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Limits of formalism
JUN 10 -
Some major institutions proposed in the constitution will not perform as envisioned, and others may work in an opposite way than predicted because formal institutions are influenced by informal institutions and political actors to produce varied ways. When constitutional designers do not take into account constraints and opportunities made available by the broader environment in which formal institutions operate, they may become ineffective or operate in unexpected ways. Such institutional failure was labelled formalism because the sole focus on formal institutions led to their ineffectiveness. The proposals, advices, discussions and debates on various constitutional provisions indicate that such formalistic failure may occur in Nepal. People have a tendency to blame political leaders when things fail, but sometimes the fault may lie with the ill design of institutions. If a kitchen does not have a chimney, then it is not the fault of the cook if smoke fills the kitchen.
Lay persons may not understand the complexities of how institutions interact with various other factors to produce varied outcomes, but the problem in Nepal has been that even donor-funded constitutional experts appear to be prescribing institutions without adequate knowledge about the existing informal institutions and the aspirations of different groups of people and their political culture. Complete knowledge in social science is not possible, and that is why it makes the field tougher than hard sciences, according to Einstein; but knowledge of specific local contexts, aspirations of the people, and how different institutions have operated elsewhere can help in navigating the complexities.
Some constitutional lawyers have provided useful service by sharing experiences from other countries; but as consultants who lack deep knowledge of local contexts and the aspirations of the people outside of the Kathmandu chattering class, their knowledge of other countries has often led to formalistic recommendations. Some other lawyers have often demonstrated naivety with their belief that provision of formal rights in the constitution will translate into actual rights in the lives of the people. If informal institutions constrain the formal institutions, or if political actors ignore or neglect the formal institutions, even the best provisions in the constitution may not yield rights. Understanding how formal institutions interact with informal institutions and political actors (leaders, cadres, civil society and the common people) and how such interactions may constrain or create incentives for political behaviour is necessary for designing effective institutions. Otherwise, insertion of well intended formal provisions in the constitution may look good in appearance, but may not function. Appropriate structures, on the other hand, will provide political actors incentives to abide by and follow the institutions.
The limit of formal rights can be demonstrated by women’s voting behaviour. In the local elections during the 1990s, only 19 percent of the women voted. Women were not denied the right to vote, but local norms and practices and other factors constrained them. Unless incentives for political leaders and bureaucrats are built in that facilitate formulation of gender specific initiatives or women activists who have an interest in such matters are given a role in policymaking, women may continue to be constrained despite formal universal rights. Similarly, despite untouchability being declared illegal by the 1990 Constitution, it is still rampant. The post-1990 polity was very slow in making adequate laws to address the problem because it was not a priority of the “high” caste dominated government. If Dalit activists had been given a role, the process would have been speeded up.
The debate on presidential versus parliamentary system also demonstrates lack of understanding of how the system operates in the real world. Some Nepalis have been attracted to the presidential system because in principle it divides power. However, it has not worked in societies with a power centralising culture. Juan Linz, Fred Riggs and others have pointed out that except for the US, the presidential system has encountered crises in every country it has been adopted. Going against the principle of power division, the presidents in those countries undermined the legislature and judiciary and concentrated power in the presidency. Ironically, that often became possible because people yearned for a strong leader and supported the president’s power concentration moves. Others, tired of frequent governmental changes in the 1990s, prefer the presidential system due to its fixed tenure. However, the presidential system has often faced non-systemic street disruptions due to it. When presidents engage in power abuse facilitated by concentrated power, and when the opposition cannot change the government through a regular mechanism, they have engaged in non-constitutional means to get rid of governments.
Similar formalistic attitudes can be found in the debate about federalism. Some have proposed a model with five or six regions, but such a model will continue the domination of the caste hill Hindu elite (CHHE) because they will be the largest group in all the regions as well as the centre. On the other hand, groups like the Newar are demanding guaranteed election of their groups from their traditional homeland. What they forget to analyse is that if such a constitutional guarantee is provided, the rest of the groups might gang up against them. The chief minister might be a Newar, but the regional legislation dominated by other groups, including other indigenous groups, may oppose legislative initiatives of the government. At a more extreme level, the rest of the groups, who will be a majority in the region, may unify to oppose the Newar in regional politics. Instead of such a guarantee, a better way to ensure rights of the Newars is to create a region where they will be the largest group. In such a region they will still become chief ministers, they may not face a united opposition, and Newars will have the largest influence on policies to promote group interests. Likewise, the demands of Limbus for Limbuwan composing nine districts east of the Arun River and one Madhes by the Madhesis, if granted, will make it more difficult for the groups to win elections.
Some Dalits have bemoaned that federalism may not address their problems. What they forget is that a federal model that weakens the dominance of the CHHE would also weaken the basis of the caste system and untouchability. If the CHHE continues to dominate the regions in addition to the centre, their worldviews, values and culture that is the basis of untouchability will continue to influence public policies. Hence, models that weaken CHHE domination will indirectly benefit the Dalits. The Dalit interest can be further served by non-territorial federalism, which will not only give Dalits the right to decide on Dalit issues, it will also facilitate their mobilisation that will increase pressure for societal reforms, which have mostly come after the discriminated groups have mobilised.
This discussion has made it clear that during the design of formal institutions, how they may interact with other factors in a broad environment to produce varied outcomes should be taken into account. Otherwise, the constitution may have “good” looking articles that are ineffective in practice or produce undesirable outcomes.
(Professor Lawoti’s co-edited volume, The Maoist Insurgency in Nepal: Revolution in the twenty-first century, Routledge, 2009, has been recently reissued in Nepal)
Posted on: 2010-06-11 09:34
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