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Federalism redistributes powers: Dr Matthias Hartwig

Organised by FES Nepal Youth Network

4 August 2015, FES Office

Nepal has finally drawn up a six-state model under the new federal set-up. Sorting out the complexities of federal system is a big challenge for the country that has been under the centralized and unitary form of governance for many centuries. Given its prolonged transition and tumbling economy, the deal on the number and demarcation of provinces can be seen as the feat of the key political actors. They are now pulling out all the stops to sell the new map of state restructuring to the people and other parties amidst the protests from some disgruntled and strident ethnic and religious groups. The latter have threatened to scuttle the entire constitution writing project, arguing that the draft statute has failed to address their demands and concerns. The Constituent Assembly has started deliberations on the revised draft of constitution. Carving a win-win model of federalism vis-à-vis the new national charter is the key to stability, social inclusion, balanced economic development and lasting peace.

As the raging debate on federalism was reaching a new decibel, Dr Matthias Hartwig, a constitution expert from Germany, landed in Kathmandu in the early week of August. Friedrick Ebert Stiftung, Nepal Office invited Dr Hartwig to its office to share German's experience of federalism with selected audiences at its office in Lalitpur on August 4. He made enlightening remarks on the topic and furnished replies to a few queries from listeners. The following is the synopsis of his comments:

Firstly, federalism could bring deep changes to political culture and distribution of powers. Since the Middle Age, Germany has federal legacy. This is a reason why it has 25 to 30 states out of total 193. There are minorities. Each has its own experiences and type. However, Nepal should not imitate ours for several reasons. The USA adopted the federal system in the 18th century to reduce the power of centre. The legislative power of federal states in the US is enormous compared to that of Germany. Switzerland is a confederation of cantons. During the imperial period, Germany also consisted of several states. It adopted the federal republic for historical reasons but Nepal does not have this historical rational for this.

Secondly, there exist cultural factors for the nation to adopt federal system. There are cultural and linguistic differences. In Spain, Catalonia is different from Basque. The people take pride in language and cultural identity. Nepal has over 125 languages. Germany has only three languages. Many minorities are interested in preserving their culture. Autonomy and self-determination in language is important.

Thirdly, centre is in the faraway. Nepal is a big country in terms of population and geography. Therefore, ensuring smooth administration and service delivery is very important.

Lastly, it is democracy without which federalism does not sail through. People can vote to ensure that there is check and balance at horizontal and vertical level. The UK has been a centralized state throughout its history. It has democracy. Democracy without federalism can exists. In Soviet Union, the communist party played its crucial role. In Germany, Nazi eliminated federalism. Coup d'état can be easily be staged in a centralized state. But, it is quite difficult in a federation with many provincial governments. The people at the grassroots know better for governance. The problem in Germany is to maintain balance between the autonomous states for survival and competition.

In Nepal's case, economy and resources must be taken into account. The strong should pay the weak. In Germany, Bremen has half a million population while North Rhine-Westphalia contains 16 times bigger population than the former. The East Germany was a poor and Bavaria has to finance Berlin. If the provinces lack resources, it becomes difficult to sustain democracy. The rich provinces have to fund for the poor ones. Rich countries are reluctant to support. The EU' crisis is a crisis of inequality. Germany has to finance Greece.

The key contents of federalism are self-determination and distribution of powers. In Germany, about 90 per cent judges are from the Landers. They should plumb the law of federation. In Spain, it is centralized and the US has a different system. The countryside judges can be elected. Administration is in the hand of regions of provinces and municipalities. They are responsible for taxes. About 300,000 police personnel are deployed for federal borders, airport and road control. The police are in the command of Landers. Public TVs, schools and universities also operate under the Landers. Currency, foreign service and military services are in the hand of centre. Legislation is the civil law. We have decentralized judiciary.

Money makes the world go around. In Mexico, money comes from the centre. Law cannot be implemented without it. In Nepal, there is a danger. High degree of autonomy requires better funding. Of total budget, 40 per cent is generated from revenues and 60 per cent from tax. If it is divided 50/50 per cent between the centre and provinces, it can work.

From the floor

Pranab Kharel - The idea of federalism does not work effectively in the South Asia with its history of centralized rule. The region has nation-state not state-nation. Nepal too has a history of unitary state and how can effectively implement federalism?

Reply from Dr Hartwig - The concept of nation-state evolved in the 19th century. In France, there are Bask and German people. German people also live in Poland. One-nation state did not work. Tradition and culture can work. Control of power and administration are other areas. In Russia, it did not work and the president had to fire federal chief. No political clan should run the affairs of the state. Autonomy is necessary for cooperation. Tradition will require intellectual and financial investment. Maybe that we can adopt is after 20 years.

Santosh Pariyar - How can mutual interdependence and equality be maintained among the provinces?

Reply- Interdependence needs to be institutionalized. The Landers participate in the president election. There is no direct obligation. Ministers, police and judges prepare common criteria. But, there is freedom of movement. The schooling system is different. Incomes are divided 50/50 per cent. But the law of population is applied in the valued added tax. If there is inequality, the rich states have to pay. But this will not be sufficient.\

Kosh Raj Koirala - My query is about constitutional court. Here the Supreme Court wants to set up a separate bench within it. The major parties have agreed to form and keep it for 10 years. What is you view on the Constitutional Court as Nepal is entering into the federal set-up?

Dr Hartwig replies: Many countries have democracy without constitutional court. The UK is an example. Judiciary must fulfill it. There must be an independent organ to look after the federal disputes. The constitutional chamber can do this. In Germany, we have a good experience. The constitutional court is important to fulfill fundamental rights. You should have long-term perspective, not just of 10 years. Resources are important. In Germany, resources lie in regions. In Russia, it is the property of the country. It is centralized. The profit goes to the centre and then comes back.

Dev Raj Dahal, head of FES, Nepal Office
Political culture is prerequisite to the sustenance of federal system and democracy. Political enlightenment and democratic conduct are required to overcome the political crisis facing the nation.

Rajju Malla-Dhakal - There has been raging debate on model of federalism. Should it be based on ethnic elements or economic viability? The people want to fulfill a lot of aspirations through the new statute. Whether we will be able to come through the transition successfully is a moot question. We are in difficult geopolitical situation too.

Surendra Chaudhary - We are facing similar challenges. We need to understand history, geopolitics and the availability of resources. Jürgen Habermas says democracy is derived not from constitution but from the constitutional behaviours.

Prepared by Ritu Raj Subedi

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