Federalism in Nepal

Ms. Isabelle Duquesne

Nepal Expert, France

Federalism is a government system in which sovereignty is constitutionally divided between a central governing authority and constituent political units (states or provinces). The power to govern is shared between the central or national government and the governments of states or provinces. All regions have an equal relationship to the center and to each other. There are different types of federations (Germany, India, Australia and Brazil, to cite a few, all differ slightly in their arrangement). Canada and Switzerland are confederations. Broadly-speaking, the difference between a confederation and a federation is that in the former, a state is free to choose to join the federation (possibly fitting for Nepal).

Some voices point out that Nepal’s economy is too weak to afford a two-tier federal system and that the inequality between the many remote or poor regions and the few concentrated richer ones (Kathmandu Valley, agglomerations on the border to India) will exacerbate resentments and fuel conflicts. Nonetheless, Nepal seems to opt for federalism, the type of which has been under discussion for the last four years. Different models are proposed by the political parties and other participating groups and individuals. Some are based on broad regionalism, others on geographic logic, others still on territories associated with indigenous nationalities. Many argue for consociation, which means political power- sharing between ethnic groups. Different scholars, social advocates and political parties argue on the logic of their proposals (economic, spatial, historical), or with emotional attachment to their preference (positioning of their group). Comments abound that legislators have spent more time arguing for positions than setting a consensus-driven national roadmap. This is seen as the reason for the one-year delay in writing the constitution.

Among the several options proposed, we observe three broad differentiations: I) federalism based on ethnicity; 2) allowing for fully autonomous regions such as Limbuwan, claimed by the Limbu people; 3) administrative federalism. NEF1N, since its inception in 1990, defends the agenda of self-determination and ethnic autonomy for all nationalities. Krishna Bhattachan has long advocated for an administration that respects pluralism and where minorities have a meaningful participation at local and national levels. He proposes to ask each group of nationalities whether they want to be autonomous as a separate territorial region (self- determination ) or not. In this case, there could be administrative federalism, ethnic federalism and autonomous regions- at the same time.

In view of the heterogeneity of both the population groups and their settlement patterns across the territory, a high sensitivity for diversity is required. Yash Ghai argues that federalism should be tied up with autonomy (ethnic, linguistic, regional) rather than the classical format where all regions have equal powers. Both symmetrical (sub-national governments with similar powers) and asymmetrical (some units having more autonomy) seems a credible scenario in view of the varied claims being brought to the debate. Ghai gives three principal devices that may act as levers in policy to alleviate tensions: I) communal representation; 2) asymmetrical federalism; and 3) cultural autonomy.

Mahendra Lawoti discusses self-determination and suggests a tentative list of groups that may benefit from group sub-autonomy territorial regions: Limbu, Khambu (Rai), Tamang, Newar, Than, Magar, Gurung, Sherpa, Maithili, Abadhi, Bhojpuri, Muslim, Khasa, Thakali, Bhote, Sunwar and others, non-territorial federal groups: Dalits, women, Meche, Dhimal, Chepang, Ghartil, Bhujel, Thami, Yakkha, Kumal, Majhi and others.

The choice of structures within which cultures unfold helps to determine whether ethno-nationalism can be a strength or a threat. Decentralization to nationalities is an ancient manner of governing diversity and could also be a post-modem form of local governance today. Yet in an age of global citizenship, increasing mobility and exchange, it matters that empowerment be managed in an inclusive and constructive manner for those that are in the minority, for every nationality actually is the largest minority almost everywhere in Nepal. Differences of nationalities should not be used as divisive instruments nor manipulated for the sake of exclusive interests, which would amount to structural violence and once again lead to direct violence. As envisaged in previous writings: ‘It is tempting to project an idealistic picture of a harmonious diversity, high cultural awareness and federal plans encapsulated in a lateral, egalitarian and simplistic formula, like a United Nations of the Nepali Nationalities. There would be 103 nationalities represented in the legislative assembly (times two: one woman and one man for each nationality, elected by their own people). As women no longer will be willing to fit in a quota system but naturally access the legitimate representation of half of humanity in all affairs, Nepal would be leading in gender equalization by constitutionally having a woman and a man to represent all nationalities.

The political parties would also be elected in their respective constituencies, likewise a man and a woman. The third section of legislators would be a group of experts on the crucial sectors of Nepal (water, infrastructure, education, business, ecology, labor, tourism, spirituality, science, technology, etc.), some 30 experts, independent of political parties, selected in a process of competition by a panel on the basis of expertise, proven records, experience in Nepal and abroad, and capacity to make decisions on behalf of the Nepali nation as non-partisan in their field. In this way, the social groups, the consensus-able political parties and the experts would run the daily affairs of the state centrally and support implementation in the federal regions where nationalities enjoy hill recognition.

As Lawoti rightly points out, “Nepal is not small.” And 29 million people are not few. Nepal can win this challenge as it seeks more deeply its own multi-faceted identity and makes use of best practices found in other parts of the world.

The federal proposal, however, is not supported by all. Opposing voices hold the idea as having been instrumentalized by the Maoists during the People’s War as an enticement for political wins. They warn of new lines of internal separation that could deeply damage the nation. Constitutional lawyer Bhimarjun Acharya, for example, saw little chance (in 2009) for the sustainability of federalism in view of the then struggles in barely coping with the affairs of state and nation. Many people, also in the Nepali Diaspora, share similar concerns.

Under Article 78 of the Interim Constitution, the CA (now already a dead one: Ed) is the master of its own procedure in all aspects of its jurisdiction (even the executive has no power to tell it what its agenda should be). Acharya already had deplored the previous year that these rules had been insufficiently abided by, due to the overwhelming party-politicization of the CA’s organic structures such as the plenary assembly, the steering committee, the constitutional advisory unit, other committees and sub-committees.

During our last interview before his death, ex-justice Laxman Aryal went as far as to say that “it was the wrong 26 people who had been chosen to write the constitution; the right individuals for such a function should not be suggested by political parties who do not know about mediation.” Aryal at the time did not mean the individual personalities as such but the fact that a spirit that is tied to party agenda was not conducive to consensus and mediation, hence could not yet conceive an enlightened framework for the new democratic republic. Laxman Aryal was a convinced supporter of mediation practices and co-founded the Mediation Center Melmilap.

Challenges of State-building:

State-building in Nepal depends on successful democratization and the fulfillment of the CPA. Yet these tasks are hampered by several contradictions and insufficiencies, three of which are highlighted by Bhatta:

1. The state is struggling to maintain a common national identity in the midst of recent fragmentation along ethnic, linguistic, regional and religious lines. Such politicized behavior, in contrast to the former syncretism and a peaceful patchwork of diverse folk, is making it difficult for the Nepali people to find a new basis together.

2. The state institutions remain insufficiently trained or prepared to take on the transformative role of creating structures that truly deliver state services, for lack of finance and of knowledge, but also of will. One may assume however, that it is only a matter of time for the mechanisms of governance to gradually reach into the depths of the countryside. Caught in a vacuum, regional administrators await the final federative architecture and so four years have gone by without any change at village or district level.

3. Paradoxically, the “state-building is [too] preoccupied with political, social, cultural, regional, economic, religious and external factors” to present an authoritative strategy that concerns and involves all Nepalese people.’

The difficulty of state-building is exacerbated by the view that the efforts made to learn and apply governance (by many Nepali civil servants and managers of for-profit and not-for-profit organizations) are undermined by opposing intentions to take state power and lead the country in a specific political direction. The Maoists are generally considered to be a force motivated by the latter. On 5 November 2009, the Himalayan limes published, after an interview with Maoist leader Baburam Bhattarai, an article entitled “What do the Maoists really want?” Here an excerpt:

‘In order to reach a resolution, the Maoists need to dispel the confusion over their real political intentions. Major parties have cast serious doubts about the Maoists’ commitment to multiparty democracy and fear an authoritarian regime. Many have inferred that the Maoists’ real intention is to capture state power through revolution. [...] But allaying these apprehensions, Dr Bhattarai said that the party has realized its weakness as its inability to send out a uniform message to the public and party cadres. [...} “We want to put to rest this prevailing confusion. Revolution is not our official line.” The Maoists are also working towards the formation of a unity government since they realized that exclusion of the Nepali Congress was a mistake. Though they have staked claim on the right to lead the new government, they may not insist on it).

Dev Raj Dahal, during an interview at the Friedrich-Ebert-Stiftung office, distributed the responsibility among all the parties:

Faced with Maoist threat of revolt and National Congress’s search for a national government, the coalition led by CPN-UML (UML was ruling Nepal then: Ed) feels insecure to take any national initiative. Principles, processes and institutional mechanisms are subordinated to the imperative of coalition principles. The dilemma between dissolution of feudal land system versus recognition of property rights, provision of social security versus weak tax base, commitment to democracy versus old political culture of patronage, rights- based discourse versus militarization of society, etc., exposes the manifest gap between promise and practice of Nepalese political leadership.

Furthermore, there is distrust against communists generally as regards the democratic agenda. In view of historic development in Cambodia, Laos, Vietnam, North Korea and China, to speak of the Asian sphere alone, only the convinced Maoists adhere to a possible People’s Government. Many Nepali voters who gave the Maoists their vote on election day meant to bring them into the democratic dialogue and stop them from returning to the jungle. These electors, however, did not want a communist “People’s Parliament” but a multiparty system.

The state-building project requires at least five inter-related areas of concentration:

1. Capacity-building and institutionalizing of the high-level political mechanisms in view of constitution-making.

2. Defining the nature of federalism and the political, economic and social mechanisms of “state to center” and “state to state” systems.

3. Implementing and monitoring the multi-track peace process through the human rights code of conduct on the one hand and the application of governance on the other.

4. Joining of stakeholders in (re)building projects with empowering inclusion of conflict victims.

5. Implementing local peace committees for social healing and conflict mediation while educating about federalism.

In view of the fact that citizens despair at the continuation of violence and the deadlock in political circles, a bottom-up approach may be the appropriate strategy of the hour. The people of Nepal may move ahead with the fulfillment of the five points cited above, to the best of their abilities and means, unabated and bypassing manifestations of inertia or power struggles. Maybe then the leaders will unite. As Gandhi once said, “There go my people. I must follow them, because I am their leader.”

From author’s book with permission: Nepal: Zone of Peace. Thanks: Chief Ed. 

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