Evolving Digital Constitutionalism

Roshan Pokharel

Constitutionalism, as we understand today, refers to a concept that stipulates that politics should be governed by laws and regulations formulated as per the wishes of the sovereign. It stands for the supremacy of the law over politics and makes individuals adhere to the rules of the game irrespective of their position in society. These are normative principles, yet the fact is that norms do remain the same, but the situation changes for more than one reason. The most important reason, among others, is the changes that can be noticed in the political and legal economy. When the context changes, its content also alters for adaption and successful enforcement of the constitutional order.

The history of modern constitutional states certainly does not have long history. Most of them evolved during the 19th and 20th century. Towards the end of the 20th century, things started changing rapidly which had not occurred in the last many centuries. The framework on which idea of constitutionalism was based and implemented is not so old. Moreover, as is the case, framework keeps on changing. The globalisation has brought significant changes not only in the nature of economy but also governance mechanism for which many states were neither prepared nor thought of. As a result, this has brought serious tensions between constitutionalism and the real situation on the ground.

Challenges 

Likewise, another significant factor that emerged in the early decades of 21st century is the digital technology. Its impacts can well be noticed in every affair of state and human behaviour. Traditional governance mechanisms have become redundant. The classic example one may come up with is the very idea of political participation which has fundamentally changed. Not only that, even the territorial states are also facing sovereignty crisis. This is because the data has become decisive factor in the governance matter, not the physical territory that used to be in the past. 

The statement of British political scientist Harold J. Laski regarding the state and power - ‘who controls what and how’ stands valid. In fact, we are in an age when nation-states are moving towards networked states. Many states really do not have mechanism how to work under these circumstances. How the idea of sovereignty, nationalism, and rights would be understood and practiced in the real sense of the term in the future is not so clear.  Equally important is how democracy and its other paraphernalia would work under these evolving circumstances.  

The past constitutions took context of that time into consideration and very few of them have envisioned the changes that may occur in the future. That said the issue at stake is, therefore, how we inculcate either of them into the constitutional framework so that the recent challenges could also be addressed. Failure to do so would certainly be difficult to move the governance mechanisms ahead successfully. There have been sufficient debates taking place in many parts of the world, but such political discourses have not caught the attention of concerned stakeholders here. The fact, however, is that people living even at the remote areas such as Jumla,  Tinkar and Taplejung can be the beneficiaries of those changes. 

Debates on the nitty-gritty of the constitutionalism in the context of digitization will certainly be helpful in bringing together different perspectives and expert opinions on it. The changes brought about by digitalisation have impacted multiple sectors such as economy, governance, politics, and society one way or the other. Yet, there are some issues which needed immediate attention.

Perhaps this may be the reason, among others, why the idea of digital constitutionalism is rapidly gaining traction and a new wave of scholarship on it growing. Digital constitutionalism is also associated with the platform governance which entails legal, market and technology narratives. Digital technology has not only enhanced the rights of individual but also generated new rights which might have consequences for the equilibrium of the constitutional ecosystem. In fact, digital technology has confronted a series of new normative counteractions, posing a challenge to restore a condition of relative equilibrium.

On the contrary, digital technology has also made it tricky in defining as to what the fundamental rights are and what not. The very idea of power and property has undergone a dramatic modification. They don’t exist in physicality at all – yet they affect the day-to-day life of individual and the state as well. As said earlier, politics will not be the same as of now. Those who control technologies will increasingly control us. They operate in small numbers and remain invisible regardless of territory.

Disproportionate power

Digital technology has, for the first time, divided whole into parts while an individual has been morphed into data which can be processed as per the need. This will also bring the definition of humanity into dispute. The unprecedented growth of digital technology would provide extraordinary powers to the non-state actors who would challenge the raison d’être of the nation-states.  Even the multinational corporations will feel the pinch of new technology. They are likely to be replaced by the new ones who may dictate our life without being physically present. 

In case such a scenario becomes a reality, the current notion of separation of powers will certainly be supplanted by the new ones. There will be new dimensions of separation of state powers and market where majority of decisions are being taken over by technology. The big tech companies have enjoyed a lion’s share of global income, with a vast population getting poorer, thanks to disproportionate power they wield through the control of ideas, human resources and economy. 

 (Pokharel is an advocate.)