Nepal is striving for narrowing the gap to the modern world for the past fifty years or so. This is not an easy undertaking in view of the mediaeval like feudal structures that were prevalent at the end of Rana times. It is the special problem of countries in similar circumstances that, within an extremely short period of time, they have to pass through developments that have slowly grown over decades or centuries in modern industrial states.

This means a hopeless venture for countries like Nepal. It would not be justified to deny that Nepal has experienced enormous changes after 1950. The reasons for the failure of the 1990 system have only in part to do with the developments and events of the past twelve years. For the most part, they are sought out in developments and conceptions that go back to the founding years of the modern Nepali state, i.e. the late 18^th and early 19^th century.

Ways into crisis

The following table may provide an overview over the different reasons for political instability without laying claim to completeness.

Most of these factors are not new to Nepal. There are only a few that have originated in the 1990s or even very recently. The escalation of dissatisfaction and unrest along the lines of the older factors has a lot to do with the achievements of 1990 and later. There may have been shortcomings and contradictions in the constitution, disregard and misuse of the same by the political leaders, corruption as well as illusory promises and expectations. But ironically, it have been the positive improvements that have contributed to the growing discontent of greater sections of the society, e.g. better and extensive education, the guarantee of well formulated fundamental rights, a more or less liberal press, the formation of numerous organizations that provide for awareness and demand for civil rights, etc.

Expectations have been extremely high when the democratic system was introduced in 1990/91. First, the general public had been fed up with 30 years of panchayat politics, but the leaders of the political parties also used the transition to stir up expectations they should have known that they would never be able to fulfil. The country was already down in 1990, and no political party, whatsoever, would have been able to change this situation over night, despite great amounts of foreign money that flowed into the country.

The next factor has to do with the question of political representation. There are already a number of shortcomings in the constitution of 1990. They have to do with the upholding of traditional elements and structures even under the current democratic system. One of the basic factors in this context is the definition of the state as a Hindu state. This mixture of politics and culture prevents the participation and integration of greater sections of society that are non-Hindu or disadvantaged according to Hindu-social conceptions. All the political parties, who should be the vehicles of representation in the modern democratic system, are especially dominated by male Bahuns[1], to a lesser degree also by Chhetris and high caste Newars; missing democratic structures of the parties prevent an appropriate participation of all sections of society.

Bad governance is another important factor that has contributed to the great frustration in formally democratized Nepal. Every party claims that democracy only exists when it is in power; there is no democracy when other parties are in power. For their personal strive for power, the political leaders have misused the constitution and its provisions for more than 12 years. The total disregard of the directive principles and policies of the state (articles 24-26 of the constitution), self-destructive fighting within the parties upto party splitting, irrational coalitions for the mere reason of power, refusal of cooperation in basic questions of state politics, and the excessive and irresponsible use of else democratic pressure tools like demonstrations and bandhs, are to be mentioned in this context.

Corruption, not unknown in panchayat times, has reached unimaginable forms in current Nepal. It is only in very recent months that the state has started to call to account some of the leading persons, but a clear line is still not found. The obvious corruption and ineffective political behaviour have caused the loss of credibility of almost all party leaders.

The so-called people’s war, started by the Maoists in early 1996, can be interpreted as a way to express dissatisfaction with this situation. But the more or less honourable original demands of the Maoists take a backseat against their violent approach. The conflict has escalated over the years with the security forces not being able to guarantee security. On the contrary, the people in rural areas were in the same way afraid of Maoists and of state forces because of their total disregard of human rights.

The royal massacre of 2001 and its aftermath have further complicated the situation. Right from his accession to the throne, King Gyanendra has claimed that he wants to be an active monarch. After the previous government of Sher Bahadur Deuba had already dissolved parliament and local bodies, King Gyanendra finally finished the constitution on October 4 by grabbing sovereignty and executive powers. The illegitimate and incompetent government, installed by him one week later, was neither able to solve the Maoist conflict nor to restore democratic structures. Instead, the conflict was now between three forces: Maoists, political parties and monarchy/security forces. The recent ceasefire seems more to be the result of changed Maoist politics than of constructive government politics.

I have already mentioned the lack of participation and integration of greater sections of society. This has to do with the history and ways of state formation in Nepal. The stratified social system has once been applied and legalized by the ancestors of King Gyanendra and their high caste supporters. It still exists in the minds of many of the political leaders, and it is reflected by some articles of the constitution and numerous subordinate laws. Those affected most are members of ethnic groups, Dalits, Madhesis and the women in general.

The continuously high growth rate of population combined with better education has given rise to further tensions. Every year, hundreds of thousands of young people leave schools with their SLC dreaming of a better live. But there are no jobs and perspectives, especially for those of disadvantaged population groups. Thanks to their education, they are aware of their rights and of the deplorable state of affairs in Nepal. These young folks are a fertile breeding ground for revolutionary movements like that of the Maoists.

The economic and regional factors mentioned in the table probably need no further explanations. But I would like to remark something on the consequences of September 11. On the one hand, then Prime Minister Deuba used the chance to jump on the American bandwagon and tried to get foreign support for a forceful suppression of the Maoist insurgency. On the other hand, misunderstands the American government that this conflict has nothing to do with international terrorism, but that it is homemade because of the numerous reasons mentioned before. The obvious American pressure not to take the movement as a political but as a terrorist issue further complicates ways to a solution.

The state of the 1990 constitution

Nepal was in a state of lawlessness in early October 2002 with a more and more violent and escalating Maoist conflict, and power striving and irresponsible politicians that had brought all democratic institutions to a standstill. There were neither a democratically elected parliament nor local bodies nor was it possible to hold elections to these institutions in a foreseeable time. I other words, the people could no longer be called sovereign. The constitution of 1990 was already almost dead when King Gyanendra finally delivered the deathblow on October 4, 2002. There has been a heated debate in the following months with the king claiming to have acted on the basis of the constitution and the party leaders calling the royal step unconstitutional. I think that both are partly right and partly wrong, and I will explain this a little bit more.

In his October 4 proclamation, Gyanendra claims that monarchy has always been guided by the wishes and aspirations of the people. This is a simple phrase as it has always been used by Nepali monarchs to justify their steps. It has to do with Hindu tradition of monarchy. According to this tradition, the king may be absolute in his aspects of power but he is bound to the well-being of his subjects. This is part of his royal duty (rajadharma) (Hacker 1958 and 1965, Krämer 1978 and 1981). In modern times, Nepali kings have used such kind of phrase at very critical moments, e.g. late King Tribhuvan in 1951 after the ousting of the Rana system, late King Mahendra at the time of his putsch of December 15, 1960, late King Birendra when he announced a referendum on May 24, 1979, and King Gyanendra after the royal massacre of June 1, 2001. So, this phrase as such may not have the meaning it pretends. First of all, it is a hint that the institution of monarchy is under high pressure to undertake steps that may influence this institution in the long run.

In the same way does the commitment to democracy mean little. This phrase has also been in use during panchayat times when monarchy played an absolute role of representing and controlling executive, legislative and judicial powers. The use of plural forms when the king is talking about himself, finally reminds of the traditional absolute position of the monarch. This may be explained by grammatical rules of the Nepali language, but these seem to have their reason in this kind of traditional thinking.

In the second paragraph of his October 4 address, King Gyanendra repeats his claim of solidarity with the aspect of welfare and promotion of the Nepali citizens but, this time, it becomes specifically connected to his Shah dynasty, which united Nepal in her current form by military expansion and subjugation of other territories between 1743 and 1816.[2] Following this pretended tradition of benevolent Shah kings, King Gyanendra describes the introduction of democracy in 1990[3] as one such benevolent act of the Nepali Shah kings. All those who observed the events of 1990 carefully may find this interpretation quite disconcerting when they remember how the institution of monarchy had come under pressure during the people’s movement (jana andolan) of spring 1990, especially during the great demonstration in front of the royal palace on April 6, 1990. Gyanendra’s statement is further contradicting to the numerous attempts of the palace to save as much power as possible under the constitution promulgated on November 9, 1990. So, the institutional democratization of Nepal in 1990 was, in fact, not a benevolent and farsighted act of the Nepali monarchy, but it had to be forced out of monarchy by those who demonstrated on the streets, partly loosing their lives, and by their self-claimed representatives who organized the demonstrations and later entered into negotiations with the palace.

In his further statements, King Gyanendra correctly mentions that, during the past twelve years, a number of political exercises have been adopted for the consolidation of democracy. In some of these cases, the institution of monarchy has in so far been involved as it has been defined as royal executive and legislative tasks by the constitution of 1990. But contrary to the regulations of the panchayat constitution, the king’s executive and legislative rights and duties are exclusively those of a constitutional monarch. The king can only exercise executive power on the recommendation and advice, and with the consent of the council of ministers. In the same way, the king can no longer completely refuse his assent to bills or even change such bills at his own discretion as it was normal during panchayat days.

In his address of October 4, King Gyanendra referred to the dissolution of the House of Representatives which was accepted by him on the recommendation of Prime Minister Sher Bahadur Deuba. And also the setting of November 13 as election day happened on the recommendation of the prime minister. On August 6, the Supreme Court (SC) decided that such kind of recommendation is a political prerogative of the prime minister.[4] In other words: the king has had no other chance than to dissolve parliament.

Against this background, King Gyanendra is right when he denies any personal responsibility for the dissolution of parliament and the setting of the election date. The correct holding of these elections became the main task of Sher Bahadur Deuba who, after the dissolution of parliament, was no more than the leader of a caretaker government. King Gyanendra is further right in his claim that this caretaker prime minister has asked him to remove difficulties that have arisen in connection with the implementation of the constitutional rules according to article 127 of the constitution. The question is, if this situation justifies the procedure of King Gyanendra in early October.

First, it must be decided in which way article 127 is to be applied. Naturally, this article can only be applied in cases that are not solved by other regulations of the constitution. The article simply mentions the king, i.e. the head of state, who can issue necessary orders to remove difficulties in the implementation of the constitution. Such orders must then be laid before parliament. This already makes clear that the king cannot act independently from other constitutional bodies. Since the application of article 127 is an executive function, the fundamental rules of executive procedures must be observed. This means according to article 35 (2) that the king can only act on the advice and recommendation and with the consent of the Council of Ministers.[5] Besides, three conditions have to be fulfilled: the application of this power must be objectively necessary and not subjectively desirable; the order to remove the difficulty must be nor more than necessary to remove it; the order must not be incompatible with any other provision of the constitution (Dhungel at al. 1998, p. 680).

King Gyanendra, in application of article 127, removed caretaker Prime Minister Sher Bahadur Deuba and his Council of Ministers out of office. But this was neither the recommendation of the prime minister nor was it the constitutional difficulty that had arisen. The problem as forwarded by Deuba was simply that he could not fulfil the constitutional regulation to hold general elections within six months after the dissolution of the house of representatives as prescribed by article 53 (4). The reasons for this shortcoming were manifold. First, the situation of law and order in face of the Maoist insurgency was not so to hold elections in November 2002. Secondly, the SC took about two and a half months to decide on the correctness of the dissolution of the house of representatives. Thirdly, the three member Election Commission (EC), itself a constitutional body, delayed the important decision on the recognition of the split Nepali Congress (NC) groups by more than three months. Fourthly, many oppositional politicians, especially Deuba’s estranged former party president Girija Prasad Koirala who simply rejected the decision of the SC, did everything to hinder preparations for the elections.

Thus, a constitutional application of article 127 would have meant, for example, that the period of time for the holding of elections was extended for some months. And this was exactly what Deuba had recommended when he approached king Gyanendra. This would have been a strong intervention into the regulations of the constitution but, against the background of the circumstances, it would have been justified. Gyanendra fulfilled this recommendation, but only in the second position and not mentioning a time limit, which is regarded as necessary for the application of article 127 (Dhungel et al., 1998, pp. 680 f.)

In the first position, King Gyanendra mentions the removal of caretaker Prime Minister Sher Bahadur Deuba and his Council of Ministers. This brings us to the question if the monarch has any constitutional right to remove a prime minister from office. The answer is given by article 36 (5) which mentions four reasons:

a)     if he submits his resignation to the king,

b)     if a no-confidence resolution has been passed by a majority of the total number of members of the House of Representatives

c)      if he ceases to be a member of the House of Representatives

d)     if he dies.

None of this happened, and other regulations are not to be found in the constitution. This leads to the conclusion that the removal of Prime Minister Sher Bahadur Deuba and his Council of Ministers was an unconstitutional act. Either King Gyanendra has been misguided concerning the monarch’s constitutional role or he has acted fully aware of this breach of the constitution. In the latter case, his procedure would have been a putsch, maybe similar to that of his father in December 1960.

The final remarks of Gyanendra’s address already have little to do with constitutional monarchy. He mentions that he himself will undertake the responsibility of governance and that he himself will exercise the executive powers. He asks the political parties for cooperation and recommendations concerning the constitution of an interim council of ministers, and already sets the conditions for the composition of this council. In other words, this is the end of constitutional monarchy and democracy. The council of ministers and political parties are treated as executive instruments that can be used by the king on his own discretion. Leaving the existence of political parties aside, we seem to be back in panchayat times. In contradiction to this, Gyanendra claims that he will never allow any compromise on the commitment to constitutional monarchy and multiparty democracy.

In the end, Gyanendra leaves open how he wants to make adequate arrangements for peace and security and to conduct the elections. More than ten months of mobilization of the army, whose supreme commander the king is, had brought nothing to improve the situation in the country. On the contrary, the political, social and cultural conditions in Nepal have never been worse than in recent years. If the state of emergency has proved anything, than that the conflict can never be solved by force.

But it would be too easy to use King Gyanendra as a scapegoat for Nepal’s political disaster, for he is not the only one who has broken constitutional rules after 1990. Unconstitutional behaviour and demanding has a tradition in institutionally democratized Nepal. This may only partly be excused by the inexperience of the party politicians and the miserable conditions of the country. Personal ambitions and power hunger of party leaders, short-sightedness dependent on cultural and traditional conceptions, lacking participation of and missing understanding for disadvantaged sections of Nepal’s multicultural society, all these are further reasons that have hampered the democratization process in Nepal.

Thus, I would claim that the constitution of 1990 and its political system was already dead when King Gyanendra took his step on October 4. And for this was not the king responsible but all the political parties including the CPN (Maoist). For the latter, it may have been some kind of success since they had fought to oust this system. Against this background, King Gyanendra’s step could have been seen as a final stroke to allow a new beginning if he had interpreted his step in this way. In this case, his breaking of the constitution would have been to safeguard the interests and the well being of the people. But he did not explain it in this way. Instead, he claimed to act on the basis of the 1990 constitution in the interest of democracy. Besides, he used every chance to have the institution of monarchy being celebrated in an unbearable manner as it last happened in panchayat times.

Seven months have already passed since the royal step, and neither the parties nor the king have moved a bit to find a solution. The leaders of the political parties only have their own power interests in mind[6], and the king uses this situation to prevent democracy and instead strengthen his own position. History seems to be repeating again in Nepal.

Ways out of crisis

So, Nepal is in a position in which it better should look forward and not back. The mistakes of constitutional institutions, including political parties and king, have been numerous. The system of 1990 has failed despite its optimistic beginning. There must be another beginning now, and the obvious willingness of the Maoists to participate in it provides hope that the mistakes and shortcomings of the 1990 system can be avoided in future. The constitutional system of 1990 was not generally bad, and it was from comparison with other constitutions even in fully industrialized states that many have called the 1990 constitution to be one of the best in the world. But I believe that every western constitution would have its problems if it had to function under similar historico-political, social and economic conditions as they exist in Nepal.

In a society characterized by poverty as well as cultural and socio-religious inequalities the people are looking for a kind of political representation that opens up perspectives and hopes changing their fate. The masses in general have been deeply disappointed by all the political parties. All of them are facing problems with implementing intra-party democracy. The undemocratic structure of the leading parties makes the introduction of broad based and equal participation of all strata of society even more difficult. Only the established party elites, which in all parties are dominated by Bahuns and Chhetris, decide if other groups of society are allowed to participate or not, for example when election candidates have to be nominated. This is for the disadvantage of those groups that already had been discriminated against before the advent of democracy: the ethnic groups, the so-called untouchables, the women and the Tarai population. With greater parts of the people still having no positive perspectives, the leading parties have steadily lost control.

Today, there is a lot of discussion on how the future system shall be formed. It already starts with two very fundamental questions:

·        Does Nepal need a new constitution or can the 1990 constitution be revived?

·        If it needs a new constitution, should this constitution be written by an elected constitutional assembly or by a circle of selected experts and representatives?

I have made my stand on the first question already very clear. There is hardly anything left from the 1990 constitution. The people have lost their sovereignty; the parliament is abolished and there is no indication that the king who has grasped power or the government installed by him do have any interest to hold elections in the near future; there is no legitimate government that is responsible to elected representatives of the people; there is not even any chance of participation and control by the people at the local level. So, what kind of democracy is to be preserved? Which constitution has to be safeguarded? The constitution of 1990 is dead and cannot be revived. Every return to this constitution would mean a sanctioning of its misuse by party politicians and king. There must be a new constitution that is able to prevent such misuse and breach of the constitution in future and that, at the same time, guaranties a better participation of so far disadvantaged sections of society and, thus, contributes to a mitigation of the numerous reasons that have led to the current crisis.

This does not mean that the new constitution has to be totally different from the previous one. It is not the democratic structure as such that has failed in Nepal but rather the problems have arisen from the way this system has been used and interpreted. There is one great advantage today compared to 1990. Under the panchayat constitution, sovereignty had been vested in the king. This was why the 1990 constitution had to be promulgated by the king; he was the only one who could change the system as long as the institution of monarchy remained alive. King Gyanendra may now again behave as if he is still sovereign, but constitutionally he is not. This means that the new constitution can and should be written and promulgated by the people, and this should already be made clear in the preamble.

So, if the new constitution is written by the people, it will be a further precondition that all sections of society are equally participated in the body that will have to do this job of writing a new constitution. This brings us to the question if a constituent assembly is the best way for this purpose. To answer this question, let’s look back again to 1990. The then constitution was framed by a circle of judicial experts that had been nominated by the self-claimed representatives of the people, i.e. the leaders of the Nepali Congress and the communist parties of the then United Left Front. These party leaders had never been elected by the people. Almost all of them came from those social circles that have been dominating Nepal’s political parties since the late 1940s. There was not a single woman included, nor representatives of the Dalits, the Janajatis (with the exception of some high caste Newars), and the Madhesis. The general people had only the chance to send their own suggestions to the constitutional commission. Vishwanath Upadhyaya, chairman of this commission, later claimed that more than 90% of the suggestions presented by the general public (i.e. by all those who did not have a direct say in the formulation of the constitution) had to do with social and cultural issues, and thus they would be irrelevant for the formulation of a democratic constitution.

History has proved within a very short time that this typical Bahun view has had disastrous consequences. Nepal is a multiethnic, multilingual (both conceded by article 4 of the constitution), multicultural and multireligious (both denied by the constitution) country with often overlapping identities. Non-participation, discrimination, exclusion and suppression on the basis of these four social realities have been a significant feature ever since Nepal’s unification process started in 1743. They are still present in the political, social and economical everyday life of the country. Democracy, equality and participation are only possible if these realities are no longer denied, and if Nepal gets a constitutional and legal system that prevents the continuation of this misappropriate state. In part, this will not be possible without positive discrimination of the currently most disadvantaged groups of society. A western kind of democracy does not work in Nepal without adequate consideration of the specific historical, social and economic features of the country.

At this place, I can only mention a few of the passages where the new constitution must differ from the previous one to reach the goal of inclusion in Nepali democracy. Besides the general advice not to combine the definition of state with a specific religion is the definition of Nepal as a Hindu state contrary to all efforts for inclusion against the fact that Nepal is a multicultural and multireligious state. Thus, there must be corresponding changes in article 4, irrespective of combining the whole state with the term Hindu or only the institution of monarchy. I see a conflict between the terms "constitutional monarch" and "Hindu monarch". A Hindu monarch can never be a constitutional monarch along western conceptions.[7] Many aspects of the recent royal steps can only be explained through the traditional conception of Hindu monarchy and not through the modern westernized conception of constitutional monarchy.

Another definition of the 1990 constitution that has often been discussed in context with identity, participation and equality is the definition of rastra bhasa and rastriya bhasa. There can be no doubt that the country needs one single official language that is used by all citizens in public life, and no other language than Nepali can fulfil this job. Nepal’s language problem does not originate from the use of Nepali as official language but from the use and respect of all the other languages of the country. Here, we enter into an area that needs a lot of changes also in other respects, and this is the education system. All the numerous languages of Nepal are fundamental aspects of the different ethnic identities. They must be preserved, and this has already been one of directive principles of state politics of the 1990 constitution which have been more or less disregarded by Nepal’s politicians. The indigenous languages can only survive if they are used, if they can be applied and, especially, if there is a chance that they are taught at school. Since Nepal is a multilingual state, it should be obligatory for all students to learn at least one other language besides Nepali. This would be a great contribution to improve the mutual understanding of people with different ethnic or cultural background. The lack of understanding for the problems and arguments of the Janajati groups, for example, as it is typical for Bahun and Chhetri circles, originates first of all from their lacking knowledge of other Nepali cultures outside their Hindu world.

Let me mention some other decisive shortcomings of the education system and its curricula in this context. It is an obvious feature of the curricula and of the text books at school that they do not represent the divergent picture of Nepal’s societies and cultures.[8] The overemphasization of the culture and the conception of historiography of the higher Hindu castes gives Nepal’s future generation a wrong picture of the country’s realities.[9] People from other groups realize that they are not part of this conception, and against the background of their better general education in an ever smaller world they become more and more dissatisfied. In other words, they are an ideal breeding ground for movements like that of the Maoists which use those lacking perspectives for their own goals.

The institution of monarchy has come under heavy fire from the Maoist side for some years, but currently it seems that even the Maoists have changed their minds. This may have to do with the fact that the parties have become powerless institutions after the royal step of October 4, but I also think that the failure of the parties has made many people in Nepal realize that the country needs a stable institution as head of state that is free from party wrangling. Nepal’s democracy is still in its childhood. As long as the politicians have not learnt how democracy works as long will a constitutional monarch be better than an elected president. Nevertheless has the king’s behaviour in recent months proved that also the constitutional rules concerning monarchy need some clearer definitions. In some respect, the king has broken the constitution as I have already explained in detail. His executive and legislative role is very exactly defined in the 1990 constitution and needs no further explanation. But the articles that deal directly with His Majesty are partly interpretable. Article 27 (3), for example, gives the king a free hand to do what ever he wants according to his subjective view. Here must be mentioned what he should do to protect the constitution and what he should never do. Besides do the interest and the welfare of the people urgently need a clear definition.

Another function of the king that needs more clearness is his relation to the security forces. There is a contradiction between the authority of the king and that of the National Defence Council (articles 118 and 119). It should be made clearer that the king is only the formal supreme commander of the army who in all his acts depends upon the decisions of the National Defence Council. The latter should be extended. The practice that, with on exception, the ministry of defence has always been in the hands of the prime minister, reduces the current composition to absurdity. Besides should all decisions of the National Defence Council be sanctified by parliament within a defined period of time.

Finally, it would be a shining example for gender equality in Nepal if the rules concerning to succession to the throne would not be limited to male descendants only. Of course, this would be a change that could only be introduced in cooperation with and with consent of King Gyanendra, but if monarchy wants to play a model role for Nepal’s future, then he should think of it.

The separation of powers and the concept of a bicameral parliament as foreseen under the constitution of 1990 should be upheld in structure, but 12 years of misuse of these institutions by party politicians as well as the current royal intervention have proved that Nepal needs some stronger regulations that help to avoid such misuse in the future. There have been some articles that can be interpreted in different ways. One such article that has often been misused in this way has been article 53 (4). This article needs greater clearness, and we also have to reproach the Supreme Court for its contradictory decisions in this respect.

A number of changes are necessary if all population groups of Nepal shall really have a chance to feel represented in parliament. These changes must already start with clear and binding laws concerning the structure, organization and working style of the political parties. All of them are lacking democratic structures. They have not become open for all sections of society irrespective of gender, ethnicity, origin, cultural background, etc. As long as the parties remain mere instruments of traditional elites, as long can they not be vehicles of democratic state politics. The traditional party leaders have not introduced the necessary internal party reforms voluntarily. This proves that there must be clearer constitutional and legal regulations for parties that want to take part in electoral processes.

This brings me to the election system (Krämer 2001). According to the current system, the Pratinidhi Sabha is elected by plurality system in single-member constituencies according to the Westminster model. This system prevents a broad-based participation of all sections of society which is very critical under Nepal’s conditions.[10] Another problem under the current system is that the central party elites have to much influence on the decision who will be their party’s election candidates in the different constituencies. As a result, the background of the election candidate reflects the composition of the party elites: There are hardly any women, there is an intolerable preponderance of Bahuns among the candidates, there is an under-representation of quite a number of ethnic groups, there are almost no candidates from the Dalit groups. Here must be introduced changes, and they must be forced by constitutional and legal rules since the party elites will never change their mind without such legal pressures.

The composition of the National Assembly is another tool that should be used to provide for better representation of all population groups. Similar critics have come from the camp of ethnic organizations ever since the introduction of the constitution in 1990. Equal participation is inevitably bound up with greater decentralization. This latter aspect is hardly met by the current composition of the National Assembly. Why not transform this house into a House of Nationalities and Regions? The current system makes no sense, since it only further strengthens the traditional elites.

The constitution of 1990 has defined the principles and policies of the state in an almost perfect way (articles 24-26). There is no greater difference between these principles and many of the original demands of the Maoists as presented by them in early 1996. This proves that those politicians who should have implemented these principles have failed miserably. It is this total failure of the politicians that has given the Maoists the arguments they needed to get the sympathy of greater sections of society for their violent insurgency. This shall not excuse the misbehaviour of the Maoists which was in the same way wrong.

I see the current initiation of a dialogue as the very last chance of Nepal to find a peaceful solution for a prosperous future. It is important that all sections of state and society get a chance to participate in this dialogue. This means, among other things, that also the political parties should immediately stop their boycott and join the peace process. They may be right in their arguments that the king’s step was unconstitutional and that the current government is illegitimate. But much of their own politics has been unconstitutional as well since 1991 because they have always disregarded the articles 24-26 of the constitution. So, one should also think about how to make these principles more binding for the future governments and legislatures.

Finally I want to mention the miserable state of human rights in Nepal. Generally, the fundamental rights have been very carefully described in part 3 of the constitution. Nevertheless has the great violation of human rights legal as well as political reasons. I have already mentioned some constitutional contradictions. Besides, there are numerous legal regulations that still stand in contradiction to the principles of the constitution. According to article 131, these laws should either have been amended or abolished before November 9, 1991. But these laws are still applied. This is a clear failure of parliament and judiciary.

The political reasons for human rights violations have to do with the behaviour of the two forces that have applied force in recent years, i.e. the Maoists and the security forces. Both sides have violated fundamental human rights as they are mentioned in international declarations and as they are reflected by part 3 of Nepal’s constitution. The brutal police actions against protesting students in recent days have just again proved that the state forces still have a lot to learn about democracy and human rights.

This have been some suggestions concerning constitutional and political changes that could help to bring Nepal back to the road of peace and democracy with respect to greater inclusion. I’m fully aware that I have only shortly outlined a few aspects in this limited space and time. But against the background of the programme of this conference, I am sure that all the papers together will provide a comprehensive picture that can serve as a supporting tool for the dialogue that is going to be started.

References

Bhattachan, Krishna Bahadur. 2000. Possible ethnic revolution or insurgency in a predatory unitary Hindu state. In: Dhruba Kumar (ed.), Domestic conflict and crisis of governability in Nepal, pp. 135-162. Kathmandu: CNAS.

Derrett, J. Duncan M. 1976. Rajadharma. Journal of Asian Studies, The 35:597-609.

Dhungel, Surya P.S., Bipin Adhikari, B.P. Bhandari and Chris Murgatroyd. 1998. Commentary on the Nepalese constitution. Kathmandu: DeLF.

Dixit, Kanak Mani. 2000. Has Nepal failed as a state?. In: Ram Pratap Thapa and Joachim Baaden (eds.), Nepal: myth and realities, pp. 165-171. Delhi: Book Faith India.

Dixit, Kanak Mani and Shastri Ramachandaran (eds.). 2002. The state of Nepal. Kathmandu: Himal Books.

Gellner, David N. 2003. Social Order, Inclusion, Hybridity: Preconditions of Democracy in Nepal (paper presented at this conference)

Gellner, David N. 2003 (ed.). Resistance and the State: Nepalese Experiences. Delhi: Social Science Press.

Gellner, David N., Joanna Pfaff-Czarnecka and John Whelpton (eds.). 1997. Nationalism and ethnicity in a Hindu Kingdom: The politics of culture in contemporary Nepal. Amsterdam: Harwood Academic Publ.

Hacker, Paul. 1958. Der Dharma-.Begriff des Neuhinduismus. Zeitschrift für Missions- und Religionswissenschaft 42:1-15.

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