Nepal is caught in what most people assume to be a constitutional crisis. There are two aspects to this crisis which need to be kept distinct. The first, and the more transient, though it may turn out to be the more problematic, is the result of the dissolution of the House of Representatives and the failure to hold elections within six months of dissolution, as stipulated by the 1990 Constitution. Consequently, the country is presently, at best, operating under half or a quarter of a Constitution. Parliament does not exist and therefore the validity of government itself is questioned as ministers must be drawn from parliament, except for a specified short period that has already lapsed. Moreover there can be no parliamentary accountability of the cabinet. The present practice of accountability to the king has no constitutional legitimacy, nor any political legitimacy. Article 127 (which provides that the king may issue orders "necessary to remove difficulties in bringing the Constitution into force") is too fragile a reed to sustain the burden of the governance of the country and cannot act as life-support for the Constitution, in the context of the collapse of the entire parliamentary system that lies at heart of the 1990 document.
The second crisis is about the legitimacy of the Constitution itself. The conflict of the last decade, by effectively disabling the state from discharging its fundamental Constitutional obligations to individuals and communities, has rendered the Constitution meaningless. The roots of the Maoist rebellion lay in their dissatisfaction with the way the Constitution was framed, its orientation and how it has operated. But there are other groups as well who are troubled by the lack of constitutional recognition of national diversity or social justice, and who consider that the state has been monopolised by high caste and other privileged groups. While the Constitution has its supporters, there is now a general acknowledgement that it needs, at the least, to be revised, if not replaced.
It is not self-evident how the current Constitution can be resurrected—and without its resurrection there seems to be no obvious way to return to constitutional rule or to find means to tackle problems of reform and national reconciliation. So paradoxically, while the Constitution has some excellent provisions and with reform can serve as the vehicle of future political and social developments, it is clear that the procedure for its revival and reform has to come from outside its own framework. At heart, Nepal's problem is not constitutional but socio-political—the present Constitution contains the seeds of development to respond to present anxieties but they will not germinate without political nourishing. Nepal needs a process to draw up a consensus on its vision of the future and to affirm it in a national compact. Fortunately, that possibility lies within Nepal's grasp. There seems to be considerable consensus on what needs to be done and on the willingness to engage in a process for this purpose. What is lacking is agreement on the procedure to achieve this.
The reforms
The debate has, not surprisingly, centred on the ability of the 1990 Constitution to deal with social and political problems facing Nepal. The vision of the Constitution is sufficiently broad-ranging to encompass the aspirations of Nepal's different groups and communities. The difficulty lies in the technique. While a part of the political settlement that lies behind the abandonment of the Panchayat system and introduction of multi-party democracy was effeced in the Constitution, some other components, like inclusiveness and social justice, were acknowledged but not incorporated in legal forms that lend themselves easily to implementation or enforcement. Constitutional reform now must ensure the complete implementation of the 1990 settlement and understandings explicit in the Constitution.