Solving Intergovernmental Rows
Chief Minister of the Province 4 (Gandaki Pradesh) has argued that the proposed Uttarganga hydropower project should be constructed in Baglung under management and purview of the provincial government. He has also contended that around fifty percent of the total power generated in the country is derived from the rivers in the Province 4 whereas the share of the royalty is not commensurate to it. Similarly, the chief minister of the Province 3 Dormani Poudyal has announced his provincial government plans to construct central level projects, like fast track road which tends to duplicate with the schemes of the federal government. These assertions on the part of provincial chief ministers portend the potential issues that may give rise to intergovernmental conflicts especially related with distribution of resources and development dividends.
Needless to say, Constitution of Nepal provides for three-tiered structures - federal, province and local level government. An important feature of the constitution is that it has recognised explicitly the provincial and local government as the constituent units of the state. Article 56 of the Constitution mentions that the federal, provincial and local government shall exercise state authority as per the respective mandates and competencies enshrined in schedules 5 to 9 of the Constitution. This type of entrenchment and recognition, given to local level government, is not generally the case in the federal countries elsewhere except the few. The local level government in Nepal is, thus, an independent, indestructible and autonomous sphere subject only to the provisions in the Constitution and law of the land. As mentioned in the Constitution, it cannot be dissolved on whatever grounds it may be. As provided in Article 56 (2) of the Constitution, it is not a subordinate entity to be controlled and subjected to provinces like in India, Pakistan and Malaysia. Under federal arrangement in Nepal, the structure theoretically appears clear – federal, province and local level. But the risks exist that the government at the federal, province and local level can create their own extensions, arms and wings both vertically and horizontally making the structures inefficient and bloated.
Needless to elaborate, a separate list of functions and competencies for the three levels of the government have been provided. The lists are intended to ensure autonomy and self-rule in the roles and functions embodied in the respective schedules while inclusion of the local level government representatives in the electoral college for upper house of the federal parliament and provision of the concurrent list given in schedule 9 of the Constitution are the indicative examples of the principles of the shared rule. The self-rule and shared rule are key principles of the federal organisation of the state.
The federal Constitution of Nepal schematises three kinds of functional jurisdictions for three levels of the government. They are the exclusive-(enumerated), concurrent and residuary jurisdictions. The frontline service delivery function has been entrusted to local level government while the national level mandates, policy formulation and standard setting and redistributive functions have been entrusted to the federal level government. The cooperative, not competitive type federalism has been envisaged in terms of distribution of functional jurisdiction where three levels of the government are involved in discharging the same function with different roles and capacity. It is a form of collaborative federalism where all levels of the governments have to cooperate and collaborate to execute the function based on their competencies and mandates
Competitive federalism exists nowhere in the world. Since the Great Depression of 1930 in the United States, the US federalism has been gradually turned into cooperative federalism. Having outlined some of the features related with divisions of functions among the three levels of the government in the constitution of Nepal, it will also be relevant to note some discrepancies seen in the constitutional provision especially with regard to allocation of functions. Some overlaps and contradictions exist in the allocation of functions and authority among the three levels of the governments. For example, education, health and agriculture are provided in the concurrent list while these also fall within the exclusive functional jurisdictions of the local level government.
Moreover, collecting Tourism Fee (Paryatan Sulka) has been given both to local, province and federal government. This has given avenues for the pre-emptive legislation of federal government. In this state of confusion and contradiction, federal government can resort to preemptive legislation to assert its authority over concurrent functions undermining the spirit of the self-rule of federalism. In regard to several issues and functions, there exists no clear cut inter-tier delineation of the authority; it can give room for the controversies and disputes. Inter-governmental disputes may grow and proliferate over functional jurisdictional issues among the different tiers of the government which can place impediments in the working of the governments.
The assertion of the chief ministers of the provinces, mentioned above, indicates the foreboding of the intergovernmental conflicts especially related with overlaps of functional jurisdictions and resource distribution. There is a need to have regular dialogues and consultations among the three levels of the government to avert the possibility of conflicts and intractable polemics. There should be mechanisms for dialogues and negotiations to resolve issues in a constructive manner so that no judicial recourse to resolve disputes is sought. Experiences have shown that the recourse to judicial mechanism and process is dilatory and cumbersome to complicate intergovernmental relations. Better alternatives will be non-adversarial dialogue mechanism that can help in the resolution of disputes and redressing of the problems.