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NepalThe 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
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