Kathmandu School Of Law (KSL)
in co-operation with Center for Legal Research and Resource Development (CeLRRd)
E-Bulletin (Vol 79)
1 June 2007
Why Federalism is Necessary?
(Assoc. Prof. Yubaraj Sangroula)
Demonstration on Election Systems cum Exhibition on Constituent Assembly
KSL is organizing a day long demonstration on Electoral Systems cum CA exhibition on 15th June 07. The demonstration will be held at KSL to educate political activists, civil educators, NGO workers on Constituent Assembly and different methods of election system including balloting and counting.
Related organizations are requested to provide us with their publications related to constituent assembly and election systems to be displayed at the program. All interested are invited to observe the demonstration and provide feedbacks.
Regional Conference on Strengthening Public Awareness, Participation and Accountability in Constituent Assembly Process in Nepal
Out of ten regional conferences to be held under the auspices of Coalition for Constituent Assembly Support (CoCAS), two conferences were held in Butwal and Makwanpur on 23 May 07 and 25 May 07 respectively. Conferences were organized to create awareness among local people about CoCAS activities; and to open discussion on ten thematic papers prepared on issues of constituent assembly among representatives of local political parties and representatives of local professional organizations to collect comments and feedbacks for its finalization.
'Reference Education Materials' are being developed on the basis of these papers. CeLRRd representatives, Appellate Court Judges, local representatives of political parties and their sister organizations, journalists, dalits, indigenous people, women and representatives of other professional organizations provided active participation at the conferences.
Assoc. Prof. Yubaraj Sangroula, National Consultant and Chairperson, CoCAS, Advocate Kumar Sharma Acharya, President, CeLRRd, Mr. Rammani Gautam, Program Officer, CeLRRd, Kathmandu, Chief Judge of Appellate Court, Butwal, Mr. D.R. Ghimiare, President, FNJ, Nawalparasi, Mrs. Uma Kafle, All Nepal's Women Union, Rupandehi, Mr. Lok Nath Pantha, Miss Gyanu G.C., Purnamasi Harijan, Roshan Bdr. Gahamagar, Tara B.K. and others were the guests and eminent personalities present in the Western Regional Conference in Butwal.
Conference was focused on providing information about the contents of the thematic papers and discussion thereon. Prof. Yubaraj Sangroula and Assoc. Prof. HK Rana briefly talked about ten thematic papers. In his presentation on "Objective and the process of Constituent Assembly," Prof. Sangroula highlighted on the basics of social science that any need or want shouldn’t be suppressed; there should always be discussion, not the conflicts; the method of discussion must be very democratic. Then he mentioned about the objective of the constituent assembly as unity in diversity, identification of all the groups, and inclusion of all the communities.
He further dealt on "Restructuring of the State Policies and Institutions." He explained the purpose behind constituent assembly and how inclusion is possible in context of Nepal. He put forward models of the federalism in front of participants and urged them to make choice of the model that they think adoptable in our context.
Assoc. Prof. Hong Kong Rana took next session on "The Quest of Diversity and Unity in Context of Inclusive Democracy." He started his presentation with the concept of the diversity and further explained the approaches of understanding the diversity. He then asked the question to participants whether diversity is a threat for unity or not. He highlighted the reason and the process of inclusive democracy in Nepal. He also opened discussion asking whether the unification of Nepal must mean the geographical unification or the unity of the diversified people. At last, he concluded with the idea that if the transformation process is taken seriously with positive changes then aim can be easily achieved.
Similarly, distinguished guests and eminent personalities present in the Central Regional Conference were Assoc. Prof. Yubaraj Sangroula, CeLRRd National Consultant and Chairperson CoCAS, Advocate Kumar Sharma Acharya, CeLRRd President, Mr. Rammani Gautam, Program Officer, CeLRRd, Kathmandu, Mr. Govinda Pd. Parajuli, Chief Judge, Appellate Court, Makwanpur and others.
Like in previous conference Assoc. Professors Yubaraj Sangroula and HK Rana made participants aware about different aspects of constituent assembly grounding discussions on the thematic papers.
Television Talk Show on Constituent Assembly
Center for Legal Research and Resource Development (CeLRRd) is going to produce 10 episodes of television talk show program for CoCAS (Coalition for Constituent Assembly Support) with an objective to increase public awareness, participation, and accountability in the forthcoming constituent assembly process in Nepal. The programs are specifically designed to prepare disenfranchised communities and local communities of Nepal to assert their rights during the constituent assembly process, and make them capable of pressing the state and its actors to bring about changes in the existing legal system.
The talk show also intends to increase active and meaningful participation of local communities in upcoming constituent assembly election.
The programs will be broadcasted from Nepal Television every Wednesday at 5:00 PM under the banner "Sambidhan Sabha: Hamro Sarokaar". There will be three expert panellists and audience on the floor. Audience will also have equal chance to actively participate in the discussion.
Why Federalism is Necessary?
The political scenario is facing crisis to attain legitimacy. Over the last one year, the crisis is
mainly deepening owing to obstinate decline to understand the ‘gravity of the problem’. The
game hatched to ‘prolong the uncertainty’ of the course of unfolding resolution of the crisis is
thwarting the positive transformation of the ‘politics to progress’. The safety of the society is
vulnerable. The breakdown of law and order is serious. The diversity of the population, culture,
geography is gradually marching towards adversely affecting the unity of the country.
In India, for instance, over two dozen civilizations and many languages and ethnic groups have
been able to ‘create it a nation’. Prior to Britis h colonial consolidation, the India as a nation was
not in existence. In fact, several kingdoms existed independently. British rulers unified Indian
states for the purpose of ‘facilitating the revenue collection’ by creating a ‘centralized
government system’. However, the independence movement utilized this development as a boon
to oust ‘empire’, as the colonial domination educated ‘Hindustani’ of importance of unity and
necessity to fight for independence emerging above the ‘regionalism’. Political leaders from
many parts of India under leadership and guidance of Gandhi united to ‘fight against the colonial
rule’ with commitment to ‘build India a democratic’ nation. This scheme thus made ‘democracy’
as the basis of ‘unity of various civilizations, languages and ethnic diversity’. India in the wake
of fight against colonial rule realized that the ‘co-existence and harmony’ of different
civilizations and other diversities could be protected only if the ‘democracy’ was made a
common platform. It was the most prudent ‘vision’ of Ghandi and other leaders. India was thus
declared as a ‘secular state’, which did not recognize any religion or culture as the ‘religion or
culture of India’. Indeed, all civilizations, religions and cultures as well as languages were
recognized as assets of India nation. The democratic principles and institutions were thus made
the ‘basis of India as nation state’.
Another example is the ‘Switzerland’. Switzerland too is a secular state, which has made the
‘democracy’ as the basis of the unity of the nation. Now the question is why Nepal cannot make
the ‘democratic principles and institutions’ as the basis of ‘nation state’. Most importantly, the
political parties have failed to ‘consider the restructuring mission’ from this perspective. Political
parties have failed to ‘win over the trust’ of population with ethnic, linguistic and other
diversities. There are two important issues to consider for ‘giving the discussion of restructuring
of the state’ a definite and meaningful shape. Firstly, the political parties must be aware and clear
on ‘the principle of federality’. Are they going to adopt ‘asymmetrical or symmetrical’ approach
while implementing the plan of ‘federalism’? India has followed the ‘symmetrical model’. In this
model, the powers, authority and privileges of constituent provinces or states are ‘clearly
outlined by the Constitution’, and thus ‘constituent provinces or states’ can possess only those
powers, authorities and privileges that are clearly spelt out in the Constitution. All other residue
powers remain with the ‘central authority’. Canada has adopted ‘both symmetrical and
asymmetrical models. Some provinces in Canada can enjoy only those powers, authority and
privileges that ‘outlined by the constitution’. While some provinces have all those powers,
authorities and privileges’ except those that specifically spelt out as powers, authorities and
privileges of the central authority. In asymmetrical model, to simplify, the central authority’s
powers, authorities and privileges are determined, and outlined precisely, and rest other powers,
authorities and privileges are left for the constituent provinces or states. USA has followed this
model. The concept of ‘autonomy largely follow’ the asymmetrical model.
Another important issue relate to ‘demarcation of the geographical boundaries of provinces’.
There may be several principles to follow while demarcating the ‘boundaries’ of the provinces.
However, while doing so, the question as to why ‘the province’s boundaries are set in that shape
must have a clear answer in the minds of people. Creating a province is thus not merely a matter
of ‘political decision’. One of the most important principles to consider while creating provinces
is the ‘sentiment’ of the people. A territory ge nerally has a ‘sentiment of people’ for
connectivity of the people. It might be a ‘history’, culture, language, civilization, unique
character of geography, and so on. However, the creation of a province, without any sentimental
connectivity, might be doomed to function or ‘emerge as a unit of the state’. The political parties
have also failed to analyze the situation from this perspective.
The idea of creation of provinces in any nation state is necessitated by the need of ‘vertical
distribution of the powers’, which in turn is necessary to ‘consolidate the democracy and prevent
the circumstance of central authority as despotic nation or tyranny’. At this point the remarkable
point to remember is that ‘the restructuring of the nation should be governed by two important
needs, the first being the need ‘of consolidating democracy through vertical distribution of
powers’, and the second being the need of ‘maintaining the secular character of the nation’. The
federalism therefore is not a ‘concept of dividing the nation into communal units’.
The democracy, however, does not function in failure of recognizing the ‘diversity’ as a basis of
the unity of nation. In this context, the restructuring policy of Nepal is a ‘drive to transform the
Nepal from its feudal, monolithic and static characters to a ‘democratic, divergent and
progressive’ nation state. The constitutionalization of the recognition of cultures, languages and
other attributes of population is the only basis of the ‘unity of Nepal’. The restructuring policy
therefore must give attention generous and deep attention to these issues. The character of a
territory to have been settled by a ‘particular ethnic group’ might provide a basis for
‘sentimental’ basis for ‘boundaries of the province. Obviously, there is no danger to ‘determine
the basis of federalism’ on such sentimental grounds. The determination of federalism on this
ground can never mean that ‘the creation of federal unit’ on such ground is going to give a
‘special power to a group of people’. It is so because ‘the democracy does not allow to ‘exclude
people’ on any ground. The determination of the boundaries of a ‘province is to mean a process
of vertical distribution of powers of the state on the basis of ethnic sentimental connectivity’ of
people, but it should never mean in any sense an idea that the ‘vertical distribution of state
powers based on sentimental connectivity’ of the people provides ‘a basis for a group to isolate
or exclude others’ residing in that territory’. The concept of ‘ethnic federalism’ with a sense of
special privilege to a group at the cost of exclusion of other is defective on the basis of principles
of democracy as well as ‘integrity’ of the nation. The powers to devolve to a ‘provincial or state
unit’ are not the ‘special privileges of a group of people’, rather they are the powers of
constituent province to ‘consolidate democracy, progress and protect heterogeneity’ of the
The ‘constitutionalization of the heterogeneity of culture, languages and other similar attributes
with a view to prevent the State being autocratic, discriminatory and monolithic power center,
and to ‘consolidate the freedoms of people with all powers to rule themselves democratically’ are
the basic needs for ‘restructuring the Nepalese state’. Historically, Nepal has been stubbornly
ruled by a ‘elite group’ to the complete exclusion of entire population. The elite group has
imposed a typical culture and religion as the fundamental attribute of the Nepal’s identity. The
federalism is therefore necessary to empower people to ‘have self- governance’. The right to selfdetermination
of a group within a nation thus must be understood as a right to ‘socio-economic
and political empowerment’ as an essential population constituent of the nation. Within a nation,
as opposed to a colony, the group of people has no right to ‘self-determination’ meaning the right
to secede the country. The federalism thus cannot be prelude to ‘a movement to secede’ the
nation. The concept of federalism in Nepal is thus an idea of ‘breaking or eliminating the
political domination of an elite group’, which, by centralizing the powers with a so-called central
authority, has been monopolizing the governance powers to the exclusion of cultural and
linguistic indigenous communities. The scheme of the restructuring should therefore adopt some
principles as indispensable elements for national integrity. Firstly, it should recognize that the
‘equality of all cultures and languages’ is the only basis of the national unity, and for this the
federalism is indispensable. Secondly, in society like Nepal which has been exclusively ruled by
a centralized form of government captured by a group cannot transform to ‘democratic society’
by devolving the powers vertically so as to enable to all groups to exercise the powers to rule.
The federalism is thus necessary to transform Nepal into a ‘nation state’, belonging to every
Nepali equally. Thirdly, the federalism is basis for ‘consolidating the democracy’, without which
the ‘protection of individual liberty is impossible’. Finally, the federalism is means of
‘promoting the individual liberty and freedoms’. To see from this perspective, the scheme of
federalism must be agreed by all population, and its characters need to be set forth by consensus.
Without consensus the ‘scheme of federalism’ might be a source of conflict among people.
(Published in The Kathmandu Post)
Kathmandu School of Law / Telephone : 977-01-634455/6634663, 2042268
Dadhikot, Bhaktapur / Fax : 977-01-634801
Kathmandu, Nepal / E-mail : email@example.com Web : www.ksl.edu.np