On the Report of State Restructuring Commission

(This is excerpt of concluding remarks given by Dr Bipin Adhikari as Chairperson of Nepal Constitution Foundation at the discussion programme on the Report of State Restructuring Commission (SRC) organised on 6 February 2012 at Hotel Annapurna, Kathmandu)

Thank you very much taking part in this interaction programme on the report of the State Restructuring Commission (SRC) was organized by NCF on Monday, 6th February, 2012 at Hotel Annapurna. We had the opportunity to listen to Dr. Ramesh Dhungel, one of the two members of the State Restructuring Commission representing Nepali Congress on the report that has been already submitted to Prime Minister, Dr Baburam Bhattarai. Dr Dhungel also shared his experience with the SRC team and the working process of the Commission. As we are aware, the minority members of SRC namely Dr. Ramesh Dhungel, Dr. Sarbaraj Khadka and Savitree Gurung submitted a separate report to the Prime Minister in the ceremony, where the SRC Chairman submitted his report on behalf of the majority of members.

As we came to know, the circumstances that led to the submission of two reports, was most unfortunate. It was pointed out by Dhungel that the division within the commission was created because of various political forces behind the selection of the members. He claimed that as a result, people with pre-conceived notions who were actually political activists were appointed as members rather than political scientists. He further claimed that various power centres were at play regarding the formation of the commission. He complained of the lack of time for the commission to properly assess the determining factors and the fact that the members had to work while avoiding pressure from various sources. Dhungel stated that the procedure of arriving at a decision by the way of voting also created serious division in the commission which resulted in fundamental differences between the majority and minority members.

The first fundamental difference between the two groups as pointed out by Dr Dhungel was with regard to the general structure of the federation. The eleven province model received the majority approval whereas the six province model promoted by Dr. Dhungel was in the minority. The Second difference was in the principles and style of the reports. The majority focused upon identity and capacity as the chief determining factors. The minority however, as mentioned in the third paragraph of the preface of their report considered factors such as national integrity, economic development, capacity, ethnic and communal harmony, geographic continuity, historical and cultural situation, natural resources, status of development infrastructure and administrative reach. So the priorities of the two sides were seen to be quite different.

Another fundamental point of difference, as we came to know, was with regard to the right to self determination. The majority report suggests a communal or ethnic right to self-determination whereas the minority report does not provide the right to communal or ethnic self-determination as such. Dr Dhungel pointed out that other than Nepal there are only 28 other federal countries in the world and that the federal set up in Nepal shall be very unique as well, calling Nepal the "twenty-ninth federation".

Dr. Dhungel went on to explain that the unanimous view of federal structure as proposed by the Constituent Assembly Committee on State Restructuring and Division of Powers (CSRDP) includes a three tier system with federal, provincial and local level governments. However the differences existed in the powers that were going to be exercised by the various levels. The minority view was for making the central/federal and the local government strong. The majority view however was to make the provincial government strong at the cost of the central and local governments. The major area of difference in this was the issue of residuary powers. The majority members agreed to give the residuary powers to the provincial governments whereas the minority members wanted residuary powers with the centre. Dhungel defended his position by stating that the federal system in Nepal will only function if the centre is capable to maintain national unity and the local governments has the authority to make its own rules and regulations. The majority view only gives partial rights to local governments which are to exist under the helm of the laws created by provincial governments.

The presentation continued on to the provinces that were proposed by the both sides. The majority proposed an eleven state model on the basis of identity and capacity including- Limbuwan, Kirat, Tamsaling, Newa, Tamuwan, Narayani, Magarat, Mithila-Bhojpura-Koch Madhesh (in eastern Terai), Lumbini-Avadh-Tharuwan (in western Terai) and a non-territorial Dalit state. The minority proposed a six state model including two provinces in the plains based on identity history and culture and four on the basis of economic viability whose names would be decided by the people of those provinces. Dr Dhungel commented that the eleven state model proposed by the majority was not sustainable at all. He also remarked when the minority member offered a non-territorial state to the Chairperson, Madan Pariyar did not consent but did consent to the same proposal when made by the majority members.

The minority view was to give the centre the authority to make the policy regarding the formation of local levels and mapping their territory. The minority view also provides for special structure for areas where one community exists as a majority. It also holds that the centre is given the power to decide the change of names and addition of local units requiring two-third majority of the central legislature. This in contrast with the majority view which recommends giving preemptive political rights to be given to the community which is densely present in an autonomous region for one term only.

The minority report proposed giving the central legislature the power to dismiss the provincial government when national sovereignty or integrity is challenged by the provincial government and legislative. The majority report proposed that central government should only be given the power to suspend the provincial governments which can move to the Federal courts to challenge such a move. Fears were expressed that accepting the majority view in this matter would cause grave threat to national integrity in the future. The majority view also proposed that the verdict from the provincial court on any dispute other than inter-state dispute would be final. This was regarded as a disastrous proposal. The minority position was that inter-state disputes would go to constitutional court and verdict of provincial high court can be appealed at the constitutional court.

The most important point that came about in the discussion that followed the presentation was that the Commission had dwelled on many things that had already been decided by the various committees and the Constituent Assembly itself. The participants commented that it was unnecessary on part of the commission to attempt to backtrack on such decisions. For example the commission (both minority and majority) had made their own lists of rights regarding the centre and the provinces when it was already decided by the Committee on Distribution of Natural Resources, Financial Powers and Revenue. Even the question of residuary powers was already decided by the CA itself with the decision that it would be provided to the national (central) government.

The minority position about the centre being given the power to approve any provincial law was criticised as being overly controlling as the provinces are anyways not allowed to legislate contrary to the constitution and the central laws. The position of giving every province the access to India was questioned because in a federation with a strong centre, no province can be deprived by another of supply. Dhungel stated however that the population compositions of the areas in plains were also considered while excluding these districts from the Madhesh provinces.

The minority position was always against the breaking of the existing districts. However a few districts have been divided. Several participants questioned the reasoning behind dividing such districts. The general view in this interaction programme emerged that the existing cultural and ethnic coexistence that is present in Nepal should not be disturbed, though concessions can be given in areas where there is an overwhelming presence of one community since historical times.

In the end, it appeared that since the majority had decided to backtrack on the already decided issues, the minority was also forced to respond with its own suggestions.

I thank you all for your participation in the programme. We will sit once again in the near future focusing more on the Majority report.

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