Jivesh Jha
 
Of late, the general discussion in South Asia pertains to three elements. First, the leaders’ promises to enforce the ambitious plans, which they unveiled during election campaigns to woo the electorates, within a stipulated period, followed by their prompt declaration of a new deadline upon failing to meet the earlier one.
 
Second, the electorates express a hope that their political animals would succeed each time they publicize a new deadline. Third, anger, frustration, and indifference of people grow day by day as the leaders continue to pay mere lip services and not perform.
 
Still, “Why do people keep electing idiots or incompetent leaders?” Are they (electorates) insane or politically immature? So, what’s the difference between sane and insane?
 
In this context, section 12 of Indian Contract Act, 1872 bears relevance. It defines the expression—sound mind—like this, “A person is said to be of sound mind for the purpose of making a contract if, at the time when he makes it, he is capable of understanding it and of forming a rational judgment as to its effect upon his interest.” It may be noted that an electorate reaches a contract with a leader (by casting vote) that he will stand by the promises he made during the election campaigns.
 
 
A prudent person may explain insanity as, “Doing the same thing over and over again and expecting a different result.” Well, by this explanation, the people of the South Asian region are insane, since they are re-electing the same faces over and over again in a hope that this time result will be different.
 
At this backdrop, Sher Bahadur Deuba elected as Nepal’s Prime Minister for the fourth time in June. He served as the prime minister from 1995 to 1997, from 2001 to 2002, and from 2004 to 2005. He was sacked by the then King Gyanendra Shah in 2005 over failure to hold the election and bring the rebellion Maoists on a round table talk. Ask someone “Are the people bound to tolerate incompetent leaders, like Mr. Deuba?”
 
Ironically, one may respond, “We are bound to see the same faces taking an oath of Prime Minister time and again.” So, are we in want of a law that could put a ceiling on the number of terms a person is entitled to hold the office?
 
In this context, Bhutan emerged as a pioneer state in South Asia to envisage that the same person cannot be elected as Prime Minister for more than twice. “No person shall hold office as Prime Minister for more than two terms,” provisions Article 17 (2) of the Constitution.
 
Meanwhile, the respective article prescribes that the leader or nominee of the party winning majority of seats in National Assembly (that is Lower House) would be appointed as the Prime Minister by the King.  Also, the ministers are appointed by the King from among the members of National Assembly on the recommendation of Prime Minister. Interestingly, the similar function is carried by President in South Asian states of Bangladesh, India, Nepal, and Pakistan.
 
Of eight member states of South Asian Association for Regional Cooperation (SAARC), the Constitutions of Bangladesh, Bhutan, India, Nepal, and Pakistan confer executive authority of the state in Cabinet, with the Prime Minister at its head.  
 
Like the British monarch, there is a president (in Bangladesh, India, Nepal, and Pakistan), a nominal head of state, indirectly elected, in whose name the executive power is exercised. The President appoints the Ministers on the recommendation of Prime Minister.
 
However, the Constitutions of South Asian states unanimously provision that cabinet would be collectively responsible to the Parliament. This is called ministerial responsibility. The Constitutions of Bangladesh, Bhutan, India Nepal, and Pakistan follow this model. 
 
The Constitutions of India, Nepal, and Pakistan prescribe for a federal polity where power is distributed between the federal and provincial governments.
 
In some other constitutions, a chief executive, named as President, is directly elected for a fixed term on the same basis of one vote, one person. Like the United States, the South Asian states of Sri Lanka, Afghanistan and Maldives have adopted a presidential system of governance. The fundamental documents of these South Asian states mandate that the President would hold the master key of executive power—like the United States.
 
On the contrary, Article 91 of the Constitution of Pakistan envisages that there ‘shall’ be a Cabinet of Ministers, with the Prime Minister at its head, to aid and advise the President in the exercise of his functions. Interestingly, the charters of Bangladesh, India, Pakistan, and Nepal mirror the same law as of Pakistan. And, the indirectly elected Prime Minister performs the executive function.
 
To a surprise, the President of Sri Lanka appoints Prime Minister from amongst the Member of Parliaments, “who, in the President’s opinion, is most likely to command the confidence of Parliament” [article 42 (4)] Also, the ministers are appointed by the President but on the recommendation of the Prime Minister.
 
Unlike the parliamentary system where the PM is first among equals, the presidential system centralizes power in one hand. And, the notion is beautifully reflected in Sri Lankan Constitution which prescribes that the President ‘shall’ also be the head of the Council of Ministers. However, it’s been provisioned that the Council of Ministers would have the maximum strength of 30 members (article 46).
 
Even though Maldives roots for a presidential system like Sri Lanka, they vary in terms of formation of Cabinet of Ministers. The respective articles provision that the members of the Council of Ministers would be appointed by the President but “the President must receive the approval of the People’s Majlis (Lower House) for all appointments to the Cabinet.”
 
The oath of office is administered by the Chief Justice to ministers in Maldives. But, the ministers assume office upon taking and subscribing the oath before the President in other South Asian states.
 
Moreover, the ministers (in Maldives) may resign from his office by tendering a written resignation to the President.   
 
Shockingly, one must be a Sunni Muslim to be appointed as Minister, President, Vice President or judge of a court. Unlike Sri Lanka, the Vice President is an essential component of Cabinet in Maldives. The charter is silent about the maximum strength of Cabinet.
 
Similarly, Article 56(2) of the Bangladeshi Constitution provisions that while appointing ministers “not less than nine-tenths of their number shall be appointed from among members of Parliament and not more than one-tenth of their number may be chosen from among persons qualified for election as members of Parliament.”
 
Interestingly, the Constitutions of India, Bhutan, Nepal, Bangladesh and Pakistan adopt similar provision regarding the formation of Cabinet. In this context, Article 76 of the Constitution of Nepal reads like this, “The President shall appoint the parliamentary party leader of the political party with the majority in the House of Representatives as a Prime Minister, and a Council of Ministers shall be formed under his/her chairmanship.”
 
The charters unanimously prescribe that if there is not a clear majority of any party, the President will appoint as Prime Minister the member of the House of People who can have the majority with the support of two or more political parties represented in the Lower House.
 
Like Pakistan and Sri Lanka, the Constitution of Nepal also prescribes the maximum strength of members of Cabinet. Article 76(9) provisions that the President would, on the recommendation of the Prime Minister, form a council of ministers consisting of members not exceeding twenty-five in number from among the members of the Federal Parliament on the basis of the principle of inclusion.
 
However, Article 75 of the Constitution of India provides that the total number of ministers, including Prime Minister, in Council of Ministers would not exceed 15 per cent of the total members of the House of People. The respective articles provision that the lower House (i.e., Lok Sabha) would have the maximum strength of 552 members, out of which 530 would be elected from electoral constituencies, 20 from Union territories and two from the Anglo-Indian community who are appointed by the President. However, the current strength of the ‘Lok Sabha’ is 545.
 
On the other hand, the Constitution of Afghanistan envisages that the President would appoint the required number of ministers in the cabinet. Article 71 commands that the government would be comprised of ministers who work under the leadership of President. It’s been also provisioned that if a Member of Parliament is appointed as minister, then that individual would lose his membership of parliament.
 
In a welcome move, the Constitutions of Afghanistan and Bhutan unanimously provision that one must hold a higher qualification to contest the general election. In prescribing so, the Constitutions place an obligation on the state to disallow a person, not having a university degree, to contest the election or hold the office of minister.  
 
When we purchase a new mobile phone, we avoid the words of the sketchy salesman, read up the consumer ratings, and then make a mood to buy it. When we get married, we think about growing old with a person, love unconditionally and settle down with a family. Conversely, when we elect a parliamentarian, we go against everything, neither have we analyzed his past performance, nor we think twice.  So, is it necessary to bring a law that could place certain restrictions? In this regard, the Constitution of Bhutan is a step ahead in right direction by mandating that “No person shall hold office as Prime Minister for more than two terms.” And, the South Asian states (especially Nepal) are in want of similar enactment.   
 
 
The opinion expressed herein is that of the author and is not to be construed as official or reflecting the views of Kathmandu Tribune.