State Restructuring and Federalism Balananda Paudel

Federalism - Origin Federalism is derived from 'Federation‘ Originating from a Latin word  foedus = a treaty or agreement. Meaning, The instrument by which a federation is brought about in a treaty or agreement between independent governments, national/central which they agree to create and hence created a new state to which each sovereign state surrender their sovereignty and agree to become its sovereign parts.

Asymmetric and Symmetric Federalism Asymmetric: A type of federalism where constituent units have different sets of rights and obligations which are not necessarily equal. It refers particularly to some constituent units having more powers than other constituent units and this may be done constitutionally or through ordinary laws. Symmetric: A type of federalism where all constituent units hold equal powers and facilities under the federal constitution.

 Dual Federalism Limited but countable powers to the central government; foreign policy, national security and national economy, etc. All remaining powers given to federal states; resource mobilization, policy formulation, etc. Power: Central government > State but effort to balance the power. This is currently how the United States system works.

Cooperative Federalism power sharing among federal, state & local government. All works are combined to find effective solutions for the national problems. Nepal’s federal structure is perceived to be cooperative federalism.

Why federalism? To come together? To hold together? Big population? Big geography? To federalize state power? To manage diversity? Is it ends? Is it means?

Federal System Federation Province no. 3 KTM Metropolitan City Coordination Cooperation Coexistence

Principles of State Restructuring and Federalism in Nepal Right to autonomy Self-rule Ending all forms of discrimination and oppression created by the feudalistic, autocratic, centralized, unitary system of governance Protecting and promoting social and cultural solidarity, tolerance and harmony

Principles of State Restructuring and Federalism in Nepal Eliminate caste based untouchability Committed to socialism Based on democratic norms and values Competitive multi-party system of governance Civil liberties Fundamental rights Human rights Adult franchise Periodic elections Full freedom of the press Independent impartial and competent Judiciary Rule of law

Principles of State Restructuring and Federalism in Nepal Unity in diversity by recognizing the multi-ethnic multi-lingual, multi religious, multi cultural and diverse regional characteristics Build an egalitarian society founded on the proportional, participatory and inclusive principles Ensure economic equality, prosperity and social justice Eliminating discrimination based on class, caste, region, language, religion and gender

Ultimate Destination: Prosperous Nepal

State restructuring(local level) Function Geography Population Socio-Cultural Structure Access Resources Geographical Continuity conurbation

Principles of Restructuring(local level) Economies of scale Principle of subsidiarity Principle of exception Inclusion Consolidation of structure on the basis of consolidation of function Principle of representation

Restructuring Process LLRC set the standards for the process Technical committees were formed in every districts who facilitated the process The process was participatory

Local level restructuring Limitations of the process: The criteria given by the government changed at the middle of the work of the Commission Restructuring was to be done within the boundary of the district and the province Wards of VDCs and Municipalities were not allowed to be splited Availability of data Limited time frame

Issue 1: Size and No. of local government Balancing functional responsibility and minimum efficient scale Balancing scale and proximity to the people Feeling of loss of political power

Issue 2: Interrelation between Federation, State and Local Level Hierarchical versus co-operative Are local governments a hierarchical units of the provincial level or federation? According to the constitution, each level has its own functions and responsibilities. The relations between the federation, states and local level shall be based on the principles of cooperation, co-existence and co-ordination

Issue 3: Determination of No Issue 3: Determination of No. and Boundaries of Special, Protected and Autonomous Regions Criteria set by the government were changed amidst the work No. and boundaries of rural municipalities and municipalities were not public even during the last phases of the tenure of the commission Availability of data posed a major constraint Minorities and marginalized communities were not rigidly defined The restructuring was to be done within the boundary of local level, district and province

Issue 3: Determination of No Issue 3: Determination of No. and Boundaries of Special, Protected and Autonomous Regions Boundary based structure and non-territorial structure Exclusive structure and proportional inclusive principle Cultural, social and economic rights of the structure was ambiguous

Issue 4: Separation of powers and checks and balances Executive, legislative and judicial wing of the local government shall be led by the same representative The functioning and regulation of the local bodies comes under the purview of the following constitutional bodies: Commission for the Investigation of Abuse of Authority (CIAA) Auditor General ( Regularity, economy, efficiency, effectiveness and the propriety) Public Service Commission

Issue 5: Clarity on Functional Assignment -(i) Concurrent functions and exclusive functions Exclusive functions at different level eg: Tourism fee

Allocation of power Schedule-5 Federation Schedule-8 Local Schedule 7 Schedule-6 Province Schedule-8 Local Schedule 7 Schedule 9

EDUCATION HEALTH AGRICULTURE Federation Province Local Basic Health Basic and Secondary Education Basic Health Management of Agriculture Extension

Issue 5: Clarity on Functional Assignment -(ii) Fundamental rights International conventions Directive principles, policies and obligations of the state

Issue 6: Fiscal Federalism Expenditure assignment Revenue assignment Inter-governmental fiscal transfer (Basis and Modality) Equalization grant Matching grant Conditional grant Special grant Borrowing Fiscal commission

Issue 7: Transitional Management ( Adjustment of Civil Servants) Nepal government can adjust civil servants at federal, state and local level (302-2) Employee’s interest and institution’s interest Issue of mobility of civil servants Issue of benefits Issue of previous local level staff and civil servants Issue of knowledge, skill and attitude of employees Capacity development programs No “ If and But”

Issue 7: Transition Management (Handover and take over) Physical facilities Programs and projects Process/ Procedure Out standings Audit irregularities Handover to the elected government

Issue 7: Transition Management (Continuity of service and delivery) Implemented by the government From headquarters From ward center

Issue 7: Transition Management (Clarity about Ward Service Centre) This is service delivery unit not the governing unit The role of ward committee regarding ward service Centre Functions of Ward Service Centre Service delivery unit below the Ward Service Centre

Issue 7: Transition Management (Risk Management) Political risk Contested political environment Adversarial politics Administrative risk Poor capacity Resistance Inertia/ Legacy Operational risk Proper sequencing of transition Lack of skill

Issue 8: Service Delivery Improvement Joint Service Arrangement Local level headquarters Ward service center Service centre below the ward if necessary

Issue 8: Service Delivery Improvement Public administration cannot be transformed overnight Multi-skilled and multi-tasked staffing Smart civil servant Efficient staffing Continuous training Training for all

Issue 9 Gerrymandering Political Gerrymandering When someone in authority changes the borders of an area in order to increase the number of people within that area who will vote for a particular party or person (http://www.freesearch.co.uk/dictionary/gerrymandering)

Two Types Packing: Putting as many members of one party into one constituency to limit the amount of seats they win Cracking: Splitting voters of the opposing party into two different constituency

What Are The Effects? Less accurate representation Less incentive to vote Can erase the political impact of certain groups

Issue 9 Gerrymandering Political Gerrymandering Resource based Gerrymandering Forest Water Land-fill site Grazing land Center based Gerrymandering Cultural Gerrymandering

Yarsagumba (Caterpillar fungus) based Yarsamandering

Mr. Gerry of Gerrymandering

Issue 10 Provincial Headquarters

Issue 10 Provincial Headquarters Geographically Centroid Province 1: Dhankuta and Bhojpur Province 2: Mahottari and Sarlahi Province 3: Kathmandu Province 4: Kaski Province 5: Pyuthan and Dang Province 6: Jumla Province 7: Doti

Issue 11 मिरमिरे बिहानी/गोधुली साँझ (Twilight) यो रुपक(Metaphor) किन? पुरानो गैसकेको छैन नयाँ आउन बाँकी छ Twilight गोधुली साँझ Evening twilight(dusk) मिरमिरे बिहानी Morning twilight(dawn) यो समयमा के गर्ने? नखाने? पूजा पाठ गर्ने? कुसंस्कारलाई छोड्ने?

Issue 12 Inertia (जडता) सिंहदरबार

Inertia (जडता) स्थानिय तह

Issue 13 अप्रभावकारी कर्मचारीतन्त्र

खाने धेरै काम थोरै

परिवर्तन कसरी ल्याउने? थोरै खाने धेरै काम गर्ने

Issue 14 Capacity Capacity Individual Organizational Institutional Functional Technical Organizational Institutional Societal Supply side Demand side

The way forward… Currently, about 26 countries in the world have a federal system. In almost all of the countries with a successful federal system, the unification had been of separate independent states like in, Switzerland, America, Canada. Federal system hasn’t always succeeded in countries transforming from unitary to federal system like, Sudan, Nigeria, Ethiopia. Nepal had been in unitary system from as long as the unification by King Prithvi Narayan Shah. Thus, transforming a unitary country into federal is challenging.

Constitutional Provisions on Administrative Federalization Schedule- 5, S.N. 10 Federal civil service Judicial service Other government services Schedule- 6, S.N. 5 State civil service Schedule- 8, S.N. 5 Management of the local services

Constitutional Provisions on Administrative Federalization Article 302 The Government of Nepal shall make necessary provisions for the delivery of services at the State and Local levels. The Government of Nepal may, in making provisions under clause (1), arrange for the delivery of services by making adjustment of the employees serving in the government services at the time of commencement of this Constitution with the Federal, State and Local levels in accordance with law.

Civil Servant Adjustment Act 2074 Legal Provision Civil Servant Adjustment Act 2074 For the adjustment of civil servants into the federation, province and local level. Provisions for: O & M survey Basis for adjustment Career development and job security Pul Darbandi Voluntary retirement schemes

Questions Not only does structure follow a function but also the way a function is executed The way a function is executed is determined only by the local and provincial government So, without proper consultation with these governments, the definitions of the structures can be irrelevant.

The Case of Nigeria Federalism was demanded in Nigeria on the basis of ethnicity & 3 states were formed in 1963. Gradually, other tribes demanded their own state. 3 states has now become 36 states the debate continues

System: A perspective System is just the means and not the ends No system is good or bad in itself, but rather the way it is utilized that determines the end result A system never fails, it’s only the people who fail to exercise it efficiently.

सरकार संचालन गर्न सक्ने क्षमता खै? साधन, श्रोत, हस्तान्तरण खै? संघ प्रदेश

हामीले काम सुरु गर्न पाएको खै? सेवा सुविधाको कानुन बनाइदिएको खै? प्रदेश स्थानीय

सरकार संचालन गर्न सक्ने क्षमता खै? साधन, श्रोत, हस्तान्तरण खै? संघ स्थानीय

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