The genesis of this controversy is the instability in the government, which we have been witnessing since a long time. Some of political and legal thinkers of the country have desired a type of government in which the executive once elected continues in office for the full term. In short, this desire is for the adoption of presidential form of government.
The classical debate ´for and against´ the parliamentary and presidential form of government is mainly based on the tenets of accountability vs stability. Parliamentarians and their supporters would not like a presidential system mainly because of the executive head’s lack of accountability, except to the electorate during the time of next polling, as against parliamentary form that gives many opportunities to question the government on various matters and enables the parliament to keep a check on the arbitrary and dictatorial functions of the executive. On the contrary, the people who argue for presidential form of government believe that such a system ensures stability.
PARLIAMENTARY FORM OF GOVERNMENT IN NEPAL
The constitution framed in 1959 introduced parliamentary form of government in Nepal for the first time. The general elections were held on February 18, 1959 to elect the first parliament. Promulgated by the then King Mahendra, this was the first constitution to guarantee by expression the representative form of government. To help him to frame the new constitution, King Mahendra invited Sir Ivor Jennings, the British expert on constitutional law, to come to Nepal as an external expert. Jennings, according to his schooling and background, prepared the draft constitution based on Westminster model of parliamentary system. This may be one of the major reasons why the parliamentary form of government was chosen in 1959. The constitution provided for a cabinet consisting of the prime minister and other ministers who together had the power generally to direct and control the government and was collectively responsible to the House of Representatives.
The need for a presidential form of government has been expressed during the drafting of the concept notes and provisions in the CA Committee for Determining the Form of Government. But the moot question is still unanswered: If people desire a presidential form of government, which among the many types of presidential government would suit our soil?
In 1960, late King Mahendra suspended the 1959 constitution dissolving the parliament and promulgated a new constitution based on non-party system in 1962. The mass movement for the restoration of democracy launched on February 8, 1990 and called off on April 9, 1990 resulted in the fifth constitution. The 1990 constitution reintroduced the parliamentary form of government once again on Nepali soil. The government under the 1990 constitution was a cabinet government created by parliament and responsible to it. The idea behind incorporating this system in the constitution was to have an accountable government. But the vision of the constitution was not fulfilled at all.
DEMAND FOR PRESIDENTIAL SYSTEM
The need for a presidential form of government has been expressed by some people and political parties during the drafting of the concept notes and provisions in the Constituent Assembly (CA) Committee for Determining the Form of Government. But the moot question is still unanswered: If people desire a presidential form of government, which among the many types of presidential government would suit our soil? Besides the US, there are other countries like France, Finland, Switzerland, Egypt and Latin American democracies like Argentina, Brazil, Chile, Costa Rica, Mexico, Uruguay and Venezuela where this system prevails. Near at home, we have Sri Lanka, Philippines and Indonesia that have presidential system. South Africa is the latest country to have adopted this system.
The preliminary draft prepared by the CA Committee for Determining the Form of Government is one of the most talked about as well as controversial issues. The draft includes three different provisions on the same subject matter as the committee was, at the time of voting, divided into three groups. They include the draft provision securing 18 votes, the draft provision securing 16 votes and the draft provision securing 3 votes. Among them, let me discuss the two here.
The 18 votes, which was mainly cast by the members from UCPN (Maoist), have proposed for a presidential form of government and envisages the president both as head of state and head of government. The 16 votes, which was mainly cast by the members from Nepali Congress, have proposed a reformed parliamentary form of government. This system envisages the president as the head of the state and the prime minister as the executive chief. Their justification for this type of form of government is to make the head of the state a symbol of nationality and unity of Nepal and Nepali people.
The demand of the modern constitution, whichever the form of government it incorporates, is to envisage a system that will be both stable or reasonably stable and accountable. It is because stability cannot be compromised for accountability and vice versa. It will be hard on the part of Nepali people to accept a change unless both these requirements are reasonably satisfied by the new system, no matter, whatsoever the name or tag is given to the form of government.
In India, at the framing of a new constitution, there was an intensive debate about the democratic executive. The framers concluded that a democratic executive must satisfy two conditions: It must be stable and responsible. Nepal is now in a similar stage and we need to press for both stable and responsible government. Stability and accountability are at the core of any democratic system of government. Maybe having a mixed form of government will ensure both.
Writer is a constitutional lawyer
bhimarjun@gmail.com
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