The new Nepali constitution completes its five years as the country battles an unprecedented health crisis. The national charter envisions a high level of coordination between federal, provincial, and local governments. But such coordination has been conspicuously absent in the fight against Covid-19. The constitution has empowered provincial and local governments to deal with such a crisis. But it is the District Administration Offices (DAOs), temporary coordinating bodies that are holdouts of the previous centralized state, that are at the frontline of the Covid-19 battle. The DAOs are still accountable to federal government and not to provincial and local governments, flouting the principles of federalism. Provincial interior ministries don’t even have the right to mobilize police to enforce prohibitory measures.
Similarly, as provincial and local governments lack adequate health infrastructure, they have to rely on the federal health ministry to meet their health needs.
But despite some shortcomings the country’s political course is by and large headed in the right direction, say constitutional experts. They point to the many achievements in constitution implementation.
Bright spots
Senior advocate and Nepali Congress National Assembly member Radheshyam Adhikari says local governments are gradually becoming stronger as they have started exercising their constitutional rights. “A lot remains to be done but we are also steadily strengthening the federal setup,” says Adhikari. Now, the three-tier federal structure is functioning and is on course to complete its first five years.
The constitution’s acceptability has increased, too. In the initial days of the constitution promulgation, the Madhes-based parties vowed to disown the national charter. But they later accepted it with reservations. They had initially boycotted the 2017 local elections held under the aegis of the new constitution but later took part in the provincial and federal elections, and now run a government in Province 2.
Similarly, they supported KP Sharma Oli’s candidacy for prime minister in 2018, with the hope that he would amend the charter. They withdrew their support after his government took no initiative to fulfill their demands. The Madhes-based parties have never given up their demand for amendment. Similarly, the international community, and India in particular, had initially expressed their reservations with the constitution. India repeatedly called on Nepal’s political parties to amend it—but no more. Now, there is full international support for effective implementation of Nepal’s federal setup outlined in the constitution.
Constitutional law expert Bipin Adhikari says, in totality, the process is working. “But it has failed to gain the expected momentum, nor has the constitution been fully implemented. This is also partly due to the failure of the opposition party to play an effective role,” says Adhikari. “In the initial years, there was good progress in formulation of laws and their implementation but the momentum has slackened,” he adds.
Fiscal decentralization: Still a mirage
A vital aspect of Nepal’s 2015 constitution is the shift of rights and financial resources from federal government to provincial and local governments, making Nepal the most decentralized country in South Asia. There has been transfer of various kinds of funds to provincial and local governments, which is good, but there are also obstacles hindering the process of effective decentralization.
The constitution envisioned the National Natural Resources and Fiscal Commission in order to transform the old unitary state into a federal one. The commission’s formation should thus have been the first priority of political parties. Yet it wasn’t until two years later, in 2017, that the National Natural Resources and Fiscal Commission Act was finalized, with the commission coming into being on 28 December 2017.
A year and a half after the commission’s formation, the federal government, on 21 March 2019, appointed Balananda Poudel as its chairman. But four other members of the commission are yet to be appointed. The government has also ignored the commission’s suggestions on distribution of economic resources to provincial and local governments.
“In the past five years, we have made a lot of progress in institutionalizing fiscal federalism but there are still many loopholes, both in law and in practice,” says fiscal federalism expert Khim Lal Devkota. He says a law to differentiate revenue rights of three governments as well to ensure equity in revenue distribution is desperately needed. Yet the commission’s report on distribution of resources among three governments has been ignored. The Federal Ministry of Finance still controls the commission’s functioning, which, again, goes against the principles of federalism.
Problematic law-making
The process of making laws to implement federalism remains incomplete. Radheshyam Adhikari says three areas of law-making need to be considered. First, many laws formulated to implement constitutionally-guaranteed fundamental rights of citizens don’t have mandatory bylaws.
Second, laws are yet to be formulated on some key areas. For instance, the parliament is yet to endorse the new Citizenship Act, in line with the new constitutional provisions on citizenship. The draft law is pending at the State Affairs and Good Governance Committee of the federal lower house as parties are yet agree on a viable citizenship model. Similarly, the Civil Servant Act has been gathering dust at the Parliament Secretariat.
In the absence of the Civil Service Act, provincial governments have been unable to set up their own public service commissions to recruit staffs, and still have to rely on the Federal Affairs and General Administration Ministry for staff and other resources. Both provincial and local governments are short on staff. Provincial governments want to recruit their own civil servants but can’t do so without relevant laws.
Third, some laws upend the principles of federalism. “The constitution has devolved rights but several subsequent laws retain the rights in the hands of central government,” says Adhikari. The laws on health and education, for example, suggest the federal government is trying to retain its control in these areas. But these sectors fall under the jurisdiction of the provincial and local governments.
Besides, several media-related Act are pending at the parliament secretariat, and so is a bill to amend the law on the Public Service Commission.
Marginalized voices
The Madhesi and Janajati constituencies having been asking for constitution amendment since its promulgation, marking the constitution day as a ‘black day’. Of late, some lawmakers affiliated with the Janata Samajbadi Party Nepal and Nepali Congress have pushed separate amendment bills to address the pending concerns of Madhesi people.
PM Oli has repeatedly said, without elaborating, that the national charter would be amended only ‘on the basis of necessity and relevance’. As the constitution is yet to complete even its first five-year election cycle, Oli and those close to him think, it is too early to make substantial changes in it.
Though NCP co-chair Pushpa Kamal Dahal is said to be positive on Madhesi demands, Prime Minister Oli is not. A recent Standing Committee meeting of the ruling party discussed the remaining aspects of peace and constitution drafting process without even touching the amendment topic.
Political analyst CK Lal says the main purpose of the new constitution was to secure the privileges of the old ruling elites and strip the rights of Madhesis and Janajatis, the rights the interim constitution 2007 had bestowed on them. “And both the purposes have been served,” he says.
Adds Vijay Kant Karna of the Center for Social Inclusion and Federalism, “the issues raised by Madhes, Janajati and other marginalized communities remain unaddressed”. Nor does he see any chances of amendment during the tenure of this federal parliament.
Inclusion still elusive
Among others, the new constitution ensures the inclusion of all castes and communities in state organs. But except in areas dictated by the law such as representation in parliament and political parties, the inclusion of Madhesi, Tharu, women, Dalit and marginalized communities remains dismal in state mechanisms. For instance, of the 22 cabinet ministers, there are only three women in the Oli-led federal government.
It’s the same story in the constitutional commissions and provincial cabinets. Not only women, representation of Madhesi, Dalit, Tharu, Janajati and other marginalized communities are dismal too.
The federal government has been most reluctant to empower the constitutional commissions as well. A law on the formation of the Tharu Commission was brought in 2017 and Bishnu Prasad Chaudhari was appointed chair after its formation in 2018. Other commissioners are yet to be appointed; nor has the commission been able to function independently. The fate of Madhes and Inclusive commissions is pretty much the same.
The constitution has envisaged Indigenous Nationalities Commission but it is yet to come into being. Dalit Commission and Women Commissions are functioning without the full quota of their office-bearers. “A key feature of the 2015 constitution is inclusive representation of marginalized community in state organs, which is still a distant dream. Just look at the current state of our constitutional commissions!” says analyst Karna.
No check and balance
The constitution provides for check and balance among judiciary, executive and legislature, but there have been systematic efforts to disturb this balance and to minimize the autonomy of constitutional commissions.
Another analyst Geja Sharma Wagle says PM Oli has shown his anti-federalism bias by concentrating all powers in his hands, and thereby poses a serious threat to the constitutional order. “Not only opposition parties, even his close aides such chief minister of Gandaki Province Prithvi Subba Gurung and that of Province 1 Sher Dhan Rai have objected to PM Oli’s anti-federal activities,” says Wagle.
Karna says there are examples of clear defiance of the constitutional order. “The constitution envisages the parliament’s oversight over the government. But in practice, just the opposite is taking place,” says Karna. For instance, the government passed the Constitutional Council Act allowing PM Oli to make key constitutional appointments on majority basis, without any opposition party representation.
Similarly, the government in July prorogued the parliament’s budget session without consulting speaker Agni Prasad Sapkota. There have also been attempts to curtail the rights of the National Human Rights Commission. “If you analyze the laws promulgated to implement the constitution, over 90 percent of them defy basic principles of federalism and checks and balance,” says Karna.
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Key dates
September 2015: A new constitution is promulgated. The Madhes Movement intensifies and India imposes economic blockade.
October 2015: KP Oli becomes the first prime minister to be elected under the new constitution.
January 2016: First amendment of the constitution to address the demands of Madhesis and Janajatis.
February 2016: India lifts blockade, and Madhes-based parties withdraw their movement.
July 2016: PM Oli resigns after the Maoists withdraw their support to his government.
August 2016: CPN (Maoist) Chairman Pushpa Kamal Dahal becomes prime minister.
June 2017: Nepali Congress President Sher Bahadur Deuba becomes prime minister.
May-Sept 2017: Three-phase local elections.
Nov-Dec 2017: Federal and provincial elections.
February 2018: KP Oli becomes prime minister again.
March 2018: Bidya Devi Bhandari is re-elected president under the new constitution.
September 2018: The first meeting of the seven chief ministers is held in Pokhara, supposedly to establish a common front against an uncooperative federal government.
December 2018: Prime Minister Oli holds first meeting of the Inter-state Council, a coordinating body of chief ministers.
March 2019: Madhes-based parties withdraw their support to government as PM Oli fails to amend the constitution.
November 2019: By-elections are held on November 30 for the 52 vacant positions at all three federal levels.
April 2020: Rastriya Janata Party Nepal and Samajbadi Party merge to form Janata Samajbadi Party Nepal.
June 2020: The new party registers its 9-point constitution amendment proposal.
