Bipin Adhikari
Constitutional Law, Governance & Public Policy Issues
Home   About   Contact Us  Archives




 

 


Nepal Consulting Lawyers Inc

B. P. Koirala Archives & Records

Divide and Rule

Bipin Adhikari
The Kathmandu Post
10 February, 2010

A country can certainly go for federalism if this is the decision of its Constituent Assembly. But, as a visiting British scholar pointed out recently, federalism is not inherently a superior form of democracy. It cannot guarantee democracy or good governance any more than a unitary government can. Its success depends on so many important political and other variables. If these variables contribute, even unitary states can have high performance. The house was deprived of the opportunity to debate it.

The Constituent Assembly Committee on State Restructuring and Allocation of State Powers (CSRASP) has finally published its report reaffirming its controversial commitment to re-design Nepal on the basis of federalisation along ethnic lines.

As a principle, it is not uncommon to see various in-built constitutional mechanisms around the world for addressing the priorities and desires of minority or ethnic groups on a state or sub-state level. A number of institutions and procedures have been internalised by new democracies to ensure that the human rights of all communities and cultures are protected, and justice is proactively done to all those who have been exploited in the past in different ways, deprived for generations and marginalised. There have been many success stories which could serve as the point of departure for learning how to do what is best for this country along the most democratic traditions.

That was not the temperament of the CSRASP. It would indeed be very naive for anybody to expect any committee to show this temperament when one realises how fraudulently the stage was organised to set the scene for the Fourth Amendment to the Interim Constitution. The country was declared a federal state outright in December 2007 while a jumbo Constituent Assembly was being convened — precluding discussion in the house over this important issue for ever. There was no more any choice as to whether this country should "go" federal or not; the choice was only what type of federal arrangement it should seek. The house was accorded only a limited right to self-determination in this matter.

A country can certainly go for federalism if this is the decision of its Constituent Assembly. But, as a visiting British scholar pointed out recently, federalism is not inherently a superior form of democracy. It cannot guarantee democracy or good governance any more than a unitary government can. Its success depends on so many important political and other variables. If these variables contribute, even unitary states can have high performance. The house was deprived of the opportunity to debate it.

This critique always recommended asymmetrical devolution arrangements in Nepal, based on reasonable claims, capacity and potentials of each province in the country. This arrangement could provide a means for accomplishing the goal of addressing ethnic, regional, lingual and cultural discontent by granting different powers to different provinces, with an emphasis on local demand and their regional ability to control their own affairs. The constitution could have provided the necessary framework for a negotiated settlement of all issues based on given models. Such measures could have addressed or prevented disputes that otherwise would have the potential to destabilise the country's democratic process. But it is important that these mechanisms are not based on discriminatory arrangements.

A 14-province Nepal is a big joke. It is not economically workable. It is a recipe for disaster in terms of organisation and management. It is not, as claimed, based on "identity" and "ability to stand". There is cynicism in the demarcation of the provinces, and also the basis on which their size is determined. Most of these provinces will not be able to survive with the blueprint of autonomy that the draft intends to demonstrate for even six months.

Again, the proposal that seven of these provinces be given identity based on ethnicity and the others should go ahead on non-ethnic categorisation is going to be the bête noire of this arrangement. It links Rai-Limbus, Sherpas, Newars, Gurungs, Magars and Tamangs with their so-called lands, leaving the other 96 ethnic groups in the country to manifest themselves or their language, culture, religion and ethnicity through the remaining seven provinces.

The report does not explain anywhere why the identity of a few ethnic groups is more sacred than the identity of others. It does not explain why Khasas or Tharus should not have exclusive "Khasan" or "Tharuhat" the way "Kirantis" have an exclusive Kirant. If there could be a "Jadan" out of the blue, why cannot there be a "Yadavdesh" in the Tarai? If the history of relationship with the land is the factor, which has been accepted as the criteria for naming and shaming communities this way, then the committee report should be able to demonstrate some rigorous research on what is the communal history of Nepal.

There are many potential pitfalls to this approach. If a certain region can have an ethnic name even though 60 percent of the people in that province are people outside this group, why should not this same categorisation work in the case of Tharus. After all, there is little controversy that Tharus along with some other identical smaller communities are the original inhabitants of that territory. Why should the so-called "Tharuhat" share its name with non-Tharuhat people simply because the demography has changed over the last few decades? There is no reply to this question as well. The charge of in-built constitutional discrimination, and potential fault lines in this framework, cannot be avoided with such an arrangement.

It is quite one thing to create a formal political space for ethnic identities and harness the country's available political strength in support of this, but it is quite another to beef up discriminatory ethnic arrangements. These political variables apart, the symmetrical approach that the committee has applied in the matter of centre-state relations may not make this federalisation a workable model. The way the province of Jadan has been created and the Sherpa province has been established, nobody needs to doubt that developing a viable economy and an effective financial resources management will not be easy. The committee has not even tried to ensure administrative viability for most of the provinces, nor has it been able to see the farmland capacity of the demarcated territories. This is another funny part of the report.

Finally, the committee seems to have taken the challenges of globalisation as a non-issue. In the 21st century, globalisation has placed new demands on organisational systems of all types, including the restructuring of states. Whether a state is federal or unitary, its interests in relation to the rest of the nations have to be protected creating a competitive economic advantage for it. The report contains nothing about how a tribal state is going to secure a competitive advantage for Nepal. What it has done instead is create space for those who want to divide and rule this country based on ethnic strife.

(Adhikari is a constitutional expert).


Copyright @ Bipin Adhikari,