Constitutionalising divided society A case for robust judicial review

Constitution is the ultimate vanguard of democracy. As such, the constitutionalism remains in the inherent tension with the democratic expansionism — where it is required to constrain the excesses of majoritarian rule. In a society with clearly identifiable ethnic identity based fault lines constitutionalism is the only pivot to hold the society together with its role as the final arbiter of competing claims. As such, constitutionalism must appear as the robust restrain on the political will which often times are at cross purpose and mutually destructive as expressed through the identity based politics. In a country of minorities, like Nepal, this is even more of a stark necessity where the purported political will of the communities are at best the leverage for the political elites to gain easy bargain in the fluidity of the transition.

Against this backdrop a robust constitutionalism calls for a construction of constitutional apparatus to safeguard the individual against the purported majority will of a particular community or communities. As such, two sets of devices are enshrined in the constitution. First, like in the form of Bill of Rights, are a set of positive rights that enables an individual to be protected against any majoritarian excesses and is cross-cutting the ethnic or any other identity. Second, is the limitation on the structure of power and governance that calls for accountability of the government. The first set ensures that despite the changes in government by a majority (or of coalition as will likely be the case in Nepal post- new constitution), an individual has his rights untrammeled regardless of his identity. The second set compliments the first set by guarding the government against its inclination towards majoritarian rule — and that all citizenry remain equal and that their rights secured even if they remain opposed to the governing coalition and its acts.

This daunting task calls for a strong constitution-reinforcing judicial review apparatus enshrined within the constitution. Especially in the case of Nepal without any established cross-ethnic national institution and simmering and re-assertive ethno-lingual identity — the stabilization and re-democratisation is premised on the dampening of ethnic animosity, which is only achievable by imparting an institution taken as the most legitimate by the whole of the nation. The constitution — as an expressed framework of governance agreed by the widest set of people (ideally a popular franchise) and within it an inherently established mechanism of an authoritative judicial review would provide a pan-national legitimacy for such a process. By rising above politics (an inherently temporal set of issues) this form of constitutionalism provides an enduring national institution acutely needed in the transitional phase of democratization. This way only the law of the land plays the most integrative re-constitution of the society where politics may veer off by the temporal temptations of short-sighted tactical calculations of political transactions.

Most discussion on the new constitution today is focused on the pro rata distribution of power at the center and from the center to the local. A form or another of conscociationalism has found currency among the deliberations on the power distribution. The key in these deliberations is that the power will be re-distributed despite the numeric strength of a particular ethnic group in a particular region. While this may empower a particular group in a particular region it may still leave many groups outside this re-distribution process. In fact, many of the demands of ethnic groups have been an assertion of power in their respective region of claimed nativity -which has gone beyond the prescription of conscociationalism of “coalition forming” into a “native first” approach. This has a very drastic affect on the re-fragmentation of societies. Alarmingly, no political party (at least those of national orientation) appear heeding this danger.

While a form of federation, conscociational or “native first” (which would be most counter-intuitive) loom likely in the days to come, it again calls for a strong central juridical overseering of the constitution precisely for the reason that such form of association requires a strong guard-rail, especially on the wake of re-constitution of a fragile state — so that the political victors do not devour the democratizing process. Only a robust judicial review process of constitutionalism which does not only morally read the constitution but provides for the most pragmatic judgment by evaluating the values enhances the prospect of a most stable democratic governance.

It will be the ultimate check against ethnic revanchism that may yet destabilize the democratizing process. It will also ensure that despite the formalities of power - sharing the rights of the minority could be entrusted to a national institution. If a robust judicial review process is not enshrined within the constitution, a separate Constitutional court could provide the role of constitutionalism of democratization with a robust mandate to continuously gauge the limits of governance.