"In A Diverse Country Like Nepal, The Federalism With Centralized Mind May Be Suitable"
Dr. Abhishek Singhvi
DR. ABHISHEK SINGHVI, national spokesman of ruling Congress Party of India and a member of Rajya Sabha, Upper House of Indian parliament, is an eminent jurist. He has appeared in several leading and landmark proceedings of the Supreme Court of India on constitutional law, civil law and commercial law. Dr. Singhvi was recently in Kathmandu presenting his paper Federalism at the three-day seminar on Issues for Nepal 's New Constitution organized by BP Koirala India-Nepal Foundation. Excerpts of his presentation and his subsequent interaction with media compiled by KESHAB POUDEL
On Federalism
Federalism is a word of multi meanings and diverse hues and colors. At its core lies a sense of devolution of power and the sharing of decision making between at least two, if not more, institutions of governance. There are various models of federalism Bottom up model of USA and Top model of India. Much of the definitional debate is itself superfluous. Operational models of federalism have not been created within defined semantic structures. There is no such federal system which suit for the particular country. Each operation federal structure is necessarily Sui generic, since it reflects a unique contextual amalgam of the origin, history, development, culture, ethnicity, genius and nationhood of a people. The cloth must reasonably be tailored for the customer and not the other way around.
On Federal Structures
It is again the circumstances and situation which will decide what kinds of system is best for the country. I am not saying that unitary model is bad and federal system is perfect one. For Nepal it is the people to decide what kinds of federal structures or autonomy Nepal needs. The numbers of federal states are numerically small. Out of 180 politically sovereign states of the world, only 24 are federations – which contain about 2 billion or 40 percent of the global population. The sizes of federal states are varied even small states like Belgium, Switzerland, Israel , Holland and Austria have federal structures.
Federalism for Nepal
India 's long experiences of federalism show that federalism is necessary for managing diversities. Of course, devolution of states power to local self governance like Panchayati Raj of India also manages dissent, discomfort and dissatisfaction.
Federation with Strong Center
Although there are various models of federalism, it must be tailored to be country specific. The Indian experience may be of some use to Nepal. I would like to suggest that, at least as an outsider, it appears that adapted Indian federalism, minus its several drawbacks and vitiating elements, may be a valuable starting point for the future models of Nepalese federalism. Indian federalism is biased in favor of the central government. Hence the dual sovereignty was favored and the residual powers vested in the Union and not (like USA) in the states. States boundaries can be reorganized, added, divided and altered without a state veto. In case of irreconcilable conflict (except within the state list), the supremacy of parliamentary law is accepted. The central parliament has plenary power to amend the constitution itself. It takes several years of constitutional evolution to bring India in present shape. The constitution of India, born in January 1950, was strikingly similar to the constitutional structure used by an imperial power ( UK) for direct, unitary, central control of a colonized nation. This is also exemplified by the over 80 percent congruency of the Indian Constitution with the (colonial) Government of India Act of 1935.
Path Ahead
Nepal has to go a long way before realizing the federal state. It is a concept, a spirit, which cannot be legalized by any single Constitutional or statuary provision. It must reach every niche, every nook and cranny of the new constitution and enrich, enliven and
enthuse the entire constitutional scheme.
On Writing a New Constitution
Making and drafting a new constitution is not difficult what is more challenging is making it functional. One of the important aspects of any constitution is whether it can deliver or not. As Alexander Pope's often repeated "For forms of government, let fools contest; whatever is best governed is best." In a sense, Pope's aphorism goes further, for it encapsulates an ever lasting lesson for model creators, constitution drafters and lectures viz. it is persons who make an institution and it is the nature, talent and ability of such persons coupled with the manner of operation of an institution especially in its infancy and nascent stages, which determines the shape and success of that institution. This is a solemn warning for theoreticians, idealists and model builders.
Making New Constitution in Nepal
I am not an expert of Nepalese experiences other than just a fancy flying. Every pre-existing model theoretical model, to even partially successful, has to be adapted, modified and made to fit the unique genius of the nation and the people it is intended to benefit. The cloth must be reasonably tailored for the customer and not the other way around. It is the ability of people of Nepal and institutional capability which make
constitution functional. Much of the definitional debate is itself superfluous.
Model for Nepal
I have already mentioned that there are various federal models in the world. One of the main objectives of federal structure is to manage diverse groups. Along with this, the role of the state is also to maintain law and order and public order. In the age of growing menace of global terrorism, the state needs to be stronger to deal with it. Nepalese are now debating over several models including ethnic models, geographical model, I don't believe that there is any readymade model for Nepal. In a diverse country like Nepal , the
federalism with centralized mind may be suitable.
On Independent Courts and Judiciary
The second diluting effect on the unitary structure has been the vigorous, sometimes excessive judicial activism but invariably coupled with fierce independence of the Indian judiciary. One can hardly find a judiciary as independent and dynamic as the Indian higher judiciary, especially the High Courts and apex Court. They have been the path inventors of path-breaking litigation (PIL). Contemporary debate in India centers around the over activist, the over intrusive and over aggressive paradigms of judicial review in diverse areas of activity
On Panchayati Raj and Local Self-Government
The function of Panchayati Raj in India can be a good example for the country like Nepal to learn. While federalism is a grand, macro constitutional concept, its operational reality is the creation, operationalization and imbibing of the culture of local self government, including municipal self administration. If the federal concept is the chariot, the Constitution is majestic horse and the organ of state is harmonious wheels. Then local self government and Panchayati Raj had been an integral part of rural India. Despite its many imperfections, the result of this constitutional impulse has been electrifying. India has over 2, 50,000 elected Panchayats involving 3.2 million elected representatives.
On Federation on Ethnicity
I don't think it is easy to divide the federation on the basis of ethnicity. For a country like Nepal with diverse ethnic groups, it will ultimately prove non-functional. The exclusion of ethnic groups joining the mainstream politics might encourage such groups to raise such issues. It is true in some or other way. Scheduled casts and scheduled tribes which had experienced participatory democracy only in name or paper or inside mega government reports have found real empowerment and real grass roots participation in decision making. Instead of going for such demands, the model like Panchayti Raj can be introduced so that all groups, tribes and ethnic groups might get opportunity to exercise their rights. A vexed question, raising much debate is the basis of creation of autonomous regions in Nepal under the new constitutional dispensation. Divisions have been proposed on diverse criteria including ethnicity, territorial contiguity, linguistic affinity, cultural affinity and so on. Each model necessarily has own advantages and drawbacks. No single test may yield a satisfactory sub-division in a multi-ethnic, multi-lingual and multicultural society like Nepal.
On Constitution Assembly
Nepal needs to hold the elections for the Constitution Assembly to frame the new constitution for Nepal. After meeting with political leaders particularly, Maoist leaders, I can say that all political forces are keen to hold the elections.
On Nepal-India relations
India wants to see democratic, independent, prosperous and stable Nepal . India can support Nepal to move forward to have democracy. Being a close neighbor, India is ready to provide all necessary support to bring peace and prosperity in Nepal .
On the Fate of Monarchy
So far as the question of fate of monarchy, it is for the people of Nepal to decide. The right to decide the fate of monarchy should be given to the elected constituent assembly which will be voted by sovereign people of Nepal. India will accept the verdict of Nepalese people.
