1. Introduction
Nepal is in the phase of critical transition from armed conflict to peace. The Political change of April 2006 in general and signing of the Comprehensive Agreement (CPA) between the Communist Party of Nepal (Maoist) [herein after referred as CPN (M)] and the Government of Nepal (GoN), promulgation of the Interim Constitution, formation of Interim Legislative Parliament and Interim Government, in specific are some of the fundamental building blocks for Nepal’s peace process and achieving broader socio-economic and political transformation. Facilitating and sustaining such transformation requires new vision, new constitutional framework, new institutional arrangement, new instruments and new commitment. Conduct, action and behaviour of the political parties, judiciary, security and bureaucracy are some of the fundamental institutions that determine success or failure of materializing fundamental socio-political transformation. Hence, substantial reorientation of these institutions is precondition to make them relevant to the changing political context. Among them, this paper discusses the security sector from the conflict transformation and peace building perspective.
Objective of this paper is to initiate a constructive debate on the need and approach of security sector transformation with especial reference to Nepal Army in the changing political context. The paper brings arguments on the relevance of transformation of security sector and attempts to answer the question why transformation of security sector in general and Nepal Army in particular is essential at the present context.
2. Transformation of security sector: A conceptual basis
Transformation of security sector is not much debated in Nepal. Even the definition of security sector is globally contested and difficult to find unanimous definition. OECD defines security sector as those state institutions which have a formal mandate to ensure the safety of the state and its citizens against acts of violence and coercion (OECD, 2004; cited in Kumar and Sharma, 2005). Security Sector Reform is a common concept globally used in the post-conflict literatures. However, this terminology is not yet happily accepted by key stakeholders in Nepal. Therefore, the term ‘security sector transformation’ (SST) is used in this paper, which is conceptually similar to security sector reform. SST is a process of transforming the organizations having legitimate authority to use or order the use of force such as police, army, paramilitary, local security units, intelligence and other legally defined arrangements (Greene, 2003). Changing roles, responsibilities and actions of security actors in a changing context in consistent with democratic norms, values and principles of good governance are some of the basic elements of SST (Schnabel and Ehrhart, 2005).
Fundamental principles of SST are civilian control and parliamentary oversight of security apparatus, right sizing and modernization and professionalisation of security forces, respecting rule of law, facilitating war to peace transition, etc (Upreti, 2006; OECD, 2004; DFID, 2002). SST is a concept of total reform in the shortcomings and weaknesses of security sector, new vision and neutrality that demands honest commitments and impartiality from both civilian government and security professionals. Appropriate trainings (both military and human rights, capacity building and technical competence), mainstreaming security issues into development policy and programme, delicate balance between confidentiality and transparency, strong co-ordination and operational mechanisms, relationship between military and civilian, building public awareness, strengthening constitutional and legal frameworks, periodic review of performance of security sector and strengthening of independent oversight mechanisms (e.g., public complaint bodies like human right commission, auditor general, legislative and judicial bodies, etc.) are some of the important elements of SST (David, 1997; Ball, 2002, Aditya et al., 2006; DFID, 2003; Ebo, 2003).
Transformation of security sector in general and military in specific is not only related to security aspects but also with social, political, economic, international and development issues. Security sector reform or restructuring or transformation has to address policy, legislative, international relations; structural and oversight issues set within standard democratic principles and values (DFID, 2003 and 2002). The classical security approach mainly focuses on legal monopoly of state to use the security instruments and security force for safeguarding people and national security specifically to defend against external threats. Further, the conventional notion of existence of military force is to prepare for, prevent and engage in war (Walt, 1991) and army, paramilitary and police forces, intelligence and secret services are used for this purpose. This conventional state centric approach of security operation is narrow and ignores modern notion of security that relates with holistic framework of human rights, livelihood security, environmental security, energy security in other words broader human security with peoples’ rights for dignified life (Upreti, 2006 and 2004; Baldwin, 1997). Hence, democratic governance is a central element of security sector restructuring (Kumar and Sharma, 2005; Upreti, 2003; Aditya et al, 2006). This is a seriously lacking issue in case of Nepal.
3. Changing political context and security sector transformation in Nepal
The 10 years of ‘people’s war’ waged by the CPN (M) since 1996 and the people’s movement of April 2006 and consequent achievements in peace process such as signing of the CPA; involvement of UN in assisting management of arms and armies, promulgation of the Interim Constitution and formation of the Interim Parliament and interim government and declare the date for the Constituent Assembly Election (on 22 November 2007) have paved the path for fundamental socio-political restructuring of Nepal.
Nepal is now at the crossroad of transformation from the centuries old feudal, top-down, autocratic and exclusionary monarchical regime to a modern nation ICG, 2006a; Upreti, 2006). The king’s 1st February 2005 coup greatly helped the major political parties to work together (popularly called as Seven Party Alliance or SPA) and to collaborate with the CPN (Maoist) to defeat the king. As a consequence, the 12-point understanding reached between them, which ultimately facilitated to launch the mass agitation in April and consequently defeated the king and brought the Maoists in mainstream. The CPA signed between the GoN and the CPN (Maoists) on 21 November 2006 has not only formally ended the armed conflict and but also outlined ways for restructuring of the unitary Nepali state.
The clause 4.7 of the Section Four of the CPA has mentioned the democratization of Nepal army. It states, “The cabinet would control, mobilize and manage the Nepali Army as per the new Military Act. The interim cabinet would prepare and implement the detailed action plan of democratization of the Nepali Army by taking suggestions from the concerned committee of the interim parliament. This includes works like determination of the right number of the Nepali Army, prepare the democratic structure reflecting the national and inclusive character, and train them on democratic principles and human rights values”.
Similarly, the Article 144 (3 and 4) of the Interim Constitution has stated similar provisions. Hence, the new political context has clearly envisioned restructuring the existing army structures. However, neither the CPA nor the Interim Constitution is able to visualize the comprehensive need of security sector restructuring which includes holistic approach, i.e., developing national security policy (by complementing International relations, defense policy, and economic policy; establishing a supreme and powerful national security apparatus such as national security council), reforming intelligence, restructuring army, police and other security apparatus. Isolated effort of restructuring of one component of security sector alone can not produce expected result and therefore need to opt for holistic approach. Military is obviously an extremely important component of the security sector and therefore transformation of military is the focus of this paper.
3.1 Steps and process for security sector transformation
Step 1: Analyze security sector
• Prioritize core needs and challenges
• Identify weaknesses and constraints
• Explore opportunities and potentials
Step 2: Formulate new policy, institutional and legislative framework based on the identified opportunities and potentials,
Step 3: Translate policy, institutional arrangement and legislative framework into action
3.2 Basis of security sector transformation:
Often the need of security sector transformation arises from:
• Transition form war (civil or inter-state) to peace
• Fundamental political change in the country
• Unanticipated security related crisis faced by the country
• Regal or gradual process of change
In any of these situations, important interrelated basis are:
• The context of the country (economic, political, security, etc.)
• International relation policy of the country
• National dance policy of the country
Further, in addition to these fundamental elements, there are two important operational elements of SST. They are:
• Building national consensus
• Building trust and confidence among the key stakeholders
The following figure shows interrelationship between the context, international policy and defense policy as a basis of transformation of security sector.
There are some established approaches of security sector reform widely used in post-conflict countries. OECD/DAC approach (OECD, 2004), European approach (Chalmers, 2000), UNDP approach (Bell, 2002) are some of the more common operational approaches (Kumar and Sharma, 2005). However, discussing about these approaches is beyond the scope of this paper.
3.4 Why security sector transformation
As Nepal is entering into new era, new vision, new policy and legal framework, new institutional arrangement, new orientation, new relations and change in behaviour of security forces are essential to meet the new challenges faced by the country in the 21st century. Meeting these needs requires fundamental transformation of security sector based on the holistic framework (defining new security policy based on the defense, international and economic policy; and human rights standards; social justice and good governance framework, recognizing Nepalese people as the ultimate source of power).
The new security policy of Nepal should not be limited to conventional security paradigm practiced by this country and must cover the new paradigm that includes:
• National defense,
• International relation,
• Territorial security,
• Human security,
• Environmental security,
• Livelihood security,
• Information security, and
• Energy security.
Even the current debate on security policy includes good governance framework, economic and development policy of the state. Conventional security is not enough to provide security to a nation and its people, especially in the developing countries. The Brandt Commission (1980) and Olaf Palme Commission (1982) have amply highlighted this issue. The Geneva Centre for Democratic Control of Armed Forces (DCAF) has vividly establishes relationship between reform of security centre and development by embedding reform of security sector into human development and helping poverty reduction and expanding options for life of poor people (Brzoska, 2003). Hence, Nepal needs to reorient security sector according to the new security paradigm that builds upon the above mentioned 7 essential elements.
4. Transformation of Nepalese Army
Despite the reservation of few critical commentators, the history of Nepal army is seen by many as the important contributor in state building process. The success of King Prithivinarayan Shah to unite several petty states into one Nepal was made by army. Historically, they were in fore front to resist external security threats. The Military Act 2063 (BS) has highlighted the reasons of very existence of the Nepal Army. It states: protection of the independence, sovereignty, national integrity and national unity of the nation.
In the modern state, security apparatus, bureaucratic apparatus and judicial apparatus are three fundamental permanent pillars of any state governing system. Army is major actor in security apparatus. These three structures provide basic services to citizens of a country. It is not possible to democratically govern a country without modernizing, professionalizing and establishing accountability of these fundamental state apparatus. Nepal Army is being one of the very important components of the security sector; its transformation in the changing political context is highly expected by both political actors and citizens of the country.
While discussing the transformation of Nepal army, four areas are crucial. They are:
1. Rule transformation (laws and regulations; guidelines, norms and values, etc.)
2. Content transformation (training, orientation, issues, structural arrangements, etc.)
3. Procedure transformation (behaviour and action, operational style, use of symbols, etc.)
4. Relation transformation (civil-military relation ; media policy; balancing transparency and confidentiality; accountability and civilian control and parliamentary oversight; human rights, etc.)
Transformation in these four crucial areas in the management and operation of the Nepal army is a integral part of the broader transformation of security sector of Nepal and that provide a sound example of state restructuring for new Nepal.
4.1 Existing areas of engagement of Nepal army
1. Safeguarding territorial integrity,
2. Mobilization during the internal conflict,
3. Development work:
a. Road construction,
b. Construction of bridges and other vital areas,
4. Nature conservation (protection of parks and reserves),
5. Disaster management and responding to crisis,
6. UN peace keeping,
7. Security of palaces and V/VIPs,
8. Rescue and recovery (mainly helicopter service in natural calamities and other disasters),
9. Protection of vital areas:
a. Airport security,
b. Boarder security,
c. Security of banks and fund transfer,
d. Telephone towers and relay stations,
e. Others.
10. Provisional emergency medical services to limited general public through Chhauni Military Hospital, Kathmandu.
These areas of engagement can be redefined, reoriented, combined, modified or reduced based on the comprehensive assessment of Nepal Army as outlined in the section 3.1 considering the changing context of Nepal and international security dynamics. Some of the existing area of engagement of Nepal army may not be needed in the changing context. There is an emerging debate on why army should be engage in national park and reserve as modern concept of people-park-partnership is more sustainable and effective. A large number of army deployed in the security of places and the royal families earlier is not needed as the government of Nepal has already shifted that role to police force. The engagement of security in development work such as construction of road and other infrastructures is also issue of debate in economic and social ground. Proliferation of small arms is rapidly increased during the period of armed conflict (Upreti and Nepali, 2006) where army can play more concrete role to control.
4.2 Why transformation of Nepal Army?
After the successful people’s movement in April 2006 and consequent political development in the country, the debate of restructuring of the state is advanced and therefore the security sector in general and the Nepal army in particular became integral part of the national state restructuring debate. Further, modernization and transformation is a continuous process of any vital components of a state to meet expectation of its citizens, new challenges, enhance international acceptability and to be more competent, efficient and effective. These all components are relevant in the case of Nepal Army.
At present, it is not clear how the holistic transformation of the security sector in general and Nepal army in specific proceeds mainly because what provisions the new constitution made by the new constituent assembly will make on security issues, international relations and economic issues are not clear. Further, contents, mandate, scope and form of federal structures are not clear at present. Without very clear constitutional provisions on the holistic national security and international policy and state’s political structure, it is quite difficult and even inappropriate to define all these crucial elements of the transformation of SST. Guiding principles, content, process, institutional arrangement and regulative and legal framework of the restructuring of the security sector and Nepal army will be more clear only after the promulgation of the new constitution made by the Constituent Assembly elected by Nepalese people. However, it is quite essential to debate all aspects of security sector transformation to make people aware for them to select right people for the constituent assembly election who could internalize the components and need of SST while preparing the new constitution.
4.2.1 Strengths and weaknesses of the Nepal army
Strengths Weaknesses
• Discipline and hard working,
• Professional,
• Good reputation in UN peace keeping operation in different parts of the world,
• Not ambitious for military rule (Never attempted to rule the country militarily),
• Not observed resistance to the change process of 2006. • Monarchist orientation and accountability (the king as supreme commander),
• Less representative (Madeshi, women, etc.),
• Inadequate civil-military relation,
• Controversy in human rights issues (Doramba, Nagarkot, Belbari, etc.),
• Lack of transparency (ration, welfare fund, etc.).
Nepal army was largely close structure in the Panchayat regime and it was presented as some thing especial and beyond the proper understanding of general public. The palace used this institution for strengthening its power and privileges. Even after the political change of 1990, Nepalese politicians and the government failed to regulate, monitor and oversight the army. They had largely perceived and interpreted Nepal army as a domain of the palace that was the precisely the interest of the palace was. Consequently, Nepal Army continued its loyalty and alignment with the palace. National Security Council totally failed to perform its role envisioned in the constitution but the party and the government either suspected or blamed for the non-cooperation of army to political parties and their government. Obviously, palace had made every effort to control the army and succeeded because of the culture, tradition and command structure, being king as supreme commander). But the foremost responsible for the weaknesses of Nepal army and related disputes in last 15 years was the National Security Council and Prime Minister/Defense Minister.
4.2.2 Image of Nepal Army
Image is powerful instrument either to influence society and people or to be hated, marginalized and neglected. Therefore, organizations and individuals always attempt to provide good image in society. Nepal army in the Panchayat era was perceived as a powerful, elite and especial institution out of reach of ordinary people because of use of language and words, action and response. Image of Nepal army after the 1990’s political change has to be examined into four stages. They are:
1. 1990 to 2001: Military was less controversial and largely accepted as a credible institution,
2. Army’s involvement in armed conflict: controversy started, Maoists targeted army as main enemy, cases of human rights abuses and disappearance by army increased, public fear towards army multiplied. Relation with civilians worsened. International Crisis Group has extensively reported about the involvement of the army in the armed conflict of Nepal .
3. Royal takeover of 1st February and April Movement: Army fell into most controversy and seriously lost its credibility domestically and internationally . General public widely perceived army as tool of the king to suspend democracy and establish autocracy . General people, civil society and political parties lost their faith towards army when it took violent approach to suppress janaandolan, The already deteriorated image of army from the 1st February coup was further worsened at international level because of its role in suppressing April 2006 people’s movement (ICG Report No 36, Feb 2005), as it was globally covered by international media. This stage became not only the most detrimental for the image and acceptance of Nepal army but also forced the political leaders to democratize its, as stated in the CPA.
4. Post Janadolon of April 2006: Though many analysts and opinion makers remained critical, Nepal Army largely showed its commitment to political change. Contrary to assumption of some analysts that the Nepal army would openly stands for the king, it cooperated with government, expressed its commitment to peace and started to positively respond to public expectation. Even it has started to take proactive role in initiating debate of transforming the Nepal army. Role of Ministry of Defense is crucial to reorient Nepal Army from its previous working procedures to meeting expectation of political changes. However, role of MoD was weak in transforming military and building confidence and trust of people towards the army.
Nepal army claims that it has already started to address the exclusion issues vehemently raised in public by recruiting women in non-technical officers, cadets, military police, etc., established Sabujgan in Jaleshqwor to include Madhesi community and Ripumardanigan in Hile of Dhankuta district to include Kirat community. Only Madhesi community is working in Sabujgan and Kirat community in Ripumardanigan . Nepal army claims that more than 50 castes and ethnic groups are working in army. This is good beginning.
The military welfare fund and financial contribution deducted from the army participating in UN peace keeping force is still a source of contention and facing a court case for the legal settlement. However, the image and credibility of Nepal Army in UK peace keeping (approximately 36000 NA personnel have so far participated in the UN peace keeping operation in different war-torn countries) was characterized by:
• Honest and sincere,
• Hard working and committed,
• Professional,
• Brave and able to work in adverse condition in different war-torn countries.
4.3 Holistic approach of transformation
Successful transformation of Nepal army depends upon the internalization of holistic approach of security sector restructuring. That means:
• Developing new national security policy (defense and international relation)
• Redefining National Security Council (existing arrangement of NSC is too narrow)
• Restructuring of Ministry of Defense
• Transforming
o Nepal Army
o Civilian police
o Armed police
• Redefining state intelligence (both security and civilian structures)
• Redefining and strengthening of oversight bodies (parliamentary, judicial and human rights bodies)
• Integration of qualified CPN (M)’s ‘People’s Liberation Army in national army, and
• Successful implementation of reconciliation and reintegration of security forces from both sides [state and CPN (M)] in modernized and transformed security structures of the state.
These all components of security sector are interrelated and complementary and therefore reforming one and leaving others unchanged can not be effective to meet the requirement of modernization, professionalisation and democratic governance of security components.
One of the fundamental points to be realized by the Nepalese people in general and political parties in specific is that national security and international policy must be develop by consensus (there should be in-depth study, serious discussion and wider interaction among and between political parties while formulating these policies) but once they are finalized, theses policies must be the out come of consensus and common for all political parties and must not change every time when different political parties come in power.
4.4 Basic principles of transformation of Nepal army
• Nepalese people as the ultimate source of power
• Accountability,
• Transparency,
• Representation,
• Rule of law and human rights,
• Social justice and good governance principles,
• International provisions and standards.
In the new army act, some principles have already been introduced, which gives good basis for following all the above mentioned principles in future.
4.5 Right sizing of Nepal army
The actual size of the Nepal army depends upon several factors. Some of them are:
• Long term national security policy,
• International power relations and Nepal’s position
• Economic feasibility of the state
• Possibility of mobilizing alternative security arrangements (e.g., military training to eligible citizens, mobilizing paramilitary, etc.),
• Major areas of engagement (3 categories: must be engaged, better to engage and less important to engage)
• Other factors
The CPA and the Interim Constitution have clearly stated to redefine the size of Nepal Army. There are several arguments against and in favour of reducing the existing size of Nepal army (the total strength of 91444 persons ). There can be three options:
• Downsizing of the existing strength,
• Upsizing of the existing strength,
• Keeping the existing strength.
4.5.1 Arguments for keeping the existing strength (or not drastically downsizing)
• Reducing the existing size seriously imbalance the command and control strengths particularly in senior positions,
• Need for deterrence if in case of unexpected external interference,
• Serious problems create in nature conservation,
• Affects development work carried out by Nepal army,
• Alters contribution in UN peace keeping,
• Affects in disaster management and risqué operation,
• Affects security of V/VIPs,
• Affects protection of vital areas such as airport security, security of banks and fund transfer, telephone towers and relay stations,
• Affects jail security,
• Requires strengths if internal conflict escalates.
4.5.2 Arguments for downsizing the existing size
• The expansion of the existing military size into double during the past 10 years was precisely because of the Maoist armed conflict and this strength is not needed after the end of the Maoist armed conflict,
• Nepal, a poor country can not sustain this big size of military as this is extremely expensive institution,
• Some of the conventional areas of military engagement should be terminated, such as palace security, parks and reserves security,
• Nepal can not militarily confront or compete with the giant neighbours irrespective of the large size of Nepal army as they are massively large in size and technologically highly advanced,
• If needed to deter, Nepalese citizens have to be train.
Further, the down sizing of army is vehemently coming form the CPN (Maoist). Maoist leader Prachanda in his first public appearance in the Prime Minister’s official residence said that Nepal needs only about twenty thousands army to provide military training to all eligible Nepalese people and security of the nation in his view is the responsibility of all citizens of the nation. If this is official line of the CPN (M) to provide military training all qualified Nepalese people, this bring another major debate on whether it is appropriate to go for that option, whether it is acceptable to Nepalese people. There will have also direct implication to the Maoists arguments to bring their PLA into state army. Why?
4.5.2.1 General criteria for downsizing:
• Termination of all persons who have completed their legally defined pension period (within 6 years in a phase wise basis),
• Termination of all who have bad record of human rights abuses,
• Termination of all who have record of punishment and disciplinary action,
• Accepting the resignation of those who have requested for resignation in the past but not accepted because of the armed conflict,
• One time decision for premature pension retirement (one or two years before the normal pension time depending upon the size to be reduced),
• Not filling the vacant positions created because of the completion of pension period and other means (exception may apply in some crucial positions),
• Golden handshake package, where appropriate,
• Other appropriate criteria defined by the government,
• Transferring the interested persons to police force and other appropriate security apparatus.
4.5.2.2 Social reintegration and other options for Nepal Army
If and when the decision is made to reduce the existing size of Nepal army, they have to be integrated in society. The existing standard procedure and package of reintegration practiced by Nepal Army has to be continued as the obvious option. However, if the downsizing is going to happen in relatively large scale, the following are potential areas of engagement:
• Exploring possibility of placing in the new arrangement of the permanent peace keeping force of UN. However, it requires especial efforts of government to convince the UN to recruit their peace keeping force from Nepal),
• Adjusting in private security sector: industrial security, security of public institutions, etc.
• Engage in skill based occupations, income generation,
• Creating special force of post-conflict reconstruction and development,
• Assigning civilian roles in the government structures where appropriate,
• Other relevant options.
4.6 Establishment of technical committee for transformation of Nepal army
Both the CPA and Interim Constitution have outlined the responsibility of the interim cabinet to prepare and implement the detailed action plan for democratization of the Nepali Army by taking suggestions from the concerned committees of the interim parliament. In addition to this provision there is a need of technical committee composed of PLA leaders, Nepal Army officers and experts to assist parliamentary committee and the interim government. This committee has to workout all necessary details and overcome technical complications in transforming Nepal army and integrating PLA. This committee needs to continue until the complete transformation of security sector, beyond the time of interim government.
4.7 The right time for transformation of the Nepal Army
Though not substantial work in this area is started, debate has already been initiated; small initiative such as revising the Military Act has been completed by the former parliament. The whole efforts so far have been focused to military, leaving holistic framework of transformation of security sector discussed in the section 4.3. Both the CPA and the Interim Constitution have to some extend opened the avenue to start the work on security sector transformation. However, it is extremely difficult to come up with clear proposal of SST on how to do because of fundamental unclearity existed at present about the future state’s structure (unitary or federal), which determines the areas of engagement of military. Nepal is relying on the existing National Defense policy, international policy and economic policy, which are most probably going to fundamentally change after the promulgation of the new constitution form the constituent assembly. Hence, it is not easy and even appropriate to fully implement SST before the promulgation of new constitution. However, Nepal has to start informed debate on SST. The following three stage strategy is useful to initiate SST:
4.7.1 Before the constituent assembly election:
• Sincere commitment at political level
• Debate and discussion,
• Analyzing security sector,
• Exploring opportunities and challenges by the ‘Technical Committee’.
4.7.2 After the constituent assembly election (during the period of constitution making)
• Ensuring the incorporation of fundamental principles of operating security sector (discussed in the section 4.4) in the new constitutional provisions,
• Providing conceptual framework for the creation of modern, professional and democratically operating security apparatus.
4.7.3 By the elected government after the promulgation of new constitution
• Preparation of comprehensive security sector transformation package,
• Execution of actual security sector reform according to the new constitutional provision by restructuring
o National Security Council
o MoD
o Nepal army,
o Nepal police
o Intelligence
o Other security apparatus.
5. Integration between Peoples Liberation Army and Nepal Army into a single structure
CPN (M) is constantly arguing to form new national army by combining both PLA and NA. Though Maoists have not made public about the detail on how to form national army, they have raised this issue very strongly. Further, the mistrust between the CPN (M) and Nepal Army is increased. Instead of engaging in constructive debate and discussion with Nepal Army, CPN (M) is much preoccupied with its war-time relation with it. Because of lack of sincere implementation of the provisions of the CPA, the increased mistrust between CPN (M) and Nepali Congress is also reflected in the relationship between CPN (M) and Nepal Army. It is extremely difficult to transform security sector in general and Nepal Army in particular without reaching to a national consensus at political level. National army, being a permanent state structure, does not belong to any particular party or political group and therefore strengthening national army is a collective responsibility of the citizens of Nepal.
So far the actual size of qualified PLA is not publicly known and it will be clear only after the completion of full verification process by UN in the cantonments. The actual number of PLA verified by UN will be eligible candidates for the integration if they meet some standard criteria.
Maoists have repeatedly publicly expressed that the existing size of army is not necessary for Nepal and it has to be reduced. This means that it will be difficult for them to justify their argument of incorporating all PLA in the army as it will expand size of the army. Hence, the down sizing means less number of PLA integration in the army. However, the determination of actual size is political decision but it should be based on the sound technical basis.
There is also a strong argument that the PLA is ideologically indoctrinated political cadres of one party and how they can be professionally neutral
5.1 Criteria of selection
The interim government need to decide selection criteria based on the through discussion with senior officials of PLA and Nepal army. However, the following can be general basis for selection to integrate in national army from the verified PLA:
• Giving up the party membership (neutrality principle)
• Physical fitness,
• Meeting the standard age requirement and other standard selection criteria,
• No record of human rights abuses,
• Inclusiveness and representativeness -caste, geographical regions and sex
5.2 Addressing issue of PLA
PLA qualified from the verification process and meeting the selection criteria for national army needs to be integrated into national army, according to the provisions made by the government based on the political consensus. However, all PLA staying in the cantonments will not be qualified for the national army and therefore those who do not meet the criteria have to be disarmed, demobilized and reintegrate in society. Disarming is a process of handing over of the arms used by individuals to the authorities who are responsible for the safe storage, redistribution or even to the destruction of those arms (Gleichmann et al., 2004). Demobilization is a act of either disbanding arms unit, reducing the number of combatants or an interim stage before reassembling entire armed forces (ibid:15). Reintegration is a social and economic process by which ex-combatants acquire civilian status and gain access to civilian forms of work and income (ibid: 15).
The Maoist leaders have so far out-rightly rejected the classical notion of disarmament, demobilization and reintegration (DDR). Their interpretation of DDR is an approach to apply for the defeated rebel force. However, the agreement between the government and the Maoists on management of arms and armies and involvement of UN Mission in Nepal (UNMIN) in the ongoing management of arms and armies is an integral part of DDR. Further, DDR does not apply only to defeated rebel force but also to state security force irrespective of wining or defeating.
After the completion of verification and registration of PLA by UNMIN, unqualified PLA have to be integrated into society, develop their capability to economically sustain livelihood, reestablish social relations, diffuse toxic memories and live normal life. This requires special provisions that are not discussed in this paper.
Further, once the government decides to integrate the registered PLA in Nepal Army based on the above criteria, those who do not meet the criteria have to adjust in different areas such as:
• Industrial security,
• Engage in skill based occupations (by providing training, resources and conducive environment),
• Adjusting in private security sector: industrial security, security of public institutions, etc.
• Creating special force of post-conflict reconstruction and development,
• Assigning civilian roles in the government structures where appropriate,
• Other options.
6 Role of international community in security sector transformation
In developing countries, military assistance is often provided by donors mainly under the framework of development cooperation (Brzoska, 2003; Ball, 2002). Global experiences of the conflict ridden and war torn counties show that international communities and aid agencies play leading role in security sector reform, DDR and post conflict development (Schnabel and Ehrhart, 2005). Their engagement in security sector reform has shown both positive and negative outcomes, depending upon the degree of involvement (facilitation to dictation and promotion to control of the process). The dominance of donors and aid agencies in the security sector restructuring, police and military reform, post conflict development and reconstruction is shaped by their financial support and associated so-called technical assistance.
In case of Nepal, we need donors support but not controlling the transformation process and imposing the restrictive conditions but to facilitate home-grown security sector transformation process, assisting in national capability building and providing required financial resources.
7 Challenges and opportunities
Challenges:
• Changing mindset of the key actors (both security and political),
• The mistrust and tension between the CPN (Maoists) and main political parties and consequent difficulties appeared in the broader peace process,
• Vested interests of certain domestic groups/individuals,
• Unwanted international influence,
• Managing transition smoothly,
• Proper reintegration of security forces (PLA, NA, APF) into society,
• Unanticipated or unintended consequences and risks and preparedness to deal on these uncertainties,
• Emergence of unanticipated and unintended issues once peace process faces difficulties.
Opportunities:
• People’s aspiration and pressure to decision makers from general public,
• Commitment made in the interim constitution and CPA,
• Realization by Nepal army for the need of change,
• Commitment from political parties including Maoists,
• Others.
Reference
1. Aditya A., Upreti, B. R. and Adhikari P. K. (2006), Countries in Conflict and Processing of Peace: Lessons for Nepal. Kathmandu: Friends for Peace.
2. Baldwin, David, 1997, “The Concept of Security,” Review of International Studies, Vol. 23.
3. Ball, N. (2002), Enhancing Security Sector Governance: A Conceptual Framework for UNDP, www. undp. org/bcpr/jssr/docs/UNDP_ SSR_ Concept_Paper_9 October.
4. Brandt Commission (1980), North-South: A Programme for Survival. Cambridge: The MIT Press.
5. Brzoska, M. (2003), Development Donors and the Concept of Security Sector Reform, Occasional Paper No. 4, Geneva: Geneva Centre for the Democratic Control of Armed Forces (DCAF), November.
6. Chalmers, M. (2000), Security Sector Reform in Developing Countries: an EUPperspective, Joint report published by Saferworld and the Conflict Prevention Network, http://www.saferworld.co.uk/pubsecu.htm.
7. COAS (2004), ‘Sri Sam. Pra. Se. Pa. Jyu bata Si.Sam. 11 Kamand Tatha Estaf Talimko Dichayanta Samarohama Dinu Hune Sambodhan’, (The Statement prepared for the Rt. Hon’ble Chief of Army Staff to be delivered at the 11th Command and Staff Convocation Ceremony of the Military Academy, May 14).
8. DfID, 2002, Understanding and Supporting Security Sector Reform, London: Department for International Development.
9. DfID (2003), Security Sector Reform Policy Brief. January 2003.
10. Ebo, A. (2005), The Challenges and Opportunities of Security Sector Reform in Post-Conflict Liberia. Geneva Centre for the Democratic Control of Armed Force. Occasional paper No. 9.
11. Gleichmann, C. , Odenwald, M. Steenken, K. and Wilkinson, A. (2004), Disarmament, Demobilization and Reintegration: A Practical Field and Classroom Guide. Swedish national Defense College, Pearson Peacekeeling Centre, German Technical Cooperation and The Norwegian International Defense Centre.
12. Greene, O. (2003), Security Sector Reform, Conflict Prevention and Regional Perspectives. Journal of Security Sector management. Vo;. 1, No. 1, Pp. 1-15.
13. Huntington, S. P. (1957), The Soldier and the State: The Theory and Politics of Civil-Military Relations, London: The Belknap Press of Harvard University Press.
14. ICG (2003a), Nepal: Back to the Gun, Asia Briefing, 22 October 2003..
15. ICG (2003b), Nepal: Obstacles to Peace, Asia Report N°57, 17 June 2003.
16. ICG (2003c), Nepal Backgrounder: Ceasefire – Soft Landing or Strategic Pause?, Asia Report N°50, 10 April 2003.
17. ICG (2004), Nepal: Dangerous Plans for Village Militias, Asia Briefing, 17 February 2004.
18. ICG (2005a), Nepal's New Alliance: The Mainstream Parties and The Maoists, Asia Report N°106, 28 November 2005.
19. ICG (2005b), Nepal's Maoists: Their Aims, Structure and Strategy, Asia Report Briefing N°104, 27 October 2005.
20. ICG (2005c), Nepal: Beyond Royal Rule, Asia Briefing N°41, 15 September 2005.
21. ICG (2005d), Towards a Lasting Peace in Nepal: The Constitutional Issues, Asia Report N°99, 15 June 2005.
22. ICG (2005e), Nepal: Dealing with a Human Rights Crisis, Asia Report N°94, 24 March 2005.
23. ICG (2005f), Nepal: Responding to the Royal Coup, Asia Briefing N°36, 24 February 2005.
24. ICG (2005g), Nepal's Royal Coup: Making a Bad Situation Worse, Asia Report N°91, 9 February 2005.
25. ICG (2006a),Nepal: From People Power to Peace?, Asia Report N°115, 10 May 2006.
26. ICG (2006b),Nepal’s Crisis: Mobilising International Influence, Asia Briefing N°49, 19 April 2006.
27. ICG (2006c), Nepal: Electing Chaos, Asia Report N°111, 31 January 2006.
28. Kumar, D. and Sharma, H. (2005), Security Sector Reform in Nepal: Challenges and Opportunities. Kathmandu: Friends for Peace.
29. Meadows D. H., Meadows, D. L., Randers, J. and W.W. Behrens II (1972), The Limits of Growth. New York: University Books.
30. OECD, (2004), “Security System Reform and Governance: Policy and Good Practice,” http://www. oecd.org/dac/conflict, 19 May.
31. Palme, O. (1982), Common Security: A Blue Print for Survival, New York: Simon and Schuster.
32. Schnabel, A. and Ehrhart H-G. (2005) (eds.), Security Sector Reform and Post Conflict Peace Building. New York, Tokyo and Paris: United Nations University Press.
33. Upreti, B. R. (2004) The Price of Neglect: From Resource Conflict to Maoist Insurgency in the Himalayan Kingdom. Kathmandu: Bhrikuti Academic Publications
34. Upreti, B. R.and R. K. Nepali (2006) (eds.) Nepal at Barrel of Gun: Proliferation of Small Arms and Light Weapons and their Impacts. Kathmandu: South Asia Small Arms Network-Nepal.
35. Upreti, B.R. (2003) Security Sector Reform: A Neglected Agenda. The Kathmandu Post, 9 May 2003.
36. Upreti, B.R. (2006), Armed Conflict and Peace Process in Nepal: The Maoist Insurgency, Past Negotiation and Opportunities for Conflict Transformation. New Delhi: Adroit Publishers.
37. Walt, S. M. (1991), “The Renaissance of Security Studies,” International Studies Quarterly, June.
Friday, January 1, 2010
Federalism, conflict and question of stability in Nepal
1 The context
Nepal’s governance system for the several decades after the political change of 1950 used various approaches to decentralisation and participation. The Local Self Governance Act 1999 was one of the latest efforts to achieve decentralisation. However, all these efforts were not able to achieve the desired outcome. The centralisation of power and resources at the political-level in development areas did not change much, and the decades of decentralisation efforts were unsuccessful in ensuring the inclusion and participation of people in decision making, even after the political change of 1990 (Jana Andolan I). The governments after the political change of 1990 made some efforts to achieve decentralisation and some achievements were made in specific sectors, such as community forestry, but at the structural level these efforts were not able to achieve the full decentralisation, inclusion and participation of people in state affairs (Shrestha, 1997; Pandey, 1999). This led to dissatisfaction and frustration, creating favourable ground for the armed conflict and contention (Upreti, 2009). Hence, the debate on the need for a different governing structure, i.e., a federal structure, started. After Jana Andolan II in April 2006, the need for a system such as federalism capable of addressing the problems of a unitary state became more prominent. This chapter discusses the potential of federalism to address conflict and proposes some mechanisms for addressing possible conflict arising within federal structures.
2 The call for federalism in Nepal
When the king imposed absolute autocratic rule on 1 February 2005, the need for fundamental change (which had earlier been realised by the CPN [M]) was realised by all major political forces in Nepal. The preamble of the 12-point understanding reached between the SPA and the CPN (M) on 22 November 2005 expressed this need, calling for democracy, an end to the monarch and a new political structure:
The long struggle between absolute monarchy and democracy in Nepal has now reached a very grave and new turn. Establishing peace by resolving the 10-year old armed conflict through a forward-looking political outlet has become the need of today. Therefore, implementing the concept of absolute democracy through a forward-looking restructuring of the state has become an inevitable need to solve the problems related to class, caste, gender, region, etc. of all sectors including political, economic, social and cultural, bringing autocratic monarchy to an end and establishing absolute democracy.
This need was further refined in the CPA, which in its preamble “Pledg[es] for the progressive restructuring of the state…” and “Reiterat[es] commitments to competitive multiparty democratic system, civil liberties, fundamental rights, human rights, complete press freedom, rule of law and all other norms and values of democratic system”.
Article 3.4 of the CPA reaffirms the commitment to, among other things, a “political system that fully comprehends the concepts of universally adopted principles of fundamental human rights, multiparty competitive democratic system…”.
Article 3.5 of the CPA undertakes to: “End the existing centralised and unitary state system and restructure it into an inclusive, democratic progressive system…” It proposes to “… address various problems including that of women, Dalits, indigenous community, Madheshis, oppressed, ignored and minority communities, backward regions by ending prevailing class, ethnic, linguistic, gender, cultural, religious and regional discrimination”.
The state restructuring provisions of the CPA were enshrined in the Interim Constitution 2007. Article 138 1) (as amended on 12 April and 12 July 2008) of Part 17 (Structure of state and local self governance) of the Interim Constitutions proposes:
To bring an end to discrimination based on class, caste, language, gender, culture, religion and region by eliminating the centralised and unitary form of the state, the state shall be made inclusive and restructured into a progressive, democratic federal system.
The end of the unitary and centralised state was agreed upon. However, federalism was not necessarily explicitly envisioned as the form of state restructuring. Though the 23 point agreement (2007) vaguely stated federal issues other major agreements or of the Interim Constitution were not much referring to federalism. In 2008, the Interim Constitution 2007 was amended to incorporate term federalism, in response to the ethnic/regional (Madhesh) movement. The fifth amendment to the Interim Constitution on 12 July 2008 states:
Accepting the aspirations of indigenous ethnic groups, and the people of the backward and other regions, and the people of Madhesh, for autonomous provinces, Nepal shall be a Federal Democratic Republic.
The amendment further provides that:
The provinces shall be autonomous, with full rights. The Constituent Assembly shall determine the number, boundary, names and structures of the autonomous provinces and the distribution of powers and resources, while maintaining the sovereignty, unity and integrity of Nepal.
The Constituent Assembly is now working on translating these principles into practice in the new constitution. Various committees are working to deal with specific issues of the constitution (see Box 1).
Box 1 The CA Committees
Thematic committees:
1. Constitutional Committee
2. State Restructuring and Resource Allocation Committee
3. Fundamental Right and Directive Principle Committee
4. Minorities and Marginalized Communities Right Protection Committee
5. Legislative Organs Delineation Committee
6. State Rules Delineation Committee
7. Judiciary Committee
8. Constitutional Body Delineation Committee
9. Natural Resource, Economic Rights and Revenue Allocation Committee
10. Cultural and Social Solidarity Delineation Committee
11. National Interests Protection Committee
Procedural committees:
12. Civil Relationship Committee
13. Public Opinion Collection and Coordination Committee
14. Capacity Enhancement and Resource Management Committee
Among them, the Constitutional Committee is vitally important in drafting the constitution, based on the technical work on thematic issues done by other committees. The State Restructuring and Resource Allocation Committee is charged with the task of developing a concept of how to restructure the state and allocate the resources that will minimise conflict. Similarly, the Minorities and Marginalized Communities Right Protection Committee will address the issues of exclusion and protection of minority rights, which was one of the main causes of conflict in the past. The Natural Resource, Economic Rights and Revenue Allocation Committee will develop a concept of resource allocation in such a way that it will minimise future potential conflict. The National Interests Protection Committee will put forward concepts and proposals on vital national interests to be protected, which will ultimately minimise the potential for future conflict.
3 Objections to federalism in Nepal
In Nepal, all of the 25 political parties represented in the CA, except for one (Rastriya Janamorcha), have accepted the federal political system. Only, Rastriya Janamorcha vehemently opposes federalism. The party’s concerns and arguments are that federalism:
• Weakens sovereignty and increases the risk of disintegration of the nation
• Promotes communal disharmony and ethnic conflict
• When states are based on ethnicity, promotes hatred against each other
• Erodes national feeling and weakens national identity, while strengthening ethnic and communal identity
• Is not the Nepali people's agenda, but is coming from the vested interests of India to keep Nepal weak and instable
• Leads to the breakdown of national political parties into regional ones, which causes related tensions
• Leads to discrimination of people within the nation as the rules of different states vary
• Results in ineffective delivery of government services
• Is operationally expensive, not sustainable for Nepal
• Brings unanticipated consequences and problems
Some intellectuals argue that federalism is mainly suitable for unifying separate small states, but is not appropriate to separate a unified state. On the political front, Rastriya Janamorcha argues that federalism was introduced by a few elite politicians under external influence who wrongly equated a centralised state with a unitary state. They believe that decentralisation would have been sufficient to address concerns that other politicians want to address through federalism.
The opposition of Rastriya Janamorcha to federalism has provided ample inputs for decision makers to ponder the challenges involved in implementing federalism and the measures that need to be taken to address the concerns raised by Rastriya Janamorcha. Proper debate on the benefits and limits of federalism can help to avoid deficiencies in design and implementation.
4. Problems inherent in centralised and unitary states
Conceptually, unitary and centralised states are different. However, in the case of Nepal, these two concepts are heavily intertwined. Nepal has been a unitary country since its inception in 1768. A unitary state is a country constitutionally governed with one constitutionally created legislature as a single unit. The political power of government in unitary state may be transferred to lower levels at regional or local governing, but the central government retains the principal right to recall such delegated power. Many unitary states have very good decentralisation. However, in the centralised state, the system of governance (political power) is heavily centralised (i.e., power is exercised by the central government only, and not divided between different levels of government). The Nepalese people and politicians have understood these two concepts (unitary and centralised) as the same and used the terms interchangeably. In contrast, a unitary system can be decentralised (one source of power, but exercised at different levels: central, district and local), and attempts were made to do this in Nepal in the 1990s, but, for various reasons, real power was never devolved from the centre to the districts.
The political history of Nepal demonstrates that a unitary state, dominated by centralised governing practices, cannot address the needs and interests of the Nepalese people. This is mainly because of Nepal’s multiethnic, multi-religious and multicultural character. The concentration of power and resources at the centre and in the hands of the power elite, excluded large sections of society (women, Dalits, ethnic groups, people from remote regions and other marginalised groups). Further, the centralised political system led to a centralised bureaucracy, judiciary and security, largely inaccessible to those outside the mainstream culture. The centralisation of power in the hands of a few also led to corruption and irregularities, which became an integral part of the political process. The political elite used their positions to further their own interests and the system of afno manchhe (literally translated ‘own people’) made nepotism and corruption structurally embedded. One of the main reasons for exclusion was the failure of the ruling elite to recognise the importance of the involvement of excluded people in the state building process. For stability, it is important to build an inclusive state; one of the arrangements that can facilitate this is a federal structure created by a new process of nation building, involving people and sharing power.
Nepal as a unitary state was also unsuccessful in generating employment opportunities for the large mass of unemployed people. Semi-educated, unemployed and left-out youths became frustrated and a source of conflict and insecurity. If social and economic structures and their governing practices promote and protect elite-biased, power-centred and discriminatory social practices, the potential for social tension and violent conflict is high. The inability of the state to deal with the socio-economic sources of the armed conflict – poverty, social evils and perversions such as ‘untouchability’, other forms of discrimination based on caste, class, religion and gender, injustice and inequality, and lack of access to and control over resources and basic services – and its propensity to even directly and indirectly perpetuate these sources, fuelled feelings of injustice and frustration, and a deep dissatisfaction with the government. When there is great dissatisfaction with government performance and rebellious sentiment in suppressed people, social tension is inevitable.
The ethnic dimensions of the political change from a unitary to a federal system in Nepal are very strong. There are wide differences between ethnic groups and caste groups in Nepal based on language, religious practices, legal and judicial systems, indigenous arrangements, representation, citizenship and distribution of state privileges. Although the ethnic movement existed earlier, it emerged strongly during the popular movement of the 1990s. The political change of the 1990s failed to properly address the aspirations of the various ethnic groups. Maoist insurgency capitalised on this by supporting ethnic groups to seek their rights and articulate their demands, bringing the ethnic movement to a turning point.
In the beginning, the pro-Maoist ethnic movement focused on the right to self-determination (it was not clearly explained whether or not this meant a separate state/country or full autonomy within the sovereign country), whereas the non-Maoist ethnic movement focused on guaranteed autonomy through a federal system. The Maoist documents during the ten years of the armed conflict clearly highlighted this issue. However, this distinction gradually faded and the focus shifted to a radical ethnic identity demanding ethnic federalism with the right to self-determination coloured by anti-caste radicalism. Now the ethnic demands coming from ethnic leaders are too one sided that deny the co-existence, seek special privileges such as prior rights and impose the ethnic supremacy over other people 9e.g., naming provinces based on certain ethnic group such as Limbuwan, Tamsaling or Khumbuwan, etc.) and even threatening that if these demands are not fulfilled they will go for violence that ultimately induce conflict and tension.
When the Interim Constitution 2007 was negotiated by the major political parties, federalism was not explicitly included in the constitution, and even Maoists, who constantly raised this issue during the 10 years of the armed conflict, did not take a stand on the issue. In response, the Madheshi leaders burnt the newly promulgated Interim Constitution, protesting that the major political parties were not committed to federalism. The Madheshi movement resulted in the amendment of the Interim Constitution to include federalism.
As discussed in the Chapter 3, Nepal, as a centralised state, was not able to address the structural causes of the armed conflict (such as exclusion in its multiethnic society) or to manage the strongly ideologically based armed conflict. Hopefully, an appropriately designed and publicly owned federalism will help to transform the conflict and address the issues and concerns of Nepal as a multiethnic, multi-lingual and multi-cultural society.
5. Federalism as a means of conflict resolution
Poverty, structural inequalities, political oppression, social and political exclusion, gender, caste and ethnic-based discrimination, skewed distribution of the resources of production, corruption and continuous failure of the successive governments to address these structural problems were the root causes of the armed conflict in Nepal. The Maoist insurgency was merely the manifestation of these problems. Nepal’s feudal legacy, political instability, and feelings of injustice and frustration further contributed to the conflict.
The concentration of power and resources at the centre and the exclusion of the peripheries were common characteristics of Nepal for centuries. A federal governing system can address the problems associated with the distribution of power and resources, while also recognising and respecting diversity, thereby reducing conflict and tension. Principally, federalism also gives federal units the right to self-rule, giving them control over their own destiny, reducing the potential for rebellion against the state.
Nepal is not the only war-torn country to opt for federalism as part of the solution to its problems. Several countries have adopted or readopted federalism after armed conflict. Mexico (1971), Argentina and Venezuela (more than once), Nigeria (1966-70), Ethiopia (1991), Spain, Bosnia and Herzegovina, Sudan, Iraq, and the Democratic Republic of Congo are some other examples.
In Chapters 6 to 12 various aspects of federalism have been discussed to address the problems faced by the Nepal. They conceptually deal with how to allocate resources and power among and between federal units, how to overcome possible tensions among and between federal units and between the centre and the federal units, how to protect minority rights, how to establish mutual support among the federal units, and so forth.
6. Potential sources of conflict within federalism
Federalism is not a magic wand that can solve every contradiction existing in Nepalese society. The wrong handling of the implementation of federalism can cause civil war and disintegration of country (e.g., Yugoslavia and the USSR in 1991, the splitting of Czechoslovakia in 1992, Serbia and Montenegro in 2006, and the civil war in Nigeria in 1967). It can even be argued that the kind of federalism introduced is at least as important as whether or not federalism is introduced at all. The following are some potential problems with federalism and areas of potential conflict that must be anticipated in the federal design. The possible solutions to these problems have already been discussed in detail in Chapters 6 to 12.
6.1 Sharing fiscal power and resources
The sharing of fiscal power and resources is one of the main potential areas of conflict in a federal state. If appropriate mechanisms for the distribution of fiscal power are absent, it can create conflict later. Federal countries like Australia, Spain, Malaysia and Germany are relatively centralised in their distribution of fiscal powers (i.e., the central government has the main power to collect tax and other revenues), compared to Switzerland (which divide the right to taxation amongst the 3 levels), Brazil and Canada (which leave the right to raise revenue mainly in the hands of the federal units).
If revenue means and expenditure needs for the various federal units are mismatched, it can lead to tension and dysfunction. Anwar Shah argues:
Vertical fiscal gaps and revenue autonomy at sub-national orders of government remain areas of concern in federal countries where the centralisation of taxation powers is greater than necessary to meet federal expenditures, inclusive of its spending power. This leads to undue central influence and political control over sub-national policies, and can even undermine bottom up accountability. This is a concern at the state level in Australia, Germany, India, Mexico, Canada, Malaysia, Nigeria, Russia, Spain and South Africa .
Hence, clearly defining fiscal relations, tax assignment and tax-based revenue sharing mechanisms is crucial. Once the central government starts developing direct relations with local government, the relevance of the federal units in terms of economic issues may also be in question, despite their intact constitutional or political roles (like in Brazil, USA or Canada).
6.2 Protection of minorities, marginalised and excluded groups
One of the main causes of the armed conflict in Nepal was the exploitation, discrimination, marginalisation and social exclusion of certain communities/groups. The demand for a federal governing system is largely to address this problem. If the new federal governing system protects minorities, marginalised and excluded groups, then the possibility of conflict and tension related to these issues is reduced. Hence, the federal system adopted by Nepal must protect the rights of individuals and groups. For every decision that the CA makes on the federal system the question will have to be asked: what implications will it have for individuals, for Nepal and for communities/groups. What additional protective mechanisms are needed to really address these concerns?
6.3 Jurisdictional clarity
Experiences of different federal countries (such as Australia) demonstrate that jurisdictional tensions and conflicts are common when there is no clear definition of jurisdiction (distribution of powers) between the national and sub-national governing units. To avoid such problems, the constitution must clearly delineate between the jurisdictions of the various constitutional bodies, as well as of the different states, the states and the centre, and the states and local governing units. Dispute resolution mechanisms must also be in place to deal with any ambiguities.
6.4 Social divergence
Language, race, religion, social structures and cultural traditions in a federal system must be mutually and simultaneously reinforcing. If some factors or actors negatively highlight cleavages associated with these structures, social divisions mount and cause tension and conflict within and between federal units. In a multicultural federation like Nepal it is important to recognise the languages of the main minority groups. Nepal needs to learn from the intensity of language-related resentment in Pakistan, Malaysia, India and Nigeria. At the same time, however, institutional arrangements must be flexible enough to allow for a needs-based adjustment.
The experiences of Sudan, Sri Lanka and Spain show that political polarisation based on social divergence can lead to separatist movements and that state reactions and counter-reactions can make these demands stronger. There is a sad pattern of conflict escalation: Groups generally start by asking for non-discrimination and political representation. If this is not fulfilled, they demand self-rule. If, again, this demand is not fulfilled, then demands for federalism are voiced. If, again, concerns are not addressed, as a next step, demands for independence may arise. Hence, it is crucial that the governments of the federal units and the centre address these issues at the outset. Imposing identity, language and culture of one group, whether it is ethnic or caste group, over others will serve as perennial source of conflict.
6.5 Institutional arrangements
The nature, types and mandates of the institutional structures of federalism determine their degree and ability to address differences, conflict and tension within the federation. How the institutions accomplish tasks related to the electorate, bureaucracies, political parties, business sector and civil society, and how they deal with political conflict determine whether or not conflicts that emerge from social divergences and cleavages are resolved or escalate. Hence, the ability of institutions and the design of processes to generate cooperative approaches to bring about consensus are crucial to minimise conflict and promote self-rule and shared rule. Ensuring that the issues, concerns and voices of the people within the federal units are accommodated in decisions and that all concerned groups are represented in the legislature, civil service, executive and political party structures is also important. If certain groups are not adequately represented in the institutions of the federal units and centre they feel alienated and may start separatist activities, as observed in East Pakistan, which separated from Pakistan in 1971 to become Bangladesh.
The experiences of India and Nigeria demonstrate that if there are extreme differences between the federal units in terms of wealth and the size of the population this can create tension and stress and led to demands for the reorganisation of the boundaries of the federal units. If one federal unit dominates demographically or economically, tension and conflict between federal units is unavoidable.
7. Conflict resolution mechanisms
The proper functioning of a federal system requires dynamic conflict resolution mechanisms that are open, responsive and flexible. The following are some of the particularly important options or mechanisms for addressing potential conflict between the centre and states, and between states and local governments.
7.1 Inter-state council
Overlaps and interdependences in the use of power and resources between federal units and between the centre and federal units require frequent and often intensive engagement, coordination and collaboration to minimise conflict and tensions. An inter-state council (or council of states) is one of the possible mechanisms for resolving the political nature of conflict and any ambiguities arising between two or more federal units. Although their decisions may not be binding in nature, this mechanism can help to diffuse tension and facilitate collaboration. Such a mechanism may be even more effective in dealing with conflicts of interests, such as conflicts in the content of laws and decrees, which need political agreement. The Inter-State Council of India and the Council of Australian Governments (COAG) are two prominent examples of arrangements to oversee the collaboration process, to deal with potential conflict issues and to make the governing system more effective. Similarly, the Conference of Cantonal Governments in Switzerland has developed a strong collective negotiation with the central government.
Different formal arrangements have been made in different federal countries to deal with intergovernmental financial issues. For example, Malaysia has the National Finance Council, Australia the Commonwealth Grant Commission and South Africa the Financial and Fiscal Commission, which are all active in dealing with financial issues and related conflict.
7.2 Independent thematic commission
The sharing of natural resource among the federal units can generate enormous and frequent conflict between federal units. In such cases, an independent and powerful authority (such as a natural resources commission) established to address issues related to land, water, mines and minerals, hydro-power, and other resources, is necessary. The constitutional creation of a natural resources commission is a useful mechanism for resolving conflict and confusion related to the sharing and use of natural resources.
7.3 Provision for a referendum
Very clear provision for a referendum on highly contentious issues and issues of national importance should be included in the constitution to minimise conflict and strengthen democracy. Although a referendum is a means of conflict resolution, if not properly drafted, it can serve as a majoritarian device, which may divide the population into a majority-minority and serve as source of conflict. Hence, a careful assessment should be made when deciding on a referendum and all other possible options should be explored to narrow the issues for referendum.
8 Dealing with extremes
Some federal countries such as USSR, Yugoslavia and Spain have faced problems of separation. Ronald Watts argues that the constitutions of all federal countries explicitly or implicitly prohibit the unilateral secession of federal units. However, wherever separatist movements appear, they are acting extra constitutionally anyway. In the case of a unilateral decision by a federal unit to secede, the central government often enforces federal constitutions on unwilling federal units. In some cases, such enforcement has resulted in civil war (like in Pakistan in 1971 and Yugoslavia from 1991 to 1995). In others, such enforcement has succeeded in keeping the country intact, such as in the USA (1861-1865), Switzerland (1847 though there was a short civil war) and Nigeria (1967-1970). But, sometimes, secession from a federation happens without bloody conflict or civil war. Malaysia expelled Singapore in 1956 after two years of its inclusion because of political tensions. The separation of Czechoslovakia in 1993 (into the Czech Republic and Slovak Republic) was largely based on the mutual interests of regional parties to separate, and, therefore, they accelerated political polarisation. The separation of Serbia and Montenegro in 2006 was very much guided by the hope of gaining individual membership to the European Union. Various cases of federal countries demonstrate that dealing with extremes requires a combination of political, diplomatic and security approaches, and a willingness by the central government to listen and share more power and resources, as well as the willingness of all groups to cooperate within the country.
Although the risk of secession is often association with federation, it is important to realise that secession or separatist movements can happen in any system. Numerous domestic conflicts and civil wars have occurred in countries with unitary governing systems. Ethnic radicalisation and extremism in multiethnic societies without tolerance and co-existence may contribute to ethnic conflict and may turn into civil unrest.
9. Conclusions
Federalism is not magic to solve all problems. In principle, it is neither bad nor good. Success or failure of federalism depends upon how politicians exercise implementation of federalism.
The basic essence of federalism is a governing system of shared rule and self-rule. Hence, federalism is a governing system in which power is divided between central and sub-national units with delimited self-governing authority. If these principles are internalised many conflicts and tension can be addressed.
The success or failure of federalism in Nepal depends upon the degree of public acceptance of the form of federalism adopted and the degree of implementation of the basic values and process of federalism. Extreme radicalisation of issues and undermining the existence and identity of others will create conflict and make the federal system dysfunctional. Recognition of multiple identities, accommodation of the needs and interests of others, and understanding and sensitivity are some of the fundamental elements required, particularly at the beginning, to operationalise federalism.
The comprehensive work of Ronald Watts (2008) on comparing federal systems across the world highlights that the sources of tension and stress within federal systems are the cumulative effect of different factors and no single condition, institutional arrangement or strategy is responsible. When different social cleavages reinforce each other, the process of polarisation starts and conflict develops. Therefore, one of the fundamental tasks of federal institutions is to address these cleavages before they turn into conflict. Political strategies for effective negotiation can help reduce polarisation; therefore, federal institutions should be designed to create that space.
Federalisation has been used as a means of conflict resolution in many countries in the past few decades. For example, Bosnia and Herzegovina, Sudan, Iraq and the Democratic Republic of Congo all opted for federalism as a way of resolving civil war and armed conflict. One of the big challenges in such a situation is to establish mutual trust and the necessary conditions for a federal system.
Nepal has opted for federal system to end all sorts of discrimination and to promote inclusive democracy. The key actors have to respect each other and all of the different groups and develop mutual trust to collectively work to establish the necessary conditions for the functioning of a federal system. Some researchers, like Daniel Elazar, argue that a federal system with a highly ethnic orientation in a multiethnic society may not be workable and has a high risk of erupting into ethnic conflict and civil war. Nepal must certainly take care in designing its federal system to minimise the risk of this happening.
Reference and selected literature for further reading
Elazar DJ. 1993. International and Comparative Federalism. Political Science and Politics. 26 (2), Pp. 190-195.
Frank T. 1966. Why federations fail: An inquiry into the requisites for a successful federation. New York: New York University press.
Hicks UK. 1978. Federalism: Failure and success: A comparative study. London: Macmillan.
Landau M. 1973. Federalism, Redundancy and System Reliability. The Journal of Federalism. (3) 2. Pp. 173-195.
Panday DR. 1999. Nepal’s Failed Development: Reflections on the Mission and the Melodies. Kathmandu: Nepal South Asia Centre.
Pennock JR. 1995. Federal and unitary government: Disharmony and reliability. Behavioural Science. (4) 2. Pp. 147-157.
Shrestha NR. 1997. In the Name of Development: A Reflection in Nepal. Kathmandu: Educational Enterprise.
Upreti BR. 2009. Nepal from war to peace. Legacies of the past and hopes for the future. Nepal Delhi: Adroit Publishers.
Watts R. 2008. Comparing federal systems. Third edition. Montreal: McGill – Queen’s University Press.
Nepal’s governance system for the several decades after the political change of 1950 used various approaches to decentralisation and participation. The Local Self Governance Act 1999 was one of the latest efforts to achieve decentralisation. However, all these efforts were not able to achieve the desired outcome. The centralisation of power and resources at the political-level in development areas did not change much, and the decades of decentralisation efforts were unsuccessful in ensuring the inclusion and participation of people in decision making, even after the political change of 1990 (Jana Andolan I). The governments after the political change of 1990 made some efforts to achieve decentralisation and some achievements were made in specific sectors, such as community forestry, but at the structural level these efforts were not able to achieve the full decentralisation, inclusion and participation of people in state affairs (Shrestha, 1997; Pandey, 1999). This led to dissatisfaction and frustration, creating favourable ground for the armed conflict and contention (Upreti, 2009). Hence, the debate on the need for a different governing structure, i.e., a federal structure, started. After Jana Andolan II in April 2006, the need for a system such as federalism capable of addressing the problems of a unitary state became more prominent. This chapter discusses the potential of federalism to address conflict and proposes some mechanisms for addressing possible conflict arising within federal structures.
2 The call for federalism in Nepal
When the king imposed absolute autocratic rule on 1 February 2005, the need for fundamental change (which had earlier been realised by the CPN [M]) was realised by all major political forces in Nepal. The preamble of the 12-point understanding reached between the SPA and the CPN (M) on 22 November 2005 expressed this need, calling for democracy, an end to the monarch and a new political structure:
The long struggle between absolute monarchy and democracy in Nepal has now reached a very grave and new turn. Establishing peace by resolving the 10-year old armed conflict through a forward-looking political outlet has become the need of today. Therefore, implementing the concept of absolute democracy through a forward-looking restructuring of the state has become an inevitable need to solve the problems related to class, caste, gender, region, etc. of all sectors including political, economic, social and cultural, bringing autocratic monarchy to an end and establishing absolute democracy.
This need was further refined in the CPA, which in its preamble “Pledg[es] for the progressive restructuring of the state…” and “Reiterat[es] commitments to competitive multiparty democratic system, civil liberties, fundamental rights, human rights, complete press freedom, rule of law and all other norms and values of democratic system”.
Article 3.4 of the CPA reaffirms the commitment to, among other things, a “political system that fully comprehends the concepts of universally adopted principles of fundamental human rights, multiparty competitive democratic system…”.
Article 3.5 of the CPA undertakes to: “End the existing centralised and unitary state system and restructure it into an inclusive, democratic progressive system…” It proposes to “… address various problems including that of women, Dalits, indigenous community, Madheshis, oppressed, ignored and minority communities, backward regions by ending prevailing class, ethnic, linguistic, gender, cultural, religious and regional discrimination”.
The state restructuring provisions of the CPA were enshrined in the Interim Constitution 2007. Article 138 1) (as amended on 12 April and 12 July 2008) of Part 17 (Structure of state and local self governance) of the Interim Constitutions proposes:
To bring an end to discrimination based on class, caste, language, gender, culture, religion and region by eliminating the centralised and unitary form of the state, the state shall be made inclusive and restructured into a progressive, democratic federal system.
The end of the unitary and centralised state was agreed upon. However, federalism was not necessarily explicitly envisioned as the form of state restructuring. Though the 23 point agreement (2007) vaguely stated federal issues other major agreements or of the Interim Constitution were not much referring to federalism. In 2008, the Interim Constitution 2007 was amended to incorporate term federalism, in response to the ethnic/regional (Madhesh) movement. The fifth amendment to the Interim Constitution on 12 July 2008 states:
Accepting the aspirations of indigenous ethnic groups, and the people of the backward and other regions, and the people of Madhesh, for autonomous provinces, Nepal shall be a Federal Democratic Republic.
The amendment further provides that:
The provinces shall be autonomous, with full rights. The Constituent Assembly shall determine the number, boundary, names and structures of the autonomous provinces and the distribution of powers and resources, while maintaining the sovereignty, unity and integrity of Nepal.
The Constituent Assembly is now working on translating these principles into practice in the new constitution. Various committees are working to deal with specific issues of the constitution (see Box 1).
Box 1 The CA Committees
Thematic committees:
1. Constitutional Committee
2. State Restructuring and Resource Allocation Committee
3. Fundamental Right and Directive Principle Committee
4. Minorities and Marginalized Communities Right Protection Committee
5. Legislative Organs Delineation Committee
6. State Rules Delineation Committee
7. Judiciary Committee
8. Constitutional Body Delineation Committee
9. Natural Resource, Economic Rights and Revenue Allocation Committee
10. Cultural and Social Solidarity Delineation Committee
11. National Interests Protection Committee
Procedural committees:
12. Civil Relationship Committee
13. Public Opinion Collection and Coordination Committee
14. Capacity Enhancement and Resource Management Committee
Among them, the Constitutional Committee is vitally important in drafting the constitution, based on the technical work on thematic issues done by other committees. The State Restructuring and Resource Allocation Committee is charged with the task of developing a concept of how to restructure the state and allocate the resources that will minimise conflict. Similarly, the Minorities and Marginalized Communities Right Protection Committee will address the issues of exclusion and protection of minority rights, which was one of the main causes of conflict in the past. The Natural Resource, Economic Rights and Revenue Allocation Committee will develop a concept of resource allocation in such a way that it will minimise future potential conflict. The National Interests Protection Committee will put forward concepts and proposals on vital national interests to be protected, which will ultimately minimise the potential for future conflict.
3 Objections to federalism in Nepal
In Nepal, all of the 25 political parties represented in the CA, except for one (Rastriya Janamorcha), have accepted the federal political system. Only, Rastriya Janamorcha vehemently opposes federalism. The party’s concerns and arguments are that federalism:
• Weakens sovereignty and increases the risk of disintegration of the nation
• Promotes communal disharmony and ethnic conflict
• When states are based on ethnicity, promotes hatred against each other
• Erodes national feeling and weakens national identity, while strengthening ethnic and communal identity
• Is not the Nepali people's agenda, but is coming from the vested interests of India to keep Nepal weak and instable
• Leads to the breakdown of national political parties into regional ones, which causes related tensions
• Leads to discrimination of people within the nation as the rules of different states vary
• Results in ineffective delivery of government services
• Is operationally expensive, not sustainable for Nepal
• Brings unanticipated consequences and problems
Some intellectuals argue that federalism is mainly suitable for unifying separate small states, but is not appropriate to separate a unified state. On the political front, Rastriya Janamorcha argues that federalism was introduced by a few elite politicians under external influence who wrongly equated a centralised state with a unitary state. They believe that decentralisation would have been sufficient to address concerns that other politicians want to address through federalism.
The opposition of Rastriya Janamorcha to federalism has provided ample inputs for decision makers to ponder the challenges involved in implementing federalism and the measures that need to be taken to address the concerns raised by Rastriya Janamorcha. Proper debate on the benefits and limits of federalism can help to avoid deficiencies in design and implementation.
4. Problems inherent in centralised and unitary states
Conceptually, unitary and centralised states are different. However, in the case of Nepal, these two concepts are heavily intertwined. Nepal has been a unitary country since its inception in 1768. A unitary state is a country constitutionally governed with one constitutionally created legislature as a single unit. The political power of government in unitary state may be transferred to lower levels at regional or local governing, but the central government retains the principal right to recall such delegated power. Many unitary states have very good decentralisation. However, in the centralised state, the system of governance (political power) is heavily centralised (i.e., power is exercised by the central government only, and not divided between different levels of government). The Nepalese people and politicians have understood these two concepts (unitary and centralised) as the same and used the terms interchangeably. In contrast, a unitary system can be decentralised (one source of power, but exercised at different levels: central, district and local), and attempts were made to do this in Nepal in the 1990s, but, for various reasons, real power was never devolved from the centre to the districts.
The political history of Nepal demonstrates that a unitary state, dominated by centralised governing practices, cannot address the needs and interests of the Nepalese people. This is mainly because of Nepal’s multiethnic, multi-religious and multicultural character. The concentration of power and resources at the centre and in the hands of the power elite, excluded large sections of society (women, Dalits, ethnic groups, people from remote regions and other marginalised groups). Further, the centralised political system led to a centralised bureaucracy, judiciary and security, largely inaccessible to those outside the mainstream culture. The centralisation of power in the hands of a few also led to corruption and irregularities, which became an integral part of the political process. The political elite used their positions to further their own interests and the system of afno manchhe (literally translated ‘own people’) made nepotism and corruption structurally embedded. One of the main reasons for exclusion was the failure of the ruling elite to recognise the importance of the involvement of excluded people in the state building process. For stability, it is important to build an inclusive state; one of the arrangements that can facilitate this is a federal structure created by a new process of nation building, involving people and sharing power.
Nepal as a unitary state was also unsuccessful in generating employment opportunities for the large mass of unemployed people. Semi-educated, unemployed and left-out youths became frustrated and a source of conflict and insecurity. If social and economic structures and their governing practices promote and protect elite-biased, power-centred and discriminatory social practices, the potential for social tension and violent conflict is high. The inability of the state to deal with the socio-economic sources of the armed conflict – poverty, social evils and perversions such as ‘untouchability’, other forms of discrimination based on caste, class, religion and gender, injustice and inequality, and lack of access to and control over resources and basic services – and its propensity to even directly and indirectly perpetuate these sources, fuelled feelings of injustice and frustration, and a deep dissatisfaction with the government. When there is great dissatisfaction with government performance and rebellious sentiment in suppressed people, social tension is inevitable.
The ethnic dimensions of the political change from a unitary to a federal system in Nepal are very strong. There are wide differences between ethnic groups and caste groups in Nepal based on language, religious practices, legal and judicial systems, indigenous arrangements, representation, citizenship and distribution of state privileges. Although the ethnic movement existed earlier, it emerged strongly during the popular movement of the 1990s. The political change of the 1990s failed to properly address the aspirations of the various ethnic groups. Maoist insurgency capitalised on this by supporting ethnic groups to seek their rights and articulate their demands, bringing the ethnic movement to a turning point.
In the beginning, the pro-Maoist ethnic movement focused on the right to self-determination (it was not clearly explained whether or not this meant a separate state/country or full autonomy within the sovereign country), whereas the non-Maoist ethnic movement focused on guaranteed autonomy through a federal system. The Maoist documents during the ten years of the armed conflict clearly highlighted this issue. However, this distinction gradually faded and the focus shifted to a radical ethnic identity demanding ethnic federalism with the right to self-determination coloured by anti-caste radicalism. Now the ethnic demands coming from ethnic leaders are too one sided that deny the co-existence, seek special privileges such as prior rights and impose the ethnic supremacy over other people 9e.g., naming provinces based on certain ethnic group such as Limbuwan, Tamsaling or Khumbuwan, etc.) and even threatening that if these demands are not fulfilled they will go for violence that ultimately induce conflict and tension.
When the Interim Constitution 2007 was negotiated by the major political parties, federalism was not explicitly included in the constitution, and even Maoists, who constantly raised this issue during the 10 years of the armed conflict, did not take a stand on the issue. In response, the Madheshi leaders burnt the newly promulgated Interim Constitution, protesting that the major political parties were not committed to federalism. The Madheshi movement resulted in the amendment of the Interim Constitution to include federalism.
As discussed in the Chapter 3, Nepal, as a centralised state, was not able to address the structural causes of the armed conflict (such as exclusion in its multiethnic society) or to manage the strongly ideologically based armed conflict. Hopefully, an appropriately designed and publicly owned federalism will help to transform the conflict and address the issues and concerns of Nepal as a multiethnic, multi-lingual and multi-cultural society.
5. Federalism as a means of conflict resolution
Poverty, structural inequalities, political oppression, social and political exclusion, gender, caste and ethnic-based discrimination, skewed distribution of the resources of production, corruption and continuous failure of the successive governments to address these structural problems were the root causes of the armed conflict in Nepal. The Maoist insurgency was merely the manifestation of these problems. Nepal’s feudal legacy, political instability, and feelings of injustice and frustration further contributed to the conflict.
The concentration of power and resources at the centre and the exclusion of the peripheries were common characteristics of Nepal for centuries. A federal governing system can address the problems associated with the distribution of power and resources, while also recognising and respecting diversity, thereby reducing conflict and tension. Principally, federalism also gives federal units the right to self-rule, giving them control over their own destiny, reducing the potential for rebellion against the state.
Nepal is not the only war-torn country to opt for federalism as part of the solution to its problems. Several countries have adopted or readopted federalism after armed conflict. Mexico (1971), Argentina and Venezuela (more than once), Nigeria (1966-70), Ethiopia (1991), Spain, Bosnia and Herzegovina, Sudan, Iraq, and the Democratic Republic of Congo are some other examples.
In Chapters 6 to 12 various aspects of federalism have been discussed to address the problems faced by the Nepal. They conceptually deal with how to allocate resources and power among and between federal units, how to overcome possible tensions among and between federal units and between the centre and the federal units, how to protect minority rights, how to establish mutual support among the federal units, and so forth.
6. Potential sources of conflict within federalism
Federalism is not a magic wand that can solve every contradiction existing in Nepalese society. The wrong handling of the implementation of federalism can cause civil war and disintegration of country (e.g., Yugoslavia and the USSR in 1991, the splitting of Czechoslovakia in 1992, Serbia and Montenegro in 2006, and the civil war in Nigeria in 1967). It can even be argued that the kind of federalism introduced is at least as important as whether or not federalism is introduced at all. The following are some potential problems with federalism and areas of potential conflict that must be anticipated in the federal design. The possible solutions to these problems have already been discussed in detail in Chapters 6 to 12.
6.1 Sharing fiscal power and resources
The sharing of fiscal power and resources is one of the main potential areas of conflict in a federal state. If appropriate mechanisms for the distribution of fiscal power are absent, it can create conflict later. Federal countries like Australia, Spain, Malaysia and Germany are relatively centralised in their distribution of fiscal powers (i.e., the central government has the main power to collect tax and other revenues), compared to Switzerland (which divide the right to taxation amongst the 3 levels), Brazil and Canada (which leave the right to raise revenue mainly in the hands of the federal units).
If revenue means and expenditure needs for the various federal units are mismatched, it can lead to tension and dysfunction. Anwar Shah argues:
Vertical fiscal gaps and revenue autonomy at sub-national orders of government remain areas of concern in federal countries where the centralisation of taxation powers is greater than necessary to meet federal expenditures, inclusive of its spending power. This leads to undue central influence and political control over sub-national policies, and can even undermine bottom up accountability. This is a concern at the state level in Australia, Germany, India, Mexico, Canada, Malaysia, Nigeria, Russia, Spain and South Africa .
Hence, clearly defining fiscal relations, tax assignment and tax-based revenue sharing mechanisms is crucial. Once the central government starts developing direct relations with local government, the relevance of the federal units in terms of economic issues may also be in question, despite their intact constitutional or political roles (like in Brazil, USA or Canada).
6.2 Protection of minorities, marginalised and excluded groups
One of the main causes of the armed conflict in Nepal was the exploitation, discrimination, marginalisation and social exclusion of certain communities/groups. The demand for a federal governing system is largely to address this problem. If the new federal governing system protects minorities, marginalised and excluded groups, then the possibility of conflict and tension related to these issues is reduced. Hence, the federal system adopted by Nepal must protect the rights of individuals and groups. For every decision that the CA makes on the federal system the question will have to be asked: what implications will it have for individuals, for Nepal and for communities/groups. What additional protective mechanisms are needed to really address these concerns?
6.3 Jurisdictional clarity
Experiences of different federal countries (such as Australia) demonstrate that jurisdictional tensions and conflicts are common when there is no clear definition of jurisdiction (distribution of powers) between the national and sub-national governing units. To avoid such problems, the constitution must clearly delineate between the jurisdictions of the various constitutional bodies, as well as of the different states, the states and the centre, and the states and local governing units. Dispute resolution mechanisms must also be in place to deal with any ambiguities.
6.4 Social divergence
Language, race, religion, social structures and cultural traditions in a federal system must be mutually and simultaneously reinforcing. If some factors or actors negatively highlight cleavages associated with these structures, social divisions mount and cause tension and conflict within and between federal units. In a multicultural federation like Nepal it is important to recognise the languages of the main minority groups. Nepal needs to learn from the intensity of language-related resentment in Pakistan, Malaysia, India and Nigeria. At the same time, however, institutional arrangements must be flexible enough to allow for a needs-based adjustment.
The experiences of Sudan, Sri Lanka and Spain show that political polarisation based on social divergence can lead to separatist movements and that state reactions and counter-reactions can make these demands stronger. There is a sad pattern of conflict escalation: Groups generally start by asking for non-discrimination and political representation. If this is not fulfilled, they demand self-rule. If, again, this demand is not fulfilled, then demands for federalism are voiced. If, again, concerns are not addressed, as a next step, demands for independence may arise. Hence, it is crucial that the governments of the federal units and the centre address these issues at the outset. Imposing identity, language and culture of one group, whether it is ethnic or caste group, over others will serve as perennial source of conflict.
6.5 Institutional arrangements
The nature, types and mandates of the institutional structures of federalism determine their degree and ability to address differences, conflict and tension within the federation. How the institutions accomplish tasks related to the electorate, bureaucracies, political parties, business sector and civil society, and how they deal with political conflict determine whether or not conflicts that emerge from social divergences and cleavages are resolved or escalate. Hence, the ability of institutions and the design of processes to generate cooperative approaches to bring about consensus are crucial to minimise conflict and promote self-rule and shared rule. Ensuring that the issues, concerns and voices of the people within the federal units are accommodated in decisions and that all concerned groups are represented in the legislature, civil service, executive and political party structures is also important. If certain groups are not adequately represented in the institutions of the federal units and centre they feel alienated and may start separatist activities, as observed in East Pakistan, which separated from Pakistan in 1971 to become Bangladesh.
The experiences of India and Nigeria demonstrate that if there are extreme differences between the federal units in terms of wealth and the size of the population this can create tension and stress and led to demands for the reorganisation of the boundaries of the federal units. If one federal unit dominates demographically or economically, tension and conflict between federal units is unavoidable.
7. Conflict resolution mechanisms
The proper functioning of a federal system requires dynamic conflict resolution mechanisms that are open, responsive and flexible. The following are some of the particularly important options or mechanisms for addressing potential conflict between the centre and states, and between states and local governments.
7.1 Inter-state council
Overlaps and interdependences in the use of power and resources between federal units and between the centre and federal units require frequent and often intensive engagement, coordination and collaboration to minimise conflict and tensions. An inter-state council (or council of states) is one of the possible mechanisms for resolving the political nature of conflict and any ambiguities arising between two or more federal units. Although their decisions may not be binding in nature, this mechanism can help to diffuse tension and facilitate collaboration. Such a mechanism may be even more effective in dealing with conflicts of interests, such as conflicts in the content of laws and decrees, which need political agreement. The Inter-State Council of India and the Council of Australian Governments (COAG) are two prominent examples of arrangements to oversee the collaboration process, to deal with potential conflict issues and to make the governing system more effective. Similarly, the Conference of Cantonal Governments in Switzerland has developed a strong collective negotiation with the central government.
Different formal arrangements have been made in different federal countries to deal with intergovernmental financial issues. For example, Malaysia has the National Finance Council, Australia the Commonwealth Grant Commission and South Africa the Financial and Fiscal Commission, which are all active in dealing with financial issues and related conflict.
7.2 Independent thematic commission
The sharing of natural resource among the federal units can generate enormous and frequent conflict between federal units. In such cases, an independent and powerful authority (such as a natural resources commission) established to address issues related to land, water, mines and minerals, hydro-power, and other resources, is necessary. The constitutional creation of a natural resources commission is a useful mechanism for resolving conflict and confusion related to the sharing and use of natural resources.
7.3 Provision for a referendum
Very clear provision for a referendum on highly contentious issues and issues of national importance should be included in the constitution to minimise conflict and strengthen democracy. Although a referendum is a means of conflict resolution, if not properly drafted, it can serve as a majoritarian device, which may divide the population into a majority-minority and serve as source of conflict. Hence, a careful assessment should be made when deciding on a referendum and all other possible options should be explored to narrow the issues for referendum.
8 Dealing with extremes
Some federal countries such as USSR, Yugoslavia and Spain have faced problems of separation. Ronald Watts argues that the constitutions of all federal countries explicitly or implicitly prohibit the unilateral secession of federal units. However, wherever separatist movements appear, they are acting extra constitutionally anyway. In the case of a unilateral decision by a federal unit to secede, the central government often enforces federal constitutions on unwilling federal units. In some cases, such enforcement has resulted in civil war (like in Pakistan in 1971 and Yugoslavia from 1991 to 1995). In others, such enforcement has succeeded in keeping the country intact, such as in the USA (1861-1865), Switzerland (1847 though there was a short civil war) and Nigeria (1967-1970). But, sometimes, secession from a federation happens without bloody conflict or civil war. Malaysia expelled Singapore in 1956 after two years of its inclusion because of political tensions. The separation of Czechoslovakia in 1993 (into the Czech Republic and Slovak Republic) was largely based on the mutual interests of regional parties to separate, and, therefore, they accelerated political polarisation. The separation of Serbia and Montenegro in 2006 was very much guided by the hope of gaining individual membership to the European Union. Various cases of federal countries demonstrate that dealing with extremes requires a combination of political, diplomatic and security approaches, and a willingness by the central government to listen and share more power and resources, as well as the willingness of all groups to cooperate within the country.
Although the risk of secession is often association with federation, it is important to realise that secession or separatist movements can happen in any system. Numerous domestic conflicts and civil wars have occurred in countries with unitary governing systems. Ethnic radicalisation and extremism in multiethnic societies without tolerance and co-existence may contribute to ethnic conflict and may turn into civil unrest.
9. Conclusions
Federalism is not magic to solve all problems. In principle, it is neither bad nor good. Success or failure of federalism depends upon how politicians exercise implementation of federalism.
The basic essence of federalism is a governing system of shared rule and self-rule. Hence, federalism is a governing system in which power is divided between central and sub-national units with delimited self-governing authority. If these principles are internalised many conflicts and tension can be addressed.
The success or failure of federalism in Nepal depends upon the degree of public acceptance of the form of federalism adopted and the degree of implementation of the basic values and process of federalism. Extreme radicalisation of issues and undermining the existence and identity of others will create conflict and make the federal system dysfunctional. Recognition of multiple identities, accommodation of the needs and interests of others, and understanding and sensitivity are some of the fundamental elements required, particularly at the beginning, to operationalise federalism.
The comprehensive work of Ronald Watts (2008) on comparing federal systems across the world highlights that the sources of tension and stress within federal systems are the cumulative effect of different factors and no single condition, institutional arrangement or strategy is responsible. When different social cleavages reinforce each other, the process of polarisation starts and conflict develops. Therefore, one of the fundamental tasks of federal institutions is to address these cleavages before they turn into conflict. Political strategies for effective negotiation can help reduce polarisation; therefore, federal institutions should be designed to create that space.
Federalisation has been used as a means of conflict resolution in many countries in the past few decades. For example, Bosnia and Herzegovina, Sudan, Iraq and the Democratic Republic of Congo all opted for federalism as a way of resolving civil war and armed conflict. One of the big challenges in such a situation is to establish mutual trust and the necessary conditions for a federal system.
Nepal has opted for federal system to end all sorts of discrimination and to promote inclusive democracy. The key actors have to respect each other and all of the different groups and develop mutual trust to collectively work to establish the necessary conditions for the functioning of a federal system. Some researchers, like Daniel Elazar, argue that a federal system with a highly ethnic orientation in a multiethnic society may not be workable and has a high risk of erupting into ethnic conflict and civil war. Nepal must certainly take care in designing its federal system to minimise the risk of this happening.
Reference and selected literature for further reading
Elazar DJ. 1993. International and Comparative Federalism. Political Science and Politics. 26 (2), Pp. 190-195.
Frank T. 1966. Why federations fail: An inquiry into the requisites for a successful federation. New York: New York University press.
Hicks UK. 1978. Federalism: Failure and success: A comparative study. London: Macmillan.
Landau M. 1973. Federalism, Redundancy and System Reliability. The Journal of Federalism. (3) 2. Pp. 173-195.
Panday DR. 1999. Nepal’s Failed Development: Reflections on the Mission and the Melodies. Kathmandu: Nepal South Asia Centre.
Pennock JR. 1995. Federal and unitary government: Disharmony and reliability. Behavioural Science. (4) 2. Pp. 147-157.
Shrestha NR. 1997. In the Name of Development: A Reflection in Nepal. Kathmandu: Educational Enterprise.
Upreti BR. 2009. Nepal from war to peace. Legacies of the past and hopes for the future. Nepal Delhi: Adroit Publishers.
Watts R. 2008. Comparing federal systems. Third edition. Montreal: McGill – Queen’s University Press.
Nepal's Peace Process:Scenarios, Risks and Early Warning
1. Achievements in nepal's peace process
Great structural achievements in short time: New theory of conflict transformation
Change in power relations
People's movement
Power sharing: Interim Parliament, Interim government
CPA (UNMIN, AAMMA)
'Constructive role of PLA' and NA
Interim constitution
CA election
Inclusion (global record)
Peaceful republic
Largely an indigenous process
Constitutional change: Moving from consensus to competition, source of problems
Change in situation after CA election:
Change in power relations
Politics of mistrusts and suspension
Moving towards complicated direction
Contradiction: state supremacy v/s party supremacy
2. Current situation
Actions guided by severe mistrust and distrust
Weak implementation of agreements
Monitoring of peace process: Undermined no mechanisms
Dealing with military (both sides): politicised
Transitional justice, HR and transitional security: Sidelined
Poor handling of foreign relations (e.g., France, neighbours, UN)
New phenomena developed
Reactive politics
Criminalisation of politics and politicisation of crime
Militarization of youth and radicalisation of society
3. Scenarios, risks and early warning
Positive, right direction and good achievements
Less likely if the current approach is not change
Messy, complex and frustrating with less outcomes
Higher possibility
Worsening, deteriorating with no outcomes
More likely considering the current actions and behaviours of our leaders
Worst: civil war and state failure
Potential flash points observed
Foreign play ground (e.g., Somalia, Afghanistan)
Who loses if war? Nepalese people, political parties
Who wins if war? Arms smugglers, those who do not want peace
Do parties want 4th scenario?
4. Ways ahead
Fundamental review of the peace process for what went wrong, why and how
Content: what are major issues of contention
Process: how and why went wrong
Time frame: when and where went wrong
Introspection and self reflections by leaders
Immediately stop blame games (created negative social psyche and discrediting leaders)
80 % role in escalating tension
Constructive engagement
trust building
Exploring options (every thing has option other than death), their feasibility, resource requirements
Opt for consensus politics (revise IC?)
Use available knowledge base and experiences
Agree on minimum tasks to be accomplished before new constitution
Major tasks ahead for making peace process sucessful:
Constitution making
Integration and rehabilitation of Maoist combatants
Peace dividends to people
Improving security: law and order
Dealing with past and transitional justice
TRC
Reparation
IDPs
Disappeared
Other conflict victims
Security Sector Governance and Reform
Border management
Control of small arms
Post-conflict reconstruction
Great structural achievements in short time: New theory of conflict transformation
Change in power relations
People's movement
Power sharing: Interim Parliament, Interim government
CPA (UNMIN, AAMMA)
'Constructive role of PLA' and NA
Interim constitution
CA election
Inclusion (global record)
Peaceful republic
Largely an indigenous process
Constitutional change: Moving from consensus to competition, source of problems
Change in situation after CA election:
Change in power relations
Politics of mistrusts and suspension
Moving towards complicated direction
Contradiction: state supremacy v/s party supremacy
2. Current situation
Actions guided by severe mistrust and distrust
Weak implementation of agreements
Monitoring of peace process: Undermined no mechanisms
Dealing with military (both sides): politicised
Transitional justice, HR and transitional security: Sidelined
Poor handling of foreign relations (e.g., France, neighbours, UN)
New phenomena developed
Reactive politics
Criminalisation of politics and politicisation of crime
Militarization of youth and radicalisation of society
3. Scenarios, risks and early warning
Positive, right direction and good achievements
Less likely if the current approach is not change
Messy, complex and frustrating with less outcomes
Higher possibility
Worsening, deteriorating with no outcomes
More likely considering the current actions and behaviours of our leaders
Worst: civil war and state failure
Potential flash points observed
Foreign play ground (e.g., Somalia, Afghanistan)
Who loses if war? Nepalese people, political parties
Who wins if war? Arms smugglers, those who do not want peace
Do parties want 4th scenario?
4. Ways ahead
Fundamental review of the peace process for what went wrong, why and how
Content: what are major issues of contention
Process: how and why went wrong
Time frame: when and where went wrong
Introspection and self reflections by leaders
Immediately stop blame games (created negative social psyche and discrediting leaders)
80 % role in escalating tension
Constructive engagement
trust building
Exploring options (every thing has option other than death), their feasibility, resource requirements
Opt for consensus politics (revise IC?)
Use available knowledge base and experiences
Agree on minimum tasks to be accomplished before new constitution
Major tasks ahead for making peace process sucessful:
Constitution making
Integration and rehabilitation of Maoist combatants
Peace dividends to people
Improving security: law and order
Dealing with past and transitional justice
TRC
Reparation
IDPs
Disappeared
Other conflict victims
Security Sector Governance and Reform
Border management
Control of small arms
Post-conflict reconstruction
Subscribe to:
Posts (Atom)
