The constitutional spirit of inter-government cooperation, coordination and dialogue will help remove the friction between governments and confusion on exercising the concurrent powers
Nepal is the most recent member of the international club of the ‘federal governance system’, which covers 40 per cent of the world’s population. The Constitution of Nepal, enacted in 2015, provides for a three-tiered structure – federal, provincial and local government. An important feature of the constitution is that it has explicitly recognised the local level as a constituent unit of the state, which is generally not the case in federations elsewhere. The local level government is thus, as an independent and autonomous sphere, endowed with executive, legislative and quasi-judicial power.
After the election of all levels of government, federalism is gradually being institutionalised in the country. But the local government is facing problems of laws, infrastructure for basic service delivery and staff. But the federal government is seen to be trying to weaken the provincial government and keeping the exclusive power of the provincial government with Singha Durbar. The federal government is making laws using the existing powers without holding consultation with the provincial and local governments. Federal-level bureaucrats are drafting laws and plans with a unitary mindset.
The local levels have the authority to formulate laws on their own. It is not clear how any conflict with the laws formulated by the provincial or federal government will be resolved. As per the Civil Servants Adjustment Act, majority of the civil servants belong to the central government. Nepal Police and Provincial Police Bill are also against the spirit of federalism. The federal government has curtailed the rights of provincial governments by appointing chief secretaries and secretaries in the provincial governments on its own. As the bill states that the CDOs are not under the internal security ministers of the provinces, they can never be accountable to the provincial governments. Similarly, the National Education Bill is against the constitutional right of the local government to manage school education.
Likewise, the Local Governance Operation Act does not talk about local roads, agricultural and rural roads, and renewable energy. The Act also does not talk about revenue sharing. The central government is revising and amending the old acts without consulting the local and provincial governments.
Due to the confusion in the laws and poor coordination among the governments, many development works have been hampered. The provincial government did not consult the local governments while preparing the budget and implementing projects. There are already signs that this will be a three-way conflict for natural resources. For example, who has jurisdiction over the natural resources and environment management of the Annapurna Conservation Area is not clear. Similarly, the federal government has initiated the process of rehabilitating the district offices that look after education, health, agriculture, forest, land, livestock, industry and cooperatives.
The main thrust of the new constitution is cooperation, co-existence and coordination among the three levels of governments. All levels of the government are constitutionally sovereign and powerful, but there should be harmonious and interdependent relationship. As per the constitution, there is a 26-member Inter-government Council. One of its important responsibilities is to find a solution to the debates and conflicts arising between the centre and province, and between provinces. There is another mechanism named Province Coordination Council at each provincial level, which coordinates with the province and local governments in the law-making process, integrated development and disputes. Similarly, intergovernmental fiscal transfer-related National Natural Resources and Fiscal Commission (NNRFC) is an instrument to remove or minimise the fiscal imbalance of the layers of government. The Provincial Assembly resolves conflict between the province and local government and between local governments.
The elected representatives should have common understanding of the exclusive and concurrent rights of the federal, provincial and local governments. The federal system is not free from conflicts, and a dialogue forum is established to settle disputes. The dialogue removes the confusions about the powers and the process to use the exclusive and concurrent powers. This helps build trust among the three levels of government.
There is a separate constitutional bench within the Supreme Court. This constitutional body resolves disputes on power-sharing between the federal, provincial and local governments. But the government should stay away from the constitutional bench. Debate and conflict should be settled through dialogue first. Representatives from all the central, provincial and local levels meet and talk about their issues in this dialogue forum. Litigation doesn’t give solutions all the time. Nepal needs to enforce more than 170 laws to implement the constitution. The old acts also need to be amended. Before bills are drafted or acts amended, consultation is needed among different levels of governments. The constitutional spirit of inter-government cooperation, coordination and dialogue will help remove the inter-government friction and confusion on exercising the concurrent powers.
A version of this article appears in print on April 11, 2019 of The Himalayan Times.