Share rule and self rule

In 2015 a clear majority of Nepalis chose, via constitutional assembly, to promulgate a constitution that strives to unify a country with many differences, in the interests of good government, justice, prosperity, and peace.

This constitution is the supreme law of the land. By accepting the sovereignty of the constitution, Nepalis have accepted the rule of law, applicable equally to the government and to individual citizens. Ultimately then, the quality of government and of citizenship will depend on observance of the rule of law, beginning with the constitution.

The constitution has introduced fundamental changes in the country’s governance. The most prominent change has been to restructure the Nepali state into 753 local governments, seven provincial governments, and one federal government.

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Article 232 of the constitution, which addresses the relations among the three types of government, makes clear that they are not hierarchically related, rather, their relationships 'should be based on the principles of co-existence, cooperation, and coordination'.

Each type of government enjoys certain exclusive powers that can be exercised independently, with concurrent powers of the federal, provinces, and municipalities also listed in various constitutional schedules.

Although each form of government has multiple, exclusive powers that can be exercised independently, the functions of these governments are significantly interdependent for the purposes of public goods and services delivery.

This interdependence creates patterns of cooperation, competition, and conflict that merit serious consideration and begs the question of the role of federal government in observance of the rule of law, beginning with the constitution.

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Article 235 of the constitution requires the Federal Parliament to enact legislation in order to maintain coordination and to resolve disputes between and among the federal, provincial, and local governments.

This role is particularly important given that there are over 300 laws that must be amended and over 100 new laws that must be drafted to fully implement constitutional provisions and address overlaps and contradictions in constitutional provisions.

A quick scan of legislation enacted (or not) since promulgation of the Constitution in 2015 shows an absence of care for constitutional provisions and indeed for the general defining characteristics of a society that adheres to the rule of law.

Some minimum standards can be applied to substantiate this claim: for example, we can ascertain the presence or absence of legislation necessary to deliver fundamental rights to the people as stipulated in the constitution, to fulfil obligations that Nepal has towards international conventions, to adhere to directive principles of the state enunciated in the constitution’s preamble, and to clearly demonstrate a constitutional basis for the exercise of power by government.

To date, legislation pertaining to fundamental rights and transitional justice have not been enacted, nor have laws on dispute resolution related to the implementation of federalism.

In fact, laws that have been enacted since 2015 have mainly reduced clarity, coordination, and cooperation. Finally, laws that should provide the constitutional basis for the exercise of provincial and local government authority to federal standards have not been enacted. In their absence, provincial and local government assemblies run the risk of enacting provincial and local laws that violate or don’t meet federal standards. They, therefore, have adopted a wait-and-see approach.

While legislation inconsistent with the constitution, even if duly enacted, may be held unconstitutional and so invalid, it is equally important to abide by time-critical constitutional provisions for the implementation of federalism.

Since promulgation of the constitution in 2015 and successful elections in 2017, devolution in Nepal is outpacing the rate at which new laws can be developed, exceeding the capacities of newly-elected representatives, and challenging the mindset of civil servants trained in a centralised, hierarchical system of public administration.

The next several months will be decisive in making the difference in Nepal’s plans to share rule and self rule amongst its federal, provincial, and local governments.

It will not be enough to aspire to a society characterised by political, economic, and social justice. It will require both government and citizen to observe the rule of law and submit to the constitution.

George Varughese advises the Niti Foundation in Kathmandu.

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Federalism, republicanism, secularism, Anurag Acharya

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