Abstract
Nepal is at a crossroads of historical transition. The transition is all encompassing, ranging from political to economic and social to cultural issues. In form alone, all these issues appear like political agendas, but in essence they are much wider and deeper. The agenda of restructuring the state from a unitary to a federal structure and from an exclusionary to an inclusionary state has occupied the central stage of the political spectrum in the post-2006 Nepalese polity.
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Notes
- 1.
See Buddha (2008). The Dhammapada. (trans: from Pali by F. Max Muller). Gutenberg EBook. Verses 256, 257, & 259.
- 2.
Article 157 (1) of the Interim Constitution of Nepal, 2007, reads, “Except as otherwise provided elsewhere in the Constitution, if the Constituent Assembly decides, by its two-thirds majority of the total number of members present therein, that it is necessary to make a decision on any matters of national importance, then decision may be reached on such matters through referendum.”
- 3.
See Novak, Michael (1991). The Spirit of Democratic Capitalism. Madison Books, p. 11. Novak writes that democracy rests on the supposition that public enforcement of virtue is neither desirable nor possible.
- 4.
See ekantipur (2013, November 4). Fate of President, Veep in the Hands of Parties.http://www.ekantipur.com/2013/11/04/top-story/fate-of-prez-veep-in-the-hands-of-parties-jha/380345.html. Accessed 5 November 2013.
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Id.
- 6.
See National Human Rights Commission of Nepal (August 7, 2013). Press Note. http://www.nhrcnepal.org/nhrc_new/doc/newsletter/PR-Krishna%20Prasad%20Adhikari%20Investigation-Eng-07-Aug-2013.pdf. Accessed 20 August 2013.
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- 9.
The fourth amendment of the Interim Constitution , 2007, by the first CA Meeting of May 28, 2008, amended the Interim Constitution, 2007, incorporating the idea of a federal republic country. For example, the Preamble of the Interim Constitution reads, “Declaring Nepal as a federal, democratic republican state upon duly abolishing the monarchy.” Similarly, Article 4(1) provides that “Nepal is an independent, indivisible, sovereign, secular, inclusive and federal, democratic republican state.”
- 10.
In their election manifesto for the second CA election in November 2013, almost all political parties have adopted the idea of a federal state. The Nepali Congress has adopted a nonethnic 6-province structure, the CPN (UML ) has adopted a mixed federalism, and the UCPN (Maoist) has adopted an ethnic federal model.
- 11.
See Follesdal, Andreas (2011). Federalism , Ethnicity and Human Rights in Nepal. Or: Althusius meets Acharya. International Journal on Minority and Group Rights, 18, 335–342, p. 336.
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Id., p. 335.
- 13.
See Shaha , Rishikesh (1993). Politics in Nepal. New Delhi: Manohar, p. 18.
- 14.
See Follesdal, supra note, p. 338. Acknowledging the problem of territorial federalism, he argues that “Since there will be minorities within any area of Nepal, these will continue to risk domination from the ‘Local Center’ where decisions will reflect the interests of the local majority … that would infringe on rights of indigenous groups, and give some groups monopoly of power.”
- 15.
See Jones, Peris & Langford, Malcolm (2011). Between Demos and Ethnos: The Nepal Constitution and Indigenous Right. International Journal on Minority and Group Rights, 18, 369–386.
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See Brown, Mark Malloch (2004). Foreword. Human Development Report 2004: Cultural Liberty in Today’s Diverse World. UNDP .
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Id.
- 18.
See UNDP (2013) . Human Development Report 2013: The Rise of the South, p. 26.
- 19.
See Ghai, Yash Pal (2010). A Commentary on the Place of Minorities and indigenous Communities in Nepal. In Bipin Adhikari (Ed.), Nepal: Design Options for the New Constitution. Kathmandu: Nepal Constitutional Foundation, p. 233.
- 20.
See supra note. Brown.
- 21.
See generally Galston, William (1991). Liberal Purposes: Goods, Virtues, and Diversity in the Liberal State. Cambridge University Press.
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See generally Rice, Tom W. & Feldman, Jan L. (1999). Civic Culture & Democracy from Europe to America. The Journal of Politics, 59, 1143–1172; Walzer, Michael (1980). Civility and Civic Virtue in Contemporary America. In Michael Walzer (Ed.), Radical Principles. Basic Books.
- 23.
See Tagore, Rabindranath (1918). Nationalism. London: McMillan Co. Kindle Location 429.
- 24.
See Mishra, Chaitanya (2012). Ethnic Upsurge in Nepal: Implications for Federalization . In Chaitanya Mishra & Om Gurung (Ed.), Ethnicity and Federalism in Nepal. Kathmandu: Central Department of Sociology/Anthropology, p. 62.
- 25.
Supra note. Subedi, Constitutional Accommodation, p. 147.
- 26.
See CBS (2012). Nepal in Figures 2012. Kathmandu: CBS. According to the CBS data, the literacy rate of Nepal in 1991 was 25.0 % that increased to 54.1 % in 2001, and has further increased to 65.9 % in 2011.
- 27.
See The Election Commission of Nepal (October, 2013). List of Political Parties. http://www.election.gov.np/EN/voterinfo/list.php. Accessed 5 November 2013.
- 28.
See eKantipur (2013, September 7). http://www.ekantipur.com/np/2070/5/22/full-story/375375.html & http://www.ekantipur.com/np/2070/5/22/full-story/375367.html. Accessed 5 November 2013.
- 29.
See Hobhouse, L. T. (2009/1911). Liberalism. Gutenberg EBook, Ch. 1.
- 30.
Id.
- 31.
Id.
- 32.
See Mises, Ludwig von (1991). Two Essays. The Ludwig von Mises Institute, pp. 18–24.
- 33.
See Rawls , John (2001a). Justice as Fairness : A Restatement. The Belknap Press, p. 5. John Rawls describes society as a fair system of cooperation. He observes, “The most fundamental idea in this conception of justice is the idea of society as a fair system of social cooperation over time from one generation to the next. We use this idea as the central organizing idea in trying to develop a political conception of justice for a democratic regime. This central idea is worked out in conjunction with two companion fundamental ideas. These are: the idea of citizens as free and equal persons; and the idea of a well-ordered society, that is, a society effectively regulated by a public conception of justice.”
- 34.
See Dixon, Paul (2011). Is Consociational Theory the Answer to Global Conflict? From the Netherlands to Northern Ireland and Iraq. Political Studies Review. 9, 309–322. The author argues that consociationalism has become increasingly vague, ambiguous, and even contradictory as the theory has been stretched in an attempt to claim relevance to both the Northern Ireland and Iraq conflicts. Although this has eroded the coherence of the consociational theory, this is more than compensated for by the flexibility this gives consociationalists in marketing their concept as all things to all people.
- 35.
See Lijphart , Arend (1969). Consociational Democracy . World Politics. 21, 207–225; see also Andeweg, Rudy B. (2000). Consociational Democracy. Annual Review of Political Science, 3, 509–536.
- 36.
See Norris, Pippa (2008). Driving Democracy: Do Power -Sharing Institutions Work? Cambridge University Press, Kindle Edition. Kindle Location 98. The four formal institutional features of power sharing are (1) the basic type of electoral system, (2) the horizontal concentration of powers in the executive, (3) the vertical concentration of power in unitary or federal states, and (4) the structure and independence of mass media.
- 37.
See Callan, Eamonn (1997). Creating Citizens: Political Education and Liberal Democracy . Oxford University Press, p. 2.
- 38.
See Zakaria , Fareed (2007). The Future of Freedom: Illiberal Democracy at Home and Abroad. W. Norton & Co. Kindle Location 129.
- 39.
On November 27, 2002, the Guardian wrote about Rawls , “A leading political philosopher in the tradition of Locke, Rousseau and Kant , he put individual rights ahead of the common good … Rawls never wrote about himself, and virtually never gave interviews … With the death of John Rawls , … the English-speaking world lost its leading political philosopher. An exceptionally modest and retiring man, with a bat-like horror of the limelight, he consistently refused the honors he was offered, and declined to pursue the career as public commentator or media guru opened to him by his achievements.” See Rogers, Ben (2002, November 7). John Rawls. The Guardian http://www.guardian.co.uk/news/2002/nov/27/guardianobituaries.obituaries. Accessed 21 August 2013.
- 40.
See Rawls , John (1985). Justice as Fairness : Political Not Metaphysical. Philosophy & Public Affairs, 14, 223–251, p. 223. Rawls observes, “Briefly, the idea is that in a constitutional democracy the public conception of justice should be, so far as possible, independent of controversial philosophical and religious doctrines.”
- 41.
See Rawls , John (1971). A Theory of Justice. The Belknap Press.
- 42.
See Rawls , John (1980). Kantian Constructivism in Moral Theory. Journal of Philosophy, 77, 515–572, pp. 516–517. Rawls mentions that “The leading idea is to establish a suitable connection between a particular conception of the person and first principles of justice, by means of a procedure of construction. In a Kantian view the conception of the person, the procedure, and the first principles must be related in a certain manner-which, of course, admits of a number of variations. Justice as fairness is not, plainly Kant ’s view, strictly speaking; it departs from his text at many points. But the adjective ‘Kantian’ expresses analogy and not identity; it means roughly that a doctrine sufficiently resembles Kant’s in enough fundamental respects so that it is far closer to his view than to the other traditional moral conceptions that are appropriate for sue as benchmarks of comparison.”
- 43.
See Rawls , A Theory of Justice, supra note. In later days, Rawls made a number of changes or shifts of emphasis, especially on the idea of “primary goods” articulated in the Theory of Justice. Id., Rawls, Kantian Constructivism, pp. 515–572.
- 44.
Id., A Theory of Justice, p. 60.
- 45.
Id., p. 266 (2nd edition, 1999).
- 46.
See Rawls , A Restatement, supra note, pp. 42–43.
- 47.
Id., p. 43.
- 48.
Id., p. 285.
- 49.
Id., p. 284.
- 50.
Id., p. 285.
- 51.
Id.
- 52.
Id.
- 53.
Id., Rawls further acknowledges that “How the burden of capital accumulation and of raising the standard of civilization and culture is to be shared between generations seems to admit of no definite answer. It does not follow, however, that certain bounds, which impose significant ethical constraints cannot be formulated. As I have said, a moral theory characterizes a point of view from which policies are to be assessed; and it may often be clear that a suggested answer is mistaken even if an alternative doctrine is not ready at hand. Thus it seems evident, for example, that the classical principle of utility leads in the wrong direction for questions of justice between generations.”
- 54.
Id., p. 287.
- 55.
Id., p. 289.
- 56.
See Rawls , John (1999b). Distributive Justice. In Samuel Freeman (Ed.), John Rawls Collected Papers. Harvard University Press, p. 138.
- 57.
Supra note. A Theory of Justice, p 83. Rawls maintain that “I should now like to comment upon the second part of the second principle, henceforth to be understood as the liberal principle of fair equality of opportunity. It must not then be confused with the notion of careers open to talents; nor must one forget that since it is tied in with the difference principle its consequences are quite distinct from the liberal interpretation of the two principles taken together. In particular, I shall try to show further that this principle is not subject to the objection that it leads to a meritocratic society.”
- 58.
See Sandel, Michael J. (2010). Justice: What is the Right Thing to Do? New York: Farrar Stras and Giroux, Kindle Edition. Kindle Location 247.
- 59.
Id., Kindle Location 248.
- 60.
The idea of basic human relationships occupies a broad range of descriptions: the relationships between each other at individual level, familial relationships, social relationships, organizational relationships, occupational relationships, proprietary relationships, political relationships, religious relationships, cultural relationships, and so on. The relationships between a state and its people also cover a wide area of interactions between an individual and the government; a local community including an ethnic community and the government; the state organs and socio-politico, cultural, and religious organizations; and a state and the market, among others. The idea of maintaining international relationships is also an all-encompassing concept. It covers bilateral, regional, and multilateral relationships among states and people and between states and international organizations.
- 61.
For detail discussion on normativity, see generally Turner, Stephen P. (2010). Explaining the Normative. Polity; see also Wedgwood, Ralph (2007). The Nature of Normativity. Clarendon Press; Bernardo, Guiliano (1988). Normative Structures of the Social World. Editions Rodopi.
- 62.
For a detail discussion, see generally Kelsen , Hans (2009). Pure Theory of Law. (trans: Max Knight). The Lawbook Exchange Ltd., 2nd revised ed. Kelsen explains that pure theory of law describes the law and attempts to eliminate from the object of this description everything that is not strictly law. The aim of pure theory is to free the science of law from alien elements, which is the methodological basis of the theory. In short, the pure theory of law is a theory of positive law .
- 63.
Cited in Hayek , F. A. (2011/1960). The Constitution of Liberty. The University of Chicago Press, Kindle Edition. Ch. 11 Kindle location 6016.
- 64.
Id., Kindle location 6043.
- 65.
Id., Kindle location 5950.
- 66.
Id., Kindle location 5992.
- 67.
See generally Mahat, Ram Sharan (2005). In Defense of Democracy: Dynamics and Fault Lines of Nepal’s Political Economy. New Delhi: Adroit Publishers.
- 68.
See Baral, Lok Raj (2012). Nepal—Nation-State in the Wilderness: Managing State, Democracy, and Geopolitics. New Delhi: Sage Publication, p. 163.
- 69.
See Ghani, Ashraf (2009). Introduction. Unleashing Nepal: Past, Present, and Future of the Economy. New Delhi: Penguin Books, p. xvi.
- 70.
See Sen , Amartya (1999). Development as Freedom. New York: Anchor Books, Kindle Edition.
- 71.
See Sen , Amartya (2009). The Idea of Justice. The Belknap Press, Kindle Edition. Kindle Location 21.
- 72.
See Giri, Pradeed (Ed.), (2009). Political Documents of Mr. Bishweshwar Prasad Koirala. Kathmandu: Student Book Store, p. 55.
- 73.
The constitutional optimality, constitutional efficiency, and constitutional equilibrium are further molded into a specific shape through specific laws: statutes, precedent, rules, regulations, and contract. Therefore, in specific terms, the idea of constitutional optimality, efficiency, and equilibrium can be stated as legal optimality, efficiency, and equilibrium.
- 74.
See Kelsen , Hans (2009/1945). General Theory of Law and State. (trans: Anders Wedberg), The Law Book Exchange Ltd., p. 115. Kelsen writes that “… The validity of this first constitution is the last presupposition, the final postulate, upon which the validity of all the norms of our legal order depends ….”
- 75.
See generally Zolo, Danilo (1998). Hans Kelsen : International Peace through International Law. European Journal of International Law, 9, 306–324.
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Bhandari, S. (2014). Prospects of Liberal Democracy and Development. In: Self-Determination & Constitution Making in Nepal. Springer, Singapore. https://doi.org/10.1007/978-981-287-005-6_7
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