The Rule of Law: My Understanding So Far

Law Hub Nepal जेठ ५, २०७८
  • Keshav Gharti Magar.

The term “Rule of Law” has a broad meaning. Nobody has defined it precisely to date but it is universally accepted as a fundamental value. In a general way, Rule of law says that every action of government should be under the law or in accordance with the law, government can’t take any action by crossing the boundary of law. In other words, everyone is equal before the law. It is slightly different from the traditional concept “No one is above the law”. The former one focuses on many human rights requirements and always emphasizes on equal protection and equal benefit while the latter one overlooks equal protection and equal benefit. While comparing these phrases i.e. everyone is equal before the law and No one is above the law, they look like the same but they are different substantially from each other. Similarly, the concept of rule of law is changeable. Furthermore, the definition of rule of law depends on the concept and culture of jurists, scholars and the concerned organization/institutions. It can also be taken as the smooth process and practice which aid the resemblance of all the citizen throughout the society, country, and the whole world at large.

The term Rule of law is derived from the French phrase “La Principle de legality”. It means government must be based on principle of law. As said by Ivor Jennings, Rule of law means a phrase for distinguishing democratic or constitutional government from dictatorship. Although the term rule of law emerged against the divine rights of king in 16th century, the popular credit goes to A. V. Dicey who identified it broadly in 19th century. According to him, there should be three characteristics under the rule of law and they are enlisted below.

1. Supremacy of law:

This phrase says that no man can represent himself or herself above the law. No man shall be punished beyond the law. Suppose, you are sitting in the home and police can’t take you to the custody without any reason, there should be arrest warrant.

2. Equality before the law:

Every person is equal in front of the law. Every man should be treated equally either s/he belongs to higher class or caste or lower class or caste. In other words, Law doesn’t see the status, level, caste, race, class etc. of the people.

3. General rules of constitutional laws are the result of ordinary law of the land:

Constitution is the main source of law and it is regarded as the supreme law of the nation. He stated that those countries mostly influenced by common law, give more priority to the decision made by judges compared to written law. It means decisions made by judges afford greater protection to the citizen than a written constitution.

Now we can mention basic principles of Rule of law as follows:

1. Equality before the law
2. Fair judiciary
3. Clear, transparency and constant law
4. Principle of natural justice
5. Right to judicial review

Confirming to World Justice Project, there are four principles of rule of law:
1. Accountability
2. Just laws
3. Open Government
4. Accessible and Impartial

World Justice Project(WJP)in fact, is an international organization who plays an important role to formulate rule of law all around the world. Similarly, the office of rule of law and security institutions (OROLSI) helps countries emerged from conflict by clearing landmines and explosives by training national police. It believes that peace, development and harmony comes by establishing, respecting and enhancing rule of law in every country because rule of law is the fundamental fact and formula to maintain peace, development and security all over the world. It always advocates fair trial and strengthen justice, disarms combatants who fought against the ruling party by disobeying existing laws and support their re-integration into society. It also empowers wartorn countries to build the lasting peace. As per the report of WJP Nepal had been ranked 61st out of 128 countries and jurisdiction worldwide in the rule of law index-2020 which is very pitiable condition.

Then, Is there Rule of Law in Nepal?

Of course, there is rule of law in Nepal but in papers. Thus, it is very difficult for faceless and helpless people to find rule of law in practice in Nepal. Even some common elements of Rule of law i.e. Transparency, Good Governance, Limited role of Government, Human Rights, absence of corruption etc. are not heard and felt by the people. In this situation, the question comes up in our mind: Do we have such kinds of elements of rule of law exist? Obviously not. No. These elements can only be found in papers and statements and speeches particularly expressed by government or PM. But in practice, donism, wealthism, corruptionism, musclism, mafiaism, etc have covered and about to shallow the whole country. Consequently, we faceless and helpless people are under their control. It is heard that even justice is purchased in the court. It means poor people hardly get justice. We have supremacy of power and property not of law. Rule of law has been converted into rule of man having power and property. In fact, what is going on in our country?

Recently we are facing COVID-19 and our government is repeatedly imposing lockdown in the name of controlling COVID-19 pandemic without being responsible towards the health and safety of the citizens of the whole country. People are dying everyday due to the lack of oxygen and without getting proper medications, beds and ICU in the hospital. Last year too government declared lockdown for a long time without applying certain kinds of standards. Thus, the hard worker farmers had to throw milk, vegetables, etc. on the road whereas many vegetables and eatable things were brought from India without any obstacles and barriers. What a wonderful rule of law we have in our country! Many peoples died due to starvation during that time. On the contrary, some so-called elite people and some political organizations kept on violating lockdown challenging the rule of law. We never knew they were punished as per the law existed because everybody knows the rule of law recognize them very well.

Similarly, on behalf of those peoples depending upon daily work based wage earning suffered last year and are suffering a lot this time, our government declared nothing so far to protect their lives. It shows there is a zero responsibility of government towards the citizens of the country. where is the protection of Human rights in this context?

Nirmala Panta, 13 years old girl who was found raped and murdered on 27th July, 2018 and it’s been almost 3 years but the case is still undecided. The police have not succeeded in arresting the actual perpetrator. Many movements/programs were conducted in many places of Nepal but nothing happened & it was not surprising for us because still the murderer of our Late King Birendra & his royal family have been unknown. Then how can Nirmala’s rapist and murderer be found easily? Frankly speaking, if we had rule of law, culprit would be identified, arrested and punished.

There is another remarkable case i.e. house dissolution case. In December 20, 2020 President Bidhya Bhandari dissolved the lower house of parliament on the recommendation of Prime Minister K.P Sharma Oli mentioning Articles 76(1)(7), and 85(1) whereas those articles mentioned are irrelevant in the eyes of law students from the beginning. An interesting fact is that the PM had not mentioned any articles of the constitution while submitting the recommendation to the President. What a shame! Is it called “the rule of law”? Thereafter PM Oli started to introduce some ordinances relating to political parties and the constitutional council and surprisingly those ordinances were swiftly passed by the office of the president. Were those moves of PM as per the rule of law? Similarly, when he was taking the oath of office and secrecy after being appointed the PM, he skipped I vow saying it is not necessary (…TYO PARDAINA..) which was easily accepted by the President Bhandari replying HEE.., HEE… and the process went ahead and was completed. Was that Rule of law? Now it is your turn to answer by thinking about it. Here I don’t want to talk about judicial activism now.

Likewise, in 2020, corruption rank of Nepal was 117 which was increased by 4 because in 2019, Nepal rank was 113. Is it a good sign and symptom of rule of law for any democratic nation? No. definitely not. Because the network of corruption throughout our country has become very thick and hard. It is very difficult to break it since it is grown up under the protection of political leaders particularly of ruling parties and of major parties. Any administrative and governmental works are not possible to be completed on time without paying bribe. In such situation, is the slogan of prosperity is proper and practical?

Well, the attack on the principle of rule of law starts from the election. During the elections, political leaders mobilize criminal/thugs for gaining votes, distribute money and means to the voters and his political workers. Youths like us are used for diesel/petrol, meals and meats. After making us vote bank, they win election. And after election, don and criminals become minister and protect their gangs whereas layman become helpless and faceless. The principle of legal equality or equality under the law are accordingly openly challenged and our Nepali famous proverb, “SANA LAI AIN THULA LAI CHAIN comes into effect everywhere.

To be honest, I don’t normally see and hear any features and elements of rule of law being applied smoothly in practice in our country. Nepal where massive corruption, broad and strong connection between criminal and political leaders, feeling or ego of superiority and inferiority between caste, gender, status, class, etc., disobidence/abuse or misuse of law and order, violation of human rights and so on broadly existed are leading our beautiful country to a hell on earth.

Conclusion

Although there are different kinds of definitions of rule of law as said by many jurists, scholars, political thinker, academician, organization/institutions, etc., the rule of law is the backbone of any country to protect the values of democracy. Only in democracy, it flourishes and nourishes. Even in democracy, it can be viewed by three visions as well i.e. Substantive, Procedural and Institutional. Out of these three visions, Substantive is more important. Procedural relates to Rule by Law. And the last one is associated with law and order which is very common. However, these three visions are interrelated one another. They should be applied strictly as per the democratic norms and values. We have the rule of law in principle or in paper. The constitution of 2072 B.S. is one of the major source of law in our country that guarantees the principle of rule of law. Also, there are many precedents issued by supreme court from time to time, many existing acts, rules, regulations, etc. are to advocate the rule of law but in practice, people are not experiencing the rule of law. It is today’s reality and bitter truth as well.

(Gharti Magar is currently a second semester student pursuing B.A.LL.B at Lumbini Buddhist University.)

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तपाईंको प्रतिक्रिया व्यक्त गर्नुहोस् ।

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