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Federalism: An unwanted child of the Charter

Federalism: An unwanted child of the Charter

It is believed that a nation is reborn by adopting a new constitution. And it really became true with the adoption of a new constitution in Nepal when its Constituent Assembly-2 declared it a secular, inclusive, federal, democratic republic on 20 Sept 2015. These are the cardinal features of the constitution. 

Looking back, we find that the three words, ‘democratic federal system’ were incorporated in the Interim Constitution (Article 38) in addition to the terms ‘inclusive and restructured’ through its first amendment on 13 April 2007. It has its basis in the Comprehensive Peace Accord (Clause 8.2) signed on 21 Nov 2006 by the then PM GP Koirala and the Maoist Chief PK  Dahal, which provides for making a ‘a high-level  Recommendation Commission for the Restructuring of the State.’ 

The Maoists were calling for restructuring of the state, however, it was not mentioned in the 12-point agreement signed on 21 Nov 2005, in India by the Seven-Party Alliance and the Maoists. Perhaps, the most pressing need at that time was to throw out of power the absolute monarchy and other demands were considered secondary.

The entire country celebrated as usual the eighth ‘Constitution Day’ on Sept 20, save the Madhes-based parties, which celebrated the day as a ‘Black Day’ for them, as  more than 100 Madhesi youths had sacrificed their lives for incorporating federalism with one Madhes Pradesh for 20 districts in the Tarai region in the forthcoming constitution. However, the constitution adopted provides for seven provinces out of which a province consisting of only eight districts was carved out of 12 districts. 

The other 12 districts of the Tarai were made part of the five provinces.

It was the thorny issue of federalism that failed Constituent Assembly-1 as consensus was impossible among the parties on the one hand and the strength of the Maoists and the Madhes-based parties in the CA was 

significant which could be ignored, on the other. 

In the CA-2, the number of representatives of both the parties, the Maoists and the Madhesi outfits, was reduced; it was possible for the Nepali Congress and the CPN-UML to adopt the constitution with support from some other parties. And realizing the position, the Maoist party also supported the NC and the UML’s proposals and gave up its demand for making identity and resources as the bases 

of federalism.

It was obvious that while adopting the constitution most of the top leaders of all major parties apprehended that federalism would weaken the nation, as it would affect the existing central control over those areas which would be brought under different provinces. 

They also apprehended that since local populations will have control over their areas, they may go for division/bifurcation of the territories. 

Their main concern was regarding their control of the bureaucracy, the permanent government.  If power was divided, their complete say over it would decrease, if not end.

These are the reasons that even after the passing of eight years and three tiers of government duly elected, they are not allowed to function as per powers delivered by the constitution. Important federal laws are not framed as yet to enable them to use their rights to govern the administration and discharge day-to-day duties. 

It seems that many laws, including those related to the civil and police administrations, have not been enacted by the center deliberately to prove that the provincial tier of governance is superfluous and redundant. It is evident from the facts that the frequent transfers and postings of high officials hinder the government’s functioning seriously, as there have been frequent complaints to the center. There are cases filed by the provincial governments in the Supreme Court for the protection of their constitutional rights.

It can be assumed that before taking the decision for carving out seven provinces, they made the local tiers of government more powerful and kept it outside of the overall supervision and control of the provinces to make the second tier weak and worthless. 

The constitution has provided for three tiers of government—central, provincial and local. 

However, the central government has made it a four-tier government by adding one more tier by way of district government, which is controlled by the central government. 

Chief district officers are in charge of peace and security of the districts. It has been made so that the central government will prevail ultimately over provincial and local governments. There are many more obstacles created by the center to prove that federalism is only an unwanted child of the constitution, which is not allowed to grow properly so that its life gets shortened for want of nutritious food to survive by not providing sufficient support.