Friday, August 7, 2015

Flawed document: Draft constitution

This article appeared in Republica on August 4, 2015.

The proposed constitution of Nepal will take the country to an uncertain future given its provisions that contain seeds of authoritarianism. Many apparently progressive clauses have been qualified by certain restrictions that can be exploited by a ruler with authoritarian bent.
Take Article 24: Rights regarding mass media. The first clause ensures that there shall be no prior censorship of publications but the very next paragraph lists several conditions to be met to enjoy freedom. The long list functions as the Damocles' Sword that the journalist should be aware of before filing a story or providing an opinion that might be unpleasant to the establishment. This is a direct attack on democratic ideals. Freedom of expression is the cornerstone of democracy and it cannot be subjected to restrictive conditions. In extenuating circumstances like war, press freedom is generally restricted but at a small sign of unrest against an unpopular leader, it can be curbed with misinterpretation of this Clause. With these many restrictions on press, can democracy prosper in future?

The thought behind the incorporation of this offensive Clause in the constitution is that the state knows what is in the best interest of the people. It holds individuals as forces of anarchy, malleable to be swayed by the pernicious influence of a news piece or an opinion. Thus the state has to act as the strict disciplinarian. Yes, some media outlets have misused press freedom to indulge in character assassination and libel at certain times but these incidents are exceptions rather than the norm. Muzzling the press cannot be justified based on some stray incidents.

Another provision that can be exploited to assert the power of a dictator is forcing the citizen to perform mandatory labor. Ironically it falls under the provision of right against exploitation. Article 34 (4) reads, "No person shall be subjected to forced labor." But, the Clause puts a condition, "Provided that nothing in this clause shall prevent the state from enacting a law requiring a citizen to participate in compulsory service for the public purpose." This Clause demanding compulsory service is in direct violation of individual privacy. Some countries have this provision as part of penal law. The courts award mandatory public service for some crimes in these countries. Is this the case here?

A democratic constitution ought not to impose upon the individual. It should not provide leeway for arbitrary interpretation of law. But clearer is the requirement to give up privacy in Article 52 (c). It is the duty of the citizen to "compulsorily enlist when the nation needs the service." This is forceful conscription, pure and simple. Collate this with the incorporation of the term "enemy state" in right to justice provision. Does it mean that the constitution envisions war with another state requiring all citizens to contribute their labor in war effort? What about Nepal being a zone of peace?

Continuing with the constraints on individual liberty, Article 28 defines that "no person shall be put to preventive detention without sufficient grounds for the existence of immediate threat to the sovereignty and integrity or law and order of Nepal." This means that a person can be put in preventive detention when the state furnishes sufficient grounds. Rallies and mass demonstrations, parts of democratic practices, against an unpopular ruler can be taken as threat to sovereignty and law and order by the ruler to put demonstrators in preventive custody and curtail minimum rights. It happened during Indira Gandhi's rule of emergency in India and the constitution was misinterpreted by legal eagles close to the regime to justify authoritarian rule. The same can happen here.

These concerns are relevant in the sense that there are demands of directly elected executive. This demand stems from the desire to see the country ruled by executive fiat. Sick and tired of ill practices of parliamentary democracy where horse-trading, floor crossing and illegal inducements to parliamentarians to form or topple the government were a norm, people during the constitution feedback campaign might have demanded directly elected executive (although the demanders may have been brainwashed by party apparatchiks). People might be thinking that a charismatic and strong-willed leader can come down hard on anarchy and steer the country in the path of prosperity and development.

But there is no guarantee that there will be stability in the country after a directly elected executive assumes power. The executive has to be accountable to the parliament and in the situation when the executive's party fails to win comfortable majority in the parliament, his/her moves can be blocked. Frustrated with this, demands to declare parliament null and void could emerge. Without check and balance against executive overreach, there is every chance of an authoritarian rule. Given the country's geo-strategic position, sovereignty can be put in peril by an authoritarian ruler. Rather than this elitist demand, fostering inclusivity and strengthening state institutions will ensure Nepal's development.

The chattering class loves to give the example of Singapore's charismatic leader Lee Kuan Yew who transformed a backward country to become a developed one and dream of a similar leader here. But they seem to forget that Lee alone couldn't have done anything and he had capable assistants and, more than that, strong institutions to bring about change. Given the sorry state of our institutions, an authoritarian leader is likely to foster bad practices rather than change them for the better.

Matt Andrews, Associate Professor of Public Policy at Harvard University busts the myth of hero-worship in underdeveloped country like ours by saying, "It is disempowering to see leadership as something that demands waiting for special individuals to do special things. It is empowering to see leadership more empirically; as something that emerges in certain contexts and manifests in multiagent groups."

The proposed constitution cannot be given the benefit of doubt that it is a document of compromise. None of the stakeholders is happy with the statute. Cosmetic changes after the incorporation of public feedback might be made but that would not ensure its longevity. It would be unfortunate if the constitution has to be scrapped after another 10 years. After all, it has been hastily prepared to facilitate change in power. That is why it lacks any vision. Therefore, rather than promulgating this ill-conceived constitution that can give birth to authoritarianism, it would be better if the country waited for a better document prepared with great care.

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