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Nepal

 
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Nepal

The Court System

The official text of the Muluki Ain was published in Nepali; few statutes were available in English. Statutes were cited by the years of enactment. The Nepal Raj Patra, the government gazette, issued at irregular intervals, published all new legislation. Official texts of Supreme Court decisions were published monthly in the Nepal Kanoon Patriki (Nepalese Law Journal), which also contained the official texts of new legislation and articles on legal topics. The Nepal Act Series, published by the Law Book Management Board in Kathmandu, by arrangement with government ministries, was a compilation of all Nepalese laws and statutes.

Under the vague instrument of the Muluki Ain prior to its 1963 revision, magistrates and justices had wide latitude in deciding cases according to their own interpretations. There was a motive for caution, however, in the provision that if a higher court reversed the decision of a lower court, the magistrate of the lower court was liable to a fine, corporal punishment, or even execution. Court procedures varied greatly. The accuser was placed in jail along with the accused. Writs of habeas corpus were not issued. Prisoners often waited many months before trial. The onus of proof of innocence rested on the accused, who was tried without a jury.

Under the rules, no one could be convicted of a criminal charge without a confession, but confessions were commonly extracted by torture. The Rana courts had both executive and judicial powers, and the prime minister was the supreme judicial authority whose decision on a given case was final.

Reforms enacted under the constitution of 1948 and in the first years following the 1951 overthrow of Rana rule modernized many features of the feudal-based legal system. The prime minister was divested of judicial powers and no longer functioned as the highest court of appeal. The Supreme Court Act of 1952 established the Supreme Court as the highest judicial body, with powers and structure corresponding generally to those of the Supreme Court of India. Special traveling courts were organized and were sent into the districts to provide citizens easier access to the legal system. These courts were empowered to audit public accounts, hear complaints of all kinds, make arrests, hold trials, and impose sentences. An important step toward a unified judicial system came in 1956 with the establishment, mostly in the Tarai, of a series of district courts that heard civil and criminal cases. Appeals courts were set up in Kathmandu. The 1962 Panchayat Constitution stipulated that the king was solely responsible for appointing judges and providing judicial overview.

Under the Panchayat Constitution, the court system was headed by the Supreme Court, composed of a chief justice, nine judges, and a small secretarial staff. Below the Supreme Court were fourteen zonal courts, which, in turn, oversaw seventy-five district courts throughout the country. All the lower courts had both civil and criminal jurisdiction. Although the judiciary technically was independent, in practice the courts never were assertive in challenging the king or his ministers.

The constitution promulgated in 1990 reorganized the judiciary, reduced the king's judicial prerogatives, and made the system more responsive to elected officials. Under the new system, the king appointed the chief justice of the Supreme Court and the other judges (no more than fourteen) of that court on the recommendation of the Judicial Council. Below the Supreme Court, the constitution established fifty-four appellate courts and numerous district courts. The judges of the appellate and district courts also were appointed by the king on the recommendation of the Judicial Council. The Judicial Council, established in the wake of the prodemocracy movement and incorporated into the constitution, monitored the court system's performance and advised the king and his elected government on judicial matters and appointments. Council membership consisted of the chief justice of the Supreme Court, the minister of justice, the two most senior judges of the Supreme Court, and a distinguished judicial scholar. All lower court decisions, including acquittals, were subject to appeal. The Supreme Court was the court of last resort, but the king retained the right to grant pardons and suspend, commute, or remit any sentence levied by any court.

The new judicial system still was in its infancy as of 1991. Some observers noted that judicial appointments had remained a source of patronage by which the elected government rewarded its supporters. Others feared that Nepal lacked the legal resources to staff an expanding and modern judicial system. The growing backlog of legal cases, many of them initiated during the 1990 prodemocracy upheaval, also threatened to overwhelm the system. Despite these drawbacks, however, most observers of the legal system felt the changes were forward-looking and progressive.

Data as of September 1991

Nepal - TABLE OF CONTENTS

  • NEPAL: National Security


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