 Hello, my name is Marcus Brandt. I'm the head of mission of international idea in Myanmar and I'm here today with my colleague and friend Boudicarchi who is a senior advisor constitutional lawyer for international idea in Nepal and we will be talking about lessons learned and experiences from Nepal's process of introducing and implementing a federal Constitution and we hope that this will be interesting for an audience in Myanmar But maybe beyond the country as well Woody you are here in Bangkok today sharing information sharing experiences with our colleagues about the the experience that you've built up in the last 15 years or so we work together in UNDP many years ago now We're both with international idea and you have seen in Nepal the process of Designing conceptualizing a federal constitution and have now seen seven years of Practical experience of turning that into reality. I Wanted to ask you a few questions and thank you also for taking the time and sharing your your insights What would you say in general are the key takeaways from this process? Has it been a success has it been a failure or is it too early to say? Thank you Marcus You know, it's a it's a fascinating experience of you know being involved in eight years of constitution making and seven years of Constitution implementing and I feel really really fortunate to be a part of it and Having a sort of ringside view in the Constitution making process It's a fascinating process. It's and then Being involved in that constitution implementing process is even more fascinating Going to your question What are the major takeaways and whether I? Take this constitution as a successor failure There are so many takeaways, you know, we have such a thrilling constitution making Experience, you know, the process started in 2007 2006 and then the first Constituent Assembly was elected in May 2008 Which was supposed to make a constitution in two years time, but it took four years And then the Constituent Assembly got dissolved in without producing a constitution in 2012 May and of course it started after a ten-year violent conflict that had torn the country apart a lot of trauma a lot of Displacement a lot of killing so it was the culmination of a peace process That led to the demand for a federal inclusive Constitution. Yes, exactly That's why you know that for a year of Constitution making after that violent Conflict of ten years Conflict where you know around seven thousand people lost their lives and so many displaced and Whatever and then two years of painful that early peace process and then elections then four years of that Constitution making exercise and suddenly, you know Constituent Assembly Dissolved without put it producing a constitution a lot of people got disappointed and they thought that constitution That that Constituent Assembly was a failed Constituent Assembly But I don't agree because a lot of issues were resolved during that four-year Constitution making process then we got another election second Constituent Assembly was elected and in second Constituent Assembly was was able to produce a constitution in In less than two years time So we got our new federal democratic Constitution in 2017 and then the first elections took place of all spears of government and then recently we had a second Local government elections and in November we are We are having the second federal and provincial elections so If you see all this thing in You know, I mean we have got a lot It was really a very because I am a competitor's you are a competitor's From competitive prospects perspective, you know Nepal's Constitution making process overall peace process Although there are certain issues yet to be resolved But I would consider the Constitution making peace process a really a successful process And overall one can say at least peace has been maintained. Yes The monarchy has shifted successfully to a Republican form of government the Democratic form of government. Yes, and many Steps have been made towards inclusion and participation. Yes, and secularism of course That's a very important element secularism Republicanism in a country like Nepal, you know 20 years ago You wouldn't have imagined that one day Nepal would be a Republic of federal country a secular country and an inclusive Nepal would be much more inclusive society so and peace was restored and Most importantly, you know, we never had that that threat of going back to another conflict. So Up to the Constitution making I I feel that Nepal's peace process and Constitution making process was highly successful Because it results so many issues that Nepali society had been having for centuries and then you know Whether you know federalism or the new Constitution is successful or not It's too early to say It's too early to judge Many people in Nepal feel that you know federalism has not walked well But what I say being a part of the implementation of this Constitution and Supporting federalization process again, we have to see in a comparative perspective If you see that the countries which adopted federalism to address certain issues related to diversity No country has been as successful as Nepal federalism has in early five six years so In Nepal the problem is you know in 70 years time. This is our seventh Constitution We changed the Constitution as one changes the court and We never give the system to properly function. We never give time for the system to be tested and too early we We made the judgment that okay system is not working But I think you know There Nepali federalism is federalization process has too many objectives and it's it's Natural that initially, you know federalism is a compact system as you know, Ron Watts Very eloquently says a country The federalism is not difficult actually a complex system federalism is adopted because The the issues are complex. So if a system is designed to solve the complex problems You know, it's not easy. I mean, that's why I think Nepal's federalization process is really going to write directions. Although there are certain issues That needs to be resolved like, you know Sometimes we feel that, you know, it's too early the federalization process is more democratization process in Nepal More devolution process of devolution process of decentralizing political devolution political decentralizing and somewhere, you know, there is a recentalization de facto recentalization process because you know conservative forces the bureaucracy certainly wants to Wants to Recentralize it more which is natural. So one of the interesting features is of course that the federal constitution not only created a federal tier of government but Constitutionalized three tiers of government three spheres of government the federal the provincial as well as the local and I think the creation of a very strongly constitutionalized Own sphere of local government is perhaps one of the most interesting Also from a comparative perspective. So would you how would you see and describe the relationship between these three tiers of government? Yeah, this is I think among the federal countries also There are fewer federal countries where the constitution establishes recognizes Local government as third sphere of government. So we in Nepal we Established a three-spare federal structure with constitutionally distributed Exclusive and concurrent powers and then a design to you know state powers power has been Devolved in three spheres of government and to exercise these state powers the state resources also constitutionally designed Through constitutionally designed process the state resources are distributed among these three spheres of government and You are right to that. There are very few federal countries with such a powerful constitutionally established powerful local governments with the jurisdiction Competence to provide deliver the services as well as deliver the development So our local governments not only provide You know Deliver the services that national government Decides to distribute it to the people but it also has development Competencies so the roads and the drinking water building schools and hospitals Health posts come under the jurisdiction of local government. So these are very very powerful local governments constitutionally even from the federal perspective also and recently, you know our first Local governments completed their tenure and we had the second election look election of second local government and if you compare How these three spheres of government have been functioning in the last five years? Whether they are functioning according to the path the Constitution has in this is I would say that local governments have been more More successful compared to provincial and federal government to actually deliver to actually, you know deliver the Deliver of the What people have expected? I mean local governments are the government of I would say that real government of people They are the government closest to the people and The local government representatives live among the people unlike provincial or federal parliamentarian You know when they get elected they move to a provincial or federal Capital but the local government representatives live among them and They have been doing pretty well. There are issues because you know, they are they are the new constitutionally designed governments with new responsibilities with a lot of challenges with high expectations of people because you know for Decades, you know, Nepalese people were living so far from the government So past five years Nepalese people are living closer to the government and getting services From the government. They are closer to people. There are issues. I mean the capacity of local government We can we can question because you know, a lot of local government representatives are not formally educated or well educated But overall, you know, I would say in five years time Nepal's local governments can be termed the most successful governments in And that's also of course very interesting because a lot of the original demand for federalism came out of Decades or centuries of the feeling of marginalization of exclusion and the agenda to to be non discriminatory to be inclusive was very much packed into that original push for federalism and what is interesting is that the elements of inclusion and diversity and Equal representation were also baked into the design for local government And this is really interesting if you could tell us a bit more about how that has actually Shaped up and and how that has been designed and also what you have been doing to to further develop this kind of process Yeah, to understand the demand where the demand of federalism comes and how the Constitution has incorporated these demands and aspirations of people we have to go a little Deep into how Nepali Constitution has addressed this, you know Nepali peace process that the two key tools of Nepali peace process is a Constitution through a Constituent assembly elected by the people So which means that Participatory Constitution making and the aim of that participatory Constitution making was to make to restructure the state So that you know the discrimination Various forms of discrimination that existed in Nepali society could be could be addressed Eliminated through the state. That's why state restructuring was the key you know tool to address this discrimination So in the state restructuring there are various strengths of state restructuring one is federalization another is inclusion and another is you know restructuring the electoral process right, and then there are a lot of fundamental rights that that You know addresses the discrimination there are rights of woman rights of deletes and rights of Janjati is Are guaranteed in the fundamental rights of the electoral system is reformed as a mixed electoral system Which ensures 33% of woman representation and representation of Dalit and Janjati's and other marginalized historically marginalized communities as per the Population it's a mix of proportional system and personal system and fast past the post system. That's why you know our Assemblies from federal level to a provincial level to local level assemblies are really inclusive There is 33% of woman representation in House of representative of federal parliament lower house of federal parliament and Provincial assemblies 35% of woman representation is insured in national assembly upper house of the federal parliament 40% of woman representative is insured in local government. So along with this, you know, they're the Inclusiveness in bureaucracy in police force in army force all these are insured, you know ample Representation of woman and deletes and other marginalized groups. So inclusion Reform in the electoral system and then distributing the state powers in three spheres of government that is Whole that is the state restructuring in Nepal and these all things and along with a lot of social and economic rights Along with civil and political rights as fundamental rights, right? So this is how the whole are you know a Design to address the century long Discrimination was designed. So yeah And what have been the Let's say insights when you look back now ten years ago What would you say should have been paid more attention to or what should have been more prioritized during that? Preparatory period or planning period before the enactment of the new constitution or if you look for example to Myanmar Which is several years behind that kind of process in designing a new federal structure What key advice would you give on what is important to focus on at this point? Well, you know, we have as I earlier Discussed about the painful and long prolonged constitution making process, you know Nepal being a very very diverse country having you know over 120 caste ethnic groups and speaking 125 Linguist dialects a very diverse country with very diverse Espirations expectations from people, you know people had real high expectations while designing Fidelism people thought that you know designing federalism according to the wish they According to what they wanted would solve all of their problems and everybody major Federalized the federalism forces pro-fedalist forces were very much stuck into the names numbers and boundaries of the provinces And that was one of the major regions why first Constituent Assembly did not produce the Constitution because the political forces could not agree on name names numbers and boundaries of the provinces Looking back what I feel is very little Time effort energy was invested in distribution of state powers What what should be the powers of federal? Government what should be the power of provincial government? What should be the power of local government very little time and effort and energy was invested and because of that, you know one of the I mean there are I'm not saying that Nepali constitution is perfect Nepali constitution is adequately federal to begin with and you know because The amendment of constitution there there are demands of amendment of constitution The constitutional amendment process in a federal country is Naturally very complex and in Nepal it's even even more complex But what I think is that if we Move this Properly a lot of structural problems can can be solved through a right process You know through federalization process we can we can um, you know, um Repair them for example, you know If somebody says that why 33 percent woman representation why not uh, why not 50 percent because woman make more than 50 percent of the population But the constitution does not stop you to make it 50 percent or 70 percent, right? Then there are so many other other issues, but what is the major Problem we are facing in Nepali federalization process is that very sort of Not well thought distribution of state powers There is a lot of you know, we have five lists of competencies And these these competencies of federal provincial local level government are At times very overlap a lot And that makes the conflict as earlier you asked what site of relationship all these three spares of government share You know in any federal country in the federal the the Intergovernmental relationships evolve During the course of federalization process In america, for example, you know until 1950s I think there was no formal law to regulate the intergovernmental relationship in american federalism But in new federalism like us, you know, we have got a lot of Intergovernmental mechanisms in the constitution and there is a federal law that that has designed the various Structures and mechanism to maintain the intergovernmental relationship Politically, you know if you say because the Because the distribution of power is not very clear cut and there is a lot of overlapping The especially the relationship with local government and province between local government and provincial government is not very pleasant You know the federal government and local government they share good relationship There is not much complaint but provincial and local government relationship is not very good And provincial and federal Government relationship also is very second. There are several Gases in the constitutional bench of supreme court filed by provinces because the federal laws Because they claim that federal laws increase the provincial jurisdiction So these are in the early phase of federalization process. This is natural And you have that in even long standing established federal, of course I mean the whole american federal system is actually the the tension between federal and state government The the supreme court plays a lot of role the the judicial process and political process and legislative process the federal system moves ahead But in nepal, this is more complex the relationship is more complex and there are a lot of risks because The constitution makers did not give ample Importance and time while Distributing designing the distribution of state powers So nepali masses to the new the the countries which are going through federal design I would say that The most important thing While making constitution federal constitution is the distribution of state power among various spheres of government That is the most important thing and every day while you know implementing that constitution You will face that That that determines whether The federalization process is smooth or not. No matter how clearly you did You you distribute the power there is always tension for example in america There is there is not much ambiguity because there is enumerated list And then all other residual as a residual power goes to the state But still there are hundreds of cases every year that go to the supreme court You cannot Distribute the state powers in a watertight way But you can do a lot to make it less ambiguous right in our case We didn't do that well Other thing I would say, you know with the time it will it will improve But distribution of powers Is very very complicated because the constitution makers did not give much attention Care and importance to that distribution of power. So what I would say ultimately in a longer run You know name of the Of the province or a state or a constituent unit may give you some abstract sense of satisfaction Right number of provinces might be later on Become irrelevant especially for the people not for the elites But for the people name might not in a long run matter Number might not several of the provinces still don't have a name Yes, one of the provinces still does not have the name and people are people don't complain, right This is the failure of the provincial government because the constitution has given the authority to name the province To the provincial assembly provincial government and that is the failure of provincial government But people don't much care. What people care is what type of services they are getting from federal government What type of governance they are getting from provincial government and federal government and local government ultimately What matters is what role The constitution gives to the provincial government and local government and federal government and what people get from them That's why distribution of powers. I would say is very very important and where we did pretty well in other aspects Inclusion Redeigning the electoral system federalization. We did a pretty good job But in the distribution of powers. I think we we could have done much better Let us end maybe on an observation From your work with local government on inclusion As you say, this is one of the maybe success stories of the whole project Of building a new constitution and could you say in what way these This new space for participation for women for dali. It's for local communities How that has impacted the quality of democratic culture at the local level And in what way does that change in a way? The the nature of napal as it as a democratic society Yeah, you know a napalic constitution invises to build a sort of egalitarian society where you know everyone lives With dignity With his or her one identity with dignity An egalitarian society where no discrimination exists And it's very sort of very ambitious You know objective to achieve But if you see napal's local government The local governments are really inclusive Because there is a 40 percent representation of women is ensured Mayor or and deputy mayor At least one female You know representation is ensured And even in the executive because if you see in napali, you know, although the constitution says that all state organs must be shall be Shall be inclusive But it gives the number only in the assembly parliament 33 percent of women And the janjati jan dal is all are represented but the the the executive the cabinet Is not inclusive, you know, there is no 33 percent of women and others In provincial assembly Inclusion is ensured but again executive if you see executive is not that inclusive But in local government Inclusion is ensured in the executive also in making government where decisions are made Collectively the mayor cannot dictate although in practice still mayor may dictate but later on slowly, you know that will change so the local governments in napal In I think every local governments are the real governments of people because they are they they are closest to the people And the government representatives live with the people and they are very closely They can be they are scrutinized by people and whatever they do the people know In in our local government, you know, although there are issues of corruption and all But it is very difficult for a local government represented to be corrupt For example, if a local government representative if a mayor for example, although the mayor does not make a procurement The mayor decides the procurement make the decision and the bureaucrats procures the The decision the the goods But people know the price of a chair for example, right? so our local governments are In the real sense, they are the government of people, which is very inclusive. I mean there is the 40 percent of representation is ensured in local government and even in the executive Yeah, woman woman's representation 40 percent woman's representation is ensured and local governments are basically, you know, the Who is who gets elected is the people the community who has majority Inclusion is there. I mean and decisions are made collectively. Yeah, and decisions are made collectively even the executive is Inclusive there are at least four or five woman Members in the executive. There are two deletes Delete members in executive and the decisions are made collectively the decisions have to be made in majority I mean our local government operation act prescribes that Decisions as much as possible make the decision in consensus and if consensus is not achieved than majority Which means that sometimes decisions may be made could be made Without the without the consent of the mayor So, you know, they are really really inclusive local governments Although, you know, I I I won't say that all local governments The decisions are made collectively But because of the system, uh, you know, slowly these women and deletes are Asserting their roles in they were never in decision-making table earlier Now they are in the decision-making table and then there are a lot of that's why the the real support to federalization process in Nepal Is to support these representatives from women and delete and marginalized communities to Go to the table decision-making table and play that role That's why international idea what international idea is doing one of the things international idea is doing is Supporting the local government representatives to take part in that political deliberation While making decisions That's why and and this is working very well now. We have in past five years. We have generated a lot of lessons From the work we have been doing in several local governments of several provinces where if you You know, these local government representatives, especially women deletes and from marginalized communities They might not be well educated But when you explain them their roles and responsibilities and help them How they can play this role, they don't need to be educated, you know, because they know The issues of their community much more than any expert would know Only the thing they only the help they need is how to bring these issues to the decision-making table How to present these issues? In in a reasoned way with evidences and if you help them This, you know, then they can challenge the mayor and other, you know, dominant members to To be lesioned. So this is this is working pretty well Well, thank you very much for sharing this and this gives us some good insights on how it is possible Through a participatory constitution building process to bring democracy to the local level in a Poor conflict affected society and this may be some inspiration for other countries such as in Myanmar as well and hopefully we will be able to Follow your process your progress and share more such experiences also with our friends in Myanmar Thank you Marcus. It's It was pleasure talking to you. I mean, yeah Nepal, you know We when we were designing our constitution, although it took eight years Eight long years I think we did not you know, look at Other similar countries we although we looked at South Africa But we didn't go there our constitution makers travel throughout the world But they didn't go to the country which went through the similar process and you know, which were similar I think we can we can have a lot of Nepal from Nepal Nepali process of constitution making and constitution implementing I think there are relations to be learned But as a competitor to you, you know, I know that competitive knowledge has strengths You can help take help of competitive knowledge Identifying the issues understanding them But to solve the issue competitive knowledge Does not help or should not competitive knowledge should not be taken to solve the The issues but again, uh, you know, uh I'm sure there is a lot of uh Space to learn from Nepali process to understand the issues to identify the issues and understand the issues and take You know lessons from not only what has walked in Nepali process But what hasn't uh today as I said, I was there for eight years in constitution making process After supporting the federalization process constitution implementation process for five years Now I think if I were there I would have done certain things differently or I would have suggested the politicians to do certain things differently, so I'm sure There is something to learn from Nepali process and it's a real pleasure talking to you We'll certainly continue the conversation Yes, uh, we want to thank you for watching today and if you're interested in the, uh Constitution building process in Myanmar, but also in Nepal We encourage you to contact us or check on our website And we hope that this was interesting for you and that you will Continue to follow us. Thank you