Dev Raj Dahal
Head, FES Nepal Office
Opening Democratic Discourse for Conflict Resolution
“The doctrines of the good life and of a just society—ethics and politics—made up a harmonious whole” (Habermas, 2003: 2).
The current political crisis in Nepal derives its source from the absence of a common national vision—a set of widely shared social, economic, political and foreign policy ideals-- and corresponding means to attain it. This has rattled Nepali citizens’ hope for the promulgation of a new constitution by May 27, 2012 deadline. Without delivering a new constitution, the 601-member elected Constituent Assembly (CA) collapsed the same day over the rival conceptions of federal provinces—single ethnic identity-based versus multi-ethnic provinces and other unresolved issues. Instead of seeking their solution on the rational interest of all sides in the CA and build a community that is based on citizenship, top leaders simply sought to negotiate a constitution on the basis of partisan preference. The absence of top leaders in the CA at the last moment to address the demand of agitated legislators for a new constitution reveals the vivid reality of their “closed world of decision making” cut off from both public consultation with citizens and their representative structures. The ruling coalition led by Unified Communist Party of Nepal (Maoist) and United Democratic Madhesi Front (UDMF) favoring single ethnicity-based federal provinces sustained a structural disconnect from Hathiban and Baluwatar consensus on major issues including multi-ethnic provinces they had settled earlier with Nepali Congress (NC) and Communist Party of Nepal Unified Marxist-Leninist (CPN-UML) which could have been a leap forward in the drafting of a new constitution. Prime Minister Dr. Baburam Bhattarai, Vice-President of UCPN (Maoist), recommended a new CA election on November 22 to settle remaining constitutional issues through a fresh mandate which is awaiting the approval of the opposition parties and the President. Dr. Bhattarai also did not hide his interest to continue as Prime Minister of caretaker government until the newly elected government steps in asserting that “resigning now may lead to a return of February 1,” the comeback of monarchy. Inspired by mainstream parties’ disorientation from their mutually agreed goals of constitution, peace and structural reforms, ex-King Gyanendra claimed that his rightful place “is back to monarchy.”
In contrast, NC and CPN-UML marshalling support of 27 parties to counter what they call “possible Maoist takeover of state” demanded the resignation of Prime Minister in favor of a new national unity government based on five-point agreement. Questioning the constitutionality of a new CA election due to lack of its provision in the Interim Constitution 2007 and no possibility to amend the constitution due to the dissolution of parliament, they requested President Dr. Ram Baran Yadav for Prime Minister’s removal from office. President Yadav, however, reduced Dr. Bhattarai to caretaker status as he is no longer a member of CA but allowed him to continue in power until the formation of a new government. The fractious opposition forces have, however, failed to produce a consensual prime ministerial candidate to the President. Aside from new parliamentary or CA election to draft a new constitution seeking the resolution of political crisis, 78 NC members of dissolved CA submitted a petition demanding CA’s revival to complete the constitution drafting task, other NC politicians and Rastriya Prajatantra Party- Nepal prefer the restoration of 1990 Constitution, NC leader Sher B. Deuba prefers the formation of an expert committee to draft a new constitution and its endorsement by elected parliament and the newly formed CPN (Maoist) led by Mohan Baidya prefers “roundtable dialogue of all the stakeholders” by going beyond the forces of current establishment. Article 158 of Interim Constitution stipulates the “power to remove difficulties” in the implementation of constitution. But, it is defined more as a medium of exit from authoritarianism, rule by fiat or Ordinance than holding another CA election. Without a broad-based political consensus, however, none of the options can open the possibility to resolve both political and constitutional crises.
The CA that represented many of 103 ethnic, caste, regional and gender groups of the country except 20 micro minorities had sufficient social base of legitimacy. It has declared the country secular, federal democratic republic, expanded the franchise for social groups, generated the consciousness of modernity and expanded the base of public sphere for the citizens to engage in the debate about the contents of new constitution. Multi-thematic themes generated diverse publics—each with its own canon of judgment and criterion for stand but producing no more general interests. There was, however, multi-partisan discourse in the CA and even in its Constitutional Committee that defied the possibility for the synthesization of contending perspectives on the democratic law-making process. More time was allocated to Maoist chairman Puspa Kamal Dahal-led Dispute Resolution Sub-Committee of CA’s Constitutional Committee which was largely dominated by four major forces’ top leaders. Ten thematic committees of the CA had timely submitted their concept papers to the Constitutional Committee and the full Assembly debated them. By limiting time for public deliberation, political leaders undermined the source of public legitimacy to be derived from informed consensus of citizens on both democratic process and democratic contents of laws. The idealism associated with constitutional law becomes feeble if self-legitimation of law by parochial interests creates enforceable legal material order in society. “Law is a system of coercible rules and impersonal procedures that also involves an appeal to reasons that all citizens should, at least ideally, find acceptable” (Rehg, 1997:xi).
The resolution of Nepal’s constitutional crisis requires political wisdom of its leaders rooted into the legitimate aspiration of citizens, rational process that recognizes common ground for the relative satisfaction of all sides’ legitimate interest and become reasonably accountable to their actions. How Nepal’s future constitution can enforce public morality to be created by political leaders and also makes it enforceable to their own life and behavior? Or, will they be governed habitually by political realism of power equation, transaction, syndicate, coalition and less by democratic principles, norms and laws devoid of popular control? Do not the later patterns widen the gap between poor political outcome in the material domain in the present and utopian promise for the future? Or, will there be reconciliatory measures emerging in the public sphere for the establishment of a constitutional state? This paper narrates about crisis of state power and popular sovereignty, solution of key constitutional challenges, democratic constitutional order, changing images of politics, human condition, social justice and also draws a brief conclusion.
Crisis of State Power and Popular Sovereignty:
Normally, during the “constitutional moment” citizens and leaders set aside their particular interest and internalize the concept of common good (Goodin, 1992:54) by building inclusive “we-perspective.” The concept of sovereign citizens obliges the leaders “to take up the we- perspective” from which they “perceive one another as members of an inclusive community no person excluded from” (Habermas, 2003: 56). Democratic rule is connected with the implementation of actionable rights of citizens—liberty rights, power rights, claim rights and immunity rights (Hamlin and Pettit, 1991:2). Rights are related to corresponding responsibilities and the rights to citizens to enter into politics marked the conscious beginning of democratization of political power. Constitutionalism seeks to protect citizens’ rights and duties to address the gap between demand and supply of regime, constrains the arbitrary action of rulers, establishes popular sovereignty and constitutes a solution of the problem of political uncertainty (Goodin, 1992:108) by making the government law-governed. The state sovereignty and popular sovereignty are interlinked as both presume a indigenous determination of politics, law and public policy through four types of institutional closure: “a political one (democracy tied to national self-determination), a legal one (citizenship tied to nationality), a military one (universal conscription tied to national citizenship) and a social one (the institutions of welfare state linked to the control of immigration of foreigners)” (Wimmer, 2002: 9). The declining capacity of Nepalese leaders to set up institutional closure on all these areas and balance the universal aspiration of Nepalese citizens for freedom and the imperative of constitutional rule have perpetuated a crisis of state power, its ability to subdue chaos in political life and become accountable to international human rights standard.
Obviously, state represents the right of collective self-determination of citizens. Citizens, as members of the state, obliged to act in harmony with its laws creates condition for peace. But, national law as a reflection of fundamental rights of citizens often changes with the changing values of family, society, property, polity and the acquisition of new rights by them which is a precondition to provide stability through the efficient administration of justice. The sovereignty of Nepali people, as authors of law, can only be ensured if they are conscious of enjoying sufficient private autonomy as independent persons capable of self-reflection and personal morality and pursuing self-chosen goals for personal success in individual life and public autonomy as citizens able to exercise civic virtues of reasonableness (Frost, 2001: 348) in attitude and conduct towards others. Immanuel Kant argues that moral autonomy is the highest value of an individual. At the level of citizen, the value of autonomy assumes two forms: “one is political autonomy, the legal independence and assured integrity of citizens and their sharing equally with others in the exercise of political power; the other is purely moral and characterizes a certain way of life and reflection, critically examining human beings’ deepest ends and ideas” (Rawls, 1999: 146).
Kant rightly states that unless citizens are truly enlightened they are not able to stand on their own feet and make their own rational decision (2008:256) as emancipated, rationally self-directed persons. Those incapable of self-direction are not free. They cannot maintain their self-dignity of citizenship and participate meaningfully in public sphere and contribute less to the formation of laws. Competition between parties and between capital and labor intensifies the emergence of a vibrant public sphere by encouraging citizens to engage in public affairs and relieving them of pre-modern political culture of parochialism which does not recognize the equality of citizen. This competition also becomes a vital spring of social transformation in laws and institutions. But in a country of minorities like Nepal perpetual eagerness to change laws and constitution through extra-constitutional measures to alter the balance of forces breeds instability as there is no institutional mechanism to balance the interest of all groups and prevent today’s minority to become a majority of tomorrow through aspiration-driven politics. Similarly, an unfair political dispensation based on exclusive power equation or syndicate cannot guarantee internal checks to prevent the domination of minorities and establish the virtue of positive law which stands higher than the will of powerful leaders. The impersonal state possessing monopoly on all the means of legitimate coercion can also prevent the constraining condition for “freedom of citizens” organized under the “complex interpenetration of cultural tradition, social orders and personal identities” (Habermas, 1997:23).
In Nepal, every alteration of political balance of power has changed laws under the pressure of changing rights of gender, Dalits, ethnic groups, Madhesis, indigenous people, labor, minorities and marginalized and international obligations of the country to incorporate human rights and humanitarian laws. But, the weakening of Nepali state’s “legitimate monopoly” on power, tax, loyalty of citizens and international recognition (fragile state) marked the crisis of power to implement both rights of citizens and formulate and execute appropriate laws and public policies to create the condition of social peace. It’s vital democratic instruments—Public Service Commission, Election Commission, Commission for Investigation of Abuse of Authority, Auditor-General and even Supreme Court lack either adequate personnel or authoritative leadership. Acting authorities are constrained to undertake vital initiatives. The critical jolt to popular legitimacy was inflicted by self-extension of two more years of mandate of CA by political classes under “the doctrine of necessity” and through “crisis socialization” of ordinary citizens by political leaders, partisan media persons, lawyers and intellectuals who also noisily signaled the impending fear of civil war, monarchy’s comeback, presidential coup, military putsch and foreign intervention in case of non-extension of CA’s tenure. Democracy is based on the “doctrine of choice” which requires the resolution of antinomy between freedom and necessity in favor of the former as it promotes basic dignity of human beings by abolishing the pre-modern use of fear or violence as a means of political end and generating fresh reasons of hope in politics for better life and liberty. Absence of requisite public security and fundamental human needs satisfaction hollows the concepts of basic constitutional liberties granted to poor citizens. The role of attentive citizens lies in being critical about their condition, recognizing that legal experts’ opinion does not necessarily constitute either truth or reflective opinion or valid judgments beyond the power of self-righteousness. Very often, during the time of social transformation such experts do not reveal hidden motives of political actors in the domain of justice but offers arguments of various sides, leaving contradictory conclusion rather than offering normative regulation of multiple transitions and stabilization of public authority to prevent lawlessness. John Lock rightly argues, “Wherever law ends, tyranny begins.”
Modernization of Nepalese society has increased the use of technological means and rights of political participation of citizens on law-making and policies. It has opened the scope for communicative competence, rational acceptability and democratic legitimacy. In Nepal’s CA, however, the constitutional processes had been shortened, contents remained contestation and the result was no constitution. In the constitutional process, national leaders have compromised three key elements of democratic quality associated with the public expectation of citizens: quality of content, process and results (Diamond and Morlino, 2004:21). As a consequence, the Supreme Court had to set limit on the CA’s self-extension of term not beyond May 27 and offered several alternatives: fresh election, referendum and other suitable measures. Without popular consent, the CA had stretched the popular mandate for two more years, gave primacy to sharing executive power than law making process and rendered the CA members without any meaningful role either in opinion and will-formation, or in perspective mediation or even in dispute resolution. It also did not encourage open and informed public participation on constitutional debate close to the grassroots for their enlightenment or encourage rational agreement on issues to foster a common political culture of the country. The impersonality of legal norms ensuring equal treatment for all citizens holds scope for individual life-projects. In Nepal, however, leaders’ temptation to impose partisan perspective subverted even settled issues and generated crisis of trust of each other. All political parties are torn between a fractious future and a past that refuses to shift transactional leadership to the transformational one. The alternative media have often sponsored fears about deadlock over the contesting democratic contents and saw the deterioration of the impersonal institutions of the state as a threat to national survival and independent identity.
As a result of the third wave revolution in information and communication technology, democracy, and human rights based political culture, the relationship between citizens and the state are changing. An amazing explosion of social activism of a myriad of self-referential non-state forces produced critical political consciousness but also stimulated anomic, disorganized and extra-party participation of social classes in a fragile national context upsetting institutional equilibrium of the polity and the virtues of active citizenship unleashing democracy’s positive energies. Growing assertion of prehistoric identities of sub-national forces stoked by electoral manifestoes and unrealistic promises of leaders and cadres has infused nervous tension in the public sphere about the process of formulating common constitutional perspective for a shared future of this post-conflict nation. In contrast, multi-level critical public debates on democracy as a responsive rule of law has also mobilized the connectors of society for rebuilding this nation. Infusing public morality in politics the attentive public has consistently sought to rectify the infection that underlines disharmony between the constitutional promise of secular, federal democratic republic and the absence of constitutional behavior of leaders and cadres. Civic passivity for long has scuttled citizens’ ability to confront the imbalance of power in politics thereby weakening the sovereignty embedded in citizenship and even inter-generational reciprocity in politics. Obviously, it has rendered Nepalese politics self-serving lacking normative framework and democratic loops--transparency, accountability and responsiveness to serve public and national interest. As a result, political resistance has also shifted to ethnic, territorial, social and cultural realms.