SPOTLIGHT, VOL. 27, NO. 27, March 14, 2008 (Chaitra 01 2064 B.S.)
A consulting lawyer and constitutional analyst, Bipin Adhikari is a keen observer of the ongoing transitional process in Nepal. The Commentatory on the Nepalese Constitution that he co-authored with other constitutional lawyers in 1998 remains an outstanding piece of work on the 1990 Constitution and Nepal’s experiment with constitutionalism. A doctor of constitutional law, Adhikari spoke to SPOTLIGHT about the issue of federalism that Nepal has been confronting in recent months. Excerpts:
How do you see the rule of law situation in the country?
It is undoubtedly pathetic. There is lawlessness, wariness and lack of due process everywhere. The concept of legality seems to have become a fairy tale.
Why is the situation like this?
There are many reasons. But this situation mainly owes to the system of unlimited government that has been installed in the country. It is bringing changes through means that are not legal or legitimate.
Some lawyers argue that there is already an interim Constitution and a representative legislature, although not elected, to check the government?
If constitutionalism merely meant having a written constitution, then virtually every country could claim to be constitutional, as every country that has a written Constitution does. The main question is – ‘does the interim constitution check anybody?’ ‘does it restrain exercise of power, protect our freedoms and safeguard our national interests?’ Constitutional institutions work when there are separation of powers, checks and balance, rule of law, judicial review, periodic elections, ombudsman and effective and independent constitutional bodies. The interim constitution is devoid of these institutions. It does not seek to prevent the government from abusing the power of the state. Everybody knows that it is not the legislature which decides; it only rubber-stamps what has been brought to it from outside.
What type of federal system you recommend for Nepal?
I don’t think there is any perfect model. Perfection is a goal. Even the countries like Canada and the United States, which have built on federalism as forerunners in this area have outstanding problems to be resolved. What India has achieved by now has also been achieved with continued dedication and commitment. It takes years to develop a workable system. You need sincerity and genuine commitment.
Do the 7-party government, the Maoists and other political constituencies have that sincerity and commitment …? Is it not clear to you that the idea of federalism has come in Nepal not as a development tool, but as a strategic prescription from outside?
Ours has been a small unitary state since long. It has already developed enough historical, political, geographical, and emotional ties among our people. There are geographical, environmental and infrastructural realities behind the unitary character of the state. Our natural and cultural eco-system is so closely connected. Equally strong is the aspiration of our people to continue living as an independent and indivisible country, and with distinct national identity. This is not to deny the problems that we need to address. They are there. But it is not necessary to build on wrong arguments to establish a right case.
What is the right case then?
We need to continue with the unitary character of the state. The demand of the time is to identify the problems the unitary state has created in all subtleties, and then discuss whether federalism is what is necessary to deal with the situation; or there are other efficient ways to handle them. One must understand that federalism cannot be a remedy for all ills of our society. Especially, it is a hapless tool when the politicians are vile and have little national interest to protect.
What makes federalism different from the ‘devolution of power’ in your opinion?
There is nothing in words like ‘federalism’ and ‘devolution.’ The real issue is what do you want? What is your purpose? Do you want to take the country back to the 17th century Malla and Khas principalities in order to deal with issues that are smaller than the size of the remedy being prescribed? Or your purpose is only to bring those people and areas in the mainstream, which are still left behind in the process of our political development.
How do you see the British experience with devolution of powers? Can we learn something from them?
Well, we can always learn from those who have more experience and skills. The United Kingdom has historically been a unitary state with efforts to devolve power to its different territories according to the necessity. The powers of the central government have been devolved to Scotland, Wales, Northern Ireland, London and Elected Mayors according to their specific requirements. But there is a strong unitary character even now.
Can you elaborate further?
What I mean is devolution was not a part of a grand constitutional design in the UK; rather the approach in each case needs to be understood in relation to their situations. In fact, the devolution legislation has produced an asymmetrical distribution of powers in the country. For example, the extent of powers given to the Scottish Parliament and the Assemblies to Wales and Northern Ireland are different. The Northern Ireland Assembly has also lawmaking powers, but over more restricted policy areas. The form of London-wide government is different that both these types. By way of contrast, Wales has been closely integrated with England for the purpose of law and administration. They were very clear about their problems; and the solutions they fashioned were also case sensitive. Each devolution statute includes elaborate safeguards to prevent sovereignty from being undermined.
How is the relationship between the centre and the units coordinated in this scheme of devolution?
As far as I know, the coordination of administration between central and devolved government has been managed to a large extent without resort to legislation but by means of a series of informal agreements. But the system has been underpinned by a secure financial base. Each of these territories has been able to count upon a consistent overall level of funding. That has helped devolution significantly.
What is the alternative for Nepal then?
Knowing federalism as a concept is one thing; but devising it as a model that can satisfy all constituencies and can also work in practice is quite another. Therefore, it is good to build on our own experience as a unitary state. It has always been a functioning system. There are some lessons learnt; and efforts could be made to reform it. Some interventions at the constitutional level to respond to some of our problems could be necessary. But most of the problems of devolution of power could be handled through an enhanced local self-government system. It can not only restrain exercise of power and protect our freedoms, but also make the transition manageable and safeguard our national interests. There is wisdom in the proverb – “a bird in the hand is worth two in the bush.”