Court

 Court

Article 126(1) of The Constitution of Nepal provides that the judicial power of Nepal shall be exercised by the courts and the judicial authorities pursuant to the Constitution and other laws and recognized principles of justice. Article 127 of the Constitution has incorporated the provision of Supreme Court, High court and District Court along with the provision for establishing judicial bodies in the Local level or other bodies as required may be formed to pursue alternative dispute settlement mechanism.

Similarly, Article 137 of the Constitution establishes the Constitutional Bench in the Supreme Court to hear the disputes related to jurisdiction of Federal, State and Local level as well as the disputes on qualification of elected member of federal or state Parliament.

Types of Court

Supreme Court as the highest court of Nepal is recognized as a court of record. At present, there are 7 High Courts along with nine permanent Benches and two temporary Benches of the High Court. 75 District Courts and other judicial institutions like Debt Recovery Tribunal, Revenue Tribunal, Administrative Court, Foreign Employment Tribunal and Special Court are also discharging the duties of justice dispensation in Nepal.

Special Court: Cases under the Crimes and Punishments against the State Act, 2046, Commission of Inquiry into Abuse of Authority Act, 2048, Prevention of Corruption Act, 2059 and Prevention of Money Laundering Act, 2064 are defined by the special court. Filed action is being sidelined.

 

Administrative Court: As a body to hear appeals against departmental punishment of civil servants. The Administrative Court, which was established on September 7, 2008, had the right to hear the appeal only on the sentence of dismissal from the service as per the Civil Service Act, 2013.

The same provision has been given continuity by the Civil Service Act, 2049 BS and Rules 2050 BS. The Administrative Courts Act, 2076 and the Administrative Courts Rules, 2077 have been issued with the objective of making the administrative courts more effective and timely. The Act extends the jurisdiction of the court to hear appeals against departmental punishments, promotions and transfers of employees or decisions or final orders.

Article 3 of the Administrative Courts Act, 2076 provides that the Government of Nepal may, by publishing a notice in the Nepal Gazette, constitute an administrative court consisting of a chairperson and two members.

Foreign Employment Tribunal:- In order to make the foreign employment business safe, organized and dignified by promoting the foreign employment business and to protect the rights and interests of the workers going for foreign employment and foreign employment entrepreneurs, the Foreign Employment Act, 2064 was enacted on 2064/5/19.

Out of the offenses mentioned in paragraph 9 of the Foreign Employment Act, 2064, this tribunal has been carrying out its work to initiate and eliminate the offenses other than the offenses which are mentioned to be punished by the Department of Foreign Employment. At present, the office of this tribunal is located at Baber Mahal, Kathmandu.

Labour Court:-The seat of this court is currently in Anamnagar under Kathmandu district. The Labor Court is a specialized court similar to the High Court. There is a legal provision for this court to initiate jurisdiction and initiate disputes related to labor. This court will hear the case under the Labor Act, 2074 and hear the appeal against the order or decision made by the Department of Labor and Occupational Safety, Labor and Employment Office, establishment or employer in accordance with the law. In addition to taking action and sidelining, it has been sidelining the controversy by hearing the appeal against the decision taken by the employer to terminate the employment or to punish for the misconduct. 

There is a provision that this court may appeal to the esteemed Supreme Court against the decision or final decision of the court and the decision or final order after hearing the dispute is final.

Judicial Committee: 

(1) There shall be a three-member judicial committee to

be coordinated by its Vice-Chairperson in the case of a Village Body and by its Deputy Mayor in the case of a Municipality, in order to settle disputes under their respective jurisdictions in accordance with law.

(2) The judicial committee under clause (1) shall consist of two members elected by the members of the Village Assembly or the Municipal Assembly from amongst themselves.

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Appointment and qualification of Chief Justice of Nepal and Judges of

Supreme Court:

1) The Supreme Court shall consist of a maximum of twenty Judges, in addition to the Chief Justice of Nepal.

(2) The President shall appoint the Chief Justice, on recommendation of the Constitutional Council, and other Judges of the Supreme Court, on recommendation of the Judicial Council.

(3) Any person who has served as a Judge of the Supreme Court for at least three years shall be qualified for appointment as the Chief Justice.

(4) The term of office of the Chief Justice shall be six years.

(5) Any citizen of Nepal who has obtained a bachelor's degree in law and served as the Chief Judge or a Judge of a High Court for at least five years or who has obtained a bachelor's degree in law and constantly practiced law as a senior advocate or advocate for at least fifteen years or who is a distinguished jurist having constantly worked for at least fifteen years in the judicial or legal

field or who has served in the post of Gazetted first class or a higher post of the Judicial Service for at least twelve years shall be deemed qualified for appointment as a Judge of the Supreme Court.

 

Conditions of service and facilities of Chief Justice and Judges:

(1) If the Chief Justice or a Judge of the Supreme Court who has served for at least five years resigns or undergoes compulsory retirement or dies, he or she shall be entitled to such pension as may be provided for in the Federal law.

(2) Except as otherwise provided in this Constitution, the remuneration and other conditions of service of the Chief Justice and Judges of the Supreme Court shall be provided for in the Federal law.

(3) Notwithstanding anything contained in clauses (1) and (2), the

Chief Justice or a Judge of the Supreme Court who has been removed from office by way of impeachment or who has been punished by a court for a criminal offence involving moral turpitude shall not be entitled to gratuity or pension.

(4) The remuneration and other conditions of service of the Chief

Justice or a Judge of the Supreme Court shall not be altered to his or her disadvantage.

Provided that this provision shall not apply in cases where a state of emergency is declared because of extreme economic disarrays.

 

Vacation of office of Chief Justice or Judge of Supreme Court:

The office of the Chief Justice or a Judge of the Supreme Court shall be vacant in any of the following circumstances:

(a) if he or she tenders resignation in writing before the President,

(b) if he or she attains the age of sixty-five years,

(c) if a motion of impeachment is passed against him or her under Article 101,

(d) if the President removes from office the Chief Justice, on recommendation of the Constitutional Council, and the Judge of

the Supreme Court, on recommendation of the Judicial Council, on the ground that he or she is unable to discharge his or her duties because of physical or mental illness,

(e) if he or she is punished by a court for a criminal offence involving moral turpitude,

(f) if he or she dies

 

Chief Justice and Judges of Supreme Court not to be engaged in any other office:

(1) No Chief Justice or Judge of the Supreme Court shall be engaged in or deputed to any office other than that of Judge.

Provided that the Government of Nepal may, in consultation with the Judicial Council, depute a Judge of the Supreme Court to work concerning judicial inquiry, or to legal or judicial investigation or research for a specified period.

(2) No person who has once held the office of Chief Justice or a Judge of the Supreme Court shall be eligible for appointment to any government office, except as otherwise provided in this Constitution.

 

Jurisdiction of Supreme Court:

(1) Any citizen of Nepal may file a petition in the Supreme Court to have any law or any part thereof declared void on the ground of inconsistency with this Constitution because it imposes an unreasonable restriction on the enjoyment of any fundamental right conferred by this Constitution or on any other ground, or to have any law or any part thereof made by a State Assembly declared void because it is inconsistent with any law made by the Federal Parliament or to have any law or any part thereof made by a Municipal Assembly or Village Assembly declared void because it is inconsistent with a law made by the Federal Parliament or the State Assembly, and the Supreme Court shall have an extra-ordinary power to declare that law to be void either ab initio or from the date of its decision if the law appears to be so inconsistent.

(2) The Supreme Court shall, for the enforcement of the fundamental rights conferred by this Constitution or of any other legal right for which no other remedy has been provided or for which the remedy even though provided

appears to be inadequate or ineffective or for the settlement of any constitutional or legal question involved in any dispute of public interest or concern, have the extraordinary power to issue necessary and appropriate orders, provide appropriate remedies, enforce such right or settle such dispute.

(3) Under the extra-ordinary jurisdiction under clause (2), the

Supreme Court may issue appropriate orders and writs including the writs of habeas corpus, mandamus, certiorari, prohibition and quo warranto.

Provided that except on the ground of lack of jurisdiction, the Supreme Court shall not under this clause interfere with any internal proceedings of the Federal Parliament or State Assembly, and with any proceedings instituted by the Federal Parliament or State Assembly concerning violation of its privileges and penalties imposed therefor.

(4) Subject to this Constitution, the Supreme Court shall, as provided in a Federal law, have the power to originally try and settle cases, hear appeals, test judgments referred for confirmation, revise cases, hear petitions or review its judgments or final orders. Judges other than those having handed down the

previous judgment shall make such review.

(5) The Supreme Court shall settle appeals from cases originally

tried and settled by a High Court and matters of public importance involving questions of interpretation of the Constitution and law or cases recommended by a High Court, accompanied by its opinion, that it is reasonable that decision be made by the Supreme Court.

(6) Other powers and procedures of the Supreme Court shall be as provided for in the Federal law

 

Power to transfer of cases:

(1) If cases which involve substantially the same

questions are sub judice before the Supreme Court and a High Court, and the Supreme Court is satisfied on its own or on application by the Attorney General or parties to such cases that such questions are of public importance, the Supreme Court shall have the power to procure and adjudge the cases together.

(2) If there exists a special situation where judicial impartiality can

be questioned if a case filed in a High Court is tried by that Court, the Supreme Court may, for reasons and grounds to be recorded, order such case to be transferred from such High Court to another High Court and tried by the latter High Court, in accordance with law.

 

Responsibility of Chief Justice:

The Chief Justice shall have the ultimate
responsibility to make effective the administration of justice by the Supreme Court, subordinate courts, specialized courts or other judicial bodies.

 

Appointment and qualification of Chief Judge and Judges of High Court:

(1)The Chief Justice shall, on recommendation of the Judicial Council, appoint the Chief Judge and Judges of the High Court.

(2) Any citizen of Nepal who has obtained a bachelor's degree in law and served as a Judge of a District Court for at least five years or who has obtained a bachelor's degree in law and constantly practiced law as a senior advocate or advocate for at least ten years or who has constantly been engaged in the teaching or research of law or in any other field relation to law or justice for at least ten years or who has served in the post of at least Gazetted first class of the Judicial Service for at least five years shall be deemed qualified for appointment as the Chief Judge or a Judge of the High Court.

(3)Appointments to the Chief Judge and Judges of a High Court
shall be made from amongst the persons who have possessed the qualification
under clause (2) on the basis of the proportion of cases settled by him or her
annually and of evaluation of cases upheld, quashed or reversed by superior
courts in the course of final decision thereof, in the case of a District Judge,
and of his or her seniority, qualification and evaluation of standard of
performance of business, in the case of a person who has served in the post of
at least Gazetted first class of the Judicial Service, and of evaluation of
seniority, professional continuity, honesty, professional conduct and
contribution made to the field of law and justice, in the case of others.

Conditions of service and facilities of Chief Judge and Judges:

 (1) Except as otherwise provided in this Constitution, the remuneration and other conditions of service of the Chief Judge and Judges of the High Court shall be provided for in the Federal law.

(2) Notwithstanding anything contained in clause (1), the Chief Judge or a Judge of a High Court who has been removed from office upon action by the Judicial Council or upon punishment by a court for a criminal

offence involving moral turpitude shall not be entitled to gratuity or pension.

Provided that this provision shall not apply in cases where the Judicial

Council has removed him or her from office on the ground of inability to

perform the duties of his or her office because of physical or mental illness.

(3) The remuneration and other conditions of service of the Chief Judge or a Judge of the High Court shall not be altered to his or her disadvantage.

Provided that this provision shall not apply in cases where a state of

emergency is declared because of extreme economic disarrays.

 

 Vacation of office of Chief Judge or Judge:

(1) The office of Chief Judge or Judge of a High Court shall be vacant in any of the following circumstances:

(a) if he or she tenders resignation in writing before the Chief Justice,

(b) if he or she attains the age of sixty-three years,

(c) if he or she is removed from office by the Chief Justice on recommendation of the Judicial Council, on the ground of his or her incompetence, bad conduct, failure to perform his or her duties honestly, performance of business with mala fide intention or serious violation by him or her of the code of conduct required to be observed by him or her,

(d) if he or she is removed from office by the Chief Justice on recommendation of the Judicial Council on the ground that he or she is unable to discharge his or her duties because of physical or mental illness,

(e) if he or she is punished by a court for a criminal offence involving moral turpitude,

(f) if he or she dies.

(2) A Judge who is facing a charge shall be provided with a reasonable opportunity to defend himself or herself prior to removing him or her from the office under sub-clause (c) of clause (1). The Judge against whom the proceedings have been so instituted shall not be allowed to perform the duties of his or her office until the proceedings are completed.

(3) Nothing shall bar the institution of action in accordance with the

Federal law against the Chief Judge or Judge who has been removed from office for an offence which he or she has committed while in office.

 

Annual report

The Supreme Court, Judicial Council and Judicial Service Commission shall, every year, submit annual reports to the President, and the President shall submit such reports to the Federal Parliament through the Prime Minister.

 

Jurisdiction of High Court:

(1) The High Court shall have the power to issue necessary and appropriate orders, for the enforcement of the fundamental rights conferred by this Constitution or for the enforcement of any other legal right for which no other remedy has been provided or for which the remedy even though provided appears to be inadequate or ineffective or for the settlement of any legal question involved in any dispute of public interest or concern,

(2) For the purposes of clause (1), the High Court may issue

appropriate orders and writs including the writs of habeas corpus, mandamus, certiorari, prohibition and quo warranto.

Provided that except on the ground of absence of jurisdiction, the High Court shall not under this clause interfere with any internal proceedings of the Federal Parliament or State Assembly, and with any proceedings instituted by the Federal Parliament or State Assembly concerning violation of its privileges and penalties imposed therefor.

(3) The High Court shall, in accordance with the Federal law, have the power to originally try and settle cases, hear appeals and test judgments referred for confirmation.

(4) Other powers and procedures of the High Court shall be as

provided by the Federal law.

 

Power to transfer cases:

(1) If a High Court is of the opinion that a case which is sub judice in a subordinate court within its jurisdiction involves a question relating to a State law and it is essential to settle that question in order to decide the case, the High Court may procure the case and dispose the case wholly or decide only such question and remand the case to the court of first instance.

(2) If it is satisfied with the reason that there exists a situation where judicial impartiality can be questioned if a case filed in a District Court is tried by that Court, the High Court may, for reasons and grounds to be recorded, order such case to be transferred from such District Court to another District

Court under its jurisdiction and tried by the latter District Court, as provided for in the Federal law.

 

Responsibility of Chief Judge:

The Chief Judge shall have the ultimate responsibility to make effective the administration of justice by the High Court and the Courts or other judicial bodies which are subordinate to it. For that purpose, the Chief Judge may, subject to this Constitution and the Federal law, give necessary direction to the subordinate Courts and judicial bodies.

 

Appointment, qualification, remuneration and other conditions of service of Judges of District Courts:

(1) The Chief Justice shall, on recommendation of the Judicial Council, appoint Judges of the District Courts.

(2) The vacant posts of Judges of the District Court shall be filled as follows:

(a) twenty percent of the vacant posts, on the basis of evaluation of seniority, qualification and competency, from amongst the officers who have obtained bachelor's degree in law and served for at least three years in the post of Gazetted Second Class of the Judicial Service,

(b) forty percent of the vacant posts, on the basis of open competitive examination, from amongst the officers who have obtained bachelor's degree in law and served for at least three years in the post of Gazetted Second Class of the Judicial Service,

(c) the remaining forty percent of the vacant posts, on the basis of

open competitive examination, from amongst the citizens of Nepal who, having obtained bachelor's degree in law, have constantly practiced law for at least eight years as an advocate or who, having obtained bachelor's degree in law, have served in a Gazetted post of the Judicial Service for at least eight years or have constantly been engaged in the teaching or research of law or served in any other field of law or justice for at least eight years.

(3) The Judicial Service Commission shall, in accordance with the

Federal law, hold written and oral competitive examinations for the persons who have possessed the qualification under sub-clauses (b) and (c) of clause

(2), and make recommendation, in order of merit, to the Judicial Council for appointment as District Judge

 

Jurisdiction of District Court:

(1)Except as otherwise provided by the Federal law, a District Court shall have the power to originally try and settle all cases under its jurisdiction, to try petitions under law, including petitions of habeas corpus and prohibition, hear appeals under law from decisions made by quasi-judicial bodies, hear appeals from decisions made by Local level judicial bodies formed under the State law, institute contempt proceedings and punish for contempt under the Federal law if anyone makes obstruction in the dispensation of justice by, or disregards any order or judgment by, it or any of its subordinate courts.

(2) Other provisions relating to the jurisdiction and procedures of the District Courts shall be as provided for in the Federal law.

 

Specialized courts:

(1) Other specialized courts, judicial bodies or tribunals may be formed to try and settle specific types and nature of cases other than those mentioned in Article 127, as provided for in the Federal law.

Provided that no specialized court, judicial body or tribunal shall be formed for any specific case.

(2) No criminal offence involving imprisonment for a term of more

than one year shall fall under the jurisdiction of a body other than a court, specialized court, military court or judicial body.

 

Judicial Council

Judicial council shall make recommendation or give advice, in accordance with this Constitution, on the appointment of, transfer of, disciplinary action against, and dismissal of, Judges, and other matters relating to the administration of justice (Article 153, The Constitution of Nepal)

Formation of Judicial Council:

According to the article 151(1), the Judicial Council comprises of:

(a)	The Chief Justice	Chairperson
(b)	The Federal Minister for Law and Justice	Member
(c)	The senior-most Judge of the Supreme Court	Member
(d)	One jurist nominated by the President on recommendation of the Prime Minister	Member
(e)	A senior advocate or advocate who has gained at least twenty years of experience, to be appointed by the President on recommendation of the Nepal Bar Association	Member

 

Judicial Service

In appointing, transferring or promoting gazetted officers of the Federal Judicial Service or taking departmental action concerning such officers in accordance with law, the Government of Nepal shall act on recommendation of the Judicial Service Commission. (Article 154, Constitution of Nepal).

Provided that in making new permanent appointments to gazetted posts of the Federal Judicial Service from persons who are not already in the Federal Government Service or making promotions from non-gazetted posts of the Federal Judicial Service to gazetted ones of that Service, the Government of Nepal shall act on the recommendation of the Public Service Commission.

The formation of Judicial Service Commission:  

(a)	The Chief Justice	Chairperson
(b)	The Federal Minister for Law and Justice	Member
(c)	The senior most Judge of the Supreme Court	Member
(d)	The Chairperson of the Public Service Commission	Member
(e)	The Attorney General	Member