It seems that we are gradually heading towards presidential system of governance, which we did not accept in principle while framing the constitution in 2015. However, with the implementation of the statute, it has started showing this trend. As a matter of fact, the seed of presidential system was planted in the very draft of the constitution. After the publication of the first draft, which proposed president to be the protector of the constitution, it was opposed by some civil society leaders. It provides for ‘the prime obligation of president is to observe and protect the constitution (Article 1.4).
Curiously, the same terminology was used in the Interim Constitution (Article 36 (a) (3). The notion was copied from the 1991 constitution’s Article 27.3, which provided for, “His Majesty is to observe and protect this constitution by…” By this provision, the monarchy was brought under the constitution humbly. Perhaps to keep the King in good humour or as per the wishes of the King, the royal duty of protecting and observing the constitution was enshrined in the constitution.
But the continuation of this provision for duty of president baffled political observers, as no such provision is found in any democratic constitution in the world. The prime duty of president is to observe the constitution and not to protect it. It is solemn duty of the sovereign citizens or the elected sovereign body to protect the constitution. There are instances when a president has become a dictator and has suspended and cancelled the constitution of the country. Intriguingly, the Constituent Assembly (CA-2) incorporated this provision in our republican constitution.
It cannot be doubted that the elected CA members and especially the top brass of the parties did not know that such provision does not find a place in any democratic constitution and it should not be there, as a whimsical president can jeopardise the entire parliamentary system on pretext of protecting it. However, this provision was incorporated in the constitution. The reason appears to be psychological. Perhaps our leaders were not sure of their ability to protect the constitution they framed themselves.
Hence they authorised the institution of presidency to do it. It can be argued that while putting this provision, they put themselves as the very claimant of this position, as they might have thought of occupying this post. And in reality, their dreams are coming true today.
This argument is further strengthened by another provision of the constitution. Interestingly, Chief Justice and all chiefs and members of constitutional bodies can suspended immediately after the motion of impeachment is registered in the House of Representatives (Article101.6), whereas the posts of president and vice-president do not come under its purview. Interestingly, Article 101 is equally applicable all. Deliberately, these two posts have been kept beyond suspension, as these seats are almost reserved for politicians.
It can be further argued that the idea of including the provision of protecting the constitution might have come to the minds of the elected representatives to suit their interests. Moreover, the post of president was made more covetous with dignity. Had this post been freed from its glamour, perhaps, it could not have been so competitive. The post treated as equivalent to a monarch. Our leaders did not change their mindset to depart from our royal make-up.
Interestingly, during the implementation of the constitution, it has been observed that the post of president is relatively more lasting to cover its five-year tenure and it has almost absolute power, which cannot be questioned as has been observed. In contrast, the post of Prime Minister is less stable as the term of PM ‘a post is liable to be negotiated and the term of five years can be shared by different leaders as per compromise. Moreover, the PM is found helpless, as his advice and recommendations are ignored.
Nepal has accepted mixed parallel electoral system which produces mostly a hung parliament. With no single party in majority in the House of Representatives, coalition government becomes obligatory. We have not yet developed the culture of keeping the government stable by putting aside our personal and party’s interests. So, our leaders negotiate the tenure of Prime Minister (PM) to be shared by the claimants.
The fragmented tenure of PM is encouraging the demand for executive presidency. Some parties are openly advocating for executive presidential system even though they know that when monarchy could not made the kingdom an inclusive state can presidency make it possible when marginalised communities are craving for their rightful share in the governance. It is a matter of debate to go for executive presidency or not and continue the present system.
However, the present chaos has a positive side too, as it suggests one important alternative regarding the electoral system to elect president and vice-president. It offers that the executive president can be elected by electoral college as well, as being practised currently without going for direct election to presidential post, which being observed in many countries. It can save a lot of money, if go for direct election under majoritarian First-Past-The-Post system for the posts of president and vice-president.
(Mishra is a former election commissioner.)