State Restructuring

1. State Restructuring By Dr Ram Krishna Timalsena Founder National Law College 2076

2. Concept What is state Restructuring? Bringing about a drastic or fundamental internal change that alters the relationships between different components or elements of an organization or system.

3. Why Restructuring • For Better and substantive democracy • Reform of governance • Accountability • Participation • Better state of rule of law • Suitable election system • Ensuring basic rights of people • Productivity • Scientific division of provinces • Separation of powers and check and balances • Constitutionalism • Changing feudal mind set/ social transformation

4. Why? • Constitutional provision that the state shall be restructured progressively to make it more inclusive, democratic with federal system to end all kinds of discriminations based on class, ethnicity, language, gender, culture, religion and region • A common national consensus has to be built by intensive homework and discussion on the issues like what procedures and methodologies can be followed to maximize peoples' rights? • Modus operandi for economically, politically and socially prosperous state. Methods and processes can be instrumental to abolish the inequalities. • 21st century- human rights, human development and inclusive and self governance etc must be transformed into our own context

5. Restructure for the end of feudal social structure and development of democratic system:

6. Meaning • The structure of a country or a state is normally unchangeable. • To rethink about the vertical and horizontal structure of the governing system • The nature of existing power structure in Nepal is unitary and the form of governance centralized. • The building of new institutions in the form of integrated, indivisible and sovereign nation on the basis of geographical, caste-based, linguistic, cultural and regional autonomy is understood as restructuring of the state. • It does not mean the carving out of a new state; it is rather the transformation of the existing structure. • Thus, the building of new institutions and procedure by resetting or re-demarcating the internal boundaries (of development regions, districts, municipalities and villages) keeping intact the national border can be understood as restructuring of the state.

7. Meaning • Reforming the existing state machinery ending discrimination and inequality. • various kinds of conflicts and struggles and transformed and improved the state operating system. • Modification of intrinsic structure of various tires of governments. • Distribution of political, financial and administrative power or the division of state authority in a new way among all the institutions and agencies. • Federalizing a unitary and centralized state or centralizing a federal one also is restructuring the state. • Making the state agencies effective and people friendly and assuring optimum access and participation of the general public,

8. Models • The main characteristic of federalism is the division of power between the federation and the provinces or federal units. • Two models - dualist model and integrated model - • The dualist model divides powers between the central and provincial governments while some power is shared. Canada, Brazil and the United States of America follow this model. • In an integrated system the rights on some issues are given to the central government while on others the centre and the provinces share equal rights. The provinces can manage things by making laws which don't contradict with the laws enacted by the centre. Germany, Austria, Spain and South Africa have adopted an integrated or interdependent system while India and Switzerland demonstrate the features of both the systems.

9. How to restructure • Institutional / geographical structuring • Functional • Quantitative changes v qualitative changes

10. Ways • The state can be restructured in many ways – • capitalist to a welfare one; from unitary to federalism; and from single party to multiparty. • Internal readjustments of the electoral constituencies, devolution of power to the local government(s), • More democratized (inclusive democracy) • Special arrangements for historically left behind • State should not be restructured principally on the basis of fault lines (such as ethnicity, religion, population and even geography to some extent) which pose substantial threat to national unity.

11. Restructuring of the state is a continuous process in a democracy as the internal shape of the state need to be attuned to the spirit of the time and popular wish engendered both by the internal forces (movements per se) and external forces (globalization per se). • Westminster political edict of 'winner takes all (majoritarian politics)' should cease to exist or not? • Not only is internal political restructuring of the state necessary, but an inclusive political culture must also be instilled in the ruling classes. • Whether this will help to reconstruct a 'commonwealth' of the people (the mythical Ram Rajya) as against the Hobbesian state?

12. New flavour • The restructuring agenda has ethnic flavour and less democratic values. • Demands generated by the janjaties, ethnicities, dalits, nationalities; linguisticity, religiosity that have emerged at the transitional threshold; and haphazard proposition of geographical division of the state by the professional political elite (parties).

13. Contents • Meaning • Historical perspective of nation building as Nepal • Federal concept and creation of federalism • Structure of the Federal Democratic republic of the State • International practice • Concept of political parties • Key structure of three tiers • Provision relating to special structure

14. Federalism • Types • Power sharing • Autonomy • Self-rule • Shared rule • Designing provinces • Diving powers and authorities • Self determination and defence

15. Federalism • Federalism needs five components like hierarchy, government in lower layer, common market, strict budget system and institutional authority. • Nomenclatures of the federal units • Since the federal units are called "States" in Australia, Ethiopia, India, Brazil, Mexico, Nigeria and United States of America, such units are known as "provinces" in Canada, Pakistan and South Africa. These units are called "Lender" in Austria and Germany but "Cantons" in Switzerland and "Regions" in Belgium. • Structural Diversity of the Federal Executives : There is a presidential system in USA, Argentina, Brazil, Mexico, Venezuela and Nigeria. Parliamentary system in Australia, Austria, Belgium, Canada, Ethiopia, Germany, India, Malaysia, Spain, Switzerland and there is a Mixed System in South Africa.

16. Some Issues • Define the rights and responsibilites of the constituent units; • Ensure that each unit has the resources it needs to discharge its constitutional responsibilities; • Create a federal structure that guarantees and protects basic equal human rights, freedom and security for all people in the country; • Design a federal structure on the basis of Nepal’s diverse socio-cultural background; • Create a federal structure that promotes the inclusion of marginalized communities and groups in both the federal and lower level units; Guarantee the rights of the indigenous ethnic groups, Madhesis, Dalits and women; • Provide for protection of rights of the minority indigenous ethnic groups (“minorities within minorities”); • Decide on a model for organizing public finances under a federal structure; • Consider the establishment of a bicameral system of federal legislature (second chamber) to represent the units’ views at country level; • Establish an independent, efficient and effective judicial mechanism to settle constitutional disputes; • Consider ways to facilitate inter-governmental relations, processes for their implementation, and inter-entity bodies;

17. Geographicalspecificities, viability of economic development and distribution of natural resources • Merits: • Local people’s right to local resources may be better ensured. • Greater possibilities for economic development. • Continuity with existing structures. • Challenges/risks: • Resource gaps could exacerbate inequality. • Possibility of exclusion and marginalization of minorities. • Failure to address the issue of ethnic/linguistic identity.

18. Federalism based on ethnicity, language, religion, culture or identity • Merits: • Recognition of the identities of all ethnicities, languages, religions, cultures. • Minorities are not to be excluded or marginalized. • Local people’s right to local resources. • Challenges/risks: • Possible rise in communal antagonisms. • Danger of disintegration of the state with demands for secession. • Possible disenchantment among minorities within the unit

19. State Restructuring Commission • Article 138 Clause 2 of the Interim Constitution of Nepal 2063 has a provision that Nepal government will constitute a high level commission to forward recommendation for restructuring the state. In a delayed move, the government constituted such a commission only a year after the elections of the Constituent Assembly under the chairmanship of Dr. Ganesh Man Gurung but no reference has been made about the mandate and working procedures of the Commission and its completion with the nomination of the members. • 1.11. Formation of the Committee According to Rule 66 of the Constituent Assembly Regulations 2065, a 43-member State Restructuring and Distribution of Power Committee has been formed under the Constituent Assembly. • 1.12. Election of the Chairman The Committee, in accordance with Rule 70 (4) of the Constituent Assembly Regulations 2065, elected CA member Lokendra Bista to the position of the chairman unopposed on 2065/9/29. Prior to Bista's election, Narayan Man Bijukchhe had been chairing the Committee as the senior most member.

20. Rule 66 of the Constituent Assembly Regulations • It specified the following as the mandate of the Committee constituted according to Rule 64 of the same Regulations. • The structure of the state in the federal republican setup • The principles and grounds of demarcating the areas of the provinces Naming each province and demarcating the boundary • The division of legislative, executive and judicial power among various tiers of federal agencies • The determination of the common and specific contents of the rights of various tiers of federal agencies • The determination of interrelation of legislative, executive and judicial rights among the federal units • The mechanism to resolve the conflicts that may crop up between the federal units Other tasks relating to the mandate of the Committee

21. Identity and capabilities • Grounds of identity • It is difficult to decide which identity should be regarded as its basis. An individual has different identities. They include class based, social, political, cultural, lingual, communal, professional, gender based, regional identity etc. • Fixing federal units, on the basis of Ethnic/communal Lingual Cultural Geographical/ continuity of regional identities Continuity to historical identities have been selected. • Problems of identifying

22. Basis of capabilities • Autonomy and self governance, economic, material and resource strengths should be considered. • Every community based on its identity is not equally capable of exercising autonomy and self governance. In such a situation, in addition to identity, it is important to give equal importance to other factors. • The following factors should also be taken into consideration in addition to identity: • Economic inter-relationship and capability • Infrastructure development and potential • Availability of natural resources and means • Administrative accessibility

23. Conclusion • Restructuring involves process and institutional redesigning • It is unlimited area of concern • Social transformation • Equality • Justice • Prosperity • Values of globalization • Human rights/ group rights