UPDATE: Research Guide of the Legal System of Kingdom of Nepal

 

By Sirjana Sharma Pokhrel and Dr. Md. Ershadul Karim

 

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.

 

Dr. Md. Ershadul Karim is a Senior Lecture at the Faculty of Law, University of Malaya, Kuala Lumpur, Malaysia and a non-practicing lawyer enrolled with Bangladesh Supreme Court.  

 

Published January 2017

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Table of Contents

1.      Introduction

2.     Legal and Political History

2.1.          Early History

2.2.         Post-Unification Era

2.3.         Dissemination of the Muluki Ain

2.4.         Later Developments

2.5.          After the Period of 1951

2.6.         After the period of 1990

3.     Modern trend (Nepalese Legal System in Transition)

3.1.          Constitution

3.2.         Executive Powers

3.3.         Legislature

3.4.         Judicial System in Nepal

3.4.1.      Supreme Court in Nepal

3.4.2.     Court of Appeal

3.4.3.     District Courts

3.4.4.     Special Courts

3.5.          Appointment and Qualification of Judicial Officers

3.5.1.      Supreme Court Judges

3.5.2.     Appellate Courts Judges

3.5.3.     District Courts Judges

3.6.         National Judicial Academy

4.     How to become a Lawyer in Nepal

5.     Constitutional bodies of Nepal

6.     Research Sources

6.1.          Law Reports, Journals and Books

6.2.         Database of Laws

7.     Government, Ministries, etc.

8.     Departments

9.     Other Institutions

10.   Non-Government Organizations

11.    Others

 

1.     Introduction

Nepal is a federal, democratic republic and secular state, where the largest majority of Hindu population resides. It is a landlocked country situated between India and China’s Tibetan Autonomous region. As an independent, indivisible, sovereign, secular, inclusive, democratic, socialism-oriented federal democratic republican State (art. 4(1), the Constitution of Nepal), the country is a Federal Democratic Republic since May 2008.

 

The country, with a unique landscape and a colorful biodiversity, is multi-religious, multi-cultural and multi-lingual, where more than 100 ethnic populations live 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 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. The election of the Constituent Assembly was held in November 2013 following the dissolution of the 1st Constituent Assembly on 27 May 2012, without promulgating the Constitution.

 

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

Read more about the geography of Nepal, here.

 

2.     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 in 2007 B.C., a 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, the influence of Hindu legal system was minimized, and it became a hybrid legal system in the last fifty years.

 

After the change in 2007 B.C., the concepts of rule of law, fundamental rights of people, independent judiciary, etc., were introduced into the legal system. These concepts were the voluntary incorporation of foreign laws by the Nepalese natives. In 2017 B.C., the Government Cases Act introduced new concepts in the process of criminal justice. Likewise, Muluki Ain 2020 B.C.  brought changes in the penal system and introduced the concept of equality before law, which was adopted by the previous Constitutions of Nepal. However, it was not fully enforced in practice.

 

In 2047 B.C., the new Constitution was promulgated based on people’s popular movement and popular concepts necessary for a democratic country, such are rule of law, fundamental human rights, and the independence of judiciary 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 Developments

·       After the Period of 1951

·       After the Period of 1990

·       Modern trend (Nepalese Legal System in a Transition Phase)

 

2.1.          Early History

Nepalese legal system is over two thousand years old. The formal discussion about the legal history of Nepal starts from Kirants. The Dynasty of Kirants (early – 307 B.C.). It is commonly known as the first ruling dynasty in Nepal, created crude form of government and judicature.

 

The lichhavis conquered the Kirants Kingdom of Kathmandu in 307 B.C. and introduced state system based on religious myth and realities. They paid sufficient attention to 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 was made the source of all state powers.

 

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

 

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

 

Before the unification of Nepal in the 18th century by King Prithivi Narayan Shah, the country was divided into numerous independent principalities, each having its separate administration with a ruling prince. Yet, the common feature among these principalities was the recognition of Dharmasastra where it was silent or vague. Royal edicts provided guiding norms when Dharmasastra and RritiSthiti appeared to be in conflict with each other.

 

From the earliest times to Malla period, the 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 beginning at the village level to upwards. King JayasthiMalla (1380-1395) deserves special mention for his contributions in 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 1606-1633, was a great giver as well as a great promoter of justice.

 

The tradition of justice, whose strong foundation King Ram Shah led down by impartially administering justice to his subjects, was 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 and equality.

 

2.2.         Post-Unification Era

King Prithivi Narayan Shah the Great, (1742-1775) spent most of his time unifying Nepal. Yet he could devote some of his thoughts towards the 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 and 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 significantly reformed the country’s legal and judicial systems. He abolished almost all earlier courts. He established many courts in most of the districts. And, he established new courts at the capital. Although, the Kotlinga and Itachapli courts continued, the new system was more or less followed until the Ranas.

 

The laws and institutions left by King Prithivi Narayan Shah were by large maintained by his royal decedents with necessary amendments and modifications till Jung Bahadur seized power and became the Prime Minister after a bloody massacre in 1846, during the reign of King Surendrea Bikram Shah. The King had to delegate all his powers to the Prime Minister Jung Bahadur who became supreme in all spheres, i.e. executive, legislative, judicial and more. He brought significant changes into the court organization in Nepal. He transformed many courts into more or less quasi-judicial nature. Normally military officials were deputed as chief of the courts. He also formed Kausala (Law Commission), which was later converted into a central court. Similarly, he created a unified code on civil and criminal procedure. The court came into effect on 22 December 1854.

 

2.3.         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 common in those days.

 

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 forces known as the JANGI AIN.

 

The preamble to the Muluki Ain highlights the conditions during these times, focusing on the administration of criminal justice and thereby showing the need for this legislation. There was no uniformity in the disposal of cases, as similar cases were decided differently at different times. Therefore, it became essential to promulgate a Code so that all persons of whatever rank could be punished uniformly based on the crime and none should be awarded a lesser or a higher penalty than that was ordained by law. Brahmins and women were, however, exempted under the MULUKI AIN from capital punishment; instead they underwent Damal – life imprisonment with confiscation and some other legal consequences when convicted of capital crimes.

 

At this time, India also enacted the Penal Code in 1860, seven years after the promulgation of MULUKI AIN. In Nepal, a Penal Code under the British Government did not attempt to codify the then existing criminal law of the land but 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 inspired Prime Minister JUNG BAHADUR to produce voluminous Muluki Ain so swiftly, within seven years of his coming to power. After his return from England, in his tour of France he might have been inspired by the Napoleon Code or due to his close association with the British Government, which was actively considering to enact a penal code for British India, or his desire for an absolute authority under a legal framework are possible causes. Perhaps, it was the third factor – his self-interest – that dictated him to take this course. It is important to note that the King while affixing his Lalmohar (red seal of assent) on his epoch – making Muluki Ain commands his subjects and he committed himself to follow the Muluki Ain.

 

An English translation of the Muluki Ain can be found here.

 

2.4.         Later Developments

The Muluki Ain, 2020 is the main pillar of the Nepalese Legal system during the Rana regime for more than a century. This is based on the supremacy of the prime minister’s powers and principles of punishment are according to a caste. Necessary amendments and modifications were made during the Rana regime.

 

Some of the improvements brought about by the succeeding Rana Prime Minister resulted in the bulky and detailed Muluki Ain being redrafted by hand and abridged since its promulgation in 1886. During the Prime Minister Chandra Shamsher’s regime, the practice of “SATI” (burning the wife alive on pyre with the dead husband) and the practice of slavery were included in the Muluki Ain on a trial basis for five years in 1931 by Prime Minister Bhim Shamser. After a trial for a total of fifteen years the practice was finally abolished when the Muluki Ain was duly amended 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 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 who was considered 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.

 

An English translation of the Muluki Ain can be found here.

 

2.5.         After the Period of 1951

During this time, King Tribhuvan Bir Bikram Shah Deva and late King Mahendra Bir Bikram Shah Deva both introduced noteworthy contributions. King Tribhuvan enacted laws making the judiciary independent and the Pradhan Nayalaya court as the highest and the final court of the land, which he since revised commanding that the highest court is to revise its 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 inconsistent with the Constitution would be invalid. Hence, the previous Muluki Ain was replaced by a new Muluki Ain based on the principle of equality before law – going away with cast and other religious considerations. 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 1951, received its first statute i.e. the Legal Practitioners Act in 1968. Simultaneously, various law-making bodies and law-administering agencies were created at different levels with identified 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 unity to the legal system.

 

However, 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 it before the public in general convincing statistic of growing crime rate. On the other hand, the latest trend in countries with capital punishment is to abolish it from their legal system as far as possible.

 

An English translation of the Muluki Ain can be found here.

 

2.6.         After the Period of 1990

After 1990, the multi-party democracy in Nepal was restored and some major changes were introduced in the 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:

 

In order to achieve the above objectives, the Nepalese laws began being amended and/or repealed in accordance with the intent and spirit of the constitutional requirements and international law. Many discriminatory laws, including the legal provisions related to women, dalit, third gender were amended as per the decisions and directive order of the Supreme Court. In this respect, many discriminatory provisions remained in different chapters of the Muluki Ain. 2020 was also amended to ensure equal rights of men and women. Before the amendments, daughters were not entitled to property rights to their parental property as equal to sons and there were discriminatory punishment provisions, etc.

 

3.     Modern Trend (Nepalese Legal System in Transition)

Many other changes are brought in recent time. Nepalese Parliament has declared Nepal as a secular and democratic republican state, ending the Constitutional monarchy. The Interim Constitution of Nepal 2007 declared Nepal as an independent, indivisible, sovereign, secular, inclusive, federal democratic, republican state. This notion was reemphasized by the recent Constitution of Nepal in 2015, which has declared Nepal the independent, indivisible, sovereign, secular, inclusive, democratic, socialism-oriented, federal democratic republican state.

 

3.1.          Constitution

So far there were seven constitutions in the history of Nepal. These are the Government of Nepal Act in 1948, the Interim Government of Nepal Act in 1951, the Constitution of the Kingdom of Nepal in 1959, the Constitution of Nepal in 1962, the Constitution of the Kingdom of Nepal in 1990, the Interim Constitution of Nepal in 2007 and the Constitution of Nepal in 2015. The latest Constitution of Nepal was promulgated on 20 September 2015 by an elected Constituent Assembly. This Constitution declared Nepal as an independent, indivisible, sovereign, secular, inclusive, democratic, socialism-oriented, federal democratic republican state. It has internalized the values of equality and non-discrimination as well of principle of proportional inclusiveness.

 

Read the unofficial translation of the Constitution of Nepal, 2015, here.

Read the Interim Constitution of Nepal, 2007, here.

 

3.2.         Executive Powers

Nepal is a federal democratic republican state. The President, as the head of state, performs his/her duties in accordance with Part 6 of Article 66 of the Constitution of Nepal and the Federal law. The President shall promote the national unity of Nepal, whose main duty is to abide by and protect the Constitution of Nepal.

 

The President shall appoint the leader of a parliamentary party that commands majority in the House of Representatives as the Prime Minister, and the Council of Ministers shall be constituted under his or her chairpersonship. According to Article 76(9), the President shall, on recommendation of the Prime Minister, constitute the Council of Ministers comprising a maximum of twenty-five Ministers including the Prime Minister, in accordance with the inclusive principle, from amongst the members of the Federal Parliament. The Prime Minister and Ministers shall be collectively responsible to the Federal Parliament, and the Ministers shall be individually responsible for the work of their respective Ministries to the Prime Minister and the Federal Parliament.

 

3.3.         Legislature

Part 8 of the Constitution talks about the Federal Legislature. According to article 83, there shall be a Federal Legislature consisting of two Houses to be known as the House of Representatives and the National Assembly, which together shall be called the Federal Parliament. The Federal Parliament consists of total 334 members. The House of Representatives shall consist of a total of two hundred and seventy-five members and the National Assembly shall consist of fifty-nine members.

 

Law Making Process in Nepal

The legislative powers of the Federal Parliament shall be as enumerated in the lists of Schedule-5, Schedule- 7 and Schedule-9. Part 9 of the Constitution provides for the Federal Legislative Procedures.

 

Authority to Introduce a Bill

A Bill may be introduced in any House of the Federal Parliament by the members of the parliament. However, Money Bill shall be introduced only in the House of Representatives. A Money Bill and a Bill concerning a security body including the Nepal Army, Nepal Police and Armed Police Force, shall be introduced only as a Government Bill. (Part 9, Article 110 (2))

 

Procedure for Passage of Bills

A Bill passed by one House of the Federal Parliament shall be transmitted to the other House as soon as possible and such Bill, if passed by the receiving House, shall be presented to the President for assent.

 

Withdrawal of the Bill

One who has introduced a Bill may, with the approval of the House, withdraw the Bill.  

 

Assent on Bills

A Bill passed by the House shall become an Act only after the President gives assent to it. A Bill which is to be submitted to the President for assent under Article 111 shall be so submitted by the Speaker or the Chairperson of the House in which the Bill originated after it has been certified by him or her. A Bill submitted to the President for his or her assent in accordance with this Article shall be assented to within fifteen days, both Houses shall be informed thereof as soon as possible.

 

Ordinance

If, at any time, except when both Houses of the Federal Parliament are in session, circumstances exist which render it necessary to take immediate action, the President may, on recommendation of the Council of Ministers, promulgate an Ordinance.

 

An Ordinance so promulgated … shall have the same force and effect as an Act. However, … every such Ordinance:

(a)   shall be tabled at the session of both Houses of the Federal Parliament held after the promulgation, and if not passed by both Houses, it shall ipso facto cease to be effective,

(b)  May be repealed at any time by the President, and

(c)   Shall, unless rendered ineffective or repealed under sub-clause (a) or (b), ipso facto cease to be effective at the expiration of sixty days after the day on which a meeting of both Houses is held.

 

Delegated 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 discussion of each detail through question and answer), the provisions are added or amended as per the Regulation. Thus, the Subordinate Legislation is made.

 

3.4.         Judicial System in Nepal

The Constitution provides three tiers of Courts, which include the Supreme Court, the High Court (Court of Appeal) and the District Courts. In addition to the above mentioned courts, judicial bodies may be formed at the local level to try cases under municipal law or other bodies as required to pursue alternative dispute settlement methods. There is no distinction between the Criminal and Civil Court other than some basic procedures.

 

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

 

3.4.1.     Supreme Court of Nepal

 

Power and Functions of the Supreme Court

Article 133 of the Constitution provides for the Jurisdiction of the Supreme Court. 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 [Art. 133 (1), the Constitution of Nepal, 2015].

 

The Supreme Court shall, for the enforcement of the fundamental rights conferred by the 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 [Art. 133 (2), the Constitution of Nepal, 2015].

 

The Supreme Court has both judicial and extra judicial powers. Under the extra-ordinary jurisdiction   , the Supreme Court may issue appropriate orders and writs including the writs of habeas corpus, mandamus, certiorari, prohibition and quo warranto [Art. 133 (3), the Constitution of Nepal, 2015].

 

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 [Art. 133 (4), the Constitution of Nepal, 2015].

 

Read more about the Supreme Court of Nepal here.

 

Power of Hearing Writ Petitions

Under Article 133 (3) of the Constitution of Nepal, 2015, 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 jurisdiction writ 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. The writs are issued particularly in the following conditions:

 

Power of Hearing Appeal

Under Article 133(4) of the 2015 Constitution of Nepal, 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:[1]

(a)   Cases tried and settled by the Court of Appeals under original jurisdiction;

(b)  Cases in which punishment of imprisonment for Ten years or more has been imposed;

(c)   Cases in which reversal of decisions made by the original Court, body or authority has been made by the Court of Appeal made on appeal against such decisions.

 

An appeal may also follow the reference cases submitted to the Supreme Court.

 

Power to Review its Own Judgments

Under Article 133(4) of the Constitution of Nepal, 2015, 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:[2]

(a)   If it appears that the concerned party has come to know any fact likely to materially affect the justice done in the case only after the settlement of the case, or

(b)  If it appears that the decision is contrary to the precedent or legal principle enunciated by the Supreme Court.

 

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:[3]

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

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

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

 

Benches of the Court

There shall be a Constitutional Bench in the Supreme Court. The Constitutional Bench shall consist of the Chief Justice and other four Judges designated by the Chief Justice on recommendation of the Judicial Council [Art. 137 (1), the Constitution of Nepal, 2015]. 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 benches are as follows:

 

 

 

 

 

3.4.2.     Courts 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.

 

3.4.3.     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. According to Article 151 (1) of the Constitution of Nepal, 2015 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.

 

3.4.4.     Special Courts

Article 152 of the 2015 Constitution of Nepal provides for the formation of specialized courts:

 

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

 

 

 

3.5.         Appointment and Qualification of Judicial Officers

 

3.5.1.     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:

 

A person who has worked as a Judge of an Appellate Court or in any equivalent office of the Judicial Service for seven years or has worked in the post of Gazetted 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 Article 105(1)(b). 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:

 

3.5.2.     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 Bachelor’s 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.

 

3.5.3.     District Courts Judges

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 of 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.

 

3.6.         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 holds trainings, conferences, workshop, seminar, symposium, interaction programs, 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.

 

4.     How to Become a Lawyer in Nepal

 

Nepal Bar Council

Nepal Bar Council is an independent legal institution established by the Nepal Bar Council Act, 1993. The main objectives of the Council are to promote, protect and regulate the activities of the law practitioners in a more professional manner. It discharges its duties and responsibilities in accordance with this Act and the rules and regulations framed thereunder in areas of internal Management, Financial Administration, Rules of Employees, Code of Conduct for Lawyers, Curriculum for examination and conducting the examinations for law practice etc.

 

Read more about Nepal Bar Council here.

 

Nepal Bar Association

Nepal Bar Association, the national 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.

 

Legal Education

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

·       Kathmandu School of Law  (affiliated with the Purbanchal University)

·       National Law College, Pulchowk  

·       Chakrabarti Law College, Anamnagar  

·       Bright Vision Law College in Biratnagar (Affiliated with Purbanchal University)

 

5.     Constitutional Bodies of Nepal

The 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 2063 of 2007. The Commission 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.

 

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 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 investigates cases of improper conduct or corruption by a person holding any public office. The Commission consists 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

Part 12, Article 157 of the Constitution of Nepal, 2015 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. A person who is qualified to be appointed as a Judge of the Supreme Court shall be eligible to be appointed as the Attorney General.

 

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.

 

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 154 of the Constitution of Nepal, 2015 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.

 

6.     Research Resources

 

6.1.           Law Reports, Journals and Books

Nepal Law Journal published by Supreme Court is the only official law report in the country, which can be accessed online through its website. Currently, the Nepal Bar Association is developing a database for the judicial decision of Supreme Court on their website, which will only be available to the members. National Judicial Academy of Nepal also publishes NJA Law Journal.

 

If someone has a case pending before the court, he 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 that publishes all laws in the book form. The Supreme Court is the main resource 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 the Supreme Court of Nepal website. For all other issues, the Nepal Bar Council and the Nepal Bar Association offer reviews of laws and articles on legal issues.

 

6.2.         Database of Laws

The following websites contain Nepalese lawyer’s information along with legal materials such as laws, constitutions, rules and others.

 

7.     Government, Ministries, etc.

 

8.    Departments

 

9.     Other Institutions

 

10.  Non-Governmental Organizations

 

11.   Others

 



[1] Sec 9 appeal to the supreme court -Administration of Justice Act, 2048 (1991).

[2] Sec 11 (1)- Administration of Justice Act, 2048 (1991).

[3] Sec 12 (1)-Administration of Justice Act, 2048 (1991).