2.7 Rule of law, Democratic Values and Norms, Inclusion, Proportional Representation and Affirmative Action

Rule of Law, Democratic Values and Norms, Inclusion, Proportional Representation, and Affirmative Action

Introduction to Rule of Law

In a general sense, the rule of law refers to governance conducted in accordance with the law. A state governed by law is called a legal state. In a broader sense, legal governance is a system based on laws formed on democratic values and norms. The rule of law is a governance system where law is supreme. Under the rule of law, no one is above the law, and the supremacy of law is essential. (The concept of Rule of law is opposed to arbitrary power.)

It demands the end of any form of dictatorial rule and opposes all kinds of authoritarianism. In the rule of law, the governing laws should protect people's rights rather than being tools of the rulers. It is based on the fundamental philosophy that no matter how high you are, the law is above you.

The Rule of law is the principle that governmental authority is legitimately exercised only in accordance with written publicly disclosed laws and adopted and enforced in accordance with established procedures. The principle is intended to be a safeguard against arbitrary governance. (Wikipedia)

Conceptual Aspects

Aristotle first emphasized in his book (Politica) that the rule of law is better than rule by individuals. Events like the Magna Carta of 1215, Petition of Rights of 1628 which emphasized the supremacy of law, the Glorious Revolution of 1688, Bill of Rights of 1689, American Independence Struggle of 1776, and French Revolution of 1789 contributed to the development of the rule of law.

The main proponent of this principle is the British jurist A.V. Dicey. In 1885, at Oxford University, he advanced the principle of the rule of law while describing the features of English law.

According to A.V. Dicey:

Supremacy of Law

• The supremacy of law is necessary for the rule of law.
• Rulers should not exercise broad and discretionary powers outside the law.
• People should be governed only by law.
• Punishment only for violating the law.
• Punishment determined by ordinary courts following legal procedures.

Equality before the Law

• All individuals and classes equal before the law.
• Law applied equally like ordinary law to all.
• Law administered by regular courts.
• No different treatment based on position.
• No one above the law.

Constitution: A Product of General Rules of Nation

• Constitution is the product of parliament and judicial interpretation.
• Constitution develops through court interpretations of individual rights.
• Law protects the constitution.

According to Lon L. Fuller on the Rule of Law:

Lon L. Fuller expressed eight ideas on the rule of law:

• Law Must be Existence (Law must exist)
• Laws must be Published (Laws must be made public)
• Laws must not be Retroactive (Laws should not be retrospective)
• Law must be clear (Laws must be clear)
• Laws must be Avoid Contradictions (No contradictions in laws)
• Laws must be Internally Consistent (Laws must be consistently stable)
• Laws must not require the Impossible (Laws should not demand the impossible)
• Official action should be consist with the declared rule (Administrative actions must align with declared rules)

According to Joseph Raz:

• All Laws should be prospective, open and clear.
• Laws should be relatively stable.
• Open fair hearing and absence of bias.
• Independence of judiciary.
• Judicial Review power of the court.
• Publication of law.
• Court should be easily accessible.

Characteristics of Law in Rule of Law:

• Supremacy of law.
• Law created with broad public participation.
• Stability (Should be relatively stable).
• Applied equally.
• Clear and understandable.
• Accessible to the public.
• Rational, just, and of minimum standard.
• Not retrospective.
• Such law should be Rational, Reasonable, Just, and Fair.
• Protection of fundamental Rights and individual liberty.
• Equality in the eyes of the law.
• Independent and competent judiciary.
• Principle of Natural Justice.
• Principle of Judicial Review.
• Separation of power and check and Balance.

Delhi Declaration on Rule of Law:

The 1959 conference of the International Commission of Jurists in New Delhi drew important conclusions on the rule of law, with participation from judges, lawyers, and professors from 53 countries.

• Laws should be made without infringing civil rights.
• Effective government maintaining law and order.
• Presumption of innocence.
• Right against arbitrary arrest and detention.
• Right to legal counsel.
• Fair trial.
• Collection of witnesses and evidence.
• Open court and right to appeal.
• Independent Judiciary.
• Security of judges' tenure.
• Judiciary free from legislative and executive interference.

Importance and Necessity of Legal State

• To establish supremacy of law.
• To protect individual freedom, maintain equality before the law.
• To maintain a governance system based on constitutionalism.
• To establish and operate a democratic government.
• To prevent the government from becoming authoritarian.
• To maintain constitutional supremacy.
• To end impunity.
• To guarantee social justice.
• To establish a social system based on justice.

Status of Rule of Law in Nepal

Positive Aspects

• The preamble of Nepal's current constitution expresses full commitment to competitive multiparty democratic governance, civil liberties, fundamental rights, human rights, periodic elections, full press freedom, independent judiciary, and the concept of rule of law and democratic values/norms.
• Article 1 declares the constitution as the fundamental law, and any law conflicting with it is invalid to the extent of conflict.
• Article 50(1) mentions protecting rule of law, democracy, social justice.
• Part 3, Articles 16 to 46 provide for 31 fundamental rights.
• Articles 133 and 144 provide remedies for fundamental rights.
• Article 64 states the President shall abide by and protect the constitution and law.
• Article 100 allows removal of government through no-confidence motion to prevent authoritarianism.
• Article 101 allows impeachment of key officials.
• Article 126 envisions independent judiciary where justice is administered by courts based on recognized principles, and all must comply with court orders.
• Separation of power and check and balance.
• Limited government.
• Provision for constitutional bodies.

Problems/Negative Aspects

• Increasing influence of international law.
• Political instability.
• Lack of party consensus on full implementation of constitution (lack of universal acceptance).
• Complications in law-making/implementation.
• Increase in arbitrary case withdrawals against law and standards.
• Political leadership defying law compliance.
• Failure to develop judicial system as per public desires.
• Lack of effective guarantee for human rights protection.
• Politicization of crime, criminalization of politics.
• Failure to effectively protect human rights.
• Development of culture to manipulate constitution and law for self-interest.
• Political interference in administration.

Solutions to Problems

• Development of cultured political practices.
• Repeal laws not aligning with basic principles of rule of law.
• Strengthening civil society.
• Emphasis on rule of law over political consensus.
• Full guarantee of fundamental rights with remedies in constitution.
• Respect for court decisions and orders.
• End criminalization in politics and politicization in crime.
• Fair, independent, and competent judiciary.
• Independent press.

Role of State Organs in Establishing Rule of Law

Role of Legislature

• Making laws within constitutional limits.
• Making laws to implement international conventions.
• Making laws in line with public expectations and interests.
• Publishing laws before enactment for suggestions and feedback.
• Improving law formulation process.

Role of Executive

• Compliance with law and proper implementation.
• Ending tendency to violate laws.
• Stopping arbitrary case withdrawals.
• Practical guarantee of citizens' social, political, economic, and cultural rights.
• Easy provision of services and facilities to people.

Role of Judiciary

• Change in traditional working style.
• Modernization in justice system.
• Emphasis on alternative justice.
• Focus on quick, clean, affordable justice principles.
• Strict implementation of decisions.
• Uniformity in precedents.
• Objective use of discretionary powers.

Role of Constitutional Bodies

• Impartially and neutrally supporting government activities.
• Implementing the concept of limited government in practice.
• Emphasizing accountability and transparency in government bodies.

Role of Civil Society and Press

• Acting as watchdog.
• Bringing facts to the public.
• Providing constructive criticism and suggestions.
• Vigilance and oversight of government.
• Building relations between people and government.
• Pressuring government for good governance.
• Emphasizing public empowerment.

Role of Political Parties

• Building consensus on full implementation of constitution.
• Maintaining high moral standards.
• Developing healthy party system.
• Political awareness and civic education.
• Making economic and other activities of political parties transparent.
• Practical guarantee of fundamental and human rights.
• Political leadership exemplary in law compliance.
• Emphasis on proper implementation of laws.
• Ending tendency to violate laws.
• Stopping arbitrary case withdrawals against law and standards.
• Emphasis on easy provision of services and facilities to people.

Democratic Values and Norms

Democracy is a fully endowed governance system. It is the highest ideal of governance. In a democratic system, there are no deficiencies. If there are any, they are in practice, not in principle. Sovereignty and state power are in the hands of the people, not a specific person or group. In democracy, people exercise royal and sovereign power themselves. It is the opposite concept of authoritarianism. It is a people-oriented governance system. Governance by the people, for the people, of the people is Democracy.

Basic Values and Norms

• Sovereignty and Supremacy of people.
• Competitive multiparty democratic governance system.
• Majority rule with respect for minority.
• Individual Liberty.
• Protection of Fundamental/Human Rights.
• Adult Franchise.
• Periodic Election.
• Independent Press.
• Independent, Fair and Competent Judiciary.
• Rule of Law.
• Governance based on Equity & Equality.
• Inclusiveness.
• Power Decentralization.
• Separation of power and Check and Balance.
• Fraternity and World Brotherhood.
• Sustainable peace, good governance, development, and prosperity.

Classification of Democracy

Direct Democracy

System where people directly participate in political system, make policies, decisions, and run their governance. Possible only in small states.

Indirect Democracy

System where people run governance through representatives, not directly.

People exercise sovereignty through elections, electing representatives for a fixed period to run governance.

Indirect democracy is divided into representative democracy and inclusive democracy.

Representative Democracy

System where elected majority representatives govern.

Majority gets to govern, minority becomes opposition.

Inclusive Democracy

Democratic system including all sides and communities in all organs of governance.

No ruling and opposition roles like in representative democracy.

All sides equally included in entire political system.

Concept advanced to remove weaknesses of majority system.

Importance of Democracy

• To respect people's sovereignty and state power.
• To maintain rule of law.
• To maintain governance based on constitutionalism.
• To establish representative system and maintain citizen supremacy.
• To guarantee equal treatment among citizens.
• To guarantee citizen freedom.
• To emphasize social and cultural transformation.
• To establish citizen administration based on transparency and good governance.
• To recognize society based on cultural pluralism.
• To end authoritarian rule by emphasizing collectivism.
• To respect all voices.
• To value the voice of ordinary people.

Conditions Necessary for Democracy's Success

• Civic Education and Political awareness.
• Periodic Election.
• Healthy party system.
• Cultured politics.
• Equality and freedom.
• Tolerance and unity spirit.
• Peace and order.
• Independent Judiciary.
• Independent Press.

Introduction to Inclusion

Inclusion refers to ensuring fair sharing of power, access, resources, and opportunities by including various groups, classes, communities, ethnicities, religions, genders, and languages that have not been included in the nation's mainstream.

Inclusion is a process that emphasizes providing opportunities for individuals from different classes, communities, religions, colors, and genders who have been forcibly excluded from the state's governance activities to participate in governance, law-making, and public policy formulation, implementation, and evaluation.

Inclusion is a strategy to fight exclusion. It stands on the human value, norm, and ideal that all people are born equal, so all should live together, and the state should treat all without discrimination.

It is called the bond of common fate.

Inclusion is the process of ensuring meaningful participation of all castes, classes, and communities in all levels of the state and fostering a sense of ownership towards the governance system.

The main objective is equal access to state power and equal participation in benefit distribution.

The term inclusion was first used by Takis Fotopoulos, linking it to democracy.

Definition of Inclusion

Inclusion is the act of including the diversity and plurality of people in the decision-making and implementation processes of the governance system.

"Social Inclusion is the removal of institutional barriers and the enhancement of incentives to increase the access of diverse individuals and groups to development opportunity" -World Bank

Objectives of Inclusion

• To maintain national unity.
• To institutionalize democracy.
• To resolve conflicts.
• To ensure proportional representation in state power.
• To prevent country fragmentation.
• To achieve proportional development of the country.
• To include majority people in governance.
• To restructure the state.

Theoretical Basis of Inclusion

Looking at various policies on inclusion worldwide, the following principles on inclusion are advanced:

• Principle of compensation.
• Principle of protection.
• Principle of proportional equality.
• Principle of social justice.
• Principle of empowerment.
• Principle of autonomy.

Forms of Inclusion

• Ethnic inclusion.
• Linguistic inclusion.
• Religious inclusion.
• Gender and sexual inclusion.
• Economic inclusion.
• Social inclusion.
• Provincial/regional inclusion.
• Political and administrative inclusion.

Proportional Representation

Proportional representation is the process of representing all classes, genders, regions, and communities in the governance system based on their demographic proportion.

To ensure representation of all classes and communities in governance, proportional election system is adopted.

This principle is advanced to remove weaknesses of majority system.

Proportional principle is adopted instead of majority to ensure proper representation of minorities.

Types of Proportional Election System

• List-based election system.
• Single transferable vote system.

List-Based Proportional System

In this system, each party submits a list of candidates to the election commission, the entire country is one constituency, and votes are cast for political parties.

Candidates from the list are declared elected based on the proportion of votes received by the party.

In this system, lists are prepared ensuring representation of different classes, genders, regions, and communities. Nepal currently adopts a mixed system of direct and proportional elections.

Single Transferable Vote System

Single transferable vote system is where voters vote for available candidates based on preference.

First, the number of members to be elected is determined. Each voter has the right to vote based on prioritization.

Votes exceeding the required for election are transferred to other candidates. Votes of the highest and lowest are distributed to others. Remaining candidates are defeated.

Merits of Proportional Election System

• Establishment of representative system.
• Proper representation of minorities.
• No possibility of dictatorship in governance.
• Representation of all classes and communities in governance.
• No wasted votes (no need for by-elections).
• Proper representation even of small parties.
• Appropriate method for inclusion.

Demerits of Proportional Election System

• Coalition governments and party quotas.
• Obstruction in decision-making.
• Lack of government stability.
• Difficulty in establishing national unity.
• Complex and cumbersome process, hard for public to understand.
• Possibility of fostering communalism and regionalism.
• Emergence of small and regional parties.
• Dominance of political parties.
• Difficulty in contact between representatives and voters.
• Lack of direct accountability.

Introduction to Affirmative Action

Affirmative action is the special provision provided by law to targeted communities to provide justice with compensation to citizens who have suffered inequality, injustice, oppression, or persecution in the past.

It is seen as the present effect of past discrimination.

Positive discrimination in distribution of state services, facilities, and opportunities to deprived classes or communities to maintain equality is affirmative action.

Though discrimination, it is positive discrimination for positive purposes.

Also called Affirmative action, Positive discrimination, etc.

Affirmative action is the special arrangement by the state to improve the condition of classes, communities, or groups backward economically, socially, culturally, educationally, and professionally.

It aims to improve the condition of weak and backward classes, communities, or groups in society. Affirmative action is a powerful means to establish real equality.

Philosophical Aspects of Affirmative Action

• Discrimination only by classifying citizens.
• Must have lawful purpose and rational basis for classification.
• Meaningful relation between purpose and basis.
• Cannot classify as weak without sufficient data and information.
• Data and information based on scientific indicators.
• Policy of discrimination only by law, not executive order.
• Reservation policy not for long term.
• Cannot base identification of weak class on ethnic and gender.
• No reservation in one post and posts requiring special qualification.

Tools of Affirmative Action

• Priority.
• Special training/capacity development.
• Concessions and exemptions in opportunities.
• Creation of suitable environment.
• Provision for gender justice.
• Reservation.

Positive and Negative Aspects of Affirmative Action and Reservation

Positive Aspects

• Support for equality.
• Representation of deprived groups.
• Compensation for historical damage.
• Promotion of social justice.
• Upliftment of weak classes.
• Inclusive and participatory governance.
• Development of sense of ownership in governance system.

Negative Aspects

• Neglect of quality, emphasis only on representation.
• Propaganda, popularity slogans.
• Only certain individuals benefit, not truly backward represented.
• Feeling of inferiority, received as mercy.
• Unhealthy competition, may weaken instead of strengthening.
• Discrimination gap may widen.
• Positive discrimination on ethnic basis may divide society.

Overall Policy Provisions on Inclusion

Constitutional Provisions

• Part 3, Article 18 on right to equality's proviso: Special provisions by law for protection, empowerment, and development of socially, culturally, economically backward communities.
• Rights of women, Dalits, senior citizens, social justice as fundamental rights. Through these, ensuring proportional inclusive participation of women and Dalits, special opportunities based on positive discrimination in education, health, employment, social security.
• Part 4, Article 51 under state policies, separate policy on social justice and inclusion.
• 33% representation in House of Representatives.
• Constitutional provisions for National Women's Commission, National Dalit Commission, National Inclusion Commission, Indigenous Peoples Commission, Madhesi Commission, Tharu Commission, Muslim Commission.
• Mixed system with proportional election in House of Representatives and provincial assemblies (Articles 84 and 176).
• In National Assembly, of 8 elected from each province, 3 women, 1 Dalit, 1 disabled or minority; of 3 nominated by President, at least 1 woman (Article 86).
• President and Vice-President from different gender or community (Article 70).
• At least one woman between Speaker and Deputy Speaker (Article 182).
• Formation of Council of Ministers on inclusive principle.
• Inclusive Nepali Army (Article 267).
• Appointments to constitutional bodies, posts, ambassadors, special representatives on inclusive principle.
• Representation of women, Dalits, minority communities in local executive and legislature.

Legal Provisions

• Civil Service Act, 2049 provides for reservation; amendments to Police Act 2012, Armed Police Act 2058, Military Act 2063 reserve 45% of open competition posts for women, Dalits, indigenous, Madhesi, disabled, backward areas.
• Amendments to Development Committee Act 2013, Education Act 2038, Nepal Special Service Act 2042, Health Service Act 2053 provide reservation in open competition for women, Dalits, indigenous, Madhesi, disabled, backward areas.
• Disabled Protection Act 2039.
• 20% reserved for women in armed police, Nepal police, army open recruitment.
• Certain percentage reservation for women, indigenous, Dalits, Madhesi, backward areas, disabled in teacher appointments.

Other Efforts

• Child care center in establishments with more than 50 women workers.
• Revenue exemption for women in land purchase, industry registration.

Inclusion in Periodic Plans

Priority to inclusion, uplifting women, Dalits, indigenous, Madhesi, Muslim, Badi community, backward classes with expected achievements, various strategies, policies, action plans, and major programs mentioned.

Overall Challenges of Inclusion

• Adopting reservation policy arbitrarily.
• Reservation policy based only on ethnic and gender, not identification of weak class.
• Government lacks data and information on who is weak class.
• Only elites of excluded communities benefit.
• Failure to make long-term and result-oriented inclusion development policy.
• One person repeatedly benefits from opportunities.
• Narrow thinking and social values persist.
• Extreme misuse of proportional election system, giving opportunities to leaders' close relatives.
• Problem of identifying truly deprived class.
• No review every 10 years.

Future Path in Inclusion

• Immediately identify clearly excluded individuals, classes, and areas.
• Formulate separate law on inclusion.
• Arrange so only targeted class/community benefits.
• Adopt policy to promote positive impact and minimize negative.
• Evaluate reservation effect every 5 years and review.
• Do not reservation for long term.
• Provide reservation opportunity only in certain levels and grades.
• Provide reservation facility to one person only once.
• Emphasize empowerment over reservation.
• Make reservation short-term and empowerment long-term.
• Emphasize inclusion of excluded within excluded based on economically, socially backward (Principle of Double disadvantaged).
• Analyze practice so far and its impact and effects.
• Deploy manpower from reservation to frontline service in related community.
• Investigate and punish those taking benefit with false details.
• Ensure proportional representation in political posts.
• Strictly implement laws to remove social cultural discrimination.
• Make new contemporary laws.
• Resolve inequalities within themselves.

Sample Questions for Practice

• Discuss the conceptual aspects of rule of law and present arguments that democracy cannot be strong without rule of law. (10)
• Examine the bases of rule of law and evaluate the status of rule of law in Nepal. (10)
• What do you think should be the role of which state bodies to maintain rule of law? Present suggestions. (10)
• Discuss theoretical concepts of rule of law and mention reasons why the status of rule of law in Nepal is deteriorating day by day. 10
• What is meant by democratic values and norms? Review efforts made for establishing democracy in Nepal and mention conditions necessary for democracy's success. (10)
• Discuss theoretical concept of inclusion and positive negative impacts it has made in Nepal, and present a draft of suggestions on what policy to adopt on inclusion in coming days. (10)
• Identify real areas of exclusion and present suggestions on what improvements can be made in those areas. (10)
• "Affirmative action is a form of inclusion" Confirm this statement and mention provisions made by current constitution on affirmative action. (10)
• What do you understand by proportional representation? Is the principle of proportional representation the only infallible weapon for successful democracy? Present your view. (10)
• Discuss affirmative action and efforts made to end gender discrimination, how effective do you see them? Discuss what measures can be adopted to end gender discrimination in coming days. (10)