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.

Nepaali,

Your conclusion seem to have originated from your weak mentality. You seem to have been defeated by the Maoists or at least brain washed by them to believe that " even Prachanda realizes that the barrel of the gun and the threat of brute force alone are not going to keep him in power".

Tell me why did he first go to the jungle in the first place? Hitler never had the popular votes to become Chancellor of Germany, and the only reason he got the job was because the German leaders entered into a series of back-room deals. Does that sound familiar now in Nepal?

In 2002, Saddam got elected with 100% of the eligible votes, but how?

If you continue to argue that Maoist dont have to lay down arms but Nepal Army(not RNA) needs to stay at the barracks, I can easily conclude that you are a Maoists and I wont be replying to your posts further. I will rather see you at the battlefield some day in near future... we will talk there!

Laba's writing such a piece of crap!!!

NepaliCNN,

My comment as to Maoists not laying down their guns was not to indicate support for them but rather a comment as to what I think, unfortuantely, is going to happen given the current political climate in Nepal....in order to bargain with them and demand from them actions that a majority of the Nepalese want (I for one want them to lay down their arms and I also want them to account for all the extra judicial forced dissapperances and killings) but, given that there are reports here on Sajha and in the Nepali media that Prachanda is apparently the one calling the shots as to who becomes PM, do you think that this govt - CA or not, has the courage needed to force them to take certain actions?...that's the point I was trying to make.

If the terms are that they need to lay down their guns prior to CA and Prachanda and gang decide to cotinue with their terror campaign- do we as a nation want to witness more bloodshed or do we give in to what they want to ensure peace?...it's a difficult choice to make...my stating that they should come in to CA without laying down arms (with the hope that the killings stop) makes me a Maoist sympathiser?

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Mr. Joshi,

I fear I don't have the high level of knowledge and maturity that you display so the less said to you by way of conversation- the better.

"Tell me why did he first go to the jungle in the first place? Hitler never had the popular votes to become Chancellor of Germany, and the only reason he got the job was because the German leaders entered into a series of back-room deals. Does that sound familiar now in Nepal?"
True. But we can't disregard the support from majority of bigot germans in cleansing the earth from impure genes?

"In 2002, Saddam got elected with 100% of the eligible votes, but how?" Of sourse a one-man-race.However we should not forget that he is a Shia muslim? Iraqi people loved to have everyone in Iraq armed.

Back to our country; With all bafadar Army, King couldn't rule the country in his way. Majority rules is the general political principle. Unfortunate to us I can see Maoist ruling the country but not for long. What's the dream or objective they would afloat to bind the people in their support? Autocratic comunism? Nobody ( at least all the people I know) will fall for that.
In stead of turning them to terrorist gang for ever and keep losing our people in crossfire, it may not be a bad idea to let them give a shot and realize that their outdated ideology is disfunct. As long as majority is for liberal democracy, I don't worry about the transitional governments.
Maoist should change the color to be stable ruling force. If they do, I can accept Dr Baburam Bhattarai ) from CPN( Democratic Maoist) to rule the country as prime minister( president or whatever they will call

Laba's article originates with the pre occupied mind that nepal cant go ahead without monarchy (whatever form it is in). Everyone here seems to forget that monarchy does not mean only king, queen and their family. Monarchy has a very deep rooted oligarchs (their relatives, allys) and in Nepal that mass is huge. When people blame monarchy they are actually blaming that whole mass. By overthrowing monarchy, we will certainly eliminating that mass of oligarchs who have always been hindrance to this country's advancement.

About maoist, Nepal is a liberal country for sure (proof being repeated victory of nepali congress despite their worse governance), so I doubt if maoist can impose their obsolate policy on nepalese. Nagarik samaj getting stronger these days, nepal does have a chance of realy gains.
Laba's assertion of check and balance from monarchy is fundamentally wrong. May be gyanendre is somewhat capable, but what about parase ?? can anybody say parase will check and balance ?? thats nothing more than asking for the pro-monarchy oligarchs to continue... which i am proud to say is not at all accepteble to NEPALESE