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Workshop on Constitutionalism and Democracy Building in Nepal

Organised by Association of Writers and Kathmandu Editors (AWAKE)

14 June 2013, Kathmandu


The Association of Writers and Editors of Kathmandu (AWAKE) and People's Review weekly in collaboration with the Friedrich-Ebert-Stiftung Nepal (FES) held a workshop on Constitutionalism andDemocracy Building in Nepal on 14 June in the capital.

At the programme academician Ganesh Bhatta, lecturer at Nepal Law Campus presented a working paper titled 'Constitutional exercise and aspect for deliberation' and academician Prof. Ram Kumar Dahal presented a paper titled 'Constitutionalism and democracy building in Nepal'. During the programme speakers and participants talked of the contemporary constitutional crisis faced by the nation, its likely fallout and the prospects of the upcoming Constituent Assembly (CA) elections.

The inaugural session of the workshop was chaired by Tej Prakash Pandit.

During the inaugural session CPN (UML) leader Pradip Gyawali said that currently Nepal faced crisis in the fundamental matters of constitution. He said that the reality of the nation did not tally with the core issues of constitutionalism. "The interim constitution has not entertained any provision for a situation without a legislative body. The government's accountability is in question. There is a possibility of anarchy in the nation. The achievement of the uprising and earlier agitations are at risk. The issue of independent judiciary is in a dilemma. The leadership of judiciary, executive and legislature are concentrated at one place. The transitional period is lengthening and all this is mounting pressure on our democratic set up," Gyawali pointed out.

Gyawali emphasized on two prescriptions for the solution to the problems facing the nation. The first Gyawali pointed out, was that there was no alternative to elections. The other prescription Gyawali said was that the concept that the upcoming elections were taking place for a different objective.

Terming the issues of the fringe parties as serious in nature, Gyawali stressed on maintaining utmost flexibility but added that election was none negotiable.

Pampha Bhusal, the CPN(Maoist) spokesperson, stressed on maintaining the fundamental track of the constitution in the nation. "We had no need to reach this stage in which the constitution has been splintered," she said.

Terming the ruling three political parties and the Madhesi Morcha as being slavish in nature and directed by external forces, Bhusal said that it would be wrong to follow their steps. "These parties do not agree among themselves but when another force fixes it, they get fixed," she said. She added, "They are slaves to foreign powers on one hand and on the other hand they cannot draw the confidence of the people in the nation. Should we follow and be guided by them, who are apolitical and cannot stand for the independence of the nation. This cannot happen, never."

Bhusal said that even if the Constituent Assembly elections did take place, the prospect of drafting a new constitution was still a far cry. She said that she did not believe one percent that the constitution would be drafted.

In the programme Nepali Congress (NC) leader Minendra Rijal said that the election was a method to ensure that the people are able to give their votes without coming under pressure. He said, "Unless people are strong the country is not strong. Democracies in any country of the world have not become strong with the concept of discarding the constitution made by the people but a group of intellect. There can be no other path to strengthen the country without the people," he said.

According to Rijal, in the path of constitutionalism nationality had never become strong when the people were weak.

In the programme, Dev Raj Dahal, head of FES-Nepal said that the biggest problem right now is the creation for a conducive atmosphere for the elections. In his working paper Dahal stated:

"The big political task for Nepal now is to create an "election-friendly environment" by building political trust among all political parties including opposition, promulgating necessary election laws and creating adequate security environment. Other vital issues are constituency delimitation and resolution of many state-related contesting issues. The current political transition of Nepal, however, is tumultuous as distributive coalitions of social classes and caucus groups across the party lines and newly mobilized citizenry are struggling for inner-party democracy, social inclusion and tribalization of political identity. These trends have shaken the foundation of many political parties caught in internal gridlock and weakened the confidence of fractured political leadership in brooking compromise. As a result of hurting political stalemate, each political party of Nepal has managed to check the other without being able to achieve its own goal. The denouement is: formation of a techno-bureaucratic government led by Chief Justice of Supreme Court K. R. Regmi to hold election in November 19, 2013, restore the outreach of state in society for good governance, fixed the dysfunctional political system and push for reconciliation, social cohesion and celebrated upland of peace. How can the forthcoming election be free and fair when electoral officers will be manned by partisan bureaucrats, police and school teachers and opposition forces will continue with anti-electoral socialization? Would the electoral game be equal when funding to parties by policy lobbying groups remains unequal and there are advantages of incumbency to ruling parties? Leadership must support the impartiality and integrity of election and accept its outcome while encouraging civic education, information and skills of citizens for their informed participation.

Restoration of the constitutional tradition of politics requires the promulgation of a popularly-owned constitution which can heal the Nepali society. Election provides an opportunity to demand an accountability of leaders, reassess the relationship between citizens and government and spurn those who deceived them while constitutional awareness of leaders and citizens helps to convert their partial perspectives into a larger national vision. It is through the broadening of perspective a number of identity, ideology and interest-based conflicts which have gripped all of Nepal's catch-all political parties, their socializing agencies, civil society and private sectors can be settled providing opportunity for them to adapt to the responsibility of power , democratic freedom and basic rights. Exercise of legitimate political authority allows the attainment of common good - a responsive constitutional rule by virtue of being able to stand above the government and the opposition and adjudicate their contesting claims about the ethical conception of good life.

Order of Democracy

The fundamental paradigm of Nepali politics is shifting from representative to participatory democracy. Democracy is consistent with popular sovereignty, meaning equality of citizenship, new institutional form to express demands and self-governance. Its internally "open-access" order for the participation of all citizens provides a basis for abiding by the decisions. But democracy externally demands certain "nation-wide closure" as well-national self-determination of citizens on politics, law and public policies, immigration control, national conscription and inclusive welfare measures to muster the loyalty of citizens transcending allegiance to all other primordial identities and private interests. A robust democracy requires "awakened and active Nepali citizens," who are able to articulate informed and rational judgments in selecting and holding the leaders accountable to their electoral promises and subsequent actions. Since the cataclysmic political change of 2006, however, the vision of Nepalese citizens are in complete hold as political leaders are caught in binary tensions between constitutionalism and democracy, law and politics, political parties and citizens and duties and rights and unable to harness democracy's positive values for the multi-classes of citizens who have contributed to it. Obviously, in a diverse society like Nepal's democracy's prospect has dimmed as citizens do not have control on the top-down agenda and its outcome have generated more losers causing the proliferation of parties by frustrated individuals and fragmenting the nation's political public sphere.
Political will and experience is absolutely essential to make a shift from shallow partisan outlook to inclusive policies. Hannah Arendt says, "To become political means that everything is decided through words and persuasion and not through force and violence." Similarly, abuse of dark money in politics, which according to Ronald Dworkin, "is the biggest threat to democracy." Markets must follow the rules of the game, laws and institutions to offer benefits of competitive prices to most of citizens. Democratic constraints on wealth and power are essential preconditions to strengthen the social base of democracy, overcome political alienation of minorities and opposition from electoral participation and mark a relentless shift from "necessity" to wider freedom of citizens. Rule of law is consistent with democracy as it defends the procedure of democracy, allows opportunity for the participation of the poor and marginalized and satisfies the expectation of citizens from the quality of governance.

Critical Prerequisites of Democracy

Social base of Nepalese parties is gradually shifting and they are facing tension with the social classes socialized into rights-based politics and leadership instinct driven by life-long politics. Democratization of political parties transforms the pre-democratic feudal elites and the indoctrinated ignorant into mindful citizens affirming a shared national identity and creating a base for the universal values of human rights, fairness and justice. In Nepal, the lingering transition of the state and society into populist trap and lawlessness strained the reasonable treatment of the "other" defined in moral standards and ethical desire to live good lives. The birth of many pre-modern solidarity groups across territorial, ethnic and caste lines in Nepal, however, indicates that Nepali society is not moving into the direction of rational will. Nepalese media often expose the social, political and economic gaps between the leaders and ordinary citizens and encourage the civil society to exert pressure on political leaders to uphold the spirit of constitutionalism and transform sub-national forces into Nepali citizens. But the communication of political message is cacophonous because media-sponsored political socialization of citizens offers poor enlightened perspectives either on constitutional issues or democratic contents owing to their courtesy bias to their funders and owners and constantly subject to commercial pressure and consent manufacturing. Strengthening the democratic autonomy of media is a major policy challenge for the promotion of editorial freedom and social, economic and political democratization. There are other critical prerequisites of democracy-- ecological, social, gender and inter-generational justice in political, economic and social life. Formulation of certain hypotheses for democracy consolidation is in order:

  1. First, democracy consolidation becomes easier when powerful political leaders have an ideological disposition towards the values of constitutional state, democracy, human rights, social justice and peace.
  2. Second, democracy becomes stable where democrats enjoy a decisive power advantage over non-democratic hereditary, authoritarian, praetorian and totalitarian elements. Similarly, provision of constitutional rights, checks and balances and devolution of power are well placed allowing the power of society to self-organize and articulate.
  3. Third, democracy becomes robust when democratic values, principles and institutions are internalized by all the citizens, civil society, media, private sectors, political parties and the state institutions and their differences over the policy, ideology and interests are sorted out by peaceful compromise.
  4. Fourth, democracy becomes institutionalized where social base of representation becomes broad-based and democratic winners do not dictate the rules of the game rather they are governed by constitutional imperatives of respecting the opposition and facilitate political continuity and transformation with the changing contexts of rule, rights and responsibilities of rulers and ruled.
  5. Fifth, democracy building presupposes the role of international cooperation in endogenous process of state-building, development and peace process and shores up the balance the nation's delicate geopolitics to properly utilize global public goods.

Constitutional Enlightenment

The Interim Constitution of Nepal 2007 which lacked the principles of constitutionalism and the previous CA debate which became more baffling, than instructive to serve a base of democracy and national unity, failed to ratchet up centripetal tendency for a national political order. In the absence of constitutional enlightenment there was neither a common process of political socialization nor constitutional behavior of political actors. Such enlightenment is essentially constructive to mark an inward turning of leadership to inner vigilance and deconstruct the vices of crude economic determinism stoked by market materialism and dialectical materialism and find political emancipation of citizens in the golden mean of politics, a politics that fosters social solidarity between the rival classes, not the instrumentalization of one against the other and reduces the pluralism of the political system through a politics of personalized networks. The virtues of constitutional enlightenment rests on building collective awareness of citizens for equal freedom, instilling civic skills and ability to participate in all those decisions that affect them by optimizing the interest, ideology and identity of all into the national identity of citizenship. It also minimizes the scope of arbitrary power and regression of its civilization into the state of nature. It is also necessary to engage international community in guaranteeing the fairness of election, concrete economic development to remedy the institutional deficiency of Nepali state and shore up the support of civil society and private sectors to complement long-term democratic nation-building. A robust national center can alone be able to mobilize the centripetal forces of society and wrestle with the cross-pressure of geopolitics.

Freedom from Necessity

Freedom is based on the rule of law: more freedom means more responsibility. But so long as leaders are driven by culture of ideology than contextual national policy it is difficult to make Nepalese democracy truly sovereign based on its own legal-rational legitimacy as a normative framework of governance derived through elections, public opinion, democratic will-formation and emancipatory demands of modernity delivering both procedural and substantive justice. Victims of conflicts are demanding not only relief but also transitional justice. Obviously, civil sovereign is the solution of the problem of state of nature and entrenchment of rights, including property rights, which is a precondition for freedom and human dignity. But the expansion of more constitutional rights in Nepal such as right to work, education, social justice, livelihoods, food sovereignty, etc without building the capacity of the state to fulfill them has risked the failure of the political system in the future. Radical forces and armed actors in Nepal do not respect property rights common in democratic polity as their perception of the nexus between law-enforcing, political, business and violence-generating forces tempt them to free-ride hobbling the sovereignty of the state in which democracy flourishes. Only under the condition of the abolition of the state of nature, democracy can offer the citizens a possibility to act to create their own destiny, maximizing the benefits of government and minimizing its abuses.

Multi-Level Social Contract

The autonomous value of the state, its raison d' etat, is based on the supremacy of constitutional rule underlined in mutually agreed social contract, a workable constitution for multi-level governance built on common background conditions, management of current differences and plan for a shared, peaceful future. Nepal's bodypolitik cannot escape the constitutionalization of relevant international laws, obligations and practices incorporating many state needs such as security, rule of law and delivery of public goods and post-state imperatives-- post-national laws, human rights, climate change, trade, labor market, technology, globalization, global governance, etc as these processes have created a transnational space from which ideas, policies and resources are transmitted to the periphery. They are also linked to the subsidiarity of local self-governance and the fairness of democratic society emanating from the civil experience. A state sustained by internal revenue can exercise better freedom of choice and internally accountable to citizens than those governed by elites' extra-national social connections.

Globalization has enlarged the domain of democracy and the concept of citizenship beyond the constitutional overreach of the nation-state which is enabling Nepalese to tap economic opportunities abroad. But it is also eroding the writ of Nepali state and increasing the social, political and economic costs as migrant Nepalese citizens have to work under foreign rule and laws where, in many countries, core labor standards and human rights values are not maintained. This does not recognize a view of human being as a citizen of the world transcending the differences of local cultures and customs and entitled with the notion that "freedom is necessary." Global power is based on hierarchy and patriarchy, not social contract and, therefore, less morally accountable to the global public. One can already witness democratic deficits in the international institutions regarding their attention to the social conditions of victims. The civil society forces ofNepal are expected to reduce those deficits through integrated civic consciousness and cooperative action and wield pressure for the election of local bodies, consolidation of democracy from the grassroots and abolition of the state of nature at each level of governance. Constitutional government, in this sense, is a permanent solution of national and international problems while the spirit of the law based on judicial tradition fosters the state-society coherence.

Civic Culture

Justification of democratic rule springs from three sources-popular legitimacy, peaceful resolution of conflict and development outcome for the poor. Controlling undemocratic spiral requires Nepali citizens' empowerment to make economic decision making democratically accountable and engage them in organizational innovation and structural change to address the taproots of systemic conflicts. The vocation of politics is not the pursuit of truth which is the prerogative of sages and scientists, but to deliver justice and peace to society. As a public covenant constitution seeks to balance between facts and norms and actors and institutions with the aim to create a legitimate public order and stable peace. But modern law is based on "discursive consensus" about the cycle of rule, rights, needs and duties of various groups of citizens which has also become a source of popular legitimacy. It creates necessary values and institutions to address new social stratification induced by modern technology, new social movements and sovereignty of people stressing their equal participation in the formation of general will and civic culture. Without the incubation of discursive consensus on the new constitution, ownership of citizens on the ends and means of future constitutionalism and renewal of the heartbeat of constitutional patriotism, Nepal's stable future is unlikely to be secured.

Civic culture also requires the civic virtues of Nepal's political parties to cooperate and improve "human condition" of Nepali citizens caught in various hierarchies, remove the vices of negation of opposition and toxic agents of the system such as corruption and impunity through the restoration of transitional justice, national integrity system and inter-generational reciprocity. Democratic dynamics is lost if opposition, minority and weaker sections of society, often considered as a voice of conscience, are bludgeoned into submission by the powerful actors. Democratic values are fundamental to the self-understanding of sharing a common political community-the state. Other values are largely subversive and system-smashing. Public intellectuals need to put moral and normative critique on contesting ideologies espoused by various political parties of Nepalincompatible with democracy consolidation and examine their suitability to native context. This is the way to use universal ideology to lower the cost of citizen participation in public affairs, increase restraint on its subversive capacity to destabilize the Nepali state fueling centrifugal geopolitical forces and overcome ideology's linear evolution to utopia.

Conclusion

Inclusion of all the politically significant forces into the electoral process can easily remove the "doubt of public" about the next CA election and moderate the perpetuate fear of rival forces through a multi-level social contract and integrity and accountability of leadership in power. When fundamental issues pertaining to social, economic or constitutional conflicts require a long-term structural solution, citizens expect the political wisdom of leaders. This means peace and order do not entirely depend on the victory of the law but also on the fulfillment of justice-both procedural and substantive-as the highest human virtue and move the country from violence to stable peace. Justice, in modern democracy, has become a standard policy for the evaluation of governance indicators and the base of constitutional order. Right to information embedded in Nepal's constitution is, precisely, couched in to make governance both transparent and accountable to sovereign citizens. Politicization of Nepalese citizens on the constitutional rights and duties is essential to liberate them from the pre-political (biological groupings), non-political (bureaucracy) and anti-political (violence-generating groups) clutches and rescue politics from excessive ideological and personal overtones of leadership devoid of reality touch and critical reflection on human condition standardized by human rights. Its future constitutional order, therefore, requires coping with the changing social stratification at various levels and their transformational impacts on law-making process to make democracy a responsive rule and link popular sovereignty as only the true basis of legitimacy.

Dahal said that although the society had transformed, the leadership had yet to transform itself. "If politics does not come into the public sphere our constitutional system will not be strong."

Tej Prakash Pandit, chairman of the programme and co-chairman of AWAKE, called for an end to the perpetual transitional period.

Likewise, AWAKE General Secretary Indra Rijal said that there were increasing decadence, chaos and anarchy in the nation. "The incidents of disgracing the rule of law are increasing by the day," he said.

Rijal said that the political situation was making a negative impact on the socio-economic sector of the nation. "The economy is in a deteriorating state," he said.

During the first session the two academicians - Ganesh Bhatta and Ram Kumar Dahal presented their respective working papers.

Bhatta said, "Individual freedom is a fundamental necessity in today's world. There must be a concrete and permanent system and then only can the dictatorship devised by the state can be controlled. It is possible through the constitution that the freedom of an individual can be secured by institutionally controlling the state power in contemporary time.

Constitution with the provisions embedded to effectively control the independent character and behavior of the state can be the constitution based on constitutionalism."

Talking on the significance of the constitution Bhatta stated that constitution was necessary to save the state from anarchy by determining the role of the state's political organization and officials. "The government attains power through the constitution," he said.

Bhatta said, "Attention of all of us must heed to the possibility of our nation getting entrapped in the quagmire of drafting and destroying the constitution without taking into account the past experience and exercises, national interest, capacity, and identity of the national power."

Bhatta said that the change in constitution would not resolve the outstanding contemporary problems in the nation. "The chief cause of the constitutional crisis in Nepal lies in the tendency to seek solutions of the political problems through the constitution," he said.

Bhatta pointed out that the constitutions of weak and small nations were more ambitious than their capacity for implementation.

Giving the example of Britain as a nation run without a constitution but through a constitutional system Bhatta said, "Constitution can be at immediate context be written and torn; can be promulgated and abolished, but the constitutional system is created through all the nations' step-wise exercise."

"The process of drafting the constitution is obstructed when the fundamental provisions are determined through the external interest," he said, Bhatta said that the presence of the external force to subjugate Nepal by creating a controlled instability in Nepal's politics had been there before and continues today.

In his answer to the comments at the end of the session Bhatta said, "We are in the process of drafting a constitution and we need to heed to an important fact is that unless we are able to ban the external force that it trying to intervene to incorporate its agenda in the constitution, and unless we are able to draft the constitution based on a national agreement among the political parties that constitution will not work."

He said that the prerequisites for a future constitution of the nation are consensus among the national forces.

Similarly, Ram Kumar Dahal in his paper viewed democracy as a system of governance in which the human rights of the citizens are respected, the concept of theory of separation of power and checks and balance, the concept of independent judiciary, and rule of law be encouraged, the concept of good governance be realized; the voices of the minorities, voiceless, powerless, marginalized and vulnerable groups would be heard; and inclusiveness be promoted in different sectors of life. "In this context, it has to be acknowledged that the state building in Nepal is still a big challenge," he added.

Dahal in his view of Nepal's struggle for democratic movement said that the institutionalization of democratic polity in Nepal had become one of the most controversial issues in post April 2006 days.

According to Dahal, judiciary as rule adjudication body checked the undemocratic, unconstitutional and illegal activities of the executive and legislature in playing a role in democracy building process. He said that the appointment of the chief justice Khil Raj Regmi as the chairperson of the interim government a number of controversies regarding the credibility of the court had been raised which did not give positive signal for promotion of democratic values and culture.

Dahal said that the Nepalese ruling and political leadership in post 2008 days failed to demonstrate their political capability and maturity by not completing the draft of the new constitution even within the period of extended four years term. He added, "This has reduced the credibility and trust of the people towards the leadership, even questioning the failure of leadership in Nepal or crisis of leadership in Nepal."

According to Dahal, the Nepalese leadership in post April 2006 is also held responsible for raising cheap , impractical and controversial slogans ( as part of electoral politics) promoting conflict in society in different forms often threatening the age-old ties and integration in the society.

Further criticizing the political trend in the nation he stated, "Due to the excessive commercialization of politics and the increasing role of money muscle and mafia, and since no politicians are punished on corruption charges, politics has become the safest business in Nepal to earn money and to become multimillionaire over night using both legal and illegal means."

Dahal pointed out that the deteriorating/weak law and order situation in Nepal created big threat in the building and strengthening of democracy in the nation. He said that the failure of the CA to draft a new constitution for the nation within the stipulated time frame and the absence of political commitment to hold the election for the second CA has created confusions and frustrations towards the political leadership and multiparty democracy itself.

He said that the large number of frustrated youths consider politics as 'a dirty game played by political idiots', and see no future in Nepal due to the existing political leadership and see no option except seeking foreign employment particularly in Gulf countries.

During the second session, which primary focused on comments from the participating audience, former State Minister of Communication Shirish Shumsher Rana said that there was no constitutionalism in Nepal. Rana said that democracy is behaviour and that constitution gives it shape. "Those who are complying with the law and constitution do so when it is in their interest to do so otherwise they do not comply with it," the former state minister said.

"Constitutionally when the interim constitution became defunct it is the opinion of many constitutional and legal experts that we will have to revert to the 1990 constitution," he said. He said that we were heading for the upcoming election because we are seeking constitution as an alternative for constitution.

Rana warned that we must remain alert to the gradual decline of the rule of law in the nation.

Former journalist Radha Budhathoki complained of the trend of political leaders speaking at fist in such programmes and leaving when the working papers of the intellectuals were presented. She added, "The think tanks; the experts of this nation are presenting such documents and important matters of significance but the leaders never listen to it."

The first and the second sessions were chaired by former President of Federation of Nepalese Journalist (FNJ) Suresh Acharya.

 
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