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Bar News - September 9, 2005 President’s Perspective: Is the Rule of Law an Elusive Dream? By: Richard Y. Uchida
Like me, Mr. Thapa is the president of a bar association. Like me, he spends his time thinking about the significance and value of that association. And like me, he ponders how to improve that bar association during his term as president. But unlike me, he knows his service as bar president places his life and liberty in jeopardy every day. Unlike me, he finds that his dedication to basic principles about adherence to the rule of law and a constitutional form of government can bring about restrictions on his travel and personal life, and even result in arrest. And unlike me, he has had to risk his career and livelihood to obtain the freedom of a previous bar president who was jailed for dedicating himself to the same principles that Mr. Thapa espouses. For Mr. Thapa is president of the Nepal Bar Association—the association of lawyers in the country of Nepal. I meet with Mr. Thapa. During his visit to New Hampshire in July to see members of his family, I had the privilege of meeting with President Thapa, who also spent time with Supreme Court Justice Richard Galway, Superior Court Associate Justice Larry Smukler and Clerk William McGraw at the Merrimack County Superior Court. During the last few years, Nepal, which adopted a constitutional form of government in 1990, has been the subject of upheaval. In February 2005, a monarch—King Gyanendra—stepped in, formed a new government, suspended civil rights, and is now ignoring the constitution. He has disbanded parliament, fired the prime minister, and dismantled the government. He has directed the judiciary to ignore cases that would challenge his government, even though it does not adhere to the constitutional principles that the nation adopted in 1990. It is against this backdrop that Mr. Thapa became bar president. His predecessor was jailed briefly for his public objections to a government that ignored constitutional rights and safeguards that we take for granted. Mr. Thapa had to resort to the extraordinary remedy of a habeas corpus petition to free his colleague. Getting a court to hear his petition is a story in itself, but in a courageous ruling, a court finally sided with him, noting that there was no basis for the jailing of the then-bar president. In June 2005, he led the Nepal Bar Association in adopting a resolution condemning the seizure of power by the king and the dismantling of the Nepalese government as unconstitutional. The association has also undertaken representation of hundreds of political detainees. His work comes with a price. Mr. Thapa’s activities are monitored. His travel is restricted. At one point, he planned to go to India to talk about his bar and the rule of law. He was unceremoniously removed from the airplane minutes before takeoff and detained long enough to make him miss his engagement. The current regime does not trust him, but reluctantly lets him advocate for his causes (within boundaries, of course) because suppressing too much discord could lead to overthrow—and control of the country by violent anarchist rebels. I thought about our good fortune. We take adherence to the rule of law and the supremacy of our state and federal constitutions as a given. New Hampshire lawyers cannot conceive of situations in which their positions on behalf of clients could lead to jail time for them. New Hampshire lawyers cannot envision a time when their clients’ cases would not be docketed because they are unpopular with the government. We take our positive expectations for granted because we have been vigilant about the rule of law and the safeguarding of our rights. That vigilance must continue and has become more important now than at any time since the dawn of the civil rights era. This past spring, while speaking to new admittees, I noted that recently our judicial system had become the target of unfair criticism. With incredulity, we had heard people advocate that a court’s ruling should be ignored, even defied; that judges should be removed; and that a court’s jurisdiction should be erased—all because of personal disagreements with the outcomes of cases. How is that any different from the Nepalese world in which Mr. Thapa lives? Seize the “Teachable Moment.” If we do only one thing as lawyers to combat the eroding of the rule of law, let it be to take advantage of what one colleague calls the “Teachable Moment.” The “Teachable Moment” is the moment that arises in your day when you have the chance to talk to your families, your neighbors, your legislators and your communities about the system in which we work and the importance of the bedrock principles of the rule of law and the independence of the judiciary. We should understand and appreciate this more than anyone else—more than our clients, our lay staff people and those in other professions. So take time to talk about these issues when the “Teachable Moment” arises. Sign up for the Bar Association’s mock trial or We the People competitions that help students appreciate our justice system and the constitutional freedoms we enjoy. Protect the teaching of civics in your community’s classrooms. Write a Question of Law column. Speak to a local civic organization, such as the Rotary Club. Join us for Law Day (A Lawyer & Judge in Every School Day) next May. Become a member the Bar’s Public Information Committee or Law-Related Education Committee. And remember President Thapa, who looks at our country and form of government as an almost-elusive hope and dream—but one worth risking his life and liberty for, every day.
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