Even though the major parties have finally formed an inclusive State Restructuring Commission (SRC), the chances of this body helping the Constituent Assembly to solve major contentious issues involving the concept paper and the preliminary draft of the CA Committee on Restructuring of the State and Division of State Powers, remain bleak. There are some clear reasons behind this inference.
There are three major contentious issues on federalism: the number of the provinces that Nepal should allow; the treatment to be given to the issue of identity by way of demarcation of provinces thereby determined, and the applicability of the preemptive political rights (agradhikar) in the newly constructed provinces. The concept paper and preliminary draft of the CA Committee on State Restructuring and division of Powers, which proposed a 14-province Nepal, with at least seven provinces with identity-based names and the recognition of the preemptive political rights, have been in the hotbed of political discourse ever since they were released about two years before. These issues come up again when the complications regarding autonomous special structures are considered, and their relationship with local government units determined.
There is little dispute on the division of powers between the national government and sub-national units. Although the language to be employed in the final constitutional text might invite some debate on the right to self determination and applicability of ILO instrument 169, where basic constitutional values are at the loggerhead, there seems to be some goodwill on this issue from all sides.
The key to the success of the Commission in offering solution on these federalisation issues lies on how they address identity-group politics—the good, the bad, and the ugly aspects of it. Since people are social creatures, identity politics come as a permanent fixture of the political landscape. The problem is while some people have indiscriminate praise for this as a route to self-realisation and group justice, others dismiss it bluntly as a vehicle of prejudice and partiality. Central to this debate is whether what they propose undermines the greater democratic good and thus their own legitimacy in a democratic society. The demographic realities in Nepal’s federalisation context cannot simply be wished away. Accepting them in a moderate way will require changes in the federal makeup that have been so far been suggested. By now even the most gullible of the people of Nepal know that they were misguided in the change process. The leaders have been serving others; not their own people.
It is not clear how the newly formed SRC can help resolve these issues, and ease the process of completing the draft constitution. What was expected of the major political parties was the formation of a team, which could not only give serious thought on the existing CA Committee proposals, but also put forward some options for them, giving due regards to the arguments for or against. This job involves knowledge on some idea of what is federalism; some understanding of how a constitution operates, a vivid realisation of Nepal’s socio-economic, demographic and geographical realities, the democratic tenets of a functioning constitution, the knowledge of why the current proposal of the CA Committee has been resisted all along, and why all the janajati groups are throwing their weight on the proposal. But more important is an independent and impartial mindset in the SRC members that helps build options that could facilitate the parties to revisit their positions without losing their voters.
The SRC members are expected to be judicious, not judicial, in their point of view, and are also supposed to perform the act of balancing. To put it precisely, what the parties needed were people ‘different’ than them—who had no obligation to work on a template that already exists.
The eight-member Commission that has been created will have a problem in meeting these expectations to a great extent. All members in the Commission have been inducted there because of their political faith; not because of their potential to unite a society that remains divided on these important issues. The members are far apart on the political platform. In this environment, it is naïve to think that the members of the commission can do anything more than the representative function—repeating what their nominators have been doing all along.
Apart from these major concerns, the commission has other problems as well. It is unnecessarily big. Some of them don’t even have a commitment to democracy. This explains the challenge of negotiation. As the recommendations of the commission will be important in finalising the details of federalism, parties were unwilling to miss the opportunity to put their stamp on the blueprint for federalism, through their appointees.
As per the Term of Reference (TOR), the Commission will have to recommend a compromised formula on restructuring the state mainly on the basis of “identity and competence” and taking into account the opinions and aspirations of the Constituent Assembly Committee on State Restructuring and Division of Powers. The motive behind this carefully drafted language is calculated to imply that the commission should not take the CA Committee report as the point of departure, but rather it should confine itself within the normative limits of this report. This structural limit is bound to limit the options that can be developed in the next two months. It is clear that the TOR does not give much leverage to the Commission to craft necessary options to deal with contentious federalisation issues.
It is also not yet clear how the SRC will work without an enabling statute passed by the Parliament. Such a statute was necessary to allow it a certain statutory basis to move on. This, so far, is not on the agenda of the government. It is not feasible now to do this in view of the time pressure.
With all these limitations, the success of the SRC, if it is still to be expected, depends on the courage that the members of the team demonstrate in proving that they know their vulnerabilities, and their dedication in overcoming them.
(Adhikari is a constitutional expert)
