Federalism -- Conceptual Issues

Federalism is perhaps the most debated topic among Nepalese these days, and it surely deserves this kind of attention. The concept itself was first advocated by Maoists and later endorsed by other political parties.

The basic principle of federalism is to devolve the power from center to local. This is the central point of federal structure discourse. The concept is critically important for the development for several reasons. At a theoretical level also, federalism can not be questioned for a country like Nepal. Where the problem lies however is on designing the structure or finding an appropriate model of federalism suitable for a challenging socio-physical economies. To overcome such problems, we first need to understand what are important concepts of federalism itself. Next, understanding also needs to be developed on how such concepts can be employed in the context of Nepal. Unless we are clear about these issues, discussion on federalism can not be of much fruitful.

Here is an article written by Dr. Follesdal on Nepalese context. This article is short and give some brief conceptual explanation on federalism.

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On Federalism, Ethnicity and Human Rights in Nepal

The Constituent Assemby must braid a constitution that will protect and promote the best interests of the braid that is the Nepali people and peoples; a constitution that helps create a Nepal free from domination from all centres of power, central as well as regional.

Andreas FollesdalBy Andreas Follesdal

One of the many intriguing and important tasks of the Nepal's Constituent Assemby concerns federalism. Not only must the CA write a constitution that secures equal dignity and respect for all Nepali citizens, regardless of ethnicity and caste, the voters also clearly supported parties that seek to create a federal Nepal. So the question is not whether Nepal should be a federal state, but rather what sort of federal state Nepal should be.

The task of the CA is now how to translate this idea of federalism into a constitution – the ‘operating system’ – of a democratic, human rights-respecting Nepal republic. For instance: Should the federal borders of Nepal reflect ethnicity and geography, as the Maoists urged? Or should the CA follow the CPN (UML) and Nepali Congress manifestos, and create provinces based on geography, natural resources, language, or culture? Indeed: how many provinces should there be? 11, as the Maoists called for? Should there be one united province for the Tarai, as the Madhesi Janadhikar Forum insist?

How can the CA’s choice of federal institutional design elements be faithful to the best interests of the Nepali people? This is an important challenge, since there are many different ways that the institutions of a state can be democratic, ensure human rights – and embody federal features. There are clearly no ‘best’ institutional blueprint for all states: that depends on the national histories and memories, geography, and cultures. And any assessment of appropriateness are most legitimately made by the informed and reflective citizenry themselves.

The following reflections by an ‘outsider’ is therefore limited to a reminder of four varieties of federal elements, combined with arguments in favor and against each drawn from an interpretation of other states’ experiences. Two of the four are territorial: Constitutional and Political. Two are non-territorial: Minority Rights, and Minority Representation. Some arguments and lessons may be helpful also for Nepal’s challenges.

Two features of the people – or rather peoples - of Nepal are especially salient for this discussion. The poet Madhav Prasad Ghimire said of the national poet Bhanubhakta Acharya (1814-1868) that he “braided the people of Nepal into a national string.” The metaphor of a braid is particularly helpful and appropriate in this context: Nepal firstly consists of very many different groups. Numbers vary, but Nepal is said to have well over 90 caste and ethnic nationalities, 70-90 languages, 9 religious groups, often overlapping. And secondly, members of these groups often live side by side: few if any ethnic groups are the sole inhabitants of any geographical area, and many castes and ethnic groups live fully dispersed among each other.

The Puzzle: If Federalism is the solution, what is the problem?

One helpful way to assess federal institutional alternatives is to explore why so many Nepali citizens and their political parties urged federalism. If they see this as the solution, what do they regard as the problem?

Many observers seem to agree that one reason for the calls for federalism was a wide spread perception that the central authorities had long dominated many of the other ethnic groups and castes of Nepal. Calls for federalism thus sought to convey that the power of the Centre must be constrained or removed, to end domination and to secure a more fair distribution of opportunities and living conditions. Human rights constraints and federal features have historically often been used for this very objective: to prevent domination by the centres.

European history of Federalism

A brief historical reminder helps identify four different federal features that the CA might draw from.

Johannes Althusius (1557-1630) is regarded as the “father of federalism” in Europe. Living in the German city Emden, he sought protection for his own Calvinist minority religion within Emden, and protection for the city itself. His group faced two sources of domination: from the ‘Local Center’ - the Lutheran provincial Lord -, and from the ‘Central Centre’: the Catholic Emperor. He argued that these central authorities should grant religious freedom to his and other groups, among peoples living side by side in the realm, to avoid violent upheavals. Two lessons are particulary relevant:

1) Federal thought has long been concerned to prevent domination from several power sources.

2) The history of federalism recognized several different means to combat domination, - not only territorial subdivisions. For instance local autonomy - immunity from interference by the center - with regard to religion. Another example is ‘consociational’ arrangements. There, different segments of a society, split along religious or ethnic lines, nevertheless cooperate by each having a share in the exercise of central powers.

Four Federal Features

Let us now consider four different institutional arrangements within this federal tradition. All of them can sometimes serve to reduce conflict and domination. This is partly because they reduce the need for complete agreement among individuals: people who disagree about some issues can instead agree to decide separately on these contested policies. And these arrangements can protect from interference and thus remove domination, at least in some circumstances.

Note also that all of them require attention to two central contested issues:

1) how to determine the composition of the sub-units, be they geographical or demograpic. In the case of territorial regions: where should the borders be drawn? In the case of ethnic or other group based division: who decides on the appropriate group divisions, and who decides contested cases of membership?

2) Which powers should these sub-units have: should they for instance have the final say over school curriculum, taxation, official language or holidays, land reform, agricultural policies, cultural subsidies, water management, and/or land reform?

1 Territorial Constitutional Federalism

In this version, the constitution divides the country into territorial regions, and grants some power to them, and some power to the centre. This is typical of federal states, such as the US, India, Germany.

The benefit of such entrenchment of a division of power is that it can reduce or remove fears that the centre will dominate the regions. However, note that other forms of domination over ethnic groups may remain, especially where the territorial borders fail to match those of ethnic groups. There are at least two cases relevant for Nepal: since there will be minorities within any area of Nepal, these will continue to risk domination from the ‘Local Centre’ where decisions will reflect the interests of the local majority. Thus Local Development Minister Dev Gurung has rejected calls for a separate province for the Terai, since that would infringe on rights of indigenous groups, and give some groups monopoly of power.

Secondly, this kind of arrangement does little to protect widely dispersed, greatly disadvantaged groups such as the Dalits. They will simply be subjected to many sources of domination, by each regional authority, rather than only by the central authorities in Kathmandu. Human rights protections will still constrain both local and central authorities, but this federal feature will not help the Dalits.

In short: Territorial Constitutional Federalism does not guarantee the end of domination of ethnic minorities, but may simply create more sites of ‘local’ domination in the various sub-units, especially when different ethnic groups and castes live intermingled.

Such constitutional federalism also has several disadvantages. The entrenched division of powers is by design difficult to change, but should not be completely out of reach, otherwise future challenges may be impossible to handle. Some also fear that this sort of arrangement may fuel calls for secession, though that risk may be alleviated when the regional authorities also enjoy a share of the central powers, when human rights generally are protected, etc. It may also hinder a shared ‘national identity.’ Finally, note that such arrangements may hinder equalization of living conditions across regions, since richer regions will question why they should take responsibility for the poorer areas.

2 Territorial Political Federalism: Decentralisation

An alternative territorial arrangement is one where the central parliament grants local authorities autonomy over specific issues. Such arrangements allows the local communities more control over matters that are important to them, and avoids the rigidity problems of constitutional entrenchments.

However, such arrangements may not provide quite as strong safeguards against future domination, since the central authorities may at any time withdraw the powers they have granted. And with the added possibilities of dynamic change of borders and allocation of powers comes the risk of political manipulation for inappropriate objectives. Finally, the ethnic and other minorities that live within each region face similar risks of domination under this system as they face in a unified state with centralized power. The only difference is that domination is now perpetrated by a regional majority.

We now consider two ‘non-territorial’ federal features that may reduce domination of ethnic groups. They seek to give various ethnic groups more protection, or more power – without tying these privileges to a specific territory.

3 Nonterritorial Minority Rights

A third institutional arrangement is what Althusius urged for his own religious group: collective rights and other human rights to groups who otherwise face risks of domination, be it freedom from interference or more substantive autonomy. These rights can typically concern matters of religion, language, culture, education or even some forms of taxation. We find expression of some such rights in ILO Convention number 169 on Indigenous and Tribal Peoples. Other such rights may include measures of ‘reverse discrimination’ etc, to alleviate the impact of past and present injustice and oppression.

A benefit of such arrangements is that they can greatly help minorities who live geographically dispersed or intermingled with other groups.

Yet there are also some drawbacks. For instance, the appropriate set of rights may have to be carefully tailored to the specific needs and histories of each group, and a too extensive system of such special rights may hinder a national sense of unity and solidarity. Many also point to the risks such special rights can pose to vulnerable persons within the minority. For instance, special care must be taken to protect women from harmful elements of some traditional cultures and practices. Many human rights can provide some safeguard against these sources of domination.

Other problems arise for efforts to alleviate past injustice: many supportive measures, extra resources etc will tend to benefit the most privileged members of disadvantaged groups, rather than the worst off members. It may also be important to have clear targets for when to end such measures. Insofar as membership criteria and benefits is a matter of political debate there is obviously the risk of manipulation: scarce resources may not reach those ethnic groups and castes, and especially those members thereof, whose claims are most urgent.

4 Nonterritorial Minority Representation

The fourth kind of arrangement grants groups representation in the bodies that make common decisions. One case is the consociational system mentioned above, where each social group is represented, and may even enjoy veto over common decisions.

Mechanisms may include quotas or designated seats in legislatures for specified minorities. These arrangements may be especially important in ‘first-past-the-post’ systems, but also systems with Proportional Representation (PR) create severe risks that no one represents the urgent interests of small minorities.

Other measures include the deliberate over-representation of certain minorities, to ensure that they not only have voice, but also some real clout when decisions come to a vote. Other arrangements may focus on the composition of political party slates, for instance – as has been the case in Nepal - to secure a sufficient number of women within each party group in parliament.

Among the benefits of such arrangements, when properly crafted, is that they give voice and political influence to previously dominated groups, to ensure on-going recognition and concern for their sitution.

Some disadvantages also merit mention. One important concern is how to determine which of many groups need such representation in common bodies, and how to fine-tune the extent of over-representation, if any. Another challenge is to ensure that these measures do not entrench existing conflicts, or prevent solutions to new injustices. Thus there must be ways to revise lists of ‘deserving’ groups over time, as new injustices arise or are discovered. But this of course adds to the risk of manipulation. And arrangements must be prevented that merely buttress groups that already are powerful. A final concern is that some of those elected as representatives of these groups may not act in the groups’ best interests, partly because they themselves may well be among the more privileged segment of the minority.
Conclusion

These reflections have sought to illuminate some aspects of the opportunities open to the Constituent Assembly, when it seeks to include federal features in the new, human rights-respecting constitution.

Human rights protections combined with federal elements of Nepal’s new constitution must serve to prevent future domination, especially by the centres, over the many ethnic groups and castes. I have pointed to benefits and risks of four different federal elements culled from the European federal tradition: Constitutional and Political Territorial arrangements, Minority Rights, and systems of Minority Representation.

To select, fine tune and combine some of these federal features into a sustainable and just constitution that is recognizably federal is one of the important obligations of the Constitutional Assembly. It must braid a constitution that will protect and promote the best interests of the braid that is the Nepali people and peoples; a constitution that helps create a Nepal free from domination from all centres of power, central as well as regional. [Source: http://www.nepalnews.com/archive/2008/others/guestcolumn/nov/guest_columns_06.php]

(The writer is Director of Research and Professor of Political Philosophy, Norwegian Centre for Human Rights, Faculty of Law, University of and can be reached at andreas.follesdal@nchr.uio.no)