‘Federalism will lead to a bloodbath’

‘Federalism will lead to a bloodbath’

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.

Source

“What is federalism?”

“What is federalism?”
By: Yumnam Chaoba Singh

Recently the 4th International Conference On Federalism was held at New Delhi (November 5-7) for unwinding regional disparities in which representatives from abroad - Switzerland, Comoros, Nigeria, Ethopia, Bosnia, Canada, Germany, Mexico, Austria, Pakistan, Nepal, Iraq, Sudan, Malaysia, South Africa, Argentina Brazil, Bolivia, Libya, United Arab Emirate as well as representatives of state or Union Territories of India were present.

According to prof. Garner “Federalism is a political system in which all the administrative powers are divided between the central and state governments by the constitution”. In India this statement is only partly true.

First, we may have a glimpse of mind on the federal polity of India. A major characteristics of the Indian polity is that the states are units not of a federation but of a Union aptly styled a quasi-federation. Means Indian polity is federal in structure but unitary in spirit.

Although the term federation has not been used anywhere in the text of Indian constitution yet our constitution provides for a federal government in India. Article - 1, of the constitution describes India as a “union of states”. This expression implies that (i) unlike the USA, the Indian federation is not the result of an agreement between the units; and (ii) the units have no right to secede from the federation. Truly speaking the units of the Indian federation have no independent existence of their own. The parliament can alter their names and Territories even without consulting them.

The Indian constitution is a written document containing at present more than 400 Articles and 12 schedules. All the authorities in India are legally bound to respect it. The Indian constitution is one of the lengthiest documents as compared to the constitutions of most other federations.

The Indian constitution is fairly rigid. Amendments to it cannot be carried out easily. In particular the provisions concerning the relation between the Federal and state governments as well as the judicial organisations can be amended only by the joint action of the Federal and state governments. These provisions require two-third majority of each of two houses of parliament as also approval by the majority of the state Legislatures.

The Supreme Court of India is the highest court in India. It acts as the guardian of the constitution. It can declare any law or order ultra vires of the constitution if it contravenes any of the provisions of the constitution. The Supreme Court also ensures that the Federal and State governments operate within their respective spheres.

In contrast to a unitary state, under the federal system, the federal government as well as the state governments draw their authority from the constitution. The residuary powers are left in the hands of the centre. The Indian constitution divides powers between the centre and the states on the CANADIAN pattern. All powers have been divided into three lists - (i) The Union List, (ii) The State List and (iii) The concurrent List. The states possess exclusive powers to legislate on the items contained in the state List. But both the Central government and State governments can legislate on the subjects contained in the concurrent List. However, in case of clash between the central and state Laws, the Laws framed by the centre prevail.

Constitution of India also provides for a bicameral parliament consisting of Lok Sabha and the Rajya Sabha. The Lok Sabha Comprises representatives directly elected by the people on the basis of universal adult franchise. The Rajya Sabha mainly consists of representatives of the states including educationists etc. Thus the constitution maintains a balance as between direct representation of people in the Lok Sabha and representation of units/indirectly elected and nominated) in the Rajya Sabha.

The Supremacy of the constitution which is another feature of federalism is also present in India. The constitution is at the top of the hierarchy of all laws - both centre and state. The central as well as the state governments have to operate within perimeters prescribed by the constitution. If they pass any law which does not conform to provisions of the constitution or in any way goes beyond the legislative authority given to them, the same can be declared ultra vires of the constitution by the supreme court.

Second, during the British period, we had provinces and princely states all being totally subordinate to viceroy and Governor General ruling from Delhi. Before the advent of the British, India was badly divided. Successive invaders conquered and ruled India since there was no unity among those who ruled different regions and parts of the sub-continent. Before independence there was bloodshed and upheaval and the country was divided into two - Pakistan and India. According to the Republican constitution of independent India, the nation is union of states. It has not been described as a federation of independent states. However the framers of the constitution wanted to preserve the unity and integrity of the country while affording scope for the development of regional culture, languages etc.

Shri O. Ibobi Singh, chief Minister and the Governor represented Manipur in the federal conference at New Delhi (5-7 Nov) as head of the people and Governor as head of the state as the twin is obligatory and mandatory to the federal polity of India including the commonplace people. Shri Ibobi and the people are quite aware that Manipur’s territory was forcefully annexed to the union of India on 21st October, 1949 under the duress of Maharaja Bodhachandra at Shillong. Metaphorically (it is hypothetical presentation) if a lass without her consent is made house wife of a given family through physical and psychological intimidation, then can she be treated as member of the new family? If so, was the juxtapositional stand towards the centre by Shri O. Ibobi Singh and his participation in the conference in the right direction? Shri. Ibobi knows the insurgency problem in Manipur is from the loss of sovereignty, hence, historical and psychological maladies on the part of insurgents. If it is/was so, what message or missive had he shared in the conference or did he remain taciturnity as silent is a symbol of consent? if so, reciprocally, New Delhi should always have monomaniacal helping hands at times. Whether called or uncalled from the smaller ones especially North-East states as what a patriarch/matriarch does to his/her offspring with fondle, caress, rational admonition and absolution. This is the simplest example for leading to a successful federation in India as well as in the sub-continent and even of global federal polity.

Third, in the aforementioned conference, prime Minister, Manmohon Singh underscored to have reduced regional disparities to lead a compactly federation. If not mistaken, poverty, unemployment, illiteracy, pre-eminence of one race/caste over the other, territorial quarrels, linguistic minorities, cantankerousness among the clans or endogamy, autonomy, separatism etc. are the root cause of regional disparities. India got a federal pattern with strong bias. So long we have been able to have a stable government at the centre with a single political party commanding sizeable majority in the parliament, all seemed alright. A coalition government at centre will be weak and unstable. It will be unable to keep the governments in the states under check. We have already seen that in this sub-continent, we have regional interests, cultural aspirations, linguistic affinities and the like. Hence we have to aim at unity in diversity. This is not possible without state autonomy.

**The writer is Retd. Asstt. private Secretary (Edn/S).
Source

Nepal in transition: abolishing the monarchy

Nepal in transition: abolishing the monarchy

Santosh Giri [advocate/human rights lawyer, Supreme Court of Nepal]: "The abolition of Nepal’s nearly 240-year-old monarchy and declaration of Nepal as a "federal, democratic, republican state" was made by an overwhelming majority in the interim parliament late last month. 270 members in the 329-member House of Representatives voted on December 27, 2007 in favor of ending the monarchy (3 pro-monarchists cast against the motion while the rest abstained). However, Nepal will become a republic only after the first meeting of the Constituent Assembly, which is due to be elected by mid-April next year. The decision also serves to put the peace process back on track and paves the way for elections notwithstanding the fact that elections have been postponed three times since June 2006. Constituent Assembly seats has been increased from 497 to 601, of which 335 (58%) will be elected on the basis of proportional representation, with 240 to be directly elected and 26 to be nominated by the country's cabinet.

Background

Since 1990 restoration of democracy, there were 3 elections in 1991, 1996 and 1999. Numerous governments were formed and numerous failed. The parliament was dissolved in 2002 which paved way for an absolute monarchy again. In 2005, the king staged a coup d’état. Seven major political parties united and formed an alliance with the Maoists to overthrow the king in April 2006 after dozens of innocent killings. In April 2006, the king restored the parliament which eventually led to abolishment of the monarchy. The November 2006 agreement between the political parties and the Maoists came as a peace pact which enabled a cease-fire and temporarily ending the conflict in which more than 13,000 people died since 1996. In January 2007 the Maoists entered the parliament and the cabinet in April 2007. In September 2007, the Maoists walked out of the government citing differences and demanding fulfillment of their demands of abolishment of monarchy and restructuring of the electoral system. They also threatened to quit the parliament in December 2007 if their demands were not met. Meanwhile the Constituent Assembly elections were postponed thrice, firstly citing lack of preparedness, secondly unfavorable security situation and thirdly the Maoists opposition. In December 2007, a new accord was signed which agreed on both demands and the Maoists reentered the cabinet. In December 2007, the parliament with a majority decision abolished the monarchy (subjected to ratification by the Constituent Assembly Parliament) and restructured the electoral system.

Nonetheless, the Maoists continuously lost support because of continued terrorism through splinter groups such as Madheshi Janadhikar Forum (MJF), Janatantrik Terai Mukti Morcha (JTMM) etc and its sister organizations such as Young Communist league, All Nepal Free Student Union (Revolutionary), All Nepal Free Trade Union (Revolutionary) and others. Extortion, protection, murder, kidnapping, disappearance, property seizure, forced displacement, forced recruitment and censorship against newspapers are rampant. Moreover, in the southern Terai plains region they have been involved in inter-ethnic rivalry, resulting in several deaths. The seven-party alliance, on the other hand is widely criticized for its lack of control over the heightened insecurity, increase in crime and impunity.

Nepal's transition from a monarchy to a republic

Nepal’s monarchy has drastically changed from being traditional, titular, democratic, absolute and stripped-off-powers until recently. The recent abolishment of monarchy has shelved the 240 year old rule in the history forever. A challenging transition phase is yet to be completed for a complete transformation to a republic. Since April 2006 parliament has made strong decisions on monarchy such as stripping off its powers, titles, rights and privileges of the king and finally the abolishment of the institution.

Criticisms are widely being drawn regarding the abolishment of the monarchy based on the following:

(a) Uncertain Elections: Uncertainty of elections still persists amidst ongoing Terai (Southern Plains) Crisis, where several violent and non-violent groups have put forth demands to ensure the rights of the Madheshis (people from the Southern Plains) who have been discriminated historically in all walks of life. Many doubt if an election will ever occur for some time! If there is no election, there is no endorsement! In an event the election go through, it will be obliged to endorse the motion of abolishment of the monarchy and will not have the power to amend or reject it.

(b) Just a Fuel: The recent decision is also understood as a last resort to elongate the November 2006 agreement between the Seven Party Alliance and the Communist Party of Nepal (Maoist) which seemed to be breaking away until December 2007. There were vows from the Maoists to quit parliament after they walked out of the government and to take up arms again to wage a ‘decisive war’. That agreement came three months after Maoist rebels had walked out of the government in September 2007, demanding immediate abolition of the centuries old institution. The abolition of the monarchy and change in electoral laws has been two key campaigning issues for the CPN-M.

(c) The South Block: India has been against the idea of abolishing the monarchy as much as Bharatiya Janata Party (BJP) which insists that the monarchy in Nepal is essential for the sake of Hinduism.

(d) A Ploy of the SPA-M Alliance: There have been accusations from the Terai based parties and groups that the agreement and the recent decision is nothing but a mere ploy to give continuance to the ruling government which comprises of seven major parties and the Maoists. Accusations also raise serious concern over the lack of proper action by the government on the nations increasing insurgency and displacement of the citizens.

(e) Pro-monarchs: Recent demonstrations by the pro-royalist parties including RPP and RJP (led by ex-prime ministers Surya Bahadur Thapa and Lokendra Bahadur Chand suggest integration of their like-mindedness and protesting the parliaments recent decision. Hindu extremists and traditional royalists have already started raising their voices against the abolishment. A recent interview of Bharat Keshar Singh, ADC to the King, shows the Royalists perception towards the recent developments. The royalists still claim the parliament and the results derived thereof as unconstitutional and ad-hoc in nature. Although such issues are not primarily significant at this point, it may still suggest a plot to be staged in future.

(f) Nepal Army: Previously known as the backbone of the Monarch, Nepal Army boasts itself as a People’s institution now. It has openly abstained from being associated with any ‘ism’ and has clearly denounced integration of the Maoist soldiers with the Nepal army. Maoists have already raised serious concerns about this. Though Nepal Army has made its stance clear that it shall not be involved in a coup, a possibility cannot be ruled out in a South Asian Political perspective.

(g) Intra-Party and Inter-Party Factions: Be it Nepali Congress, Communist Party of Nepal or RPP, all of these have factions. There have been several breakaways and integration among each of them, which raises serious concerns over a sustainable peace, peace-pact and the results we have generated.

Strong provisions have also been made for removing the monarchy before the perspective polls in an event the king is found to "be creating serious hurdles to the Constituent Assembly Elections". A two-thirds majority decision of the interim parliament will be required in such situation.

The perspective on the abolishment of monarchy and the politics of Nepal does not necessarily represent the perspective of Association of Nepalese Lawyers in the US [ANLUS] as a whole or in part. The author is responsible for the views and perspectives. Information provided is not politically biased nor supportive neither opposing to any. Information contained in the article is generated from news and articles published in the newspapers in the internet and through personal knowledge."

Source

Federal Democratic Republic of Nepal?

Federal Democratic Republic of Nepal?
Prakash Bom

The primary objective of declaring Nepal 'Federal Democratic Republic' as per the mandate proclaimed upon 'People's Movement II' can not just be boiled down to the abolition of the institution of the feudal Hindu monarchy. But the fundamental demand of proclamation is to initiate the process of transformations of its entire establishments. Transformations thus imply restructuring the state that can have all inclusive 'people' representations. Transformations have therefore become necessity without which people's demand for their right to self-governance cannot be fulfilled. Implementation of transformations thus is inevitable.

Make no mistake that people are going to keep quiet because the republic setup has been constitutionally guaranteed. Simply, people can stand no political power above themselves who (persons) or which (political parties) illegitimately over indulging national recourses. In republic democracy the sovereignty of the nation solely rest on people cannot just be established by declaring it in the constitution but implementing it in democratic process. Then only it is worth to mention that people are the symbol of the national unity. If not it is just a political jargon. For people to represent nation their representations must be processed in the structure that give people right to self-governance through the proportional representations.

Republic, therefore, does not mean just the absence of a hereditary based hierarchical institution of the monarchy. But republic must have people's direct impact on the formation of all branches of the government of the nation. This means democratic republic nation cannot form any branch of the government without the consensus of the people that can only be accomplished through the institutionalization of direct electoral process. Therefore, any government branch of the central (federal) or state or local government of 'Federal Democratic Republic of Nepal' cannot be formed without the direct votes of the electorates of respective constituencies. Under this republic provision all the members of both Houses of the federal democratic republic must be elected by the people. Democratic republic setup, thus, by no means can legitimate any form of nomination either arbitrary or consensus for political appointments to replace elected people's representatives.

First of all, do all political parties, their leaderships and cadres comply with these norms and principles of democratic republic? Political consensus plays a role model if it is farsighted and if it is all-inclusive, especially during a transitional political period of a nation like ours. If not, the absence of political consensus demands public awareness – movements of civil society, ethnic organizations, professionals, and so on. Ours is a feudal society where hereditarily dominated and hierarchically stratified ruling elites jump in and take over the state power illegitimately. In order to prevent such discrepancies 'Federal Democratic Republic of Nepal' must mandate the process of full electoral representations.

The question of full electoral representations in all branches of the government based on full proportional representation electoral system might be overwhelming in the beginning but in the long run it is the honest democratic establishment, which can truly transform our society. This may be literally discouraging those (hierarchically stratified ruling elites) who grab power through link of higher social stratifications, nepotism and party lobby. Therefore, the multifold conspiracy under the disguise of nationalism is inevitable to come forth from this group of people who despise federal structure and electoral process in democracy. Whatever is the consequence, the primary question is 'how in the world such a fully electoral representation system can be institutionalized in a nation that has diverse geography and diverse ethnicity?' Therefore, necessity for the federal governance structure has become predictable. The inevitability is to establish systematic federalized national union that can eliminate traditional and hierarchical feudal arbitrations in the government mechanism.

Democratic republic without federal system of governance is prone to one party or totalitarian or military dictatorship, often prompted by the false notion of nationalism. This is a historical fact that was how republican dictatorships emerged in the cold-war era of twentieth century. That's why our own autocratic monarchy lasted this far to the twenty-first century. Again, what sort of federal structure can give the people their right to self-governance as well as keep the national integrity firm are the issues that political leaderships, party-cadres, civil society leaders, leaders of the ethnic organizations, professionals, news-columnists, and Nepali think tank need honest scrutiny to find out the modality of federalism that can address our nation's diverse geography and diverse ethnicity. The truth is that Nepal cannot escape these inevitable democratic transformations without taking place in the entire nation.

Federalism so far has basically evolved with two kinds of structure - symmetric and asymmetric. In symmetric federalism all constituent states have same status and power whereas in asymmetric federalism the status and power of constituent states may vary depending up certain constituent states' geographical, ethnical and linguistic preferences. Under the asymmetric federal system even the some peculiar local constituencies can have certain preference within the states.

For example, if ethnic based federal structure (Maoist proposal) is scrutinized carefully, for instance, Magarat state that is composed of Rukum, Rolpa, Salyan, Pyuthan, Arghakhanchi, Gulmi, Baglung, Myagdi and Mustang districts Mustang district is the most peculiar of all in terms of its geographical, linguistic and cultural preferences. Such preferences of the constituencies (state or local) are established as per the geographical, cultural and linguistic necessity under the asymmetric federal structures. However, such preference of a local or a state constituency in the end is finalized by the votes of the electorates of respective constituencies even it is a constitutional decree.

In regard to Nepal the asymmetric federalism has the prospect for the structures of local constituencies. The ethnicity based states, for example, Madhesi state (under Maoists proposal) consists of all districts of Janakpur, Narayani and Lumbini that have proportional percent of other ethnic settlements from different linguistic and cultural groups. On the other hand, there can be many local constituencies in this state, which have for instance majority of Mithili or Bhojpuri cultural and linguistic group settlements. Therefore, preference becomes probable for those local constituencies, but not for the whole constituent state. As a result, these local constituencies in their school, for example, can decide to teach Mithili or Bhojpuri or Hindi besides Nepali and English language.

Therefore, no ethnic states such as Tharuwan, Newa, Magarat, Tamuwan, Tambashaling, Limbuwan or Madhesi can have state level preferences because all these states have proportional percent of other ethnic settlements. Thus these states will have to accommodate all the permanent residence of their state as bona fide citizens of the nation. If not these states will violate the civil rights and liberty under the constitution of 'Federal Democratic Republic of Nepal.'

Nepal has become conglomeration of mixed ethnic settlements. This is statistical facts. Except for certain highland districts of Nepal all other districts have mixed ethnic settlements. There can be no state under the 'Federal Democratic Republic of Nepal' that has hundred percent residence of one ethnic group. However, the probability can exist for local constituencies that have over seventy percent of residence of one ethnic group of people. This change for mixed ethnic settlements has occurred all over the nation drastically in recent decades and it will continue to occur as the nation proceeds further with the democratic changes and the global economy.

Federalism primarily establishes people's right to self-governance. It means constituencies from local level to the central are governed by the elected representatives of people. There is neither the supremacy of states over the local governments nor of the central government over the states. But all have mutual existence with the competitive and cooperative network of sustainability. Federalism is system that establishes trust between citizens and their elected representations. Therefore, it is the question whether SPA leaderships trust people or not to institutionalize such a close relationships.

The necessity of federalism is to have responsible government system which representatives – legislative, executive and judiciary - are directly accountable to people of their constituencies. For example, the local government of Jumla district is formed by the elected local representatives of the constituency, if the mayor or district judge or attorney or law enforcement officer did not do the right things for the district, electorates are not going to re-elect them in next elections. Such check and balance can be established under federalism in local level. The integrity and strength of the nation under federalism rests on the structures of the local constituencies. They are foundation and infrastructure of both states and the nation as a whole.

Therefore, Nepal must define first its local constituencies based on population that is viable for running an efficient local government. A local government can consist of single constituency (particularly in highland – 'Himalayas and Trans-Himalayas') or more than one constituency (generally in lowland and cities). Nevertheless, a constituency consists of units or wards or townships that represent local government's assembly (legislative), administration (executive) and justice (court, attorney and law enforcement agency) bodies of the government. If the minimum population of a constituency is set to fifty thousands, for example, then if the population of Nepal is thirty million there will be 600 constituencies in the whole nation. Then only demarcations for the state or regional governments can be viable. It is a misconception to create state or region first without creating infrastructure of the federation.

Unlike the distorted news media reporting – "republic leading to fragmentation"; unlike partially scrutinized columnist's article published under the title "Hard facts of federalism' on the local news paper; unlike all hasty and apprehensive statements against federalism; unlike untrue accusations that federalism will disintegrate the nation; the socialist democratic evolution of Nepal cannot be set back without the 'Federal Democratic Republic' setup. It seems as if feudal elites and their pseudo scholars around the world are more afraid of federalism than the king is afraid of republic. SPA leaderships must not divert their thoughts with all these negative bombarding of irresponsible news media that publish anything that is written in grandiloquence verse of English. SPA leaderships and their cadre must have faith in federalism as the most successful form of democratic government system that can deliver the most democratic state of affairs to the people and the nation.
Source

Federalism & National Integrity in Nepal

Federalism & National Integrity in Nepal
Prakash Bom
Federalism generally implies federation comprising a member of partially self-governing states or regions united by a central "federal" government. However, in the government level the self-governing status of the component states or regions is constitutionally established and no unilateral decision of the central government can alter it. Primarily, state or regional governments must consist of a unit of partially self-governing local governments in which people have constitutional right to govern their own constituencies. It is the partially self-governing local level of governments that play vital role for the stability, prosperity and national integrity of a federal democratic nation.

It is said that Mahatma Gandhi had deeply regretted with the constitutional provision of federal republic Indian because it has excluded the primary structures of federalism that could have set the system for local people to govern their constituencies with their constitutional rights. It was forced by the ruling elites who could not trust people capable of governing their local constituencies. Therefore, Indian federalism gives all power to the state government and to the chief minister to run the whole state affairs. If Nepal without scrutiny adopts Indian model of federalism then Nepali people will be deprived of their constitutional rights for governing their own constituencies.

On the contrary, there is no such a federalism, which has states or regions with full self-governing or full autonomy status. If there is then what is the purpose of institutionalizing federal democratic republic? In that case, such a state if it is rebelling for independent then should become independent nation. Constitutionally, just as central or "federal" government cannot alter the partially self-governing or self-autonomy status of states or regions with even unilateral decision so as the states or regions cannot alter partially self-governing or self-autonomy status of the local units of governments. Constitutional compliance of the central and state or regional governments establishes the right to partial self-governance or self-autonomy of the state and local governments. Therefore, as long as federal democratic republic exists in the nation this constitutional provision cannot be amended.

A parliamentary federal democratic republic nation's federal government consists of the Parliament with both Houses. Therefore, federal Parliament can only make amendments of the constitution. The state and local governments have legislative assembly, which under the provisions of the constitution legislate policies and regulations for their state and local governments. But state and local governments do not have their separate constitution. They must comply with the federal democratic republic constitution of the nation.

For example, under the constitution of the United States if any undocumented human alien has been living in the country the police cannot issue ticket for his or her arrest unless he or she has allegedly committed crime. But under the federal immigration law undocumented are considered illegal immigrants. However, it is up to the state or local governments to implement federal regulation. Therefore, there are many states and local government like New York City, which have given protection to undocumented immigrants. Some mayors of New Jersey local governments have welcomed undocumented immigrants if they comply with the rule and regulations of the local government and pay the taxes. These are the examples of implementing the provisions of the partial self-governance or self-autonomy of state and local governments under the federal constitution.

Under the other provision of the federal democratic republic constitution states and local governments must have electoral institutional establishments for the right to self-governance or self-autonomy. A centrally or stately nominated legislative, executive and judiciary bodies are not legitimate to have right to self-governance. Therefore, members of state legislative, executive and judiciary must be elected from respective constituencies of the state. This means assembly members of the state must be elected. The executive head (governor) must be elected to form the state cabinet. State judges, attorneys, and law enforcement officers also must be elected from among the professionals of the state.

Similarly, local governments are illegitimate without the electoral institutional establishment. The assembly members must be elected; the local government head (mayor) must be elected to form the cabinet; local (district) judges, attorneys and law enforcement officers must be elected. Electoral representation is one the mandate of the constitutional right to self-governance. All feudal political tradition of nominations must be terminated. Therefore, through the electoral competition electorates of all constituencies must have constitutional right to choose their representatives who are capable to oversee bodies (legislative, executive & judiciary) of their governments.

It is very important to understand the rational of the federalism regarding its self-governance provision for units of the governments. Particularly, those political parties and organizations, which are resurrecting federalism with the demand for full self-governance or self-autonomy, must comply with the basic principles of federalism. Similarly, SPA leaderships must respect the fundamentals of federal democratic republic. By just declaring it does not mean it has the structures of governance. Political leaderships and their cadres must have to work hard to create such a new structures that is off of our socio-political mindset. It is therefore unfamiliar and intellectually overwhelming. But if any political leader or professional elite out of his or her own unwillingness calls federalism a wrong governance system for Nepal then it is irresponsible statement. We must not disrespect our own consensus for the federal democratic republic declaration.

We must therefore consider our nations' diverse geographical and diverse ethnicity. Federalism is a national necessity not only for the sake of diverse ethnicities but also for all electorates of Nepal to have their right to self-governance in their constituencies. This means annihilation of the easy and merry-go feudal politics that indulge nominating and appointing tradition of ruling elites. Also, gradual abolition of 'First Past the Post' electoral system is must for the electoral system of the federal democratic republic of Nepal. This is essential to adopt "Proportional Representation" electoral system for the inclusiveness of diverse ethnicity representations for the self-governance participations in all state and local governments.

The federal democratic republic constitution of Nepal thus must establish the rights and duties of its partially self-governing units of the governments. One of the basic 'self-governance' rights of the local governments is to conduct elections to form their bodies of the governments. Local governments under federalism are fully responsible for their local administration, law enforcement, justice, developments, infrastructure maintenance, school management, local tax and revenue regulations and so on. Except for policymaking, funding and overall state infrastructure development the state has no control over the local governments' right to self-governance.

Any state proposal that attempts to disrupt the national integrity must require the political consensus of all local governments in that state under the federal democratic republic constitution of Nepal. Therefore, the self-sustainable self-governing local governments' fundamental constitution right is to protect the national integrity if the state leaderships tried to betray the nation. In a nation like ours', which has diverse geography and ethnicity, it is mandatory to make local governments in the grass-root level self-sustainable with their constitutional right to self-governance. That's the structure in the future Nepal can guarantee and secure the national integrity of the nation.
Source:globalpolitician.com