Time to rewrite the constitution

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It is time to move beyond the idea of political stability to the idea of constitutional stability.

Prime Minister KP Oli’s move to dissolve Parliament has unleashed a phase of political uncertainty which could devour more than the legislative body. Oli’s political endgame is not clear; it has brought into play internal political conflict, foreign actors and forces that are eager to disrupt the constitution. In order to attain political stability, it may be necessary to think of a new political conclusion: We have to move beyond the idea of political stability to the idea of constitutional stability.

Sources of instability

The primary cause of political conflict in Nepal is the difference in privileges and benefits enjoyed by those in power and those outside. It is not just about power, but the power to abuse authority and to grift with impunity. The gap between the haves and have nots—in terms of their ability to steal money and privileges from the state—breeds a level of resentment that motivates political actors to develop cliques and go to extremes.

In addition, individuals driven by dogmatic egos and a sense of grievance have disrupted the nation’s political course and destroyed the dreams of multiple generations. The Maoist conflict, for example, was driven by two dogmatic individuals, Pushpa Kamal Dahal and Baburam Bhattarai, and Nepal wasted almost 15 years in needless conflict, which otherwise could have led to the evolution of democratic culture and economic development.

The stakes are raised higher because of the play by foreign countries like India, China and the United States who prioritise their own strategic interests over the interests of the Nepali people. Then there are the cleavages based on identity, feelings for monarchy, religion, class and resistance to the idea of federalism. These divisions undermine constitutional stability and promote mistrust of the current political design. But most importantly, there is a significant gap between the existing political culture and the fundamental principles of democracy like accountability and separation of powers.

As of now, there is too much uncertainty about Nepal’s political course. The obvious first question is whether the Supreme Court will restore Parliament, and even if it is restored, whether it will be able to form a government. Another uncertainty is the timing and possibility of elections under different scenarios.

The major actors at the moment are the political parties, civil society, state institutions and foreign countries. The level of conflict and relationship among these different actors—including the level of geopolitical conflict—will shape Nepal’s future political course; it could lead to anything between an emergency government riddled with political conflict to a relatively smooth transition.

However, in order for Nepal to enjoy peace and stability, constitutionalism must be resilient and strong. Whether Nepal will enjoy stability or not also depends on whether constitutionalism will prevail or not, which in turn could depend on the role of civil society and demands for rewriting the constitution.

It is now time to think about constitutional stability, rather than political stability. Constitutional stability emerges only when we are able to address relations of power between different historical forces and the socio-cultural factors that shape the nature of such political conflict. These include the norms and boundaries of conflict. For example, if people do not have a habit of following constitutional norms, it is very difficult for the constitution alone to deliver democracy. It will require appropriate checks and balances between different political forces, and rewards for abiding by the constitution.

Some constitutional experts are proposing the need to review the existing constitution by creating a commission to look into how it can be rewritten in order to address factors of political instability and extra-constitutionalism.

Questions about foreign policy

Although KP Oli appears to have gone against Chinese interests by dissolving Parliament, splitting the party and announcing elections, his faction still has an affinity for the Chinese. This is evident from the language used in speeches, government policy documents and political culture.

Since Chinese President Xi Jinping’s visit to Nepal, the Communist Party of China has been eager to develop closer party-to-party relations and provide ‘experience’ about governance. This was re-emphasised by Zhao Lijian, spokesperson for the Chinese Foreign Ministry on Monday. With the visit of the Chinese president, Nepal and China had formally entered into what the Chinese have described as a ‘strategic’ level of partnership, beyond the previous state-to-state relations.

It has now become obvious that geopolitical competition between India, US and China has spilled over into Nepal’s domestic politics. Internal political stability, therefore, requires a healthy foreign policy that can limit the role of foreign actors in Nepal’s internal political competition.

The country needs to have a transparent foreign policy with clearly stated objectives that not only Nepal but also foreign countries can agree on. At the moment, there is a big gap between Nepal’s stated foreign policy goals and actual practices. Nepal’s foreign policy uses language and tones influenced by and favourable to China.

The gap exists because Nepal’s foreign policy is more a tool for the ruling political faction than the country as a whole. In the last few years, for example, KP Oli has been using Nepal’s foreign policy as a tool to consolidate his power over his rivals rather than as a tool to promote Nepal’s national interests. This is another reason that invites intrusive countermeasures from within the ruling political parties.

Internal and external factors imply that in order to attain constitutional stability, Nepal may need to emphasise a new type of political culture, forge a higher level understanding about foreign policy, start a new dialogue process, and most importantly, rewrite the constitution itself. It is, therefore, time to move beyond the idea of political stability to the idea of constitutional stability.

This article appeared in The Kathmandu Post on December 30, 2020.

https://kathmandupost.com/columns/2020/12/29/time-to-rewrite-the-constitution

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