Rule Of Law Or Rule Of Justice?
Dev Raj Dahal
The question of what is just and unjust has plagued the minds of scholars and statesman since ancient time. It has been analysed in both universalistic and culturally relativist terms and on the basis of evolving values of progress, human rights and constitutional state. Legal construction of public order where institutions embody social justice enables citizens’ support each other for collective gain. It cultivates civic virtues, attitudes and dispositions necessary to shape their habits to follow laws and judgment. Rights of citizens embedded in the constitution are connected to laws and duties aiming to improve the standards of living. The right-based culture, however, elevates coercive shadow of law over justice and morality and supports organised class of citizens while Nepal’s politics, society and economy are predominantly unorganised and informal. They lack political agencies for collective action.
In this context, adoption of just polices and doing the right things are measured not simply by economic costs and benefits or utilitarian balance of pain and pleasure but by the intrinsic dignity of all Nepalis irrespective of their caste, class, gender, age, occupation or religious convictions and distinctions. Juergen Habermas argues that legal positivism is not apt for substantive democracy because it ignores social context and remains insensitive to the threat of vested interests which poses difficulty in turning political power responsive to citizens.
The popular sovereignty inscribed in the Constitution of Nepal enables them to leap into history and take charge of their own destiny through self-determination and local self-governance. Trust in the Constitution roots democratic ethos of judicial interpretation of its text with a broad understanding of its spirit without forgetting the condition of ordinary Nepalis and lending them empathy. Nepali courts can properly adjudicate the will of citizens as the bases of the law of the nation and government’s legal-rational authority, if not dominated by wealthy classes. It encourages the marginalised, women, Dalits and the poor to strive for freedom and equality attuned to public international laws. The issues in Nepal are: how laws act on those poor who cannot afford to pay the fees of layers in the court in defence of their cases? How can the democratic idea of majority decision as final judge be consistent with republican tradition of popular sovereignty or “categorical imperative” of moral law articulated by Immanuel Kant?
Rule of law, an application of formalised norms and rules for all, under condition of poverty, hierarchy and patriarchy cannot satisfy Nepalis’ all constitutional rights. In this context laws, as impersonal procedures and enforceable norms, hardly settle rival experiences, values, interests and choices of Nepalis divided by geography, income, social status, education and technology unless common goods are available to all. The deliberative mode of constitution making in Nepal through Constituent Assembly has been expected to reflect its plural traditions of enlightenment and synthesise all the viewpoints of society. Deliberative mode of legislation is the most rational. It helps citizens settle their legitimate public policy concerns in a golden mean. Nepalis’ destiny can be realised by overcoming social evils - poverty, corruption and fatalism affirming equal opportunity and balancing majority rule by human rights of minority.
Nepal’s every political party, civil society, economic and social organisations and the state promise justice to citizens. Do they have institutional and material means to fulfil it or muddle around the power equation and parliamentary coalition of majority? The rule of justice demands the fulfilment of promises and capacitating Nepali state to meet entitlement costs. Otherwise, it stokes a crisis of trust and loss of faith of citizens. The convoluted laws, devoid of procedural rationality, opens loopholes and multiple interpretations by legal experts and incoherent verdicts beyond egalitarian spirit of class compromise. Regular inputs from deliberative public to the legislature and courts democratise laws affirming justice.
Rule of justice has broader scope than the rule of law. It means granting Nepali citizens what they deserve for the realisation of their self-worth and underlies their freedom in the pursuit of their welfare gains. But it limits the freedom within certain boundaries to make it congruent with the general welfare of human beings. Rule of justice seeks to judge laws, society, politics and economy on their consistency with equity, fairness and dignity. Nepal’s underused portfolios of natural, cultural and human resources are ample to enhance progress vital for material basis of justice. But it requires their optimal management, clever use of productivity boosting technology and performing public administration able to energise multitude of public, private, community, civil society, NGOs and voluntary service providers with a rainbow of choices to Nepalis. Fairness entails taxing the wealthy to aid the poor so that their solidarity can make a society of stakeholders cooperative.
The rule of justice is desirable state of affairs for enhancing many levels of social security and corrective and distributive justice to Nepalis so that social contracts at every level of society are glued by mutual obligations. But their lax enforcement is caused by fractious leaders, powerful interest groups, lobby, economic monopoly, predators and forces of globalisation. They skew the goal of Constitution to create an egalitarian society though increased social rights, coordination of public, private and cooperative economy for socialism and group equalisation through differentiated rights promise. These are vital steps to win votes and expand the welfare basis of government.
Citizens’ opportunity for inclusion, proportional representation, job, education, health and care at various span of life adds new strategy to promote their good life so that they defend public order, social cohesion and peace. Nepal’s welfare state seeks to balance welfare growth in respect to individual freedom and sovereign equality but too many rights without matching contribution and duties can impose overload on the state. It can breed dependency and feline disaffection among its citizens. The swollen political classes keep feeding themselves without performing good governance public interests, rebound sclerotic economy animating the spirit of justice and prevent the risks of turning of Nepalis into welfare clients.
So long as rule of law in Nepali is opened to politics and played without mutual accountability and respect among leaders, civic engagement in opinion formation, election and law making becomes tension-filled where the rich fear distributional struggle of the poor to satisfy material justice while the poor, with fire in the bellies, fear the coercive potential of law in a condition of structural injustice. This irony can cut the solidarity of national citizenship and unbound them from community obligation where they live. Law, unbound by canon of justice, is amoral. It fails to abolish the effects of privileges in judgment.
Faustian pact obliges the state to provide security and welfare to citizens in return for their loyalty. This is basis of unity of a pluralist society like Nepal. But the capacity of laws to integrate society and polity faces challenges from the atomising tendency of market, competition among the poor for low wages and their inability to create agency for collective action. Nepal’s transition from pre-national identity to citizenship added inclusion in the edifice of constitutionalism. Just institutions implicate justice which can provide a basis for just public order.
The constitutional separation of power is based on dark view of human nature which drives politics for self-interest and, therefore, checks are placed to avert the fear of tyranny, make leaders rule-bound and secure individual freedom. But the tradition of paternalism in Nepal has made power separation fluid, eroded the efficiency of public institutions to achieve their tasks and dispense justice consistent with the Constitution and SDGs. Public morality of Nepali leaders demands ethical awareness of their power and choice of good over evil. It is rooted in ethical life which tends to secure ordinary Nepalis from human and nature-induced vulnerability and set coherent objective for ecological, social, economic and political justice enabling the poor to satisfy their needs vital for social mobility.
But Nepali polity must balance social inclusion and meritocratic virtue. The link of laws to scientific evidence and reason is obvious but whether its execution and interpretation is driven by conscience or self-interest of interpreter has an effect on democracy. The use of scientific culture can dispel myth and fatalism but in no way they can fulfil Nepalis’ desire for dignity. Nepali leaders, driven by secular traits, needs to embody moral checks and imbibe constitutional spirit on their power lusts.
The supremacy of law in Nepal is often challenged by justice demanding social forces, such as women, Dalits, workers, indigenous, ethnic groups and minorities and entrenched elites whose power impulse favour privileges, impunity and self-righteousness. The constitution cannot be used to justify violence. The crisis of stable political order in Nepal springs from lack of constitutional enlightenment, logical incoherence in the interpretation of laws, basing arguments not on public reason, spirit of constitutionality and universal public morality and structural impediment in recruiting judges.
If law is decided by merit of the case, judicial organ ensures its protection and executive aptly administers law and policies it can lay the groundwork for a liberal adjudication in Nepal. If judges are selected on the basis of partisan prejudice and they have to attend parliamentary probe and hearing the judicial autonomy, integrity, credibility and wisdom suffer. Justice, more than law, is vital to the growth of personality. The practice of constitutionalism is a remedy. It refuses to recognise the power of powerful over the general interest of Nepalis and marks an emancipatory break from popular legal maxim of Nepal “law for the poor, immunity for the rich” for a qualitative change in the nature of rule of law affirming justice.
(Former Reader at the Department of Political Science, TU, Dahal writes on political and social issues)