Rule of Law v Rule by Law 

In democratic nations like Nepal, the “rule of law” carries a crucial meaning, as it connotes equal protection of the law and equality before the law to every citizen. It signifies the complete dominance of established legal norms over the impact of arbitrary authority or extensive discretionary powers. On the other hand, “rule by law” refers to the legal system that becomes a means of oppression, enabling the government to enact laws that may lack justice or fairness.

Nepal’s historical background epitomizes the contrast between these two principles. For 104 years, the nation endured the authoritarian rule of the Rana regime, during which the concept of the “rule of law” was virtually non-existent. Instead, Nepal experienced the “Rule of Ranas,” characterized by the absolute authority of the Rana rulers. This period was marked by inequality, the supremacy of the Rana ruler, and a disregard for individual rights. However, Nepal’s trajectory changed dramatically with the advent of democracy in 1950. This marked the beginning of the “rule of law” era in Nepal. Since then, Nepal has promulgated six different constitutions (excluding the Government of Nepal Act-1948) in seven decades, each reflecting the evolving understanding of democratic principles, human rights, and the “rule of law” in the country.

The ideals of the “rule of law” in Nepal are now enshrined in the Constitution of Nepal 2015, emphasizing the fundamental principles of justice, equality, and accountability. According to Article 1 of the Constitution, it holds the utmost authority as the fundamental law of the nation which unambiguously states that any law that contradicts the provisions of the Constitution shall be deemed void to the extent of such inconsistency. This underlines the Constitution’s supremacy and its role in guiding the legal background of Nepal. Furthermore, Article 1(2) of the Constitution levies an obligation on every individual to uphold and protect this Constitution. This obligation ensures the collective responsibility of all citizens to maintain the principles and values provisioned within the Constitution. It works as a reminder that the Constitution is not merely a legal document but a vital foundation for Nepal’s governance, reflecting the aspirations and wills of the people, and the nation’s commitment to justice, equality, and democratic principles. It pursues to ensure that no one, regardless of their position or influence, is above the law. Likewise, the independent judiciary plays a crucial role in upholding these principles and safeguarding citizens’ rights. Despite these optimistic signs of progress, Nepal still faces challenges in fully realizing the “rule of law.” These challenges include the absence of effective mechanisms for enforcing laws and policies, a tendency to interpret laws to suit personal interests, and a growing inclination to assert one’s rights without fulfilling corresponding duties.

Besides, the rule of law holds exceptions too as equality is not an absolute concept. Such as affirmative actions provided to marginalized and privileged groups, criminal immunity to the President, parliamentary privileges, and diplomatic immunity, etc. Regarding affirmative actions, in the case of Indra Sawhney vs. Union of India, as per the AIR (1992) SCC, the Supreme Court of India addressed the national policy of reservation for Backward Classes and its constitutional viability, particularly focusing on the concept of the “creamy layer(individuals within the  reserved categories who are already economically well-off and socially advanced).” The Court upheld the national policy of reservation in support of socially and educationally backward classes. However, it also emphasized the need for identifying and excluding the creamy layer within these classes. This exclusion aimed to extend the benefits of the Rule of Law to those indeed in need among the disadvantaged sections of society. In Nepal, the court ruled in the case of Binay Kumar Panjiyar that reservations should only apply once and cannot be repeatedly used. It also made it clear that individuals from reserved communities in high-level government positions are not eligible for such reservations. The court emphasized the importance of need-based affirmative action over considerations of caste. Thus, these case examples highlight that the role of the court in ensuring access to justice is a crucial aspect of upholding the rule of law.

Analyzing the current scenario, the “rule of law” in Nepal is overshadowed by a disconcerting shift towards “rule by law.” An unstable political environment ( a frequent change in government stance), blatant disregard for Supreme Court rulings (ignorance of court’s precedent), neglect of transitional justice for victims (it’s already been 17 years of promise but still remained unaddressed), escalating corruption, undue political interference, and notorious government scandals ( Refugee Case, Lalita Niwas Case, etc.) have collectively eroded the foundations of justice and governance in the country. These factors emphasize a departure from the principles of the “rule of law,” undermining stability and accountability in Nepal’s legal and political systems. 

For instance, in the case of the transitional justice system of Nepal, even though the Supreme Court’s verdict of 2014 held the government to change a law (The Enforced Disappearances Enquiry, Truth and Reconciliation Commission Act, 2071 (2014)) that seemed unfair to victims and tended to protect perpetrators, the government didn’t start making those changes. It’s already been 8-9 years even after this enactment and our justice system is just revolving around the executive’s power instead of assuring justice to the victims. A New Bill relating to Transitional Justice to reform this 2014 Act is now in consideration in the legislative (House). This proposed Bill permits the dismissal of charges against individuals affiliated with a political party or organization if they have shifted from past violent protests to peaceful activities. 

However, critics fear that this act may threaten the entire Transitional Justice process. Further, the victims of armed conflict (10 years of Maoist Insurgency)are voicing for amendments to that proposed Bill to ensure no amnesty for serious crimes to perpetrators, and securing the informed consent of victims even in cases potentially subject to amnesty. These victims are also concerned over preserving cases pending in regular courts from transfer to transitional judicial commissions and empowering the commissions to address child soldiers, rape, sexual violence, and the removal of statutes of limitations in cases of disappearances.

Thus, the period of transitional justice has already been 17 years, but justice delivery to victims of the armed conflict of 10 years of Maoist insurgency has not been addressed yet. Though there exist several reasons of excuses for addressing the Transitional Justice System for Government, they mustn’t forget that “Justice Delayed is Justice Denied.”

Hence, being optimistic, numerous measures are being undertaken to resolve the erosion of justice and governance foundations in Nepal. These actions comprehend the reformation of transitional justice laws to meet international standards, strengthening political determination to address these issues, and acknowledging the pivotal role of the judiciary. Ensuring constitutional adjustments to secure victims’ rights, stimulating institutions, and nurturing public awareness through legal education are among the strategies. Collectively, these efforts aim to reinstate the rule of law in Nepal closer to a good governance model aligned with democratic ideals.

Adhikari is a law graduate.