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NepalThe Judiciary
An independent judiciary, unencumbered by the executive
branch
of the government and palace interference, was a stated
goal of all
political parties. Of the many changes which have taken
place since
the fall of the Ranas in 1951, among the most striking
have been
the growing autonomy of the courts and the gradual
liberalization
of many basic judicial principles. Despite major
improvements,
however, the judicial system has suffered from serious
impediments
in providing speedy, expeditious, and equal justice. The
independence and integrity of the judiciary were
repeatedly
questioned in the press; intervention of political figures
and
government officials in the judicial process was a
frequent
occurrence; and caste and economic status were important
determinants of the availability of justice.
The court system formerly was one of many instruments
used by
the prime minister to maintain the authoritarian rule of
the Rana
family, and the concepts of law it applied were arbitrary,
punitive, and oppressive. After an initial attempt to keep
the
judiciary subordinate when the monarchy was restored, it
was
allowed to become a relatively independent branch of
government.
Reforms in the legal system rendered both substantive and
procedural law progressively more systematic.
Never clearly demarcated, the jurisdiction of the
courts became
further complicated with the introduction of the
panchayat
system, which at the local level exercised some
quasijudicial
functions. Therefore, the fundamental role of the
judiciary and its
position within the government became a subject of
national focus
during the prodemocracy movement.
According to the constitution, the courts comprise
three tiers:
the Supreme Court, appellate courts, and district courts.
In
addition, courts or tribunals may be constituted for the
purpose of
hearing special types of cases
(see The Police System
, ch.
5).
The Supreme Court is the highest court. All other
courts and
institutions exercising judicial powers, except the
military
courts, are under its jurisdiction. The Supreme Court has
the
authority to inspect, supervise, and give directives to
all
subordinate courts and all other institutions that
exercise
judicial powers. The Supreme Court has both original and
appellate
jurisdiction and consists of a chief justice and fourteen
other
judges.
The chief justice is appointed on the recommendation of
the
Constitutional Council. Other judges of the Supreme Court,
appellate courts, and district courts are appointed on the
recommendation of the Judicial Council. All appointments
are made
by the king. The tenure of office of the chief justice is
limited
to seven years from the date of appointment. Supreme Court
justices
can be impeached in the House of Representatives for
reasons of
incapacity, misbehavior, or malafide acts while in office.
The
Judicial Council, presided over by the chief justice of
the Supreme
Court, makes recommendations and advises on appointments,
transfers, and disciplinary actions of the judges and
other matters
relating to judicial administration.
All appointments, promotions, transfers, and
disciplinary
actions of the judges of the appellate and district courts
are
under the jurisdiction of the Judicial Council. An
independent
Judicial Service Commission, appointed by the king, and
with the
chief justice of the Supreme Court serving as ex-officio
chairman,
appoints, transfers, promotes, and provides departmental
punishment
of the gazetted officers of the civil service.
An Abuse of Authority Investigating Commission is
empowered to
investigate the misuse of authority or corruption by
public
officials. Members of the commission have no specific
party
affiliation and are appointed by the king on the
recommendation of
the Constitutional Council.
The Supreme Court is the supreme judicial authority of
the
nation. All orders and decisions made by the court are
binding. Any
interpretation of a law or any legal principle laid down
by the
court is binding on all, including the king.
As a guarantor of personal liberty and fundamental
rights
conferred by the constitution, the Supreme Court has the
authority
to declare a law as void ab initio if it finds that the
impugned
law contravenes the provisions of the constitution. The
Supreme
Court also has the power to issue appropriate orders and
writs,
including habeas corpus, mandamus, certiorari,
prohibition, and quo
warranto.
Data as of September 1991
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