How do you think should provinces be delineated in Nepal?
It depends on political situation of Nepal. Delineation and delimitations are often carried out on the basis of available resources. Ethnicity is another criterion. You create provinces out of areas with majority of ethnic populations. You also create economically autonomous provinces, taking into consideration resources, population and economic activities of particular province. The first approach may contrast with the second and vice-versa. Thus it is up to Constituent Assembly of Nepal to decide which criterion to follow. If the need is to address minorities, it is a good idea to create province comprising biggest number of minority population. If you want to create really autonomous states, you should consider economic strength.
How did Germany settle this issue?
We have very good experience on federalism. There is discussion about reforms on distribution of resources and powers and competencies. Discussions are on regarding unification of certain provinces in order to strengthen them economically. There is also discussion on eternity clause of the constitution. You can amend the constitution but you cannot change it to make the country unitary state. Germany considered several aspects while federating. One was history. Bavaria and Hamburg states are based on history. Then occupation. Parts of Germany were occupied by Allied forces that comprised the US, the UK and France. This had its bearing in state creation as well.
Debate in Nepal is whether provinces should be created based on ethnicity or economic viability. What do you recommend?
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From cultural and linguistic viewpoint, it is always good idea to grant provinces to cultural and linguistic minorities, where they can exercise self government. While on the other hand, as long as they are not economically strong and dependant on the center or other states, autonomy and self-government means nothing. Thus it is better to ensure economic self-dependency of each state. In Germany, richer states still have to support poorer states. This has created dissatisfaction among richer states.
Do you suggest that both ethnicity and economic viability should be considered?
Exactly. Like I said, if you want to ensure ethnic and cultural identity, it is good to delineate provinces based on ethnic identity. But if you want to ensure good governance at the grassroots, you must consider economic viability aspect.
Some say federalism is unsuitable for Nepal, given its size and geostrategic location between India and China.
There is federalism in the countries situated between two giant neighbors in the world. Take Switzerland. This is a tiny country much smaller than Nepal in terms of population and territory. It lies between France and Germany just like Nepal is between India and China. But Switzerland is traditionally a federal country. Yes, disputes may arise among states over resource distribution. But you may have a provision of central ownership over key resources. This can help resolve such disputes.
There is a concern in Nepal that granting right to self-determination to a province may lead to secession.
This is the most frequently raised concern. As a matter of fact, there is experience of secession as well. Iraq exercises some sort of federalism. There is a strong tendency towards secession especially in the part of Kurdistan. In Libya, people try to avoid discussions on federalism fearing that it could eventually lead the country toward disintegration.
However, state has no legal right to take secession course. Constitutionally, secession is not allowed, as long as constitution itself has such provision. International law gives federal state right to internal self-determination. People cite Crimea as a case of secession. But let us not forget, Crimea had no right to secede. It was forced by Russia.
Nepal is half a Germany in size. How many states do you think will be suitable for Nepal?
There is no one-size-fits-all formula in state creation. Federation of Tanzania has only two states. Tiny country like Switzerland has around 20 cantons. The United States has more than 50 states. I would say five states would be ideal for Nepal. Two, three or four does not make sense. Again, too many states may create too many problems.
How can federal government and state governments maintain smooth relation?
There are no international standards on such relationship. Both governments are independent. As a rule, federal government cannot interfere into the affairs of state governments. In cases where state governments fail to tackle problems, federal government may step in. In Russia, President has the right to remove the governor of any province. They have strong central control over provinces. In Germany, if municipal governments make mistakes provincial government may step in. Federal and provincial governments should respect each other.
How can we ensure equal distribution of resources among all states?
There are several ways of doing this. The natural resources can be made property of federal government. Then it is up to the federation to distribute it. This can help address the problem of unequal distribution of natural resources. Second way to ensure equal distribution of resources is to establish an obligation for provincial government to distribute their resources as compensation to the poorer provinces. Taxes are important source of revenue. The revenue generated from taxes can be distributed equally to all provinces. Constitution itself should clearly define these provisions. Perhaps it can have the provision of constitutional court.
Supreme Court in Nepal is opposed to the idea of Constitutional Court. Parties do not seem keen on it either.
I do not think any Supreme Court will be happy to have a separate Constitutional Court because there is a sort of competition between the two and the former loses its powers. Constitutional Court is always the higher court than the Supreme Court. Therefore, Supreme Courts are not happy with such provision. Take the US. It has Constitutional Court. While Supreme Court deals with ordinary laws, Constitutional Court deals with constitutional issues. Most countries have constitutional courts in Europe.
The rationale behind Constitutional Court is to deal independently on cases related to constitutional disputes, disputes between/among federal government and state governments, and to protect the fundamental rights of people. But Constitutional Court should apply exclusively constitutional criterion for reviewing legislations and other decisions. Constitutional issues are sensitive. They need to be dealt separately by an independent Constitutional Court. This is why it is a must.
