A heavy-handed central government continues to undermine the spirit of federalism

On March 22, Biratnagar Metropolitan City took the decision to seal its borders and impose a lockdown effective beginning the following day. But it failed to implement the lockdown. On March 23, the federal government, based out of Kathmandu, announced a nationwide lockdown. The next day, the District Covid-19 Crisis Management Committee (CCMC) held a meeting under the leadership of the Chief District Officer (CDO) regarding a lockdown in Morang District. The decision only took effect after it was ordered by the District Administration Office (DAO), two days after the metropolitan office’s orders were ignored by the police administration.

Biratnagar Metropolitan’s failed attempt at instituting a lockdown is symptomatic of the larger malaise hobbling the federal setup. And the emergency response to the Covid-19 pandemic has laid bare the reluctance of the central government to effectively decentralise power. If anything, decisions have continued to flow from the centre, undermining local bodies and leaders. In many instances, these decisions have proved to be counterproductive in their aim to control the spread of coronavirus. 

“If the CDO is the one to make and implement our decisions, what is the point of having a local government? What is the point of talking about a three-tier government?” points out Bhim Parajuli, Biratnagar’s beleaguered mayor. “Imagine how a crisis will unfold in the absence of local bodies. Why are we supposed to wait for a nod from the DAO if our work is so vital?”

On Wednesday, Parajuli purchased a polymerase chain reaction (PCR) machine on his own initiative. To raise the six million rupees required to purchase the machine, Parajuli donated half a million rupees — equivalent to his annual salary — and sought donations from the private sector as well as philanthropists. “We were left with no other option than to raise the money through donations. Both the provincial and federal governments ignored our pleas,” says Parajuli. 

Over in Parsa, Birgunj Metropolitan City also faced a similar problem. It was forced to buy its own PCR machine since the DAO had not supported its plans to expand PCR tests. 

“In fact, it was the carelessness of the CDO that led to the explosion of Covid cases in Birgunj,” says Kanchan Jha, a Birgunj-based journalist. “The CDO would often brief the home ministry instead of coordinating with local bodies or reaching out to the public. He could not even arrange hospital beds for Covid patients. He was so removed from the ground reality.”

In Darchula, early on in the lockdown, it was the DAO’s delayed response to the emerging crisis in the district that served to exacerbate the situation there. On March 30, hundreds of people had gathered across the Mahakali River on the Indian side, demanding to be let in, but the local administration closed a suspension bridge connecting the two countries. Three Nepali citizens swam across the river, requesting the DAO to reopen the bridge. But they had to wait for the federal government’s decision, which took one week to finally allow those stranded across the border to enter the country. Among them, an overwhelming majority were seasonal migrant labourers, many of whom had made perilous journeys for days on foot from various locations in India in the hope that they would soon be able to return home and reunite with their families. 

More recently, with cases of Covid spiking in the Kathmandu Valley, the cabinet took the decision on August 17 to grant CDOs unconditional power to deal with the virus. This decision was based on the Local Administration Act of 1971, first enacted during the Panchayat era. Following the cabinet decision, the CDOs of Kathmandu Valley-- of Kathmandu, Lalitpur, and Bhaktapur districts--imposed a prohibitory order beginning Wednesday midnight. 

Given that the DAOs have issued this prohibitory order, it will apply to remote villages of the districts as well. It was the same during the previous lockdown. Local bodies were not allowed to check the flow of incoming and outgoing people. Instead, the DAO’s orders ruled over the municipal as well as provincial decisions. In other words, the federal government became the sole decision-maker on how the lockdown was to be regulated. 

The government’s decision to empower CDOs to enforce prohibitory orders has stirred up a debate on whether power is being effectively decentralised under the federalised setup. Concerns are being raised from all quarters about the ramifications of empowering the DAO. The DAO was established under the Panchayat era, but persisted under the democractic system from 1990 onwards, and continues to exist even under the federalised setup. As per the constitution, the DAO is meant to serve as a transitory body until the federal and local bodies prepare their rules and regulations.

“In practice, the CDOs have become stronger by manipulating ambiguous transitional provisions. Enabling the DAO with such power goes against the very spirit of federalism. It is unconstitutional,” says Bhaskar Gautam, a social scientist. 

Gautam’s stance on the issue reflects those held by the Members of the National Association of Rural Municipalities in Nepal (NARMIN), an umbrella organisation comprising elected leaders from rural municipalities. “The federal government gave the DAO the prerogative to enforce lockdowns while bypassing the local government,” says Banshi Lal Tamang, NARMIN’s general secretary. “But it’s no good imposing a lockdown on an entire district when the virus is spreading only in some areas. We have been demanding that the lockdown be eased in places where the impact of Covid-19 is minimal, but we are unable to make decisions regarding curfews and lockdowns.”

DAO units are also propped up by the police administration. Structurally, both the DAO and the Nepal Police work under the home ministry. The CDO, thereby, works as a representative of the federal government. The DAO and police work in tandem while conveniently circumventing local bodies. They are accountable to the home ministry, not the locals, and take a long time to implement their decisions, which have to be approved by the federal ministry. Whether they be in Biratnagar, Birgunj or Darchula, local bodies are disgruntled by this triad that has stripped them of the power to make decisions on behalf of the communities they represent.

“Local representatives are accountable to the public,” says Mayor Parajuli. “Municipal people can call them out and confront them, but the federal ministers don’t have to face actual people. We understand the public and their problems better than anyone, but the centre continues to impose orders on us.” 

As per the Local Government Operation Act 2017, local bodies are allowed to appoint their own chief administrative officer. However, the federal government has been appointing them from the centre, just as it appoints the CDO to run a district’s administration. Additionally, Schedule-6 of Nepal’s constitution categorically states a provision that the state police come under the jurisdiction of each province. However, police across the country work under the home ministry. In 2018, Province 2 took the initiative to draft a Provincial Police Bill, but the federal government opposed the bill vehemently, almost as if the provincial government had contravened a national law. Even the Nepali intelligentsia was complicit in opposing the bill.

“There are two main obstacles in truly exercising federalism — the police and the court,” says Gautam. “Both continue to be embedded within the earlier federal setup, and they continue to embolden the CDO. There is no relation whatsoever between provincial governments and DAOs since the constitution does not envision one. As a federal government employee, the CDO waits for orders from above.”

According to Jha, Birgunj’s CDO has so far supported only the federal government and businessmen. “Empowering CDOs in a federal setup reveals the federal government’s ulterior motive, which is to maintain control of power. It fears losing control if power is devolved to the province,” says Jha.

Instead of expanding the jurisdiction of the provincial government, the federal government has been curtailing it, especially by ruling local bodies through what should have now been the defunct post of the CDO.

“If mayors and even the chief minister of a province have to go to the DAO for matters as trifling as a vehicle pass, what is the point of federalism?” says Parajuli.

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