This article was originally published in NALC Law Journal, Vol.1, No. 2., 2020.
This work can be cited as: Manaj Jyakhwo, Interrelationship among Levels of Government in Nepal, NALC LAW JOURNAL, (Vol.1, No.2), National Law College, Sanepa, at 173-180, (2020).
Interrelationship among Levels
of Government in Nepal
Manaj Jyakhwo*
Abstract
Federalism is the form of government where
two or more than two levels of government exist in a state. When multiple
levels of government exist the trouble arises in matters of power sharing and
jurisdictional matters of government. In some federal states Centre is strong,
while in some other federal states Provinces are strong, in which the Centre
could enjoy only those powers conferred by the Provinces. Therefore, power
exercise and jurisdictional matters are the pivotal concern in formation and
governance of federal government. Depending upon the power sharing and exercise
between/among different levels of government, the federalism may be either
competitive or cooperative. Thus, in light of this concept, this article
intends to explore upon the provisions of Constitution of Nepal 2072 in order
to shed light upon the interrelationship among levels of government.
Federalism constitutes a complex
governmental mechanism for governance of a country. It has been evolved to bind
into one political union several autonomous, distinct, separate and disparate
political entities or administrative units. It seeks to draw a balance between
the forces working in favor of concentration of power in the Centre and those
urging a dispersal of it in a number of units. It thus seeks to reconcile unity
with multiplicity, centralization with decentralization and nationalism with
localism.[1] The originality of the
federal system lies in that power is, at one and the same time, concentrated as
well as divided. There is centralization of administration and legislation in
respects along with decentralization in other respects.[2] A federal constitution of
Nepal establishes a triple polity as it comprises three levels of government.
At federal level, there exists a central government having jurisdiction over
the whole country and reaching down to the person and property of every
individual therein. At the provincial level, there exists the state
governments, each of which exercises jurisdiction in one of the regions or
administrative units into which the country is divided under the constitution.
At the local level, there exists local governments, exercising jurisdiction
over the locality.
The
three levels of government divide and share the totality of governmental
functions and powers between themselves. A federal constitution thus envisages
a demarcation or division of governmental functions and powers between the Centre,
State and Local level by the sanctions of the constitution itself which is
usually a written document and also a rigid one, i.e., which is not capable of
amendment easily. From this follows two necessary consequences – (1) that any
invasion by one level of government on the field assigned to the other level of
government is a breach of the constitution; and (2) that such a breach of the
constitution is a justiciable issue to be determined by the judiciary. Each
level of government thus functions within the field assigned to it by the
constitution. The several governments, however, do not function in watertight
compartments. They come in contact with each other at many points. Their areas
of operation and functioning cross and intersect in several respects thus
creating a variety of governmental relations between the Centre, State and Local
governments inter se the pattern of intergovernmental relations in a federal
country is not static; it is dynamic and is constantly finding a new balance in
response to the centripetal and centrifugal forces operating in the country.
The
constitution of Nepal establishes a triple polity in the country, consisting of
the Federal Government, State Government and Local Government.[3] The fabric of the Nepalese
federal system stands on three pillars, viz, strong Centre, flexible federalism
and cooperative federalism.[4]
Legislative Relations
There is in a federation a division
of functions among the federal, the state/provincial and the local government.
This division is twofold - from the
point of view of territory, and that of the subject matter.
Territorial Jurisdiction
to legislate (functional division of power)[5]
From the territorial point of view,
the legislative powers of the Federal Parliament shall be as enumerated in
Schedule-5, Schedule-7 and Schedule-9.[6] It has the jurisdiction to
legislate laws for the whole country. For the subject matters in which the
Federal and Province or Federal, Province and Local have concurrent
jurisdiction to make laws, the Federal Legislature makes parent Act.
The legislative powers of the Provincial
Legislature shall be as enumerated in Schedule-6, Schedule-7 and Schedule-9.[7] The Provincial legislature
may make laws only for the Province concerned. The Provincial law is not immune
from challenge on the ground of extraterritorial operation. A Provincial law
having operation outside the Province is not valid. To decide whether or not a
Province law has an extraterritorial operation, the principle of territorial
nexus is invoked. It signifies that the object to which the law applies
need not be physically located within the territorial boundaries of the
Province, but what is necessary is that it should have a sufficient territorial
connection with the Province.
The legislative power of the local
level shall, subject to this Constitution, be vested in the Village Assembly
and Municipal Assembly.[8] The legislative power of the
Village Assembly and Municipal Assembly shall be as enumerated in Schedules-8
and -9.[9]
Distribution of
Legislative Powers
The crux, the pivotal point, of a
federal constitution is the division of powers and functions among the
Federation, Province and Local, and the whole system of federal system
continues to revolve around this central point. A study of the federations now
extant in the world shows that there is no fixed formula, or a set pattern, for
division of powers. Usually certain powers are allotted exclusively to the Centre;
certain powers are allotted exclusively to the units; and certain powers to the
local units. There may be a common or concurrent area for both Centre and unit
and/or local government to operate simultaneously. A basic test applied to
decide what subjects should be allotted to the one or the other level of
government is that functions of national importance should go to the Centre,
and those of local importance should go to the units, province or local,
depending upon issues. This test is very general, a sort of ad hoc formula, and
does not lead to any uniform pattern of allocation of powers and functions
among the tiers of government in all countries. The reason for this lack of
uniformity is that what is of general or national importance, and what is of
local importance, cannot be decided on any a priori basis. Certain subjects
like defense, foreign affairs and currency, are regarded as being of national
importance everywhere and are thus given to the Centre. But, beyond this, what
other subjects should be allotted to the Centre depends on the exigencies of
the situation existing in the country, the attitude of the people and the
philosophy prevailing at the time of constitution–making, and the future role
which the Centre has envisaged to play. The circumstances and contingencies
governing the scheme of division of powers in a federation vary from place to
place and time to time. The pattern of division of power is largely conditioned
by the interactions of two contending and conflicting forces – forces favoring
a federal government and promoting a strong Centre, and the forces supporting
local or particularistic tendencies born of such factors as ethic, religious,
cultural, linguistic and economic. The scheme which finally emerges in a
federation is resultant of a balance of the conflicting forces at the time of
constitution-making.
The Five List
The Constitution of Nepal, 2072,
since it embraces federalism, has given an elaborate list of
federal-province-local distribution of powers and functions. The members of
Constituent Assembly visited and studied federal system of other federal
countries and took note of the functioning of modern government. And, keeping
all these factors in mind, they apportioned functions among the Federal,
Province and Local government in a way as to suit the peculiar circumstances
and exigencies of the country.
The Constitution of Nepal, 2072
created five functional areas: an exclusive area for the Federal (Schedule 5);
an exclusive area for the Province (Schedule 6); a common or concurrent area in
which Federal and Province government can function simultaneously (Schedule 7);
an exclusive area for the Local (Schedule 8); and a common or concurrent area
in which Federal, Province and Local governments can function simultaneously
(Schedule 9), subject to the overall supremacy of the Federal government. The
Federal Legislature can make laws with respect to the matters listed in the
Federal list (Schedule 5). The entries in the list are such as need a uniform
law for the whole country. The Province and Local are not entitled to make any
law in this area. Provincial Legislature can make laws with respect to the
matters listed in the Provincial list (Schedule 6). These are the matters which
admit of local variations and, from an administrative point of view, are best
handled at the Provincial level and, therefore, Federal government is debarred
from legislating with respect to them. In the similar manner, Local Legislature
can make laws with respect to the matters listed in Local list (Schedule
8). These matters observe a lot of local
variations. One of the unique feature of the Constitution is the existence of
large concurrent or common field for the Federal and Province (Schedule 7); and
for the Federal, Provincial and Local (Schedule 9). The general idea underlying
the concurrent list is that there may be subjects on which Federal Legislature
may not feel it necessary or expedient to initiate legislation in the first
instance because these matters may not have assumed any national importance. A
Province or Local government may therefore take necessary action with respect
to these matters. But if at any time any of these matters assumes a national
importance, and requires to be dealt with on an uniform all Nepal basis, then
the Federal Legislature can step in and enact necessary legislation. Certain
matters could not be allocated exclusively either to the Federal or the
Provinces, and though the Province might legislate with respect to them, it was
also necessary that the Federal should also have a legislative jurisdiction
therein in order to enable it, if necessary, to secure uniformity in the law
throughout the country, to guide and encourage Province effort, and to provide
remedies for mischief arising in the Provincial sphere but whose impact may be
felt beyond the boundaries of a single Province.
Residual Powers
The five-lists are drawn very
elaborately and presumably all subject matters identifiable at the time of the
constitution-making, and regarding which a government could conceivably be
called upon to make laws in modern times, have been assigned to one of the lists.
But the present is an era of fast technological advancement, and no one can
visualize future developments and exigencies of government. Something
unforeseen may happen and some new matter may arise calling for governmental
action. A question may then arise as to which government, Federal or State/Provincial
or Local, is entitled to legislate with respect to that matter. To meet this
difficulty, the Constitution provides that the residue will belong exclusively
to the Federal government. This is provided for in Article 58[10].
Interrelationship
Federation, State/Province and Local Level
The Constitution of Nepal, 2072 in
its Part 20 explicitly enumerated the provision where the Federation can
exercise legislative control over State/Province and Local Level. Provided the
situation demanded, the Federation may legislate laws applicable to whole or
any part of territory of Nepal.[11] In matters of Concurrent
List, the Federation may, owing to the national importance, intervene at any
time to the legislative powers of Province and Local Level. If two or more
States make a request to the Government of Nepal to make laws on any matter
enumerated in Schedule-6, the Federal Parliament may make necessary laws. Such
laws shall be applicable only to the concerned.[12]
The framers of the Constitution have
adopted co-operative federalism. It is the responsibility of the Government of
Nepal to maintain coordination between the Federation, State and Local level.[13] The relations between the
Federation, States, and Local level shall be based on the principles of
cooperation, co-existence and coordination.[14] One State shall render
assistance in the execution of legal provisions or judicial and administrative
decisions or orders of another State.[15] A State may exchange
information and consult with another State on matters of common concern and
interest, coordinate each other on their activities and legislations and extend
mutual assistance.[16] The Government of Nepal may,
pursuant to this Constitution and the Federal Law, give necessary directions to
any State Council of Ministers on matters of national importance and on matters
to be coordinated between the States, and it shall be the duty of the concerned
State Council of Ministers to abide by such directions.[17] The Federation has control
over the Province in matters of sovereignty, territorial integrity, nationality
or independence of Nepal. The President, if deems necessary, can warn, suspend
or dissolve the Provincial government at any time for a period not exceeding
six months[18]
and, can directly rule over such Province until another Provincial government
is formed through election[19]. There is a provision of
Interstate-Council[20] to resolve disputes arising
between or among Provinces. The Council is chaired by Prime Minister and other
members include Minister for Home Affairs of the Government of Nepal, Minister
for Finance of the Government of Nepal and Chief Ministers of the concerned
States. Such provisions explicitly imply Federal control over the Provinces.
Similarly, the Federation can also
control over the Local Level. According to Article 232(8), The Government of
Nepal may, directly or through the State Government, render necessary
assistance to, and give necessary directives to, any Village Executive or
Municipal Executive, pursuant to this Constitution and the Federal law. It
shall be the duty of the Village Executive or Municipal Executive to abide by
such directives.[21]
The interrelationship between the
Federation and the State is best explained in the case of McCulloch v. Maryland[22].
This is the very first case regarding the interrelation between the Federation/Centre
and the State in federal system, in which the US Supreme Court established the
predominance of Federation/Centre over State. In this case the Congress established a
nationally chartered bank in a State by exercising its constitutional power but
the State passed a law to tax that bank. Thus, CJ John Marshall opined, “the
states have no power, by taxation or otherwise, to retard, burden, or in any
manner control the operations of the constitutional laws enacted by Congress.”
Emergency Power
The Government of Nepal is
responsible to the protection of whole of the state. Therefore, the emergency
power is reserved solely under the domain of the Government of Nepal. Provinces
cannot exercise such power in its own discretion. If a grave emergency arises
in regard to the sovereignty, territorial integrity of Nepal or the security of
any part thereof, by war, external aggression, armed rebellion, extreme
economic disarray, natural calamity or epidemic, the President may declare or
order a state of emergency in respect of the whole of Nepal or of any specified
part thereof.[23]
Such a power extends even within any particular Province provided any crisis
arises in the Province and the Government of Nepal deems necessary.[24]
Present Scenario
The
federal constitution of Nepal has clearly divided power among 3 levels of
government. Each level of government is people’s government and is elected by
the people themselves, though the level and scope of functioning vary based on
the constitutional provision. Each level of government is accountable to
people. Constitutionally, the federal structure and division of power seem
impeccable. However, the present problem is defacto division of power and
actual implementation of power by the Provincial government.
The
existing government led by PM Oli has 2/3rd majority. Out of 7 Provinces,
government in 6 Provinces are led by the ruling party itself. Therefore, it
seems that the Provincial governments are not actually utilizing their
constitutionally guaranteed power although they loud for their power in public
speech. In fact, the Provincial government still does not have its own Police
Authority within its jurisdiction. Provincial government without Police
Authority cannot maintain law and order and thus end up being a mere
‘development agent’ of the Centre. Besides that, there is still s powerful CDO
office in every district. The CDO office has jurisdiction over Police,
Citizenship and emergency power which it exercises on the recommendation/order
of the Centre. It implies that Provincial government is still inactive and not
fully functional as it should be.
On
the other hand, Local government is much active and is functioning properly. It
has clear mindset, experienced staffs and already established institutional
mechanisms inherited from the pre-existed unitary government. The Federal
constitution has imparted substantial power to Local government. It can
legislate laws and enforce it on its own without waiting for the Acts of
Provincial government. It is so because compliance of Local government to the
Centre would ipso facto denotes compliance to the Provincial government since
the Centre enacts Parent Act to which both the Province and Local government
must comply with.
Conclusion
The
Constitution of Nepal 2072 has established the federal system with the feature
of strong Centre and subordinate Province. Clear demarcation of subject matter
and territorial jurisdiction among three levels of government has reduced the
friction, thereby facilitating the cooperation and coordination. Although each
Provinces are sovereign to legislate and govern in matters concerning solely
with them, the Centre reserves power to interfere and decide in matters
concerned with sovereignty, territorial integrity and those matters involving
multiple Provinces.
At
present, Centre and Local governments are active in implementing federalism.
They are functioning within their territorial jurisdiction. However, the
Provincial governments are not fully functional. The Provinces seem to be
inactive, perhaps due to unwillingness of ruling party to empower and mobilize
them and due to weak opposition party. Whatever be the situation, in federal
structure of Nepal these three levels of government are interrelated and
complementary to each other. Although the constitutional powers and scope of
functioning differ their interrelationship is premised upon cooperation for the
best service of people and nation.
* Attorney-at-law / LL.M. (Constitutional Law and Commercial Law).
[1] MP JAIN, INDIAN CONSTITUTIONAL LAW,
(4th ed. Reprint), Wadhwa and Company Nagpur, at 239, (1998).
[2] For more detail refer, AV DICEY,
LAW OF THE CONSTITUTION.
[3] CONSTITUTION OF NEPAL 2072, Part 5
Article 56.
[4] CONSTITUTION OF NEPAL 2072,
Article 51.
[5] CONSTITUTION OF NEPAL 2072, Article
57.
[6] CONSTITUTION OF NEPAL 2072, Article
109.
[7] CONSTITUTION OF NEPAL 2072, Article
193.
[8] CONSTITUTION OF NEPAL 2072, Article
221(1).
[9] CONSTITUTION OF NEPAL 2072, Article
221(2).
[10] The Federation shall have power on
any matter not enumerated in the Federal List, State List, List of Local level
or Concurrent List or on any matter which is not so specified in this
Constitution as to be exercised by any level.
[11] CONSTITUTION OF NEPAL 2072,
Article 231(1).
[12] CONSTITUTION OF NEPAL 2072, Article
231(3).
[13] CONSTITUTION OF NEPAL 2072, Article
235.
[14] CONSTITUTION OF NEPAL 2072, Article
232(1).
[15] CONSTITUTION OF NEPAL 2072, Article
233(1).
[16] CONSTITUTION OF NEPAL 2072, Article
233(2).
[17] CONSTITUTION OF NEPAL 2072, Article
232(2).
[18] CONSTITUTION OF NEPAL 2072, Article
232(3).
[19] CONSTITUTION OF NEPAL 2072,
Article 232(6).
[20] CONSTITUTION OF NEPAL 2072, Article
234.
[21] CONSTITUTION OF NEPAL 2072, Article
232(8).
[23] CONSTITUTION OF NEPAL 2072, Article
273(1).
[24] CONSTITUTION OF NEPAL 2072,
Article 273(2).
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