We are sitting at a point in time that James Buchanan has christened the “design” stage, and whose importance he has emphasized relentlessly.

By Avidit Acharya

While the present political discourse has produced a great deal of fanfare over the question of the fate of monarchy, it has failed to acknowledge the greater importance of taking advantage of the current prospects to correct several of the clear shortcomings of the present political institutions. Addressing these defects is a pressing matter, and the efforts of the recent popular movement would be in vain if the only real change from past institutions was in limiting the powers of the king. Some of the key issues that will need to be addressed are (i) how to ensure peace, stability and a balance of power in the long-run, (ii) how to develop institutions that align the interests of public officials with the public interest, (iii) what roles and powers the legislative, executive and judicial branches of government should have, (iv) which form of democracy to adopt, (v) whether to opt for a centralized system of public administration, or a decentralized one, and (vi) how to make the constitution flexible. While these six issues are by no means comprehensive, they are certainly important and must be addressed imminently.

(1) Long-term Considerations. That there exists an imbalance in de facto political power between the palace and the people is not the same problem as the fact that such power has been called into use by both groups. The desire to compensate (in the short-term) for the imbalanced distribution of this power has overshadowed the necessity of finding a long-term solution to the problem of balancing de jure power so that de facto power is never used.

Several countries, such as our own neighbor Pakistan, have somehow painfully fallen into the trap of recurring coups. These countries cycle back and forth between democracy and autocracy (or oligarchy), with short stints of democracy not lasting more than a decade or two. Among the few explanations of this phenomenon, one the most compelling is that democracy movements in these countries have ambitiously sought to overcorrect the imbalance in power between the political elite (in Nepal’s case, the Royals and the army) and the citizens. Not surprisingly, this has led to strong reactions by the elite, who have, through their de facto power, sought to recapture government each time that they were made to feel that too much had been taken away from them.

We must be aware of the possibility that we too can fall into such a trap. We must find ways to ensure that an abuse of authority by the commander in chief of the army (whoever that person may be) in staging what appears to be a political coup cannot occur in a constitutionally ambiguous way, as it did in 2002. But at the same time we must be aware of the ramifications of deliberately antagonizing the elite.

(2) Aligning Interests. It was the vote-of-no-confidence clause in the present constitution combined with a lack of self-control by the leaders to not abuse this clause that resulted in extremely high political instability (fourteen governments in fifteen years) and rampant corruption in the 1990’s. The indiscriminate use of this clause throughout the decade made the effective tenure of the prime minister so short and uncertain that the threat of government collapse became a rationalizable excuse for clientelism in the allocation of ministerial positions and portfolios. In such a scenario, we can expect each prime minister (or minister) be corrupt and seek to make as much money as possible in the little time that he is in power, particularly if he would not be rewarded for his self-control if he chose not to be corrupt. In light of this argument, one way to control corruption is to select political institutions that are associated with lower levels of political volatility. If we have the opportunity to choose new institutions, we must think carefully about the problem of corruption, and more generally about how to align the interests of elected officials with the interests of the people.

(3) The Roles of the Government Bodies. An important defect in the current setup is the ability of the prime minister to recommend the king to dissolve parliament without legal justification. Without doubt, the legislature is the body of government that functions most democratically and is closest to representing the public interest inasmuch as it is closest to behaving as a political microcosm of the entire population of the country. Its decisions are the most important, and in the case that they are super-majoritarian, no agency should be able to override them. The dissolving of a parliament is, therefore, the ultimate negation of democracy, even in the understanding that elections will be held in the future. If the constitution is to reflect the principles of democracy, it must ensure that the no political player or branch of government has such unlimited power over another.

In addition, the roles of the various branches of government should not overlap. If the legislature is already given the challenging task of issuing legislation, it should not be burdened (or honored) with the task of selecting an executive, or acting as a pool of candidates from which cabinet members are chosen. As we have already witnessed, parliamentarians can easily be distracted from their assigned task of policy-making if parties are constantly bickering over the allocation of ministerial portfolios. This can lead to a dirty politics that is not suited for reform and development, and does not function in the public interest.

A similar claim is that the executive office should be responsible only for overseeing the implementation of the policies issued by the legislature through the supervision of the ministries (or departments), and that the judiciary should be responsible only for pointing out when a clause in the constitution has been breached. Unless the judiciary deems that unconstitutional acts have been committed, there is no reason why the legislature should have the power to oust the executive (through votes of no confidence, etc.) or the executive should have the ability to dissolve the legislature (by recommending the king to do so).

(4) Political Institutions. Does an indirect democracy necessarily suit Nepal better than a direct democracy? It is not obvious that the selection of the head of government by a parliament is always the ideal mechanism for implementing the citizens’ preferred policies. Even if monarchy is kept (with a ceremonial king), it will not be necessary to continue with the institution of parliamentary indirect democracy. With some originality, a system of government that resembles presidential democracy can be instituted even in the presence of monarchy. For example, it is possible to make the prime minister directly accountable to the people by establishing a system where the prime minister is directly elected through a nation-wide popular vote. (This was the case in Israel for many years.)

But why a direct democracy? Many political scientists have argued that presidential democracy with a limit on the number of terms that a president can serve in office is preferable to parliamentary systems that suffer from mis-governance and volatility. The cap on tenures ensures that power does not remain with any one individual for too long, and detachment of the executive branch of government from the legislature corrects for the ‘over-accountability’ in parliamentary democracies between the executive office and the lower and upper houses. In many presidential democracies such as the U.S. (which is known to have the best political institutions in the world), cabinet members are often nominated from civil society, which not only allows for experts in the particular departments to be appointed instead of career politicians with limited knowledge or very little specialized departmental experience, but also makes sure that disgruntled parliamentarians who were not offered ministerial portfolios do not have great incentives to seek to topple the government. Of course, non-parliamentary direct democracy may not solve the broad problem of clientelism and may simply redistribute the benefits of power to the civil society cronies of the public executive. However, countries that have successfully implemented this system have shown that it has many advantages.

(5) Centralization versus Decentralization. It is unequivocally necessary to address the multitude of problems associated with the concentration of power and economic activity in Kathmandu. Given the institutional setup that was adopted in 1990, it is not surprising that a revolution as powerful as that of the Maoists was able to almost clandestinely emerge outside the capital as a dominant force capable of undermining domestic security. In fact, the concentration of political and economic activity in Kathmandu was one the primary reasons why all it took was a few weeks of protests and a handful of deaths in the Valley in April—in comparison to the murders and atrocities that were being committed in the rural parts by both the Maoists and the army over the last several years—to spur such rapid political concessions by the ruling polity. In dealing with the question of centralization versus decentralization, it may be helpful to consider a federalist system of government like that in the United States or perhaps even a confederate system like that in Switzerland, as opposed to the unitary system, which we chose in 1990.

(6) Legal Flexibility. One of the most important characteristics of a good constitution is flexibility through provisions for amendment. In the post-1990 era until now, there was a strong sense that the rules of the game were set in stone. This was mainly because that constitution was rigid and the process of its amendment was ill-understood by the legislators, if not imprecisely stated. Yet, if a constitution is to adjust to the needs of politics and to continuously improve itself, government must have some ability to amend it. Any good constitution will include clear and precise clauses within its body – clauses that detail the process of amendment.

Few scholars would disagree that the constitution that was drafted sixteen years ago was a result of a serious lack of originality and consideration of what was then a suitable transition from the previous social and political institutions. In several respects it was a failed attempt to copy the Brits, whose history and politics (to state the obvious) is very different from ours. The failure of several Latin American countries to emulate American institutions by borrowing the American Constitution, which many have adopted almost verbatim, should warn us of being unsympathetic to our own historical and political context.

Finally, there has also been talk of constitutionally divesting control over the army away from the elite and giving greater authority over military decisions to the citizens. At this point, it is not clear how that is going to happen, and it is here that the more fundamental question of the practical legitimacy of any constitution becomes apparent. In the face of a gun, a constitution is simply a collection of words—rules, perhaps even a pleas—not to shoot. But what authority can these words have over the holder of a gun? If the military decides that it is unsatisfied with what is drafted by the constituent assembly, it will surely not remain quiet. It will not remain quiet even if the monarch is satisfied and certainly not if he unconditionally transfers power to the citizens. Therefore, we must not go into writing this next constitution too heavily biased by our pre-committed ideologies. We must be practical and willing to compromise.

We are sitting at a point in time that James Buchanan has christened the “design” stage, and whose importance he has emphasized relentlessly. Our circumstances have, to a large degree, burdened us with the responsibility of designing the rules of the game that the political actors of the future will play. Needless to say, this is an enormous responsibility, and in light of that fact, the question of what we do with the monarchy may not be as important as it appears. There are other questions that we must also address, and we cannot let our short term interests overshadow their importance.

(The author has a BA in economics and mathematics from Yale University and is affiliated with the Center for Democracy and Development, Kathmandu, Nepal and can be reached at [email protected])

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