Thursday, 7 December, 2023

Demarcating Functions In Federalism

Mukti Rijal


Prime Minister KP Sharma Oli has been reported to have told the chief minister of the Karnali Pradesh to take such key decisions as reshuffling of the government ministers after taking concurrence of the federal Prime Minister since the subnational government (Pradesh) is an administrative unit of the federal (central) government.
The observation of the prime minister as reported has kicked off controversy particularly due to the fact that the alleged statement does not purportedly fit in with the tenets of federal governance. Similar criticism has been leveled against the interference of the NCP party central command to fix the Pradesh capitals which is purely an exclusive privilege of the legislative assemblies concerned. Though Pradesh assemblies have been allowed to endorse the capitals, this was done through exercise of the party whip to check dissension.
The Pradesh assemblies had been allegedly reduced into rubber stamp. How should the relations between federal and sub-national government be defined and demarcated? To what degree can federal government dictate into the affairs of the subnational government? These are the issues that remain the bone of contention in the running of the federal governance. It is more so in the context of Nepal, as we have adopted the federal polity that is based on cooperation and interdependence among three tiers of the government.

Cooperative model
The constitution of Nepal in its Article 232 defines the characteristics of federalism in Nepal in the very explicit terms. The federalism described in Nepali constitution is a cooperative one which denotes that the each sphere of the government - federation, state (Pradesh) and local- should cooperate with each other in course of discharging their functions and responsibilities.
The principles of co-operative government appreciate the interdependence of the three spheres of government namely federation, state (Pradesh) and local though they are both distinctive and interrelated. Each sphere is independent and autonomous to each other.
It does not ignore differences of approach and viewpoint between the different spheres but encourages healthy debate to address the needs of the people they represent by making use of the resources available in a cooperative manner. However, the understanding about constitutional provision has resulted in the emergence of several contested political issues straining relations between federation and subnational levels. These include, but not limited to, legislating and ratifying laws at the federation (national) level without the consent or concurrence of the state (Pradesh) legislature. Moreover, the federal parliament passes laws jeopardising the exclusive competence and jurisdiction of the subnational governments
Similarly, instances are abundant to show resistances and non-cooperation of the subnational governments to the schemes of the national government. The subnational governments decry and often do not respond to public sector organisations and agencies working under the tutelage of federation constructively, and take steps to reject public servants deputed by national government at the subnational level. In this regard, it is relevant to note the overtures and posturing of State 2 which is yet to be officially given name due to lack of consensus in the legislative assembly.
The Pradesh has gone to the extent of promulgating its own police law allegedly breaching the boundary of the constitutional provision though it did not enter into effect. Similarly, some local governments have reportedly enacted laws governing education preempting the federal and state (Pradesh) legislative initiatives on the subject. In fact, legislations, regardless of the subject and competences at sub-national level - Pradesh (state) local - , are supposed to respect and sub-serve to the principles, institutions and processes of cooperative federalism.
However, the federal government is also expected to respect the constitutional principles of subsidiarity and self-rule so that the functions assigned to sub-national levels especially in the exclusive list are not prejudiced and superseded. With a view to make the cooperative federalism work effectively without breaching its values and principles, law relating to intergovernmental relations is being formulated in the federal parliament pursuant to the provision of the constitution. The proposed law has embodied some provisions that clarify confusions and remove uncertainties especially in legislative functions of the three layers of the government stipulated in the constitution.
The proposed legislation seeks to define the principles of legislative functions for each sphere so that the spirit of the cooperative federalism are strongly upheld and respected. It is spelt out that no sphere of the government- federation, state (Pradesh) and local- should encroach upon the exclusively assigned functions and competences of others in line with the values and principles of cooperative federalism. The proposed legislation is also clear to avoid duplication in the exercise of authority and requires the federation, state (Pradesh) and local spheres to pay heed to it.
The most important provision in the proposed draft is that it recognises and appreciates the values of subsidiarity that enhances decentralised policy legislation and delivery of services. The critical problem facing federal governance is that each sphere seeks to create one's own parallel structures and mechanism to implement functions within one's own competence and jurisdiction. Such tendencies do not only lead to the wasting of resources and duplication of efforts but also give rise to conflicts over the exercise of jurisdictions. This should be avoided to make efficient and effective utilization of resources.

Another important provision in the proposed draft is the formation of mechanism headed by prime minister to streamline and address issues relating to intergovernmental relations. The proposed mechanism is different from others like interstate council provisioned in the constitution in the sense that it is broad based with representation of all stakeholders, including local governments. Once the law is enacted, it is expected that the issues that plague the inter-governmental relations would be resolved as it would demarcate the boundaries and jurisdiction in a more concrete terms.

(Rijal, PhD, contributes regularly to TRN and writes on contemporary political, economic and governance issues.