With the making of the American Constitution in 1787, the modern world was immediately presented with two potential models for governance:  the presidential and the parliamentary.

The United States and the United Kingdom were not democracies in 1787, but both systems were committed to extending the rule of law and increasing accountability.  Both followed the basic rule that a division between the executive, legislative and judicial functions was a necessary feature of modern government,  and the evolution of these forms of government has now become a feature of constitutional discussions  throughout the world.

Nepal’s decision as to what form of government to choose will clearly reflect Nepali pre occupations and priorities.  The purpose of this brief paper is not to dictate a course, but rather to set out some issues in the ever-changing international context.

The Americas (with the exception of Canada and the Caribbean) have adapted the American model, with a division between an popularly elected President, an elected Congress (often two houses, particularly in federal systems like Mexico, Brazil and Argentina), and a judiciary with guarantees of independence from both the other branches.  The principles of judicial independence and judicial review under a written constitution are important hallmarks not always sufficiently respected.

In this model, the Presidency combines the ceremonial head of state function with the leadership and management of the executive, with a strict distinction from the legislative role of the Congress.

Historically, the advantages of this system are its origins in a healthy rivalry between the three different functions, the absence of a concentration of power in any one branch of government, and the assurance of a balance of power.

This is, of course, not always the case, and the existence of an elected executive Presidency quite separate from the legislature can give rise to a centralisation of power in one individual who uses the instruments of state to his or her advantage.  In Latin American parlance this is referred to as the “caudillo factor” – the risk of too much power accumulating through both the political party and the modern executive to give excessive control to the individual who is also the Head of State.  In this instance the ceremonial role gives an added lustre to the “elected dictator”.

Indeed, this issue was front and centre in the constitutional debate of the 1780’s, with many critics, including Thomas Paine, arguing that the President had too much power, that the independence of the states was threatened by the accumulation of power at the centre, and that America risked becoming a virtual monarchy by another name.

On the other hand, more  recent American experience would lead to another concern:  the risk of deadlock and the power of lobbies to influence a Congress that can stymie the agenda of an elected President.

The British parliamentary system (the so-called “Westminister model”)has its advantages and drawbacks as well.  In the eighteenth century the fight between “court and  country” was about reducing the patronage power of the King and giving more authority to  parliament.  In the nineteenth century the English political writer Walter Bagehot noted that “parliamentary government” really meant “Cabinet government”, and that the combined power of the executive and legislative branches were increasingly being centralised in the Cabinet.  Today a legitimate concern is the concentration of power in the hands of one individual, the Prime Minister, whose leadership of party and parliament can lead to its own risks of abuse of power.  The Prime Minister appoints members of the cabinet, and controls his party in the House of Commons.  In turn, he or she can set an  agenda which is difficult to stop.

Recent events in Canada are a case in point, where the Prime Minister has prorogued Parliament twice in one year, and no one has been able to stop him.  The lack of clarity of parliamentary governance precedents, and the fact that in many “pure” parliamentary systems the role of the head of state in deferring to the wishes of the elected government is unclear and in many instances unwritten (and therefore difficult to challenge in court) is now leading to increased efforts to clarify these roles.

Similarly, the role of the ordinary member of parliament, the powers of political parties to discipline “independent” thinkers, and the concentration of power in the office of the prime minister has led many to complain about the lack of “real” (as opposed to “apparent”) in parliament itself.  There are moves afoot in most parliamentary systems for reform to assert more power for backbenchers.

The first past the post electoral system compounds these problems, although it is more likely to produce majority governments.  In the minds of some this produces more clarity of decision making.

In the minds of others it creates parliaments with artificial majorities, that is majorities greater than the popular vote in the country would permit.  Hence the prevalence of some kind of proportional voting in most European countries, and many other parts of the world.  The advantage of this system are parliaments closer in representation to the actual vote.  However without safeguards small parties can manoeuvre themselves into positions of great leverage and influence.

Parliamentary systems with proportional voting usually produce coalition governments, which have the advantage of greater balance around the centre of the political spectrum, and the disadvantage of a politics said to be incapable of great change or movement.

The existence of such coalition results points to the creation of a model that is increasingly popular in the world today, so-called “hybrid” systems, where the ceremonial head of state – the president –  takes on more responsibility, but with a prime ministership working within the legislative structure as well as with the head of government.

The French Fifth Republic in 1958 is perhaps the most famous example, but Russia is now another and Kenya is currently debating whether to follow suit formally in its adoption of a new constitution, or to seek a clearer parliamentary or presidential system.

The risks in the hybrid approach are clear – conflicts between the Presidency and the Prime Ministership in event of a difference of party, and the potential for “the disadvantages of both systems”, an imperial Presidency and a deadlocked Parliament.

The key proviso here is to be as clear as possible about the powers and responsibilities of each, and to set these out in either the constitution or a specific law.  Constitutional lawyers – like all lawyers – need to think about what happens when things    go wrong as well as when things go right.  This means that the role of the courts in resolving constitutional disputes – between the provinces/states and the federal government, between citizens and their governments, and between national office holders – has to be clear from the outset.  This reinforces the point about judicial independence I made earlier.

In a “pure” parliamentary system the head of state still has an important function, whose prestige and power can play an important symbolic role.  In some countries – Ireland, Finland, to name just two – the Presidency is popularly elected, and yet the President has few real powers.  In others – India and Germany most notably – the President is chosen by the Legislature to emphasize his or her purely reserve power.

It is a matter of interest that a division of opinion over the method of choosing the head of state meant that the constitutional monarchy was maintained in the Australian referendum of the 1990’s.

It is well known to all of us that the question of the form of government is a matter of some contention in the current constitutional discussions.  It would be quite inappropriate for foreign observers to recommend one system or another.  Rather, as resource persons to the process our task is to answer questions about potential risks and advantages of a range of proposals.

Bob Rae is a former member of Parliament and former premier of Ontario.