Nepal: Freedom is not condition of anarchy

Dev Raj Dahal

Head, FES Nepal Office

The transformation of the partial perspectives of leaders and citizens into a larger national vision bridges the signs of separateness of all of Nepal’s catch-all political parties and their cultural industries adapting them to the responsibility of power and exercise of legitimate political authority thus allowing the attainment of common good- a truly democratic constitution. Strong inner-party democracy has transformative power. It transforms the feudal, elites and the people into mindful citizens affirming a shared national identity and creating bases for distributive justice. Only enlightened citizens and leaders are capable of upholding the spirit of constitutional patriotism and exercising norm-governed action.  But neither the Interim Constitution of Nepal 2007 which lacked the principles of constitutionalism nor the CA debate which became confusing, than enlightening to serve a base of national unity, could foster centripetal tendency for law-governed political order. There was neither a common process of socialization nor coordination of action. With constant civic education, mini identities of people can be transformed into meta-identity of equal Nepali citizens, equal in terms of rights, responsibilities and opportunities. Constitutional enlightenment is essentially constructive as it builds collective awareness for equal freedom, instills civic skills and ability to participate in all those constitutional decisions that affect them. It also minimizes the scope of arbitrary power and use violence in body, language, communication and action.

Freedom is not a condition of anarchy, it is based on the rule of law. But so long as leaders are driven by culture of ideology than contextual national policy it is difficult to make Nepalese democracy truly sovereign based on its own legal-rational legitimacy derived through elections, public opinion and democratic will-formation. Leadership must support the impartiality and integrity of election and accept its outcome rather than use any organizational leverage to come to power even after their electoral defeat. In Nepal, the lingering transition of the state and society into populist trap and lawlessness strained the reasonable treatment of others defined in moral standards and ethical desire to live good lives. “These two different achievements are connected and distinguished in this way: living well means striving to create a good life, but only subject to certain constraints essential to human dignity” (Dworkin, 2011:5). Obviously, civil sovereign is the solution of the problem of state of nature and entrenchment of rights, including property rights, which is a precondition for freedom and human dignity. But the expansion of more constitutional rights in Nepal such as right to work, social justice, livelihoods, food sovereignty, etc without building the capacity of the state to implement them risked the legal complications and failure of the court system in the future. Radical forces and non-state armed actors in Nepal do not respect property rights common in most of democratic systems. This has blurred the boundary between rule of law, politics and violence.

Fourth, the state is obliged to obey fully the international norms to avoid the international Hobbesian state of nature.  The constitutionalization of relevant international laws, obligations and practices incorporating many post-state issues-- post-national laws, human rights, climate change, trade, labor market, technology, globalization, global governance, etc affecting Nepal’s bodypolitik is necessary. External intervention in Nepal’s constitutional process reflects an affront to the sovereignty of Nepalese citizens to define laws and policies for them and their children. It can alienate them from the subsidiarity of local self-governance and the fairness of democratic society descending from the civil experience. Controlling this trend requires Nepali citizens’ empowerment to make economic decision making democratically accountable and engaging them in organizational innovation and structural change as per their needs and priorities.  Globalization has enlarged the domain of democracy and the concept of citizenship beyond the nation-state which is enabling Nepalese to tap opportunities abroad. But it is not without human cost as migrant Nepalese citizens have to work under foreign rule and laws where core labor standards are not maintained. This does not recognize a view of huban being as citizen of the world transcending the differences of local cultures and customs. Global power is based on hierarchy and status, not social contract and, therefore, less morally accountable to the global public. One can already witness democratic deficits in the international institutions and regimes regarding transparency and accountability of their functions.

Democratic Constitutional Order:

The route to human emancipation through spiritual means has now been left to the private sphere while constitution became a public covenant for social and political integration, legitimate order, human development and stable peace. Constitutional government has become a permanent solution of national and international problems while the spirit of the law based on judicial tradition contributed to state-society coherence.  But modern law is based on discursive consensus about the rights and needs of various groups of citizens which has also become a source of legitimacy. It creates necessary values and institutions to address new social stratification, new social movement and sovereignty of people stressing their equal participation in the formation of popularly shared will. Nepal’s CA was precisely expected to incubate discursive consensus on the new constitution and muster the consent of citizens on the ends and means of future politics.

When fundamental issues pertaining to social, economic or constitutional conflicts require a stable, long-term structural solution, citizens do not formally request to the official expertise of judges or constitutional lawyers but the political wisdom of the people’s representatives in the political parties, parliament, or head of the state.  This means peace and order do not entirely depend on “the victory of the law with the aid of the chief law-enforcing officer and of the police but upon that approximation to justice which true statecraft discovers in, and imposes upon, the clash of hostile interests” (Morgenthau, 1967:121). Justice, in modern democracy, has become a standard policy for the evaluation of governance indicators and the base of constitutional order. Right to information embedded in Nepal’s constitution is, therefore, couched in to make governance both transparent and accountable to citizens. Politicization of Nepalese citizens on the constitutional rights is essential to liberate them from the apolitical, non-political, anti-political even excessive partisan clutches and rescue politics from excessive ideological overtones.  To become political means that everything is decided through “words and persuasion and not through force and violence” (Arendt, 1998:26) or abuse of money in politics which according to Ronald Dworkin, “is the biggest threat to democracy” (1996:19). Excessive monetization and commodification of Nepalese lives as an optimal laissez-faire solution of its problem of ecological, social, educational and economic development have incubated multiple crises and generated tension between freedom and egalitarian concept of distributive justice. Its future constitutional order, therefore, requires coping with the changing images of politics at various levels and their transformational impacts on law-making process.

a-The Construction of Individual Image

The nature of human beings has three fundamental dimensions: “biological, rational and spiritual. By neglecting their biological impulses and spiritual aspirations, legal rationalism misconstrued the function reason fulfill within the whole of human existence” (Morgenthau, 1967:5). The moral human desire for a political community with other human beings is based on reciprocal relationship of meeting each other’s needs and excite social trust, feeling and security. This desire is helpful to temperate the first image of politics rooted into what political realists call “selfish human nature” governed by an instinct of domination  and, therefore, to be regulated by a powerful Leviathan. Obviously, this image amounts to pre-political concept of human nature. A robust constitutional state can set clear boundaries between private and public sphere, protect citizens’ rights, become a common source of judgment and co-owner of the properties in common. Idealists, therefore, believe in the power of peace economy, education, culture, social contract and civil society arguing that knowledge about common existence and sharing of national common liberate citizens from fear, poverty, necessity, scarcity and denials and offer them freedom to enter into the rational pursuit of self-chosen membership, enterprises and wellbeing. In this context, constitutional law not only fosters sociability but also mediates the freedom of the life-world and the legitimate order of the political system within the framework of the “middle path” as this is the only way to create a “mindful society” historically espoused by Nepal’s public culture. More to be posted next week: Ed.

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