Although a new system was introduced after the movement of 2046 (1990), there was no substantial change in the main policy and formation of the state. After the reinstatement of democracy, the Nepali people started to search for their status, identity and influence in the structure of the state. As a result, the Constitution of Nepal 2047 (1991) accepted the multi-lingual and multi-ethnic nature of Nepal for the first time, but nothing was done to implement this in the political structure and process.
After the political change of 2046 (1990), though the Janajatis, Dalits, women, Madhesi and other communities of the Tarai raised the issues of secular state along with ethnic, regional, lingual autonomy, the Constitution of 2047 (1991) did not incorporate this. As a result, unitary and centralised state regime was given continuity. Because of this character of the state, there was no equal access of all to the ruling state. Certain class, family and particular caste became dominant. This not only intensified centralisation in politics but also kept the state under the control of group of courtiers and elites.
It was felt that the centralised state structure that had been built on the basis of policy of ‘one language, one dress’ had not provided justice to the people of all ethnic and language groups and classes. Thus the issue of equal participation in the state and policy-making level was raised. Because of caste and cultural influence under the centralised state, many people are found to have developed the concept that “Nepal is our country but not our state”. Unitary and centralised structure of the Nepali state provided the basis to their saying as well. “The present issue is of inclusion” (Tamang 2062-71). Recognition, representation and access are the bases of inclusion.
There has been dominance of Bahun, Chhetri and Newar communities in politics and administration. “These groups occupy 79.28 % of the seats in the parliament and 97.7 positions in the civil administration” (Tamang 2062-62). Since all the facilities and opportunities are centred at one place, regional imbalance in development has been created. In order to eliminate socio-economic conflict and discriminations seen in the society, restructuring of the state is necessary. Many have said that the act of making Nepal a Hindu-Khas state after the extension of Gorkha kingdom there have been ethnic, linguistic, cultural, gender and class discriminations and oppression, against which struggles have been raised. This could be the reason for many demands for ethnicity-based federalism. They argue that the Nepali state has become non-inclusive due to imposition of one caste, one language, one religion and one culture in a forcible attempt at nation-state. But the focus on ethnic discrimination has overshadowed humanitarian, cultural, regional, gender, political and class discrimination.
Others believe that the state was feudalistic and family oriented and not caste dominated. They argue that even if some of the so-called high castes Hindu like Brahmin and Chhetri have majority and dominance in the Nepali state, many people of the same castes are backward like other common Nepali people. “The source of power was not caste-specific but feudal and familial, which took on elitist hues after 2007 BS. Hence, state restructuring should not be against so-called bahunbad or in reaction to the pain of being ignored by the state but rather centre on the form of government” (Khanal 2061:39).
The fact that the power is centralised at the hands of a certain class, family and caste has been accepted by the leaders of the political parties. “Political power has been concentrated in a certain class, family and caste, which has extremely centralised power in the hands of certain individual or group for a long time. The courtier group and the elites have been successful in taking power under their control in one way or the other with the help of centralised structure” (Pokharel 2063-: 53).
There are no two opinions about the fact that the present character and form of the state should be changed. The present unitary state has given rise to a search for an alternative. The restructuring debate is focusing more on state nation rather than nation-state. “Nation-state advocates making one-caste state whereas state nation considers the whole communities resident within the geographical limit of the state as the nation” (Shrestha 2062:12). The restructuring of state denotes the restructuring of the legislative, executive, judiciary along with social, economical and overall political and administrative restructuring. And this restructuring issue which had started prior to the people’s movement of 2006 has now become the main agenda of the country. Therefore, many experts and political parties have presented different proposals about state restructuring. In this article, efforts have been made to review such proposals that have been presented for discussion at the CA committees.
State and its form
If people having one language and culture inhabiting an area are linked economically, then that is called a nation. Population, area, sovereignty and government are essential factors of a state. Thus, a state has certain geography, sovereignty, citizens and certain laws and acts. Since the citizens are under the control of the state, the state has been defined as an indispensable organising force. “Beginning with family and clan, unitary state system has been developed” (Kandel 2063: 75).
Thus the unitary state has come to exist. In a unitary state, the source of state power is the legislature only. In a country where sovereignty is centred at one place, there will be only one state and one government. The establishment of local agencies will be as per the necessity and wish of the central government. Local governments are not the competitors but helpers of the central government. There will be uniformity in laws and rules and administration. France is an example of a unitary state. Unitary states also have their own problems. Since the focal point of ruling and administration is at one place, the people at the central level cannot address local the needs and wishes. Because of this, views have come that a unitary state cannot be beneficial to the people.
In the federal system, there will be generally two governments – the state and central governments. The foreign, monetary, defence are under the central government whereas the local government is responsible for local security, development and other local issues. The constitution delineates the duties and jurisdiction of the two governments. Federal system is called citizen-oriented as it is likely to provide services promptly and embrace diversity.
The backgrounds of the countries with federal system are different. “Federal countries seem to have been formed with at three objectives. One, to strengthen separate states by forming a federation; two, union of secessionist states; three, to liberate from colonialism” (Acharya 2065:171). Unifying separate states to strengthen the federation is called federal structure. The USA, Switzerland, Malaysia are the examples. There were 13 states in the union when USA gained independence from Britain. Others states joined later on. It was only two years the 1787 Philadelphia Convention, that it became a federal union.
On the other hand, the federal unions have been formed to keep secessionist states together. Spain, Belgium and Canada can be taken as example.
If equal powers are given to the constituent states, then such federations are called symmetric federation. Australia is an example of a symmetric federation. If distinction is made betweens states, then such federations are called asymmetric federations. Canada has asymmetric federation because Quebec province has been given more autonomy in comparison to other provinces.
The federal form where emphasis has given to the autonomy of various states and power is clearly divided, it is called dual federal structure. There is legislature and executive in every level. Since the states and the centre act autonomously, several works can be duplicated. This kind of federation is in Belgium, Australia, Brazil and Switzerland. The federal form where works are divided level-wise between the centre and the state is called cooperative federal system. In this duties and rights are distinctly divided between the centre and the state. The states also equally participate in formulating the policy of the centre. In such countries the centre formulates policy and makes laws and acts and the agencies lower than this implement the same. Cooperative federal structure is in Germany, Ethiopia, South Africa, Canada.
The countries that have unitary state structure have started moving towards federal structure. “At the moment, out of 193 countries in the world 27 countries have federal structure“(Khanal 2063: 63). Countries with federal structure: Argentina (23 provinces), Australia (6 states), Austria (9 states), Belgium (3 linguistic states), Bosnia and Herzegovina (2 provinces), Brazil (26 states), Canada (10 provinces), Comoros (3 island nations), Ethiopia (9 regions), Germany (16 states), India (28 states), Iraq (19 regions), Malaysia (13 states), Mexico (31 states), Micronesia (4 states), Nigeria (36 ethnic states), Pakistan (4 provinces), St Kitts and Nevis (2 island nations), Sudan (26 states), Switzerland (26 cantons), United Arab Emirates (7 emirates), United States of America (50 states), Venezuela (23 states and federal dependencies), and Russia (86 regions).
However, this system is also not without weaknesses of its own. Perhaps because of this, several countries have both unitary and federal characteristics. Australia is an example. Six of its provinces have federal system whereas two have unitary structure. Out of its six states, two states are more of a unitary character. “Mixed unitary structure and federal structure has started appear at present. For example Spain and Belgium have such structure” (Kandel 2063:74).
Federal unions are also called by different names. “Different names have been used for federal unions. Australia, Brazil, Ethiopia, India, Malaysia, Mexico, Nigeria, United States use states to denote its members. Canada, Pakistan call them provinces. Austria and Germany use Länder, Switzerland canton, and Belgium and Russia regions” (Acharya 2065:170).
Some have argued that federal system is appropriate for big countries whereas unitary system for small countries. But whether a country should adopt unitary system or federal system is not determined by the area and population or shape of the country. “From the biggest country in the world Russia to the smallest country Saint Keats Navies with an area of 261 square kilometres and population of 42696 have federal systems. This has made it clear that area/geography or population is not the base for federal system. Whether a country should adopt federal system or unitary system is a political decision” (Khanal 2063:7-8). Thus, while determining which system to adopt, shape or population of country and economic aspects do not have to be the basis. Different kinds of models and bases can be determined.
In a federal structure, constitution defines the centre and regions. Such units are generally called state, province, region, or canton. Such units have constitution of their own like United States of America, Switzerland, and Australia. Several of the units can be governed by a single constitution. India (except for Jammu and Kashmir), Germany, Austria are the examples. However, even such federation or units are also not formed uniformly in all the countries.
Basically, federations and its units are formed in two ways. First, some federations are formed with mutual agreement among the pre-existing territorial political units. Federations in America, Switzerland, Canada and Australia have been formed in this way. Second, in some federations, new kinds of units are determined by decentralising and devolving power of the unitary state. Austria, Brazil, Belgium and Spain can be taken as examples. Nepal does not have any pre-existing territorial political units, hence the second option has to be chosen.
“Our federal state system is the one to be started through a decision now. We cannot begin a federation out of (past) existing political structures […..] which will not be of any great help at the moment. The federation here is not being formed by treaty among the political units that have existed independently. A consensus-based model of federalism for future is needed” (Khanal 2063:19).
The eight political parties and the state have in principle reached consensus about forming a federal structure. After the Madhes movement, the issue of Nepal being a federation has been adopted. The then Prime Minister Girija Prasad Koirala in an address to the nation has commitment for Nepal to be a federation..The Prime Minister said, “the Interim Constitution will be amended immediately too effect change for federal state structure and electoral constituency delineation”. The Prime Minister had committed to this effect in his address to the nation on 7 February 2007 at 11 pm. It was his second address to defuse the tension in the wake of the Madhes movement. He was forced to make this address as his week-earlier address did not end the movement. In his earlier address, he had said, “the new constitution drafted by the Constituent Assembly will ensure a federal democratic system”.
As per this commitment of the Prime Minister, federal ruling system has been specified in the Interim Constitution 2063 (2007). “To bring an end to discrimination based on class, caste, language, sex, culture, religion and region by eliminating the centralized and unitary form of the state, the state shall be made inclusive and restructured into a progressive, Democratic Federal System” Article 138(1), The Interim Constitution of Nepal 2007.
However, the parties have not been able to be clear about what kind of federal system to adopt, and there is still no consensus though they have accepted in principle the federal system through their election manifestos. Some of the parties have submitted their amended version of their model of federal system to the CA committees. The discourse on federalism has been based around these proposals and the Constitution Assembly will finalise the model through the new constitution. It has become imperative to find a consensus within the political party views with the help of experts.