Rule of Law in Nepal

CCGL9032 RESEARCH PAPER

Rule of Law in Nepal
Rule of Law in a Globalizing World

. Abstract

Originated from western societies, the principle of " Rule of Law" is making great impact on the development of non-western regions through globalizing trend. This research paper mainly looks into the development process of rule of law in Nepal- a new practitioner of rule of law system in government practice. The paper will discuss the rule of law level, the reason Nepal manages to attain this level and the legal culture of the country.

. Introduction of 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 is 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.
Politics:
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, Legislative.1
Economy:
As one of the poorest country in the world, Nepal relies much on two main industries:
Agriculture and Service comprise. From 2011 to 2012, the country's GDP growth is around 5%. And the poverty situation is improved in recent years.2
Religion:
Over 80% of people in Nepal are Hinduism, Buddhism is the second largest religion.
Nepal was a Hindu Rashtra before 2006. Nepal declared a secular state in Interim
Constitution in 2007.

1
2

See Nepal- Wikipedia: http://en.wikipedia.org/wiki/Nepal
See Nepal- Wikipedia: http://en.wikipedia.org/wiki/Nepal

. The Rule of Law Level in Nepal & Reason
To analysis the rule of law level in Nepal, there are several aspects to be discussed:
A. Constitution & Legislature
B. Justice System

A. Constitution & Legislature
Now the political system in Nepal is based on the Interim Constitution of Nepal 2063
(2007). The chief executive is prime minister. And there is a 601-member Constituent
Assembly responsible for drafting a new constitution. However, because parties could not reach an agreement, the Constituent Assembly failed to make the constitution even the deadline has been put off for several times.3
Since Nepal has become a federal republic, it is now using law as the major tool of governance. The country is no longer ruled by man. And the constitution has already had a 50-year development. These points meet the requirement of Rule of Law 2 Regulation by Law.
However, Constituent Assembly failed to carry out new constitution in time, some of the main problems of the country remains unsolved such as the demarcation of national administrative zones. Many people in Nepal showed distrust and grievance to

3

See NEPAL RULE OF LAW ASSESSMENT by James Michel, Barry Walsh, Mihir Thakur

the government. So there is still uncertainties in peace process in Nepal. This fact cannot satisfy the point raised in lecture notes " Public order is basically maintained and disputes in the society are mainly resolved through peaceful and legal means"4.
Based on those facts above, although sovereign adopts law as the major governing tool, we cannot safely draw the conclusion that Nepal has reached Rule of Law 2 in constitution topic.

B. Justice System
The justice system in Nepal has a foundation of historical local tradition. And it has also adopted many characteristics from Western systems. As mentioned above, sovereign is separated into 3 parts: Executive, Judiciary and Legislature. But those external limits through law run not that well. There are several problem exists:

1. About Internal Mechanism to Ensure Officials' Compliance with Law
In Nepal, the police, which belongs to Home Ministry under Executive branch, was reported to have killed at least 8 person unlawful and got away with that. And torture often occurs in crime-based cases since the police tend to rely heavily on confessions

4

See Lecture notes, CCGL 9032 Rule of Law in a Globalizing World, The University of Hong Kong
Department of Law

and witness testimony to obtain evidence5. Also in Country Report on Human Rights
Practice for 2011 (Bureau of Democracy, Human Rights and Labor), it says
"Authorities failed to implement court-ordered arrests of military personnel, Maoists, and other politically connected individuals accused or convicted of human rights violations." The facts show that executive power is not effectively limited and the government officials seem not accountable under the law. Even internal mechanism cannot ensure officials' compliance with law. It is against some of the criteria of Rule of
Law 2.

2. Public Order Maintenance & Disputes
There was continuing ethnically based violence in Tarai region, many people died because of that. And army groups, as well as political parties use threats of violence throughout the country, causing death, abductions, extortion and disappearance6.
Although the situation improved these years, police were still unable to provide law and order fully to reach the criteria of Rule of Law 2.

5

See Bureau of Democracy, Human Rights and Labor, Country Report on Human Rights Practice for
2011
6
See Bureau of Democracy, Human Rights and Labor, Country Report on Human Rights Practice for
2011

3. Judiciary's Problem in "Govern by Law"
In rule of law 3, a "independent judicial branch" is emphasized. However, as mentioned by Bertelsmann Stiftung, "Nepal’s judiciary lacks functional autonomy regarding the determination of jurisdiction, selection of staff, and financial independence"7. These make judiciary suffer from delay problems, and a widespread disregard for judicial order and decisions. What's worse, most of the people in Nepal are too poor to use legal mechanism to resolve their disputes.
According to the facts above, we can see that Nepal is now unable to perform Judicial limitation and even the extent of "govern by law" is too limited to meet the criteria of Rule of Law 2.

To determine the rule of law level of Nepal, let's use a table to draw a conclusion by using the analysis above and the questions from lecture notes.

Questions

Rule of law level

Applicable or not

Has the sovereign

Rule of law 2

Yes

committed to use law as its major tool of

7

See Bertelsmann Stiftung's Transformation Index (BTI)2012

governance?
(major question)
Does the law bind

Rule of law 2

Not completely.

Rule of law 2

Yes

Rule of law 2

Not completely

Rule of law 2

Not much

Rule of law 2

Not much

Rule of law 2

Not really

government officials?
Is there at least some mechanism internal to the government to ensure government officials will comply with the law?
Can public order be basically maintained by the law?
Do people resolve their disputes by using the legal mechanism peacefully?
Do people in general comply with the law?
Can sovereign successfully govern by

law?

The situation now in Nepal can reach the criteria of the major question of Rule of law
2. We cannot say Nepal is only a Rule of law 1 country because it is surely "rule by law". But most of the detailed questions of rule of law 2 cannot be satisfied. So we can only say that Nepal now is a country that exceed 1st level of rule of law, and it is getting close to Rule of Law 2.

. Legal Culture of Nepal


Rule of Law process outline:8

Time/Period

Important Events

1854

First Country Code was made.

1950s

Nepal became a constitutional monarchy. (First constitution made in Nepal)

1960s-1989

Nepal was governed by a "partyless" panchayat system.( Power wrangling between government and king) 1991

A multiparty parliament was established as a result of constitutional reform.

1996

Civil War started between Government Force and
Communist Party of Nepal (Maoist)

2006

Civil War ended. House of Representatives was reinstated, power of the King was curtailed.

2008

Nepal was declared a federal republic through constitution amend.

8

Mainly developed by referencing Nepal-Wikipedia http://en.wikipedia.org/wiki/Nepal

2008

Constituent Assembly election held. New government was formed.

2012

Constituent Assembly failed to made new constitution before deadline.

2012

A new Constituent Assembly was elected.

Nepal is a late starter to apply law to the country as the main governing tool. As a multicultural and multi-religious country, Nepal's ethnical contradiction problem cannot be solved properly.9 The resulting civil violence somehow result in a slower development of Rule of Law level. The conflicts in interest of parties in Constituent
Assembly made the same negative effect.
The facts above partly explained why Nepal cannot make a higher level of Rule of
Law.



Religion and Legal Culture

Actually, Nepal's legal culture is traceable to ancient period. How does the legal culture develop in Nepal?
Before democracy being established, "laws were based on religion, local customs,

9

See Kanak Bikram Thapa's Religion and Law in Nepal

usages and royal edicts"10. And law was considered as a branch of religion.11
In the middle of the 19th century, the first Country Code was made in Nepal. It was influenced by the Code of France and England in that period. Hindu played an important role in the Code. The Code was based on Hindu jurisprudence. The diverse caste system and ethnic groups was incorporated in the framework of a national caste hierarchy. Caste-based discrimination was legalized.12
After the revolution in 1951, the legal system in Nepal changed to a western system because of the effect of globalizing trend and the western rule of law concept. From
Navin Mishra's Nepal: Democracy in Transition (2006) note 25, we can see in that period, "Nepalese constitutional law, along with the legislative, executive, and judicial branches, was organized in appropriate fashion". But the first three constitutions in
Nepal failed to provide religious freedom to the people.
1962 Constitution started to give people fundamental rights to religion. And in 1963, the principle of legal equality showed in the Country Code. Caste and religious consideration was removed. Nepal started to take steps to get rid of religious composition in the country's rule of law system.
Until the Interim Constitution of 2007 was introduced, Nepal was declared a secular

10
11
12

Ali Riaz & Subho Basu, The State-Society Relationship and Political Conflicts in Nepal
See Kanak Bikram Thapa's Religion and Law in Nepal
See Kanak Bikram Thapa's Religion and Law in Nepal

state to displace a "Hindu State" definition.13 Rule of law system in Nepal finally got rid of religious value.

From the rule of law process we can recognize that religion was always a significant element of legal culture development in Nepal. Even law was a branch of religion at the very beginning. Personally, I really appreciate Nepalese's effort to move the religion element away from rule of law system. Laws protect fundamental human rights, including freedom of faith. And law should be appropriate for all citizens in the country, not only Hinduism. Having limited religious value, I believe that Rule of
Law development in Nepal will make a better progress in the future.



Education & Economy

Education in Nepal is not well provided. About two thirds of female adults and one third of male adults are illiterate. Poor education makes Nepalese a low awareness of law and their rights. Most of Nepalese cannot afford to have a lawyer to help in legal process. The situation is also limitation to the growth of legal culture and rule of law development. 13

See Kingdom of Nepal-Wikipedia http://en.wikipedia.org/wiki/Kingdom_of_Nepal

. Conclusion
Nepal now is a country that has exceeded 1st level of rule of law, and it is getting close to Rule of Law 2. The reason why Nepal is in a situation between the two levels is that the sovereign committed to use law as its major tool of governance, but problems still exist in power abuse, public order maintenance and law's complying by people, etc. When it comes to legal culture, issue of ethnical contradiction, religion effect, poor education and economy are significant limitations to the development of
Rule of Law in Nepal.

Reference
Anon., n.d. Nepal-Wikipedia. [Online]
Available at: http://en.wikipedia.org/wiki/Nepal
Bureau of Democracy, H. R. a. L., n.d. Country Reports on Human Rights Practices for 2011, s.l.: s.n.
Internet, Kingdom of Nepal.
Available at: http://en.wikipedia.org/wiki/Kingdom_of_Nepal
James Michel, B. W. M. T., n.d. NEPAL RULE OF LAW, s.l.: s.n.
Law, T. U. o. H. K. D. o., 2012. CCGL9032: Rule of Law in a Globalizing World. s.l.,
s.n.
Rayamajhi, S., n.d. Nepal’s Judicial System awaits new hopes. [Online]
Available at: http://www.shreedeeprayamajhi.blogspot.com
Sajjad, T., 2011. INCONVENIENT JUSTICE: THE STRUGGLE TO "CLOSE THE
BOOKS" IN AFGHANISTAN AND NEPAL,
Stiftung, B., 2012. Nepal Country Report, s.l.: s.n.
Thapa, K. B., 2010. Religion and Law in Nepal, s.l.: s.n.
Thapa, K. B., 2009. Nepal Rule of Law Assessment