Nepal’s renowned constitutional expert Dr Bhimarjun Acharya has been a steadfast critic of federalism since the federalism debate started in Nepal in 2007. The author of several books and journal articles, most recently of two-volume book Fundamental Rights in the World Constitutions, believes Nepal should not have adopted that course. Acharya shared with The DMN News what is wrong with Nepal’s federal polity and what can be done to correct its flaws.
You have been a vocal critic of federalism from the very moment when the federalism discourse started in Nepal after 2007 political change. Why so?
You have to start with the context of that time. The power sharing the political parties followed in 2007 was not based on any defined principles, established rules or shared values. Everything was decided in a haphazard manner. When the interim constitution was promulgated on January 15, 2007, there was no provision related to the federal system in it. The Madhesh uprising followed after the issuance of the interim constitution. Then on January 31, the then Prime Minister Girija Prasad Koirala proclaimed that the country would go on a federal model. There was no research, there was no rational basis and there was no thoughtful consideration. Federalism was declared by the PM just to pacify the agitators. Then on March 9, 2007 the constitution was amended to include the federal system. This was done to save face by the then leadership. Nobody had faith in federalism, no political leaders actually knew what it was.
The biggest flaw was this.
Federalism came out of nowhere. It was not in the Comprehensive Peace Agreement, nor was it in the interim constitution initially. It was not based on any established values and research. There was no study about it, nobody had any clue at the time what it would look like, how it would work. Political parties, including those who demanded federalism, were absolutely clueless about its merits and demerits and relevance and need for Nepal. The ad hoc measure taken to pacify some agitators came to define and later guide the politics of the country. This is what is inherently flawed about the federal system.
But was not the federal system necessary to address the genuine demands of inclusion, proportional representation, diversity and multiculturalism?
Attempts were made to justify federalism on these grounds. They said federalism was adopted to ensure inclusivity and to manage and acknowledge diversity. Again, this was a wrong premise. Often students are taught in universities that federalism is meant for addressing diversity, inclusion and multiculturalism. Findings of my studies show something different. It shows that federalism is an antithesis to diversity, inclusion and multiculturalism. Federalism does not help much, rather it hinders. Federalism is anathema to multiculturalism and vice versa. Federal system does not help in addressing and acknowledging diversity and multiculturalism. Federal system is in practice in around 26 countries in the world right now. If you look at the success stories of these countries you will find that the system has been successful only in those countries with homogenous societies. Germany is one example. Australia, Austria and the US can be cited as other examples. In countries with multicultural societies like Nepal federalism has been much less successful, in some cases even the recipe for disaster. Think about Nigeria and Sudan.
Actually, multiculturalism and diversity can be better managed without federalism than with it. Look, there are around 200 countries in the world where there is no federal system. You check the inclusion and representation of people in these countries and you will see that those ranging from 1 to 100 ranks are the countries without a federal system or countries with a unitary system.
But issues of multiculturalism and diversity are genuine issues. Are they not?
Who says they are not genuine issues. But this could very much be managed without adopting a federal system of governance. The highest rate of inclusion in federal countries is around 32 percent on an average whereas the highest rate of inclusion in unitary states is at least 50, in at least 50 countries. Look at the rate of inclusion and representation in Scandinavian countries like Norway and Finland.
So, do you suggest that we were misinformed about the merits of federalism?
We were misinformed, misled and misguided by the faulty narratives on federalism for about a decade—from 2007 to 2015. And we are bearing the consequences now. We were misled to think that federalism is synonymous to representation and inclusion. When I objected to this faulty narrative in the past, I was jeered at, I was mocked. I was branded as a regressive person.
There are two facets to inclusion. Equitable distribution of resources by the state and equitable access to resources by the people followed by devolution of powers. As you can see, this has not happened in Nepal. Sovereignty remains undivided in the unitary system whereas it remains divided in the federal system. All these nitty-gritties were not given space in Nepali media back then. Those who held critical views on federalism were outright branded as pratigamis (regressive). And people feared to speak out against the lies of federalism because they did not want to be projected as pratigami conspirators.
Now look at what is happening. Our provinces have become centers to recruit political cadres. They do not deliver but they are spending billions of rupees of taxpayer’s money. Proportional representation quotas meant for those really marginalized and historically underrepresented have been hijacked by the power elites—the spouses and relatives of big leaders. And there is no sign of hope that this will change anytime soon. Only consolation may be local levels where the rate of representation and inclusion is relatively higher and relatively fairer than in provincial and federal levels.
What should be done then?
The first priority of the state should be on proper management and fair distribution of resources along with effective service delivery, whether we will remain federal or not.
We don’t need a three-tier government. Two-tier government system would be suitable for us. Reduce the sizes of local levels, fully empower them, make them fully truly representational and inclusive. Do the same thing with federal structure as well. Provinces have become the white elephants. There is a lot of power duplication between the federal and provincial governments. Provincial governments have become nothing but a bad shadow of the federal government, everything bad happening at federal level has gone down to the provincial levels. Provinces have become like resource gobbling machineries that deliver nothing. Political leaders say to me in private conversation that they had to go for a provincial model to manage their cadres. They say to me ‘we cannot speak up against this because our lips are locked’ and they tell me to keep raising voices. Even those of the leaders who were vocal about federalism today say that it was a mistake and they say to me ‘you were right all along but what to do we cannot speak up about it openly.’
While there is a voice that provinces have become like white elephants and they need to be done away with, the counter-argument is that provinces are souls of the federal system and provinces have somehow helped to manage conflicts and therefore they should be given more time to mature and be fully functional.
But look at how unproductive provinces have already become. Provinces may have become tools to manage political conflicts at one time but now they have become nothing less than mere platforms to recruit and manage political cadres. The question is how long should the country and the people bear with these unproductive structures just so that some political cadres get jobs. Truth of the matter is that provinces have become big burdens on us. They have not been able to become assertive enough. They have not been able to prove their relevance.
We can make local levels and federal structure even more inclusive and representational than they are now but I don’t see the relevance of provinces any more. Trust me, many in Madhesh feel the same way. There was a time when I went to Madhesh, Madhesh-based party leaders would question me for my critical views. Today they say ‘you were right all along, these provinces are nothing but the house of corruption.’ Politicians may still justify the provinces because they are benefitting from it as they have become platforms to manage their cadres and gobble up and misuse resources. But fairly speaking, it is getting late to review the fallout of the system with an open mind based on data. People know and have seen for themselves how unproductive provinces have become already. They have no fascination toward the provinces. We need to inform the people about what actually is the situation. Then if the political leadership decides to take away provinces, there will be no conflict. But before that we need to have an informed debate and discussion. This is the right time to start.
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