It seems that common people are once again trapped in the hands of new rulers of Democratic Republic of Nepal. Earlier they were the ‘subjects of the hereditary state’ and now they have been reduced to be helpless and hapless ‘voters of the federal democratic republic state’. Rulers are changing the forms but plight of the people goes unabated. Political instability is still looming large unless some drastic measures are taken up through amendment of the constitution of Nepal, 2015 to halt the race for grabbing political power through shady negotiations and deals to form a coalition government thereby neglecting the people’s welfare and disrespecting the political ethics. Let’s have a relook of some of the provisions of the present Constitution of Nepal which are in the eye of the storm due to uncertainty prevailing in the polity of Nepal.
Article 74 of the Constitution of Nepal, 2015 speaks about form of governance which is multi-party competitive federal democratic republican parliamentary system of the governance. Article 75 says further that the executive power of Nepal shall, in accordance with this Constitution and law, be vested in the Council of Ministers. How is this Council of Ministers (popularly known as the Government of Nepal) formed? Article 76 (1) of the Constitution of Nepal says that the President shall appoint the leader of the parliamentary party that commands a majority in the House of Representatives as the Prime Minister, and the Council of Ministers shall be constituted under his or her leadership. ‘Prime Minister as the leader of the Parliamentary party that commands a majority in the House of Representatives’ is the ‘summum bonum’ of the present parliamentary democracy of Nepal.
At the same time, it has also found itself at the center of controversy due to having a series of coalition government lasting barely little over a year with or without dissolution of the House of Representatives. It is to be noted here that the then President of Nepal Bidya Devi Bhandari had endorsed the KP Sharma Oli government’s recommendation for the dissolution of the House of Representatives on December 20, 2020 citing the basis of Article 76 (1) and (7) and Article 85 of the Constitution of Nepal. Article 76 (1) says that in cases where the Prime Minister fails to secure a vote of confidence even by forming coalition government or the Prime Minister cannot be appointed in either way, the President shall, on the recommendation of the Prime Minister, dissolve the HoR and appoint a date of election so that the election to another HoR is completed within six months. The legal experts of the country says that the 2015 Constitution does not allow the prime minister to dissolve the House as per Article 76 (7) because it applies only in such a situation where the prime minister cannot be appointed at all despite the best efforts made in this direction.
The provision for electing 110 MPs through the current method should be abolished. Instead, all seats in the House of Representatives should be contested through a direct FPTP electoral system.
Moreover, Article 85 of the Constitution makes it obligatory on the Prime Minister and the Council of Ministers to allow the ‘HoR’ to complete its full term of five years after it is constituted upon the mandate received from general elections. The prime minister of Nepal in the present scheme of the constitution does not have the prerogative authority to dissolve the House at all. The Supreme Court of Nepal on February 23, 2021 saved the valuable time and money of the country from the scourge of mid-term election by giving order to reinstate the lower House, i.e., HoR. Ambitious politicians often dissolve the elected House to obstruct others to claim the position of the Prime Minister and consequently form the government.
Another raging controversy that has brought political instability in Nepal leading to frequent change in the government at the federal level is the way in which ‘House of Representatives’ is constituted resulting in a ‘fractured mandate’ that falls short of majority number of the total number of seats for any single party. Article 84 (1) of the present Constitution of Nepal says that the House of Representatives shall consist of a total of two hundred and seventy five members. The majority number of the total seats comes at 138, obtaining which a political party or a group of political parties will form the government at the federal level. However, a single party has not been able to get the majority seats in the lower House after general elections leading to unethical alliance among the political parties to make or break the government any time at any cost. The reason behind getting fractured mandate from the people is the adoption of two systems of election to constitute the lower House—the First-Past-the-Post Electoral System and the Proportional Electoral System. Unlike the FPTP electoral system that fills the 165 seats of a total of 275 seats in the lower House, the PR electoral system does not knock out the contesting candidates and declare a winner (the highest votes taker) from a particular constituency.
As high as 110 seats of the lower House of the Federal Parliament are filled by the PR electoral system where voters cast votes for political parties, with the whole country being considered as a single election constituency. Thus, so many political parties in multi-party democracy get extremely high chance to grab a seat or two in this House creating a dangerous scenario for ‘horse trading’, power game, grabbing ministerial seats and exchange of money and favor to each other through politically unethical negotiations (or deals).
To quell the raging tide of political instability, the Constitution of Nepal demands immediate action. Article 84 (1-b), which outlines the composition of the lower House of the Federal Parliament, must be amended. The provision for electing 110 MPs through the current method should be abolished. Instead, all seats in the House of Representatives should be contested through a direct FPTP electoral system.
(Binod Kumar Pathak is an editor (of academic books), educator and academician.)
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