E-Kantipur

One important issue that has not been much discussed in the federalism debate is the need to be flexible with regard to the number of provinces the country should have. Proponents of various models have given some particular numbers but have not thought about the need to change the number of provinces during different periods depending upon the need of the society.  Recently media reported that the Centre for Constitutional Dialogue was attempting to get the law makers to agree to 10 provinces as a compromise. What these “experts” seem to miss is that the number of provincesa multi-national country should depend upon the aspirations and mobilisation of communities and that different groups could mobilise at different periods due to changed dynamics of society. The need of the society should be the guide and not some random number proposed by experts who do not put people and their aspirations at the centre of their analyses.

Imposition of institutions does not guarantee their being unchallenged. The dismantling of five constitutions in Nepal has amply demonstrated that. Institutions can last only if they reflect people’s aspirations and are amenable to changing context. Many federal countries’ experience shows that they changed the number of provinces over time.

The right to form a new province, by separation or by coming together, for whatever reasons, should be an inherent concept of federalism in Nepal. This is important because the cultural identity, configurations, capability to mobilise of groups can change. Many groups are still in the process of forming and developing identities and organisations in Nepal. Some scholars in Nepal hark about the fluidity of identities but do not think about managing the identities, which exist despite going through changes. The need for change may arise either when the groups are at the level of identity assertion and mobilisation or at the mature stage when provinces may want to coalesce after inequalities have been addressed and trust among groups have developed. 

Switzerland and India both have provisions that allow formation of new regions. Both have created new provinces. In India, new provinces were often formed after long struggles and huge costs, despite article 3 of the Constitution that permits the formation of new provinces. In Switzerland, on the other hand, the larger canton (Bern) itself initiated the constitutional mechanism once it became clear that the people of Jura within Bern wanted to form a separate province.    

The right to form separate provinces have a number of advantages. First, the dominant group within a province will be careful to treat minorities within its jurisdictions because minorities might otherwise opt for a separate province. It will protect the rights of provincial minorities. Second, if things do not turn out to the liking of the minorities and majorities, it also allows the formation of separate regions. 

Third, it also takes into account the rights of the future generation. If the future generations prefer to organise themselves differently, they can do so under this provision.  If the growth of the social justice movements in Nepal is a trend, for some decades, the identity formation process may continue. This right will address the progressive needs of the people if different groups mobilise and demand for their own provinces in the future. For example, the Khasa people of the far west may mobilise in the future. 

Fourth, this provision may prevent violent conflict. If some groups feel strongly that they ought to have an autonomous province and their demands are not met, they might resort to violent activities to pressure the government to concede to their demands. There are numerous examples around the world where groups resorted to violence after autonomy was denied. Fifth, it could erode the bases for separatism. If groups seeking autonomy can form their own provinces, even if some activists advocate separatism, they may not receive popular support. Sixth, this provision would also check unreasonable demands from minorities because the larger group also could demand separation.

Seventh, in principle this provision also allows the formation of larger regions. In a globalising world, once the groups and provinces feel secure about their cultures and rights and trust develops among them, they may opt to form larger regions or form alliances in certain areas, such as market formation, regional distribution of telecommunication, transportation etc. The formation and evolution of the European Union is an example.     

The right to form new provinces can be administered through a cascade mechanism as was used in Switzerland for the creation of Jura from Bern canton, as I have discussed in my previous columns on popular initiatives and managing contesting territorial claims. First, the people of the region under question should be asked whether they want to form a separate province (or come together to form a larger region, if the issue is to form larger provinces). If the answer is yes, then one fifth of the electorate in a given area (say within districts) that got a majority could demand a second poll to be held on the question: do you want to participate in the new region or remain with the old one? It would allow minorities within the proposed province to determine whether they want to stay in the new province or stay in the old one. The referendums could be held during the regular elections to cut down on costs.

Some might argue that the right to form new regions would lead to the formation of too many provinces. First, this thinking has a flaw in assuming that every group would aspire to form their own territorial provinces. If groups are not a majority or a plurality in a territory, they may not ask for an autonomous territorial region. In Canada, small indigenous groups have preferred to remain under the central jurisdiction. Likewise, if groups within provinces are treated with equality, they may wish to remain together because there may be economic and social advantages to it. 

Second, the challenge to form and sustain new regions is not an easy task. For instance, economic and political viability will restrict many groups from aspiring for territorial units of their own. Even if some activists within groups demand for autonomous province, they may not receive popular support if the proposal does not appear viable to the community. People will not get involved in such movements unless there is really some strong perception of injustice and inequality, a felt need for their own provinces to address them, and a perception of viability. 

For the above reasons, the right to form a separate province in federalism is not only a truly democratic process but a necessary mechanism for settling contesting claims peacefully.

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