Police acting with unusual haste to arrest a leader in the middle of the night. Trying to impose a lifetime jail for a legitimate political leader trying to restore monarchy. Writing an unauthorised, hence fake, letter to arrest a politician before the announcement of a merger.

These are but three recent incidents showing that Nepal’s rule of law is breaking down. And the ones responsible for violating the principles of the rule of law are no other than those obliged to uphold it.

The current regime’s actions in recent months do not stand up to the eight principles outlined by the authoritative Tom Bingham in his famous book, The Rule of Law.

The first principle is that “the law must be accessible and so far as possible intelligible, clear and predictable.”

Of course, if Rastriya Prajatantra Party co-chair Rabindra Mishra is to be prosecuted (or persecuted in this instance), we must know what is allowed in politics and what is not. If violence and People’s War can be used as a pretext to overthrow the monarchy, surely another political movement to restore that same monarchy should be fair.

After all, the sovereign is always above the law during moments of exception, especially during emergencies or while promulgating a new constitution.

This raises the question: Are we allowed to campaign for the change of the constitution through a new political agreement? If violence was unleashed, then shouldn’t we first ascertain, through a neutral and impartial investigating authority, who was responsible for unleashing that violence? In the case of Mishra, his persecution appears to be driven by a desire by the ruling coalition leaders to punish the opposition rather than by a desire to uphold the law.

“Questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion.”

The second principle, the “application of the law and not the exercise of discretion,” is also frequently violated when it comes to the opposition. The law is applied in an unequal manner to those in the opposition and those close to the ruling coalition. In the case of both Mishra and another politician, Rabi Lamichhane, the police detained the two in the middle of the night or at the end of the working week and brought them to the court for remand only days. The intent of the political rulers, without doubt, is to inflict as much punishment and hardship as possible.

In both cases, the police acted with unusual haste even as they could have arrested them after regular process as both were unlikely to cause more harm or run away. One only wishes the policy would act with such efficiency or haste while prosecuting corrupt criminals.

This brings us to the third principle, that “the laws of the land should apply equally to all, save to the extent that objective differences justify differentiation.”

It is as if we have a system where the leaders of the ruling coalition act like permanent sovereigns, always above the law, even as they declare that nobody is above the law. They can use the rule of law as a mechanism of political control, unleashing it on individuals who challenge them or threaten them politically.

As a corollary, it is clear for all to see that the state refuses to take action against those who have abused their authority or engaged in corruption.

Now let’s look at the fourth principle, “Ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably.”

But at least there is hope that Nepal’s law, and hence the judiciary, can “afford adequate protection of fundamental human rights.” Even this principle is undermined by the fact that justice delayed is justice denied. This is the only principle where Nepal can stand proudly, at least comparatively, especially after the restoration of democracy following the brief but tumultuous years of King Gyanendra’s direct rule.

Even then, in order to uphold this principle, the state must be designed to protect the right to liberty and security. In the case of Mishra and Lamichhane, detention can only be applied for the purpose of bringing them to court or preventing them from committing further offences, or if there is a possibility of them fleeing. In the absence of those grounds their detention can only be upheld if they are convicted of a crime and sentenced to prison.

When it comes to the question of political conviction, for example the desire to restore monarchy, does it fall under the freedom of thought, conscience and religion? In that sense, can it really be prosecuted? What if organising a political rally is part of freedom of expression, or the freedom of assembly and association?

There are countless examples where the executive has failed to carry the laws, made by the Parliament, into effect. It is as if the government can willfully ignore acts of corruption and abuse of authority. One clear example is the case of Pokhara Regional International Airport where there is clear evidence of wrongdoing and corruption. Yet the state is unable to bring the wrongdoers to account.

Speaking in the Parliament, a former minister claimed that he was knowingly forced to appoint a “corrupt” person to the position of a director general at the instructions of senior political leaders.

Where should reforms start? This is a difficult question. When we talk to knowledgeable legal professionals, almost all of them say there is no hope for the judiciary; we cannot expect reforms from this sector. Former secretaries say the same about the bureaucracy and the government. Top political leaders say the same about the Parliament.

The media, on the other hand, is lost. Those of us who watch the media closely feel that the fourth sector has lost its way and has been co-opted by political and financial interests completely, and, in the absence of a robust economy, there is no prospect for the media to hold power to account.

The only solution has to come through a new political venture—one that has both a popular appeal and the professional capacity to deliver change. The only other option is to wait for evolution, driven by changes in technology and society. However, this could be a process that does not guarantee democracy, at least not in the next 10 to 15 years.