4.

2 Background Principles of Rule

of Law
-Dharma Raj Paudel
 Introduction
• Rule of law is a mechanism to end arbitrariness and despotism
• Wide discretionary power tends to misuse discretion that is antithesis of rule
of law
• Law is an argumentative discipline not a science but a practical art
• Society enjoy great benefits with practical application of rule of law
• Rule of law gives clear legal warrants for official actions through review by an
independent judiciary
• Background principles of rule of law are:-
• Principle of legality , check and balance among state organs , protecting
fundamental and human rights , principle of transparency and clear decision
making.
 Indicators of Rule of Law
• Limited government in a democratic society
• Democratic norms and values for competitive multiparty democratic
system of governance
• Independent and competent judiciary to build up prosperous nation
• Supremacy of constitution to uphold rule of law
• Principle of legality/ functions of government must be legally
acceptable
• Governmental lawlessness including corruption, nepotism, and
abuse of power should be checked by legal actions
 Contd.
• Use of public office for private gain indicates abuse of power
• Constitutionalism aims to establish rule of law on the level of
governance, power of judicial review is a control mechanism
• Neutrality , consistency and transparency are the qualities to ensure
socio-economic justice for the betterment of people and rule of law
• Concept of equality is a recognition of the fact that all men are equal
in their ultimate value.
• Equality neither justifies equal application of law among unequal,
nor unequal application of law among equals . Equality justifies
Rule of law.
 Contd.
• Rule of law is not the meaning of rule by law, it demands government
acts according to law , not in arbitrary means
• Rule of law intends to protect liberty of human beings. Liberty is a right
not to be subjected to imprisonment , arrest or other physical coercion in
any manner without legal justification
• Predictability defeats biasness and arbitrariness in decision making . Rule
of law manifests predictability in judgments , administrative decisions
should be legally compatible
• Principle of legality demands decisions should be based on law
• Separation of power and check and balance is a principle of rule of law ,
power and functions should be exercised within the legal limit.
 Foundation of Rule of Law
• Rule of law is a system of self-governed that means every person
and government are accountable to the law
• Fair and accessible legal process in which rights and responsibilities
based on law are enforced
• Legitimacy of government determined by the law and people
• Legality of government functions to that extent to which law has
permitted and citizen enjoy the rights to which the law does not
prohibit
• Absence of despotism, no use of despotic power in the name to
ensure life, liberty and property of the people.
 Contd.
• Self control over abuse of power by public officials
• Equality , no discrimination among equals , equal protection of law
• Separation of power with check and balance
• Legitimate protective role of state to enforce the rules of just
conduct among people
• Transparency and accountability for the purpose of ending biasness.
 Rule of Law in Legislature
• Formation of legislature is an outcome of periodic election on the basis of adult
franchise by the sovereign people
• Legislature must be able to transform people’s sovereignty into legal sovereign
• Executive is the creation of legislature that is why it is responsible to the
legislature
• Main function of legislature is to make laws and to fulfill national and
international obligation
• Law should be based on logic , reason and wisdom as well as the recognized
principle of law and justice
• Law must not ignore procedure established by law or due process of law
• Supremacy of parliament does not rule out the moral boundary of parliament.
 Rule of Law in Executive
• Executive is also binding within the boundary of rule of law
• Until and unless the legislature delegates power through Legislative Act ,
executive cannot use delegated power in making Rules/laws
• Delegated legislation must be consistent with parent legislation
• Delegated power cannot be redelegated/delegation further not delegate
• Executive actions must be intra vires otherwise the court declares ultra
vires the actions
• Executive actions should be legitimate and compatible to the constitution
and the laws
• Rule of law has to protect people from the dangers of executive tyranny.
 Rule of Law in Judiciary
• Judiciary is the guardian of rule of law. Equal treatment to the party before the
court and the law, justice according to law, rule of law not the rule by men are
fundamental components
• Justice should be based on knowledge, reason and wisdom in consonance with
supremacy of law
• It is the function of the judge to declare the law not to make , except case law
• Justice not only be done that should be manifestly be done
• An act in law shall prejudice no man . If a person abuse an authority given by
the law, it is supposed as if he had never the authority
• The practice of the court is the law for the court
• No man can take advantage of his own wrong.
 Contd.
• That which does not appear must be taken in law as if it were not
• Res Ipsa Laqueta- The thing speaks itself , no need to explain about it
• Every presumption is made against a wrongdoer
• It is a rule that no person should be convicted of murder unless the
body of the deceased has been found/corpus delicti
• An act which is for any reason excess of power is often described as
being outside of jurisdiction
• From lapse of time , all things are presumed to have been done rightly
and regularly.
 Rule of Law in Criminal Law
• Criminal law is related with life , liberty and property of individual/citizen
• Criminal law should be prospective not retrospective effect
• No crime without the law and no punishment without the crime
• A man should not be put in jeopardy twice for one and the same offence
• No person shall be detained in custody without informing him/her of the
ground of arrest
• Any arrested person have the right to consult a legal practitioner of his/her
choice
• Justice ,equality and freedom are the soul of rule of law
• Life of rule of law depends upon independency , impartiality and competency of
the court.
Judicial Approach on Rule
of Law in Nepal
-Dharma Raj Paudel
Surya Prasad Sharma Dhungel v. Godavari
Marble Industries et. all [N.K.P. 2052, P.
139]
• In this case the petitioner demanded to close down the Godavari
Marble Industries for environmental pollution control and to
promote clean and healthy environment as being part of the right to
life of the people. The supreme court observed that human life is in
danger a polluted environment and that a clean and healthy
environment is necessary for a life to be lived in fullest . The court
did not order to close down the Marble Industries but issued
directive order to the government for necessary arrangement to
control environmental pollution.
Tanka Nath Paudel v. Cabinet Secretariat et.
all
[N.K.P. 2052, Page 844]
• In this writ petition the petitioner challenged the Program Executive
Directory enacted by H.M.G./Nepal to launch a Program known as
Let us build our village ourselves. Supreme court declared such
Program Directory null and void. The court reasoned that Legislative
Acts did not empower to the H.M.G. to issue any directory that was
unauthorized and unlawful exercise of power of the administration.
Gopal Siwakoti Chintan v. Ministry of Water
Resources et. All [ N.K.P. 2051 , Page 255]
• In this case the petitioner demanded the information regarding Arun
Third ( lll ) Project from the Ministry of Water Resources. The
ministry did not provide him the information he had sought . The
case was public interest litigation filed for invoking Article 16 of the
constitution. The court did not find Nepalese legislation to provide
adequate remedy for the petitioner. The court held that a right
without a remedy is meaningless . In the absence of any guidelines ,
logical procedure should follow. The court issued eight-point
guideline to flow and provide right to information remedy therein.
Rana Bahadur Shaha v. Nepal Rastra Bank
et. all [N.K.P. 2075 , vol. 11]
• In this case the petitioner demanded to enforce the fundamental
right to property guaranteed by the constitution. Supreme court
held that it is mandatory to abide the letter and spirit of the
constitution to promote constitutionalism. The court also observed
that court is final interpreter to enforce , protect and promote
fundamental rights of the citizen. Any type of obstacles to obtain
remedy for enforcement of fundamental right to property is against
the spirit of rule of law.
 Suman Adhikari v. Prime Minister and
Office of the Cabinet et. All[N.K. P. 2071 ,
vol. 12]
• In this case the petitioner demanded to establish culture of rule of
law and coordination between state organs in a democratic society.
The court held that rule of law is the backbone of democracy.
Development and stability of democracy depends upon observance
of rule of law . In a democratic system, efforts should be made for
the establishment of rule of law not a rule of men . No one is above
the law in a democratic governance . Effective coordination and co-
existence between state organs is compulsory for rule of law and
democracy.
 Pushpa Kamal Dahal v. Prime Minister and
Office of the Cabinet et. All [N.K.P. 2067, vol . 7]
• In this case the petitioner challenged the decision of constitutional
council on the basis of violating mandatory procedural provision.
Supreme court held that decision made by any organ of government
shall not be valid and legitimate if there seems apparent error of
law on the face of the record. Mandatory procedure fixed by the law
must be followed by the state authority while making any decision.
The decision in question shall not be valid in the eye of law which
was made without abiding mandatory legal provision, hence the
decision declared as void.
 Advocate Om Prakash Aryal v.
Constitutional Council et. All [N.K.P. 2073,
vol. 11]
• In this writ the petitioner challenged the appointment of Chief
Commissioner of CIAA on the ground that the appointee was not
qualified for the post . Supreme court held that constitution is the
yardstick to measure the activities of the state organ in consonance
with rule of law ,democratic values as well as constitutionalism .
Political consensus cannot overrule the constitutional provisions.
Competency and quality should be judged for the appointment and
take over responsibility in the post of chief of constitutional bodies .
Autocratic appointment of disqualified person in the post of chief of
constitutional body is violative of the constitution.
 Niranjan Uprety v. Prime Minister and
Office of the Cabinet et. all[N.K.P. 2074 ,
vol. 9]
• In this writ the petitioner demanded speedy execution of judgments and
orders of the court. Supreme court issued an order to execute
judgements and decisions of the court as early as possible . The court
further declared that all should abide the judgments and orders of the
court made in the course of trial of lawsuits . Judgments and orders of the
courts have binding force similar to statutory laws .It is also a legitimate
expectation of the people. The court on its primary duty issues orders
and gives judgments but the responsible officials show their passiveness
to execute and deliberately shift their responsibility. This situation shows
that value of rule of law has been decreased and anarchism has gradually
increased in society. Court is a final resort and people expect complete
justice from the court .
 Finally;
• Rule of law is a well known proposition of constitutionalism under
which government works on the principle of interpersonal respect.
It is a fundamental component of an effective political and
democratic culture where legality, equality, predictability and non-
arbitrary character in state action are considered as the essential
components of rule of law.
(Constitutional approach of rule of law)