Opinion
Social order, for whom?
The new constitution is unlikely to contribute either to democratisation or social stabilitySoon after learning about the Tikapur incident, one person tweeted that he was ready to suspend civil rights in exchange for social order. While an extreme view, many people belonging to the urban middle class empathise with such logic. The constitution-drafting process has sharply divided people who prioritise social order and those who value egalitarian power relations. The middle class, as well as the mainstream media, values social order and democracy and are suspicious of the identity-based mobilisations around the country.
However, even if we ignore the issues related to the identity-based movements, the middle class should still be wary of the current constitution-drafting process. The current constitution is unlikely to contribute either to the process of democratisation, or to social stability.
Violation of contract
One way to look at the constitution-drafting process is from a contractual point of view. In recent decades, the theories of democracy and practices of governance have seen a massive change. In European countries, for example, democracy and governance is all about the contractual relationship between the people and the institutions.
In Nepal’s case, the Interim Constitution was the contract between the Constituent Assembly (CA) members and the people for the drafting of a new constitution. The electoral manifesto of the political parties was another contract.
As elected representatives, all members of the CA are required to place these formal ‘contracts’ above their loyalty to their individual party-leaders.
We are frequently told that the CA is a sovereign body. It is a lie propagated by the power elites.
Sovereignty always lies with the people, and it can be used by the CA members only as stipulated in the ‘contract’ with the people. If the current CA does not follow these democratic norms or these ‘contracts’, it loses its legitimacy. The CA, thus, has the authority to decide the content of the new constitution, but it does not have the authority to deviate from the process as outlined in the contract.
From this lens, the CA has already deviated from the process. The CA is now more accountable to the whims of a handful of political leaders than to the contractual agreement with the people.
Social order
Another way to look at the constitution-drafting process is through the historical lens related to nation-building. The key components of ‘nation-building’ are a) laying the foundations of socio-economic development by (re)forming inclusive political and economic institutions, b) developing a democratic relationship between the state and its citizens (citizenisation), and c) building an egalitarian power relationship between different identity groups.
Given the space constraint, I am not going to discuss the issues of citizenisation and the egalitarian power relations between different groups, which generate a whole range of questions about power relations and threaten to make this a failed exercise at state-building.
Let’s focus on the question of social order.
Our desire for economic development makes us ‘see’ instability as the key to underdevelopment, and unfortunately we fall into the ideological trap set by these very elites who prioritise social order far above democracy and reforms.
Laying the foundation of socio-economic development requires transforming institutional cultures and practices to make them more inclusive. Most of us fail to see this logic and become pawns in the hand of the power elites.
As a theory it may look abstract. But as bad luck would have it, we have glaring examples right in front of our eyes. The mismanagement of Nepal Oil Corporation leading to unnatural prices; the rampant corruption within Nepal Airlines leading to grounding of brand new Airbuses, and the case of the medical mafia extorting and undermining the health sector are some instances of how ‘democracy’ and governance have failed in Nepal.
As many experts, including Lynn Bennett of the World Bank, have outlined, it is not an issue of not knowing what to do, it is rather related to the elites’ control of these institutions and their resistance to implement good policies to reform these political and economic institutions.
Social and political order is a valued public good, but not for everyone. We generally tend to believe that ‘if there is social order then there is going to be development’. However, this causal chain is not guaranteed. Social order is going to lead to infrastructural development. But that is bound to happen whether we have democracy or not. Whether infrastructure development alone will fulfil our need for economic development is another question.
Social order, when it requires domination and use of force, serves the status quo of the power elites. It postpones the agenda of institutional reforms.
Social control
Many studies, including that by Darren Acemoglu and Simon Johnson, have shown that countries like Nepal can emerge out of the poverty trap only if we reform our political and economic institutions, and make them inclusive. Making them inclusive means at least two things. First, it means ending extractive practices where a small number of people who control these institutions extract power and wealth from a larger number of people. Second, it means making them accessible to ordinary citizens.
Among the institutions that must be inclusive are the political parties. The constitution, however, has no provision that creates an opening for the regulation of political parties. With the powers of the Election Commission significantly reduced, ensuring internal democracy and financial transparency within political parties is left to the discretion of a handful of political leaders.
One of the reasons why it will do so relates to the separation of powers. Although on paper, the constitution has separation of powers, in practice all organs of the state are controlled by a handful of political leaders. We are seeing a deeper trend towards the accumulation of power in the hands of a few as opposed to the distribution of power which the current exercise is supposed to promote. The term ‘pluralism’ espoused by the Nepali Congress has never sounded more hollow.
As is the practice now, everything from appointment of judges to appointment of commissioners to the Commission of the Investigation of Abuse of Authority depends on the oligopoly of political leaders. Therefore, ensuring mechanisms and constitutional guarantees to regulate de facto separation of powers will remain a challenge.
This is all the more ominous when you try to grasp the spirit of the constitution. When you read the draft constitution, the fundamental feature appears to be the desire for ‘social order’. The subtle wordings, emphasis, and the tone are all about social control. The constitution reads more like a mechanism of regulation than a social contract between the people and the institutions that govern them.
An analysis of the process and the content of the draft constitution indicates that not only does it create challenges for democratisation and state-building, it also generates questions about its relevance and longevity.
Without a substantial revision, the current constitution is unlikely to guarantee peace and economic development that serves the people.