Fearing backlash, provinces other than Province 2 reluctant to challenge Kathmandu for their rightsThey must follow the example of Province 2 and demand the authority guaranteed by the constitution, or else it will be a historical failure on their part, analysts say.
Province 2 has so far filed three petitions against the federal government. It is planning to file three more.
Its gripe: the federal government is going against the spirit of federalism.
“We expect the federal government to work as designated by the Acts and in line with the spirit of the constitution,” said Gyanendra Yadav, minister for Internal Affairs and Law from Province 2.
On Friday, he issued an ultimatum to the federal Ministry of Home Affairs to complete the adjustment of Nepal Police personnel and authorise his ministry to mobilise the police within his province in seven days.
Yadav asked federal Home Minister Ram Bahadur Thapa to devolve the authority on the security as prescribed by Nepal Police and Province Police (Functions, Operation, Supervision and Coordination) Act and Police Adjustment Act.
President Bidya Devi Bhandari signed these two Acts into law in February. The Acts authorise provincial governments to manage the internal security of their provinces but remain unimplemented because of the reluctance of the federal government.
Schedule 6 (1) of the Constitution of Nepal says the provincial governments have the authority to maintain internal security.
Yadav said if the federal government does not act on implementing these laws, he will move the Supreme Court.
The province has already filed three writs in the Supreme Court demanding its intervention against the move of the federal government to encroach upon its authority.
One is against the nullification of the Forest Act by the federal government which it claims curtails the authority of the provincial government in using forests. The second one is against the federal government’s decision to merge the Sagarnath Forest Development Project with the Timber Corporation. The third is against the federal government’s decision to readjust civil servants that were already adjusted in provinces and local governments, claiming that transferring civil servants who have already been adjusted from one province to another or one local government to another would affect stability.
According to Deependra Jha, chief attorney of Province 2, one of the three new petitions they are planning to file against the federal government is to demand that the province be allowed to investigate criminal cases as well, not only civil offences.
The province also wants an order to the federal government to stop frequent transfers of secretaries of the provincial ministries. “The third is related to the mobilisation of the police,” Jha told the Post. “We want to exercise the authority that is guaranteed to us by the constitution.”
The seven provincial governments have already completed half of their five-year terms, but they are yet to enjoy the basic constitutional authorities like forming their own police force and hiring their own bureaucrats.
Province 2 is the only province where the Nepal Communist Party (NCP), which leads the federal government, does not have its government.
Constitutional and political experts say the other provinces aren’t raising their voice against the federal government because they do not want to go against their political masters in Kathmandu.
“The other provinces can not openly fight for their authority as they fear the top leadership,” said senior advocate Chandra Kanta Gyawali, who specialises in constitutional law.
“Provincial ministers are dissatisfied, but they are hesitant to challenge the federal government, as they think challenging the leadership in Kathmandu could harm their political careers.”
Some of the leaders from provinces, who belong to the Nepal Communist Party, have come out to express their dissatisfaction at the federal government.
Shalikram Jamarkattel, minister for internal affairs and law of Bagmati Province, said they have been raising their voices aggressively during the meetings with the prime minister and other ministers.
“We are waiting so far because we don’t want to confront the federal government,” Jamarkatel told the Post. “This, however, doesn’t mean we will continue to keep quiet. I support the move by Province 2 which represents our concerns as well.”
Gyawali feels that other provinces should follow Province 2 in challenging the federal government’s unconstitutional moves.
“Staying silent on the federal government's move to breach the constitutional provision is an indirect support towards disrespecting the constitution,” said Gyawali.
Ministers from other provinces too have now started talking about how the provinces are being deprived of their authority.
“We expect the federal government to use its conscience,” Naresh Bhandari, minister for internal affairs and law of Karnali Province, told the Post. “It has a larger role towards the implementation of the constitution.”
Political scientists say that the federal government is very conservative in delegating the authority to the provincial and local governments. Such acts are against the spirit of the constitution, according to them.
“Provincial and local governments are independent entities, and if the federal government fails to recognise this fact, they have to fight for their authority as guaranteed by the constitution,” said Meena Baidhya Malla, a retired professor of political science. “I believe the federal government will be under pressure if all the provinces collaborate in the legal fight for their authority.”
Experts say it would be counted as the failure of provincial governments if they fail to set up the foundation for federalism before their five-year tenure completes.
“I would expect other provincial governments to leave their legacy,” said Gyawali.
Representatives of the Nepal Communist Party-led provincial governments, meanwhile, are pinning hopes on the prime minister.
Hari Bahadur Chuman, minister for internal affairs and law of Gandaki Province, said that during the provincial ministers’ meeting on July 29, Prime Minister KP Sharma Oli had assured that adjustment of the Nepal Police would be done immediately.
“Yes, two months have passed and nothing has happened,” said Chuman. “But you have to trust your prime minister. We hope he walks the talk. Seeking legal remedy now will look like we do not have faith in our own prime minister.”