Constitutional Approach to Nation-Building in Nepal

The Constitution of Nepal 2015 has incorporated some system features hitherto unthinkable: inclusive, secular, federal democratic republic. It has defined Nepali nation as “entire Nepali people of multi-ethnic, multi-lingual, multi-religious, multi-c

Dec. 4, 2016, 5:45 p.m. Published in Magazine Issue: Vol 10. No. 8,December. 02,, 2016 Mangsir 17,2073)

Defining the Issues

A constitution is the self-organization of society for collective action. It also seeks normative standards for governance which is essential for social cohesion and nation-building. Nation-building is an internally-driven process by which people of diverse social origins develop a common nationality and identify with the national state. After all, a nation is a community of people nested in a state to avoid tribal and sectarian conflicts which also provides safety, food and shelter to its members. The idea of the ‘nation’ comprises many elements—historical consciousness, cultural and religious syncretism, communication and self-determination in politics, laws and public policies.  

The Constitution-making through the twice-elected 601- member Constituent Assembly of Nepal has allowed Nepali citizens the possibility to debate and influence the governing and nation building process by establishing a set of negative and positive rights, and normative political values,  ideas, ideals and institutions as part of  shaping collective national identity of Nepali. Building a common citizenship does not mean cultural homogenization and subordination to others. The Constitution of Nepal 2015has incorporated some system featureshitherto unthinkable: inclusive, secular, federal democratic republic. It has defined Nepali nation as “entire Nepali people of multi-ethnic, multi-lingual, multi-religious, multi-cultural traits spread in various geographic regions of the country and united by common aspiration of national sovereignty, territorial integrity, national interests and progress.” The Nepali state is defined as “independent, indivisible, sovereign, secular, inclusive democratic, socialism-oriented, federal democratic republic.”

The pertinent questions are: Are the Nepalese political actors, bureaucracy, business and civil society socialized to internalize these values, practices and political culture or they stand divided on these values? Do they have memory of constitutional history of Nepal or maintain collective amnesia? Can they reconcile customary and civic power and the sanity of tradition of national independence and modernity and change as per the spirit of interdependence age? The beauty of the Constitution is that it is flexible in character which can be amended with the weight of public opinion but the government and opposition are caught in loggerheads risking the fear of constitutional crisis. The following areas are important for nation-building of Nepal:

Constitutional Enlightenment

A constitution can flourish only when it protects the interests and relationships of diverse citizens of the same nation-state and citizens know the basic contents of the Constitution. Spreading civic education about the basic features of the Constitution can corrode extremism and alienation. Nepal’s Constitution has developed equal entitlements to all citizens such as 31 citizenship rights and 4 duties, separate rights for some, inclusive commissions for other articulate groups while the poor and minority are entitled with distributive justice. All these elements have remained far from consolidated as there is short supply of effective governance reflected in a balance of demand and supply of basic state goods, such as security, rule of law and public services. Nepal has endorsed both sets of human rights –civil and political and social, economic and cultural rights and used them as central point to legitimize nation-building process. Political culture of Nepal, however, is deeply influenced by the psychology of protracted political transition driven by three major forces-conservative, moderate and radical ones.  It is precisely this transition and conflicting approaches of various parties on constitutional issues, the sense of national unity in Nepal has become weak and political will for the implementation of Constitution dithers. The ideologies of neo-liberalism, liberalism and communism espoused by mainstream Nepalese parties, however, contest national knowledge, values, history and heritage of tolerance of diversity that gave this nation endurance and unity for long.  The existing passion for identity politics of certain groups grew in Nepal as a reaction against the dysfunction of dominant ideologies. The missionary zeal of identity politics has, however, negated the meritocratic achievement-based political culture and fumbled for lives of differentiation, not national unity. 

Bridging Gaps between Constitutional Forces

Nepal has carried governments of different political leanings during the transitional process and suffered an awful hiatus on constitutional issues (federalism, citizenship, electoral threshold, local government, direct election of executive, secular state, etc) between “general public opinion” and “elite solution through the negotiation among political parties.” The growing remittance economy, technology, social media, freedom and change give rise to the voice of selfhood which is altering gender and intergenerational social relations in Nepal. In this context, a constitution defined by exclusive elite consensus looks for output legitimacy, not the input legitimacy that requires “substantive democratic process” and validates the issues on the basis of popular interest.  As a result, Nepali nation is excruciatingly steering towards post-conflict reconciliation, post-earth quake rebuilding and post-blockade geopolitical adjustment through constitutional amendments. There is a slight progress in the social context of politics following two amendments. Still, risks of social and political protests by Madhesi, Janajati and Aadibasi groups have not dissipated.  They have shifted the style of protests to urban nodes, but not altered the contents. Nation-building in Nepal requires adequate socialization of youth into the nation’s political culture that can fulfill their political, ethical and spiritual longings.

Ownership in the Constitution

Top leaders of mainstream Nepalese parties are efficient at “bonding” with forces close to them but less capable of “bridging” with forces which differs with them. There is a noticeable gap in connecting links between the government and the opposition.  Implementation of Constitution requires collective will of all politically significant groups, bridging the gap between the government and opposition, role of “connectors” of society, the centripetal forces and opinion makers. Ownership in the Constitution is a first step while formation of vertical structures of multi-level governance is another, drafting relevant laws for national, provincial and local elections is still another. Only the dissemination of civic education about the rights and duties of Nepali citizens inscribed in the Constitution can satisfy them, enable to transform Nepali people with diverse identities into equal citizens and make a clear cultural shift from the politics as a matter of ethnic, regional, gender and caste identity to Nepaliness.  

Overcoming Nation-State Weaknesses

Democratic constitutional state is based on Weberian “legitimate monopoly” on power, taxation, loyalty of citizens and international recognition. On all these aspects Nepali state is weak and it has not been able to execute the Constitution. It has posed difficulty in maintaining the constitutional vision of national unity.  Federal question for all intents and purposes remains far from settled. The clash of solidarity of sub-national forces with the nation-state founded on disembodied ideologies, identities and scholarship has continued to hobble the capacity of state to steer and expedite national reconstruction forward. In Nepal, there are number of well-recognized indicators for state weakness potentially feeding system dysfunction: incapacity of government to perform vital tasks such as balancing geopolitical interests of the neighbors to resolve their security dilemma, inabilityto regulate the porous borders and undersupply of essential goods, maintain territorial security, manage disharmony between hill-Tarai communities, control the growth of criminal violence of non-state armed groups, corrupt, rent-seeking actors and institutions, renew rotting infrastructures which cannot boost up the foundation of the nation’s political economy and harness its enormous development potential derived from its own natural resources and human made resources such as skilled labor, infrastructural development and technology utilization for nation building.

In this context, state weakness essentially means under-performance of public institutions and fading capacity to address the scarcity of political and public goods. These factors delink the vision of Constitution from nation-building. It is important to identify some fundamental categories of state weakness of Nepal in enforcing the constitution as a tool for nation-building: underlying unwillingness of a section of Madhesi, Tharu and Janajati population to accept Constitution and rules; uneven kinds of rights, privileges and commissions for various types of people placing citizens with uneven level of access and  loyalty to the state; and political parties of various hues and their conflicting socialization patterns stratifying and disuniting the general population and hitting the ability of society for resilience and social cohesion. Only the constitutionalization all social, political and economic actors enable the Nepali state to stand above the dominant interest groups of society, become impersonal and offer ecological, social, gender and intergenerational justice inscribed in the Constitution.

Popular Sovereignty and Inclusive Citizenship

The Constitution of Nepal has mentioned the sovereignty of people. It presupposes the sovereignty of state.  The popular source of legitimacy in Nepal is ‘the people, constituted as a nation,’ a concept which substantially calls for equilibrium between both the leadership and the citizens, and a connection uniting both simultaneously in a nation-building project. How the Constitution of Nepal can bring entire Nepalese into a stable zone of governance allowing diversity of local cultures and sub-cultures coexist under national penumbra and jurisdiction? Perhaps policy makers should learn from history and future shape of things to come as to what kind of educational, livelihood and freedom-related politics, law and public policies would open up range of options and possibilities for Nepali citizens.

 A successful nation-building process in Nepalrequiresa common process of socialization and collective formation of meta-identity—citizens--with a view to legitimizing the use of public power withinits territory. Ironically, neither media, nor educational institutions, not even political parties foster the common process of socialization along Constitutional spirit and contribute to cohesive nation building. Nepal as a state is small confined to its territorial jurisdiction but Nepali society is large spread out in over 100 countries of the world. They are maintaining Nepali identity but they are not the citizen of Nepal. For example, now they are called Nepali-American, Nepali-Indian, Nepali-British, etc. The Constitution itself has become a central object of collective loyalties and even substitute for other objects of identification so that traditional elements of identity, such as religion, caste, ethnicity, region and gender help cultivate the civic identity of the nation. All these identities are social and political constructions, not natural.

Nation building is an essentially “indigenous process” which oftenplans a shared future and harnesses existing rational aspects of cultures, norms, institutions and customs, redefining them as national characteristics of uniqueness in order to support the state’s claim to social inclusion, national unity and sovereignty. It is erroneous to emulate entirely foreign reconstruction by calling Nepali citizens Bahun-Nepali, Dalit-Nepali, Tharu-Nepali, Janajati-Nepali or Madhesi-Nepali which only highlights “otherness,” of self-declaration of second class citizenship to stoke grievance-based politics. This is an instrumental approach as it classifies Nepali people into a new shape to manipulate them away from nationalism for narrow selfish purpose. Those who fought for national unification do not prefer “otherness” having no history of contribution and no concept of citizenship equality. It is just a caricature of outsiders which doubts “good inclusive citizenship.” 

A flourishingnation-building process has taken place essentially in those states with substantial elements of social modernity which helped to de-tribalize the population and spur the transformation of their parochial loyalty to the modern constitutional state. In this sense, Nepal’s constitutional stability rests on linking the layers of each sub-group of the people to national consciousness and their psychological, emotional and social connection to the nation-state so that they do not relish selfishness at the expense of common good defined by the Constitution of Nepal. Constitutional virtues and public spirits prevent the risk of a slide of the nation back to pre-modernity—tribalization of society and post-modernity couched in a politics of deconstruction of national center and denationalization of youths by economic policies associated with pre-capitalism. In the future this trend will change as capital ownership has been mostly privatized at the upper level while labor’s contribution to national income has increased substantially to over 35 percent.

Nation-Building and Constitutional State

Constitution is a unifying factor to organize the Nepali society of 125 social classes, 123 linguistic and over 7 faith-based groups of Nepal. The Constitution of Nepal seeks to transform traditional nationalism into constitutional patriotism as demanded by structural transformation, strategic shifts and individualized leadership to impersonal administration and governance. The Nepali Constitution can help nation-building in various ways: first, it seeks to unite the people of diverse social origins to choose collective path to peace, progress and political stability no matter whether there is a grand, loose or fragile coalition government. Second, it helps to restrain the tyranny of majority and confiscatory sort of distributive struggle of minority for seizing the property from the rich and weaken the ability of the state to maintain social contract and public order. Already caucus, interest and pressure groups are nursing their grievances against constitutional provisions, aligning with certain geopolitical interests and defending sectional interests expressing themselves in the language of only rights, not duties.  

Group-based identity politics in Nepal is designed to achieve this objective. Ironically, group-based rights ridicule the fundamental expectations of Nepalese that all citizens are equal and they cannot be reduced to single group identity. Reduction of multidimensional people into one-dimensional identity deprives them of their sense of nationality and humanity. It only walls off comprehensive thoughts and compassion to other groups. Third, principally, the Constitution is designed to reflect national values and interests and bring the unity of 181 political parties, caste and ethnic communities, linguistic groups and faiths in order to achieve the coherence between the state and society and move along modern governance—laws, rules, social audits, subsidiarity, accountability, transparency and efficiency designed to serve the people constituted as a nation.  The sovereignty of Nepali demos has fused the nation into the state. This is expected to bridge the gap between elites and the people.    

National integration can, in most cases, only be achieved if the source of power and the rules governance are considered legitimate in the eyes of public enabling leaders and citizens transcend group-based loyalty to the nation-state and defend civic nationalism that liberates them from feudalism, colonialism, authoritarianism and external micromanagement that suffocates both national articulation and national self-determination. Nation-building essentially demands the citizens’ habits of obedience to national law and governing rules of society while social actors-the state, market, civil society and all constitutional bodies are made accountable to the citizens. Greater participation of Nepali citizens in the ecological, social, economic and political life of society is a must so that they are not reduced to either political and media indoctrination or financial engineering and fail to reconcile the conflicting impulses of society’s search for a vibrant middle path.

Democracy Strengthening

Promoting democracy as a set of principles, values and ideals is an element of national identity-formation of enlightened and autonomous citizen and cultivation of good character.Strengthening democracy in Nepal requires democratization of the inner life of bureaucracy, political parties, civil society and public institutions and the utilization of its historically evolved national ethos of “a garden of multi-colors”that supports social pluralism, heritage of tolerance and community resilience which gave the continuity of Nepali nation since Vedic, Janak and Buddha days to the unification of Nepal by PN Shaha when there were only 17 sovereign nation-states in the world, the nation being eight years older than the United States.  Nepal’s political narratives of national independence and unity have not changed since then despite generational change and experiments with multiple forms of governance.

The Constitution of Nepal has adopted a culture of inclusion, listening, political deliberation and negotiation of conflict of interests, ideologies, and identities. Politics is public realm because it helps to create a common ground for various partisan interests. The tendency of political parties in Nepal to stratify the population in the binary code of “we” and “they” and expand political constituency for power struggle, however, must be tempered with national purpose. Genuine national politics rebinds the diverse people discovering common identity of Nepali and enable one group to learn from the other. Reconstruction of national identity democratizes the public institutions through the negotiation of a post-conflict social contract which means leaders and citizens cannot act arbitrarily against the laws of the land and national interests. The subordination of every aspect of life to the imperative of power is, however, authoritarian because it undermines the integrity of democracy--checks and balances, devolution and spread of power in society for the state-society coherence. Similarly commoditization of national security, rule of law, nature, culture, health and education does not enable constitution to foster nation-building. One can witness the fate of liberal Constitution of Nepal 1990 subverted by neo-liberal policies of creative destruction, destructive creation of People’s war and deconstruction of national character by post-modern leaders and think tanks. Each of them misconstrued the purpose of democracy and caused national stress.    

Conclusion

National political parties must have to make a “common cause” with each other and politically significant groups of society in the implementation of Constitution of Nepal and to foster a viable path of democracy, nation building, reconciliation and social peace. Election of local self-governance bodies offers more stability and inclusion, restores the right of citizens to decide for themselves and a return to effective governance the nation is looking for in fulfilling citizens’ basic needs, rights and freedom through resilient rebuilding of the national state.  Reconstruction of economy, health, education and communication infrastructures, the supply of some form of welfare benefits for the needy and expansion of social opportunities for participation for the youths and marginalized in the political process help the citizens understand the merits of good governance. The quality of democracy in Nepal can be beefed up through controlling corruption, respect for human rights and service delivery to the citizens. Economic inequality challenges social cohesion and hobbles national unity, therefore, due diligence on business conduct is essential for it to gain trust of people. Greater economic growth, investment in job-creation and poverty alleviation and trade can benefit all. The challenge ahead is how to diversify economy and social relationship from primary level of family to nation-state and cosmopolitan levels so that the Constitution can muster all the resources of statehood—resources, recognition and responsiveness to realize Nepali citizens’ rights, needs and legitimate aspirations and fulfill international humanitarian obligations. 

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