Drawing a line
We all talk of democracy, the rule of law and good governance. The present confrontation between the palace and the political parties, for example, springs from their divergent perceptions of these ethos. A cardinal principle of these concepts, as universally accepted, is that the judiciary must be independent and it must be obeyed. The 1990 Constitution has guaranteed an independent judiciary. Whether the Nepali judiciary has been able to live up to this role may be a matter of opinion. What, however, is beyond doubt is that the executive has often demonstrated that it can easily defy court orders and still get away unpunished. One way of this defiance has been to re-arrest detainees the court orders to be freed as soon as they are out of the court premises, sometimes even inside.
Unfortunately, this happened even during the multiparty rule. But the tendency seems to have grown after October 4, 2002, and even more so after February 1. Several cases of such defiance have been seen in April and May alone, including the act of stopping former Lower House Speaker Daman Dhungana at Tribhuvan International Airport from travelling despite a SC interim order to the contrary, re-arresting several people after the court ordered them released, and admitting new students to Tindhara Hostel against the SC order. On April 1, the SC has even passed a stricture against arbitrary detention by the State. On Tuesday, it ordered the release of more than a dozen politicians. But the orders are yet to be carried out in full.
What is one to make of all this? If the court is to be obeyed only when it is convenient to the executive, and to be defied when it is not, then it is difficult to draw a line between the rule of law and the rule of the jungle. The government is not supposed to violate even the laws it has made, not to speak of the Constitution. It is the judiciary which has the sole authority to settle legal and constitutional issues. If the government itself does not respect the law, then its moral ground for expecting others to do so weakens rather radically. In the process, the democratic principle of separation of powers and of checks and balances among the three organs of the State becomes a mockery. What will we have left of justice then?