The Dilemma of Constituent Assembly:
Rise of Illiberal Democracy and Maoist Socialism
By Laba Karki, Ph. D.

It should be forewarned that the dilemma of free elections for constituent assembly (the process of electing a body for drafting a new constitution) in Nepal is that it will potentially lead to victory by anti-liberal forces, and thereby give rise to “illiberal democracy” and Maoist socialism-that is, a freely elected government, which however fails to safeguard basic liberties and individual freedom of Nepali citizens.

Fareed Zakaria (editor of Newsweek International) cautions that we are witnessing a disturbing phenomenon of so-called democratically elected regimes, even those that have been re-elected or re-affirmed through referendum, especially in the Third World countries from Peru to Philippines. He calls this phenomenon the “rise of illiberal democracies,” states that hold free elections but ignore constitutional limits on their power, deprive their citizens of basic rights, and do not honor the rule of the law.

Zakaria argues that democracy without constitutional liberalism produces centralized regimes with erosion of liberty, ethnic competition, conflict, and war- a looming possibility for Nepal following King Gyanendra’s recent relinquishment of executive power to the ex-parliamentary leaders. “Illiberal democracy” perhaps owes its roots to ancient Greece (where democracy originated). Plato, one of the greatest minds in Western philosophy, in his book “The Republic” warned civilization 2,400 years ago that “democracy” leads inexorably to “mob-rule” or “dictatorship of the proletariat” by stupid (sophists), who while they may have fine rhetorical skills (that can exert some control over the masses) have no true knowledge itself.

Examples of these mob-ruled democracies are rife in our own backyard, India. Plato, therefore, believed in some form of monarchial hierarchy. He argued that “democracy” could not work as a reasonable, just political system, possibly in the context of Nepal where the people are backward and the party leaders ill-educated and corrupt.

In Nepal’s context, the irony of the recent victory for peoples’ movement for democracy is the likelihood of formation of a Maoist republic-a virulent form of “illiberal democracy.” The young Nepali masses chanted slogans demanding “lok-tantra” or “people-power” during past April’s movement calling an end to King Gyanendra’s direct rule.

But, who were the people to whom the power belonged? Was it all the duly qualified citizens? Or, was it only some of the people-the leaders of the 'mob'? Reports indicate that the mass was driven not just by the Seven Party Alliance (SPA) but more so by the threats of extremist elements. And, with the Maoists’ call for constituent assembly, and its subsequent ratification by the restored Parliament, we are now faced with the stark prospect of a much more ominous dilemma-will the free elections transform Nepal into a Maoist republic with an illiberal, barbaric, and totalitarian constitution?

“The Maoists are seeking a secular, socialistic republic with radical land distribution and removal of the monarchy. However, few realize the dire consequences of electing a constituent assembly.”
Clearly, the real winners of the SPA movement appear to be the Maoists who are now at the helm of Nepali politics ready to radically alter the constitution of Nepal (1990). The Maoists are seeking a secular, socialistic republic with radical land distribution and removal of the monarchy. However, few realize the dire consequences of electing a constituent assembly.

Basically, the Maoist-dictated and drafted constitution will trample on individual liberty and freedom, lead to mass migration of Nepalis, extinguish the nationalistic spirit of Nepal, and negatively impact the fledgling capitalistic economy. Hegel (1770-1831)-- one of the greatest “idealist” philosophers-- said, “A constitution is the dwelling spirit of the history of the nation.” Hegel argues that a constitution is neither something manufactured, nor just papers like the many constitutions written and torn up during the French revolution.

A constitution, he says, is a work of centuries that represents the historical development of the spirit of the people. Accordingly, Hegel argues that it is impossible for the cultivation or imposition of a constitution from an external source to succeed at all. Thus, it follows that any attempt to radically impose extremist philosophy into the already living, breathing document of the constitution of Nepal 1990, is doomed to fail because it will be devoid of the spirit of the Nepali people and the nation. The textual meaning of the1990 constitution of Nepal incorporates the principles of a “liberal democracy” and it reflects the spirit of our nation, people, and glorious history. And, the articles provide for the separation of powers: the Executive, Legislative and Judicial branch of government with appropriate checks and balances.

The Nepali constitution 1990 incorporates the “fundamental rights” of citizens just like the American “Bill of Rights”. A bicameral system with His Majesty’s Raj Parishad with emergency powers on the one hand, and the executive branch headed by the parliamentary Prime Minister on the other, functions as twin pillars of democracy with proper checks and balances. Anything less than the bicameral powers in the new constitution would be a denial of the history and spirit of our nation.

The Western world should be aware that the King has historically, traditionally and religiously been a symbol of unity and peace for the vast silent majority of various multi-ethnic and multi-lingual groups of people in Nepal. The constitution is the framework for the law of the land and defines how we as people want ourselves to be and what rights we ascribe to ourselves. The constitution, however, must give adequate powers to the monarch to provide checks and balances on the authority of parliament-the abuse of which was not uncommon in the past. (One should note that the American constitution was adopted in 1787, after more than a decade since Independence in 1776, and there has never been a time when a constituent assembly convened to change it; rather the constitution contains 27 amendments.)

Finally, we should be cautious and informed about the consequences of going for constituent assembly in Nepal. Democracy without constitutional liberalism and constitution without democratic liberalism is dangerous and should be discouraged. Else, we are faced with the reality of a republic without proper checks and balances, without a national identity, without the rule of law, without individual freedom of life, liberty and property--a classic scenario of “illiberal democracy” and the rise of Maoist totalitarianism that may ultimately lead Nepal to becoming a satellite state of our southern neighbour.

Laba Karki, Ph.D., J.D. is a practicing Attorney in Virginia, the USA, and has contributed extensively in the scientific and legal fields.

Bineet,

The comment as to "professional hazard" was not regarding Patent Lawyers and their contributions to Science--it was a joke about how having a conscience is a professional hazard for lawyers...

As to Ram Sharan, Girija and their misdeeds...all I have to say is if that be true..what of the Royals..Kamal Thapa, a convicted felon, Prakash Koirala, a man who has no idea what party affiliations he is and is a known habitual drunkard, Tulsi Giri, a bank defaulter etc....there's plenty of blame to go around for both the SPA and the Royals (and I'm sure there are a couple of skeletons in the immeidate Royals cupboard..except Paras--he seems to have a knack of letting all his stories go public)!

Nepaali ji...arko kura - one can stay here yet love Nepal. He may not like King Bush and the system.... He may be a person who thinks Monarchy has a lot to do in Nepal--- what is double standard about that???

Changing party affiliations is not big deal - if you are not happy with party policy you can open a party or change the party. Talking about drunkards reminds me of Krishna Prasad Bhattrai and Sher Bdr Deuba more than anyone else. Thinking about convicts - well Girija was one among many and now he is legitimizing the biggest of all the biggies -- ie the Maoists. Talking about skeletons --- the SPA has many more than the Royals ever had if they ever did. That is something you will know if you go to places like Bhairahawa.

So what's the point of posting the article if we cannot criticize it? There are a few holes in his argument-- for example,not once does he mention some of the misdeeds the king has been a part of. I came across this blog that criticizes one of his articles. This is what he says:
"An insane article straight from fantasy-land that argues Nepal needs a 'Leviathan' king, apparently oblivious to the fact that the man who commissioned this theory from Thomas Hobbes, Charles I, lost his head and ushered in a republic in Britain!"

http://turtlesback.blogspot.com/

Well, if you peple went to liberal arts college - you must be knowing - yess CharlesI lost his head but there was another monarch. Britain never became a republic but was replaced by another monarch who became more powerful.

Bineet Ji,

Read his article again..he makes a very clear case for the Monarch to step up his power and not give in to the party heard as he puts it..well, vis-a-vis the situation in Nepal prior to his ceeding power to the people, I presume you are aware of the measures that were in place:
1. Army stationed at News stations/FMRadio stations ets editing reports before they aired
2. The detention of student leaders without producing them in court and once the Suprme court ordered them released, re-arresting them on the pretext that the Supreme Court did not say that those leaders could not be "re-arrested"
3. Ongoing extrajudicial detentions and "forced dissappearances" against various people (Yes, I know the Maoists were doing the same)

So..that is what I say is a double standard - it's easy for you and me to sit in another country and say that the Monarch should not give in and in fact be more powerful and consolidate his power when these measures serve to stiffle any form of disent, dissent carries with it the risk of loss of life (as was plain to see in Kalanki)...for Mr. Karki to make the case for a stronger Monarchy while he lives in the U.S and enjoys the protections of the 1st amendment (Right to Freedom of Speech and Association) and the guarantees of the bill of rights is what makes his stance on the monarchy a double standard.

As to your point of "one can stay her and yet love Nepal" - was that ever in dispute. I have no doubt that he cares for Nepal, but I think the case can be made that given the show of public sentiments, writing articles that go against everything a majority of those out on the streets demanded is counter to what the people of Nepal want - does that mean that he loves Nepal less...no...just that his views would place him in a minority even in Nepal.

"the SPA has many more than the Royals ever had if they ever did"--a bit of an exaggeration wouldn't you say?..you realy believe that the SPA has more skeltons in their 12- 15 year of governance than centuries of Royal rule?..Please explain.

"Britain never became a republic but was replaced by another monarch who became more powerful. "

This is what the BBC says:

"England became a republic in 1649. The monarchy, the House of Lords and the Anglican Church were all abolished. The great seal of England was replaced with a new one. Scotland was integrated, Ireland savaged and war declared on the Dutch. The country was now governed by a Council of State "

http://www.bbc.co.uk/radio4/history/sceptred_isle/page/66.shtml?question=66

Well Nepaali jee- 10000 or even 100000 mobs brought from villages to cities by extrimists and partially by SPA, I guess does not comprise the mojority of Nepal's 26 million population. I know the mob was brought in trucks because some people I know in Panauti were told by Maoists to go with them in trucks or else they will face the consequences. Now these people, both father and son, came because they didn't want to be alone if only one came. Neither are they educated or even literate nor did they know why they were brought for. And, the irony is people like them coming in herds did change the destiny of the nation - hahaha that is Nepal.

From time to time in the english history there has been times when Monarcy has been powerful like under queen Victoria and many others. I don't think England is called the republic. The queen is not only the head of the state of also the head of commonwealth.

Of course England is not a republic, but that was not what the blogger was saying in the first place.

The mobs brought from villages - maybe that happened..I don't know, but, what I do know is that people waged demonstrations the likes of which has never been seen in Nepal and I'm not sure what your point is...other than that you seem to think that Laba ji is correct in stating that the Monarch needs to come back in and be the Leviathian of Hobbes theory--which again, as Thugged Out pointed out, is misplaced considering that Charles I lost his head- literally...

I think this discussion would be made easier if you would be clear as to what it is that you are trying to say vis-a-vis the Monarchy in Nepal and what you see their role as.

*****
Thugged Out,
will wonders never cease?...just when I said "we'll have to agree to disagree" you agree! :-)
Also, I read you recommended tactics for torture against the "poor" sod that was deported for being a sex predator----Yikes!!!..my one fervent prayer--May I never..knowingly or unknowingly get on your wrong side! :-)

LOL, don't take all my posts seriously. Some of them are just meant to annoy people. Dunno, some may find em funny, some will probably laugh it out. Whatever floats your boat. I know I cuss a lot, but this is just an online persona, if you know what I mean.

I though Dr. Karki has some thing locical to say about emerging politics in Nepal. I read the whole article and concluded that he is not a doctor because he does not diagnoise the symptoms of illiberal democracy that he fears would emerge in Nepal. he does not understands how the socio-economic aspects interacts with the institutions and how that interaction would lead to the evoluiton of political institutions like demand for constitutent assembly and of course outcome of election for that. The demand for constituent assembly has been a political agenda in Nepal since 1950 but Kings have been deferring for that. I don't understand how he concluded that the election for constitutent assembly would lead to illiberal democracy when nepalese people are trying to reinforce full democracy?

Declaring to go for CA is easy but getting the job done is not. I am OK if the Maoists lay down their arms before the CA election, otherwise what is the point? If the Maoists can not guarantee that then should the RNA be limited to barracks?

Going by the way some of you think, why not change the country to Communist Republic - the fighting will then stop for sure, dont you think? Of maybe that is exactly what you want, which is my guess.

Unfortunately, Maoist are not laying down their weapon before CA election. Prachanda wants a third party ( UN ?) to monitor both armed forces during CA election. That's to ensure the fair election re. what's the point to be in interim government then if they expect to be cheted by the government which they are a part of. It's obvious that maoist will not have majority to make the constitution in their favour. I think it's their reluctance to release the uper hand position in any negotitaions further and unfortunate disbelief toward other political powers. We are little closer to what majority of populatioon wants but I am afraid war has only called a short timeoff.
Making Nepal a communist republic is not what people want and that's why I think a new fighting will emerge then. All the liberal force in the world will suport the force that will rebel. We have a long way to go but I only wish this transition to be fast and less costly.

I am helpless and only thing I can do is wait and see what Bhagwaan has stored for Nepal.

Nepali CNN,

"declaring to go for CA is easy but getting the job done is not. I am OK if the Maoists lay down their arms before the CA election, otherwise what is the point? If the Maoists can not guarantee that then should the RNA be limited to barracks?"

As much as I would like to believe that Maoists are going to lay down their arms prior to CA, I just don't think that will happen...the advantage that they have at this point, is that they nothing to loose - if the govt demands that they lay down their arms before coming to CA, then they have the option of staying out of government and continuing the killings etc which is not what the country needs....if it means that we give them more liberties and allow them to come in to govt without having made a committment to lay down arms then perhaps that is what we have to do to ensure peace in the country.

I'm sure even Prachanda realizes that the barrel of the gun and the threat of brute force alone are not going to keep him in power - he is going to have to fight in an election and he cannot call the shots for an indefinite period of time...international monitoring or not..the Maoists in order to be a legitimate player in Nepali politics is going to have convince the people to vote for them...so...it looks like we might have to play the waiting game for now.

As far as the RNA is concerned, I think the discussions taking place now are centered on whether they as an armed force are the "Royal Army" or "Nepal Army" and I think that is a crucial distinction in terms of deciding whether they stay in the barracks or run back to the remote areas.....if the Nepal Army then, I believe they stay back and let the CA take place..if the Red Army continues with the madness of killings, rapings etc, then yes, of course they step in...but at point, it's becuase they need to secure the country and not the throne for KG...

Nepali jeee, tapai bahun ho? tapai ko kura baata u sound like a bahun... hahaha I hate bahuns and their ideas.... Bahuns are taparay .. short sighted and opportunistic hyenas ! Bahuns like you live for today ... for you there is no tomorrow and there was no yesterday to be grateful for. But for us there is and we support the King and in our views RNA should be RNA under the King not under some ill educated and corrupt leader who would not even mind selling the soverignty of the nation for power ! And who would not even care the consequence of illeberal democracy for the people of the nation.

You being a bahun or bahun like may have some vested interest in that - but we belong to a class of people whose forefathers gave their blood for the nation and we cannot compromise.

Yow dem amritjoshi Why dem you is hating Mr Nepali.
If dem Bahun biraders not there dem no peopal is can have names and dem fortune charts etc.


Why dem you is be racist?

Bahun is dem nicest peopal. Dem Bahun is dem closer to God.

Dem Bahunis even better. Dem Bahunis dem sweetest peopal.

This Nepaali bahuns ideas and interests suck !