Prepared for CFFN, NRN-Canada, and NRNA as an input to the constitutional development process in Nepal
2009 February 19
Following a long drawn armed conflict, a huge popular uprising of 2006, and a democratic election of 2008, Nepal peacefully entered into the league of democratic republics by overthrowing a reigning monarch. Nepal has subsequently undertaken a complicated task of formulating a new constitution through a 600 member constitution assembly (CA). In this backdrop, many views are contending in Nepal for their supremacy. To add extra substance to this national debate, the government has formally requested all Nepalese living around the world to send their suggestions for the new constitution. This article is written to propose some ideas to advance that important debate.
The Rule of Law and the Law of Rule
We come to hear so much about the “rule of law”, which generally implies that no one is above the law; even head of state, government, and law enforcement authorities are subjected to the same laws as ordinary citizens. A citizen is neither permitted to circumvent nor be deprived of, “due process&”. “In free countries the law ought to be king” proclaimed Thomas Paine, a British born American revolutionary intellectual.
The “rule of law” has permeated the lives of people in the “civilized world” to such an extent that we have long forgotten to ask, “What is the purpose of having a rule in the first place?” I believe that the purpose of ruling is to ensure comfort and happiness in people that dwell in the dominion. Laws can themselves violate the “law of rule” if they make people suffocated, distraught, and unhappy. A rule is worthy only when it can treat people equally, eliminate dynastic disposition of power, or lead to harmony in the society.
In my view, the constitution of a country is the “law of rule” or the “law of law” that reflects the political principles and values of the people of an independent country. This determines which laws are just and which are unjust. A just constitution lets us weed out unlawful laws in the first place but a flawed one can bring far reaching negative implications to the people. A constitution defines the principles, values, rights and responsibilities of both the government and the people, and structures and mechanisms for upholding those principles.
The core tenant of democracy is that a state should treat all its citizens as equal and hear the voice of citizens with equal weight. Therefore, role of democracy is to bring power to the people and the government closest to them. However, power of an average citizen to influence a collection of people is inversely proportional to the number of people present in the group. Therefore, smaller the unit of government more responsive it will be to the citizen’s plights. One of the most successful rulers of China, Kublai Khan had chosen 50 households as a unit of governance. Today, empowered with modern means of communication, we may be poised to make the unit larger but not too large. Pokhara would be as remote as Kathmandu for a poor farmer in the village in Baglung. Let it be possible for the poor farmer to participate in governance without threatening his or her livelihood.
Suggestions for the Constitution
Incorporating United Nations Universal Declaration of Human Rights (UDHR) in a constitution has been a common place in newer constitutions written in the world and I leave this work to more knowledgeable people. Here, it may be sufficient to quote UDHR, which says, “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” In this document, some specific recommendations are proposed for steering our societies towards that ideal. Some suggestions are supported by separate articles but such supporting articles for all suggested points could not be written due to shortage of time.
- There must be a set of ethical values and a set of inspirational values of an aspiring nation:
- Five ethical values: Equality, non-discrimination, honesty, commitment, and respect.
- Five inspirational values: Learning, creating, collaborating, passing, serving.
- There must be four faculties in the system of governance: Executive, Legislative, Judicial, and Innovative.
- Executive faculty: does day to day governance of the country.
- Legislative faculty: makes the law to govern the country.
- Judicial faculty: resolves disputes and administers justice.
- Innovative faculty: keeps the flame of reasoning and invention burning; it produces knowledge useful for the all around progress of the country. It questions the rationale of the existing norms and rules, and prevents society from cyclic-fall into dark ages.
- The innovative faculty is governed by following norms:
- All inventions and discoveries are rewarded and recognized even if they cannot be used for economic purpose immediately.
- All inventions and novel thoughts are owned by the country and international patenting is sought by the country.
- All inventions are publicly defended and scrutinized.
- Merit of an invention is judged by open criteria and public process.
- Reward to inventor is proportional to a publicly awarded invention-score.
- Innovative faculty shall be permitted to bring top brains in the country from around the world for promoting innovation through public proposal and voting process. Such immigrants shall be allowed to take citizenship in three years of permanent residence. (This clause is repeated below.)
- The nature and election process of the four faculties should be as follows:
- All: Elected, representative, ceiling of how long one individual can be in a representative position, periodic renewal, intransitive-relationship between one another, protocol driven interrelationship
- Executive: Stability, efficiency, agility: presidential
- Legislative: Empathy, accommodation, incorruptibility: proportional by population
- Judicial: Impartiality, presumption of innocence, legal equality: mixed- geographically proportional
- Innovative: Conscience, questioning, innovation: mixed-professionally proportional with element of randomness
- The relationship between executing, regulating, enforcing, and innovating faculties in any substantive agency (including federation, states, and corporations) shall be in-transitive. For example, doctor’s association should not be able to regulate how many other doctors are going to be produced in the country or who can be trained as a doctor.
- Professional body executes the professional work but cannot self-regulate, self-enforce, and control innovation.
- Regulating body develops rules and regulations but does not practice, enforce or reward invention.
- Enforcing body enforces the rules and regulations but does not practice, regulate and take charge of innovation.
- Innovative body promotes and rewards research, discoveries, inventions and innovations. It does not practice, regulate and enforce.
- There shall be no more than two layers of governments (state and central). State government should be as small as possible so as to maximally address the local aspiration of the people. It should be synonymous to local government. States must ensure that ordinary individuals can maximally participate in governance. Education, healthcare, local development, policing, local law-and-order fall in its jurisdiction. The central government should be handling national and international issues including treaties, sovereignty, and maintenance of army, central police, and jails. The role of central government is to make protocols and standards by which humans, goods, and services can flow freely and fairly within the whole country. It also collects tax and distributes equitably. Any undefined domain should remain in the jurisdiction of the state.
- Central: National-interest, standardization, protocol
- State: Development, human-empowerment, social justice, education, health, economy
- All undefined powers shall remain in the jurisdiction of the states,
- With the approval of two third states, a role of a state may be transferred from the state jurisdiction to the federal jurisdiction or from federal to the state jurisdiction.
- There should be hundreds of states in the federation and not three, five, or fifteen. These large numbers of states should form a distributed system of governance by binding them with transitive protocols binding the states among one another. Principles of building distributed systems would be applied in developing the federal system.
- Objective of a federation is to empower a human who would otherwise be subjugated, exploited or marginalized by the powerful. Only when the size of the government is small and carries special formula for people of all spectrums of social and economic standings to be proportionately present in the government, there would be some real chance for the marginalized citizens to break the cycle of marginalization.
- When states are smaller but numerous, not only they are more agile but also they are less prone to breakup. The 800 districts proposed by the Minister of Culture and State Restructuring could each be treated as states to provide a basis for starting this national debate. There should neither a government below the state nor they be further amalgamated to create 14 middle powers to come in between the grassroots and the centre.
- Whereas having large size of a state was an advantage in the protectionist manufacturing economy of the past, small size will prove to be the source of swiftness, adaptability, resilience and fault-tolerance in the knowledge economy of the future. Nepal should plan to jump straight from agrarian economy to knowledge economy.
- Large and centralized states are useful for war times but least useful for peacetime because they are inherently prone to corruption (be it General Motors, Soviet Union, or now defunct British Empire). As US federal government gained much power after WW II, it has become more aggressive and unjust.
- In a protectionist society, larger the size of a state better the economy because of the economy of scale. However, in an open and connected society, large size is often a liability. In protectionist times Britain, Germany and France were more prosperous and in the advent of EU, Ireland is better off. Future economies should be adaptive than big.
- Every state must have two or more states bordering with it, which is easier to realize when the states are numerous.
- The greatest tool to make small and numerous states successful is a protocol that allows flow of people, goods, and information freely. That is the way it had become possible to create a union of the 50 states in the USA. The protocols unburden the people and the commerce.
- Water resources should be treated such that people sharing common water resource belong to one state; watershed should help people be connected rather than disconnecting them; mountains sharing one watershed would have easier time developing a shared wireless telecommunication infrastructure.
- Governments must have instruments for iteratively minimizing corruption and maximizing transparency.
- Power is the primary source of corruption in humans. Checking of power is most important in minimizing corruption.
- Absolute minimum need of human – food, shelter and education – must be addressed by the collective will of a society. Only such society can contain corruption. (Example: Today boarding schools fees are higher than the salary of parents. People are justifying corruption on the name of innocent children’s basic needs and uncertain looming in their future. Private schooling has been one of the prime motivator of corruption.)
- Making all public endeavors transparent should be an explicit goal of the country.
- Public money is never transacted in private. For every public individual that receives money, there must be witnesses in transactions. All public accounting must be public and everybody must know.
- Solicitation for public fund and formulation of public fund dispersal mechanisms should be done through public deliberations.
- Bulk of the country’s public fund must be spent through local (state) governments through wide public consultations. Federal government should not spend more that 20% of total tax base of the country.
- No person shall be allowed to take same public office for more than 10 years.
- Transparency is the key in curtailing corruption. Public meetings should not be held in private. Maximum number of people should be involved in decision making.
- Separate sets of people should carry evaluation and collection of tax, fine, fees, and so on, so that power cannot be concentrated in one person.
- The difference of salaries and compensation should not be out of range from the scale of 1 to 5 in any organizations.
- Inclusion and empowerment of the marginalized groups:
- The greatest renewable resource of the country is human resource. Producing the most capable people should be stated aim of the country.
- Equity in education, proportionality in representation, equal access to tools of empowerment would be used as fundamental principle for instilling inclusion of marginalized people in the mainstream. Everyone must have equal access to education, health, nutrition and tools of entrepreneurship (doable where the will and the technology converge).
- Inclusion of citizens must be achieved in three fronts: social, political and economic. Participation of citizens in making social, economic, and political decisions pertaining to their lives must be maximized.
- Most equities in a highly discriminative society may not come in an evolutionary manner; some revolutionary measures are required such as one time readjustment on means of production such as land, severe punishment to those who practice discrimination of other humans.
- People who are involved in production should have provision of building ownership on the production unit (e.g. land, factory, bank, and service-industry) in which he is contributing.
- Local development must be done by local people and all local (state) governments must be democratic and consensus driven.
- Maximal participation of women in development should be ensured as warranted by their population size.
- Proportionality of representation in government must be guaranteed based on person’s economic standings and not the caste, religion, and ethnicity. This will give greater voice not only to the marginalized people of today but also to those who may become marginalized in the future.
- Everybody should be allowed equal access to high quality education until age 25.
- Everyone should be allowed to have compulsory and equitable work experience until age 30 in the field of his/her maximal competence. At age from 25 to 35, whoever had completed 5 years of work or post graduate studies, and had formed a group of 5 people should each get a sum of money equivalent to annual GDP per capita to start their own entrepreneurial lives (with minimal interest rate). They would also be allowed to save all their earned money tax free until the age of 30 for the purpose of entrepreneurship.
- There should be no room for building dynastic wealth and dynastic power. Any money transferred beyond a defined level from parents or someone else should be heavily taxed.
- This system must be free of geography, ethnic, racial, religious, or any other discriminatory lines.
- Environmental sustainability, population stability, and self-sufficiency in food, energy, and primary-technology should be constitutionally mandated aims of the country. Primary technology is basic technology that is derived from tradition know-how, possible to build independently in the country, and essential for human survival in case foreign powers close boarders.
- Self sufficiency in food, energy and fundamental tools of survival are required characteristics of a truly independent country.
- Each law that passes should be tested against these aims.
- If the proposed-law is detrimental to those aims, it should be rejected by a constitutional tribunal.
- If quantitative measurement could be made scientifically, the score of positive contributor to the aim should be twice as high as the score of negative contribution to the aim, for the law to be passed.
- Per year consumption of non-renewal resources should not exceed one hundredth of known reserve of the country.
- Citizenship, NRNs, Immigration, and rights and responsibilities:
- Citizens of any country who can contribute significantly in uplifting the people through knowledge, skills, technology, or trade shall be granted permanent resident cards in the recommendation of the innovative or the executive faculty of a state.
- Upon three years of living as permanent residents, such people may become citizens of Nepal.
- All Nepalese should be allowed to retain Nepali citizenship with limited rights even when they take citizenship of other countries.
- All people of Nepalese origin should be allowed to retain Nepalese Origin card which allows them to travel to Nepal, own commercial property, live, and do business in Nepal freely like other citizens of Nepal.
- People of Nepalese Origin should be allowed to obtain full citizenship if they permanently live in Nepal for a minimum of three years.
- There should be representation of diasporas Nepalese in the parliament through direct voting among diasporas, one candidate per continent (Africa, Europe, Oceania, North America, South America). Each of these five continents qualify for one representation as and when official population exceeds 1,000 in the continent. From countries in Asia there would be 5 seats in total. This way, maximum of 10 overseas Nepalese representative will be in Nepal without burdening the country.
- Salaries and benefits of diasporas representatives must come from diasporas resources and not from internal resource of Nepal.
I have attempted to provide suggestions in eleven independent areas of the constitution. These recommendations are written in a free form without using any legal language, which is the domain of others who have specialized in such fields. It is my sincere hope that these suggestions will receive room for debate in the CA and among the general public of Nepal.