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Towards a Lasting Peace in Nepal: The Constitutional Issues International Crisis Group 2005-06-15

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Asia Report N°99 - 15 June 2005
Crisis Group
A. The Rana and Shah Eras 3
B. The First Democratic Interlude and the Panchayat Era 3
C. The 1990 Constitution 4
A. From Dissolution to Deuba's Second Dismissal 6
B. The Royal Coup of February 2005 7
C. Towards a "Royal Roadmap"? 8
D. The Need for a Democratic Way Out 11
A. The Monarchy 12
B. Social and Political Exclusion of Ethnic and Caste Groups 13
C. Sub-National Governance 14
D. Electoral Reform 16
E. Civil-Mlitary Relations 18
A. ThePalace 20
B. Nepali Congress 21
C. The Communist Party of Nepal (Unified Marxist-Leninist) 22
D. Other Political Parties 23
E. The Maoists 24
A. An All-Party Government without a Parliament 26
B. A Government Formed after New Parliamentary Elections 27
C. A Government Formed after Restoration of the Parliament Elected in 1999... .28
D. The "Maoist Roadmap" 31
A. Constitutional Amendment 34
B. Referendum 35
C. Constitutional Assembly 36
1. The South African constitutional process 38
2. The Indian constituent assembly 39
3. Implementing a constitutional assembly 39
A. Map of Nepal 42
B. Key Articles of the Constitution of the Kingdom of Nepal, 1990 43
C. About the International Crisis Group 46
D. Crisis Group Reports and Briefings on Asia 47
E. Crisis Group Board of Trustees 49
 Crisis Group
Asia Report N°99
15 June 2005
Nepal is in the grip of a constitutional crisis. The
drafters ofthe 1990 Constitution hailed it as "the best
constitution in the world", ending three decades of
absolute monarchical rule by enshrining a multi-party
system under a constitutional monarchy. But the nine-
year-old Maoist insurgency has cruelly exposed the
inherent weaknesses in that settlement, and the royal
coup of 1 February 2005 has dealt it a near fatal blow.
Constitutional change is a necessary, if not sufficient,
element for producing lasting peace. The conflict's root
causes can only be addressed by structural change in
the state and its governance system. Constitutional
issues and the political means by which they are dealt
with are crucial to a peace process.
Unfortunately, there is no sign of agreement between
the king, the political parties and the Maoists on key
topics. Three areas need to be considered:
□ what substantive changes should be made to the
constitution? Although the role ofthe monarchy
lies at the centre of constitutional discussions, other
important issues include democratic inclusion, sub-
national government, electoral reform and civil-
military relations;
□ what is the vehicle for political transition? There
are various possible mainstream entities — such as
an all-party government ~ that could eventually
negotiate a transition but there are also Maoist
and royal roadmaps; and
□ what is the process for modifying the constitution?
Amendment of the current constitution by
parliament or through referendum has been
proposed but debate now centres on a constitutional
assembly, a central Maoist demand which is now
backed by mainstream parties and analysts.
Constitutional issues are at the crux of Nepal's military,
political and social crises. The Maoists have called for
radical restructuring ofthe state, including establishment
of a republic, since the start oftheir insurgency in 1996.
The mainstream political parties opposed fundamental
revision of the constitution until recently but are now
willing to envisage greater change, although their policies
are still a subject of debate.
Even before the royal coup, the 1990 Constitution had
been undermined by the May 2002 dissolution of
parliament and King Gyanendra's repeated dismissals
of prime ministers. Subsequent governments had little
chance of conducting successful negotiations with the
Maoists as long as real power rested with the palace.
Ifthe king hoped that his unambiguous seizure of full
executive authority would bring the Maoist to talks,
he was mistaken.
The re-introduction of democratic institutions remains
central to establishing a government that can negotiate
with the Maoists and initiate a consensual process for
constitutional change. But the palace is more concerned
with consolidating royal rule, while a broader alliance of
Kathmandu-centred interests has long opposed a more
equitable distribution of power.
Three vehicles for breaking the political deadlock in
the capital remain:
□ an all-party government without a parliament:
the royal coup has increased the previously slim
likelihood that the mainstream political parties
might manage to form such a government. But if
it is constituted by royal fiat, it would lack the
legitimacy and authority to negotiate effectively
with the Maoists;
□ a government formed after new parliamentary
elections: the Deuba government was tasked to
hold parliamentary elections but this was never
realistic. The king has announced municipal
elections by April 2006 but there is no clear
prospect of a general election; and
□ a government formed after restoration of the
parliament elected in 1999: the king or the Supreme
Court could restore parliament, although neither
seems willing. This option was seen as a partisan
measure that brings no guarantees of effective
governance but it has now been endorsed by a
coalition of mainstream parties. A parliament
 Towards a Lasting Peace in Nepal: The Constitutional Issues
Crisis Group Asia Report N°99, 15 June 2005
Page ii
restored with the limited mandate to negotiate
with the Maoists on constitutional change might
advance the peace process.
A government negotiating with the Maoists would have
three basic options for constitutional change: parliamentary
amendment via Article 116 ofthe 1990 Constitution; a
referendum; or a constitutional assembly. In Nepal,
constitutional amendment is typically understood to
preclude consideration ofthe role ofthe monarchy, while
a constitutional assembly is equated with republicanism.
In fact, either method allows flexibility. By contrast, a
referendum on constitutional issues would likely
destabilise the state, rather than identify an acceptable
political compromise.
Any viable tripartite process would need to allow the
Maoists to argue to their cadres that republicanism was
at least on the table and permit the king to feel confident
the monarchy was sufficiently secure. A process in which
key stakeholders have already reached critical informal
agreements may be a way of delivering constitutional
change peacefully, although it would have to be balanced
with the need for transparency and accountability.
Allowing for easy subsequent amendment would enable
future adjustments.
For the time being, however, the royal roadmap ~ thinly
disguised by the rhetoric of "protecting the 1990
Constitution" ~ appears to be one of systematically
dismantling multi-party democracy while pursuing a purely
military strategy against the Maoists. The options for
democratically negotiated change are severely constricted.
If the "constitutional forces" of monarchy and parties
cannot form a common position, there may be no viable
basis for negotiation with the Maoists. In this context, the
Maoist roadmap of an interim government, ceasefire and
freely elected constitutional assembly is likely to become
the focus of increased attention. This would test Maoist
sincerity but also that ofthe parties and the palace. Each
side claims to speak for the Nepali people but none has
shown much appetite for allowing the people to have a
real say. Unless and until this happens, there is little
chance of finding a lasting peace.
Kathmandu/Brussels, 15 June 2005
Crisis Group
Asia Report N°99
15 June 2005
Nepal's civil conflict has three interlocking elements: the
Maoist insurgency, a battle between the palace and the
mainstream political parties over executive authority, and
a challenge to the marginahsation of women, lower castes
and ethnic groups.1 These elements mutually reinforce
each other. The Maoists, for example, have highlighted
and mobilised around longstanding ethnic and caste
cleavages. Successive governments' failures to address
the insurgency have played a role in undennining
democratic institutions, allowing the king to seize more
power. A solution for each aspect of the conflict must
take into account the dynamics ofthe other two.
Constitutional change of some kind may prove a partial
solution to all three. The Maoists see constitutional
transformation as essential. In contrast, King Gyanendra
presents himself as guardian ofthe 1990 Constitution and
resists most change. Nevertheless, in reforms suggested
during the 2003 peace negotiations, a government
selected by and representing the king proposed selective
amendment as part of a settlement.2 The platforms ofthe
mainstream political parties also acknowledge the need
for constitutional change. Excluded ethnic minorities and
castes see such change as central to achieving
equality. However reluctantly, all the major players
have acknowledged a role for some constitutional reform
in the peace process.
The conflict which dates to the launch of the Maoists'
"people's war" in February 1996, has claimed the lives of over
11,000 people and led to widespread human rights abuses.
Civilians have bome its brunt. See Crisis Group Asia Report
N°50, Nepal Backgrounder: Ceasefire — Soft Landing or
Strategic Pause?, 10 April 2003; Crisis Group Asia Report
N°57, Nepal: Obstacles to Peace, 17 June 2003; Crisis Group
Asia Briefing N°28, Nepal: Back to the Gun, 22 October
2003; Crisis Group Asia Report N°91, Nepal's Royal Coup:
Making a Bad Situation Worse, 9 February 2005; Crisis Group
Asia Briefing N°36, Nepal: Responding to the Royal Coup, 24
February 2005; and Crisis Group Asia Report N°94, Nepal:
Dealing with a Human Rights Crisis, 24 March 2005.
2 See "Highlights of proposals of forward-looking reforms
proposed by His Majesty's Government of Nepal", 17 August
2003, p. 1.
This report considers what that role might be. The
substantive issues are increasingly well rehearsed,
especially in the wake ofthe royal coup. They include the
role of the monarchy and the distribution of executive
powers, questions of democratic inclusiveness, sub-
national government and electoral reform, and civil-
military relations. An outline of some key topics and an
indication of the contours of debate on them is given in
section IV. Questions relating to process — how to carry
out constitutional change and how to get to the point
where it is possible — have, however, generally received
less detailed attention. There is a wide spectrum of
options, from amendments by a parliament to a popularly-
elected assembly tasked with preparing a new founding
document from scratch.3 Different modalities bring
different conflict-related risks and would create varying
levels of legitimacy for a changed or new constitution.
Managed correctly, and with imagination, constitutional
change could be an integral part of a sustainable
negotiated peace. The varieties of strategies for managing
change, therefore, are worth considering as possible
subjects of and goals for peace negotiations.
Two process-related problems must be addressed. First,
the post-February 2005 environment has reduced the
possibility of constructive negotiations. Even if direct
talks were to take place between the king and the
Maoists, they would be unlikely to lead to a durable
settlement in the absence of participation by the
mainstream political parties.4 A preliminary but vital
step in any constitutional process is to move from the
present political situation to one in which the political
parties have a central place at the negotiating table.
Except when the latter term appears in direct quotation,
"constitutional assembly" is used in this report rather than
"constituent assembly", a term also in circulation, to reflect
the unambiguous reference to "constitution" in the Nepali
term samvidhan sabha.
4 The mainstream parties are primarily those that won
parliamentary seats in the 1999 election: Nepali Congress
(hereafter Congress), which has split, adding Congress
(Democratic); Communist Party of Nepal (Unified Marxist
and Leninist UML); Rashtriya Prajatantra Party (RPP); Nepal
Sadbhavana Party (NSP); Nepal Workers and Peasants' Party
(NWPP); and Samyukta Janamorcha Nepal (Janamorcha, also
known as the People's Front Nepal).
 Towards a Lasting Peace in Nepal: The Constitutional Issues
Crisis Group Asia Report N°99, 15 June 2005
Page 2
Secondly, party, palace and insurgent positions are
largely determined by calculation of the strategic
advantages. No side is looking primarily to what is most
likely to achieve peace. The risk of increased conflict
associated with various modalities of constitutional
change has yet to be considered by any side.
This report analyses how constitutional change might be
achieved given Nepal's legal and political framework
after the king's twin power-grabs of 4 October 2002 and 1
February 2005. It reviews the major options for breaking
the Kathmandu political stalemate and achieving political
transition (an all-party government, general elections, and
restoration ofthe 1999 parliament) and outlines ways of
achieving substantive constitutional change (including
amendment under Article 116 ofthe 1990 Constitution, a
referendum and a constitutional assembly). It also
explores two alternative "roadmaps": the Maoist proposal
for conflict resolution combined with constitutional
reform, and the possible longer-term plans underlying the
royal rhetoric of "protecting the 1990 Constitution".
While this report limits itself to the formal process of
constitutional change according to the interests and
positions of the major political power centres in Nepal,
two other significant factors not discussed in detail must
be borne in mind. They are related, as both draw attention
to the fact that the significance of constitutional change,
and the reality of any constitution's operation, depend on
dynamics more complex than those immediately
suggested by a straightforward structural account.
First, Nepal's emerging civil society has been active in
helping frame and develop the debate on constitutional
change.5 Academics, journalists and other commentators
have generated considerable literature on constitutional
issues and numerous conferences, workshops and
seminars have been devoted to discussing them.6 The
progress of such wider public debates and the ways in
which they could feed into future negotiations is a topic
worthy of separate consideration. Given the dynamics of
Nepal's conflict, it is unlikely civil society opinions will
at this stage be decisive in shaping developments but it
is important to work toward a negotiation process that
will be more inclusive and provide opportunities for a
range of voices to be heard.
Secondly, the relationships between political and socioeconomic structures are crucial to the functioning of
a constitutional settlement. Yet, these are never
straightforward, particularly in a society as complex
as Nepal's. Neighbouring India's experience since its
independence in 1947 shows how the formal structures
of a Westminster-style democracy have interacted with
existing networks of social and economic power, regional
interests, religious affiliations and traditional systems of
government. This, too, is a major - and largely unexplored
- area that deserves serious investigation. For example,
the way in which the top-level structural reforms of
1990 were simply laid over existing hierarchies, power
configurations and patronage networks without necessarily
displacing them is illustrative: Nepal's recent history
underlines the dangers of assuming that formal legal and
political arrangements will in themselves translate into
fundamental transformations across society. The ability of
existing hierarchies to replicate themselves under different
guises, and the resistance of powerful elites to change,
should not be underestimated.
"Civil society", a problematic term with many possible
significations, is loosely used here in the basic sense of nongovernmental and non-political structures and networks such
as academia, the media, NGO's, community associations and
the like.
6 There have been a multitude of initiatives, including the
innovative Plusmedium online debate, which resulted in the
publication of "Constitutional Dynamics of Impasse: Diagnosis
and Dialogue", Integrated Organisation Systems, Kathmandu,
2004. The increased use of web-based discussion has been a
notable development in Nepali political debate, although
patterns of access, participation (involving large numbers of
non-resident Nepalis) and medium (overwhelmingly English) in
themselves raise questions about the widening stratification of
Nepali society.
 Towards a Lasting Peace in Nepal: The Constitutional Issues
Crisis Group Asia Report N°99, 15 June 2005
Page 3
A.    The Rana and Shah Eras
Nepal emerged as a nation-state when Prithvi Narayan
Shah, king of the Gorkha area west of Kathmandu,
expanded his dominion in 1768 by conquering the
Kathmandu Valley. The Gorkha expansion ceased only
in 1816, when Nepal clashed unsuccessfully with the
British East India Company and was forced to accept a
treaty that reduced its territory.7 Although in theory the
monarchy retained absolute power, politics were
dominated by conflicting factions within the royal family
and a few elite families. Administrative power resided
with a small group of royal officials, the Bharadars.8
Even today, a small knot of noble families close to King
Gyanendra play a disproportionate political role as
unofficial royal advisers, bureaucrats or politicians.9
This is only one way in which feudal structures have
persisted since the advent of democracy.
In 1846 a member of a noble family, Jang Bahadur
Kunwar (who later adopted the title Rana), seized control
through massacres of rival notables. For more than 100
years, hereditary Rana prime ministers wielded absolute
power, rendering the Shah monarchy mere puppets.10
Jang Bahadur made the first effort to bring Nepal under
a uniform judicial system in 1854 with the promulgation
ofthe Muluki Ain, a nationwide legal code. In 1856 King
Surendra signed an order transferring all political power
to the Ranas.11 The Rana prime ministers maintained
strict control ofthe military, keeping the title of Supreme
Commander-in-Chief. Family members also monopolised
the army's higher ranks.12 The Ranas were sustained in
power primarily by the patronage of British India, which
valued the uninterrupted supply of Gurkha recruits and
only formally recognised Nepal's sovereignty in 1923.
Bhuwan Lai Joshi and Leo E. Rose, Democratic Innovations
in Nepal: A Case Study of Political Acculturation (Berkeley,
1966), pp. 23-26; Joanna J?faff-Czarnecka, "Vestiges and
Visions: Cultural Change in the Process of Nation-Building in
Nepal", in David N. Gellner, et al., Nationalism and Ethnicity
in a Hindu Kingdom: The Politics of Culture in Contemporary
Nepal (Amsterdam, 1997), p. 427.
8 Joshi and Rose, op. cit, pp. 23-26.
9 Crisis Group interview with former minister of law,
September 2004. For a depiction of the palace secretariat
and circles of influence around the monarch, see Jonathan
Gregson, Massacre at the Palace (New York, 2002).
10 Martin Hoftun, William Raeper and John Whelpton, People,
Politics & Ideology (Kathmandu, 1999) pp. 2-3.
11 Joshi and Rose, op. cit, p. 33.
12 Crisis Group interview with Dhruba Kumar, Tribhuvan
University, Kathmandu, 20 October 2004; Joshi and Rose,
op. cit, p. 36.
In January 1948 Rana Prime Minister Padma Shamsher
proclaimed Nepal's first written constitution in an effort
to accommodate pressure for a political opening while
preserving the family's political monopoly.13 The
constitution envisaged a council of ministers holding all
executive power but controlled by the prime minister
and a weak bicameral legislature exercising only limited
jurisdiction.14 It made scant reference to the king and did
not cite Hindu symbols as sources ofthe state's authority.
It was never implemented because the Rana regime
collapsed in 1950-1951, its end precipitated by
independent India's unwillingness to support continued
autocratic rule when its own princely states had been
brought ~ some forcibly ~ within the ambit of a
republican democracy.
B.    The First Democratic Interlude
In 1951 the Ranas finally ceded their absolute grip,
agreeing to share government with the monarch, King
Tribhuvan, and the Nepali Congress party, which
had developed in India. Tribhuvan promised a "fully
democratic political system functioning in accordance
with a constitution prepared by a Constituent Assembly"15
But the promised assembly never met. The second
constitution was the transitional Interim Government Act
of 1951, designed to last two years, but destined in fact to
last eight. Promulgated by Tribhuvan, it divided power
between the king and Council of Ministers, while reducing
the prime minister's authority. With power to proclaim
laws and veto legislation, the king gained substantially.16
This arrangement, however, proved unstable when
Tribhuvan declined to appoint a prime minister, repealed
constitutional provisions concerning the cabinet and
sought to rule directly with the aid of a royal council.17
The third constitution suffered a similar fate. Reneging
on his father's promise of a constitutional assembly,
King Mahendra announced the formation of a palace-
appointed, constitution-drafting commission. It prepared
a constitution, which was approved by the Council of
Ministers, then promulgated by the king on 12 February
1959, a week before the first parliamentary elections.18 It
balanced monarchical power and democratic institutions
Joshi and Rose, op. cit, pp. 63-64.
14 The Government of Nepal Act, 1948, reprinted in Ram
Kumar Dahal, Constitutional and Political Developments in
Nepal (Kathmandu, 2001), p. 286.
15 Joshi and Rose, op. cit, p. 91.
16 The Interim Government of Nepal Act, 1951, reprinted in
Dahal, op. cit, p. 306.
17 Joshi and Rose, op. cit, pp. 103-107.
18 Ibid, pp. 212-213, 282, 292.
 Towards a Lasting Peace in Nepal: The Constitutional Issues
Crisis Group Asia Report N°99, 15 June 2005
Page 4
uneasily, tilting heavily toward the former. It explicitly
vested executive power in the king, allowing him, "acting
in His discretion", to appoint the prime minister, dissolve
the cabinet, summon parliament, and reject legislation.19
The king, moreover, retained control of the army and
had extensive emergency and residual power, including
a vaguely worded "power to remove difficulties".20 Yet
even this proved too restrictive for Mahendra, who in
December 1960 had the Congress government, formed
through the 1959 elections, arrested and assumed
absolute political power.21
Drawing inspiration from the "guided" democracies
of Egypt, Pakistan and Indonesia, and from the Rana
constitution of 1948, Mahendra's 1962 constitution
instituted a four-tiered structure of "Panchayats" (councils),
from the village and town, through the district and zonal to
the national level.22 These were actually unrepresentative
extensions ofthe palace. By barring political parties and
vesting appointment for many Panchayat positions in the
central government, the system concentrated political
power while conveying a superficial impression of
devolution.23 In addition, the 1962 Constitution established
a series of "class organisations" for peasants, youth,
women and other groups, which sought to co-opt or preempt class-based social movements.24 Like the 1959
document, the Panchayat constitution was promulgated
by the king and vested in his hands all executive
authority including the ability to issue ordinances and
appoint the national Panchayat leaders, emergency
powers, and control ofthe army.25
19 Articles 10, 13(1), 17, 26 and 42 of the Constitution of
Kingdom of Nepal, 1959, reprinted in Dahal, op. cit, p. 326.
20 Articles 64 and 75-77 of the Constitution of Kingdom of
Nepal, 1959, ibid, pp. 367-370. The provision concerning
removal of difficulties is a precursor to Article 127 ofthe 1990
Constitution, used by King Gyanendra to dismiss and appoint
prime ministers of his choice since 4 October 2002.
21 Hoftun, Raeper and Whelpton, op. cit, pp. 70-72; Joshi
and Rose, op. cit, pp. 384-385.
22 Although King Mahendra justified the Panchayat system on
historical grounds, Panchayats were traditionally "instruments of
caste administration.. .or judicial bodies in the implementation
of Brahmanic social regulations", and largely ceased to function
during the Rana regime. Ibid, p. 397; Articles 31-34 ofthe
Constitution of Nepal, 1962, reprinted inDahal, op. cit. p. 371.
23 Richard Burghart, "The Political Culture of Panchayat
Democracy", in Michael Hutt (ed.), Nepal in the Nineties:
Versions of the past, visions of the future (Delhi, 1994), p.
10; Joshi and Rose, op. cit, p. 400.
24 Article 10A ofthe Constitution of Nepal, 1962, reprinted in
Dahal, op. cit, pp. 379,383-384; Hoftun, Raeper and Whelpton,
op. cit, p. 76.
25 Preamble and Articles 20, 39-40, 81A and 83 of the
Constitution of Nepal, 1962, reprinted in Dahal, op. cit, pp.
379, 383-384, 433-435.
Unlike its predecessors, the 1962 Constitution manifested
a distinct sectarian bias. Article 20 described the king as
an "adherent ofthe Aryan culture and Hindu religion".
Article 3 specified Nepal as a "Hindu" kingdom. Hindu
symbols, like the cow as national animal, were embedded
in the text and the provision that guaranteed religious
freedoms consistent with "traditions" and baned conversion
was understood as a way of protecting Hindu numbers.26
These references to Hindu norms were designed partly as
an effort to claw back legitimacy lost through abrogation
of popular rule in December 1960 and partly to reinforce
the historical conception of Nepal as the last refuge
of Hindu purity, in contrast to oft-colonised and
constitutionally secular India.
The Panchayat regime collapsed in 1990 when confronted
with a "people's movement" that organised street protests
in the Kathmandu Valley and major towns. The people's
movement was inspired in part by the Eastern European
transitions to democracy and provoked in part by
economic hardships caused by a March 1989 Indian trade
embargo.27 Under pressure from the Nepali Congress
party and the seven-party alliance ofthe United Left Front
(ULF), King Birendra first eliminated the ban on political
parties and then agreed to the dissolution of the national
Panchayat and constitutional reform. He did not acquiesce
easily to the latter but on recommendation ofthe Council
of Ministers, he created a nine-member Constitution
Recommendation Commission (CRC). Made up of
lawyers affiliated with the parties and the palace, and
led by a Supreme Court Justice, it prepared the draft
constitution and presented it to the Council of Ministers.
The CRC sought public opinion by visiting throughout
the country but most feedback concerned religious,
language and ethnic rights, topics that received only
ambiguous endorsement in the final draft.28 The closed
manner in which the 1990 Constitution was drafted was a
significant factor in the calls for constitutional change that
followed the Maoist insurgency.29
Articles 6 and 14 ofthe Constitution of Nepal, 1962, ibid,
pp. 379, 383-384.
27 See Hoftun, Raeper and Whelpton, op. cit, pp. 115-186;
Martin Hoftun, "The Dynamics and Chronology ofthe 1990
Revolution", in Hutt, Nepal in the Nineties, op. cit, p. 14.
28 Crisis Group interview with Nilamber Acharya, former law
minister, Kathmandu, 28 September 2004; Hutt, "Drafting the
1990 Constitution", op. cit, pp. 36-37.
29 Some commentators and politicians still make a strong case
against constitutional reform, arguing that the 1990 Constitution
was effectively endorsed by the participation of people and
parties in three general elections and constitutional bodies. The
most sustained and detailed presentation of this point of view is
 Towards a Lasting Peace in Nepal: The Constitutional Issues
Crisis Group Asia Report N°99, 15 June 2005
Page 5
The CRC operated with a clear, limited mandate to design
a constitutional monarchy with a parliamentary system.30
Throughout the drafting process, however, the king and
his allies, including the army, exerted pressure to slow
any shift toward democracy. Palace allies approached
members of the CRC privately and introduced an
alternative "palace draft" after the CRC had submitted
its work to the Council of Mnisters.31 According to a
CRC member, senior army officers approached him
directly and emphasised that the army should be under
the king's control, and sovereignty should also reside
with the monarch.32
On 9 November 1990, Birendra, "with a strained face",
announced the new constitution on television.33 On a
majority of issues, the democratic political parties had
resisted pressure to dilute the document's democratic
credentials. An extensive set of fundamental rights that
are relatively rare in other nations' constitutions, such as
privacy, was included.34 There was also a bicameral
legislature with a prime minister and cabinet selected on
the basis of lower-house majorities. The monarchy was
left mainly a symbolic role, with some residual authority
over the line of succession and palace expenditures.35
Ambiguity, however, remained about sovereignty and
military control. Although the king remained nominal
head ofthe army, operational control was transferred to
the National Defence Council, which had a democratically
elected majority.36 Nevertheless, the efforts of members
ofthe CRC affiliated with the ULF to change the army's
designation from "Royal" to "Nepalese" failed in the
face of military intransigence.37 The constitution's
allusion to sovereignty also captured the unresolved
tension between popular will and royal prerogative.38
The preamble, like those of 1959 and 1962, states that
the king, not the people, promulgated the document.
Nevertheless, Article 3 vests sovereignty in "the Nepalese
people". Throughout the 1990s, the palace exploited this
ambiguity to retain power in areas such as the appointment
of ambassadors. Such efforts were only weakly and
inconsistently resisted by the parties but the tension was
only resolved eleven years later, when Gyanendra
dismissed Prime Minister Deuba, instigating a series of
palace-appointed governments with no democratic
sanction. His seizure of absolute power in the royal coup
of February 2005 confirmed the rupture of the always
fragile contract between the palace and the democratic
probably Mukunda Regmi, Samvaidhanik vikas ra nepal
adhirajyako samvidhan 2047 (Kathmandu, 2005). Regmi also
demonstrates that the palace was not the sole source of
conservative influence in the constitution-making process: party
representatives themselves rejected various progressive
measures that had been in earlier drafts ofthe 1990 Constitution
30 Crisis Group interview with Biswanath Upadhyay, Chair of
1990 Constitution Recommendation Commission and former
Chief Justice ofthe Supreme Court, Kathmandu, 29 September
2004; Krishna Hachhethu, "Transition to Democracy in Nepal:
Negotiations behind Constitution Making, 1990", Contributions
to Nepalese Studies, vol. 21, no. 1, January 1994, p. 101.
31 Crisis Group interviews with members of Constitution
Recommendation Commission, Kathmandu, September
and October 2004; Hachhethu, "Transition to Democracy
inNepal", op. cit, p. 102.
32 Crisis Group interview, Kathmandu, September 2004;
Michael Hutt, "Drafting the 1990 Constitution", in Hutt, Nepal
in the Nineties, op. cit, p. 38.
33 Hachhethu, "Transition to Democracy in Nepal", op. cit,
p. 112.
34 Crisis Group interview with lawyer, Kathmandu, October
2004. Articles 11-23 of the 1990 Constitution of Nepal.
Article 22 announces a right to privacy, which has yet to be
invoked successfully in Nepali courts.
35 Crisis Group interview with former legal adviser to King
Birendra, 29 September 2004; see also Articles 27-33 of the
1990 Constitution of Nepal. Crisis Group interview with
Taranath Ranabhat Speaker of the House of Representatives,
6 October 2004.
36 Articles 118 and 119 of the 1990 Constitution of Nepal.
These and other relevant Articles are reproduced in Appendix
37 Crisis Group interview with member of CRC, Kathmandu,
15 October 2004.
38 Crisis Group interview with law professor, Lalitpur, 25
October 2004.
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Crisis Group Asia Report N°99, 15 June 2005
Page 6
a.    from dissolution to deuba's
Second Dismissal
No legislature has met since Prime Mnister Sher Bahadur
Deuba's decision in May 2002 to dissolve the House of
Representatives, the lower house of parliament, pending
fresh elections slated for November 2002. A prime minister
may dissolve parliament only "pursuant to the provisions of
[the] Constitution".39 The relevant constitutional provision
explains that upon dissolving the House of Representatives
on the prime minister's recommendation, the king
"shall... specify a date, to be within six months, for new
elections to the House of Representatives".40 Two
members, Hari Nepal of the Nepali Congress party and
Ganesh Pandit of the UML, appealed the dissolution to
the Supreme Court. Relying on a 1995 precedent, that
body upheld the dissolution.41
In October 2002 Prime Minister Deuba, faced with a
nationwide surge of Maoist violence, sought King
Gyanendra's endorsement for a one-year postponement
of elections. The king, describing the prime minister as
"incompetent" because of his inability to hold the
constitutionally-mandated elections, removed him on
4 October and replaced him with Lokendra Bahadur
Chand ofthe Rashtriya Prajatantra Party (RPP). Chand,
the first of three palace-appointed prime ministers, was
succeeded on 4 June 2003 by Surya Bahadur Thapa,
another RPP politician, who lasted until 7 May 2004.
Deuba was reinstalled on 2 June 2004 with a mandate to
initiate general elections by April 2005. He slowly
patched together a coalition government incorporating
his Congress (Democratic), the UML, RPP, Nepal
Sadbhavana Party and a royal representative.
In appointing three prime ministers in succession, the
king purportedly acted under the 1990 Constitution,
Article 127 of which states that should "any difficulty
aris[e] in connection with the implementation of [the]
Constitution", the king shall have power to "issue
necessary orders to remove such difficulty and such
orders shall be laid before Parliament".42 It is only by
virtue of Article 127 that prime ministers are appointed
and lawmaking, by orders from the palace, continues.
The constitution's continuing vitality thus hinged at this
39 Article 45(3) ofthe 1990 Constitution of Nepal.
40 Article 53(4) ofthe 1990 Constitution of Nepal.
41 Crisis Group interview with Yubaraj Sangroula, Dean of
Kathmandu School of Law, Kathmandu, and counsel for
Hari Nepal and Ganesh Pandit, 21 October 2004.
42 Article 127 ofthe 1990 Constitution of Nepal.
stage on whether the king's interpretation and use of
Article 127 was defensible.
Due to the controversial manner of their appointment,
Deuba and his cabinet lacked credibility. Other political
actors, including the Maoists, viewed the coalition as the
king's "puppet".43 Governing under the pervasive threat of
Article 127 dismissal deprived the Deuba government of
freedom to make independent policy choices. All
decisions had to be approved by the palace.44 The
government's fragility was acknowledged by donors, who
nevertheless insisted that gambling on its survival was the
best option in the wake of three failed administrations.45
To maintain minimal international legitimacy and insulate
the palace from responsibility for military and political
settlements, the king sought to maintain a semblance of
constitutionalism. This consideration initially appeared to
foreclose the possibility of direct rule.46
Opinions on the vitality ofthe 1990 Constitution varied
from it being at "a dead end"47 to it remaining a "living"
document with broad popular support,48 but its influence
could be detected only faintly in the mechanics of the
Deuba administration. The continuing vitality of the
1990 constitutional dispensation was hanging by a
thread that could hardly bear the heavy weight of King
Gyanendra's three replacements of prime ministers. The
consequent dearth of legitimacy was undermining the
government's ability to negotiate or effect political
change. The Deuba government had announced a
deadline of 13 January 2005 for the Maoists to come to
talks but there were no signs they would oblige, nor that
the threat of going ahead with parliamentary elections
without them could be carried out.
Some kind of political transition was unavoidable.
Information and Communications Minister Mohammed
43 Crisis Group interview with political leaders, Kathmandu
and Bhaktapur, October 2004. The Maoists declined to speak
with the Deuba government, demanding instead to talk
directly with its "masters". See Maoist press statement, 24
September 2004.
44 Crisis Group interview with senior Nepali journalist October
2004. A stark example ofthe Deuba government's ineffectiveness
was given on 4 October 2004, when the High-Level Peace
Committee sought public affirmation of palace support before
offering to negotiate with the Maoists. "King grants audience to
peace committee members",, 4 October 2004.
45 Crisis Group interviews with representatives of donor
governments, Kathmandu, October 2004.
46 Crisis Group interviews with Nepali lawyers and
businessmen, Kathmandu, October 2004.
47 Crisis Group interview with Sarita Giri, NSP, Kathmandu,
26 October 2004.
48 Crisis Group interview with Taranath Ranabhat, Speaker
ofthe House of Representatives, 6 October 2004.
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Page 7
Mohsin, a royal nominee, had warned of an imminent
authoritarian regime on 10 November 2004. Exactly a
month later the Rajparishad (Royal Council), demanded
a more active role for the monarch. Nevertheless,
Nepal's most influential allies believed they had
persuaded the king to strengthen the democratic centre
rather than take precipitate unilateral action.
B.    The Royal Coup of February 2005
On 1 February 2005 King Gyanendra used a royal
proclamation to dismiss the Deuba government, impose
a state of emergency and seize absolute power.49 The
royal coup had openly acknowledged parallels with
King Mahendra's dismissal ofthe elected government in
December 1960. Gyanendra also imitated his father in
following Pakistani precedents: while Mahendra had
drawn on General Ayub Khan's example, Gyanendra
tried to emulate General Pervez Musharraf. But the most
notable parallels and continuities were not with any
external example but with the indirect royal rule which
had been instituted since October 2002.
The coup was a dramatic — and, at least initially, effective
~ demonstration of royal will but it did little more than
formalise the earlier assumption of de facto power and
give more teeth to the state's repression of the political
mainstream. A prescient Nepali writer had observed
almost two months earlier, "By now everyone has heard
rumours that King Gyanendra is going to take over.
(Actually, the word on the streets is that he took over
on 4 October 2002, and will soon quit pretending
As in his first dismissal of Deuba, the king sought to
project an image of constitutional propriety by invoking
his Article 127 powers to "remove difficulties". But his
extensive use of that provision since October 2002 had
already found little support in the constitution's text or
expert legal opinion. The article is ambiguous, its
scope not clearly delimited. This is perhaps deliberate:
as a professor of Nepali law noted, its precise origins are
"shrouded in mystery", although clues can be gained from
its wording.51 The requirement for after-the-fact
parliamentary ratification ofthe king's actions is key. This
condition cannot be satisfied as long as the king appoints
administrations rather than allowing a democratic
parliament to meet, suggesting that the constitution's
49 See Crisis Group Report, Making a Bad Situation Worse, op.
cit. and Crisis Group Briefing, Responding to the Royal Coup,
op. cit.
50 Manjushree Thapa, "The word on the streets", Kathmandu
Post, 10 December 2004.
51 Crisis Group interview, Kathmandu, 25 October 2004.
framers hardly had in mind the kind of crisis Nepal has
faced since October 2002. The absence of a parliament,
moreover, does not mean the king has general powers.
The 1990 Constitution designates the Supreme Court as
the body authorised to settle "any constitutional or legal
question involved in any dispute of public interest or
concern" through its "extraordinary power to issue
necessary and appropriate orders to... settle the dispute".52
CRC members agree Article 127 does not include the
power to appoint and dismiss prime ministers after
dissolution of an elected parliament and failure to hold
elections. Still less does it entitle the monarch to
dismantle the democratic structure envisaged by the
constitution and rule without checks. According to the
CRC chairman, retired Justice Biswanath Upadhyay,
speaking before February 2005, "the king has
misinterpreted Article 127", which was modelled on
transitional elements in the Indian Constitution.53 "Article
127 was supposed to be a weak saving clause", explained
another member ofthe CRC. "In the case of an obstacle, a
recommendation is needed from the prime minister, and
[the measure] must be within the constitution".54
Unsurprisingly, those close to the king disagree. They
describe Article 127 as a broad grant of discretionary
power, unique in the constitution's text. Any blame for
constitutional breakdown, they argue, is due to Deuba's
premature dissolution of parliament in May 2002,55 Their
account, however, cannot explain Article 127's reference
to parliament, or how the king's expansive use of it can be
squared with the parliamentary edifice established in the
1990 Constitution. The imposition of a state of emergency
is similarly problematic: the king is indeed entitled by
Article 115(1) to proclaim a state of emergency "if a
grave crisis arises in regard to the sovereignty or integrity
of the Kingdom of Nepal or the security of any part
thereof, whether by war, external aggression, armed
rebellion or extreme economic disarray". But such a
52 Article 88 ofthe 1990 Constitution of Nepal; S.P.S. Dhungel
et al., Commentary on the Nepalese Constitution (Kathmandu,
1998), pp. 679-680. That commentary contends any order must
be "no more than necessary to remove" a difficulty and cannot
be incompatible with any other constitutional provision Neither
of these conditions is satisfied by the king's use of Article 127.
53 Crisis Group interview with former Justice Biswanath
Upadhyay, 29 September 2004.
54 Crisis Group interview with Daman Nath Dhungana, CRC
member, Kathmandu, 15 October 2004. Another CRC member
has agreed in print. Bharat Mohan Adhikari, "Constitutional
Assembly is not a panacea", in Mukti Rijal (ed.), Constitution &
Its Application (1990-2004 A.D.) (Kathmandu, 2004), p. 24. A
saving clause is an exception inserted into a constitution or
statute to preserve a residual power the document otherwise
55 Crisis Group interviews, Kathmandu, October 2004.
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Crisis Group Asia Report N°99, 15 June 2005
Page <
proclamation must be endorsed by a two-thirds majority
ofthe House of Representatives within three months
(115(2, 3)) or, ifthe lower house is dissolved, by the upper
house (115(6)).56 The lifting ofthe state of emergency on
30 April 2005 was welcomed as a possible first step
towards re-establishing democratic norms but the question
of whether constitutional rights are protected will still
depend on the behaviour ofthe administration and security
forces, and the willingness of the courts to hold them to
In most respects, the 1990 Constitution now exists more
as a rhetorical point of reference than as a functional
template for governance. No elected or judicial official
provides any check on executive excesses. Chief Justice
Hari Prasad Sharma has argued that as the judiciary is
incapable of judging the threat to national security, "it
should have respectful deference to executive wisdom".57
If the king's recent interview with Time magazine is an
indication, current "executive wisdom" does not appear
to have much respect for legal niceties: "No law abiding
citizen in Nepal should feel any pain. Yet those who do
not abide by the law, who do not accept the majority's
choice, they will feel pain".58
The constitutionally mandated Commission for the
Investigation of Abuse of Authority (CIAA)59 has been
sidelined by a newly established Royal Commission on
Corruption Control, which is being used to discredit
political leaders. Its legal authority and constitutional
legitimacy is dubious.60 But the Supreme Court refused
to consider a writ challenging the Commission's legality,
its registrar explaining that "no court has the authority to
question any decision made by the King under Article
31 ofthe Constitution".61 The chairman ofthe Nepal Bar
Association has concluded that, given the Commission's
The post-coup state of emergency also appeared to
contravene international law, a subject beyond the scope of
the present report. See Crisis Group Report, Dealing with a
Human Rights Crisis, op. cit. and "Nepal: The Rule of Law
Abandoned", International Commission of Jurists, 17 March
57 Speech delivered on 20 March 2005 at the 11th Conference
ofthe Chief Justices of Asia Pacific.
58 "It's a Question of Survival", interview with King Gyanendra,
Time Asia, 25 April 2005, available at
time/asia/2005/nepal/int_ganendra.html. The king further
clarified his views on the rale of law: "Perseverance, honesty
and moral values must be part and parcel of our daily lives.
A little law is required".
59 The CIAA is established by Articles 97 and 98 ofthe 1990
60 "RCCC is an unconstitutional body: Koirala",,
20 April 2005.
61 "Writ challenging royal commission rejected",, 4 May 2005.
patent unconstitutionality, a legal challenge is futile: "It
is completely a political battle, not a legal one".62 The
balanced governance structures ofthe 1990 Constitution
are effectively defunct.
In key respects, the king appears to have disregarded or
discarded the 1990 Constitution in both letter and spirit.
But as he relies on the argument that he has acted to
preserve it, the rhetoric of protecting the constitution
has, paradoxically, gained all the more significance.
Defending the 1990 settlement also gives the impression
of safeguarding the legacy of King Birendra, whose
widespread popularity was only heightened by the
palace massacre of 2001 in which he died. This public
commitment thus allows Gyanendra to strengthen his
position by linking his policies to the memory of his
brother's achievements. The post-coup royalist position
may, therefore, become all the more opposed to
constitutional change in the short term. And quite apart
from rhetorical legitimacy, the current constitution, with
all its ambiguities, has served the palace well while
guarding against the threat of open discussion about the
Nevertheless, there are many indications that the king's
true goal is a return to Panchayat-style governance.
Every positive reference to multi-party democracy in the
1 February proclamation was qualified with an adjective
such as "meaningful", "effective" or "successful".63 Talk
of popular representation was conspicuously not linked
to political party representation. Subsequently, the king
has more explicitly indicated that parties are only an
optional part of democracy: "Look, democracy is here to
stay. No one will be able to get rid of it. And the institution
ofthe monarchy will see to it that no one can get rid of
it. But the parties are a vehicle in that progress, and you
can always change vehicles. The people have to decide
what vehicle they want".64 Further comments likewise
hinted at a democratic system unmediated by parties:
"We want to see mass participation in the democratic
set-up, where the masses are given the opportunity to have
a say in their own welfare. We want to see transparency,
openness and communication flourish. The people must
be their own masters".65
"Legal debate on RCCC meaningless", Kathmandu Post,
24 May 2005.
63 Proclamation to the Nation from His Majesty King
Gyanendra Bir Bikram Shah Dev, 1 February 2005.
64 "It's a Question of Survival", interview with King Gyanendra,
op. cit.
65 Ibid.
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Indeed, the king seems satisfied that the people can have
their say in national affairs through him and that their
representation — through unspecified channels — is
already quite sufficient: "As far as being in touch with the
people, do people's voices reach me? Are their aspirations
being fully represented? I think we have developed the
correct mechanisms and representatives to get that across
to us. I am fully satisfied that I am hearing the voice ofthe
people".66 The king has also offered insights into his
"values and ideals". These are focused on economic
development and make no mention of democracy: "Peace
must reign. Then we can get on with the business of
advancement of the system, of economics, of industries,
of the wise use of our natural resources, and this will
bring us to prosperity. I am also confident that all our
friends will understand and support us in the pursuit of
these values and ideals".67 As a senior envoy in
Kathmandu concludes, "It's pretty clear that whatever the
king means by 'democracy' is pretty different from what
we would understand by the term" ,68
Concrete actions taken by the royal government have
reinforced suspicions that the administration derives its
inspiration from the heyday of King Mahendra. For
example, Education Minister Radha Krishna Mainali
has announced the development of a new "nationalist"
school curriculum. Nepal's textbooks have never been
noted for lack of national sentiment but Mainali has
reportedly engaged in a crash program to roll out the
new curriculum in the higher secondary grades as soon
as possible.69 On 11 April 2005 the king appointed
five regional and fourteen zonal administrators,70 an
unmistakeable, and no doubt deliberate, revival of
Panchayat administrative structures. Under the Panchayat,
the zonal commissioner (anchaladish) was a powerful
and feared official who reported directly to the palace.
The new system gives the administrator a different title
(anchal prashashak) but embodies the same substance.
In the words of a Nepali coalition of human rights bodies,
"The state is systematically dismantling the structures of
democratic polity and constitutional bodies".71 British
Ambassador Keith Bloomfield adds: "Some ofthe people
the king has surrounded himself with do not encourage us
to believe him when he says he's interested in returning
to democracy".72
The composition ofthe royal "inner circle" also adds to
the impression of Panchayat revival. As Kul Chandra
Gautam has observed, "In plotting his coup, the King
had reached out and enlisted the support from some ofthe
old-guards from the Panchayat era of his father's absolute
rule. Many of these old political cronies fill the King's
cabinet and serve as his trusted advisers".73 This is not
lost on the public, nor on the many Panchayat politicians
who entered democratic politics and still nurse grudges
against certain hardliners. "The King seems to have
miscalculated the utility of these old loyalists' advice
and support", says Gautam. "In one extreme case, a
widely despised personality who had literally been
chased out of the country during the heyday of the
democratic people's movement in 1990 has resurfaced in
Kathmandu in the King's inner circle of advisers".74 First
Vice Chairman ofthe Council of Ministers Peter Giri has
done little to reassure doubters with comments such as, "I
don't believe in democracy; the king does".75
Nevertheless, some features of an emerging royal roadmap,
and longer-term options, are becoming discernible. First,
the palace is determined to bring the security situation
under some degree of control but may see advantages
in continued instability. The intensified conflict across
the country beyond the Kathmandu Valley has been
accompanied by a cooling of rhetoric. In place of upbeat
talk of a quick victory, the king is now preparing for a
long haul: "It's not a question of winning or not winning.
It's a question of taming".76 Conflict-induced disarray was
in fact an asset to the palace as long as it could be blamed
on ineffective political parties. That is no longer the case
but continuing rural insecurity, perhaps further complicated
by the activities of ethnic fronts and village militias, could
be used to justify extending the period of tight autocratic
Secondly, some sort of elections will be necessary to
provide continuing legitimacy for royal rule. Initially, the
call for municipal polls serves three purposes: (i) it puts
pressure on the political parties to decide on a response
and ensure there is a solid common position; (ii) it offers
the international community a way of normalising the
situation and reducing pressure on the king; and (iii) it
66 Ibid.
67 Ibid.
68 Crisis Group interview, Kathmandu, May 2005.
69 Crisis Group interview with journalists, Kathmandu, 26
March 2005.
70 "King appoints regional and zonal administrators", 11 April 2005.
71 "Human Rights Community Resists Authoritarian Regime",
press statement of the National Coalition of Human Rights
Defenders, Kathmandu, 5 June 2005.
Interview with British Ambassador Keith Bloomfield,
Nepali Times, 18 March 2005.
73 Kul Chandra Gautam, "Mistakes, Miscalculations & Middle
Ground",, 4 April 2005.
74 Ibid.
75 Quoted by Narayan Wagle, Kantipur, 8 April 2005 and
translated in Nepali Times, 15 April 2005.
76 "It's a Question of Survival", interview with King Gyanendra,
Time Asia, op. cit.
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Page 10
may help to attract the support of royalist politicians who
have so far been conspicuously unenthusiastic about the
royal takeover.
The government is pressuring the parties to participate and
insisting the polls will be free and fair. "The government
expects cooperation and participation of the political
parties in the elections", stated Minister Tanka Dhakal.
"We request all the political parties to stay prepared for
the elections".77 Local elections and "decentralisation"
plans offer the king a veneer of democratic respectability.
This was the route adopted by Mahendra and has been the
tried and tested method of successive Pakistani military
dictators, including Musharraf.78 The calculation that the
call for local polls will split the diplomatic community is
already proving justified: U.S. and British diplomats have
been urging the parties to view this as a positive step
towards incremental re-establishment of democracy and
take part. Other diplomats are more sceptical and share
the parties' initial response that the call for elections is
merely a cynical subterfuge.79 Some who have to support
the election call in public are scathing in private: "The
parties insist this is a ploy by the king, and they certainly
seem to be justified in that", a senior diplomat said.80 A
widening rift in the international response to the royal
coup is likely.
Finally, the elections call may be the best way for the king
to expand his support among royalist politicians. Most big
names from the Panchayat period and the royalist RPP
have maintained silence or ambivalence on the 1
February takeover.81 There is palpable doubt among
even the staunchest palace supporters that the king's
strategy is viable and worth investing in. Many hardline
Panchayat leaders opted for a quiet retirement after 1990
and will think hard before committing themselves to
public involvement in the new royalist administration.
Moreover, Panchayat politicians who entered the multiparty system have become accustomed to, and adept at,
"Govt, pledges free and fair municipal polls",,
21 April 2005.
78 See Crisis Group Asia Report N°40, Pakistan: Transition to
Democracy?, 3 October 2002 and Crisis Group Asia Report
N°77, Devolution in Pakistan: Reform or Regression?, 22
March 2004.
79 Crisis Group interviews with Kathmandu-based diplomats,
journalists and political activists, April 2005.
80 Crisis group interview, Kathmandu, May 2005.
81 For example, RPP Chairman Pashupati Shamsher Rana's
response to the events of 1 February is that "the alternative
was to change the Prime Minister or to try another multiparty coalition... .The constitution visualises an emergency
under multi-party norms, not without those norms. It has
changed all equations. If a compromise is not brought about,
the consequences are inconceivable", in "Was February 1
necessary?",, 12 May 2005.
working within the democratic set-up. They have
developed grass-roots links, and many are unconvinced
that the palace strategy will displace now established
habits of party representation and loyalty.
As a party-less and palace-centred system, Panchayat
politics revolved around personal intrigue and rivalries.
For all the king's justified complaints about petty party
bickering, the royalist RPP has been the most consistently
fractious democratic party. While its leader refuses to back
the royal coup, other prominent activists are urging
support and threatening yet another split if their views go
unheeded.82 There is also pressure from activists who are
tempted by the prospect of appointment to influential
positions on local bodies. There is bad blood between
senior royalists, with grudges dating back decades. This is
partly responsible for the sidelining ofthe more competent
and experienced monarchists. A ministerial reshuffle
combined with the temptation of polls and elected office
may go some way towards consolidating the palace's
political base by encouraging supportive politicians to
take a more active role.
If the king is successful in building a solid base for
palace rule, questions of constitutional reform along
royalist lines will slowly but surely find their way onto a
more public agenda.83 In late 2004 senior mainstream
politicians believed the king had probably already
drafted a new constitution to spring on the country
but this seems an unlikely option.84 The temptation to
institutionalise a more active role for the monarch
may grow but any proposed reforms are likely to be
articulated by sympathetic politicians rather than attributed
directly to the palace. Royal plans for constitutional
change might include three distinct models or, more
likely, a combination of approaches:
□ parliamentary elections leading to amendment:
if municipal polls are held, the logical next step
would be some form of general election which,
with or without mainstream party participation,
might return a largely royalist legislature. The
Article 116 route for amendment could then be
pursued and the 1990 settlement could be modified
in a fashion that reinforced royal commitment
to constitutional norms;
□ a constitutional commission: if there is no progress
towards national elections, the establishment of a
special commission is a possibility. Its membership
82 »ppp dissident faction warns of schism in party",, 5 June 2005.
83 The possible options outlined here are drawn from numerous
Crisis Group interviews with royalists, other politicians,
journalists and analysts in Kathmandu, February to April 2005.
84 Crisis Group interviews, 13-15 December 2004.
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Crisis Group Asia Report N°99, 15 June 2005
Page 11
could be carefully selected to represent a range of
interests while remaining vulnerable to concerted
palace and military pressure; and
□ a referendum: palace sources are already talking of
a referendum as a possibility. The power to define
its terms would give the palace a strong hand. If
the electorate's options were reduced to choosing
between "terrorism" or "democracy under an
active monarch", the king might secure some form
of mandate for amending the constitution to reflect
a more active approach.
These remain for now hypothetical options. As a senior
journalist commented on palace thinking, "it's a khichadi
model",85 a reference to a rice and lentil hotch-potch that
perhaps most accurately describes the royal strategy
to date. The palace has yet to give a convincing picture
of its agenda, and the public statements of the king
and his ministers leave an impression of some
confusion. The palace may develop a roadmap that
goes beyond consolidating royal power to addressing
more of the fundamental issues outlined below. But if
such a roadmap is gradually elaborated, it will be
subject to the same questions of process, inclusion,
legitimacy and durability that apply to all other models.
It is doubtful that either continued palace rule under the
current circumstances or selective, royally-sponsored
amendments to the constitution will provide answers to
Nepal's deep, underlying problem.
D.    The Need for a Democratic Way
On the Maoist side, willingness to re-enter democratic
politics will hinge in part on the perceived costs and
benefits.86 A government subject to royal fiat with a fig-
leaf of constitutional legitimacy is not attractive to a far-
left party like the Communist Party of Nepal (Maoist)87
but anecdotal and polling data suggest the Maoists
would command a respectable vote in a democratic
election.88 Because support for Maoist goals apparently
Crisis Group interview, 20 April 2005.
86 Crisis Group interview with international conflict specialist
Kathmandu, 25 October 2004.
87 The Communist Party of Nepal (Maoist) is abbreviated to
CPN(M). The Maoist movement consists of the party, the
"people's liberation army" and the "united front". For the
purposes of this report, however, "the CPN(M)" and "the
Maoists" may be understood as loose equivalents.
88 One analyst of July 2004 polling data suggested that the
CPN(M) would obtain at least 8 per cent of the vote. Crisis
Group interview, Kathmandu, October 2004. Another detailed
field survey ofthe Maoist movement predicted that it might win
about 15 per cent. Robert Gersony, "Sowing the Wind: History
exceeds support for their violent methods, they could
benefit if they were to re-enter democratic politics and
renounce the use of violence.89 Yet this depends on the
existence of democratic politics. If governments and
cabinets remain at the king's pleasure, limited CPN(M)
options will be dependent on the king's goodwill. In
short, without a restoration of the democratic process,
the Maoists have little reason to negotiate, unless to
weaken the mainstream parties further by reaching a
temporary deal with the palace.
The king and the Maoists cannot negotiate a stable
solution without the parties' involvement. The latter,
notwithstanding the involvement of a handful in the
Deuba administration, have been systematically
marginalised since October 2002 and directly repressed
since February 2005. Nevertheless, they retain considerable
support across the country. Recent polling demonstrates
that, despite a certain scepticism, about one third of
Nepalis retain affiliations with them.90 Any attempt by
the Maoists and the king to lock the mainstream parties
permanently out of power would lead to growing
instability. Moreover, a solution reached by negotiation
between Nepal's two non-democratic power centres
would be unlikely to reflect the interests of most of the
The country's long-term interests are also most likely to
be served by a return to democratic politics. Despite
their flaws, it is the political parties who can best
mediate popular interests, not the unelected monarchy or
Maoists. Although the parties now tend to be
unrepresentative of Nepal's diversity, they are the best
hope for incorporating that diversity into democratic
politics. Recent polls indicate that around 60 per cent of
Nepalis still consider democracy under a constitutional
monarchy the best form of government.91
and Dynamics of the Maoist Revolt in Nepal's Rapti Hills",
Report submitted to Mercy Corps International, October 2003,
p. 79, available at
89 Greenberg Quinlan Rosner Research Inc., "Faith in
Democracy Endures, in Spite of Disappointments: Report
on the Baseline Survey and Focus Groups", Washington,
16 August 2004, p. 8.
90 A recent nationwide survey concluded that more than 28 per
cent were not afraid to say they were close to a mainstream
party, in spite of Maoist violence and intimidation. Crisis
Group interview with Krishna Hachhethu, Kathmandu, 4
October 2004. Another found 41 per cent willing to affiliate
with a mainstream party. Greenberg Quinlan Rosner Research
Inc., op. cit, p. 10. The methodology of this poll has not been
91 A July 2004 nationwide poll found that 60 per cent of
respondents favour a democracy with a constitutional
monarchy, 17 per cent democracy without a monarchy; 9 per
cent a return to the Panchayat system, and 2 per cent an
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Any structured debate on constitutional reform will have
to encompass a multitude of substantive issues, on each
of which a wide range of positions exists, some more
easily reconciled than others. The following sections
outline a few of the central topics, and the arguments
and policy positions that will shape the debate.
The 1990 Constitution attempts to create a constitutional
monarchy without substantive political power. The king
is part of both the executive and the legislature92 but
his roles are formally constrained. Except in limited
circumstances, he is to act only "upon the recommendation
and advice, and with the consent of the Council of
Ministers", as submitted through the prime minister.93
The king is to appoint an individual with a parliamentary
majority as prime minister, although there seems to
be some discretion when more than one coalition is
conceivable. He must assent to new legislation, and on
the prime minister's recommendation, he also nominates
one-sixth of the National Assembly (upper house), and
appoints the army's commander-in-chief94
By contrast, "there must be a reference to an exclusive
power [in the constitution] for the king to have a
privilege".95 Under this interpretation, the king retains
independent authority in matters of royal succession and
royal expenditure.96 Article 127, discussed above, was
further included to allow the king to smooth disruptions
in the democratic system. The king can also issue
ordinances with "the same force and effect as an Act"
when parliament is not in session.97 Moreover, the
palace is sheltered from criticism by broad judicial
absolute monarchy. Greenberg Quinlan Rosner Research
Inc., op. cit, p. 6. A separate survey conducted in November
and December 2004 found 53.4 per cent in favour of a
"fully constitutional monarchy" with 5.5 per cent in favour
of an absolute monarchy and 4.9 per cent of a republic, "Nepal:
Contemporary Situation", Sudhindra Sharma and Pawan
Kumar Sen, The Asia Foundation/Interdisciplinary Analysts,
Kathmandu, 2005, p. 30.
92 Articles 35(1) and 44 ofthe 1990 Constitution of Nepal.
93 Article 35(2) ofthe 1990 Constitution of Nepal.
94 Articles 36, 4, 46(1), 69 and 119(1) ofthe 1990 Constitution
of Nepal.
95 Crisis Group interview with Nilamber Acharya, former
Law Minister, Kathmandu, 28 September 2004.
96 Articles 28 and 29 ofthe 1990 Constitution of Nepal.
97 Article 72 ofthe 1990 Constitution of Nepal.
immunity and a restriction on discussion ofthe royal
family in parliament.98
Both Birendra and Gyanendra have leveraged these
limited constitutional opportunities with an informal,
extra-legal support base in the army and traditionally
powerful families. Eliminating constitutionally-granted
royal prerogatives could not in itself establish a functioning
constitutional monarchy. Legal change alone will not erase
the familial connections and ties of caste and patronage
which shape the distribution of power in Nepal, as the
experience ofthe 1990 CRC suggests. A transition to a
genuine constitutional monarchy would require more
fundamental change but Nepal's history suggests such a
shift will prove difficult.99
In light of these obstacles, and in particular following the
king's power-grabs in October 2002 and February 2005, it
is unsurprising that some are sceptical ofthe possibilities
of retaining both a monarchy and a democracy.100 Nepal
has twice obtained a democratic constitution with
the king's active involvement in the drafting. On both
occasions, the palace was instrumental in undermining
democratic mechanisms and restoring royal authority.101
The Maoists' republican stance had until 2002 been a
clear point of difference with the mainstream parties,
which have traditionally supported a constitutional
monarchy. But growing calls for a revision of this policy -
most vocally from republican students within the Congress
and UML — have been bolstered by more cautious party
leaders' suspicions ofthe king's intentions.
"The door for unity and national reconciliation has been
blocked now", says Girija Prasad Koirala. "The future of
[the] monarchy is at stake after ending the consensus of
[the] 1990 people's movement". Madhav Nepal has
similarly warned that "if the king doesn't need political
parties and their leaders, we will also review our policy
[towards the monarchy]".102 Reference to constitutional
monarchy is conspicuously absent from post-February
2005 mainstream political rhetoric. Instead, even
moderate political leaders are now demanding that
the king choose between complete democracy or
98 Articles 31 and 56 ofthe 1990 Constitution of Nepal.
99 Crisis Group interview, Kirtipur, October 2004.
100 Crisis Group interviews, Kathmandu, Lalitpur and Kirtipur,
October 2004.
101 In a poll of Kathmandu Valley residents, almost half said
the king was in charge of the nation. Hari Sharma, "What
Kathmandu Valley thinks", Nepali Times, 15-21 October
2004, p. 4.
102 "Policy towards monarchy may be reviewed: leaders",, 5 May 2005.
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Moreover, the institution of a monarchy generates potential
governance problems, especially for an ethnically
fragmented society. It operates in some ways like the
presidential system, which has been criticised as a model
for young democracies.103 The palace is an alternative,
destabilising power centre claiming to "represent the
nation", notwithstanding the democratic pedigree of the
parliament.104 By providing an avenue for appeal for
unsuccessful factions and minorities, it competes with
parliament. No system has been identified yet to resolve
that instability. Moreover, the monarchy is not an
institution that naturally represents a variety of ethnic
groups, despite the self-serving rhetoric of palace allies.
To the contrary, monarchical rule is associated with
the continuing control of a narrow elite that has been
entrenched historically. Even with broader representation
of ethnic minorities in democratic institutions, it may
give deeply resented advantage to traditional ethnic
An argument frequently made in favour ofthe continuation
ofthe monarchy in Nepal is that it provides an element
of stability in a country which lacks the institutional
ballast of a mature parliamentary system, judiciary and
bureaucracy. But this depends on the monarch refraining
from destabilising actions and remaining aloof from
day-to-day politics. The widespread sense that the king
himself has become a serious source of instability is one
reason for the strong international response to the royal
coup. As a prominent Indian security analyst observes,
"the reason for New Delhi's sustained pressure on the
king is that almost everyone now sees him as part ofthe
problem rather than part ofthe solution".105
Meanwhile the stability ofthe monarchy itself is dependent
on a smooth transition between kings, a condition that the
June 2001 royal massacre and its aftermath have shown
to be far from guaranteed. The nature of a hereditary
kingship is such that it leaves the country to be ruled by
heirs whose political leanings and capacities may vary
A constitution that limits royal power appears to be the
goal of most Nepali citizens,106 but the exigencies ofthe
political crisis caused by the insurgency may hinder
development of a stable constitutional monarchy that can
co-exist with democracy. To break the political deadlock
A classic critique is Juan J. Linz, "The Perils of
Presidentialism", in Larry Diamond and Marc Plattner
(eds.), The Global Resurgence of Democracy (Baltimore,
1993), p. 108.
104 Crisis Group interview with former Panchayat politician,
7 October 2004.
105 Crisis Group interview, New Delhi, 6 May 2005.
106 See polling data infn. 91 above.
and move forward in the peace process, the king should
ideally be on board. But he is unlikely to accept any
transitional process that risks diluting his power
significantly, as would be necessary for long-term
democratic stability. The short-term imperative of a
transition to a more democratic government in order to
give life to the moribund peace process may, therefore,
limit opportunities for long-term reform ofthe monarchy.
This could be addressed by providing a revised or new
constitutional document with a broad amendment clause
that would facilitate periodic re-adjustments to the
balance of power. If even this proves too much for the
palace to accept, the efforts already underway to broker
peace between the parties and the Maoists regardless of
the king's position will probably gain more momentum.
b.    social and political exclusion of
Ethnic and Caste Groups
Though Nepal's population of approximately 23
million encompasses a tremendous ethnic, linguistic
and religious diversity, administrative and political
power has been held by a small fraction, principally
Brahmans, Chhetris and Newars.107 Dalits — those at
the very bottom of the caste system ~ face particular
cultural and social stigmatisation, often even a bar to
education and basic resources like water from public
taps and public accommodations.108
The constitution contains scant recognition of Nepal's
diversity or its history of ethnic, caste and gender
inequity.109 Both the chairman of the CRC, Biswanath
Upadhyay, and its most prominent communist member,
Nirmal Lama, opposed special provisions for ethnic
groups, citing fears of communalism and invoking a desire
for "national unity".110 Although Nepal is described as
a "multiethnic" and "multilingual" kingdom, the term
"multireligious" is absent. Rather, the monarchy is
Crisis Group interviews with ethnic leaders, Kathmandu and
Lalitpur, October 2004. In 1999, the elite high-caste Hindu groups
of Brahmans and Chhetris held 66.6 per cent of "higher positions
of politics, judiciary, bureaucracy, and civil society". Newars
had 13.2 per cent and dalits none. Harka Gurung, "Affirmative
Action in Nepalese Context", p. 3, unpublished paper delivered
at conference on affirmative action and electoral reform,
Kathmandu. A comprehensive description of Nepal's exclusive
polity and prescription for inclusive political institutions is
presented in Mahendra Lawoti, Towards a Democratic Nepal
(Kathmandu/New Delhi, 2005).
108 Crisis Group interviews with international donor agency
staff and dalit activists, October 2004.
109 Crisis Group interviews with ethnic activists, Kathmandu,
September, October 2004.
110 S.P.S. Dhungel et al., Commentary on the Nepalese
Constitution (Kathmandu, 1998), p. 39.
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"Hindu" by definition.111 Nepali is the "official" language,
with other indigenous tongues designated only as
"national" languages.112 Citizenship by naturalisation is
contingent on learning Nepali.113
The 1990 Constitution disfavours assertions of ethnic
identity. Despite guaranteeing the freedom to organise
political parties, it does not allow the registration of
parties organised "on the basis of religion, caste, tribe,
language or sex".114 However, the restriction on ethnic
parties has been applied inconsistently. In 1991, the
Mongol National Organisation was barred from the
polls, but the Nepal Rashtriya Jan Mukti Morcha,
which represented hill ethnic groups, and the Tarai
regionalist Nepal Sadbhavana Party (NSP) were
allowed to register and contest the election.115 In 1999,
the Election Commission allowed Shiv Sena Nepal, a
party with clear Hindu sectarian affiliations, to register
and contest the election.116
The constitution's equality provision permits, but does not
guarantee, compensatory measures for "economically,
socially or educationally backward" classes.117 Post-1990
governments have mostly failed to address minorities'
grievances, despite campaigns by a multitude of new
pressure groups. Government action has involved a token
reservation policy118 and creation of commissions, like the
National Foundation for the Development of Indigenous
Nationalities and the National Dalit Commission.119 The
Supreme Court ruled efforts to allow the administrative
use of languages other than Nepali illegal and invalidated
attempts to loosen the criteria for citizenship.120
111 Article 4 ofthe 1990 Constitution of Nepal. The national
colour, anthem and symbol all reflect Hindu symbolism.
Article 7 ofthe 1990 Constitution of Nepal.
112 Article 7 ofthe 1990 Constitution of Nepal.
113 Article 9(4)(a) ofthe 1990 Constitution of Nepal.
114 Article 113(3) ofthe 1990 Constitution of Nepal.
115 John Whelpton, "The General Elections of May 1991", in
Hutt, Nepal in the Nineties, op. cit, p. 50.
116 Crisis Group interview with local government specialist
Lalitpur, 13 October 2003. Shiv Sena obtained 0.02 per cent of
votes and no seats. "The Fourth Parliamentary Election: A
Study ofthe Evolving Democratic Process in Nepal", Institute
for Integrated Development Studies (Kathmandu, 2000), p. 45.
117 Article 11(3) ofthe 1990 Constitution of Nepal.
118 See fn. 203 for a brief definition of "reservation" in this
119 Both commissions were formed in 2002. Sujeet Kara, "Nepali
dalits and reservation", The Kathmandu Post, 11 August 2004.
120 It reasoned that Article 9 of the constitution provides
immutable and exclusive citizenship criteria. Crisis Group
interview with political analyst, Kathmandu, 30 September
2004; Balkrishna Neupane v. His Majesty's Government,
Cabinet Secretariat and others, reprinted in Ram Krishna
The Maoist conflict created an unexpected opportunity for
minorities and women to press for meaningful inclusion.
The Nepal Federation of Indigenous Nationalities (NEFIN)
has called for constitutional changes, including
proportional representation, restructuring ofthe state
(federalism or provincial autonomy), reservations and
language rights.121 Perhaps hoping to undercut Maoist
claims to speak on behalf of a dispossessed majority,
almost all political parties and the palace have endorsed
some compensatory and remedial measures, like regional
autonomy, electoral reform and reservations. The August
2003 position paper issued by the Thapa government in
the context of negotiations with the Maoists, for example,
endorsed proportional representation, inclusion of
minorities in the upper house of parliament, education and
employment reservations, and reserved seats for women.122
The UML has long had minority rights, including
reservations and language rights, in its manifesto.123
Congress, which disfavours electoral reform and
federalism, would endorse a reservations system.124
Although the designation of the state as Hindu and the
bar on conversion are deeply unpopular among janajatis
(ethnic minorities) and dalits, the mainstream parties other
than the UML, are unwilling to challenge this aspect of
monarchical legitimacy.125 Notwithstanding this loose and
partial consensus, complex technical issues pertaining to
implementation need to be resolved with compensatory
and related reform measures.
C.    Sub-National Governance
Dispersion of representation, policy-making authority
and fiscal responsibility among sub-national units, such
as provinces, zones or districts, is one mechanism for
Timalsina (ed.), Some Landmark Decisions ofthe Supreme
Court of Nepal (Kathmandu. 2003), p. 50.
121 Crisis Group interview with Om Gurung, Chairman of
Nefin, Lalitpur, 20 October 2004; "Draft Indigenous
Peoples/Nationalities Kathmandu Declaration ~ 2004",
Kathmandu, 9 August 2004.
122 "Highlights of proposals of forward-looking reforms
proposed by His Majesty's Government of Nepal", 17 August
2003, pp. 1-2.
123 Krishna Hachhethu, "Nepal: Party Manifesto and Election",
Nepali Journal of Contemporary Studies, vol. fff, no. 1, March
2003, p. 34. The most recent UML manifesto also commits the
party to remedying social exclusion, albeit in vaguer terms.
"The Proposal for the Resolution of National Problem", Central
Committee ofthe UML, January 2004, pp. 9-11.
124 Crisis Group interview with Ram Sharan Mahat, Congress
Central Working Committee member, Kathmandu, 5 October
125 Crisis Group interviews with dalit activists, Kathmandu
and Lalitpur, October 2004. The UML supports a secular state.
Central Committee ofthe UML, op. cit, p. 9.
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Page 15
breaking the political monopoly of the Kathmandu-
based elite. This could be done in various ways. An
important distinction can be drawn between systems in
which each constituent unit has symmetrical powers,
like Switzerland and Australia, and systems in which
certain units have heightened autonomy, like Quebec in
Canada.126 Another critical question concerns the criteria
for boundary demarcation, which can include ethnicity,
language and administrative convenience.127 A third
consideration is the precise allocation of responsibilities
~ fiscal and policy-making autonomy and representation
~ between centre and region, and the extent of over-ride
power that the centre might have.
The debate on regional autonomy and federal structures is
undeveloped, with little attention yet on the practicalities
of instituting novel, complex and expensive governmental
institutions across Nepal's challenging terrain. One
prominent idea involves "ethnic homelands", and the
Maoists' "autonomous governments" have been
demarcated along supposedly ethnic lines. This notion,
although a response to valid concerns about historical
injustice and continuing ethnic subordination, could
generate new conflict. If radical ethnic demands shape
mainstream janajati politics, they would almost certainly
trigger deep unease, if not violent pre-emptive action, by
the dominant ethnic and caste groups. Territorial division
along ethnic lines, moreover, risks consolidating new
injustice, rather than more fairly allocating political power.
A system of sub-national units with substantial,
constitutionally guaranteed taxation, spending and public
policy powers could, however, be achieved without using
explicitly ethnic lines. The committee that drafted the
1990 Constitution considered a zonal administrative
system but was discouraged by Prime Minister Krishna
Bhattarai.128 Elections within sub-national units,
particularly with proportional electoral mechanisms,
would give communities that previously lacked
representation in Kathmandu more forums in which to
compete without entrenching ethnic and caste differences
or favouring territorially concentrated groups over
geographically dispersed ones.
Many such divisions are possible. An analyst notes that
the Panchayat-era system — five zones running north to
south to match geography — could be applied in a new
federalism.129 However, India's post-independence
experience is also instructive: despite Nehru's determined
opposition, the somewhat arbitrarily demarcated provinces
inherited from British rule were largely redrawn along
linguistic lines in 1959, following mass popular campaigns.
The process of division of larger states into smaller, more
linguistically or culturally homogeneous units continued
throughout the rest ofthe twentieth century. This continual
revision has at least demonstrated the value of the
Indian Constitution's flexibility and successive central
governments' willingness to bow to political pressure and
consider revising arrangements in the light of changing
Whatever model is chosen must match Nepal's limited
administrative capacities and fiscal realities. A system that
could not deliver services would hardly further social
inclusion. Any new government would risk becoming a
new vehicle for corruption and patronage.130 Moreover,
a sub-national system of governments cannot function
without sufficient fiscal resources, which entails a national
system of fiscal redistribution. Of Nepal's 75 districts, 64
are in deficit.131 In the wake of Prime Mnister Deuba's
dissolution of local governments, sub-national structures
are weak, with district government emasculated by state
security forces, who wield de facto control. A geographic
division that ignored these administrative and fiscal
weaknesses, as the ethnic homelands scheme does, would
deliver neither representation nor economic development.132
There are numerous models for distribution of powers
between national and regional levels. India's experience
of cooperative federalism has not been a paragon of
administrative virtue, given New Delhi's tendency to
seize political control of provinces, but some Indian
mechanisms for coordinating policy and fiscal
redistribution bear study. Its 1947 Constitution (Part XI)
lists central and provincial competences; the distribution
of authority, however, can be radically shifted from
federal to unitary by emergency powers, a provision
For elaboration, see Yash Ghai, "Ethnicity and Autonomy:
A Framework for Analysis", in Yash Ghai (ed.), Autonomy
and Ethnicity: Negotiating Competing Claims in Multi-Ethnic
States (Cambridge, 2000), pp. 8-25.
127 India reconfigured its federal classifications in 1956 due
to violent linguistic protests. T.V. Sathyamurthy, "Impact of
Centre-State Relations on Indian Politics: An Interpretative
Reckoning 1947-1987", inPartha Chatterjee (ed.), State and
Politics in India (New Delhi, 1997), pp. 238-242.
128 Crisis Group interview with former Justice Biswanath
Upadhyay, Kathmandu, 29 September 2004.
Crisis Group interview, Lalitpur, 20 October 2004.
130 See Joanna Pfaff-Czarnecka, "High Expectations, Deep
Disappointments: Politics, State and Society in Nepal after
1990", in Michael Hutt (ed.), Himalayan People's War
(Bloomington, 2004), pp. 175-177.
131 Harka Gurung, Fragile Districts, Futile Decentralisation
(Kathmandu, 2003), p. 19.
132 The optimistic response of ethnic homeland advocates is
that homelands will discover hitherto untapped resources
that will allow them to be fiscally independent. Crisis Group
interview with ethnic activist, Kathmandu, October 2004.
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Page 16
Nepal would have to consider carefully.133 India also has
a constitutionally-mandated Finance Commission, "a
quasi-arbitral body whose function is to do justice between
the Centre and the states".134 It is supplemented by a
Planning Commission, which lacks a constitutional
mandate. While both bodies are much criticised for their
centripetal influence, commentators suggest that without
the finance commission, at least, "the distribution of
revenues would have degenerated into something close
to open warfare".135
The South African model of cooperative government
does not promote ethnic division or strong regionalism
but gives provinces a powerful voice in national lawmaking through a presence in the second house. As in
India, the constitution provides a body for federal fiscal
co-ordination, the Financial and Fiscal Commission.136
By contrast, systems that have had centuries to develop
cultural and social roots are less useful as models for
Nepal, where a system of sub-national units must
overcome a history of centralisation. The Swiss system of
cantons — "de facto independent mini-states politically
dominated by the elite oftheir capital cities" — developed
over centuries.137 Equitable treatment of linguistic groups
could develop by informal arrangements, rather than
constitution-making. Nepal would benefit more from
looking to countries with a history similar to its own.
Local government is another resource for sharing power.
Until the end of the Panchayat era, monarchical
government stymied efforts to distribute authority.138
Local self-government has been promised by the centre
since the never-enacted 1948 Government of Nepal Act,
which envisaged village and town councils.139 It was
Granville Austin, The Indian Constitution: Cornerstone
of a Nation (New Delhi, 2002), pp. 195-203, 207-208.
134 Granville Austin, Working a Democratic Constitution: A
History ofthe Indian Experience (New Delhi, 1999), p. 615;
Constitution of India, Article 280. Article 263 authorises
India's president to establish a council to inquire and make
recommendations about disputes between the states and
between a state and the central government.
135 Austin, Working a Democratic Constitution, op. cit, p.
618. For further details ofthe revenue-sharing provisions, see
Austin, The Indian Constitution, op. cit, pp. 217-234.
136 Heinz Klug, "How the Centre Holds: Managing Claims
for Regional and Ethnic Autonomy in a Democratic South
Africa", in Yash Ghai (ed.), Autonomy and Ethnicity, op. cit,
pp. 113-117.
137 See Andreas Wimmer, Nationalist Exclusion and Ethnic
Conflict: Shadows of Modernity (Cambridge, 2002), pp. 225-
138 Pfaff-Czarnecka, "Vestiges and Visions, op. cit, p. 436.
139 Articles 16-21 of the Government of Nepal Act, 1948,
reprinted in Dahal, op. cit. pp. 290-291. The 1951 Interim
Government Act of Nepal also promised village Panchayats.
See ibid, p.  309.  A  1919 regulation establishing some
followed by the moribund 1956 Panchayat Act.140 Laws
purporting to decentralise were passed in 1965, 1975,
1979, 1982, and 1984 but they were actually vehicles for
central control, rather than genuine opportunities for
local decision-making. Post-1990 five-year development
plans also promised decentralisation but implementation
and the distribution of funds fell short.141
Most recently, the government passed the 1999 Local
Self-Government Act, which has allowed village
development committees to decide on some development
spending and begun to shift responsibility away from line
ministries.142 Experts in local government also view the
2002 legislation as an incremental, but positive, change,143
though the Maoist insurgency has driven out most local-
level government, impeding its implementation and any
assessment of whether it could be a basis for further
Most decentralisation has been cosmetic, and political
will remains weak,145 so scepticism about local
government is understandable. Nevertheless, reform of
local government, the level with which most people
interact, will be a critical part of dispersing political
power to communities traditionally outside politics.
Devolution of power may also appeal to strategic analysts
who worry about Nepal's longer-term political stability.
As an important way of moderating the "all or nothing"
nature of power struggles in Kathmandu it could reduce
the risks involved in future political transitions.
Nepal's 205 constituencies elect one parliamentary
representative each. Redistricting to account for population
shifts occurs decennially, most recently in 2001.146
Suggestions to reform the first-past-the-post system have
powers for Kathmandu municipality is the earliest example
of devolution. Gurung, op. cit, p. 1.
140 Joshi and Rose, op. cit. p. 397.
141 Crisis Group interview with lawyer, Kathmandu, October
2004; Dev Raj Dahal, Hari Uprety and Phanindra Subba, Good
Governance and Decentralisation in Nepal (Kathmandu, 2002),
pp. 71-79.
142 Crisis Group interview with Harka Gurung, New Era
Foundation, Kathmandu, 18 October 2004.
143 Crisis Group interview with local government expert, Lalitpur,
October 2004.
144 Crisis Group interview with Nepali anthropologist,
Kathmandu, 16 October 2004.
145 Gurung, op. cit, p. 5.
146 Crisis Group interview with Ram Sharan Mahat, member
of Nepali Congress Central Working Committee, Kathmandu,
5 October 2004.
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Page 17
been aired by academics and ethnic activists,147 who say
it allows a mere plurality, not necessarily a majority, to
rule148 and argue that a proportional system would better
reflect the country's ethnic diversity.149 Multi-member
districts elected by proportional representation have been
proposed150 as has the German double-ballot,151 in which
each voter selects a candidate from a single-member
constituency and then makes a second choice of a closed
party list in his or her region.152
Hopes that a proportional system will draw previously
excluded ethnic groups or castes into the electoral
system may be overstated. The post-1990 electoral
dispensation did not collapse voters' choices entirely or
shut out minority voices. In the 1991 election, twenty
parties ran and seven obtained seats in the House of
Representatives.153 In 1995, 24 parties ran, with five
succeeding; in 1999, seven of 25 obtained seats.154 The
proportion of ethnic representatives varied between 30.2
per cent in 1991 and 23.9 per cent in 1999.155 The post-
1990 system thus made it difficult but far from impossible
for smaller parties to enter parliament. Those like the
NWPP and the NSP, which have regional strongholds,
were able to retain a parliamentary presence
notwithstanding the pressure the plurality-vote system
The reasons for the political weakness of ethnic groups
must be sought elsewhere. First, they have been weak in
political mobilisation. Leaders of caste groups in
Janakpur, for example, concede that ethnic communities
have yet to mobilise blocs of votes effectively to bargain
Crisis Group interview with Tek Tamrakar, lawyer, Pro
Public, Lalitpur, 13 October 2004.
148 Candidates winning with more than 50 per cent of the vote
decreased from 79 in 1991 to sixteen in 1999. Krishna Khanal,
"Election Procedures and Malpractice: Problems of Ensuring
Free and Fair Election", Nepali Journal of Contemporary
Studies, vol. Iff, no. 1, 2003, p. 73.
149 Crisis Group interviews, Kathmandu, October 2004.
150 Krishna P. Khanal, "Consideration of possible model of
Proportional Representation for Nepal", updated, unpublished
151 Crisis Group interview with Krishna Khanal, Tribhuvan
University, Kirtipur, 7 October 2004.
152 Pippa Norris, Electoral Engineering (Cambridge, 2004),
pp. 56-57. Adjustments are made to ensure "that seats are
proportional to second votes cast for party lists".
153 Ram Kumar Dahal, "Election and People's Participation
in Nepal", Nepali Journal of Contemporary Studies, vol. IV,
no. 1, March 2004, p. 97.
154 Ibid, pp. 98-99.
155 Sant B. Gurung, "The Indigenous Nationalities of Nepal:
Social Setting and Institutional Efforts", in Mukti Rijal (ed.),
Readings on Governance and Development, vol. Iff
(Kathmandu, 2004), p. 21.
with political parties.156 The first-past-the-post system, in
fact, gives an advantage to a determined, numerically
concentrated ethnic group if it can keep its vote together.
This has been amply demonstrated in Indian politics, not
least in the populous states of Uttar Pradesh and Bihar,
bordering Nepal, where the rise of low-caste parties
based on the careful construction of "vote-banks" has
been one ofthe most notable features of electoral politics
in the last two decades.
Secondly, the transition to a more proportional system
would not necessarily loosen the grip ofthe major national
parties. With almost a decade and three rounds of
parliamentary elections to have established geographically
dispersed cadres, they are likely to retain significant
organisational advantages in any election not marred by
Maoist or state-sponsored violence.157 Ethnic parties, even
if permitted by a change in the constitutional ground
rules, might be unable to make up ground lost in the first
decade of democracy. Indeed, a proportional system that
used lists drawn up by the party leadership would further
centralise control and advantage the existing parliamentary
parties and the elites within them.158
No clear link has been shown internationally between
proportionality and minority group satisfaction with
electoral systems.159 Some fare well under first-past-
the-post because territorial concentration facilitates
parliamentary representation. The Plaid Cymru party in
Wales (UK) is an example. A shift to proportionality
would not necessarily improve representation of
geographically concentrated Nepali ethnic groups.
Moreover, there is little evidence to support the optimistic
assessment of some social scientists that proportionality
would encourage responsible, stable coalitions in
parliament.160 To the contrary, it might reduce the already
precarious stability of governments.161 The experience of
Crisis Group interviews, Janakpur, October 2004.
157 Standing alone, "the introduction of PR may not produce
more parties" for "pure PR is a no-effect electoral system",
Giovanni Sartori, Comparative Constitutional Engineering:
An Inquiry into Structures, Incentives and Outcomes (New
York, 1997), pp. 46-47 (emphasis in original).
158 The party-list system can help preserve party control. It
was introduced in 2004 for the Russian federal Duma
combined with a 7 per cent threshold, presumably to ensure
that only parties acceptable to the Kremlin succeeded in federal
elections. Jonathan Steele, "Doing Well out of War", London
Review of Books, 21 October 2004, p. 29.
159 Pippa Norris, Electoral Engineering (Cambridge, 2004),
pp. 224-227.
160 Khanal, "Consideration on possible model of Proportional
Representation", op. cit, p. 12.
161 According to Justice Biswanath Upadhyay, Chair of the
1990 Constitution Recommendation Commission, fear of
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Page 18
the 1995 parliament, which witnessed nine governing
coalitions, hints at heightened costs162 that may actually
undermine consensus-building, the putative benefit of
a proportional system.163 Coalitions between 1995 and
1999 evinced little ideological coherence. Rather,
they appeared to be largely opportunistic. Under such
circumstances, more proportionality might bring about
"heterogeneous coalitions between partners or, indeed,
non-partners that play a veto game against each other".164
Electoral reform, therefore, should not be accompanied
by expectations of a radical shift in the political landscape.
But this does not mean that the agenda should be
abandoned. The present system is widely perceived as
reinforcing high-caste Hindu dominance. Keeping it in
place would signal a failure of political will for change.
Electoral reform, in contrast, would telegraph a
commitment to broadening popular involvement in
politics, adding legitimacy to any new constitutional order.
Insistence on retaining the first-past-the-post system
may be perceived similarly as a tool for excluding the
traditionally marginal janajati and caste groups. The
election for a constitutional assembly, should one be
convened, might be an opportunity to introduce a revised
system that could fall between total first-past-the-post
and total proportional representation. An expansion of
candidacy and seat reservations for women would also
be a logical option.165
One important and simple measure could be a repeal of
the ban on ethnic parties in Article 113(3) ofthe 1990
Constitution, which, as noted, has been applied unevenly
and has not functioned as the drafters expected.
According to then Mnister of Law Nilamber Acharya, it
was believed minorities would be better off trying to gain
influence through the major political parties.166 Those
parties, however, have failed to take ethnic and minority
issues seriously. Allowing ethnic parties to compete
might force mainstream parties to change by increasing
competition for minority votes. Ethnic parties, even
instability was why the first-past-the-post system was chosen,
even though the drafters knew a proportional model would be
more representative. Crisis Group interview, Kathmandu, 29
September 2004.
162 David N. Gellner, "Transformations ofthe Nepali State", in
Gellner (ed.), Resistance and the State: Nepalese Experiences
(New Delhi, 2003), p. 14.
163 Commentators often assume that because governance in a
proportional system needs compromise and consensus-building,
that will occur, e.g., Wolf Linder, "Political Structures and
Multicultural Conflict", in Mukti Rijal (ed.), Readings on
Governance and Development, vol. Iff (Kathmandu, 2004).
164 Sartori, op. cit, p. 60.
165 This and other electoral system questions will be addressed
in a forthcoming Crisis Group report on political party reform.
166 Crisis Group interview, Kathmandu, 28 September 2004.
if relatively ineffective on a national level themselves,
give minorities more leverage within mainstream parties.
Furthermore, permitting minority parties might also
relieve some ofthe pressure for ethnic homelands.
The problematic issue of control over the Royal
Nepalese Army (RNA) has been brought to the fore by
the Maoist insurgency. RNA reluctance to respond to
the orders of the elected government came to a head in
the summer of 2001. Since the army's deployment under
the November 2001 state of emergency, its role in
military and political affairs has become progressively
entrenched, initially through the creation of a unified
command that gave it control over civilian police and
most prominently since February 2005, when its support
for the palace and the royal coup was both essential and
The drafters of the 1990 Constitution intended to vest
control ofthe military entirely with the civilian, democratic
institutions. Senior army officers resisted, telling the
CRC chairman they preferred to remain under the king's
control.167 According to the chairman, they suggested
(unsuccessfully) a National Defence Council with two
civilians and up to eleven military officials.168
Under the 1990 Constitution, the king remains supreme
commander of the RNA, who, on advice of the prime
minister, can "operate and use" the RNA and appoint its
commander-in-chief. Operational control lies with the
National Defence Council, which includes the prime
minister, the defence minister and the commander-in-
chief169 In theory, elected officials dominate but in
practice the RNA has resisted, most openly in July 2001,
when the army declined to obey Prime Minister Girija
Prasad Koirala's orders to move on Maoists in Rolpa
district, precipitating his resignation. Under the current
administration, of course, there is no prime minister, and
the king has retained the defence portfolio himself.
RNA officers justify their resistance to parliamentary
control by raising concerns that civilian governments
might corrupt and politicise the army.170 The post-1990
civilian governments, in the army's view, never accepted
According to Justice Upadhyay, the commander-in-chief had
two suggestions: that the army be under the king's control, and
the country's sovereignty be vested in the king. Crisis Group
interview, Kathmandu, 29 September 2004.
168 Ibid.
169 Articles 118 and 119 ofthe 1990 Constitution of Nepal.
170 Crisis Group interview with retired colonel, Kathmandu,
October 2004, who also blamed the civilian governments for
not challenging the RNA's allegiance to the king.
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Page 19
the need to regulate it in a non-partisan way. The roots
of this distrust go back to the 1950s and concern over
"Congressisation ofthe administrative machinery".171
Members ofthe Mukti Sena, the Congress' insurgent army
formed in Indian exile in 1950, were drafted into the police,
resulting in continuing close ties between the party and
that force.172 The army seems to assume it would meet
the same fate were it to submit to civilian governments.
Its resistance to civilian control continued even after the
beginning of the Maoist insurgency, justified by the
argument the government had no "socio-economic
program" to accompany its military strategy.173
Stronger mechanisms for parliamentary control of
the RNA will be a precondition for progress in peace
negotiations and for future governmental stability.
The absence of such control was one of the reasons
given by the Maoists for refusing to talk to the
Deuba government.174 Until civilian negotiators can
make credible commitments on the RNA's behalf, the
Maoists have reason to be doubtful of talks. Moreover,
countries in which the military remains dominant, like
Pakistan, are hardly models for stability and good
governance.175 Substantial institutional changes are
necessary for Nepal's long-term stability.176
Since 1990, prime ministers have tended to keep the
defence portfolio for themselves, with the ministry
remaining little more than a "procurement agency".177
As long as this practice continues, institutional reform
will be difficult.178 In addition to strengthening the
defence ministry, a non-partisan mechanism of
parliamentary control might be considered in the process
of constitutional change. For example, a parliamentary
committee with opposition representation could be
empowered to take key decisions about the RNA.179
Some analysts argue that a transition to civilian control
ofthe RNA must be handled delicately, lest it precipitate
more aggressive military intervention in politics. They
suggest the king could play a useful role as a figurehead
and symbol of unity.180
Other national institutions could help supervise and restrain
the RNA. The 1990 Constitution restricts civilian courts
from intervening with military courts except in limited
circumstances,181 and they have been reluctant to do so.
The insurgency, and the accompanying acceleration in
human-rights violations by the state, have only added
urgency to reform in this area. The United Nations is
establishing a human rights monitoring mission in
accordance with an April 2005 memorandum of
understanding between the Nepali government and the
UN High Commissioner for Human Rights. Although
this may help address immediate issues, the fundamental
tensions will have to be dealt with in any process of
constitutional change.
Joshi and Rose, op. cit. p. 320.
172 Crisis Group interview with Nepali military analyst,
Kathmandu, 14 October 2004.
173 Crisis Group interview with former army officer,
Kathmandu, October 2004; Bhusal, op. cit, p. 130.
174 See "Conditional", Kantipur, 26 September 2004 (quoting
CPN(M) spokesperson Krishna Bahadur Mahara).
175 See, for example, Crisis Group Asia Report N°40,
Pakistan: Transition to Democracy, 3 October 2002.
176 Support given in particular by India and the US. to the RNA
may, in the long-run, be counter-productive for stability unless
coupled with adequate support for democratic institutions. See
Crisis Group Report, Dealing with a Human Rights Crisis, op.
177 Crisis Group interview with Western diplomat, April 2003.
178 Felipe Agiiero, "Toward Civilian Supremacy in South
America", in Larry Diamond et al. (eds.), Consolidating the
Third Wave Democracies (Baltimore, 1997), p. 199.
179 Crisis Group interview with human rights activist,
Kathmandu, 14 October 2004.
Crisis Group interview, Lalitpur, October 2004.
181 Article 88(2)(a) provides that "[t]he Supreme Court shall
not be deemed to have power.. .to interfere with proceedings
and decisions of the Military Court except on the ground of
absence of jurisdiction or on the ground that a proceeding
has been initiated against, or punishment given to, a non-
military person for an act other than an offence relating to
the Army". This appears not to restrict the Court's power to
void a law under Article 88(1).
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Just as evaluations of the constitutional situation vary
widely, so do views on how to move forward. The palace,
parties and Maoists have offered different roadmaps for
resolving the political and military crisis. Intentions shift
as political fortunes change. The eighteen-point agenda
drawn up by parties in the aftermath of King Gyanendra's
October 2002 move had faded well before his second
takeover.182 2004 saw increased support for a constitutional
assembly within several parties, including Congress and
UML, largely driven by younger cadres.183 In particular,
the nine-day imprisonment of three student leaders on
sedition charges was a "radicalising moment" for student
groups.184 The increased frequency of anti-monarchy
slogans in student protests since late 2003 suggests that
King Gyanendra, through unwillingness to relinquish
power, may have seeded a generational shift towards a
The royal coup of February 2005 has, unintentionally,
played a major role in uniting the political parties and
hardening their position towards the monarchy. With the
development of a common minimum program shared by
seven mainstream parties, a clear program has at last
emerged from the centre ground. It calls for restoration of
the 1999 parliament, negotiations with the Maoists and
then the election of a constitutional assembly. In the
words of UML leader Jhalanath Khanal, reinstatement of
the dissolved parliament is the "entry point" to a stable
peace process and a constitutional assembly the "exit
point".185 Congress President Koirala has reiterated that
the king must choose between complete democracy and a
republic. For him, the agenda of the seven-party alliance
is a comprehensive roadmap for all who want democracy
and peace.186 If the parties remain united, they will not
only put pressure on the palace but also undermine that
Even opposition parties such as the NSP and Congress
placed little weight on the eighteen-point agenda, Crisis Group
interviews with opposition politicians, Kathmandu, October
2004. Its main features included curtailing the king's powers,
bringing the RNA under parliamentary control, redressing
exclusion by ending discrimination against women, ethnic and
caste groups, resolving the citizenship problem in the Tarai,
formulating a comprehensive, forward-looking political agenda
to resolve the Maoist conflict peacefully, and introducing
concrete anti-corruption programs.
183 Crisis Group interview with democracy expert, Kathmandu,
28 September 2004.
184 Crisis Group interview with Congress student leader,
Kathmandu, 5 October 2004.
185 "Parties have put constituent assembly on agenda: Khanal",, 28 May 2005.
186 Ibid.
Maoist case for continuing the armed struggle. Consensus
on a constitutional assembly agenda would require
complex bargaining over scope and modalities but could
offer the best hope for a negotiated peace.
A.    The Palace
The palace has a simple bottom line: it will resist any
constitutional change that could endanger the monarchy
or reduce its powers. Beyond this, it can be flexible but
the basic condition of self-preservation leaves little room
for compromise. Until the dismissal ofthe Deuba-led
coalition in February 2005, King Gyanendra's stated
preference was for general elections to be held before
April 2005. A source close to the palace explained his
rationale in these terms: "From the king's point of view,
holding elections would put the 1990 Constitution back
on track...the king feels that once parliament is back,
the spectre of Article 127 will go away".187
The king's focus on elections, however, was always
open to less charitable interpretation. He may have
been looking to February 1959, when, after eight years
of pressure on the palace to fulfil its 1951 promise of
democratic government, King Mahendra finally agreed
to hold the first democratic elections.188 At the time, it
was widely believed he did so in the belief a hung
parliament would result, and he would maintain
effective control.189 In the event, the Nepali Congress
party obtained 37.2 per cent ofthe vote and 74 seats
out of 109.190 Dissatisfied with his limited role, the
king began issuing veiled warnings in January 1960
and at the end ofthe year took power after arresting the
cabinet.191 Like his father, Gyanendra could have been
hoping for either a hung parliament, which would have
allowed him to play an instrumental role in endorsing
coalitions, or one dominated by parties close to the
Alternatively, the February 2005 royal coup has added
weight to the argument that the king had deliberately
tasked Deuba with an impossible challenge.192 By setting
the government to fail, the king guaranteed himself a
further opportunity to justify extending his powers. Even
Crisis Group interview, Kathmandu, October 2004.
188 Hoftun, Raeper and Whelpton, op. cit, pp. 23-26, 59. The
interim government of 1951 had been charged with
conducting a smooth transition to a new political order "based
on a democratic constitution framed by elected representatives
ofthe people", Joshi and Rose, op. cit, p. 83.
189 Hoftun, Raeper and Whelpton, op. cit, pp. 59-60.
190 Ibid.
191 Joshi and Rose, op. cit, pp. 378-379, 384-386.
192 Crisis Group interviews, Kathmandu, June, July 2004 and
March April 2005.
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Page 21
as Deuba refused to indulge in the pessimism of his own
cabinet members about the unpromising security situation,
the chief of army staff was hinting to the diplomatic
community that the RNA was making no plans to secure
the supposed polls.193
In his proclamation of 1 February 2005, the king spoke of
restoring multi-party democracy within three years but
talk of elections was notable by its absence. Subsequently
the royal government announced that it will hold municipal
elections by April 2006,194 and Council of Ministers Vice
Chairman Peter Giri told the press that municipal elections
will lead to full parliamentary polls.195 The modalities
of such elections ~ such as whether there will be party
participation or candidate pre-qualification restrictions —
have not been clarified, and the initial response of the
mainstream parties has been dismissive.196
The effective suspension ofthe 1990 settlement has only
intensified the king's need to insist that his actions are
aimed at protecting it. This may increase royal resistance
to any constitutional change because of the fear that
acknowledging the weaknesses ofthe 1990 dispensation
may undermine the argument that its protection warrants
a royal takeover. Nevertheless, there have previously
been indications that some constitutional amendment
would be acceptable to the king.197 For example, the
Thapa government's 17 August 2003 concept paper,
prepared during talks with the Maoists, endorses this.
Gyanendra may have more reservations about the method
of changing the constitution, particularly the idea of a
constitutional assembly. Pro-palace politicians suggest he
fears that such a body "would be a method of introducing
a republican system".198 But some evidence suggests
that the king could accept the notion if a constitutional
assembly's purpose was not to usher in a republic.199
Indeed in the longer term, the palace may even seek
amendments if it feels they might increase the role ofthe
monarchy, as outlined in Section III.C above.
Crisis group interviews with senior diplomats, Kathmandu,
January and February 2005.
194 "Municipal elections within this year: King Gyanendra",
kantipuronline, 14 April 2005.
195 "Municipality election forerunner of general election: Dr
Giri", kantipuronline, 15 April 2005.
196 „^t£ may boycott municipal elections: Koirala", 15 April 2005, "UML puts conditions to take
part in election", 18 April 2005.
197 Crisis Group interview, Kathmandu, October 2004.
198 Crisis Group interview with RPP politician, Kathmandu,
October 2004.
199 Crisis Group interview, Kathmandu, October 2004. Akhilesh
Upadhyay, "New Cabinet and Old Problems", The Nation, 18
July 2004, p. 21.
B.    Nepali Congress
The Nepali Congress party, led by Girija Prasad Koirala,
has long contended that neither the political nor the military
conflict can be resolved without a return to representative
government by restoration ofthe 1999 parliament and
formation of an all-party government from that body.200
The all-party government would negotiate with the Maoists
and organise a process of constitutional change. The royal
coup has not altered the fundamental stance ofthe party on
the restoration of parliament. It has, however, emboldened
those within it, especially within the student wing, the
Nepal Students Union, who were already arguing for
a republic. Despite Koirala's release from house arrest, the
continued detention of pro-republic Congress leaders such
as Narahari Acharya suggests that the palace deems them
a real threat. Meanwhile, Koirala himself has hinted that
the Congress commitment to constitutional monarchy
should not be taken for granted. When asked in a
newspaper interview if his party was divided over the
choice between a constitutional monarchy and a republic,
his response was terse: "[Congress] has always adhered to
constitutional monarchy. But I don't know where we will
stand now. It would be better if you asked the king this
In contrast to those of its main rival, the UML, Congress
election manifestos from 1991 to 1999 did not feature
suggestions for constitutional amendment.202 The party
dislikes electoral reform and federalism but would
endorse a reservations system.203 It posits three alternative
routes for that change: a constitutional amendment, a
referendum or a constitutional assembly.204 As a principal
actor in the 1990 "people's movement" that paved the way
for the current constitution, it "does not want to be seen as
the party that walked over that constitution".205 Therefore,
it prefers the amendment route. Congress officials have
Crisis Group interviews with Congress central working
committee members and party members, Kathmandu and
Janakpur, September-October 2004.
201 Deshantar, 3 April 2005, translated in "Ask the king",
Nepali Times, 8 April 2005.
202 Krishna Hachhethu, "Nepal: Party Manifesto and Election",
Nepali Journal of Contemporary Studies, vol. Ul, no. 1, March
2003, p. 28.
203 Crisis Group interview with Ram Sharan Mahat, Congress
Central Working Committee member, Kathmandu, 5 October
2004. The term "reservation", following Indian usage, refers to
a system of reserved positions, or quotas, for government jobs,
school and university scholarships targeted at disadvantaged
groups. Broadly speaking it may be categorised as a form of
positive discrimination or affirmative action.
204 See Congress, "Resolution Passed by Central Working
Committee", 6 August 2004.
205 Crisis Group interview with former Congress minister,
Kathmandu, 4 October 2004.
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Page 22
generally rejected moving directly to a constitutional
assembly, arguing that "would give a tremendous boost to
the Maoists, who will be seen as the victorious power".206
The royal coup has, however, encouraged some within
the party, as in other mainstream parties, to be more
flexible on the possibility of accepting a constitutional
Party workers acknowledge that other parties fear
parliamentary restoration is a way for Congress to
reassert itself207 The 1999 House of Representatives,
which succeeded the hung 1994 parliament, was
dominated by a united Congress party that won 111 of
205 seats.208 Congress officials, however, protest that
their interest lies in a return to legitimate, constitutional
rule. They put forward the referendum option as a
means to allow reconsideration of "rigid features" of
the 1990 Constitution that cannot be reviewed via an
amendment process.209 While the 1990 Constitution
has no referendum mechanism, Congress argues that
the reference to popular sovereignty in the preamble
could justify a referendum on questions such as the
need for a constitutional assembly or maintenance of
multi-party democracy.210
Despite the party line, discord over the consequences of
different strategies persist within the leadership and the
rank and file. A lawyer who participated in internal
meetings in 2004 concerning peaceful solutions to the
conflict observed disarray on diagnosis of the conflict
and a wide divergence in proposed solutions.211 Student
leaders endorse not only a constitutional assembly, but
also republicanism.212 Before the royal coup, even some
members of the party elite had argued strongly for a
constitutional assembly and predicted that their position
would be endorsed by the party convention, scheduled
Crisis Group interview, Ram Sharan Mahat, Congress
central working committee member, Kathmandu, 5 October
207 Ibid.
208 Election Commission, House of Representatives Election-
1999, Kathmandu, p. 14.
209 The 1990 Constitution provides for legislative amendment in
Article 116 but precludes aspects of the preamble, including
multi-party democracy and constitutional monarchy, from being
amended. See Preamble and Article 116 of 1990 Constitution of
Nepal and discussion below.
210 Crisis Group interview with Ram Sharan Mahat member of
Congress Central Working Committee, Kathmandu, 5 October
2004. Article 3 ofthe 1990 Constitution also provides that: "The
sovereignty of Nepal is vested in the Nepalese people and shall
be exercised in accordance with the provisions of this
211 Crisis Group interview, Kathmandu, 29 September 2004.
212 Crisis Group interview with Congress student leaders,
Kathmandu, March 2005.
for March 2005 but now indefinitely postponed.213 At a
local level, members' desire for constitutional change
outruns that of their leaders. In Janakpur, for example,
members of district committees insist on the importance
of constitutional change to clarify citizenship rules, a
matter of local importance in the Tarai.214
C.    The Communist Party of Nepal
(Unified Marxist-Leninist)
Like Congress, the UML has argued that "until [the
country goes] back to the democratic process, it can't
resolve the party/king conflict".215 Until early 2005 the
UML did not view restoration ofthe 1999 parliament as
the preferred avenue for renewing the government's
democratic pedigree. Rather, it favoured formation of an
all-party government, followed by establishment of a
common minimum program as a framework for peace
negotiations. Upon reaching a consensus with the
Maoists, a roundtable conference would be convened
with "[delegates of political parties represented in the
dissolved House of Representatives, the CPN (Maoist)
and other individuals" to decide on "whether to go for
the amendment of the constitution or to opt for a new
constitution".216 That interim government then would
hold elections for a constitutional assembly or a
parliament to amend the constitution.217
Nevertheless, in late 2004 several senior UML officeholders openly expressed a willingness to accept
restoration of parliament. They included central
committee member and Minister for Labour Raghuji
Pant218 and his colleagues Bamdev Gautam and Pradip
Nepal.219 Following expiration ofthe 13 January 2005
deadline for the Maoists to join talks, General Secretary
Madhav Nepal proposed reactivating parliament's upper
house and reinstating former elected representatives on
local government bodies as a compromise first step.220
The UML has thus long been open to various modalities of
constitutional change. The party, moreover, has expressed
dissatisfaction with sections ofthe constitution since 1991.
Crisis Group interview with Narahari Acharya Kathmandu,
7 October 2004.
214 Crisis Group interviews with Congress District Development
Committee members, Janakpur, October 2004.
215 Crisis Group interview with K.P. Sharma Oli, Kathmandu,
3 October 2004.
216 Central Committee ofthe UML, op. cit, pp. 5-6.
217 Ibid, p. 6; Crisis Group interview with Madhav K. Nepal,
General Secretary of CPN-UML, Kathmandu, 5 October 2004.
218 Kantipur, 6 December 2004.
219 "Revive House or withdraw", The Kathmandu Post, 29
November 2004.
220 The Kathmandu Post, 24 January 2005.
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Page 23
While it remains committed, at least on paper, to a secular
state with linguistic equality for all communities, it had
by 1994 retreated from republican demands and adopted
almost social democratic positions.221 According to
Madhav Nepal, although the UML is open to proposals
on how to accomplish constitutional change, it "does
not think there's a need for a new constitution or a
constitutional assembly. But for the sake of [bringing
in] the Maoists, we would agree to a constitutional
assembly".222 Such flexibility, argues another central
committee member, also "helps other parties by keeping
all the options open".223
The UML's endorsement ofthe seven-party program
incorporating a constitutional assembly is, therefore, not
so surprising. But there are signs that the post-February
2005 environment is bringing to the surface long-standing
tensions within the party. While Madhav Nepal remained
under house arrest, standing committee member Jhalanath
Khanal became acting general secretary. Many party
activists suspect that Madhav Nepal may be made a
scapegoat for the failures ofthe party to put its mark on
the Deuba government.224 Since his release on 1 May
2005, he has been slightly bolder in calling for "total
democracy and full-fledged sovereignty ofthe people" but
has hedged his bets by urging all political forces to "remain
under the constitution"225 Ifthe seven-party agenda gains
momentum, it will strengthen the position of Nepal
personally and his party but if it falters, he will be accused
of having submitted to a Congress agenda for no political
D.    Other Political Parties
Five other parties were represented in the 1999 parliament:
Congress (Democratic), the RPP, Nepal Sadbhavana Party
(NSP), Janamorcha, and Nepal Workers and Peasants
Party (NWPP). Before February 2005, Congress (D)
argued that a government without periodic elections
would be impossible, so a poll within the timeframe
established by the king had to be the priority.226 At the
district level, however, party workers admitted their
inability to reach many areas due to the Maoists. Given
Hachhethu, "Party Manifesto and Election", op. cit, pp.
28-29, 35.
222 Crisis Group interview with Madhav K. Nepal, General
Secretary of CPN-UML, Kathmandu, 5 October 2004.
223 Crisis Group interview with UML Central Committee
member, Janakpur, 2 October 2004.
224 Crisis Group interviews with UML activists, Kathmandu
and New Delhi, February to April 2005.
225 "MK   Nepal   urges   for   full-fledged   sovereignty",, 2 May 2005.
226 Crisis Group interview with Congress (D) members,
Kathmandu and Janakpur, September and October 2004.
the party's organisational weaknesses, low national
presence in comparison to the mainstream Congress and
signal lack of achievement in government, its workers
may have been relieved at the reprieve from an election.
The royal coup also appears to have added momentum
to efforts to patch up Deuba and Koirala's differences
and reunite the two Congresses.227
With regard to the insurgency, Congress (D) had seen
the new High-Level Peace Committee (HLPC)228 as
a vehicle for negotiations and settlement. Sufficient
common ground for talks existed, party officials argued,
because the Maoists had recognised the king's authority
in demanding to speak with "the masters" rather than the
Deuba government.229 Their view always appeared
overoptimistic. Maoist recognition ofthe king as the
embodiment of the "old" state does not preclude their
desire to do away with that old state in favour of a new
people's democracy. Moreover the HLPC, which had
shown little signs of efficacy, was swiftly disbanded by
the new royalist government.
While in government, the Congress (D) proposed an
amendment process, rather than a constitutional assembly.
It was always, however, prepared to adjust to
circumstances: Deuba, for example, supported a
constitutional assembly until June 2004, when he entered
government, and he declined to rule out such a body even
while prime minister.230 As with the UML, Congress
(D)'s support for the seven-party agenda for change via a
constitutional assembly is not entirely surprising. Perhaps
more significant is the question of whether public
commitment to the same program will boost chances for
Congress' reunification.
Congress (D)'s former ally in government, the RPP, also
endorsed the continuing vitality ofthe 1990 Constitution
under the Deuba government. Its spokesperson explained
that the party opposed restoration of parliament or a
constitutional assembly because ofthe king's opposition
to both.231 It argued that a government formed of all
227 "The environment for reunification is becoming positive",
Ram Sharan Mahat stated after an 11 April 2005 Congress
Central Working Committee meeting. "NC mulls reunion
with NC (D)",, 12 April 2005.
228 On the HLPC, see Section VI below.
229 Crisis Group interview with Minendra Rijal, Congress
(D), Kathmandu, 5 October 2004.
230 Crisis Group interview with Nepali opposition politician,
Kathmandu, October 2004. In an interview after his
appointment, Deuba had stated that "if there is national
consensus on holding constituent assembly elections, 1 will
have to give in to the public demand". "My First Priority is
Holding Elections", The Nation, 13 June 2004, p. 21.
231 Crisis Group interview with Roshan Karki, RPP
spokesperson, 12 October 2004.
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Page 24
parties represented in the 1999 parliament could
simultaneously negotiate and prepare for elections. In
2003, however, the party's third general assembly had
endorsed constitutional change.232 Its national council in
December 2004 endorsed a constitutional assembly as
one possible option, a line advocated by certain senior
RPP members for some time.233 Khem Raj Pandit, for
example, has argued that because neither parliamentary
restoration nor elections are possible, the government
should talk to the Maoists with the goal of initiating a
constitutional assembly — the only vehicle for bringing
the insurgents into the mainstream. By creating a public
impression of internal debate, the RPP may have
deliberately kept its options open as a deal-maker in case
other parties decided to back a constitutional assembly, as
they now have.
The position on constitutional reform ofthe new Rastriya
Janashakti Party (RJP), formed by RPP founder Surya
Bahadur Thapa after he quit his old party, is not yet
entirely clear. The RJP's first policy paper calls for
certain major changes, such as an effective reservations
system, proportional representation and decentralisation.
It strongly endorses the need for the monarchy as a
symbol of national unity while at the same time endorsing
an unspecified process of "constitutional change/rewriting
and modernisation".234 Neither the RPP nor the RJP has
joined the seven-party alliance.
The NSP's main faction, which did not join the Deuba
government, identified an all-party consensus as central
to progress. With a common position on the constitution,
NSP officials argue, the parties could negotiate with the
king. NSP places less emphasis on restoring parliament,
despite having stood with Congress in opposition to the
Deuba coalition, because it doubts parliament's ability to
reach a consensus.235 According to its officials, there
must be talks with the Maoists before constitutional
changes. While it rejects the parliamentary amendment
route as too cramped and the referendum path as
favouring the larger parties, the NSP favours adopting a
new constitution. At its grass-roots level, agitation for
constitutional change — most vocally via constitutional
assembly — is more pronounced.236
The NWPP and Janamorcha, despite being furthest from
Congress ideologically, share the same prescription for
dealing with the crisis: parliamentary restoration followed
by formation of an all-party government. Both also
endorse a constitutional assembly.237 Their leaders place
more emphasis on the kind of constitutional changes
they envisage, rather than on the method but they have
backed the seven-party proposal.
In short, party positions on immediate political transition
and constitutional change have long been influenced by
perceptions of short-term interest. Such self-interest,
however, has its advantages. The parties' recognition
that democratic governance is in their common interest —
indeed, the only justification for and basis oftheir authority
— has helped persuade them to rally around a common
position to break the political stalemate. To this extent,
King Gyanendra has greatly aided the political parties
by bringing their shared interests into sharper focus. As
many observers have pointed out, the royal coup achieved
the seemingly impossible task of uniting Nepal's fractious
parties and giving them the basis for a common agenda.
Whether they will be able to bring their agenda to fruition,
and whether there will be any consensus on the substance
as well as process of reform, remains to be seen. But the
common adoption of a constitutional assembly route for
change offers the parties their best hope of forcing the
palace and the Maoists to pay attention to them and their
call for a democratic peace settlement.
E.    The Maoists
The Maoist agenda, which from inception included
transformation ofthe state, has increasingly emphasised a
process of constitutional change ~ the holding of a
constitutional assembly ~ as a goal in itself. However,
the Maoists resist suggestions that they have diluted their
ultimate goal of a "New Democratic/People's Democratic
Republic", which will be a "people's democratic
dictatorship".238 Their support of a constitutional assembly
must be treated with some scepticism in light of that
ultimate aim.
On 4 February 1996, before declaration ofthe "people's
war", party ideologue Baburam Bhattarai sent then Prime
Crisis Group interview with RPP politician, Kathmandu,
October 2004. RPP, "Common Minimum Program: Concept
Paper to Move Ahead" (no date).
233 Crisis Group interview with Khem Raj Pandit RPP Central
Committee, Kathmandu, 8 October 2004.
234 RJP policy document, available at
235 Crisis Group interview with Sarita Giri, spokesperson, NSP
(Anandi), Kathmandu, 26 October 2004.
236 Crisis Group interviews with NSP local officials, Janakpur,
1 October 2004.
Crisis Group interviews with Lila Mani Pokharel, Vice
Chairman of Janamorcha, Kathmandu, 14 October 2004,
and Narayan Man Bijukchhe "Rohit", Chairman, NWPP,
Bhaktapur, 19 October 2004; Comrade Rohit, "Monarchy
for the interest and benefit to the entire people", University
Student Bulletin (March 2003), p. 1.
238 "Common Minimum Policy & Program of United
Revolutionary People's Council, Nepal (URPC)", The Worker,
no. 8, January 2003, p. 56.
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Crisis Group Asia Report N°99, 15 June 2005
Page 25
Minister Sher Bahadur Deuba 40 demands, warning that
armed struggle would begin unless "positive indications"
were forthcoming. The tenth demand was for a new
constitution "drafted by representatives elected for the
establishment of a people's democratic system".239 Until
late 2001, when negotiations with a government headed
by Deuba were ongoing, the Maoists continued to focus
on a new republican constitution framed by the people.
On 13 November 2001, they dropped this demand and
shifted emphasis to the process-related call for an interim
government followed by a constitutional assembly.240
During the 2003 talks and again in February 2004, the
CPN(M) insisted on the same framework for progress:
"[a] roundtable conference, an interim government and
election to a Constituent Assembly".241 Such an assembly
would effect the transition from a capitalist democracy
to a "full-fledged" democracy, or, in Bhattarai's words,
"a democratic republic".242 According to the Maoists, "in a
free and fair election the mandate ofthe Nepalese people
would be in favour of a republic".243 The Maoists have
detailed some of what they want in a new constitution,
including land reforms, nationalisation of industries, a
unified national army, and regional autonomy for ethnic
groups.244 According to those close to the CPN(M), its
focus on process does not represent a change of goals,
but only their postponement in light of geopolitical
In the aftermath of the royal coup, the Maoists reached
out to the mainstream parties with the suggestion of a
united anti-monarchical front.246 The standard reaction
of the parties has been that reconciliation remains
possible but only if the Maoists renounce their armed
struggle. Nevertheless, the actions of the king have
added weight to the Maoist analysis of the 1990
settlement's inherent flaws. "[T]he October 4 [2002]
action and subsequent developments have given validity
to the Maoist theory that the 'people-based sovereignty'
enshrined in the present constitution is just an illusion,
and that the ultimate power remains with the King as
long as the army is under his effective control", observes
senior Congress leader Ram Sharan Mahat. "[T]he
insurgency and regression have re-enforced each other
for different reasons".247
Reprinted in Deepak Thapa with Bandita Sijapati, A
Kingdom under Siege: Nepal's Maoist Insurgency, 1996 to
2003 (Kathmandu, 2003), pp. 189-191, 195.
240 Deepak Thapa "Erosion of the Nepali World", in Deepak
Thapa (ed), Understanding the Maoist Movement of Nepal
(Kathmandu, 2003), p. 240. According to a journalist close to
them, the Maoists debated the idea of compromising on a
constitutional assembly as early as February 2001. Crisis Group
interview, Kathmandu, October 2004.
241 Comrade Prachanda, "A Brief Introduction to the Policies
of the C.P.N. (Maoist)", The Worker, February 2004, p. 14;
Thapa and Sijapati, op. cit, p. 201.
242 Crisis Group interview with former mediator, Kathmandu,
October 2004; "Maoists seek a Democratic Nepal: Interview
with Baburam Bhatterai", in Thapa op. cit, p. 331.
243 Prachanda, op. cit, p. 15.
244 Ibid, pp. 15-16; Crisis Group interview with Padma Rama
Tuladhar, former mediator, Kathmandu, 9 October 2004.
245 Crisis Group interviews, Kathmandu, September, October
2004 and January, March 2005.
246 See Crisis Group Report, Making a Bad Situation Worse,
op. cit, p. 10, and Crisis Group Briefing, Responding to the
Royal Coup, op. cit, p. 3.
"Was February 1 necessary?", www.liberaldemocracy, 12 May 2005.
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Page 26
In approaching substantive constitutional questions, the
initial challenge is to break the political deadlock. There
are three main options: an all-party government, which
would operate like a round-table conference; nationwide
elections; and restoration ofthe 1999 parliament. The aim
of any political transition along these lines would be to
reopen democratic space, allowing parties to introduce
policies and fashion a consensus negotiating strategy.
These options follow the logic that moves towards peace
require two distinct stages: first, resolving the power
tussle in Kathmandu between the so-called "constitutional
forces", and only then negotiating with the Maoists. There
is also, however, a fourth option which may be termed the
"Maoist roadmap": to recognise that the resolution of
executive power distribution, discussion of constitutional
change and negotiation of a lasting peace are interlinked
issues that could be addressed within a single-stage
process ifthe Maoists could be persuaded to participate.
Finally, the palace may well have its own vision of future
constitutional arrangements: indications of what these
might be have been outlined in Section III.C above.
Until the royal coup there was one further possible
vehicle for transition: the High-Level Peace Committee
(HLPC), which was disbanded by the king following his
seizure of power. The associated peace secretariat has
now been handed responsibility for investigating the
needs of internally displaced persons.248 The history ofthe
HLPC offers important lessons for any future efforts at
negotiation. Established by the Deuba government on 22
September 2004, it was to be a permanent governmental
structure to provide technical support and a political
mechanism for facilitating talks with the Maoists.
However, it did not fulfil initial civil society hopes for a
non-partisan vehicle that could bridge party differences
and negotiate effectively. The HLPC was compromised
from birth by partisan bickering, while its bureaucratic
structure and staffing failed to draw on conflict-resolution
expertise outside the public sector, antagonised donors
and diminished effectiveness.
The government initially tried to make the HLPC an all-
party body but Congress refused to join, contending that
"the HLPC is a technical body; peace is a political
problem".249 Shorn of bipartisan support, it lacked the
stability for successful, inevitably protracted, negotiations.
An advisory and assistance sub-committee was tasked
with generating initiatives and maintaining momentum
but it would have had to change under a new government.
Thus, the HLPC replicated a critical flaw of the
government's 2003 negotiation team, which was replaced
after Prime Minister Chand resigned in June 2003 250
The HLPC's weaknesses illustrate the futility of a
government negotiating institution that lacks a political
consensus among the democratic parties. Any move by
the palace to negotiate under the current circumstances
would replicate some significant structural flaws of the
HLPC, including the absence of consensus and the use
of institutional formalities in lieu of political will.
A.    An All-Party Government
without a Parliament
The UML, RPP, NSP, NWPP and Janamorcha have
proposed variations on an all-party or roundtable
government bringing together representatives of the
parties with seats in the 1999 parliament.251 Formation of
such a government, however, would require overcoming
significant process-related problems.
While such a government could be constituted in "shadow"
fashion as a symbolic challenge to royal rule, it would
only be effective if accepted by the king, whether willingly
or under pressure. Creating an all-party government
would also require a minimum consensus among the
parties themselves — something that was not possible
before February 2005 ~ and treating its formation as a
prerequisite to peace talks would give each party a de
facto veto on progress with the Maoists.
Further, it is not clear that an all-party government could
overcome the credibility gap from which the Deuba
government suffered. The king's use of Article 127 has
hampered the ability of any post-October 2002
government to act. Rather than making decisions based
on perceptions of the public good, ministers in the
Chand, Thapa and Deuba administrations had to engage
in a complex balancing of their party's interests, their
coalition partners' positions, and their perception of the
king's wishes. An all-party government would not in
itself address the underlying problem of an assertive
monarchy determined to retain a stranglehold on the
political process and the possibility of peace.
In practical terms, an all-party government might have no
more tools to change policy than the Deuba government
had. Without a more fundamental change in institutional
arrangements, the king could still retain veto power over
248 Crisis Group interview with international humanitarian
staff, 21 April 2005.
249 Crisis Group interview with Ram Sharan Mahat, Congress
Central Working Committee, Kathmandu, 5 October 2004.
Crisis Group interview with former government negotiator,
Kathmandu, 8 October 2004.
251 A roundtable government might also include CPN(M).
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Crisis Group Asia Report N°99, 15 June 2005
Page 27
policy and legislative changes, undennining prospects for
the peace negotiations. Although an all-party government
appears attractive because it involves no legal hurdles
(unlike restoration of parliament) or security concerns
(unlike elections), it would have little increased credibility
or leverage to negotiate with the palace or the insurgency.
The Deuba government was set the impossible task of
holding general elections. While its failure was used
by the king as an excuse to seize power, the new royal
administration has not committed itself to parliamentary
elections, preferring to raise the prospect of municipal
polls. With a monarch implacably opposed to helping the
political parties regain legitimacy and the Maoists insisting
they will disrupt any attempt at elections, the prospects
for a new parliament look poor. Elections are more likely
to be deployed as a hollow rhetorical tool or, from the
palace's perspective, seen as a means embedding a more
Panchayat-style government.
As noted, since the inception of their insurgency, the
Maoists have targeted cadres of other parties. Deuba's
dissolution of local governments further deprived many
party workers oftheir most important grass-roots contact.
The withdrawal of police from rural areas has forced
many village politicians to retreat to district centres. The
security situation cannot be improved overnight, even
though the Maoists have since February 2005 encouraged
the workers of other parties to resume working in the
villages. As long as the threat of armed violence ~
whether before, during or after polls — remains credible, a
free and fair election is hard to envisage.
Furthermore, the Maoists are not the only threat to a
democratic election. Voting in the current environment
would be concentrated in urban areas — especially ifthe
call for municipal polls goes ahead — and conducted
under the close supervision of an army allied to the king.
Mstrustof the army runs high among local politicians.
Certain Congress activists contend that soldiers "know
only the language of king and country and don't
understand democracy". They would have to return
to barracks before elections could be fair.252 Even before
February 2005, peace activists report meeting soldiers
posted in Jhapa who told them that politicians had failed,
so the military would not hand back power.253 The
situation has only worsened since the royal coup.
Crisis Group interview, Janakpur, 1 October 2004.
253 Crisis Group interview with peace activist, Kathmandu,
10 October 2004.
It is true that elections have been held in less-than-ideal
security environments: Sri Lanka and Jammu and Kashmir
are cited as examples.254 But recent elections in those
areas show a high human cost in the context of a
continuing insurgency. Elections in Sri Lanka have
been marred by violence throughout the polling
cycle.255 The 2004 parliamentary elections saw five
murders, fifteen serious injuries and more than 2,000
cases of violence.256 In 2002 in Jammu and Kashmir,
more than 800 people were killed prior to balloting; in
some areas, including Srinagar itself, turnout was as low
as 11 per cent. That election's surprising result ~ the
defeat of incumbents ~ was "no panacea", but did mark
"an important step forward".257 But in Nepal, where three
relatively free and fair elections have been held since
1991, a new round would not have any dramatically
new demonstrative effect.
Even if polls were phased and security measures taken,
the Maoists would have no shortage of opportunities to
disrupt the process. Elections generate soft targets ideal
for their low-intensity, asymmetrical warfare: campaign
workers, voters, candidates, administrative staff,
monitors, elected officials and their families are all
vulnerable before and after. Nepal's geography, which
impedes the RNA's counter-insurgency efforts, would
hinder efforts to ensure safety of candidates and voters.
Maoist capacity to attack targets before, during or after
an election would make regional phasing a less than
effective security device.258 If an election were held in
phases, with the RNA moving from one district to
another, the army would lack means to consolidate
temporary improvements in security. Free and fair
elections cannot be guaranteed simply by providing
security at the moment of voting. Genuinely unhindered
participation requires dramatic increase in faith in
the state's ability to protect citizens against violence
and intimidation.
Crisis Group interviews with Nepali politicians, Kathmandu,
October 2004. The Nepali situation, in which elections might
be a step toward conflict resolution, is distinct from instances
in which elections have been held after a peace agreement,
such as El Salvador (1994).
255 Presentations by Arujuna Parakrama and Shakuntala
Rujasingham, Sagun Conference, Kathmandu, 26 September
256 European Union Election Observation Mission, Final
Report, at
257 Crisis Group Asia Report N°41, Kashmir: The View from
Srinagar, 21 November 2002, p. 24; see also Surinder Rana,
"Post-Election Jammu and Kashmir", Strategic Insight, 5 March
258 Crisis Group interview with elections expert, Kathmandu,
October 2004. Presentation by Arjuna Parakrama, op. cit.
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Page 28
c.    a government formed after
restoration of the parliament
Elected in 1999
Parliamentary restoration is viewed as a partisan agenda
and confronts significant legal and political obstacles.
Nevertheless, it may represent the best of Nepal's poor
options for breaking the impasse and offering a return to
constitutional democracy. It is also the only option that has
notably gained ground across a range of constituencies.
Influential commentators without affiliations to Congress
started to argue for restoration from late 2004,259 and it is
an option that had also by then begun to gain ground
among influential diplomats.260 Indications are that the
proposed Common Mnirnum Program ofthe mainstream
parties in response to the February 2005 royal coup may
well endorse restoration as the preferred option for reestablishing democratic institutions261 This position has
already been taken by a group of party representatives in
New Delhi,262 although their views do not necessarily
reflect the final consensus of party leaderships. More
significant is the recent support statement of Nepali
Congress (Democratic), a reversal of previously stubborn
A cabinet and prime minister selected by the 1999
parliament would have a demonstrably democratic
mandate and so be entitled to a more than nominal role
in negotiations. The speaker ofthe dissolved House has
observed that a parliament also could voice "the national
consensus on peace", putting more pressure on the Maoists
to come to the table than the RNA can by military
means.264 Moreover, unlike an all-party government, a
restored parliament would have power to legislate, and
its bills arguably would have legal force even if not signed
See Kanak Mani Dixit "Exit Strategy: Nepali Quagmire",
Kantipur, November 2004, available at www.kantipuronline.
com. Other influential commentators have endorsed
parliamentary restoration. Crisis Group interview withNilamber
Acharya former minister of law, 28 September 2004; Nilamber
Acharya, "Building Political Capital", The Kathmandu Post, 24
September 2004, p. 4.
260 Crisis Group interviews with senior diplomats, Kathmandu
and New Delhi, December and January 2005.
261 Crisis Group interviews with party leaders and activists,
Kathmandu and New Delhi, April 2005.
262 Statement issued on 1 May 2005 and signed by Krishna
Sitaula central committee member, Nepali Congress; Rajan
Bhattarai, International Department UML; Pradip Giri, Nepali
Congress (Democratic); Rajendra Mahato, General Secretary,
Nepal Sadbhavana Party; Dila Ram Acharya Janamorcha
Nepal; CD. Joshi, central committee member, CPN (United).
263 ,r^r£ p^ backs house reinstatement demand",,
5 May 2005.
264 Crisis Group interview, Taranath Ranabhat Speaker of
1999 House of Representatives, Kathmandu, 6 October 2004.
by the king.265 By considering legislative measures to
draw the RNA and the security services at least partially
under civilian control, for example, it could begin to
address Maoist concerns about control ofthe army.266
Furthermore, the House of Representatives has a pivotal
role in the functioning of constitutional bodies. The prime
minister, the House's speaker and the leader of its
opposition sit on the Constitutional Council, which is
central to appointment ofthe Election Commissioner.267
The National Human Rights Commission's appointment
mechanism also assumes the legislature's existence and
requires the participation ofthe prime minister and leader
ofthe opposition.268 Through such appointments, the
House has a critical responsibility for consolidating
democratic principles and ensuring the independence of
constitutional institutions. When the mandate ofthe
National Human Rights Commission expired on 25
May 2005, the royal government appointed new
commissioners via a modified mechanism. Human rights
experts have described this process as illegitimate and in
contravention ofthe "Paris Principles" that guarantee
autonomy, independence, impartiality, efficiency
and professionalism.269
Arguably, the House of Representatives has power to
legislate independent of the National Assembly (the upper
house) and the king. Article 69(5) provides that if it does not
receive a response on a bill, it may "by a resolution passed by
a majority of more than 50 per cent of the sitting members,
present the Bill to His Majesty for assent". Although the
constitution gives no unequivocal answer as to what happens
if the king and parliament disagree, parliament should prevail.
The king can return a bill for reconsideration but parliament
can pass it a second time "as it was or with amendment"; then
the king "shall give assent to that Bill within thirty days of
such presentation". That is, royal failure to assent violates the
constitution, allowing the bill to be deemed signed. Article
69(5), Constitution ofthe Kingdom of Nepal, 1990.
266 Crisis Group interview with human rights activist and
labour dispute mediator, Kathmandu, 28 September 2004. At
least partial civilian control of the RNA and security services
is critical for a peace process due to the spoiler role they could
play, as the army did at Doramba in August 2003. Crisis
Group Briefing, Back to the Gun, op. cit.
267 Articles 103(2) and 117(1) of the 1990 Constitution of
Nepal; see Hari Roka, "Militarisation and democratic rule in
Nepal", Himal, November 2001, p. 59.
268 See Crisis Group Report, Dealing with a Human Rights
Crisis, op. cit.
269 "Human Rights Community Resists Authoritarian Regime",
press statement of the National Coalition of Human Rights
Defenders, Kathmandu, 5 June 2005. The Paris Principles refer
to the "Principles relating to the status and functioning of
national institutions for protection and promotion of human
rights", which were endorsed by UN General Assembly
resolution on 20 December 1993. They describe characteristics
national human rights bodies must have to ensure their integrity
and independence and can be found at
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Page 29
Parliament's restoration would also present an opportunity
to reconsider Prime Minister Deuba's May 2002
dissolution of local elected bodies, the Village
Development Committees (VDCs) and District
Development Councils (DDCs). Described by one analyst
as "a colossal blunder", the dissolution eliminated a power
base for the rival UML but also deprived the people oftheir
most immediate and accessible contact with democracy.270
Under the 1999 law, local government was for the first
time receiving limited funds for development projects.271
Although it may have been too little, this was a significant
break from the practice of development directed by line
ministries in Kathmandu.272 Even if VDCs and DDCs
cannot function in all locations, their renewal would give
mainstream parties a vehicle to reassert their presence and
democratic order at a local level.
Parliamentary restoration also has significant drawbacks.
The notion features most prominently in Congress'
agenda, so it takes on a partisan hue and is resisted by
Congress (D) and the king. The Maoists also oppose it as
"the idea of reactionary forces to dupe the people".273 A
restored parliament, moreover, could descend all too
easily into the internecine, parochial bickering that has
characterised previous sessions. From the start of the
"people's war" in 1996 to 2002 dissolution, parliament
failed to cope with the insurgency. Even ifthe royal coup
has focused minds on a common agenda, the parties are
still fractious. Reconvening parliament would not in itself
make compromise easier nor deliver a coherent agenda.
Such problems could be addressed by restoring parliament
with a mandate limited in time and scope. For example, it
might meet for three to six months with specifically
defined tasks such as to fix an agenda for constitutional
change and to negotiate, based on that agenda, with
the Maoists. It also could decide how to change the
constitution. The sole basis for extending its mandate
would be to allow more time for negotiations.274 The aim
of such talks would be a transitional arrangement — for
example, elections for a constitutional assembly ~ that
270 Gersony, op. cit, pp. 41-42.
271 For details of VDC and DDC functioning, see
"Decentralisation in Nepal: Prospects and Challenges. Findings
and Recommendations of Joint HMGN-Donor Review", March
2001, pp. 2-3.
272 Crisis Group interview with NGO local governance expert,
Lalitpur, 12 October 2004.
273 CPN(M) spokesperson Krishna Bahadur Mahara, cited in
"Conditional", Kantipur, 26 September 2004.
274 A government negotiator in 2003 observed that party
politicians had expected immediate results, and the pressure
had complicated negotiations. Crisis Group interview with
former government negotiator, Kathmandu, October 2004.
would involve the Maoists and end the life of the
parliament. These transitional measures would be more
sustainable because they would have democratic
legitimacy. The restored parliament would be an
intermediate body: although it would operate under
the 1990 Constitution, its restoration would imply no
commitment to that legal regime.
A parliament understood as transitional would be less
likely to be perceived as a vehicle for Congress resurgence.
A compromise on duration and purpose might strengthen
the case for restoration within other parties. However,
there does not appear to be a legal mechanism to limit a
parliament's agenda. The constitution places no constraints
on parliament except for banning discussion of certain
issues,275 thus implying parliament otherwise has freedom
of action. No other institution is vested with power
to limit its term or debate. Nevertheless, there are two
ways to achieve such a restricted parliament. First, an
informal, but public, agreement between parties on a
strictly delimited mandate could be part ofthe negotiations
for restoration. This is the implication ofthe seven-party
agreement, which states that restoration of parliament
is a route to negotiations with the Maoists by an all-party
government.276 Secondly, the Supreme Court has
"extraordinary power to issue necessary and appropriate
orders" to resolve any constitutional or legal questions.277
Using that open-ended authority, it could reconstitute the
House of Representatives with a limited mandate. A
judgement setting forth the goals of restoration would be
an institutional check on free-wheeling partisan debate
since the Supreme Court could consider petitions if the
parliament strayed beyond negotiations and political
Parliament can be restored either by the king, upon
recommendation of the prime minister and cabinet, or
the Supreme Court.279 As a practical matter, either route
would probably require palace sanction, as the instinctively
conservative judiciary would be unlikely to go against
its wishes. The first option would have been feasible
before February 2005 if Deuba's cabinet had been able
to agree on submitting a recommendation. Even
following the dismissal of that government, the king
Most importantly, criticism of the king, queen and heir to
the throne is barred. Article 56(1) ofthe 1990 Constitution.
276 "Parties put support for House revival on paper",, 8 May 2005.
277 Article 88(2), Constitution of the Kingdom of Nepal, 1990.
278 The Court lacks strong sanctions if parliament strays but
it could heighten the cost of exceeding the mandate.
279 A less common opinion, held by at least one senior
Congress official, is that the National Assembly (the upper
house) has the power to restore the House of Representatives.
Crisis Group interview, Kathmandu, 7 October 2004. But it is
difficult to see what legitimacy gain this would bring.
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Page 30
could still invoke Article 127 to restore parliament: there
might be a debate over the legal niceties of such a
move but it would possess more acceptability, both de
jure and de facto, than his 1 February move.
The second path runs through the Supreme Court, a full
bench of which in 2002 endorsed dissolution of
parliament.280 Pivotal to that judgement was a 1995
precedent concerning Man Mohan Adhikari's attempt to
dissolve the House, in which the Supreme Court had
held that if a quarter of the members tabled a no-
confidence motion, the prime minister could not
dissolve the House until that motion was addressed.281 In
2002 the Supreme Court said little beyond noting the
absence of such a no-confidence motion.282
The constitution allows the Court to reconsider its own
judgements; the Judicial Administration Act clarifies that
this must be done by the same bench that initially heard
the case.283 According to a lawyer involved in 2002, only
two of the participating judges have retired and been
replaced.284 A motion for reconsideration might be made
by those who brought the original 2002 action or parties
could file a public-interest case.285 The 1995 judgement
demonstrates that the Court has authority to revoke a
prime minister's dissolution decision. Moreover, sound
280 Crisis Group interviews with Supreme Court advocate,
Kathmandu, October 2004.
281 Ibid. Ravi Raj Bhandari v. The Rt. Honourable Prime
Minister Mr. Man Mohan Adhikari, reprinted in Ram Krishna
Timalsena, ed, Some Landmark Decisions of the Supreme
Court of Nepal (Kathmandu, 2003), p. 18. Article 59(2) ofthe
1990 Constitution envisages no-confidence motions: "One-
fourth of the total members of the House of Representatives
may table in writing a no-confidence motion against the Prime
Minster"; that motion is subject to majority vote. Article 59(3)
ofthe 1990 Constitution of Nepal.
282 Crisis Group interviews with Supreme Court advocate,
Kathmandu, October 2004. According to a commentator,
Deuba brought the dissolution motion to King Gyanendra late
one evening. Although King Birendra's practice had been to
consult with legal experts on a dissolution request Gyanendra
authorised it that evening Crisis Group interview, Kathmandu,
October 2004.
283 "The Supreme Court may review its own judgement or
final orders subject to the conditions and in the circumstances
prescribed by law". Article 88(4) of the 1990 Constitution of
284 Crisis Group interview with Yubaraj Sangroula, Dean of
Kathmandu School of Law, Kathmandu and counsel for Hari
Nepal and Ganesh Pandit, 21 October 2004.
285 Ibid. Professor Sangroula posited that Deuba's appearance
before the Court arguing for reinstatement of the 1999
parliament would have a powerful effect, ft seems unlikely,
however, that he could be persuaded to concede that changed
conditions wanant reconsideration of his May 2002 decision.
legal grounds exist for revising the 2002 judgement.286
The constitution specifies that the king, upon dissolving
the House, "shall...specify a date, to be within six
months, for new elections... "287 In other words, "holding
an election is a condition subsequent for dissolving the
parliament".288 Absent the stipulated elections, the
argument that the proper remedy is restoration of the
1999 parliament gains strength.
Again there would be a debate over technicalities, not
least the question of whether the parliament's term
expired irrevocably in 2004, five years after its
election. But the challenge is primarily that of finding
a politically acceptable way out. Any attempt to
restore parliament through royal fiat or the Supreme
Court would confront significant political obstacles.
In practice, the Supreme Court route would almost
certainly be dependent on royal approval. Initially, the
Court was dominated by individuals with strong party
loyalties, particularly to Congress. The main such voices
having left the bench, most judges now are former
bureaucrats "with no loyalty except to the establishment
of the day", that is, the palace.289 Unsurprisingly, the
bench has adopted "a soft touch" toward the military,
declining to issue contempt citations on the detentions
issue.290 In January 2005 it refused to register a petition
for parliament's restoration291 and in May it similarly
rejected an effort to convene a sitting of the House to
consider royal orders issued under Article 127.292 The
new Chief Justice, Hari Prasad Sharma, has gone out of
Crisis Group interviews with lawyers, Kathmandu, October
287 Article 53(4) ofthe 1990 Constitution of Nepal.
288 Crisis Group interview, Nilamber Acharya, former Law
Minister, Kathmandu, 28 September 2004. Former Chief
Justice Biswanath Upadhyay made a similar observation.
289 Crisis Group interviews with lawyers, Kathmandu, October
290 Crisis Group interview with law professor, Kathmandu,
October 2004. The Court has censured officers for failing to
respond in habeas corpus proceedings. Jogendra Ghimire,
"Court Calls", The Nation, 4 July 2004, p. 11. In a meeting
with the Chief Justice on 22 November 2004, Chief of Army
Staff Pyar Jung Thapa promised that the RNA would respect
court orders, "SC asks RNA to obey orders",
26 November 2005. Nevertheless, an environment of legal
impunity for the security forces remained in place. See Crisis
Group Report, Dealing with a Human Rights Crisis, op. cit,
24 March 2005 and Amnesty International, "Nepal: Killing
with impunity", 20 January 2005, ASA 31/001/2005.
291 Kantipur, 17 January 2005.
292 "SC rejects writ asking House session",,
19 May 2005.
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Page 31
his way to support the royal coup and denigrate the
democratic process.293
The Attorney General argues that once the king assumes
power through Article 127, no parliamentary restoration
is possible.294 This bare assertion, however, runs contrary
to Article 127's text, which requires parliamentary approval
of royal measures taken under that provision of the
constitution. Nor does the article express any preference
between restoration and fresh elections in the unanticipated
situation Nepal now finds itself in. Council of Mnisters
Vice Chairman Peter Giri has underlined the
powerlessness ofthe courts by pressing the parties to take
their demand for restoration to the Supreme Court
while simultaneously noting that the parliament is
"already dead".295 He had previously called the
demand for restoration of democratic institutions itself
"undemocratic".296 A judicial challenge to dissolution thus
may require the same political pressures on parties and
king as the overtly political route.
The king has steadfastly opposed parliamentary restoration
but it may yet offer the best hope for salvaging his own
interests. His primary concern is survival ofthe monarchy,
which requires a modicum of public support.297 The
most significant blows to King Gyanendra's legitimacy
have been self-inflicted. By late 2004 polls showed a
two to one disapproval of his October 2002 dismissal
of Deuba.298 The popularity ofthe February 2005 coup
has not been put to the test but there are no concrete
signs that nationwide opinion has altered significantly.
By initially declining to rule directly, the king appeared
to recognise that there is scant support for an absolute
monarchy. But the February 2005 takeover has entirely
Speech delivered on 20 March 2005 at the 11th Conference
ofthe Chief Justices of Asia Pacific.
294 "No constitutional basis for House reinstatement: AG",, 11 May 2005.
295 "Knock the door of court instead of protest: Giri",, 5 June 2005.
296 „q— iashes out at parties, marks 100 days since Feb 1",, 12 May 2005.
297 Gyanendra's efforts to shore up legitimacy are particularly
important in light ofthe inauspicious way he came to the throne,
following Prince Dipendra's 1 June 2001 massacre of King
Birendra and members ofthe royal family, and the unpopularity
of his son, Paras, who has a reputation for violent and dissolute
behaviour. Crisis Group interviews, Kathmandu, October 2004.
Amy Waldman, "Kathmandu Asks: Is Gyanendra Smoking as
Nepal Burns?", The New York Times, 25 April 2004.
298 A nationwide survey and one limited to the Kathmandu
Valley yielded similar results: about 50 per cent condemning the
king's action, and about 25 per cent approving. Greenberg
Quinlan Rosner Research Inc., op. cit, p. 5 (nationwide); Kunda
Dixit, "Yes and No", Nepali Times, 15-21 October 2004, p. 5
(Kathmandu Valley only).
removed the notional separation between king and
political power.
Responsibility for addressing the insurgency, and for
all other government policy, is now attributed directly
to the king. Restoring parliament may be one way the
king can separate himself from daily politics and
recapture some of his lost legitimacy. For those who
support the palace but also insist on the parties' continuing
significance, parliamentary restoration would furnish
an opportunity to encourage meaningful partnership
between the two power centres. Given the heightened
mutual suspicions since the February coup, this may
well be the last chance to salvage a compromise
which an increasing number of observers suspect may
already no longer be viable.
D.    The "Maoist Roadmap"
The Maoists have long put forward their own roadmap
for ending the conflict: a roundtable conference, followed
by an interim government and an elected constitutional
assembly.299 There are many reasons for questioning
whether Maoist assurances that they would follow such a
process were it to be initiated can be taken at face value.
Nevertheless, the idea of accepting the modality of a
constitutional assembly as a means of encouraging — or
even forcing ~ Maoist participation has gained wide
acceptance among non-Maoist parties and opinion-
formers, including some in the royalist RPP, since
the failed 2003 talks. United Nations Assistant Secretary
General Kul Chandra Gautam recently insisted that "ways
can be found to accommodate the Maoist demand of
a round-table conference, an interim government and
some form of constituent assembly that is consistent with
[democratic] principles".300 It should not, therefore,
be dismissed out of hand. Nor should it be accepted
Even ifthe Maoists opt for negotiations, their writings
provide grounds to doubt that they would accept any
unfavourable outcome of a constitutional assembly. In
particular, the Maoists' insistence that they favour
democracy should be viewed with caution given the
understanding of that term in the Marxist-Leninist and
Maoist traditions.301 They have expressed scepticism
Prachanda, op. cit, p. 14. Maoist political goals will be
discussed in detail in a forthcoming Crisis Group report.
300 Kul Chandra Gautam, "Mistakes, miscalculations &
middle ground",, 4 April 2005.
301 The Maoists' debt to Leninism further counsels caution
regarding endorsement of a constitutional assembly. Previously
scheduled elections to a Russian constituent assembly were held
after the Bolsheviks seized power in November 1917. In terms
strikingly similar to those ofthe Nepali Maoists, Lenin endorsed
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Crisis Group Asia Report N°99, 15 June 2005
Page 32
about the validity of the adult franchise as long as
institutions like the army, bureaucracy and judiciary
exist.302 They eulogise the Paris Commune of 1871, which,
according to Marx, achieved a government of "plain
working men" by tearing down the foundations of the
bourgeois state — police, army, churches and courts.303
Mao in turn defined new democratic constitutional
government as "the joint dictatorship of several
revolutionary classes over the traitors and reactionaries"
and rejected "bourgeois democracy" as practised in Europe
and the U.S.304 The Maoist Chairman, Prachanda, recently
reminded an international audience that "there will be free
competition among political parties, [provided they]
oppose feudalism and imperialism and work for the
service ofthe masses", a definition that could in practice
be highly restrictive.305 Indeed, attacks on other parties'
cadres, most recently Janamorcha's, suggest a commitment
to multi-party democracy that is only contingent and
instrumental.306 The softening oftheir line since February
2005, to the extent that even the RPP is gradually restarting
political activities in rural areas,307 may be only a tactical
The Maoists have explained that negotiations and military
actions are complementary means of achieving the same
end-goal of a people's republic.308 Recent documents
relating to the CPN(M)'s third plenum, in August 2004,
make no mention of a constitutional assembly or any
political compromise. Rather, they depict an insurgency
that has not suffered significant military setbacks, even
after the 2001 deployment ofthe Royal Nepalese Army,
the assembly as a "perfectly legitimate part of the program of
revolutionary Social-Democracy", because it "represents the
highest form of [bourgeois] democracy", "Theses on the
Constituent Assembly", in V.I. Lenin, Resistance and the State
(Sydney, 2001), p. 113. Once defeated in the elections,
however, the Bolsheviks dissolved it. Lenin gave an extended
explanation of why the elections could not be trusted. Ibid, pp.
117-135. Mao's approach to alliances under "democratic"
banners was similarly pragmatic. See Mao Zedong, "On the
Chungking Negotiations", Beijing, 1967.
302 Prachanda, op. cit, pp. 12, 26.
303 Karl Marx, "The Civil War in France", in Robert C. Tucker
(ed.), The Marx-Engels Reader, 2d. ed. (New York, 1978), pp.
304 Mao Tse-Tung, "New-Democratic Constitutional
Government", Beijing, 1967, p. 3.
305 "We are trying to crash feudal autocracy ", Interview
with Prachanda, Time Asia, 25 April 2005, available at
306 Crisis Group interviews with Janamorcha activists,
Baglung, 20 January 2005; Binod Tripathee, "Maoists attack
PFN activists, The Kathmandu Post, 2 October 2004.
307 Crisis Group interview with RPP leader, Kathmandu, 25
April 2005.
308 See "Interview with Comrade Prachanda", in Thapa, op.
cit, pp. 215-216.
and promise a "strategic offensive raising the process of
revolutionary transformation to a new height".309 In its
post-coup crackdown, the RNA has inflicted heavy
casualties on the rebels, for example killing an estimated
150 Maoists in a single battle at Khara, in mid-western
Rukum district, on the night of 7-8 April 2005. Yet these
casualties were suffered in the context of a Maoist attack.
The Maoist capacity and appetite for offensive military
action is apparently unabated.
Any stated Maoist commitment to democratic politics
can thus hardly be taken for granted. The Maoists have
also insisted from the outset that the greatest sin of true
revolutionaries is to abandon the struggle without
achieving the ultimate goal.310 Nonetheless, renewed
Maoist involvement in the political process is not
impossible. There are precedents for moving from
armed struggle to peaceful mass movement according to
circumstances and without abandoning overall aims.311
The Maoists did take part in the 1991 election. Other
leftist politicians who once espoused violent change,
like the leaders of a 1971 uprising in the eastern district
of Jhapa, have found their way back to democratic
According to those in contact with the party, it stresses
willingness to accept "the people's mandate" as expressed
through a constitutional assembly.313 Maoist leaders have
309 CPN(M) Central Committee, "Press Statement", 31 August
2004, available at
310 "We are firm that it is a crime against the proletariat and the
general masses ofthe people to start an armed struggle without
the firm conviction of carrying it out to the end. We shall never
allow this struggle to become a mere instrument for introducing
partial reforms in the condition of the people, or terminating in
a simple compromise by exerting pressure on the reactionary
classes", "Theoretical Premises for the Historic Initiation ofthe
People's War", in Some Important Documents of Communist
Party of Nepal (Maoist), (Janadisha Publishers, 2004).
311 The mainstream ofthe Indian Naxalite movement, for
example, has rejected the armed struggle for some three decades.
The Communist Party of India (Marxist-Leninist), which views
itself as the inheritor of Naxalite leader Charu Mazumdar's
legacy, has long argued in favour of grassroots work to develop
a mass political base rather than adopting "left-adventurist"
tactics of taking up arms prematurely. Baburam Bhattarai's
reference to Engels' critique of Bakuninist revolutionaries in
nineteenth century Spain (fh. 319 below) might indicate potential
parallels in the Nepal context.
312 For a brief account of the Jhapa uprising, modelled on the
Naxalite movement of neighbouring West Bengal, see
Hoftun, Raeper, and Whelpton, op. cit, pp. 83-84. One of its
leaders, Radha Krishna Mainali, has now completed his
traverse of the political spectrum by becoming a minister in
the post-February 2005 royal government.
313 Crisis Group interviews, New Delhi, September, November
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Page 33
insisted on the record that they would abide by the
outcome of a freely elected constitutional assembly,314
while repeatedly expressing a conviction that the electoral
process would deliver the results they desire.315 Since the
royal coup, Prachanda has explicitly reaffirmed this
position, urging other parties to join in the struggle for a
"multi-party people's democratic republic" in order to
safeguard their own future.316
More sceptical observers suspect the Maoists are at least
as wary as other forces of putting their popularity to the
test in a free and fair poll.317 But by the end of 2004,
Prachanda was speaking a language that offered hope for
some common ground with the parties. In two separate
published interviews he emphasised the "completion of
the bourgeois democratic revolution" while staying silent
on the ultimate progression to communism.318 In April
2005, Baburam Bhattarai similarly had recourse to Engels
to explain "why a proletarian party needs to uphold the
program of a bourgeois republic in a country like present-
day Nepal".319
It is certainly possible to treat the Maoist demand for a
constitutional assembly as a peace opportunity rather than
a mere ploy. As in the case of human rights monitoring,320
but with broader significance for a peaceful resolution of
the conflict, this could be an effective way of calling the
Maoists' bluff and challenging them to deliver on their
promises. They would then also face the challenge of
developing a more precise negotiating position on concrete
constitutional change and using force of argument rather
than force of arms to advance their goals.
For example, Prachanda stated that "We are convinced that
the result of elections to a constituent assembly would be on
the side of full democracy, in other words republicanism.
Nevertheless, we are committed to respecting the outcome of
the constituent assembly whatever it is". Interview, Nepal
Samacharpatra, 20 December 2004.
315 Crisis Group interviews with Maoist sympathisers, Delhi,
November and December 2004, March and April 2005.
316 Prachanda, press statement, 12 April 2005. The term used
in Nepali is bahudaliya loktantrik ganatantra.
317 Crisis Group interviews with political activists and analysts,
Kathmandu and Delhi, February to April 2005.
318 "Hami agragami rajnaitik nikas dinasakne vartako pakshama
chhaun", Janadesh 14(3), 7 December 2004; interview with
Prachanda, Nepal Samacharpatra, 20 December 2004.
319 Baburam Bhattarai, "Royal Regression and the Question
of a Democratic Republic in Nepal", Economic and Political
Weekly, 9 April 2005, available at
320 See Crisis Group Report, Dealing with a Human Rights
Crisis, op. cit, pp. 12, 20-21.
All parties, the palace and the Maoists have
acknowledged the need for constitutional reform. As
the previous section has made clear, however,
differences arise not only over the type of reform
needed but also over how to accomplish it. Three
major models have been put forward: amendment as
prescribed in Article 116 ofthe 1990 Constitution; a
referendum; and a constitutional assembly.
Preferences are dictated largely by the degree of change
a stakeholder wishes. Thus, the palace, Congress (D),
and the RPP have in the past endorsed amendment
through Article 116, which involves the tightest
restrictions. Congress and UML have now committed
themselves to the joint seven-party position of accepting
a constitutional assembly but many within both parties
have previously preferred amendment. The Maoists
have stated firmly that a constitutional assembly is a
non-negotiable bottom line. The choice of vehicles for
constitutional change thus has implications for the
substance of an amended or new constitution.
Three critical considerations arise in the selection of
methodology. First, the Maoists will not accept a
process in which their signature demand cannot be
considered. They must persuade their cadres to accept a
negotiated settlement. Having never been militarily
defeated and wielding local power, CPN(M) cadres are
unlikely to agree to a process that does not appear to
offer even the possibility of considering a republic. The
Maoist demand for a constitutional assembly reflects a
perception that it would be the sole forum in which
republicanism could be considered.321 The leadership's
ability to command continuing support of its political
and military constituencies is critically important.
Otherwise the government would be confronted with a
fragmented, multi-front guerrilla war less amenable to a
negotiated outcome. Recent tensions between Prachanda
and Baburam Bhattarai do not appear to have fractured
the movement but they underline the faultlines that exist
within the leadership and the possibility of more serious
rifts developing. Given Bhattarai's role as the leader of
previous negotiating teams, his apparent demotion may
affect Maoist capacity and enthusiasm for talks.
321 Crisis Group interviews with former negotiators and political
analysts, Kathmandu, October 2004. As explained below,
this is not necessarily correct. The issue could be raised in
an extraordinary constitutional amendment process.
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Secondly, the king requires minimal "implementation
guarantees",322 which are in tension with the democratic
element of any process of constitutional change.
Gyanendra prioritises preserving the monarchy as an
institution and is unlikely to endorse a process seemingly
destined to end it. His antipathy to a constitutional
assembly model derives from this. Guarantee of a
continuing role for the palace may be a condition for a
constitutional assembly. This would be difficult to disclose
publicly and might undermine the legitimacy of the
process. In short, a process of constitutional change must
balance substantive compromises acceptable to major
players with transparency and legitimacy considerations.
The degree to which the palace is willing to compromise
will be critical in determining whether any genuine
tripartite process can go ahead.
Thirdly, the process of constitutional change would occur
in the context of negotiations between the key political
stakeholders. Twice abandoned already, talks would be
delicate and time-consuming.323 Although the interaction
between constitutional change and negotiation has many
aspects, a critical one that would have to shape the major
decision on modalities would be the risk of walk-out: a
constitutional process likely to precipitate that by a
major player should be avoided.
A related question concerns issues too contentious to be
decided by constitutional amendment in the near term,
the role of monarchy being an obvious example. If a
new text leaves open broad possibilities for amendment,
there would be less pressure to achieve an ideal
document immediately. The trade-off between the present
democratic deficit and the need for future stability
may thus be mitigated by the text ofthe constitution.
The 1990 Constitution (Article 116) provides that bills
"to amend or repeal any Article of [the] Constitution,
without prejudicing the spirit of [the] Constitution, may
be introduced in either House of Parliament; Provided
that this Article shall not be subject to amendment". The
"spirit" ofthe constitution is assumed to reside in its
preamble, which enshrines "Adult Franchise, the
Parliamentary System of Government, Constitutional
Monarchy and the System of Multi-Party Democracy",
along with basic human rights and rule of law.324 The
Crisis Group interview with Shiva Hari Dahal, National
Peace Campaign, Kathmandu, 11 October 2004.
323 For recommendations on negotiations in the context of
constitutional change, see Nicholas Haysom, "Negotiating the
Political Settlement in South Africa. Are There Lessons for
Other Countries?", Track Two, vol. 11, no. 3, pp. 35-44.
324 Preamble of 1990 Constitution of Nepal.
interaction between preamble and Article 116 thus limits
the legislature's power to amend the constitution with
regard to the monarchy.
Limits on parliamentary amendment power reflect the
drafters' concern to distinguish between ordinary
parliamentary authority and the extraordinary authority of
a body like a constitutional assembly.325 In incorporating
this into the constitution, they followed a principle
articulated by the Indian Supreme Court, which in a
1973 case held that amendments by the legislature could
not alter the "basic structure" of the constitution.326 The
Indian Supreme Court has been restrained in applying
this doctrine but has twice subsequently used it to strike
down constitutional amendments.327
Nepal's Supreme Court would likely follow this rule. It
has stated that Article 88, defining its jurisdiction, gives
"extraordinary powers to examine the validity of each
and every act carried out in exercise of powers under the
Constitution".328 Although it has never faced the question,
interpretation of Article 116's limits on constitutional
amendment seems to fall squarely within this mandate.
The combination of an unambiguous bar on
reconsideration of the monarchy and the Supreme
Court's ability to enforce that restriction, makes the
Article 116 amendment route attractive for the palace
and unacceptable for the Maoists. It would also require
the CPN(M) to compete first in ordinary parliamentary
elections, which it rejected in 1994 and 1999.329 The
Maoists argue that failure to amend the constitution
during eleven years of parliamentary rule shows an
absence of political will among mainstream parties.
To seek amendment now would be to prescribe "old
S.P.S. Dhungel et al., Commentary on the Nepalese
Constitution (Kathmandu, 1998), p. 147.
326 Ibid, pp. 647-648. His Holiness Kesavananda Bharati
Spripadagalvaru v. State of Kerala and Another, AIR 1973 SC
1461, 1973 (4) SCC 225 ff; Austin, Working a Democratic
Constitution, op. cit, pp. 260-269.
327 P. Sambamurthy v. Andrhra Pradesh, (1987) 1 SCC 362;
L. Chandra Kumar v. India, (1997) 3 SCC 261; S.P. Sathe,
Judicial Activism in India: Transgressing Borders and
Enforcing Limits (2nd ed., New Delhi, 2002), pp. 88-89.
328 Ravi Raj Bhandari v. The Rt. Honourable Prime Minister
Mr. Man Mohan Adhikhari, reprinted in Timalsena, op. cit, p.
7. Article 88 gives the Court "extraordinary power.. .to declare
[a] law as void either ab initio or from the date [ofthe Court's]
decision if it appears that the law in question is inconsistent
with the Constitution".
329 SeeLaldhoj [Baburam Bhattarai], "Proverbial blind men's
portrayal of an elephant", The Worker, February 2004, p. 65.
330 Crisis Group interview with former leftist politician,
Kathmandu, 15 October 2004.
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The amendment process, however, should not be
summarily disregarded. Article 116 does not prevent the
legislature from increasing or decreasing the monarch's
substantive powers, for example by eliminating his
function as supreme commander ofthe RNA.331 Further,
the seemingly conclusive restrictions on Article 116
amendment might be circumvented in two ways that
are at least worth considering as potential vehicles
for compromise between the palace and the Maoists.
First, the constitution could be interpreted to vest the
legislature, but not the Supreme Court, with the power to
decide what is, or is not, consistent with the preamble.
Article 116 explains that only a bill that does not
"prejudic[e] the spirit ofthe Preamble of this Constitution"
can be passed. Read literally, this means that it is the
parliament that must first ascertain the consistency of
any amendment with the preamble. By implication, once
it has decided that there is no conflict, that question may no
longer be open to debate. The Norwegian Constitution
has been interpreted to contain a similar directive only
for the legislature's direction.332 The general notion
that such legal interpretations may be consigned to the
legislature for resolution is common to many constitutional
Secondly, parliament could ignore the restriction on
amendment of Article 116 and replace that article with a
provision allowing wider amendment authority. The
existence ofthe U.S. Constitution is a model for arguably
illegal — but remarkably effective — constitutional change.
The convention of state representatives in Philadelphia
in 1787 had the limited task of improving the Articles
of Confederation, the existing document.333 It not only
produced an entirely new document, but also declined
to follow the ratification procedures in the Articles of
Confederation, instead seeking approval of nine of
thirteen states through special constitutional conventions.334
The continuing legitimacy of the American document
suggests that formalism in drafting procedures is not
necessary, particularly when the regime being superseded
is understood to fall short of popular needs.
At best, this might be a last-ditch option, if all other
avenues to change were obstructed. Nepali constitutional
lawyers doubt it would be politically or legally
Crisis Group interview with Puma Man Shakya, professor
of law, Tribhuvan University, 25 October 2004.
332 Richard Stith, "Unconstitutional Amendments: The
Extraordinary Power of Nepal's Supreme Court", American
University Journal of International Law and Policy, vol. 11,
1996, pp. 73-76.
333 Edmund S. Morgan, The Birth ofthe Republic 1763-1789
(Chicago, 1977), p. 129.
334 Brace Ackerman, We the People 1: Foundations (Boston,
1991), p. 41.
acceptable.335 Nevertheless, ifthe Maoists are willing to
participate in elections for a legislative body with power
to amend the constitution beyond that granted by Article
116, amendment could prove a mode of constitutional
change acceptable to all parties.
The possibility of a referendum has received comparatively
scant attention, and there is little agreement on what
question or questions it might include. It is, however, one
of the options being considered by cross-party working
groups developing a joint position on the royal coup and
ways to end the insurgency.336 Congress has suggested
a restored parliament could legislate a referendum on
whether to hold a constitutional assembly. Use of a costly
device like a referendum to decide on a further process
issue, however, seems unwarranted.337 The Maoists might
push for a referendum on monarchy versus republic.
Indeed, one commentator, citing Australia's 1999
referendum on its constitutional monarchy, has suggested
a referendum with two questions: first, whether Nepal
should be a monarchy or republic; secondly, what kind
of monarchy (active or constitutional) or republic
(democratic or communist).338
A referendum on such a fundamental choice, however,
would risk political breakdown and increased conflict. It
would be an all-or-nothing calculation for Maoists and
king, without institutional guarantees. Unwilling to risk
losing entirely, both would likely use every means at
their disposal, including violence, during the campaign.
The losing side would have little incentive not to dispute
or reject the result. A referendum process alone does not
create mechanisms for building the inclusive governance
framework, even transitionally, that is necessary for a
stable peace.
The hazards of an all-or-nothing enterprise are suggested
by Angola's 1992 presidential elections.339 On 31 May
1991, after more than fifteen years of civil war, the
opposing Movimento Popular de Libertacao de Angola
Crisis Group interviews with Nepali constitutional experts,
Kathmandu, October 2004.
336 Crisis Group interviews with donors and political leaders,
Kathmandu, 25-26 April 2005.
337 Crisis Group interview with Ram Sharan Mahat, Congress
Central Working Committee, 5 October 2004. As an example
of a substantive question a referendum could deal with
Congress has cited whether to keep the multi-party system.
338 Kiran Chalise, "Nepal's Roadmap", The Nation, 27 June
2004, p. 40.
339 See Marina Ottaway, "Angola's Failed Elections" in Krishna
Kumar, Postconflict Elections, Democratisation & International
Assistance (Boulder, 1998), p. 133.
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(MPLA) and the Uniao National para a Independencia
Total de Angola (UNITA) signed the Bicasse Agreement.
In addition to a ceasefire, cantonment, and formation of
a joint army, it envisaged presidential and parliamentary
elections. In September 1992, after a relatively peaceful
campaign and with more than 90 per cent of registered
voters participating, the MPLA's Eduardo dos Santos
secured 49.57 per cent ofthe vote against Jonas Savimbi's
40.07 per cent. The sudden closure ofthe transition with
the MPLA's victory shifted power too suddenly, and
UNITA returned to the battlefield. It is all too easy
to imagine the Maoists acting similarly if faced with
a referendum defeat.
Support for a constitutional assembly has grown rapidly,
especially since the beginning of 2004. Within parties the
idea has spread from the republican student fringes to the
mainstream. Former Congress Finance Minister Ram
Sharan Mahat, for example, has stated that "[t]he country
must be prepared for a radical political solution including
election for a constitutional assembly as demanded by the
Maoists, if that can make them renounce violence and lay
down arms".340 At an April 2005 conference in New
Delhi on Nepal's constitutional crisis organised by
the Indian Supreme Court Bar Association and Human
Rights Law Network, representatives from most
major Nepali parties took this position: "The clear and
unanimous view of all the representatives ofthe political
parties was the consensus was unambiguously in favour
of [a] constituent assembly and for the need for support
from the international community. The ways towards
the formation of the constitutional assembly need to
be explored".341
Even more conservative political analysts are willing to
entertain the idea. Nishchal Nath Pandey, for example,
observes that "[t]he Maoist demands of an election to a
Constituent Assembly could actually start afresh a whole
new set of debates to address the political, economic,
social and ethnic reinvigoration ofthe country". But he
cautions that in the absence of a mature democratic
"Was February 1 necessary?", www.liberaldemocracy
341 See "Constitutional Crisis in Nepal: The Way Forward",
available at The conference
was held on 23 April 2005, and the Nepali political party
representatives were Krishna Sitaula central committee member,
Nepali Congress; Rajan Bhattarai, International Department,
UML; Pradip Giri, Nepali Congress (Democratic); Rajendra
Mahato, General Secretary, Nepal Sadbhavana Party; Swanaam,
spokesperson, Communist Party of Nepal (Unity Centre-Mashal);
CD. Joshi, central committee member, CPN (United).
culture, it could "open a Pandora's box of self-
determination and separatism among various ethnic
groups and tribes".342 Understanding of what exactly a
constitutional assembly would entail also remains
vague.343 The constitutional assembly route has now
been endorsed by the seven-party alliance but only as
one possible option and without detailed consideration
of modalities.344
If momentum for a constitutional assembly continues to
grow, it may be difficult to oppose the idea. For the time
being, however, the palace remains deeply suspicious
and is employing crude methods to try to stifle debate.
Former Supreme Court Justice Laxman Prasad Aryal,
Nepal Bar Association President Shambhu Thapa
and constitutional lawyer Bhimarjun Acharya were
scheduled to address the New Delhi conference but were
unceremoniously removed from their flight as it was
about to leave Kathmandu.345 Lok Raj Baral, a professor
of political science and former ambassador to India, was
arrested in the wake of the 1 February royal coup and
has similarly been prevented from travelling to academic
seminars. He has observed that "those who had argued
for a constituent assembly for ending the present crisis
are hounded and punished. In our case, our opinion has
been taken seriously as if it is going to pose a threat
to the regime".346 But a constitutional assembly, like
constitutional amendment, is a flexible mechanism that
would allow parties to select the issues on the table and
those beyond debate. As a result, it could form part of a
negotiated solution to the conflict in which all parties'
interests were respected.
The promise of a constitutional assembly derives from
Nepal's first days of democracy. On 18 February 1951,
following the Ranas' fall and negotiations in Delhi, King
Tribhuvan declared that the country would be governed
in accordance with a democratic constitution formulated
Nishchal Nath Pandey, "The Crisis in Nepal", Institute of
Peace and Conflict Studies Issue Brief No. 26, New Delhi,
October 2004.
343 Detailed discussion of options for a constitutional assembly
has been helped by a number of newspaper and magazine
articles, particularly from early 2004, and edited collections of
essays such as Rajendra Maharjan (ed.), Rastriya sankat ra
samvidhan sabha (Kathmandu, 2004) and Rajendra Maharjan
(ed.), Kasari banchha sambidhan sabha? (Kathmandu, 2004).
344 "Rashtriya sankat samadhanka lagi sajha sahamati ra
pratibaddhatako ghoshana", statement signed by seven party
leaders, Kathmandu, 8 May 2005.
345 "Former justice, lawyers barred from flying abroad",, 22 April 2005.
346 Professor Lok Raj Baral "How does the February 1 royal
move affect the academic freedom in Nepal?", www.liberal, 8 April 2005.
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Crisis Group Asia Report N°99, 15 June 2005
Page 3 7
by an elected constitutional assembly.347 What form that
assembly would take was never articulated and the promise
never fulfilled. On 1 February 1958 his son, Mahendra,
proclaimed establishment of a commission, not an
assembly, to prepare a draft constitution.348 The
commission, appointed a month later, was advised by
British constitutional expert Ivor Jennings, and the resulting
constitution was promulgated a mere week before
multi-party elections were held on 12 February 1959.349
The idea of a constitutional assembly did not die. Members
ofthe original Communist Party of Nepal who broke from
the main body, like Mohan Bikram Singh and Nirmal
Lama, persisted in underlining the importance of an
assembly through which the sovereign will ofthe people
could be exercised.350 Although subsequently repudiated
by the CPN(M), Singh was instrumental in developing
popular support for communist ideas in Thawang, a
village in northeast Rolpa that has come to be seen as the
Maoist "capital".351
That a constitutional assembly's appeal had not abated
became apparent during the 1990 people's movement. In
early 1990, parties in the United Left Front (ULF) and
radical left parties in the United National People's
Movement (UNPM) demanded a constitution prepared
by a popularly elected assembly. Although the ULF
retreated because of lack of support from its Congress
ally, the UNPM, which included many of today's CPN(M),
continued to press the demand, raising also the possibility
that an elected parliament would approve the final
constitution.352 However, a nine-member committee of
lawyers prepared the 1990 Constitution, and King Birendra
promulgated it.353
A constitutional assembly has been part of the Maoist
agenda since well before 1996 and has become
increasingly popular among student wings of mainstream
parties and some mainstream politicians. Neither the
Maoists nor the others detail how it would function. The
Maoists have stated it would be elected and would embody
See Swarnim Wagle, "Constitutional craft then and now",
The Nation, 31 July 2004, p. 30; Thapa, op. cit, p. 15.
348 Joshi and Rose, op. cit. pp. 212-213.
349 Ibid, pp. 282,292.
350 Philippe Ramirez, "Maoism inNepal: Towards a Comparative
Perspective", in Hutt, Himalayan People's War, op. cit, pp.
231-232. Thapa with Sijpati, op. cit, p. 22.
351 Gersony, op. cit. pp. 23-25.
352 Thapa with Sijapati, op. cit, pp. 33-34.
353 Crisis Group interview with former Justice Biswanath
Upadhyay, 29 September 2004; Krishna Hachhethu, "Transition
to Democracy in Nepal: Negotiations behind Constitution
Making, 1990", Contributions to Nepalese Studies, vol. 21, no.
1, January 1994, p. 101.
"the sovereign rights ofthe Nepali people".354 But Maoist
publications give no hint as to what they expect from a
constitutional assembly. "The Maoists have merely said
that the new constitution must be written by the people",
noted a human rights activist who maintains contacts
with the CPN(M).355
Mainstream political parties offer no more clarity.
According to a lawyer who has participated in debates
within Congress, there is little understanding of how a
constitutional assembly would work.356 Congress and
UML politicians with whom Crisis Group spoke also
were unable to explain. A September 2004 poll in the
Kathmandu Valley found, unsurprisingly, that more
than 60 per cent of respondents did not understand
what a constitutional assembly would entail.357
A larger survey of Nepali public opinion carried out in
November and December 2004 attempted to gauge popular
understandings of the concept with more revealing
results:358 49 per cent of respondents had heard of a
constitutional assembly, of whom 59 per cent claimed to
have some or very good knowledge ofthe notion.359 While
the pollsters claimed that only half of these correctly
identified the true function of a constitutional assembly,
their definition of "correct" and "incorrect" answers was
too narrow.360 Given the sample population, of whom 21
per cent were illiterate and a further 17.3 per cent had no
formal education, the level of understanding was perhaps
Comrade Prachanda, "A Brief Introduction to the Policies
ofthe C.P.N. (Maoist)", The Worker (February 2004), p. 14.
355 Crisis Group interview, Kathmandu, 9 October 2004.
356 Crisis Group interview, Kathmandu, 29 September 2004.
357 Hari Sharma, "What Kathmandu Valley thinks", Nepali
Times, 15-21 September 2004, p. 4.
358 "Nepal: Contemporary Situation", Sudhindra Sharma and
Pawan Kumar Sen, Kathmandu, The Asia Foundation/
Interdisciplinary Analysts, 2005. As with all opinion polls in
Nepal, this study had significant limitations but although the
margin of error is not estimated, its authors made a useful
evaluation of the history of opinion polls in the country and
the limitations of their own survey, pp. 11-12, 16-17. The
poll's 3,059 respondents were selected by random sampling
from 46 of Nepal's 75 districts.
359 Sharma and Sen, op. cit, p. 28.
360 Ibid, p. 29. The authors offered a closed set of statements
among which only "Assembly of elected representatives that
will draft a new constitution" was accepted as "correct".
Those who opted for statements referring to "selected" rather
than "elected" representatives or "amend" rather than "draft a
new" constitution were deemed not to have understood the
concept. But 97 per cent of these respondents agreed that a
constitutional assembly was a representative body that would
effect constitutional change - a reasonable definition. In this
case, 28.2 per cent of all respondents could be said to have a
fair idea of what "constitutional assembly" means.
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Crisis Group Asia Report N°99, 15 June 2005
Page 38
not so unimpressive.361 Nevertheless, this poll, too,
underlined the definitional confusion in the debate. Its
findings reflected the fact that proponents will have to
work harder to develop detailed policies and communicate
them to the electorate. Furthermore, the survey found
that only 16.7 per cent of respondents felt the need for a
new constitution while 34.7 agreed with the statement
that "amendment to the present constitution is required".
The 41.5 per cent who did not know or could not say
may well be open to persuasion.
Ambiguity in the definition of a constitutional assembly
may encourage dangerous misconceptions. Many whom
Crisis Group interviewed, particularly from ethnic and
lower caste groups, expressed hope that a constitutional
assembly could represent their long-suppressed interests.362
As an elected body, however, it likely would be dominated
by the same political parties that controlled parliament
between 1991 and 2002, even ifthe first-past-the-post
election system was not used. Even with augmented
representation, previously disadvantaged groups would
have to bargain and compromise to achieve results with
no guarantee their interests would be reflected in an end
product. "There is a misconception of the constitutional
assembly as a substantive outcome", explained a former
law minister, and many have a flawed understanding
of the difficulties of process and representation that
it entails.363
Despite the efforts of some political scientists and more
diligent political activists, comparative cases are often
cited uncritically. When pressed, civil society activists
and student leaders point to the South African assembly
that met between 1994 and 1996.364 Others point to the
Indian experience.365 Examination of those models,
however, suggests that their translation to the Nepali
context would not be straightforward.
Even better educated poll respondents are often strikingly
ill-informed on political and constitutional questions. For
example, an official European Commission survey, also carried
out in November 2004, found that 50 per cent of British voters
had never heard of the European Constitution their government
had signed earlier in the year, "The Future Constitutional Treaty",
Eurobarometer, available at
opinion/indexen.htm. The sophistication of the Nepali
electorate should not be underestimated.
362 Crisis Group interviews, Kathmandu and Janakpur, October
363 Crisis Group interview, Kathmandu, 28 September 2004.
364 Crisis Group interviews with peace activists and student
leaders, Kathmandu, October 2004.
365 Crisis Group interview, Janakpur, October 2004.
1.       The South African constitutional process
The formal constitution-making process in South Africa
began in 1990. Critical talks between an imprisoned
Nelson Mandela ofthe African National Congress (ANC)
and the National Party (NP), however, started in 1985,
gradually building a shared belief that negotiations were
the solution to the conflict.366 Such a pre-negotiation
appears to have no parallel in Nepal. Even after these
pre-negotiations, the formal process was divided into
an initial phase of "talks-about-talks", a second phase
involving a constitutional assembly, and a final review
by the South African Constitutional Court. The multiple
stages reflect the importance of slowly building common
ground between key players on fundamental issues
of process and substance.
"Talks about talks" began in May 1990, and the first formal
negotiations — the Convention for a Democratic South
Africa ("Codesa") convened in December 1991. In May
1992, the second session of Codesa broke down over
federalism and the composition and role ofthe senate.
Facing escalating political violence, the ANC and NP
resumed talks in April 1993, and an interim constitution
was adopted by "sufficient consensus" on 18 November.367
Besides a transitional government of national unity, it set
forth 34 principles for a final constitution and a framework
for that document's adoption. Hence, the democratically-
elected constitutional assembly had a mandate limited
by negotiated political settlement. This reflected a
compromise between the minority NP's need to
safeguard its position and the ANC's desire for a
constitution based on democratic principles. Despite
this compromise, the final constitution has not lacked
legitimacy or support. The South African example thus
demonstrates that a constitution-making process need
not be impeccable in its democratic pedigree to obtain
popular support.
On 27 April 1994, a 490-member assembly was elected
for a two-year term under a proportional representation
system and tasked with both drafting a new constitution
and acting as a legislature. A 46-member Constitutional
Committee coordinated the former. The interim
constitution required that the finished product be
certified by the Constitutional Court for compliance with
the 34 principles. On 6 September 1996, that tribunal
Hassen Ebrahim, "The Making of the South African
Constitution: Some Influences", in Penelope Andrews and
Stephen Ellman (eds.), Post-Apartheid Constitutions
(Johannesburg, 2001), p. 94.
367 The following account is based on Siri Gloppen, South
Africa: The Battle over the Constitution (Aldershot 1997), and
Haysom, "Negotiating the Political Settlement in South Africa",
op. cit.
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Page 39
concluded that the finished draft fell short in nine
respects.368 Rapid amendment and resubmission led to
the Court approving a new draft in late 1996, which came
into force in February 1997.
The South African experience shows that a constitutional
assembly is hardly a short-cut to political change. Rather,
a constitution-making process is a vehicle for the long,
hard road towards achieving such change. The balance of
interests that was developed is a long way off in Nepal.
Without a similar process of laborious behind-the-scenes
and formal negotiations, it may be difficult for the
political parties, the palace and the Maoists to agree on a
set of shared principles. Moreover, experience suggests
such an agreement could not be made public, due to
pressures from hard-liners on both sides.
2.       The Indian constituent assembly
Proposed by the Indian National Congress in 1934, an
assembly to frame a new constitution was accepted by
the British government in September 1945.369 It had
members elected by provincial assemblies (one seat per
million of population), with Hindus, Muslims and Sikhs
chosen separately in each province, and 93 princely state
representatives. The assembly was dominated by the
Congress party, which swept the 1945 provincial
elections with a 69 per cent majority.370
However, Congress was "socially and ideologically
diverse"; minorities like Christians and Parsis had a voice.
More than 300 of its members participated in the
constituent assembly (legislative), which acted as a
parliament under the 1935 Government of India Act.
Although the assembly's committees included Congress
party chiefs like Jawaharlal Nehru, Maulana Azad,
Rajendra Prasad, and Vallabhai Patel, there were also
notable opponents of Congress, like Bhim Rao Ambedkar
and Saiyed Mohammed Saadulla. Minorities filled
In re Certification ofthe Constitution ofthe R.S.A., 1996,
(4) S.A. 744 (Constitutional Court, 6 September 1996).
369 The following account is based on Austin, The Indian
Constitution, op. cit, pp. 1-25.
370 Under the Independence Act of 1947, Pakistan obtained its
own constituent assembly, which was also the legislature.
Hamid Khan Constitutional and Political History of Pakistan
(Karachi, 2002), p. 67. Although able to frame an Objectives
Resolution in March 1949 that set forth the new state's goals,
the assembly was dissolved by Governor General Ghulam
Mohammad when it attempted to strip him of the power to
dismiss ministers. Ibid, pp. 130-131,136. For discussion ofthe
Pakistani experience, see Crisis Group Asia Report N°86,
Building Judicial Independence in Pakistan, 9 November
2004, pp. 3-5.
important positions: the dalit rights campaigner Ambedkar,
for instance, headed the drafting committee.371
The Indian experience highlights the importance of
strong, nationally-minded leadership and a process that
gives space to minorities. Institutional design must take
into account that Nepal cannot assume a constitutional
assembly would throw up leaders ofthe calibre of Nehru
and Ambedkar. Further, although the Indian case shows
that minority interests can be drawn into constitution-
making without formal mechanisms, Nepal's political
party history of division and rancour and the absence of
a broad-tent grouping like the Indian Congress party
suggest such mechanisms would be needed for minority
3.       Implementing a constitutional assembly
Although the Indian and South African cases offer some
important insights, innumerable practical questions would
arise in designing a constitutional assembly. Three that
initially would need answers are: (i) how to secure the
palace's involvement; (ii) what electoral mechanism should
be used and how minorities could be represented; and
(iii) how the assembly would function.
The threshold consideration for advocates of a
constitutional assembly is how to use implementation
guarantees to obtain the king's cooperation. Some
evidence suggests that Gyanendra is not entirely hostile
to a constitutional assembly. One of his confidants
explained that the critical issue would be the body's
purpose. If it was to advance a republic, the king would
oppose it "totally"; if it was committed to constitutional
monarchy and multi-party democracy and focused on
considering other constitutional issues, he could accept
it.372 Of course such statements have not been tested and
must be judged in light ofthe palace's other actions.
Those involved in the 2003 negotiations hint that they
explored such a compromise but were unable to
conclude it. According to former negotiators, the
possibility of a tacit understanding on a constitutional
monarchy between the palace and the Maoists was
raised that would have secured the palace's consent for a
constitutional assembly, even without pre-negotiated
principles as in South Africa.373 By contrast, a formal
arrangement on these lines could not work, as the
Maoists would have difficulty persuading their cadres to
371 Devanesan Nesiah, Discrimination with Reason? The
Policy of Reservations in the United States, India and
Malaysia (New Delhi, 1999), p. 60.
372 Crisis Group interview, Kathmandu, October 2004.
373 Crisis Group interviews with former government and leftist
negotiators, Kathmandu, October 2004.
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Page 40
accept a constitutional monarchy. The post-February
2005 environment makes it all the more unlikely that
even an informal agreement on protecting the monarchy
could be reached.
A second question to be answered before a constitutional
assembly could be convened concerns the system to
select delegates. One point of consensus is that the body
would be elected. But this consensus does not extend to
the kind of elections. Nepal's first-past-the-post system,
used for parliament, is seen by some as producing social
exclusion.374 In the Tarai, NSP politicians contend that
unfair apportionment dilutes the region's vote.375 If the
electoral system is perceived to exclude sectors of the
population, particularly those who already feel excluded
from politics, the legitimacy ofthe body will suffer.376
A debate on electoral reform, therefore, would have to
precede a constitutional assembly, even if that assembly
had to consider again what kind of electoral system to
write into a new constitution. Prominent political scientist
Krishna Khanal has proposed a more proportional model
with multi-member districts.377 If a proportional model
was difficult to establish and administer in the run-up to
a constitutional assembly, seats could be set aside for
certain social groups, like the ethnic communities and
castes which have been traditionally excluded from
government, and women.
For example, in the Ugandan Constitutional Assembly
of 1994-1995, 214 of 284 delegates were elected through
universal adult franchise. The remaining 70 were selected
by national bodies for discrete interest groups ~ women,
trade unions, the army, and youth.378 Negotiations over
what group representation would supplement the directly
elected seats could, of course, be problematic. Other
devices exist for guaranteeing minority rights, including
pre-negotiated principles as in South Africa, or a
requirement that provisions concerning cultural and
linguistic rights and devolution of power obtain the
support of minorities for passage.379
Finally, there are numerous questions pertaining to
the practical mechanisms of an assembly:
□ Should a constitutional assembly also function
as a legislature, as in India and in South Africa?
Given the complexity of the constitutional issues,
an assembly lasting several years, like South
Africa's, might be necessary.380
□ What would be the agenda? Would the 1990
Constitution be the departure point for analysis
and discussion? A constitutional assembly does
not necessitate radical change: an assembly might
make relatively minor adjustments to the 1990
□ Would all parties be represented on a technical
drafting body? Government bureaucrats and
lawyers tend to be conservative. In Afghanistan in
2002 and Uganda in the early 1990s, drafts were
prepared by a committee of experts and handed
over to an elected assembly that debated them.381
Would foreign experts play a role?
□ What public consultation would be undertaken? In
Uganda, the committee conducted considerable
public outreach and education. In Afghanistan, by
contrast, this was limited and appeared to have
little impact on the eventual product.
□ What would be the procedural mechanics, such as
how the agenda would be set and decisions taken?
Mechanisms should be designed to encourage
consensus, avoiding the winner-takes-all
atmosphere of a referendum. Some matters could
be decided by a simple majority while others might
require a super-majority, for example two-thirds. A
division of subjects by sensitivity might be elaborated.
Also, how would deadlocks be addressed?382
Crisis Group interviews with politicians, student leaders
and dalit activists, Kathmandu, October 2004.
375 Crisis Group interviews, Janakpur, 1 October 2004.
376 One commentator has suggested returning to democracy's
ancient Greek roots with a lottery system for a constitutional
assembly election See Shiva Gautam, "Contours of constituent
assembly", The Kathmandu Post, 6 August 2004, p. 5.
377 Crisis Group interview with Krishna Khanal, Tribhuvan
University, Kirtipur, 7 October 2004; also Krishna P. Khanal,
"Consideration on possible model of proportional representation
for Nepal", unpublished paper in the possession of Crisis Group.
378 John Waliggo, "The main actors in the constitution-making
process in Uganda", in Goran Hyden and Denis Venter (eds.),
Constitution-Making and Democratisation in Africa (Pretoria,
2001), pp. 457-458.
A former politician observed that ethnic and caste groups
would be better off securing a commitment to minority rights
before a constitutional assembly, as broad consensus exists on
those issues, at least superficially. Crisis Group interview with
former Law Minister Nilamber Acharaya, 28 September 2004.
380 Uganda's constitutional assembly inherited a draft from a
prior commission but found four months "totally inadequate"
to complete its task. James Wapakhabulo, "Managing the
constitution-making process in Uganda", in Hyden and
Venter, op. cit, p. 120.
381 See Crisis Group Asia Report N°56, Afghanistan's Flawed
Constitutional Process, 12 June 2003; Waliggo, op. cit, pp.
382 South Africa, for example, maintained the threat of a
referendum in case of deadlock, Gloppen, op. cit. p. 208.
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Page 41
A constitutional assembly would be tasked both with
negotiating a solution acceptable to the sides in the
present crisis and producing a stable governance
framework for the long term. These goals may not be
compatible in every respect. The selection of amendment
mechanisms for a new constitution thus becomes an
important element in considering how much must be
decided immediately. The more open to amendment a
new constitution is, the less the pressure to achieve a
"perfect" document.
In short, a decision to use a constitutional assembly to
resolve the present troubles would be only the beginning.
An assembly would need to be prefaced by considerable
negotiation to ensure that all parties, particularly the
palace, accepted the process. Such acceptance would
more easily be secured through an informal, rather than
a public, agreement. If that happened, the constitutional
assembly route, despite raising many technical issues,
might offer a promising exit strategy for Nepal's conflict.
A comprehensive settlement of Nepal's conflict cannot be
achieved by military means alone nor by cosmetic
changes ~ in whatever direction ~ in the Kathmandu-
based government. Ultimately, sustained negotiations will
have to allow a full range of representatives to deal with
the major questions on the structure ofthe state and polity
that the Maoist insurgency has brought into such sharp
focus. This will inevitably involve revisiting the 1990
Constitution and, most likely, amending or rewriting it.
As this report has outlined, questions of both process
and substance are significant and require further
consideration. But a further political transition will
be required in Kathmandu to reach a point at which
meaningful and inclusive discussions on constitutional
issues can take place. Given the apparent determination
of the new royal government to continue its campaign
against mainstream political parties, it is probable that
such a transition will only happen under pressure. It is
primarily for Nepal's political parties to exert such
pressure but this is a challenge that will require both
steadfastness and a willingness to reform themselves
and win back public confidence. It is not for the
international community to dictate options for
constitutional change. Nevertheless, constructive
engagement may speed the arrival of an environment
conducive to substantive negotiations and a process of
consensual reform.
Any new government aiming for a resolution of the
conflict must be willing to consider the most effective
form of constitutional change. Both constitutional
amendment and a constitutional assembly are far more
flexible vehicles for legal change than they may at first
appear. Whatever process is selected, the king will
require guarantees — formal or informal ~ about how it
is to be implemented if he is to participate. Any process
also must be sensitive to the Maoist leadership's need to
sell a negotiated settlement to its cadres. While initial
negotiations to prepare the ground for substantive talks
may have to be conducted discreetly, the primary
condition for successful revision ofthe constitution will
be the participation ofthe Nepali people. The durability
of any new dispensation will depend on a legitimacy
that can only be granted by a transparent demonstration
of popular will.
Kathmandu/Brussels, 15 June 2005
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Page 42
Boundary representation is
not necessarily authoritative.
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 Towards a Lasting Peace in Nepal: The Constitutional Issues
Crisis Group Asia Report N°99, 15 June 2005 Page 43
The following articles ofthe 1990 Constitution, provided here for ease of reference, are particularly relevant to the
issues discussed in this report. Certain articles have not been presented in full.383
1(1). This Constitution is the fundamental law of Nepal and all laws inconsistent with it shall, to the extent of such
inconsistency, be void.
2. Having common aspirations and united by a bond of allegiance to national independence and integrity of Nepal,
the Nepalese people irrespective of religion, race, caste or tribe, collectively constitute the nation.
3. The sovereignty of Nepal is vested in the Nepalese people and shall be exercised in accordance with the
provisions of this Constitution.
4(1). Nepal is a multiethnic, multilingual, democratic, independent, indivisible, sovereign, Hindu and Constitutional
Monarchical Kingdom.
6(1). The Nepali language in the Devanagari script is the language ofthe nation of Nepal. The Nepali language
shall be the official language.
6(2).     All the languages spoken as the mother tongue in the various parts of Nepal are the national languages of Nepal.
27(1). In this Constitution, the words "His Majesty" mean His Majesty the King for the time being reigning, being a
descendant ofthe Great King Prithvi Narayan Shah and an adherent of Aryan Culture and the Hindu Religion.
27(2).   His Majesty is the symbol ofthe Nepalese nationality and the unity ofthe Nepalese people.
27(3). His Majesty is to preserve and protect this Constitution by keeping in view the best interests and welfare of
the people of Nepal.
31. No question shall be raised in any court about any act performed by His Majesty: Provided that nothing in
this Article shall be deemed to restrict any right under law to initiate proceedings against His Majesty's
Government or any employee of His Majesty.
56(1). No discussion shall be held in either House of Parliament on the conduct of His Majesty, Her Majesty the
Queen and the heir apparent to His Majesty.
88.        Jurisdiction ofthe Supreme Court:
(1) Any Nepali citizen may file a petition in the Supreme Court to have any law or any part thereof declared
void on the ground of inconsistency with this Constitution because it imposes an unreasonable restriction on
the enjoyment of the fundamental rights conferred by this Constitution or on any other ground, and
extraordinary power shall rest with the Supreme Court to declare that law as void either ab initio or from the
date of its decision if it appears that the law in question is inconsistent with the Constitution.
(2) The Supreme Court shall, for the enforcement ofthe fundamental rights conferred by this Constitution, for
the enforcement of any other legal right for which no other remedy has been provided or for which the remedy
even though provided appears to be inadequate or ineffective, or for the settlement of any constitutional or legal
question involved in any dispute of public interest or concern, have the extraordinary power to issue necessary
and appropriate orders to enforce such rights or to settle the dispute. For these purposes the Supreme Court may,
with a view to imparting full justice and providing the appropriate remedy, issue appropriate orders and writs
including habeas corpus, mandamus, certiorari, prohibition and quo warranto:
Provided that:
The full text of the constitution, in English, is available at laws/
 Towards a Lasting Peace in Nepal: The Constitutional Issues
Crisis Group Asia Report N°99, 15 June 2005 Page 44
(a) the Supreme Court shall not be deemed to have power under this clause to interfere with the proceedings
and decisions ofthe Military Court except on the ground of absence of jurisdiction or on the ground that a
proceeding has been initiated against, or punishment given to, a non-military person for an act other than an
offence relating to the Army.
(b) except on the ground of absence of jurisdiction, the Supreme Court shall not interfere under this clause
with the proceedings and decisions of Parliament concerning penalties imposed by virtue of its Privileges.
(3) The Supreme Court shall have original and appellate jurisdiction as defined by law.
(4) The Supreme Court may review its own judgement or final orders subject to the conditions and in the
circumstances prescribed by law.
(5) If His Majesty wishes to have an opinion of the Supreme Court on any complicated legal question of
interpretation of this Constitution or of any other law, the Court shall, upon consideration on the question,
report to His Majesty its opinion thereon.
112(2). Any law, arrangement or decision which allows for participation or involvement of only a single political
organisation or party or persons having a single political ideology in the elections or in the political system of
the country shall be inconsistent with this Constitution and shall be void.
112(3). The Election Commission shall withhold recognition from any political organisation or any party formed
either with the objectives mentioned in clause (2) above or on the basis of religion, community, caste, tribe or
115.      Emergency Power:
(1) If a grave crisis arises in regard to the sovereignty or integrity ofthe Kingdom of Nepal or the security of
any part thereof, whether by war, external aggression, armed rebellion or extreme economic disarray, His
Majesty may, by Proclamation, declare or order a State of Emergency in respect ofthe whole ofthe Kingdom
of Nepal or of any specified part thereof.
(2) Every Proclamation or Order issued under clause (1) above shall be laid before a meeting ofthe House of
Representatives for approval within three months from the date of issuance.
(3) If a Proclamation or Order laid for approval pursuant to clause (2) is approved by a two-thirds majority of
the House of Representatives present at that meeting, such Proclamation or Order shall continue in force for a
period of six months from the date of issuance.
(4) If a Proclamation or Order laid for approval pursuant to clause (2) is not approved pursuant to clause (3),
such Proclamation or Order shall be deemed ipso facto to cease to operate.
(5) Before the expiration ofthe period referred to in clause (3), if a meeting ofthe House of Representatives,
by a majority of two thirds of the members present, passes a resolution to the effect that circumstances
referred to in clause (1) above continue to exist, it may extend the period ofthe Proclamation or Order ofthe
State of Emergency for one other period, not exceeding six months as specified in such resolution, and the
Speaker shall inform His Majesty of such extension.
(6) During a dissolution ofthe House of Representatives, the National Assembly shall exercise the powers of
the House of Representatives for the purposes of clauses (2), (3), (4) and (5) above.
(7) After the State of Emergency has been declared pursuant to clause (1), His Majesty may issue such Orders
as are necessary to meet the exigencies. Orders so issued shall be operative with the same force and effect as
law so long as the State of Emergency is in operation.
(8) His Majesty may, at the time of making a Proclamation or Order of a State of Emergency pursuant to
clause (1), suspend sub-clauses (a), (b), (d) and (e) of clause (2) of Article 12, clause (1) of Article 13 and
Articles 15, 16, 17, 22 and 23 of this Constitution for as long as the Proclamation is in operation:
Provided that the right to the remedy of habeas corpus under Article 23 shall not be suspended.
(9) In circumstances where His Majesty has suspended any Article of this Constitution pursuant to clause (8),
no petition may lie, nor question be raised in any court for the enforcement ofthe fundamental right conferred
by such Article.
(10) If, during the continuance of a Proclamation or Order under clause (1), any damage is inflicted upon any
person by an act of any official which was done in contravention of law or in bad faith, the affected person may,
 Towards a Lasting Peace in Nepal: The Constitutional Issues
Crisis Group Asia Report N°99, 15 June 2005 Page 45
within three months from the date of termination ofthe Proclamation or Order, file a petition for compensation
for the said damage and ifthe court finds the claim valid, it shall cause compensation to be delivered.
(11) A Proclamation or Order of a State of Emergency issued pursuant to clause (1) may be revoked by His
Majesty at any time during its continuance.
116. Amendment ofthe Constitution:
(1) A bill to amend or repeal any Article of this Constitution, without prejudicing the spirit ofthe Preamble of
this Constitution, may be introduced in either House of Parliament:
Provided that this Article shall not be subject to amendment.
(2) If each House, with a two-thirds majority of its total membership attending, passes a Bill introduced pursuant
to clause (1) by a majority of at least two thirds ofthe members present, the Bill shall be submitted to His
Majesty for assent; and His Majesty may, within thirty days from the date of submission, either grant assent to
such Bill or send the Bill back for reconsideration with His message to the House where the Bill originated.
(3) A Bill sent back by His Majesty pursuant to clause (2) above shall be reconsidered by both Houses of
Parliament; and if both the Houses, upon following the procedures referred to in clause (2), resubmit the Bill
in its original an amended form to His Majesty for assent, His Majesty shall grant assent to such Bill within
thirty days of such submission.
117. Constitutional Council:
(1) There shall be a Constitutional Council, for making recommendations in accordance with this Constitution
for appointment of officials to Constitutional Bodies, which shall consist of the following as Chairman and
members: (a) the Prime Minister Chairman; (b) the Chief Justice Member; (c) the Speaker ofthe House of
Representatives Member; (d) the Chairman of the National Assembly Member; and (e) the Leader of the
Opposition in the House of Representatives Member.
118. Provisions Regarding the Royal Nepal Army:
(1) There shall be a National Defence Council of Nepal consisting ofthe following as Chairman and members: (a)
the Prime Minister Chairman; (b) the Defence Mnister Member, and (c) the Commander-in-Chief Member.
(2) His Majesty shall operate and use the Royal Nepal Army on the recommendation ofthe National Defence
(3) The establishment and management ofthe Royal Nepal Army, and other matters relating thereto, shall be
as determined by law.
(4) The National Defence Council shall have the power to regulate its working procedures on its own.
119. Supreme Command ofthe Royal Nepal Army and Appointment ofthe Commander-in-Chief:
(1) His Majesty is the Supreme Commander ofthe Royal Nepal Army.
(2) His Majesty shall appoint the Commander-in-Chief of the Royal Nepal Army on the recommendation of
the Prime Minister.
127.      Power to Remove Difficulties:
If any difficulty arises in connection with the implementation of this Constitution, His Majesty may issue
necessary Orders to remove such difficulty and such Orders shall be laid before Parliament.
 Towards a Lasting Peace in Nepal: The Constitutional Issues
Crisis Group Asia Report N°99, 15 June 2005
Page 46
The International Crisis Group (Crisis Group) is an
independent, non-profit, non-governmental organisation,
with over 110 staff members on five continents, working
through field-based analysis and high-level advocacy
to prevent and resolve deadly conflict.
Crisis Group's approach is grounded in field research.
Teams of political analysts are located within or close by
countries at risk of outbreak, escalation or recurrence of
violent conflict. Based on information and assessments
from the field, it produces analytical reports containing
practical recommendations targeted at key international
decision-takers. Crisis Group also publishes CrisisWatch,
a twelve-page monthly bulletin, providing a succinct
regular update on the state of play in all the most significant
situations of conflict or potential conflict around the world.
Crisis Group's reports and briefing papers are distributed
widely by email and printed copy to officials in
foreign ministries and international organisations and
made available simultaneously on the website, Crisis Group works closely with
governments and those who influence them, including
the media, to highlight its crisis analyses and to generate
support for its policy prescriptions.
The Crisis Group Board ~ which includes prominent
figures from the fields of politics, diplomacy, business
and the media — is directly involved in helping to bring
the reports and recommendations to the attention of senior
policy-makers around the world. Crisis Group is chaired
by Lord Patten of Barnes, former European Commissioner
for External Relations. President and Chief Executive
since January 2000 is former Australian Foreign Minister
Gareth Evans.
Crisis Group's international headquarters are in Brussels,
with advocacy offices in Washington DC (where it is
based as a legal entity), New York, London and Moscow.
The organisation currently operates sixteen field offices
(in Amman, Belgrade, Bishkek, Dakar, Dushanbe,
Islamabad, Jakarta, Kabul, Nairobi, Port-au-Prince,
Pretoria, Pristina, Quito, Seoul, Skopje and Tbilisi), with
analysts working in over 50 crisis-affected countries and
territories across four continents. In Africa, this includes
Angola, Burundi, Cote d'lvoire, Democratic Republic of
the Congo, Eritrea, Ethiopia, Guinea, Liberia, Rwanda,
the Sahel region, Sierra Leone, Somalia, Sudan, Uganda
and Zimbabwe; in Asia, Afghanistan, Indonesia, Kashmir,
Kazakhstan, Kyrgyzstan, Myanmar/Burma, Nepal, North
Korea, Pakistan, Tajikistan, Turkmenistan and Uzbekistan;
in Europe, Albania, Armenia, Azerbaijan, Bosnia and
Herzegovina, Georgia, Kosovo, Macedonia, Moldova,
Montenegro and Serbia; in the Middle East, the whole
region from North Africa to Iran; and in Latin America,
Colombia, the Andean region and Haiti.
Crisis Group raises funds from governments, charitable
foundations, companies and individual donors. The
following governmental departments and agencies
currently provide funding: Agence Intergouvernementale
de la francophonie, Australian Agency for International
Development, Austrian Federal Ministry of Foreign
Affairs, Belgian Mnistry of Foreign Affairs, Canadian
Department of Foreign Affairs and International Trade,
Canadian International Development Agency, Canadian
International Development Research Centre, Czech
Mnistry of Foreign Affairs, Dutch Ministry of Foreign
Affairs, Finnish Ministry of Foreign Affairs, French
Mnistry of Foreign Affairs, German Foreign Office, Irish
Department of Foreign Affairs, Japanese International
Cooperation Agency, Principality of Liechtenstein Mnistry
of Foreign Affairs, Luxembourg Ministry of Foreign
Affairs, New Zealand Agency for International
Development, Republic of China (Taiwan) Mnistry of
Foreign Affairs, Royal Danish Ministry of Foreign Affairs,
Royal Norwegian Ministry of Foreign Affairs, Swedish
Mnistry for Foreign Affairs, Swiss Federal Department of
Foreign Affairs, Turkish Ministry of Foreign Affairs,
United Kingdom Foreign and Commonwealth Office,
United Kingdom Department for International
Development, U.S. Agency for International Development.
Foundation and private sector donors include Atlantic
Philanthropies, Carnegie Corporation of New York, Ford
Foundation, Bill & Melinda Gates Foundation, William
& Flora Hewlett Foundation, Henry Luce Foundation
Inc., Hunt Alternatives Fund, John D. & Catherine T.
MacArthur Foundation, John Merck Fund, Charles
Stewart Mott Foundation, Open Society Institute, David
and Lucile Packard Foundation, Ploughshares Fund,
Sigrid Rausing Trust, Sasakawa Peace Foundation, Sarlo
Foundation ofthe Jewish Community Endowment Fund,
United States Institute of Peace and Fundacao Oriente.
June 2005
Further information about Crisis Group can be obtained from our website:
 Towards a Lasting Peace in Nepal: The Constitutional Issues
Crisis Group Asia Report N°99, 15 June 2005
Page 47
The IMU and the Hizb-ut-Tahrir: Implications of the
Afghanistan Campaign, Asia Briefing N°ll, 30 January 2002
(also available in Russian)
Central Asia: Border Disputes and Conflict Potential, Asia
Report N°33, 4 April 2002
CentralAsia: Water and Conflict, Asia Report N°34, 30 May 2002
Kyrgyzstan's Political Crisis: An Exit Strategy, Asia Report
N°37, 20 August 2002
The OSCE in Central Asia: A New Strategy, Asia Report
N°38, 11 September 2002
CentralAsia: The Politics of Police Reform, Asia Report N°42,
10 December 2002
Cracks in the Marble: Turkmenistan's Failing Dictatorship,
Asia Report N°44, 17 January 2003
Uzbekistan's Reform Program: Illusion or Reality?, Asia
Report N°46, 18 February 2003 (also available in Russian)
Tajikistan: A Roadmap for Development, Asia Report N°51,
24 April 2003
CentralAsia: Last Chance for Change, Asia Briefing N°25, 29
April 2003
Radical Islam in Central Asia: Responding to Hizb ut-Tahrir,
Asia Report N°58, 30 June 2003
CentralAsia: Islam and the State, Asia Report N°59, 10 July 2003
Youth in Central Asia: Losing the New Generation, Asia
Report N°66, 31 October 2003
Is Radical Islam Inevitable in Central Asia? Priorities for
Engagement, Asia Report N°72, 22 December 2003
The Failure of Reform in Uzbekistan: Ways Forward for the
International Community, Asia Report N°76, 11 March 2004
Tajikistan's Politics: Confrontation or Consolidation?, Asia
Briefing N°33, 19 May 2004
Political Transition in Kyrgyzstan: Problems and Prospects,
Asia Report N°81, 11 August 2004
Repression and Regression in Turkmenistan: A New
International Strategy, Asia Report N°85, 4 November 2004
(also available in Russian)
The Curse of Cotton: Central Asia's Destructive Monoculture,
Asia Report N°93, 28 February 2005
Kyrgyzstan: After the Revolution, Asia Report N°97,4 May 2005
Uzbekistan: The Andijon Uprising, Asia Briefing N°38, 25
May 2005
Taiwan Strait I: What's Left of "One China"?, Asia Report
N°53, 6 June 2003
Taiwan Strait II: The Risk of War, Asia Report N°54,6 June 2003
Taiwan Strait III: The Chance of Peace, Asia Report N°55, 6
June 2003
North Korea: A Phased Negotiation Strategy, Asia Report N°61,
1 August 2003
Taiwan Strait IV: How an Ultimate Political Settlement Might
Look, Asia Report N°75, 26 February 2004
North Korea: Where Next for the Nuclear Talks?, Asia Report
N°87,15 November 2004 (also available in Korean and in Russian)
Korea Backgrounder: How the South Views its Brother from
Another Planet, Asia Report N°89, 14 December 2004 (also
available in Korean and in Russian)
North Korea: Can the Iron Fist Accept the Invisible Hand?,
North East Asia Report N°96, 25 April 2005 (also available in
Korean and in Russian)
Pakistan: The Dangers of Conventional Wisdom, Pakistan
Briefing N°12, 12 March 2002
Securing Afghanistan: The Need for More International
Action, Afghanistan Briefing N°13, 15 March 2002
The Loya Jirga: One Small Step Forward? Afghanistan &
Pakistan Briefing NT 7, 16 May 2002
Kashmir: Confrontation and Miscalculation, Asia Report
N°35, 11 July 2002
Pakistan: Madrasas, Extremism and the Military, Asia Report
N°36, 29 July 2002
The Afghan Transitional Administration: Prospects and
Perils, Afghanistan Briefing NT 9, 30 July 2002
Pakistan: Transition to Democracy? Asia Report N°40, 3
October 2002
Kashmir: The View From Srinagar, Asia Report N°41,21
November 2002
Afghanistan: Judicial Reform and Transitional Justice, Asia
Report N°45, 28 January 2003
Afghanistan: Women and Reconstruction, Asia Report N°48.
14 March 2003 (also available in Dari)
Pakistan: The Mullahs and the Military, Asia Report N°49,
20 March 2003
Nepal Backgrounder: Ceasefire - Soft Landing or Strategic
Pause?, Asia Report N°50, 10 April 2003
Afghanistan's Flawed Constitutional Process, Asia Report
N°56, 12 June 2003 (also available in Dari)
Nepal: Obstacles to Peace, Asia Report N°57, 17 June 2003
Afghanistan: The Problem of Pashtun Alienation, Asia
Report N°62, 5 August 2003
Peacebuilding in Afghanistan, Asia Report N°64, 29 September
Disarmament and Reintegration in Afghanistan, Asia Report
N°65, 30 September 2003
Nepal- Back to the Gun, Asia Briefing N°28, 22 October 2003
Kashmir: The View from Islamabad, Asia Report N°68, 4
December 2003
 Towards a Lasting Peace in Nepal: The Constitutional Issues
Crisis Group Asia Report N°99, 15 June 2005
Page 48
Kashmir: The View from New Delhi, Asia Report N°69, 4
December 2003
Kashmir: Learning from the Past, Asia Report N°70, 4
December 2003
Afghanistan:  The Constitutional Loya Jirga, Afghanistan
Briefing N°29, 12 December 2003
Unfulfilled Promises: Pakistan's Failure to Tackle Extremism,
Asia Report N°73, 16 January 2004
Nepal: Dangerous Plans for Village Militias, Asia Briefing
N°30, 17 February 2004 (also available in Nepali)
Devolution in Pakistan: Reform or Regression?, Asia Report
N°77, 22 March 2004
Elections and Security in Afghanistan, Asia Briefing N°31, 30
March 2004
India/Pakistan Relations and Kashmir: Steps toward Peace,
Asia Report N°79, 24 June 2004
Pakistan: Reforming the Education Sector, Asia Report N°84,
7 October 2004
Building Judicial Independence in Pakistan, Asia Report
N°86, 10 November 2004
Afghanistan: From Presidential to Parliamentary Elections,
Asia Report N°88, 23 November 2004
Nepal's Royal Coup: Making a Bad Situation Worse, Asia
Report N°91, 9 February 2005
Afghanistan: Getting Disarmament Back on  Track, Asia
Briefing N°35, 23 February 2005
Nepal: Responding to the Royal Coup, Asia Briefing N°35,
24 February 2005
Nepah Dealing with a Human Rights Crisis, Asia Report N°94,
24 March 2005
The State of Sectarianism in Pakistan, Asia Report N°95, 18
April 2005
Political Parties in Afghanistan, Asia Briefing N°39, 2 June
Indonesia: The Search for Peace in Maluku, Asia Report
N°31,8 February 2002
Aceh: Slim Chance for Peace, Indonesia Briefing, 27 March 2002
Myanmar: The Politics of Humanitarian Aid, Asia Report
N°32, 2 April 2002
Myanmar: The HIV/AIDS Crisis, Myanmar Briefing N°15, 2
April 2002
Indonesia: The Implications ofthe Timor Trials, Indonesia
Briefing N°16, 8 May 2002
Resuming U.S.-Indonesia Military Ties, Indonesia Briefing
N°18, 21 May 2002
Al-Qaeda in Southeast Asia: The case ofthe "Ngruki Network"
in Indonesia, Indonesia Briefing N°20, 8 August 2002
Indonesia: Resources and Conflict in Papua, Asia Report
N°39, 13 September 2002
Myanmar: The Future of the Armed Forces, Asia Briefing
N°21, 27 September 2002
Tensions on Flores: Local Symptoms of National Problems,
Indonesia Briefing N°22, 10 October 2002
Impact of the Bali Bombings, Indonesia Briefing N°23, 24
October 2002
Indonesia Backgrounder: How the Jemaah Islamiyah Terrorist
Network Operates, Asia Report N°43,11 December 2002
Aceh: A Fragile Peace, Asia Report N°47, 27 February 2003
(also available in Indonesian)
Dividing Papua: How Not to Do It, Asia Briefing N°24, 9
April 2003
Myanmar Backgrounder: Ethnic Minority Politics, Asia Report
N°52, 7 May 2003
Aceh: Why the Military Option Still Won't Work, Indonesia
Briefing N°26, 9 May 2003 (also available in Indonesian)
Indonesia: Managing Decentralisation and Conflict in
South Sulawesi, Asia Report N°60, 18 July 2003
Aceh: How Not to Win Hearts and Minds, Indonesia Briefing
N°27, 23 July 2003
Jemaah Islamiyah in South East Asia: Damaged but Still
Dangerous, Asia Report N°63, 26 August 2003
The Perils of Private Security in Indonesia: Guards and
Militias on Bali and Lombok, Asia Report N°67, 7 November
Indonesia Backgrounder: A Guide to the 2004 Elections, Asia
Report N°71, 18 December 2003
Indonesia Backgrounder: Jihad in Central Sulawesi, Asia
Report N°74, 3 February 2004
Myanmar: Sanctions, Engagement or Another Way Forward?,
Asia Report N°78, 26 April 2004
Indonesia: Violence Erupts Again in Ambon, Asia Briefing
N°32, 17 May 2004
Southern Philippines Backgrounder: Terrorism and the Peace
Process, Asia Report N°80,13 July 2004 (also available in Bahasa)
Myanmar: Aid to the Border Areas, Asia Report N°82, 9
September 2004
Indonesia Backgrounder: Why Salafism and Terrorism Mostly
Don't Mix, Asia Report N°83, 13 September 2004
Burma/Myanmar: Update on HIV/AIDS policy, Asia Briefing
N°34, 16 December 2004
Indonesia: Rethinking Internal Security Strategy, Asia Report
N°90, 20 December 2004
Recycling Militants in Indonesia: Darul Islam and the
Australian Embassy Bombing, Asia Report N°92, 22 February
Decentralisation and Conflict in Indonesia: The Mamasa
Case, Asia Briefing N°37, 3 May 2005
Southern Thailand: Insurgency, Not Jihad, Asia Report N°98,
18 May 2005
For Crisis Group reports and briefing papers on:
Latin America and Caribbean
Middle East and North Africa
Thematic Issues
please visit our website
 Towards a Lasting Peace in Nepal: The Constitutional Issues
Crisis Group Asia Report N°99, 15 June 2005
Page 49
Lord Patten of Barnes
Former European Commissioner for External Relations, UK
President & CEO
Gareth Evans
Former Foreign Minister of Australia
Executive Committee
Morton Abramowitz
Former U.S. Assistant Secretary of State and Ambassador to Turkey
Emma Bonino
Member of European Parliament; former European Commissioner
Cheryl Carolus
Former South African High Commissioner to the UK; former
Secretary General ofthe ANC
Maria Livanos Cattaui*
Secretary-General, International Chamber of Commerce
Yoichi Funabashi
Chief Diplomatic Correspondent & Columnist, The Asahi Shimbun,
William Shawcross
Journalist and author, UK
Stephen Solarz*
Former U.S. Congressman
George Soros
Chairman, Open Society Institute
William O. Taylor
Chairman Emeritus, The Boston Globe, U.S.
Adnan Abu-Odeh
Former Political Adviser to King Abdullah II and to King Hussein;
former Jordan Permanent Representative to UN
Kenneth Adelman
Former U.S. Ambassador and Director of the Arms Control and
Disarmament Agency
Ersin Arioglu
Member of Parliament, Turkey; Chairman Emeritus, Yapi Merkezi
Diego Arria
Former Ambassador of Venezuela to the UN
Zbigniew Brzezinski
Former U.S. National Security Advisor to the President
Victor Chu
Chairman, First Eastern Investment Group, Hong Kong
Wesley Clark
Former NATO Supreme Allied Commander, Europe
Pat Cox
Former President of European Parliament
Ruth Dreifuss
Former President, Switzerland
Uffe Ellemann-Jensen
Former Minister of Foreign Affairs, Denmark
Mark Eyskens
Former Prime Minister of Belgium
Leslie H. Gelb
President Emeritus of Council on Foreign Relations, U.S.
Bronislaw Geremek
Former Minister of Foreign Affairs, Poland
I.K. Gujral
Former Prime Minister of India
Carla Hills
Former U.S. Secretary of Housing; former U.S. Trade Representative
Lena Hjelm-Wallen
Former Deputy Prime Minister and Foreign Affairs Minister, Sweden
James C.F. Huang
Deputy Secretary General to the President, Taiwan
Swanee Hunt
Chair of Inclusive Security: Women Waging Peace; former U.S.
Ambassador to Austria
Asma Jahangir
UN Special Rapporteur on Extrajudicial, Summary or Arbitrary
Executions; former Chair Human Rights Commission of Pakistan
Ellen Johnson Sirleaf
Senior Advisor, Modern Africa Fund Managers; former Liberian
Minister of Finance and Director of UNDP Regional Bureau for
Shiv Vikram Khemka
Founder and Executive Director (Russia) of SUN Group, India
James V. Kimsey
Founder and Chairman Emeritus of America Online, Inc. (AOL)
Bethuel Kiplagat
Former Permanent Secretary, Ministry of Foreign Affairs, Kenya
Wim Kok
Former Prime Minister, Netherlands
Trifun Kostovski
Member of Parliament, Macedonia; founder ofKometal Trade Gmbh
Elliott F. Kulick
Chairman, Pegasus International, U.S.
Joanne Leedom-Ackerman
Novelist and journalist, U.S.
Todung Mulya Lubis
Human rights lawyer and author, Indonesia
 Towards a Lasting Peace in Nepal: The Constitutional Issues
Crisis Group Asia Report N°99, 15 June 2005
Page 50
Barbara McDougall
Former Secretary of State for External Affairs, Canada
Ayo Obe
Chair of Steering Committee of World Movement for Democracy,
Christine Ockrent
Journalist and author, France
Friedbert Pfliiger
Foreign Policy Spokesman ofthe CDU/CSUParliamentary Group
in the German Bundestag
Victor M. Pinchuk
Member of Parliament, Ukraine; founder oflnterpipe Scientific and
Industrial Production Group
Surin Pitsuwan
Former Minister of Foreign Affairs, Thailand
Itamar Rabinovich
President of Tel Aviv University; former Israeli Ambassador to the
U.S. and Chief Negotiator with Syria
Fidel V. Ramos
Former President ofthe Philippines
Lord Robertson of Port Ellen
Former Secretary General of NATO; former Defence Secretary, UK
Mohamed Sahnoun
Special Adviser to the United Nations Secretary-General on Africa
Ghassan Salame
Former Minister Lebanon, Professor of International Relations, Paris
Salim A. Salim
Former Prime Minister of Tanzania; former Secretary General of
the Organisation of African Unity
Douglas Schoen
Founding Partner of Penn, Schoen & Berland Associates, U.S.
Par Stenback
Former Minister of Foreign Affairs, Finland
Thorvald Stoltenberg
Former Minister of Foreign Affairs, Norway
Grigory Yavlinsky
Chairman ofYabloko Party and its Duma faction, Russia
Uta Zapf
Chairperson   of   the    German   Bundestag   Subcommittee   on
Disarmament, Arms Control and Non-proliferation
Ernesto Zedillo
Former President of Mexico; Director, Yale Center for the Study
of Globalization
Crisis Group's International Advisory Board comprises major individual and corporate donors who contribute their advice and
experience to Crisis Group on a regular basis.
Rita E. Hauser (Chair)
Marc Abramowitz
Anglo American PLC
John Chapman Chester
Peter Corcoran
Credit Suisse Group
John Ehara
Equinox Management Partners
JP Morgan Global Foreign
Exchange and Commodities
George Kellner
George Loening
Douglas Makepeace
Anna Luisa Ponti
Michael L. Riordan
Sarlo Foundation ofthe Jewish
Community Endowment Fund
Tilleke & Gibbins
International LTD
Baron Ullens
Stanley Weiss
Westfield Group
Yasuyo Yamazaki
Sunny Yoon
Crisis Group's Senior Advisers are former Board Members (not presently holding executive office) who maintain an association
with Crisis Group, and whose advice and support are called on from time to time.
Oscar Arias
Zainab Bangura
Christoph Bertram
Jorge Castaiieda
Eugene Chien
Gianfranco Dell'Alba
Alain Destexhe
Marika Fahlen
Stanley Fischer
Malcolm Fraser
Max Jakobson
Mong Joon Chung
Allan J. MacEachen
Matt McHugh
George J. Mitchell
Mo Mowlam
Cyril Ramaphosa
Michel Rocard
Volker Ruehe
Simone Veil
Michael Sohlman
Leo Tindemans
Ed van Thijn
Shirley Williams
As at June 2005


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