Defending federal democracy

The constitution of Nepal guarantees equitable participation of different communities in state mechanisms. Its preamble envisages an equitable society based on proportional, inclusive, and participatory values in order to combat prejudice, and to advance social justice, equality, and diversity.

The federal system of governance, pluralism, egalitarianism, rule of law, inclusivity, and good governance are the basic tenets of the 2015 constitution. The goal is to establish “sustainable peace, good governance, development, and prosperity through the federal democratic republican system of governance,” as stated in the final section of the preamble. 

 

The federal structure was adopted to ensure that the provinces, while remaining independent in their jurisdictions, combine themselves for the national purpose. The administrative powers are divided between the center and province; and both are supreme in their respective areas. In a federal democracy, there appears to be “effective innovation within the system both at the federal and state level” argues John Warhurst, professor of political science at Australian National University.

 

 In a paper presented at International Conference on Federalism, Devolution of Power and Inclusive Democracy in Nepal and Asia organized by Kathmandu University School of Law in Kathmandu on Nov 22-23, Prof Warhurst argues, “The federal system has survived wars, pandemics and natural disasters with mixed success. Its operations have evolved to meet new circumstances and the aspirations of different political leaders and political movements and parties.” 

 

He is of the view that the benefits of federalism could be seen in its flexibility to deal with regional differences, including economic and financial disparities and to respond to local cultural differences and varying needs. In Nepal’s case, Madhesh is considered as the flagbearer of federalism, as the people and the Madhes-based parties have been the most vocal advocates for the strengthening of the provincial system. 

 

The Madhesi community, one of the underprivileged groups, believed that federalism could be the best alternative to achieve self- rule at the province and shared rule at the center. The federal practices could be meaningful in many respects. It could help us to champion the regional or local expectations and aspirations. We should enact laws and policies in furtherance of the local demands and culture. The center should coordinate and cooperate with the provinces as our constitution has been modeled on the principle of cooperation, coexistence and coordination, as enunciated under Article 232. 

 

Federal features

 

Article 56 of the constitution envisages that the federation, provinces, and local governments are the political entities that exercise the sovereign power. The charter has empowered all the three tiers of the government to legislate in line with the matters enumerated under the Schedules. Our constitution provisions that the laws enacted within the jurisdiction of Federal List would prevail over the laws framed under concurrent or Provincial List. And, the laws of Concurrent List would prevail over the Provincial List. At this juncture, the constitutional mandates of India and Nepal stand on the same page.

 

The supremacy of the constitution is yet another essential element of federalism. Article 1 declares the charter as the fundamental law of the land which itself has a rationale that the constitution is supreme in the state. Laws that are inconsistent with the constitution shall, to the extent of such inconsistency, be void. The independence of judiciary and bicameralism further supplement the notion of federalism. In the federal system of governance, the power is divided between the national government and provincial governments. 

 

The federal system of the United States has not been fully adopted even in India because the American model may not have suited India. Further, India had followed a more or less Canadian system rather than the United States of America’s system of federation. In the United States, the residuary powers are reserved to the states by the constitution. While in India, the residuary powers are given to the center under Article 248 because India has followed here the Canadian system, vesting the residuary powers in the union. Much like India, the residual power rests with the federation in Nepal (Article 58, Constitution of Nepal).

 

Blame game

 

Some argue that federalism has become a costly affair. Some say corruption is at its zenith due to federal structure. In fact, none of the systems of governance could give you a magic stick to give solutions to every problem. A system of governance could work as a lamppost showing vivid paths. 

 

In Nepal’s case, there has been a trend of blaming the constitution to cover up all the mistakes committed by the political actors, and as a result of which, we are witnessing the seventh constitution in hand. As a matter of fact, no self-respecting nation should allow its fundamental law of the land to be used like a playing card at the behest of certain political actors. Our constitution guarantees the right to employment as a matter of fundamental rights, but the state has failed to stabilize and stop the outflow of migrant workers.

 

Remittances are the foundation of Nepal’s economy, constituting about one-third of the GDP, sustaining the national economy as well as adding to the household income. In contrast, right to education and healthcare are also acclaimed as the fundamental rights, but the government-aided educational institutions and hospitals have measurably and miserably failed to stand up to the peoples’ expectation. Resultantly, there appears to be privatization in the education and health sectors. Can we blame the constitution for all these problems?

 

Way forward

 

If every political party had their own interpretation of the constitution, in such a case, the premier book would be rendered meaningless. In Nepal’s case, the political leaderships had never adhered wholeheartedly to any constitution. The reason is that they always wanted to stick to the chair and milk money; and to that end, they used various players and shaped the constitution to suit their needs.

 

To tell you the truth, Nepali federalism has been designed on the basis of working of federalism in US, Canada, Australia, India, and others. Yet, it deviates from those federalism in many respects as it establishes its own distinctive features suiting its national interest. The center’s strong influence could favor centralizing tendencies but cannot subvert federal fabrics. Nepal’s constitution provides ample opportunities for the provincial and local governments to recognize and address the local concerns. As Prof Warhurst argues that federalism favors local and regional concerns, the legislation could be enacted by the provincial and local governments to address the regional and local needs and aspirations.

 

From ensuring federalism to rule of law, to good governance and inclusivity, the latest constitution has everything progressive for the people. The only thing we need is to implement the constitution in a true and material sense. After all, our federal democracy deserves to be nationally integrated, politically and economically coordinated and intellectually uplifted. And, for that to happen, this current constitution needs to be upheld.

 

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