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Forms of government

Dr. Bipin Adhikari
The Kathmandu Post
28 January, 2010

Many opinions of Benjamin Franklin (1706-90), one of the enlightened American constitution builders, are credited as being foundational to the roots of American values and character. At the close of the Constitutional Convention of 1787, Franklin was asked by a lady as he was leaving Independence Hall on the final day of constitutional deliberation, "Well, doctor, what have we got — a republic or a monarchy?" His answer was brief, but full of meaning for all generations to come, "A republic, if you can keep it."

There are very few educated people in Nepal who are not aware by now of how and why the institution of the monarchy was terminated last year. But the right question for the Nepali partners of the change introducing process is whether they can keep Nepal a republic, or whether there is something different being planned following the abolition of the monarchy.

The Constituent Assembly (CA) Committee on Determination of the Form of Government has surprised everybody. Its report comes as a compilation of the official positions of the major parties rather than as a concurrence of all of them. The stand of the UCPN (Maoist) in favour of a "consensual presidential system and multi-member direct proportional election system" comes as the first among them. The Nepali Congress has voted for continuity to the parliamentary system with constitutional presidency and executive prime minister, and mixed-member proportional electoral system. Similarly, the CPN (UML) has opted for a presidential form of government elected by the legislature and mixed electoral system.

In the background of the Maoist position is an ardent desire to maintain the party politburo culture, and ventilate the power of the party through the executive president, keeping the legislature on the sidelines. The position of the Congress is aimed at making sure that the multiparty democratic system and pluralist polity remains operative even if it is not in power, or the communist forces continue to prevail in the state apparatus. The UML thinks it can solve the problems of instability by choosing a system which it has advocated. Except for the position taken by the Congress, the rest of the approaches have not been properly studied, and far or less look utopian.

There is a fourth opinion (counter-position) from CA member Pradeep Giri (Nepali Congress) who has ventilated the proposal of 25 NC legislators last year pleading for a directly elected prime minister and ceremonial president elected by provincial and federal legislatures. This proposal more or less is along the Israeli experiment in the 1990s, which they have already moved away from because of systemic contradictions that emerged in the implementation process.

The only good thing (good in the sense that it has been settled) about the committee report is the unanimity among all the committee members on the constitution and operation system of government services, grounds of good governance, constitution of provincial and local governments, and local electoral system. This unanimity in the approach also needs to be studied on the basis of whether these provisions accurately reflect the requirements of Nepal's grassroots people, who remain more or less confused about the changes being introduced.

Three important guests of the Nepal Constitution Foundation — former premier of Ontario Bob Rae, Australian professor Cheryl Saunders and Sri Lankan academic Dr. Rohan Edrisinha — who presented papers in Kathmandu recently on the ongoing controversies regarding the forms of government in Nepal, however, had very strong messages for the Nepali political elite who remains divided on the form of government.

Prof. Cheryl Saunders of Australia, for example, had the following comments on the ongoing controversies in Nepal in her own words:

"There is no perfect form of government; to a degree, each system relies for its effectiveness on the quality and integrity of those entrusted with public power and on the vigilance of civil society.

"Each of the three principal options has its strengths but also potential weaknesses from the standpoint of Nepal.

"The parliamentary system has the advantages of familiarity and the consequential disadvantages of having been proved by experience to be unsatisfactory in some respects in the circumstances of Nepal.

"One question for the CA is whether these flaws could be overcome, in the light of that experience, in the design of a new parliamentary system. In considering this question, it is necessary to take account of the very significant change effected in Nepal through abolition of the monarchy, enabling the CA to rethink the structure of the office of head of state and the powers vested in it in a republican Nepal.

"Both the presidential and semi-presidential systems have the attraction of offering a new start. On the other hand, their unfamiliarity in the distinctive circumstances of Nepal makes their operation less predictable in practice. A key question for the CA, drawing on its understanding of the political culture of Nepal, is the extent to which their potential disadvantages can be sufficiently neutralised through institutional design."

Similarly, Bob Rae pointed out, "Successful constitutional politics transcends partisanship, and looks ahead instead of attempting to redress old grievances. It is not afraid to draw on international experience, but refuses to follow slavishly any foreign model. My principal advice would be that of warning. Don't govern in the name of a theory. Make the changes that are 'sufficient unto the day' — it is a framework you are seeking, not a detailed blueprint for every detail of decision making. Constitutional politics is about making the foundation and the framework, setting out basic principles, the underlying values as well as the essential institutions. By contrast, real politics and events are about building the walls and ceilings, the furniture and, above all, the spirit that makes a home."

The comments of the Sri Lankan expert were also very straightforward. He did not hesitate to explain the vagaries of the presidential system in terms of his own country's real life experience over many decades.

On top of this, the report of the Committee on Determination of the Form of Government has come with little debate on executive authority, the position of the prime minister and his/her cabinet, their relationship with the legislature, and potential dismissal procedures.

As of now, the conclusion that could be made is only that the committee has cracked the nut, but only to find a worm in it. They have not grasped the significance of the huge task to which they should devote themselves.

Secretary of the committee Mukunda Sharma, however, has proved his smartness finally. He has thrown his problem — both the ball and the players — to the full house liberating himself from the never-ending game of the foul players. This is a republic with no clear idea about how to govern oneself.

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