There have been a lot of discussions and demands from different sides that have called for the 'constitutional forces' to come together for a solution of Nepal's crisis.
But who are these forces? The 1990 constitution mentions a number of such forces: a parliament, a government elected by and responsible to this parliament, a constitutional king with no direct executive and legislative powers, an independent judiciary with the Supreme Court, political parties as agents and converters of public will, etc. Hardly any of these institutions is functioning in the way as prescribed by the 1990 constitution.
Those who claim loudest to be 'constitutional forces' come from the camp around the institution of monarchy: King Gyanendra himself and his ministers, security chiefs as well as institutions and persons installed in office by the king after 4 October, 2002. The second group who see themselves as constitutional forces are political parties.
But the misunderstanding is that these forces are not constitutional per se but that they are only constitutional forces as long as they follow the rules of the 1990 constitution.
Part of the compromise of 1990 has been that the absolute monarchy became a constitutional one that had to obey to the rules of the constitution which defined not only the power but also the duty of the king. The latter's executive and legislative powers became reduced to formal functions. The king had no longer any right to intervene in the affairs of the government or parliament, neither concerning their compositions nor their decisions. Article 27 (3) gave the king the duty to protect and safeguard these fundamental principles of the constitution.
The current position of King Gyanendra has nothing to do with this definition of constitutional monarchy. The constitution of 1990 gave the king neither a right nor a necessity for all steps undertaken since October 2002. Article 53 (4) requires that new elections have to take place within six months after the dissolution of parliament. This means its dissolution in 2002 became automatically invalid when elections could not take place in time. There was no need nor right for any intervention of the king who especially was not allowed to dismiss the government and later install governments himself.
King Gyanendra's attitude towards the political parties and civil society, especially after 1 February, 2005 further proves that the king has left his constitutional position and thus can no longer be called a constitutional force. Therefore, the persons and institutions nominated or installed by him are not constitutional forces either.
Political parties are generally groups of like-minded citizens who want to succeed in getting shared political ideas implemented. The constitution of 1990 requires that such political parties identify themselves with the principles of the constitution. Only the Maoists totally distance themselves from these principles and thus can't be called a constitutional force. The two most important parties, the UML and NC have limited their stand towards the institution of monarchy in autumn 2005. But in contrast to the Maoists they are not against the institution of constitutional monarchy but only against the institution of monarchy in its current unconstitutional form. So, they fall within the framework of the constitution but without the people's mandate. So these political parties also can't be called constitutional forces.
A crisis is imminent and needs an urgent peaceful solution for which four basic preconditions need to be fulfilled:
. The autocratic rule of the king has to be ended immediately. All militant activities of the security forces and of the Maoists have to be stopped. All political prisoners have to be released. This intermediate process should be supervised by an independent institution like the UN.
. There must be a common will that the Maoists become integrated as a future democratic force.
. The country needs a new constitution that avoids the compromises of 1990 and guarantees that neither insurgencies like that of the Maoists nor putsches like that of King Gyanendra are possible in the future. This constitution must have provisions for the inclusion of all Nepalis and the definition of the state should not have any connections with a special culture, religion or ethnicity.
. To underline the people's will, this constitution should be worked out by an elected constituent assembly (as already promised by the monarchy in 1951) and it should later be confirmed by a public referendum.
Karl-Heinz Kr?mer is affiliated with the South Asia Institute at the University of Heidelberg, Germany, and runs http://nepalresearch.org
