Integrity Of Rule Of Law
Dev Raj Dahal
Rule of law is a linchpin of democracy, a linchpin of self-determination aiming to satisfy citizens’ preference for good life. Laws inherited traits such as normative structures, power of command, legitimate authority and binding force of the state seek the possibility for associative relations. In a transition country like Nepal rule of law is a primary condition to stabilise security and authority and set up an order so that citizens reconcile with the violent past and engage in rebuilding peaceful future. There is always a risk of relapse of conflict in a condition of anomie and loss of the template of democracy as a responsive rule if enforcement of law remains weak and rebuilding does not follow the rules of resilience.
Rule of law means more than having coercive norms, procedures and constitution to discipline Nepali society via the discourse on power, knowledge, life, labour and communication. Rule often follows citizens’ rights as incentive for their lawful behaviour and builds the capacity of state to unite society on common interests by imposing legal restraint on the arbitrary act while fostering equality and freedom of the will. The state’s monopoly on power is a sine qua non for nurturing welfare across all Nepalis for the creation of an egalitarian society where citizens and leaders are subject to same laws. If legal order is sullied favouring powerful individuals, citizens will be driven by desires, not solidarity with the community and the multitude of desires will rear lasting clash, not social cohesion.
Rule of law eases the state to integrate citizens using many disciplines according to their utility and practical rationality. Leaders then decide as per constitutional spirit, not personal preference. The courts settle problems on the basis of public reason, norms and procedures. The Constitution of Nepal has embedded laws on popular sovereignty making them source and author of laws and bearer of rights. Due processes of law and human rights values foster their universal personality and co-owner of sovereignty. Democratic quality is tied to rational will of citizens for a unified perspective. Nepali laws are now rights-based which define the sharing of the burden and benefits of political order and claim to lift up human condition so that citizens can settle a life of choice, away from legal domination. Awareness of laws is vital to ward off politics fabricating truth on the penal edifice of power assuming merit of the issues collected from the insight of judges, intellectuals and civil society.
Nepal’s laws blend native legal tradition, the Common Law, human rights, democracy and popular sovereignty. Political authority springs from the collective will of citizens while democracy creates self-binding morals for all. The principles of constitutionalism set the scale of equilibrium between inputs and outputs of polity informed by not human nature but by universal reason, truth and justice which are the basic values for exciting Nepalis to fight eternally. The state sovereignty adds other source of authority though it has been putrefied by many rights and few duties, failure of leaders to assert its authority against predators, closure of its economic space and toleration to anti-state forces. It has cramped the vital aims of laws: govern ties among citizens and the state, provide an order based on fair, accessible and able legislation, administration and adjudication, secure peace and security, conflict resolution, orientation to welfare and regulation of the ties of public and private sphere of civil society.
In Nepal, the traditional legitimacy ingrained in patrimonial authority is shifted to civic elements - rights, election, public opinion, ethical norms and public institutions. This marked a critique against Hindu-Buddhist religion and unitary state. But leaders’ inability to execute secular Constitution to set up new source of legitimacy melted the integrity of law into partisan politics and opened the door to conversion. The burden of authority lies in creating new positive sites for citizens to cooperate. Democracy follows natural laws but its imperfect execution in Nepal has affected the sharing of public goods and opened countless grievances against the perils of ugly syndicates stirring citizens to support the regime to abolish them.
The integrity of rule of law in Nepal has been foiled by undue reliance on external aid, advice and legitimacy, dissimilar interests of non-state groups, business and bureaucracy and party intellectuals vying for cross-purpose legal analysis, not abiding faith in laws’ legitimacy. The antinomy between legal equality of Nepali citizens and their factual disparity has prompted the destitute to struggle for a well-governed space and, consequently, link “rule” with ”law” to erect positive peace. Despite the social inclusion Nepal’s multi-level governance is flawed by the deficits of laws, personnel, infrastructures and resources and facing tension between conformity to tradition and lingering litigation of modernity. The role of civil society in public sphere for reasoned debate and voluntary socialisation and mobilisation of citizens, mediation of opinion and synthesis of diverse interests and ideologies is essential. Rule of law dovetails with democracy while contrasts with authoritarian regimes where decisions are taken without the consent of governed. A legitimate rule presumes Nepali citizens validate rules of governance and its performance. Nepal’s legal system has yet to exonerate itself from privilege and influence of money and power to offer equal opportunity to all citizens including those at the rock bottom of development.
Laws’ autonomy from the realities of power is vital to revive web of civility that link Nepalis with political parties, the media and mediating institutions. They now respond to the narrow network of power - the legal, financial, bureaucratic and political elite - dithering the public interest and plan for the overall progress. The crisis of public education and political representation of underclass need no witness to argue their less clout in vital decisions. If politics does not animate live human relationships - discourse, engagement and compromise - the electoral politics fails to become representative and, thus, politics evokes a void, devoid of substantive issues, inspired job and open legal inquiry. It thwarts the self-correcting means of democratic rule. The more the Nepali leaders are laid bare to brutal human nature favouring patronage, the faster it unfolds unfair legal system to be easily shaken by opinion polls, parties, media, administration, legal technocrats and global civil society.
Many civic groups offer Nepalis vital links to polity. Still, it is the powerful economic interests that seize clout from the legislature to empower the executive branch and practice syndicate regime. Its rationality gives corporate interests natural lead in governing laws battering the vast informal society. To stifle these trends, political parties need to involve citizens in a true democratic discourse about laws, justice and morality in public sphere, party conventions and local bodies. The Right to Information Act in Nepal has invoked public a rationale for every action. But expert language of law and business has occupied the route to power without popular legitimacy.
The economic democracy of Nepal has choked the politics of equality. The autonomy of judiciary is hit at a time when weight on human rights has increased the judicial activism while the penchant of regime to delay the execution its verdicts is climbing up. But it is not without criticism for patrimonialism, cronyism and middleman limping its integrity. Only reasoned and wise judges can see the present in the perspective of the nation’s legal history, reduce the cost of judicial fairness and acquire dynamism in settling backlog cases. Otherwise, murky rules mask the public thirst for dignity awakening Nepalis to believe that origin of poverty springs not from scarcity, lack of productivity, or short of resources but from the decline of ethics in leadership.
Nepal’s constitution has set limits on political domination of citizens by dividing and devolving institutional powers. But citizens’ struggle for rule of law and quality of justice stay alive. Conditioned by self-referential partial frame, political leaders and their legal advisors tend to stifle the spirit of constitutionalism. As a result, democracy lacks internal knack to synchronise intra-societal and inter-institutional functions and manage competing values and interests. Justice, hence, demands public reason, impersonal rules and procedures, not legal pedantry averting the cause of oppressed. It is irrational to reason about laws outside the tradition, social feeling and belief system and set the primacy of laws over innocent citizens to enforce a culture of silence. Nepal’s diverse life-worlds demand a new public rationality in laws so that all the beliefs disfavour acquitting crimes, corruption and impunity.
Citizens are gifted with scores of rights. But its economy is too weak to match. As a result, most of its citizens do not find jobs at home. They are consigned to serve as servants abroad in awful condition. The polity needs to restore pluralist sense of justice. When political power springs from the organised money or organised groups, it cuts deep into the life of legal bureaucracy and its judgment. Such a tendency deflates the trust of the poor in judiciary. Nepali legislators need to focus on new rules of equity which will be based on ethics of truth and facts as hostile witness. A reflective, self-questioning legal culture suitable to Nepal can gain enduring viability to bridle lawless human nature by normative bounds of rule of law and harness social relations governed by the human virtues, not competitive human instinct.