layers and spheres. Articles from 230 to 236 of the draft constitution deal with the areas of interrelationships among the federal, provincial and local layers of the government. Article 231 of the constitution defines the inter-governmental level relationships among the three tiers of the government. It mentions that the federal (national) government can legislate on matters of national importance and direct the provincial governments on the subjects concerning inter-provincial coordination and collaboration.
The constitutional provision makes it obligatory to the provincial governments to comply with and adhere to the directives issued by the national government. The federal government has been endowed with punitive and sanctioning power like suspending and sacking of the provincial government if the latter is involved in the actions that create jeopardy or tend to undermine the national unity and territorial integrity, independence and sovereignty of the country. When the provincial legislature remains dismissed, in this case the central rule continues in the province.
However, such an act of the national government needs to be endorsed and ratified by the federal parliament. Moreover, the draft constitution provides that election for the dissolved provincial legislature should be held within six months following the dismissal of the provincial government. The political relationship between national government and provincial governments is thus very delicate and is based on the asymmetrical power relationships according to the provision of the draft constitution. The central government often times is found in federal countries like India and Brazil sacking the provincial governments on flimsy and ill motivated political grounds that breeds severe tensions and conflicts in the centre-state relationships. Several such politically motivated disputes have been filed in the courts for adjudication which not only strain the judiciary but pulls the judicial institution into political controversies.
Article 232 of the constitution deals with relationship between provinces stipulating that the provincial governments should cooperate necessarily with one another to maintain law and order, execute and enforce administrative orders and judicial decisions. Moreover, the draft constitution makes it incumbent upon the provincial governments to share information on matters of common and shared interest, hold consultations and coordination on the decisions and legislations and promote mutual cooperation and relationship. Article 234 of the constitution entrusts the federal parliament to enact laws to facilitate coordination between intergovernmental tiers namely local, provincial and national. The question of intergovernmental relationship is complex in federal framework as all the institutional actors cannot be guaranteed to adhere to the set of ground rules embodied in the constitution and laws. There is a need to deal with deviant and recalcitrant behaviors properly and effectively. It is, therefore, necessary to create appropriate mechanism and processes for ensuring effective intergovernmental coordination. In some federal countries areas of potential conflict among different layers of the government are minimized and dealt with through interactive meetings of ministers and officials. In Article 233 of the draft constitution of Nepal provision has been made for inter governmental council headed by the prime minister.
Ultimately there is a provision for formation of the constitutional court to adjudicate upon the legal and disputes among the governments and so on. These constitutional mechanisms are proposed to resolve political, resource sharing related disputes and legal disputes among and between the different layers of the government. In federal arrangement different types of disputes arise that need to be resolved on win-win basis as the adversarial methods are fraught with risks to worsen the intergovernmental relationship and collaboration. There is a need for the resort of problem solving collaborative methods like negotiation, mediation and conciliation to resolve disputes and conflicts so that interests are mutualized and the interests of the parties concerned are fulfilled and satisfied. This should be the spirit of the cooperative federal governance to foster the values and commitment of mutual collaboration. Not only formal mechanism but informal mechanism should be resorted to resolve issues through mutual dialogues and negotiation.