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 |
