Sharing Federal Experiences of Germany
A seminar jointly organized by the Contemporary
Research Centre (CRC)and Friedrich-Ebert-Stiftung (FES)
17 March 2014, Lalitpur, Nepal
Ritu Raj Subedi
The Rising Nepal
Federalism has been the most contested
topic in the contents of Nepal's new constitution and disagreement
on it led to the dissolution of the first Constituent Assembly
elected in 2008. Particularly, there were two schools of thoughts
over the modality of federalism. One wanted to create federal
units based on the single ethnicity identity. Another stood for
multiple-identity-based federalism. The Nepali Congress and the
CPN-UML advocated the latter version of federal model while the
UCPN-M, Madhes-based forces and some ethnic groups belonged to
the former. The Madhesi and ethnic groups sometime demonstrated
their extremist posture, further ravelling the political scenario.
The thorny federal agenda created political, social and cultural
cleavages in the Nepali society. In the second CA polls, the electorates
gave their thumbs up for the NC-UML's moderate position on federalism.
The poll outcomes have neutralised the hard liners and provided
prospect for finding the middle ground. The voices that the economic
viability and identity should have a balance role in defining
the federal discourse are getting upper hand. Federal model that
guarantees the territorial integrity, social and ethnic harmony
and cultural tolerance only suits the country with ethnic, linguistic
and religious diversity. The need of the moment is to give a positive
direction to the federal debate so that the second CA will be
able to deliver an inclusive statute acceptable to all stakeholders.
Against this backdrop, the Contemporary
Research Centre and FES, Nepal office invited Prof. Dr Christian
Wagner, head of Research Division, Asia, Stiftung Wissenschaft
and Politik (SWP), Berlin, to share German's experiences of
federalism. Dr Wagner shared the success story of German federalism
with the selected audiences. Federalism in the largest economy
of Euro zone is based on mutual cooperation between the centre
and the provinces. The German political scientist suggested
that Nepal should go for territory-based federal structure owing
to its complex social structure. As an expert of Asian politics,
Dr Wagner warned against politicizing the federal agenda. His
stress was on finding the institutional framework to ensure
rights of ethnic groups and the greater autonomy to the local
government. His down to earth approach on the most contested
issue of the world's youngest republic could provide a fresh
approach to the subject. His ideas can be supportive to the
CA members engaged in accomplishing the historic task within
the given timeframe.
The gist of Prof. Dr Wagner's presentation:
It covers the historical development of German federalism, its
institutional framework, the main functions of the Bundesrat,
legislation and financial federalism, party competition, diversity
and federalism, different state structures, the challenge for
new states and ethnic diversity and the prospects of Germany's
federalism and European integration.
The historical development of German
German Union (Deutscher Bund) 1815 -
North German Union (Norddeutscher Bund)
German Reich 1871 - Federal Council
Weimarer Republik 1918: stronger centralization
West Germany (1949): states with more
competences vis-à-vis centre
East Germany (1949): strong centre,
The institutional framework
Representation of the states (Länder)
is secured by the Federal Council (Bundesrat).
States (Länder) have their own attributes of statehood.
They have elected government, separate constitutions and a constitutional
court and own symbols (flag) except for Schleswig-Holstein.
The states represent in the Federal Council according to the
size of their population. The voting pattern in the Federal
Council is like this: a total 16 states have 69 votes. They
have minimum 3 votes. More than 2 million have 4 votes; more
than 6 million have 5 votes and more than 7 million get 6 votes.
The federal government is assigned with
the bulk of legislative powers while the states exercise most
of the administrative powers. The centre retains the rights
related to the foreign relations, defense and currency. The
states can formulate legislations on environment, health and
social policy as long as the centre does not make any legislation
on them. The centre only sets a general framework but the states
have to do the specific legislation on public service, universities,
environment, spatial and territorial planning. The states frame
laws on culture, schooling, police and local government.
The main legislative functions of the
Federal Council involve working with the federal parliament
to chalk out the Bill on the basis of consent in case of the
constitution amendment. If the Länder's budgetary revenue
is affected, administrative jurisdiction of the Länder
is involved. Financial federalism premise requires that the
living conditions in the states should be consistent. Different
taxes will be collected by different units. There should be
financial redistribution system between richer and poorer states
and co-financing between the centre, states and local governments
for large scale infrastructure projects.
Parties in Germany
In Germany, there are mainly six political
parties - the Christian Democratic Union, the Social Democratic
Party, the Left Party, the Green Party, the Free Liberal Party
and the Pirate Party. This is an expansion from the 3-party
system to 5-6 party system. The coalition governments in states
have to agree on common vote in Federal Council. The State vote
in Federal Council has to be unanimous.
The states have different structures.
The state parliament elects only Chief Minister, who selects
government, which requires the consent of state parliament.
Every member of state government is elected separately (city
states). Mayors are elected directly. There is a merger of poor
states with affluent states - Bremen with Lower Saxony and Saarland
with Rhineland Palatina. A separate Northern State was created
by combining Mecklenburg-Vorpommern and Schleswig-Holstein.
However, the merger bid between Berlin and Brandenburg suffered
a blow in 1995 referendum.
German has four major ethnic groups
- Danish, Frisian, Sorbs and Roma. In West Germany, the Danishes
are in minority (50,000 people). It has its own party named
Südschleswigsche Wählerverband (SSW). There is no
five percent threshold provision in state elections and this
party has sent 4 members to state assembly. Meanwhile, Sorbs
are in minority in the East Germany. They are German citizens
with Slavic speaking background. They have no separate political
representation but own cultural institutions. The towns and
streets in Sorb districts carry bilingual names.
States for greater autonomy
The Maastricht Treaty 1992 created the
Committee of Regions to represent interests of states and provinces
in EU, especially in agriculture. The German government has
to take into account the statement of the Federal Council if
EU legislative initiatives have an emphasis on matters that
touch state legislation. The States are included in the negotiations
within EU on Germany's position to safeguard their interests.
The representatives of the States take part in EU negotiations
if substantial interests of the states are touched. The Centre
hands over negotiations in EU to states if subjects of the discussion
include education, culture and broadcasting. There have been
changed preferences by States vis-à-vis the EU: from
"let us in" to "leave us alone". The states
fear the interference of EU and now focus on autonomy.
Contemporary Research Centre's chairman
and CA member professor Dr Ganesh Man Gurung said that federalism
should address Nepal's diversity and question of identity but
the economic viability should be the primary element for the
formation of the new provinces. The nature of federalism in
Germany and Nepal is quite different. He admitted that it is
not easy to carve up federal structure in Nepal.
FES, Nepal office head Dev Raj Dahal
said that federalism was not a panacea to all maladies of new
Nepal but a means to ensure fair distribution of national wealth
and resources among the people.
Lal Babu Yadav, an associate professor
at the Tribhuvan University, said that the second CA elections
had rejected the ethnic federalism and One Madhes One Province
slogan, and the people's mandate was for cooperative federalism.
He said that federalism has become a bottleneck in Nepal's post-2006
political process and there are many arguments - both for and
against it. "In a country where there are more than 125
ethnic groups and 123 languages are spoken with dispersed population-
it would be difficult to have federalism on the basis of particular
identity of ethnic groups as none of them are in majority. Yadav
said that the diversity that exists in Nepali society has become
the uniting force rather than the dividing one and only such
as approach can protect the national sovereignty and integrity.
"So what type of federalism would best serve the interest
of Nepali state - the answer perhaps would be the cooperative
one in many ways which has been practiced in Germany, India
and other countries as well.
Samira Paudel of FES, Nepal welcomed
the participants and highlighted the objectives of the functions.
Comments from the floor
Dr Chuda Shrestha appreciated Dr Wagner
for enlightening the participants about federalism. Santosh
Pariyar noted that Nepal had different historical context, and
there is a debate on identity-based versus territory-based federal
structure. He said, "Since no any ethnic group is in majority,
how can an ethnicity-based federalism be established in Nepal?"
He asked Dr Wagner how the rights of minorities can be ensured
under the new federal set-up. Kosh Raj Koirala said that the
idea of right to self-determination and autonomy evoked the
fear of split. "What kind of federal arrangement should
Nepal adopt?" he enquired. Former lawmaker Pushpa Bhusal
enquired about the function of the constitutional court in Germany.
Lucky Sherpa asked how the issues of discrimination, exclusion
and marginalized, which are incorporated in the Comprehensive
Peace Agreement, can be addressed in the new federal structure.
The situation in Germany and here is completely different. We
want the provision of constitutional court to settle the disputes
related to the new federal arrangement but the Supreme Court
does not want entertain this idea. Cooperative federalism as
practiced in Germany cannot be replicated here, she insisted.
Naresh Rimal said that Nepal's development
agenda are guided by the exogenous elements. What we need is
the endogenous means for executing the development tasks. Nepali
Congress lawmaker Kiran Yadav said that the first CA was dissolved
over the issue of federalism. Ethnic diversity, language and
economic viability have been raised with the demand of forming
16/17 states. How can it be feasible? There is a challenge to
balance between the right to self-determination, economic viability
and diversity, she said. Ms Lara said that economic aspect of
federalism has been largely passed over in the ongoing federal
debate in Nepal. She said that the country does not have sufficient
tax to prop up federalism. NC lawmaker Pyare Lal Rana said that
federalism that Germany has been practicing for many decades
made headway in the political, administrative, judicial and
economic fields there. In India, federalism has been devised
based on population by sharing rights between the centre and
the provinces. Nepal's interim statute has adopted federalism
to ensure the rights of the marginalised and the oppressed.
Rana said that the NC has pushed for 4 provinces, which can
be sustainable. If the provinces depend on the centre, they
could not provide services to the people. The right to secession
cannot be granted to the provinces. The country has 169 indigenous
groups. To ensure the rights of marginalized groups and ethnic
identity, special rights such as quota and reservation should
be provided to them, which will make the system inclusive. Binita
Kapali said that the country had many ethnic groups and it was
challenging to make federal set-up viable. "How can Nepal
have inclusive federalism?" I think the federal states
should be based on the strength of how much the country can
collect taxes. CPN-UML lawmaker Ram Kumar Bhattarai said that
the country was heading to be a federal state but pooling resources
for the new provinces is a daunting task. The UML has floated
the concept of seven provinces. We are not industrial country.
Neither are we self-reliant in agriculture. The potential areas
for the economic development include tourism and hydropower.
We should form federal units based on tourism and hydropower
viability. We should create a few numbers of states so that
they can be sustainable.
Responses from Prof. Dr. Wagner
Nepal should adopt territory-based federalism
owing to its complex social structure. I rather prefer for Nepal
to go for four to five federal units based on territory as the
country has diverse and complex structure. Federating the country
into various provinces is no doubt an uphill job but the issue
should not be politicized. Depoliticise federal structure, build
institutional framework and make them articulate. The provinces
should be made viable to let the government function smoothly.
Explore the instruments for self-autonomy, economy and self-determination.
However, the quest for self-determination is endless. One-size-fits-all
idea simply does not work. Nepal should adopt its own model
of federal structure that will lift the people out of poverty
and redress the balance for the marginalised communities. The
countries are poor in paper but not in resources. There should
be specific authority to collect taxes. There are also the downsides
to the heterogeneous structure in which the new groups bring
new dynamic and make the governing process dysfunctional. The
process is paralyzed by the procedures. In Germany, federalism
is still under construction. The affluent and the poor provinces
are conflated to create new province. Federalism is a boring
subject for the students but it is the political parties that
bring process for its reforms.