Federalism New Exercise In Nepalese Polity

Dr. Panna Kaji Amatya

Federalism is a prominent system of government emerging in the world today. It accounts for more than one half of the world?s territory and population. It is increasingly and favourably being discussed and debated more and more in many a country, much more so in culturally, racially, linguistically, religiously and crisis-prone diverse and plural countries like Nepal. A state once federated is rarely found to break up. On the contrary, there are many examples of unitary states either disappearing or splitting.

National aspirations

As a unitary Nepal fails to meet the broad national aspirations, centrifugal forces are growing as a consequence of that failure. So, a nation-wide demand is being made to end the exploitive unitary system and set up a federal system in Nepal. As a result of the new awakening of the various ethnic, racial, religious, indigenous, excluded, marginalised and language communities scattered across the country, the people, during the Second Movement launched for the re-restoration of democracy in 2006, revolted against the excessive centralisation of power and their exclusion from sharing of power for an intolerably long time.That the unitary system, if imposed and continued as in the past, will sure enough augur ill for the nation has been widely talked about. However, sadly enough, the political parties and their leaders have no clear-cut agenda in this regard. They have merely included a non-committal provision in the Interim Constitution, which says: ?The Constituent Assembly will decide on the nature of the federal system.?

The failure of the rulers to clearly plant the seeds of federation in the Interim Constitution of Nepal roused the excluded and marginalised people to exasperation, frustration and fury. They felt that they had been badly done by. It was only in the wake of the paralysing movement by them, particularly in the Terai, that the coalition government of the seven political parties and the CPN-Maoists were forced to amend the Interim Constitution towards their ?commitment? to establish a federal polity in Nepal through the constitution to be made by the Constituent Assembly. Now, the question naturally arises: ?What does federalism mean? Defining federalism is a very difficult task, for this difficulty is heightened by the wide functional differences witnessed in the various federally structured polities in the world and by big gaps between theory and practice of federalism. Thus, federalism has become different things to different persons. Simply put, federalism is a system of government in which power is divided by a written and relatively rigid constitution between a central, national or federal government and regional, provincial or state governments. Under it, national and state governments are, more or less, equally powerful.

Federalism, understood so, refers to a political system characterised by two levels of government, with each deriving its power and functions from a supreme authority which is not controlled by either level and which, in turn, controls both the levels. That authority is the constitution of the union. The generally recognised principle of federalism is that there is the explicit division of powers between the national and regional governments. Whatever concerns the nation as a whole or whatever is primarily of common interest is under the control of the national government, and all other matters which are not concerned with the centre are in the domain of the respective regional governments, each level of government being coordinate and independent. If looked at federation as preached and practised in the United States, the best example of a federal government, the powers to be exercised by the national government and regional governments are specified. The residuary powers are left to the latter, which contrasts with countries like Canada and India where the residue is left to the national governments.

Equally important in this regard is the question ?Why is a federation formed?? For the formation of a federation, K. C. Wheare affirms, there are some prerequisites such as the desire of the regional units to be under a union and the desire to retain or establish independent regional governments. If one follows him further, other factors that lead to the federation are a sense of military insecurity and the consequent need for common defence; a desire to be independent of foreign powers; anticipation of economic advantage; geographical proximity; and similarity of political institutions. Traditionally, such a federal state is formed by an association of independent states federating themselves for some common purposes. Such practice was in existence in ancient Greece. The United States is the first modern country to constitutionally introduce federalism. It is the best model for other countries adopting this system or willing to adopt it. The US federalism is the most successful experiment in the community of nations. Most of the federal polities took inspiration from this model though they had to adjust and modify this system in accordance with their own national requirements. However, it has become a dynamic process rather than a static concept. US federalism has undergone remarkable changes in its nature and characteristics, the most important among them being the progressively increasing power of the national government.

In the case of the USA and Switzerland, the confederation preceded the federation. Today it cannot be properly understood on the basis of such traditional approach to federation, despite the relevance of its views and contention, and contribution to the development of the process of federation. On the other hand, the Nepalese federation to be instituted will be a different process similar to that of Spain and Belgium. In the USA and Switzerland, the constituent states become the federating units, but in Nepal, the state itself, till now all-powerful, independent, sovereign, centralised and unitary, will create its federating units and make a federal state there. The federation may be an effective means for the preservation and promotion of the interests of the geographically, socially, economically and politically disadvantaged, excluded and marginalised people. It also gives them opportunities to get themselves organised to assert their rights and contribute to the development of the nation and its politics. Therefore, arguments that the federation is expensive and complicated should by no means discourage the people from shying away from forming it. Its advantages are more worth than its disadvantages.

There is no reason to ignore and criticise it simply because it may be incongruous with the tradition. Judging by what unitary Nepal has been doing till recently, one may conclude that the unitary system is not a better system for Nepal or for good governance. In reality, federation means more governance throughout the country through constituent units and less government from the centre.Therefore, the people should by all means and to the extent possible keep debates going on regarding the theory and practice of federalism, particularly with regard to the nature of the federal structure in Nepal. The most important factor, which should never be ignored, is the adoption of the co-operative model of federation in contrast to the classical ?dualistic? model under which the powers of the national and regional governments are constitutionally distributed on the basis of localism vs. centrism notion. The co-operative model implies the existence of two levels of governments, both of which are equal partners, not equal rivals, with one government not being subordinate to the other.

Visionary leaders

However, merely talking about federalism continuously and harping on the same string is not enough. The initiation of a federal polity entails the presence of leaders who have the vision and mission to translate it into reality. Federalism to be successful requires national leaders, not mere leaders of the political parties or just sectional leaders recognised by only their cronies as we see it today. It is not wide off the mark if one says that under the unitary system there have always been governments by cronyism since the creation of modern Nepal. One may reasonably hope that federalism, once introduced, will give birth to the emergence of true national leaders with a vision of a better Nepal. This is the crying need of Nepal.

Source: The Rising Nepal, May 7, 2007

A Step Forward

IT is a welcome sign that the government talks team has initiated dialogue with the various agitating groups. The first meeting has been with the Nepal Federation of Indigenous Nationalities (NFIN). This shows that the government has kept its door open for negotiations. It may be worthwhile remembering that the various groups putting forth their demands had resorted to protests through bandhs and demonstrations. Seeing that the government is sincere about discussing and resolving their demands, the talks have begun. It is not that the first meeting itself will lead to the settlement of the demands but that it has begun is an indication that in the next few rounds of talks, appropriate solutions will emerge. The meeting with the NFIN held the other day discussed the modalities of the future talks. Dwelling on the talks, Minister for Peace and Reconstruction Ram Chandra Poudel said that the focus of the talks centred on the processes for the next round of dialogue. It is noteworthy that the NFIN has agreed to continue the dialogue. Minister Poudel also said that the government was ready to negotiate with all the agitating groups, including the Madhesi People's Rights Forum. He also urged all the concerned to make efforts to sort out problems for the cause of the nation, people and democracy.

This is certainly a bright lining in that talks with one of the agitating groups has begun in earnest. The government talks team also has meetings with other agitating groups lined up in the days ahead. This is very crucial in creating a conducive atmosphere in the country for the constituent assembly polls to be held in a free manner. The past months have seen disturbances in some parts of the country, which has made the life of the people difficult. Now the situation may change for the better with the agitating groups willing to sit for talks with the government. With positive indications coming from them, it can be hoped the next few weeks will be able to see some positive changes, with the contentious issues raised by the various groups being discussed and amicable solutions emerging. In this connection, the government well knows that the various demands put forth by the groups need to be resolved so that it will lead the country forward towards the goal of all-inclusive democracy and lasting peace.

Source: The Rising Nepal, May 7, 2007

US Proposal And Its Initial Repercussions

Kazi Gautam

THE US proposal of resettlement for the Bhutanese refugees has been highly anticipated as it is expected to bring about a durable solution to the refugee impasse. Although it cannot give a permanent solution to the issue, however, it is expected to improve the refugees' lives up to some extent. Nevertheless, the formal announcement of the US scheme has invited serious predicaments that need to be addressed at the earliest. It has particularly created a faction among the refugees, thus, creating enmity between each other.ConsequencesIt was a near miss for Hari Prasad Adhikari-Bangaley, secretary of Beldangi II camp when he managed to evade the attack of an unidentified armed assailant on April 10. It's been almost a year since he started to live in Damak due to numerous attacks that were intended to kill him since he started advocating the US resettlement plan.

In another similar incident, Parsu Ram Dahal of Timai refugee camp was abducted and released by an unidentified group. A few months back, three of the refugee teachers of Beldangi 1 camp were severely beaten up.Following the official proclamation of the proposal of the US to begin from July 1, the refugee population has been divided into three groups: one which has welcomed the US plan, another group against it and the last group of those who are still ambivalent about accepting or rejecting the resettlement scheme. There have been clashes and scuffles between the first two groups that have eventually invited inestimable seen and unseen squabbles. There is an eerie silence in the camps that has tormented the refugees' lives. The refugees must be always alert and be on their guard for fear of getting attacked any time.

Though everyone is aware of the criminal activities that have been terrorising the refugees, no steps have been taken so far to guarantee a secure life for them. Neither the UNHCR nor the Nepalese government has been able to check the internal security system in the camps. Given the dispute between the first two groups, the refugees have been found attacking members of the rival group, thus, afflicting those innocents that don't belong to any of these camps. On the other hand, there exists a cold relationship between the refugees and the locals. The former are mistreated and tortured by the latter off and on. They are chastised and intimidated even for small things. The scuffle between the refugees and the local forestry officials on February 22 this year took the life of Gopal Khadka, a refugee from Sanischarey refugee camp. Because the refugees cannot survive with the meagre commodities supplied to them, it becomes necessary for them to go out of the camp to earn money. This results in quarrels between the locals and the refugees, which eventually benefits none.

The US seems committed to resettling the Bhutanese refugees in its land in the next few years. It has already begun the process by working towards the establishment of an overseas processing entity in Jhapa and Kathmandu. It has also begun to counsel the refugees tacitly. Some other countries as well have shown immense interests towards sharing the burden.However, the prime importance to be carried out without further ado is to provide a secure life to the refugees. There must not be any sort of threat, and there should not be any danger to the refugees. The Camp Management Committee (CMC) and the committee that looks after the internal security system in the camp and the secretaries of the camps have not succeeded in providing security to the refugees as they have been threatened very often by unidentified people.

The police check posts responsible for providing security in the refugee camps do not exist now. Anyone can walk into the camps very easily. If immediate steps are not taken to check the security in the refugee camps, several serious incidents could arise, thus, pushing the situation out of control.Hence, there are certain things that must be addressed before the US begins the process. First, the confusion among the refugees as regards the resettlement scheme must be cleared. There is a large portion of the refugee population that is unaware of the proposal. Also, a peaceful and conducive environment must be created in the refugee camps so that the refugees feel free to decide about choosing the option at hand.The second important thing that deserves special attention is making public the state of those refugees who have been recently resettled in some western countries. Till date nothing is known to the refugees regarding their present condition.

Third, every refugee needs more information. With a paucity of information as regards the terms and conditions to be faced by the refugees, and also the western culture and lifestyle, the American proposal still looks like an enigma, and the refugees are ambivalent about accepting it. So before the establishment of an overseas processing entity, the necessary information should be made public.RepatriationThe next point that deserves mention is that majority of the refugees have been waiting to get repatriated. Failing to address their interests would be a hindrance towards the peaceful beginning of the resettlement programme.The last urgent step to be taken by the concerned authorities is to check the internal security system in the refugee camps. The fact is also that the insidious effect of the present camp activities would surely turn out to be a serious impediment to the resettlement process. A failure to find an amicable approach could prove a serious blow to the US.

Source: The Rising Nepal, May 7, 2007

Global Partnership For Development

Lok Nath Bhusal

Nepal's future course of development critically hinges on the materialisation of the commitments made in the Millennium Development Goals by the development partners. Drawn from the Millennium Declaration of September 2000, the MDGs are a groundbreaking international development agenda for the 21st century. With the aim of bringing peace, security and development to all people, the MDGs, having eight goals and 48 indicators, outline major development priorities to be achieved by 2015 by the UN member states. Indeed, on the part of developing economies like Nepal, achievement of the first seven goals - eradicating extreme poverty and hunger, achieving universal primary education, promoting gender equality and empowering women, reducing child mortality, improving maternal health, combatting HIV/AIDS, malaria and other diseases, and ensuring environmental sustainability - largely depends on the accomplishment of the eighth goal, i.e., Developing a Global Partnership for Development.

Institutional reformsThis is because in most of the developing economies, there is a wide gap between revenue and expenditure. Nepal's MDGs Progress Report 2005 states that external assistance totalling US$ 7.6 billion is necessary to meet the first seven goals. Obviously, increased focus on debt relief and development cooperation through more effective aid are crucial to financing development. Having said that, the present article outlines major achievements and shortcomings in the area of institutional reforms in Nepal essential to attract foreign aid. As a precondition for increased foreign assistance, Nepal's commitment to an open economy, good governance and poverty reduction are some of the major achievements. This is apparent from the objectives and strategies of the three successive plans following the 1990 political change. These plans have clearly allowed market-based economic growth, set poverty reduction as the single goal and unveiled a systematic arrangement to institute good governance.

Reduction, restructuring and rationalisation of import duties, elimination of most of the quantitative restrictions and import licensing requirements, interest rates deregulation, and introduction of full convertibility for current account transactions have been the major reforms in the trade and financial fronts. Consequently, the unweighted average rate of protection has declined from 111 per cent in 1989 to 22 per cent in 1993, and to 14 per cent in 2002, clearly indicating a liberal economy.Furthermore, in terms of trade to GDP ratio, for 1984/85 it was 31.9 per cent whereas it was 50 per cent in 2003/04, suggesting Nepal to be the most open and trade dependant economy in South Asia. Likewise, a number of innovative approaches have been initiated to making the civil service responsive, efficient, accountable and inclusive to ensure good governance. Elimination of 7,334 vacant positions and putting a cap on recruiting class III and class IV non-gazetted staff have been carried out to right-sizing the bureaucracy.

Likewise, institutional reforms in the central personnel agency, the Public Service Commission, CIAA and the National Vigilance Centre are underway to make the bureaucracy more efficient, accountable and corruption-free. Indeed, with the enactment of the Local Self-Governance Act 1999, Nepal has taken major strides towards decentralisation and, thus, poverty reduction. As a result, the local bodies have improved their performance owing to their better preparedness with the periodic plans, technical capacity, operating systems and operational processes.In order to upgrade the judicial capacity and resources for enhancing justice delivery, the judiciary has prepared a strategic plan to link the judiciary with the national planning process. The plan envisions a system of justice that is independent, competent, speedy, inexpensive, accessible, ethical and worthy of public trust. All these reforms are intended towards improving governance and, thus, making it more pro-poor. Eventually, these reform initiatives meet the basic conditions for global partnership for development.

A number of shortcomings in the realm of governance and economic and trade reforms still persist in creating a conducive environment to attract more foreign aid. First, the sluggish progress in the piloted performance-based management system, owing to inadequate fulltime staff, poor management, funding and facilities in the changed management units in the public institutions, has been a major setback to the reform process. Also, transfers, promotions and the distribution of other career development opportunities within the civil service have yet to be institutionalised. Second, the conflict has forced many VDC secretaries to abandon their posts, curtailing development activities and taking a toll of the decentralisation process. Again, although theoretically politicians and bureaucrats seem to agree on greater decentralisation, in practice, the centre has always been reluctant to do away with its powers to carry out any meaningful decentralisation. Third, the lowly paid public servants and deteriorating ethics and integrity are major challenges to fighting rampant corruption. Essentially, judicial reforms and FDI inflow have a positive relationship.

Additionally, on the economic front, too, deregulation of state monopolies, privatisation and financial sector reforms have been disastrously slow. Again, our efforts at realising the notion that aid should promote trade have not materialised to the desired extent. Obviously, these shortcomings contain our potential for attracting more foreign resources.Economic diplomacyTo conclude, in an era of economic diplomacy, increased foreign assistance is extremely crucial for undertaking development activities in Nepal. Despite some achievements made in the economic and governance reforms for meeting the preconditions for such assistance, further deep-rooted reforms are required to benefit from foreign aid. Indeed, as part of a global development strategy, Nepal will be in a position to attract more aid and stride towards accelerated socio-economic development in the future. Broadly, such aid money should be spent on reconstruction, rehabilitation and infrastructure development, peace and meeting people's basic human rights, gender and social inclusion and better service delivery. Indeed, Nepal must work hard for better alignment of assistance strategies, receiving increased budget support and harmonisation of assistance and procedures, and ultimately focus on better results.

Source: The Rising Nepal, May 7, 2007

Poor man’s pal

The pay of the 93 attorneys appointed by the court — from the Supreme Court to the district level — to fight on behalf of the litigants too poor to hire lawyers on their own is shamefully low, even for a part-time job. For half a century, the practice has existed of hiring legal practitioners, called appointed attorneys in the court circles, on contract for up to two years. There are two categories of them — the pleaders who are required to possess no more than a Proficiency Certificate in Law get only Rs. 2, 000 per month and the advocates who have to possess a Bachelor’s degree in Law, only Rs. 2, 500. This, too, after their salary increase of Rs. 500 in January.

These attorneys are recognised as civil servants and get much less than even the basic salary of a peon, that stands at Rs. 3, 700 per month. And they are supposed to be defending the rights of the poor people in all three tiers of the judiciary while private practitioners charging individually for the cases make an incredibly high income, not to talk of those whose monthly pickings run to lakhs of rupees.This raises several questions. One is that though the government may say it has looked after the interests of the poor litigants, in practice it amounts to doing so only for the sake of form. On such a salary, who would be willing to take a job other than fresh, often hard-pressed, graduates with just a licence in hand to plead? When they are just completing their ‘internship’ their contract lapses, bringing in a new crop of young people barely out of college. It is also questionable that these attorneys can do full justice to the cases they take up, with experienced, high-charging lawyers arrayed on the other side of the dock. It is also time a study was made of the success rate of the ‘poor cases’ undertaken under the government’s free legal service. But, whether the government may decide to appoint experienced or raw people as attorneys, though the latter would clearly be preferable, the salaries must at least be respectable.

Even more galling is the fact that the Cabinet fixes or changes these salaries. Though the concept behind the system may not be a full-time one, the nature of the job undoubtedly is. For instance, an attorney at the Supreme Court is reported to have dealt with 160 cases in a year. The plight of the appointed attorneys also raises a moral question for the government: How can it expect others in society to honour the minimum wage principle while it itself metes out such an injustice, of all people to those supposed to defend the citizens’ rights. However, a silver lining for these hapless attorneys is a report prepared and recently submitted by a committee headed by apex court judge Anup Raj Sharma. The report recommends treating pleaders as section officers and advocates as under-secretaries. Besides, as the job is contractual, the attorneys are deprived of all the perks and facilities given to regular employees. Because of this it would not be unfair at all if these attorneys received a salary only slightly more than the basic pay of their confirmed counterparts.

Source: The Himalayan Times, May 7, 2007