Accommodating identity-based demands mainly of the Madhesi and Janajati parties through constitutional reforms and holding three levels of elections before January 21, 2018 in order to transform the existing unitary system of governance into a full-fledged federation are the country’s two greatest challenges. The newly promulgated constitution and the parliamentary system under it are facing the risk of losing ‘political legitimacy’, although the statute was endorsed by an elected Constituent Assembly (CA).

However, a mere technicality of majority vote does not legitimise a constitutional charter, since it lacks people’s acceptance and a participatory element so essential in a territorially and ethnically diverse society, as reflected in the writings of modern constitutional and political experts, including Professor Richard Fallon (US), Professor Cheryl Saunders (Australia), Dr Yash Ghai (Kenya) and Dr Nick Haysom (South Africa). Despite the trust deficiency in the majority of political parties and their leadership, the mishandling of the CA process and the Madhesi/Janajati protests in the aftermath of the statute’s promulgation, the new constitution happens to be a product of an almost seven-decade-long political struggle. It is time for all those concerned to effectively and reasonably negotiate the constitutional amendment to bring about necessary reforms and ensure legitimacy.

Reasons for federalism

Scholars of federalism like Daniel Elazar and Ronald Watts highlight in their writings the inherent concepts of ‘shared rule’ and ‘self-rule’ that make it easier for a well-designed federal system to negotiate and manage diversity, and amicably address the contentious issues of identity and wider legitimacy. Territorially based societal conflicts have offered space for mitigating disputes through shared representative forums, such as a national assembly and provincial legislatures, which allow the minorities to articulate their collective voices and provide them with opportunities to run their own affairs through self-government. Thus more than 40 percent of the world’s population are now governed under federations.

Oddly designed seven territorial provinces and possibly with hundreds of local bodies, Nepal’s federal transformation is a unique political experiment in the context of a post-Maoist insurgency. Although federalism is yet to be realised in practice and fiscal and administrative aspects have hardly been taken into consideration while designing it. Nepal claims itself to be a three-tier ‘cooperative federalism’ with a strong constitutional base of local governments that cannot be dismantled externally through dissolution as in the case of provincial entities. Once constituted, local bodies last until the next election. The third tier village level and municipal councils elect their chiefs directly, and are quite representative. Five lists of competencies, although vaguely formulated, allocate exclusive jurisdiction to each level of government and offer shared opportunities through two concurrent lists as stated in five separate Schedules, something that is not found anywhere in the world. Shared national rule is reflected in the mixed electoral process and electoral colleges of presidency and the National Assembly, which is generally called a forum for articulating provincial voices. Despite complexities, devolutionary federalism could be practised in Nepal.

In most countries, because of the failure of the centralised system that persistently distanced the ruling government and elites from marginalised communities and deprived the larger mass of population of opportunities and even basic services, politicians and scholars in modern societies have come to the conclusion that it is perhaps the federal design that may help bridge the inequality gaps and manage  the countries’ diversity. Small Pacific Island countries like Papua New Guinea (PNG) and Solomon Islands are almost at the final stage of their constitutional and political reforms, with their choice of a federal system of governance. The newly elected President of the Philippines is found to be accelerating consultations with experts for reforms and constitutional redesigning on a federal model. Indonesia and Myanmar appear to be moving fast towards the same direction.

A bad precedent

Nepal has spearheaded a process to restructure the state and induce political transformation not only from a unitary to a federal system, but for more radical changes: from monarchy to republicanism; from an official Hindu state to secularism; from a first-past-the-post electoral system to a mixed electoral system; and from an elite-dominated polity to inclusivity. Sources of the new federal constitutionalism were the Comprehensive Peace Accord, the Interim Constitution, Adopted Resolution of the Restored House of Representatives, and the elected Constituent Assembly, which were all based on agreements with emergent political forces. Of course, changes are big in theory but their realisation is usually very slow.

Establishing all federal entities through electoral processes before January 21, 2018 is mandatory under Article 296 (1), and no government or political parties can escape this responsibility under any pretext. Doing so would spell the end of people’s ownership on the new constitution. Choosing an illegitimate and ulterior way to extend the deadline will undermine the constitution’s supremacy. The legitimacy of top level authorities, including the President, Prime Minister and Speaker elected under Chapter 33 of the constitution will then be questionable. Even the application of the ‘doctrine of necessity’ for the exercise of the constitutional amendment clause, Article 274, in order to modify Article 296 (1) will further undermine constitutional legitimacy.

One irreparable damage done by the former prime minister at the last moment before resigning was to the substantive and due constitutional process by activating the exceptional provision of ‘removal of difficulties’ under Article 305, against the words and spirit of the constitution. This was allegedly done to enable the President to facilitate Article 298 (2) (3) for electing a new prime minister after he had resigned under Article 298 (8)(a). The controversial use of the exceptional provision could possibly have been averted by the President by advising the prime minister to reconsider the exercise of Article 305 and asking him to follow other permissible options practiced in a parliamentary democracy once the prime minister’s post becomes vacant. The consequences of the abuse of the ‘removal of difficulties’ clause are several and equally dangerous from a constitutional perspective. Past experience of abuse of the ‘removal of difficulties’ provision under the Interim Constitution to appoint the Chief Justice as the executive head has already set a bad example, and also an unacceptable precedent, even though it was claimed to be for a good political cause. Unless the present coalition government plays a responsible constitutional game against a wrong trend induced by the predecessor of abusing the norms of constitutionalism, federalism may die in its infancy.

The judiciary is equally handicapped to get involved in addressing controversial political questions, even for using the ‘doctrine of necessity or exceptionalism’ to protect the constitution, which has already been plagued by a deficiency of federal institutions. Transforming a unitary state to a federal one, despite the promising words of the constitution, will remain a dream if the political parties and their leadership, whether in government or outside, do not wake up now and go for elections as soon as possible. Even the Madhesi and Janajati parties that claim ownership of the federalisation of Nepal must not forget that this is a wake-up call for them too. The question is whether they want to inject life to or ‘kill’ the infant federation, which despite several deficiencies is in the womb of the new constitution that has a scope for 6:46 AM 9/13/20166:46 AM 9/13/2016reform and survival for growth.

Dhungel is a law professor and senior advocate