​​Nepal’s long transition to federalism raises question about its relevance

Eight years after Nepal issued a new constitution with federalism and republicanism as its guiding principles, a disquieting note of discontent is reverberating both in political and public spheres. Calls for dismantling provincial frameworks in the name of reducing economic burden are growing louder by the day. Joining this chorus are the leaders of Nepali Congress, CPN-UML, and CPN (Maoist Center), the three political behemoths of Nepal who spearheaded the constitution drafting process. Publicly, they pledge allegiance to federalism, but their actions paint a starkly contrasting picture.

The cumbersome and languid pace of lawmaking serves as damning evidence of the parties' tepid commitment to the federal structure envisioned by the 2015 constitution. Nearly a decade since the promulgation of the constitution, and yet the legal groundwork for its implementation remains woefully incomplete.

The first federal parliamentary elections were held in Dec 2017, which gave Nepal the most powerful government to date in the form of Nepal Communist Party (NCP), a party born out of a merger between UML and Maoist Center. The government and parliament had a significant task at hand: implementing the constitution. Alas, the journey of the erstwhile NCP government, led by Prime Minister KP Sharma Oli, was fraught with one controversy after another.

Oli’s ugly power-sharing dispute with his partner at the time, incumbent Prime Minister Pushpa Kamal Dahal of Maois Center, and his increasingly authoritative actions dominated much of his tenure as the leader of Nepal. The power wrangling between Oli and Dahal came to the head when the former tried to dissolve the parliament, not once but twice—and much to the frustration and dismay of Nepali citizens. The NCP inevitably underwent a split, Oli was ousted, and a new coalition government was formed, with Nepali Congress and Maoist Center as primary partners.   

The coalition, headed by Sher Bahadur Deuba of Congress, conducted the  second parliamentary elections in Dec 2022, and the NC, UML and Maoists polled first, second and third respectively. Soon after the election results were out, Nepal once again plunged into a political crisis. It was the turn of Deuba and Dahal to get caught in a power-sharing tussle this time. The political spectacle saw the old enemies—Dahal and Oli—come together, fall out once again over the presidential election, and eventual rapprochement between Dahal and Deuba.         

 

It’s been little over nine months after the second parliamentary elections, and Nepal has seen plenty of political drama, full of intrigue and farce, but the nation still grapples with a legislative void.

Every government since 2015 has shown a conspicuous lack of attention to crafting the essential laws needed for the constitution's execution. This lethargy isn't exclusive to the executive; even the federal parliament—both the House of Representatives and the National Assembly—exhibits a troubling inertia when it comes to formulating indispensable legislation. The absence of crucial laws has spawned a litany of challenges for provincial governments, casting a long shadow over the very relevance of federalism itself.

A recent study conducted by a National Assembly committee unequivocally affirms that both the government and the parliament have fallen far short in taking the necessary steps to draft laws vital for the successful implementation of federalism. While some efforts have been made, they are plagued by a snail-like pace, inadequacy, and incompleteness. The repercussions of this legislative vacuum are acutely felt, with the entire bureaucracy rendered obsolete due to the absence of a Federal Civil Servant Act. Civil servants are hesitant to serve in subnational government agencies.

Furthermore, critical laws pertaining to the health and education sectors remain in limbo. As per the constitution's mandate, the federal parliament should have enacted a total of 151 new laws, yet a staggering 112 of them remain pending. Among these, the Federal Civil Servant Act, Education Act, Federal Police Act, Public Health Act, and legal assistance-related laws demand immediate attention for the effective functioning of federalism. Regrettably, provincial assemblies and local governments have also failed to step up and fulfill their legislative responsibilities.

In Monday’s meeting, Chairman of the National Assembly Ganesh Prasad Timalsina issued a perfunctory direction to the government to expedite the formulation of laws essential for the successful implementation of federalism. 

 

Constitutional expert and former National Assembly member, Radheshyam Adhikari, says Nepal will never become a full-fledged federal country unless the political parties and their leaders commit themselves to working as per the spirit of the 2015 constitution.

He says the primary impediment to the sluggish law-making process lies in the politicians' lack of clarity or willingness to adhere to the constitution's clear directives. Although the constitution confers rights and resources to provinces and local governments, politicians appear reluctant to embrace these provisions, mirroring the stance of civil servants who resist relocating to the local level in a bid to retain central control.

Experts warn that failure to implement the constitution could embolden anti-federal voices. Provincial governments, in particular, voice their displeasure at the ongoing delays. Beyond merely crafting new laws, they advocate for swift amendments to existing legislation to address the numerous ambiguities hindering effective governance.

The parliament’s inability to devote adequate time to the law-making process, coupled with intra-party disagreements on the content of bills, has exacerbated the situation.

In the past nine months, the parliament has managed to pass just one law related to loan sharks, which is a stark testament to Nepal’s glacial pace of legislative progress.

 

Suresh Ale Magar, NA member: Many laws, including those related to granting rights to women, Janajati and marginalized communities, are yet to be formulated even after eight years. I draw the attention of Prime Minister Pushpa Kamal Dahal and his government to take the report of the National Assembly seriously and take necessary measures to formulate the crucial laws.

Bhairab Sundar Shrestha, NA member: Successive governments have missed the deadlines to pass important legislations. The federal government needs to get down to business and formulate 39 crucial laws at the earliest. We need human resources so that the provincial and local government can function smoothly, and for that we need to formulate necessary laws. 

Anita Devkota, NA Member:  Lack of laws means, we are denying rights to the people that have been guaranteed by the constitution. All laws related to fundamental rights should have been formulated within the three years of constitution promulgation. In the absence of these laws, many people, including landless and marginalized communities, have been deprived of their rights.

Prime minister calls for wider accountability to implement constitution

Prime Minister Pushpa Kamal Dahal has said that his government has prioritized the enactments of remaining laws as demanded by the constitution. In a meeting of the National Assembly on Tuesday, Dahal spoke about the study report on laws pending formulation as envisioned by the constitution. “The government is proactive in building a legal structure required to establish a rule of law by institutionalizing democratic republic,” he said. He added that it was the responsibility of the government, parliament and stakeholders to make citizens experience good governance, development and prosperity through the effective enforcement of the constitution.
The prime minister also informed the upper house that since the promulgation of the constitution in 2015, 191 Acts (new and revised) have been formulated while specific attention has been given for the formulation of legislations to implement the fundamental rights.  

The government is also preparing to present the Federal Civil Service Bill and Education Bill, among others, to the Federal Parliament in the near future. 

Prime Minister Dahal apprised the National Assembly that the government was working on bills that turned inactive due to the expiry of the previous term of parliament. 

“Regarding the citizenship law as pointed out in the report of the Legislative Management Committee, the Nepal Citizenship (First Amendment) Act, 2079 BS, which was issued after being certificated on 21 May, 2023, has paved the way for the implementation of the constitutional right relating to citizenship,” he said. 

“The government is also actively working to prepare and present a separate bill related to free legal aid as per the policy adopted by the constitution and the government. The process to amend the Sexual Harassment at Workplace (Elimination) Act, 2071 BS has also started.”

Prime Minister Dahal also informed the upper house that the National Land Commission is working to implement the constitutional provision to provide land to the landless squatters. He added that the bills including the Media Council Bill, the Mass Communications Bill and the Information Technology Bill are also being prepared. 

To ensure job opportunities to citizens, the prime minister said that the Right to Employment Act, 2075 is being implemented, and the government has launched various employment programs including the Prime Minister Employment Program. 

“The study carried out by the Legislative Management Committee, and suggestions and recommendations based on the study would be an important guideline to the government to make laws,” said Prime Minister Dahal. 

‘Delay in devolution of power as per constitution questions federalism’

People’s representatives from Madhes province have said federalism is under question because the federal government has refused to devolve power to provinces as per constitution.
During an interactive seminar in Janakpur, Chief Minister of Madhes Saroj Kumar Yadav pointed out the need to wipe out ambiguity in law so that jurisdiction of all three tiers of government would be clear. 

“Although the three tiers of government are supposed to work in harmony, the federal government has not empowered the provinces, which has hindered the overall growth and development,” said Chief Minister Yadav, emphasizing the need to broaden the authorities of provinces as envisioned by the constitution.   

Speaker of Madhes provincial assembly, Ramchandra Mandal said expected results could not be delivered because the federal government and political parties are still plagued with a centralized mindset. 

“It’s been eight years since we got a new constitution, yet the provincial and local governments are toothless in many aspects. Rights and resources have not been distributed in a just manner,” he said.

Provincial Minister for Physical Infrastructure Development Krishna Prasad Yadav argued that there was no point in discussing responsibilities of three tiers of government when the center has refused to empower subnational governments. 

“Madhes province is suffering the most, as it was not allocated adequate resources including budget based on population, and human development index,” he claimed. 

Other speakers including the chair of Municipality Association, Pradip Yadav said the provincial governments cannot work independently and effectively as long as the federal government continues to deny them the authority to control and regulate their economy and create their own security apparatus.

Secretary at the Office of the Prime Minister and Council of Minister, Krishna Hari Puskar, said that the federal government was making necessary laws to empower the provinces in the spirit of federalism.
The program was organized by the secretariat of the National Coordination Council, Office of the Prime Minister and Council of Ministers to collect feedback from the provincial government.