Burdens of contemporary constitutions: A genealogy

When the colonial rules gave way to new constitutions of the independent states in the middle of the 20th century, the constitutions hitherto designed to impose authoritarian colonial subordination were replaced by complex texts that had the burden not only to provide people with sovereignty and establish regimes of law, but also - perhaps in their infant euphemism surrounding newly achieved freedom-provided for the liberal incantation of duties of the state, ushering in a quixotically the very same patrimonial state in the place of predatory patrimonial states of colonial era. In Nepal’s case, a feudal fiefdom continued more or less until the 1990’s Constitution attempted to “democratize” the King’s power in the state. The contradiction between freedom promised, power decentralized; and the expansive duties of the state enshrined in the constitution but feebly delivered meant that the constitutions collapsed under their very own weight.

Waves of military rule followed in the post-colonial states; which is what in essence happened in Nepal, first under King Mahendra and again under King Gyanendra. Waves of democratization worldwide in the 1990s dismantled many of the established concepts of the nation-state. Ethno-lingual identities came to the fore as the rallying point of a new form of diffused “sovereignties” within a state. Constitutions have been forced to accommodate diversity and plurality within its framework giving rise to euphemism of “unity in diversity”. However, its application at best remains fragile in the developing world. While there is demand for an ever more encompassing constitution, accommodating multiplex aspirations of multitudes of interests and groups, the state power remains at most diffused due to the very reason that an expansive duty has been demanded from it -hence, unable to fulfill its obligations.

Precisely for this deficit in state power, however, even more instruments are added to the constitution to make it “workable”. This form of “prescribed constitution” provides at great length the devices of state power not necessarily controlled by the politicians and the political parties. The apparatuses of ombudsman, independent electoral commission, independent prosecutorial system, auditors, human rights commission, judicial commission, civil service commission and other constitutional commissions are but a few of the constitutional devices in addition to other constitutional innovation to make the governance least politically manipulative in the contemporary constitutions. While the constitution appears to be robust in this formation, it also entails even more emasculation

of state’s ability to consolidate and employ power. This restrictive devolution of power makes up for the democratic deficit in the evolving democracies.

The infancy of democracy is particularly problematic for the state undergoing structural transformation from a unitary into a federal form, especially that which aspires to ethno-lingual identities based federation. The anti-majoritarian variants of constitutions have generally adopted “consociational” form of power sharing between the communities within the state. However, such an approach reinforces ethnic differentiation and makes it hard to congeal a national identity. At worst, it may even lead to more conflict as the leaders of ethnic groups could play upon the parochialism and differentiation to jostle for space in national politics. In a country of minorities like Nepal, carving out states for a particular ethnic group is even more problematic for no group would be able to claim majority in their contested “homeland”. Nepal will face a unique and potentially devastating problem of securing rights of majority in minority led states. However, inter-ethnic grievances could still be mediated through the constitutional innovation that balances rights of the ethnic group with the rights of individual as an equal citizen of the state despite his/her ethnic orientation. In Nepal with no congruence of a particular ethnic group’s demography with that of a particular geography, a constitutional innovation of non-territorial autonomy with “consociational” representation in national legislature could be an option. Another chamber of legislature, secularly contested nationwide by “Citizens” without regard to ethnic orientation would help secure the rights of the individuals.

As contemporary constitutions are generally negotiated instruments of political settlements — especially those made after conflict-they tend to be more interventionist and oriented towards transformational agenda of social engineering. As such the constitutions are not “complete” and tend to be “living constitutions” — subjected to timely adjustment and re-settlement. The dialectic of constitutionalism has evolved from a state centric approach to a diffused sovereignty where the state faces pressure of not only internal dynamics like ethnic assertion but also a dynamics of globalization that elevate at once the imperatives of economic participation and “universalization”, and consequently “uniformalization” of rights of the individuals. The latter being the best bet for better constitutional innovations.