Towards a Constitutional State

<br>Dev Raj Dahal,

March 28, 2011, 5:45 p.m. Published in Magazine Issue: Vol. : 04 No.-19 Mar.25-2011 (Chaitra 11,2067)

Nepal is in the process of national envisioning for the construction of a democratic state. It is creative moment for the citizens to exercise their rights and express legitimate aspirations through various participatory mechanisms in the Constituent Assembly. But, these rights can be realized only within an effective state having legitimate monopoly on power and ability to enforce rule of law. A democratic state, moreover, also unites the general will of all citizens into a sovereign power to abolish the state of nature and reduces the menace of fear in society stoked by irrational human nature, nature of state, and “state of anarchy,” which political realists uniformly label for the nature of the current world system. Civilized states have already resolved this problem through democratic-will formation, harmonized laws with the fundamental rights of citizens, established the rightfulness of law and legislative legitimacy. Similarly, they formulate public policies in the spirit of constitutional laws and muster the loyalty of citizens in constitutional patriotism considering that modern society can be integrated mainly by laws approved by citizens. Constitutionalism, in essence, requires correct disposition of power, rights and policies. And all conflicts—identity, interest and ideology-based—are resolved within its realm.

In Nepal, the peace accord and Interim Constitution define the framework of constitution envisioning the authority of state based not on power equation but on democratic principles. The peace they postulated aims to reduce conflict by eradicating the structural injustice of society, bringing social transformation, and setting off post-conflict peacebuilding process. One can, however, see a clear disjuncture between the public expectation of post-conflict peace dividend, and the leaders’ incapacity to create open-access public order that proscribes the use of violence and allows citizens to pursue their rights and enterprises. This has left the national goals of drafting constitution, social transformation and durable peace in a tenterhook. Constitutionalism requires legislative enlightenment, in which political action can be judged legitimate, and broader public participation is allowed in the constitution-making for self-governance.  

Constitutional Control
The Nepali state presupposes constitutional closure in a number of areas to resolve all contesting issues within the bounds of Constituent Assembly. First, democracy is tied to national self-determination of citizens in all national initiatives including constitution-making. Unreasonable external penetration on constitutional drafting and public policy undermines public ownership in it. Public policy making is the prerogative of the national parliament as it is regarded political microcosm of national representation. Any measure to formulate laws through extra-parliamentary means offends popular sovereignty and undermines its legitimacy. The demise of the constitution of 1990 is precisely attributed to the insertion of neo-liberal policies into liberal constitution and its divorce from public expectations of social justice. Second, citizenship as a member of state is bound with it by reciprocal rights and duties which is also a basis of nationalism, the ideology of the state, which liberates the society from feudalism and colonialism. This means loyalty to the state overrides other loyalties to subsidiary identities, such as class, caste, gender, ethnicity, and territoriality.  Schopenhaur is right in arguing that human beings cannot be exhausted in biology or ideology. Third, recruitment of army is tied to national citizenship, not those who attack nationalism through the instrumentalization of primordial and communal passions weaken state-bearing institutions. In a security vacuum rule of law becomes just meaningless. Fourth, the creation of social welfare state is linked to the control of the immigration of foreigners because native citizens are legitimate claimants of welfare rights. But, the spread of globalization beyond the writ of state, has blurred the boundaries between domestic and foreign policies. In all these areas, however, the implementation law in Nepal faces major challenges. The operation of laws under the condition of structural injustice amounts to its oppressive nature and cannot make the poor stakeholders of polity. Minimum level of property rights to each citizen is prerequisite to their freedom and dignity. 

The cosmopolitan requirements, however, have increased the constitutional opening of Nepali state to external environment, public international law, commitment to human security and rights with the ability to complement governance effectiveness including its role in the balance of geopolitical interests. In such a context, the constitutional state of future Nepal has to be designed in a way to lower transaction costs enabling its governance to realize its goals. Constitutional control cannot become a ground rules for coexistence in a society obsessed with utopia, radicalism and unattainable goals and divided by caste, class, gender, ethnicity, and territoriality. The maximization of these factors in Nepal is increasingly discrediting democracy, eroding national perspective and breaking democratic equilibrium of the polity. Noisy byways of politics risks the mounting of public cynicism. 

Crisis of Rule of Law
Law can prevail only under rule of law, a law that socializes citizens to act according to constitutional tradition of politics. In Nepal, crisis of law springs from many sources. First, interest of political parties to implement multiple ideologies rather than agreed laws and public policies in the country is flagging the common identity of law makers and citizens. It has marked a coming crisis of Nepali citizenship. Second, the basis of laws on property ownership, not public reason, has made laws of no consequences for the poor. Third, the problems in de-linking violence from politics and perpetuation of impunity for powerful have eroded the impersonality of law. And finally, inability of rule of law to establish human rights of citizens as sacred and inviolable has created trust deficits. Law can become a medium for social and system integration in Nepal if it is grounded in universal public reason and public participation. Legal technocrats’ vehement arguments in defense of known culprit against innocent citizens in no way amounts a fair justice in a country like Nepal where legal literacy among Nepali people is pathetically low and majority of citizens cannot afford to buy the service of lawyers. If a hefty fee makes legal technocrats unconscious of the corruption of self-interest, law fails to become a conception of common good.  To be truly sovereign in the implementation of law, Nepali state has to render itself autonomous from the dominant interest groups of society and address the distributional struggle of the poor for social justice, a conception of higher law, necessary to achieve a stable peace.

Leadership Challenge
The deviation of Nepalese leadership from both state-bearing institutions and local governance and their bids for executive power have weakened the division and devolution of power and any zeal for the transformation of negative peace into positive peace. It has begun to erode the nation’s civic spirit itself undermining moral and political checks of national polity. As a result, the proliferation of factional politics has produced continuous deadlock over power-sharing and constitutional issues diminishing the outreach of state in society. None of the parties are able to  inspire confidence in each other for the vision of a common good and address the anarchy of armed outfits who oppose state sovereignty. In this context, autonomy and fairness of judiciary and watchdog functions of civil society, media and public institutions are necessary. Informed dialogues among the leaders of major parties are essential to open up a common ground and provide room for each other’s legitimate interests to work for the creation of a democratic system. The task of leadership is not to criticize who is right and who is wrong but to synthesize contesting constitutional perspectives into a national draft of the constitution acceptable to all sides. Civil society has to instill an enlightened vision so that democracy refuses to recognize the power of class interest of leadership over its own citizens who are equal members of the same political community.

Imperative of Active Citizenship
The intense craving of Nepali citizens for a release from their suffering from basic needs deficits has made them non-stakeholders of rule of law and constantly struggle for change through extra-constructional means. In the situation of utter contempt for the powerless, constitution building requires inventing proper means to reduce the level of structural injustice by offering peace dividends, curtailing the menace of violence, and democratizing the pyramids of undemocratic structures so that journey to self-realization becomes easier. But this ultimately means that Nepalese leaders have to be accountable to politics as a public responsibility and link the society to the public sphere rendering it active and articulate more openly. But this would be possible only by fostering an ‘active citizenship’ aligned with the public political culture and make leaders accountable for their actions. Active citizenship is a powerful deterrent against the democracy’s undemocratic drift.

Democratic Equity
Building productive relationship with the cultural industries such as media, civil society, public intellectuals, intermediary institutions and social movements can alone awaken the leaders to their accountability towards drafting a social contract, structural reforms, and sustainable peace through rational consensus in the Constituent Assembly. All this can also help to weaken the confidence of the spoilers of peace. A rational consensus based on public interest shuns the concept of winner and loser and renders leaders accountable for the benefit they recklessly enjoyed from democratic deficiency. It is possible to overcome this situation if intermediary institutions nurture social capital across various empirical divides of the nation and socialize their leadership in the virtues of politics as a common good to revitalize the national economy and establish the impersonality of constitutional rule. It is equally important to rescue Nepalese politics from unattainable promises. 

The challenges before the upcoming new constitution lie in building bridges across the gaps between the state and citizens, institutions and aspiration, and groups and individuals through healing and reconciling with the spiritual, social, economic, and political resources of the nation. This, however, requires a self-reflective learning of the leadership about the wisdom of ordinary folk, public opinion, and cultural heritage of the nation’s tolerance of diversity nurtured by its sages, statesmen, and citizens for long. It is preposterous to think democratic state without acknowledgement to historical identity of its nation and tolerate external intervention in whatever the name.
Excerpts of Paper predented by Dahal, head of FES-Nepal, at a Half day Workshop recently.

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