Dev Raj Dahal
Head, FES Nepal office
“Animals eat one another without qualm; civilized men consume one another by due process of law.”
Will and Ariel Durant, from the Lessons of History.
Nepal entered the second phase of political transition in May 2012 with the dissolution of 601-member elected Constituent Assembly (CA) without promulgating a new constitution even after four years of weary political rehearsal, two years more than the stipulated deadline, by using the ‘doctrine of necessity.’ The political tumult of April 2006 opened the first political transition with a revolutionary hope and super-structural reforms by declaring the country secular, federal, democratic republic. These reforms, however, remain far from consolidated. The top leaders of ruling parties-- Unified Communist Party of Nepal (Maoist), Nepali Congress (NC), Communist Party of Nepal Unified Marxist-Leninist (CPN-UML) and United Democratic Madhesi Front (UDMF) – could neither agree on key constitutional issues including federalism nor engaged citizenry deeply in the deliberative process of law-making as requiredfor constitutional enlightenment. This has made national politics completely deadlocked tarred by the brush of failure of one government after another. As a result, mainstream parties favored the formation of techno-bureaucratic interim election council of ministers in March 2013 chaired by Chief Justice of Supreme Court Khil Raj Regmi to hold the second CA election on November 19. The ruling parties frankly admitted that they have to accept this dispensation by ‘necessity,’ rather than a matter of principle and determined will. Still, they feel comfortable with the control of the government through High-Level Political Committee (HLPC) rotationally governed by their leaders to create election-friendly environment, muster support from the obstreperous opposition, distribute ministerial and constitutional posts among themselves and steer the governance. The selective elevation of party cadres and bureaucratic elites in the constitutional bodies in a patrimonial manner, however, spurred the re-feudalization of public sphere. It has offered a false remedy to the problematic condition of democracy in Nepal. One wonders whether the second CA election can be expected to create universal rationality of electoral legitimacy, include the neglected into the public realm and revitalize the nation’s representative institutions to escape enduring political transition if it has integrative potential.
The CPN-Maoist led 33-party alliance, 22 member of NC central committee, civil society and Nepal Bar Association perceive the regression of constitutionalism in the new dispensation. They consider that the new political dispensation lacks necessary political will to build trust among the political parties of various spectrum, garner legitimacy to enforce their will and open a creative moment for the citizens to express their political choice in the CA election, enable them to exercise their increased rights, realize aspirations through various participatory mechanisms and renew the democratic impulse of society for self-governance. Opponents of the government argue that Regmi’s assumption of executive power without resignation from Chief Justice undermines the principles of constitutionalism, popular sovereignty and democratic separation of power which prompted them to unleash election-boycott campaign and float the idea of roundtable dialogue of all politically significant forces for a new party-led government. How can the mainstream leaders prevent the radicalization of opposition when they continue to enjoy the advantages of incumbency? Can the second CA election be free and fair and allow the citizens to exercise their free judgments or remain conditioned by the judgments and actions of those who control the reins of governance while those outside it do not have stake in it, resist it and continuously negotiate other’s bottom line such as no postponement of November election and no change of government? Can it inspire opposition groups to electoral participation when their bottom line for talk is the roundtable dialogue for the formation of a party-led government? Does it guarantee peaceful progress when the Nepali state’s Weberian “legitimate monopoly on power” to create election-friendly environment, enforce rule of law and deliver essential public goods has been significantly weakened? This article describes the constitutionalization of state and Nepali society characteristic of a civic culture, institutional closure and political order, transformation of law with the innovation of substantive democracy, the need for democratic equity, weaving the web of peace and active citizenship in the country through rights-oriented discourse and needs-based fairness in the distribution of goods and services.
The Constitutionalization of State and Society:
The restoration of Nepali state’s legitimate monopoly on power is essential to subdue chaos, strengthen coordination among all constitutional bodies, create legitimate political order and turn political aspirations of citizens into legitimate course of action. The state should be powerful enough to defeat any anarchic agents in its domain (Schofield, 2003:92) and work toward the realization of its Directive Principles and Policies. In a constitutional state, the separation of power among the constitutional bodies and the state and society guarantee each other’s autonomy and freedom. But a democratic state unites the general will of all citizens into a sovereign power to abolish disorder, corruption and inefficiency and reduces the perils of society harbored by unreasonable human nature, nature of state based on power monopoly, and the state of global anarchy where nation-states are increasing their defense buildup and generating a security dilemma, competition and conflict affecting democratic evolution of society. “A society has an anarchic polity to the extent that it lacks society-wide rule-making and rule enforcing institutions” (Brown, 1992:29) while citizens daily reflect their location in the state’s distribution of power. In this context, the quest for an inclusive “community is timeless and universal” (Nisbet, 2004:34) for the achievement of political stability, economic development and social peace.
Many developed states have already resolved the problem of building a community through democratic-will formation, harmonization of laws with the fundamental rights of citizens, establishment of the rightfulness of law, legislative and judicial autonomy, active watchdog agencies, robust civil society groups engaged in eradicating archaic social and cultural prejudices and establishing the constitutionality of state-society collaborative action. Similarly, they have formulated public policies in the spirit of constitution and mustered the loyalty of citizens in constitutional patriotism considering that modern society can be integrated mainly by secular laws based on public reason and approved by sovereign citizens. Caste hierarchy, patriarchy and instrumental domination of nature in Nepal are the traits of a pre-capitalist society which are now being eroded by the new awareness of democracy, modernity and human rights while forces of economic globalization and post-modern forces flatten the constitutional boundaries. The post-modern turmoil of identity politics and its logic of fragmentation has, therefore, become self-defeating (Bronner, 1997: 13). It seeks to subvert civic nationalism and emancipatory aspirations of Nepali citizens from constraining conditions and traditionalizes the society according to pre-existing social stratifications and division of labor clogging an opportunity for social mobility of under classes of citizens at the rock-bottom of poverty.
As a decision-making system, the autonomy and integrity of politics in Nepal are, therefore, central to create a responsive rule and unite Nepalese to each other through a faith in binding social contract, a workable constitution. Modern laws formulated through discursive consensus have the potential to separate the impersonal law from the personalized hukumi sashan (rule by fiat) and modern legitimacy based on what Max Weber calls “legal-rational authority” from traditional leadership rooted in patrimonial culture. Social solidarity based on modern laws holds the ability to unite all citizens in national framework and abolishes the “unwritten” transcript of society which inclines to control the social mobility of under-classes of people. The autonomy of politics as a public sphere is essential to link the state with society and improve the quality of social existence. Juergen Habermas argues, “Mutual societalization of the state and stateification of society destroys the condition of possibility of the public sphere and separation of state and society” (1989:141).
John Rawls believes that in a democracy the “idea of public reason is integrated to the law of peoples, which extends the idea of a social contract to the society of peoples and lays out the general principles that can and should be accepted by both liberal and non-liberal (but decent) societies as the standard for regulating their behavior toward one another” (1999:vi). Constitutionalism, in this sence, presupposes correct disposition of rule, power, rights, institutions, laws and policies. And all conflicts—identity, interest and ideology-based—are resolved within its realm (Bleie and Dahal, 2010:40-41). Constitutionalism requires legislative enlightenment of both Nepali leaders and ordinary citizens in which their political action can be judged legitimate and broader ownership is allowed through public participation in the constitution-making, policy making and peace building for their fulfilling life. Both Aristotle and Hegel are convinced that “society finds its unity in the political life and organization of the state” (Habermas, 1997:1). But, in Nepal, this unity has now become increasingly unstable due to the erosion of constitutional tradition of politics. The system of nation’s natural environment, society, polity and economy is suffering from incongruity as leaders have used contesting universal ideologies to deconstruct the historical identity of the nation, its sovereignty rooted into popular aspirations and fraying the state-society coherence. No general consensus exists among the political parties about society’s common social and economic goals and means. In the post-conflict setting, a model of winners and losers can easily flag the idea of social solidarity and cultural memory of national identity construction through the formation of “we.”
The Comprehensive Peace Agreement (CPA) 2006 and Interim Constitution 2007 define the broad framework of peace and constitution envisioning the authority of state based not on power equation of only powerful actors, like in 1950, 1990 and 2006, but on democratic principles and reconciliation. The Nepalese leaders’ sudden shift from volts of Maoist’s People’s War and agitation of parliamentary parties to votes presumed to reduce violence by eradicating the structural injustice of society, bringing social transformation and setting off post-conflict reconstruction of damaged infrastructures and lives, rebuilding relationships, rehabilitation of conflict victims, reconciliation of divided peoples and communities and peace-building process. One can, however, see a clear disjuncture between the revolutionary expectation of public for post-conflict peace dividends and the leaders’ deficiency to fulfill their promises and create an open-access public order that proscribes the use of violence and prescribes citizens to pursue their rights, duties and enterprises. “In open-access societies, access to organizations becomes defined as an impersonal right that all citizens possess” (North, Wallis and Weingast, 2009: 6). The emergence of clientalist politics, however, marks the absence of this order in Nepal leaving the national goals of drafting constitution, social transformation and durable peace limping. Some more to follow next week: Ed.