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Nepal: Federalism, Justice, & Law Enforcement

Prakash Bom - 1/13/2008

The most deplorable social injustice Nepal and Nepali people have ever encountered in human history is the imposition of Hindus' caste system in their everyday life. The system was enforced by the feudal law and its elements are still one of the dominant factors in current judiciary system that is corrupt. The common law "Muluki Ain" – collection of law enforcement procedures to interpret social and economic crimes such as landlord and peasant, inter-caste, and marriage disputes, for example, are still in the law enforcement practice in Nepali justice system. The judiciary system for a long period of time in history has been entrenched with practice of caste system or social stratifications. Still the majority of judges, who are hierarchically appointed by the Supreme Court judges, indulge the corruption that "Muluki Ain" has granted them.

Despite what judiciary independence the Supreme Court has achieved during twelve years of democracy after 'People's Movement I' the entire judiciary system needs transformation with the restructuring of the state. The system of appointments of district and regional judges that has inherited the nomination tradition of the feudal establishment must be transformed with the electoral institutions of democracy. The district and regional judges, district attorneys and law enforcement officers must be in the ballot every six years to be elected by the people of the districts and regions. Otherwise, judiciary system of Nepal can never be democratized nor it can be independent.

The recent measures that Nepal Bar Association recommended for judiciary system to improve its traditionally tainted reputation regarding corruption will not even have slightest effect on majority of judges in whole country who are not under the current judiciary structure institutionally responsible to the people. Unless the system is restructured with the institution of electoral democracy to make judges directly responsible to the electorates of his or her constituency the recommendations are just sentiments but they cannot transform the institution with its accountability.

The restructuring does not need to be fanatically federalist. If even under the unitary government system the local units of government are constituted through electoral system so that representatives of the local unit of government – legislative, executive and judiciary become directly accountable to the electorates of their respective constituencies, can lay institutional foundations of inclusive democracy. Unfortunately, there has been no unitary system of government in history that has granted rights to self-governance or partial autonomy or self-determination to the elected representatives of the constituencies in order to form local governments. If that could have been the case for the constitutional provision under the unitary government system, for example, Scotland, Wales and Northern Ireland would have been satisfied with the central control of England and the need of the United Kingdom would have been vaporized.

Bahunist Acharayas in the history of Nepal whose ancestors (Manus) loyal to the mythology of Hindu kingdom were responsible for Hindu's caste system are also responsible for implementing "Muluki Ain" into a single body of law under the rule of Ram Shah of Gorkha in seveteenth century. The law enforced the system of social stratifications of the Manusmirti – the discriminatory system of "Hindus' Vernasrama Dhrama". Contemporary Bahunist Acharayas whose stakes have been threatened with the current political changes are trying to defend the feudal unitary government structure that is basically built upon a single body of law "Muluki Ain". As long as the centrally controlled feudalistic unitary government system of Nepal remains undercurrent government mechanism of justice and law enforcement the hope for the inclusive democracy will be under the grace of these Bahunist Acharayas whose sentiment and hope depends on their loyalty to the mythology of the Hindu kingdom.

The recent Bahunist Acharayas enticements against restructuring the government system under the federalism will disintegrate the nation cannot be ruled out from the possibility, especially regarding Terai region that is under the threat. However, their argument that the nation, which has been united by the monarchy in late seventeenth century, is about to disintegrate is nothing but a gimmick based on mere propaganda if not royalist conspiracy against the declaration of 'Federal Democratic Republic'. Historically, Nepal was never united with the consensus of people but it was united by force by those ruling elites whose stakes depend on their faith in Hindu kingdom.

The justice and law enforcement in democracy can hardly be transparent nor can they serve justice to the people if their implementations depend on central control. Therefore, both institutions under the centrally controlled system become irresponsible and corrupt. On the contrary, under the federal system the justice and law enforcement have direct accountability to their constituencies with their method of implementations. For example, a vehicle is technically state registered but if it commits moving or parking violation in the vicinity of a local government the local government enforces the law. The enforcement does not have central command but the local responsibility to the safety of the people. The elected judges, attorneys and local law enforcement officers are accountable to the people who have elected them in the position and these elected representatives come from the local population of the constituencies.

As much as the conspiracy against federal system of government is real that much is also real to the danger of disintegrating nation, which has more recently become a vast nation wide conglomeration of diverse ethnicity. Unless the justice is practiced and law enforcement is implemented in the local government level through the establishment of electoral institutions of democracy, as other organs of government the judiciary will remain partial and corrupt. Also, under the federalism if state level control persist over the justice and the law enforcement it will be state dominated practice and enforcement that can ruthlessly overrule the votes of the electorates of the local constituencies if federalism consist without the structure of the local governments.

Therefore, neither justice can be practiced nor the law enforcement can be implemented without corruption under the current structure of judiciary system that is basically centrally controlled and 'Muluki-Ain' driven. The restructuring of the entire judiciary system from local to the central level that become accountable to the electorates of the respective constituencies of whole nation can only make the judiciary independent and transparent. This means all the local judges, attorneys, and the law enforcement officers must be elected in their respective constituencies. The local justice and the law enforcement are the most essential and the most functional part of the democracy. If democracy does not have system that permits people to serve people with certain accountability then democracy becomes a mere bureaucracy – the burden of people.