–D. N Dhungel, AB Raj Bhandari, Prem Raj Gautam, Arjun Mani Dixit with BN Devkota and Bhupendra Lamsal
The terms federation and federal governance systems are used interchangeably.
This chapter attempts to define the terms and make a comparative study of some selected federal systems.
Federation and Federal System:
The term ‘federation’ is derived from the Latin term ‘foederateus.’ According to the Comprehensive Nepali Dictionary, federation is “group of many organized institutions formed for the attainment of some specific objectives or with a common objective.”
Federation considered in the context of state or governance system is a covenant signed by several independent states for the establishment of a new organization for the achievements of common goals (Webster New Dictionary and Montes, 2006).
In other words, a federal state or federal governance system is the union of independent states who are committed to the common goals by signing the covenant.
Some countries have also switched over to the federal governance system in order to transform the unitary system, distribute powers between the center, states, provinces and other tiers of government and ensure inclusiveness.
The federal system, thus, envisages more than one government, each functioning within the power jurisdictions as defined in the Constitution.
According to Montes, federalism is ‘a system that accommodates both self-rule (of the constituent unit) and shared rule (at the federal level)’ (Ilago and Montes 2006).
Elazr (1987) defines federalism as a ‘combination of regional self-rule for some purposes and shared rule for others within a single political system so that neither is subordinate to the other has been applied in different ways to fit different circumstances.’
The essential characteristics of federation is that ‘they are composed of two (or more) orders of government operating within a constitutional framework, with one order providing shared-rule through common institutions for certain specified purposes and with the other order (or orders) providing regional or local self-rule through the governments of the constituent units for certain specified purposes’ (Watts 2006).
A federal state is one, according to Finer (1961), in which part of the authority and power is vested in the local areas while another part is vested in the central institution deliberately constituted by an association of the previously independent local areas.
Neither has the right to take away power and authority belonging to the other.
The Nepali dictionary defines federal system as the system under which the state authority is divided between the central government with jurisdiction on foreign policy, defense and monetary policy while the authority on remaining matters are exercised by other organizations of the states or units.
The federal system is basically the creation of a common central structure by formerly independent states.
Some unitary states such as Spain and Belgium opted for federal structures at the end of the twentieth century in order to address the issues of ethnic and cultural conflicts. Such transformation to federalism in the true sense of the term is more than evolution to federal structures, i.e. either manifested efforts at democratization, assertive nationalism, power devolution or even inclusively.
Scholars on federalism agree that each of the federal states has its distinct characteristics and features unique to the country and they have very little in common.
Yet, most of the states while maintaining their independent existence formed the union or federation and common structures in order to achieve specific goals such as defense against outside aggression.
Examples of such federation are the United States and Switzerland.
Some other countries such as Belgium and Spain switched over to a federal system to address ethnic or cultural conflicts while at the same time defending their sovereignty.
It is also with this intent that the Interim Constitution of Nepal 2007 has proclaimed Nepal into a federal democratic republic.
Most political parties represented in the CA as well as other stakeholders, Madhesi, Indigenous and Ethnic Groups have endorsed the transformation of the country into the federal system.
Comparison of Federal Systems:
In the context of Nepal’s determination to switch over to a federal system, the comparison of federal systems as practiced in other countries today would be timely and relevant.
An attempt is therefore made in the following paragraphs for a comparative study of the selected world federal systems focusing on selected subjects.
Rationale: States do not have the same rationale for opting federalism.
Some like the United States and Switzerland opted to federalism because of the advantages of political, economic, and cultural unity.
Belgium, Spain and South Africa, on the other hand, transformed their unitary structures to federal systems in order to address conflict resulting from geographic or ethnic discrimination or redistribute natural resources or restructure the state.
Legitimacy: The process of legitimacy also differs in each of the cases.
For example, the United States proclaimed its federal system by holding the Philadelphia Convention participated in by all the states willing to form the federation in 1787.
On the other hand, India and Australia inherited the federal structure as a pre-condition for gaining independence from the British colonial rule.
A third category consists of federal states like Spain and Belgium where the parliament passed the federation legislation as well as constitution pledging for provincial autonomy.
Division of Powers: It is a common practice to begin the division of power with legislative powers.
Therefore, the division of power among federal units begins with the delineation of the parliament’s legislative jurisdiction.
Once such jurisdiction is agreed upon, executive jurisdiction is also delineated more or less on similar basis.
There is no uniformity among federal states on preparing such lists for the purpose of allocation of authority.
Some federal states have common list.
Even if separate lists are prepared, restrictions have been imposed on the implementation of the provincial list that should not interfere with the central list.
The Indian constitution, for example, provides that the federal parliament may intervene in provincial matters on the strength of its two-thirds majority.
Thus, even as different tiers of a federation have their own lists of jurisdiction, various conditions have been imposed on their exercise.
Such interventions have tilted the federal balance of power strongly towards the central authority such as in India while others have tilted in favor of provinces such as in Spain and Canada.
The common or concurrent list of authority shared between the central and federal tiers are designed to allow both the central and other tiers to work independently in the respective areas even as in practice this has tended to work in favor of central authority as for example in India.
It is now being realized that no list is comprehensive. As such, residuary powers are being placed either in the list of central or other tiers.
Such provisions are unlikely to swing power sharing within the federal structure provided such authority is exercised as a matter of last resort.
Chief Executive: Direct election of the executive president is the natural manifestation of the separation of powers as in the United States.
Under such system, the appointment of executive chiefs of the Ministry or Department is the personal prerogative of the chief executive.
This is in contrast to the parliamentary system where the chief executive is the leader of the majority party in parliament such as in India or is a consensus choice such as in Switzerland.
Such a consensus choice is based primarily on sharing of the executive authority, proportional representation in the Cabinet, and protection to minorities and weaker sections of the society.
Federal/Provincial Civil Service: Under the federal system, there are broadly two types of civil services.
They are established either as a politically neutral professional institution as in India or as a committed agency working for the government of the day such as in the United States.
Within these broad categories, there are various practices in terms of making the civil service competitive and merit-based or source of employment for local geographic areas or social groups.
These and other matters to a large extent determine the role of the Public Service Commission (PSC) in the civil service and whether central or state/regional units have separate or unified civil service.
Electoral System: One of the major provisions provided in the Constitution is the electoral system.
The electoral system as practiced by federal states vary widely.
However, they can be grouped into broadly three categories: first past the post system, proportional representation system and mixed system.
The first past the post system is widely practiced in former British colonies like Canada, the United States and India.
Its main attraction is the clear identification of the candidate in a particular electoral constituency.
Many of the countries — such as Belgium, Spain and South Africa — are opting for a proportional representation or mixed system mainly because first past the post system leaves out smaller parties and groups from representation.
The lower house of Parliament in most countries is elected on the basis of either first past the post or proportional representation electoral systems, both of which remain popular.
However, the upper house of parliament in most countries consists of members either elected or nominated from among the members of the provincial assemblies.
As a result, in some countries like Switzerland, the same person represents in the national parliament as well as in local assembly.
In other countries like the Unites States, such representatives are elected by the people at the provincial/state level.
Formation of Provincial Units: The tiers or units of the federal structure are decided mainly on the basis of geography but practices vary among countries.
In Australia and India, for example, geography is the main basis for the delineation of provincial units.
On the other hand, provincial units in Spain and Belgium are based on non-geographic considerations such as language, culture and historic tradition.
Provincial Constitutions Practices differ in federal systems with some having the provincial constitutions while others having none.
In Australia, the United States and Switzerland, the constituting provinces or states continue to retain their Constitutions.
However, in other countries such as India the constitutional provisions regarding the provinces were incorporated in the federal constitution itself.
Both Spain and Belgium have extended the autonomy or freedom to provincial assemblies to have their own constitution.
Center-Provincial Interrelations: The constitutions do provide for the delineation of powers between the central and provincial authorities as well as their inter relationships.
The interrelations between the central and provincial tiers vary from country to country.
In Switzerland, South Africa and India, the provinces have the constitutional limits of not doing anything disadvantageous to the central executive authority.
However, Spain and Canada have constitutional limits on the central executive authority by preventing them from doing anything disadvantageous to the provinces.
Under the Indian constitution, the center gives directives to the provinces for the construction and maintenance of specific projects.
It also provides for delegating legislative and executive authority from the center to the provinces and from provinces to the center.
India has adopted the system whereby the implementation of the regional level works funded by the center is done by the provincial administrative organizations and it is rare for the center to establish its own administrative apparatus at the field level to do the job.
Switzerland has evolved similar tradition. Australia has developed the structure of cooperative federalism by forming half a dozen federal-state joint councils.
Similarly, South Africa has provisions for central-provincial joint collaboration.
Local Governance: The constitutional provisions regarding local governance are either provided in the federal constitution or provincial constitution or laws.
In India and Spain, provisions for local governance are provided for in the constitution.
This shows the interest the center has in protecting the autonomy and powers of local government.
In Belgium, Switzerland and the United States, the responsibility for determining local autonomy and jurisdiction are left to the provincial constitution or management to decide.
Lessons Relevant to Nepal:
On the basis of the above comparative analysis, the following lessons could be relevant to Nepal:
1. For a country like Nepal in transition from a unitary parliamentary system to federal system, it is important to have clear delineation of legislative authority and executive jurisdiction and clear provisions on additional roles of parliament as well as on residuary powers.
2. The choice of first past the post or consensual electoral system and the constitutional provision regarding inclusion should be considered in relation to the election of the chief executive and other members of the government from among the members of parliament, as pre-indicated by the Interim Constitution 2007, needs to be taken into account.
3. Many countries have identified federating units on the basis of geographical considerations but some have also considered linguistic, cultural and historical factors.
In the context of Nepal, it is important to determine which of the factors — including linguistic, cultural, ethnic or geographic— be considered for determining federal units.
4. While it may seem natural for Nepal to draft a single constitution for the entire state, it would be prudent to consider providing autonomy to provincial/local governments in specific areas.
5. An important issue to be resolved is whether to have a civil service for the entire country or separate civil services for the provinces or have a unified service for provinces.
6. In the process of drafting the constitution, adequate attention need to be paid on: providing for structure and process for inter-provincial cooperation and collaboration in order to minimize conflict between the center and/among provinces; maintaining cordial relations and ensuring effective and cost- efficient governance.
7. Serious consideration is also called for determining whether local government is a tier of the federal structure or a decentralized unit under the provincial government.
# Republished with the due permission from Dr. D. N. Dhungel. Thanks are also due to other distinguished authors. Upadhyaya.
# From the book: Federal Nepal Administrative Structure.