This article was originally published in www.nepallivetoday.com on March 24, 2023 by Yatindra K.C. Mr. K.C is a researcher at Samriddhi Foundation, an economic policy think tank based in Kathmandu. The views expressed in this article are the author’s own and do not represent the views of the organization. Author can be reached at [email protected]
In a majority of federal states, the national capital (Federal Capital City) is directly governed by the central government. Although, the nomenclature of the national capital city may be different depending upon the country, the idea and the rationale behind it remains the same. The national capital is the seat of the central government, its governance then is for the interest of the entire federal state rather than a particular state or local government. It is also recognized that if the national capital is under the jurisdiction of a state, the state would be in a position to dominate and override the federal government’s decisions.
As a matter of principle, many have even argued that the federal capital city should not come under the jurisdiction of any state in a federation. The functioning of the federal government to that end depends on the effective exercise of jurisdiction over the federal capital city or the seat of the government. There are, however, some contentions as to the nature of federal capital. The most crucial question one needs to ask in this undertaking is whether the federal capital will be an autonomous entity with the central government having overriding powers or whether the federal government will have exclusive jurisdiction over the capital city. India is the example of following the former approach, the United States the latter.
In Nepal’s case, the issue remains unclear. Ideally, the establishment and governance of federal capital is an issue that is resolved during the bargaining process of federalism itself. For countries that adopt a written constitution, the matter is laid out in the constitution itself.
Although the Constitution of Nepal specifically states that the capital of Nepal shall be Kathmandu, there are no provisions as to which level of government will exercise jurisdiction. If we are to look at the demarcation of provinces and the list of exclusive and concurrent powers of the provinces, there is no special status accorded to the federal capital, nor is there an imagination for the need to accord one. Our federal bargaining processes were largely concentrated on the demarcation of territories.
Devolution of power, fleshing out the fiscal architecture and the question of federal capital as a result got very little attention. At this point, anybody who is interested in studying Nepal’s federal transition knows too well that there are significant issues that still need resolving. It might also be worth noting that any issues that need resolving are being resolved by the federal government single-handedly.
On the question of the status of the federal capital city in Nepal, there are two events worth considering. Both are legislations passed by the federal parliament of Nepal. The first is the Amendment to Nepal Police and Province Police Act. The second is a legislation titled Metropolitan City Public Transportation Authority Act. Both legislations contain within them provisions that bring the federal capital city under the purview of the central government.
Additionally, Bhaktapur and Lalitpur have also been deemed to be a part of the federal capital city. The first legislation gives power to the central government to oversee peace and security matters in the three districts. The second legislation, while recognizing the power of provincial governments to oversee public transportation, makes special provisions for Kathmandu Bhaktapur and Lalitpur.
During the discussion phases of both legislations in the parliament, members of the parliament had rightly pointed out that bringing three districts under the purview of the federal government was against the spirit of the constitution. Bagmati province had raised a similar issue. Yet the concerns of the parliamentarians and the government of Bagmati were never addressed. What was initially missed out during the federal bargaining process is now being resolved through federal legislation, without the involvement of state governments.
The seat of the government should ideally be under the purview of the federal government. Nepal, however, is in a unique situation in the sense that there was no original agreement or imagination to do so. Recent attempts, as far as the two legislations are concerned, suggest the intention to bring Kathmandu, Bhaktapur and Lalitpur under the purview of the federal government as capital cities.
The mechanism, however, is questionable to the extent that it undermines the autonomy of the Bagmati government and the local governments of Kathmandu, Bhaktapur and Lalitpur. Any decision that affects the jurisdiction of sub-national governments must be taken with a process that involves the said sub-national governments. In our case, at least for the two legislations no such involvement is found.
The issue of federal capital is itself a complex one. It involves the delimitation of power between four levels of government in the current context. Forums for discussions between all three levels of government already exist in the form of an Inter-Provincial Council. If remaining issues relating to the federal transition are not completed with the involvement of all parties, a jurisdictional conflict would ensue. Bagmati province has already initiated legal proceedings for the same. Other provinces have also followed. While provinces resisting is a good sign, the federal government’s unitary mindset and a non-participatory approach to things are troubling.