By Dev Raj Dahal, Head, FES Nepal Office
Opening Democratic Discourse for
Conflict Resolution
“The doctrines of the good
life and of a just society—ethics and politics—made up a harmonious whole”
(Habermas, 2003: 2).
Introduction
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| Dev Raj Dahal |
The current political crisis in
Nepal derives its source from the absence of a common national vision—a set of
widely shared social, economic, political and foreign policy ideals-- and
corresponding means to attain it. This has rattled Nepali citizens’ hope
for the promulgation of a new constitution by May 27, 2012 deadline. Without
delivering a new constitution, the 601-member elected Constituent Assembly (CA)
collapsed the same day over the rival conceptions of federal provinces—single
ethnic identity-based versus multi-ethnic provinces and other unresolved
issues. Instead of seeking their solution on the rational interest of all sides
in the CA and build a community that is based on citizenship, top leaders
simply sought to negotiate a constitution on the basis of partisan preference.
The absence of top leaders in the CA at the last moment to address the demand
of agitated legislators for a new constitution reveals the vivid reality of
their “closed world of decision making” cut off from both public consultation
with citizens and their representative structures. The ruling coalition led by
Unified Communist Party of Nepal (Maoist) and United Democratic Madhesi Front
(UDMF) favoring single ethnicity-based federal provinces sustained a structural
disconnect from Hathiban and Baluwatar consensus on major issues including
multi-ethnic provinces they had settled earlier with Nepali Congress (NC) and
Communist Party of Nepal Unified Marxist-Leninist (CPN-UML) which could have
been a leap forward in the drafting of a new constitution. Prime Minister Dr.
Baburam Bhattarai, Vice-President of UCPN (Maoist), recommended a new CA
election on November 22 to settle remaining constitutional issues through a
fresh mandate which is awaiting the approval of the opposition parties and the
President. Dr. Bhattarai also did not hide his interest to continue as
Prime Minister of caretaker government until the newly elected government steps
in asserting that “resigning now may lead to a return of February 1,” the
comeback of monarchy. Inspired by mainstream parties’ disorientation from their
mutually agreed goals of constitution, peace and structural reforms, ex-King
Gyanendra claimed that his rightful place “is back to monarchy.”
In contrast, NC and CPN-UML
marshalling support of 27 parties to counter what they call “possible Maoist
takeover of state” demanded the resignation of Prime Minister in favor of a new
national unity government based on five-point agreement. Questioning the
constitutionality of a new CA election due to lack of its provision in the
Interim Constitution 2007 and no possibility to amend the constitution due to
the dissolution of parliament, they requested President Dr. Ram Baran Yadav for
Prime Minister’s removal from office. President Yadav, however, reduced
Dr. Bhattarai to caretaker status as he is no longer a member of CA but allowed
him to continue in power until the formation of a new government. The fractious
opposition forces have, however, failed to produce a consensual prime
ministerial candidate to the President. Aside from new parliamentary or
CA election to draft a new constitution seeking the resolution of political
crisis, 78 NC members of dissolved CA submitted a petition demanding CA’s
revival to complete the constitution drafting task, other NC politicians and
Rastriya Prajatantra Party- Nepal prefer the restoration of 1990 Constitution,
NC leader Sher B. Deuba prefers the formation of an expert committee to draft a
new constitution and its endorsement by elected parliament and the newly formed
CPN (Maoist) led by Mohan Baidya prefers “roundtable dialogue of all the
stakeholders” by going beyond the forces of current establishment. Article 158
of Interim Constitution stipulates the “power to remove difficulties” in the
implementation of constitution. But, it is defined more as a medium of exit
from authoritarianism, rule by fiat or Ordinance than holding another CA
election. Without a broad-based political consensus, however, none of the
options can open the possibility to resolve both political and constitutional
crises.
The CA that represented many of
103 ethnic, caste, regional and gender groups of the country except 20 micro
minorities had sufficient social base of legitimacy. It has declared the
country secular, federal democratic republic, expanded the franchise for social
groups, generated the consciousness of modernity and expanded the base of
public sphere for the citizens to engage in the debate about the contents of
new constitution. Multi-thematic themes generated diverse publics—each with its
own canon of judgment and criterion for stand but producing no more general
interests. There was, however, multi-partisan discourse in the CA and even in
its Constitutional Committee that defied the possibility for the synthesization
of contending perspectives on the democratic law-making process. More time was
allocated to Maoist chairman Puspa Kamal Dahal-led Dispute Resolution
Sub-Committee of CA’s Constitutional Committee which was largely dominated by
four major forces’ top leaders. Ten thematic committees of the CA had timely
submitted their concept papers to the Constitutional Committee and the full
Assembly debated them. By limiting time for public deliberation, political
leaders undermined the source of public legitimacy to be derived from informed
consensus of citizens on both democratic process and democratic contents of
laws. The idealism associated with constitutional law becomes feeble if
self-legitimation of law by parochial interests creates enforceable legal
material order in society. “Law is a system of coercible rules and impersonal
procedures that also involves an appeal to reasons that all citizens should, at
least ideally, find acceptable” (Rehg, 1997:xi).
The resolution of Nepal’s
constitutional crisis requires political wisdom of its leaders rooted into the
legitimate aspiration of citizens, rational process that recognizes common
ground for the relative satisfaction of all sides’ legitimate interest and
become reasonably accountable to their actions. How Nepal’s future constitution
can enforce public morality to be created by political leaders and also makes
it enforceable to their own life and behavior? Or, will they be governed
habitually by political realism of power equation, transaction, syndicate,
coalition and less by democratic principles, norms and laws devoid of popular
control? Do not the later patterns widen the gap between poor political outcome
in the material domain in the present and utopian promise for the future? Or,
will there be reconciliatory measures emerging in the public sphere for the
establishment of a constitutional state? This paper narrates about crisis of
state power and popular sovereignty, solution of key constitutional challenges,
democratic constitutional order, changing images of politics, human condition,
social justice and also draws a brief conclusion.
Crisis of State Power and
Popular Sovereignty:
Normally, during the
“constitutional moment” citizens and leaders set aside their particular
interest and internalize the concept of common good (Goodin, 1992:54) by
building inclusive “we-perspective.” The concept of sovereign citizens obliges
the leaders “to take up the we- perspective” from which they “perceive one
another as members of an inclusive community no person excluded from”
(Habermas, 2003: 56). Democratic rule is connected with the implementation of
actionable rights of citizens—liberty rights, power rights, claim rights and
immunity rights (Hamlin and Pettit, 1991:2). Rights are related to corresponding
responsibilities and the rights to citizens to enter into politics marked the
conscious beginning of democratization of political power. Constitutionalism
seeks to protect citizens’ rights and duties to address the gap between demand
and supply of regime, constrains the arbitrary action of rulers, establishes
popular sovereignty and constitutes a solution of the problem of political
uncertainty (Goodin, 1992:108) by making the government law-governed. The state
sovereignty and popular sovereignty are interlinked as both presume a
indigenous determination of politics, law and public policy through four types
of institutional closure: “a political one (democracy tied to national
self-determination), a legal one (citizenship tied to nationality), a
military one (universal conscription tied to national citizenship) and a
social one (the institutions of welfare state linked to the control of
immigration of foreigners)” (Wimmer, 2002: 9). The declining capacity of
Nepalese leaders to set up institutional closure on all these areas and balance
the universal aspiration of Nepalese citizens for freedom and the imperative of
constitutional rule have perpetuated a crisis of state power, its ability to
subdue chaos in political life and become accountable to international human
rights standard.
Obviously, state represents the
right of collective self-determination of citizens. Citizens, as members of the
state, obliged to act in harmony with its laws creates condition for
peace. But, national law as a reflection of fundamental rights of
citizens often changes with the changing values of family, society, property,
polity and the acquisition of new rights by them which is a precondition to
provide stability through the efficient administration of justice. The
sovereignty of Nepali people, as authors of law, can only be ensured if they
are conscious of enjoying sufficient private autonomy as independent persons
capable of self-reflection and personal morality and pursuing self-chosen goals
for personal success in individual life and public autonomy as citizens able to
exercise civic virtues of reasonableness (Frost, 2001: 348) in attitude and
conduct towards others. Immanuel Kant argues that moral autonomy is the highest
value of an individual. At the level of citizen, the value of autonomy assumes
two forms: “one is political autonomy, the legal independence and assured
integrity of citizens and their sharing equally with others in the exercise of
political power; the other is purely moral and characterizes a certain way of
life and reflection, critically examining human beings’ deepest ends and ideas”
(Rawls, 1999: 146).
Kant rightly states that unless
citizens are truly enlightened they are not able to stand on their own feet and
make their own rational decision (2008:256) as emancipated, rationally
self-directed persons. Those incapable of self-direction are not free. They
cannot maintain their self-dignity of citizenship and participate meaningfully
in public sphere and contribute less to the formation of laws.
Competition between parties and between capital and labor intensifies the
emergence of a vibrant public sphere by encouraging citizens to engage in
public affairs and relieving them of pre-modern political culture of parochialism
which does not recognize the equality of citizen. This competition also becomes
a vital spring of social transformation in laws and institutions. But in a
country of minorities like Nepal perpetual eagerness to change laws and
constitution through extra-constitutional measures to alter the balance of
forces breeds instability as there is no institutional mechanism to balance the
interest of all groups and prevent today’s minority to become a majority of
tomorrow through aspiration-driven politics. Similarly, an unfair political
dispensation based on exclusive power equation or syndicate cannot guarantee
internal checks to prevent the domination of minorities and establish the
virtue of positive law which stands higher than the will of powerful leaders.
The impersonal state possessing monopoly on all the means of legitimate
coercion can also prevent the constraining condition for “freedom of citizens”
organized under the “complex interpenetration of cultural tradition, social
orders and personal identities” (Habermas, 1997:23).
In Nepal, every alteration of
political balance of power has changed laws under the pressure of changing
rights of gender, Dalits, ethnic groups, Madhesis, indigenous people, labor,
minorities and marginalized and international obligations of the country to
incorporate human rights and humanitarian laws. But, the weakening of Nepali
state’s “legitimate monopoly” on power, tax, loyalty of citizens and
international recognition (fragile state) marked the crisis of power to implement
both rights of citizens and formulate and execute appropriate laws and public
policies to create the condition of social peace. It’s vital democratic
instruments—Public Service Commission, Election Commission, Commission for
Investigation of Abuse of Authority, Auditor-General and even Supreme
Court lack either adequate personnel or authoritative leadership. Acting
authorities are constrained to undertake vital initiatives. The critical jolt
to popular legitimacy was inflicted by self-extension of two more years of
mandate of CA by political classes under “the doctrine of necessity” and
through “crisis socialization” of ordinary citizens by political leaders,
partisan media persons, lawyers and intellectuals who also noisily signaled the
impending fear of civil war, monarchy’s comeback, presidential coup, military
putsch and foreign intervention in case of non-extension of CA’s tenure.
Democracy is based on the “doctrine of choice” which requires the resolution of
antinomy between freedom and necessity in favor of the former as it promotes
basic dignity of human beings by abolishing the pre-modern use of fear or
violence as a means of political end and generating fresh reasons of hope in
politics for better life and liberty. Absence of requisite public security and
fundamental human needs satisfaction hollows the concepts of basic
constitutional liberties granted to poor citizens. The role of attentive
citizens lies in being critical about their condition, recognizing that legal
experts’ opinion does not necessarily constitute either truth or reflective
opinion or valid judgments beyond the power of self-righteousness. Very often,
during the time of social transformation such experts do not reveal hidden
motives of political actors in the domain of justice but offers arguments of
various sides, leaving contradictory conclusion rather than offering normative
regulation of multiple transitions and stabilization of public authority to
prevent lawlessness. John Lock rightly argues, “Wherever law ends, tyranny
begins.”
Modernization of Nepalese society
has increased the use of technological means and rights of political
participation of citizens on law-making and policies. It has opened the scope
for communicative competence, rational acceptability and democratic legitimacy.
In Nepal’s CA, however, the constitutional processes had been shortened,
contents remained contestation and the result was no constitution. In the
constitutional process, national leaders have compromised three key elements of
democratic quality associated with the public expectation of citizens: quality
of content, process and results (Diamond and Morlino, 2004:21). As a
consequence, the Supreme Court had to set limit on the CA’s self-extension of
term not beyond May 27 and offered several alternatives: fresh election,
referendum and other suitable measures. Without popular consent, the CA had
stretched the popular mandate for two more years, gave primacy to sharing
executive power than law making process and rendered the CA members without any
meaningful role either in opinion and will-formation, or in perspective
mediation or even in dispute resolution. It also did not encourage open and
informed public participation on constitutional debate close to the grassroots
for their enlightenment or encourage rational agreement on issues to foster a
common political culture of the country. The impersonality of legal norms
ensuring equal treatment for all citizens holds scope for individual
life-projects. In Nepal, however, leaders’ temptation to impose partisan
perspective subverted even settled issues and generated crisis of trust of each
other. All political parties are torn between a fractious future and a past
that refuses to shift transactional leadership to the transformational one. The
alternative media have often sponsored fears about deadlock over the contesting
democratic contents and saw the deterioration of the impersonal institutions of
the state as a threat to national survival and independent identity.
As a result of the third wave
revolution in information and communication technology, democracy, and human
rights based political culture, the relationship between citizens and the state
are changing. An amazing explosion of social activism of a myriad of
self-referential non-state forces produced critical political consciousness but
also stimulated anomic, disorganized and extra-party participation of social
classes in a fragile national context upsetting institutional equilibrium of
the polity and the virtues of active citizenship unleashing democracy’s
positive energies. Growing assertion of prehistoric identities of sub-national
forces stoked by electoral manifestoes and unrealistic promises of leaders and
cadres has infused nervous tension in the public sphere about the process of
formulating common constitutional perspective for a shared future of this
post-conflict nation. In contrast, multi-level critical public debates on
democracy as a responsive rule of law has also mobilized the connectors of
society for rebuilding this nation. Infusing public morality in politics the
attentive public has consistently sought to rectify the infection that
underlines disharmony between the constitutional promise of secular, federal
democratic republic and the absence of constitutional behavior of leaders and
cadres. Civic passivity for long has scuttled citizens’ ability to confront the
imbalance of power in politics thereby weakening the sovereignty embedded in
citizenship and even inter-generational reciprocity in politics. Obviously, it
has rendered Nepalese politics self-serving lacking normative framework and
democratic loops--transparency, accountability and responsiveness to serve
public and national interest. As a result, political resistance has also
shifted to ethnic, territorial, social and cultural realms.
Courtesy: Telegraphnepal.com
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