Ryan J. Suto's Blog

28 May 2011

What’s happening in Nepal?

To understand what’s happening in Nepal today regarding the interim constitution, it’s important to know how Nepal got there. So, I’ll use edited excerpts from a recent paper of mine (The State of the Media: Nepal’s 2008 Constituent Assembly Elections) to explain the background of the issue, and then discuss my recommendations for the future of Nepal’s political and legal structure.
Brief Political History of Nepal
Nepal is a nation of just over 29 million people who speak dozens of indigenous languages and represent many ethnic and caste groups. Positioned in the Himalayas between the emerging lands of India and China, Nepal is one of the poorest and least developed nations in the world, having a distinct and often untold history.
The Kingdom of Nepal has most often been a monarchy, with various failed encounters with electoral democracy. One such attempt was ended by King Mahendra in late 1960. The king felt party-based democracy was ineffective and inefficient, so he replaced it with a party-less legislature which proved to only entrench his power. This structure and system lasted for decades, representing only a notion of procedural democracy without any substantive democracy. In 1990 many Nepalese rejected the autocratic and unresponsive government, leading to a people’s movement.
As a result of that revolution, King Birendra and political leaders passed a new constitution, establishing a parliament which had effective powers and duties. In 1996, Maoist rebels organized as the Communist Party of Nepal (Maoist) (CPN (Maoist)) and began an insurgency of guerilla tactics against the government, seeking socialist reforms and procedural democracy. After a decade of violent unrest and strife between the Nepalese army and the Maoists, the king suspended parliament in 2006. King Gyanendra  enforced martial law and silenced the media, claiming the government was unable to handle the insurgency.
In reaction to this startling power grab by the king, the Maoists and seven major political parties agreed to a peace treaty, the Comprehensive Peace Agreement, to reinstate the parliament. This agreement stripped King Gyanendra of most of his power and allowed the Maoists to participate in government under a ceasefire monitored by the UN and various NGOs. In 2007 the new government wrote an interim constitution under which elections would occur in 2008 to elect the Constituent Assembly which would then pass a permanent constitution for Nepal. Moreover, the 2007 interim constitution addressed the Hindu caste system by stating, “No person shall be discriminated against as untouchable and subjected to racial discrimination in any form, on grounds of caste, race, community or occupation”. This is important because in Nepal, as a Hindu nation, universal egalitarianism is not necessarily an indigenous value.

2008 Elections
The 2007 interim constitution provided for the election of the Constituent Assembly, a unicameral body charged with ultimately producing a permanent constitution and also legislating for Nepal until elections could occur under that constitution. The interim constitution called for a mixed system, of which 240 members were elected by First Past the Post (FPTP) from geographic constituencies. In FPTP elections, voters chose individuals to represent their geographic area in the legislature. Alongside those members, another 335 member were elected under a closed-list proportional representation (PR) system using the entire country as one constituency. In PR elections, voters chose a party to represent their political views in the legislature.  Lastly, twenty six members were to be nominated by a Council of Ministers, who would be chosen by the president after the elections have occurred and the president has been elected by the elected Constituent Assembly members (2007 Interim Constitution of Nepal).
Thus, after the voters have chosen 575 representatives by the mixed electoral system, the newly elected Constituent Assembly members would convene to elect a president. The president would then select a Council of Ministers (the leader of which would be the prime minister), and that Council would then nominate another twenty six individuals who would join the Constituent Assembly, for a total of 601 members. The constitution further provides for universal adult suffrage and list quotas for women and minorities on the party PR lists.
The elections occurred on April 10, 2008. Nepal relied heavily on the international community for electoral assistance and observation, as groups such as the National Democratic Institute (NDI), the International Federation for Electoral Systems (IFES), the Carter Center, the International Institute for Democracy and Electoral Assistance (International IDEA), and the United Nations Mission in Nepal (UNMIN) were in Nepal at the time, and many remain. Overall, in the international community the results were largely viewed as successful: a peaceful election occurred with few instances of fraud or violence.
After the votes were counted, the Nepalese gave an electoral majority to the former insurgent CPN (Maoist) party. The Maoists earned 220 of the 601 seats, and the next closest party was NC which earned 110 seats followed by UML with 103 seats. After looking at the results of the election, one can see why CPN (Maoist), NC and UML collectively are called ‘the Big Three’ as their seat totals alone account for 72% of the Constituent Assembly. However, the sheer quantity of smaller parties makes Nepal a more robust multiparty system.
After the dust of the election settled, and under Maoist legislative power, Nepal’s interim constitution was altered on May 28, 2008, officially changing the government from a constitutional monarchy to a republican democracy. This finally removed all actual and ceremonial power from the long established monarchy. The new interim constitution was enacted for a period of two years, to be replaced by a permanent document in May 2010. However, in total 25 parties were seated in the Constituent Assembly, along with two independent members from the FPTP system. This astonishing number of parties seated in the Constituent Assembly led to nearly insurmountable political deadlock. As such, the Constituent Assembly has moved the deadline to for a permanent constitution to May 2011.

For months the national government failed to complete basic administrative tasks and did not provide the support the Nepalese people needed. Moreover, the deadline for the new constitution passed with no resulting document. Nepal’s government spent much of late 2010 and early 2011 trying to agree on a prime minister, resulting in a dozen votes within the Constituent Assembly which almost all ended fruitlessly. In fact, earlier this year the U.N. pulled its peacekeeping mission out of Nepal in frustration of the lack of political progress being made. While this ineffective government has dragged on, many have began protesting outside government buildings in the capital of Kathmandu, showing their own frustration.
Today we are upon that May 2011 deadline for the new constitution and the end of the term for the Constituent Assembly, and the body has nothing to give to the people. A new document requires a two-thirds vote, but another extension of the government’s mandate to function under the present interim constitution also requires that same majority. Thus, the possibility that Nepal’s government will legally dissolve today is quite high. The parties have all engaged in finger-pointing, and will try to agree on another extension of their jobs tonight.

Nepal’s Future
I of course hope the best for the people of Nepal. They must continue to put public pressure on the members of the Constituent Assembly to actually do their job if an extension is made. Since it clearly isn’t written yet, I recommend that the new constitution include a much more simple electoral system than that of 2008. While Nepal tried to insure to lower the level of burden on its people by including pictures for each party, the civic education needed to cast two informed votes in two different electoral systems for the same legislative body is unreasonable. While FPTP requires too much individual knowledge of differing candidates from election to election, PR allows for too many parties to populate the national legislature. Thus, I recommend that Nepal switch to an open-list PR system with a threshold clause of 5-10%, but with the retention of gender, ethnic, and geographic quotas as presently conceived. This would allow for voter discretion regarding individuals in the legislature, while allowing those with low civic education to simply vote for a party. As national institutions, parties are easier to recognize and understand all their positions than individual candidates. By maintaining the quotas currently in place, seats will be reserved for marginalized groups who may not otherwise obtain representation.
The threshold clause will artificially decrease the number of parties in the legislature, thereby making coalition building (and thus legislating) easier. I see this as the key. If my proposal is taken, the next Constituent Assembly would likely have considerably fewer parties, concentrating power and making laws easier to implement. However, it’s a long road to get to a new constitution in Nepal. Right now, the only real option is for the Constituent Assembly members to essentially give themselves their own jobs for another year. While many in Nepal rightly demand new elections, this is unlikely, as there is no incentive to do so.
In the end, the government of Nepal has a responsibility to help move the Nepalese people into the future, or at the very least feed and care for its people while preventing the country from falling into anarchy or a military dictatorship.

24 May 2011

Graduation Prayer at Bastrop High School

The story here is simple. Bastrop High School, a public school in Louisiana, originally included a prayer in the school’s graduation ceremony. After a complaint by student Damon Fowler, the school removed the prayer from the program. However, at the 20 May 2011 graduation ceremony, the valedictorian led those in attendance in a recitation of “the Lord’s Prayer”. (http://www.youtube.com/watch?v=DYLpZIv8xFY).
This situation brings forth an important Constitutional question: Does student-led prayer violate the Establishment Clause of the First Amendment to the Constitution?

First Amendment…
To best approach these questions, we first must read the operative Constitutional text, which states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”.  Good. Now fast-forward 171 years to the Supreme Court, which banned daily prayer in public schools in Engel v. Vitale (1962) and affirmed that ruling in Abington v. Schempp (1963). In Schempp, the daily prayer in question was actually the same prayer used at Bastrop High’s graduation; “the Lord’s Prayer”. Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203 (U.S. 1963). While there is a large difference between daily compulsory prayer and a singular prayer at graduation, I think it’s important to note the contextual similarity of the prayers in question. (The Lemon Test line of cases established in Lemon v. Kurtzman (1971) is of course noteworthy here. The Lemon Test states that a governmental action must meet three criteria in order to withstand Establishment Clause attack: a. Purpose – There must be a secular governmental purpose, b. Effect – Its effect must neither advance nor inhibit religion, c. Entanglement – There must not be an excessive government entanglement with religion.)
A more pertinent case was decided in 1992, Lee v. Weisman. In that case, the public school administration chose a rabbi to lead a prayer at an optional graduation ceremony (as most graduation ceremonies are optional). The Court held that this act was an unconstitutional establishment of religion. A school administrator, as an employee of the State, may not direct religious content at a public school graduation. The Court noted the following facts irrelevant: attendance was optional, the prayer was brief, the prayer was broad and ‘nonsectarian’, and the occasion was significant and as such many wished for the inclusion of religion. Lee v. Weisman, 505 U.S. 577 (U.S. 1992).
Since this ruling, many school districts have changed policies, but also changed tactics. There have recently been questions in the federal courts of student-led prayer at graduation ceremonies that have yet to reach the Supreme Court. Thus, the question has been left open by the Court: Is student lead prayer at public school graduations violative of the Constitution?

State Action…
I feel that such an act is indeed violative of the Constitution. To find out why, we  again need to cover a bit of Supreme Court history. 
In Marsh v. Alabama, the Court held that if a private entity provides a public function, a function traditionally reserved for the State, the entity can be considered a State actor, and thus be bound by the Constitution. Marsh v. Alabama, 326 U.S. 501 (U.S. 1946). The Court has advanced this ‘state action’ doctrine over the years, adding additional reasons a private entity could be bound by the Constitution as a State would. In 1961 the Court wrote,
…[N]o State may effectively abdicate its responsibilities by either ignoring them or by merely failing to discharge them whatever the motive may be. It is of no consolation to an individual denied the equal protection of the laws that it was done in good faith… By its inaction, the Authority, and through it the State, has not only made itself a party to the refusal of service, but has elected to place its power, property and prestige behind the admitted discrimination.
Burton v. Wilmington Parking Authority, 365 U.S. 715 (U.S. 1961). Later, the Court held that state action may be found when there is a “close nexus between the State and the challenged action”, such that the action “may be fairly treated as that of the State itself.” Jackson v. Metropolitan Edison Co., 419 U.S. 345 (U.S. 1974).
Most recently, the Court decided Brentwood Academy v. Tennessee Secondary School Athletic Association in 2002. In that case the Tennessee Secondary School Athletic Association was a not-for-profit corporation charged with regulating interscholastic competition in the state. Brentwood Academy, a private school, claimed that its First and Fourteenth Amendment rights were being infringed by the Association as it acts as a state entity. The Supreme Court agreed. The Court felt that there was a "pervasive entwinement" of state and private officials with state-sanctioned and recognized authority. Brentwood Acad. v. Tenn. Secondary Sch. Ath. Ass'n, 531 U.S. 288 (U.S. 2001).
            What does this all mean? That the Courts can hold non-State entities accountable as if they were indeed formal actors of the State. The Court has indicated that this determination is necessarily a fact-intensive one, but in general the entity must either occupy a role traditionally occupied by the state (Marsh), implicitly be given state authority by the State (Brentwood), etc.

And in the end…
            The Court has already held that State-led prayer at a voluntary public high school graduation violates the First Amendment. (Lee v. Weisman). While the student who led the prayer is not a state employee, she stood on stage, with the microphone, commanding the attention of those gathered. Instead of a school administrator making the decision for a prayer, such a decision was given to her, granting her the ‘power and prestige’ of the State. (Burton v. Wilmington PA). The same coercive infirmaries discussed and acknowledged in Lee v. Weisman exist here: no marginalized individual will feel differently if an administrator chose the prayer or a student chose the prayer. A student speaking at a graduation is a state actor. If the student was speaking merely as an individual, and not an actor of the state, who would pay attention? How many would attend the speech of a random 18-year-old recent high school graduate? The prayer itself occurred because the state had given it a forum, a captive audience, and implicit approval. The students are there to participate in their graduation ceremony from a public high school. No student need be ostracized at his/her own graduation on religious grounds. Not in America.
            If the Court were to hold that this individual wasn’t a state actor, such a holding would effectively erode Lee v. Weisman. School administrators would be able to get around the ‘impositional power’ avoided in that case by simply finding a student to do the prayer instead of a selected clergy member. The state will still be establishing religion. Those of any other religious persuasion would still suffer legally cognizable coercion.  
            As such, I condemn the actions taken this weekend at Bastrop, and similar ones wherever and whenever they may occur. I also commend the—apparently—lone student dissenter to this event, Damon Fowler, for standing up for the firm separation of church and state in America.