Rule of Law

The term rule of law is derived from the french phrase ‘La principle de legality’ which refers to governed based on principle of law not of man.

In general sense rule of law means the rule according to law or Supremacy of law. Therefore, to rule according to law is the rule of law. ‘Supremacy of law’ refers to no one is above the law

The rule of law is a legal principle that states law should govern a nation, not authority decisions by governmental officials. Every person is subject to the jurisdiction of ordinary courts of law irrespective of their position and rank. The entire basis of administrative law is the doctrine of the rule of law.

Edward coke and A.V. Dicey are the main exponents of this concept rule of law .Edward Coke was the originator of this concept .

In 1885, A.V. dicey propounded three principle of the rule of law in his classic book ‘Law and the Constitution’. According to him, to achieve the supremacy of law the following three principle must be followed.

1. Supremacy of law
2. Equality before law
3. Predominance of legal spirit

(1) Supremacy of law

• No one is above the law and everyone regardless of status or position , is subject to law.
• It implies that a man may be punished for a breach of law, but he cannot punished for anything else.

(2) Equality before law

• Everyone is treated equally under the law.
• There should be the same set of laws for all people and they should adjudicated by the same Court.

(3) Predominance of legal spirit

• According to Dicey, For the prevalence of the rule of law, there should be an enforcing authority and the authority he found in the court.
• He believed that courts are the enforcer of the rule of law and hence it should be free from impartiality and external influence. The independence of the judiciary is an important pillar for the existence of rule of law.

In the context of Nepal ,

Rule of law in The Constitution of Nepal, 2072 :

The preamble of the constitution state that, it is committed to civil liberties ,fundamental rights,adultFranchises, periodic elections,independen , impartia, and competent judiciary and the concept of the rule of law. These principle are guranteed in order to build a prosperous nation.

• Aritcle -1 : Constitution is the fundamental law of the land and any law inconsistence with this constitution shall, to extent of such inconsistency be void. Which refers constitution is supreme law and acts of government as well as other organs of the state must comply or respect to the constitution . No one go beyoound the constitution.
• Part :3 (Article 16 to 46 ) , The constitution has guaranteed both civil and political rights and economic social, and cultural rights under the fundamental rights and duties. In this regard constitution protects right to life, liberties, equality rights, and economic, social and cultural rights which are set back to the rule of law.
• Article 18, Right to equality: All citizens shall be equal before law and no one is denied from the equal protection of law.
• Article-20, Right relating to justice:

• clause (4), No person is liable for punishment for an act which was not punishable by law in force when the act was committed nor shall any person be subjected to a punishment greater than prescribed by the law in force at the time of the commission of the offence.

• clause(9), Every person shall have right to a fair trail by an independent,impartial and competent court or judicial body.

• clause (10), An indigent person party shall have the right to free legal aid by law.

• Article 46, Right to constitutional remedy: When any rights under the Fundamental Rights and Duties section are violated, the Supreme Court, under Article 133, and the High Court, under Article 144, have the power to issue necessary and appropriate orders for the enforcement of fundamental rights.
• Part 11, Judiciary: The independence of the judiciary, along with its jurisdiction for judicial review, the final authority to interpret the Constitution and the law. e.t.c.

So , we can say that from above mentioned constitutional provision and preamble clearly reflects the rule of law in nepal.

Separation of powers and checks and balances are key principles that keep the government within its limits and prevent state mechanisms from exceeding their authority. The Constitution of Nepal, 2072, distribute state power among the legislative, executive, and judiciary branches, as well as between federal, provincial, and local levels within the federal structure. This also contributes to the rule of law in Nepal.

Related Case laws

• Sher Bahadur Deuba vs office of Prime Minister and others :

= In this case, Supreme Court held that the dissolution of the house done by PM Kp Oli was unconstitutional,There by ensuring rule of law .

• Sanjeeb Parajuli on behalf of Rajeeb Parajuli vs Royal Commission on Corruption Control et.al(RCC),2062

= The supreme court stated that the constitution is the fundamental law of the land and even the king has to abide by it. In this case RCCC was recognised as unconstitutional organ and dissolved by supreme court, Thereby ensuring rule of law

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