Crisis beyond legality

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.