Principles of the Rule of Law
In any civilized society, Laws are made to protect the interests of the citizens such
as their lives and properties and not to oppress them. If these laws that guide the
rights and dictate the powers and functions of the leaders and the people being lead
are seen to be working well, then it must necessarily follow certain rules. This
rules that defines rule of law is the absolute supremacy or predominance of the law
over everybody both the rulers and the ruled. This presupposes that men should
rule according to the law as stated and not according to their own whims and
caprices. This means that government should rule according to the provisions of
the constitution and the government should be subject to the law and not above it.
The doctrine of the rule of law was propounded by Professor A.V Dicey in 1885.
The doctrine has certain principles.
Principles of the Rule of Law
1. Supremacy of the Law: For the laws made to govern the actions of government
and people to work very well, it must have absolute supremacy or predominance
over everybody in the country. This suggests that law must be unique, known and
powerful well and above everyone living within the confines of the country.
2. The Principles of Equality before the Law: This implies that everybody is
equal in the eyes of the law. The law is no respecter of persons. Whether you are
rich or poor, young or old, literate or illiterate, government official or ordinary
citizen, the same law applies to us all. To this extent, if the ruler and the ruled
commit the same offence, the two should be given the same punishment. The law
should not be bent to honour the status, rank or position of a person.
3. The Principle of individual Rights: Laws are made in a country to protect the
interest of the citizens. If the law is to be seen to work well, it must preserve and
protect the rights and freedoms of individuals. Every person has a right to life, no
person shall be subjected to torture or to any form of inhuman or degrading
treatment and he also have the right to work, personal safety, education, property
and the right to vote and to stand as a candidate for election. While it is the duty of
the state to provide necessary rights and liberties to citizens in order to ensure
greater happiness of individual, it is the citizens’ moral obligation to refrain from
interfering with the rights and freedom of other citizens. It is to this end that the
fundamental human rights are entrenched in modern constitutions.
Limitations & Exceptions to the Rule of Law
1 Delegated Legislation: The grant of discretionary powers to Government
Officials to enable them perform their duties effectively can be used against the
citizens. Officials can make statutory regulations that when administered will
abuse the rights and liberties of individuals.
2. Diplomatic Immunity: Ambassadors and diplomats cannot be sued and
prosecuted in countries where they are serving as they are treated as above the law
of the host country, rather they can be repatriated. This undermines the principle of
equality of everybody before the law.
3. Existence of Administrative Tribunals or Special Courts: These courts and
tribunals use special procedures that are not observed in civil courts. This makes
justice obtained in such courts not to be in consonance with the rule of law. More
so, most of the judgements of such tribunals forbids individual rights of appeal.
4. Special Privileges: There are some certain individuals that are immune against
the law of the country. Such people include the President and the Vice President,
Governors, members of the Parliament (National Assembly) and some other high
ranking government officials. Judges are immune from law while adjudicating in
the court. This is to make them to carry out their duty without fear or favour.
5. State of Emergency and War: During certain conditions that are critical which
may make the government to declare a state of emergency or when there is war,
government usually invoke certain discretionary powers. These powers when
exercised by the government usually denies individuals part of their fundamental
human rights as people may be confined to their homes or restricted from carrying
out certain activities or
individuals may be forced to go and fight war to defend their country even if it is
against their wish.
6. Poverty, Illiteracy and Ignorance: Most people especially in developing
countries are illiterates. They do not know how to read and write; hence, they
cannot read and comprehend their rights as entrenched in the constitution.
Sometimes, when they can read, they are ignorant of what constitutes their rights.
While the level of poverty in the country do not allow them to pursue or sue
anyone that infringed their rights.
Rule of law in Nepal
The country located in South Asia, Nepal (officially the Federal Democratic
Republic of Nepal) is a country that is consolidating peace after a decade of civil
conflict. People of Nepal are now trying their best to create a stable constitutional
order to build and sustain a democratic, well-governed state that is responsible to
its citizen. The country is newly declared a secular state to end a long period of
Hindu Kingdom in 2006. Now Nepal is a multi-party system federal republic. The
prime minister is head of government. Government has 3 organs: Executive,
Judiciary, and Legislative. Nepal declared a secular state in Interim Constitution in
2007.
As we all know that the concept of rule of law was developed by A.V Dicey in
1885 AD. In the context of Nepal the word “Rule of Law” was not in the real
practice but there exist rule of law since ancient time. When we see our history we
can find some traces of rule of law in rulers ruling system. In our country since the
ancient time there was some of rule according to law. During the Kirat’s period
Kirati rulers ruled over the people as per ‘Mundhum’.
During the Lichchhavi period, the period which is also known as golden age in our
history, there was also the rule as per the religious text. Rulers or King ruled over
the people according to religious belief and books. All the people’s including king
and his family’s were considered to be under the religion and god. People consider
that god is all supreme and nobody can deny the god’s will. Kings are the
representer of god in earth so everyone should obey the king. The religious text
and beliefs bind the people to obey the king and his rules.
During the Malla period, there were various rulers among them Jayasthiti Malla
was the one who brought a legal document i.e Manab Naya Sastra. During his
period the people were rule according to this document. Jayasthiti Malla made a lot
of reforms in the legal history. During his period the decisions were made as per
this document. This document is the law by which the ruler rule its people. This
document symbolizes that from the time of Jayasthiti Malla there was rule of law
in Nepal.
Similarly, during the shah dynasty Ram Shah brought the 26 edicts and he rule as
per these edicts. During his time there was a popular saying, “Naya Na Paye
Gorkha Janu.” This saying symbolizes that during his time he was famous for
providing justice. This shows that there was a rule of law in shah period. The great
king Prithivi Narayan Shah also known as a the founder of new Nepal, bought
legal document i.e Divya Upadesh to rule over the people. He unified Nepal and
made small states into a single nation. He always tried to provide justice to his
people and rule over the people as per rule of law.
Ranas rule over the Nepal for 104 yrs. Among the rana’s Junga Bahadur Rana rule
over the Nepal for long period of time. During his time he visited England. After
his trip to England he came to Nepal and drafted a code to rule the people i.e
Muliki Ain 1910. This code is the First legal code in the history of Nepal. After
drafting this code people were ruled as per this code. But this code was not equal
for all people. But also we can say that there is the existence of rule of law in
county. Juddha Shumsher another ruler of this period brought the concept of
independence of judiciary in Nepal although this concept was somehow not clear
during his time.
Some of the traces of rule of law can be traced in our constitutional history. The
first constitution of Nepal is Nepal Government Act, 2004. This is the first and
historical document of Nepal which was declared by the Shree III Padma
Shamsher JBR. It made provisions for fundamental rights and duties, the council of
ministers, courtier assembly, the bicameral parliament, public service
commission’s etc. In this constitution we can find some of the features of rule of
that is this is the first constitution that has the provision of separation of power But
Prime Minister Padma Shamsher could not enforce the constitution because of
undue pressure from resistant Ranas.
In 2007, second constitution is drafted ie Interim Government Act, 2007. This
constitution overthrow of the Rana autocracy. It made provisions for directive
principles and policies of the government, council, election commission, financial
procedure, etc. Silent Constitution, Fundamental Law of the Land, Sovereignty and
Power Vest on the People, Provision of Fundamental Rights, Directive Principals
of Policies of the State, Executive Power in the Cabinet, Provision of Judiciary,
Emergency power, Provision of Amendment of Constitution, Provision of
Constitutional council are some of the features of this constitution which show that
there is provision of rule of law.
As a more democratic constitution, the Constitution of the Kingdom of Nepal 2015
BS made a provision for the adult franchise, bicameral parliament, auditor general,
constitutional monarchy, king's emergency power, supreme court, an independent
judiciary, election commission etc. which shows that there is certain provision for
rule of law.
As the fourth constitution of Nepal, the constitution of Nepal 2019 BS gave
constitutional recognition to the party-less Panchayat system put into practice by
King Mahendra in 2017 BS. It provided for people's fundamental rights, adult
franchise, the council of ministers, national panchayat, supreme court, etc. as a
some provision of rule of law. It was finally abandoned by the popular movement
in 2046 BS that restored the multi-party system in the country.
The Constitution of Kingdom of Nepal 2047 BS was promulgated by King
Birendra on the success of the Popular Movement I. It was noted for its provisions
for more fundamental rights, sovereignty inherent in people, constitutional
monarchy, multiparty democracy, adult franchise, independent judicature, the rule
of law, etc. However, some of its articles gave way to the king's efforts for taking
more executive movement II in 2063 BS.
The Interim Constitution of Nepal 2063 BS was promulgated on 1st Magh 2063
BS in the name of the people by legislative parliament. This constitution
established Nepal as a secular and republican state whose state power is inherent in
the people. The constitution provided for the unicameral legislature parliament,
election to the Constituent Assembly, recognition of Human Rights Commission as
a constitutional organ, originally the appointment of the Commander-in-Chief by
the Prime Minister and so on.
The Constitution of Nepal 2072 BS was promulgated by President Ram Baran
Yadav unveiled on behalf of Speaker Subash Chandra Nembang on 3rd Ashwin
2072 BS. The following are the major characteristics of the constitution:
Secularism, Federal model with seven provinces, Democratic Republican State,
Independent and fair judiciary, Executive rights on Council of Ministers, President
as a ceremonial head of the state, Full press freedom, Citizenship by descent to a
child of a Nepali father or mother, Sovereignty of people and so on.
After seeing the ruling history and constitutional history we can say that there is
always some traces of rule of law in Nepal. The recent constitution has followed
and respected the principle of rule of law. Some of the principles of rule of law
followed by our constitution are as follows:-
➢ The Constitution has been adopted and proclaimed in the name of "We, the
people of Nepal, in exercise of the sovereign powers inherent in us."( as
mentioned in preamble)
➢ Article 1 states that this Constitution is the fundamental law of Nepal. All
laws inconsistent with this constitution shall, to the extent of such
inconsistency, be void. The inconsistency will be declared by the Supreme
Court under Article 133. The Constitution also states that it shall be the duty
of every person to uphold this Constitution.
➢ Nepal is defined by the new Constitution as "an independent, indivisible,
sovereign, secular, inclusive democratic, socialism-oriented federal
democratic republican state." [Article 4] The explanation attached to this
provision makes clear that the word 'secular' as stated above "means
protection of religion and culture being practiced since ancient times and
religious and cultural freedom."
➢ The sovereignty and state authority of Nepal are vested in Nepali people as
per article 2
➢ Fundamental rights are guaranteed under the part 3
➢ Equality before law
➢ Independent of judiciary and judicial review
➢ Absence of arbitrary power
Some of the case related to rule of law
➢ Bharat Mani Jungam v Office of President and Others
➢ Rajeev Parajuli v RCCC
➢ Bal Krishna Neupane v V.P Pramandha Jha
