Print Edition - 2016-07-21  |  Oped

Perils of questioning federalism

  • The way forward is not to turn away from the storm of federalism, but to weather its biting winds in anticipation of sunnier skies
- WARIS HUSAIN

Jul 21, 2016-

With the political sands shifting once again in Nepal, many fear the outcome will damage the country’s ability to develop its constitutional path. Yet, there was a more significant news story last week that deserves attention. Members of the government recently asserted that the implementation of federalism has been so difficult that the whole system may need to be abandoned in the near future. 

There is no doubt that the difficulties in implementing federalism have led to political fissures, but the impact of such an about-face could be far deeper than any change in Parliament’s leadership. Though setting aside federalism might accomplish short-term political goals, it may also deprive Nepal of a long-term solution to its legal and democratic issues. 

A long process

A question arises as to whether federalism can meet the expectations of Nepalis, or whether it is merely an unattainable academic solution to real-world problems. The first element is the expectation of the people and their representatives. In some ways, the proponents of federalism have oversold its potential benefits, as many in Nepal believe that federalism is a panacea for problems in the country. While it cannot solve everything, the current constitutionally-mandated system of federalism does allow a closer connection between the needs of local populations and their representatives. It attempts to address the complaint by many that their leaders do not reflect or pursue their desires and needs. 

The hope is that over time the creation of local governments and provinces will foster a more direct democratic connection. For politicians thinking pragmatically, the system of federalism presents both challenges and opportunities: many fear losing their existing power to a sea of newly-created administrations whereas others see it as a chance to expand their influence at various levels. It is clear that politicians know that a great deal is at stake as the government draws provincial lines, and some perceive federal demarcation as a zero-sum game that will determine their political power in perpetuity. 

However, as other nations like Pakistan demonstrate, the scope of federalism and shape of provinces can change over time; the implementation of provincial boundaries is the beginning of a long process, not the end. The deadlock on this issue needs to be resolved by both sides through compromise and within the parameters of the constitutional system, rather than raising issue with the merits of that system at large. 

Problematic conflation

Conflation has been a major issue in Nepal during debates and conversations concerning federalism and the new constitution. Equating federalism as a concept with the constitution or constitutionalism (the respect for rule of law through a constitution) is a major impediment to success in the country. First, if one questions the merits of federalism, one is questioning the merits of the constitution at large. Second, by this logic, in order to support the constitution, one must respect the federal system in its current form. Neither of these assumptions is necessarily true, as one can be a proponent of rule of law through the constitution, while questioning the level of devolution and provincial autonomy under the current mode of federalism. 

Further, this conflated view could facilitate political leaders to set aside the current constitution  altogether due to problems in implementing federalism. While such a strategy may address some of the underlying concerns raised by political parties and civic groups since 2015, it would also set the nation back and potentially delay implementation even more. The abrogation of the constitution has not led to many positive developments in South Asia; the emergency rule imposed by Indira Gandhi’s government in India in the mid-1970s and the various extra-constitutional coups in Pakistan have stymied progress in those countries, not facilitated it. 

Filling power vacuums

If a change in the country’s political leadership does take place in Nepal, the problems of implementing the constitution faced by the current administration will not go away. There are still over 30 parliamentary implementation groups and over 100 laws that need passing to implement the constitution, not to mention the unsettled issue of demarcation and the creation of local, district, and provincial administrations.  

The way forward is not to turn away from the storm of federalism, but to weather its biting winds in anticipation of sunnier skies. The problems that inspired the political leadership to adopt federalism have not gone away, so removing the newly-formed system will not address those underlying problems. The transition from unitary to federal government creates power vacuums during the shift of authority from the centre to the provinces and localities. Filling those vacuums does not require quick implementation, but it does require thoughtful and effective implementation. 

However, people and political parties are rightly fatigued by a constitution that, at first glance, seems nearly impossible to implement. Regardless, devolution and the implementation of the constitution are long-running processes that require 

a great deal of political stamina, especially when the intrinsic parts of a system 

are altered, such as by turning a centralised monarchy into a federal republican 

democracy. For critics, patience is key. The implementers of the constitution, on the other hand, must act with immediacy but also commit to federalism as a guiding 

principle. Questioning the scope or manner of implementing federalism is one thing, but questioning the overall merit of federalism at this point could set Nepal backwards.

 

- Husain is an adjunct professor at the Howard University School of Law, US

Published: 21-07-2016 10:38

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