The uses of law

TKP 31/8/2009

Those who argue that the Vice President should take the oath in Nepali fail to realise that the state's legitimacy comes from its ability to evolve

Those critical of Vice President Paramananda Jha's decision not to retake his oath of office in Nepali — at least until the constitution is amended to allow the taking of oaths in other languages used in Nepal — argue that he is in severe breach of the rule of law. That whatever the merits of the case, now that the Supreme Court has taken a decision the vice president should stick to it, for if he doesn’t a bad precedent will be set where others too will feel emboldened and disregard the Court’s decisions, setting in chain a sequence of events where total impunity and disregard of the law will prevail.

But what is the purpose of the “rule of law” and how are the courts to uphold it? Granted, state authorities have in normal circumstances the authority to ensure — if need be through force — that the citizens under its control follow the established rules, thus inhibiting other potential violations that could occur. But to think that the courts should always closely follow the letter of law in deciding cases while disregarding all other circumstances is to take an excessively narrow definition of the rule of law. It is a definition that tyrants and dictators have often taken recourse to when they wish to punish those who threaten their authority. For by maintaining the fiction that the rule of law exists in a pristine realm untouched by dirty real-world politics, illegitimate leaders can hide the fact that they are taking decisions that are blatantly in their self-interest.

The true purpose of the rule of law is to create a community that is bound together by norms and regulations where no one is unjustifiably deprived of their rights. In order for such an environment to prevail, the laws that the community is bound by must possess broad legitimacy among the population. Interpretation of law should be taken with the recognition that its purpose is to establish an environment where citizens are encouraged to trust each other and unleash their talents and energies, individually and in collaboration, for the benefit of themselves and the larger community. Those who violate the law should face punishment, not for its own sake, but to ensure that normal citizens do not lose their faith in the ability of the state’s institutions to protect their interests.

In upholding the rule of law, then, an enlightened Supreme Court would take its decisions based on whether they fulfilled these criteria. It would have understood that Nepal is undergoing a transformation where the sources of legitimacy that the old state rested on have eroded but where the new ones are yet to become institutionalised. And that, as the laws have not kept up with the times, it would be best to demonstrate flexibility while taking decisions, especially on sensitive cases involving the feelings of identity of particular groups.

Unfortunately, the justices of the Supreme Court, considered to be the most enlightened of citizens in many nations, have revealed themselves to be even more parochial and myopic than the politicians and administrators who have governed this country. For the aggressive action that the Supreme Court took against the vice president — first by judging that he violated the constitution by taking his oath of office in Hindi and then by demanding a month later that he retake his oath in Nepali within a week — fulfills none of the purposes of the rule of law. Instead of enhancing feelings of trust and belongingness towards the state, it has antagonized Madhesis, a large and influential group. It has reinforced the perception that despite all the movements for rights that have occurred over the previous years, the organs of the state are partial to a minority that is going to fight to its death in an attempt to maintain its old privileges.

At this point it will be argued that in conditions of disorder the state cannot go about seeking legitimacy from each and all of its citizens. That it is necessary to maintain order, if need be through force. The assertion for rights cannot be made an excuse for the state to sit back and watch its power erode. In fact, it will be said, one of the major mistakes the governing class made in the past few years was to turn a blind eye to violations of the law: if it had asserted itself to a greater degree, the current anarchy could have been stemmed. And among all the state organs, the Supreme Court has demonstrated that it is committed to guaranteeing order. The establishment of order will strengthen the state, and only a stronger state will be able to command legitimacy.

In response, it could be pointed out that when near complete impunity has prevailed for those who hold powerful positions, it is senseless to claim that the Supreme Court is in this case upholding the rule of law. But more importantly, it is absurd to think that forcing the vice president to retake his oath in Nepali will strengthen the state. If anything, if a resolution satisfactory to all sides is not found soon, greater confrontation will be unleashed — between the state and Madhesis, between Madhesis and Pahadis. In the longer term, Madhesis and other historically marginalized groups will remember the ruling on the vice president’s oath as an example of the state’s hostility towards their interests, this will add to their burden of grievance and the feeling that they should refuse to adhere to any decision the state takes will increase. These consequences can only mean a further weakening of the state’s hold over Nepal’s territory.

But then perhaps the eminent justices of the Supreme Court represent only that section of the population that feels that other cultures cannot at any cost be allowed to influence the Brahmanical state structure. Perhaps they feel that a culturally “pure” state that holds authority only in Kathmandu and some hill areas is preferable to a “contaminated” state that possesses legitimacy across the entire country. If this is the goal, the Supreme Court has succeeded in taking the nation a step closer towards it.