The FEDERALISM Debate in Nepal Post Peace Agreement Constitution Making in Nepal Volume II Post Peace Agreement Constitution Making in Nepal Volume II The FEDERALISM Debate in Nepal Edited by Budhi Karki Rohan Edrisinha Published by United Nations Development Programme (UNDP) Support to Participatory Constitution Building in Nepal (SPCBN) 2014 United Nations Development Programme (UNDP) Support to Participatory Constitution Building in Nepal (SPCBN) UNDP is the UN’s global development network, advocating for change and connecting countries to knowledge, experience and resources to help people build a better life. United Nations Development Programme UN House, Pulchowk, GPO Box: 107 Kathmandu, Nepal Phone: +977 1 5523200 Fax: +977 1 5523991, 5523986 ISBN : 978 9937 8942 1 0 © UNDP, Nepal 2014 Book Cover: The painting on the cover page art is taken from ‘A Federal Life’, a joint publication of UNDP/ SPCBN and Kathmandu University, School of Art. The publication was the culmination of an initiative in which 22 artists came together for a workshop on the concept of and debate on federalism in Nepal and then were invited to depict their perspective on the subject through art. The painting on the cover art titled ‘’Emblem” is created by Supriya Manandhar. DISCLAIMER: The views expressed in the book are those of the authors and do not necessarily represent the views of UNDP/ SPCBN. PREFACE A new Constitution for a new Nepal drafted and adopted by an elected and inclusive Constituent Assembly (CA) is a key element of the Comprehensive Peace Agreement (CPA) of November 2006 that ended a decade long Maoist insurgency. Elections were held under the Interim Constitution of 2007 and inclusive 601 member CA that also functioned as a Legislature Parliament was elected. It included 197 women and representatives from Nepal’s marginalized groups and diverse population. The CPA and the Interim Constitution mandated the CA to draft and adopt a constitution that eliminated the centralized, unitary state and introduce instead progressive state restructuring, inclusion and the empowerment of Nepal’s excluded communities. The constitution making process of 2008-12 failed to draft and adopt a new constitution but did produce significant achievements. There is today in Nepal, broad agreement that Nepal should be a federal, secular and inclusive democratic republic. There has been a widespread public debate on complex constitutional issues and the various thematic committees of the former CA produced impressive reports on the main constitutional issues. The issues where consensus proved difficult included the basis for the demarcation of provinces (the balance between identity and viability) in a federal Nepal; the design of the electoral system and whether Nepal should adopt a presidential system, continue with the Parliamentary executive model, or explore a semi-presidential compromise. The collapse of the Constituent Assembly in May 2012 created a crisis that was not anticipated by the framers of the Interim Constitution. The CA elected in 2008 was expected to continue in office until the adoption of a new constitution and there were therefore no provisions for a second CA election. After months of uncertainty a political consensus was reached by the main political parties in the country that an election for a new CA under the aegis of aspecial council of ministers chaired by the Chief Justice, was the way to resolve the constitutional crisis. Since there was no Legislature Parliament to amend the constitution, a provision that gave the President the power to issue orders to remove difficulties was used to give legal effect to the political consensus to conduct elections. Nepal went to the polls on 19 November 2013 to elect a new CA to resume the important task of constitution making. i This two volume publication seeks to describe and analyse the remarkable and ambitious participatory constitution making process in Nepal and its challenges both with respect to process and substance. It also seeks to critically examine the difficult issues that have prevented Nepal to date from reaching agreement on the substance of the new constitution. Authors were identified so as to capture the range of views and opinions on a variety of constitutional issues that have featured in the national debate on constitutional reform. We hope that the collection of essays will contribute to a more informed debate that will in turn, lead to a successful conclusion to the process. ii INTRODUCTION TO VOLUME TWO The second volume of the post-Comprehensive Peace Agreement (CPA) constitution-making process of Nepal is solely dedicated to federalism, as it was undoubtedly the major contentious issue that ultimately led to the demise of the first Constituent Assembly without producing a new constitution. The issue remains the same as for the second Constituent Assembly – how to divide Nepal into federal units and how to share power between the centre and the federal units. In Chapter 1 of this volume, Budhi Karki discusses how the major Nepali political forces agreed to the broader agenda of state restructuring to achieve specific objectives but how this agenda has been narrowed down to some aspects of federalism alone over the course of time. This chapter tries to debunk some of the myths and misconceptions about federalism promoted by some self- proclaimed ‘federalists’ and ‘anti-federalists’, which have made the complex path of restructuring the state even more difficult. Chapter 1 also examines some weakness, gaps and contradictions in the discourse on federalism in Nepal and some reasons for the failure to restructure Nepal as a federal state. In Chapter 2, Seira Tamang argues that the debate on federalism is illustrative of the overall weak and limited nature of the discourse on rights in Nepal and of how the main actors in this debate have failed to clarify key points of discussion and lacked detailed engagement with different arguments. This chapter highlights the weaknesses of various interventions, the inattention to detail by central actors, and the overall context of a narrowed and disjunctive view of rights, which has prevented a broader understanding of rights, impacting on all citizens. Although there is agreement that identity and capability are the main principles for federalising Nepal, how to apply them in doing so is highly contentious. Politicians, academics, civil society and the general public are all divided on this issue, mainly into two camps: those who want to put identity at the core of the federalisation process and those who think capability should be the primary iii factor. Chapters 3, 4 and 5 present different perspective on this crucial question. In Chapter 3, Krishna Hachhethu explains why identity should receive prominence in constituting the federal units and examines the extent to which concern shown by those favouring capability as the primary factor can be adjusted in designing federal units without overly compromising the identity factor. He also examines the political complexity involved in balancing identity and development. In Chapter 4, Bipulendra Chakravartty explores the meaning of identity and how it is constructed. He discusses the complexity of the issue of identity in Nepal and how to address this issue through ethno federalism. In Chapter 5, Pitamber Sharma discusses the historical context of state restructuring, the congruence of ethnicity and class, and the contemporary spatial picture of ethnicity to highlight why ethnicity cannot be ignored in Nepal’s federalisation. Sharma presents a critical review of the federalisation exercises undertaken during the tenure of the first Constituent Assembly and sets out his approach to balancing identity and capability while federalising Nepal. In Chapter 6, Balkrishna Mabuhang explores how the issue of accommodation of diversity through autonomous regions and federal units was raised and discussed during the first Constituent Assembly. He discusses the accommodation of diversity in two neighbouring countries and draws an analogy between Nepal and Ethiopia. The author also discusses the autonomous regions proposed by the first Constituent Assembly’s State Restructuring and Distribution of State Powers Committee by measuring population size and geographic location. The distribution of powers between different layers of the government lies at the core of any federal system. This determines how centralised or decentralised any federal system is. The distribution of powers is discussed in Chapters 7 and 8. In Chapter 7, Mohan Lal Acharya reviews and discusses the various types of competencies of the different layers of government in a federal system and their importance. He explores some comparative best practices of power distribution in federal countries and examines the lists of competencies proposed by the first Constituent Assembly’s State Restructuring and Distribution of State Powers Committee, as well as by the High Level State Restructuring Commission, along with other relevant committees’ proposals. Acharya also suggests a review of the list of competencies and residuary powers to ensure a balance between self and shared rule under federalism. In Chapter 8, Jayampathy Wickramaratne, focuses on the critical importance of clearly delineating the division of powers in Nepal’s federal state. He offers a close analysis of the relevant work of the Constituent Assembly, and harnesses both theory and practice to formulate a detailed proposal for the allocation of competencies in the future Nepali state. Sheri Meyerhoffer’s contribution, in Chapter 9, examines the role of non- dominant populations in the development of Canada’s federal system and explains how Canada has applied a group rights framework in its management iv of identity politics. Her paper discusses in detail Canada’s experience in pursuing substantive equality, drawing on the interplay between the central government and Canada’s French-speaking communities and indigenous populations. Irantzu Pinillos Urra, in Chapter 10, engages the theme of managing diversity in federal states by exploring the historical relations between Spain’s Basque and Catalonian regions and the country’s central government.