Nepal’s constitution offers a flawed concept of democracy. The current constitutional crisis is, in part, an exhibition of those flaws.
In this five-part series, I explore the elements that make our constitution inherently frail and call on civilians to build a truly apolitical (or non-political) movement to save it.
Part III: The tyranny of the minority
Constitutions of most democracies, worried about the tyranny of the majority, placed safeguards against overreach by the executive branch of the government. They did this, for example, by making the executive accountable to the legislature. In parliamentary systems, this meant the legislature could sack the prime minister through a vote of no-confidence any time.
By contrast, Nepal’s constitution worried about the tyranny of the minority and curbed the powers of the legislature to destabilize the executive. Scarred by past instability, the new constitution placed safeguards to protect the stability of the executive.
The constitutional clause that prevents a vote of no-confidence for up to two years after an election is an example of that intent to protect the executive’s stability. Such clauses limit the accountability that legislature can exercise over the executive.
These safeguards, though intended for stability, make Nepal a flawed parliamentary democracy. By sacrificing accountability of the executive, its drafters incorporated an undemocratic thought.
The mistake that the drafters made, and one we often echo, is in believing that political stability comes from having a stable executive. For example, many of us believe we are most likely to get a stable prime minister (or executive) if a political party were to gain a majority in parliament. Thus, we are disappointed that even with a two-third majority in parliament the current communist government is unlikely to serve out its full term.
Nepal’s diversity, its electoral system, federalism, and the nature of its political parties make it near impossible for a single party to get a majority in the federal parliament. But unlike the drafters of our constitution, we shouldn’t be afraid of such fragmented legislatures. We shouldn’t be afraid of legislators being self-interested and politically motivated. We shouldn’t be afraid of the fact that legislators will pull each other down, engage in horse-trading or transact their votes for their narrow self-interest. At this stage of our young democracy, we should be prepared for such behavior.
Instead of trying to curtail such self-interested behavior through clauses that undermine parliamentary processes, the constitution should have focused on addressing how to make governance possible even with such self-interested parliamentary behavior. It is entirely possible—many countries offer excellent examples of how that could be done.
One way would be to understand what motivates legislators in Nepal. Our constitution has a very low opinion of legislators—imagining that they will always act in narrow self-interest. (Ironic, perhaps, that a parliamentary system would distrust its legislators so fundamentally, which makes you wonder if those who drafted the constitution really believed in parliamentary democracy in the first place!)
Our constitution fails to dig deep and ask why legislators will act in such narrow self-interest. The answer: political power is supreme in Nepal’s constitution—it determines everything. Political power determines everything from who will win a government contract to who will get appointed to constitutional bodies. In such a context, a better way to seek political stability would have been to reduce the allure of political authority, for example by explicitly limiting what it can achieve.
Nepal’s greatest tragedy following its new constitution was that a single party—the Nepal Communist Party—had near a two-third majority. Many were excited that this would lead to an era of stable government. As it turns out, it hasn’t been stable, and in hindsight, apparently it wasn’t even a single party in the first place.
The lesson from the current political crisis is to stop believing that good governance requires a single party’s majority in parliament and continuity in the executive. Nepal’s democracy will be better off with a parliament lacking a single-party majority. Legislators should jostle, argue, negotiate, and change prime ministers every month if they so wish. This acrimonious, cantankerous base could yield the most stable democracy if the business of governance could carry on without the need for political authority.