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Research Guide of the Legal System of Kingdom of Nepal

 

By Md. Ershadul Karim and Sirjana Sharma Pokhrel

 

Md. Ershadul Karim, the Editor of Chancery Law Chronicles, the first- ever Online Database of Bangladesh Laws, is a PhD student in Nanotechnology Law at the University of Malaya, Malaysia.

 

Sirjana Sharma Pokhrel  works at the Law Office of Sirjana Sharma in Nepal. She has been practicing law since 1996. She holds a LL.M. degree from Nepal Law Campus, Tribhuvan University specializing in commercial law and International and Comparative LL.M. from Dedman School of Law, Southern Methodist University, USA.

 

Published October 2012

 

Table of Contents

Introduction

Legal and Political History

Modern trend (Nepalese Legal System in a Transition Phase)

     Constitution

     Executive

     Legislature

   Law Making Process in Nepal

Judicial System in Nepal

     Supreme Court of the Kingdom of Nepal

     Court of Appeal

     District Courts

     Special Courts

Appointment and Qualification of Judicial Officers

National Judicial Academy

How to become a Lawyer in Nepal

Constitutional bodies of Nepal

     Election Commission

     National Human Rights Commission

     Public Service Commission

     Commission for the Investigation of Abuse of Authority

     Office of Attorney General

     Public Prosecutors/Government Attorneys

     Office of Auditor General

Law Reports and Journals

Database of Laws

Government, Ministries, etc.

Non-Government Organizations

Legal Education

 

Introduction

The Kingdom of Nepal, also referred to as the Gorkha Kingdom, is the world’s only Hindu monarchy and a landlocked country situated between India and China’s Tibetan Autonomous region. As an independent, indivisible, sovereign, secular, inclusive and a fully democratic State (art. 4(1), the Interim Constitution), the country is a Federal Democratic Republic since May 2008.

The country, with a unique landscape, and a fabulous biodiversity, is multi-cultural, multi-religious and multi-lingual, where more than 100 ethnic people live in Nepal and around 70 languages are spoken. Geographically the country is divided into three main geographical regions The Himalayas, the Hills and the Terai (plain land). The country held elections to the Constituent Assembly in April 2008.

The 601-member Constituent Assembly is the most representative legislative body Nepal has ever had, with wider representation from various ethnic groups, geographic regions, social classes, dalits, Madhesi and women.

Read more about the history of Kingdom of Nepal, here.

Read more about the geography of Nepal, here.

 

Legal and Political History

Historically, the Nepalese legal system is based on Hindu philosophy and its growth and development is largely influenced by Hindu religious texts. After the successful revolution of 2007 B.S., new political system based on the democratic norms and values was recognized in Nepal. Since then modernization process of the Nepalese legal system has been taking place at various levels and fields. Nepalese legal system has started to introduce new concept through different sub systems and the influence of Hindu legal system was minimized and it became hybrid legal system for last fifty years. After the change of 2007 B.S. the concept of rule of law, fundamental right of people, independent judiciary etc. were introduced in the legal system. These concepts were the voluntary reception of foreign laws by the Nepalese natives. In 2017 B.S., the Government Cases Act introduced some new concept in the process of criminal justice. Likewise Muluki Ain 2020 B.S. brought changes in the penal system and introduced the concept of equality before he law in practice which was adopted by previous Constitution but it was not fully enforced in practice.

In 2047 B. S., the new Constitution was promulgated as per the aspiration of people’s popular movement. This Constitution has adopted all the concepts, which were necessary for a democratic country. Such as Rule of law, Fundamental Human Right, Independent judiciary etc have become the basic principles of Nepalese Legal system. The legal and political history of Nepalese legal system can broadly be divided into the following parts:

Early History

Post Unification Era

Dissemination of the Muluki Ain

Later Development

After the Period of 1951

After the Period of 1990

Modern trend (Nepalese Legal System in a Transition Phase)

 

I.     Early History

Nepalese Legal system has over two thousand years of history. The discussion about the legal history of Nepal starts from Kirants. Dynasty of Kirants (early- B.S. 307) is commonly known as the first ruling dynasty in Nepal. They formed crude form of government and judicature there under.

The lichhavis conquered the Kirants Kingdom of Kathmandu in B.S. 307 and introduced state system based on religious myth and realities. They paid sufficient attention towards the development of well-managed justice system in the country. However, the rulers could not be free from religious prejudice. As a result, the King becomes source of all state powers.

In B.S. 1197, Mallas started to rule over the country. They also accepted the religious influence. However, some of the Malla Kings did a lot for the reformation of judicial system. They composed each one central court for civil; appeals known as Kotlinga and Itachapali. Besides, Mallas issued legislative incorporations, known as thitis (a kind of obligatory legal rule in society). Basically, administration of justice was governed under the thitis.

Rana Shah, the King of Gorkha, was probably the most illustrations judicial reformist in the history of Nepal. He issued thitis and followed the rule of “Justice according to thitis (law)”. He was interested to deliver the judgments also.

Before the unification of Nepal in the 18th century by King Prithivi Narayan Shah, the country was divided into numerous independence principalities each having its separate administrative set up with a ruling prince yet the common feature among these principalities was the recognition of Dharmasastra was silent or vague. Royal edicts provided guiding norms when Dharmasastra and Rriti Sthiti appeared to be in conflict with each other.

From the earliest times to Malla period, the principality or principalities in the Kathmandu Valley made significant contribution towards the formulation of definite, practical and beneficial rules for human conduct and also towards the establishment of law-administering agencies starting from the village level upwards. King Jayasthi Malla (1380- 1395) deserves special mention for his extension social and judicial reforms. His code known as MANAB NAYASASTRA constitutes an important landmark in the history of Nepalese law and justice.

A few centuries later, the principality of Gorkha about forty-nine miles west of Kathmandu, became a rising power. King Ram Shah, who ruled there from 1606 to 1633, was a great giver as well as a great dispenser of justice.

The tradition of justice, whose strong foundation King Ram Shah led down by impartially administering justice to his subjects were maintained as far as practicable by his royal descendants even in the changed circumstances of gradual expansion of state territories and of growing complexities in social structure. King Ram Shah gave the justice to his people on the basis of religious treatise, tradition, equality.

 

II.   Post Unification Era

King Prithivi Narayan Shah the Great, (1742-1775) spent most of this time for the unification of Nepal. Yet he could devote some of his thoughts towards law and justice as well.

Unification of Nepal by King Prithivi Narayan Shah also helped in the systemization of judicial administration. In every district, a Kachari (court) was set up manned by Dittha, Bichari, and Pandit. They decided cases in cooperation with Amali, the administrator in the district. Dharmadhakari was the highest judicial functionary who either gave his final decision or submitted usually major and important cases, before the King for the final decision. The chief Dharmadhikari sat in the King Court at the center. King Prithivi Narayan, not only unified the country but also made legal and judicial reforms in the country. He abolished almost all earlier courts. He established many courts in most of the district. Besides, he established new courts at the capital. Though, Kotlinga and Itachapli courts were continued. His system was more or less followed until the Ranas. The laws and institutions left by King Prithivi Narayan Shah were by and large maintained by his royal decedents with necessary amendments and modifications till Jung Bahadur seized power and became Prime Minister after a bloody massacre in 1846 during the reign of King Surendrea Bikram Shah. The Kind had to delegate all his powers to the Prime Minister Jung Bahadur who became supreme in all spheres, i.e. executive legislative judicial and so like. He brought significant changes in the court organization in Nepal. He composed many court of more or less quasi-judicial nature. Normally military officials were deputed as chief of the courts. Besides, he formed Kausala (Law Commission) and later on, it was converted into a central court. Similarly, he made a unified code on civil and criminal procedure. The court came into effect from 22 December 1854.

 

III.         Dissemination of the Muluki Ain

In 1883, the Muluki Ain (Country Code) was promulgated which amended and codified all laws of Nepal- civil and criminal including religious and customary. It also abolished the much-abused method of trial by ordeal which was in vogue in those days and about which Brain H. Hodgson has given a graphic account in his works.

The Muluki Ain was originally accompanied by three special enactments one relating to the throne known as the GADIKO AIN, another relating to the affairs of the state known as the RAJAKO AIN ( the law of the King) and the third one relating to the affairs of the armed forced known as the JANGI AIN.

The preamble to the Muluki Ain throws light on the conditions of those times particularly in respect of the administration of criminal justice and thereby shows the necessity of the legislation. There was no uniformity in the disposal of cases similar cases being decided differently at different times. Therefore, it became expedient to promulgate a code so that all persons of whatever rank could be punished uniformly according to their crime and none should be awarded a lesser or a higher penalty than that ordained by law. Brahmins, and women were, however, exempted under the MULUKI AIN, from capital punishment in lieu of which they had to undergo Damal i.e., life imprisonment with confiscation and some other legal consequences when convicted of capital crimes.

So far as criminal law is concerned, India also in 1860, seven years after the promulgation of MULUKI AIN. In Nepal a Penal Code under the British Government which did not attempt to codify the then existing criminal law of the land but on the other hand defined crimes and prescribed punishments for all sections of the people irrespective of race, caste, sex or creed.

In the absence of authentic documents it is difficult to say what prompted or inspired Prime Minister JUNG BAHADUR to produce voluminous Muluki Ain so swiftly and within seven years of his coming to power whether, on his return journey from England, his tour of France where he might have been appraised of the Napoleon Code or his close association with the British Government which was actively considering enactment of a penal code for British India, or his absolute authority  under a legal framework. Perhaps, it would be nearer truth to summaries that the third factor, i.e. his self-interest dictated Prime Minister JUNG BAHADUR to take this course. It may be worthwhile to note that the King while affixing his Lalmohar ( red seal of assent ) on his epoch- making Muluki Ain commands his subjects and commits himself too follow the Muluki Ain.

 

IV. Later Developments:

THE MULUKI AIN, 2020 is main pillar of the Nepalese Legal system during the Rana regime more than a century. This is based on the supremacy of the prime minister’s powers and principles of punishment are according to caste. Though, necessary amendments and modifications were happen during the rana regime.

Some of the improvements brought about by the succeeding Rana Prime Minister got the bulky and detailed Muluki Ain redrafted in a hand and abridged from for promulgation in 1886. During Prime Minister Chandra Shamsher’s rule the practice of “SATI” (burring alive the wife on pyre with the dead husband) and the practice of slavery were made in the Muluki Ain was initiated on a five-year trial basis in 1931 by Prime Minister Bhim Shamser and after a trial of total fifteen years the abolition was finally confirmed by duly amending the Muluki Ain in 1946 during the reign of Prime Minister Padma Shamsher.

The judicial reforms made by the Prime Minister Juddha Shamsher in 1940 separated the judiciary from the executive branch of the Government except at the higher level. Pradhan Nyayala became the highest court of the land but not the final court since its decisions could be revised by the Prime Minister constituting himself as the court of last resort under established procedures. Any case, decided by the Prime Minister, would be the end of litigation and the case could not be reopened. Thus, finality of the judgment was ensured.

Padma Sahamsher, who became Prime Minister in 1945, initiated some constitutional reforms including a Constitution viz. “Nepal Sarakar Baidhanik Kanoon 2004”, which he could not enforce. The year 1951 makes the end of Rana regime and the beginning of a democratic era under the supreme leadership of Shah Kings.

 

V.    After the Period of 1951:

So far as the development of the Nepalese legal system after 1951 is concerned, late King Tribhuvan Bir Bikram Shah Deva and late King Mahendra Bir Bikram Shah Deva both gave noteworthy contributions. King Tribhuvan enacted laws to make the judiciary independent and the Pradhan Nayalaya as the highest and the final court of the land, but has ever since revised himself decisions of the highest court of land but has only commanded the highest court to revise own decisions according to law as and when necessary under established procedures.

 It was, however, during King Mahendra’s rule that extensive legal and judicial reforms were carried out. He was the first monarch of Nepal to give a constitution to his people as the fundamental law of the nation. All laws would invalid that consistent with the provisions of the constitution. Hence, the previous Muluki Ain was replaced by preparing a new Muluki Ain based on the principle of equality before law and doing away with cast and other religious consideration. There was spate of legislation including the acts relating to the Supreme Court and the subordinate courts. King Mahendra publicly declared that there must be complete rule of law in Nepal. The legal profession, which had begun to develop in Nepal in only 1951, received its first statute i.e. the Legal Practitioners Act, in 1968. Simultaneously, various law-marking bodies and law administering agencies were created at different levels with necessary powers under the Constitution and the laws. The list includes the then Rastriya Panchayat as the Central legislature, the Mantri Parishad as the central executive and Sarbocha Adlat as the Supreme Court.

All this has helped the Nepalese Legal System to expand further and adopt more modern legal concepts to meet the needs of the changing Nepalese society without losing its identity. It would be no exaggeration to say that this has been possible mainly because of the Muluki Ain, which has served not only as a Common Criminal Code but also as a Common Civil Code equally applicable to Hindus, Mohammedans and others in personal law matters such as marriage, adoption, inheritance, succession, etc. This has brought homogeneity in the legal system.

But certain trends in legislation are disquieting from the juristic point of view. Recent amendment in the Muluki Ain to introduce capital punishment for certain crimes may be cited as an example. What was accomplished fifty-years ago even in an autocratic regime was thrown away with one stroke of pen in the present democratic set-up without seeking public opinion on the bill of such a far reaching consequence and without placing before the public in general convincing statistic of growing crime rate. On the other hand, latest trend in countries with capital punishment is to abolish it from their legal system as far as possible.

 

VI. After the period of 1990

After 1990, the multi-party democracy in Nepal was restored and some major changes were introduced in the arena of Nepalese Legal system. The mode of legal system started to change through the constitutional reforms. The basic structure as designed by the 1990 Constitution is as follows:-

Constitutional monarchy

Multi-party democracy

Rule of law

Protection of human rights

Independent and competent Judiciary

In order to achieve the above objectives, all the Nepalese laws, made under the Constitution, also started to mend in accordance with the tune of the constitutional norms. Many discriminatory laws were amended as per the declaratory order of the Supreme Court. In this respect, many discriminatory provisions remaining in different chapters of the Muluki Ain, 2020 were also amended with equal legal provisions to men and women. For example, before the amendments, women would be provided only a less right in comparison to that of men in women’s property right provisions, discriminatory punishment provisions, etc.

 

Modern Trend (Nepalese Legal System in Transition)

Many other changes are brought scene in recent time. Nepalese Parliament has just declared Nepal to be a secular state. Most of the constitutional powers of the King are also suspended and curtailed by the declarations of the Parliament. The demands of Constitutional Assembly and Republican type of Government system have become the current hot issue of debate in these days.

 

Constitution

In Nepal, the present Constitution is “The Interim Constitution of Nepal”, which came into force on January 15, 2007. It is an “Interim” Constitution as it is intended to exist only until a new Constitution has been made by the people of Nepal through the Constituent.

Read the Interim Constitution of Nepal, 2007, here.

Read the old Constitutions of Nepal, here.

 

Executive

Nepal is a multi-party republic. The President (as the head of state) performs his/her duties in accordance with Part (4a) Article 36(A) through 36 (k) of the Constitution and laws in force. The position of Prime Minister (head of government) is held by Dr. Baburam Bhattarai. The day to day functioning of the government is done by the Prime Minister appointed by the Parliament.

According to Article 37 of the Interim Constitution the executive power of Nepal shall, pursuant to this Constitution and other laws, be vested in the Council of Ministers. The Council of Ministers also performs the responsibility of issuing general directives, controlling and regulating the administration of Nepal subject to the Constitution and other laws.

 

Legislature

There is a unicameral Parliament in Nepal, which consists of 330 members. The Parliament performs its responsibilities through three main committees- (a) Thematic Committee, (b) Procedural Committee and (c) Constitutional Committee. The thematic committees are Preserve National Interest Committee, Form of Legislative Body Committee, Cultural Social Commitments Committee, Natural Reso. Fina. Right & Pub Rev. Committee, Struct Constitutional Bodies Committee, Judicial System Committee, Restruct State & Dist. State Power, Protection Fund. Rights Minority Marginalized Communities, Fundamental Rights & Directive Principles, etc. There are committees like Committee on Citizens, Public Opinion Collection & Coordination Committee, Capacity Building & Source Management in the Procedural Committee.

Read details on the Parliament, here.

Law Making Process in Nepal

Authority to introduce a bill

A Bill may be introduced in the House by any member of the Legislature-Parliament.

Any Finance Bill and any Bill concerning the security agencies, including the Nepal Army, the Armed Police Force or the Nepal Police, shall be introduced only as a Government Bill. (part 8, Articles 84-88)

 

Procedure for passage of Bills

Any member who wants to introduce a Bill in the House shall give at least seven day’s notice to the Secretary General or Secretary of the Legislature-Parliament about the Bill.

 

Withdrawal of the Bill

The member who introduces a Bill may withdraw the Bill with the approval of the House.

 

Certification of the Bill

A Bill passed by the House shall become an Act after it is certified by the president. Provided that, until the President holds office after the president’s election, the Speaker shall certify the Bill.

 

Subordinate Legislation

In Nepal, the Delegated Legislation are made by- (a) Ministry of Council and Ministers, (b) Public Bodies or Corporations, (c) Local Bodies, (d) Judges, (f) Government Departments, (g) Legislature. The Delegated Legislation is controlled procedurally by: Consultation, Recommendation or Approval and Publication.

The delegated legislation is discussed in the concerned Committee in the Parliament formed as per the Legislature-Parliament Regulation, 2063. While doing this, the Committee checks whether the legislation is made in accordance with the aim of the Constitution or any other Acts. Then, the Concerned Committee makes the detailed Reports mentioning the provisions to be amended if they are unconstitutional or any new things to be added and submitted to the House for discussion. Then after, the House discusses the Report in detail in a comprehensive manner. After the satisfaction and discussion of each detail through question and answer, the provisions are added or amended as per the Regulation. Thus, the Subordinate Legislation is made.

 

Judicial System in Nepal

The Constitution provides three tiers of Court, which include the Supreme Court, the Court of Appeal and the District Courts. There is no distinction between Criminal and Civil Court other than some basic procedures.

District Court is the Court of first instance against the judgment of which Court of Appeal hears appeal. Besides, the Constitution provides for establishing special types of courts or tribunals under the judicial control of the Supreme Court to deal special types of cases, which include- four Revenue Tribunals, one Administrative Court, one Labor Court and one special court.

 

Supreme Court of the Kingdom of Nepal

Power and Functions of Supreme Court

The Supreme Court has both judicial and extra judicial powers. The judicial powers include the power of hearing the writ petitions, appeal, the power of reviewing its own judgments, the power to revise the judgments delivered by the Court of Appeal and the power to try certain cases Article 107 of the Interim Constitution of Nepal, 2007 .

 

Power of Hearing Writ Petitions

Under Article 107(2) of the Interim Constitution of Nepal, 2007, the Supreme Court as the guardian of the Constitution is responsible for the protection of human rights of the people. Legal and judicial remedies against the violation of the fundamental rights are provided under the original writ jurisdiction of the Supreme Court, which is commonly known as extraordinary jurisdiction of the Court.

The Supreme Court has jurisdiction to issues writs (applicable to the respective issues) such as the writs of Habeas Corpus, Mandamus, Certiorari, Quo-warrant and Prohibition. (Article 107(2) of the Interim Constitution of Nepal, 2007)

The writs are issued particularly in the following conditions:

·       If any illegal restriction is made against the fundamental rights of the people,

·       If any legal remedy is not available under any law or the remedy available under the law is inadequate or ineffective, and

·       If any issue relating to public rights or interest requires constitutional or legal resolution.

 

Power of Hearing Appeal

Under Article 107 (3) of the Interim Constitution of Nepal, 2007, the Supreme Court has the power to hear appeals (as specified by the law) against the final decisions of the Court of Appeal. The following cases fall under the appellate jurisdiction of the Supreme Court:

·       Cases decided by the Court of Appeal under their original jurisdiction,

·       If the Court of Appeal overrules the decision of the District Court with a substantially different effect,

·       Cases in which more than 10 years of imprisonment was imposed by a subordinate court, and

·       Cases referred to the Supreme Court by the Court of Appeal (i.e. in cases of sentencing for life imprisonment or life imprisonment with confiscation of properties).

 

Power to Review its Own Judgments

Under Article 107(4) of the Interim Constitution of Nepal, 2007, the Supreme Court is empowered to review its own judgments. The judgments delivered by the Supreme Court may be reviewed on any of the following grounds:

·       If any new evidence, which could make substantial difference to the decision, is found after the delivery of judgment.

·       If any legal remedy is not available under any law or the remedy available under the law is inadequate or ineffective.

 

Power to Revise the Decisions of the Court of Appeal

The Supreme Court has power to revise the final decisions (which are non appealable) of the Court of Appeal on the following grounds-

·       In case there is a serious error in the interpretation of any provision of the Constitution or any other law.

·       In case, the decision made is in contrary to the precedents or it has been misinterpreted.

·       If public (right of) property was affected due to misinterpretation of evidence (in the process of formulating decision).

·       If substantive difference in the judgment is deemed to have occurred due to the absence of proper legal representation, in a case where a party is a minor or woman or old or disabled or mentally incapacitated person.

The extra judicial powers include- (a) the power of rendering advice to His Majesty the King (if His Majesty the King so wishes) on genuine constitutional and legal questions, (b) the power of making rules on the procedural, managerial and administrative functions of the Supreme Court, the Court of Appeal and the District Courts, (c) administration of all the Court of Appeal and all the District Courts, (d) formulating policies and programmes regarding judicial administration, (e) managerial reforms in various courts, (f) the publication and dissemination of the Supreme Court decisions.

 

Benches

The Supreme Court exercises its judicial power through various types of benches, i.e. Single Bench, Division Bench, Full Bench and Special Bench. Jurisdictions of the these benches are as follows;

 

Special Bench

The special bench hears petitions concerning the constitutionality of the law, provides advisory opinion to His Majesty the King of Nepal and any other case referred to it by the Chief Justice of Nepal.

 

Full Bench

The Full Bench, composed of three or more judges, renders the final decision upon the cases are not unanimity in the decision of the division bench or the cases referred to the full bench concerning serious issue of interpretation of law or legal principles by division bench or by the Chief Justice. The chief justice in his discretion may refer any cases to the full bench.

 

Division Bench 

The Division Bench, composed of two judges hears the appeal preferred against the decision of the Court of Appeal, hears the writ petition, makes review of its own judgments and makes revision of the decision of the Court of Appeal as specified by the law.

 

Single Bench

Single Bench, formed of a single judge, hears the writ petition, petition filed against the interim and interlocutory order of the subordinate court, petition against the order of the Registrar concerning procedure of the cases and any other application, which does not fall under the jurisdiction of the special, full, or division bench.

 

Court of Appeal

The Court of Appeal is empowered to hear appeals against the judgments delivered by the District Courts and various quasi-judicial bodies, issue the writs of Habeas Corpus and Mandamus in the cases of violation of civil rights of individual and try certain cases under their respective jurisdiction. Similarly, the Court may issue an order of injunction for this purpose. The Court of Appeal has the power to try certain cases as specified by law and to try cases transferred by the Supreme Court (from among the cases filed in the District Courts) taking into consideration  the complexity of the issue, or to provide speedier justice in prolonged disputes.

Read more about the Court of Appeal here.

District Courts

The District Courts are the court of first instance. The District Courts are responsible for trying all the civil and criminal cases. Section 7 of the Administration of Justice Act of 1991 has empowered the District Courts to try all the cases under their respective jurisdiction.

Read more about the District Courts here.

Special Courts

However, Article 118 of the Interim Constitution of Nepal, 2007 provides for some Special Courts in Nepal including Administrative Court, Inland Revenue Tribunal, and Constituent Assembly Court, etc.

 

Appointment and Qualification of Judicial Officers

Supreme Court Judges

The president of Nepal appoints the Chief justice of the Supreme Court on the recommendation of the Constitutional Council, and the Chief Justice appoints other judges of the Supreme Court on the recommendation of the Judicial Council. The responsibility of chief justice shall have the ultimate responsibility to make the administration of justice effective, and for this purpose he/she may, subject to this Constitution and other laws, give necessary instructions to the Supreme Court and other subordinate courts.

To be appointed as a Judge of the Supreme Court a person should fulfill the following criteria-

·       working as a Judge of the Supreme Court for at least three years will eligible him for appointment as Chief Justice.

·       working as a Judge of an Appellate Court or in any equivalent post in the judicial service for at least seven years, or working as a gazette officer first class or above of the judicial service for at least twelve years, or practicing law for at least fifteen years as a law graduate advocate or senior advocate, or a distinguished jurist working for at least fifteen years in the judicial or legal field will eligible him for appointment as a judge of the Supreme Court.

The tenure of office of the Chief Justice shall be six years from the date of appointment, subject to sub-clause (b) of clause (1) of Article 105. The Chief Justice and other Judges of the Supreme Court shall hold office until they attain the age of sixty-five years.

If the office of the Chief Justice becomes vacant, or the Chief Justice is unable to carry out the duties of his/her office due to illness or any other reason, or he/she cannot be present in office due to a leave of absence or his/her being outside of Nepal, the senior most judge of the Supreme Court shall be the Acting Chief Justice.

The Chief Justice or other judges of the Supreme Court shall be deemed to have ceased to hold office in the following situations;

·       If the Chief Justice submits his /her, resignation to the President or a Judge submits his/her resignation to the Chief Justice.

·       If he/she attains the age of sixty-five years.

·       If the Parliament passes a resolution of impeachment on the ground of inability to perform duties due to incompetence, misbehavior, failure to discharge the duties of their office in good faith, physical or mental condition etc.

·       If he/she dies.

 

Appellate Courts Judges

The Chief Justice shall, on the recommendation of the Judicial Council, appoint the Chief Judge and Judges of the Appellate Courts and Judges of the Districts Courts. While doing so, the Judicial Council shall consider, inter alia, the qualifications, capacity, experience, dedication and contribution to justice, reputation earned in public life and high moral character of a person and make recommendations accordingly.

Any Nepali citizen who has a Bachelor’s degree in law and has worked as a District Judge or worked in any post of gazette first class officer of the Judicial Service for a period of at least seven years; or has a Bachelors Degree in law and has practiced as a senior advocate or advocate for at least ten years; or, for at least 10 years, has either taught law or conducted research thereon or worked in any other field of law or justice shall be considered eligible for appointment as Chief Judge or other Judge of an Appellate Court.

 

District Court Judge

Any Nepali Citizen who has a Bachelor’s Degree in law and has worked for at least three years as a gazette second class officer in the Judicial Service, or has practiced law for at least eight years as an advocate after having obtained a Bachelor’s degree in law, is eligible for appointment as a District Judge.

A person who is an advocate with a Bachelor’s Degree in law and has passed the written and oral examination conducted by the Judicial Council may be appointed to the post of the District Judge.

Judges of the District Courts are appointed by the Chief Justice under the recommendation of the Judicial Council. The District Judges are appointed from among the individuals who have a minimum of three years experience as a Class II officer of the Nepalese Judicial Service or Advocate with minimum practicing experience of eight years. Junior level officials of the Court are appointed by the respective Courts under the recommendation of the Public Service Commission of Nepal.

The District Judges hold their office till the age of sixty-three. They may resign from their office by tendering resignation to the Chief Justice or Chief Justice under the recommendation of the Judicial Council may dismiss them on the ground of incompetence or bad moral conduct or dishonesty.

Editor’s Note: If someone comes to Nepal and has a case pending in the court then he/she needs to do a thorough research about that case. First, he/she has to visit the law libraries of different courts, law schools and also contact private law firms. There is in Nepal a Law Books Management Committee from the government sector who publishes all laws in the book form. The Supreme Court is the main resources for the case law. The court publishes a monthly law journal of all landmark cases. The title of the Supreme Court's monthly journal is "Nepal Kanoon(Law) Patrika( Journal)" ; the e-copy can be found at www.supremecourt.gov.np  For all other issues, the  Nepal Bar Council and the Nepal Bar Association offer  reviews of laws and articles on legal issues.

 

National Judicial Academy

National Judicial Academy was established in 2004 to serve trainings and research needs for the judges, government attorneys, government legal officers, judicial officers, private law practitioners, and others who are directly involved in the administration of justice in Nepal. It is a member of International Organization of Judicial Training. It runs under National Judicial Academy Act and works under the broad policy guidelines of sixteen members’ Governing Council headed by Chief Justice of Nepal.

It conduct trainings, conferences, workshop, seminar, symposium, interaction programmes, undertake training in the field of law and justice and to make available legal literature of scholarly and practical significance to judges, judicial officers and others who are involved in judicial administration. It promotes a competitive, professional competent, service oriented and effective private bar. It publishes annual report, NJA law journal, research paper and other publications.

Read more about the National Judicial Academy here.

 

How to become a Lawyer in Nepal

Nepal Bar Association, the federal organization of Nepalese practicing Lawyers, is a statutory organization, which issues license and also regulates conduct of lawyers and grants license to candidates to practice who succeed in the Bar Council's licensing examination. The Bar Association sets the requirement to become a lawyer, conduct bar exam and regulate the conduct of Nepali lawyers. Usually to be eligible to participate in the licensing examination the applicant should have at least graduate degree of law (B.L/LL.B.). All licensed lawyers have to update their license in the Nepal Bar Council in every five years.

The Bar Association is led by the supreme executive body, the Central Executive Committee (CEC), which is popularly known as NEBA. Direct voting of all members elects Central Executive Committee. In addition to CEC, NEBA has 83 units, spread all over the country. Composition of such units is based upon structure of courts. The CEC has 17 officials containing President - 1, Vice-President - 5(from 5 Regions), Secretary-General - 1, Treasurer - 1 and Members - 9.

Read more about the Nepal Bar Association here.

 

Constitutional bodies of Nepal

The Interim Constitution of Nepal provides for the following constitutional bodies-

1.     Election Commission

2.     National Human Rights Commission

3.     Public Service Commission

4.     Commission for the Investigation of Abuse of Authority

5.     Office of Attorney General

6.     Office of Auditor General

 

Election Commission

The Election Commission is consists of one Chief Election Commissioner and up to four other Commissioners. If, apart from the Chief Election Commissioner, other Election Commissioners are appointed, the Chief Election Commissioner shall act as the Chairperson of the Election Commission. The president, on the recommendation of the Constitutional Council, appoints the Chief Election Commissioner and the Election Commissioners for six years from the date of appointment. However, the tenure will expiry if the Chief Election Commissioner and the Election Commissioner attains the age of sixty-five and they may be removed from the office on the same grounds and in the same manner as has been set out for the removal of a judge of the Supreme Court.

Read details about election commission of Nepal here.

 

National Human Rights Commission

The National Human Rights Commission (NHRC) is an independent body established in 2000 as a statutory body under the Human Rights Commission Act 1997 and later recognized as a constitutional body under the Interim Constitution of Nepal 2007. The Commission is consists of a Chairperson appointed from among the retired Chief Justices or Judges of the Supreme Court of Nepal and four members having outstanding contribution to the protection and promotion of human rights.

The Interim Constitution vests primary responsibility in NHRC to protect and promote the human rights of Nepalese people. NHRC is headed by full-time Commissioners who are appointed by the Prime Minister upon the recommendation of the Constitutional Council. NHRC has been frequently receiving complaints on killing, abduction, physical and mental torture, extortion and disappearance that cause violation and abuse of human rights. Thus, NHRC has been focusing on protecting human rights including the criminal and forensic field.

The Chairperson and the members of the National Human Rights Commission are appointed for six years from the date of appointment and may be removed on the same ground and in the same manner as has been set out for removal of a Judge of the Supreme Court.

Read more about the National Human Rights Commission of Nepal here.

 

Public Service Commission

The independent constitutional body, the Public Service Commission (PSC) as established on 15 June 1951 A.D. is involved in selecting meritorious candidates required by the Government in various vacant posts of the civil service. The Commission is consists of a chairperson and such number of other members as may be required. They are appointed by the President with the recommendation of the Constitutional Council for 6 years. However, the tenure will expiry if the Chairman and members attain the age of sixty-five and they may be removed from their offices on the same grounds and in the same manner as has been set forth for removal of a judge of the Supreme Court.

Read more about the Public Service Commission here.

 

Commission for the Investigation of Abuse of Authority

The Commission for the Investigation of Abuse of Authority conducts inquiries and investigations of improper conduct or corruption by a person holding any public office. The Commission is consist of a Chief Commissioner and other Commissioners as required.

The president shall, on the recommendation of the Constitutional Council, appoint the Chief Commissioner and other Commissioners for six years from the date of appointment. However, the tenure will expiry if the Chief Commissioner or a Commissioner attains the age of sixty-five and they may be removed from his/her office on the same ground and in the same manner as has been set out for the removal of a judge of the Supreme Court.

Read more about the Commission for the Investigation of Abuse of Authority here.

 

Office of Attorney General

The Interim Constitution of Nepal, 2063 (part 16) and other legislative enactments govern the appointment, power, function, and extra jurisdictional status of Attorney General of Nepal. The Attorney General is appointed by the President, on the recommendation of the Prime Minister and holds office during the pleasure of the Prime Minister. Any person is eligible to be appointed as the Attorney General if he or she is qualified to be appointed as a Judge of the Supreme Court.

The Attorney General, as the chief legal advisor to the Government of Nepal, gives opinions and advices on constitutional and legal matters to the Government of Nepal and such other authorities as the Government of Nepal may specify. The Attorney General has the right to appear and express his or her opinion on any legal question in any meeting of the Parliament, the Constituent Assembly or any of their committees but he or she shall not have the right to vote.

Read more about the office of the Attorney General here.

 

Public Prosecutors/Government Attorneys

There are total 242 Public Prosecutors/Government Attorneys in different status working throughout the country. Under the broad Judicial Service Category of Employees, a sub-group of Government Attorneys has been classified under Judicial Service. Fresh law graduates can sit for the competitive examination conducted by Public Service Commission every year. On the recommendation of the Public Service Commission, the Government appoints the successful candidates for the post of Assistant District Government Attorneys (Gazated Third-Class). The post of Public Prosecutor/Government Attorney is a cadre-based job in the Judicial Service. The cadre is promoted on the basis of file promotion after a certain time he/she spent in the same post. There are four categories of cadre based Public Prosecutor/Government Attorney under Attorney General. As:

·       Deputy Attorney General, (Secretary Level, Special Class)

·       Joint Government Attorneys, (Gazated First-Class)

·       Deputy Government Attorneys/District Government Attorneys, (Gazated Second-Class)

·       Assistant District Government Attorneys, (Gazated Third-Class)

After their appointment, they come under the purview of the Judicial Service Commission (JSC) for their posting, transfer and promotion within the organization. JSC is a high-level constitutional body headed by Chief Justice, Chairman of the Public Service Commission and the Attorney General as its member. Thus except the Attorney General all other Public Prosecutors/Government Attorneys including the four Deputy Attorneys General are career civil servants.

Read more about the Public Prosecutors/Government Attorneys here.

Article 114 of the Interim Constitution of Nepal has made provisions for Judicial Service Commission for the purpose of appointment, transfer, promotion and any department actions to the employee of Judicial Service.

 

Office of Auditor General

The Auditor General of Nepal is appointed by the President on the recommendation of the Constitutional Council for six years from the date of appointment. However, the tenure will expire if the Auditor General attains the age of sixty-five and may be removed from his/her office on the same ground and in the same manner as has been set out for the removal of a judge of the Supreme Court.

Read more about the Auditor General of Nepal here.

 

Law Reports and Journals

Nepal law Journal published by Supreme Court is the only one law report in Nepal. Currently, the Nepal Bar Association is developing a database for the judicial decision of Supreme Court in their website, which will only be available to the members.

National Judicial Academy of Nepal also publishes NJA Law Journal.

 

Database of Laws

The following websites contain legal materials like laws, constitution, rules, about the legal institutions-

1.     Law Commission of Nepal

2.     Supreme Court of Nepal

Read the list of international human right treaties with the status of signature and ratification where Nepal is a party here.

 

Government, Ministries, etc.

1.     Government of Nepal

2.     Office of the Prime Minister

3.     Ministry of Agriculture and Cooperatives

4.     Ministry of Commerce and Supplies  

5.     Ministry of Defence

6.     Ministry of Education

7.     Ministry of Energy

8.     Ministry of Environment

9.     Ministry of Federal Affairs, Constituent Assembly, Parliamentary Affairs and Culture

10.  Ministry of Finance

11.   Ministry of Foreign Affairs

12.  Ministry of Forest and Soil Conservation

13.  Ministry of General Administration

14.  Ministry of Health and Population

15.  Ministry of Home Affairs

16.  Ministry of Industry

17.  Ministry of Information and Communication

18.  Ministry of Irrigation

19.  Ministry of Labour and Transport Management

20.  Ministry of Land Reform and Management

21.  Ministry of Law and Justice

22.  Ministry of Local Development

23.  Ministry of Peace and Reconstruction

24.  Ministry of Physical Planning and Works

25.  Ministry of Science and Technology

26.  Ministry of Tourism and Civil Aviation

27.  Ministry of Women, Children and Social Welfare

28.  Ministry of Youth and Sports

 

Departments

1.     Department of Agriculture

2.     Department of Customs

3.     Department of Drug Administration

4.     Department of Electricity Development

5.     Department of Forests

6.     Department of Hydrology and Metrology

7.     Department of Immigration

8.     Department of Irrigation

9.     Department of Local Infrastructure Development and Agricultural Roads

10.  Department of Road

11.   Department of Survey

 

Others

1.     Constituent Assembly of Nepal

2.     Central Bureau of Statistics

3.     Financial Comptroller General Office

4.     Inland Revenue Department

5.     Meteorological Forecasting Division

6.     National Center for Educational Development

7.     National Planning Commission

8.     Nepal Bureau of Standards & Metrology

9.     Nepal National Library

10.  Public Procurement Monitoring Office

 

Non-Government Organisations

1.     Advocacy Forum

2.     Centre for Legal Research and Resource Development (CeLRRd)

3.     Pro Public

4.     Legal Aid and Consultancy Centre (LACC)   

5.     Forum for Women, Law and Development (FWLD)   

 

Others

International Alert

American Bar Association Rule of Law Initiative (ABA ROLI)

Permanent Mission of Nepal to the United Nations

 

Legal Education

Nepal Law Campus [The first Nepal law college affiliated with the Tribhuvan University]

Kathmandu School of Law  (affiliated with the Purbanchal University)

Central Law Library