The role of the rule of law in democracy: Insights on Nepal’s situation

i voted democracy in nepal - voters list
Representational image. Photo: Unsplash/ Parker Johnson

Nepal celebrated its 74th National Democracy Day on February 19. It is important to note that democracy rests on the rule of law, which guarantees that every citizen is treated equally, regardless of their social status. This is why Nepal must continue to prioritise democracy and the rule of law to protect the rights and freedoms of its people.

In a democratic system, citizens have the power to elect their representatives to govern them. This empowers people to have a say in how they are governed and allows them to influence government policies. However, it is important to note that citizens need to periodically evaluate their elected leaders to ensure that they are acting in the best interest of the people.

In Nepal, the tendency of citizens to support or oppose government actions based on their political beliefs and affiliations rather than on the merits and demerits of government actions is a cause for concern, as it shows low levels of awareness and accountability among the people. This often results in politicians not being held responsible for their actions, which can lead to a lack of progress.

The situation demands that citizens make informed decisions and prioritise the merits and demerits of government actions over their political affiliations.

The rule of law for a country’s prosperity

As Winston Churchill famously stated, democracy may not be perfect, but it remains the best system that has been tried and tested throughout history. Despite the challenges that come with democratic processes, as long as everyone adheres to the rules, democracy can be an enjoyable game to participate in. The constitution sets boundaries, laws provide guidance, and judges act as referees in this game.

With a level and impartial playing field, everyone should have the opportunity to participate and relish in this heartfelt game. And just like any game, players must respect the rules and accept the referee’s decisions, even if they disagree. Disregarding the rules will result in consequences, and players cannot simply ignore them without facing the repercussions.

Amidst Nepal’s historical juncture, the entire world’s focus is directed towards the nation as it undergoes a federal transformation. The constitution’s preamble stands firm in its commitment towards creating socialism based on democratic values and principles, including the rule of law. With the constitution firmly in place, some remain optimistic about this vision while others wait for an opening to prove their doubts wrong.

The foundation of democracy lies in the rule of law. It is essential to uphold legal supremacy, maintain transparency in legal proceedings, ensure legal rights, involve citizens in policy-making, stick to the principle of separation of powers, hold the government accountable to the law, prioritise the public interest in administration, encourage public understanding of the law, revise or remove outdated laws, create new laws, strengthen the courts and tribunals, and regularly assess progress towards these goals. Without the rule of law, a country cannot prosper, develop, or protect human rights.

In a democracy, laws are enacted through the election of representatives by the people. While the laws of nature are unchanging, human-made laws are not innate and therefore are referred to as a reflection of policy, with policy serving as the bedrock of the legislative process. Only after a policy has been established can the law-making process commence.

politicians - Monarchy

In Nepal, there has been a concerning trend of attempting to modify laws to benefit those in power. Unfortunately, this has resulted in the application of the Constitution’s articles without proper consideration of past or future outcomes.

Immediate amendments have been made through ordinances, often without due regard for long-term consequences. Despite the inability to amend the interim constitution in the past, efforts were made to do so through ordinances.

As a result, the constitution designed for a specific period has been amended multiple times through this process. Even after the promulgation of the new constitution, similar traits were in practice as several ordinances were created and approved overnight by the President. The use of ordinances as a means of amending acts has generated legitimate concerns regarding the credibility and efficacy of the legal system.

It is of paramount importance to ensure that any revisions made to an Act are carried out through a transparent and democratic process that considers the enduring impact on all parties involved. Achieving this objective would require a comprehensive evaluation of the relevant factors, such as the legal framework, the interests of different stakeholders, and the potential consequences of any proposed changes. By adopting a thorough and rigorous approach to the amendment of acts, we can uphold the integrity and legitimacy of the legal system and promote the rule of law.

When democracy is undermined by the violation of rules and the promotion of conflicting interests, the interests of the people are often forgotten. In our society, where the rule of law and democracy are not yet well-established, there is a risk of turning politics into criminal activity and criminalising political acts in the guise of power.

Failure to bring criminals to justice can lead to serious distortions in the criminal justice system, and the development of a culture that uses crime as a political tool is a dangerous aspect of democracy. Impunity can spread like cancer, weakening the government and its institutions. Investigating every crime and ensuring justice is, therefore, a fundamental responsibility of the state to ensure the safety and security of its citizens.

Nepal, a nation that has been working hard to emerge from conflict, is currently facing a critical challenge in maintaining the delicate balance between democracy, exceptions, and the rule of law. Sadly, the rule of law is being threatened globally these days.

According to the International Commission of Jurists (ICJ) report, Nepal ranks 71 out of 142 countries in the index of rule of law. The transitional justice processes have come to a halt, justice institutions are weak, and systemic discrimination remains prevalent.

Marginalised people face many barriers to justice, progressive laws and jurisprudence are not being implemented effectively, and political influence is weakening institutions. This paints a bleak picture of rampant injustices of all kinds. Addressing these systemic issues, the legacies of the past, and the weakness of our institutions is the only way to achieve true recovery. 

Hope on the horizon

democracy picpedia and presidential system

Despite challenges, Nepal’s situation is relatively favourable compared to other South Asian countries. In terms of the rule of law, Nepal ranks first, with India lagging by seven points in 79th place. A comparative study reveals that our leaders and administrators would benefit from resisting the temptation to disregard the law and govern outside its boundaries.

Our situation is analogous, and we have the potential to do better. Compared to other South Asian nations, we currently face less difficulty in safeguarding human rights, ensuring accountability, promoting equality, upholding the principle of separation of powers, and adhering to the law. This presents both a challenge and an opportunity for us to preserve the essence of democracy by halting any further deterioration of the rule of law.

The federal structure presents an opportunity for us to promote human rights and the rule of law in Nepal. Let us unite our voices and work together to build a brighter future for our country. Although the road ahead may be challenging, we must stay committed to implementing reforms, strengthening institutions, and ensuring access to justice for all.

Let us be the generation that breaks the cycle of impunity, builds a strong rule of law, and establishes a democracy that works for everyone. Together, we can transform exceptions into ideals and make Nepal a shining example of how democracy and the rule of law can bring lasting peace and prosperity.

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Saud is a law student at Far Western University.

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