Kathmandu’s delay in enacting umbrella laws holds back implementation of federalismWithout relevant federal legislation in place, provincial governments feel stymied to introduce their own laws to function independently as the constitution envisions.
It has come at a huge cost. Ten years of fighting in which about 17,000 lives were lost and thousands injured. Another 10 years of political chaos in which two elections were held to determine only, what it seems now, the boundaries of seven provinces. The other attendant costs in tens of billions to keep the two constituent assemblies, where most of the 605 members just played the role of rubber stamps, functioning and the hit on the economy too stood out.
The constitution promulgated in 2015 ushered in a new era for Nepal. The 2017 elections under the new constitution led to the formation of provincial assemblies and provincial and local governments.
But federalism has hardly mattered in everyday lives of the people in the absence of political will to institutionalise it.
“Federalism doesn’t mean just carving out provinces,” Hari Bahadur Chuman, minister for local government and law in Gandaki Province, told the Post. “They should be empowered through resources, and most importantly laws.”
As Nepal marks five years of the federal constitution in a fledgling republic next month, provincial governments and experts on federal matters say politicians in Kathmandu are yet to internalise federalism in true sense and that they continue to work even today with the centralised mindset.
Nobody even knows how many laws are needed, but that could be a matter of work in progress as federalism develops in the country. About half a dozen, however, are immediately needed. These include laws for the civil service, land, police force, health services and education.
“There can be no government without its own administration and police force,” Gyanendra Yadav, minister for internal affairs and law of Province 2, told the Post.
“At present, both the civil administration and police are working under the directive from the federal government, making the provincial governments toothless.”
As adequate numbers of employees from the federal government have not been deputed at provincial and local levels, thousands of positions are vacant.
The constitution provisions for provincial governments to hire the staff they need and five of the seven have constituted a public service commission to recruit employees through competitive tests. But with the federal parliament yet to endorse the Federal Civil Service Bill, positions remain vacant.
The last winter session of Parliament was expected to endorse the bill, but issues remained unresolved.
Prime Minister KP Sharma Oli abruptly recommended the prorogation of the budget session, which could have endorsed the bill, amid calls from leaders from his own Nepal Communitst Party for his resignation grew louder.
The federal law must be in place for provincial governments to have their own civil service acts in place to fill the vacancies through the provincial civil service commissions.
In the past two and a half years, provincial governments have called on Kathmandu to endorse the bill, but in vain.
“We have drawn the attention of the federal government to the lack of umbrella laws
on different occasions,” Chudamani Acharya, chief attorney of Province 1, told the Post. “Some laws were promulgated, but crucial laws that are a must for devolution of state powers are not ready yet.”
The story behind the recruitment of provincial police forces is similar.
Schedule 6 of the constitution gives provincial governments explicit authority to have their own police forces. But again, the federal government has shown no urgency in promulgating a federal police law.
Provinces 1 and 2 came out with their own police laws. But they haven’t been able to start recruitment as they are awaiting the federal law.
Article 133 of the constitution says that any law enacted by provincial governments will be void if it is inconsistent with any federal law.
“We are compelled to wait for the federal laws because we don’t want the provincial laws to become null and void after coming into force,” said Yadav, the Province 2 minister for internal affairs. “The federal government seems to have misconstrued our patience as our weakness.”
The constitution, which was nine years in the making, envisions the devolution of powers from Kathmandu to the lower levels so that people have a more immediate say in how they are governed.
“We might have been in power for over two years now, but we haven’t yet run the government in true sense,” said Yadav, the internal affairs minister of Province 2.
Lack of federal laws is equally affecting the local governments in exercising their authority.
For instance, Schedule 8 of the constitution explicitly empowers local governments to manage school education up to the secondary level.
The 753 local governments can license schools, recruit teachers, determine salary and pay them, conduct examinations and even formulate their own curricula as long as it is within the national curriculum framework. However, the federal government is yet to present the bill related to it in the federal parliament. In the absence of such a law, the federal government continues to oversee school education as it used to happen when the country was under the unitary system.
Local governments have similarly been barred from overseeing basic health services in the absence of a federal health law. Establishment and operation of hospitals and other health facilities, as well as the formulation of policies and plans for basic health, would come under their jurisdictions once there was an umbrella law.
“It is clear that people in Kathmandu are making every effort to delay the devolution of power,” Bansalal Tamang, the general-secretary of National Association of Rural Municipalities in Nepal, told the Post. “Otherwise there is no reason why the federal laws shouldn’t be readied even five years after the promulgation of the statute.”
It is not that the federal parliament is sluggish by nature.
It can endorse laws swiftly if there is the need. The majority of Acts related to fundamental rights that had constitutional deadlines have been enacted.
The responsibility of formulating these laws lies with the respective ministries of the federal government, which are tabled in Parliament after the Cabinet’s approval. Laws come into force only after both Houses of the federal parliament endorse them by a simple majority.
Legal experts see the indifference of the 275 members of the House of Representatives also as a reason for the delay.
Raju Chapagain, chairperson of the Constitutional Lawyers’ Forum, said it is unfortunate that lawmaking is not the priority of lawmakers.
“I don’t see lawmakers’ focus on the lawmaking process, though that is their prime responsibility,” Chapagain told the Post.
Lawyers also say that provincial and local governments should also share the blame for not being proactive enough to put pressure on party leaders in Kathmandu.
According to Chapagain, they are instead busy lobbying for increasing the budget in their constituencies and implementing projects under the local infrastructure development programme.
Khim Lal Devkota, who writes extensively on federal affairs, said provincial lawmakers can also take a proactive role in enacting provincial laws.
“The constitution says the law will be void if the provincial laws contradict the federal laws, but that doesn’t bar them from introducing their own laws,” Devkota told the Post. “How long are they going to wait for the federal law to be in place?”
According to Devkota, the provincial governments should formulate their laws to exercise their constitutional authority. “If some issues arise, let the court handle them,” said Devkota.
Shalikram Jamarkattel, minister for internal affairs and law of Bagmati Province, said the federal government has weakened federalism by delaying the laws.
“Weakening federalism means disrespect to the People’s War and the people’s movement. It is also against the spirit of the constitution,” Jamarkattel told the Post. “We have a progressive constitution, but it is meaningless unless it gets implemented. Its implementation is incomplete without effective and powerful provincial and local governments.”
The provincial governments don’t even have authority to decide on using the government and guthi land on their own, according to Jamarkattel.
“The Federal Land Act and amendment to the existing Guthi Act are a must to delegate that authority to us,” said Jamarkattel. “We haven’t been allowed to even finalise land for our administrative buildings, let alone for other matters. This is an example of how weak the provincial governments are in the lack of federal laws.”