Note On Constitutionalism
Dev Raj Dahal
Constitutionalism refers to the rules of fair governance. As a vital element of democratic order, it lays the design of a polity central to power distribution, its ties with the state’s institutions and citizens and code of conduct to coordinate a variety of goals in many realms. Aiming to place rule of law, it sets the normative standards of society to balance between freedom and authority, politics and law and rights and duties of citizens and the state. Constitutionalism averts the tyranny of majority by the wheels of public reason. It limits the rulers’ authority by placing checks on power and creating autonomous legal safeguards to protect minority. It deters the confiscatory sort of distributive struggle of minority and social movements and forestalls both democratic decline and relapse into despotism. Democratic constitution aids the poor by social policies, taxing the wealthy and devolving resources so that they abide by the rules of game. Embodying political realism, constitutionalism sets a process of gaining, using and transferring power and subjecting vital matters to judicial review. Adjudication means nothing if court’s verdicts are prejudiced screwed or non-carried out. It splits law from the integrity of ethical life.
The ritual of extra-constitutional path of regime change in Nepal has, however, imposed a huge burden on political stability and national affinity of citizens. It has muddled the constitutional which may be lucrative for a slew of legal elites who know how to exploit the flaws of human nature and devour the weak by due process of law. Awareness about injustice can easily recharge the battery of estranged groups to spiral their struggle against the natural selection of life to a higher plane of global consciousness and draw international jurisdiction to act. Nepal’s constitutional practice has, however, saw the primacy of power equation over norms, values and cultural wisdom cutting the unity of political life with the state. Conformity with constitutionalism can make Nepal better governed. But it will not make Nepalis happier unless quality of life improves.
Trapped in web of power than the reason of constitutionalism, Nepali leaders failed to tend law-based conduct of citizens prompting the alienated to indulge in stir and ease the collapse of one Constitution after another. The Constitution of Nepal 2015 has experienced a thorny delivery though it added more rights to citizens and was endorsed by a vast number of legislators. It faced a strong resistance from Madhesi parties while India had tied itself with the UK and the EU to oppose it for not being amply “inclusive.” It unveiled that Nepal’s post-conflict order has substituted one type of conflict by the other finding the constitution no immune from geopolitical infection. The discrepancy in normal politics and huge promises in the constitution and incoherence of its various parts and unlawful behavior of elites have burdened it with infinite tasks beyond the capacity of the state to carry. As a result, political game is pivoted on who should control power, not settle peace, justice and progress. Evolved as a compromise text of fractious political parties-NC, Maoist-Center and CPN-UML- the constitution faces a clash between norms and facts. The spars of radical left, social movements, armed actors and right wing, blinded by their politics, can be harder to extirpate if leaders defer demands and amend the constitution without caring its effects. Without all actors ensuring a stake in the polity, the constitution will continue to face extra-constitutional challenges.
Nepali constitution embodies scores of democratic values for the creation of an egalitarian society. But it failed to pull away from the pack of multi-caste, ethnicity, gender, religion, class or territoriality to catch its own legacy of enlightenment. As a power map for shared rule, constitutionalism reflects the national goals and course. Discursive production of law is enduring. It allows the inclusion of interests and values of all sides. Nepal’s constitutionalism is, however, facing a tension between those seeking to amend the Constitution and those finding no rationale for it, bargaining for interests and sharing values, and constitutional spirit of socialist-oriented economy and the reality of corporatism. A major shift has occurred in Nepal as law is finding resonance in popular sovereignty, albeit the tensions between economic dependence and independence, secularism and multi-religious society and equality of citizenship and reference to multiple castes and races. Democratisation process propelled by citizen equality is hamstrung by a politics of difference. So long as civic engagement revolves around personalised leadership, the separation between the public and the private sphere remains blurred and issues are settled less on the basis of constitutionality than the fallacy of legal logic. In such a context, constitution fails to become a safety valve and arbitrator of rival forces signifying a shared common good. Nepal’s constitutional peril is that proportional representation will always create a patchy legislature given its plural electorate and executive will chronically suffer from a game of musical chair. Acculturation of leaders into its ideals can reshape democratic thinking and habits. The civic roots of its culture are conducive to constitutionalism as they prized justice at multi-sphere to maximise citizens’ happiness.
The declaration of secular, federal democratic republic, social inclusion, proportional representation and gender justice helped Nepalis to redefine their social ties contesting what is undemocratic in its political culture. Democracy, as a bottom up process, presumes the self-liberation of citizens. Elected bodies are its laboratory. Engaged citizens see the prospect for: social representation, the the rise of network politics, contestation of the boundaries of majoritarian democracy, and the universalisation of human rights through the legitimacy of international obligations and constraints. Their constitutional awareness is vital to fortify engaging culture, make leadership accountable to social contract and nurture a culture of compromise between the politics of opposites and control wild appetite for arbitrary action, cronyism, impunity and corruption hostile to criminal justice system. If Nepal’s macro institutions uphold national integrity and constitutionalise societal institutions they can defy entropy and make constitutionalism a self-binding ideal. But if the leaders and legal fraternity feed each other they can subvert its virtue. The challenge in Nepal is how to foster legal culture driven by public reason.
Constitutionalism entails reforming bleak economic basics and giving Nepalis a choice in the life’s process, not only the unequal exchange of its labour for capital whose social costs stay howling. Given Nepali parties’ manifold inclinations leadership consensus at the top remains fragile to address power dynamics and moral atrophy which bend the values of constitutionalism. Business penetration of politics and political penetration of bureaucracy mar its spirit to balance the interest of class and the mass in policy matters. Nepal is suitable for a culture of constitutionalism but undue passion of mini-identities requires optimisation. Its roots of civility provided Nepalis to stay together and build collective cultural memory conducive to a stable national identity. Cultural factors and social diversity are two key elements for democratic checks and national resilience. But Nepal needs to overcome two critical democratic deficits: substantive one in the grasp of all Constitutional rights and equalisation of welfare across diverse groups through evidence-based policy; and procedural one in terms of proportionality of social representation in power to erase the legitimacy and efficiency gaps. This can discourage politics of distributional coalitions seeking to negotiate the weak Nepali state for sectoral benefits and check the modernity’s hedonistic treadmill infecting Nepali constitutionalism and leaving its citizens restless than before.
Two ironies pervade Nepal’s constitution: promise of social welfare state and funding crunch to realise it leaving its politics aspirational and right to self-rule inherent in popular sovereignty which bars the impunity of interest groups but inability to govern local bodies as they face legal, administrative, infrastructure and resources bottlenecks. Partisan legal culture has become an enemy of reason where even a close circle of legal fraternity detests each other’s views and defends its side despite its demerit. It has stymied Nepali state’s ability to execute the constitution even with huge electoral legitimacy. Democracy within the state sets an open-access order for its citizens while beyond the state entails “institutional closure” and constitutional outreach to international regimes and laws. Lack of coherence between the state, economy and citizenship, beyond the state forces is flagging state-centric constitutionalism.
Political stability in Nepal requires the lawful tradition of politics and attainment of autonomy, reliability and adaptability of public institutions in service delivery. Inequality of resource affects the quality of democracy and deprives one-third Nepalis at the bottom having no control over their destiny. They need resources, skills and opportunity. Democracy is the project of modernity. It abhors both pre-modern politics of tribalism and post-modern lack of affection to national affinity. As a compromise formula, it stresses on building the national identity of citizens. Nepal’s constitutional history suggests that discontinuity of politics marked the failure of political classes to achieve their political tasks and create more winners of democratic game. A win-win outcome can create the stake of rural poor and minorities, women and Dalits and their ownership in its process and ignite a fresh faith in constitutional governance.