Monday, 6 July, 2020
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OPINION

Issues Of Cooperative Federalism



Mukti Rijal

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 each other in course of discharging their functions and responsibilities. The constitutional provision mentioned above mentions that the relations between the federation, state (Pradesh), and local level shall be based on the principles of cooperation, co-existence and co-ordination.
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. The constitutional provision places a duty on the spheres of government to respect each other's powers, functions and institutions. In this context, it is in order to take note of article 50 of the Nepali constitution. It specifies the political objective of the federal system adopted in the constitution.
The federal polity in Nepal is, indeed based, on cooperative and constructive relations among federal units – federal, state (Pradesh) and local but without compromising on the tenets of self- rule and shared rule. Co-operative federalism represents the basic values of both shared rule and self - rule which should be embodied and embedded in the government structures and institutions. Co-operative federal system is premised upon partnership and collaboration among three spheres of government where each sphere has a specific role to fulfil and hence should promote constructive relations between them.
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 to government in a cooperative manner. However, many noted scholars of federalism point out that the political aspect of the cooperative relationship among the spheres of the government is notably complex due to several reasons. First, both state and local governments are equipped with their own legislative, executive and judicial powers.
The understanding about constitutional provision has resulted in the emergence of several contested political issues straining relations between federation and sub-national 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 may pass laws jeopardising the exclusive competence and jurisdiction of the sub-national governments. Instances are abundant to show resistances and non- cooperation of the sub-national governments to the schemes of the national government. The sub-national 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 sub-national level. In this regard, it is relevant to note the overtures and posturing of State (Pradesh) Number two in the Madhesh-Terai which is yet to be officially given its name due to lack of consensus in the legislative assembly.
The Pradesh had gone to the extent of promulgating the state (Pradesh) 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 pre-empting the federal and state (Pradesh) legislative initiatives on the subject. In fact, legislations regardless of 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 federation 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 discussed and 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 which is yet to be finalised seeks to define the principles of legislative functions for each spheres 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 utilisation 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. It is expected that the on-going session of the federal parliament discusses the bill and ratifies it with appropriate modifications if needed to strengthen and support values and principles of cooperative federalism in Nepal.

(Rijal, PhD, contributes regularly to TRN and writes on contemporary political, economic and governance issues. He can be reached at rijalmukti@gmail.com)

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