Implementation of the constitution is an intergenerational process
September 27, 2017 12:30 AM NPT
By: Waris Husain
Constitutional expert and adjunct professor at Howard University School of Law Waris Husain has closely studied Nepal’s constitutional process and interacted extensively with Nepali lawmakers, civil society leaders, judges, students of law and common people. His goal is to find out the challenges to the implementation of the new Nepali constitution. Thira L Bhusal caught up with Husain during his most recent Nepal visit.
Nepal marked its second Constitution Day last week. How do you evaluate the implementation status of Nepal’s constitution so far?
As the second Constitution Day is marked, the important thing to remember is that the constitution is a wonderful document but in practice, it will be difficult to implement, just as is the case with any other country. In my comparative study, I find integrity of leadership as the central factor.
Devolution of power isn’t worthwhile for people if it is only devolution for the sake of devolution and if it doesn’t improve service delivery and democratic order and doesn’t break the status quo, in terms of centralized power. It depends on how political parties work at the local level to make it more responsive over time. Devolution of power is a global phenomenon. The constitution has devolved it in detail and that detail is difficult to figure out because the constitution has over 300 provisions and many of the state “as under the law”, meaning you need to formulate and enforce laws for that.
You need to enforce over 170 laws to implement this constitution. Only some of them have been discussed and passed. Once the federal parliament is elected, it is important to involve local actors in the process of constitution implementation. Before these bills are drafted, there is a need of cooperative conversation between different levels of governments. But the tendency in former unitary states is that the center wants to control the devolution process and in many ways wants to maintain status quo or their control over funds. That’s not necessarily unnatural. That’s actually quite natural among politicians.
We can take Kenya as a good example in devolving powers. Even the World Bank, which is generally very critical of countries, has said Kenya has taken advanced devolutionary steps. In 2010, they had a new constitution. Seven years later, power has been devolved and money is being devolved as well and that makes devolution meaningful. And, remember this is very sacrificial to the parties and leaders at the central level because they have to give up the money which they have been getting for many years.
You have been studying Nepal’s constitution and its implementation from the start, with the focus on devolution of powers. What do you make of initial indications of devolution of powers under the new constitution?
The fear I found among mayors and deputy mayors at the local level is that they are getting money only in paper. They need funding in real terms. The white paper has to be rupee papers. There has to be actual bank notes. They fear that this may not happen. But such fears are common in other countries as well.
There are constitutional provisions allowing local units to collect various types of taxes and to mobilize local resources for development. Are these provisions sufficient to make local units sustainable?
I think there is always reluctance to add tax as no one likes more taxes, such as federal taxes, provincial and local taxes. But in other countries, we found that if you do it smartly it can make sense and local taxation can address some problems that the federal taxes can’t. If you study devolutionary process in many countries, we find 20 to 30 percent of the money comes from federal level. In the US, states get up to 40 percent from the center. So the single biggest source of money is funding from center and it has to continue. So in case of the center’s failure to devolve the money, local taxation does help. But states should introduce smart taxation system, reflecting the needs and wants of the local people. It shouldn’t overstep the boundary and make people feel compelled to pay too much tax. It should be fair. But at the same time, devolutionary process gives local levels the ability of identifying problems, needs as well as solutions because local units know the constituencies, they can talk to them and can work based on local needs, whereas federal government works based on central policies and ideas.
How do you find the right balance in the distribution of powers between the center, the province and the local units? How do you see the separation or distribution of powers in three tiers of governments in Nepal?
The constitution is logical. It makes sense to me. Powers related to roads, schools, teachers and so many other things are devolved to local levels. This is important. I would emphasize that the US constitution is 200 years old but our federal model is changing all the time. Sometimes there is more federal power while sometimes there is less. Actually, each generation creates its own version.
Do they update laws to accommodate the aspirations and needs of the new generations?
The Supreme Court updates the interpretation of the constitution and this is where independent judiciary is vital. Interpretation of constitution is important because the court is going to say “okay, this is what it says and this is what it means to us”. Often, we in South Asia argue that since we have long constitutions, why do we need to involve the judiciary? But there is no way we can avoid judiciary. The judiciary must be involved to interpret what the provisions really mean. So a constitution requires an evolution via the interpretation of Supreme Court.
In South Asia, including in Nepal, people want solutions. But the process by which the solution is attained is more important. The devolutionary process is going to be crucial because the governments at the center, province and the local levels will be adversaries and fight each other. So the role of judiciary is going to be important in terms of interpreting the constitution. So there has to be a dialogue system outside the constitution.
In Pakistan, it’s called the council of common interest. This constitutional body resolves disputes over power-sharing between federal and provincial governments. Representatives from all the central, provincial and local levels meet and talk about their issues. So dialogue among different levels of governments is vital as only litigation doesn’t give you solutions all the time. Your Supreme Court already has a backlog of 23,000 cases. So long as the dialogue is cooperative rather than adversarial, it gives positive results. In many countries, we find adversarial relation and turf wars and that doesn’t help. So the process of how you resolve disputes—whether it is done in a cooperative or adversarial way—is important. And there has to be an inter-provincial dialogue.
After a drawn-out on a separate constitutional court, Nepal’s political parties settled on a separate constitutional bench within the Supreme Court. How do you see this arrangement to settle constitutional and federal issues?
It remains to be seen how this constitution is going to be litigated. We are yet to see if the five-member bench is going to be overburdened and another alternative powerful body needs to be formed. In South Asia, generally, we find Supreme Court creates constitutional benches. If you look at Pakistan, India and Bangladesh, they don’t have separate courts. They have formed benches to look into certain issues. If you form constitutional court, it will come with a lot of baggage such as who formed this court. Also how do you make appointments becomes vital. On the other hand the constitutional bench might be overburdened. We also have to remember there might be overlap between constitutional court issues and Supreme Court issues, inviting conflict between the two courts.
Nepal has managed to successfully hold all three levels of local elections. As things stand now, upcoming elections for federal and provincial parliaments are also expected to go ahead without many hitches. How do you see these developments?
I see these as positive developments in Nepal. When I talked to newly-elected mayors and their teams, they said they were “100 percent with this constitution”. They like it and are hopeful about its successful implementation, given the integrity of the leadership. They want leaders to reflect their views while drafting bills and formulating policies. With local elections, a child has been born. Two other elections are going to give births to two other children. It is yet to be seen how these children interact with each other—if they become friends or if they get jealous.
Also, the United States takes holding of local elections as important steps because local elections are essential way to deciding so many things, such as who picks up your trash, what kind of schools and school buses you have. These aren’t decided by central government. Devolution of powers is like kachchi daal (uncooked lentil). In unitary system, the center has a single recipe for the entire country but the point of devolution is to give uncooked lentil so that they can prepare it as per local tastes. Some people like more garlic while other people like more onion. They can cook it based on their own needs and tastes.
How can it be done properly?
It can be done by giving more powers and credibility to the local units. They should be allowed to cook and prepare the recipe as per the need and tastes of their electorate. Now Nepal has uncooked daal and its up to the provinces to prepare 700 recipes as per tastes of locals. If you allow each unit to create their own tastes, that will be best. Let’s have local people find their own tastes and make daal themselves. The federal government can’t be everywhere. So instead of delivering daal, allow them to cook it themselves. So how much commission the federal government gives to the local units is important. Do they impose their own recipe on the local units and say the recipe must be followed or do they say we don’t know about your taste so make it yourself?
You have studied the constitution’s list of powers given to the federal, provincial and local governments and the separate list of concurrent powers. You have now interacted with constitutional experts as well as with elected local representatives. Do you find any constitutional provision that may invite friction between different tiers of governments?
In terms of the constitution in itself, there is no conflicting provision. Besides conflicts are inevitable and unavoidable parts of federalism. Finding solution is important. The way solution is found is important.
So conflict resolution is going to be challenging and the mechanism for that is going to be crucial.
Yes. The inter-provincial dialogue is important and the spirit for that is even more important. Because without that spirit only having the provision of dialogue won’t work. So the spirit of the cooperation is perhaps the most important. In no part of the world is the federal system free from all conflicts. It should be taken as a friendly race. I don’t quite see conflicting provisions in the constitution but it depends on the interpretation of the court.
When you talked to local representatives, what was your impression of the composition and representation of new local bodies?
My recent trip to Nepalgunj was an eye-opener experience. I saw Hindus, Sikhs and Muslims work together in an exemplary way. I asked them how this was possible. They said “Beta, it’s always been like this. We don’t want to change it.” In Nepalgunj, I found even Muslims want a Hindu state because they feel they have been protected by Hindus for so long. Therefore my Nepalgunj visit was an eye-opening experience because at a time when the world is going in opposite direction of more divisions and separations, here in the city, when I ask them how they cooperate, they said it’s a part of their culture. So Nepalgunj and Nepal as a country itself has a lot to teach the rest of the world. I think the United States, Pakistan, Bangladesh and India need to learn from these examples of harmony. Nepalgunj is a city that showed me that what I used to think was possible only in fairytale, is part of everyday life in Nepalgunj. This is something that the US, India and Pakistan need to learn from Nepal.
Nepali society is still divided on federalism. The debate over whether or not the country should have been federated is taking place even while the country is being federated. How do you see this?
Your constitution is only two years old. It’s too early to say. I see positive developments here. But I need to study next two parliament elections. We need to study how the constitution is implemented and how voters react. When I talked to scholars here, they questioned federalism. They have the right and they aren’t wrong because they know this country much better. There is always going to be questions over the values of federal system. I don’t think these people should be silent. Constitutional continuity is very important and we find it in India, but not in Pakistan and Nepal. The Indian federalism has changed but they have maintained the old document, allowing the right kind of growth. So my humble view is that we can keep the document same and work on it over time and incorporate new ideas. There is a benefit of that. Throwing it out and bringing new thing doesn’t help because you have already done it six times in the past. Again, one must remember that it’s an intergenerational process. So getting despondent and saying this is not working and getting new thing is a danger. Working within the system to make it work the right way is perhaps much better. You can see it is happening in India and it is lacking in Nepal and Pakistan. You may not get what you want today or in ten years. But in 15 or 20 years, you will find it working properly. So continued revision, interpretation and amendment are absolutely important.
In two years we have amended the constitution once. A long and lively debate is on over second amendment. What do you make of these debates and disputes?
Successful conduct of local elections is an important achievement. But we are yet to see how new structures such as high courts and provincial assemblies work because province is between local and federal governments. Their role is going to be crucial. I hope they act cooperatively. Hope the big brother, middle brother and little brother respect each other. Cooperation is necessary.
While discussing federal system, people often site two models, competitive and cooperative models. It seems you are for cooperative model.
There can be competition among brothers even if there is cooperation. Competition can bring best of people but again it’s up to you as to what kind of competition you want: whether it is fight to death or is it just a family race. Competition makes everyone better but again what kind of competition we adopt matters. The cooperative model helps us.
From this conversation I gather that the role of judiciary is going to be decisive, mainly because of the federal system we have adopted.
Perhaps no institution is more important in the interpretation process because implementation comes after interpretation. So not only the Supreme Court and other courts but the lawyers too will have important roles in interpreting constitution and in judgment of the implementation process.