Despite significant advances in dealing with the issue of cantonments and the future of the Maoist army, progress on one structural transformation foreshadowed in the Peace Agreement, that of becoming a country ruled by law rather than wealth, power, connections or inherited privilege, may be reversing. This must be seen with considerable alarm.
To be ruled by law, is to agree to a set of rules that members of society—and the State itself—agree to live by, and ‘impose’ on each other. These rules are laid out transparently, for all to see. They are backed by a broad recognition that they are in the interest of the collective good. They must be equally enforceable on all citizens, without exception, and on the State itself. Their adjudication must be entrusted to an independent judiciary, free of political interference. And very importantly, their enforcement is entrusted to the State, and only the State, if necessary through physical force.
When rule of law prevails, a number of public goods follow. Potential offenders become more hesitant to commit crimes for fear of the repercussions. Police begin to follow a consistent code of conduct and the public comes to expect predictable behaviors by them, across the country. Judges act with confidence and consistency and their adjudications are increasingly seen as ‘beyond reproach’. Investors become more willing to take risks, comforted by a belief that their investments will be protected by rules, enforced by the State. Labor unions turn to formal arbitration and mediation processes rather than the streets to raise their demands vis-à-vis employers. Politicians have clear parameters on what is within and outside their powers. Disputes—between neighbors, in affairs of commerce, between the State and the citizen—are managed within structured, fair, processes that mitigate the chance that they will escalate to violence.
While in a society governed by rule of law there will of course still be citizens that choose to live outside these rules, the vast majority become ‘law-abiding citizens’, and certain behaviors become socially unacceptable. And collective social values, and their influence on the behavior of citizens, become just as important protectors of the rule of law as the ‘law enforcement community’ as such. A shared culture of lawfulness comes to apply to all, including to those who hold the most power and privilege in society.
The 2006 Jana Andolan and Peace Agreement that followed broadcast an unambiguous call to establish, once and for all, this kind of rule of law in Nepal. A rule of law to be defined by legitimate representatives of the people, through democratic means. A rule of law that would be imposed, equally, on all citizens. A rule of law that limits the abuse of power by those who govern others. A rule of law that protects the rights of the individual, backed, consistently and fairly, by a rule-bound State.
It was with dismay therefore, to recently witness yet another Cabinet decide to withdraw cases from the legal process on ‘political’ grounds.
Though details have been kept far from the public eye, we believe amongst these more than 300 files are a range of alleged crimes, from theft and possession of arms to murder. It is important to recognize these are allegations, not yet proven in a court of law. But in a society governed by rule of law, there could be no imaginable circumstances in which such a serious alleged crime as murder, could not warrant the victims or their families the right to their day in court. The right to justice, redress and to reparation. This right is enshrined in countless international treaties and in Nepal’s own Interim Constitution.
Sadly, even if this latest attempt to withdraw some of these cases is ultimately unsuccessful, because of resistance by judges or prosecutors or the police, damage has already been done. Such a decision sends far-reaching signals. To law-abiding citizens, to the judiciary, to the law enforcement community, to private investors who depend on these rules to protect their basic rights. And to those who might weigh up the pros and cons of breaking the law one day in the future—that even for the gravest of crimes, loopholes remain in this country, that may allow them to sidestep any consequences.
The signal is also loud and clear to Nepal’s development partners. Years of work and millions of dollars in this field—to institutions like the Human Rights Commission, the Supreme Court, the Bar Association, the local courts system, on policies and legal frameworks like the new civil and criminal codes, on the infrastructure of the enforcement community, to support Human Rights Defenders—need to be reevaluated. It’s hard to ignore a gnawing sense there is no shared understanding and agreement on the very core principles from which these other institutions and actors derive their role, legitimacy and protection.
Blanket amnesty would violate the clear position of the UN that there should be no amnesty for the most serious crimes of concern to humanity.
The recent Cabinet decision suggests this fundamental transition to rule of law foreshadowed in the Peace Agreement may have barely begun. A blanket amnesty in a future Truth and Reconciliation Commission bill would be the proverbial nail in the coffin. Such a step would violate the clear position of the United Nations that there should be no blanket amnesty for the most serious international crimes of concern to humanity. And it would destroy this generation’s opportunity to reverse the culture of impunity in this country.
The author is the head of the United Nations in Nepal