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Impasse over administrative federalism
Confusion regarding provincial autonomy over public services is constitutionally unwarranted.
Binay Mishra
On January 10, while responding to the State Affairs and Good Governance Parliamentary Committee, Chairperson Madhav Prasad Ghimire of the Federal Public Service Commission stated the indefensible. His suggestion that “provincial secretaries and chief administrative officers (CAOs) for local governments should be federal government employees”, is not only unwarranted but also contradicts the federal constitution of 2015.
Unfortunately, despite the severity of the issue, no serious discussion has been reported in the media. The debated Federal Civil Service (FCS) Act is instrumental for 760 sub-national administrations suffering from the chronic shortage of civil personnel. Registered in 2017, the bill faced various amendments, even withdrawal, yet Parliament failed to enact it. Eventually, the bill was re-registered in March 2024 to replace the obsolete Civil Service Act of 1993 to terminate the protracted administrative transition. About a decade-long impasse over such a paramount administrative law implies an awful delay, if not the willful ignorance by stakeholders.
Stances over stakes
Analytically, the stakes behind this delay are the implicit interests of the three groups—political parties, bureaucrats and job aspirants. Subordination of bureaucrats at higher administrative echelon constitutes the contention among parties. Reluctant federalists like the Nepali Congress and the CPN-UML oppose the subordination of provincial secretaries and chief administrative officers to the provincial government. They want senior administrative officers to be accountable to the federal government and work as coordinating agents while stationed in provincial and local governments. The CPN-Maoist and regional parties, however, stand for the opposite, arguing that official accountability to the provincial government is essential to institutionalise federalism.
Office holders’ stakes in openness to competition, implied interest in promotion, retirement age, implication of intergovernmental transfer and restricted trade union add to the already stalled act. An increment in reserved seats, from earlier 45 to the proposed 49 percent, an increased quota for Tharu, Muslim and Dalit but likely decrease in Madheshi quota, adds to another dispute. Similarly, an increased percentage of open competition for gazetted third-class officers shrinks promotional opportunities for the non-gazetted staff. There have also been contrasting views on the arrangement for additional secretaries, and impartial and singular staff trade unions. The possibility of permeability in the event of intergovernmental transfers also causes career concerns for staff-in-services. And the proposed service entry age cap—from existing 35 (male) and 40 (female) to 32 and 37 years, respectively—has discouraged many aspirants in the job market.
Also, parties are inconclusive on the inclusion of health in federal service clusters, provided the localised nature of the service. Only the constitution can provide clarity to these prevailing confusion and competing claims.
Constitutional clarity
The constitutional schedules (five to nine) scheme over the legislative and executive (administrative) authorities at the federal, provincial and local units. To execute their programmes, policies and decisions, Article 285 provides provisions for the organisation of sub-national civil services that are to be regulated by the provincial administration. Such provincial administration, thus, has to be recruited by the provincial public service commission, as per Article 244. However, with regard to providing operational and structural guidelines for provincial and local services, Article 302 promises a Federal Civil Service Act. In addition, the Local Government Operation Act 2017 also mandates local executive authority over local policies, decisions and services.
Clearly, the constitution calls for a dual administrative arrangement involving both federal and provincial public services. But this duality also necessitates intergovernmental cooperation and coordination, as mandated in Article 232, along with concurrency over subjects such as agriculture, health, education, natural resources, and so on. How could this dual and shared administration be organised? Is there any singular model of administration federalism?
Administrative federalism
Practices within federations confirm a combination of both independence and interdependence. With varying degrees of decentralisation, federal countries have arranged their public services on dual or shared/joint administration. The features of administrative duality found in classical federations owe to their origins through the process of aggregation. Accordingly, the executive responsibility of governments generally coincides with their legislative authority, as seen in the United States, Canada and Australia. Tailored to retain legislative autonomy and executive control over the implementation of government policies, any Pan American services were, thus, avoided. Hence, constituent units are largely autonomous in recruiting their own public services, coinciding with their law-making authority in Canada and Australia as well.
The European model of administrative federalism displays shared or joint public service arrangements for a dual purpose. They maintain legislative uniformity and standards by the federal government, blended with the implementation autonomy of constituent units. This allows innovative policy adaptation to suit local contexts, requiring extensive intergovernmental coordination and cooperation.
The combination of dual and joint services accounted for unavoidable overlaps and concurrency over authorities in Asian federations like India, Pakistan and Malaysia. Besides state autonomy over junior staff recruitment, the Federal Service Commission recruits district administrators and state secretaries. But such non-residents are dedicated to ‘State Cadres’ in India to work under a concerned state government, with general control over staff’s operation, transfer and promotion. Sub-national authority over federally recruited officers’ secondment and transfer is also arranged in the federal systems of Pakistan and Malaysia as well.
Way for Nepal
Confusion regarding provincial autonomy over public services is constitutionally unwarranted. As in constitutional schedules, articles and subsequent acts, exclusive jurisdiction over subjects dictates provincial control over sub-national services. The principle of subsidiarity also requires context specific, demand-driven localised services with an accountable cadre of administrators. Unforgettably, the call for federalism (regional balance, equity and inclusive development) too requires sub-national planning autonomy with implementing officers accountable to the provincial government.
Simultaneously, the concurrency of legislative authorities on shared subjects entails shared administration for services. Also, to maintain national standards and personnel competency for key positions of CAO, district administrators, policing and provincial secretaries, the Federal Service Commission should regulate recruitment. But without provincial control over such top bureaucrats’ transfer, conduct, promotion and performance, they would just be central agents stationed in provincial and local administration. In this regard, Indian experiments of ‘State Cadre’ accountable to the State government would be plausible. Thus, any adaptation in federal Nepal shouldn't miss the mixture of dual and joint administrative arrangements.