Dr. Anup K. Pahari
The sooner the political protagonists and interest groups in Nepal realize that a “New and Improved Nepal” requires more than writing a new populist constitution, the better the chances that a workable constitution will emerge from the CA process. And the sooner will Nepalis be able to shed unrealistic expectations, and to accept that building a “New Nepal” is a process rather than a moment or event.
All roads in Nepal seem to lead to the Constituent Assembly elections. Politics, economy, and just about all sectors and institutions in this country of 27 million are literally in limbo as politicians, academics, journalists and ordinary citizens collectively await the moment when Nepalis will choose, en masse, representatives who will write an entirely new national Constitution. In popular political imagery the CA is held out as the virtual Holy Grail of Nepali politics. A very long standing argument in Nepali political discourse holds that the inability of Nepali leadership to bring about the CA, dating back since the 1950s, has arrested the advancement of Nepali society at all levels – political, social, economic. In this view, Nepal’s overall development is thought to have been retarded and distorted because of a lack of “amul paribartan” in the institutional makeup of the country. The CA election is held up as the missing political instrument that will once and for all assure the much awaited “restructuring” and “transformation” of Nepali state, economy and society. In sum, the CA is expected to enable and promote a thorough transformation of the “Old Nepal,” and the creation of a “New and Improved Nepal” on its ashes.
Yet, few have paused to ask if the Constituent Assembly (CA) itself will lead Nepal out of decades of political and economic underachievement, and set the nation marching towards the ‘New Nepal’ as envisioned by Nepal’s political classes ad nausea. For too long now Nepalis have been victims of unrealistic expectations followed by the inevitable crash. These cycles of unrealistic and unrealized expectations have taken a toll on the national psyche and on the political self-esteem of Nepalis. How many times can a nation and its people be falsely assured that their fortunes are about to take off, before the general masses lose all ability to believe in a better future? The Jan Andolan – 2 and the rapid series of internal political transformations that came in its wake, including the impressive progress on the peace agenda and the historically pending agenda of the CA, have once again raised the hopes of Nepalis to unprecedented highs. Nepalis’ expectations after Jan Andolan -1 were mild compared to the expectations that have built up after Jan Andolan – 2. At the core of the latest mass mega-expectation is the belief that a “New and Improved Nepal” is assured as soon as the agenda of CA can be enacted in the form of a new national constitution. Following a year of heady political changes, the Nepali masses are filled with an abiding belief and expectation that the CA will usher in an era of unprecedented Nepali renaissance; in the quality of democracy, governance, economy, and in the overall progress of the nations and in the lives of individual citizens.
National optimism is laudable. But national delusions poison the environment for bringing about sustained and effective social change. With skyrocketing expectations about what the CA can and will accomplish for the country and citizenry, there is a looming risk in Nepal that leaders, intellectuals, activists and politically mobilized masses are once again setting the stage for a colossal crash of public faith, sure to be followed by a renewed sense of national dejection.
First, no one should doubt that Nepal needs and will get a CA exercise in the very near future. CA is now the only credible and acceptable mechanism for institutionalizing “loktantra” in Nepal. The major political stakeholders also agree that lasting peace and renewed democratic space in Nepal can be ensured only through a new constitution written and approved by the direct representatives of the people. Indeed, no further political evolution in Nepal seems possible without the catharsis that only a CA process can induce. An inclusive, fair, and well accepted CA process can go a long way to ensure the re-legitimization of the Nepali state and the political parties; to manage the transition of the Maoists from an armed into a peaceful political party; to assert the supremacy of people and their parliament over the traditional powers and prerogatives of the monarchy, finally and definitively ; and for the first time in history, to place the stamp of ownership of the common Nepali masses on the supreme law of the land. Most importantly, a new constitution through a CA process provides the best chance that Nepalis will finally cease to fight over the nature of the state and polity, and will begin to focus their energies and efforts instead on how the resources of the state and polity might be deployed in helping Nepal and Nepalis realize their full potential.
However, there are inherent limits as to what changes and transformations a constitution can bring about in the political, economic and social life of a nation. Ideally, constitutions delineate the overall dimensions of the playing field; level the playing field as best as is politically feasible at the time; and set up the ground rules of the game for all players. But no democratic constitution in the world can or should mold, predict, or prescribe the quality and outcome of actual games played by individual political teams from season to season, year to year in the life-course of the polity. This is the task and responsibility of elected governments, parliaments, opposition parties, civil societies, and most importantly that of citizens through the exercise of their individual and organized leverage as voters. Hence, a democratic constitution is a document that is much more efficient at setting limits and proscribing, rather than prescribing national political, social, and economic activities and outcomes. In healthy democracies governments, parliaments, ruling and opposition parties, and voters decide what national trajectories and priorities to pursue through the complex of plural politics. The constitution sets the constitutional and legal limits within which such public choices and exchanges occur, and within which legitimate public mandates may be pursued. Furthermore, it skeletally defines and identifies the actors/agencies and means qualified to pursue these trajectories legitimately.
Even the most well conceived and crafted constitution in the world can have no direct control over the identification of national socio-economic trajectories and priorities, and certainly no influence over whether, how and when such national trajectories and aspirations are achieved. In fact, in practice a constitution does not have any direct way to influence the behavior and functioning of national, regional, and local bodies created by the constitution itself, much less undertake or guarantee such large-scale, complex historical outcomes as “political, socio-economic, and cultural transformation” (rupaantaran). A constitution is enforced through the court system, and when courts are inadequate institutions, the general rule through much of Nepali history, the spirit and authority of the constitution is automatically diluted. Likewise, constitutions have no way to ensure that the right people are elected into the right offices, or to influence legislation, policies and public goals that elected and state office holders will pursue. No matter how well crafted or how widely applauded, the new Nepali Constitution will be no exception to this basic political fact.
Not only are national constitutions unable to ensure outcomes in the real world, in fact, constitutions and constitutional outlooks that actively seek to radically alter societies end up posing serious hazards for democracy. There is an important distinction between crafting a constitution that seeks to guarantee the welfare of its citizens through the enunciation of basic rights and freedoms, and converting the constitution making process and the constitution itself into a full time exercise in social engineering. A full and honest discussion of this fundamental distinction about the nature and function of constitutions and constitution making has not taken place in Nepal, despite almost 5 years of non-stop public dialogue and discussion on the subject of CA and the scope of the future new constitution of Nepal. As a result, there is a bloated sense of national anticipation that the CA will engender a better, richer, more egalitarian, inclusive “New Nepal” with cleaner, more responsive and accountable governments which will begin to systematically right all real and perceived historical wrongs. Furthermore, there is mass expectation that the CA will deliver more goods, services, rights and entitlements at the community and individual levels.
Nations and citizens have aspirations, and these find urgent expression during periods of major change. Like the aspirations of Indians after Independence, Nepali aspirations have peaked in the wake of the Jan Andolan -2. Indian constitution makers devised a special place in their constitution – “Directive Principles” — to house newly independent Indian’s aspirations. No doubt, they did so in the knowledge and wisdom that a constitution burdened with the lofty hopes and aspirations of a nation was doomed to failure. The truth that many in Nepal know but few will speak is that meaningful social, political and economic changes and reforms don’t happen by writing constitutions, but by the dogged commitment and work of public and private leaders and institutions to convert aspirations to reality. Today’s phenomenally prosperous “New China” has essentially the same constitution it had half a century ago when “Old China” struggled mightily to grow enough grain to feed its people. The inward looking and flagging Nehruist India operated under the same constitution that today’s “New India” visibly prospers under. In both cases, “new, improved, and transformed” nations have emerged to Nepal’s north and south not as a result of formalistic constitutional maneuvers, but through the conversion of ideals and aspirations into pragmatic policies at both the public and private spheres. Both countries continuously amended their original constitutions to accommodate the sea changes in economy and society that distinguish the two in the world today. India amended her constitution 53 times in sixty years, while China incorporated the radical and transformative idea of private property in their ‘communist’ constitution.
Constitutions can no more ensure growth, equality, prosperity, transparency and overall socio-economic transformation than academic syllabi can ensure prosperous and successful students and future citizens. Ideally, syllabi reflect the current stock and balance of knowledge in a particular field; likewise, constitutions should reflect the state of a citizenry’s knowledge/awareness and the concomitant balance of existing socio-political forces. But the future success of students and nations, alike, depends on many more factors than syllabi and written constitutions alone. An honest discussion of what these factors are has not occurred in Nepal in great measure because of the deep and widening blind faith among mobilized Nepalis about the sufficiency and efficacy of the CA process to reengineer long standing social, ethnic, political and economic realities of the entire nation. Two fallacies are committed when such sweeping powers and prerogatives are imagined to be duly inherent in state institutions. First, it ignores the grave dangers to ‘loktantra’ posed by a constitution and state intent on “restructuring” all facets of Nepali society. There is a distinction between assigning the state with limited and defined powers to make interventions based on basic principles of fairness, representation, and plural consent, versus constitutionally designating the state as a perpetual instrument of large-scale social engineering. Recent national political discourse on the nature and scope of CA, and mass expectations from a new constitution provide some indications that Nepal may go down this second, more totalitarian-like path unless defenders of ‘loktantra’ see and avert such fallacy. Second, a state that conceives of itself as the primary author of a “New Nepal” is liable to remain blind to the subtle but powerful reality that “New Nepal” is not an event or destination but a process through which each generation continuously contributes its creativity, commitment and labor to society; and whose sum total impact the state can neither hope nor attempt to rival.
Minimally, what should a “New Nepal” look, feel, and work like? In a “New Nepal” people should be well fed, largely gainfully employed, and educated, and healthy; villages and cities should be peaceful, well kept and run in the benefit of citizens; all should have equal opportunity to be successful and ‘to pursue happiness;’ and the nation and each citizen should achieve and realize their inherent potential. The question that few in Nepal are asking, much less answering, is the following: will a constituent assembly exercise and the resulting new constitution in itself suffice to bring about this image of a “New Nepal ?” Will the new constitution create the leaders and doers who will find and manage the resources needed to achieve such ideals in a “New Nepal?” Will constitutional provisions suffice to create a Kathmandu City that is able to successfully manage its daily garbage and human waste output? The new constitution may create new federal entities, but can it ensure that such entities will not end up as so many poor replicas of the top heavy, rent-seeking central state that has been the source of so much of Nepal’s troubles over time?
The plain and honest answer, in each case, is a “no”. The sooner the political protagonists and interest groups in Nepal realize that a “New and Improved Nepal” requires more than writing a new populist constitution, the better the chances that a workable constitution will emerge from the CA process. And the sooner will Nepalis be able to shed unrealistic expectations, and to accept that building a “New Nepal” is a process rather than a moment or event. This process, in fact, has been underway for sometime now in the form of creative and constructive work of citizens and communities across the nation. The best that a new constitution can hope to do is to oversee the creation of a stable, democratic, peaceful nation and polity with guarantees that the new loktantrik state will support rather than incessantly disrupt and undermine the powerful currents of a “New Nepal” already underway through quiet yet transformative contributions of countless unsung “New Nepalis” across the country working in a myriad fields.