Functional Roles In Federation
The assignment of functions to constitutionally defined tiers of the government is key to the architecture of federation. The standards and principles like subsidiarity, equity and inclusion, externalities and spill-over jurisdictions generally dictate the design of the functional assignment in a federation. However, inter-tier allocation of functions and competencies is primarily determined by the modus operandi of the making of a federation.
In fact the federations that are built bottom up congenitally assign more functions and competencies to the constituent units- provinces and states - of federation. This is the case of Switzerland and USA. But where federation is created through top down process of de- aggregation, the centre alienates and devolves power and authority vested in it to sub-national units and constituents. In such cases autonomy and competencies of provinces and local governments may be less significant or in some way compromised as well.
In modern democracies, sharing of power with the sub national governments is inevitable and important. Generally, federalism is predisposed in favour of the decentralized provision of public services delivery with a view to increase their efficiency and effectiveness. Local governments are, indeed, better placed than the federal government to deliver public services because they have access to and have information advantage, proximity, population mobility and better sense of accountability for delivery of services. This ensures the matching of preferences of local communities and ensure accountability and quality of services As Nepal has gone through top down process in the making of federation, the authority that had been vested and reposed in the central government has been distributed and dispersed to the provinces and local governments. Article 57 of the constitution assigns an important place for local government in the distribution of state power.
The constitutional provision enshrined in Article 57(4) mentions that the competencies of the local government shall be as listed in the schedule 8 of the constitution. The functions enjoined upon the local government have the possibility of bringing government to the proximity of the people. But functions and competencies have to be undertaken and executed effectively in a responsive and accountable way. The schedule 8 lists multiple functions of administrative, technical, functional and service delivery types. The functions listed in the schedule include policing, management of cooperative institutions, FM Radio and raising of local taxation including property tax, house rent tax, house registration fee, vehicle tax, service charge, tourism fee, advertisement tax, land tax, fine and punishment, entertainment tax, land revenue collection and so on. Other important competencies include management of local services, local data information and record management, infrastructure projects at the local level.
Moreover,establishment , regulation and management of elementary and secondary education, basic health and sanitation, market, environment conservation, village assembly, municipal assembly, district assembly, management of arbitration and mediation for dispute resolution , local record, land and house ownership certificate distribution, agriculture and livestock, agriculture production and management, care of elderly people and people with disability, data collection of the unemployed people fall under the jurisdiction of local government.
Moreover, management of agriculture extension, monitoring and supervision , drinking water small hydroelectricity projects and alternative energy, disaster management, watershed, mines and minerals protection, language, culture and fine art protection and development are assigned to local government . However, the list does not make a distinction between the functions and competencies of the rural municipality (Gaupalika) and urban muncipality (Nagarpalika).
As needs and priorities in rural and urban context differ from each other, the un-differentiated exhaustive list may lead to confusion and lend to different interpretations and ambiguities. Even among the municipalities too, capacities and needs are different. The issues and challenges of the Kathmandu metropolis are different from other metropolises and municipalities. Moreover, even functional imperatives and needs of rural municipalities (Gaunpalika) in the Terai-Madhesh, hills and mountains vary needing differential approach and treatment. Schedule 9 provides the list of concurrent competencies in which three levels of the government- federal, provincial and local – can legislate policies and laws.
The subjects in the concurrent list include cooperatives, education, sports and magazine, health, agriculture, electricity, drinking water and irrigation. Moreover, the list also includes conservation and protection of ancient monuments and museum, royalty obtained from natural resources, motor vehicle permit fee etc. The functions provided in the schedule 8 have been exclusive competencies of local government and the concurrent list provided in schedule 9 overlap in some areas. This gives lee way to federal and provincial governments to exercise control and preempt competencies of the local governments. Enumeration of long list of powers and functions of local government in the constitution will not have much meaning if there is no commensurate transfer of financial resources and provision for recruitment of competent personnel and functionaries.
To summarise, whatever the competency framework and nature of inter-tier allocation of the functions, the depth of political and bureaucratic commitment coupled with resources and capacity will determine whether or not provincial and local governments can become effective in their implantation with enhanced ownership and democratic participation of communities in the governance and development of the country.
The local self-governance Act 1999 that has been replaced by the local government act 2017 in line with the provisions of the federal constitution of Nepal had bestowed upon the local bodies with sufficient functions and responsibilities. But these mandates and competencies had not been implemented indicating that entrusting roles and functions in the book of statute is not enough. The most important part is building an appropriate environment through provisioning of finance, functionaries and functional autonomy to enable local governments to carry out their functions effectively.