Saturday, 4 December, 2021

Consolidating Constitutional Democracy

Dev Raj Dahal


Nepal’s struggle to institutionalise democratic tradition of politics is central to set the standards for constitutional rule. Constitutional democracy thrives in those nations where shared political ideal of what John Rawls calls “fairness as justice” is practiced to glue pluralistic society as a symbol of national identity and power impulse of politics is embedded in the moral vigour of leadership. The birth of modernity has marked the end of arbitrary rule common in feudalism and the influence of social determinism that cut the possibility of politics to liberate citizens from its fetters. Liberal political culture and its socialisation encourage the society to rationalise its political life and take advantage of government.
The Constitution of Nepal promulgated on September 20, 2015 is a document of broad-based political compromise of disparate interests and views. It articulates overarching ideals of secular, inclusive and federal democratic republic with increased rights of citizens though they are yet to be internalised in coercive laws and binding decisions. It seeks to bridge the normative ideals of power separation, checks, judicial autonomy, fair election, a free and responsible press, human rights, competitive party system, justice for poor and socialist gear to improve varied empirical conditions of Nepalis for emancipated life so that they steer along the middle path and do not reel from dire necessity.
Common good
As a common good, the constitution is expected to hold Nepali society together, manage new politics of difference and fulfil international obligations. The political will of the state is vital to execute it without facing the revolt of centrifugal forces. As a power plot of the nation, it spells the parliamentary structures of governance, due process of law and popular sovereignty. The modern ideal of popular sovereignty imagines the consent of governed, limited government, protection of human rights and promotion of common good benefitting all Nepalis. The fracas surrounding the promulgation of the constitution five years ago has been melted down to a great extent  with near-conclusion of peace process, multi-level elections, formation of authorities for shared and self-rule, oath of it and adjudication of cases as per its norms. So does the improvement of its international legitimacy.
Still, the desirable elements are: crafting of crucial laws whereby state and local authorities can be effective in the delivery of public good and services, full-scale adjustment of employees, set up of necessary institutions, budgetary dispensation, filling the posts of national commissions and realisation of rights. The success of any constitution depends on constitutional behaviour of its leaders and citizens and reasonable fear of punishment for the abuse of laws. To become realistic, the constitution of any nation is crafted on the basis of an order of nature, animal sociale, human nature and national culture, not only lofty ideals.
Addressing five salient issues is essential to make constitutional order robust with enough stake of citizens — civic education about self-awareness affirming the value of common person and its salient features so that they feel that this polity serves them better than its alternatives; leadership performance of its ecological, social, economic, political and foreign policies for tuneful progress of the nation; removal of the manifest gaps of political parties and leaders between innocent popular hope and the constitutional and electoral promises; efficiency of constitutional bodies and several national commissions designed to satisfy social classes; and finally, the management of leadership difference between the ruling Nepal Communist Party (NCP) and various forms of opposition-constitutional and extra-constitutional orienting each to problem solution.
In Nepal, political dynamics is set by intra-party leader-oriented factionalism in all political parties. Management of factions is a key to steer constitution on the track of its vision of the creation of an egalitarian society and Directive Principles and Policies of the state and uplift those at rock bottom. To cut the source of instability, it has ended the fast breeding of political parties in Nepal with the insertion of electoral threshold and direct election system. Now the nation has one dominant party — NCP. Another major party, Nepali Congress, with an amphibious role, - part of establishment and part of opposition, regional parties seeking to become alternative force by raising grievances of multi-national state, identity based federalism, inclusive proportional representation in the slot of key positions and change of constitution to address the concerns of Tharus, Janajatis, Madhesis, Muslims, Dalits and women. The Rastriya Prajatantra Party seeks constitutional monarchy and Hindu state.
The government and political parties are duty-bound to implement the constitution, socialise their cadres, citizens and non-conformist forces to its ideals, not tolerate any illiberal fiddling under the doctrine of necessity and create civic culture essential to foster liberty, justice and positive peace. Discourse on procedural issues, fast track approach to constitution and skewed role of citizens are still floating in the public sphere supposing that constitutional democracy is based on self-determination of citizens where process matters as much as the outcome. It is the political process that sets the cognitive and evaluative aspects of political culture of democracy. The legitimacy of Constituent Assembly is precisely couched on the rationality of belief that previous constitutions did not follow deliberative process with citizens as authors of law and were elite-driven, not attuned to operate as per the will, opinion and aspiration of Nepalis.
Since five years of its promulgation, Nepali leadership continues to struggle to constitutionalise the governmental and non-governmental spheres. The constitutional enlightenment of Nepalis is necessary for the creation of common background condition for shared future and cultivation of a constitutional culture, a culture that can create virtuous citizens and leaders, release energy for peaceful change and tune them to stakeholding of democracy. In a nation of minority and diversity like Nepal, capturing social and political complexity in terms of values, interests and identities and their articulation into political power require a vibrant public sphere of civil society unimpeded by the influence of ideologies, identities, media and economic logic. The public administration, too, needs to be obedient to the social welfare so that the stake of the poor and weak raises in its constitution.
Growing political consciousness has made Nepali citizens active and inquiring honing their evaluative competence. As the capacity of leaders in diversity management is less vigorous, ownership of democracy has yet to turn widespread. The efficiency of local self-governance in matters of execution of their mandate can broaden the base of democracy. The effects of the COVID-19 on poverty, inequality, unemployment, health, education and social development issues will set another litmus test of the ability of electoral and administrative authorities’ and their political and development performance. The rights to social inclusion, proportional representation and awareness of increased rights are widening associational solidarity, social struggle and the importance of public opinion in turning democracy an equal-access order by expecting to abolish its traditional political culture of negation of the political adversary.
But the concept of duties which is central to create a lawful public order, loyalty of citizens and associational affinity are, however, deeply amiss. There are 31 enforceable rights to citizens and 4 non-enforceable duties. This imbalance besets Nepali politics aspiration-oriented, not rational. It might weaken the regime, polity and the state if rights, devoid of wealth rooted in productive economy, remain an unrealised gain. It can weaken the constitutional culture of democracy with contradictions between individual liberty and public order, aspiration and organisation, politics and law and society and the state upsetting the ability of constitution to keep equilibrium. Obviously, the constitution reflects the power equation of the time. Yet, it is flexible in nature and offers hope for Nepalis to decide on matters of their liking in the future on the basis of electoral weight or the weight of public opinion. This provides scope for its adaptability and overcome windy path.
Effective conflict resolutions system should be placed in each sub-group where constitutional democracy can serve as a social coordinator and centripetal element of diverse identities. The Nepali state as constitutional regulator of power over its citizens and the weight of constitution to limit the power of rule which is largely an extension of political party marks certain flaws. Many times, the courts have to discipline their conduct while Constitutional Council mandated to appoint constitutional heads only balances big parties’ interests not run their bodies as per constitutional spirit of Platonic justice “right person in right place.” Nepali constitution has difficulty in keeping a sense of balance between the liberty of powerful and the distributive struggle of weak. Top leaders of ruling parties blame that comprador classes continue to incise the mediating agencies opening an obvious gap between electoral and constitutional promises and material capacity to fulfil them.

Civic culture
The birth of Nepal’s civic culture vital to foster constitutional democracy is thus consumed by them and redistributive social struggles turning Nepal’s institutional culture of democracy itchy. Anti-constitutional parties, youth protests demanding intergenerational justice, social movements of women, Dalits, Janajatis, Aadibasis and backward castes and poor for the realisation of their rights and cultural groups to preserve their tradition each presenting its existence in group design, not common national citizens or dignity of human life put constitutional politics off balance. They need to assume a national dimension for policy intervention in an appropriate way. To turn constitutional democracy into a government by rule of law, Nepali civil society groups, too, need to stand above mini public spheres of youth, Dalits, ethnic, regional, gender, project-based and patronage, and represent citizens on the agenda setting of law, politics, development and peace.

(Former Reader at the Department of Political Science, TU, Dahal writes on political and social issues.)