Bhimarjan Acharya is a senior constitutional expert with a dozen books to his credit. He has been actively advocating against the SPA's decision that led to the Third Amendment to the Interim Constitution declaring Nepal a federal republic.
Acharya has been in the legal profession for the past decade. He thinks the country will disintegrate with a federal system. Acharya spoke with Puran P Bista and Kamal Raj Sigdel of The Kathmandu Post on why Nepal should not become a federal country.
Excerpts: Q: Federalism has become the buzzword. You are not in favor of it. Why is that?
Bhimarjan Acharya: There are three reasons why Nepal should not have a federal system. Federalism has certain pre-conditions that are not suitable to this country. For example, federalism is derived from the Latin feudus, which means treaty or an agreement between or among states. This certainly indicates a coming together of separate states after reaching an understanding. This is one of the pre-conditions for going federal. In Nepal's case, it is not a number of states joining to form a country. Secondly, federalism is a concept which is related to colonial states. Most of the states that have adopted a federal system came into being after obtaining independence from their colonial masters. So federalism is directly linked with colonialism. America, for instance, was a British colony; and there were several distinct states before they came together to become what is called the United States of America. Similarly, Switzerland has got its own history of how it became a federal country. Canada is another example. It has a different federal system. India became federal after it became independent in 1947. Argentina and Brazil are other examples. We are forcefully trying to make Nepal a federal country which has existed for centuries as an independent state. Many of us justify making Nepal a federal country because of its heterogeneity and diversity. Here, we must keep in mind that the approximately 24 federal countries in the world became federal not due to heterogeneity or diversity as such. I think that heterogeneous or diverse countries are most prone to disintegration. We can see homogeneous countries having a federal structure of governance. There are less chances of disintegration when a federal county is homogenous. Germany is a homogenous country - one language, one culture and one religion. Australia is another example. Americans speak one language. Countries such as Sudan, Ethiopia, Belgium and even Iraq have been facing serious internal conflicts though they are federal states. What is the reason behind the failure? It is just because of heterogeneity. So, Nepal cannot survive if it opts for federalism. We cannot federalize it if we look at our ground realities. It is impossible, even though our elite continue to advocate making Nepal a federal country. This is impossible. Federating an independent country is an unnatural task. See how Sudan, Ethiopia and Belgium have been on the verge of disintegration. The survival of these countries has been threatened. Secondly, if we examine our geo-politics and even culture, it is impossible to federalize this country.
Q: How are you going to make this country inclusive which is the new buzzword?
Acharya: Yes, our main concern is to make this country inclusive, and not to federalize it in order to make it inclusive. We just talk about inclusiveness on the basis of federalism. But federalism is just the opposite of inclusiveness. The main thing for inclusiveness is to devolve power in order to empower the people at the grassroots level. We have to have mechanisms which will redistribute the resources.
In a federal structure, you divide the strength of the country rather than the resources. Federalism divides power on the basis of resources. This system will not be inclusive, but it will make certain states exclusive. Demanding a federal state is to be exclusive so that it can break away at any time or provide space for external interference. Every community will be excluded from the benefits. A few elite in power will continue to play with the division of power. A developed and modern country does not allow the Madhesis to collect tax and spend it for their benefit or the hills to develop hydropower and spend it for the development of the hills only. An inclusive or developed state should redistribute natural resources for the benefit of the masses or share the economic burdens equally. Dalits consist of 13 percent of the total population of this country. Will this community ever enjoy the benefits of the country's economy when you talk about the income of Madhes for the Madhesis? So, let us not try to think of making Nepal a federal country. It will just lead to a bloodbath.
Q: The SPA has already amended the Interim Constitution declaring the country a federal republic. How will it be possible to reverse that?
Acharya: Yes, we can amend the Interim Constitution. The Seven-Party Alliance (SPA) decided to hold the constituent assembly elections within June 2007. Why couldn't the polls be held in June? The SPA again announced that they would be held on November 22, 2007. Why did the SPA fail to hold the CA polls on that day too? The SPA had promised to fulfill several demands of the people. It has signed pacts with the Janajatis and the Madhesi People's Right Forum. Why did it fail to implement the agreements? The question is not the amendment to the Interim Constitution. What has been decided so far may jeopardize the political course. All political commitments made by the SPA so far have been based on personal interests. No party has actually worked to fulfill the needs of the people. Why did the SPA raise the number of CA seats from 205 to 497 to 601? Did the people give them such a right? You cannot amend constitutional provisions to suit your own interests. You have to respect the political document and fulfill the needs of the people. After all, the people fought for their rights, and not the few political misfits who are reaping the benefits of the April movement. Secondly, the people of this country have not been demanding a federal Nepal. Can any politician prove that the people fought for a federal country? These politicians have been delivering verdicts instead of debating on the core issue. I was personally involved in the fight against King Gyanendra's autocracy. I have not yet read any news story that says that the people wanted to make this country a federal state. Why did the politicians decide something which was not the people's demand? Every individual talked about democracy and republic, but none uttered the word federalism. So it is easy to amend the Interim Constitution because federalism is not the people's demand. The politicians should not make wrong decisions. They cannot create a nation-state by making such wrong decisions. You cannot correct the wrong. I know the so-called elite are actively involved in turning this country federal. It was they who influenced the political decisions in this country. They must know that they do not represent the people's aspirations. They crave for power and think that federalizing this country would provide them a greater political stake. The main concern is to transform the political system of this country. How? The spirit of the April movement was not to make Nepal a federal state. So they should not work for that objective.
Q: Many defend federalism as the way to empower the people at the grassroots level. Is this assessment wrong?
Acharya: This is a wrong concept. There are differences between the unitary and federal systems. A unitary system tries to unite the country, while a federal system divides sovereignty and encourages disintegration. The necessity is not to partition sovereignty, but to devolve power within the unitary system. Why is the number of federal countries not increasing? Can you imagine Nepal remaining an integrated country if you federalize it? A federal state shares judicial, legislative and parliamentary powers. This is to divide power among the states. Such power divisions will encourage separatist movements as we have seen in Sudan, Belgium, Ethiopia and even in India. Professor Dias says federalism is suitable for homogeneous countries. It will not bring any unity in diversity. If we want to see unity in diversity, the unitary system is the best one. What we are doing is artificially trying to disintegrate the country before bringing it together. Q: But the Janajatis and Madhesis have been demanding a federal Nepal. How do you assess their demands when you know Nepal will disintegrate once it becomes a federal country? Acharya: As I said, it is not the demand of the Madhesis and Janajatis. A few elite who have been sidelined for years have come forward with such a demand. Honestly speaking, they want to seize power and become chief ministers of such federal states. They want to become another autocrat. Autonomy and the right to self-determination are again linked with colonial powers. No country has colonized Nepal. The 1960 UN Declaration clearly mentions certain provisions on self-determination and federal states. The people of a certain region enjoy the right to self-determination only if the country is under a colonial power. Or the people enjoy the right to self-determination only if the country is ruled by an external power. Where can you find such rights to self-determination applicable to territory when it has not been ruled by any external power? Madhes wants to be a separate state, which means the right to self-determination applicable to individuals and the state. This means the right to secede at any time. However, for the sake of simplicity, I said the right of self-determination applicable to individuals and the right to self-determination applicable to the community and not the state. The demand made by the Madhesis and Janajatis are the right to self-determination applicable to the state. This cannot be possible in an independent country like Nepal. If you are talking about the right to self-determination applicable to individuals, then it is possible. Even the UN declaration mentions that. But it is unnatural to break up a unitary state in order to federalize it. Federalism, by its very virtue, is division of power and sovereignty. Do you think the country will survive if you divide its sovereignty? The demand for the right to self-determination clearly underlines secession. If you want to form an independent country, then you can have the right to self-determination and advocate a federal Nepal. We are not fighting for independence. Are we going to lose our sovereignty? Again, self-governance and self-determination are totally different entities. You cannot equate the two ideas. We must know that unitary and centralized systems are not identical either. A unitary system can address the needs of the people, empower the local people and redistribute the available resources while the centralized system will not. I know the unitary system is something totally different and we can go for it.
Q: How will the unitary system devolve power to the people at the grassroots level?
Acharya: Certainly, there are several examples. A number of countries have adopted a unitary system of governance. We can decentralize power. If you think that federal countries have a better system of decentralizing power, why is the number of federal countries not increasing from 24 to 25 out of 230 countries? Federalism is an outdated 17th-century model. It is not applicable to Nepal.
Q: Why has federalism become the new buzzword?
Acharya: There are three reasons. There is a conviction among politicians that a federal Nepal will be a better option. Secondly, I wouldn't call them anti-establishment, but some people are raising the issue of federalism just to gain political mileage as they have been ignored or sidelined for a long time. They see this period of political transformation as an opportunity to destabilize the country. This group is very powerful. They move around politicians exerting influence on key political decisions. The prime minister announced at midnight on Magh 10, 2063 that Nepal would be a federal country. Nobody knew until then that the country would have a federal system. Who decided that - you, me or the people? Unfortunately, the Madhesi movement gained currency. The SPA amended the Interim Constitution, and again recently the SPA added a clause to it declaring that Nepal would be a federal republic. Federalism is a highly technical word. People are unaware of it. Yet the politicians under the influence of a few so-called intellectuals decided to make Nepal a federal country.
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