When major political parties finally reached a compromise on the constitution last year, it came as a big relief to many. But soon, a lack of acceptance of the statute by the Madhesis, Tharus and other marginalised groups confronted Nepal, badly shaking the foundation of the country’s constitutional journey. Even when a constitutional settlement with the agitating groups is reached, implementation of the constitution is far from assured.

By now there is consensus that the constitution is not just full of constructive ambiguities, which are necessary and desirable in many instances, but also full of destructive ones. Let me explain the difference. A constructive ambiguity is a clever way of masking a compromise between opposing ideologies or demands, giving parties on both sides of a divide a semblance of victory. A destructive ambiguity, on the other hand, stems from a lack of proper knowledge of the issue at hand or excessive myopia in anticipating circumstances or sequencing of events. An example of this was seen in the run up to the election of Pushpa Kamal Dahal as the prime minister.

Local bodies

The most salient feature of the Constitution of Nepal 2015 is the provision on the implementation of federalism. While there is some ambiguity on the sequencing, our political parties have decided to start it from the bottom up—meaning positioning the local, provincial and federal governments respectively. This is perhaps logical too, as the first and second tiers of the government depend on inputs from the third tier in order to be complete.

In that spirit, the KP Sharma Oli government formed a Local Level Restructuring Commission (LLRC) in March this year—in large part because the constitution mandates the formation within six months of its promulgation. The Cabinet subsequently handed over a 19-point terms of reference to guide the recommendation of the LLRC.

For the first six months, there was no sign of dissent from within the ranks of the political parties. As the LLRC came closer to presenting its recommendation, political leaders began airing their opposition. The first major objection was about numbers. The commission had suggested reducing the number of local governments to 565 in order to make them viable units. But that was not the entire recommendation. The LLRC is also recommending that existing Village Development Committees  (VDCs) be structured into subunits of local bodies. What this means is that while a local government will have jurisdiction over a larger area and population than our existing VDCs, it does not necessarily mean that the local government will be further away from the population. The LLRC is in fact suggesting the opposite: each local government is given the authority to make a decision on expanding its presence and subunits if deemed necessary. This provision, combined with the authority given by the constitution to the local bodies, makes local units powerful; it considerably devolves the authority held at the district and central levels to the local government. This is where party leaders’ major concerns seem to lie.

Fewer is better

This proposition challenges the deeply entrenched power structure at the district level, triggering fear among district level leaders of all parties that they would not have much control in the new dispensation. So the reservations being expressed at the centre actually comes as a result of feedback from district leaders of all parties, including the CPN-UML, although its central leadership has decided to support the LLRC’s recommendation.

The logic is that if you create over 1,000 local governments, they would be financially dependent on the central and provincial grants to deliver services as their revenue base would be smaller, giving party leaders at the province and district levels the leverage to influence or even dictate decisions. In the long run, this would also undermine federalism by providing arguments against it to its opponents.

This may not be by design, but creating more local bodies as suggested by the Nepali Congress and others would end up undermining federalisation and decentralisation of authority. Mere constitutional authority without commensurate fiscal space would render local officials incapable of exercising that authority through proper allocation of the budget. Schedule 8 of the constitution gives extensive authority to the local bodies.

In order to increase the number of local governments, parties are demanding to reduce the population threshold for these bodies. While this appears to be a reasonable proposal, what it does in practice is shrink the local bodies’ revenue base, making them economically unviable without grants from the province and the centre.

Madhesi dilemma

The Madhesi parties are worried that agreeing to a local level restructuring now will give legitimacy to a constitution that they have opposed from the outset. While their apprehension is understandable, they and other marginalised communities will lose the most if they end up supporting the argument to disband the LLRC or increase the number of bodies. This would play into the hands of those who want to hold elections for the existing local bodies. Once that happens, it could lead to the shelving of local level restructuring altogether. Without effective local government, simply creating a provincial level government will only add another layer of bureaucracy without a corresponding structure at the local level to deliver.

A Madhesi support for the local restructuring now may seem like

an acceptance of the constitution before it has addressed their demands. But that is a risk the Madhesi parties will have to take—much like their

participation in the election of the prime ministers—if they want federalism’s implementation to become

a reality.

The Maoists,  who are currently the strongest proponent of federalism among the big three parties, were willing to compromise on it prior to the Madhes Uprising of 2007. A significant section of Nepal’s political establishment still feels that federalism has been forced upon them. In the absence of a complete acceptance of federalism among the major parties, it is not hard to imagine that any pretext to delay implementation would be exploited to the fullest. Those who want to see federalism implemented face a choice: frame the current struggle as an incremental battle or a now-or-never one. Choosing the latter entails significant risk of derailing the current framework entirely.

Parajuli is an assistant editor at The Kathmandu Post