Article for sangam journal

Article for Sangam Journal (published in December 2009, Vol. 1, No. 1) Democracy and Federalization of the Nepali State
Challenges and Opportunities
1. Introduction
Nepal at the moment is passing through the most crucial phase of history ever since its foundation in the late 18th century. The success of the historic Jana Andolan II (People's Movement) in April 2006 set the pace for this new transition. During the movement the people had explicitly expressed three major things to achieve - (i) the end of monarchy and the dawn of republican democratic era, (ii) the end of Maoist 'people's war' and return to peace, and (iii) redefining the people-state relationship through restructuring the state. After the signing of peace accord in November 2006 the Maoist formally declared the end of 'jana yuddha' (people's war) and its armed cadres are kept in the cantonments and their weapons in the containers under the UN supervision. With the enactment of the Interim Constitution (IC) in January 2007 the CPN (Maoist) became a legitimate political force and had seats both in the interim parliament and the government. The preparation for the CA elections and the peace process had taken place simultaneously. In April 2008 elections for the Constituent Assembly were held in which the CPN (Maoist) emerged as the single largest party in a house of 601 members. The first meeting of CA on 28 May 2008 adopted a resolution abolishing the monarchy and declaring the country as a republican state.1 King Gyanendra had no option but to exit honouring the mandate of the people and decision of CA.2 The provisions for the President followed by a Vice-President, were inserted in IC through amendments, as head of the state of the new republic. CA elected Dr. Ram Baran Yadav and Paramananda Jha as the first president and vice president respectively. Thus the transfer to a republic from that of the two hundred and fifty-year old Shah Monarchy, despite many speculations, was accomplished peacefully. However, the peace process and the constitution-making are yet to be accomplished. The Interim Constitution has allotted two-year time to CA, beginning from its first meeting, for completing its work on constitution-making. The first meeting was held on 28 May 2008, which means it has to complete its work by 28 May 2010. Accordingly it has adopted the constitution-making schedule, which describes the timeframe for each and every activity, including the proclamation of the constitution. Besides, it has also 1 Earlier, the Interim Parliament on 28 December 2007 had amended the constitution stating Nepal as "a federal democratic republican state" and the first meeting of CA was only to implement it (GON, 2008). 2 In the CA elections political parties campaigning for the republic had won almost all seats. Rastriya Prajatantra Party Nepal which had campaigned for a constitutional monarchy had won only four seats with 1.03 per cent popular votes ECN, 2008). provided for public participation in the constitution-making process. Already CA thematic committees had public outreach programme covering all 75 districts of the country collecting public opinion on various aspects of the new constitution. There are ten thematic committees and one constitutional committee (CC). After the thematic committees prepare the basic concept and initial draft of their assigned area CC is supposed to prepare an integrated draft. The committees are preparing the preliminary draft proposals. Some of them have already completed it and some are yet to do. The CA schedule has been changed several times due to the delay in the preparation of report by some of the thematic committees specially those working for restructuring the state, deciding the form of the government, etc. The first draft of the constitution is scheduled to be published by 27 February 2010 for public comments and recommendations. Public debate will continue for next 3 weeks. The final drafts will be papered accommodating the public comments and recommendations. CA has to pass the draft constitution by each clause and sub-clause by consensus, and if not, at least by two-third majority. After certification of the new constitution by the assembly chair and members, the President is scheduled to proclaim its enactment on 28 May 2010. In view of the prevailing politics of the country CA is very hard pressed to complete its work as scheduled. The CA schedule has been changed ninth times. Political environment began to deteriorate after the UCPN (Maoist)3 left the government since its decision to sac the army chief, General Rookmangad Katwal and appoint Lt. General Kul Bahadur Khadka to his place, was vetoed by President Yadav. In addition to this, the oath taken in Hindi by Vice-President Parmanada Jha has been annulled by the Supreme Court and instructed him to take it in Nepali as stipulated in the constitution. The madhesi parties have taken it as unfair and are also making it a public issue. It remains to b e seen whether the recent seventh amendment to the constitution will resolve the oath dispute. There is polarization - on one hand the Maoists are opposing the President's action as against the constitution and as violating the 'civilian supremacy' and on the other, the political parties particularly those in the government supporting the President's action. This is direct reflected in the constitution-making process too. As a result, CA committees reports are marked by differing positions held by the respective political parties, particularly the UCPN (Maoist) taking more rigid stand. CA Committee on Restructuring the State has presented a fourteen states model on federalism. However, differences persist among parties over the model with some demanding formation of a separate commission for the purpose. To be a federal state, there has to be territorial units which will make the constituent units of the new federation. The first prerequisite of federal Nepal therefore is to carve out the provinces. The division and sharing of power between the centre and the provinces will be determined on that basis. Several models are being floated by political parties, ethnic communities and individual experts. Ethnic activists are advocating the formation of the provinces on ethnic line, a sort of 'ethnic homeland' based on their historic territories with a provision of 'agradhikar' (preferential right for the ethnic community to head the government in their 3 In January 2009 CPN (Maoist) and CPN (Unity Centre – Masal) were united. The term 'United' is added before its name. So now the party is known as United Communist Party of Nepal (Maoist), (UCPN-Maoist). respective provinces). Others argue that the provinces should be carved out taking into account of the mixed pattern of the settlement of population and Nepal's economic and development reality. Likewise, some madhesi parties and groups are demanding a separate province of 'one madhes' for whole of tarai region and parallel to this some groups in the northern belt too are demanding for a 'Himali autonomous region' from east to west. Both demands are suspected as harbouring secessionist tendencies. Although some historical ethno-regional pockets do exist they have been diluted by internal migration and the unitary political and administrative structure of the state. Opinion also extremely differ in number and name of the proposed federal units, and so the division of powers between the centre and the units particularly in the matters relating to natural resources and revenue sharing. Most of the differences, except on federalism, appear more for propaganda purpose and reflection of growing political schism than substance. Once the political parties resolve the differences particularly between the Maoist and other parties over the president's action on the army chief issue and bring the Maoist back to power sharing, many of the problems relating to the constitution making may be settled but the parties are yet to hammer out their differences and reach at consensus. Against this background this paper seeks to explain and analyze the process of federalizing the Nepali polity and challenges and opportunities that the country is likely to face in the process. 2. Federal Principles and Practices
In conventional political science literature and constitutional studies, federation means an association of relatively autonomous states (constituent units) in which the governmental functions are territorially divided into two levels, both acting independently in their respective spheres. It blends 'self-rule' at the constituent units' level and 'shared-rule' at the federal level. However, 'the existence of a single, indivisible yet composite federal nation' is simultaneously admitted (Anderson, 2008; Watts, 2008; Duchacek, 1970). Various aspects of federalism have been debated among political scientists and constitutional lawyers ever since the United States of America emerged as the first modern federal state in the late eighteenth century. However, it has received a new momentum in recent decades with proliferation of literature and sharing of ideas and experiences on the working of federal systems in various countries. Since 1999 international conferences have become regular feature of global dialogue on federalism.4 Federalism has been in general adopted in the societies that are normally large and multinational. So most of the larger countries of the world, except China, are federal. But it is not necessary that smaller countries do not have federal system. There are many countries smaller than Nepal having federal system. Normally the smaller countries have adopted federalism as a response to internal diversity and as an instrument to manage growing conflicts based on ethnicity, language, region, etc. The modern federal states with certain level of continuity began in 1787 when the US constitution was framed. Older federations such as in the United States and Switzerland 4 In 1998 International Forum of Federations was established and there have been four international conferences and the fourth one was held in New Delhi (India) in 2007. emerged when the constituent units voluntarily agreed to a sort of mutual compact through adoption of the federal constitution and entered into a new sovereign political entity without totally submitting their previous identity and autonomy. The idea behind such 'coming together' and forming the federation was motivated by their urge for creating a larger political entity in order to assure greater prosperity and security because they realized that the strength lies in unity rather than independent sovereign but divided units. Canada and Australia formed federations as a deal between the British government and the colonial administrations, since both of them were under the British colony and their independence coincided with the adoption of federal constitution. Many South American countries such as Argentina, Brazil, Mexico, Venezuela, also adopted federal system soon after independence. However, their experiment with federalism did not sustain as democratic rule failed in these countries. Again in the 1980s and 1990s they revived federalism along with the restoration of democracy. With the resurgence of independence and democracy in the 1950s and 1960s many Asian and African countries such as India, Pakistan, Malaysia, Nigeria, also chose the federal system. The existence of semi-independent states and the pattern of colonial administration provided them certain basis for federal structure in addition to the ethno-regional diversities of the population. More recently Spain and Belgium transformed from unitary structure to federal one in order to manage their internal diversity. In the late twentieth century, as the countries in different regions of the world witnessed growing violent ethnic conflicts and divisive trends, federalism gained a new context and the renewed importance "to deal with cultural diversities, competition ethno-territorial identities and claims in multi-cultural and multi-ethnic states" (Khanal, 2008). Federalism has become political tools in the post-conflict constitutional engineering in many countries. In many cases it has been used as 'institutional, legal and democratic instrument to prevent violent minority conflicts' (Gunther, 1997). The countries like Spain (1978), Belgium (1993), Ethiopia (1995), fall into this category. Besides, federalism has been attractive since it provides for small governments with ample scope 'for accommodation of all views, political compromise and the value of community' (Inman and Rubinfeld, 1997). In most cases in recent time, the federalization occurred as a process of disaggregating the unitary structure into several self-governing territorial units as they wanted "to express distinctive identities through smaller, directly accountable self-governing political units able to give expression to historical, social, linguistic or cultural identity" (Watts and Kincaid, 2008). Nepal's decision to go for federalism is also a part of such exigencies. 3. Nepali State and Society: An Interface
Nepal is a very diverse country in terms of caste/ethnicity, language, culture and geographic regions. The 2001 census recorded more than 100 ethnic and caste categories and 92 languages. The number of people comprising each of these groups ranges from 3.5 million to hardly a few hundred.5 However, none of them makes a majority. The largest groups are Chhetri and Brahman, which comprise 15.8 and 12.7 percent of the 5 2001 census has reported 101 caste/ethnic groups in Nepal. There are five such groups whose population is less than one thousand and an ethnic group called Kusunda has only 164 persons (CBS, 2002). total population respectively. Chhetri, Brahman, Thakuri and Sanyasi of hills who make the largest homogeneous population group belong to the same ethnic and linguistic community. Hill dalits also belong to this community. The hill caste groups, including dalits, which are spread all over the country, make about 40 per cent of the total population Nepal. The ethnic groups in total make about 37 per cent of the total and are very diverse. Each of them is a separate unit in terms of language, social system and culture. There are 59 officially identified indigenous ethnic groups, of whom only 42 are covered by the census report. The rest are unidentified and unreported. The major ethnic groups which make up to 5 percent of the population include Magar (7.14%), Tharu (6.75%), Tamang (5.64%) and Newar (5.48%). There are only 18 caste and ethnic groups which have population over 1 percent each. Out of 92 languages recorded by the 2001 Census, only 12 have one percent speakers each. Nepali, which is spoken by 48.61 percent, is recognized as the official language. In terms of religion, Hindus make an overwhelming majority (80.6 %) followed by Buddhist (10.7 %), Muslim (4.2 %) and others. However, the religion is not a sufficient ground for homogeneity even among the Hindus. If we classify various population groups to their closest category it may come up as shown in the following table. Cast/Ethnic Composition of Nepal
Hindu Caste Group
Brahmin, Chhetri, Thakuri, Sanyasi
Ethnic Groups
Religious Minorities
Unidentified
22,736,934
Source: CBS 2002; UNDP, RIPP/NTG, 2006
 Ethnic people altogether make about 37 per cent of the total population.  There are more than 50 Hindu caste groups, including dalits, which make about  About 5 per cent people belong to other religious minority groups, including  Madhesi people (other than the hill ones) make about 31 per cent of the total. The present state came into being as a result of the conquest by Prithvi Narayan Shah, the King of Gorkha some 250 years before. The territory that it comprises today has been historically settled by different caste and ethnic groups. Though King Prithvi Narayan Shah described the newly founded kingdom as 'a garden of different caste and communities' it never evolved into a polity that provided equitable space for all the communities. Whether it was the Shah King or the Rana Prime Minister, each tried to homogenize it along the Hindu tradition, culture and Khas language, which is now characterized as the Nepali language. The power elite were confined to a few privileged families of Brahmin, Chhetri and Newar. Others, including the women remained marginalized. Women in particular are in a state of double and triple discrimination. The pattern of development in Nepal could not remain unaffected from it. The 'centrality of Kathmandu' is the most distinguishable pattern of the development over centuries (Joshi and Rose, 1966). Other areas remained overlooked and peripheral. There has been uneven development as per caste/ethnicity as well as region. Nepal's Human Development Reports illustrates such an uneven state of development both in terms of region and communities. Compared to the whole of Nepal, the hill districts of far-west and mid-west regions are behind the national average. The national HDI is 0.509, whereas these regions are between 0.436 and 0.448 only. Likewise, the tarai region is also behind compared to the hills in general. HGU for Tarai district is 0.494 on an average against 0.543 of hill districts, including Kathmandu valley. HDI of Caste/ethnicity and regions
Ethnic groups other than Newar 0.494 Hill Ethnic groups In most parts of the country, population settlement is highly mixed. For long, the country adopted a highly centralized and unitary polity governed from Kathmandu, the capital city. Nepali language, Hindu cultural ethos, monarchical supremacy and Brahmin-Chhetri-Newar elitism overwhelmingly prevailed in overall national affairs. There were some attempts of decentralization and policy of cultural diversity but it could not devolve power nor satisfy the people's aspiration for identity and their cultural as well as ethnic rights. This ultimately pushed to the demands for proportional representation, reservation of seats in administration, education, job, etc. and federalization of the state. Despite the hesitant approach by mainstream political parties such as Nepali Congress, CPN (UML) and the prevalent cultural groups, the recognition of identity, autonomy and inclusion was accepted when political parties had to mobilize popular support against autocratic monarchical regime. The agenda for change is popularly phrased as 'Rajyako Punarsamrachana' (restructuring the state). Therefore restructuring the Nepali state, understandably with a provision for federalism, became one of the major banner headings of Jana Andolan II. Henceforth, the state has entered into several agreements and understanding with concerned groups such as Nepal Federation of Indigenous Nationalities (NEFIN), Madhesi Jan Adhikar Forum, etc assuring federal state with autonomous self-governing units. As per the provision of interim constitution a high level commission is expected to work out the details of structuring and make recommendations to this effect. But no such commission has been formed as yet. 4. The Federal Debate in Nepal
Demand for federalism in Nepal is a recent phenomenon. Although as early as in 1950s the then Tarai Congress was formed with the aim of making Nepal a federal country and it demanded that the 'tarai autonomous province' should be formed (Devakota, 1979). But federalism at that time had virtually no appeal even in Tarai region. The Tarai Congress failed to impress the populace as is evident from the results of the first parliamentary election held in 1959. All of its candidates were badly defeated and its tally of popular vote was barely 2 percent. Even its leaders could not sustain on the federal demand and submitted to the royal regime, which was installed after the monarchy abruptly ended the democratic experiment in 1960. After the restoration of democracy in 1990 some ethno-regional political parties and ethnic activists had raised the voice for the recognition of ethnic rights and autonomy. Some of them even aired the opinion for federalism. Nepal Sadbhabana Party and some other hill-based ethnic parties had called for federal system but these parties could neither mobilize sizeable electoral support nor influence the public opinion. In an environment of democracy and political freedom in the post-1990 politics, various ethnic groups were organized and articulated their demands and collaborated on common ethnic agenda. To begin with, the agenda comprised on such demands as secularism, inclusion, multilingualism, proportional representation, reservation of seats in the administration, education, job etc. This was more a reaction to the dominance of certain caste and cultural groups mainly Brahmin, Chhetri and Newar in overall state affairs rather than well argued rationale for federalism The federal debate received momentum when the CPN (Maoist) in 2004 announced the formation of autonomous regional governments in different parts of the country to cash the ethnic sentiment in favour of insurgency. The Maoists formed joint ethnic fronts as a part of the insurgency which played an immense role to expand the ethno-regional base of their movement. Most of the debate between 1990 and 2006 were mainly focused on ethnic identity and autonomy rather than federalism. Most of the ethnic group activists were either associated with the Maoist or some other communist factions and the China's autonomous region for ethnic minority was a sort of model for them. Federalism with democratic contents entered Nepal's federal discourse only after the April Movement 2006, particularly after the Madhesh Andolan6 in the beginning of 2007. Hence, federalism became a subject of national political commitment and priority Following the success of the historic Jana Andolan II (People's Movement) in April 2006 and the Madhes revolt in January-February 2007 Nepal has decided to transform the present unitary state into a federal one. The Constituent Assembly (CA), elected in April 2008, is scheduled to enact the new constitution by May 2010 to this effect. During the CA elections most of the political parties campaigned for the federal republican system and they occupy most of the seats in an assembly of 601 members. Rashtriya Jana Morcha (National People's Front), which campaigned against federalism, won only 4 seats with less than 1 per cent popular votes. Similarly, those campaigning for republic also won most of the seats. The pro-royalist Rashtriya Prajatantra Party (National Democratic Party) Nepal, which campaigned for monarchy polled about 1 per cent of the popular votes and scored only 4 seats allocated for proportional representation (PR) but did not win a single constituency seat.7 Thus the CA is overwhelmingly mandate to frame the constitution in a federal republican line. And the government is expected to chalk out the course of transition from unitary to federal state. However, many uncertainties continue to prevail which cast doubts on smooth constitutional transition. The logic for federalism in Nepal has three major grounds: (i) the plural and diverse composition of Nepali society, (ii) strengthening democracy from the bottom, and (iii) speeding up development process in a more equitable and efficient manner. For the second and third reasons, federalism may not be an essential criterion and can be achieved even under unitary state. However, Nepal's experience with decentralization and development efforts for more than half a century did not yield such result. But the aspirations for identity and autonomy can be best assured under federalism. Nepali society is so diverse and plural that requires multi-layer polity to maintain unity of the nation. Federal polity is considered as an accepted solution to this problem. It is therefore a new process of reordering the state-society relations based on democratic principles and community rights. Till now Nepal is centrally governed from Kathmandu as a unitary state. But the new constitution is expected to transform it into a federal state. A federal constitution, as Tarr (2005) stipulates requires designating the component units of the federation; should 6 After the adoption of Interim Constitution in January 2007, violent protest sparked in Tarai, the southern plain land bordering India also referred as Madhes. The government had to concede the demands of agitating community including federalism to be the basis of state restructuring through Constituent Assembly. The term 'madhes' now constitutes a symbol of identity and offers an effective instrument of political mobilization among the people of tarai, particularly the caste groups as distinct from the people of hill caste and ethnicity. Other ethnic and religious communities of Tarai such as Tharu, Muslim, Rajbamsi, etc. do not subscribe to madhesi identity. 7 The Constituent Assembly of Nepal has three sets of membership: i) 240 members each elected from single-member constituency with first-past-the-post (FPTP) electoral system; ii) 335 members elected through PR system on the basis of national list; and iii) 26 nominated members by the Council of Ministers. specify the process of adding new unit, merger or secession of existing units. Nepal does not have preexisting self-governing units that provide an easy ground for the formation of provinces. Therefore, it has to carve out new units with defined territory and transform the unitary state into a federal one. The constitution also requires determining the nature of polity the constituent units would form. Likewise, it should allocate power between the federal government and component units, determining which powers are exclusive prerogatives of each government and which powers are shared. It should also define the process and mechanism to resolve conflicts over shared power, which is very much likely to occur in future federal set up. Likewise the constitution has also to make clear the local government structure and their functional areas. Federalism alone cannot resolve all the problems. Local government bodies are the first agents which matter most o the people in their day to day contacts with the state. It may give constitutional status to the local government or may put it as the subject of the units. However, the experiences in other countries show that if the constitution defines the sphere of local government it can work better. Similarly the constitution has to specify where the national capital will be located and what status it will have in overall system. There is less debate about the status of federal capital. However, the constitutional choices are not free of its distinctive history, character of politics/political culture, and the character of the population. The constitutional history of the country is of particular importance. Federal constitution cannot be free from the positive or negative reflection of the prior constitution (Tarr, 2005:9). Nepal's constitutional experience has always been unitary one and the political and administrative mind set up of the ruling elite is very much based on unitarism. Federalism in Nepal's present context is also not founded on well argued philosophical base but a product of reaction and resentment to hill Brahmin/Chhetri domination on one the hand and populist mobilization of ethnic issues by some political parties on the other. With the successful election of CA, the emotional phase of federalism has slackened. Now it is the time to translate federalism into political reality with objectivity. Constituent assembly is expected to chalk out the constitutional structure of federalism. But it is more than that. Before the formal draft is announced, political leaders require engaging in a series of consultations, negotiations and compromises. Nepal's process of federalization as elsewhere involves three major but interrelated dimensions - identification of territorial units that corroborate with the ethno-regional setting of population; multi-level division of power and distribution of jurisdictional authority; and maintenance of unity and stability consistent with federal values and culture. This requires immense homework with sound technical backup. It is the foremost challenge. Almost each political party and concerned group has its own proposal on federalism. Mostly they are confined to the number and names of the provinces. The number of provinces proposed is between three and fifteen. The madhesi parties such as Sadbhavana Party is for three provinces – one each for Himal (Mountain) Pahad (Hill) and Madhes (Tarai) regions. Madhesi Janadhikar Forum Nepal and Tarai Madhes Loktantrik Party are sticking to their demand for one madhesi province extending from eastern to western Nepa to the south of chure hills. But the madhesi community and parties themselves are divided on this demand. The UCPN (Maoist) has proposed 13 states of which 11 are ethnic based and two are region based. CPN (UML) has proposed 15 provinces - nine on ethnic based and 6 based on geography and even given names for the provinces. Nepali Congress has proposed that the number of provinces should be five or seven but not named them. However, opinion widely varies within the party and it has yet to make its formal stand public. The opinion is very much divided on multiple lines - (i) madhesi versus hill perspective that argues there should be no 'one madhes province' because it will ultimately lead to permanent division of the country and disintegration. (ii) The provinces should not be named after particular ethnicity since no group make a majority population in any particular province and it will alienate other communities. (iii) The provinces should have linkage from north to south because that would help strengthen national unity and provide sound economic and natural resource base for each province. Besides, dalits -they don't have specific territory which they historically claim - are demanding non-territorial unit to safeguard their interest. These are very much tricky issues. The madhesis want freedom from hill domination and for this purpose they argue one madhes will strengthen their bargaining position vis-a-vis the hill elite. The janajati (ethnic groups) want ethnic based provinces so that they can contain hill Brhamin/Chhetri dominance. Regarding the division of power and distribution of jurisdiction there exists much commonality among the parties. Accordingly, parties are unanimous that foreign policy, defence, currency and other issues of overall national concern should be controlled by the centre. Whereas issues like education, health, employment, public transport, forest, water, land etc are to remain with the provinces. Major parties such as NC, UML, and Maoist are for a balanced division of power between the centre and the province. Some smaller parties like Nepal Workers and Peasant Party, Communist Party of Nepal (ML), Communist Party (United) are in favour of strong centre, whereas, madhesi parties are for greater rule for provinces. Federalism is possible only when the probable constituent units and communities are ready to compromises. Pre-existing ethno-regional and territorial basis of federation as mentioned already is very weak in Nepal due to centuries of migration and settlement pattern. New territorial basis has to be found, for which the concerned parties must engage in negotiation. After all federalism is the product of compromise. We cannot expect a full-grown federalism in one day, it has to be nurtured and evolved once it is created. Against the above background the constitution-makers and the advocates of federalism in Nepal need to take into consideration the following points while carving out the federating units. 1. Ethnic, linguistic and cultural homogeneity of population. 2. Geographic contiguity. 3. Natural resources and Economic viability. 4. Administrative feasibility. 5. Mutual interdependence Nepal has decided to go for federal system not because it is a too large country to manage the affairs under unitary system. The internal diversity is no doubt the primary factor but that alone is not the sufficient to devise a federal system. Therefore, the provinces must combine ethnicity with other feasible factors such as economic sustainability, political and administrative manageability. Moreover, it should minimize the fear among the people. There are two types of fear out of federalism prevailing among the general people of Nepal – (a) the fear of disintegration, (b) fear of alien-native divide within the provinces. The political leaders must take these into consideration. The recognition of one's identity and culture should not be allowed as the rejection of other. Going into a federal system is not just about creating the constituent units of the federation and but also empowering them with the executive, legislative and judicial authority. For a unitary state like Nepal, it also involves transforming the administrative machinery in these units so that they can manage the governance in an autonomous manner. It is not an easy job but involves constitutional/political process as well as series of steps to complete the transition including follow up legislations, holding of elections and installation of duly elected government in each unit. To sum up, federalism has been accepted by almost all political parties and groups.
However, there exist three most discernible challenges. Obviously, the delineation of the
territory of the prospective provinces is the foremost challenge requiring a lot of
homework and technical back up and it has till now remained low key both for the
government and the major political parties. Secondly, the name of the provinces is very
much sentimental aspect. A lot of conciliation, moderation and compromise are required
to arrive at acceptable solution without alienating any group of the population. Thirdly,
the division of power and areas of jurisdiction is another important aspect. However, it
may be amicably settled since there is more commonality in this aspect. At this stage
Nepal is beginning a journey towards federalism. A lot remains to evolve through
practices.
Areas of Agreement and Disagreement
There are some areas which appear common for most political parties. Most of them have accepted that restructuring the state is a must to end discrimination and marginalization that have existed for long, including the transforming present unitary state into a federation. There also appears a broad commonality that there will be three tiers of government – federal, provincial and local. They also agree on creating autonomous and self-governing units as the constituents of the new federation. On the division of powers between the centre and units most parties prefer that the center should handle defence, foreign policy, currency, aviation, railways, national highways, large projects linking two or more provinces, etc. There is also broad understanding that the constitution should provide separate lists for central, provincial and local areas of competence Commitment to democracy, human rights, rule of law, competitive politics, adult franchise, periodic elections, etc. are also equally found in all parties. These are frequently reflected in Comprehensive Peace Accord, CA election manifestos and the Interim Constitution. These are expected to be enshrined in the new constitution as well. However, political parties particularly UCPN (Maoist) often give posture to communist regime such as 'People's Republic', denunciation of parliamentary system, legislative supremacy over judiciary, etc., which make other parties to suspect the Maoist commitment to democracy. But there are other many crucial areas where the parties differ significantly. They differ on the basis for creating units/provinces; their number and name; whether the centre should be strong or weak; etc. Janajati and madhesi parties are demanding that the province should be granted right to self-determination. Right to self-determination and agradhikar (reservation of the right for particular ethnic group to head the provincial government) are the most contentious issues related to federalism in Nepal. The Maoists have promised these but how to harmonize these issues as the constitutional principles is not known. Many argue that right to self-determination ultimately imply right to secede and agradhikar does not comply with the democratic principles of elected government. Other issues in which parties differ include link language, the form of government,
electoral system, etc. Even the national flag has been questioned and alternatives are
being floated. The Maoist and some other parties are for presidential system whereas NC
and other are for presidential system. Even among the supporters of parliamentary system
some including UML are for direct election of the prime minister rather than on the basis
of parliamentary majority. The Maoists are for unicameral legislature which will control
other branches of the government supreme including the judiciary. Similarly most parties
are for a sort of the mixed electoral system but the Maoists differ.
Potential Areas of Future Conflict
As the country is certain to adopt federal system new areas of potential conflict also
appear. They are basically regarding the ownership of natural resources, delineation of
internal boundaries, revenues-sharing and equalization, native-alien dichotomy, minority
issues, etc. Most federal countries have mechanisms for conflict management. The new
constitution is also expected to devise mechanisms appropriate for Nepal. Various
mechanisms are being floated in this regard. They are like political conference, inter state
council, parliament and parliamentary committees, judiciary, referendum, etc. However,
it is yet to be seen CA agree on them and enshrine into the constitution.
Future of Nepal as a federal state
Nepal is being dragged into federalism without enough preparation and homework. The leadership also lacks any sound vision of federal Nepal and its commitment is motivated by short sighted political expediency. The Maoist leadership too never delved on federalism and its values. Rather it used ethnicity for the purpose of expanding and consolidating the insurgency. Its version of autonomy did not have democratic contents but a party-controlled command structure which hardly corroborates with federal values. Other political parties such as NC and UML never thought about federal Nepal. They are dragged by the exigencies. Political parties in Nepal operate in a highly centralized structure and the political culture lack federal republican contents. Each of them has 'winners take all' tendency. Within both NC and UML anti-federal opinion is still prevalent. The reluctance of all the major political parties is evident from their unwillingness to form the State Restructuring Commission as per the provision of Interim Constitution. As a result, the CA Committee which is supposed to recommend constitutional provisions relating federal structure does not have even minimum information and options that would provide inputs to the parties. There is a serious time constraints before CA. Its schedule has already been changed several times which has raised suspicion among the people that the constitution will not meet deadline. However, if the parties reach at understanding still they can frame the constitution as scheduled. Federalism in Nepal is likely to have several implications. They may be summed up as following.  Expand the power base of the state to regional levels accommodating  Can further the sense of belongingness to Nepali state and nation.  National parties will weaken and regional parties will grow.  Regional leadership will have chances to consolidate and influence the leadership composition at the central level.  Social fabric and harmony, including the unity of the nation may be at risk if communal extremism becomes the sole element to influence and determine the future federal setup.  If adherence to democratic norms and values remain weak and wild race for power continue, corruption, instability, favouritism may be more entrenched at the provincial levels.  There lies greater challenge of translating federalism into action than just Anderson, George (2008), Federalism: An Introduction, (Ontario: Oxford University Press), Blinderbacher, Raol and Arnold Koller (2003), eds. Federalism in a Changing World - Learning from Each Other, Montreal: McGill Queen's University Press. Central Bureau of Statistics (2002), Population Census Report 2001, Kathmandu. Devakota, Grisma Bahadur (1979), Nepalko Rajnitik Darpan Part II, Kathmandu: Dhruba Bahadur Devakota. Duchacek (1970), Ivo D., Comparative Federalism – The Territorial Dimension of Politics, (New York: Holt, Rinehart and Winston, Inc, 1970). Election Commission/Nepal (2008), Constituent Assembly Members Election Result, 2064 V.S. Kathmandu. Government of Nepal (2008), The Interim Constitution of Nepal 2063 (2007), Kathmandu: Ministry of Law, Justice and Parliamentary Affairs. Inman, Robert P. and Rubinfeld, Daniel L. (1997), "The political economy of federalism" in Dennis C Muller (ed.), Perspectives on public choice, Cambridge University Press, pp.73-105. Joshi, Bhuvan Lal and Leo E. Rose (1966), Democratic Innovations in Nepal, Berkeley: University of California Press (Reprinted in Nepal by Mandala Publications 2004). Khanal, Krishna P. (2008), "Restructuring of the Nepali Sate: The Federal Perspective" in Lok Raj Baral (ed.), Nepal New Frontiers of State Restructuring of State, New Delhi: Adroit Publishers, pp 81-99. -------------------- (2006), "The Maoist Agenda of Restructuring the State: An Appraisal " in Lok Raj Baral ed., Nepal Facets of Maoist Insurgency, New Delhi: Adroit Publishers, pp. 164-184. Tarr, G. Allan (2005), "Introduction Constitutional Origins, Structure and Change" in John Kinciad and G. Allan Tarr (eds.) A Global Dialogue on Federalism Vol.1 Constitutional Origins, Structure, and Change in Federal Countries, Montreal: McGill-Queen's University Press, pp. Republica (2009), Maoist Proposal for 13 Provinces, 4 September. Riker, William H "Federalism" in Fred I. Greenstein and Nelson W. Polsby (eds,) Handbook of Political Science, Volume 5, Addison-Wesley Publishing Company) UNDP/Nepal (2009), Nepal Human Development Report 2009, Kathmandu: United Nations Development Programme (UNDP). Watts, Ronald L. (2008), Comparing Federal Systems, (Montreal: McGill-Queens University Press, 2008),

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